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Middle East

The International Community and the Challenge to the Rule of Law: The Future of Iran Nuclear Deal

by Katayoun Hosseinnejad and Pouria Askary

[Katayoun Hosseinnejad is a university lecturer of international law and attorney at law in Iran and Pouria Askary is an assistant professor of international law at law school of ATU and a visiting professor of law at Islamic Azad University and Tarbiat Modarres University.]

On May 10, two days after the US President pulled his country out of the Joint Comprehensive Plan of Action (JCPOA), Iranian Foreign Minister, in a letter to the UN Secretary General, states that ‘If JCPOA is to survive, the remaining JCPOA Participants and the international community need to fully ensure that Iran is compensated unconditionally through appropriate national, regional and global measures.’(here). While political discussion on this matter is ongoing, which has led, inter alia, to the recent European Commission’s decision demonstrating the EU’s commitment to the JCPOA by preserving the interests of European companies investing in Iran (Press release), this post discuses the legal obligations of states in preserving the JCPOA under the Charter, in general, and the Security Council Resolution 2231 (2015), in particular (here).

The Resolution 2231, aimed at settling the dispute over Iran’s nuclear programme, was adopted under Chapters VI and VII of the UN Charter by the affirmative votes of all the members of the Security Council including the US. The Resolution refers several times to Article 41 and explicitly mentions the obligation of states under Article 25 to accept and carry out the Security Council’s decisions. The Resolution, in its first paragraph, endorses the JCPOA and urges its full implementation.

As discussed by Dan Joyner and by Julian Ku, the JCPOA is not a treaty; however, the fact that it is endorsed and urged to be implemented in full by the Resolution 2231, makes it binding on the UN member states. The obligatory character of the Security Council’s decisions, even those that are not related to the enforcement measures under Chapter VII of the Charter, despite what has been argued by a few commentators, has been emphasized by the ICJ in its Advisory Opinion on Reparation for Injuries, when the Court pronounced:

The Charter has not been content to make the Organization created by it merely a centre ‘for harmonizing the actions of nations in the attainment of these common ends’ … It has defined the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it… and to accept and carry out the decisions of the Security Council… (Advisory Opinion, p. 178)

The Court elaborates this point further in its Advisory Opinion on Namibia, to reject the contention that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. The Court by emphasizing that ‘[i]t is not possible to find in the Charter any support for this view’, and the fact that this article ‘is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council’ holds that Article 25 ‘is not confined to decisions in regard to enforcement action but applies to “the decisions of the Security Council” adopted in accordance with the Charter.’ The Court adds further that a reading that limits the application of Article 25 to the enforcement measures under Chapter VII would make Article 25 ‘superfluous, since this effect is secured by Articles 48 and 49 of the Charter.’ (Advisory Opinion, para 113). Based on these considerations, the Court concludes that:

Thus when the Security Council adopts a decision under Article 25 in accordance with the Charter, it is for member States to comply with that decision… To hold otherwise would be to deprive this principal organ of its essential functions and powers under the Charter. (Advisory Opinion, para 116).

The Resolution 2231, adopted in accordance with the Charter, urges for the full implementation of the JCPOA. It calls upon all member states, as well as other international actors, to support its implementation and to refrain from actions that undermine implementation of commitments under the JCPOA (para 2). Hence, all the UN member states, including the US, are fully committed to implement the Resolution and the JCPOA, which forms a part of it. Although the use of the term ‘calls upon’ has led a few scholars such as John B. Bellinger to argue that this paragraph has not created any obligation under international law (here), as stated by the ICJ, the terms of the Security Council Resolution should be interpreted considering ‘all circumstances that might assist in determining [their] legal consequences’:

The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances… (Namibia Advisory Opinion, para 114).

To adhere to the idea that simply because of the use of the phrase ‘calls upon’ in the Resolution, states are free to refrain from its implementation makes the whole Resolution superfluous. The Resolution 2231, which marked a fundamental shift in the Security Council’s consideration of Iran’s nuclear issue, was adopted with the aim of providing a comprehensive solution to the dispute over Iran’s nuclear programme for which the comprehensive lifting of nuclear-related sanctions, including international and national sanctions, was an essential part, as stated in the Joint Plan of Action of E3/EU+3 and Iran issued on 24.11.2013. Thus, it cannot be argued that no state except Iran has hard law obligation in implementing the Resolution. In light of this, the recent decision of the United States to withdraw from this agreement and the measures it has taken to defy the implementation of the Resolution, by reapplications of US sanctions on Iran and its commercial partners in the world, is a material breach of its obligations to comply with the decisions of the Security Council under the Charter and therefore, entails its international responsibility.

The question, however, remains as to the legal relations arising from the occurrence of the US internationally wrongful act with the other UN member states.

Of course, every state, by virtue of its membership in the international community, has a legal interest in the fulfillment of certain essential obligations, and for that reason, states are under general obligation not to provide any aid or assistance to another with a view to facilitating the commission of an internationally wrongful act by the latter (Article 16 of the draft rules on state responsibility). Nevertheless, we believe that in this situation the UN member states have also positive obligations in taking appropriate measures to ensure the continuous implementation of the Resolution 2231 and the JCPOA, because the challenge imposed by the US is not only against Iran but it targets what forms the universally recognized bases of international legal order: pacta sunt servanda, good faith, multilateralism, international cooperation, and the rule of law.

Since the Charter is an international treaty, the obligations it contains are, from the point of view of their origin, treaty obligations for which all state parties, and not only the injured state, have an interest of a general character in compliance with it. Moreover, obligations of states under the Charter, in general, and the decisions of the Security Council, in particular, have special importance not only because of the expressed reference of Article 103, but also due to the important role they play in maintaining international peace and security.

The United Nations was established by peoples who were determined to ‘achieve international co-operation in solving international problems’ and for that purpose, their governments had obliged themselves to ‘fulfill in good faith the obligations assumed by them in accordance with the present Charter’. (Articles 1(3) & 2(2) of the Charter). The good faith performance of obligations of states under the Resolution 2231 requires them to take measures to enable its implementation. The Resolution contains positive obligations by emphasizing on the ‘States’ rights and obligations relating to international trade’ (preamble); it expressly underscores that member states are obligated under Article 25 of the Charter to accept and carry out the Security Council’s decisions (preamble). It further calls upon all member states, regional organizations and international organizations to take such actions as may be appropriate to support the implementation of the JCPOA, including by taking actions commensurate with the implementation plan set out in the JCPOA and the Resolution 2231 (para 2). The good faith implementation of these obligations cannot be equated with the mere disagreement with the violation occurred and for that reason, in the joint statement issued by the Prime Minister Theresa May, Chancellor Angela Merkel and President Emmanuel Macron, they announced their commitment to ensure ‘the continuing economic benefits … that are linked to the agreement.’ (here). In the same line, the EU high representative has emphasized that ‘for the sake of our own collective security’, not only the European Union is determined to preserve the deal, but also ‘expect the rest of the international community to continue to do its part to guarantee that it continues to be fully implemented.’ (here). Accordingly, the President of the European Commission stated that ‘We must act now and we will act now. That’s why we are launching the process to use the 1996 Blocking Statute to neutralise the extraterritorial effects of US sanctions on European companies’.

When a state violates such an obligation in a systematic way, i.e. ‘in an organized and deliberate way’ and with the clear intention to violate the norm, other states have obligations in stopping the violator as the ICJ in Consular Staff in Tehran case has emphasized:

Such events cannot fail to undermine the edifice of law carefully constructed by mankind… the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected. (Judgment, para 92).

The deal, which ‘is one of the biggest achievements diplomacy has ever delivered… belongs to the entire international community’, as correctly mentioned by the EU High Representative, Federica Mogherini (here). Faced with such a threat to the foundations of international legal system, the international community, in general, and Iran’s JCPOA partners, in particular, not only have strong interest but also obligation to take all necessary measures in order to guarantee the rule of law in international relations.

In closing, we thank Opinio Juris for letting us contribute this guest blog post.

Roundtable on the Siege of Eastern Ghouta

by Kevin Jon Heller

I had the pleasure of participating yesterday in a superb — and long! — panel on the 2013 siege of Eastern Ghouta. The panel discussed the facts, the law, and the politics of the siege. I was joined by Hussam Alkatlaby, the Executive Director of the Syrian Violations Documentation CentreJoost Hiltermann, programme director for Middle East & North Africa at the International Crisis Group; and Robin Peeters, the Syria Policy Officer in the Dutch Ministry of Foreign Affairs.

You can watch a recording of the event on the University of Amsterdam website here.

The panel was sponsored by the War Reparations Centre at the Amsterdam Centre for International Law (ACIL); the Amsterdam Students Association of International Law; and the Syria Legal Network.

A Letter to Israel About Its Plans to Forcibly Deport Africans

by Kevin Jon Heller

Opinio Juris readers might be interested in this letter from GLAN Legal — the Global Legal Action Network — to the Presidents and Attorneys General of Israel and Uganda. It was written by Itamar Mann, Yannis Kalpouzos, and Omer Shatz, with input from me. Here is the introduction:

The Global Legal Action Network (GLAN) is an organization of lawyers initiating transnational human rights litigation around the world. Our focus is on cases in which “developed” countries are responsible for violations occurring in “developing” countries. We write to respectfully warn both Israel and Uganda that the forcible deportation plan currently being discussed for Eritrean and Sudanese asylum seekers living in Israel may amount to a crime within the jurisdiction of the International Criminal Court (ICC).

The letter then proceeds to lay out the basics of the argument — which seems pretty unimpeachable to me. Note the reliance on the OPT’s recent argument concerning deportation from Myanmar to Bangladesh!

The Coming Attack on Syria Will Be Unlawful

by Kevin Jon Heller

You go to war with the President you have, not the President you wish you had.

We should keep that basic truth in mind as the US inches ever closer to war with Syria — and potentially with Russia, a far more terrifying possibility. Donald Trump does not care about civilians in Syria. He does not care about containing the spread of chemical or biological weapons. If he attacks Syria, it will be for one and only one reason: to distract attention from his collusion with Russia, his obstruction of justice, and his corruption. As Trump well knows, Americans love nothing more than high-def images of American bombs falling from the skies. No matter how many innocent civilians die (especially brown ones), an attack on Syria will give his approval ratings a healthy boost. That is all the motivation he needs.

That Trump will act with base motives does not mean, however, that an attack on Syria would be unlawful. Illegality has to be demonstrated, not assumed.

So let’s start with some basic principles. Syria is a sovereign state. Russia is using force on Syrian territory with the consent of the Syrian government. The US is not. To justify its use of force in Syria, therefore, the US would have to be acting in self-defence. If it was not acting in self-defence, it would be violating the jus cogens prohibition of the use of force that is enshrined in Art. 2(4) of the UN Charter.

With regard to its use of force in Syria against ISIS and other terrorist groups, the US at least has a plausible claim to individual and collective self-defence: the “unwilling or unable” doctrine. Readers know that I do not believe that “unwilling or unable” reflects customary international law. (For the most recent scholarly rejection of that idea, by Brunee & Toope, see here.) But the argument is not a frivolous one.

An attack directed at Syria itself, however, would be patently unlawful. Syria has never attacked US forces or interests. By contrast, the US has attacked Syria: in 2017, when it fired 59 cruise missiles at a government airfield in Shayrat; and in 2018, when it killed approximately 100 members of a pro-Assad militia who attacked a Syrian Democratic Forces headquarters. The US offered no legal justification whatsoever for the 2017 attack, and it claimed that the attack on the militia was “self-defence” — as if collective self-defence somehow permitted the US to come to the aid of a rebel group.

But that is the past. More importantly, there is no evidence — literally none — that Syria has any intention of attacking US forces. Not in the near future or in any future. If the US attacks Syria, therefore, it would not be acting in self-defence. Its attack would violate the jus cogens prohibition of the use of force. It would be, to use the accurate but loaded term, the aggressor.

And that would, of course, have two very important consequences — consequences you will not see discussed in the American media if and when the US attack begins. To begin with, Syria would have every right to use force to defend itself. It could shoot down American fighter planes. It could kill American soldiers. The only limitations on Syria’s right of self-defence would be the usual ones: necessity and proportionality.

Even more importantly, Russia would also be legally entitled to use force against the US. The right of collective self-defence is guaranteed by Art. 51 of the UN Charter and by customary international law. Just as the US invoked collective self-defence to justify attacking North Vietnam at South Vietnam’s request, Russia could invoke collective self-defence to justify attacking the US at Syria’s request. What is sauce for the American goose is sauce for the Russian gander. This is the most frightening aspect of Trump’s madness: although the Syrian military is capable of doing far more damage to American forces than Iraq’s or Libya’s militaries ever were, Russia’s military is one of the most powerful and technologically-sophisticated in the world. A hot war between Russia and the US could be literally catastrophic.

None of this jus ad bellum analysis should be remotely controversial — at least not to those who don’t believe the US has the God-given right to use extraterritorial force wherever and whenever it pleases. All of the conclusions above derive from a straightforward application of black-letter rules concerning the use of force.

That said, in recent days we have seen a number of scholarly attempts to justify Trump’s coming attack on Syria. I want to focus on one such attempt here, by my friend (and retired Maj. Gen.) Charlie Dunlap at Lawfire. Dunlap offers two potential justifications for attacking Syria: (1) self-defence; and (2) unilateral humanitarian intervention. Neither justification works.

With regard to self-defence, Charlie says the following with regard to Syria’s chemical and biological weapons:

Today, there are considerably more U.S. troops in Syria – perhaps as many as 2,000  – well within range of a number of Syrian weapons’ delivery systems.  Accordingly, it is not unreasonable to conclude that these uniquely dangerous weapons of mass destruction require an aggressive response.

Even if we assume that US troops are in Syria lawfully — a big if, given that it requires accepting the “unwilling or unable” doctrine — this argument denudes Art. 51’s armed attack requirement of all meaning. As noted above, Syria has neither attacked US troops nor threatened to do so. The mere possibility of attack — involving the mere possibility of that attack involving chemical or biological weapons — cannot justify an armed “response” by the US. To argue otherwise is to embrace preventive self-defence on steroids — going beyond even the US’s rationale for attacking the shadowy Khorosan group, where the US spokesman openly acknowledged, with regard to what armed attack the US was supposedly trying to prevent, that “I don’t know that we can pin that down to a day or month or week or six months.” At least terrorists who were possibly associated with the Khorasan group had previously attacked US interests. With regard to Syria, there is not even one previous attack to invoke.

Charlie’s invocation of unilateral humanitarian intervention (UHI) is no more persuasive. Here is what he says:

I also contended that Harold Koh’s 2013 argument about humanitarian intervention in certain narrow circumstances was supportive of a separate legal rationale for the 2017 strikes. I think the reaction of the international community to last year’s strikes is indicative of a growing consensus supporting limited interventions in select situations much as Professor Koh conceptualized, at least in the case of a clear violation of international law.

I have previously explained — in response to Harold Koh — why there is no plausible argument for the legality of UHI. The same critique applies here. I would just add that the international reaction to the 2017 attack on the airfield at Shayrat does not help the argument, for one simple reason: the US never invoked UHI as a justification for the attack. Because it did not, states were under no obligation to denounce UHI after the attack took place — as they have repeatedly done in the face of attacks (such as Kosovo) where one or two states did invoke the doctrine. What I said a few days ago regarding Israel’s 2007 Al-Kibar attack applies no less to the 2017 Shayrat attack: had the US claimed that the attack was legal UHI, the international response would have assuredly been different.

The conclusion above thus remains sound: if the US attacks Syria, it will be the aggressor and both Syria and Russia will have the right to use force against the US in self-defence.

Let me end with what I hope is obvious: this is a legal analysis, full stop. It is not a normative argument. I loathe Assad, a murderous dictator who deserves to spend the rest of his life in prison for his innumerable crimes. I understand the desire to something — anything — to prevent further violence against innocent Syrian civilians. I don’t believe, as I said in my response to Koh, that attacking Syria would contribute to that goal — particularly if it was limited to aerial warfare, as it almost certainly would be. But even if it would, the prohibition of the use of force still matters. We should not cloak acts that categorically violate that prohibition in a patina of legal respectability.

Implications of the Rohingya Argument for Libya and Syria (and Jordan)

by Kevin Jon Heller

In my previous post, I offered three cautionary thoughts about the OTP’s decision to ask the Pre-Trial Division to hold that the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh. In this post, I want to offer a few thoughts on what a successful outcome would mean for refugee crises elsewhere — particularly in Libya and Syria.

We can start with the relatively easy case: Libya. Because of UNSC Res. 1970, the ICC has jurisdiction over any international crime committed on the territory of Libya from 2011 onwards. If the OTP’s theory of deportation is correct, it would be able to prosecute both (1) deportations from Libya committed by the Libyan government and armed forces, and (2) deportations into Libya from neighbouring states that are not members of the ICC — namely, Egypt, Sudan, and Algeria. Fatou Bensouda has already signalled interest in prosecuting “migrant-related crimes” committed by Libyans in Libya. A positive outcome to the OTP’s request in the Rohingya situation would make it possible for her to prosecute Egyptian, Sudanese, and Algerian nationals as well.

The more interesting case is Syria, given that Syria is not a member of the ICC and there is little chance the Security Council will refer the situation in Syria to the Court anytime soon. There are two scenarios worth discussing here: (1) deportations by the Syrian government or by various Syrian rebel groups into a neighbouring state; and (2) deportations by the Syrian government or by various Syrian rebel groups onto the high seas.

Going in reverse order, the ICC would have no jurisdiction over any deportation from Syria onto the high seas. There are two possible situations here: where the deported civilians drown on the high seas, and where the deported civilians make it to an ICC member-state such as Italy or Germany. In the first (profoundly sad) situation, no essential element of deportation (or of any other international crime) would have taken place on the the territory of a state party. And in the second situation, the civilians would not have been deported “directly” into the territory of a member-state — they would have been directly deported onto the high seas and only “indirectly” deported into the territory of a state party. Deportation’s “essential element” of crossing an international border would thus have taken place in Syria and on the high seas — not on the territory of a member state. This is the importance of the OTP’s repeated insistence in its request (see paras. 4, 13, and 28) that only direct deportations activate the Court’s jurisdiction.

In the second scenario, where the civilians are directly deported into a neighbouring state’s territory, a positive outcome to the OTP’s request in the Rohingya situation would mean that the ICC would have jurisdiction over any deportation from Syria into the territory of a state party. There is, in fact, only one ICC member-state that borders Syria: Jordan. Jordan would be a particularly attractive application of the OTP’s theory of deportation, given that more than 650,000 Syrians are currently taking refuge there — almost exactly the same number as the Rohingya in Bangladesh. (Though not all of the Syrian refugees in Jordan have been the victim of deportation.)

I wonder, though, what Jordan would think of the OTP opening an investigation into deportations from Syria into Jordan. Presumably, that situation would not be limited to deportations, but would also include Jordan’s own treatment of Syrian refugees. (A more tailored situation would be immediately seen for what it was — a sop to Jordan.) As Human Rights Watch has ably documented, Jordan has been summarily returning hundreds of Syrian refugees back to Syria each month, a clear violation of international law. Those actions very likely qualify as the crime against humanity of persecution, especially when Jordanian authorities specifically target for expulsion a national group such as Palestinians. So it is not difficult to imagine the OTP bringing a case involving Jordan’s expulsions as part of an investigation into Syrian deportations. Indeed, the OTP would likely find it much easier to prosecute the expulsions, given that Jordan is not only obligated to cooperate with the ICC but has long been one of its most vocal supporters. Ironically, then, an investigation into Syrian deportations might mean that a Jordanian ends up in the dock before a Syrian!

NOTE: I don’t think the Jordan prosecution I discuss above is likely to happen. I’m just teasing out the possible implications of the ICC having jurisdiction over deportations from non-member states to member-states.

Why Al-Kibar Does Not Contribute to Pre-Emptive Self-Defence

by Kevin Jon Heller

Elena Chachko has an interesting post at Lawfare discussing Israel’s recent public acknowledgement of what the international community has long known: that it was responsible for the 2007 attack on the Al-Kibar nuclear reactor in Syria. Although I agree with much of Chachko’s post, I would take issue with what she says about how the failure of states to condemn the attack at the time and to react to Israel’s new acknowledgment of its responsibility might affect the customary status of pre-emptive self-defence:

It would be unwise to jump to the conclusion that the many states that did not protest the Al-Kibar strike instead acquiesced to it, thus indicating their support for a right to exercise preemptive self-defense to eliminate nuclear threats. Still, one could argue that the clandestine and military nature of the Al-Kibar reactor, its proximity to Israel, and the hostility between Israel and Syria rendered Israel’s “last opportunity to stop an existential threat” argument more plausible now than when it invoked it to justify the destruction of Osirak—a distant, declared, reactor built with French assistance. Under this reasoning, the relatively muted international response could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.

In sum, the question of whether international law now recognizes a right to preemptive self-defense against nuclear threats remains highly contested. But the evolution of the international position from “Opera” to “Outside the Box,” even after Israel acknowledged its role in the latter, is telling. Both scholars and politicians will likely take this evolution into account in discerning state practice on this question going forward.

With respect to Chachko, this argument is problematic. As she acknowledges, Israel has still not articulated any legal justification for the Al-Kibar attack, much less claimed that it represented a legal act of pre-emptive self-defence:

It remains true, however, that we do not know what Israel’s legal position actually was. Israel has yet to provide a public legal justification for the Al-Kibar operation under jus ad bellum. The newly released interviews with members of Israel’s leadership at the time, including then-prime minister Ehud Olmert, did not explicitly address the legal aspects of the decision to carry out the strike. The only  I found in the reports about the strike to the role of lawyers in vetting the operation was a brief mention of then-attorney general Meni Mazuz’s involvement in drafting the government decision that authorized the operation.

Because Israel has not provided a legal justification for the attack, the attack cannot help establish the legality of pre-emptive self-defence. As the ICJ made clear in the Nicaragua case, practice unaccompanied by opinio juris does not contribute to modifying customary rules concerning the use of force (para. 207; emphasis mine):

The Court has no jurisdiction to rule upon the conformity with international law of any conduct of States not parties to the present dispute, or of conduct of the Parties unconnected with the dispute; nor has it authority to ascribe to States legal views which they do not themselves advance. The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.

For similar reasons, the “relatively muted” response by states to the Al-Kibar attack also cannot help establish the legality of pre-emptive self-defence. It is true that silence in the face of practice can count as acquiescence to a proposed customary rule. But that is only the case when — to quote the ILC’s new Draft Conclusion 3 regarding the formation of custom — “the circumstances called for some reaction.” No reaction is required when a state does not provide a legal justification for its actions. In 2007, Israel did not even acknowledge that it was responsible for the attack. And even now, in 2018, Israel is not claiming that it acted in self-defence. So it would not simply be “unwise” to read too much into the international community’s response to the Al-Kibar attack. It would be legally inappropriate to do so.

I also disagree with Chachko’s claim that silence “could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.” I think it actually suggests the opposite: it is extremely likely that states — particularly those in the Non-Aligned Movement (NAM) — remained silent about the Al-Kibar attack precisely because Israel neither acknowledged that it was responsible for the attack nor claimed that the attack was a legitimate act of pre-emptive self-defence. As Chachko rightly points out — echoing the Spector/Cohen blog post  she links to — there were sound political and strategic reasons for states, particularly in the Middle East, not to get too worked up about the 2007 attack. In the absence of Israel claiming self-defence, NAM’s silence was legally costless. But it is difficult to believe that it would have remained silent in the face of a legal claim that pre-emptive self-defence is lawful. After all, NAM has consistently denounced pre-emptive self-defence as unlawful.

Israel’s acknowledgment that it was responsible for the Al-Kibar attack is politically important. But it has no legal implications whatsoever.

The ICC and Israel: Prosecuting the Punitive Demolition of Palestinian Homes – Part 2

by Elvina Pothelet

[Elvina Pothelet is a Visiting Researcher at the Harvard Law School and a Ph.D. candidate at the University of Geneva. This is the second part of a two-part post. Part one can be found here.]

Part 1 of this post argued that Israel’s policy of punitive demolitions of Palestinian homes may amount to a grave breach under Art. 8(2)(a)(iv) of the Rome Statute. Part 2 explores alternative qualifications under the Statute and argues that a case on punitive demolitions before the ICC would likely pass the admissibility tests of complementarity and gravity.

Alternative qualifications

In addition to the grave breach qualification under Art. 8(2)(a)(iv), the punitive demolitions could also amount to the war crime of “[d]estroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war”, under Art. 8(2)(b)(xiii). Curiously, none of the legal analyses of Israel’s punitive demolitions that I have encountered discuss this alternative qualification. If the reason is that “the enemy’s property” is understood as covering only the public property owned or controlled by the enemy party (the State of Palestine), such a restrictive reading is unwarranted.

It is true that the ICC Elements of Crimes for Art. 8(2)(b)(xiii) only indicate that the property must be “property of a hostile party”. However, the travaux of the PrepCom (which drafted the Elements of Crimes) suggest that this includes private property. Indeed, the Proceedings of the PrepCom issued at the end of its 3rd session specify: “Such property was private or public property of the hostile party” (see PCNICC/1999/L.5/Rev.1/Add.2). Since this interpretation was not disputed, the clarification was eventually deleted (Dörmann, p. 251). ICC case law relating to the destruction of property in NIAC confirms this (while Art. 8(2)(e)(xii) applicable in NIAC uses the slightly different formula “property of an adversary” instead of “enemy’s property” under Art. 8(2)(b)(xiii), the two are considered synonymous, see Dörmann, p. 485). The Katanga trial judgement confirms that enemy property includes private property (para. 892).

Furthermore, the meaning of “enemy” should be understood lato sensu, as including civilians perceived as being affiliated with the enemy. Katanga was indeed convicted for the war crime of destruction of property based on the finding that “the predominantly Hema population of Bogoro were considered adversaries” by the attackers because of their allegiance to the UPC” (para. 943, emphasis mine). Multiple declarations by Israeli officials could constitute evidence that victims of punitive demolitions are perceived as “the enemy” in the context of the occupation: in fact, they are targeted precisely because of their alleged ties with “terrorists”, a qualifier which cannot be understood in isolation from the situation of occupation.

As to the possible justification of “necessities of war”, the reasoning on military necessity developed in Part 1, applies equally (for an analysis in relation to Art. 8(2)(b)(xiii) specifically see Schabas, pp. 293-294).

Alternatively, the Prosecutor could prosecute punitive demolitions as “inhuman treatment”, a grave breach and war crime under Art. 8(2)(a)(ii) and Art. 8(2)(b)(xxi) respectively, due to its nature as collective punishment (see Al-Haq report, p. 15 and Expert Opinion p. 37). Finally, some have argued that the practice may amount to the crime against humanity of persecution (Al-Haq report, p. 53) – but considering the strong connection with the situation of occupation, the war crime qualification appears more straightforward.

Admissibility concerns

Art. 8(1) of the Rome Statute encourages the Court to focus on war crimes “committed as part of a plan or policy or as part of a large-scale commission of such crimes”. Punitive house demolitions are not only a practice but also a clear policy of the Israeli government, sanctioned by Israeli law. As such, it falls within the scope of this statutory guidance.

Turning to issues of admissibility, a potential case focused on (or including) charges for punitive demolitions would likely pass the tests of complementarity and gravity under Art. 17 of the Rome Statute. It is clear that Israel is not prosecuting any State officials for this conduct (‘the same case’ test in ICC case law), and it is probable Israel would be found “unwilling” to prosecute its officials for designing and implementing what is after all an official State policy of the Israeli government (the same goes for settlements activities, illegal under international law but sanctioned by domestic law). Complementarity should therefore not pose any major issue.

As for gravity, a potential case would seem to meet the criteria the Court has identified in an attempt to “objectivize” this inherently discretionary notion. According to PTC case law and OTP policy papers and practice, the OTP should assess gravity in relation to the crimes as well as in relation to the potential accused. The latter consists of determining if the accused are “those who may bear the greatest responsibility for the alleged crimes committed” (see e.g. Article 53(1) Report related to the Flotilla incident, paras. 133, 135). Given the State policy nature of the crime, those most responsible for the crime would likely be Israeli civilian and/or military leaders (even though the leadership position of the accused should not be a factor of gravity, see here p. 23).

The gravity of crimes is assessed based on quantitative and qualitative considerations, along four non-exhaustive indicative factors: the scale, nature, manner of commission of the crimes and their impact (see a useful review of case law here). Regarding the scale, according to data collected by B’Tselem (and used by the Special Rapporteur on the situation of human rights in the Palestinian territories), 272 people have lost their homes since mid-2014 (the date from which the ICC can exercise jurisdiction). As to the nature of the crime as being one of destruction of property, the al-Mahdi conviction demonstrated that gravity does not necessarily imply crimes against persons. And as highlighted below, the loss of one’s home has very real consequences on one’s life and dignity. The fact that the crime amounts to collective punishment, a violation of IHL, is also relevant. In addition, the destruction of one’s private home is connected to two human rights, namely the right to housing and the right to property, which could also account for the grave nature of the crime. As to the manner of commission, it is relevant that punitive home demolitions are part of a policy (a criterion mentioned in the OTP report on the Flotilla incident, para. 140).

Finally, the impact of the crimes must be assessed from the perspective of the direct victims and also the local communities more generally (see OTP Kenya Request, paras. 56-59). The economic, social and psychological impact for direct victims of punitive demolitions is well documented. Furthermore, punitive demolitions arbitrarily attribute collective responsibility for individual acts, thus perpetuating the stigmatization of Palestinians as “terrorists”. The consequences of such stigmatization on the peace process cannot be overstated.

In conclusion, there are strong arguments in favor of including the punitive demolitions of Palestinian homes in the OTP’s next preliminary examination report. This would send a clear signal that the Israeli state’s leadership must cease its illegal activity if it wishes to avoid ICC proceedings.

The ICC and Israel: Prosecuting the Punitive Demolition of Palestinian Homes – Part 1

by Elvina Pothelet

[Elvina Pothelet is a Visiting Researcher at the Harvard Law School and a Ph.D. candidate at the University of Geneva. This is the first part of a two-part post.]

Last Friday, a car-ramming attack in the West Bank killed two Israeli soldiers and injured two others. While the suspect was apprehended shortly thereafter, Israeli Prime Minister Netanyahu pledged on Twitter to “work to demolish the home of the terrorist”. This statement reflects the commitment of the current Israeli government to an infamous policy of “punitive home demolitions”, which consists of demolishing the home of relatives of Palestinians suspected of security offences against Israel in the West Bank and East Jerusalem (two other types of demolitions are “administrative demolitions” of houses built without a permit and “clearing demolitions” carried out on the pretext of military needs such as during Operation Protective Edge in Gaza in 2014). Punitive demolitions have been widely documented (see e.g. here, here, here, here, here, and here) and denounced as amounting to collective punishment, a violation of IHL and a war crime under many national laws. Yet, the practice is surprisingly absent from the ICC Prosecutor’s preliminary examination reports on the situation of Palestine. In her 2015, 2016 and 2017 annual reports, Fatou Bensouda mentions house demolitions only under the heading of “settlement activities” which would seem to exclude punitive house demolitions.

The ICC does not have jurisdiction over the war crime of collective punishment as such. The case for including this crime in the Rome Statute has already been convincingly argued, but it was not proposed as an amendment at the 2010 Kampala Review Conference. However, as will be argued below, punitive demolitions could be prosecuted under other war crime counts. The OTP should include them in her preliminary investigation: not only could this lead to concrete charges before the ICC, and offer some prospect of justice for the hundreds of Palestinians who lost their homes since mid-2014, it could also deter the current and future Israeli governments from pursuing such a policy.

The first part of this post addresses the qualification of the policy as a “grave breach” of the Fourth Geneva Convention (GCIV), prosecutable under Art. 8(2)(a) of the Rome Statute, while the second part will address alternative qualifications as well as admissibility concerns.

The grave breach of extensive destruction of property

Israel’s policy of punitive demolitions could qualify as the grave breach of “[e]xtensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”, under Art. 8(2)(a)(iv) of the Rome Statute. Below, I will examine the elements of this crime.

First, Art. 8(2)(a) crimes require an international armed conflict (IAC). The qualification of the situation in the West Bank as one of occupation, and hence an IAC to which IHL applies, should not raise any serious legal issues and is acknowledged by the Israeli Supreme Court. (The question of the conventional applicability of GCIV in the West Bank and whether this is condition for war crimes under Art. 8(2)(a) of the Statute is beyond the scope of this post. However, it can be argued that the grave breaches provisions of GCIV underlying Art. 8(2)(a) crimes need only apply as a matter of customary law. Note that this question would not arise for Art. 8(2)(b) war crimes, discussed in part 2 of this post, given the absence of reference to the GCs in the chapeau of the article).

A second contextual requirement for the applicability of all Art. 8 crimes is that “the conduct took place in the context of and was associated with an international armed conflict” (nexus requirement). Given that Israel views demolition orders as an administrative sanction, a claim that they constitute mere law enforcement measures unconnected to the conflict is foreseeable. This argument would not hold up. If ICC judges follow, like they did in the past, the Kunarac test (the conflict – or occupation – “must play a substantial role in the perpetrator’s decision, in his ability to commit the crime or in the manner in which the conduct was ultimately committed”), there is no reason to expect the Court to question the existence of a sufficient nexus. The practice of punitive demolitions is intrinsically linked to the occupation since it is carried out in response to acts committed against Israel as the occupying power, made possible because Israel controls the territory on which the houses are located, and implemented via the occupation apparatus (authorized by the military commander under the military law applicable in the West Bank and executed by the IDF as the occupying force).

A third consideration is the protective scope of Art. 8(2)(a)(iv). The chapeau of Art. 8(2)(a) requires that the property be “protected under the provisions of the relevant Geneva Convention”. GCIV does not define which property is “protected” under its provisions but it makes sense to follow the reasoning of the ICTY according to which property belonging to protected persons is itself protected under GCIV (Blaskic, TJ, para 149-150). Given that the owners of the houses destroyed by Israel in the West Bank “find themselves […] in the hands of [an] Occupying Power of which they are not nationals”, they are protected persons under Art. 4 GCIV and therefore their property can be said to be “protected” as required by the chapeau of Art. 8(2)(a). As to the type of property contemplated in Art. 8(2)(a)(iv) specifically, it includes property protected under Art. 53 GCIV, i.e. “real or personal property belonging individually or collectively to private persons” (William Schabas, paras. 291-292; Knut Dörmann, p. 83). The property of Palestinian suspects and their relatives would thus fall under the protective scope of Art. 8(2)(a)(iv).

Fourth, according to the ICC Elements of Crimes for Article 8(2)(a)(iv), the destruction must be “extensive and carried out wantonly” and “not justified by military necessity”. In Blaskic, the ICTY indicated that “[t]he notion of ‘extensive’ is evaluated according to the facts of the case” (Blaskic, TJ, para. 157). Referring to the ICRC Commentary for Art. 147 GCIV (on which Art. 8(2)(a)(iv) is based), the judges emphasize that a single act may (or may not) suffice to characterize an offence under this count. This reasoning suggests that the extent of the destruction can be deduced not only from one incident but also from a pattern. Thus, every single demolition by the Israeli Defense Forces (IDF) need not be extensive; rather, the cumulative effect of the demolitions accounts for the extensive nature of the practice. The adverb “wantonly” has been interpreted by the ICTY as meaning that “the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction” (Kordic, TJ, para. 346). Given that the punitive demolition of Palestinian homes is implemented as part of a policy, this element should not raise any doubt. Hence, a 2014 Expert Opinion authored by four Israeli scholars concludes that:

“While any individual house demolition operation, executed on the basis of a specific order, will likely fall short of the legal standard of extensive destruction, […] a Policy leading over the years to hundreds or even thousands of house demolition not justified by military necessity, may pass the threshold of wantonness under Article 8(2)(a)(iv)”.

The requirement that the destruction be carried out “unlawfully” should be “assessed in the light of the overarching concept of military necessity” (OUP Commentary, Chapter 71, para. 51; see also Dörmann, p. 83) (the fact that the ICC Elements of Crimes for Art. 8(2)(a)(iv) do not mention the “unlawful” element but only that of “military necessity” (Element 2) confirms this interpretation. The concept of “military necessity” is often understood as the equivalent of “necessities of war” (used in Art 23(g) of the 1907 Hague Regulations). The Israeli government has successfully argued before the Israeli Supreme Court that these demolitions comply with military necessity (for an analysis of these cases see here, here and here). While the exact meaning of “military necessity” is controversial, it is uncontroversial that it differs in nature from security considerations. One way military necessity has been explained is that “[t]here must be some reasonable connection between the seizure or destruction of the enemy property and the overcoming of enemy forces” (U.S. DoD Manual, 5.17.2). The punitive nature of the demolition cannot possibly be reconciled with even the most generous understanding of military necessity, which is prospective in nature. The use of the term “deterrent” by the Israeli government, in an effort to signal the preventive as opposed to punitive nature of the policy seems to reflect no more than a difference in rhetoric – Israeli executive and judiciary branches did use the term “punishment” throughout the 1970s and 1980s to designate the same practice. Destroying private housing to sanction a perceived affiliation with “the enemy” is too far removed from the objective of overcoming enemy forces. In addition, claims that the policy is “necessary” have been challenged on the basis of empirical data showing that the policy is, in fact, ineffective at deterring terrorism. The 2014 Expert Opinion further argues that the unlawfulness of the demolitions also derives from the fact that they constitute collective punishment.

The PTC’s Bizarre Request for Additional Information About Afghanistan

by Kevin Jon Heller

As Patryk Labuda noted earlier today on twitter, the Pre-Trial Chamber (PTC) has ordered the OTP to provide it with additional information concerning the investigation in Afghanistan. Here are the key paragraphs of the order:

3. The Chamber observes that the Prosecutor seeks authorisation to initiate an investigation for crimes committed on the territory of Afghanistan from 1 May 2003 onwards, as well as crimes committed within the context of the situation in other States Parties from 1 July 2002 onwards.2 However, the supporting material provided, particularly in relation to the structure, organisation, and conduct of the Afghan Forces – collectively referred to by the Prosecutor as Afghan National Security Forces or Afghan National Defense and Security Forces (“ANSF”) – mostly falls within the time period 2011 to 2014. Further, little to no information has been provided regarding the structure and organisation of the Islamic State operating in Afghanistan, also refer red to as “Daesh” or “Islamic State Khorasan Province”3. Similarly, the information provided with respect to the structure of the United States of America (“US”) forces falls mainly within the period of 2001-2008, with regard to interrogation policies of the US forces within the period of 2001-2006 and with regard to the conduct of US forces within the period of 2003-2011.

4. The Chamber is of the view that further information is required for the Chamber’s determination under article 15(4) of the Statute. Accordingly, it orders the Prosecutor to submit to the Chamber the following:

a. Any publicly available report from the United Nations Assistance Mission in Afghanistan (“UNAMA”) on the treatment of detainees, apart from the reports from 2011, 2013, 2015 and 2017 already submitted;

b. Any publicly available report from the Afghanistan Independent Human Rights Commission (“AIHRC”) on torture, apart from the report from 2012 already submitted;

c. The United Nations (“UN”) Secretary-General reports to the General Assembly on the topic: “The situation in Afghanistan and its implications for international peace and security”, from the years 2003, 2004, 2010, 2013, 2014, 2015, and 2017;

d. Any publicly available report from the UN Secretary-General to the General Assembly on the topic “Children and armed conflict in Afghanistan”, apart from the report from 2008 already submitted;

e. Further clarification and information, to the extent possible, about the structure and organisation of the Islamic State operating in Afghanistan; and

f. Further clarification and information, to the extent possible, about the structure of the US forces for the time period after 2008; for the interrogation policies of the US forces for the time period after 2006; as well as for the conduct of the US forces for the time period after 2011.

This is actually the second time that the PTC has asked for more information. On 5 December 2017, it ordered the OTP to provide it with “media reports and article 15 communications concerning allegations attributed to special forces of a number of international forces operating in Afghanistan,” as well as as a list of incidents where, in the OTP’s view, “there is a reasonable basis to believe that crimes falling within the jurisdiction of the Court were committed during military operations conducted by international military forces.”

The first request made some sense, given that the PTC generally asked for information either possessed only by the OTP (the communications) or reflecting of the OTP’s internal analysis of the situation in Afghanistan (the list of incidents). The new request, however, is bizarre. To begin with, there is no reason that the PTC could not obtain the information in the first four categories itself, given that it specifically wants the OTP to provide it with “publicly available” information. I know for a fact that the judges have legal officers and access to google. Any reasonably competent researcher could obtain the relevant reports in an hour or so.

A similar criticism could be offered of category five — assuming that the request is not based on the PTC’s belief that the OTP has non-public information about the structure of IS — as well as of the first two requests in category 6. After all, the OTP’s information about interrogation policies comes largely from publicly available sources such as the summary of the Senate Torture Report.

The final request in category 6 — about the conduct of US forces after 2011 — makes some sense, given that the PTC is basically asking the OTP to justify its conclusion that there is a reasonable basis to believe US forces are responsible for mistreating detainees. But I share Patryk’s confusion about why the PTC thinks it needs that information to decide whether to authorize the Afghanistan investigation. Art. 15(4)’s “reasonable basis to proceed” standard is anything but onerous. Such a basis exists, according to Art. 53, as long as the available information (1) “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”; (2) admissibility is not an issue; and (3) there are no “substantial reasons to believe that an investigation would not serve the interests of justice.” There is no question that the OTP’s request for authorization satisfies requirements 1 and 3, and it cannot seriously be argued that complementarity — the first aspect of the admissibility requirement — counsels against opening the Afghanistan investigation. As the request itself notes, none of the relevant parties (the Afghan government, the US government, and the armed groups) have have investigated or prosecuted those most responsible for international crimes in Afghanistan.

Which leaves gravity, the other aspect of admissibility. The only plausible interpretation of the PTC’s order is that it does not think it can assess the gravity of the situation in Afghanistan without the requested information. But that makes little sense. Can it be seriously maintained that the collective actions of the Afghan military between 2011 and 2014, the actions of the Taliban and IS since 2003, and the actions of US forces and the CIA between 2003 and 2011 are not sufficiently grave to warrant a proprio motu investigation? I dare anyone to read the OTP’s superbly argued and documented 181-page request for authorization and reach that conclusion. (Especially when Afghanistan is compared to, say, the Burundi investigation, which the PTC had no trouble authorizing.)

To be sure, that does not mean the OTP has provided sufficient information concerning the actions of all of the parties at all of the relevant times. But that is where the final clause of Art. 15(4) comes in (emphasis mine):

 If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

If the OTP brings a case against an individual whose criminal responsibility cannot be properly assessed without additional information of the kind the PTC wants, it can demand that information when the defendant challenges admissibility or the OTP seeks confirmation of charges. There is no reason why the PTC should demand that information now.

I have little doubt that the OTP will quickly comply with the PTC’s order. But there is no legal or evidentiary reason why it should have to. The PTC already has more than enough information at its disposable to authorize the Afghanistan investigation.

How Did Carter Page Get a PhD from SOAS?

by Kevin Jon Heller

The Guardian is reporting today that Carter Page — Donald Trump’s bumbling former foreign-policy advisor, who has been interviewed quite extensively by the FBI regarding his contacts with Russia — earned a PhD from SOAS in 2011 after failing his defence twice. Here are some snippets from the story:

Page first submitted his thesis on central Asia’s transition from communism to capitalism in 2008. Two respected academics, Professor Gregory Andrusz, and Dr Peter Duncan, were asked to read his thesis and to examine him in a face-to-face interview known as a viva.

Andrusz said he had expected it would be “easy” to pass Page, a student at the School of Oriental and African Studies (Soas). He said it actually took “days and days” to wade through Page’s work. Page “knew next to nothing” about social science and seemed “unfamiliar with basic concepts like Marxism or state capitalism,” the professor said.

The viva, held at University College, London, went badly. “Page seemed to think that if he talked enough, people would think he was well-informed. In fact it was the reverse,” Andrusz said. He added that Page was “dumbfounded” when the examiners told him he had failed.

Their subsequent report was withering. It said Page’s thesis was “characterised by considerable repetition, verbosity and vagueness of expression”, failed to meet the criteria required for a PhD, and needed “substantial revision”. He was given 18 months to produce another draft.

Page resubmitted in November 2010. Although this essay was a “substantial improvement” it still didn’t merit a PhD and wasn’t publishable in a “learned journal of international repute”, Andrusz noted. When after a four-hour interview, the examiners informed him he had failed again, Page grew “extremely agitated”.

[snip]

After this second encounter, Andrusz and Duncan both resigned as Page’s examiners. In a letter to Soas, they said it would be “inappropriate” for them to carry on following Page’s “accusation of bias” and his apparent attempts to browbeat them. Andrusz said he was stunned when he discovered Page had joined Trump’s team.

Soas refuses to identify the academics who eventually passed Page’s PhD thesis, citing data protection rules.

In a statement, Soas said it had “proper and robust procedures for the award of PhDs”. It added: “All theses are examined by international experts in their field and are passed only where they meet appropriate high academic standards.”

I don’t think it is technically accurate to say that Page “failed” his defence twice. It seems more likely that each time he received a “not pass, but with major corrections” — which is not the same thing as a fail under SOAS’s PhD regulations. If a student fails, he or she cannot resubmit.

That said, I have never heard of a SOAS doctoral student being offered “not pass, but with major corrections” twice. The current regulations, which date back to at least 2014, specifically provide (section 6.9) that “[c]andidates for MPhil or PhD who are ‘not pass, but with major corrections’ are permitted one re-entry to examination.” They also require the revised dissertation be submitted within 12 months of the defence, while Page was given 18 months. It is possible, of course, that the regulations were different in 2010. But I think it’s unlikely.

It is also strange that SOAS would simply replace the original examiners with new ones after two “not pass” results and a subsequent allegation of bias. Why would a student who failed to correct his dissertation twice be given a third bite of the apple with different examiners? Page is hardly the first student to allege bias when he received a failing mark — and it’s not like he’s Saif Gaddafi or anything.

Something is seriously wrong here. SOAS is a world-class university with very high academic standards — one I’m proud to be associated with. The administration owes all of us an explanation. Hiding behind data privacy is not acceptable.

NOTE: SOAS’s Guidance for Examiners says candidates have 18 months to resubmit and at least mentions the possibility of examiners recommending “a further referral to revise and resubmit the thesis.” I am not sure how the Guidance can be reconciled with the PhD Regulations, and I presume the latter are binding.

A Potentially Serious Problem with the Final Decision Concerning Comoros

by Kevin Jon Heller

A couple of days ago, the OTP finally announced what we all expected: that it would not reconsider its refusal to open a formal investigation into Israel’s attack on the MV Mavi Marmara. Dov Jacobs has already offered some thoughts on the lengthy document the OTP has filed with the Court explaining its reasoning — what the OTP nicely calls the Final Decision. I fully concur with Dov’s thoughts (except with his position on retroactive acceptance of jurisdiction), and I write here simply to add one of my own.

To begin with, I think this is the most impressive OTP brief I have ever read — especially given the complexity of the procedural issues that it addresses. It is exceptionally well written and argued. I don’t know who the author is, but she would have made an excellent analytic philosopher. Fatou Bensouda should promote her immediately.

That said, I strongly believe that the Final Decision’s understanding of when the OTP is required to investigate a situation is fundamentally flawed — and will almost certainly come back to haunt the OTP in future preliminary examinations. I have argued, as have most scholars, that situational gravity is a function of all the potential cases in a situation that would be admissible before the Court: the greater the number of prosecutable crimes and the greater their individual gravity, the more situationally grave the situation. To be sure, it is not an easy task to compare the situational gravity of different situations. But I don’t think there a practical alternative, given that the OTP can only investigate a very small percentage of the situations in which admissible crimes have been committed.

The Final Decision, however, appears to take a very different approach. Instead of deciding whether to open an investigation based on the gravity of all the potentially admissible cases in a situation, the OTP seems to believe that it is required to open an investigation as long as even one potential case within a situation would be sufficiently grave to prosecute. Consider the following paragraphs (emphasis mine):

11. Although the Prosecution maintains its view that no potential case arising from this situation would be admissible before this Court—which is the only issue in dispute with the Comoros—this does not excuse any crimes which may have been perpetrated.

332. Consistent with article 53(3)(a) of the Statute and rule 108(3), and based on the above reasoning and the information available on 6 November 2014, the Prosecution hereby decides to uphold the disposition of the Report. There remains no reasonable basis to proceed with an investigation, since there is no reasonable basis to conclude that any potential case arising from the situation would be of sufficient gravity to be admissible before the Court.

This approach, it is worth noting, appears to represent a retreat from the position the OTP took in its initial explanation of why it would not investigate the Comoros situation. Here is paragraph 24 of that document (emphasis mine):

Having carefully assessed the relevant considerations, the Office has concluded that the potential case(s) that would likely arise from an investigation of the flotilla incident would not be of sufficient gravity to justify further action by the Court, in light of the criteria for admissibility 8 provided in article 17(1)(d) and the guidance outlined in article 8(1) of the Statute.

It is possible, of course, that the Final Decision refers to the gravity of “any potential case” instead of “the potential case(s)” not because the OTP’s approach to situational gravity has changed, but because there is only one potential case in the Comoros situation: the attack on the MV Mavi Marmara. But the difference of language is striking — and given the legal and analytic precision of the Final Decision, I find it difficult to believe that its emphasis on whether any individual case would be admissible is simply a slip of the keyboard.

I assume, therefore, that the Final Decision means what it says: the OTP believes it has to investigate any situation in which there is at least one potential case that is grave enough to be admissible. But that is a very problematic position.

To begin with, it leads to precisely the kind of unhelpful dispute we have seen in Comoros situation, where the OTP believes a specific case is not sufficiently grave to be admissible and the Pre-Trial Chamber disagrees. Both the OTP and the PTC have spent a great deal of time during their “judicial dialogue” (Dov’s apt expression) comparing the Mavi Marmara case to the Abu Garda and Banda cases. Here, for example, is how the Final Decision critiques the PTC’s insistence that the Mavi Marmara case is sufficiently grave to be admissible:

77. However, the Request does not address the basis on which the Prosecution considered that “the total number of victims of the flotilla incident reached relatively limited proportions as compared, generally, to other cases investigated by the Office”—in particular, the circumstances of the Abu Garda and Banda cases (which are, in relevant part, identical). Although the majority likewise referred to these cases, it did not consider those particular characteristics.

78. As the Report expressly states, Abu Garda likewise concerned the allegation of “a single attack involving a relatively low number of victims”—but it was “distinguishable” because of “the nature and impact of the alleged crimes”, which were committed against international peacekeeping forces. Accordingly, the attack alleged in Abu Garda differed in nature from the identified crimes aboard the Mavi Marmara. Crimes against international peacekeepers strike at the heart of the international community’s mechanisms for collective security, and thus their direct and indirect victims include not only the peacekeepers and their families, but also the large number of civilians deprived of protection more widely because of the disruption to the peacekeepers’ operations. The Request does not address this distinction. [130]

n. 130 Likewise, the recent Al Mahdi case—solely concerning attacks on property protected under article 8(2)(e)(iv) of the Statute—was considered sufficiently grave to be admissible before the Court, resulting in a conviction. In the context of sentencing, the Trial Chamber stressed that the charged conduct was of “significant gravity”, among other reasons, because 1) the destroyed mausoleums were “among the most cherished buildings” in Timbuktu, an “emblematic city” which “played a crucial role in the expansion of Islam in the region” and which is “at the heart of Mali’s cultural heritage”; 2) the destroyed mausoleums were of proven significance to the inhabitants of Timbuktu not only as a matter of religious observance but also as a symbol and focus of community activity and unity; and 3) all the destroyed sites but one were designated UNESCO World Heritage sites, whose destruction also directly affects “people throughout Mali and the international community.” This same reasoning is applicable, mutatis mutandis, to the question of admissibility.

I don’t find the OTP’s efforts to distinguish the Mavi Marmara case from Abu Garda, Banda, and Al Mahdi particularly convincing. Its selection of factors to highlight strikes me as completely subjective and result-driven. Indeed, when faced with the PTC’s insistence that the message the Mavi Marmara attack sent to the international community — that Israel is willing to use force to maintain an illegal blockade that is causing a massive humanitarian crisis in Gaza — it simply retreats to “well, we disagree, and there is nothing you can do about it”:

80. Indeed, the majority appears simply to disagree with the Prosecution’s view of the weight to be given to… the significance of any ‘message’ sent by the interception of the flotilla itself. Given the Prosecution’s understanding of the proper standard of review under article 53(3)(a), and the absence of a reasoned conclusion that the Report was in these respects incorrect or unreasonable, the Prosecution does not consider it appropriate to depart from its original determination in the Report.

My point is not that the PTC’s gravity analysis is right and the OTP’s is wrong. (Though I do think the PTC has the stronger argument.) My problem is with the OTP’s position that it must investigate any situation in which at least one case is grave enough to be admissible. Debates over case gravity are inevitable when that is the standard for opening an investigation. But they are easily avoided if the OTP takes a more holistic approach to situational gravity, comparing the gravity of different situations by examining all of the potentially admissible cases within them. Even if we assume (as I do) that the attack on the Mavi Marmara is sufficiently grave to be admissible, the overall situational gravity of the Comoros situation (which involves only one case) still pales in comparison not only to numerous other situations under preliminary examination, but even — and more importantly — to the situational gravity of the Palestine situation as a whole. As I have argued previously, the last thing the OTP should do is investigate one very small part of the much larger conflict between Israel and Palestine. If it ever takes the Palestine situation on, it needs to look at crimes committed by both sides throughout Palestinian territory.

There is, however, an even more significant problem with the Final Decision’s standard for opening an investigation: if taken seriously, it will simply overwhelm the OTP’s resources. There may not be even one admissible case in the Comoros situation (because there is only one case), but how likely is it that larger situations, which are the norm, will not contain even one case sufficiently grave to prosecute? Just think about the situations currently at Phase 2 or Phase 3 of the preliminary-examination process: Burundi, Gabon, Iraq, Palestine, Ukraine, Colombia, Guinea, and Nigeria. There may well be complementarity issues in some of those situations that counsel not opening an investigation, but it seems exceptionally likely that each contains at least one admissible case. The Final Decision’s standard would thus seem — barring complementarity concerns — to require the OTP to open a formal investigation in all eight situations. Which is, of course, practically impossible.

Nor is that all. If the existence of even one admissible case is enough to require the OTP to investigate a situation, states will have little problem using referrals (self or other) to achieve nakedly partisan ends. Palestine, for example, could simply refer a single day during Operation Protective Edge in which Israel flattened an entire neighbourhood in Gaza or destroyed a UN school sheltering displaced civilians. It would be difficult, if not impossible, for the OTP to plausibly maintain that those acts are not grave enough to prosecute. So it would have to open an investigation. That makes little sense. Far better for the OTP to simply say that, however grave those specific attacks might be, the overall gravity of the gerrymandered “situation” is not sufficient to investigate in light of the gravity of other situations.

I hope I am wrong about when the OTP believes it is required to open an investigation into a situation. If so, the OTP needs to clarify its position immediately. Because the standard articulated in the Final Decision — the existence of even one case sufficiently grave to be admissible — is simply unworkable.

Initial Thoughts on the ICC’s Decision to Investigate Afghanistan

by Kevin Jon Heller

Very significant news out of the ICC today: after a decade-long preliminary examination, the OTP has finally decided to ask the Pre-Trial Chamber to authorize a formal investigation into the situation in Afghanistan. Here is a snippet from Fatou Bensouda’s announcement:

For decades, the people of Afghanistan have endured the scourge of armed conflict.  Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.  In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.  It will be for the Judges of the Court’s Pre-Trial Chamber, constituted by the Presidency, to decide whether I have satisfied them that the Statute’s legal criteria to authorise opening an investigation are fulfilled.

Given the limited temporal scope of the Court’s jurisdiction, my request for judicial authorisation will focus solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.  The Court has no jurisdiction respecting crimes alleged to have been committed before those cut-off dates.

Assuming the PTC grants the OTP’s request — which is basically a foregone conclusion — Afghanistan will become (following Georgia) the second ICC investigation outside of Africa.

It will be very interesting to see how the US reacts to the announcement. The OTP made it clear in its 2016 preliminary-examination report that it intends to investigate crimes committed by the US military and the CIA:

211. The information available provides a reasonable basis to believe that, in the course of interrogating these detainees, and in conduct supporting those interrogations, members of the US armed forces and the US Central Intelligence Agency (“CIA”) resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape. These acts are punishable under articles 8(2)(c)(i) and (ii) and 8(2)(e)(vi) of the Statute. Specifically:

  • Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.
  • Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.

212. These alleged crimes were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees. According to information available, the resort to such interrogation techniques was ultimately put to an end by the authorities concerned, hence the limited time-period during which the crimes allegedly occurred.

213. The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan. Likewise, there is a reasonable basis to believe that all the crimes identified herein have a nexus to the Afghanistan conflict.

If the US formally challenges the investigation — a big if, because it would probably see doing so as an acknowledgment of the investigation’s legitimacy — it will no doubt rely on Mike Newton’s argument in the Vanderbilt Journal of Transnational Law that the Status of Forces Agreement (SOFA) between Afghanistan and the United States precludes the ICC from exercising jurisdiction over American soldiers. (The SOFA presumably doesn’t apply to CIA operatives, who are not part of the US armed forces.) Oversimplifying a bit, Mike argues that Afghanistan has no jurisdiction that it can delegate to the ICC, because the SOFA provides that the US retains exclusive jurisdiction over crimes committed by American soldiers. I disagree with the argument, for reasons ably laid out by Roger O’Keefe and Carsten Stahn. But it is a serious argument that deserves serious consideration.

Like Dov Jacobs, I am also intrigued by the OTP’s stated intention to investigate crimes committed by the CIA in Romania, Lithuania, and Poland. There is no jurisdictional problem, because those states are all members of the ICC and the the SOFA that applies to NATO states is based on shared jurisdiction, not exclusive jurisdiction. And I don’t think anything in the Rome Statute prohibits the OTP from defining a situation to include territory of multiple states. But we have definitely never seen a situation like this before.

I doubt that we will see the ICC issue arrest warrants for an American soldier or CIA operative anytime soon. My guess is that the OTP will begin with crimes committed by the Taliban, which will be much easier to investigate and prosecute than American crimes. (If only because Donald Trump might be crazy enough to actually invade The Hague if the Court ever got its hands on an American.) But this is still a momentous — if long overdue — day for the ICC. Opening an investigation that could lead to Americans being prosecuted, even if only in theory, is a remarkable act of bravery for a Court that has proven largely impotent with regard to crimes committed by government officials.

Kudos to Fatou Bensouda and the OTP.