Okay, I’m exaggerating.  But only slightly.  As Wells Bennett notes today at Lawfare, Judge Pohl has rejected al-Nashiri’s contention that the US and al-Qaeda were not engaged in hostilities (an armed conflict in IHL terms) at the time of the acts alleged in his indictment — primarily the attack on the USS Cole in 2000 – thereby depriving the military commission of jurisdiction over those acts. I have explained before (see here and here) why al-Nashiri’s argument is correct. Unfortunately, but completely unsurprisingly, Judge Pohl disagrees.  It is worth examining his four-page decision in detail, because it illustrates why the military commissions are so deeply and irremediably flawed.

Here is the first substantive paragraph:

Whether hostilities existed on the date  of the acts alleged to have been committed by the accused is as much a function of the nature of hostilities as any particular legally significant act by either the legislative or executive branches of government. Whether hostilities existed on the dates of the charged offenses necessarily is a fact-bound determination; moreover, whether a state of hostilities existed is as much a function of the will of the organization to which the accused is alleged to belong to as the U.S. government. In determining whether hostilities exist or do not exist, the enemy gets a vote.[1] Whether Al Qaeda, the organization of unprivileged enemy belligerents to which the accused is alleged to be a member, considered itself to be at war with the United States on the date of the alleged law of war violations is a factor among many to be considered by the trier of fact and is as relevant as any judgments made or withheld by the President or the Congress.

This is patently incorrect.  Whether a state is engaged in an armed conflict with a non-state actor is a purely factual determination, one that depends (sound familiar?) on the organization of the non-state actor and the intensity of hostilities between the non-state actor and the state.  Full stop. Whether a non-state actor believes it is “at war” with a state is irrelevant to that determination; it is not “a factor among many.”

But perhaps Judge Pohl is aware of legal precedent that I’m not.  After all, he footnotes his claim! So let’s see what the footnote says (emphasis mine):

“In connection with the plan of a campaign we shall hereafter examine more closely into the meaning of disarming a nation, but here we must at once draw a distinction between three things, which as three general objects comprise  everything else within them. They are the military power, the country, and the will of the enemy. The military power must be destroyed, that is, reduced to such a state as not to be able to prosecute the war. This is the sense in which we wish to be understood hereafter, whenever we use the expression “destruction of the enemy’s military power.” The country must be conquered, for out of the country a new military force may be formed. But if even both these things are done, still the war, that is, the hostile feeling and action of hostile agencies, cannot be considered as at an end as long as the will of the enemy is not subdued also…” Carl von Clausewitz, On War Book I Chapter 2 (1832) (emphasis added). In other words, whether the enemy has the will to make war is determinative of whether hostilities begin to exist, continue to exist, or have been terminated.

Yes, indeed: Judge Pohl’s only citation for the idea that a non-state actor can declare war against a state is an 1832 quote from Clausewitz about conflicts between states.  Had he chosen to do so, of course, Judge Pohl could have provided a slightly more relevant — and slightly more recent — citation, such as Quincy Wright’s widely-accepted conclusion that insurgents, “not being recognized states, have no power to convert a state of peace into a state of war.  So their declaration or recognition of war would have no legal effect.”  Judge Pohl must have missed that one.

Onward to the next paragraph…

[Eugene Kontorovich is Professor of Law at Northwestern Law. This post is cross-posted at The Volokh Conspiracy]

In response to my post about Turkey’s settlements, Kevin Jon Heller argues that from the perspective of International Criminal Court liability for “indirectly… deporting or transferring” its nationals into occupied territory, Israel would be more vulnerable than Turkey.

Although statistics are not easy to come by for Cyprus, a comprehensive 2006 study suggests that the overwhelming majority of the Turks in Cyprus arrived there between 1974 and 1979 — [before Cyprus's ICC membership went into effect] and that the number of immigrants in the past decade has been relatively small, likely in the thousands. Contrast that with Israeli immigration: the number of Jewish settlers living in the West Bank in 2002 was around 214,000; there are more than 350,000 living there today — an increase of approximately 136,000 civilians.

[Prof. Heller seems to assume, as he has argued before, that ICC jurisdiction over Palestine could be retroactive to 2002, if it files an Art. 12(3) declaration. I think that position has real textual basis, but is not in my view the best reading of the text as a structural or policy matter. Let's set this aside - just as we set aside big questions about territorial jurisdiction - and, since we're talking about my original post, stick with my assumption of purely prospective jurisdiction.]

Now to the issues Prof. Heller raises. In fact, Turkey’s settlements are a far graver violation of the anti-transfer norm and its purposes.

1) How does one measure the gravity of civilian “transfer”? Typical war crimes are measured in the number of bodies — but that is because the purpose of the provisions is to protect lives. But this doesn’t seem the right way to measure “deportation or transfer.” It must be measured in light of its purposes – colonization, etc. Otherwise, if 1000 people are transferred into a territory of 500, it would be considered de minimis, whereas if 1 million were transferred into a territory of 100 million, it would be a big deal.

Turkish settlers constitute an absolute majority in N. Cyprus (and by many accounts the prior Turkish population is not so happy about the new arrivals). By contrast, Israeli civilians in the West Bank (not including Gaza) are under 20% of the total population, if you include E. Jerusalem (and follow Palestinian population figures). Throw in Gaza, and the percentage drops considerably.

Lets look at it another way. The total population of the island is 1.1 million. Turkish settlers in N.Cyprus constitute over 13% of the population of the island. In the unlikely event of reunification, the Greeks see this as a bitter pill. Population statistics for the Palestinians are also greatly in the dispute, but if one estimates the total population between the river and sea at 11 million, the Jews across the Green Line would be about 5% of the total. Given that Israel has had more time to cement its hold, and it doesn’t have far go to to “transfer” settlers, one might conclude it was not trying particularly hard, or that the Turks are just better at it.

2) In the same vein, In N. Cyprus, the influx of settlers has been accompanied by the collapse of the local population, ie had net emigration. That exacerbates the demographic effect, and is course part of the classic “move in, kick out” model where 49(6) violations were helped effectuate de facto 49(1) breaches. In West Bank, by contrast, population has grown rapidly. Similarly, the ICRC commentary mentions economic effects as one of the policies behind 49(6), and the WB has done in the past decade whereas N.Cyprus has stagnated.

3) That leaves the question of when the Turkish “transfer” happened, which is a real and important point Prof. Heller raises. The real is answer is we do not know for sure. Yes, the big surge was in the years after the invasion. But all these numbers are very disputed and we do not have the benefit of human rights groups like Peace Now or Foundation for Peace in the Middle East that have gone out of their way to track Turkish settlers with the precision of their Israeli counterparts.

However, in June 2003, the Parliamentary Assembly of the Council of Europe issued a recommendation that stated, in part:

“It is a well-established fact that the demographic structure of the island has been continuously modified since its de facto partition in 1974, as a result of the deliberate policies of the Turkish Cypriot administration and Turkey. Despite the lack of consensus on the exact figures, all parties concerned admit that Turkish nationals have since been systematically arriving in the northern part of the island.”

Based on the European Parliament’s estimates of the settler population a decade ago (115K) and conservative estimates today (150K), one can conservatively estimate an increase equivalent 16% of the territory’s population a decade ago.

More anecdotally, a quick Google search reveals news accounts that suggest non-trivial mainland influx in the past decade, and more importantly, it appears this period saw the significant out-flow of the previous locals.

Moreover, some portion of both populations are the children born to those who have allegedly been “transferred.” Israel has a higher fertility rate than N.Cyprus as a whole, and the Jewish civilian population across the Green Line is higher than the Israeli average. So more of the contested Israeli population was delivered, rather than transferred, than their Turkish counterparts. That is why “natural growth” allowance proposals for Israeli settlements were once more in vogue, and now not so much.

4) The bigger picture concerns the unit of analysis. The number of people on the island of Cyprus has changed drastically as a result of Turkey’s settlement program. The number of people between the river and the sea has not changed a whit. Thus, ultimately the effects cannot be measured independently of the proposed political solution. In the case of Cyprus, the international community favors a one-state solution, which makes the sending of external migrants relevant. If the dominant paradigm would be partition, no one would care how many Turks Ankara squeezed into their corner of the island.

Since the dominant paradigm for Israel involves a border demarcation that puts the vast majority of Israelis inside Israel, and kicks the rest out, the demographic implications are entirely unlike Turkey’s settlement program. And if the dominant paradigm were one-state – all the more so, the number of Jews between the river and sea has not increased at all, unlike the number of Turks on the island.

5) As for Kevin’s point that Israel has taken greater steps to facilitate transfer – well, that gets into the merits, which I wish to avoid at this point. I’ve assumed for the sake of argument that “transfer” has occurred on both sides. That is a highly fact specific question, and I am pretty sure I would not characterize some of the Turkish and Jewish migrants as “transferred.” I will observe that the WB is on the other side of an imaginary line, while N.Cyprus is on the other side of a body of water. The latter takes more getting to.

Eugene Kontorovich argues today at Volokh Conspiracy that Israel could minimize the likelihood of an ICC investigation into its transfer of Israeli civilians into the West Bank by emphasizing Turkey’s similar transfer of Turkish civilians into Northern Cyprus, which it has been illegally occupying for more than four decades.  Here are the key paragraphs:

Cyprus was a state with clear borders when Turkey invaded in 1974, and is a charter member of the ICC. If anyone should be loosing sleep over settlements suits in the ICC, it would be Turkey. Interestingly, no one has suggested in the past decade that Cyprus’s ICC membership would scare the Turks out of N. Cyprus, or get the Turks to agree to a peace deal). But a referral by Cyprus would not face the various thorny temporality and territoriality issues of a Palestinian complaint. Moreover, Cyprus is a particularly gross case of changing the demographics of occupied territory through settlement, with settlers now outnumbering protected persons n the territory.

Apart from the manifest hypocrisy, what should be disappointing for believers in international humanitarian law is the failure of anyone to call Abbas (or Erdogan) on it. I am not aware of any news, NGO, or governmental response pointing out the unseemliness of Abbas invoking the ICC from Ankara.

[snip]

Discussions of a potential ICC referral often focus on potential liability by Palestinians as a factor that would dissuade them (or the Court) from proceeding. But Israel’s best bet for heading off such a suit would be to make clear the implications for other non-member states that would clearly be on the settlement hook: Turkey and Russia.

For the record, I think it quite unlikely that the ICC will indict Israeli leaders over settlements, but I’d bet the farm it wouldn’t indict Israel and Turkish leaders in this decade. Indeed, if I were the Israeli government, I’d spend less time preparing an ICC defense that working up a Cypriot case against Turkey, as a favor to its new bestie.

With respect to Eugene, this is a terrible suggestion for Israel.  I have no sympathy for Turkey’s occupation of Cyprus, and Eugene correctly points out that an ICC prosecution of Turkish officials would face no territorial-jurisdiction problem.  But he seriously underestimates the issue of the Court’s temporal jurisdiction.  Indeed, when we take into account the fact that the ICC can only prosecute acts committed after 1 July 2002 — the day the Rome Statute entered into force — it seems clear that the case against Israel is vastly stronger than the case against Turkey.

Two points of comparison are relevant.  The first concerns the sheer number of immigrants. Although statistics are not easy to come by for Cyprus, a comprehensive 2006 study suggests that the overwhelming majority of the Turks in Cyprus arrived there between 1974 and 1979 — and that the number of immigrants in the past decade has been relatively small, likely in the thousands.  Contrast that with Israeli immigration: the number of Jewish settlers living in the West Bank in 2002 was around 214,000; there are more than 350,000 living there today — an increase of approximately 136,000 civilians.

Numbers, however, do not tell the whole story.  The mere fact of settlement in occupied territory is not a war crime; the actus reus of the crime is “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.”  Article 8(2)(b)(viii) thus targets state officials whose actions facilitate the transfer of civilians into occupied territory; it does not target the settlers themselves.  That is a critical distinction when we try to compare Turkey and Israel, because the Israeli government has much more actively facilitated the transfer of civilians since 2002 than the Turkish government.  Here is what the 2006 report says about immigration to Cyprus:

The significance of demography in Cyprus changed after 1974 not only because of this ethnic homogenization of the two states, but also because of an influx of immigrants from Turkey. In addition to the displacement of Cypriots, Turkey and the Turkish Cypriot administration initially facilitated and encouraged an immigration of Turkish nationals from Turkey following the war. This policy was designed to bolster the Turkish population and to create a viable economy independent of Greek Cypriots.  Immigrants who were part of this policy received empty Greek Cypriot properties and citizenship in the Turkish Cypriot state almost upon arrival. This facilitated migration ended by the late 1970’s, and international pressure and internal opposition to the policy led to the amendment of the law that eliminated property privileges for the other immigrants who arrived after 1982. Immigration had by this time declined, and the number of immigrants acquiring citizenship significantly dropped. A further amendment of the citizenship law in 1993 restricted citizenship rights to persons who had been resident on the island for at least five years. Although immigration from Turkey continued on a smaller scale, these later immigrants who arrived in the island did so of their own initiative as they sought a better future there. In contrast to the first wave of migrants who were brought to the island as part of state policy, the factors determining the later wave fit other global patterns of economic migration, and those later immigrants received no special treatment or privileges from the state.

I don’t want to push this argument too strongly; there may well be other Turkish policies that would qualify as indirect transfer both pre- and post-2006, when the report was written.  But there is no question that the Israeli government has much more actively facilitated the transfer of its civilians into the West Bank since 2002 — and that Israel intends to continue to facilitate that transfer for the indefinite future.

Statehood issues aside, in short, a rational prosecutor would find Israel’s violation of Article 8(2)(b)(viii) to be far more serious — and far easier to prove — than Turkey’s.  The number of Israeli civilians transferred since 2002 is much greater, and Israel’s facilitation of that transfer since 2002 is much more significant.

Like Eugene, I’m skeptical that the ICC will ever prosecute an Israeli official for the war crime of illegal transfer.  But the last thing the Israeli government should do, if it wants to avoid an investigation, is “work up a Cypriot case against Turkey.”  That case would simply foreground how much stronger the case against Israel really is.

In the comments to my first post on the ICC and retroactive jurisdiction, Johnboy4546 suggested that the Palestinians might self-refer only the situation in the West Bank to the Court.  Such a referral would have two clear advantages for the Palestinians: (1) it would prevent the OTP from investigating Hamas’s rocket attacks, which are almost always launched from Gaza, as well as crimes committed by Fatah-related groups in Gaza (such as the murder of civilians); and (2) Israel would be extremely unlikely to prosecute the crime the Palestinians would want the OTP to investigate in the West Bank, the direct or indirect transfer of the civilian population into occupied territory, thereby ensuring that Israel could not take advantage of the Rome Statute’s principle of complementarity.

It’s a creative suggestion — and one that I’ve been hearing with increasing regularity from people sympathetic to the Palestinian cause.  (I’ve just returned from a wonderful conference in Tel Aviv, a trip that included giving three different presentations in one day — a new record for me.)  But would such a geographically-limited self-referral be possible?

On balance, I don’t think so.  There is no question that a state can self-refer crimes committed on a portion of its territory; that is how the ICC treated Uganda’s referral of the situation in Northern Uganda.  (Uganda only referred crimes committed by the LRA, but the Court recharacterized that self-referral on the ground that Article 14(1) of the Rome Statute limits states to referring “situations.”)  The Security Council also limited its Sudan referral to crimes committed in Darfur.  Those referrals would seem to suggest that Palestine could refer only the situation in the West Bank to the Court.  (I am assuming for sake of argument that the Palestinian state includes both West Bank and Gaza.)

The problem is that such a geographically-limited referral would frustrate the spirit, if not the letter, of Article 14(1).  As is widely acknowledged, the drafters limited Article 14(1) to situations precisely to prevent states from using referrals to target their political opponents.  (A legitimate fear, as Uganda’s original self-referral indicates.)  By requiring states to refer situations instead of cases, Article 14(1) ensures that the OTP will always be able to investigate crimes committed by both parties to a conflict.

And therein lies the problem with a hypothetical West Bank referral. Such a referral would obviously be designed to enable the Court to investigate crimes committed by Israel while preventing it from investigating crimes committed by Hamas.  Functionally, then, a West Bank referral would be no different than Uganda’s self-referral of the LRA’s crimes.  The Court would be very unlikely to accept such a referral simply because it was framed in geographic terms.  After all, Uganda could have referred only those parts of Uganda in which the LRA operated instead of specifically — and clumsily — targeting the LRA. I doubt that the Court would have permitted Uganda to accomplish indirectly what it could not accomplish directly.

Nor is that all: even if the Court would be willing to accept a West Bank referral, Palestine might find it difficult to prevent the OTP from investigating its own crimes.  To begin with, the OTP could simply decline to investigate a referral that was limited to the West Bank — on the basis of either insufficient gravity or the “interests of justice” —  and then use its proprio motu powers to initiate a broader investigation.  I’m skeptical that the current OTP would be foolish enough to conduct any investigation into one of the most politicized conflicts in history.  But if it did, it would certainly not be foolish enough to investigate only one side of that conflict.

Moreover, it is not clear that an investigation into the West Bank would preclude the OTP from investigating crimes committed in Gaza.  In Mbarushimana, the defendant argued that because the DRC’s self-referral was limited to crimes committed in the Ituri region, the Court did not have jurisdiction over the crimes he allegedly committed in North and South Kivu.  The Pre-Trial Chamber rejected that argument on the ground that, in fact, the DRC had not limited its self-referral to Ituri.  But it also suggested — obliquely — that, had the referral been so geographically limited, the Court might still have had jurisdiction over at least some acts committed outside of Ituri.  Consider the following paragraphs (emphasis added):

16. The issue at stake is to determine whether the facts underlying the charges brought by the Prosecutor against Mr Mbarushimana can be said not to exceed the territorial, temporal and possibly personal parameters defining the situation under investigation. More specifically, according to the test developed by the Chamber in the present case, it is required that the crimes referred to in the Prosecutor’s application for a warrant of arrest for Mr Mbarushimana occurred in the context of the ongoing situation of crisis that triggered the jurisdiction of the Court through the Referral by the DRC. As already clarified by the Chamber, such a situation can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis which was ongoing at the time of the referral.

21. The Chamber takes note of the DRC Observations, clarifying that; in submitting the Referral, the competent authorities did not intend to limit the Court’s jurisdiction to one or more particular provinces within its territory. As already determined by the Chamber, the territorial and temporal scope of a situation is to be inferred from the analysis of the situation of crisis that triggered the jurisdiction of the Court through the referral. Crimes committed after the referral can fall within the jurisdiction of the Court when sufficiently linked to that particular situation of crisis.

Although far from the picture of clarity, these paragraphs seem to imply that the Court’s understanding of the situation underlying a state’s self-referral is more important than the specific parameters of the referral itself.  As long as there is a sufficient nexus between a particular crime and the facts that motivated the state to refer the situation in question, the Court has jurisdiction over that crime.

I don’t want to push that interpretation too strongly.  The PTC’s comment regarding territorial jurisdiction was dicta, given how it construed the DRC’s self-referral.  But the rationale is the same for both temporal and territorial jurisdiction: states should not be able to craft self-referrals that prevent the Court from exercising jurisdiction over crimes that, in an objective analysis, really do fall within the parameters of the situation in question.  That principle explains why Uganda could not self-refer only the LRA’s crimes to the Court — and it explains why Palestine should not be able to impose geographic restrictions on a situation that would effectively limit the OTP to investigating crimes committed by Israel.

In my essay on signature strikes, I criticize (and I’m not alone) the U.S. practice of considering military-age males in an area of known terrorist activity to be lawful targets.  That signature, however, pales in comparison to the possibility that the U.S. is targeting “children with potential hostile intent,” as well:

The US military is facing fresh questions over its targeting policy in Afghanistan after a senior army officer suggested that troops were on the lookout for “children with potential hostile intent”.

In comments which legal experts and campaigners described as “deeply troubling”, Army Lt Col Marion Carrington told the Marine Corp Times that children, as well as “military-age males”, had been identified as a potential threat because some were being used by the Taliban to assist in attacks against Afghan and coalition forces.

“It kind of opens our aperture,” said Carrington, whose unit, 1st Battalion, 508th Parachute Infantry Regiment, was assisting the Afghan police. “In addition to looking for military-age males, it’s looking for children with potential hostile intent.”

In the article, headlined “Some Afghan kids aren’t bystanders”, Carrington referred to a case this year in which the Afghan national police in Kandahar province said they found children helping insurgents by carrying soda bottles full of potassium chlorate.

IHL does not limit the use of lethal force to adults, so a child can be lawfully targeted at any time if he is a member of an organized armed group (by assuming a continuous combat function in it) or for the duration of his participation if he directly participates in hostilities.  That said, because it is unlikely that the U.S. tracks individual children long enough to establish their continuous combat function, the “potential hostile intent” signature is deeply problematic.  ”Hostile intent” does not make a civilian (adult or child) targetable; that intent must be manifested in acts that qualify as direct participation.  And the word “potential” seems to indicate that the U.S. feels free to target children at times when they are not directly participating in hostilities (otherwise they would be manifesting “actual” hostile intent).

Many questions, of course, remain.  It is unclear whether the U.S. is actually targeting children with “potential hostile intent.”  It is also unclear how the U.S. understands “hostile intent” and “potential.” But it doesn’t take an IHL expert to know that targeting children with potential hostile intent creates significant cause for concern.

A number of commentators have challenged my claim that Articles 11(2) and 12(3) of the Rome Statute would permit Palestine to accept the ICC’s jurisdiction retroactively, whether as a member-state or on an ad hoc basis. Here, for example, is what my friend Jennifer Trahan wrote yesterday at IntLawGrrls:

Even if an entity becomes a “state,” should there be jurisdiction that it can invoke back to a time when (a) there were no clear “nationals” of that state, and (b) there was no clear “territory” of that state, and in fact, even according to the General Assembly there was only an “observer” and not a “state”? (The ICC Office of the Prosecutor has already declined to exercise jurisdiction over this time-period once before.)

Let’s not get carried away here.

I realize that I should have been more precise in my previous post. I was trying to make a more modest point: namely, that the Rome Statute does, in fact, permit retroactive acceptance of the Court’s jurisdiction. I did not mean to imply that Palestine itself could necessarily accept jurisdiction over acts committed on its territory before it became a state. Mea culpa.

That said, I think Jennifer makes an equally problematic assumption: that Palestine only became a state on Thursday, as a result of the UNGA vote. As Bill Schabas reminds us, membership in the UN may be relevant to whether an entity qualifies as a state, but it is not dispositive…

I’ve been meaning to discuss the AP’s recent claim that an obviously fraudulent graph provided to it by an unnamed country (almost certainly Israel) proves that Iran is trying to build a nuclear weapon. As is often the case, however, Glenn Greenwald beat me to it.

If the AP were capable of shame, it would immediately retract the story, apologize to its readers, and engage in some profound soul-searching about its willingness to be played by a country that it openly admitted in its story was “critical of Iran’s atomic program.” Instead, this has been the sum total of its reply to its critics: “We continue to report this story.”

That reply should be amended: “The AP continues to inaccurately report this fraudulent story.” Yellow journalism at its worst.

In the wake of today’s long-overdue vote to upgrade Palestine to observer-state status, there seems to be persistent confusion concerning what would happen if Palestine ratified the Rome Statute. In particular, a number of commentators seem to think that it is unclear whether the ICC would have jurisdiction over crimes committed prior to Palestine’s ratification. (See Colum Lynch at FP, for example.) In fact, the Rome Statute leaves no doubt whatsoever that Palestine could (but would not be required to) accept the Court’s jurisdiction retroactive to 1 July 2002, the date the Rome Statute entered into force. The relevant provisions are Articles 11(2) and 12(3) (emphasis added):

11(2): If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

12(3): If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Though not the picture of drafting clarity, the two provisions make clear (1) the default position is that the ICC will have jurisdiction only over crimes committed after a state ratifies the Rome Statute, but (2) the state in question may file a declaration with the Registrar accepting the Court’s jurisdiction retroactively.

It is worth noting that Palestine would not have to ratify the Rome Statute to refer the situation in Gaza to the ICC. It could also accept the Court’s jurisdiction on an ad hoc basis, pursuant to Article 12(3). And it could do so retroactively, as the Cote d’Ivoire precedent indicates. (Cote d’Ivore, a non-member state, accepted the Court’s jurisdiction on 18 April 2003 retroactive to 19 September 2002.)

Finally, I’ll say it once again: Palestine should be careful what it wishes for. I think it is highly likely that, if the OTP investigated the situation in Gaza, Palestinians would end up in the dock long before Israelis. From a legal perspective, Fatou Bensouda would find it much easier to prosecute Hamas’s deliberate attacks on Israeli civilians than Israel’s disproportionate attacks, collective punishment of Palestinians, and transfer of its civilians into occupied territory. The latter crimes are fraught with ambiguity and difficult to prove. I know I wouldn’t start with them, were I the Prosecutor.

The United Nations General Assembly is set to decide Thursday whether to upgrade Palestine to “non-member state” status, on par with the Vatican. The resolution will almost certainly pass, given that more than 130 states have already recognized a Palestinian state. The interesting question is whether powerful Western states will vote in favor of the resolution. France has already indicated that it will. And now the BBC is reporting that, if the Palestinians accept certain conditions, it will support the resolution as well:

On Monday night, the government signalled it would change tack and vote yes if the Palestinians modified their application, which is to be debated by the UN general assembly in New York later this week. As a “non-member state”, Palestine would have the same status as the Vatican.

Whitehall officials said the Palestinians were now being asked to refrain from applying for membership of the international criminal court or the international court of justice, which could both be used to pursue war crimes charges or other legal claims against Israel.

Abbas is also being asked to commit to an immediate resumption of peace talks “without preconditions” with Israel. The third condition is that the general assembly’s resolution does not require the UN security council to follow suit.

The US and Israel have both hinted at possible retaliation if the vote goes ahead. Congress could block payments to the Palestinian Authority and Israel might freeze tax revenues it transfers under the 1993 Oslo agreement or, worse, withdraw from the agreement altogether. It could also annex West Bank settlements. Britain’s position is that it wants to reduce the risk that such threats might be implemented and bolster Palestinian moderates.

The second and third conditions seem reasonable — if ultimately meaningless. The article notes, though, that the Palestinians are resisting Britain’s insistence that an upgraded Palestine not join the ICC and ICJ. And rightfully so: the demand is simply another permutation of the idea that the Palestinians should accept a state that does not actually enjoy the perquisites of statehood. (To be clear: I remain completely opposed, on political grounds, to the ICC investigating the situation in Gaza.) It is also hard to see how a promise not to join the ICC and ICJ could be enforced, should Palestinian leadership ever change hands.

[Spencer Zifcak is Allan Myers Professor of Law and Director of the Institute of Legal Studies at the Australian Catholic University.]

This post is part of the MJIL vol13(1) Symposium. Other posts in this series can be found in the related posts below.

I begin this response by acknowledging the two commentators. Ramesh Thakur and Tom Weiss are, together with Gareth Evans, the pre-eminent writers in the field — as well as each having played formative role in the creation of the Responsibility to Protect (‘R2P’) doctrine in the first place. So, it is a privilege that both have chosen to write a commentary on my article and it is my pleasure now to respond.

Plainly, Professor Thakur and I agree on his four summative points, so there is no need for me to comment further on them. He does, however, point to three matters he believes I have missed, so, let me say something about each.

Professor Thakur observes that, in the Syrian case, a perverse incentive exists for the Syrian rebels to respond brutally to governmental repression in order to internationalise the conflict and thereby encourage external intervention on their side. I had neither seen any prior commentary to this effect nor had this occurred to me. So, I’m grateful for the observation.

My only reservation about it is that it does seem to me difficult to make any valid, general comment about how the rebels are thinking, and why they are acting in the way that they are, because the rebel cause is so divided. As Hussein Agha and Robert Malley note in a recent article in the New York Review of Books, the opposition is an eclectic assortment of ‘Muslim Brothers, Salafis, peaceful protesters, armed militants, Kurds, soldiers who have defected, tribal elements and foreign fighters’. And then there is Al-Qaeda. So, I accept completely that some parts of the rebel leadership will be angling for external intervention but I’m not at this stage sure which ones and how representative they are. Further, if brutality and crimes against humanity are part of a rebel strategy, it does seem to be counter-productive. It is clear that international support for the rebel cause has waned in direct proportion to the increasing number of reports emerging from Syria of rebel atrocities. And so has support within Syria itself. If a vote were taken of Syrians now, it is by no means clear that the rebels would prevail over the regime.

Professor Thakur then refers to the existence of the Sunni-Shi’a split in the country and in the region. I don’t think I missed this one but may not have made it as explicit as it should be. The tragedy within Syria is that initial calls for democratic reform have morphed into a fully-fledged civil war on Sunni-Shi’a lines. And Professor Thakur is right to point to the fact that the Sunni-Shi’a battle has profound regional implications as well. Again, tragically, the civil war has drawn influential regional actors into the fray, so much so that the Syrian conflict already appears, at one level, to be a proxy war between Iran/Iraq on one side, and the Saudis, Qataris and allies, on the other. This is one critical factor that militates against any form of external intervention, as any intervention will alienate significant regional powers with unpredictable and inevitably adverse consequences both ways.

Professor Thakur points to my failure to discuss the Brazilian ‘Responsibility while Protecting’ (‘RWP’) proposal. He is right. I didn’t. I footnoted it and that is all. There were two reasons for this. First, I’ve read it many times and have not found it particularly helpful. In my view, it is not much more than a statement of the obvious, in the wake of the mistakes made by the international community in the Libyan case. Secondly, one of my major objectives in the article was to encapsulate the standing of R2P following Libya and Syria. I did that in a series of propositions at the end of each section. These propositions in part resemble those in the Brazilian document but are more specific, detailed and, I hope, more helpful. So, I didn’t want to muddy these waters by setting out to compare and contrast the two encapsulations. And since one was my own, obviously I chose to give it most prominence. Professor Thakur is right, however, to point out that the Brazilian concept note has provoked some new thinking. So, I will take that as an encouragement to explore the discussion while maintaining my reservations about the Brazilian note itself.

Professor Thakur points to two key elements in the RWP proposal that he believes are significant. The Security Council should ensure that it sets in place a monitoring and review mechanism when any intervention is commenced so as to ensure compliance with the Council’s resolutions. It should also formulate an agreed set of criteria on the basis of which to debate and mobilise consensus upon an R2P military intervention.

The second one is interesting. Gareth Evans has been a tireless advocate of the Security Council’s adoption of such prudential criteria and I am in wholehearted agreement with him on this. I note that Professor Thakur too, has joined Evans in a recent letter in which both support the deployment of the prudential criteria developed in the International Commission on Intervention and State Sovereignty (‘ICISS’) report, the High-Level Panel report and Kofi Annan’s In Larger Freedom. It was in this context that I wrote the sentence that appears to have surprised Professor Weiss. In the article, I wrote that ‘judgments as to whether and when to intervene are likely in the foreseeable future to be made case by case rather than according to predetermined, universally applicable principles’. This was a reference to my earlier discussion about the desirability of adopting prudential criteria. There is substantial opposition, not least amongst the P-5 to the Security Council’s adoption of the criteria, but one can always hope.

I note Professor Weiss’s comment that applying universal principles may have a detrimental effect. I’m not sure whether he was referring here to Evans-Thakur prudential criteria or something else. But if it was in relation to the criteria, I think his criticism is misconceived. It is precisely to avoid the prospect of double-standards that I support the criteria’s application. The South would have far more confidence that they would not be subject to neo-imperial meddling if they could be assured that the relevant criteria including necessity, proportionality and balance of consequences were consistently and openly discussed and applied when decisions as to intervention were being made.

He may be right on another point, however. Yes, it’s true, lawyers love criteria. We think they’re really useful as a means of structuring constructive deliberation and decision-making. But political scientists? Perhaps we are as different as Weiss surmises.

On another matter, Professor Weiss is clearly right. Humanitarian impulse rather than humanitarian imperative is the better descriptor. I will use it. But his last sentence rather puzzles me.

On what basis can it properly be said that if Assad leaves Syria, his exit will have in part been attributable to the R2P norm? Apart from the occasional and cursory reference to R2P in Security Council resolutions decrying the regime’s failure to protect its people from atrocity, for reasons I’ve outlined in some considerable detail, the Syrian case is passing R2P by. Neither the regime, nor its rebel opponents, nor the major regional and international players, seem to be concerned with it at all. Each pursues its agenda with absolute ruthlessness.

R2P is a noble doctrine. For the time being, however, it will have to play on a different and less contested field.

[Thomas G Weiss is a Presidential Professor of Political Science at The CUNY Graduate Center and Director of the Ralph Bunche Institute for International Studies]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Professor Spencer Zifcak’s article on the international reactions to Libya and Syria is thorough and thoughtful, and well worth reading for the treasure trove of documentation. But I was frankly surprised by his unsurprising conclusion that ‘judgments as to whether and when to intervene are likely in the foreseeable future to be made case by case rather than according to predetermined, universally applicable principles’.

How else?  Obviously, political scientists and lawyers have quite different expectations.

Undoubtedly the loss of life and suffering is much higher in Syria than in Libya, and it has gotten worse in the time taken to get Professor Zifcak’s article into print. The death toll has risen fivefold — now approaching 25 000 — and the joint UN-Arab League envoy Kofi Annan has resigned from his ‘mission impossible’, an assignment that trouble-shooter Lakhdar Brahimi has assumed.

The paralysis amidst atrocities and killings in Syria suggests, in case there was any doubt, that robust action in one crisis does not necessarily foreshadow similar efforts elsewhere. Inconsistency is not only the hobgoblin of little minds but also the proverbial bottom line for political decision-making. Rhetoric is one thing, tough decisions are another. Talk is cheap, action is not.

Indeed, to expect anything else is to play into the hands of the usual spoilers in the global South — the Nicaraguas and Cubas, the Zimbabwes and Sudans — who point to the double standard of the Responsibility to Protect (‘R2P’) as neo-imperial meddling.  They, of course, would prefer the old single standard for mass atrocities and do nothing because state sovereignty is sacrosanct and includes the license for mass murder. The best should never be the enemy of the good — for R2P or anything else.

In describing the present global governance of mass atrocities, humanitarian ‘impulse’ is more accurate than humanitarian ‘imperative’. The latter entails an obligation to treat victims similarly and react to all crises consistently — in effect, to deny the relevance of politics, which consists of drawing lines and weighing options and available resources. Yet humanitarian action remains desirable not obligatory. The humanitarian impulse is permissive; the humanitarian imperative is peremptory. Similarly, R2P is not a peremptory obligation but a desirable and emerging norm whose consolidation can result in occasional enforcement when the politics are right.

Politics and military capacity ultimately determine whether, when, where and why to protect and assist war-affected populations. However shocking to the conscience a particular emergency and however hard or soft the applicable public international law, when political will and a military capacity exist, humanitarian space will open and war victims will be assisted and protected. In Libya the moral, legal, political, and military dimensions dovetailed under the R2P rubric. Rather than speaking truth to power, the value-added of R2P was speaking truth with power. And if Assad leaves Syria, it will in part be attributed to the evolving power of the R2P norm.

[Ramesh Thakur is Director of the Centre for Nuclear Non-proliferation and Disarmament (CNND) in the Crawford School, Australian National University and Adjunct Professor in the Institute of Ethics, Governance and Law at Griffith University.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Professor Spencer Zifcak has written an insightful article on a topic that is important, timely and will not go away. His analysis and conclusions are judicious, circumspect, balanced and, in consequence, stand the test of time since the article was written. I would like to make four points in summary and add three items to his analysis.

First, the use of force, no matter how benevolent, enlightened and impartial in intent, has empirical consequences and shapes the struggle for power and helps to determine the outcome of that political contest. This is why it is inherently controversial and contentious.

Secondly, the Responsibility to Protect (‘R2P’) is the normative instrument of choice for converting a shocked international conscience into decisive collective action — for channelling selective moral indignation into collective policy remedies — to prevent and stop atrocities. In the vacuum of responsibility for the safety of the marginalised, stigmatised and dehumanised out-group subject to mass atrocities, R2P provides an entry point for the international community to step in and take up the moral and military slack. Its moral essence is the acceptance of a duty of care by all those who live in zones of safety towards those trapped in zones of danger. It strikes a balance between unilateral interference and institutionalised indifference. But the precise point along the continuum is not easily ascertained in the fog of armed violence amidst chaos and volatility.

Thirdly, R2P was the discourse of choice in debating how best to respond to the Libya crisis. But the R2P consensus underpinning Resolution 1973 in 2011 was damaged by gaps in expectation, communication and accountability between those who mandated the operation and those who executed it. For NATO, the military operations, once begun, quickly showed up a critical gap between a no-fly zone and an effective civilian protection mandate. But back in New York, there was an unbridgeable gap between effective civilian protection, which Brazil, Russia, India, China and South Africa (‘BRICS’) supported, and regime change, which they strongly opposed.

One important result of the gaps was a split in the international response to the worsening crisis in Syria. Both China and Russia, still smarting from the over-interpretation of Resolution 1973, have been defiantly opposed to any resolution that could set in train a sequence of events leading to a 1973-type authorisation for outside military operations in Syria.

Fourthly, the Libya controversy over the implementation of R2P notwithstanding, by 2012 there was no substantial opposition to R2P as a principle or norm — an international standard of conduct.

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