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Non-State Actors

Final Thoughts on the Bar Human Rights Committee’s Letter

by Kevin Jon Heller

Kirsty Brimelow QC, the chair of the Bar Human Rights Committee (BHRC) — and a colleague of mine at Doughty Street Chambers — has responded to my position on the 2009 Declaration, as recounted by Joshua Rozenberg in this Guardian article. Here is the relevant paragraph:

Neither Rozenberg’s opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support of their positions. This is hardly surprising given that the decision does not in fact “formally reject” the 2009 declaration.

Although I stand behind my claim that the OTP “formally rejected” the 2009 Declaration in its 2012 decision, Kirsty correctly points out that I did not cite the text of the decision. So I think it’s useful to summarise the text and quote it where appropriate:

[1] The 2009 Declaration purported to accept the Court’s jurisdiction over the situation in Palestine on an ad hoc basis, retroactive to 1 July 2002 (para. 1).

[2] Per Art. 15 of the Rome Statute, the OTP initiated a preliminary examination “in order to determine whether there was a reasonable basis to proceed with an investigation” (para. 2).

[3] The OTP stated that the first step in that inquiry was to determine whether it had jurisdiction over the events in Palestine. In that regard, it noted that “only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction” (para. 3)

[4] The OTP pointed out that only a “State” can accept the Court’s jurisdiction on an ad hoc basis under Art. 12(1) of the Rome Statute (para. 4), which meant that the key issue with regard to the Declaration was whether Palestine qualified as a State (para. 5).

[5] The OTP concluded that it did not have the authority to decide whether, as a matter of law, Palestine was a State; that responsibility was “for the relevant bodies at the United Nations or the Assembly of States Parties” (para. 6).

[6] The OTP acknowledged that numerous states had acknowledged Palestine’s statehood and that Palestine had applied for membership as a State in the UN, but insisted that although the UN application was relevant, “this process has no direct link with the declaration lodged by Palestine” (para. 7).

[7] The OTP said it “could in the future consider allegations of crimes committed in Palestine” if the statehood issue was “eventually” resolved by the UN or ASP (para. 8).

Although the decision is not the picture of clarity, I still think it qualifies as a “formal rejection” of the 2009 Declaration. The Declaration formally requested the OTP accept jurisdiction and investigate the situation in Palestine. The OTP opened a preliminary examination, as required by the Rome Statute, but then ended that examination at the first step, concluding that it did not have jurisdiction over the events in question because Palestine could not establish that it was a State. That’s a rejection, even if the OTP — to use a common-law phrase — dismissed the Declaration without prejudice.

My guess is that paragraph 8 is the crux of the disagreement between the BHRC experts and me. They are reading it as a statement that the OTP would essentially hold onto the Declaration until the UN or ASP clarified Palestine’s status as a state, at which point it could then advance the preliminary examination. It’s possible — but I think the OTP would have said as much if that’s what paragraph 8 meant. I read the paragraph as making clear the OTP was rejecting the Declaration without prejudice to a later ad hoc declaration — a reading, not incidentally, that seems to square with Fatou Bensouda’s recent statement that the OTP won’t act without a new Declaration or Palestine’s ratification of the Rome Statute.

I also want to make clear that I disagree with Rozenberg’s statement that the BHRC “is at best naive, and at worst misleading, for suggesting [the] legal situation is beyond doubt.” I don’t think there is anything naive or misleading about the letter, even though I disagree with it. These are very difficult issues, over which reasonable people can disagree. And there is, of course, nothing wrong with advocates advocating.

Finally, I want to sincerely apologise to the BHRC for revealing that I had been asked to sign the letter. Although I waited for the letter to appear publicly before commenting on it, I should not have mentioned that I had been approached.

My Podcast on Palestine and the ICC — and an Additional Thought

by Kevin Jon Heller

I had the pleasure of doing a podcast yesterday with Mark Leon Goldberg, purveyor of the essential UN Dispatch website, on the possibility of Palestine ratifying the Rome Statute or accepting the Court’s jurisdiction on an ad hoc basis. It’s about 20 minutes long, and you can find it here (or on iTunes).

I do want to mention another aspect of Palestine’s decision — one I hadn’t thought about until I read this excellent article in the Guardian by Joshua Rozenberg. (And it’s not just excellent because he quotes me.) As I discuss in the podcast, Palestine has two roads to a potential ICC investigation of Operation Protective Edge: (1) accept the Court’s jurisdiction on an ad hoc basis retroactive to 29 November 2012, the date of UNGA Res. 69/17; or (2) ratify the Rome Statute and then file an ad hoc declaration retroactive to 29 November 2012. Although both roads would give the ICC jurisdiction over the situation in Gaza, there is actually a critical procedural difference between them — assuming that the OTP wanted to investigate (which I still think is extremely unlikely). If Palestine simply accepts the Court’s jurisdiction on an ad hoc basis, the OTP’s decision to investigate would be considered proprio motu — and that decision would be subject to review by the Pre-Trial Chamber. (See, in that regard, the Cote d’Ivoire situation.) By contrast, if Palestine ratified the Rome Statute and then filed an ad hoc declaration, the OTP’s decision to investigate would be based on the referral of a State Party — and would not be subject to Pre-Trial Chamber review.

We’ll see what happens…

Three Thoughts on the OTP’s Rejection of Jurisdiction over the Situation in Palestine

by Kevin Jon Heller

The ICC Office of the Prosecutor has just released the following statement:

Palestine is not a State Party to the Rome Statute, the founding treaty of the ICC; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the November 2012 United Nations General Assembly Resolution (67/19), which accorded non-member observer State status to Palestine.

The ICC has no jurisdiction over alleged crimes committed on the territory of Palestine.

I have three thoughts on the statement. First, the OTP clearly believes that the 2009 Declaration by the Palestinian Authority is void. If Palestine wants the OTP to investigate, it will have to either ratify the Rome Statute or file a new declaration accepting the Court’s jurisdiction on an ad hoc basis.

Second, it seems equally clear that the OTP will not accept a Palestinian declaration accepting jurisdiction over events prior to before 29 November 2012, when the UNGA adopted Res. 67/19. The statement strongly implies — if it doesn’t quite say it explicitly — that Palestine’s statehood, at least for the ICC’s purposes, began on that date. Any other conclusion is difficult to reconcile with the statement’s emphasis on Res. 67/19; the fatal flaw of the 2009 Declaration seems to be that it was made before the UNGA upgraded Palestine’s status.

Third, the statement’s reference to “the territory of Palestine” raises the possibility that the OTP will not accept an ad hoc declaration that is limited to Gaza — even one that properly focuses, as the 2009 Declaration did, on crimes committed by both parties to the conflict. To be sure, the reference may just reflect casual or sloppy drafting; indeed, I see no reason why Palestine could not self-refer only the Gaza situation, given previous situations the OTP has accepted (Northern Uganda, Ituri, Darfur, etc.) But it’s a point to ponder going forward.

Bar Human Rights Committee of England and Wales Asks OTP to Investigate Gaza (Updated)

by Kevin Jon Heller

The request is supported by a number of leading QCs and professors in Britain. (Full disclosure: three of the signatories are barrister members and one is an academic member of Doughty Street Chambers, with which I’m associated.) Here is the Bar Human Rights Committee’s summary:

Public international law and criminal law Q.C.s and Professors based in Britain join with the Bar Human Rights Committee of England and Wales to urge the Prosecutor of the International Criminal Court (ICC) to initiate a preliminary investigation into crimes being committed in the Gaza Strip.

In response to the extreme gravity of the situation in the Gaza Strip, including spiralling civilian deaths and large scale destruction of homes, hospitals and schools, the Bar Human Rights Committee of England and Wales, supported by leading Q.Cs and Professors, has submitted a formal request, calling upon the Prosecutor of the International Criminal Court to initiate an investigation, pursuant to Article 15 of the Rome Statute.

The letter of request was submitted to the ICC on 3rd August 2014. It asserts that the 2009 Declaration, submitted by the Government of Palestine pursuant to Article 12(3) of the Rome Statute, provides the prosecutor with the necessary jurisdictional basis on which to act.

Kirsty Brimelow Q.C., Chair of the Bar Human Rights Committee, stated: “The initiation of an investigation would send a clear and unequivocal message to those involved in the commission of these crimes that the accountability and justice called for by the United Nations on the part of victims are not hollow watchwords. It would bring about an end to the impunity which has prevailed in the region to date, fuelling ever increasingly brutal cycles of violence. The international community cannot continue to act simply as witness to such bloodshed and extreme civilian suffering.”

I declined to sign the request, despite my profound respect and admiration for the signatories. Although I have no doubt that serious international crimes have been committed by both Israel and Hamas in Gaza, I find the request problematic. Moreno-Ocampo formally rejected the Palestinian Authority’s 2009 Declaration on behalf of the OTP, and the UNGA did not give Res. 67/19 — which upgraded Palestine to non-member-state status — retroactive effect. In my view, therefore, the 2009 declaration is effectively (and perhaps even legally) void. That conclusion is supported by Fatou Bensouda’s public statement that “the ball is now in the court of Palestine”, “Palestine has to come back,” and “we are waiting for them.”

The bottom line for me is that Palestine needs to submit a new declaration accepting the ICC’s jurisdiction on an ad hoc basis. (Assuming the Palestinian Authority has the authority to do so — about which see my previous post.) That declaration should refer the situation in Gaza, not simply Israel’s crimes, as the 2009 Declaration properly did. (The primary reason I do not believe the complaint filed by the Palestinian Authority’s Justice Minister can be considered an ad hoc declaration is that it singles out Israel for investigation.) The declaration should also clearly specify the temporal parameters of the jurisdiction Palestine is giving to the ICC. Any attempt to accept the Court’s jurisdiction retroactive to 1 July 2002, when the Rome Statute entered into force, is likely to fail, because I seriously doubt that the OTP wants to determine when Palestine became a state. The most plausible date for retroactive jurisdiction would be 29 November 2012, when the UNGA adopted Res. 67/19. (Like many others, I believe Palestine qualified as a state long before that. But I wouldn’t be the one deciding whether to investigate.)

In short, and again with the greatest respect to the signatories of the present request, I do not think it is wise to pursue what seems to me to be a procedural shortcut to ICC jurisdiction over the situation in Gaza. If the ICC is to become involved in the most heavily politicised conflict in recent history — and I think the likelihood the OTP would act on even a proper request is essentially zero — there should be no doubt whatsoever about either Palestine’s desire for an investigation or the ICC’s jurisdictional competence. If we’ve learned anything about the conflict in Gaza, it’s the importance of always crossing the legal “t’s” and dotting the legal “i’s.”

UPDATE: Multiple sources are reporting on Twitter that the ICC has announced it has no jurisdiction over the situation in Gaza. (See here, for example.) That would seem to put beyond doubt that any attempt to rely on the 2009 Declaration will fail.

Can the PA Ratify the Rome Statute? (A Response to Eugene)

by Kevin Jon Heller

As Eugene notes in today’s guest post, the Palestinian Authority (PA) appears to have decided to ratify the Rome Statute. I’ll believe it when I see it: the PA has threatened to ratify before, only to back down at the last moment. But could it? Most observers have assumed it could, but Eugene disagrees. I think his bottom line may well be right, as I will explain at the end of this post. But I have problems with other aspects of it.

To begin with, let’s dispense with Eugene’s claim that Abbas’s lack of control has an upside for him, because it “prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.” Abbas has neither de jure nor de facto effective control over the members of the groups (especially Hamas) that are responsible for the rocket attacks on Israel. Nor does it seem likely that he would be part of the military chain of command in a Fatah-Hamas unity government. So whatever the state of Palestine’s responsibility for the rocket attacks might be, it is extraordinarily unlikely that Abbas would ever be held individually criminally responsible for them — now or in the future.

I also think that Eugene is overreading the OTP’s rejection of Mohammed Morsi’s attempt to accept the ICC’s jurisdiction. In particular, I think he is eliding the difference between two different concepts of “effective control”: for purposes of determining the government of a state, and for purposes of determining whether part or all of a state’s territory is belligerently occupied. Here is the relevant paragraph of the ICC press release concerning the decision:

In accordance with the legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law. Application of that test, on both the date that the purported declaration was signed and the date it was submitted, lead to the conclusion that Dr Morsi was no longer the governmental authority with the legal capacity to incur new international legal obligations on behalf of the State of Egypt. The information available indicates that, at all material times, the applicants did not exercise effective control over any part of Egyptian territory, including on the date the declaration was signed. Nor would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

As the paragraph indicates, the OTP relied on effective control to determine which of two rival domestic Egyptian entities represented the government of Egypt. In that context, the OTP quite rightly decided that “the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law.” Morsi lost under that test, because his claimed failed all three conditions.

That concept of effective control has little to do with the concept of effective control in the law of occupation. Effective control in the latter context determines whether the law of occupation applies; it does not determine who the sovereign is in the occupied state. On the contrary, one state’s effective control over the territory of another state does not transfer sovereignty from the government of the occupied state to the occupying state; the government in the occupied state remains the occupied state’s government, even if it loses some of its powers of governance for the duration of the (ostensibly temporary) occupation.

I see no reason, therefore, why Israel’s occupation of the West Bank and possible occupation of Gaza would have any impact on the OTP’s decision to accept or reject the Palestinian Authority’s ratification of the Rome Statute. Even if the state of Palestine is completely occupied by Israel — which Israel obviously rejects — the government of Palestine is still the government of Palestine. Indeed, the only way that wouldn’t be true is if the state of Palestine suffered debellatio, understood as the complete destruction of a state’s sovereignty through conquest. If that were the case, then Israel would be the government of Palestine and would be entitled (exclusively) to make decisions on its behalf. That was the situation after World War II: because of the debellatio of the German state, the Allies, via the Control Council, exercised supreme legislative authority in Germany as a condominium. But that is hardly the case in Palestine, as both sides agree. (And in any case, the concept of debellatio may well have fallen into desuetude.)

All that said, I agree with Eugene’s claim that the Palestinian Authority may not qualify as the government of Palestine — at least without the inclusion of Hamas. According to Eugene, “Hamas came to power in a coup against Abbas’s government, and since the ‘statehood’ of Palestine, the latter has never exercise ‘effective control’ over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.” That’s an inaccurate description of the situation: Hamas was democratically elected by Palestinians in 2006, but was prevented from governing by Fatah until it seized control of Gaza in the 2007 civil war. Hamas’s election, however, only strengthens Eugene’s point, because it indicates that the Palestinian Authority may well have a Morsi problem if it attempts to ratify the Rome Statute without Hamas’s consent. The Palestinian Authority fails all of the elements of the OTP’s “effective control” test in the context of rival governments: it does not control all of the state of Palestine, it does not enjoy the “habitual obedience of the bulk of the population,” and it does not have “a reasonable expectancy of permanence.”

Nor, for that matter, does Hamas — for similar reasons. So it may well be that only a unity government between Fatah and Hamas, such as the one that Israel desperately tried to undermine prior to its invasion of Gaza, is competent to ratify the Rome Statute. Whether the Palestinians will still be able to form such a unity government remains to be seen.

Can Israel Cut Off Water and Power to Gaza?

by Kevin Jon Heller

That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):

Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights  duties. Thus, Israel cannot be held to a duty to supply.

Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):

Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.

The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion…

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.

Control Matters: Ukraine & Russia and the Downing of Flight 17

by Jens David Ohlin

The recent downing of Malaysian Airlines Flight 17, apparently by an anti-aircraft missile fired from within rebel-controlled territory in the Ukraine, has raised the specter that Russia is covertly (or not so covertly) supplying arms and assistance to the pro-Russian separatists operating within eastern Ukraine. Obviously, the facts here are somewhat contested and I have no insider or independent information about the firing of the missiles. What I say here is based on news reports in The New York Times and elsewhere, and our understanding of the situation is rapidly evolving.

But let’s assume, for the sake of argument, that this story (or something similar) turns out to be true. Let’s assume that the “BUK” anti-aircraft missile system was either provided to the Ukrainian rebels by Russian operatives, or that it was stolen by the rebels from the Ukrainian military, and then operated with assistance from Russian operatives and military advisors. It seems more likely that the missile system was provided directly by Russia, but even if the rebels stole it from the Ukrainian military, it seems unlikely that the untrained militia-members would have been capable of deploying it without Russian assistance. (Again, let’s just take this as an assumption, because alternate hypotheses exist, including the contention that the militia members are trained in anti-aircraft missile deployment because they are local defectors from the Ukrainian military).

If this story is true, it reveals how important the debate is, in international jurisprudence, between competing theories of control. This might seem like an obvious point, but the current situation in the Ukraine (vis-à-vis Russian influence) may stand at precisely the fault line between “effective control” and “overall control” – the two competing doctrines of attribution in international law.

As most readers already know, the effective control test was articulated in the ICJ’s Nicaragua judgment and offers a fairly robust set of standards for attributing the actions of an armed group to a particular state, essentially requiring that the armed units are operating on the instruction, or at the direction of, the foreign state. In these circumstances, the actions of the armed group can be attributed to the foreign state.

In contrast, the ICTY in Tadic declined to follow the ICJ’s Effective Control Test, and instead formulated and applied the broader Overall Control Test. The test was originally designed to determine in Tadic whether the armed conflict was an international armed conflict or a non-international armed conflict. If the conduct was attributable to a foreign state, then the armed conflict was international in nature. Subsequently, Cassese argued (correctly) that the test was, in fact, a general test for state responsibility. The test allowed for state responsibility in situations where a foreign power helped to coordinate the actions of an organized and hierarchically structured armed group by equipping, financing, or training the paramilitary force.

The dispute between these two tests is crucial because they really do give different answers in important cases. It seems to me that the Ukrainian situation falls directly on the fault line between the overall and effective control tests. If the Effective Control test applies, then it is not clear whether the shooting down of the airliner can be directly attributed to the Russian government (although that conclusion depends on which facts are unearthed in the investigation). On the other hand, if the Overall Control test applies, then there is a plausible argument that the shooting of Flight 17 can be attributed to Russia because their operatives probably helped train and equip, and coordinate, the activities of the pro-Russian militia. The Overall Control test supports the attribution of responsibility to Russia, while the Effective Control test probably does not.

Either way, one important insight about both tests is their black-and-white nature. Instead of a spectrum of control yielding different degrees of responsibility, the tests act as an on-off switch. Either there is state responsibility or there is not; either the acts are attributed or they are not. There is no sliding scale of responsibility based on the degree of foreign involvement or entanglement in the local affairs of the militia or paramilitary organization.

A final note on a related but distinct topic. It also seems pretty clear that pro-Russian militia were acting incompetently in shooting down the plane, assuming incorrectly that they were shooting down a military aircraft. How should one understand their level of culpability here? Recklessness comes to mind as the appropriate mental state since they probably did not engage in the appropriate due diligence to distinguish between military and civilian aircraft.

Although it is unclear whether this should be treated as an international crime (killing of civilians during an armed conflict) or a domestic crime (murder), I have to say that I have never found international criminal law’s treatment of crimes of recklessness particularly satisfying. Under domestic law, reckless killings are either classified as manslaughter or as the lowest degree of murder (such as depraved indifference to human life) depending on the jurisdiction and depending on the severity of the recklessness. Domestic law therefore produces a grading of the offense based on the lower mental state. In contrast, international criminal law has no lower offense for crimes of recklessness. Unlike the distinction between murder and manslaughter, a defendant is either convicted or acquitted of the war crime of killing civilians (with nothing in between).

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.

For Unrecognized Entities and Would-Be States, the World Cup is Already Over

by Chris Borgen

While awaiting the FIFA World Cup quarterfinal matches to begin, and U.S. Secretary of Defense Tim Howard taking a well-deserved rest, I thought it might be useful to check-in on the status of the ConIFA World Cup, the tournament among teams from unrecognized entities and would-be states.  The New York Times has just published a great pictorial of that tournament, which was held in June.

ConIFA, the Confederation of Independent Football Associations, explains on its website that it:

… is a global umbrella organization for all the football teams outside FIFA. There are more than 5 500 ethnicities around the world and hundreds of sportingly isolated regions that doesn´t have an international arena to play international football.

CONIFA welcome all registered Football Associations and teams to play. We organize the official World Championship for teams outside FIFA, Continental Championships, International tournament and Cups combined with Cultural Events and Youth Exchanges. The Football World outside FIFA is fast growing and millions of dedicated fans follow the scene – this is happening now…

Why aren’t these teams in FIFA, the international federation of football associations? Membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, England and Wales are separate associations, and thus separate World Cup teams. However, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Once a member of a confederation, an association may then apply for FIFA membership. Admission is based on a vote of the FIFA Congress, which is comprised of a representative of each member association. Article 10 of FIFA’s Statutes states:

Any Association which is responsible for organising and supervising football in all of its forms in its Country may become a Member of FIFA. Consequently, it is recommended that all Members of FIFA involve all relevant stakeholders in football in their own structure. Subject to par.5 and par.6 below, only one Association shall be recognised in each Country.

Paragraph 5 allows for separate membership for the British associations and paragraph 6 explains:

An Association in a region which has not yet gained independence may, with the authorisation of the Association in the Country on which it is dependent, also apply for admission to FIFA.

Thus, although membership in FIFA is technically not based on statehood, the process is based on statehood and defers to recognized national organizations. Consequently, unrecognized secessionist entities such as South Ossetia and Nagorno Karabakh have no real chance of having their football associations become part of a confederation, let alone FIFA. The New York Times further describes some of the results of FIFA’s membership process:

For many teams, membership confers legitimacy and a shot at reaching the World Cup finals, a huge stage from which to wave their nation’s flag.

Palestine — recognized as a “nonmember observer state” by the United Nations and a member of FIFA since 1998 — now has a national stadium near Ramallah and has attempted to qualify for four World Cup finals. Other teams, like Kosovo, have been unable to join European soccer’s governing body, UEFA, because of political lobbying from Serbia. When Gibraltar, a British overseas territory on the Iberian Peninsula claimed by Spain, tried to join FIFA, Spain threatened to pull all of its teams — including the powerhouses of Barcelona and Real Madrid — from the European Champions League and international football. Despite the political pressure, Gibraltar became a member of UEFA in 2013 and hopes to join FIFA next.

While not all the associations in the ConIFA World Cup are from entities that are attempting to become states, the politics of statehood nonetheless is one of the variables defining this World Cup among the unrecognized. If statehood is the gold standard of the international system, then being accepted by such a state-centric organization as FIFA is viewed by some as a mark of legitimacy. At the very least, it is a benefit that existing states may wish to deny to unrecognized separatists.

And so we get the ConIFA World Cup, which gets into the legitimacy game by calling itself the “official” tournament of associations not in FIFA.

Some results of note: South Ossetia beat Abkhazia on penalties in quarterfinals. Nice beat defending Padania (the defending champs, I believe)  in quarterfinals and then the Isle of Man in the finals. You can see the full ConIFA tournament results here. You can also read more about a previous World Cup among unrecognized entities in this post.

 

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

Let’s Call Killing al-Awlaki What It Still Is — Murder

by Kevin Jon Heller

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I’m a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I’m more disappointed by the memo’s failure to adequately address the most important issue regarding the “public authority justification,” which is at the heart of the memo’s conclusion that it would be lawful to kill al-Awlaki: how can the CIA be entitled to the public-authority justification when the CIA had no authority to use force against Al Qaeda in the Arabian Peninsula (AQAP)?

To understand why that’s a problem, let’s step back and consider what the memo says about whether the Department of Defense (DoD) had the legal authority to kill al-Awlaki. Remember, the memo was written before al-Awlaki was killed, at a time when it wasn’t clear which organisation — the DoD or the CIA — would actually kill him. (It was also written long after al-Awlaki was put on the kill list, as Hina Shamsi reminds us.)

The memo begins by emphasizing (p. 14) that its analysis — for both the DoD and the CIA — turns on whether 18 USC 1119, the foreign-murder statute, incorporates the “public authority justification” (PAJ). Indeed, it notes in n. 24 that the PAJ is the only defence it will consider. The memo then concludes (p. 20), after five pages of analysis, that in fact s 1119 does incorporate the PAJ. It’s an impressive analysis, and I find it convincing. So let’s grant that the PAJ potentially applies to the killing of al-Awlaki.

The question then becomes: who can invoke the public authority justification? The memo has little problem concluding that the DoD would be entitled to it, because (p. 20) “the operation would constitute the ‘lawful conduct of war’ — a well-established variant of the public authority justification.” In reaching that conclusion, the memo argues (1) that the AUMF covers AQAP, (2) that al-Awlaki qualifies as a targetable member of AQAP; (3) that the US is involved in a NIAC with AQ, making the laws of war applicable; and (4) that the DoD had pledged to obey the laws of war in any lethal operation.

I would quibble with much of the analysis, particularly the memo’s discussion of the scope of the non-international armed conflict between the US and “al-Qaeda.” But I’m prepared to accept that, in the abstract, the DoD would be entitled to invoke the PAJ. My problem is with the memo’s casual assertion that the PAJ applies equally to the CIA, which actually killed al-Awlaki. Here is its conclusion (p. 32)…