In association with the International Commission of Jurists

Guest Post: The Crimes Against Humanity Initiative and Recent Developments towards a Treaty

14 Sep

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and the Director of the Whitney R. Harris World Law Institute. Douglas J. Pivnichny is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.] Last month, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity. Although this post will not rehearse the reasons a treaty is needed, an eloquent case for a treaty can be found in an important 1994 article by Cherif Bassiouni. Professor Murphy’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles for Commission’s approval. The Commission first included the topic of crimes against humanity on its Long-Term Programme of Work in 2013 on the basis of a report prepared by Professor Murphy.  This report identified four key elements a new convention should have: a definition adopting Article 7 of the Rome Statute; an obligation to criminalize crimes against humanity; robust inter-state cooperation procedures; and a clear obligation to prosecute or extradite offenders (para. 8). The report also emphasized how a new treaty would complement the Rome Statute (paras. 9-13). The Crimes Against Humanity Intiative
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14 Sep

Events The Raoul Wallenberg Legacy of Leadership event will take place in New York on September 18th at Yeshiva University’s Cardozo School of Law. The event will include a panel discussion about the responsibility to prevent genocide and mass atrocities as well as keynote addresses by Jan Eliasson, Deputy Secretary-General of the United Nations, Irwin Cotler, former Canadian Minister of Justice, and...

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13 Sep

There's been much discussion in the blogosphere about the University of Illinois' decision to "un-hire" (read: fire) a Palestinian-American scholar who resigned a tenured position at Virginia Tech to join its faculty, a decision motivated by a series of anti-Zionist (but not anti-Semitic) tweets that made the University's wealthy donors uncomfortable. But the rightful revulsion at Illinois' decision (more than 5,000...

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12 Sep

Mike Lewis has a guest post at Just Security today responding to Ryan Goodman's recent post exploring what the US's claimed "unwilling or unable" test for self-defence against non-state actors means in the context of Syria and ISIS. Ryan, careful scholar as always, rightly points out that the test "remains controversial under international law." Mike doesn't seem to have any such...

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10 Sep

Bobby Chesney has responded at Lawfare to my most recent post on the CIA and the public-authority justification. It's an excellent response from an exceedingly smart scholar. I still disagree, but Bobby's post really hones in on the differences between us. I'll leave it to readers to decide who has the better of the argument. I do, however, want to discuss...

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10 Sep

We have invited several academic luminaries to post here at Opinio Juris beginning early next week about the Scottish independence referendum that will be held next Thursday, September 18th. As we have done in the past with other symposiums, we also welcome other academics to submit guests posts for possible publication. We particularly welcome Scottish, British, EU and state succession...

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08 Sep

In the first part of my response to Bobby, I argued (after meandering around a bit) that Title 50's "fifth function" provision cannot be used to authorise the CIA to kill Americans overseas -- a necessary condition of any argument that the CIA is entitled to a public-authority justification with regard to 18 USC 1119, the foreign-murder statute. (Bobby kindly responds here.) I...

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07 Sep

 Call for papers The Faculty of Law of the Hebrew University of Jerusalem and the Columbia Law School invite the submission of written proposals for an international conference on the international law legacies of the Palestine mandate, to be held in Jerusalem on June 21-22, 2015, and for a subsequent publication. The full call for papers can be found here. Researchers interested in addressing these and related...

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06 Sep

My friend Bobby Chesney has responded at Lawfare to my previous post arguing that Title 50 does not provide the CIA with a public-authority justification to kill Americans overseas. He disagrees with both of the limits on presidential authority to authorise covert action I discussed. I will address the Article II question in a separate post; in this post I want...

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05 Sep

My friends at Matrix Chambers have asked me to post the following job announcement, for established practitioners in international law: Founded in 2000 to meet the complex challenges of law in the 21st century, Matrix Chambers has 70 members and 7 associate members supported by a dynamic and modern staff team. We have offices in London and Geneva. Individual members of Matrix Chambers...

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05 Sep

[Col. (reserve) Liron A. Libman is the former head of the International Law Department in the Israel Defense Forces. He is currently a PhD candidate at the Hebrew University of Jerusalem and teaches criminal law at Ono Academic College.] Recently, there has been extensive discussion regarding a possible Palestinian application to the ICC, and the various complex legal issues that would arise from such a move. Most commentators have cited internal Palestinian politics as the main reason for Abbas' foot-dragging with regard to approaching the ICC. In essence, the claim is that since Hamas is committing war crimes against Israel, any Palestinian initiative at the ICC would expose Hamas officials to proceedings before the ICC. In fact, the Palestinian Ambassador to the UN Human Rights Council Ibrahim Khraishi has explicitly stated that Hamas' launching of missiles at civilian objects constitutes a crime against humanity, warning that this makes an application to the ICC problematic for Palestinians (See here).  What is largely overlooked is the commission of similar acts by armed factions of the Fatah party, particularly the Al Aqsa Martyrs' Brigade. This post will briefly explore evidence of Fatah's involvement in firing rockets at Israeli civilians, and the possible criminal liability of Palestinian Authority (PA) or PLO officials for those attacks. The Fatah movement dominates the PA. Palestinian President Abbas is also the political leader of Fatah, which is the largest faction in the Palestine Liberation Organization (PLO). Evidence indicates that the Fatah-affiliated Al Aqsah Martyrs' Brigade, like Hamas, intentionally directs rocket attacks at Israeli civilians and civilian centers. These attacks are not occasional shootings, attributable to a rogue group of militants – they are regular occurrences. This faction does not try to hide its involvement in these incidents; on the contrary, it takes pride in the attacks and even posts videos of them on its official YouTube channel. See also various reports here and here. For example, on July 25th the Brigades claimed responsibility for targeting Beersheba and Ashdod, two Israeli large cities, with three grad missiles. On July 30th, they claimed responsibility for firing 7 rockets into Israeli cities. Furthermore, it is interesting to note, that the Fatah Al Aqsah Martyrs' Brigade was supposedly dismantled following President Abbas's decree in 2007. Now it has re-emerged, declaring an "open war against the Zionist enemy [Israel]" not just in Gaza but also in the West Bank and Israel within the green line. This declaration was accompanied by a list of attacks carried in the West Bank, mostly against military targets but some against civilian settlements. Until now, no response to this development by President Abbas or the PA leadership was recorded [for more details see: here]. From a criminal law point of view, it is clear that those actually firing rockets towards civilians and into civilian centers, whether they are connected to Hamas, Fatah or other Palestinian factions, are committing war crimes enshrined in article 8(2) of the Rome Statute, inter alia intentionally targeting civilians; since these acts were committed as part of a widespread and systematic attack on the civilian population, it is also possible that they were committing crimes against humanity. A more complex and interesting question is that of other persons who may be held responsible for these crimes, most particularly among senior PA officials.  Both factual and legal issues would have to be explored in this regard.
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