The Gaza Flotilla, Israel and the ICC: Some thoughts on Gravity and the Relevant Armed Conflict

As I briefly mentioned last week, the Office of the Prosecutor at the ICC has declined to open an investigation into the incidents that surrounded Israel’s dealing with the flotilla of boats that attempted to break the blockade of Gaza in 2010. The general context has been largely documented, both in the press and in reports issued since the incidents. In fact, few single incidents have led to the production of so many reports, both domestic and international, in recent times.

The OTP’s analysis relies heavily on these reports to come to its conclusion that, while there may be some reasons to believe that war crimes have been committed, the situation is not of sufficient gravity to warrant the opening of an investigation. As noted by Kevin Jon Heller,  the Comoros, who referred the situation in the first place, can “appeal” the decision, but the best that it could obtain is that a Chamber simply asks the OTP to reconsider its decision,  without any power to force it to actually open an investigation.

 There is a lot to say about the document produced by the OTP, I just wanted to comment on two points: gravity and the nature of the armed conflict (for very interesting early reflections on the OTP’s reasoning, see Michael Kearney’s points over at Opinio Juris).

1) Gravity

In relation to gravity, I’ve never been convinced by evaluations of gravity done at the ICC, whether by judges or by the Prosecution. Within the gravest crimes that are within the jurisdiction of the Court, trying to identify less grave specific crimes will always be a delicate exercise and every time a pre-trial chamber has attempted to do so, the Appeals Chamber shot it down. Independently from that, the OTP has come up with its own criteria on the issue, which it attempts to apply here. But ultimately, this is all very subjective. As pointed out by the Centre for Constitutional Rights, how is the attack of a vessel in the high seas by the army of a State not a symbolically very grave situation? Indeed, as pointed out by Michael Kearney, the protection of the high seas led to the creation of the first universal jurisdiction crime, that of piracy… Gravity assesments are therefore always inevitably going to lead to probably casuisitic discussions of what is gravest and I’m not sure it was a good idea to include it in the Statute. We should just accept that the Prosecutor of the ICC, like any prosecutor in the world, to a more or less large extent, has discretion in decisions to prosecute, without hiding behind a “gravity” requirement.

Finally, one point I mentioned in my previous post, is that I do not understand why the OTP goes into a discussion of the Abu Garda case (where a handful of peacekeepers were killed), to contrast it with the flotilla incident. Abu Garda was one case within a broader situation, whereas the Comoros referral is of a whole situation. Surely, the gravity assessment need not be the same in both circumstances. This confusion actually goes some way into confirming the fears I expressed some time ago on the risks of accepting the referral of such a narrowly defined situation…

2) The armed conflict

In relation to the relevant armed conflict to be considered, I’ve been asking myself a question since day one, to which I still have not received an answer: why is the Israeli-Palestinian conflict legally relevant to the assesment of the events that occurred?

At this point, I can already hear the jaws of most readers hit the ground in disbelief at this obviously stupid question. Indeed, as far as I can tell, everyone seems to assume the link between the gaza flotilla incidents and the actual ongoing situation in Palestine: every report mentioned, every commentary issued, every article published (see recently in the Criminal Law Forum).

However, while politically, everything is obviously linked, I’m not sure this is the case legally. If we look at things calmly, we have one State (Israel) attacking the territory of a number of other States (the flag countries of the vessels) on the high seas. In fact, it is this territorial aspect that allows the Court to have jurisdiction in the first place under Article 12. How is the armed conflict (if any) not naturally between Israel and those States?

Of course, the flotilla’s aim was to break the blockade. But this is a political aim and it does not necessarily make it legally relevant. If not, the relevance of the Israel-Palestine conflict as a contextual element would entirely depend on the subjective claims of the people on the boat, which is surely a little vague. Moreover, by that standard, if Israel were to board a ship just leaving the territorial waters of France of Argentina (thousands of kilometers away), heading to Gaza with the claimed objective of breaking the blockade, would the reasoning still work? I doubt it. In light of this, the single paragraph proposed by the OTP on the nexus to the armed conflict (§128) is not entirely satisfactory.

Of course, I am probably missing something obvious here. Too many intelligent and competent people in too many institutions have reached this conclusion for there to be a problem. As the famous breakup line goes: it’s not you, it’s me!  So I look forward to readers out there to enlighten me…

A busy week in ICL: STL Judge rebels on contempt, ICC stays clear of Gaza Flotilla and ICTY releases Seselj

It seems that the international tribunals have waited for one of the rare occasions when I’m mostly offline for travel purposes to issue some interesting decisions. Indeed, I am currently attending the ICTR Legacy conference in Arusha. If I were not as humble as I am, I would suggest that they did so to avoid that I blog about these decisions…

I hope to write more about these decisions when I return to The Hague, but this is what happened this week, in a nutshell. I’m sorry for the paucity of hyperlinks, but it’s not convenient right now to add more.

1) The ICC OTP has decided not to open an investigation in the Gaza Flotilla incident, following the referral it got from the Comoros a few years back. On a rapid reading of the decision, I broadly agree with the outcome. The OTP has stayed clear from the concerns I expressed at the time on the policy consequences of framing a situation in such a narrow way as the Comoros did. Two brief comments: 1) I’m not entirely convinced by the OTP determination of the relevant armed conflict for the purposes of war crimes. 2) I’m not sure that the OTP needed to enter in the comparison with Abu Garda in relation to gravity because that was a case, not a whole situation. But more on this later, hopefully.

2) Second of all, in a really interesting development, a contempt judge at the Special Tribunal for Lebanon has refused to follow an appeals panel decision to extent contempt jurisdiction to legal persons. Readers of this blog will already know what I thought of the terribly argued appeals decision. Judge Lettieri echoes my concerns about the limits of teleological interpretation and its violation of the principle of legality. In a long decision, Judge Lettieri systematically refutes the reasoning of the Appeals Panel and ultimately considers, not only that he is not bound by the decision, which was technically adopted in a different case, but that he probably had a obligation not to follow it, to ensure the consistency of international law on the issue. It’s a fascinating process to follow and I wait for the next Appeals Panel response to this very amazing example of judicial dialogue.

3) Finally, today, the Trial Chamber in the Seselj case at the ICTY has ordered, proprio motu, the provisional release of the accused for health reasons. Again, readers of this blog will have followed the events which led to the case dragging on, with, after the removal of Judge Harhoff, the nomination of a new judge in November 2013, meant to take the time to familiarize himself with the case. While he initially asked for 6 months, this period was recently extended to June 2015 at the request of Judge Niang, this information having been conveniently drowned in the 2014 ICTY Annual Report. In relation to provisional release, earlier this year, Seselj refused a proposal for provisional release… so this time around, the Chamber simply did not ask for his opinion, nor that of the Prosecutor! It appears that Judge Niang has dissented, but his dissent is not available yet.

All in all, three interesting decisions which will most certainly be the subject of some commentary in the coming day, here, as elsewhere. Stay tuned!

A Molotov Cocktail on the Principle of Legality: STL confirms contempt proceedings against legal persons

cross posted on The Invisible College]

In January 2014, a contempt judge of the Special Tribunal for Lebanon (STL) confirmed an indictment for contempt proceedings which included a legal person, a first for an international criminal tribunal. At the time, I raised some doubts about the reasoning of the judge, who applied a teleological reasoning that essentially allowed him to create law based on his own interpretative preferences. I also did not find convincing the idea that the interpretation of the term “person” for the purposes of contempt proceedings could be different than the interpretation of the same term in article 2 of the Statute of the Tribunal when it came to personal jurisdiction of the tribunal generally.

In July 2014, another contempt judge reversed the first ruling, considering that the term person should be interpreted narrowly in light of the principle of legality and could not include legal persons.

Last week, an Appeals Panel of the STL reversed this latter decision, held, by majority, that legal entities could be covered by contempt proceedings and, as a consequence, reinstated the proceedings against a media company. This decision is very interesting, and problematic, in the way it approaches the question of both inherent jurisdiction and general rules of interpretation and has just entered my top 10 worst argued decisions in ICL. It might even enter my top 3, along with the SCSL amnesty decision and the ICC Malawi decision on immunities.

It would take up too much space here to comment on the decision extensively, but I just want to highlight how the Appeals Panel has found the perfect Molotov cocktail to kill the principle of legality: the “spirit” of the statute combined with inherent jurisdiction.

  • The Spirit of the Statute

First of all, the decision seriously over-relies on what is called the “spirit” of the Statute as a source of interpretation, which, according to the judges, allows for a more “liberal” interpretation of the Rules (para. 27). This leads the judges to blame the contempt judge for interpreting the term “person” in accordance with the letter of the Statute rather than its spirit (!!!). The problem with that is that I don’t know what the “spirit” of the statute is. Trusting judges in relation to this spirit is like trusting the weird looking guy in the tent at the town fair that he can contact the spirit of your grandmother: he basically gets to tell you what he wants…

For the judges of the Appeals Panel, the spirit of the statute, in a nutshell, is the “fight against impunity” for those who obstruct the course of justice, which allows for a teleological interpretation that  includes legal entities. Once they have decided this, the judges look for anything under international law that would not allow them to interpret person in that way… At this point, it’s not even teleological interpretation anymore, it’s backwards reasoning in its purest form!

The Appeals Chamber makes an incredibly broad assessment of international and domestic pronouncements on corporate liability (in general, not necessarily for contempt!) to conclude that nothing prevents the judges from interpreting “person” in a broad way (para. 60).

Even  more amazing, the STL goes through the whole history of ICL where no legal entity was ever prosecuted for contempt or otherwise, but finds it unpersuasive, concluding that section with the extraordinary vague statement that “corporate criminal liability is on the verge of attaining, at the very least, the status of a general principle of law applicable under international law” (para. 67).

“On the verge of attaining”? What a marvelous new source of law. Following the progressive view of the Appeals Panel, I suggest that Article 38(1) of the ICJ Statute now read as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

[...]

e. Any norm on the verge of attaining the formal status of any of the above

  • The inherent jurisdiction of the Court

Inherent jurisdiction has always been a problematic issue, useful for creative judges over the years. But surely there has to be a limit to it. The problem is that the way the Appeals Panel uses it makes it extraordinarily large. There are a number of pronouncements in the decision on the (lack of) scope of the inherent jurisdiction of the tribunal, but this one wins the prize for honesty:

When operating within the realm of our inherent power, our jurisdiction remains undefined, only to be determined upon the crystallization of circumstances that call for a judicial pronouncement

In other words, we don’t know what our jurisdiction is, you don’t know what our jurisdiction is, but don’t worry and trust us: we’ll tell you when we get there. This cannot be how jurisdiction (inherent or otherwise) should work, especially in the current case of contempt (i.e, criminal) proceedings.

  • The end of the principle of legality

The problem with everything I have described so far is that we are here dealing with criminal charges, not a innocuous rule of procedure relating to the extension of the number of pages in a brief. Inherent jurisdiction cannot be used to trump the principles that should apply in criminal law matters, notably the principle of legality and its corresponding rules of interpretation: strict interpretation and in dubio pro reo. In that respect, someone should have pointed the judges to Article 22 of the Rome Statute.

In light of this, as pointed out by the dissenting judge, both human rights law and general principles of ICL should have led the judges to consider these basic principles in interpreting the term “person” in the RPE.

  • Some concluding thoughts

First, a logical point: as I pointed out in my previous post on this, for me the interpretation of term “person” in the RPE should necessarily mirror the interpretation of the term “person” in the Statute. If the STL cannot prosecute legal entities for killing Hariri, it cannot prosecute them for contempt. If not, as I said in my previous post and as picked up by the dissenting judge (who forgot to quote me…), the “spirit” of the statute would be that legal entities should not commit the horrendous and humanity-offending crime of publishing a list of witness, but can commit murder, bodily harm and terrorism without being bothered…

Second, a legal reasoning point: as with the first contempt judge who accepted the indictment for legal persons, the Appeals Panel essentially give us reasons why corporate entities ought to be held responsible for contempt. These might be valid reasons, but it’s not their job.

Third,  an argumentation point: the judges refer in an amazingly broad way to the evil that corporate entities can wrought upon the world. And this is just to extend contempt jurisdiction! It seems like overkill to me. What will the first international judge to prosecute a company for genocide be able to say?

Fourth, and finally, an endless point of frustration: the drafters of the STL Statute, in their infinite (lack of) wisdom, still thought it was a good idea to let judges write their own RPE. As a result, the RPE are written by the judges, can be changed by the judges as they please, and then get interpreted by the judges. In this context, it is somewhat farcical to see them pretend to find the higher “spirit” of the Statute, fill 30 pages of analysis of domestic legislation and international pronouncements on the responsibility of legal entities and provide general moral musings on corporate liability in order to divine the true meaning of the word “person”. But, judges wrote the RPE! Adding up pages of argumentation will not bring us any closer to telling us what they were thinking when they drafted the rules on contempt in the first place and answer this ultimately very simple question which seems to have been ignored in the entirety of these proceedings: if they thought that corporate liability for contempt was so important, to the point of it verging on attaining a legal status, why did they not include it, just to make everyone life easier down the road?

In any case, I’m not sure things are over yet. It is now 3-2 for judges who want to extend contempt to legal persons. Not a large consensus. Let’s see what happens next…

Guest Post: What is happening here? Notes of caution on the UNSC resolution on facilitating travel of “foreign terrorist fighters”

By Jens Iverson, Leiden University [Note, this is an expanded version of a brief post on the Leiden Law Blog.  Many thanks to Dov for allowing a fuller post on his excellent blog.]

 On 24 September 2014, the UN Security Council passed Resolution 2178 under Chapter VII regarding foreign terrorist fighters.  The UN Security Council is making it obligatory for UN member states to change their domestic criminal law.  The conduct criminalized in the draft text includes attempts to travel abroad “for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training”, gathering funds to assist such travel, or other facilitation of such travel. At least three aspects of such a resolution are noteworthy.

First, one might note that the Security Council has again proven itself to be rather innovative, to put it positively, or imperious, to put it more negatively.  When creating the Security Council’s extensive powers, it is unclear that the framers of the U.N. Charter had in mind such actions as commanding the production of domestic law or, for that matter, the creation of ad hoc tribunals.  These innovations are much more frequent since the end of the Cold War.  It will be interesting to see if they continue.  The commandment to states to issue domestic criminal legislation is remarkable in itself, although not unprecedented – see for example UNSC resolution 1373 (2001), which mandated that those financing, planning, preparing or perpetrating terrorist acts are “brought to justice.”  There is certainly a strong case to be made that certain forms of terrorism are threats to international peace and security, but it is also worth pointing out that if there is an outer limit of legitimate (non-ultra vires) Security Council action, this action is near that outer limit.  Is this the creation of international Criminal Law in domestic fora, not by custom or treaty but by an organ of the UN?  What legislation might be mandated next?  Might not something along the lines of the anti-commandeering doctrine in US constitutional law apply? Continue reading

Is the Salaita situation really about “academic freedom”?

This might not be the most consensual topic to choose after the summer blogging hiatus, but I have been following the affair of the “unhiring” of Steven Salaita by the University of Illinois and this has brought to mind a few thoughts. I want to stress from the outset (although this caveat is probably useless, as people will just read what they want in my post, depending on their own views on things), that I am not trying to justify Salaita’s dismissal by the University of Illinois, nor am I defending Salaita. I am just struck by what I perceive as an oversimplification of the situation around the catalyzing expression of “academic freedom”.

For those who haven’t followed, Steven Salaita was to be hired by the University of Illinois, until a series of tweets regarding the recent events in Gaza were invoked in order to rescind the job offer. This has led to a very heated debate online regarding “academic freedom” and its limits/violation. Some justify what can only be called a firing, while a considerable number of academics defend him under the banner of “academic freedom“, including my friend Kevin Jon Heller.

First of all, I should say that I had personally never heard of Salaita and I am not familiar with his research. I cannot therefore express an opinion on it and I have to assume that his academic research is not an issue here, if not the University of Illinois would not have hired him in the first place. Moreover, apparently Salaita is a very good professor with great student evaluations from his previous jobs. So what his the problem?

Continue reading