Archive of posts for category
Middle East

The al-Senussi Admissibility Decision in Two Quotes

by Kevin Jon Heller

Libya’s Foreign Minister, 21 May 2014:

There is a complete absence of the army and the police [in Libya], which are responsible for the security of the state. Armed groups are not under control…. State-building needs to build security institutions first and foremost because with no security there can be no investments, building a real state, nor an effective criminal justice system to protect rights and freedoms.

ICC Appeals Chamber, 24 July 2014:

The Appeals Chamber concluded that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi.

Meanwhile, over at ABC News…

by Kevin Jon Heller

BsJXdWkCYAEhdi_Diane Sawyer had a hard-hitting report tonight at ABC News on the recent hostilities between Israel and Palestine. The segment opens with her saying, “We take you overseas now to the rockets raining down on Israel today as Israel tried to shoot them out of the sky.” As she speaks, a video box next to her shows explosions on an urban landscape. Sawyer then shows a still photo of two haggard men carrying clothes in front of a destroyed building and says, “here is an Israeli family trying to salvage what they can.”

There’s only one problem with Sawyer’s report: the explosions are in Gaza, the result of IDF airstrikes, and the men are Palestinian, not Israeli.

Welcome to the mainstream media’s even-handed coverage of the Israeli/Palestinian conflict.

Name That Pinko!

by Kevin Jon Heller

What Israel-hating, Hamas-loving lefty said the following on Facebook?

Dear friends: Take a few moments to read the following words and share them with others. I see the severe and rapid deterioration of the security situation in the territories, Jerusalem and the Triangle and I’m not surprised. Don’t be confused for a moment. This is the result of the policy conducted by the current government, whose essence is: Let’s frighten the public over everything that’s happening around us in the Middle East, let’s prove that there’s no Palestinian partner, let’s build more and more settlements and create a reality that can’t be changed, let’s continue not dealing with the severe problems of the Arab sector in Israel, let’s continue not solving the severe social gaps in Israeli society. This illusion worked wonderfully as long as the security establishment was able to provide impressive calm on the security front over the last few years as a result of the high-quality, dedicated work of the people of the Shin Bet, the IDF and the Israel Police as well as the Palestinians whose significant contribution to the relative calm in the West Bank should not be taken lightly.

However, the rapid deterioration we’re experiencing in the security situation did not come because of the vile murder of Naftali, Eyal and Gil-Ad, may their memories be blessed. The deterioration is first and foremost a result of the illusion that the government’s inaction on every front can actually freeze the situation in place, the illusion that “price tag” is simply a few slogans on the wall and not pure racism, the illusion that everything can be solved with a little more force, the illusion that the Palestinians will accept everything that’s done in the West Bank and won’t respond despite the rage and frustration and the worsening economic situation, the illusion that the international community won’t impose sanctions on us, that the Arab citizens of Israel won’t take to the streets at the end of the day because of the lack of care for their problems, and that the Israeli public will continue submissively to accept the government’s helplessness in dealing with the social gaps that its policies have created and are worsening, while corruption continues to poison everything good, and so on and so on.

But anyone who thinks the situation can tread water over the long run is making a mistake, and a big one. What’s been happening in the last few days can get much worse — even if things calm down momentarily. Don’t be fooled for a moment, because the enormous internal pressure will still be there, the combustible fumes in the air won’t diminish and if we don’t learn to lessen them the situation will get much worse.

The pinko in question would be Yuval Diskin, the director of Israel’s Shin Bet from 2005 to 2011. Further proof that being outside of government is conducive to honesty — especially when the government in question is overseen by someone like Netanyahu.

Syria and International Justice at the LSE

by Kevin Jon Heller

I will be participating in a roundtable about Syria and international justice next Monday night at the LSE. It’s free and open to the public, so I hope at least a few OJ readers will come. You can also send questions to the following hashtag: #LSESyriaICC. We will try to answer at least a few of them!

Here are the event details:

Syria and International Justice
LSE Centre for International Studies Dialogue
30 June 2014
6.30-8pm at LSE
Thai Theatre
New Academic Building

With a draft Security Council resolution to refer the situation in Syria to the International Criminal Court vetoed, what, if anything, should the international community or other interested actors do to achieve justice in Syria?

SPEAKERS

Kevin Jon Heller, Professor of Criminal Law, SOAS. @kevinjonheller
Dov Jacobs, Asst Professor of Int’l Law, Grotius Centre. @dovjacobs
Mark Kersten, Researcher, LSE. Justiceinconflict.org. @MarkKersten
Jason Ralph, Professor of Int’l Relations, University of Leeds. @JasonRalph4
Leslie Vinjamuri, Senior Lecturer in IR, SOAS. @londonvinjamuri

CHAIR

Kirsten Ainley, Director of LSE CIS. @kirstenainley

Quote of the Day: Tony Abbott on the Rule of Law

by Kevin Jon Heller

Here he is, defending General Sisi, the new President of Egypt:

This is a general, but a general who has studied in both the United States and the United Kingdom, so he is certainly someone who is familiar with the rule of law.

Because everyone knows that you can’t learn about the rule of law outside the West. Duh.

PS. Abbott made his silly comment as a way of explaining why he was confident Egypt would not be unfair to Peter Greste, the Australian Al-Jazeera journalist accused — with no evidence whatsoever — of “spreading false news” and supporting the Muslim Brotherhood.

Greste was just sentenced to seven years in prison. I guess Sisi didn’t pay enough attention in his US and UK classes.

Breaking the Silence (About the IDF’s Treatment of Palestinians)

by Kevin Jon Heller

I want to call readers’ attention to a remarkable Israeli NGOBreaking the Silence, which collects the testimony of Israeli soldiers about the brutalization of Palestinians during the occupation. Here is the NGO’s self-description:

Breaking the Silence is an organization of veteran combatants who have served in the Israeli military since the start of the Second Intifada and have taken it upon themselves to expose the Israeli public to the reality of everyday life in the Occupied Territories. We endeavor to stimulate public debate about the price paid for a reality in which young soldiers face a civilian population on a daily basis, and are engaged in the control of that population’s everyday life.

Soldiers who serve in the Territories witness and participate in military actions which change them immensely. Cases of abuse towards Palestinians, looting, and destruction of property have been the norm for years, but are still explained as extreme and unique cases. Our testimonies portray a different, and much grimmer picture in which deterioration of moral standards finds expression in the character of orders and the rules of engagement, and are justified in the name of  Israel’s security. While this reality is known to Israeli soldiers and commanders, Israeli society continues to turn a blind eye, and to deny that what is done in its name. Discharged soldiers returning to civilian life discover the gap between the reality they encountered in the Territories, and the silence about this reality they encounter at home. In order to become civilians again, soldiers are forced to ignore what they have seen and done. We strive to make heard the voices of these soldiers, pushing Israeli society to face the reality whose creation it has enabled.

We collect and publish testimonies from soldiers who, like us, have served in the West Bank, Gaza and East Jerusalem since September 2000, and hold lectures, house meetings, and other public events which bring to light the reality in the Territories through the voice of former combatants. We also conduct tours in Hebron and the South Hebron Hills region, with the aim of giving the Israeli public access to the reality which exists minutes from their own homes, yet is rarely portrayed in the media.

Founded in March 2004 by a group of soldiers who served in Hebron, Breaking the Silence has since acquired a special standing in the eyes of the Israeli public and in the media, as it is unique in giving voice to the experience of soldiers. To date, the organization has collected more than 700 testimonies from soldiers who represent all strata of Israeli society and cover nearly all units that operate in the Territories. All the testimonies we publish are meticulously researched, and all facts are cross-checked with additional eye-witnesses and/or the archives of other human rights organizations also active in the field. Every soldier who gives a testimony to Breaking the Silence knows the aims of the organization and the interview. Most soldiers choose to remain anonymous, due to various pressures from official military persons and society at large. Our first priority is to the soldiers who choose to testify to the public about their service.

What makes this kind of work so effective, of course, is that it is impossible to disregard the soldiers who provide the testimonials — or at least all of them — as “anti-Israel.” On the contrary, these soldiers are true patriots, doing their part in a repressive political environment to save Israel from its Netanyahus and Liebermans.

The Guardian has an excellent story today about Breaking the Silence. You can read it here. And make sure to check out the NGO’s superb website, where all of the testimonials can be found.

Hat-tip: my colleague Anicee Van Engeland.

Libya’s Chutzpah

by Kevin Jon Heller

I had a good chuckle this morning when I read Libya’s latest attempt to avoid complying with its obligation to surrender Saif Gaddafi to the ICC. (Which, of course, it may be genuinely unable to do, given that he’s still being held in Zintan. But that’s another story.)

The source of my amusement is Libya’s new excuse for not being able to file submissions on time:

[D]uring May 2014, there has been a surge in attacks against the Government, particularly in Tripoli and Benghazi, such that the UN Support Mission in Libya has recently expressed its concern over these “various acts of violence, including the assaults on official institutions”. These ongoing exigencies have prevented the Libyan authorities from providing up-to-date instructions on the salient issues. In view of these circumstances, the Government is, understandably, currently focusing its resources on restoring stability and order.

If you followed Libya’s failed admissibility challenge closely, you know that Saif’s defence team at Doughty Street Chambers (full disclosure: I’m now an academic member there) consistently argued that the violence in Libya prevented it from effectively trying Saif. Libya just as consistently rejected that argument, insisting that the violence had no effect whatsoever on its ability to conduct judicial proceedings.

To recap Libya’s position, then: the violence in the country doesn’t prevent the government from prosecuting Saif. But it does prevent it from filing a legal brief withe the ICC.

As I said, I had a nice chuckle.

A Problematic Study of Drone Strikes in Pakistan (Updated)

by Kevin Jon Heller

Lawfare reports today on a study published in Political Science Quarterly about how ordinary Pakistanis view US drone strikes in their country. According to the post, the study “[c]hallenge[s] the conventional wisdom” that there is “deep opposition” among Pakistanis to drone strikes and that “the associated anger [i]s a major source of the country’s rampant anti-Americanism.”

I don’t have access to the study itself, but the polling questions quoted in the Lawfare post seem seriously flawed. Here are the three primary questions about drone strikes:

How much, if anything, have you heard about the drone attacks that target leaders of extremist groups – a lot, little, or nothing at all?

Please tell me whether you support or oppose the United States conducting drone attacks in conjunction with the Pakistani government against the leaders of extremist groups.

Now I’m going to ask you a list of things that the United States might do to combat extremist groups in Pakistan. For each one, please tell me whether you would support or oppose it. [The respondent is then offered]: Conducting drone attacks in conjunction with the Pakistani government against leaders of extremist groups. 

There are two significant problems with these questions. First, it seems like a major stretch to describe the US drone program in Pakistan as being carried out “in conjunction with the Pakistani government” — a formulation that implies that Pakistan and the US are working together. I accept reports that say Pakistan has tacitly or secretly endorsed the US drone program. But the Pakistani government’s public position has always been that the drone program is being conducted without its consent. The “in conjunction with” language is thus seriously misleading — especially given that the ordinary Pakistani will likely be far more familiar with the government’s public position than with the private one revealed in secret cables. Indeed, the second and third questions could easily be interpreted to be asking a hypothetical question (“would you like drone strikes more if they were conducted in conjunction with your government?”), instead of as an assertion of a past and present state of affairs.

The second problem, however, is even more serious. All three questions assert — and assume — that drone strikes in Pakistan target “leaders of extremist groups.” But that is almost certainly not the case. Here, for example, is what the Stanford/NYU “Living Under Drones” report says:

National security analysts—and the White House itself— have found that the vast majority of those killed in drone strikes in Pakistan have been low-level alleged militants. Based on conversations with unnamed US officials, a Reuters journalist reported in 2010 that of the 500 “militants” the CIA believed it had killed since 2008, only 14 were “top-tier militant targets,” and 25 were “mid-to-high- level organizers” of Al Qaeda, the Taliban, or other hostile groups. His analysis found that “the C.I.A. [had] killed around 12 times more low-level fighters than mid-to-high- level” during that same period. More recently, Peter Bergen and Megan Braun of the New America Foundation reported that fewer than 13% of drone strikes carried out under Obama have killed a “militant leader.” Bergen and Braun also reported that since 2004, some 49 “militant leaders” have been killed in drone strikes, constituting “2% of all drone-related fatalities.”

Unless all of these reports are incorrect, the US drone program in Pakistan has never focused on “leaders of extremist groups.” It is thus extremely misleading for the study to ask ordinary Pakistanis whether they support drones strikes that target such leaders. Would the results be the same if the study had asked participants whether they “supported or opposed the United States conducting drone attacks against low-level fighters believed to be members of extremist groups”? I doubt it.

It is a truism of the polling business that poll results are only as good as the questions participants are asked. In the case of the drone study reported in Lawfare, there is reason to be skeptical of both the questions and the answers.

UPDATE: After an email exchange with one of the authors, I think it’s only fair to acknowledge that the questions were formulated and asked by Pew, not by the research team. That said, I still question how useful the answers are, given the problems discussed above.

Guest Post: Cullis on Iran Sanctions

by Tyler Cullis

[Tyler Cullis is a Policy Associate at National Iranian American Council.]

Introduction

We’ll soon find out whether the decade-old nuclear dispute with Iran can be resolved diplomatically, as the parties return to Vienna next month to hammer out a comprehensive agreement. So far, negotiations have been deftly handled by both US and Iranian negotiators – the positive atmosphere, so critical to staving off domestic opposition, having been maintained over several months. But still, the most difficult issues remain on the table, including the number (and type) of centrifuges Iran will be permitted, the duration of a final agreement, and the timing of sanctions relief. Successfully concluding a nuclear deal will require compromise from both parties on each of these issues.

While much attention has zeroed in on Iran’s obligations under a final deal, few have discussed the specific modes by which the US will comply with its own commitments. This is troubling, especially insofar as the White House’s ability to provide Iran measurable sanctions relief, absent an affirmative act of Congress, is not assured. In fact, relieving the sanctions will involve difficult questions of law and policy that deserve far more extensive discussion than received at present. Below, I discuss a few of these issues, posing as they do hurdles perhaps as sizeable as Iran’s own centrifuges.

Treaty or Not to Treaty?

Soon after the Joint Plan of Action was inked in Geneva last November, questions arose as to the legal nature of the preliminary agreement: Was it binding as a matter of international law? If so, would it need to be submitted to the Senate (or, in Iran’s case, to the Majles) for approval?

Consensus, here and elsewhere, said no: the interim deal was left unsigned by the parties and had couched its commitments as “voluntary measures,” not mandatory ones. This, it was argued, signified that the P5+1 and Iran did not intend for the document to be either binding on the parties nor governed by international law. Drawbacks to this approach were obvious, but the upside was that each of the parties avoided the need for legislative approval at home (Iran, too, has constitutionally-mandated procedures to follow before an international agreement can be entered into and take domestic effect). Now that we are more than halfway through the interim period and both parties remain in full compliance with their “voluntary” obligations, the choice of informal agreement looks to have been the correct one.

Going forward, however, the central question will be whether the parties replicate this model in a final deal or instead cement a binding international agreement (i.e., a treaty). While the White House remains keen on insulating Congress as much as possible from playing spoiler and is thus unlikely to submit a final deal to the Senate for approval, there are several factors that ward against replicating the “soft law” nature of the Joint Plan of Action.

First, because the US will be required to offer more lasting sanctions relief than that provided under the Joint Plan of Action and, as of now, the President is limited in the kind of sanctions relief he can provide, Congress will be called upon to lift the sanctions at some point in this process. Whether to include Congress at the front- or back-end of a final deal remains a strategic question for the White House, but avoiding Congress altogether is no longer a plausible scenario. (Nor is more aggressive action from the White House likely. It is improbable that the White House will attempt to conclude a sole executive agreement with Iran that overrides contrary federal law and gives the President the authorities he needs to provide Iran the requisite sanctions relief. Such a step would prove a legal leap beyond that of Dames & Moore — the President not acting pursuant to Congressional authorization or acquiescence but rather in ways contrary to Congress’s clear direction.)

Second, unlike the interim deal, which was intended as both a confidence-building measure and a place-holder to allow the parties time to negotiate a final deal, the final agreement will be one where the obligations actually matter. (more…)

The Security Council Won’t Even Go Dutch with the ICC on Syria

by Kevin Jon Heller

There are many reasons to be skeptical of the Security Council referring the situation in Syria to the ICC, not the least of which is that an ICC investigation is unlikely to accomplish anything given the ongoing conflict. (One that Assad is almost certainly going to win.) But just in case that’s not enough, take a gander at this provision in the draft referral:

[The Security Council] recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily and encourages States to make such contributions.

In other words, the UN just wants to refer the situation; it doesn’t want to pay for the ICC’s investigation. So much for Art. 115 of the Rome Statute, which provides that “[t]he expenses of the Court and the Assembly of States Parties… shall be provided by the following sources… Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council”…

I have previously urged the Prosecutor to refuse to open an investigation into the situation in Syria unless the Security Council is willing to fund it. The draft referral makes clear that the Security Council has no intention of doing so. In the unlikely event that the referral ever passes, I hope the Prosecutor will consider my suggestion.

U.S. Funds Effort to Gather Evidence For Syrian War Crimes Prosecutions That Will Probably Never Happen

by Julian Ku

Jess Bravin has an interesting report out in Thursday’s WSJ (subscrip. req’d)  detailing U.S., UK, and EU support (and funding) for a team of investigators to gather evidence of war crimes by Syrian government and military officials.

For nearly two years, dozens of investigators funded by the U.S. and its allies have been infiltrating Syria to collect evidence of suspected war crimes, sometimes risking their lives to back up promises by Western leaders to hold the guilty accountable.

As Bravin notes, the U.S. government has issued several high profile statements warning that any war crimes committed in Syria would be punished and Syrian government officials and army commanders would be held accountable.  Gathering this evidence fulfills part of this pledge to hold war criminals accountable.

What is sad about this exercise, however, is that there is little evidence that the threat of eventual criminal prosecution (issued back in 2011 by Hillary Clinton) has deterred the commission of serious atrocities by the Syrian government.  The WSJ report suggest that the evidence being gathered is growing at depressingly fast rates (and this NYT report adds more horrific detail). Frankly, the threat of prosecution is either not credible, or less threatening to the Syrian army and government leaders than defeat in this increasingly desperate civil war.  (Professor Jide Nzelibe and I predicted this pattern of behavior by desperate dictators long ago in this article).

Moreover, as Bravin also notes, several diplomats have suggested that amnesty for some or all of the Syrian government’s leaders would have to be considered for any successful peace deal.  Since the U.S. military option to remove the current government is off the table, and since the civil war seems headed for a stalemate, it would be irresponsible of the U.S. to demand full accountability for war crimes as a condition of any peace deal.  To do so might just lead to more atrocities, and still no punishment.

Which means that there is not much chance that the evidence gathered by these brave and dedicated individuals described by Bravin will ever be used in a criminal prosecution.  Sure, it will be leverage during peace talks, but not much more than that.

Guest Post: Meloni–Can the ICC investigate UK higher echelons’ command responsibility for torture committed by the armed forces against Iraqi detainees?

by Chantal Meloni

[Dr. Chantal Meloni teaches international criminal law at the University of Milan is an Alexander von Humboldt Scholar at Humboldt University of Berlin.]

1. A new complaint (technically a Communication under art. 15 of the Rome Statute) has been lodged on the 10th of January to the Intentional Criminal Court, requesting the Prosecutor to open an investigation into the denounced abuses committed by UK military forces against Iraqi detainees from 2003 to 2008.

The complaint has been presented by the British Public Interest Lawyers (PIL), representing more than 400 Iraqi victims, jointly with the Berlin-based European Centre for Constitutional and Human Rights (ECCHR).

The lawyers’ allegation is that grave mistreatments, including torture and other degrading abuse techniques, were commonly used during the six years in which the UK and Multinational Forces operated in Iraq.

According to the victims’ account the mistreatment was so serious, widespread and spanned across all stages of detention as to amount to “systemic torture”. Out of hundreds of allegations, the lawyers focused in particular and in depth on eighty-five cases to represent the mistreatment and abuses inflicted, which would clearly amount to war crimes.

2. This is not the first time that the behaviour of the UK military forces in Iraq is challenged before the ICC. In fact, hundreds of complaints have been brought on various grounds both to domestic courts and to the ICC since the beginning of the war. As for the ICC, after the initial opening of a preliminary examination, following to over 404 communications by Iraqi victims, in 2006 the ICC Prosecutor issued a first decision determining not to open an investigation in the UK responsibilities in Iraq. According to that decision, although there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhumane treatment, the gravity threshold was not met. Indeed the number of victims that had been taken into account at that time was very limited, totalling in all less than 20 persons, so that the Prosecutor found that the ‘quantitative criteria’, a key consideration of the ICC prosecutorial strategy when assessing the gravity threshold, was not fulfilled.

Therefore, what is there new that in the view of the lawyers warranted the re-proposition of such a request? In the first place it shall be noted in this regard that during the eight years that passed since then many more abuse allegations have emerged (see the Complaint, p. 110 ff.). Most notably, hundreds of torture and mistreatment allegations show a pattern – spanning across time, technique and location – which would indicate the existence of a (criminal) policy adopted by the UK military forces when dealing with the interrogation of Iraqi detainees under their custody.

In the words of the lawyers, “it was not the result of personal misconduct on the part of a few individual soldiers, but rather, constituted widespread and systematic mistreatment perpetrated by the UK forces as a whole”. (more…)