Archive of posts for category
Middle East

The Advantage for Palestine of a Slow Preliminary Examination

by Kevin Jon Heller

Nearly everyone treats Palestine’s membership in the ICC as a done deal; after all, the UN Secretary-General (UNSG) has accepted Palestine’s accession to the Rome Statute and the OTP has publicly stated that “since Palestine was granted observer State status in the UN by the UNGA, it must be considered a ‘State’ for the purposes of accession.” But neither the UNSG nor the OTP has final say over whether Palestine qualifies as a state; as Eugene Kontorovich, my friend and regular Israel/Palestine sparring partner, has repeatedly pointed out on Twitter (see here, for example), statehood is a legal issue that the ICC’s judges will eventually have to decide.

Unlike Eugene, I would be very surprised if the judges second-guessed the UNSG and the OTP and held that Palestine does not qualify as a state. But it’s certainly possible. So here is something for Palestine to consider: because the ICC’s judges cannot make a determination concerning Palestine’s statehood until the OTP has decided to formally investigate the situation, the longer the preliminary examination takes, the longer Palestine will have to make it more difficult for the judges to decide against it.

I don’t want to get into too much detail about the relevant provisions in the Rome Statute; a brief summary should suffice. Art. 15, which concerns proprio motu investigations — the current situation regarding Palestine, because the OTP treats an Art. 12(3) declaration as a request for an Art. 15 investigation — does not permit the Pre-Trial Chamber (PTC) to determine whether a situation “appears to fall within the jurisdiction of the Court” until the OTP has asked it to authorise a formal investigation. Art. 18, which in certain circumstances requires the OTP to defer to state investigations of specific suspects, also does not apply until the OTP has decided to formally investigate (whether proprio motu or on the basis of a state referral). And Art. 19, the basic complementarity provision, does not permit a state to challenge admissibility until there is a specific case pending and does not permit a suspect to challenge admissibility (which includes jurisdiction) until a warrant for his arrest or a summons for his appearance has been issued — both of which occur subsequent to the opening of a formal investigation.

There is, in short, only one party that can ask the PTC to decide a jurisdictional issue prior to the commencement of a formal investigation: the OTP itself. That’s Art. 19(3). And it’s safe to say that the OTP won’t ask the PTC to determine whether Palestine qualifies as a state before it has to.

That means, of course, that it could easily be years before the PTC gets to weigh in on the issue of Palestinian statehood. Why is that a good thing for Palestine? Most obviously, because it gives it more time to get its statehood ducks in a row — acceding to more international conventions, resolving internal political differences, seeking additional recognitions of Palestine as a state, etc. More importantly, though, it gives Palestine time to become an integral member of the Court, thereby increasing the institutional pressure on the PTC to conclude that it is a state. Assume that the OTP takes four years to open a formal investigation, which would be relatively quick by OTP standards. Palestine could — and should! — take advantage of that gap to pay dues each year to the ICC; to attend the annual sessions of the ASP (as it did as an observer in the 13th Session) and participate in its intersessional work; to nominate Palestine’s delegate to the ASP for a position in the Bureau; and (better still) to nominate a Palestinian as a judge. After four years of such involvement, it would be very difficult for the PTC to conclude that Palestine was not a state, given that such a decision would force the ASP to expel the Palestinian delegate, (presumably) refund four years of Palestine’s dues, and perhaps even unseat a Palestinian judge.

I’m sure some readers — particularly those who believe that Palestine cannot qualify as a state as long as Israel illegally occupies its territory — will find my strategy cynical. Perhaps it is — but it would hardly be the first time a state acted strategically with regard to an international organisation. After all, Israel is the culprit-in-chief in that regard; its favourite strategy, which is the height of cynicism, is to refuse to cooperate with an international investigation and then dismiss the results of that investigation as “one-sided” and thus biased. Moreover, I use the term “state” with regard to Palestine deliberately; contrary to the view of many pro-Israel commentators, the Montevideo criteria do not remotely doom Palestine’s claim to statehood. On the contrary, I believe Palestine has legally qualified as a state under those criteria for many years. But that is a subject for another day. (Interested readers can start with this brief, written by Errol Mendes.)

For now, Palestine needs to take full advantage of its admittedly provisional membership in the ICC. As a wise man once said, if it walks like a duck and quacks like a duck…

John Bellinger’s Op-Ed on ISIS and the ICC (Updated)

by Kevin Jon Heller

The op-ed, which appears in today’s New York Times, argues that the ICC is the most appropriate venue for prosecuting ISIS’s many international crimes. I have great respect for John, who is unique among former high-ranking US government officials in his willingness to defend the ICC, but the op-ed makes a number of arguments that deserve comment.

It certainly makes more sense for the court’s prosecutor to investigate the Islamic State than to investigate the United States or Britain for treatment of detainees or Israel for its handling of last year’s Gaza conflict, as some activists have called for.

There is no question that ISIS is responsible for horrific international crimes that deserve to be prosecuted. But does it “certainly make more sense” for the ICC to prosecute those crimes than British torture in Iraq, US torture in Afghanistan, and Israel’s vast array of crimes against Palestinian civilians in Gaza? That’s not self-evident. Readers know my skepticism toward the ICC investigating the situation in Palestine, but the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable — it would get the ICC out of Africa; it would affirm that torture, a crime that rarely involves a large numbers of victims, is unacceptable and deserving of prosecution; and — of course — it would demonstrate that no state, no matter how powerful, is immune from international criminal justice.

At a minimum, the Security Council should ask the court to investigate the numerous offenses committed by the Islamic State that fall within the court’s mandate.

[snip]

A Security Council request would be necessary because Iraq and Syria, where the Islamic State is operating, are not parties to the Rome Statute (the treaty that created the court) and are not otherwise subject to the court’s jurisdiction.

A Security Council referral is not actually necessary, because the ICC’s jurisdiction is not simply territorial. The Court can also prosecute any international crime committed by a national of a state that has ratified the Rome Statute. Many ISIS leaders are nationals of ICC member-states — including Jihadi John, who is a UK national. So the ICC could prosecute those leaders tomorrow if it had them in custody. Indeed, Fatou Bensouda has already mentioned the possibility of such nationality-based prosecutions.

Moreover, a Security Council referral may be more trouble than it’s worth. John himself notes a major problem: if the territorial parameters of any such referral exposed members of the Syrian government to ICC jurisdiction, Russia and/or China would almost certainly veto the referral. And what if the referral exposed Syrian rebels to ICC jurisdiction? I can’t imagine the US, France, and the UK would be too keen about that — not least because it would provide the ICC with a backdoor to prosecuting their nationals for aiding and abetting rebel crimes.

The United States has reason to be concerned about inappropriate and politicized investigations of the United States and Israel.

I don’t see why, given that the ICC has not opened a formal investigation in Afghanistan despite having examined the situation for eight years and has only had jurisdiction over Israel’s crimes for a few months. Moreover, John never explains why any ICC investigation of the US or Israel would necessarily be “inappropriate and politicized,” given that both states have quite obviously committed crimes within the Court’s jurisdiction. Why should the ICC only prosecute the US’s enemies — never its friends, and certainly never the US itself? Americans and Israelis might like that idea, but I imagine few others would accept it.

[B]ut the International Criminal Court still has an important role to play in investigating and prosecuting acts of genocide, war crimes and crimes against humanity — all of which have reportedly been committed by the Islamic State.

I’m not so sure, at least in the context of ISIS — and this is my basic issue with John’s op-ed. Does the ICC really need yet another situation to investigate, given its already overtaxed resources? And do we really want the Security Council to refer the ISIS situation, given that there is almost no chance it will finance the resulting investigation? (See, for example, the failed Syria resolution.) Moreover, why should the ICC prosecute ISIS leaders when states like the US, the UK, and Japan (and Germany, and France, and…) are just as capable of prosecuting those leaders themselves — if not more so? They have investigative and prosecutorial resources the ICC can only dream of. So why should the ICC do their work for them?

I’ve said it before, and I’ll say it again: we need to stop assuming that the ICC is always the best venue for prosecuting international crimes. It’s not. It’s a weak Court with more failures than successes on its ledger. Even under ideal circumstances — unlikely to exist — it would never be able to prosecute more than a handful of ISIS leaders. And if past cases are any indication, there is no guarantee those prosecutions would lead to convictions. So if states really want to bring ISIS to justice, the solution is there for all to see.

They should do the job themselves.

NOTE: I am not implying that John invented the idea that the ICC should investigate ISIS crimes. As he notes in his op-ed, the new UN High Commissioner for Human Rights has previously suggested the same thing. But that in no way changes my position — and I think it’s unfortunate that High Commissioners see the ICC as the first resort instead of the last, even in situations (such as ISIS) where, unlike states, the ICC has no ability to effectively investigate. The previous High Commissioner exhibited the same problematic tendency, calling on the Security Council to refer Syria to the ICC despite the fact that the Court would be powerless to investigate Syrian and rebel crimes as long as the conflict continues. Security Council referrals only make sense after a conflict has ended — and not even there, unless the Security Council is willing to give its referrals teeth by funding the subsequent investigation and punishing states for not cooperating with the ICC, which it has shown no interest whatsoever in doing. Do we really need more failed ICC investigations like the one in Darfur?

Guest Post on the ICC and Palestine at Justice in Conflict

by Kevin Jon Heller

My contribution to the symposium is now available. Here is the introduction:

I want to start with a prediction, one I’ve made before and still subscribe to: the ICC will never open a formal investigation into the situation in Palestine. People of all political persuasions seem to think that the ICC is somehow eager to leap into the most politicised conflict of the modern era. I disagree, not because the situation doesn’t deserve to be investigated – I think it is one of the gravest situations in the world – but because I don’t think we take the ICC’s institutional interests into account nearly enough when we prognosticate about what it might do. And I see very little upside for the ICC in opening a formal investigation.

My thanks to Mark Kersten for posting it — and to Kirsten Ainley for organising the roundtable at the LSE on which it’s based.

Israel’s “Defenders” Show Their True Colors Regarding Academic Freedom

by Kevin Jon Heller

From April 17-19, the University of Southampton is scheduled to host a conference entitled “International Law and the State of Israel: Legitimacy, Responsibility and Exceptionalism.” As the title indicates, the conference was always going to be controversial. (Full disclosure: I was originally scheduled to present at the conference, but pulled out a couple of weeks ago because I simply didn’t have time to prepare anything.) Indeed, the conference webpage contains the following statement by the organisers:

The conference “International Law and the State of Israel: Legitimacy, Responsibility, and Exceptionalism” at the University of Southampton on April 17-19th will engage controversial questions concerning the manner of Israel’s foundation and its nature, including ongoing forced displacements of Palestinians and associated injustices. The conference will examine how international law could be deployed, expanded, even re-imagined, in order to achieve regional peace and reconciliation based on justice.  The conference is intended to broaden debates and legal arguments concerning historic Palestine and the nature, role, and potentialities of international law itself.

Participants will be a part of a multidisciplinary debate reflecting diverse perspectives, and thus genuine disagreements, on the central themes of the conference. Diligent efforts, including face-to-face meetings with leading intellectuals in Israel, were made to ensure the widest range of opinions possible. Those who chose to abstain, however, cannot derail the legitimate, if challenging, academic discussion the conference will inspire.

The conference organizers are grateful to the University of Southampton for ensuring academic freedom within the law and for taking steps to secure freedom of speech within the law. The conference organizers accept that the granting of permission for this event does not imply support or endorsement by the University of any of the opinions to be expressed at the conference.

The final paragraph is more than a little ironic — because earlier today the University of Southampton caved to pressure from self-appointed right-wing “defenders” of Israel and withdrew its permission for the conference. To be sure, the University did not have the integrity to admit the real reason why it was withdrawing permission. Instead, it fell back on that time-worn excuse, “security.” (Read: Israel’s right-wing “defenders” promised to disrupt the conference if the University didn’t cancel it.) The organizers’ statement in response makes clear just how pathetic that excuse really is:

A number of risks have been identified by the police but it is very clear from the Police’s report that they are more than capable of policing the conference and ensuring the safety of university staff, speakers, delegates, students and property. However, instead of accepting this at face value the University decided to focus on the risks identified by the Police and ignore their statement about their ability to police the event – we were told the Police will never say in writing they are not able to police an event, in other words the University had doubts about the Police’s ability to do their job of upholding the law! The university claims that the Police are not able or unwilling to become too involved because the University is ‘private property’, which we find astonishing. The University is a public space, it was established by a Royal Charter and it has public roles and duties including upholding freedom of speech and to that extent it should be able to resort to police assistance in order to curb security risks to enable it to fulfil its legal obligation to uphold freedom of speech. If this is not done, if commitment to safety is not undertaken by the police, freedom of speech becomes an idle worthless notion. At no point were we given an indication that the University has indeed allowed itself the time to seek viable police assistance to supplement its own resources. Additionally, and unconvincingly, the University claims that it is now too late to put proper security arrangements in place. We do not accept that in any way as there are still 18 days left before the conference.

It will be a great shame if the conference does not go ahead as planned, whether at Southampton or at another venue. But the University’s decision does have a silver lining: it makes clear the contempt that Israel’s right-wing “defenders” have for academic freedom. They love to invoke academic freedom in the context of academic BDS, where the freedom in question is that of Israeli academics. (Regular readers know that I oppose academic BDS, and I voted against it recently at SOAS.) But when academic freedom means permitting criticism of Israel — well, then censorship is just fine. Consider the following…

Symposium on Palestine and the ICC at Justice in Conflict

by Kevin Jon Heller

Just in time for the activation of Palestine’s membership in the ICC, over the next few days Mark Kersten’s blog, Justice in Conflict, will be featuring posts by all of the people who participated in last week’s roundtable at the LSE — Mark, me, Kirsten Ainley, Dov Jacobs, Chantal Meloni, Leslie Vinjamuri, and Michael Kearney. Mark’s introductory post can be found here. I will post a link to a podcast of the LSE event as soon as it’s available. My contribution to the symposium should be up tomorrow or the next day.

Also, a hearty congratulations to Dr. Kersten, who has just been awarded a two-year SSHRC postdoc at the University of Toronto! London will miss him.

Responding to Rogier Bartels About Perfidy at Just Security

by Kevin Jon Heller

My friend Rogier Bartels published two excellent posts at Just Security over the past few days (here and here) in which he argues that it is inherently perfidious to launch an attack from a military object disguised as a civilian object. Just Security has just posted my lengthy response. Here is how I conclude the post:

At the risk of sounding like an armchair psychologist, I’d like to suggest an explanation for why an excellent scholar like Rogier adopts a theory of perfidy that, in my view, cannot be correct. The problem, I think, is the nature of the attack that gave rise to our lively debate: a bomb placed in a privately-owned car in the middle of a generally peaceful city. Such an attack simply doesn’t seem fair; of course a “combatant” — even a high-ranking member of Hezbollah — is entitled to feel safe walking by a car on “a quiet nighttime street in Damascus after dinner at a nearby restaurant,” as the Washington Post put it. Indeed, like Rogier, I am skeptical that IHL even applied to the bombing.

But just as hard cases make bad law, unusual situations generate problematic rules. Once we try to apply Rogier’s theory of perfidy to the “normal” combat situation, its plausibility falls apart. Although the same military/civilian distinctions apply, those distinctions take on a very different sheen during street-by-street, house-by-house fighting in a city virtually destroyed by armed conflict. You expect to be able to walk by a Mercedes in a Damascus suburb without being blown up, even if you are a soldier; but if you are a soldier in downtown Fallujah, the last thing you are going to do is walk casually past that burned out, overturned Mazda sitting in the middle of the city’s main road. Yet that Mazda is no less a civilian object than the Mercedes, and as long as IHL applies there is no legal difference between planting a bomb in the Mazda and planting a bomb in the Mercedes. Either both car bombs are perfidious or neither of them is. And it is very difficult to argue that planting a bomb in a burned-out, overturned Mazda in downtown Fallujah — or placing an ambush behind it, or using it for cover, or blending into it with camouflage, or placing a landmine near it — is an act of perfidy.

I share Rogier’s concern with the Israel/US operation that killed the Hezbollah leader, and I understand his unease — from a civilian protection standpoint — with many of the kinds of attacks I’ve discussed in this post. Any proposal to expand the definition of perfidy, however, must acknowledge the (ugly) reality of combat, particularly in urban areas. The general distinction between perfidy and ruses of war is a sensible one, even if we can — and should — debate precisely where the line between the two is drawn.

I hope readers will wander over to Just Security and read all three posts — as well as the original discussion that led to them.

Iran Responds to US Senators’ Letter, Shows Why Congress Should Be Involved in the First Place

by Julian Ku

I am totally swamped with various overlapping projects right now, so let me procrastinate anyway by noting that Iran took my suggestion and sent a response to the “open letter” sent them from 47 US Senators yesterday.  The letter actually shows why the President, and not the senators, is the one who is operating on the edge of constitutionality.

In the letter, Iran’s foreign minister suggested the senators were violating the US Constitution’s allocation of foreign policy conduct to the President.

[Foreign Minister] Zarif “expressed astonishment that some members of Congress find it appropriate to write leaders of another country against their own president,” a press release explained. “It seems that the authors not only do not understand international law, but are not fully cognizant of the nuances of their own Constitution when it comes to presidential powers in the conduct of foreign policy.”

As I explained yesterday, I don’t think the letter is a  violation of the Constitution, although there is a closer question under the much-cited, never used Logan Act.

What I found more interesting is the Iranian FM’s suggestion that a future president who withdrew from or amended the agreement would violate international law. This statement illustrates why I think Congress should be included in this process in the first place.

[Zarif] warned that a change of administrations would not relieve the U.S. of its obligations under an international agreement reached under the previous administration. Any attempt to change the terms of that agreement, he added, would be a “blatant violation of international law.”

“The world is not the United States, and the conduct of inter-state relations is governed by international law, and not by U.S. domestic law,” Zarif explained. “The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfil the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.”

Zarif is no doubt right as a matter of international law (assuming there will be a binding agreement as opposed to a mere political commitment).  But think about it.  Why should a president be allowed to commit the US to binding obligations under international law that neither Congress nor a future President can withdraw from without violating international law?  Shouldn’t such a president be required to first get approval from Congress before committing the United States to this path? Isn’t that why there is a Treaty Clause in the first place? At the very least, doesn’t it make constitutional sense for Congress to have a right to weigh in?

So while lefty blogs and lefty senators are having a field day accusing the Republican senators of violating the law or exaggerating Jack Goldsmith’s pretty minor quibble with the letter’s use of the term ratification, they are ignoring the real constitutional question here.  The President seems ready to commit the United States to a pretty serious and important international obligation without seeking prior or subsequent approval from Congress.  And foreign countries are ready to denounce the United States if, say Congress, decides to pull out or refuses to carry out those obligations. Even if the President’s actions are good policy, it seems like a political and constitutional train wreck that could easily be avoided if the Administration simply agreed to send the Iran deal to Congress.

Way back in 2008, leading scholars like Oona Hathaway and Bruce Ackerman repeatedly denounced President Bush for considering executing a security agreement with Iraq without Congress. Where are the academic defenders of Congress’s foreign policy prerogatives now?

47 US Senators Send Iran’s Leader an Unnecessary(?) Primer on How US Constitution Works

by Julian Ku

Most of the US Senate’s Republican membership has signed an open letter to Iran’s leaders “informing” them about the nature of the U.S. constitutional system with respect to international agreements.   It is actually a very accurate statement of US foreign relations law, even if it is a little strange and potentially intrusive into the President’s foreign affairs power. It may also concede more than the Senators may have wanted to on the constitutionality of the proposed Iran deal.

Here are the key paragraphs in the letter;

[U]nder our Constitution, while the president negotiates international agreements, Congress plays a significant role in ratifying them.  In the case of a treaty, the Senate must ratify by a two-thirds vote.  A so-called congressional-executive agreement requires a majority vote in both the House and the Senate….Anything not approved by Congress is a mere executive agreement.

What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.  The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

OK, there is nothing here that is incorrect, as a matter of law, and this is not surprising since the letter was apparently drafted by Sen. Tom Cotton of Arkansas, a very smart and knowledgeable constitutional lawyer. The letter does raise a couple of important constitutional issues.

First, a letter sent directly to a foreign leader on a matter which is currently under negotiations with the U.S. could be criticized as an unconstitutional interference in the President’s inherent  power to conduct foreign affairs.  Certainly, it is very unusual.  Imagine if the U.S. Senate had sent a letter to the Iraqi leaders in 2007-8 that Congress was going to have to approve any US-Iraqi alliance or defense cooperation treaty.

In any event, I actually think this letter skirts, but manages to avoid, any unconstitutional interference.  Phrased merely as a letter “bringing attention” to the U.S. constitutional system, the letter does not state U.S. policy, nor does it make any statement on the question of policy.

The most troubling line of the letter is: “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.  ” But this is indisputably correct as a matter of law.

Maybe the strongest criticism of the letter is simply that it need not have been sent.  The only possible purpose of sending the letter is to discourage the Iranians from actually concluding an agreement, since presumably the Iranians can read US foreign relations law textbooks (or even blogs) without the help of the US Senate.  But then again, maybe they don’t. If the Iranians are somehow deluded into thinking a sole executive agreement could survive a Republican president in 2016, it is probably best for all concerned that they know the truth now.

Second, and on the other hand, I do wonder if the senators here may have conceded more than they wanted to here.  There is still a plausible constitutional argument out there that President must submit the Iran nuke agreement to either the Senate (as a treaty) or to Congress as a whole.  The letter all but concedes that the President can indeed conclude a sole executive agreement with Iran on this matter.  Doesn’t this undercut the Senators’ argument that they should, indeed, must have their say on this deal?  (also, they only got 47 votes! There are 55 Republican senators, plus some Democrats who also oppose the Iran deal. Do they not agree with this statement of law?).

In any event, I can’t recall a letter of this sort from recent (or even older) U.S. history.  Readers should feel free to add examples in the comments.  I wonder if the Iranians will send a letter back?

Iran Nuke Review Act Does Not Actually “Require” a Vote of Congress

by Julian Ku

According to the WSJ,  the “Iran Nuclear Agreement Review Act”  that I discussed earlier this week may already have 64 declared supporters in the Senate.  This means that supporters are only 3 votes shy of enough to override President Obama’s veto of this bill.

Since the bill might actually become law, it is worth reminding supporters of the bill that it does NOT guarantee that Congress will vote on the Iran nuke deal.  This might be confusing, but as I argued earlier this week, the proposed law would only suspend the lifting of sanctions for 60 days.  During that 60-day period, Congress could vote on the bill, or it could choose not to do so.  Silence would allow the sanctions to be lifted after the 60 days.  So it is not quite right to say, as the WSJ does, that the proposed law would “require a vote of Congress.”  Still, it is quite likely that Congress would vote, and at least this bill would give them the opportunity to do so.

If the bill passes, and a veto fight breaks out, it will be worth considering whether President Obama invokes any constitutional arguments to justify his position.  I believe that President Obama’s threatened veto reflects a robust and unilateralist conception of the President’s power to make sole executive agreements without Congressional approval.  It will be interesting to see if he defends his veto on constitutional grounds.

Guest Post Part II: The Chilcot Inquiry–The Publication Saga of an Official History

by Charlotte Peevers

[Charlotte Peevers is a Lecturer in Law at the University of Technology, Sydney and author of ‘The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law‘ (Oxford University Press: 2013). Part one of this guest post can be found here.]

Legal-Political Authority and International Law

Any review of the inquiry hearings would be incomplete without a word from Tony Blair. In this extract from his so-called ‘recall’ to the inquiry on 21 January 2011 Sir Roderick Lyne asks him about his statement to the House of Commons in February 2003. The statement referred to the apparent exercise of an “unreasonable veto” in relation to a second resolution – that is, beyond 1441 – a subject upon which Lord Goldsmith had already advised was not a justifiable legal position to take against the French or Russian postures within the Security Council.

Video clip begins at 109.26 and ends at 116.05

Transcript (line 11 page 71 – line 6 page 75)

In this extract, Blair’s rather tortured distinction between legal and political arguments highlights a particularly interesting aspect of the relationship between international law and politics. His is an attempt to parse political and legal authority, to justify his deployment of legalistic language as a pure political exercise that was not only permissible, but that his audience would have appreciated and known was not premised upon legal authority. This parsing of authority highlights the difficulty faced by those who might oppose government policy or at least question its bases: without the contemporary knowledge as to the legal advice proffered by government experts, there is no way of holding statements such as Blair’s to account. The ambiguity of his articulation – that encompasses the possibility of legal justification, but not necessarily being explicit about it – leaves him able to claim ex post facto that he was merely making a political point. If this was interpreted the ‘wrong way’ by his audience, or indeed by Sir Roderick Lyne in his questioning, that that was not his fault, nor was it his intention.

In addition, this parsing can be seen as an attempt at making a representation of legal authority in the absence of having political authority. In other words, in the absence of majority public support – a democratic mandate – for using force without UN backing. And this is particularly problematic when, as Roderick Lyne seeks to point out, the government had been advised explicitly that there was no legal authority for such a claim. Blair’s evidence therefore seeks to claim an excessive sovereign right to wage war on the premise of an internationalized legal authority, avoiding the strictures of democratic mandates, or indeed international authority vested in the UN Security Council’s authorization of force. The boundaries of that legal authority were, at the time, entirely subject to secrecy and could therefore be publicly represented in any way deemed justifiable by the government; and then later as merely a political argument that did not in fact rely upon legal authority!

The Chilcot Inquiry as International Legal Archive

These two brief extracts from the present Chilcot Inquiry archive illustrate the wealth of material that can be analysed now, regardless of when the final report will be published together with the promised publication alongside it of 1,500 or so declassified documents. (See the video of Sir John Chilcot’s evidence before the Foreign Affairs Committee on 4 February 2015 at 27.05 where he discusses the publication of declassified material alongside the final report, available here.) Perhaps the most important thing we have learnt is that there is still a huge amount to learn from secrecy. Secrecy as a structural, structuring force on the generation of public policy and the place of law – not just international law – in the exercise of sovereign power.

In addition, we have learnt more of the ‘inner life’ of international law – how international law actually works in policy-making. It exists not just in formal sources, or texts, but behind closed doors, in corridors of extreme power. It is given life in memoranda, letters and meeting records. In order to understand how international law works, we need to consider the processes of advice-giving, the means by which decisions are taken in government – sofa government, ad hocism, inner war cabinets, limited disclosures to Cabinet and to Parliament, and the like – and the production of a government archive.

The archive disclosed through the Chilcot Inquiry, like any archive, is already constructed, is incomplete and partial. Reflecting, by way of comparison, on the Suez Crisis archive is particularly instructive (see Charlotte Peevers The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law (OUP: 2013): despite the existence of an Israeli copy of the Protocol of Sèvres – the document proving collusion and that the Anglo-French occupation of the Suez Canal in late October 1956 was a pretext for invading Egypt following the nationalization of the Suez Canal Company – it has never surfaced in the British archive, in any form. Collusion was suspected for many years before the Israeli copy finally surfaced, but was always denied by the British government and no amount of archival material could have resolved the question of collusion one way or another – evidence had been destroyed and all reference to it expunged from the records (including presumably the direction that all reference be expunged!).

Despite the ‘constructedness’ of any archive, the ability to rake back over documents and oral evidence in relation to the Iraq War ought to be considered a hugely rich potential source for us as international lawyers, and of course as historians and political scientists. The danger with the saga generated over the publication of the Chilcot Inquiry report is that in all the dramatic distraction we miss the opportunity for reading the current archive for ourselves. An official history, however critical or otherwise, will act as the final word over the Iraq Affair, framing our future treatment of the archive and guiding our interpretations of it, whether in opposition or affirmation of the Inquiry’s final conclusions.

Again, the Suez Affair gives pause for thought. There was never an official inquiry into or official history of the Suez Crisis, its scandalous nature rumbling on in Parliament, behind-closed-doors in Whitehall, and in the public imagination without any final word being drafted. Whilst the absence of any holding to account of Anthony Eden’s government is not necessarily something to celebrate, one lesson that might be learned is this: an official history would not have been able to substantiate collusion – which went to the very heart of the question of accountability. In the absence of an official accounting, Suez has become the mythologized nail in the coffin of the British Empire, a supreme act of folly that was, unquestionably, illegal. We can continue to discover the lessons to be learned from Suez, particularly in relation to how international law was used to justify military action, by reading the archive for ourselves. I hope we will continue to quarry the mine of material produced by the Inquiry process, going beyond the limiting – and limited – question of whether the Iraq War was legal or illegal, instead proposing unofficial histories of the place of international law in domestic and international politics.

Guest Post Part I: The Chilcot Inquiry–The Publication Saga of an Official History

by Charlotte Peevers

[Charlotte Peevers is a Lecturer in Law at the University of Technology, Sydney and author of ‘The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law‘ (Oxford University Press: 2013).] 

In the past few weeks we have learned, though we have suspected for quite some time, that the Chilcot Inquiry will not be in a position to publish its final, wide-ranging, ‘lessons learned’ report until after the next General Election, in June 2015. Media commentators and numerous Members of Parliament have decried the “scandalous” delays that have plagued publication, blaming at turns the civil service, Tony Blair, and/or the American Administration.

But this drama over publication delay – the latest in the saga of producing an official history of the Iraq War that has played out in the media – is something of a distraction from the real value of the Chilcot Inquiry, at least for scholars and students of international law. I argue that through its process of declassifying previously secret documents, holding public, oral hearings and receiving written testimony, the Inquiry has already informed our understanding of the operation of international law in the justification to use force.

During the course of oral evidence between 2009 and 2011 we heard more international legal debate than ever before, certainly than during the original debates of 2002/2003. We also heard about what I have come to think of as the ‘inner life’ of international law: revelations of back room disagreements – jousting, even – between figures such as Sir Michael Wood, then Senior Legal Adviser at the Foreign & Commonwealth Office and Jack Straw, then Foreign Secretary, over the “vagueness” and consequent interpretive latitude of international law. We also saw the careful, self-conscious production of numerous memos between the Foreign Office, Attorney General’s Office, Ministry of Defence and No 10. And of course memos within those departments, documenting and recording for history the disagreements amongst officials and politicians. In addition we saw how law, evidence and intelligence related to policy demands.

The production and accessibility of this rich textual and testimonial archive has already generated a map for us to navigate how international law and its users – including advisers, government policy-makers, and politicians – actually work. How did people such as Sir Michael Wood conceive of their role as expert authority on the interpretation of the prohibition on the use of force? How did politicians such as Jack Straw or Tony Blair view and use international law as a body of rules to justify their commitment to military action? And how did these politicians and their policy officials interact with in-house experts such as Wood, or his deputy Elizabeth Wilmshurst, not to mention the government’s chief legal adviser, the Attorney General ,Lord Goldsmith?

The rich archive – all available at http://www.iraqinquiry.org.uk/ – fleshes out a detailed map of how international legal rules are navigated, are traced into routes for action or inaction, or demarcate the boundaries of certain policy decisions. This map allows us to traverse beyond the restrictive self-imposed boundaries of strict doctrine or bare textual analysis of the prohibition on the use of force, and instead navigate the extent of international law’s scope, impact on and relationship with domestic and international politics.

As scholars and students of international law we ought not be deterred from engaging with an already rich archive created by the Inquiry simply because there will be yet more delay in the publication of the final report.   Indeed, we ought to revel in the exploratory freedom that delay provides: there is yet to be a final word on the Iraq War, evidence is yet to be marshaled to support the drawing of particular conclusions or interpretations. This continued delay is, therefore, a prime opportunity to read and digest the current raw material produced through the inquiry process. Two examples from the oral and documentary evidence illustrate the richness of the existing archive.

Lawyers and International Law

To give a fuller sense of some of the rich detail of the ‘inner life’ of international law the following links detail an extract from Sir Michael Wood’s evidence to the Inquiry:

Video clip (begins at 53.10 and ends at 62.35)

Transcript (line 16 p28 – line 20 p.34)

First off, Wood’s comments are so interesting for a range of reasons which are not necessarily limited to international law. For instance, the comment that Jack Straw was used to pushing the boundaries of law whilst at the Home Office, even when faced with clear legal advice that what he was doing went against existing legal opinion and precedent domestically, tells an intriguing, partial tale of the political relationship to law, to courts and to cases more generally. This tells us something incredibly rich and perhaps disturbing about the way law works, stripping away the mythologised notion of a separation of powers, and making us think more about the institutional deference manifest in courts faced with government policies and actions that run counter to existing law. And that is just an example from the domestic realm.

For scholars and students of international law, Wood’s comments are particularly revealing when we consider the role of a government legal adviser – acting much in the way that Harold Koh and the transnational legal process school might envisage – as a benign (or enlightened) adviser to princes. Wood considers his overriding duty to international law in the absence of a court. Wood expresses a deep commitment to international law precisely because of its horizontal interpretive nature; it is for government legal advisers to demarcate the acceptable boundaries of policy versus international law, providing apparent ‘clear bright lines’ beyond which policy cannot traverse without incurring international illegality.

Not so, according to the government, if instructing Independent Counsel. In a document declassified and released by the Attorney General’s Office dated 13 March 2003 (ie on the eve of formal invasion) the legal secretary to the Attorney General, David Brummell, considered the difficulty with the government’s legal position – in particular highlighting the position vis à vis revival in the absence of a further resolution and therefore on the sole basis of Security Council Resolution 1441 – and advised that the position would have to be bolstered by obtaining formal legal opinion of Christopher Greenwood, David (he meant Daniel) Bethlehem, and Sam Wordsworth – three of the leading international lawyers at the English bar. (Bethlehem was to go on to be Wood’s successor at the FCO.) It seems that faced with intransigence from in-house Counsel, the government wanted to turn to the independence of senior international lawyers who they felt, given their lack of ties to government policy-making, might have been more able to express an opinion, if asked, in support of the government legal position (in the event none of the three were in fact approached to provide a legal opinion).

In these contrasting roles we see the distinction between advisory capacities and advocating positions: Wood was clearly deeply uncomfortable with the prospect of advocating on behalf of government in relation to a legal position he could not support, because he held a special position as expert adviser to government, acutely aware of the need to police the boundary of forceful intervention. Whereas independent Counsel could more freely take on the role of advocate for government as would be taken on for any other client looking for a legal position to support its policy choices.

Interestingly, we also learn from Wood’s evidence that the Attorney General appeared to take on both of these distinct roles at different times: he adopted an advisory role very early, though was careful to avoid documenting this in the immediate run up to war in the Autumn of 2002 (presumably to avoid hamstringing any later need to justify government policy in legal terms); but when war became inevitable, in around February 2003, he moved to advocate’s role, documenting the possible legal justifications that could be made in support of the government’s use of force.

In addition, the disagreement evidenced in the oral testimony between Sir Michael Wood and Jack Straw is particularly enlightening for us if we are to try to interpret an archive that is already self-consciously (re)constructed. We learn from Wood that Straw was careful to document his insistence on the ambiguity of international law and that reasonable difference of opinion could be had on the issue of the using force, even where opinion emanated from the apparent government expert, the Senior Legal Adviser’s office in the FCO. This recording of, and thereby justification of, an opposing legal view is significant from at least two perspectives.

The first is as an articulated understanding of what international law means to a politician in government such as Jack Straw. We learn that there is a high degree of self-awareness as to the power – and latitude – afforded to state actors in international legal doctrine. This self-awareness appears to translate as authority to speak to what international law actually is, or could be as interpreted by such a state actor. In a sense, this gives a behind-the-scenes affirmation of what scholars and students of international law already superficially recognize as ‘custom’ formation. Here, we learn that state actors know the force they command over international law, even in an area that is apparently so black and white: the prohibition on the use of force.

Secondly, we see the self-conscious fashioning of an archive; the production of official documentation that will, it is known by its author(s), represent government decision-making once it is categorized into the various filing systems of the National Archives (filed under ‘Iraq War’ within the FCO Ministerial and Legal Adviser’s records as sender and recipient respectively).

The CIA Violated the Terrorist Bombing Convention

by Kevin Jon Heller

The Washington Post has a long article today about how Mossad and the CIA collaborated to blow up Hezbollah’s chief of international operations in 2008. Here are the key paragraphs:

On Feb. 12, 2008, Imad Mughniyah, Hezbollah’s international operations chief, walked on a quiet nighttime street in Damascus after dinner at a nearby restaurant. Not far away, a team of CIA spotters in the Syrian capital was tracking his movements.

As Mughniyah approached a parked SUV, a bomb planted in a spare tire on the back of the vehicle exploded, sending a burst of shrapnel across a tight radius. He was killed instantly.

The device was triggered remotely from Tel Aviv by agents with Mossad, the Israeli foreign intelligence service, who were in communication with the operatives on the ground in Damascus. “The way it was set up, the U.S. could object and call it off, but it could not execute,” said a former U.S. intelligence official.

The United States helped build the bomb, the former official said, and tested it repeatedly at a CIA facility in North Carolina to ensure the potential blast area was contained and would not result in collateral damage.

“We probably blew up 25 bombs to make sure we got it right,” the former official said.

The extraordinarily close cooperation between the U.S. and Israeli intelligence services suggested the importance of the target — a man who over the years had been implicated in some of Hezbollah’s most spectacular terrorist attacks, including those against the U.S. Embassy in Beirut and the Israeli Embassy in Argentina.

The United States has never acknowledged participation in the killing of Mughniyah, which Hezbollah blamed on Israel. Until now, there has been little detail about the joint operation by the CIA and Mossad to kill him, how the car bombing was planned or the exact U.S. role. With the exception of the 2011 killing of Osama bin Laden, the mission marked one of the most high-risk covert actions by the United States in recent years.

The article touches on the legality of Mughniyah’s killing, with the US arguing that it was a lawful act of self-defense under Art. 51 of the UN Charter and Mary Ellen O’Connell claiming that it was perfidy. Regular readers will anticipate my skepticism toward the former claim, and there is simply no support in IHL for the latter claim. Perfidy is an act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Mossad and the CIA did nothing of the kind.

Mossad and the CIA did, however, violate the International Convention for the Suppression of Terrorist Bombings, which Israel ratified on 10 February 2003 and the US ratified on 26 June 2002. I don’t want to dwell on Mossad in this post; the analysis is the same as the one I provided here with regard to its assassination of Iranian nuclear scientists. Instead, I want to focus on the US’s complicity in Mughniyah’s death.

To begin with, there is no question that the bombing itself qualifies as a prohibited act of terrorism under the Terrorist Bombing Convention. Here is the relevant definition, Art. 2(1):

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

Mughniyah’s killing satisfies this definition. The attack involved an “explosive device” and it was clearly intended to “cause death.” It also took place on a public street, which qualifies as a “place of public use” under Article 1(5) of the Terrorist Bombing Convention. Article 1(5) defines a place of public use as “those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally.”

The CIA was also complicit in that prohibited act of terrorism, pursuant to Art. 2(3):

3. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2; or

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2; or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

The language of Art. 2(3) easily encompasses the CIA’s involvement in Mughniyah’s death, given that the US admits the CIA built the bomb, helped track Mughniyah’s movements, and had the power to call off the attack.

The US will no doubt object to this analysis by arguing that the Terrorist Bombing Convention is intended to apply to bombings by terrorists, not bombings of terrorists. That objection would be valid had the US military been involved in the operation instead of the CIA. Justifiably or not, Article 19(2) of the Convention specifically permits acts that would otherwise qualify as terrorist bombing when they are committed by the military forces of a state:

2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

The CIA, however, does not qualify as the US’s “military forces” under the Terrorist Bombing Convention. Art. 1(4) specifically defines “military forces of a State” as “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.” The second provision does not apply, because there is no evidence the CIA was acting under the “formal command, control and responsibility” of the military when it participated in Mughniyah’s killing. And neither does the first provision: although there is no question that the CIA contributes to the US’s “national defence or security,” it is not an “armed force” under US “internal law.” According to 10 USC § 101, “[t]he term ‘armed forces’ means the Army, Navy, Air Force, Marine Corps, and Coast Guard.”

The bottom line: the CIA committed an act of terrorism — actual terrorism, not figurative terrorism — when it participated in blowing up Mughniyah. The US military has the right to kill terrorists with bombs; the CIA does not. There is no doctrine of “close enough” in the Terrorist Bombing Convention.