Guest Post: Groundhog Day: Accusations of Bias in the Human Rights Council Inquiry on Gaza

By Catherine Harwood, Leiden University

The Human Rights Council (HRC) resolved on 23 July 2014 to establish an international commission of inquiry to investigate alleged violations of international humanitarian law (IHL) and human rights in Palestine. Unsurprisingly, this resolution has fuelled the raging political storm surrounding the conflict in Gaza. The political divide is evident in the results of the vote: 27 states in favour, 1 state against, and 17 states abstaining. The main reason put forward by states that did not support the resolution was that the resolution was biased against Israel. But do these concerns hold water?

The United States was alone in voting against the resolution, explaining that it was a “biased and political instrument” that would “create another one-sided mechanism targeting Israel”. This statement referred to a controversial HRC fact-finding mission into Israel’s Operation Cast Lead in 2009. Many other states also abstained out of concerns of bias in the resolution. The European Union explained that its members abstained as the final draft text was “unbalanced, inaccurate, and prejudges the outcome of the investigation by making legal statements”, and “fails to condemn explicitly the indiscriminate firing of rockets into Israeli civilian areas as well as to recognize Israel’s legitimate right to defend itself.” The EU does not however consider that the commission holds a one-sided mandate. Some sections of the media take a different view, with headlines such as “UN to investigate Israel’s Gaza offensive” and “UN votes to investigate Israel, not Hamas”.

Are these claims of bias justified? It is necessary go to look beyond political rhetoric to the text of the resolution, including the general operative paragraphs, the commission’s mandate, and the Preamble. Although one aspect of the Preamble takes an anti-Israeli stance, the operative paragraphs and the commission’s mandate are not biased, and the commission should not be depicted as a one-sided inquiry.

Operative paragraphs

Paragraphs 1 and 2 are directed against Israel. Paragraph 1 condemns the failure of Israel to end its occupation of Palestine. So far, the resolution is on safe ground: the International Court of Justice (ICJ) determined in an advisory opinion that it is an illegal occupation. Paragraph 2 uses very strong language to “[condemn] in the strongest terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations carried out in [Palestine] since 13 June 2014”.

Conversely, paragraphs 3 and 4 condemn violations against civilians, including Israelis. Paragraph 3 condemns “all violence against civilians wherever it occurs, including the killing of two Israeli civilians as a result of rocket fire, and urges all parties concerned to respect their obligations under [IHL] and international human rights law”. This contradicts the EU’s statement that the resolution did not condemn indiscriminate firing of rockets into Israeli civilian areas. Paragraph 4 calls for cessation of Israeli military assaults in Palestine “and an end to attacks against all civilians, including Israeli civilians”.

The remainder of the operative paragraphs address wider matters. Paragraph 5 calls for a ceasefire. Paragraph 6 demands Israel to end its closure of the Gaza Strip, as it amounts to collective punishment of the civilian population. That observation recalls the ICJ’s view. Paragraph 7 requests the international community to provide humanitarian assistance. Paragraphs 8-10 express concern at violence and incitement by “extremist Israeli settlers illegally transferred to [Palestine] against Palestinian civilians”, poor treatment of Palestinian detainees and unlawful detentions. While some sectors of Israel view the settlements as lawful, the Israeli judiciary recognises that this is not the case, as has the Special Rapporteur on Palestine, an international commission of inquiry and the majority of legal scholars. It is also clear that unlawful detention and ill-treatment of detained persons only apply to Israel. Paragraphs 11-12 relate to measures to encourage compliance with international law.

The general operative provisions condemn a broad ambit of alleged Israeli violations, but also condemn alleged violations committed against Israeli civilians. Media outlets have criticised the resolution for failing to mention Hamas. But the resolution does condemn the rocket strikes into Israel, and demands an end to targeting of Israeli civilians. Naming Hamas could have assisted to frame the resolution in more equal terms, but by itself this does not render the resolution irrefutably biased.

The Commission’s mandate

Paragraph 13 defines the Commission’s mandate as investigation of “all violations of [IHL] law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014, whether before, during or after, to establish the facts and circumstances of such violations and of the crimes perpetrated and to identify those responsible, to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable, and on ways and means to protect civilians against any further assaults”.

This mandate is a far cry from the obviously one-sided mandate of an earlier commission of inquiry established by the former Commission on Human Rights that was instructed to investigate violations “by the Israeli occupying Power”. Nor will the mandate need rewriting to include all relevant parties to the conflict, as was the case for the 2009 inquiry into Gaza. The current commission is clearly instructed to investigate “all violations”, and does not limit the parties to be investigated. The EU acknowledged that the inquiry pertains to violations by all sides, including “Hamas and other militant groups.” Claims that only Israeli actions will be examined are erroneous.

The mandate is limited in its geographic scope to “the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip”. This excludes the territory of Israel. But it does not mean that violations against civilians in Israel will be excluded from scrutiny. Alleged violations by Hamas include using civilians in Gaza as human shields and directing rockets at civilian populations in Israel. The former actions occur within Gaza and the latter originate from Gaza. Arguably, both fall within the Commission’s mandate, so it is not one-sided in this respect either.

Preamble

Even though attention has been directed at the commission’s mandate, the real crux of conflict stems from the question of Israel’s right to self-defence. The EU, US and Canada, among others, have issued public statements recognising Israel’s right of self-defence. The HRC resolution does not recognise this right, even though recognition of the right in the abstract is a different question to whether it has been exercised lawfully in practice. But the resolution also states in the Preamble that Israeli assaults are “the latest in a series of military aggressions by Israel”.

Here is the crux of the matter: conceptualising military action as ‘aggression’ rejects the idea that the state is acting in self-defence. To conceptualise Israeli military actions as aggression implies one of two conclusions: either Israel may not invoke the right of self-defence; or it has not been exercised in conformity with the requirements of necessity and proportionality. It implies a conclusion as to the legality of Israel’s actions in terms of jus ad bellum, or the legality of the use of force. This is a different question to whether violations of international humanitarian law have occurred, which relates to the conduct of hostilities, rather than the legality of the use of force per se. In light of the extent of support of Israel’s right to exercise self-defence, it is not surprising that several states refused to sign on to the resolution.

Concluding thoughts

The impending Commission does not have a one-sided mandate: it is tasked with investigating all violations of IHL and human rights, regardless of the actors involved. In fact, with the news on Friday that violence has also broken out in the West Bank, the inquiry may be broader than Gaza. Claims that the Commission will be one-sided and biased are not supported on the face of the resolution. Further accusations of bias will no doubt be launched as soon as the commissioner appointments are announced, with commissioners’ prior activities and statements scrutinised to detect any hint of partiality.

The resolution’s operative paragraphs condemn all attacks that target civilians, both Palestinians and Israelis. There is an emphasis on Israeli violations, but this is perhaps warranted by the wider range of obligations that are held by Israel. The resolution’s failure to recognise that Hamas as a party to the conflict has obligations to respect IHL and that it is responsible for violations is a fair criticism, and undermines the credibility of the resolution from the perspective of those on the lookout for evidence of anti-Israel bias.

The fact that political support for a resolution calling for impartial investigation of serious violations has fallen away by the inclusion of the word ‘aggression’ indicates just how entrenched this political conflict has become, and the extent to which the voting blocs in the HRC are digging in their heels. John Ó Néill writes that the “paradox of the resolution text is that it simply re-affirms the inability of the current diplomatic architecture to provide any capacity to resolve conflicts.” More fundamentally, the voting results reproduce the broader political stalemate surrounding this conflict that has endured for decades.

Guest Post: A Matter of Distinction: ‘active’ and ‘direct’ participation in hostilities and the war crime of using child soldiers

By Catherine Harwood, Leiden University

The Rome Statute prohibits the use of children under fifteen years to ‘participate actively in hostilities’ in international and non-international armed conflicts [arts. 8(2)(b)(xxvi) and 8(2)(e)(vii)]. Trial judgments in the Lubanga and Katanga cases interpreted ‘active participation’ broadly to include both ‘direct’ and ‘indirect’ participation in hostilities. Recently, Pre-Trial Chamber II committed Bosco Ntaganda to trial for charges including the use of child soldiers, and implicitly followed this approach. However, Mr. Lubanga is currently appealing his conviction, including on the basis that ‘active’ participation should be limited to ‘direct’ participation in hostilities.

This contribution argues that in light of the drafting history of the Rome Statute, the current interpretation of ‘active participation’ should be sustained. ‘Indirect’ participation which exposes children to real danger should be prohibited, without requiring a nexus between the activity and loss of civilian protection. This would preserve the intended ‘buffer zone’ of protection, so that children’s participation in risky combat-related activities is prohibited, even when they retain civilian protection.

In practice, the Rome Statute’s semantic inconsistencies, inherited from international humanitarian law (IHL), could be ameliorated by using ‘direct participation’ to denote the general limit of civilian protection, and ‘active participation’ to refer to the use of child soldiers. This approach would also encourage greater consistency between the English and French versions of the Statute.

  • Active and direct participation under international humanitarian law

In IHL, parties to an armed conflict must distinguish between civilians and military objectives, and attacks directed at civilians are prohibited. Civilians lose this protection when they take a ‘direct part in hostilities’ [Additional Protocol I, art. 51(3) and Additional Protocol II, art. 13(3)]. To make matters more complicated, the limit to civilian protection in Common Article 3 to the Geneva Conventions is ‘active’ participation. However, only the English texts contain this irregularity. The term participent directement (direct participation) is used consistently in the French texts, and ‘active participation’ is not recognised.  Nicole Urban suggests that this indicates “a uniform meaning across IHL”, and that ‘active’ and ‘direct’ are synonyms.

‘Direct participation’ is not defined in conventional IHL. The ICRC’s Interpretive Guidance provides a narrow definition which comprises a certain threshold of harm, direct causation of harm and a belligerent nexus [p. 93]. Direct participation generally encompasses activities likely to cause harm to the adversary’s military capacity or operations.

IHL also prohibits the participation of children in hostilities. AP I, art. 77(2) requires that children do not take a ‘direct’ part in hostilities. AP II does not contain any threshold: art. 4(3)(c) simply states that children must not ‘take part’ in hostilities. These rules are identical in English and French texts. The ICRC Customary Rules also articulate that customary international law simply prohibits children to “take part in hostilities”.

Why then does the Rome Statute specifically prohibit ‘active’ participation of children in hostilities, in both French and English? To understand this peculiar phrase it is necessary to revisit the statutory drafting history. Continue reading

David Scheffer proposes (legally) unsatisfactory solution for justice in Syria

In a Opinion Piece for the LA Times, David Scheffer, seasoned diplomat, esteemed and influential expert in International Justice issues, makes his own proposal to push forward for justice in Syria. Essentially, he proposes a treaty between the UN and a third state (i.e, not Syria):

The third option, proposed here, would require a treaty between the United Nations (acting by General Assembly vote) and a government committed to justice for the victims of these two conflicts. Neighborhood candidates such as Turkey, Jordan and even Lebanon or European nations such as France and Italy come to mind.

[...]

There also is precedent for such action. Three tribunals were created to bring to justice perpetrators of heinous crimes committed in Sierra Leone, Lebanon and Cambodia.

The Special Court for Sierra Leone, which recently fulfilled its mandate to prosecute crimes committed during its civil war in the 1990s, and the Special Tribunal for Lebanon in The Hague, focusing on the assassination of Lebanese Prime Minister Rafik Hariri in 2005, are international courts created under negotiated treaties between the United Nations and Sierra Leone and Lebanon, respectively.

The problem is that the three examples put forward by Scheffer are in fact very different in terms of their legal nature and sources of their authority. Indeed, from a technical perspective, the only treaty-body of the three is the Special Court for Sierra Leone (SCSL), established between the country and the UN. The other two tribunals, while a treaty with the UN was involved at some point, actually draw their authority from other sources. The Special Tribunal for Lebanon (STL) was created by the UNSC in 2007, following the non-ratification by Lebanon of the treaty meant to initially create the tribunal. The Extraordinary Chambers in the Courts of Cambodia (ECCC) are in fact a domestic court established through domestic legislation. It therefore makes no sense to lump them in together from a legal point of view.

Putting that aside, a proposed treaty based tribunal with a third state doesn’t really solve the legal obstacles that would arise. Scheffer continues his “demonstration” in the following way:

By ratifying and implementing such a treaty, the participating government would consent to the extraterritorial reach of its own law over the conflicts in Syria and Iraq. The tribunal could be established in the treaty nation or perhaps in The Hague. Faced with international crimes of such magnitude, and threats to regional security, such a government could justify its actions as protecting its national interest and applying conditional universal jurisdiction.

This is problematic. Either the proposed third state already has in its domestic law extraterritorial jurisdiction of sorts for international crimes and the treaty would not be necessary, either it doesn’t and the treaty would not change that. The same would be true of immunities, which I think would still remain in force, despite a treaty with the UN. I know there has been a lot of talk over the years on whether the ICJ, in the arrest warrant case, made an authoritative statement on the fact that immunities are not applicable in international tribunals, but I never found any of the arguments convincing. The same holds true in relation to arguments made along the lines that the support of the “international community” might give an added international cachet to a tribunal, thus allowing to bypass some international law rules such as immunities (see the Taylor Immunities decision at the SCSL), but that is equally unconvincing.

The bottom line is that Scheffer’s proposal is at best useless and at worst inaccurate from a legal perspective. The fact is that the only solution to bypass Syria’s lack of consent to trials, apart from unilateral domestic proceedings by countries having adopted the legal tools to that effect, is through the creation of an ad hoc tribunal by the UNSC under Chapter VII.

I know Scheffer’s proposal was not made in an academic publication, but the dumbing down for a broader audience can only go that far before become disinformation.

This proposal joins others that have been made over the years, for which I have been skeptical for various different reasons. A draft statute for an ad hoc tribunal was put forward a little while back which was a legal mess and I’ve already expressed my doubts at whether a referral to the ICC would make much sense.

I remain convinced that this conversation is premature and that if states are serious about “justice for Syria” today, it should mean first and foremost to actually put an end to the commission of the crimes. To be clear, I’m not advocating for unilateral intervention without UNSC authorization. I’m saying that states should stop hiding behind the limitations of law to not do what they think is morally and ethically right. They should leave international justice where it is, as an ex post facto institution with limited effect, rather than drag it in the already complex discussion on how to deal with ongoing conflict resolution.

H/T to Kevin Jon Heller

Rehabilitating Judge Ramaroson in the Perisic/Sainovic controversy

In the context of writing a commentary on the whole Perisic/Taylor/Sainovic controversy, I had to reread all the judgments and separate/dissenting opinions. I’ll let you discover my views when the commentary is published, but wanted to share one thought with you here.

I’m the first one to criticize international judges (some might even say exaggeratedly) when I find their legal reasoning unconvincing, so it is only fair to occasionally point out when they are being the target of somewhat unfair attacks.

I think this is the case of Judge Ramaroson. You may recall that she was part of the majority both in Perisic and Sainovic, which has led to some criticism from commentators and observers.

For example, William Schabas has argued that:

Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart.

Along the same lines, Alex Fielding has observed the following:

It’s interesting that Judge Ramaroson went from saying that specific direction is an element of the mens rea of A/A liability in Perisic, to joining the Majority decision in Sainovic which unequivocally states that specific direction is not an element of A/A liability, either for the actus reus (“practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime”) or mens rea (“knowledge that these acts assist the commission of the offense”). I couldn’t find any discussion of specific direction in the mens rea analysis,  or whether it is considered to be implicit in the knowledge standard (eg. knowledge of assistance going to ‘specific’ crimes committed), but you would think Judge Ramaroson would insist on including specific direction as part of the mens rea analysis (or file a separate opinion to this effect).

In fact, I think both comments are somewhat unfair, especially the first one. If you read Ramaroson’s separate opinion in Perisic, it is clear that she dissented from the majority on the inclusion of “specific direction” as an element of the actus reus of aiding and abetting. It is only a “separate” opinion rather than a “dissenting” opinion because she agreed with the final result, i.e, the acquittal of Perisic. This raises the question of whether judges, in order to constitute a majority, should only agree on the outcome (as is traditionally the case) or also on the legal reasoning. I would argue that it should be both, if not it is not really a majority. Indeed, can 2 people who think the universe is expanding, one because of the big bang theory and the other because God decided so, really be said to “agree”? In any case, that is a different issue, and it unfair to say that Judge Ramaroson “disagrees with herself”, as claimed by William Schabas.

As to Alex Fielding’s comment, I would have two comments. First of all, Ramaroson’s separate opinion, while indeed linking (correctly in my view) “specific direction” to the mens rea of aiding and abetting, never explicitly says it should be an element of the mode of liability as such. Second of all, Judge Ramaroson considers that the “specific direction” question is mostly relevant in cases of remoteness of the accused from the crimes. However, as noted by the judges themselves in Sainovic (footnote 5320), no such issue of remoteness arose from the facts of the case, so it is not necessarily that surprising that no mention of “specific direction” was including in the mens discussion, nor that Judge Ramaroson did not include a separate opinion on this point.

Why a Syria UNSC Referral to the ICC is not necessarily a good idea (and why we should be allowed to say that)

I’ve so far stayed away from the online discussions on the draft resolution for a UN Security Council Referral of the Syria situation. My impression was that any comment on the content of the draft was essentially science fiction, as there is little chance that the Resolution will pass, given that Russia is likely to veto it.

(on the substance, briefly, 1) I don’t share Kevin Jon Heller’s criticism of the UNSC not wanting to finance their referrals. The drafters of the Rome Statute wanted UNSC referrals, I think it was a bad idea, and possibly one that is contrary to international law, but they got it and cannot now complain, in my opinion and 2) in relation to possible limitations to the personal jurisdiction of the Court in the Resolution, I already expressed here, in relation to Libya, my thoughts that such limitation does not render the referral illegal, it merely raises a question of opposability in case someone falling within it were to be prosecuted)

However, given the last few days of online frenzy on the promotion of the referral in preparation for tomorrow’s vote, it is difficult to resist any longer. As summarized here, nearly 60 countries seem to support the referral as well as a high number of NGOs, who consider that a referral is the best way to bring justice to victims of the Syrian civil war. This is creating considerable peer pressure and States who do not publicly support this effort are considered to be necessarily “wrong”:

I am however not convinced by this quasi-unanimous call for the ICC to intervene in Syria, and this for several reasons.

1) From the perspective of the ICC

I don’t really see why the ICC would want to get involved in that situation. While a referral might be publicly welcomed by Court officials, I can only imagine the anxiety attacks that people at the institution, especially at the OTP, must be going through at the mere thought of the referral being approved. Investigating crimes in a serious manner in Syria right now would be a logistical nightmare, that probably would make Darfur look like a walk in the park.

Putting logistics aside, I’ve heard people say that this would be an opportunity for the ICC to get out of Africa. But I don’t see how this would be a good place to start, given the complex geopolitical considerations at play in the region. I think that dragging the ICC into this seriously polarized political conflict would ultimately (rightly or wrongly, but that is not the point) affect its credibility. I recently told a diplomat I met in the Hague that if his country really supports the ICC, it should oppose a referral of the Syria. I hope he did…

2) From a broader perspective: the ICC and conflict resolution

More generally, I naively remain amazed at how the ICC has now automatically become part of all conversations on any conflict situation. It is too big a discussion to go into here in too much detail, but the ICC has been integrated in all kinds of debates about transitional justice, jus post bellum and RP2. However, the link between international prosecutions and political transitions remains to be convincingly established in my opinion. Or at the very least, someone should justify on more solid ground than “we need to bring justice to victims” why such prosecutions can and should have such a central role in conflict and post-conflict situations.

This is particularly true in a case of ongoing crisis as in Syria. I don’t honestly see how a referral to the ICC will make any difference to the humanitarian crisis that has been unfolding for the past years. It looks like a veil for the inactivity of the international community in not doing anything to put an end to the atrocities. When someone is being beaten up in the street, you don’t send a judge, you send a policeman.

In relation to this,  supporters of the referral mention a possible deterrent effect. But this argument is always very shaky. Even if one buys the idea (disputed by many) that criminal law in general can have a deterrent effect, this will only be the case in a pacified society when criminal activity is the exception rather than the norm. This is hardly transposable to a conflict situation, where there is hardly any social contract remaining in which a pacified and socially accepted application of criminal law might have a deterrent effect.

In addition to that, I don’t see the evidence of such an effect to date. I must have missed the memo that shows that eastern Congo, the Central African Republic, Darfur or Uganda are now havens of peace thanks to ICC intervention…

This is not to say that accountability issues should not be part of the discussion at all. There is no denying that impunity no longer seems to be a credible policy option in any political transition. But there is a important chronological dimension that cannot be ignored. There is a right timing for implementing the different components of a transition, and, to make things more complicated, that timing is never the same in each case. But we do need to accept that not everything can be done immediately in dealing with a situation such as Syria. My feeling is that the most irrelevant action to take right now is a referral to the ICC. Other actions (military and/or diplomatic) would seem to be obvious priorities here. And I suspect that these considerations, rather than some vicious moral failure, lies at the heart of why virtuous states such as Sweden or Canada are not supporting the referral at this point in time.

Mark Kersten is, as usual, more careful and measured than I am in discussing this issue here, noting that we don’t know enough on the possible positive or negative effects of ICC intervention in various situations. This might be true to some extent, but I do think that the burden lies on those supporting the ICC to show that it does indeed have the promised positive effect.

In that respect, what ultimately continues to bother me is that supporters of the ICC have, in my opinion, oversold what this Court can do. As a result, the first thing you see in the press when some unrest occurs somewhere is a call for the ICC to intervene (see recently in Ukraine). This leads, in my view, to a dumbing down of discussions of complex situations, which need to be broken down into digestible “good vs bad” and “victim vs perpetrator” categories which simply do not reflect the reality of what is going on, nor help make policy choices and as a consequence prepare a manageable political transition. Indeed, not everything can be seen through the lens of international criminality when dealing with a political situation. If not, because both sides to a conflict are likely to commit crimes, does it mean that one supports no one? It’s like saying that because both sides in the second world war committed war crimes, that we cannot choose sides between them. Of course we can.

Some years ago, when the Ivory Coast post-electoral violence was unfolding, I asked the question of how to distribute responsibility among a myriad of possible entities. Ultimately, it raises the following question: if all those who committed crimes in civil wars are put in jail, who will be in charge of the transition? It might seem like a simplistic question, but I still have not received an adequate answer…