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Law of War

Why All the Hate Toward Breaking the Silence?

by Kevin Jon Heller

Although anything I post about Israel invariably elicits angry comments, nothing makes Israel’s supposed “defenders” more angry than my posts — see here and here — about Breaking the Silence, the Israeli organisation that collects testimonies by IDF soldiers about their experiences in combat. I’m obviously not the only one who has noticed the anger toward the organisation; Haggai Mattar recently published a superb article at +972 entitled simply, “Why Do So Many Israeli’s Hate Breaking the Silence?” Here are a couple of key paragraphs:

The first claim, which in my mind is the most important and critical accusation to refute, is that Breaking the Silence is not credible. The organization’s critics come up with all sorts of reasons why the organization isn’t credible, but there is one rebuttal that is awfully difficult to refute: In the 11 years that Breaking the Silence has collected and published testimonies, there has not been one instance in which a serious error — not to mention a fabrication — has been found in their published testimonies.

This is no insignificant point — it needs to be the heart of the debate. An organization that publishes hundreds of testimonies, which works with more than 1,000 soldiers, which has dealt with very complicated subject matter for 11 years — and not a single fabricated published testimony has ever been found. No court of law in any land can boast of such a record. And that is despite a number of attempts to fool the organization by giving them false testimonies. Their researchers and fact-checkers seem to have a perfect record of catching fabrications before publication.

That astounding success is the result of the massive investment Breaking the Silence makes in every single testimony. As the organization’s director of research has written here in the past, every testimony given by a soldier or former soldier is fact-checked, and the background of the incident or testimony is verified along with the identity of the testifier him or herself (and that they are not an aspiring politician looking to make a name for himself). The entire testimony is then corroborated with any available information — both from other soldiers’ testimonies and open source information. Some of the most hair-raising testimonies collected by Breaking the Silence were never published because the organization could not independently corroborate them. Just imagine if journalists who published attack pieces on the organization applied their strict verification standards to their own work and the malicious things that are said about it.

The article goes on to explain why Breaking the Silence does not give its testimonies to the IDF (they used to — and were investigated by the IDF for their trouble); why the testimonies are anonymous (similar reasons); why the organisation’s foreign funding is a non-issue (duh); and why it engages in events overseas (double duh).

The article ultimately concludes by answering the question asked by its title: because Breaking the Silence involves Israeli soldiers laying bare the ugly reality of how the IDF actually conducts its biennial destruction of Gaza — a necessary counterpoint to the endless Israeli propaganda about how the IDF is the “most moral army” in the world. The IDF regularly violates IHL and commits war crimes, and no number of self-interested secret briefings by the IDF about its targeting procedures can change that basic fact.

Moreno-Ocampo Needs a Remedial Criminal Law Course

by Kevin Jon Heller

Here is Moreno-Ocampo’s latest doozy, concerning the possibility of Israelis being prosecuted for war crimes related to Israel’s illegal settlements in the West Bank:

Where the Israeli High Court of Justice has approved specific settlements as legal, this could provide a complete defense to any allegations that they are war crimes, former International Criminal Court chief prosecutor Luis Moreno-Ocampo told the Jerusalem Post on Thursday.

Moreno-Ocampo is in Jerusalem lecturing at the The Fried-Gal Transitional Justice Initiative at the Hebrew University Law School.

Although Moreno-Ocampo has stepped down from his post, he was the boss of the current ICC chief prosecutor who will decide whether or not the settlements qualify as a war crime, is considered highly influential internationally and his statement could be a major coup in the debate over the issue.

Moreno-Ocampo did not by any means say that the settlements were legal under international law.

But he did say that “Israel’s High Court is highly respected internationally” and that anyone prosecuting Israelis regarding settlement activity would be incapable of proving criminal intent if those Israelis explained that they honestly believed their actions were legal once ratified by the country’s top court.

“At least they could show no intention” to commit a crime said the former chief ICC prosecutor.

Few ICL scholars are more sympathetic to mistake defences than I am (see this article), but Moreno-Ocampo’s statements simply make no sense. Most obviously, Art. 32(2) of the Rome Statute specifically recognises the principle ignorantia legis neminem excusat — ignorance of the law excuses no one:

A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility.

Art. 32(2) applies regardless of whether a defendant was simply unaware that his actions were illegal (ignorance) or affirmatively believed that they were legal (mistaken belief). So if an Israeli was prosecuted for committing a settlement-related war crime — transfer of civilians into occupied territory, forcible transfer, pillaging, etc. — it would not matter that he either did not know international law criminalised his actions or believed that his actions were legal because the Israeli Supreme Court had approved the legality of settlements. The only question would be whether he committed the actus reus of the war crime in question with the necessary mens rea.

To be sure, some common-law systems provide an exception to the ignorantia legis principle where the defendant has reasonably relied on an official interpretation of the law. Moreno-Ocampo’s emphasis on the reputation of the Israeli Supreme Court suggests he might be thinking about that exception. But there are two significant problems here. First, no such exception exists in the Rome Statute, as the text of Art. 32(2) makes clear. Second, even if there was one, the ICC would be very unlikely to conclude that an Israeli defendant could reasonably rely on a statement by an Israeli court — even a supposedly “highly respected” one (which is questionable) — that settlements are legal. That would obviously be the case if the Israeli Supreme Court affirmed that the settlements were legal under Israeli law; no international tribunal has ever allowed such a “domestic legality” defence. And I seriously doubt that the ICC would find it any more reasonable for an Israeli defendant to rely on an Israeli court’s interpretation of international law, given the widespread international rejection of official Israeli positions on a variety of international-law issues.

Finally, we might be generous and assume that Moreno-Ocampo was actually thinking not about Art. 32(2) of the Rome Statute, but about Art. 32(1), which recognises mistakes that negative mens rea:

A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

In this interpretation, Moreno-Ocamp is actually arguing that an Israeli defendant who knew the Israeli Supreme Court had approved the legality of the settlements would not have the mental states required by any of the various settlement-related war crimes. But that is a flawed argument, because none of those war crimes require a mens rea that would be negated by a belief in settlement legality. Consider, for example, the elements of the war crime of direct or indirect transfer, Art. 8(2)(b)(viii) of the Rome Statute:

1. The perpetrator: (a) Transferred, directly or indirectly, parts of its own population into the territory it occupies…

2. The conduct took place in the context of and was associated with an international armed conflict.

3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

In terms of mens rea, Art. 8(2)(b)(viii) requires the prosecution to prove that the defendant (1) intentionally engaged in the acts that qualified as direct or indirect transfer; (2) knew that Israeli civilians were moving into occupied territory; and (3) knew that Israel exercised effective control over the West Bank at the time of the transfer. The defendant’s belief that settlements are legal would not negate either of those mental elements, so Art. 32(1) would not apply.

No matter how we interpret it, then, Moreno-Ocampo’s statement about the Israeli Supreme Court makes no sense as a matter of substantive international criminal law. Israel relies on the “expertise” of this “highly influential” former prosecutor at its own peril…

Apparently, I’m a 9/11 Truther (Al-Bahlul Revisited)

by Kevin Jon Heller

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul’s conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive is an understatement, given that it accuses not only me and Steve Vladeck of being 9/11 truthers, but Judge Tatel and Judge Rogers, as well.

Even worse, though, Margulies’ arguments seem to have gotten even more problematic over time. Let’s take an in-depth look at his post. Here is how it opens:

Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction…

Points for openly admitting that the military commissions’ “accepted jurisdiction” does not include jurisdiction over non-existent war crimes such as conspiracy. But no points for the claim that we shouldn’t hold courts to their actual jurisdiction as long as we are only letting them exceed their actual jurisdiction occasionally, in a “narrow class” of cases. You know, when it’s really, really important to let them exceed their actual jurisdiction. Last time I checked, jurisdiction wasn’t just a suggestion about the kind of cases a court can hear.

Margulies:

Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime).

Note the fudge: “generally.” Not generally. Always. No international tribunal has ever convicted a defendant of conspiracy to commit a war crime. Not one…

The Daily Caller and Alan Dershowitz’s Dishonest Attack on MSF

by Kevin Jon Heller

It was only a matter of time before the far right began to attack Medicins Sans Frontieres (MSF) for being in league with the Taliban — and thus implicitly (nudge nudge, wink wink) the actual party responsible for the US’s notorious assault on its hospital in Kunduz. And the attack has now begun. Here is a snippet from an article today in the Daily Caller:

International law experts are blasting Doctors Without Borders for forcibly removing civilian patients from the aid group’s Kunduz, Afghanistan, hospital and replacing them with wounded Taliban fighters when the city fell to the rebel control in late September.

Alan Dershowitz, an acclaimed Harvard constitutional lawyer and authority in international law, said that he was not surprised that the group, known as Medecins Sans Frontieres, favored Taliban fighters over civilian patients, telling The Daily Caller News Foundation in an interview that he regards Doctors Without Borders as “Doctors Without Morals.”

Dershowitz charged the group with having a long history of anti-Western political stances and of not being neutral. He says MSF “is a heavily ideological organization that often favors radical groups over Western democracies and is highly politicized.”

The lawyer said the doctors also were hypocritical. “What they violate is their own stated mandate and that is of taking no political ideological position and treating all people in need of medical care equally. It’s just not what they do.”

[snip]

Yet MSF itself may have violated a whole host of humanitarian laws by its own admission that Kunduz hospital administrators agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.

The acknowledgement was buried inside a Nov. 5 “interim” report released by MSF that traced the internal activities at their hospital leading up to the attack.

MSF disclosed in its report that on Sept. 28, the day the city fell to rebels, hospital administrators “met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged.”

On Sept. 30, MSF passively reported that “a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative.”

I want to focus here on the claim that MSF “admitted” in its November 5 report that it “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.”

Quite simply, that is a lie. MSF makes no such admission in the report.

We can begin with September 28. Prior to that date, most of the wounded combatants in the MSF hospital in Kunduz were government soldiers and police officers. As of September 28, however, the balance shifted to Taliban combatants:

As was the case since the opening of the Trauma Centre, the vast majority of the wounded combatants were observed to be government forces and police. In the week starting 28 September, this shifted to primarily wounded Taliban combatants… As far as our teams are aware, after this time [the afternoon of the 28th], no more wounded Afghan government forces were being brought to the Trauma Centre.  (p. 4).

The next day, faced with an excessive number of patients, MSF met with the Taliban:

MSF met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged and for those who required nursing follow-up to be referred to the MSF Chardara medical post (p. 5).

At this point — September 29 — half of the wounded in the hospital were wounded Taliban fighters (p. 5). Patients then began to leave the hospital the next day, September 30:

Starting this same day a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative or whether there were general concerns about security as rumours were circulating of a government counter-offensive to reclaim Kunduz city. At the same time as patients were being discharged from the hospital, new patients were being admitted (p. 5).

The MSF report is careful not to identify whether the discharged patients were civilians or combatants. But there is no indication in the report that MSF agreed with the Taliban “to discharge Afghan civilian patients”; that MSF actually discharged civilian patients because of any such agreement; or that discharged civilian patients were replaced by “wounded rebel soldiers.” Literally none.

Indeed, everything in the report points to precisely the opposite conclusion: namely, that MSF convinced the Taliban to remove wounded rebel fighters from the hospital to open beds for new patients. The patients that left the hospital were not “removed by MSF”; the report makes clear that they “discharged themselves,” in some cases “against medical advice.” Are we supposed to believe that MSF ejected civilian patients against the advice of its own doctors and then dishonestly claimed the patients left voluntarily? That’s Ben Carson conspiracy land.

Did some civilians voluntarily leave the hospital because fear of the fighting? Perhaps. But it’s difficult to imagine why civilians would trade the relative security of a well-marked civilian hospital for the uncertainty of weathering intense urban fighting in their homes — especially if leaving was “against medical advice.” It is far more likely that the wounded who discharged themselves were Taliban fighters worried about their safety — even in a civilian hospital, and despite their wounds — given the possibility of a “government counter-offensive.” After all, as noted above, more than half of the patients in the MSF hospital were Taliban on September 30.

To be clear, because of MSF’s commitment to neutrality, it is impossible to state categorically that most of the patients who left the hospital on September 30 were Taliban fighters, not civilians. But it is fundamentally dishonest for the Daily Caller and Alan Dershowitz to claim that MSF “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.” MSF admitted no such thing.

When Is a “Plain Meaning” Not Plain?

by Kevin Jon Heller

In my post on biological and chemical weapons yesterday, I rejected the idea that Art. 8(2)(b)(xviii) “squarely appl[ies]” (Ralf Trapp) or “plainly applies” (Alex Whiting) to chemical and biological weapons by arguing that the drafters of the Rome Statute intended Art. 8(2)(b)(xviii), the war crime of “[e]mploying asphyxiating, poisonous or other gases,” to have precisely the kind of “special meaning” that Art. 31(4) of the VCLT requires us to take into account when interpreting that provision.

After the post went up, Alex and I had a heated but typically friendly exchange on Twitter concerning “plain meaning” treaty interpretation. Interested readers can start with this tweet. Our debate did not focus on the applicability of Art. 31(4) of the VCLT. Instead, we argued about whether simply reading the text of Art. 8(2)(b)(xviii) makes it plain that it criminalises chemical and biological weapons. Alex thinks it’s evident that it does; not surprisingly, I disagree.

The problem with the debate is both obvious and timeless: if two people disagree about the correct interpretation of a text, how do they determine whose interpretation is correct? Alex rightly rightly pointed out that we should not reject a particular “plain meaning” simply because one person disagrees with it; any such standard would deny the possibility of plain meaning altogether. (Which, to be clear, I’d be happy to do on other grounds, because I follow the neo-pragmatic approach to interpretation associated with Stanley Fish. See, for example, this fantastic essay.)

But if one person’s disagreement cannot render a “plain meaning” not plain, how many people is enough? Five? 10? 100? At some point disagreement over the meaning of a text has to negate the possibility of any particular interpretation being considered “plain.” Alex and I went around and around on this, and he finally advocated what is essentially a procedural solution to the problem: the “plain meaning” of Art. 8(2)(b)(xviii) is whatever the ICC’s judges ultimately say it is.

As a descriptive matter, Alex is absolutely correct. But unless we believe the ICC’s judges are legally infalliable — and I certainly don’t! — we have to accept the possibility that they could be wrong about the “plain meaning” of Art. 8(2)(b)(xviii). So we are right back where we started: trying to determine how much disagreement over the interpretation of a text has to exist before we conclude the text has no plain meaning.

I have no easy answer. But I would still maintain that it strains credulity to believe that the “plain meaning” of Art. 8(2)(b)(xviii) indicates that it criminalises chemical and biological weapons. To see why, we don’t even have to return (as I think we should) to the drafting history of Art. 8. It is sufficient to note that a significant number of states still believe that Art. 8(2)(b)(xviii) does not criminalise chemical or biological weapons. How do we know that? Because 14 states formally proposed amending Art. 8 to criminalise those weapons at the ICC’s Review Conference in 2010: Argentina, Belgium, Bolivia, Burundi, Cambodia, Cyprus, Ireland, Latvia, Luxembourg, Mauritius, Mexico, Romania, Samoa and Slovenia. Here, in relevant part, are the provisions the 14 states wanted to add to Art. 8(2)(b):

xxvii) Using the agents, toxins, weapons, equipment and means of delivery as defined by and in violation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, London, Moscow and Washington, 10 April 1972.

xxviii) Using chemical weapons or engaging in any military preparations to use chemical weapons as defined by and in violation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris, 13 January 1992.

These proposed amendments make no sense if the “plain meaning” of Art. 8(2)(b)(xviii) already criminalises chemical and biological weapons. So how can that interpretation be considered the “plain meaning,” given that at least 11% of the States Parties to the Rome Statute do not understand Art. 8(2)(b)(xviii) in the supposedly plain manner? Surely such disagreement indicates that there is no “plain meaning” of the war crime.

Does that mean the 14 states are right? Of course not. Perhaps Art. 8(2)(b)(xviii) really does criminalise chemical and biological weapons. All I’m saying is that we cannot reach that conclusion by looking to Art. 8(2)(b)(xviii)’s “plain meaning.” The meaning of the war crime is at best ambiguous or obscure.

But that, of course, is a critical realisation. Because it means that we have to look to the drafting history of the Rome Statute to determine the correct interpretation of Art. 8(2)(b)(xviii) even if we accept a plain-meaning approach to treaty interpretation. (Which we should not.) Here is Art. 32 of the VCLT:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) Leaves the meaning ambiguous or obscure.

Even though my understanding of the VCLT accords with Julian Davis Mortenson’s, I am willing to entertain the idea that the meaning of some provisions of the Rome Statute is so plain that we have no practical need to examine their drafting history. Art. 8(2)(b)(xviii), however, is not such a provision. Given the widespread disagreement among states concerning whether the war crime criminalises chemical and biological weapons, the best interpretation of Art. 8(2)(b)(xviii) is that it has no plain meaning.

The Rome Statute Does Not Criminalise Chemical and Biological Weapons

by Kevin Jon Heller

Over the past week, two posts at Just Security have argued that the ICC can prosecute the use of chemical and biological weapons as a war crime, even though they — unlike other types of weapons — are not mentioned in Article 8 of the Rome Statute. The first post was written by Ralf Trapp, who argued as follows:

Furthermore, there are the provisions of the Rome Statute of the International Criminal Court (ICC). Even though it does not use the terminology of the CWC (“chemical weapons”), there is no doubt that the terms “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquid, materials or devices” found in the list of war crimes under the statute’s Article 8 would squarely apply to the use of chlorine or mustard gas as a weapon of war. Any such use would consequently come under the jurisdiction of the ICC.

Trapp does not even acknowledge any other interpretation of Article 8. By contrast, the second post, written by Alex Whiting, admits that a different interpretation is possible. But Whiting nevertheless sides with Trapp, citing an earlier post by Dapo Akande at EJIL: Talk!:

The Rome Statute originally included a direct ban on chemical and biological weapons, but it was dropped at the same time as a ban on weapons causing unnecessary suffering was narrowed to apply only to those weapons listed in an annex (which does not exist because the States Parties never adopted one). This narrowing was done to avoid having the broader provision apply to nuclear weapons. The direct chemical and biological weapons prohibition was then dropped, apparently because some negotiators thought that there should be parity in approach to nuclear weapons (possessed by wealthy nations) and chemical and biological weapons (the more likely option for poorer countries). The claim that that the Statute therefore does not cover chemical and biological weapons was reinforced by Belgium’s efforts at the ICC Review Conference in Kampala in 2010 to amend the Statute to include a ban on chemical and biological weapons, indicating that there was an understanding among at least some States Parties that the Statute as written did not already do so.

But Akande persuasively argues (reinforcing what Trapp intuits) that the language in the Statute prohibiting poisonous and asphyxiating gases and analogous liquids, materials, and devices plainly applies on its own terms to most — if not all — chemical and biological weapons. Since the treaty text is clearly written, there is no need to consider the history of its drafting, per the Vienna Convention on the Law of the Treaties. In this case, the difficulty with relying on the negotiation history in the first instance is that it is highly indeterminate: Assessing what 120 countries “intended” when they adopted the Rome Statute is nearly impossible, and therefore the plain language of the treaty should govern when it is clear, as it is here.

I disagree with Trapp and Whiting. I won’t rehash the arguments I made in response to Dapo’s post; interested readers can see our exchange in the EJIL: Talk! comments section. But I do want to flag three critical problems with the argument advanced by Trapp and Whiting: one factual, one theoretical, and one political.

The factual problem is that this is simply not a situation in which the drafting history is “highly indeterminate.” Few drafting disputes are as well known as the dispute over the criminalisation of nuclear weapons, chemical weapons, and biological weapons. And as Whiting’s own account makes clear, we know with absolute certainty that not enough states favoured criminalising the use of chemical and biological weapons — because the proposal to criminalise them failed. The reason why states opposed criminalising their use is irrelevant; I’m quite sure that some may have wanted to reserve the right to use them, while others were happy to criminalise their use but did not want to alienate the nuclear states. All that matters is that it is undisputed states tried and failed to criminalise the use of chemical and biological weapons.

It does not matter, then, whether “[a]ssessing what 120 countries ‘intended’ when they adopted the Rome Statute is nearly impossible.” What matters is whether we know how 120 states understood Art. 8 of the Rome Statute. And we do…

My Talk on the ICC’s Investigation into the Situation in Georgia

by Kevin Jon Heller

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I’m in the middle of a week-long trip to Georgia, where I’m giving nine lectures in five days to the military and university students. (Thanks, Anna Dolidze, Deputy Minister of Defence and friend-of-OJ!) I’m talking about perfidy a couple of times, but most of the lectures — not surprisingly — are about the OTP’s request to open a formal investigation into the situation in Georgia. I’ve greatly enjoyed the lectures I’ve given so far, at Free University Tbilisi and at the Ministry of Defence. The questions have been uniformly intelligent and challenging. Today I’m heading to Gori to give lectures at the National Defence Academy.

In any case, a reader emailed me and asked whether I could send her the notes of my talk and the accompanying PowerPoint slides. I was happy to oblige, and I thought I might upload both to Opinio Juris, in case anyone else would like to see them. The notes are here, and the accompanying PowerPoint slides are here.

So It’s Settled: The President Can Violate Customary International Law

by Julian Ku

There is a lot of interesting material revealed in the Charlie Savage NYTimes article on the legal justification for the Bin Laden raid (including how the Attorney General and Office of Legal Counsel were kept in the dark and out of the loop).  But I want to focus on one paragraph in the article, which explained the lawyers’ backup justification for their conclusion:

There was also a trump card. While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a “covert” action, officials said.

Deborah has done some very good analysis here on the CIA’s views on this question, as applied to non-self-executing treaties. I think that is a tricky question. But there is also an easier question that was also probably settled in the lawyers’ legal memos.  Like the Bush administration lawyers, the Obama Administration lawyers concluded that the President can choose to violate that customary international law without violating the Constitution or other domestic law.

Although this may seem obvious, it used to be a highly contested question.  I dug up this discussion from a 1986 panel between leading international law scholars Louis Henkin, Anthony D’Amato, Michael Glennon, Abe Chayes and others.  Almost none (even President Reagan’s legal adviser Abe Chayes) would have openly admitted that the President could violate customary international law. The Restatement of U.S. Foreign Relations Law suggests, but does not completely endorse the view that the President can openly violate customary international law.  Indeed, there used to be a fair number of law review articles explaining why the President’s obligation to “Take Care” that the laws are faithfully executed include customary international law. But, if Savage’s reporting is accurate, the U.S. government (under both George Bush and Barack Obama) is no longer troubled by this question, and has moved on. So should the rest of us, apparently.

Missing Charges in the OTP’s Georgia Request

by Kevin Jon Heller

I  have finally made my way through the OTP’s 162-page request to open an investigation into the situation in Georgia. I hope to write a few posts in the coming days on various aspects of the request; in this post I simply want to note my surprise that the OTP has not alleged that Georgia is responsible for two interrelated war crimes: Art. 8(2)(b)(ix), “[i]ntentionally directing attacks against… hospitals and places where the sick and wounded are collected, provided they are not military objectives”; and Art. 8(2)(b)(xxiv), “[i]ntentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.” Paragraph 175 of the request, which discusses an attack by Georgian armed forces on Russian Peacekeeping Forces Battalion headquarters (RUPKFB HQ), would seem to amply justify both charges (emphasis added):

According to information provided by the Russian authorities, at around 06h35 on 8 August 2008 a Georgian tank, located on the road leading from Zemo-Nikozi to Tskhinvali, fired at the Glaz observation post, located on the roof of the RUPKFB HQ barracks, wounding Jun Sgt I.Ya. Lotfullin.240 Following this attack on the RUPKFB HQ, Georgian armed forces carried out a larger attack on the RUPKFB HQ using small arms, mortars, artillery and tank guns. The attack lasted around 20 minutes. At approximately 07h00, Georgian tanks moving towards Tskhinvali allegedly fired on and destroyed an infantry fighting vehicle (type BMP-1, hull number 619) and an armoured patrol car (type BRDM) that had been placed on the Tshkinvali road to separate the opposing sides. Two peacekeepers on duty are alleged to have been killed. The Georgian armed forces allegedly reopened fire on the RUPKFB HQ at 07h40 and 8h00, killing another two Russian peacekeepers. In the course of the attack on the RUPKFB HQ, the Georgian armed forces also allegedly targeted a medical aid post and ambulances which were located inside the compound and appropriately marked with Red Cross symbols. The shelling of the RUPKFB HQ is said to have continued through the day until 9 August 2008.

The absence of charges involving the medical facility and the ambulances is particularly baffling given that, as Patryk Labuda has ably discussed, the OTP might find it difficult to prove its more general allegations concerning Georgia’s attacks on Russian peacekeepers. The attacks on the medical facility and ambulances would be criminal even if the Russian soldiers at the RUPKFB HQ did not legally qualify as peacekeepers at the time of the attack. So it is clearly in the OTP’s interest to pursue Art. 8(2)(b)(ix)&(xxiv) charges in addition to the Art. 8(2)(b)(iii) peacekeeper charges — even if only as a fallback should the peacekeeper charges fail.

Chase Madar on the Weaponisation of Human Rights

by Kevin Jon Heller

Last week, the inestimable Chase Madar gave a fascinating talk at SOAS entitled “The Weaponisation of Human Rights.” More than 100 people showed up, and I was privileged — along with Heidi Matthews, a British Academy postdoc at SOAS — to respond to Chase’s comments. Here is Chase’s description of the talk:

Human rights, once a rallying cry to free prisoners of conscience and curb government abuses, is now increasingly deployed as a case for war, from Yugoslavia to Iraq, from Libya to Afghanistan. Human rights lawyers in and out of government are weighing in on how wars should be fought: in the United States, the phrase “human rights-based approach to drones” passes without much comment in the legal academy and mainstream media. As the grandees of the human rights movement enter high office throughout North America and Western Europe, what is the effect of this legal doctrine on warfare–and vice versa?Will this blossoming relationship bring about more humanity in warfare? Or is human rights being conscripted into ever more militarized foreign policy?

SOAS has now made the video of the event available on YouTube; you can watch it below:

 

 

The video contains Chase’s talk, along with my response and Heidi’s response. We apologize for the middle section, where the lighting is bad; I don’t know why that happened. But the audio is excellent throughout.

Please watch!

Why Is the Lieber Prize Ageist?

by Kevin Jon Heller

Yesterday, my colleague Chris Borgen posted ASIL’s call for submissions for the 2016 Francis Lieber Prize, which is awarded annually to one monograph and one article “that the judges consider to be outstanding in the field of law and armed conflict.” I think it’s safe to say that the Lieber Prize is the most prestigious award of its kind.

But there’s a catch: you are not eligible for consideration if you are over 35. Which led Benjamin Davis to make the following comment:

For the record, the Lieber Prize criteria discriminates against persons like myself who at the ripe young age of 44 entered academia and was therefore nine years passed the upper limit in 2000. It particularly is galling when one realizes that Lieber WROTE his famous order at the age of 65.

If one wanted to correct this obvious and repugnant ageist requirement and one took the generous position that at 25 one could enter academia, then the criteria should suggest ten years maximum in academia. I still would be far passed the time-limit, but it would provide encouragement to those intrepid souls who decide later in life that being a legal academic is a noble calling for them and focusing on the laws of armed conflict is a wonderful arena in which to develop one’s research agenda.

I think Ben is absolutely right. The Lieber Prize’s hard age requirement obviously skews in favour of the kind of scholar who never spent considerable time outside of academia. Scholars who have had previous careers — whether in private practice, in government, in the military, or even working for organisations that do precisely the kind of law covered by the Prize, such as the ICRC — are simply out of luck if they worked for a number of years before becoming an academic.

If there was some sort of intellectual justification for limiting the Lieber Prize to academics under 35, the age limit might be okay. But, like Ben, I don’t see one. The most obvious rationale for some kind of limit is that ASIL wants to encourage and reward individuals who are newer to academia. But that rationale would suggest an eligibility requirement like the one that Ben suggests — a requirement that excludes submissions from individuals who have been in academia for a certain number of years, regardless of their chronological age. Some 34-year-olds have been in academia for nearly a decade! (I’m looking at you, Steve Vladeck.) And some 40-year-olds have been in academia only a few years. (Such as Chris Jenks, who was a JAG for many years before becoming a professor.) Yet only individuals in the latter category are excluded from the Lieber Prize — and they are excluded categorically.

Personally, I think Ben’s suggestion of 10 years from the time an individual entered academia is too long. I would still be eligible to submit with that limit! I would go with six years, like the Junior Faculty Forum for International Law. And also like the Junior Faculty Forum, I would permit the judges to wave the six-year requirement in exceptional circumstances — such as a woman or man who interrupted an academic career to take care of children.

What do you think, readers?

2016 Lieber Prize: Call for Submissions

by Chris Borgen

Professor Laurie Blank of The American Society of International Law’s Lieber Society on the Law of Armed Conflict has sent along the request for submissions for the 2016 Francis Lieber Prize. The prize is awarded to:

the authors of publications that the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

Here are the details

Criteria: Any work in the English language published during 2015 or whose publication is in proof at the time of submission may be nominated for this prize. Works that have already been considered for this prize may not be re-submitted. Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit: Competitors must be 35 years old or younger on 31 December 2015. Membership in the American Society of International Law is not required. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Submissions from outside the United States are welcomed.

Submission: Submissions, including a letter or message of nomination, must be received by 9 January 2016. Three copies of books must be submitted. Electronic submission of articles is encouraged. Authors may submit their own work. All submissions must include contact information (e mail, fax, phone, address). The Prize Committee will acknowledge receipt of the submission by e mail.

Printed submissions must be sent to:

Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia 30322
USA

Electronic submissions must be sent to:
Lblank[at]emory.edu

Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize: The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law. The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2016.

In 2015, the winners were:

Book prize:
— Gilles Giacca, “Economic, social, and cultural rights in armed conflict” (OUP:2014)

Essay prize:
— Tom Ruys, “The meaning of ‘force’ and the boundaries of the jus ad bellum: are ‘minimal’ uses of force excluded from UN Charter Article 2(4)?’, 108 AJIL 159 (2014).