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Middle East

President Trump Could (and Might Actually) Unilaterally Recognize Jerusalem as the Capital of Israel

by Julian Ku

emblem_of_jerusalem-svgAs we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways.  Withdrawing from trade agreements could be a major theme of his administration.  Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.

I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.

For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments.  This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel.  Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel.  Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem.

The Court’s ruling in Zivotofsky is not exactly controversial.  But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the U.S. embassy there.   Most U.S. Presidents pledge to do so during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State).

It might also violate U.N. Resolution 242 and other UN resolutions.  Certainly, the Palestinian Authority is ready to raise all holy hell if Trump carries out his promise.  But the U.S. President is also authorized, under U.S. constitutional law, to violate or abrogate UN Security  Council resolutions, if 242 and other resolutions actually prohibited such recognition.

It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts.  President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.

Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.

A Quick Reply to Stephen Rapp About the US and the ICC

by Kevin Jon Heller

The inimitable David Bosco dropped quite the bombshell yesterday at FP.com: The Office of the Prosecutor at the ICC intends to open a formal investigation into the situation in Afghanistan — a situation that includes, as the OTP discussed in its most recent preliminary-examination report, US torture of detainees between 2003 and 2005. I’ll have more to say about the possibility of an investigation in the coming days, when I’m a bit less harried. But I wanted to briefly respond to something Stephen Rapp, the former US War Crimes Ambassador, recently said about that torture — a comment that David reprints in a post today. Rapp contrasted US torture in Afghanistan with the kinds of crimes international criminal justice normally addresses:

[T]he alleged crimes committed during US enhanced interrogations do not reach anything like the scale of these other violations. The Durham review was looking into 101 cases of alleged abuse, including those of two detainees who died in custody. A broader inquiry could increase those number, but even with the widest scope, the numbers of victims pale in comparison to those in the situations that have come before international courts and tribunals.

As is often the case when people discuss crimes potentially within the ICC’s jurisdiction, Rapp’s comment elides the critical difference between situational gravity and case gravity. If the OTP was considering opening an investigation only into US torture in Afghanistan (not “enhanced interrogation”), Rapp would have a point — the situational gravity would almost certainly be insufficient to justify a formal investigation. Israel’s attack on the Mavi Marmara is a good point of comparison: however unjustifiable Israel’s actions, the numbers simply weren’t large enough to investigate. (And I say that as perhaps the earliest opponent of a quantitative approach to situational gravity.)

But that is not what Bosco says the OTP will do. According to Bosco, and consistent with its previous statements, the OTP will be opening a formal investigation into the situation in Afghanistan generally — not only crimes committed not by US forces, but also crimes committed by the Taliban, by Afghan government forces, and by other members of the coalition. At most, therefore, US torture will be one case within the overall situation in Afghanistan. That’s critical, because it means that the scale of US torture should be compared to the scale of crimes at issue in other individual cases the OTP has pursued, not to the scale of crimes in other situations as a whole. And there is no question that the OTP has pursued similarly limited cases. To take only the most striking example, Ahmad Al Faqi Al Mahdi was charged with and convicted of purely victimless crimes — destroying cultural property. If the Al Mahdi case was grave enough for the OTP, surely US torture in Afghanistan would be.

To be clear, I do not expect the OTP to bring charges against an American anytime soon. But if no such case materialises despite the OTP opening a formal investigation into Afghanistan, it won’t be because US torture there is insufficiently grave enough to prosecute.

NOTE: I am using Rapp’s comment to make a point, not to criticise him. I have great respect for Rapp’s commitment to international criminal justice, and I like him very much as a person.

Israel Shows Its Contempt for Academic Freedom

by Kevin Jon Heller

The headline is almost a generic one, applicable to dozens of Israeli actions. I’m using it now specifically in connection with Israel denying entrance to my SOAS colleague Dr. Adam Hanieh, who was scheduled to give a series of lectures at Birzeit University:

Dr. Hanieh, a Senior Lecturer in the Department of Development Studies at the School of Oriental and African Studies at the University of London, was deported back to London on the morning of September 13, 2016. He was held for questioning for 10 hours at Ben Gurion airport, and then taken overnight to a detention centre outside the airport. In addition to being refused entry, Dr. Hanieh was banned from entering the country for ten years.

Dr. Hanieh was scheduled to share his vast knowledge of global and Middle East political economy with students in the Ph.D. program as well as the university community in a series of lectures scheduled in the coming two weeks. Hanieh is an accomplished scholar, the author of Lineages of Revolt: Issues of Contemporary Capitalism in the Middle East (Haymarket Books, 2013) and Capitalism and Class in the Gulf Arab States (Palgrave Macmillan, 2011), as well as numerous academic articles.

This act of denial of entry and deportation by the Israeli state and its agencies is part of a systematic policy of denial of entry to international academics, professionals and activists intending to visit Palestine. This policy represents an attack on Palestinian academic freedom, and is routinely practiced at the two entry points, the airport in Tel Aviv and the Jordan valley crossing from Jordan.

Israel is truly the Donald Trump of repressive states — unable to tolerate any criticism that doesn’t stay within the bounds of what it considers “legitimate.” Confident states address critics. Israel prefers to harass and silence them.

Business as usual in the Middle East’s supposed great democracy. Keep Hanieh’s treatment in mind the next time Israel complains about mean BDS-ers “silencing” (ie, protesting) Israeli academics.

I Sing of MAARS and a Robot

by Chris Borgen

Defense One points to a news story in the Baghdad Post that the Iraqi Security Forces may be preparing to deploy a ground-combat robot:

Loosely dubbed Alrobot — Arabic for robot — it has four cameras, an automatic machine gun, and a launcher for Russian-made Katyusha rockets, and can be operated by laptop and radio link from a kilometer away, the [Baghdad Post] story says.

One point is important to emphasize, the Alrobot is a remotely-controlled four-wheeled drone, it is not an autonomous weapon. By contrast, an autonomous weapon would be, in the words of a recent article from the Institute of Electrical and Electronics Engineers, “capable of selecting and engaging targets without human intervention.”

However, while the Alrobot would not be autonomous, Defense One also notes that it will also not be the first remotely-controlled battlefield weapon deployed in Iraq:

Back in 2007, the U.S. Army deployed three armed ground robots called the Special Weapons Observation Reconnaissance Detection System, or SWORDS, from weapons maker Foster-Miller (now owned by Qinetiq). SWORDS basically consisted of a Foster-Miller TALON robot armed with a machine gun.

However, the SWORDS unmanned ground vehicles (UGV’s) were never used on patrol. A 2008 Wired article (to which Defense One linked) explained in an addendum:

Senior Army leadership, however, was not comfortable with sending them out to do combat missions due to safety reasons, and they are now placed in fixed positions, said Robert Quinn, vice president of Talon operations at Foster-Miller…

It seems to be a “chicken or the egg” situation for the Army, he said. The tactics, techniques and procedures for using armed ground robots have not been addressed.

But until there is an adequate number of SWORDS to train with, these issues can’t be worked out, he said.

.A successor weapons system, the Modular Advanced Armed Robotic System (MAARS) is currently being developed by QinetiQ. Like its predecessor, MAARS would  not be an autonomous weapon, but a remotely-controlled battlefield robot with humans making the tactical decisions. Consequently, the legal issues here would be less like the many concerns stemming from using artificial intelligence to make targeting and live-fire decisions, but rather would be similar to the legal issues arising from the use of armed unmanned aerial vehicles (UAV’s). Possible questions would include whether the use of the cameras and other sensors on the UGV would allow its operator to adequately discriminate between combatants and noncombatants. Does inserting an remotely-controlled armed robot make one more likely to use force? Under what situations would using such a system be disproportionate?

This may depend, in part, on how such systems are deployed. There could be different legal implications in using a UGV to, for example, “stand post” to guard the perimeter of a platoon that is out on patrol in a remote mountainous region as opposed to using a UGV in an urban combat situation where there are many civilians in close-quarters. The U.S. Marine Corps, for example, is considering when and how the use of weapons like MAARS would be appropriate.

For another recent post on robots and regulations, see my post from earlier this summer.

BDS Means Showing Disdain for Israeli Athletes?

by Kevin Jon Heller

As regular readers know, although I’m opposed to academic BDS, I fully support its economic incarnation. Which is why I find stories like this both depressing and infuriating:

“I have no problem with Jewish people or any other religion or different beliefs. But for personal reasons, you can’t ask me to shake the hand of anyone from this state, especially in front of the whole world.” These words, spoken by an individual who has just engaged in a gesture of support for the Palestinian people, are a standard response to the accusation of anti-Semitism which is routinely hurled at pro-justice activists.

The necessary distinction made between the “Jewish people” and the Israeli state is one Israel itself seeks to erase, as it strives to deflect all criticism of its policies, blaming it on anti-Jewish hatred instead. As such, these words do not in themselves establish new grounds, but a new approach to solidarity. Yet as Egyptian judoka Islam El-Shehaby uttered them last week in Brazil, they signified a new milestone: the sports boycott had arrived at the 2016 Olympic Games.

“Shaking the hand of your opponent is not an obligation written in the judo rules. It happens between friends and he’s not my friend,” El Shehaby explained, in the fallout from his action, which resulted in his dismissal from the games, for “poor sportsmanship.”

One day before El-Shehaby’s refusal to shake the hand of the Israeli Olympian he had just competed with, another judoka, Saudi Joud Fahmy, had withdrawn from the competition, in order not to have to compete against an Israeli athlete, should she win and advance to the next round.

You want to know why so many people despise BDS? Because of childish, appalling actions like these — actions that make it all too easy to erase the necessary distinction between criticism of Israel and anti-Semitism. I don’t watch the Olympics, in part because I don’t find them interesting (outside of a few sports like football), but mostly because I find the rampant jingoism sickening. But I would never hold the politics that pervert the Olympics against the individual athletes who compete in the games, all of whom — to a man and a woman — have dedicated their lives to sporting excellence. There is absolutely no justification whatsoever for disrespecting an Olympic athlete simply because of the country he or she represents. None.

Here’s a thought experiment. Imagine you did not view the Olympics solely through the prism of politics. Which country do you think more highly of now that the Olympics have ended? Egypt, whose judoka wouldn’t shake an Israeli judoka’s hand? Or New Zealand, whose 5000-metre runner gave up any shot at a medal to help an injured American runner who had initially helped her?

I don’t think what the Egyptian and Saudi athletes did is anti-Semitic. But I sure as hell think what they did was stupid — and profoundly damaging to the BDS cause. If these actions are a “new milestone” for BDS, as Mondoweiss claims, BDS is in serious trouble.

Apple Rejects Game Where You Play a Palestinian

by Kevin Jon Heller

palestinegameThe game in question — from which the screenshot is taken — is entitled Liyla and the Shadows of War. Here is how the gaming magazine Hardcore Gamer describes it:

Liyla and the Shadows of War is a short, dark game about exactly what the title implies. You play as a father running home through a war zone attempting to collect his family and get them to safety as the bombs fall and the drone strikes mow down anything that moves.

[snip]

At the start I navigated a few platforming sections, figured out how to avoid gunfire, made a couple of story choices, and even did a simple auto-run section where I had to control the jumping of two characters simultaneously. Of the 30-ish minutes of using the app, this was about 28 or so. The final two  minutes (and it might have been less, I wasn’t running a timer) were spent reading.

A game, right? Not if you’re Apple, apparently:

CiwVR6mUUAA4j4pThe gaming community is mocking Apple’s decision, and rightfully so. As Hardcore Gamer points out, “Liyla and the Shadow of War is a game. Having a serious message about a real-world conflict doesn’t make it any less so, and it’s insulting not just to the developers but to gaming in general to say otherwise.” Indeed, there is no way Apple actually believes that Liyla and the Shadow of War isn’t a game; it simply doesn’t want to host a game developed by a Palestinian that encourages thinking critically about Israel’s violence toward Palestinians. But rejecting the game on political grounds would itself be seen as political — correctly — so Apple comes up with a ridiculous pretext for rejecting it and hopes nobody notices.

I know what you’re thinking: doesn’t Apple has the right to avoid “political” games? Isn’t it smart business to stay out of the Israel/Palestine conflict?

Fair question. And in response I give you this:

screen568x568 (1)

Meet Israeli Heroes, an Angry Birds rip-off in which — according to Boing Boing — “you hurl cartoon missiles at vaguely Arabic-looking adversaries.” Currently available for free on iTunes.

So much for Apple’s political neutrality.

Liyla and the Shadow of War is still available for Android on Google Play. I haven’t tried it yet, but it has a 4.9 average from 333 reviews, so it’s obviously good. Check it out. Maybe you’ll have fun playing and learn something about life in Palestine in the process.

Which is precisely what Apple doesn’t want you to do.

Al Jazeera Panel Discussion on Siege Warfare in Syria

by Kevin Jon Heller

Sorry for the endless self-promotion, but I thought readers might be interested in the following episode of Al Jazeera’s Inside Story, which includes a 30-minute panel on siege warfare in Syria that I participated in. It was quite a wide-ranging discussion, focusing less on international law than I expected.

As always, comments welcome! I hope readers don’t think I was too soft on either Assad or the UN…

Parsing the Syrian-Russian Agreement Concerning Russia’s Deployment

by Chris Borgen

The Washington Post asks (and answers) the following:

When you are a major nuclear power and you want to make a secretive deployment to a faraway ally, what is the first thing you do? Draw up the terms, apparently, and sign a contract.

That’s what the Kremlin did with Syria in August, according to an unusual document posted this week on a Russian government website that details the terms of its aerial support for Syrian President Bashar al-Assad.

Among other revelations in the seven-page contract dated Aug. 26, 2015, the Kremlin has made an open-ended time commitment to its military deployment in Syria, and either side can terminate it with a year’s notice.

The “Agreement between the Russian Federation and the Syrian Arab Republic on deployment of an aviation group of the Russian Armed Forces on the territory of the Syrian Arab Republic” is similar in purpose to status of forces agreements (SOFAs) that the U.S. signs with countries in which it has military bases. (For an overview of US SOFA practice, see this State Department document (.pdf). ) The agreement sets out issues concerning immunities, transit rights, the movement of property, and so forth.

However, every international agreement is a product of the political and strategic concerns in a particular bilateral relationship. Consequently, there can be a variety of SOFA practice even among the agreements drafted by a single country.  Concerning US practice, GlobalSecurity.org explains:

Status-of-forces agreements generally come in three forms. These include administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status; a “mini” status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement. The appropriate arrangement is dependent upon the nature and duration of U.S. military activity within the host country, the maturity of our relationship with that country, and the prevailing political situation in the host nation.

To take one example from US practice, the 2008 Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (the “2008 Iraq SOFA” (.pdf))  was made after the US was already in Iraq for five years; it was in part about responding to tensions between the Iraqi government and the US as well as the mechanics of withdrawal. By contrast, the Russian/Syrian agreement was made early in an intervention of undefined length and scope. responding to issues that already existed, the 2008 Iraq SOFA is twenty-four pages long, covering more topics and also with more provisions within each article. (The 2008 Iraqi SOFA is no longer in force, but I will use it as a comparator.)

By contrast, the Russian/Syrian agreement is a very brief seven pages. But, besides being quite short, the main characteristic of the agreement is that it maximizes Russian prerogatives and flexibility. Article 2 has the transfer “without charge” from Syria to Russia of  “Hmeimim airbase in Latakia province, with its infrastructure, as well as the required territory agreed upon between the parties” for the use of the Russian aviation group to be deployed in Syria.  Article 5 entitles Russia: (more…)

Gaza Flotilla Activists’ Lawsuit Against Israel Will Probably Fail for Lack of U.S. Jurisdiction (Updated)

by Julian Ku

[Please see the update below] Three U.S. citizens, and one Belgian national, have filed a civil lawsuit in U.S. District Court in Washington D.C. against the State of Israel alleging various injuries and damages suffered during an Israeli commando raid on their U.S.-registered ship.  The plaintiffs were activists who were sailing their vessel in support of the Palestinians on the Gaza Strip suffering under what the plaintiffs allege is an Israeli blockade. I don’t have a copy of the complaint, but according to this Washington Post report, there are a couple of pretty big legal obstacles for the plaintiffs to overcome.

“The attack on the high seas was unjustified and illegal under international law,” lawyer Steven M. Schneebaum of Washington wrote in a 21-page complaint, which alleged that the military operations injured more than 150 protesters and included torture, cruel or degrading treatment, arbitrary arrest and assault.

The first problem for the plaintiffs will be overcoming the Foreign Sovereign Immunities Act, which bars U.S. courts from hearing cases against foreign sovereigns like Israel unless certain exceptions apply.  I can’t tell exactly from the report which exception the plaintiffs are trying to invoke, but the allegations of “torture, cruel and degrading treatment” etc. suggests the complaint is trying to allege such an egregious violation of international law that any defense of immunity will be deemed to have been “waived” by Israel.   I am highly doubtful that this argument will succeed, and indeed, I am fairly sure it is foreclosed by precedents in the D.C. Circuit (and elsewhere).

It is possible that the plaintiffs will seek to get jurisdiction under the “state-sponsored terrorism” exception in 28 U.S.C. § 1605A(a)(1).  This might seem to apply, if we accept the plaintiffs’ claims as true, except that Israel would also have be designated by the U.S. government as a “state sponsor” of terrorism in order for the exception to apply.   Israel, needless to say, has not been so designated by the U.S. government, so this exception doesn’t work for the plaintiffs either.

It also appears the plaintiffs may have a statute of limitations problem as well, but I am not sure.  Also, was that ship U.S.-registered? If so, which tort law would apply? Or is it a claim under international law?

So I am pretty doubtful that this lawsuit will survive a motion by Israel to dismiss the case for lack of jurisdiction.   Indeed, I wonder at its even being filed, given the jurisdictional problems it faces.  But perhaps I am missing something, and if so, feel free to let me know in the comments.

[Update: Jordan Paust and Ted Folkman point out in the comments that the plaintiffs are probably invoking either the “international agreements” exception in the FSIA or the “noncommercial tort” exception in 28 USC § 1605(a)(5), which allows an exception to immunity for claims “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state…”

These are a much more plausible claims, and they depends (as Ted points out) on the idea that the raid on the US-flagged vessel means that the alleged tort occurred “in the United States.”   The leading decision is Argentine Republic v. Amerada Hess, which involved an Argentine missile strike on a Liberian-flagged ship owned by U.S. interests. That case held though that the “high seas” is not “in the United States” for purposes of the FSIA.  The only variation on this point I can see is that that the attack occurred on a U.S.-flagged vessel, as opposed to the “high seas.” I doubt this will fly, but I suppose it is worth a shot if I were the plaintiffs.]  

Climate Change and the Syrian Civil War

by Chris Borgen

Scientific American has published an article by John Wendle on how climate change has spurred the conflict in Syria. Wendle writes:

Climatologists say Syria is a grim preview of what could be in store for the larger Middle East, the Mediterranean and other parts of the world. The drought, they maintain, was exacerbated by climate change. The Fertile Crescent—the birthplace of agriculture some 12,000 years ago—is drying out. Syria’s drought has destroyed crops, killed livestock and displaced as many as 1.5 million Syrian farmers. In the process, it touched off the social turmoil that burst into civil war, according to a study published in March in Proceedings of the National Academy of Sciences USA. A dozen farmers and former business owners like Ali with whom I recently spoke at camps for Syrian refugees say that’s exactly what happened.

He tells a story of environmental degradation, ill-conceived agricultural and water-management policies, and their effects:

“The war and the drought, they are the same thing,” says Mustafa Abdul Hamid, a 30-year-old farmer from Azaz, near Aleppo… “The start of the revolution was water and land,” Hamid says.

But the story Wendle writes is about more than Syria:

The refugee crisis will eventually subside, [Richard Seager,a professor at Columbia University’s Lamont–Doherty Earth Observatory] assumes, and the war in Syria will run its course. Nevertheless, he says, the region’s droughts will be more frequent and more severe for the foreseeable future. After closely studying dozens of climate models he and Kelley and their colleagues are convinced that continued greenhouse gas emissions will widen the Hadley cell, the band of air that envelops Earth’s tropics in a way that could further desiccate the lands of the eastern Mediterranean.

These past months many people have written about the Syrian civil war. Many have written about climate change. Wendle’s article considers both the perspectives of farmers who have become refugees and of scientists studying climate change. It is not only describes where we are, but how we got here, and what may be yet to come.

Highly recommended.

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…