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UN and other Int’l Organizations

Thoughts on the Baffling Comoros Declination

by Kevin Jon Heller

As I read – and re-read – the OTP’s decision regarding the attack on the Mavi Marmara, one thought kept going through my mind: what was the OTP thinking? Why would it produce a 61-page document explaining why, despite finding reason to believe the IDF had committed war crimes during the attack, it was not going to open an investigation? After all, the OTP took barely 10 pages to explain why it was not going to open an investigation into British war crimes in Iraq. And it routinely refuses to open investigations with no explanation at all.

There are, I think, two possible explanations for the length of the decision. The first is that the OTP learned its lesson with its 2006 Iraq decision, which no one found convincing and was widely interpreted as Luis Moreno-Ocampo succumbing to Western pressure. This time, the OTP was going to do better, providing a much more detailed discussion of its decision not to investigate.

The second possible explanation is that the OTP felt the need to say more than usual because this was the first time a state had referred crimes committed by another state to the OTP. Nothing in the Rome Statute requires the OTP to treat state referrals differently than “referrals” by individuals or organisations (the scare quotes are necessary because individuals and organisations don’t refer situations; they ask the OTP to use its proprio motu power to open an investigation into a situation), but the OTP is, of course, ultimately dependent upon states to cooperate with it. Hence greater solicitude toward state referrals is warranted.

These two explanations are not mutually exclusive, and I imagine both are at least partially correct. But I still can’t help but think that the OTP made a serious mistake, one that will come back to haunt it in the future, should it ever need to formally address the Israel/Palestine conflict again — which seems likely.

To be clear, I don’t think refusing to investigate the attack on the Mavi Marmara was a mistake. I agree with the OTP that the potential crimes committed during the attack, however troubling, are not grave enough to warrant a formal investigation. My problem is with the OTP’s explanation of why those crimes are not adequately grave – that attacks on peacekeepers (in Darfur) are more serious than an attack on civilians engaged trying to break a blockade that has been widely condemned as illegal because of its devastating consequences for the inhabitants of Gaza. I fully agree with Michael Kearney’s recent guest-post on the Comoros decision, in which he questions the OTP’s characterisation of the flotilla as not really being humanitarian. I’d simply add that I find problematic its insistence that a genuinely humanitarian mission would have worked with Israel to distribute goods in Gaza instead of trying to break the blockade. Doing so would have meant, of course, giving final say over the goods to a state whose officials have admitted they want to keep Palestinians at near-subsistence levels. Complying with the blockade would simply have made the flotilla complicit in Israel’s ongoing collective punishment of Gaza’s civilian population.

The OTP’s gravity analysis is also analytically confused…

This War of Mine — A New (and Better) Type of Videogame

by Kevin Jon Heller

Nearly nine years ago, I blogged about the ICRC’s efforts to prevent the use — or, more accurately, the misuse — of the Red Cross symbol in videogames. I imagine it will have less of a problem with the new game This War of Mine, which challenges the player to survive as long as possible as a civilian in a war-torn fictional city. Here is the powerful trailer for the game, which mixes survivor testimony with haunting in-game graphics:

And here is a snippet of a glowing (if that’s the right adjective) review of the game by Matt Peckham in Wired:

I’ve seen some refer to This War of Mine as an antiwar video game. That’s too reductive—like calling pictures of civilian casualties in conflict zones “pacifist propaganda.”

The scenarios This War of Mine engages are less antiwar than they are actual war stories, and that, I think, is the point: This is what unflinching war looks like from the standpoint of those powerless to stop it, the ones caught in the teeth of the machine without catchy operational monikers to rally behind or celebrated by politicians to usher them home as heroes. The ones whose war this isn’t.

It’s what Cormac McCarthy was getting at in The Road: We’re a faint signal cutting through the static of existence, and war, with its reduction of civilian lives to collateral damage, scrambles even that.

The version of war we’re often sold involves abstract military numbers, splashy interactive news maps and easy slogans on bumper stickers. In real war, whatever the reasons and however noble the rhetoric, it comes down to individuals like the ones in This War of Mine: People like you or me trapped in appalling scenarios, their social constructs crumbling, needing basic shelter, food, a bed to sleep in, pills or antibiotics, and perhaps most of all, a reason in all the madness not to check out for good.

Videogames are now a $15 billion industry. Here’s hoping at least some of that money goes to the innovative developers of This War of Mine for showing us the educative and transformative potential that well-designed videogames possess.

Guest Post: The ILC Project on the Identification of Customary International Law–Saving the Temple from Submergence

by Duncan French and Jean d'Aspremont

[Duncan French is the Head of Law School and a Professor of International Law at the University of Lincoln and Jean d’Aspremont is a Professor of International Law at the University of Manchester and a Professor of International Legal Theory at the University of Amsterdam.]

The two-day expert seminar on the identification of customary international law, co-organised by Lincoln Law School and the Manchester International Law Centre, took place on 13-14th November at the University of Lincoln. With the active participation of Sir Michael Wood, the Special Rapporteur of the International Law Commission (hereafter ILC) on the issue, the seminar witnessed the contribution of over 25 international lawyers from around the United Kingdom. Discussions focused on Sir Michael’s second report, the eight draft conclusions adopted by the ILC drafting committee and those issues yet to be considered in the preparation of the third report.

A blog for Opinio Juris in advance of the seminar entitled “Amidst the Academic Mania for the Identification of Customary International Law–The ILC and the Operative Value of Distinctions” had flagged many of the salient matters discussed during the seminar. As could be anticipated, interventions were made on the methodological aspects of the “two element” approach to the identification of customary international law, the role of international organizations in the determination of customary international law, inaction and acquiescence, and how customary international law has developed within particular areas of international law, notably in the economic and environmental spheres. There was also more wide-ranging discussion on, inter alia, the notion of opinio juris, the scope of the ILC conclusions, whether the development of human rights has impacted upon the identification of customary international law, international organizations, non-state actors, the role of the persistent objector, the relevance of specially affected states, the temporal inter-relationship between state practice and opinio juris, and the existence of special/local/regional custom, etc.

It is beyond the purpose of this blog to revisit the depth and richness of these exchanges. It will limit itself to formulating four sets of remarks.

First, there was general agreement among the participants that the scope of the ILC codification exercise is rightly restricted to the identification of customary international law. This was perceived as a pragmatic, and reasonable, delimitation. Nevertheless, it was acknowledged that one could not always easily distinguish between the formation, the identification and the evidence of customary international law. In that sense, it was highlighted that the current title was too narrow, and that, in the French text, the word (‘détermination’) captured more accurately the more nuanced and various complexities of the question. And this was not the only issue arising in the respective translations. The importance – both conceptually and practically – in the assessment of evidence in identifying customary international law [draft conclusion 3] takes on a subtly alternative understanding when interpreted as ‘áppreciation des moyens’.
Secondly, as indicated in the earlier blog, the practice and opinio juris of international organizations in the identification of customary international law – as distinct from the acts of States within and through such organizations – proved particularly contentious and triggered a lot of debate. The contribution of international organizations primarily raises the question as to whether the practice and opinio juris of international organizations should contribute generally to any customary rule, or only when it concerns the development of rules that will also bind international organizations. The Special Rapporteur and several participants indicated that, in their view, an organization can only contribute to the formation of a rule of customary law which it can potentially be bound by. This has to do with the self-commitment at the heart of the doctrine of customary international aw. It is also perhaps as a matter of equity between participants in the international legal system.

Equally, there was discussion as to which international organizations can contribute to the formation of customary international law. Legal personality is a seemingly determinate variable. Yet, a question remains as to whether there is a significant difference between organizations with a high degree of autonomy, those with more independent-minded secretariats and those international organizations that are member-state driven. It seems axiomatic that the greater the autonomy, the greater the extent to which the practice and the opinio juris of an international organization itself (in contrast to the acts of its members within the context of the organization) should contribute to customary international law.

The point was also made (more…)

November 19: UNWCC Event at SOAS

by Kevin Jon Heller

I want to call our London-area readers attention to a very interesting event I’ll be chairing on November 19. The event is entitled “Reinforcing International Criminal Justice: Building on the Work of the 1943-48 UN War Crimes Commission”; here is the description:

As part of Centre for International Studies and Diplomacy’s Research Programme on UN War Crimes Commission which was published in the Criminal Law Forum, CISD will be holding a Panel Discussion on recently disclosed archives from the United Nations War Crimes Commission (1943-48), uncovering a critical gap in the historical narrative of World War II and the development of international criminal law, upon which the international community can draw in view of strengthening the effectiveness of the International Criminal Court and sharpening international responses to contemporary war crimes and crimes against humanity.

And here are the participants:

Overview: Shanti Sattler (by skype)

Shanti Sattler is the assistant director of the War Crimes Project at the Center for International Studies and Diplomacy at SOAS, University of London.

Complementary Justice: Dr Mark Ellis

Mark Ellis is Executive Director of the International Bar Association (IBA) and leads the foremost international organisation of bar associations, law firms and individual lawyers in the world.

Torture: Dr Lutz Oette

Dr Lutz Oette is Counsel at REDRESS and a lecturer in law at the School of Law, SOAS, University of London.

Prosecution of Sexual Crimes and of Low Level Officials: Dr Dan Plesch

Dr Dan Plesch is the Director of the Centre for International Studies & Diplomacy at SOAS, University of London.

Additional information about the event, which is open to the public and does not require registration, is available here. Readers with a particular interest in the UNWCC’s underappreciated work should also check out CISD’s amazing website here.

What Happens if Comoros Appeals? (Answer: Not Much.)

by Kevin Jon Heller

According to Marlise Simons at the New York Times, Comoros intends to appeal the OTP’s decision not to open a formal investigation into Israel’s attack on the MV Mavi Marmara. That’s its right — but it’s a right without a remedy, because the judges cannot order the OTP to investigate the attack. The relevant provision in the Rome Statute is Art. 53:

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

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

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

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

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

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

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

The problem for Comoros is that the OTP refused to open a formal investigation because it concluded that the crimes in question are not grave enough to warrant investigation — Art. 53(1)(b). As a result, although Comoros has the right under Art. 53(3)(a) to ask the Pre-Trial Chamber (PTC) to review the OTP’s decision, the PTC does not have the authority to order the OTP to investigate. All it can do is “request the Prosecutor to reconsider that decision” — to which she would no doubt reply, “thanks, but no.”

The situation would have been very different if the OTP had deemed the crimes adequately grave but refused to investigate because of the “interests of justice” — Art. 53(1)(c). In that case, the PTC would have had the right under Art. 53(3)(b) to review that decision sua sponte and the authority to refuse to confirm the OTP’s decision — which would presumably mean that the PTC could have ordered the OTP to formally investigate. It was thus a very smart move by the OTP to rely on gravity instead of the interests of justice.

No one quite knows what would happen if the PTC ever ordered the OTP to conduct a formal investigation against its will. Such a situation, of course, seems practically untenable. We’ll have to wait a while longer to find out.

The OTP Concludes Israel Is Still Occupying Gaza

by Kevin Jon Heller

As Thomas Escritt has reported for Reuters, the OTP has declined to open a formal investigation into Israel’s attack on the MV Mavi Marmara. I will have much more to say about the decision tomorrow; I agree with the OTP’s conclusion but have serious problems with much of its reasoning. But I thought I’d tease tomorrow’s post by noting that, despite the declination, Israel is going to be very angry at the OTP — because the OTP specifically concludes (as part of its decision to classify the conflict as international) that Israel is still occupying Gaza. Here are the relevant paragraphs:

26. Israel maintains that following the 2005 disengagement, it is no longer an occupying power in Gaza as it does not exercise effective control over the area.

27. However, the prevalent view within the international community is that Israel remains an occupying power in Gaza despite the 2005 disengagement. In general, this view is based on the scope and degree of control that Israel has retained over the territory of Gaza following the 2005 disengagement – including, inter alia, Israel’s exercise of control over border crossings, the territorial sea adjacent to the Gaza Strip, and the airspace of Gaza; its periodic military incursions within Gaza; its enforcement of no-go areas within Gaza near the border where Israeli settlements used to be; and its regulation of the local monetary market based on the Israeli currency and control of taxes and customs duties. The retention of such competences by Israel over the territory of Gaza even after the 2005 disengagement overall supports the conclusion that the authority retained by Israel amounts to effective control.

28. Although it no longer maintains a military presence in Gaza, Israel has not only shown the ability to conduct incursions into Gaza at will, but also expressly reserved the right to do so as required by military necessity. This consideration is potentially significant considering that there is support in international case law for the conclusion that it is not a prerequisite that a State maintain continuous presence in a territory in order to qualify as an occupying power. In particular, the ICTY has held that the law of occupation would also apply to areas where a state possesses “the capacity to send troops within a reasonable time to make the authority of the occupying power felt.” In this respect, it is also noted that the geographic proximity of the Gaza Strip to Israel potentially facilitates the ability of Israel to exercise effective control over the territory, despite the lack of a continuous military presence.

29. Overall, there is a reasonable basis upon which to conclude that Israel continues to be an occupying power in Gaza despite the 2005 disengagement. The Office has therefore proceeded on the basis that the situation in Gaza can be considered within the framework of an international armed conflict in view of the continuing military occupation by Israel.

I’m not certain I agree with this analysis, though the OTP’s conclusion is far from unreasonable. Regardless, let the fireworks begin…

Huge Win in the Zimbabwe Torture Docket Case

by Kevin Jon Heller

Earlier this year, Chris Gevers blogged about the Zimbabwe Torture Docket case, in which the Constitutional Court of South Africa was asked to determine whether the South African Police Service (SAPS) is required to investigate allegations that high-ranking government and security officials in Zimbabwe committed acts of torture. Those acts took place solely in Zimbabwe and involved only Zimbabweans, so the key issues in the case were (1) whether South Africa’s adoption of universal jurisdiction over torture obligated SAPS to investigate the torture, and (2) if so, what conditions, if any, qualified that obligation.

As Chris noted in his post, I and three other international criminal law scholars (Gerhard Kemp, John Dugard, and Hannah Woolaver, with Hannah doing most of the heavy lifting) filed an amicus brief with the Court addressing the question of whether anything in international law prohibits a state from opening a universal-jurisdiction investigation in absentia — without the presence of the suspect. That was a critical sub-issue in the case, because although the Zimbabwean suspects travel regularly to South Africa, they would not necessarily be present at the beginning of a SAPS investigation.

The Court released its decision today — and it’s a complete win for the amici and (far more importantly) for the excellent Southern Africa Litigation Centre (SALC), which brought the case. First, with regard to the in absentia issue, the Court agreed with amici that international law did not prohibit universal-jurisdiction investigations in absentia (p. 27). I won’t rehash the Court’s analysis, but I do want to quote the Court’s excellent explanation of why states should be allowed to conduct such investigations (p. 28):

[48] This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate  charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.

The Court then proceeded to hold that SAPS not only had the right to open a universal-jurisdiction investigation into torture in Zimbabwe, it had an obligation to do so — a remarkable position for the Court to take…

The ICC, Continuing Crimes, and Lago Agrio

by Kevin Jon Heller

Lawyers for the Lago Agrio plaintiffs have filed a communication with the ICC asking the OTP to investigate Chevron officials for alleged crimes against humanity in connection with the company’s “rainforest Chernobyl” in Ecuador. Ecuador ratified the Rome Statute in 2002.

Regular readers know my sympathies — both ethical and legal — lie squarely with the Lago Agrio plaintiffs. The only thing more unconscionable than Chevron’s destruction of the rainforest in Ecuador is its willingness to lie and manufacture evidence in order to avoid paying for its destruction. In a world with better criminal laws, I have no doubt that the CEO of Chevron and everyone else involved in the company’s misdeeds would be serving long prison sentences somewhere.

But we do not live in a world with better laws, and unfortunately the Lago Agrio plaintiffs’ communication faces a steep uphill battle. To begin with, the communication is not quite sure what Chevron has done that qualifies as a crime against humanity. It oscillates — very confusingly — between failing to pay the damages award in Ecuador (p. 19), attempting to cover up the extent of the pollution in Ecuador (p. 23), engaging in unsavoury litigation practices (p. 25), maintaining the polluted conditions (p. 36), and causing the pollution in the first place (p. 36). Those are, of course, very different arguments.

One thing is clear: the ICC could not prosecute Chevron’s deliberate dumping of more than 18 billion gallons of toxic waste-water into the Lago Agrio region, because that dumping occurred long before 1 July 2002, when the Rome Statue entered into force. That’s too bad, because I think a strong case can be made that intentional pollution of an area occupied by civilians could, in the right circumstances, qualify as a number of crimes against humanity — from forcible transfer to persecution to “other inhumane acts.” As the plaintiffs rightly note (p. 27), an “attack on a civilian population” does not have to involve physical violence.

That said, the communication seems to suggest that the plaintiffs view the contamination as some kind of continuing crime. It claims (p. 40), for example, that the potential crimes against humanity involved in the dumping “continue even today.” The idea seems to be that those crimes will continue until Chevron remediates the pollution — similar to the idea, promoted by various scholars, that Israel’s illegal transfer of its civilians into the West Bank will qualify as a crime against humanity until such time as the settlements are disbanded or that enforced disappearances continue until the responsible government identifies the fate of the victims. It is an open question whether the ICC will even recognise continuing crimes, as the ICTR has. I’m skeptical, given the drafters of the Rome Statute’s quite deliberate decision not to give the ICC retroactive jurisdiction. Few Latin American governments would have ratified the Rome Statute if they knew that their actions during the Dirty War would be open to judicial scrutiny.

But let’s assume the ICC will recognise continuing crimes. Would that mean the Lago Agrio plaintiffs have a case? It’s an interesting question. As noted above, it’s possible that Chevron’s deliberate pollution of the Lago Agrio region qualified as the crime against humanity of forcible transfer; “forcible” doesn’t require physical force and the defendant(s) do not have to intend to drive people fro where they are lawfully entitled to be. (They simply have to be virtually certain that will be the result.) So there is at least an argument that Chevron is responsible for forcible transfer until it cleans up the region to the point where displaced residents can return to their homes. But I can’t see the ICC accepting that argument, if only because of the potential implications — there are probably dozens of situations in member-states in which pollution predictably drove people from their homes and continues to prevent their return. That’s the problem with “continuing crimes”: they simply throw open the courthouse door in a manner the drafters of the Rome Statute were unlikely to have intended.

But that is not the only problem with the communication. Even if the ICC recognised continuing crimes, it is not clear how the current crop of Chevron officials could be held responsible for the (continuing) forcible transfer of people from Lago Agrio. Aiding and abetting would seem to be the most likely mode of participation, given that those officials presumably had nothing to do with the dumping of the waste (which was done by Texaco, which Chevron later acquired). Not paying the judgment and litigation misconduct, though reprehensible, would hardly qualify as aiding and abetting the forcible transfer. (I suppose one could argue paying the plaintiffs would make it easier for them to return home, but I can’t see the ICC convicting someone on such an attenuated basis.) The only real argument would be that Chevron’s current officials are aiding and abetting the continuing forcible transfer by failing to remediate the environmental damage in Lago Agrio. That is not a nonsensical idea, but it seems unlikely to succeed. Art. 25(3)(c) aiding and abetting would almost certainly be off the table, because it would require the Chevron officials to subjectively intend for people in Lago Agrio not to be able to return to their homes. No matter what you think of Chevron — and I obviously think precious little — that would be nearly impossible to prove. More likely is Art. 25(3)(d)’s version of aiding and abetting, contributing to a group crime, which would “only” require the OTP to prove that Chevron officials contributed to the forcible transfer by impeding remediation despite knowing that Chevron intended for the displacement to continue. Again, no matter what you think of Chevron’s remediation efforts (much of which was fraudulent), that’s a stretch. Not impossible, to be sure. But a stretch.

In short, unless the ICC is willing to recognise continuing crimes and adopt a very capacious understanding of aiding and abetting, it is difficult to see the OTP opening an investigation into the Lago Agrio situation. All of the other crimes against humanity identified by the Lago Agrio plaintiffs — murder, persecution, other inhumane acts — clearly took place, if they took place at all, long before 1 July 2002. And the current Chevron officials can hardly be held accountable for them.

Lawfare Podcast on al-Bahlul

by Kevin Jon Heller

While in DC last week for the ICC/Palestine event at George Mason — I’ll post a link to the video when it becomes available — I had the pleasure of sitting down with Lawfare’s Wells Bennet and Just Security’s Steve Vladeck to discuss the oral argument at the DC Circuit on the al-Bahlul remand, which the three of us attended that morning. You can listen to the podcast at Lawfare here; Steve did most of the talking, because he understands the constitutional issues in the case better than anyone, but I weighed in a few times on the international-law side. I hope you enjoy it — and my thanks to Wells for inviting me to participate.

Mark Kersten on the Terror Attacks in Canada

by Kevin Jon Heller

These days, I usually use Twitter to point readers to blog posts that deserve their attention. But Mark Kersten’s new post at Justice in Conflict is so good — and so important — that I want to highlight it here. The post achieves the near-impossible, passionately indicting Canada’s right-wing government for creating a political environment ripe for terrorism without in any way suggesting that Wednesday’s terror attacks were justified. It’s a truly brilliant post, from top to bottom. Here is a snippet, concerning the Harper government’s foreign-policy disasters:

The Canadian government has actively pursued a political philosophy of retribution and control that tarnishes the country’s image as an ‘honest international broker’. Harper’s record attests to an unyielding mission to reshape Canada’s international identity as a tough and hard-power state. The Harper government plays the part of destructive belligerent in climate change negotiations and tar-sands cheerleader. It is first in line to threaten Palestine with “consequences” if Ramallah pursues accountability for alleged crimes committed by Israeli forces in Gaza. While it isn’t usually described as such (many prefer terms like “militarily engaged”), the reality is that Canada has been at war, primarily in Afghanistan, for most of the last decade. And while we should judge each decision to engage in wars on their own terms, the government has positioned itself as a military – rather than diplomatic or humanitarian – middle power. The role of Canadian citizens in the Afghan detainee scandal has been swept under the rug. The government willfully left a child soldier, Omar Khadr, to rot in Guantanamo and were the only Western government not to request the repatriation of their citizens from that nefarious island prison. It left Abousfian Abdelrazik, a Canadian citizen wrongly accused of terrorism, stranded in Khartoum for years and threatened anyone who tried to help him return to Canada with aiding and abetting terrorism. In a country that takes pride in seeing Lester B. Pearson as the father of peacekeeping, the government prefers to count the number of fighter jets it will buy than the number of peacekeepers it deploys. And, making matters worse, those who disagree with the Harper government’s approach to being “hard on crime”, “tough on justice”, and “a military power” are too often portrayed as naive or betraying Canadian values.

Sadly, it’s not just Canada that has pursued the kind of right-wing policies that make horrific acts of terrorism more likely. Very similar posts could — and should — be written about the Key government in New Zealand, the Abbott government in Australia, and (yes) the Obama government in the US. These misguided policies have done next to nothing to prevent terrorism; they create the illusion of security, not its actuality. Indeed, insofar as they do little more than further radicalize the populations they affect, the policies have made us all that much less safe.

Read Kersten. And if you are on an academic committee that is looking to appoint a brilliant young lecturer, hire him.

Panel at George Mason on the ICC and Palestine

by Kevin Jon Heller

I will be participating next week in what should be an excellent event at George Mason University on the ICC and Palestine. The other participants are all excellent — David Luban, Meg DeGuzman, George Bisharat, and the organizer, Noura Erakat. Here is the flyer:

FINALFLYEROCTOBERPANELJpeg

I hope at least some Opinio Juris readers will be able to attend and hear my dire prognostications in person. (If you do, make sure to come say hello.) The event will be live-streamed for those that do not live nearby.

The Invention of the Khorasan Group and Non-Imminent Imminence

by Kevin Jon Heller

I will be back blogging regularly soon, but I want to call readers’ attention to a phenomenal new article at the Intercept by Glenn Greenwald and Murtaza Hussain about how the US government has cynically manipulated public fears of terrorism in order to justify its bombing campaign in Syria. Recall that Samantha Power — the UN Ambassador formerly known as a progressive — invoked the scary spectre of the Khorasan Group in her letter to the Security Council concerning the US’s supposed right to bomb terrorists in Syria in “self-defence.” As it turns out, not only is there literally no evidence that the Khorasan Group intends to launch an imminent attack on US interests — unless “imminent” is defined as “sometime before the Rapture” — there is also very little evidence that the Khorasan Group actually exists in a form that could threaten the US. Here is a snippet from the article on the latter point:

Even more remarkable, it turns out the very existence of an actual “Khorasan Group” was to some degree an invention of the American government. NBC’s Engel, the day after he reported on the U.S. Government’s claims about the group for Nightly News, seemed to have serious second thoughts about the group’s existence, tweeting “Syrian activists telling us they’ve never heard of Khorosan or its leader.”

Indeed, a NEXIS search for the group found almost no mentions of its name prior to the September 13 AP article based on anonymous officials. There was one oblique reference to it in a July 31 CNN op-ed by Peter Bergen. The other mention was an article in the LA Times from two weeks earlier about Pakistan which mentioned the group’s name as something quite different than how it’s being used now: as “the intelligence wing of the powerful Pakistani Taliban faction led by Hafiz Gul Bahadur.” Tim Shorrock noted that the name appears in a 2011 hacked Stratfor email published by WikiLeaks, referencing a Dawn article that depicts them as a Pakistan-based group which was fighting against and “expelled by” (not “led by”) Bahadur.

There are serious questions about whether the Khorasan Group even exists in any meaningful or identifiable manner. Aki Peritz, a CIA counterterrorism official until 2009, told Time: “I’d certainly never heard of this group while working at the agency,” while Obama’s former U.S. ambassador to Syria Robert Ford said: ”We used the term [Khorasan] inside the government, we don’t know where it came from…. All I know is that they don’t call themselves that.”

I don’t know for a fact that the Khorasan Group doesn’t exist. But it is profoundly troubling that the Obama administration has provided no evidence that it does — especially given that its case for the international legality of bombing Syria is based so heavily on the supposed threat the Khorasan Group poses to the “homeland.”

And let’s not forget that the Obama administration is doing everything it can to denude the concept of “self-defence” of all meaning. Here is the Intercept article on the “imminent” threat posed to the US by the maybe-existing Khorasan Group:

One senior American official on Wednesday described the Khorasan plotting as “aspirational” and said that there did not yet seem to be a concrete plan in the works.

Literally within a matter of days, we went from “perhaps in its final stages of planning its attack” (CNN) to “plotting as ‘aspirational’” and “there did not yet seem to be a concrete plan in the works” (NYT).

Late last week, Associated Press’ Ken Dilanian – the first to unveil the new Khorasan Product in mid-September – published a new story explaining that just days after bombing “Khorasan” targets in Syria, high-ranking U.S. officials seemingly backed off all their previous claims of an “imminent” threat from the group. Headlined “U.S. Officials Offer More Nuanced Take on Khorasan Threat,” it noted that “several U.S. officials told reporters this week that the group was in the final stages of planning an attack on the West, leaving the impression that such an attack was about to happen.” But now:

Senior U.S. officials offered a more nuanced picture Thursday of the threat they believe is posed by an al-Qaida cell in Syria targeted in military strikes this week, even as they defended the decision to attack the militants.

James Comey, the FBI director, and Rear Adm. John Kirby, the Pentagon spokesman, each acknowledged that the U.S. did not have precise intelligence about where or when the cell, known as the Khorasan Group, would attempt to strike a Western target. . . .

Kirby, briefing reporters at the Pentagon, said, “I don’t know that we can pin that down to a day or month or week or six months….We can have this debate about whether it was valid to hit them or not, or whether it was too soon or too late… We hit them. And I don’t think we need to throw up a dossier here to prove that these are bad dudes.”

Regarding claims that an attack was “imminent,” Comey said: “I don’t know exactly what that word means… ‘imminent’” — a rather consequential admission given that said imminence was used as the justification for launching military action in the first place.

According to the Obama administration, in short, the US is entitled to act in self-defence against “bad dudes” no matter when — or even if — those “bad dudes” might launch an armed attack against the US. This isn’t even the Bush administration’s “anticipatory self-defence.” This is, for lack of a better expression, “hypothetical self-defence.” Apparently, the US government believes it is entitled to use force against a non-state actor anywhere in the world as long as it can imagine a future state of affairs in which that actor would attack it.

The mind — and international law — reels.