I want to call readers’ attention to a new — and very original — article written by one of my best Melbourne students, Ilana Singer, which has just been published in Criminal Law Forum. Here is the abstract of the article, which is rather wordily entitled “Reductio Ad Absurdum: The Kapo Trial Judgements’ Contribution to International Criminal Law Jurisprudence and Customary International Law”:

Several Jewish persons designated as concentration camp guards (Kapos) during the Holocaust were subsequently tried in Israel in the 1950s and 1960s for allegedly committing grave crimes. This article examines these trial judgements and considers their significance to international criminal law jurisprudence and customary international law. First, this article will delineate the trial judgements’ purpose, relevance and previous contribution to customary international law. Secondly, a comparative narrative of the judgements with recent case law from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court will illuminate their potential contribution, specifically to the principles of modes of liability, criminal intent, and the defence of duress. The Kapo trial judgements may therefore continue to offer an extreme case example and a worthy source of common law for international criminal law jurisprudence and customary international law.

The article makes an important contribution to the regrettably scarce literature on the Kapo trials. Anyone interested in the Holocaust, the trials themselves, or war-crimes trials in general should check it out. The final draft of the article is available on SSRN here, and the article itself is available here.

As Bill Schabas noted in his recent post, the Comoros referral raises interesting questions concerning the Pre-Trial Chamber’s power to review a decision by the OTP not to open a full investigation into a situation. Most people who don’t keep a copy of the Rome Statute in their back pocket probably believe that the OTP has complete discretion concerning such declinations. In fact, that is not the case. Here, in relevant part, is Art. 53 of the Rome Statute (emphasis mine):

Article 53Initiation of an investigation1.         The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)     The case is or would be admissible under article 17; and

(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

…

3.         (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

It is clear that Comoros would have the right under Art. 53(3)(a) to ask the Pre-Trial Chamber to review a decision by the OTP not to open a full investigation into the attack on the flotilla. And that would be true regardless of the OTP’s rationale for the declination: (1) lack of evidence that the attack involved a crime within the ICC’s jurisdiction; (2) admissibility concerns — which would turn on whether crimes allegedly committed during the attack were adequately grave and, if so, whether Israel was willing and able to investigate and prosecute those crimes itself; or (3)  the interests of justice.

But here is where things get interesting. If Comoros asked the PTC to review a decision by the OTP not to investigate the attack on the flotilla, thereby triggering Art. 53(3)(a), the PTC would have only one remedy if it disagreed with the OTP’s assessment of the merits of the referral — to “request the Prosecutor to reconsider that decision.” It could not order the OTP to open a full investigation into the attack. So if the OTP reconsidered its decision and again concluded that a full investigation was not warranted, that would be the end of the story.

Art. 53(3)(b), by contrast, would appear to put the PTC in a much more powerful position…

In my previous post, I expressed my skepticism that the OTP will open a formal investigation into the situation — loosely defined — involving Israel’s attack on the MV Mavi Marmara. In this post, I want to raise two issues concerning Comoros’ referral that I find particularly troubling.

First, why is Comoros being represented by Turkish lawyers, the Elmadag Law Firm Istanbul? There is nothing wrong with a state outsourcing its legal work, of course, and most of the victims of the attack on the MV Mavi Marmara were Turkish. But if the referral is really being driven by Comoros, you’d think the government would be relying on lawyers in its Ministry of Justice — or at least on a Comorian law firm. Instead, the Comoros hired a foreign law firm that has already unsuccessfully requested, on behalf of victims and a Turkish NGO, the OTP to investigate the attack on the flotilla. (See para. 9 of the referral.) That suggests, in my view, that this new request is a “state referral” in name only — a smart litigation strategy, but a curious one.

Second, why now? The attack on the flotilla took place nearly three years ago, yet Comoros is only now referring the situation to the Court. The timing seems particularly curious given that Israel and Turkey appear to be making genuine diplomatic progress in resolving the Mavi Marmara crisis. Just a few weeks ago, Haaretz reported that Israel has agreed to pay “as much as tens of millions of dollars” in compensation to the Turkish citizens wounded and killed during the attack. This latest effort to get the ICC to investigate will not only fail, it could well harm negotiations between Israel and Turkey — especially as one of the points that apparently remains to be resolved is whether Turkey is willing to immunize the IDF soldiers involved in the attack. Indeed, a cynic might suggest that this new referral is designed to undermine those negotiations.

This referral clearly puts Fatou Bensouda in a difficult situation. My hope is that she will conclude her preliminary examination quickly and will release a detailed explain of why (I predict) the OTP is not opening a formal investigation into the attack on the flotilla. Doing so would provide Bensouda with an opportunity to affirm the Court’s potential jurisdiction over the attack — Article 12(2) means what it says about a ship qualifying as a state’s territory, although I assume the drafters of the article assumed that the OTP would investigate crimes committed at sea only as part of a larger situation — while explaining why it would not be appropriate for the OTP to investigate only one small aspect, and only one side, of the Israel-Palestine conflict.

UPDATE: Make sure to read excellent posts on the referral by Bill Schabas and Dapo Akande.

This is very interesting. The Union of the Comoros, a state party to the Rome Statute since 2002, has formally referred Israel’s attack on the flotilla that included the MV Mavi Marmara to the ICC. The question I want to address in this post is whether the Court has jurisdiction over the flotilla attack. I think it’s clear that it does — although there is at least one important wrinkle in the analysis. But I also think it’s exceedingly unlikely the OPT will open a formal investigation into the attack.

In terms of jurisdiction, the critical provision in the Rome Statute is Art. 12, “Preconditions to Jurisdiction.” Article 12(2) provides as follows (emphasis mine):

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

The bolded text is critical. The Court has jurisdiction over an international crime only if that crime was committed by a national of a state party to the Rome Statute or on the territory of a state party. Art. 12(a) makes clear, however, that a vessel registered to a state party qualifies as the territory of that state. According to the referral, the MV Mavi Marmara was registered to Comoros at the time of the attack, 31 May 2010. (Comoros provides documentation of registration in an appendix to its referral that is not available on the ICC website.) For purposes of jurisdiction, therefore, the MV Mavi Marmara does indeed qualify as Comoros territory. And that means Art. 12 is satisfied.

The wrinkle in the analysis is whether the attack on the MV Mavi Marmara qualifies as a “situation.” States are permitted to refer situations to the Court, not specific crimes. Here is Art. 14(1):

A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

Is Comoros referring a situation to the Court? All of the situations currently being investigated by the OTP — Kenya, Libya, Cote D’Ivoire, etc. — are much broader than the situation being referred by Comoros. That said, the referral is not limited solely to the attack on the MV Mavi Marmara. As Comoros’ supporting documentation notes, one other ship in the attacked flotilla, the MV Sofia, was registered to a state party — Greece. Moreover, the referral suggests that Israel’s June 6 attack on the MV Rachel Corrie, which was registered to Cambodia, a state party, should also be included in the overall situation. (The referral tries to link the attack on the flotilla to the situation in Gaza, suggesting that the attack would be part of any situation referred to the Court by Palestine. That’s clever but irrelevant, at least at this point, because Palestine has not yet ratified the Rome Statute.)

In terms of the Rome Statute’s legal requirements, I think that Comoros has indeed referred a situation to the Court. Article 14(1) speaks of situations in which “one or more crimes… appear to have been committed,” suggesting that even one crime can, in the right circumstances, qualify as a situation. (An attack with a nuclear or chemical weapon, for example.) The limited scope of the situation being referred by Comoros, therefore, should not legally disqualify the referral.

In short, the ICC does indeed have jurisdiction over the attack on the flotilla (and the later attack on the MV Rachel Corrie), so the OTP would be well within its rights to open a formal investigation into the attack. The real question is whether the OTP will open an investigation. A full answer is beyond the scope of this post, but I think it’s exceedingly unlikely. Although the limited scope of the referred situation is not legally disqualifying, I think it significantly reduces the situation’s overall gravity. To begin with, it is not clear whether any international crimes were committed on the MV Sofia or the MV Rachel Corrie (readers should feel free to weigh in), so the referred “situation” may, in practice, be limited to crimes allegedly committed on the MV Mavi Marmara. I don’t want to minimize the tragedy of nine civilian deaths, and I am no fan of determining gravity by simply counting victims, but I think the OTP would have a difficult time justifying a decision to prioritize the flotilla attack over many of the other situations it is considering, such as Colombia, Georgia, or Afghanistan.

Moreover, and more fundamentally, it does not seem sensible for the OTP to investigate one isolated component of the much larger conflict between Israel and Palestine. If the OTP ever does investigate that conflict — which, as I’ve discussed before, I don’t think it should — it needs to address all of the potential crimes, both Israeli and Palestinian. And that, I think, is the fatal flaw in the Comoros referral: it is essentially asking the OTP to investigate crimes committed by only one side of the conflict, Israel. Even if Israel’s account of the attack on the flotilla is correct and the IDF killed the civilians in self-defense, the ICC would still not have jurisdiction over the civilians’ actions — it is not a war crime to attack a soldier (though it could, of course, be a domestic crime).

Finally, a plea to the media: please do not overstate the importance of the OTP’s “decision” to open a preliminary examination into the attack on the flotilla. As the ICC’s press release notes, the OTP is required to conduct such an examination into every state referral, regardless of merit. I have no doubt that the OTP takes state referrals more seriously than referrals from individuals and human-rights groups. But that does not mean, nor does it even suggest, that the OTP will decide to open a formal investigation into the flotilla attack. Indeed, for all the reasons mentioned in this post, I think that is exceedingly unlikely.

Baher Azmy, the legal director of the Center for Constitutional Rights (CCR), has flagged a very interesting ATS case that is due to be re-argued in light of the Supreme Court’s recent — and much discussed here at Opinio Juris — decision in Kiobel. Here is CCR’s description of the case, Al Shimari v. CACI:

Al Shimari  v. CACI was originally brought against L-3 Services Incorporated (formerly Titan Corporation), CACI International Inc., and Timothy Dugan, a former employee of CACI.  CACI and L-3 Services were the U.S. government contractors responsible for interrogation and translation services, respectively, at Abu Ghraib prison and other facilities in Iraq. L-3 Services and Timothy Dugan have since been dismissed as Defendants in the case. The complaint alleges that CACI directed and participated in illegal conduct, including torture, at the Abu Ghraib prison in Iraq where it was hired by the U.S. to provide interrogation services.   The four Plaintiffs had all been held at the “hard site” in Abu Ghraib prison.

The suit, brought under the Alien Tort Statute (ATS) and federal question jurisdiction, brings claims arising from violations of U.S. and international law including torture; cruel, inhuman, or degrading treatment; war crimes; assault and battery; sexual assault and battery; intentional infliction of emotional distress; negligent hiring and supervision; and negligent infliction of emotional distress. There are also civil conspiracy and aiding and abetting counts attached to most of these charges.  Through this action, Plaintiffs seek compensatory and punitive damages.

Among the heinous acts to which the four Plaintiffs were subjected at the hands of the Defendant and certain government co-conspirators were: electric shocks; repeated brutal beatings; sleep deprivation; sensory deprivation; forced nudity; stress positions; sexual assault; mock executions; humiliation; hooding; isolated detention; and prolonged hanging from the limbs.

All of the Plaintiffs are innocent Iraqis who were ultimately released without ever being charged with a crime. They all continue to suffer from physical and mental injuries caused by the torture and other abuse.

CCR makes a strong argument in the relevant brief that Al Shimari is precisely the rare ATS lawsuit that can survive Kiobel. First, CCR argues that Kiobel‘s presumption against extraterritorial application of the ATS should not even apply in Al Shimari, because the conduct in question occurred in Iraq during the US occupation, a period in which (quoting Rasul) the US had “complete jurisdiction and control” over Abu Ghraib (recall that the Coalition Provisional Authority had “all executive, legislative, and judicial authority” over Iraq at this time), making it effectively US territory. The fact that the US was functioning as the sovereign in Iraq at the time of the relevant conduct, CCR also points out, means that allowing the lawsuit to proceed would be unlikely to result in “international discord” between the US and Iraq.

Second, CCR argues that the relevant conduct does indeed “touch and concern” the US “with sufficient force to displace the presumption against extraterritorial application.” It notes that CACI is a US corporation headquartered in the US; that CACI’s immunity from Iraqi legal process made it subject to US law; and that the conduct in question was directed from the US. It also notes that the US’s control over Abu Ghraib is — or should be — relevant to the “touch and concern” analysis.

Third, and finally, CCR claims that ATS lawsuits involving war crimes and torture should always be deemed to satisfy Kiobel, especially where — as in Al Shimari — the perpetrators of those crimes are present in the US. It argues that the potential for “international discord” is minor in such lawsuits, because war crimes and torture are types of conduct that all states are obligated to prevent and punish.

I am skeptical that CCR’s third argument will convince many federal courts post-Kiobel. Its first and second arguments, however, seem very compelling. I hope our resident and extraterritorial experts on the ATS will weigh in.

[Milena Sterio holds a dual J.D./maitrise en droit degree, and she is Associate Professor of Law at the Cleveland-Marshall College of Law, where she specializes in International Law and International Criminal Law.]

The Court of Appeal of Versailles, France, ruled last week on an important case regarding the civil liability of French companies for their role in the construction of a light rail tramway system in the Israeli-controlled West Bank.  The Versailles Court determined that the French companies’ participation in this construction project did not violate international law.  As this case has already sparked academic debate in the blogosphere (click here for excellent posts by Eugene Kontorovich and by Kevin Jon Heller), I will take this opportunity to discuss in more detail some of the legal issues involved, as well as to weigh in on the significance of the Versailles Court’s ruling.

The Jerusalem light rail system began operating in August 2011.  A French building conglomerate, Alstom Transport (as well as another company, called Veolia Transport; for the purposes of this post, I will refer to both of these as “Alstom” or “Alstom Transport” because the court’s discussion of legal issues and its ultimate ruling concerns both of these companies equally), had participated in the light rail’s construction, despite protests and political opposition to such participation in France.  The transaction, relevant for the purposes of the legal discussion below, was structured as follows: Alstom had formed an Israeli company, called Citypass, which then signed a general concession contract with the State of Israel.  Additionally, Alstom signed a series of separate construction contracts with Citypass.  Alstom was thus not a party to the general concession contract.  A pro-Palestinian group, Association France Palestine Solidarité (AFPS), filed a lawsuit against Alstom Transport in 2007 in a French lower court (Tribunal de Grande Instance de Nanterre); another pro-Palestinian organization, l’Organisation de Libération de la Palestine (OLP), later joined the lawsuit as co-plaintiff.

Plaintiffs argued that the French court should void Alstom’s construction contracts, because the general concession contract’s (between Citypass and Israel) object or purpose (“cause” in French) was illicit (because the State of Israel’s true motivation in the construction project was…

This according to the Commission of Inquiry on Syria, which has considerable investigative ability. Reuters:

(Reuters) – U.N. human rights investigators have gathered testimony from casualties of Syria’s civil war and medical staff indicating that rebel forces have used the nerve agent sarin, one of the lead investigators said on Sunday.

The United Nations independent commission of inquiry on Syria has not yet seen evidence of government forces having used chemical weapons, which are banned under international law, said commission member Carla Del Ponte.

“Our investigators have been in neighboring countries interviewing victims, doctors and field hospitals and, according to their report of last week which I have seen, there are strong, concrete suspicions but not yet incontrovertible proof of the use of sarin gas, from the way the victims were treated,” Del Ponte said in an interview with Swiss-Italian television.

“This was use on the part of the opposition, the rebels, not by the government authorities,” she added, speaking in Italian.

Recent news reports indicate that the Obama administration has been rethinking its opposition to arming the Syrian rebels. The Commission’s revelations, if true, not only complicate that idea but also deprive those who (in my view misguidedly) want to invoke the responsibility to protect to justify military intervention in Syria of one of their most potent rhetorical weapons. It’s easy to justify intervening in a civil war when one side is “good” and the other is “bad.” The situation is much more complicated, however, when a civil war involves two bad sides, even if one side — here, clearly the Syrian government — is worse than the other.

PS. As Ty McCormick points out at FP.com, the Commission’s findings would seem to validate Obama’s unwillingness to conclude — as demanded by the British, French, and Israelis — that the Syrian government has been responsible for using chemical weapons.

I’ve seen some strange reality TV in my time, but (mock) picking the next Palestinian head of state?

The hit show, called simply The President, has grown out of widespread frustration among Palestinians at their own moribund politics in the real world.

The current president of the Palestinian Authority, Mahmoud Abbas, remains in office four years after his mandate expired.

His party, Fatah, rules over the West Bank while in Gaza, Hamas, the Islamist movement labelled a terrorist organisation by many countries in the West, reigns – also years beyond the mandate it won in 2006.

The Palestinian assembly hasn’t met for many months. The roster of leaders hasn’t changed for decades.

Part Apprentice part X-Factor, viewers are gripped by a show in which they get to chose who should be their next president.

Enter Raed Othman, the director general of the Ma’an broadcast network.

“I thought of this programme because we have to show that the Palestinian people understand and want real democracy. We want elections – real elections. But if we cannot have them then we can do our own,” he said backstage during the filming of the latest episode of his show which has whittled 1,200 potential presidents to 16.

He added:  “There are a lot of people who say we don’t have leaders, so we need to prove to them that there are a lot of leaders in Palestine. We want to teach the people that democracy is possible whenever we want”.

Contestants are filmed taking on tasks – being an ambassador to a European country for a day, running a major corporation, taking questions from foreign and local journalists, even how to inspect guards of honour.

They are then put through the ringer by a panel of judges, among them leading politicians like Hannan Ashrawi, a former spokeswoman for the Arab League. Viewers combine votes sent in by text message with the judges’ marks in early rounds.

The winner doesn’t actually become President; he or she just gets a car. Then again, considering the sorry state of Palestinian politics, that’s probably a more desirable outcome.

I have no desire to get into an argument with Eugene Kontorovich about the ostensibly “landmark” decision of a French intermediate court — especially because, like him, I am far from fluent in French and the decision strikes me as quite legally complicated. But it is important to push back against claims like these (emphasis mine):

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

There are two significant problems here. First, despite emphasizing war crimes, Eugene’s post focuses solely on the Fourth Geneva Convention’s prohibition on the transfer of civilians into occupied territory; it simply ignores the Rome Statute’s very different war crime of direct or indirect transfer. Here is Art. 49(6) of GC IV (emphasis mine):

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

And here is Article 8(2)(b)(viii) of the Rome Statute (emphasis mine):

(viii)     The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.

To begin with, it’s worth noting that it is anything but self-evident that Art. 49(6) requires “actually organizing and moving population en masse (compare to individual transfers in 49.1),” as Eugene claims in the comments to his post. His analogy to the Nazis’ colonization of Poland and Ukraine — in which civilians “weren’t merely encouraged, but rounded up” — is misplaced, because unlike Art. 49(1), Art. 49(6) does not require the transfer of civilians to be forcible. Moreover, the war crime in question — Art. 8(2)(b)(viii) — even more clearly does not require “actually organizing and moving population en masse,” because it prohibits both direct and indirect transfer. Art. 8(2)(b)(viii) thus prohibits a much broader range of actions than Art. 46(1). And, of course, a violation of Art. 8(2)(b)(viii), unlike a violation of Art. 49(6), gives rise to individual criminal responsibility.

The second significant problem with Eugene’s post is that, in fact, the French intermediate court’s decision appears to say nothing at all about whether settlement activities qualify as war crimes. Given my French, I am loathe to conclude unequivocally that it does not. But the decision does not mention either the Statut de Rome or Art. 8(2)(b)(viii), nor does it mention crimes de guerre (war crimes) or transfert… indirect (indirect transfer) — two obviously critical expressions in the French version of the Rome Statute.

The French intermediate court’s decision may well be a landmark concerning corporate responsibility; I’m sure Eugene will tell us in his next post. But I think it is to safe to say that the decision tells us little, if anything, about whether Israel’s settlement activities qualify as the war crime of direct or indirect transfer of civilians into occupied territory.

Note: I have restructured the post for clarity.

New evidence that Syria has used chemical weapons against insurgents have spurred new calls here in the U.S. for military action in Syria.  Here is the LA Times (hardly an interventionist paper):

An American or multilateral response should of course be proportional to the offense. That means considering whether chemical weapons were used against civilians or militants, and whether a “whole bunch” were used, as Obama put it, or much less. But there’s no doubt that an operation to secure or destroy the regime’s chemical weapons would be consistent with this country’s stated commitment (one that all too often has not been honored) to protect civilians from the worst ravages of war.

The editorial was plainly drafted carefully with some knowledge of the legal issues that would apply to such an operation.  First of all, there is that pesky U.S. Constitution, Article I, Section 8 which many folks think grants the the U.S. Congress the exclusive power to authorize U.S. military force.  I don’t think the editorial envisions President Obama seeking congressional authorization, so it is probably assuming he would act under his inherent Commander-in-Chief powers. (When George W. Bush was president, newspapers like the LA Times used to worry about the unilateral exercise of this type of power, but these days, not so much.)

Second, there is the international law governing the use of force. I raised this question back in December, when President Obama drew his red line, suggesting that the self-defense justification under the U.N. Charter can’t work here.  This post drew two very good responses from experts in the field, one from Daniel Bethlehem (formerly the chief legal advisor to the UK’s Foreign Office) and the other from Ashley Deeks (former legal advisor to the U.S. State Department, now UVA Law Prof).

My earlier post offered a simple no-frills reading of the U.N. Charter, building on the simple no-frills reading of the U.N. Charter critics of the Iraq War were fond of making in the Bush years. This was a useful strawman, since I pointed out it would lead to a “silly result.”  Still, I am not totally sold on the more sophisticated rationales offered by Daniel and Ashley.  As far as I know, Syria has not threatened (at least recently) to attack its neighbors. I don’t count its skirmishes with Turkey, which seem in any event to have settled down. It has certainly not threatened use of chemical weapons against Turkey, Israel, or anyone other than the Syrian rebels.  I am just not buying self-defense here, unless we really are back in 2002 and President Bush’s doctrine of preemptive self-defense for WMDs has achieved international consensus.

What is it about chemical weapons that changes the legal calculus? Sure, I realize the use of chemical weapons here is a plain and blatant violation of the law of armed conflict, and really horrible in every way possible.   But as horrible as it is, I wonder why chemical weapons would be the trigger since the casualties from the non-chemical weapons in Syria has been much worse. And what is it about chemical weapons that would per se justify humanitarian intervention, while the mass bombings or killings of thousands of civilians would not?

I am guessing the answer here is going to come from a different path that has nothing (formally) to do with chemical weapons.  Since the U.S. has recognized the Syrian opposition as the legitimate government of Syria, I suppose consent for an intervention can be had without too much trouble. But, this opposition doesn’t exactly have widespread recognition, and doesn’t really control most of the country. Still, it probably is the least difficult legal path.

When President Obama said using chemical weapons would “cross a red line,” he must have had something in mind, unless it was a total bluff.  A unilateral U.S attack is very possible, and may even be desirable.  But legality is going to have to be finessed in ways that critics of the Iraq War should not be happy with.

An opinion piece in Al-Jazeera by an international lawyer who works with the Palestinians, John Whitbeck, reports some interesting comments by Fatou Bensouda about Palestinian ratification:

During a public discussion held at the Academie Diplomatique Internationale in Paris on March 20, Fatou Bensouda, the Prosecutor of the International Criminal Court, addressed the potential membership of Palestine in the ICC. During the question time, she was asked:

“If and when the State of Palestine, whose state status has now been overwhelmingly confirmed by the UN General Assembly, revives its application for ICC membership, what will be the procedure for considering its application and, if it is approved, would the court’s jurisdiction be retroactive to 2002, permitting prosecutions for crimes already committed in Palestine or by Palestinians?”

She started her reply by recalling why Palestine’s initial application was not approved — essentially, as was clear from the ICC’s response, the court’s view that it was not the role of the court, but rather the role of the UN General Assembly, to determine who was or was not a state. She then went on to say that, now that the UN General Assembly had made its determination that Palestine is a state, “the ball is now in the court of Palestine”, “Palestine has to come back” and “we are waiting for them”.

While she said, unsurprisingly, that any new application would have to be considered, there was no ambiguity or suspense as to the result of the requisite consideration. It was clear that, in her eyes, ICC membership for the State of Palestine was Palestine’s for the asking. There was even a hint of puzzlement that the ICC had not heard from Palestine subsequent to the UN vote. 

On the issue of retroactivity, she said that she did not think that any retroactivity could extend back to the birth of the court in 2002 – at most, if prior to Palestine’s formal accession to the Rome Statute, to November 29, 2012, when the UN General Assembly determined the issue of Palestine’s state status.

There is nothing particularly new here, but the retroactivity comment is useful. As a theoretical matter, I think the ICC could determine that Palestine qualified as a state prior to the UNGA resolution upgrading its status. But I think that the Court would be well-advised to take a conservative approach to Palestinian ratification — and as Whitbeck notes in his piece, the less retroactive Palestine’s acceptance of the Court’s jurisdiction (perhaps even purely prospective, from the date of ratification), the more difficult it will be for Israel to complain about it.

That said, as I’ve pointed out before, Palestine has reason to be wary of even prospective ratification. The ICC would find it much easier to prosecute Hamas’s rocket attacks on Israel than Israel’s expansion of the settlements or disproportionate attacks on Gaza.

This according to a bizarre — and bizarrely inaccurate — article in the Jerusalem Post. How many errors can you find?

An Israeli law firm on Thursday formally announced its request to the prosecutor of the International Criminal Court, Fatou Bensada, to open a criminal investigation into violations by Palestinian Authority President Mahmoud Abbas and nine members of Hamas for war crimes, crimes against humanity and crimes of aggression.

[snip]

After years of public threats by the PA to file such a request or case against Israeli soldiers and political leaders, an Israeli lawyer, Mordechai Tzivin, was the first to strike, filing a complaint and request for an investigation.

The request is unprecedented not only because it involves the Israeli-Palestinian conflict and is against “Palestine” as a state and its leaders such as Abbas and nine Hamas members, but also because it is filed by an individual law firm as opposed to by a state.

Generally speaking, the ICC can only hear cases filed by states.

However, as the Tzivin wrote in his request to Bensada, the ICC prosecutor has a little known and almost entirely unused power to essentially self-open an investigation and self-file an indictment against individuals for international law violations.

The power, referred to as the prosecutor’s “propio motu” power, is generally not used by the prosecutor because it requires special approvals from the ICC itself and leaves the prosecutor’s office exposed for using an extraordinary measure not requested by any state.

[snip]

Asked whether he had coordinated his move with Israeli officials, Tzivin said he had spoken with top legal officials in all of the key ministries as well as a top official in the security establishment.

Despite Israel’s official position that there is still no state of Palestine, Tzivin said that he was either told that he had their blessing or that at least no one told him to hold back.

Here’s my count: (1) the ICC does not yet have jurisdiction over the crime of aggression; (2) there is nothing remotely unprecedented about a private individual asking the Court to investigate a situation; (3) it is not true that, “generally speaking,” the Court can hear only cases brought by states; and (4) the Prosecutor’s proprio motu power is not remotely “almost entirely unused” (Kenya, Cote D’Ivoire?).

Did I miss any?