In association with the International Commission of Jurists

Middle East

09 Jul

What Israel-hating, Hamas-loving lefty said the following on Facebook? Dear friends: Take a few moments to read the following words and share them with others. I see the severe and rapid deterioration of the security situation in the territories, Jerusalem and the Triangle and I’m not surprised. Don’t be confused for a moment. This is the result of the policy conducted by...

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25 Jun

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

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23 Jun

Here he is, defending General Sisi, the new President of Egypt: This is a general, but a general who has studied in both the United States and the United Kingdom, so he is certainly someone who is familiar with the rule of law. Because everyone knows that you can't learn about the rule of law outside the West. Duh. PS. Abbott made his silly comment as a way...

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08 Jun

I want to call readers' attention to a remarkable Israeli NGO, Breaking the Silence, which collects the testimony of Israeli soldiers about the brutalization of Palestinians during the occupation. Here is the NGO's self-description: Breaking the Silence is an organization of veteran combatants who have served in the Israeli military since the start of the Second Intifada and have taken it upon themselves to...

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07 Jun

I had a good chuckle this morning when I read Libya's latest attempt to avoid complying with its obligation to surrender Saif Gaddafi to the ICC. (Which, of course, it may be genuinely unable to do, given that he's still being held in Zintan. But that's another story.) The source of my amusement is Libya's new excuse for not being able to...

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01 Jun

Lawfare reports today on a study published in Political Science Quarterly about how ordinary Pakistanis view US drone strikes in their country. According to the post, the study "[c]hallenge[s] the conventional wisdom" that there is "deep opposition" among Pakistanis to drone strikes and that "the associated anger [i]s a major source of the country's rampant anti-Americanism." I don't have access to the...

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21 May

[Tyler Cullis is a Policy Associate at National Iranian American Council.] Introduction We’ll soon find out whether the decade-old nuclear dispute with Iran can be resolved diplomatically, as the parties return to Vienna next month to hammer out a comprehensive agreement. So far, negotiations have been deftly handled by both US and Iranian negotiators – the positive atmosphere, so critical to staving off domestic opposition, having been maintained over several months. But still, the most difficult issues remain on the table, including the number (and type) of centrifuges Iran will be permitted, the duration of a final agreement, and the timing of sanctions relief. Successfully concluding a nuclear deal will require compromise from both parties on each of these issues. While much attention has zeroed in on Iran’s obligations under a final deal, few have discussed the specific modes by which the US will comply with its own commitments. This is troubling, especially insofar as the White House’s ability to provide Iran measurable sanctions relief, absent an affirmative act of Congress, is not assured. In fact, relieving the sanctions will involve difficult questions of law and policy that deserve far more extensive discussion than received at present. Below, I discuss a few of these issues, posing as they do hurdles perhaps as sizeable as Iran’s own centrifuges. Treaty or Not to Treaty? Soon after the Joint Plan of Action was inked in Geneva last November, questions arose as to the legal nature of the preliminary agreement: Was it binding as a matter of international law? If so, would it need to be submitted to the Senate (or, in Iran’s case, to the Majles) for approval? Consensus, here and elsewhere, said no: the interim deal was left unsigned by the parties and had couched its commitments as “voluntary measures,” not mandatory ones. This, it was argued, signified that the P5+1 and Iran did not intend for the document to be either binding on the parties nor governed by international law. Drawbacks to this approach were obvious, but the upside was that each of the parties avoided the need for legislative approval at home (Iran, too, has constitutionally-mandated procedures to follow before an international agreement can be entered into and take domestic effect). Now that we are more than halfway through the interim period and both parties remain in full compliance with their “voluntary” obligations, the choice of informal agreement looks to have been the correct one. Going forward, however, the central question will be whether the parties replicate this model in a final deal or instead cement a binding international agreement (i.e., a treaty). While the White House remains keen on insulating Congress as much as possible from playing spoiler and is thus unlikely to submit a final deal to the Senate for approval, there are several factors that ward against replicating the “soft law” nature of the Joint Plan of Action. First, because the US will be required to offer more lasting sanctions relief than that provided under the Joint Plan of Action and, as of now, the President is limited in the kind of sanctions relief he can provide, Congress will be called upon to lift the sanctions at some point in this process. Whether to include Congress at the front- or back-end of a final deal remains a strategic question for the White House, but avoiding Congress altogether is no longer a plausible scenario. (Nor is more aggressive action from the White House likely. It is improbable that the White House will attempt to conclude a sole executive agreement with Iran that overrides contrary federal law and gives the President the authorities he needs to provide Iran the requisite sanctions relief. Such a step would prove a legal leap beyond that of Dames & Moore -- the President not acting pursuant to Congressional authorization or acquiescence but rather in ways contrary to Congress’s clear direction.) Second, unlike the interim deal, which was intended as both a confidence-building measure and a place-holder to allow the parties time to negotiate a final deal, the final agreement will be one where the obligations actually matter.
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22 Jan

Jess Bravin has an interesting report out in Thursday's WSJ (subscrip. req'd)  detailing U.S., UK, and EU support (and funding) for a team of investigators to gather evidence of war crimes by Syrian government and military officials. For nearly two years, dozens of investigators funded by the U.S. and its allies have been infiltrating Syria to collect evidence of suspected war crimes, sometimes...

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19 Jan

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

1. A new complaint (technically a Communication under art. 15 of the Rome Statute) has been lodged on the 10th of January to the Intentional Criminal Court, requesting the Prosecutor to open an investigation into the denounced abuses committed by UK military forces against Iraqi detainees from 2003 to 2008. The complaint has been presented by the British Public Interest Lawyers (PIL), representing more than 400 Iraqi victims, jointly with the Berlin-based European Centre for Constitutional and Human Rights (ECCHR). The lawyers’ allegation is that grave mistreatments, including torture and other degrading abuse techniques, were commonly used during the six years in which the UK and Multinational Forces operated in Iraq. According to the victims’ account the mistreatment was so serious, widespread and spanned across all stages of detention as to amount to “systemic torture”. Out of hundreds of allegations, the lawyers focused in particular and in depth on eighty-five cases to represent the mistreatment and abuses inflicted, which would clearly amount to war crimes. 2. This is not the first time that the behaviour of the UK military forces in Iraq is challenged before the ICC. In fact, hundreds of complaints have been brought on various grounds both to domestic courts and to the ICC since the beginning of the war. As for the ICC, after the initial opening of a preliminary examination, following to over 404 communications by Iraqi victims, in 2006 the ICC Prosecutor issued a first decision determining not to open an investigation in the UK responsibilities in Iraq. According to that decision, although there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhumane treatment, the gravity threshold was not met. Indeed the number of victims that had been taken into account at that time was very limited, totalling in all less than 20 persons, so that the Prosecutor found that the ‘quantitative criteria’, a key consideration of the ICC prosecutorial strategy when assessing the gravity threshold, was not fulfilled. Therefore, what is there new that in the view of the lawyers warranted the re-proposition of such a request? In the first place it shall be noted in this regard that during the eight years that passed since then many more abuse allegations have emerged (see the Complaint, p. 110 ff.). Most notably, hundreds of torture and mistreatment allegations show a pattern - spanning across time, technique and location - which would indicate the existence of a (criminal) policy adopted by the UK military forces when dealing with the interrogation of Iraqi detainees under their custody. In the words of the lawyers, “it was not the result of personal misconduct on the part of a few individual soldiers, but rather, constituted widespread and systematic mistreatment perpetrated by the UK forces as a whole”.
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13 Jan

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC), Herzliya; his book, International Law and Civil Wars: Intervention and Consent, has been recently published by Routledge] While opinions are split whether U.S. Secretary of State John Kerry will be able to bring, in his recent efforts, any progress to the stalemated Israeli-Palestinian conflict, it seems that Israel has recently decided to take the conflict back to the 19th century – at least legally. This time, we are talking about the revival of none other than age-old maritime prize law – a traditional body of the international law of war dealing with the belligerent capture of vessels and cargos. The importance of maritime prize law peaked in the American Civil War, and steadily declined through the two World Wars into virtual disuse in the last decades. However, on the last week of December, the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel, held a first hearing in prize proceedings initiated by the State of Israel against the Estelle, a Finnish vessel, intercepted by the Israeli navy while attempting to symbolically breach the Gaza blockade in late 2012 (see the story, in Hebrew, here). The state requests the court to condemn the Estelle, which carried cement and toys, based on jurisdiction derived from the British Naval Prize Act of 1864 (!), and conferred to prize courts in Mandatory Palestine by the British Prize Act of 1939. At the time, Britain was interested in conferring such jurisdiction to courts in its colonies, protectorates and mandates in order to facilitate the condemnation of Axis maritime prizes captured in nearby waters. This power was never before exercised by Israel, which inherited the mandatory legislation upon its creation in 1948. While the British prize laws are in essence jurisdiction-conferring rules, and deal mostly with procedure, the substantive norms of international prize law are derived from customary international law. Here lie the interesting aspects of the case. It is common knowledge, among those dealing with the nitty-gritty of IHL, that the process known as the “humanization of international humanitarian law” – as famously put by Theodor Meron – has generally not trickled to the law on maritime warfare. Prize law is perhaps a key example for this phenomenon. For instance, while in ground warfare (and occupation) private property cannot be seized or destroyed absent pressing military necessity (for instance, Articles 23(g) & 52 of Hague Convention IV), private ships can be captured and condemned through proceedings in front of the seizing state’s prize courts, just for flying the enemy state’s flag. Essentially, thus, prize law doesn’t differentiate between the “enemy” state and its individual citizens, as modern IHL otherwise purports to do. In addition, “neutral” vessels can be condemned for carrying “contraband” – defined unilaterally by the capturing state – or, as in the case of the Estelle, for attempting to breach a blockade (for an attempt to state the customary international law on these issues see Articles 93 –104, 146, of the 1994 San Remo Manual). It should be added that the concept of blockade in itself seems like an outlier in contemporary law, since it can be looked upon, through a human rights prism, as a form of collective sanction against civilians.
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09 Jan

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University's History Department and a Visiting Fellow (2013/2014) at Harvard University's Center for Middle Eastern Studies.] My previous post analyzed the EU’s approach towards Northern Cyprus and Western Sahara. This post will focus on the Palestinian Territories and the EU’s approach towards Israel’s policies in the area. The Palestinian Territories represent a “sui generis case” among most of the “occupations” currently in place in different parts of the world. Not only in consideration of how long this occupation has been prolonged, but also because it represents one of the rare cases in which a military power “has established a distinct military government over occupied areas in accordance with the framework of the law of occupation.” In other somewhat similar contexts, such as, just to name a few, Abkhazia, the Turkish Republic of Northern Cyprus (TRNC) and East Turkestan, the occupying powers of these areas have created in loco nominally independent states (TRNC-Turkey, Abkhazia-Russia and so on), and/or are not building settlements in their “occupied territories” (Chechnya is just an example), and/or have incorporated the local inhabitants as their citizens: with all the guarantees, rights and problems that this entails. Some scholars have stressed out that the Golan Heights and East Jerusalem have been (unofficially, in the case of East Jerusalem) annexed by the State of Israel and that despite this, the EU Guidelines (discussed in the previous post) are to be enforced in these territories as well. Therefore, according to them, the comparison with other “occupations” would show that the Palestinian case cannot be considered “sui generis” and that the EU approach on the issue is marred by incoherence. These claims deserve a short preliminary clarification.
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