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Law of War

IHL’s Era of Application?

by Duncan Hollis

Today marks the 150th Anniversary of the signing of the first Geneva Convention — the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.  12 States signed it on August 22, 1864, and the treaty went on to have 57 parties before being replaced by later Geneva Conventions in 1906, 1929 and 1949.  The ICRC is using the occasion to make a call for more action on international humanitarian law and to spread knowledge about that law more generally (including a 4 minute video on the Rules of War in a Nutshell).  

It’s interesting to think about the full arc of IHL that this anniversary represents. It seems we’ve gone from decades of iteration — where States and others worked to hammer out what rules actually exist — to what is now much more an era of application.  Today’s IHL debates (many of which we’ve hosted here in recent weeks) regularly revolve around where, when and how specific rules apply to particular cases.  Or, they debate which rules exist only in treaty form versus those that have the status of customary international law.  Even in areas of new technology, the prevailing effort is to explain how existing rules govern by analogy (see, e.g., the Tallinn Manual).  These are all important and even laudatory causes.  But it does leave me with a question:  Is the corpus of IHL now largely complete, or should we expect another round of law generation akin to the Geneva Convention projects of 150 and 75 years ago?  Simply put, is there any new IHL to be made, and, if so, what should it be?   

Okay, This Time Britain Really Has Killed Terrorism (Updated)

by Kevin Jon Heller

Last November, I wrote a post entitled “Terrorism Is Dead, and Britain Has Killed It.” I chose that title because I couldn’t imagine a conception of terrorism more absurd than the one argued by the British government and accepted by a Divisional Court: namely, that David Miranda’s mere possession of documents illegally obtained by Edward Snowden qualified as terrorism under the Terrorism Act 2000.

I obviously need to expand my imagination.

Why? Because the British government’s is now arguing that merely watching the video of James Foley’s execution is terrorism. From the Telegraph:

Viewing or sharing the harrowing video of James Foley’s beheading online could be regarded as a terrorist offence, Scotland Yard has warned.

A spokesman for the Metropolitan Police said specialists from the Counter Terrorism unit were continuing to examine the footage in order to look for clues as to the identity of the suspected British jihadist but said the public should refrain from viewing the video.

In a statement a spokesman said: “We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under Terrorism legislation.”

Metropolitan Police Commissioner Sir Bernard Hogan-Howe explained that while viewing the video was technically a crime, his officers would be more focused on tracking down those who shared the footage or glorified it.

Um, no — viewing the Foley video is not “technically a crime.” Foley’s execution is a horrific act by a horrific organisation. But there is absolutely no plausible argument that merely watching a video of it qualifies as terrorism under the Terrorism Act 2000 — not even in light of the awful Miranda judgment. We can see why by quoting the UK Independent Reviewer of Terrorism Legislation‘s summary of that case:

What the Miranda judgment reveals is that the publication (or threatened publication) of words may equally constitute terrorist action. It seems that the writing of a book, an article or a blog may therefore amount to terrorism if publication is “for the purpose of advancing a political, religious, racial or ideological cause”, “designed to influence the government” and liable to endanger life or create a serious risk to health or safety.

There are two obvious problems with considering the mere act of watching the Foley video an act of terrorism. First, watching the video is not “liable to endanger life or create a serious risk of health or safety,” as required by s 1(2) of the Terrorism Act 2000 — unless, of course, we think that anyone who watches it will somehow magically be transformed into an ISIS terrorist. Second, although I don’t understand why anyone would want to watch the savage murder of an innocent person, individuals are clearly not watching the video “for the purpose of advancing a political, religious, racial or ideological cause” or because they intend “to influence the government.” So no, watching the Foley video does not qualify as a terrorist act under s 1(1).

Nor does merely watching the Foley video violate any of the substantive offences in either the Terrorism Act 2000 or the Terrorism Act 2006. (Section 1(1) is not an offence in itself; it provides the definition of terrorism for the substantive offences.) In terms of the Terrorism Act 2000, it’s not “support” under s 12, because that section requires the defendant to have “invite[d] support for a proscribed organisation.” It’s not “use and possession” under s 16, because that section, like s 1(1), requires the specific intent to promote terrorism. It’s not “possession for terrorist purposes” under s 57, because merely having the Foley video on a computer (which streaming does not even involve) does not “give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.” And it’s not “collection of information” under s 58, because an execution video, though disgusting, is not “a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism.”

Merely watching the Foley video also does not run afoul of the Terrorism Act 2006. Section 1 criminalises “encouragement of terrorism,” but it applies only to those who “publish” a statement that encourages “the commission or preparation of acts of terrorism.” Watching a video is not publication. For similar reasons, watching a video does not qualify as “dissemination of terrorist publications” under s 2 — not even in light of s 2(2)(f), which criminalises possessing a terrorist publication “with a view to its” dissemination.

In his most recent report, the Independent Reviewer wrote that “[a] statutory definition [of terrorism] so broad that the enforcement authorities resort to their own rules of thumb in order to make sense of it is unhelpful.” I think the Metropolitan Police’s argument about the Foley video makes his point.

NOTE: I have updated the post in response to Adrian Hunt‘s excellent comment below, which deserves to be read in full.

Guest Post: Attacks on Schools–What about International Law?

by Kristin Hausler and Robert McCorquodale

[Kristin Hausler is an Associate Senior Research Fellow in Public International Law and Robert McCorquodale is the Director of the British Institute of International and Comparative Law. The views expressed here are those of the authors and not of BIICL.]

On 30 July, a school operated by a UN agency in the Jabalia refugee camp, north of Gaza City, was shelled by the Israeli army, killing at least 16 people and injuring more than 100.On 3 August, the Israeli army bombed another Gaza school run by the UN, this time in Rafah, where over 2,000 displaced Palestinians were sheltering. This attack reportedly killed at least 10 individuals. There have also been reports that Hamas has been storing weapons in schools. Can attacks on schools, teachers and students ever be legitimate under international law?

International humanitarian law applies, in its entirety, to international armed conflicts, while some of its key principles apply also to non-international (internal) armed conflicts. All the parties to the current armed conflict in Gaza and other armed conflicts, no matter if they qualify as state or non-state actors, are, at the very least, legally bound by the rules of customary international humanitarian law. The key rules are the distinction between civilians and those taking a direct part in hostilities, and between civilian and military objects. Deliberate attacks on civilians are prohibited. Therefore, students, teachers and all other civilians who may be located in a school are protected as long as they do not take an active part in the hostilities. In addition to deliberate attacks, indiscriminate attacks, which do not distinguish between civilian and military targets, such as those consisting of area bombardments over densely populated areas or those conducted with imprecise weapons that are not able to target military objectives with sufficient precision, are prohibited. Disproportionate attacks which cause excessive harm to civilians are also prohibited.

In the same way as individuals are protected if they do not take part in hostilities, schools are protected from attacks because they do not serve a military function. While some buildings, such as hospitals, benefit from special protection under international law, this is not the case for schools. The protection of schools from attacks ceases if they become military objectives, which occurs when they are used for military purposes and effectively support military action, such as to store weapons or to station troops. Such use should be discouraged.

Deliberately placing civilians in or around military objects amounts to using civilians as ‘human shields’, which is prohibited under customary international law. If schools are used solely as shelters for civilians, they remain civilian objects. In case of doubt about the military nature of an object, the building in question must be presumed to be civilian. At all times, any party to a conflict must minimize the risks of civilian casualties and injuries, as well as minimize the risks of damage or destruction of civilian objects by taking all possible precautionary measures in the conduct of military actions.

In addition, parties to a conflict also have a duty to respect human rights within their borders, as human rights continue to apply during armed conflicts. States exercising effective control over territories beyond their borders are also bound by their human rights obligations on those territories. Both Israel and Palestine are parties to human rights treaties that protect the right to education and protect children’s rights. Therefore, the use of schools for military purposes, which is likely to threaten the provision of education, may also amount to a human rights violation on the part of the state responsible to provide education.

Through the application of international criminal law and after appropriate investigation, the perpetrators of international crimes may be held individually responsible. In relation to both international and non-international armed conflicts, the Statute of the International Criminal Court (ICC) establishes that intentionally directing attacks against the civilian population, as well as intentionally directing attacks against buildings dedicated to education, are war crimes. However, the ICC can only prosecute crimes if the alleged perpetrator is a national of one of its State Parties, if the crime was committed on the territory of a State Party, or if the matter is referred by the UN Security Council. While Israel has signed the ICC Statute, it has never ratified it, and Palestine’s declaration accepting the ICC jurisdiction was not accepted when it was made.

It is also important that those, including the injured and the relatives of the victims, who have suffered harm as a result of those attacks are provided with adequate reparations. States responsible for violations of international humanitarian law and international human rights law are under an obligation to provide adequate reparation, even if their actions were committed extra-territorially. For example, the schools that have been destroyed must be repaired so that the right to education continues to be provided.

Elsewhere, schools, pupils and teachers have been the objects of acts of violence in recent times, including, for example, in Nigeria, where Boko Haram conducted targeted shootings at schools and abducted female students, and in Pakistan, where the Taliban attempted to kill student and activist Malala Yousafzai. All of these attacks highlight the need to uphold the international legal provisions protecting education, as has been shown by BIICL’s research on Protecting Education in Insecurity and Armed Conflict. If a state and a people are to have long-term sustainable peace and development after an armed conflict, then there is a great need for education now and in the immediate future. Furthermore, the right to education is an enabling right, empowering access to other human rights and to meaningful participation in society. It is a right deserving of all our protection, at all times.

 

MH17 Should Be Framed as Murder, Not as a War Crime

by Kevin Jon Heller

It has become quite common to describe the downing of MH17 as a war crime. In late July, for example, Navi Pillay, the UN High Commissioner for Human Rights, said that “[t]his violation of international law, given the prevailing circumstances, may amount to a war crime,” More recently, William Burke-White has said that, for framing purposes, “[t]he time has come for governments and international organizations to call the attack on MH17 a probable war crime.” 

[I]f whoever launched the missile did so with the intent of killing the civilian passengers aboard MH17, the act was unmistakably a war crime.

Even if the objective was to strike a Ukrainian transport aircraft, the act likely constitutes a war crime. Fundamental to the law of war, including the law applicable in non-international armed conflicts, is the principle of distinction – the requirement that fighting parties distinguish between civilian and military targets. In the words of the International Committee of the Red Cross, that duty of care includes doing “everything feasible to verify that targets are military objectives.”

In this case, many steps could easily have been taken to differentiate MH17 from a military-transport plane, including visual identification (perhaps with binoculars), radar-signature analysis, and a check of the civilian aircraft transponder-code broadcast. If, as seems likely, these basic steps were not taken, even an accidental strike on MH17 would constitute a war crime.

If the Ukrainian separatists did indeed intend to kill civilians, Bill and Navi Pillay are absolutely right to describe the attack as a war crime — in this case, murder and/or intentionally directing attacks at civilians or civilian objects (to use the Rome Statute’s terminology). But everything we know to date about the attack indicates that the separatists honestly believed MH17 was a Ukrainian military transport, not a civilian airplane. If so, that changes the legal assessment of the attack considerably. The attack would still qualify as murder under domestic law — but it would not qualify as a war crime, under either the Rome Statute or the jurisprudence of the ICTY. (The latter likely representing the customary definition of the war crimes of murder and attacking civilians or civilian objects, which most states would apply in a prosecution based on universal jurisdiction.)

Let’s go in order. The problem with describing the attack on MH17 as a war crime under the Rome Statute is Article 32(1), which provides that “[a] mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.” The actus rei of the war crime of murder and the war crime of intentionally directing attacks at civilians or civilian objects each include a circumstance element: the individuals attacked must qualify as civilians (or as otherwise protected persons). The relevant mens rea for circumstance elements is knowledge, pursuant to Art. 30(3) of the Rome Statute: “For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists.” Black-letter criminal law provides that an honest mistake of fact negatives any mens rea that requires subjective awareness. So if the separatists honestly believed they were attacking a Ukrainian military transport, they were not aware that they were attacking civilians. In which case they could not be convicted of either the war crime of murder or the war crime of intentionally directing attacks at civilians or civilian objects.

The result is no different under the ICTY’s jurisprudence, even though the ICTY applies a lower mens rea to the war crimes of murder and attacking civilians. A complete discussion of the issue is beyond the scope of this post; suffice it to say here that an accused will be responsible for either war crime only if he was reckless toward the possibility that the objects of his attack qualified as civilian. (Dolus eventualis in civil-law terminology.) Recklessness is a subjective mental state in the ICTY’s jurisprudence; as the Trial Chamber noted in Brdjanin, specifically in the context of murder, “the threshold of dolus eventualis entails the concept of recklessness, but not that of negligence or gross negligence.”” Like the ICC, the ICTY recognizes mistakes of fact. As a result, the separatists could not be convicted of either the war crime or murder or the war crime of attacking civilians under ICTY jurisprudence if they honestly believed they were attacking a Ukrainian military transport: although that belief might have been negligent, even grossly negligent, its honesty meant that they were not subjectively aware they were attacking civilians.

The bottom line is that the accidental downing of civilian airplane based on an honest belief that the airplane was a military objective is not a war crime. Failing to take adequate precautions may violate IHL, but it is not criminal. The downing of MH17, therefore, should be framed not as a war crime but as murder.

Final Thoughts on the Bar Human Rights Committee’s Letter

by Kevin Jon Heller

Kirsty Brimelow QC, the chair of the Bar Human Rights Committee (BHRC) — and a colleague of mine at Doughty Street Chambers — has responded to my position on the 2009 Declaration, as recounted by Joshua Rozenberg in this Guardian article. Here is the relevant paragraph:

Neither Rozenberg’s opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support of their positions. This is hardly surprising given that the decision does not in fact “formally reject” the 2009 declaration.

Although I stand behind my claim that the OTP “formally rejected” the 2009 Declaration in its 2012 decision, Kirsty correctly points out that I did not cite the text of the decision. So I think it’s useful to summarise the text and quote it where appropriate:

[1] The 2009 Declaration purported to accept the Court’s jurisdiction over the situation in Palestine on an ad hoc basis, retroactive to 1 July 2002 (para. 1).

[2] Per Art. 15 of the Rome Statute, the OTP initiated a preliminary examination “in order to determine whether there was a reasonable basis to proceed with an investigation” (para. 2).

[3] The OTP stated that the first step in that inquiry was to determine whether it had jurisdiction over the events in Palestine. In that regard, it noted that “only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction” (para. 3)

[4] The OTP pointed out that only a “State” can accept the Court’s jurisdiction on an ad hoc basis under Art. 12(1) of the Rome Statute (para. 4), which meant that the key issue with regard to the Declaration was whether Palestine qualified as a State (para. 5).

[5] The OTP concluded that it did not have the authority to decide whether, as a matter of law, Palestine was a State; that responsibility was “for the relevant bodies at the United Nations or the Assembly of States Parties” (para. 6).

[6] The OTP acknowledged that numerous states had acknowledged Palestine’s statehood and that Palestine had applied for membership as a State in the UN, but insisted that although the UN application was relevant, “this process has no direct link with the declaration lodged by Palestine” (para. 7).

[7] The OTP said it “could in the future consider allegations of crimes committed in Palestine” if the statehood issue was “eventually” resolved by the UN or ASP (para. 8).

Although the decision is not the picture of clarity, I still think it qualifies as a “formal rejection” of the 2009 Declaration. The Declaration formally requested the OTP accept jurisdiction and investigate the situation in Palestine. The OTP opened a preliminary examination, as required by the Rome Statute, but then ended that examination at the first step, concluding that it did not have jurisdiction over the events in question because Palestine could not establish that it was a State. That’s a rejection, even if the OTP — to use a common-law phrase — dismissed the Declaration without prejudice.

My guess is that paragraph 8 is the crux of the disagreement between the BHRC experts and me. They are reading it as a statement that the OTP would essentially hold onto the Declaration until the UN or ASP clarified Palestine’s status as a state, at which point it could then advance the preliminary examination. It’s possible — but I think the OTP would have said as much if that’s what paragraph 8 meant. I read the paragraph as making clear the OTP was rejecting the Declaration without prejudice to a later ad hoc declaration — a reading, not incidentally, that seems to square with Fatou Bensouda’s recent statement that the OTP won’t act without a new Declaration or Palestine’s ratification of the Rome Statute.

I also want to make clear that I disagree with Rozenberg’s statement that the BHRC “is at best naive, and at worst misleading, for suggesting [the] legal situation is beyond doubt.” I don’t think there is anything naive or misleading about the letter, even though I disagree with it. These are very difficult issues, over which reasonable people can disagree. And there is, of course, nothing wrong with advocates advocating.

Finally, I want to sincerely apologise to the BHRC for revealing that I had been asked to sign the letter. Although I waited for the letter to appear publicly before commenting on it, I should not have mentioned that I had been approached.

Guest Post: More on Morsi’s Shadow on Palestine’s ICC Efforts

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.]

Rumors and speculation about a Palestinian ICC bid continue to abound. However, news accounts about the process behind the PA’s consideration of the issue underline the point I made in a prior post that based on the Morsi precedent, Abbas could not accept the Court’s jurisdiction. I will elaborate on that here, and address some comments about my argument (partly concurred in by Kevin) about the relevance of the Morsi matter to a Palestinian referral.

In a meeting last week Abbas sought “written consent to join the ICC” from other Palestinian factions. According to another account Abbas has a draft acceptance letter, and is “waiting for signature from Hamas and Islamic Jihad.” If the PA needs the written consent - not just a political nod- from the Gaza–based factions, it strongly supports the view that the PA government does not have full power to accept jurisdiction on behalf of Palestine, especially for Gaza.

Some might say that if the government is divided and both possible claimants to full powers agree, then any defect is cured (this may be why Abbas wants written authorization).  The argument does not work: the sum of governmental authority is greater than its parts. To accept ICC jurisdiction, especially after the Morsi matter, it must be clear which particular government is in control, and it must be that government that accepts jurisdiction.

The reason to require government control over a state for ICC jurisdiction is it is that government that will be responsible for enforcing the treaty. A joint signature raises myriad intractable problems. Who will ultimately be carrying out the obligations of the treaty? Abbas would presumably not mind signing over authority over Israeli crimes, but then not cooperate with the court in investigating Hamas crimes, saying he has no control there.

If all factions give written consent to join, who has authority to terminate membership?

(more…)

My Podcast on Palestine and the ICC — and an Additional Thought

by Kevin Jon Heller

I had the pleasure of doing a podcast yesterday with Mark Leon Goldberg, purveyor of the essential UN Dispatch website, on the possibility of Palestine ratifying the Rome Statute or accepting the Court’s jurisdiction on an ad hoc basis. It’s about 20 minutes long, and you can find it here (or on iTunes).

I do want to mention another aspect of Palestine’s decision — one I hadn’t thought about until I read this excellent article in the Guardian by Joshua Rozenberg. (And it’s not just excellent because he quotes me.) As I discuss in the podcast, Palestine has two roads to a potential ICC investigation of Operation Protective Edge: (1) accept the Court’s jurisdiction on an ad hoc basis retroactive to 29 November 2012, the date of UNGA Res. 69/17; or (2) ratify the Rome Statute and then file an ad hoc declaration retroactive to 29 November 2012. Although both roads would give the ICC jurisdiction over the situation in Gaza, there is actually a critical procedural difference between them — assuming that the OTP wanted to investigate (which I still think is extremely unlikely). If Palestine simply accepts the Court’s jurisdiction on an ad hoc basis, the OTP’s decision to investigate would be considered proprio motu — and that decision would be subject to review by the Pre-Trial Chamber. (See, in that regard, the Cote d’Ivoire situation.) By contrast, if Palestine ratified the Rome Statute and then filed an ad hoc declaration, the OTP’s decision to investigate would be based on the referral of a State Party — and would not be subject to Pre-Trial Chamber review.

We’ll see what happens…

Three Thoughts on the OTP’s Rejection of Jurisdiction over the Situation in Palestine

by Kevin Jon Heller

The ICC Office of the Prosecutor has just released the following statement:

Palestine is not a State Party to the Rome Statute, the founding treaty of the ICC; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the November 2012 United Nations General Assembly Resolution (67/19), which accorded non-member observer State status to Palestine.

The ICC has no jurisdiction over alleged crimes committed on the territory of Palestine.

I have three thoughts on the statement. First, the OTP clearly believes that the 2009 Declaration by the Palestinian Authority is void. If Palestine wants the OTP to investigate, it will have to either ratify the Rome Statute or file a new declaration accepting the Court’s jurisdiction on an ad hoc basis.

Second, it seems equally clear that the OTP will not accept a Palestinian declaration accepting jurisdiction over events prior to before 29 November 2012, when the UNGA adopted Res. 67/19. The statement strongly implies — if it doesn’t quite say it explicitly — that Palestine’s statehood, at least for the ICC’s purposes, began on that date. Any other conclusion is difficult to reconcile with the statement’s emphasis on Res. 67/19; the fatal flaw of the 2009 Declaration seems to be that it was made before the UNGA upgraded Palestine’s status.

Third, the statement’s reference to “the territory of Palestine” raises the possibility that the OTP will not accept an ad hoc declaration that is limited to Gaza — even one that properly focuses, as the 2009 Declaration did, on crimes committed by both parties to the conflict. To be sure, the reference may just reflect casual or sloppy drafting; indeed, I see no reason why Palestine could not self-refer only the Gaza situation, given previous situations the OTP has accepted (Northern Uganda, Ituri, Darfur, etc.) But it’s a point to ponder going forward.

Bar Human Rights Committee of England and Wales Asks OTP to Investigate Gaza (Updated)

by Kevin Jon Heller

The request is supported by a number of leading QCs and professors in Britain. (Full disclosure: three of the signatories are barrister members and one is an academic member of Doughty Street Chambers, with which I’m associated.) Here is the Bar Human Rights Committee’s summary:

Public international law and criminal law Q.C.s and Professors based in Britain join with the Bar Human Rights Committee of England and Wales to urge the Prosecutor of the International Criminal Court (ICC) to initiate a preliminary investigation into crimes being committed in the Gaza Strip.

In response to the extreme gravity of the situation in the Gaza Strip, including spiralling civilian deaths and large scale destruction of homes, hospitals and schools, the Bar Human Rights Committee of England and Wales, supported by leading Q.Cs and Professors, has submitted a formal request, calling upon the Prosecutor of the International Criminal Court to initiate an investigation, pursuant to Article 15 of the Rome Statute.

The letter of request was submitted to the ICC on 3rd August 2014. It asserts that the 2009 Declaration, submitted by the Government of Palestine pursuant to Article 12(3) of the Rome Statute, provides the prosecutor with the necessary jurisdictional basis on which to act.

Kirsty Brimelow Q.C., Chair of the Bar Human Rights Committee, stated: “The initiation of an investigation would send a clear and unequivocal message to those involved in the commission of these crimes that the accountability and justice called for by the United Nations on the part of victims are not hollow watchwords. It would bring about an end to the impunity which has prevailed in the region to date, fuelling ever increasingly brutal cycles of violence. The international community cannot continue to act simply as witness to such bloodshed and extreme civilian suffering.”

I declined to sign the request, despite my profound respect and admiration for the signatories. Although I have no doubt that serious international crimes have been committed by both Israel and Hamas in Gaza, I find the request problematic. Moreno-Ocampo formally rejected the Palestinian Authority’s 2009 Declaration on behalf of the OTP, and the UNGA did not give Res. 67/19 — which upgraded Palestine to non-member-state status — retroactive effect. In my view, therefore, the 2009 declaration is effectively (and perhaps even legally) void. That conclusion is supported by Fatou Bensouda’s public statement that “the ball is now in the court of Palestine”, “Palestine has to come back,” and “we are waiting for them.”

The bottom line for me is that Palestine needs to submit a new declaration accepting the ICC’s jurisdiction on an ad hoc basis. (Assuming the Palestinian Authority has the authority to do so — about which see my previous post.) That declaration should refer the situation in Gaza, not simply Israel’s crimes, as the 2009 Declaration properly did. (The primary reason I do not believe the complaint filed by the Palestinian Authority’s Justice Minister can be considered an ad hoc declaration is that it singles out Israel for investigation.) The declaration should also clearly specify the temporal parameters of the jurisdiction Palestine is giving to the ICC. Any attempt to accept the Court’s jurisdiction retroactive to 1 July 2002, when the Rome Statute entered into force, is likely to fail, because I seriously doubt that the OTP wants to determine when Palestine became a state. The most plausible date for retroactive jurisdiction would be 29 November 2012, when the UNGA adopted Res. 67/19. (Like many others, I believe Palestine qualified as a state long before that. But I wouldn’t be the one deciding whether to investigate.)

In short, and again with the greatest respect to the signatories of the present request, I do not think it is wise to pursue what seems to me to be a procedural shortcut to ICC jurisdiction over the situation in Gaza. If the ICC is to become involved in the most heavily politicised conflict in recent history — and I think the likelihood the OTP would act on even a proper request is essentially zero — there should be no doubt whatsoever about either Palestine’s desire for an investigation or the ICC’s jurisdictional competence. If we’ve learned anything about the conflict in Gaza, it’s the importance of always crossing the legal “t’s” and dotting the legal “i’s.”

UPDATE: Multiple sources are reporting on Twitter that the ICC has announced it has no jurisdiction over the situation in Gaza. (See here, for example.) That would seem to put beyond doubt that any attempt to rely on the 2009 Declaration will fail.

Can the PA Ratify the Rome Statute? (A Response to Eugene)

by Kevin Jon Heller

As Eugene notes in today’s guest post, the Palestinian Authority (PA) appears to have decided to ratify the Rome Statute. I’ll believe it when I see it: the PA has threatened to ratify before, only to back down at the last moment. But could it? Most observers have assumed it could, but Eugene disagrees. I think his bottom line may well be right, as I will explain at the end of this post. But I have problems with other aspects of it.

To begin with, let’s dispense with Eugene’s claim that Abbas’s lack of control has an upside for him, because it “prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.” Abbas has neither de jure nor de facto effective control over the members of the groups (especially Hamas) that are responsible for the rocket attacks on Israel. Nor does it seem likely that he would be part of the military chain of command in a Fatah-Hamas unity government. So whatever the state of Palestine’s responsibility for the rocket attacks might be, it is extraordinarily unlikely that Abbas would ever be held individually criminally responsible for them — now or in the future.

I also think that Eugene is overreading the OTP’s rejection of Mohammed Morsi’s attempt to accept the ICC’s jurisdiction. In particular, I think he is eliding the difference between two different concepts of “effective control”: for purposes of determining the government of a state, and for purposes of determining whether part or all of a state’s territory is belligerently occupied. Here is the relevant paragraph of the ICC press release concerning the decision:

In accordance with the legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law. Application of that test, on both the date that the purported declaration was signed and the date it was submitted, lead to the conclusion that Dr Morsi was no longer the governmental authority with the legal capacity to incur new international legal obligations on behalf of the State of Egypt. The information available indicates that, at all material times, the applicants did not exercise effective control over any part of Egyptian territory, including on the date the declaration was signed. Nor would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

As the paragraph indicates, the OTP relied on effective control to determine which of two rival domestic Egyptian entities represented the government of Egypt. In that context, the OTP quite rightly decided that “the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law.” Morsi lost under that test, because his claimed failed all three conditions.

That concept of effective control has little to do with the concept of effective control in the law of occupation. Effective control in the latter context determines whether the law of occupation applies; it does not determine who the sovereign is in the occupied state. On the contrary, one state’s effective control over the territory of another state does not transfer sovereignty from the government of the occupied state to the occupying state; the government in the occupied state remains the occupied state’s government, even if it loses some of its powers of governance for the duration of the (ostensibly temporary) occupation.

I see no reason, therefore, why Israel’s occupation of the West Bank and possible occupation of Gaza would have any impact on the OTP’s decision to accept or reject the Palestinian Authority’s ratification of the Rome Statute. Even if the state of Palestine is completely occupied by Israel — which Israel obviously rejects — the government of Palestine is still the government of Palestine. Indeed, the only way that wouldn’t be true is if the state of Palestine suffered debellatio, understood as the complete destruction of a state’s sovereignty through conquest. If that were the case, then Israel would be the government of Palestine and would be entitled (exclusively) to make decisions on its behalf. That was the situation after World War II: because of the debellatio of the German state, the Allies, via the Control Council, exercised supreme legislative authority in Germany as a condominium. But that is hardly the case in Palestine, as both sides agree. (And in any case, the concept of debellatio may well have fallen into desuetude.)

All that said, I agree with Eugene’s claim that the Palestinian Authority may not qualify as the government of Palestine — at least without the inclusion of Hamas. According to Eugene, “Hamas came to power in a coup against Abbas’s government, and since the ‘statehood’ of Palestine, the latter has never exercise ‘effective control’ over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.” That’s an inaccurate description of the situation: Hamas was democratically elected by Palestinians in 2006, but was prevented from governing by Fatah until it seized control of Gaza in the 2007 civil war. Hamas’s election, however, only strengthens Eugene’s point, because it indicates that the Palestinian Authority may well have a Morsi problem if it attempts to ratify the Rome Statute without Hamas’s consent. The Palestinian Authority fails all of the elements of the OTP’s “effective control” test in the context of rival governments: it does not control all of the state of Palestine, it does not enjoy the “habitual obedience of the bulk of the population,” and it does not have “a reasonable expectancy of permanence.”

Nor, for that matter, does Hamas — for similar reasons. So it may well be that only a unity government between Fatah and Hamas, such as the one that Israel desperately tried to undermine prior to its invasion of Gaza, is competent to ratify the Rome Statute. Whether the Palestinians will still be able to form such a unity government remains to be seen.

Guest Post: The Use of Human Shields and International Criminal Law

by Tali Kolesov Har-Oz and Ori Pomson

[Ori Pomson and Tali Kolesov Har-Oz are both teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty.] 

Introduction

The recent hostilities between Israel and Hamas have attracted a great deal of media and public attention. However, while a number of media reports have alluded to the legality vel non of certain actions committed by both sides, they have thus far contained little in-depth legal analysis.

One practice that has attracted significant attention is the purported use of “human shields” by Hamas. This post will present a legal analysis of such practices, and examine the possible implications of that analysis on the current situation in Gaza. Although it would be interesting to examine as well the possible criminal responsibility for statements endorsing or encouraging this conduct, that question will not be examined in the framework of this post.

The Use of Human Shields under International Law

In international humanitarian law (IHL), the term “human shields” concerns “civilians or other protected persons, whose presence or movement is aimed or used to render military targets immune from military operations.” The use of human shields both in international armed conflicts (IACs) and in non-international armed conflicts (NIACs) is considered a violation of customary international law (von Leeb, 15 ILR 395, n.1; ICRC, Rule 97). Treaty law directly prohibits such practice in IACs (GCIV 28; API, art. 51(7)) and indirectly in NIACs (e.g., CA 3 with Category ‘C’ Claims, 109 ILR 441).

Post-Second World War tribunals considered the use of human shields – focusing on POWs – to be a war crime (Student, 118-120; von Leeb,15 ILR 395, n.1). This was codified in the Rome Statute, which explicitly prohibits the use of human shields in IACs in art. 8(2)(xxiii), criminalizing utilization of “the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.” There lacks such a provision concerning the customary prohibition of the use of human shields in NIACs. Yet, considering the famous Tadić dicta that the dichotomy between IAC and NIAC crimes “should gradually lose its weight” and that “the current trend has been to abolish the distinction and to have simply one corpus of law applicable to all conflicts,” it could be argued that the analysis of Rome Statute’s provision concerning human shields in IACs is relevant to the analysis of the customary prohibition of the use of human shields in NIACs as well.

The specific elements relevant to the definition of the crime of using human shields in the International Criminal Court’s Elements of Crimes document are as follows…

Joint Declaration Charging Legal Violations in Israel’s Gaza Offensive

by Julian Ku

A group of international law and criminal law scholars have issued a joint declaration denouncing Israel’s Gaza offensive for causing “grave violations…of the most basic principles of the laws of armed conflict and of the fundamental rights of the entire Palestinian population.” It is the latest front in the public debate over legal violations arising out of the Gaza conflict, some of which we have noted here at Opinio Juris (the legality of denying electricity to Gaza and the legal effect of Israeli warnings to civilians).Personally, I don’t think there is enough evidence in UN and media reports to support the Joint Declaration’s main claim: that Israel is intentionally trying to target, terrorize, and collectively punish the civilian population of Gaza. Rather, my view is that Israel is conducting an aggressive military operation which is resulting in civilian deaths, and that those deaths may or may not be legal violations of the law of armed conflict (it is hard to say based on media reports at this time).   But I am not convinced (as the Joint Declaration seems to allege) that killing civilians is actually the basic intention and goal of the Israeli government.

Still, the Gaza conflict has plainly drawn the attention of the global community of international and criminal law scholars. I think these kinds of statements will have, and are already having, an impact on world opinion and the Israeli government. So it is worth taking a look.