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UN and other Int’l Organizations

No, Going to the ICC Is Not “Lawfare” by Palestine

by Kevin Jon Heller

Just Security has published two long guest posts (here and here) on the ICC and Palestine by Nimrod Karin, a J.S.D. candidate at New York University School of Law who was previously Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations. There is much to respect about the posts, which are careful, substantive, and avoid needless hyperbole. And I agree with Karin on a surprising number of issues, particularly concerning the institutional reasons why (for better or worse) the ICC is likely to avoid opening a formal investigation into the situation in Palestine.

I disagree, though, with Karin’s insistence that Palestine has engaged in “lawfare” by ratifying the Rome Statute and using Art. 12(3) to accept the Court’s jurisdiction retroactive to 13 June 2014 — the day after the kidnapping and murder of the three young Israelis. Here is what he says in his second post (emphasis in original):

To readers who are utterly unsurprised by the dating of the ad hoc declaration I would simply add – likewise. It’s an example illustrating the strategic nature of the Palestinian multilateral maneuvering, which is squarely within their prerogative, acting as any other self-interested political entity would. But then maybe we should dial down the discourse depicting this as an idealistically motivated move – striking a blow for international criminal justice, or placing a conflict under the umbrella of law – and come to terms with the fact that the Palestinians are practicing lawfare by any other name, even at the expense of the values supposedly guiding their march to the ICC.

I wince whenever I see the term “lawfare,” because it is normally just short-hand for “I disagree with X’s legal actions.” Even if the concept has meaning, though, I don’t see how it can be used to describe what Palestine has done. To begin with, as Karin acknowledges, Palestine did not pluck the June 13 date out of thin air — it’s the same date that the Human Rights Committee selected for the beginning of the Schabas Commission’s mandate. Perhaps that was a political decision by the HRC, but Palestine can hardly be faulted for following its lead, especially given that it could have gone much further back in time (its first Art. 12(3) declaration purported to accept jurisdiction from 1 July 2002) — something for which Karin curiously gives Palestine no credit whatsoever.

I also don’t understand what is so troubling about the June 13 date. To be sure, the kidnap and murder of the three young Israelis was a horrific act. But it’s anything but clear whether Hamas leadership was responsible for their kidnapping and murder. It’s not even clear whether they were killed late on June 12 or early June 13 — the latter date within Palestine’s grant of jurisdiction. So how can Palestine’s choice of June 13 be some kind of devious move to maximise Israel’s criminal exposure while minimising its own?

More fundamentally, though, I simply reject the basic premise of Karin’s argument: namely, that taking a dispute to an international criminal tribunal with general jurisdiction can be seen as lawfare. Perhaps it’s possible to view tribunals with a one-sided mandate (de jure or de facto) as lawfare — the IMT prosecuting only Nazis, the ICTR prosecuting only Hutus. But the ICC? The ICC investigates situations, not specific crimes. By ratifying the Rome Statute and filing its Art. 12(3) declaration, Palestine has taken both Israel and itself to the ICC, not Israel alone. Palestine thus no longer has any control whatsoever over which individuals and which crimes the OTP investigates. That’s not lawfare, that’s bravery — especially given that, as I’ve pointed out time and again on the blog, the OTP is quite likely to go after Hamas crimes before it goes after Israeli crimes. In fact, the only lawfare being practiced in the context of Operation Protective Edge would seem to be by Israel, which has responded to the OTP’s preliminary investigation — which it opened as a matter of situation-neutral policy, not because of some kind of animus toward Israel — by condemning the ICC as a “political body” and launching a campaign to convince member states to stop funding it (which would be a clear violation of their treaty obligations under the Rome Statute).

I have little doubt that Palestine would be delighted if the ICC prosecuted only Israelis for international crimes. But it has to know how unlikely that is. Instead of condemning its decision to ratify the Rome Statute and submit an Art. 12(3) declaration as “lawfare,” therefore, we should be celebrating its commitment to international criminal justice. Indeed, if a state can practice lawfare by giving an international criminal tribunal the jurisdiction to investigate its own crimes as well as the crimes committed by its enemy, the concept has no meaning at all.

Why the Palestinian Authority Should Avoid Arafat’s Death

by Kevin Jon Heller

So this is a well-intentioned but problematic idea:

The Palestinians want the International Criminal Court (ICC) to launch an investigation into the death of Yasser Arafat, a senior Fatah official announced on Sunday.

Jamal Muheissen, member of the Fatah Central Committee, claimed that Israel was responsible for the death of Arafat, who died in November 2004.

“This file will be presented to the International Criminal Court,” Muheissen told the Palestinian Shms News Agency. “We want to bring the Israeli occupation to trial for every crime it committed against our people.”

[snip]

Arafat, who signed the 1993 Oslo interim peace accords with Israel but then led an uprising after subsequent talks broke down in 2000, died aged 75.

His death came four weeks after he fell ill following a meal, suffering from vomiting and stomach pains, in his Ramallah compound while surrounded by Israeli tanks.

To begin with, even if the Court had jurisdiction, it is unlikely that the OTP would investigate Arafat’s death. There are indeed significant questions about his death, and it would not surprise me if Israel is responsible for it. But the case is far from clear, and the OTP would be hard-pressed to investigate it effectively. So the OTP would almost certainly choose — if it ever opened a formal investigation into the situation in Palestine, which I continue to strongly doubt — to focus on much more obvious crimes committed by Palestine and Israel.

The jurisdictional issue, however, is the real kicker. Arafat died in 2004, so in principle his death is within the ICC’s temporal jurisdiction. And unlike my friend Dov Jacobs, I don’t think Palestine is categorically prohibited from accepting the Court’s jurisdiction earlier than 13 June 2014 through a second Art. 12(3) declaration. But does Palestine really want to force the Court to determine whether it was a state in 2004? The first declaration was very smart — although the judges will still have to decide at some point on Palestinian statehood, the fact that the declaration does not purport to accept jurisdiction prior to UNGA Resolution 67/19 makes it very unlikely the judges will second-guess the OTP. All bets would be off, though, with a second declaration that looked back to 2004. There would be no conflict between the judiciary and the OTP if the judges refused to conclude that Palestine was a state when Arafat died; on the contrary, the OTP seems to believe that Palestine was not a state — at least for purposes of ICC membership — until the UNGA upgraded its status. Moreover, the judges can’t exactly relish having to determine not only when Palestine became a state, but also the proper test for making that determination. So we can expect them to take a very conservative approach to Palestinian statehood.

There is little question that the case for Palestine’s statehood has received a significant boost by its membership in the ICC. The last thing Palestine should do now is risk undoing all of its good work by pushing the Court to investigate an unclear event committed more than a decade ago.

Unfortunately, the ICC Doesn’t Work the Way Palestine Wants It To

by Kevin Jon Heller

According to this report in the Times of Israel, the Palestinian Authority would be willing to forego the ICC if Israel agreed to freeze its settlement activity:

RAMALLAH — A senior Palestinian official said Sunday that the first subject to be brought before the International Criminal Court at The Hague in the Palestinian Authority’s legal campaign against Israel would be settlement construction.

The official told The Times of Israel that land seizures in occupied territory constituted a clear violation of international law. Still, he noted that the appeal to the ICC would be withdrawn if Israel were to freeze settlement construction, and added that the Palestinian Authority had conveyed to Israel an official message to that effect, through Jordan and Egypt.

Unfortunately, the Rome Statute does not allow Palestine to pursue this kind of bargaining strategy. To begin with, now that Palestine has submitted an Article 12(3) declaration and ratified the Rome Statute, the Palestinian Authority (PA) has no say in what, if anything, the OTP decides to investigate. If the OTP wants to investigate only Hamas’s rocket attacks, it can. If it wants to investigate only Israeli and Palestinian crimes in Gaza, ignoring the settlements entirely, it can. If it wants to investigate the settlements but only after dealing with all of the crimes in Gaza, it can. The PA needs to understand that. If it wanted to ensure that the OTP investigated settlements, it needed to avoid ratifying the Rome Statute and submit an Article 12(3) declaration that was limited to the West Bank. I don’t think the OTP would have acted on such a declaration, but that route would have at least limited the OTP to accepting or rejecting the PA’s terms — the OTP would not have had jurisdiction to examine events in Gaza. Once Palestine ratified the Rome Statute, however, it lost even that limited control. Now investigative and prosecutorial decisions are in the hands of the OTP.

For similar reasons, the PA could not “withdraw… the appeal to the ICC” if Israel froze the settlements. The OTP could investigate and prosecute settlement-related activity even if the PA was completely opposed to it doing so. (Just as Israel’s opposition to the Court is legally irrelevant.) The PA could not even prevent the OTP from investigating settlement activity by immediately withdrawing from the ICC — its Article 12(3) declaration would still be in effect, and Palestine would remain a member of the Court for another year. At best such a dramatic act would simply force the OTP to make investigative decisions more quickly.

The ICC might have been an effective bargaining chip with Israel (and Israel’s client state, the US) before the PA submitted the Article 12(3) declaration and ratified the Rome Statute. Once the PA took those steps, though, its leverage ended. Now the fate of the investigation into the situation in Palestine lies solely in the hands of the OTP.

New Essay: The Use and Abuse of Analogy in IHL

by Kevin Jon Heller

I have posted a long new essay on SSRN, my contribution to a fantastic collection of essays that OJ’s own Jens Ohlin is editing for Cambridge University Press, The Theoretical Boundaries of Armed Conflict & Human Rights. The essay is entitled “The Use and Abuse of Analogy in IHL,” and here is the abstract:

It is a truism to say that conventional international humanitarian law (IHL) regulates international armed conflict (IAC) far more extensively than non-international armed conflict (NIAC). In IAC, conventional IHL authorizes both targeting and detention and carefully circumscribes their use. In NIAC, by contrast, conventional IHL is silent on the authorization for targeting and detention and imposes only rudimentary limits on when individuals may be targeted or detained.

Like nature, however, international law abhors a vacuum. Many of the gaps in the conventional IHL of NIAC have been slowly filled by custom; the ICRC has concluded that 138 of the 161 customary rules of IHL now apply in both IAC and NIAC – nearly 86%. As a result, it is now common for scholars to claim that, with the notorious exceptions of the combatant’s privilege and POW status, very few critical differences remain between IAC and NIAC concerning the applicable rules of IHL.

From a positivist perspective, the gradual harmonization of IAC and NIAC through convention and custom is unproblematic, because both are formal sources of international law. Since 9/11, however, the United States has consistently taken the position that certain IAC-based rules of IHL can be applied in NIAC via a third method: analogy. The U.S. has argued, for example, that it can target members of any organized armed group that would qualify under IAC rules as a “co-belligerent” of al-Qaeda.

In assessing the legitimacy of such analogies, it is tempting to focus on whether it makes sense to apply a particular IAC rule in NIAC. Is the Haqqani Network’s relationship with al-Qaeda really equivalent to Italy’s relationship with Nazi Germany? Emphasizing the substantive “fit” between IAC and NIAC, however, simply obscures a more fundamental question: where does the U.S.’s authority to analogize between IAC and NIAC come from?

That is a critical question, for two reasons. First, targeting and detention potentially violate the human rights of the individuals they affect. As the International Law Commission has noted, it is not enough for targeting or detention to qualify as a legitimate act of self-defence under Art. 51 of the UN Charter; that targeting or detention must also be consistent with either IHL or international human rights law (IHRL), depending on which legal regime applies. Second, because all of the targeting and detention activities that occur in the NIAC between the U.S. and al-Qaeda take place extraterritorially, each U.S. use of force and each capture operation potentially violates the sovereignty of the state on whose territory it takes place.

Put more simply, by relying on analogized rules of IHL to justify expanded targeting and detention of al-Qaeda, the U.S. potentially runs afoul of a number of prohibitive rules of international law: the principle of non-intervention; the prohibition on the use of force; and IHRL prohibitions on the arbitrary deprivation of life and liberty. What, then, is the legal basis for those analogies?

This chapter’s answer is straightforward: nothing. There is no basis in international law for taking rules of IHL that exist as a matter of convention and custom only in IAC and applying them in NIAC by analogy – which means that the U.S. is systematically violating international law by relying on those analogized rules to target and detain extraterritorially.

I am very rarely happy with essays when I finish them, but I’m quite happy with this one. I’m sure many people will disagree with it, and I’ve likely made plenty of mistakes. But I think the essay addresses a number of difficult issues in IHL/IHRL that deserve further discussion. If I can provoke debate, I’ll be happy.

As always, comments, criticisms, and ad hominem attacks are welcome.

PS:  I should note that the essay was inspired by, and provides a response to, my friend Ryan Goodman’s excellent 2009 article in AJIL, “The Detention of Civilians in Armed Conflict” (pdf here). I highly recommend reading his article before reading my essay.

H-Diplo Roundtable on David Bosco’s “Rough Justice”

by Kevin Jon Heller

H-Diplo, part of H-Net, recently hosted a virtual roundtable on David Bosco’s excellent book Rough Justice:The International Criminal Court in a World of Power Politics, published by Oxford last year. Erik Vroeten introduced the roundtable, and Sam Moyn, David Kaye, and I submitted reviews. David then wrote a response. Here is a snippet from Erik’s introduction:

It is my pleasure to introduce the distinguished and diverse set of reviewers of this timely and important book. Samuel Moyn embeds Bosco’s book in a longer history of the tensions between power and justice. If international justice is not impartial, then it loses its legitimacy. Yet, powerful states have always had incentives to interfere with individual exercises of justice and they rarely fail to act on these temptations.  The ICC, despite all its normative appeal, has been unable to break this pattern.

David Kaye lauds Bosco for the clarity of his exposition and for treating the intersection between idealism and power politics “with great modesty and insight, and without a hint of dogma.” Yet, Kaye also finds that in evaluating the ICC we must look beyond power politics. Questions about the way the ICC has had more subtle influences on how national, subnational, and international actors conceive of justice-related issues are not answered in this book. Looking at such questions may lead to a different and more nuanced perspective about the role of the ICC in international affairs.

Kevin Jon Heller praises Bosco for writing “[..] a history of a complex international organization that is eminently readable yet does not sacrifice analytic rigor.” He especially appreciates the “deceptively simple theoretical structure,” which characterizes the relationship between the Court and powerful states. Yet, Heller also has some pointed criticisms. Most notably, he believes that Bosco underplays the failings of Luis Moreno-Ocampo as the Chief Prosecutor of the ICC. He also takes issue with some historical assessments. At times, Heller argues, Bosco understates the agency of the Court. For example, Moreno-Ocampo was under no obligation to accept the Security Council’s terms on Libya. At other times, Bosco oversells what the Office of the Prosecutor (OTP) might have done. It is really not up to the OTP to lobby in pursuit of referrals against non-member states.

I share the reviewers’ praise for the analytical clarity of the book. From the perspective of my discipline, international relations, I hope it will contribute to more subtle understandings of how power affects the workings of international institutions. But, as the reviews show, there are also important lessons for historians and lawyers. As in his previous volume,), David Bosco has given us a book that has the distinguished qualities of being clear, interesting, and persuasive.

The roundtable is well worth your time. You can download a PDF of all the contributions here.

Welcome to the Blogosphere, Points of Order!

by Kevin Jon Heller

The new blog, which will focus on “multilateralism, international organizations, and world order” — no small task there! — includes Friends-of-OJ David Bosco and David Kaye, as well as my SOAS colleague Leslie Vinjamuri. Here is the complete contributor list:

  • David Bosco is an assistant professor at American University’s School of International Service and a contributing editor at Foreign Policy magazine.
  • Martin Edwards is associate professor at Seton Hall University and director of the Center for United Nations and Global Governance Studies.
  • David Kaye is clinical professor of law at the School of Law, University of California-Irvine. He was appointed special rapporteur for the promotion and protection of the right to freedom of opinion and expression by the UN Human Rights Council.
  • Cymie Payne is assistant professor at Rutgers University, focusing on international and environmental law.
  • Ted Piccone is a senior fellow with the Project on International Order and Strategy and Latin America Initiative in the Foreign Policy Program at the Brookings Institution.
  • Oliver Stuenkel is assistant professor at the Getúlio Vargas Foundation (FGV) in São Paulo, where he coordinates the São Paulo branch of the School of History and Social Science (CPDOC) and the executive program in International Relations
  • Leslie Vinjamuri is co-director of the Centre for the International Politics of Conflict, Rights and Justice and associate professor at the School of Oriental and African Studies (SOAS), University of London.  She is an Associate Fellow in the US Programme at Chatham House, the Royal Institute for International Affairs.

Recent posts address climate finance, Brasilian foreign policy, the IMF, and the ICC’s preliminary examination in Afghanistan. All of the writing is very high quality, so make sure to check Points of Order out!

Do Attacks on ISIS in Syria Justify the “Unwilling or Unable” Test?

by Kevin Jon Heller

Almost three years ago to the day, I critiqued an article by Ashley Deeks that argued the right of self-defence under Art. 51 of the UN Charter extends to situations in which states are “unwilling or unable” to prevent non-state actors from using their territory to launch armed attacks. As I noted in my post, Deeks herself admitted that she had “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation (i.e., the opinio juris aspect of custom).”

When Deeks wrote her article, ISIS did not yet exist — and the US and other states had not started attacking ISIS in Syria. It is not surprising, therefore, that Deeks is now relying on the international response to ISIS to argue, in the words of a new post at Lawfare, that “the ‘unwilling or unable’ test is starting to seem less controversial and better settled as doctrine.”

There is no question that the US believes the “unwilling or unable” test is consistent with Art. 51. As Jens noted a few months ago, the US officially invoked the test with regard to ISIS and the Khorasan Group in a letter to the Security Council. Moreover, the UK seems to agree with the US: according to Deeks, the UK submitted a similar Art. 51 letter to the Security Council, stating that it supports international efforts to defend Iraq “by striking ISIL sites and military strongholds in Syria” — a position that, in her view,”implicitly adopts the ‘unwilling or unable’ test.”

Deeks does not provide a link to the UK letter, but I have little doubt she is characterizing the UK’s position accurately. I have significant issues, though, with the rest of her post, which argues that three other factors related to the international response to ISIS support the “unwilling or unable” test. Let’s go in order. Here is Deeks’ first argument:

[S]tates such as Jordan, Bahrain, Qatar, and the UAE, which also have undertaken airstrikes in Syria, presumably are relying on the same legal theory as the United States and UK.  (That said, those states have not proffered clear statements about their legal theories.)

There are two problems with this claim. To begin with, even if the four states are relying on “unwilling or unable” to justify their attacks on ISIS in Syria, they have not said so publicly — which means that their actions cannot qualify as opinio juris in support of the test. The publicity requirement is Customary Law 101.

More importantly, though, and pace Deeks, it is actually exceptionally unlikely that these states support the “unwilling or unable” test. All four are members of the Non-Aligned Movement (NAM), which has consistently rejected the test, most notably in response to Turkey’s cross-border attacks on the PKK in Iraq (see Ruys at p. 431):

We strongly condemn the repeated actions of Turkish armed forces violating the territorial integrity of Iraq under the pretext of fighting guerrilla elements hiding inside Iraqi territory. … We also reject the so-called ‘hot pursuit’ measures adopted by Turkey to justify such actions that are abhorrent to international law and to the norms of practice amongst States.

To be sure, Jordan, Bahrain, Qatar, and the UAE have not rejected the “unwilling or unable” test since 9/11 — the statement by NAM above was made in 2000. But there is little reason to believe that their understanding of Art. 51 has fundamentally changed over the past decade. On the contrary, all four are also members of the Arab League, and in 2006 the Arab League formally rejected the “unwilling or unable” test in the context of Israel’s attacks on Hezbollah in Lebanon (see Ruys at p. 453).

Here is Deeks’ second argument:

Iraq vocally has supported strikes within Syria.

This is not surprising, given that ISIS is using Syria as a base for attacks on Iraq. But does Iraq’s support for airstrikes on ISIS in Syria count as opinio juris in favour of the “unwilling or unable” test? I doubt it. After all, not only is Iraq a member of the Arab League, it consistently denounced Turkey’s attacks on PKK bases in its territory between 2007 and 2008 as inconsistent with its sovereignty (see Ruys at p. 461). Iraq’s attitude toward the “unwilling or unable” test thus seems driven exclusively by political opportunism; there is no indication that it considers the test to represent customary international law.

Here is Deeks third argument:

Syria itself has not objected to these intrusions into its territory.

This factor seriously complicates Deeks’ argument. Another word for “not objecting” is “consenting.” And if Syria is consenting to attacks on ISIS in its territory, it is problematic to simply assume — as Deeks does — that all such attacks provide evidence in favour of the “unwilling or unable” test. The US and UK may not want to rely on Syrian consent to justify their attacks. But it seems likely that Jordan, Bahrain, Qatar, and the UAE are relying on Syrian consent rather than Syrian unwillingness or inability to justify their attacks on ISIS in Syria — particularly given their traditional narrow understanding of Art. 51.

Finally, it is important to note what Deeks says immediately after claiming that “[i]In view of these developments, the ‘unwilling or unable’ test is starting to seem less controversial and better settled as doctrine”:

Whether other European states ultimately commit to airstrikes in Syria will be informative; to date, states such as France, Denmark, and Belgium only have provided support to strikes against ISIS within Iraq, not Syria.

This is an important admission, because it means that a member of P-5 and two other important Western states have suggested they are not comfortable with using the “unwilling or unable” test to justify attacks on ISIS in Syria.

So, to recap: the US and UK clearly support the “unwilling or unable” test; Jordan, Bahrain, Qatar, and the UAE are likely basing their willingness to attack ISIS in Syria on Syrian consent; Iraq has a completely opportunistic approach to the “unwilling or unable” test; and France, Denmark, and Belgium seem to reject the test, even if they have not done so explicitly.

And yet we are supposed to believe that the “unwilling or unable” test “is starting to seem less controversial and better settled as doctrine”?

OTP Suspends Darfur Investigation

by Kevin Jon Heller

This is quite big news, and I hope it doesn’t get lost in the welter of voices discussing the collapse of the Kenyatta prosecution. Here is a snippet from the Washington Post:

The prosecutor for the International Criminal Court told the U.N. Security Council on Friday she is stopping her investigations in Sudan’s chaotic Darfur region for now because no one has been brought to justice in a decade and the council has done little or nothing to help.

Darfur’s situation is deteriorating and the brutality of crimes is increasing, but there have been no discussions with the council for “concrete solutions,” Fatou Bensouda said. She demanded a new approach.

Darfur was the council’s first referral to the ICC, which is seen as a court of last resort for genocide, war crimes and crimes against humanity.

[snip]

“It is becoming increasingly difficult for me to appear before you and purport to be updating you when all I am doing is repeating the same things I have said over and over again,” Bensouda told the council, which has been divided on how to press Sudan for cooperation. This was the 20th time the prosecutor has briefed the council on Darfur.

“Given this council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases,” Bensouda said.

It’s never good news when any OTP investigation falters, but it’s particularly disturbing in the context of the first Security Council referral to the ICC. Unfortunately, as many have noted (Mark Kersten, Dov Jacobs, me), the Security Council has an unfortunate tendency to treat the ICC like a political football — referring a situation to the Court when it needs to appear concerned about mass atrocity, then abandoning it when an attention-challenged international community has moved on to a different situation. Darfur is a perfect example of that troubling dynamic.

There is, however, a silver lining to the OTP’s decision to suspend the Darfur investigation: it indicates that Fatou Bensouda is getting tired of being Charlie Brown to the Security Council’s Lucy. I’m quite certain the Security Council would have preferred the Darfur investigation to continue ad infinitum: as long as the OTP is trying to investigate, the ICC will get the lion’s share of the blame for the failure to get Bashir. Now Bensouda has cleverly shifted the terrain, making it clear that the problem is the Security Council, not the ICC. Whether the Security Council will care is an open question — but at least Bensouda will take some of the heat off the ICC regarding Darfur. The last thing the Court needs now is additional bad publicity…

The OTP’s Afghanistan Investigation: A Response to Vogel

by Kevin Jon Heller

As a number of commentators have recently noted, the latest report on the OTP’s preliminary-examination activities indicates that the OTP is specifically considering whether US forces are responsible for war crimes relating to detainee treatment in Afghanistan — something it only hinted at in its 2013 report. Here are the relevant statements (pp. 22-23):

94. The Office has been assessing available information relating to the alleged abuse of detainees by international forces within the temporal jurisdiction of the Court. In particular, the alleged torture or ill-treatment of conflict-related detainees by US armed forces in Afghanistan in the period 2003-2008 forms another potential case identified by the Office. In accordance with the Presidential Directive of 7 February 2002, Taliban detainees were denied the status of prisoner of war under article 4 of the Third Geneva Convention but were required to be treated humanely. In this context, the information available suggests that between May 2003 and June 2004, members of the US military in Afghanistan used so-called “enhanced interrogation techniques” against conflict-related detainees in an effort to improve the level of actionable intelligence obtained from interrogations. The development and implementation of such techniques is documented inter alia in declassified US Government documents released to the public, including Department of Defense reports as well as the US Senate Armed Services Committee’s inquiry. These reports describe interrogation techniques approved for use as including food deprivation, deprivation of clothing, environmental manipulation, sleep adjustment, use of individual fears, use of stress positions, sensory deprivation (deprivation of light and sound), and sensory overstimulation.

95. Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.

I highly recommend the posts by David Bosco at Multilateralist and Ryan Goodman at Just Security on the OTP’s report. But I have reservations about Ryan Vogel’s post at Lawfare. Although Vogel makes some good points about the political implications of the OTP’s decision to investigate US actions, his legal criticisms of the OTP are based on a problematic understanding of how gravity and complementarity function in the Rome Statute.

First, there is this claim:

Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008, the alleged U.S. conduct is surely not what the world had in mind when it established the ICC to address “the most serious crimes of concern to the international community as a whole.”  The ICC was designed to end impunity for the most egregious and shocking breaches of the law, and it is hard to see how alleged detainee abuse by U.S. forces meets that standard.

It is not completely clear what Vogel’s objection is, but it’s likely one of two things: (1) he does not believe US actions in Afghanistan qualify as torture; or (2) he does not believe any acts of torture the US did commit are collectively serious enough to justify a formal OTP investigation.The first objection is irrelevant: whether acts qualify as torture is for the ICC to decide, not the US. The second objection is more serious, but is based on a misunderstanding of the difference between situational gravity and case gravity…

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…)