transcripts

Transcript Ep 7 – Justice via the backdoor with Kevin Jon Heller

Disclaimer:

Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

Kevin John Heller

Do you know about my dark past as a TV writer?

[INTRO TUNE]

Justice plays an important role.

I consider this tribunal a false tribunal.

Mr. President.

What are the facts?

Honorable judges.

Because defendants are very rarely popular.

Proceedings will be long and complex.

All rise.

Janet Anderson

Hello, welcome to Asymmetrical Haircuts. It’s me, Janet Anderson. I’m here with Stephanie, and our special guest for today, Kevin Jon Heller. Kevin is, my goodness, you got so many titles.

Kevin John Heller

I do not.

Janet Anderson

The associate professor of International Law at the University of Amsterdam, professor of law at the Australian National University. And you’re also a regular for us when we need someone to quote because you’re really really good at answering great questions. What are we going to ask him about today, Stephanie? 

Stephanie van den Berg

Well, we’re going to go into very specific ICC territory, because there is a kind of thing going on with the ICC, where people are what I call trying to get into the ICC via the backdoor, mainly in the Myanmar case. And this is… the military regime in Myanmar started cracking down on the Rohingya Muslim majority. And there were a lot of deportations and moving them into Bangladesh, which is an ICC member. I got called a lot about this. Because Reuters is very much interested in the Myanmar case also, because to Reuters journalists got arrested for actually reporting on atrocities in Myanmar. So every kind of side that the ICC does with Myanmar, I get three calls. And then I call Kevin to find out what it means. So we decided to have him on today to explain in a little more depth than I can do in a 600 word Reuters story.

Kevin Jon Heller

Conflict and violence is great for all of our careers.

Stephanie van den Berg

[LAUGHTER] Yes. Anyway, sadly, it’s what keeps us going. 

Janet Anderson

But do you think this some term that Stephanie uses, that it is somehow getting the ICC involved via the backdoor is is accurate? What do you think of that?

Kevin John Heller

Don’t think the ICC would agree with that characterization. I think I’m more inclined to… to agree with it. I certainly don’t think it’s the kind of jurisdictional basis that was contemplated by the drafters of the Rome Statute, but at the same time, I also don’t really have a… I’m sure we’ll talk more about a legal problem with the basic principles. 

Janet Anderson

What is that jurisdictional basis? 

Kevin John Heller

Well, the jurisdictional basis is, you know, is territorial jurisdiction. What the court says is that part of the crime, if not an element of the crime of forcible deportation, took place on the territory of the state party, Bangladesh. And they acknowledge that most of the acts and particularly the acts that forcibly displaced the Rohingya took place on Myanmar territory, and Myanmar is not a state party, but that the deportation necessarily involves crossing a state line into Bangladesh. And that because some the acts took place on Bangladesh, there’s traditional territorial jurisdiction. So the heading of jurisdiction is classic territorial, the basis of finding territorial jurisdiction, again, although I don’t disagree with it is a little bit more, you know, exotic or esoteric.

Janet Anderson

It’s a bit wacky for us to try to explain to people because you imagine, you know, the physical act of deportation it involves somebody getting them over the border, who’s responsible for doing the deportation when they’re over the other side of the border, they’re already there. 

Stephanie van den Berg

But the idea, I think, is and Kevin will probably know more in detail than either that, in order to have deportation kind of finalised, you have to move them over an international border. And Bangladesh is not really doing anything with the deportation, but it’s necessary that they’re in another country for it to be deportation.

Kevin Jon Heller

Right. I mean, that’s basically what the pre-trial chamber said was that the only difference between forcible transfer and deportation is the fact that in the latter, you have to cross the state borders. So they said, since there is a necessary element of deportation, that involves crossing a border, then we can say that the acts that kind of make up what we would call the actus reus of, of the… of the crime took place on the territory of Bangladesh, as well as taking place in the territory of Myanmar.

Stephanie van den Berg

And in this case, I mean, the prosecution who kind of asks, can we bring this case, only went for deportation, going for the kind of that legal bit of cross border. And then the trial chamber said, why not have a look at all this other stuff? Can you explain kind of what the basis  for that is?

Kevin Jon Heller

Sure, that one’s harder. [LAUGHTER]

Stephanie van den Berg

So… that’s why we invited you.

Kevin Jon Heller

Yes. Well, come on, you can answer that. So basically, they found both persecution, and kind of other inhumane acts as a crime against humanity, connected to the deportation. And so if you look at say, the definition of persecution in the Rome statute, it talks about acts of persecution that are connected to a… another crime within the jurisdiction of the court. And so what they said was, well, here the persecution is of the Rohinya. And that persecution is connected to another crime against humanity within the jurisdiction of the court, that being the deportation. So they said, it doesn’t really matter where the acts of persecution take place, because those would have really taken place in Myanmar. The point is, there is another crime within the jurisdiction of the court that it’s connected to, and that’s enough to give the court jurisdiction over persecution as well. So that’s how they get to persecution.

Stephanie van den Berg

And then we get to the big question, which is…

Kevin John Heller

We also need to talk about other inhumane acts, that’s also a different kind of theory. 

Stephanie van den Berg

Ah ok. So what’s the theory for other inhumane acts then?

Kevin Jon Heller

So there, and again, I’m not trying to agree with it, but it’s clever. What they said was that… that the… that the Myanmar regime committed the other with a crime against humanity, of other inhumane acts, by preventing the Rohingya from returning to their state of nationality, that basically, they kept them forcibly in Bangladesh, and would not allow them into Myanmar. 

And they said that the… the psychological trauma of not only being displaced, but then not being allowed to return to your state of nationality rose to the level of a crime against humanity, and kind of applying the same jurisdictional theory, the acts that amounted to the other inhumane act, which was keeping them in Bangladesh, took place on the territory of Bangladesh, a state party. So once again, they say, you know, an element of the offence took place on the territory of a state party.

Stephanie van den Berg

And then me being a journalist, and going for the most spectacular thing ever. I want to go straight for the G-word here, because all of the things that you’re mentioning, are also underlying acts that are often cited in genocide convictions. So could they, through this way, move up to genocide?

Kevin Jon Heller

That’s a really good question. So I’ve argued that at least in theory, the court would have jurisdiction over one form of genocide, and that’s intentionally subjecting individuals to conditions of life calculated to bring about their destruction. That if they drove them into Bangladesh, knowing or intending that the conditions would be so bad once they were, you know, pushed out of their own country, that they could be expected to eventually die out. That… that would be an act of genocide that took place not just in Myanmar, but also in Bangladesh. So that’s kind of, I think, a fairly straightforward application of the theory, whether it’s factually justified, you know, I don’t know. 

Beyond that, I think it’s very difficult to argue the genocide would… would fall within the jurisdiction of the court. The court seems to be quite clear that they’re not talking about effects jurisdiction. They’re not saying that anytime the effects of a crime are felt on the territory of a state party, that that would give the court jurisdiction. And I think that’s the only real way that you could argue, other types of genocide, really, the other acts of genocide take place in Myanmar, again, they may have the indirect effect of pushing people out of the country. But that’s not really an inherent part of the act of genocide, in the same way that that pushing somebody across the border is an inherent part of the the crime against humanity of deportation.

Stephanie van den Berg

And this decision, how does it, you know, affect other ICC cases, there’s now a move to try to address Syrian atrocities via Jordan, which is an ICC member, with Syrians who are deported or at least transferred to Jordan. You mentioned there’s a… an avenue to maybe look at US migration via Mexico…

Kevin Jon Heller

A kind of fanciful one but yes, there’s…

Stephanie van den Berg

A fanciful one.

Kevin Jon Heller

You like fanciful here at Asymmetrical Haircuts. I can explain my fanciful Mexico theory, if you would like. I did this just because I hate Donald Trump and the Trump administration, pretty much any government of my country. 

But there was news reports that suggested that individuals who clearly were American citizens were not being allowed to return from Mexico into the US on…well, they would claim legitimate administrative grounds questions about their citizenship, but was clearly just a pretext for keeping American nationals of Latino descent out of the country. And so what I argued was, well, that looks an awful lot like what they said about other inhumane acts in the Myanmar situation that you’re taking American nationals, and you’re causing them the harm of not allowing them to return to their state of nationality, for reasons that are based, really, in this case, on their nationality, sorry, on their ethnicity, on the fact that they’re Latino. And so, if it’s a, if it’s a crime against humanity, when Myanmar does it to Myanmar citizens, why isn’t a crime against humanity when the US does it to US citizens, given that they’re being kept from returning on the territory of a state party, as you said, Mexico.

Janet Anderson

And what about the Syria, Jordan?

Kevin Jon Heller

Well, I think that’s a much more Syria, I mean, again, my… my US thing was just to try to tease out some of the perhaps disquieting implications of the judgement. 

The Syria, one, I think, is much more legitimate. And I should say that I’ve consulted with a couple of the groups that have been making this argument. But basically, the argument is exactly the same one is in Myanmar and Bangladesh, that Syria is not a state party. They’re not a member of the ICC. But Jordan is. By the most recent estimates, I saw, there are about 650,000 Syrians who are now in Jordan as a result of the conflict in Syria, it’s actually not that much less than the number of Rohingya in Bangladesh. If in fact, those civilians are in Jordan instead of Syria, because they were forcibly displaced because they were deported, then it’s exactly the same argument that an element of the act of the crime against humanity of deportation took place on Jordanian territory, because the Syrians drove them into Jordan. 

Now, there are some again, there are some I think more they’re trickier factual issues.

Stephanie van den Berg

Yeah, that one of the things that that rises with me or that I saw is the question of, at what point does it become deportation? At what point does it become a choice? That’s always a big argument? I remember from Serbia Kosovo, with them, “well, they just chose to leave!”

Kevin Jon Heller

And that’s the importance of understanding that the… the pre-trial chamber in the Myanmar decision is not adopting effects jurisdiction. They’re not saying, “Oh, well, it doesn’t really matter why a civilian leaves the country if it has effects in another, you know, on a state party, that’s enough.” That’s not what they’re saying. They’re talking about an element or part of the crime taking place on the territory of the state party. So here, if in fact, these are civilians who kind of rationally chose to flee the country as a result of the ongoing conflicts but weren’t actually forcibly displaced from their homes, then, on… at least the the the jurisdictional theory that the pre-trial chamber adopted, that wouldn’t be enough for jurisdiction, you’d have to show that they were in fact forcibly displaced.

Stephanie van den Berg

And do we have an idea of what you would need to show to show that you’re forcibly displaced rather than, you know, packing your bag and going?

Kevin Jon Heller  

Yeah, we do I mean, you know, and international tribunals and particularly, the ICC tends to take the broadest approach to these concepts as possible. You certainly don’t have to point a gun at somebody and say, leave your home for there to be forcible displacement. It’s not even completely clear whether you have to intend for them to leave their homes. The point is, did they have a choice to stay. And if you kind of deprive them of their choice to stay, knowing that the result of your actions will be for them to… to leave, that’s probably enough. So, you know, if it’s just they happened to be near fighting between the Assad regime and rebels and left, probably not enough. If, you know, it seems quite likely, both the Assad government and the rebels are, you know, engaging in acts of violence toward communities that will quite naturally lead them to want to not be there anymore. That probably is enough. And there, it’s interesting, you have, I think you could bring deportation charges against both various rebel groups and against the Assad regime. I think both of them have forcibly displaced civilians.

Janet Anderson

We’re talking about some of the major, you know, humanitarian, human rights, etc, crises that are going on in the world… ongoing, both both of them, Myanmar and Syria. I suppose this is what the ICC is meant to be set up for. But it’s really that sense, you know, these are huge things for the ICC to get into.

Kevin Jon Heller
Yes, it is. And I think they’re both positive and negative aspects of that. You know, it is quite clear that the… the people who… who dreamt up the ICC thought that these were precisely the kinds of situations that it would deal with. It is also true that most of the big ticket situations are not “technically”, within the jurisdiction of the courts, except through these more kind of esoteric jurisdictional theories. Again, esoteric doesn’t mean wrong, it just means not contemplated, per se. So it’s difficult to avoid the…, you know, inferring that in many ways, this is a court that is kind of desperately trying to be seen as relevant. We could talk forever about the limitations of a court the failures of the court, the impotence of the court. And I think all those critiques are completely valid, and I’ve made many of them. 

So I wasn’t shocked at all. When Fatou Bensouda decided to ask for this jurisdictional ruling in the Myanmar situation, because it was an obvious way for the ICC to be seen… to be doing something about a situation that most people think the ICC should be doing. Most people, you know, you can until you’re blew in the face, you can explain to them well, if you want to blame someone blame the Security Council, because they’re the ones that they have the power to refer the situation. It doesn’t work with most people, they just see lots of civilians dying. International Criminal Court, why is the court not prosecuting the bad guys?

Stephanie van den Berg

But it seems very short sighted because yes… you get a lot, but maybe that’s it. Maybe that’s a strategy because yes, of course, Reuters is splashing this all over the front page. I’m getting really excited about this. But why would the OTP, the office of the prosecutor, want to take on another case with an unwilling country when they’ve not done so well?

Kevin John Heller

You should have somebody from the OTP on…

Janet Anderson

It is not only unwilling countries, it’s also budgetary. It’s also all the focus that that is taken up by stuff like this. I mean, is it just then grandstanding?

Kevin John Heller

I mean, I think it’s a little tiny bit too cynical to say that it’s just grandstanding. I certainly think it is a fairly transparent effort to get PR for the court and make it look relevant. I’m sure that the OTP really believes that these are crimes that deserve prosecution and really believe that the court does have jurisdiction and really believes that, in fact, there might be some non-negligible chance of actually prosecuting someone. It may very well be that they just hope that perhaps by being seen to be relevant, you know, the… the purse strings will be loosened by… by states that are supporting it. I mean, there should be some states out there, who are members of the court who would love to see the ICC get more involved in Myanmar than, say some other situations like Mali or wherever.

So, you know, I, I don’t believe I don’t want to be that cynical. [LAUGHTER]

Stephanie van den Berg

No, I think that the prosecutor would love to get her hands on Myanmar case for all the reasons. But my question is, I guess, would the… the short term kind of boost of attention not be kind of limited by the failure that’s almost, I wouldn’t say inevitable, but quite likely to follow looking at the history of what’s going on? Or this that… are we all going to forget that… that happened? And they just get the short boost of saying, we can look at Myanmar and everybody would say “wow”.

Kevin John Heller

I think your point is a really important one. When the prosecutor first submitted the request, before we had a judgement, you know, I blogged about this. And, and I think I made a couple of points. I said, my first point was that, you know, there’s no way in hell they’re ever going to have a Myanmar government official in the dock at the ICC. It’s not going to happen. They’re going to have zero ability to effectively investigate, much less get their hands on the perpetrators. So that was a major concern, because I have a very pragmatic view of… of when the ICC should exercise jurisdiction. 

Beyond that, I said, you know, even if, in some way they could have an effective investigation, do we really want the Myanmar situation, the first real international attempt at accountability, to be limited to essentially deportation? Not to in any way minimise the severity of being, you know, kicked out of your home and pushed across the border. 

Janet Anderson

But there’s a lot else.

Kevin John Heller

But yeah, most people think about genocide. They think about mass murder. They think about systematic rape of women. There’s a lot of crimes that even under the most robust jurisdictional theory, the court will never be able to investigate. And, and again, I’m not an expert on Myanmar. I don’t know if you asked the Myanmar people, or the Rohingya for that matter, would you be satisfied with seeing some government officials prosecuted only for deportation? I don’t know. Maybe they would say something is better than nothing. But I’m concerned at investigations that are from the beginning, doomed to not reflect the severity of the crimes in a particular situation.

Stephanie van den Berg

And to be super niche ICC. Uhm, there is…

Kevin John Heller

The ICC itself is niche, so…

Stephanie van den Berg 

So I’m getting even worse. [LAUGHTER] There is the recent Afghanistan decision where they decided not to open a formal investigation, because it wasn’t in the interest of justice, because it was unlikely that they would ever have a meaningful investigation or cooperation. And this is coming also from a state member. Does that decision, do you think, impact what would happen to Myanmar in any great way? Or is it just “let’s see how that one crumbles and actually works out”?

Stephanie van den Berg

That’s a really good question. I mean, you know, there are a number of, of, you know, intelligent commentators on the ICC people like Sergei Vasiliev and Dov Jacobs, who have pointed out the irony of, you know, granted, two different pre-trial chambers, it wasn’t the same judges. But the pre-trial chamber at large, saying “can’t investigate Afghanistan, because there’s no prospect of investigation, but can investigate Myanmar, even though there’s probably even less of a chance of investigation”. And and I mean, from my perspective, you know, yes, we might have a really hard time in Afghanistan, investigating, you know, CIA torture, maybe you have even a difficult time investigating crimes committed by Afghan forces. But everybody has an interest in prosecuting the Taliban in Afghanistan to say that, that the OTP has no chance of ever investigating and, and getting their hands on a high ranking member of the Taliban, I think is just wrong. So at least there are some serious crimes that could probably be investigated in Afghanistan, where I think the number of serious crimes in Myanmar that can be effectively investigated is essentially zero. So it’s even worse than the kind of inconsistency of the rulings it kind of gets the situation’s backward from a kind of factual or pragmatic standpoint.

Stephanie van den Berg

So do you think that’s also a difference when the judges with one trial chamber not only enthusiastically encouraging the Myanmar, but also saying, why don’t you also have a look at this? Well, on the other side, you have a trial  hamber, shutting it down, saying, I don’t think you want to look at this at all?

Kevin John Heller

Yes, I agree. And hopefully, you have, we’ll see, hopefully have an appeals chamber, who understands that they have to resolve all of these issues. And, you know, they’re not whether it be a satisfying way, but the appeals chamber has to know that they can’t have this kind of inconsistency in terms of how the pre-trial Chamber looks at proprio motu investigations. Hopefully at some point, we’ll have a ruling that tells us what’s right.

Janet Anderson

On the show, we like to put also another few questions to our guests. There’re the same ones.

Kevin John Heller

Ask away. I’m an open book.

Stephanie van den Berg

Or maybe first address the elephant in the room, which is…

Janet Anderson

Okay.

Kevin John Heller

This is a gotcha question.

[LAUGHTER]

Stephanie van den Berg

No, no.

Janet Anderson

No, we’re not going to cut to a question for you. But Kevin, we just wanted to say thank you for agreeing to appear on the show, as our token man,

Kevin John Heller

Woo!

Janet Anderson

Because, as you know, it’s mainly female experts that we have, but we just wanted to show that it’s okay to be a male expert, and we will occasionally reach out to men and ask you to… to contribute. We love you, too.

Unknown Speaker  

Aw, thanks. I am completely in favour of discriminating against men in terms of your interviews.

Stephanie van den Berg

I think the… I use Kevin a lot for my Reuters stories, because Kevin is, in a way, a typical male that I can call. [LAUGHTER] And when I call women experts, and I say I want it, you know, this decision was just done a few seconds ago, you know, I need a comment. And they will kind of pedal back and say, I’m an expert in the ICC, but I only know very much about the Katanga case and the victims in that case. So if I have to decide on Katanga ruling of the judge, it’s not really exactly my area of expertise. So I would prefer not to say anything. 

Janet Anderson

So we’re just going to support women to tell them that we’re gonna ask them questions about their own area, but support them that they do have expertise. They are experts in the area. 

Kevin John Heller

Can I comment? [LAUGHTER]

Stephanie van den Berg

Yes, please.

Kevin John Heller

Yeah, I mean, I think it’s a very, it’s a very gendered thing. I think I’m more willing to comment on things I don’t know about than even most men, but there is definitely a gendered aspect to this. And, you know, in my, I’ve been an academic for 15 years, and I’ve taught, you know, thousands of women and thousands of men and had lots of, you know, colleagues of both genders. 

To me, I don’t know exactly how to put it, I don’t want to say something that will make me look bad that you might not edit out. You know, I think men have an easier time separating their work from their sense of self, that if I say something really stupid, and it’s categorically wrong, doesn’t harm my psychological well being in any way. I’m Kevin. I’m not my opinions. I’ll look at as I get to, you know, now I can milk sympathy by copying to my mistake, and you know, it’s like, “Look, I can I can reflect critically on myself.” Whereas I think, you know, the work from… from most and not getting overgeneralising. But for many women scholars, there’s such a close connection between their work and themselves, that to expose themselves to criticism it feels riskier for them, and it probably is that they will be penalised more severely for being wrong.

Janet Anderson

It can actually be a lot riskier, particularly online. You know, if you look at the amount of misogyny that’s around, then, yeah, it’s… it’s a lot easier to be a male commentator, than it is to be a female one.

Kevin John Heller

I don’t really get abused very often. And I make much more inflammatory comments…

Janet Anderson

Only by Dov Jacobs!

Kevin John Heller

Yeah, but he’s… a he’s a good friend. So yeah. [LAUGHTER] I really, I mean, I don’t know if that’s an impolitic thing to say, but I really do think that, that men are just will or just, it’s just easier for them in general to just kind of push away the criticism in their work.

Stephanie van den Berg

Yeah. And I think Chris, you will never get the comment, like, “Oh, you know, why are you comment on this? You should write you should pay more attention to your daughter who should be in the kitchen, cooking or whatever”? 

Kevin John Heller

I would hope that nobody would say that to anyone. But of course they do all the time. 

All

Yeah.

Janet Anderson

Well, we’re just going to treat you as one of our regular contributors. 

Kevin John Heller

Okay. 

Janet Anderson

Gender aside, and ask you the same three questions that we put to all of our contributors. First of all, what’s the one thing that no one ever asks you that they should ask you? 

Kevin John Heller

Oh, my God. 

Janet Anderson

What’s the one question that you always think? Thank goodness, they should have asked this?

Kevin John Heller

Substantive question or personal question?

Janet Anderson

Substantive, if you can.

Stephanie van den Berg

But if you have personal things you want to develop… [LAUGHTER] It’s that kind of a show. And if you want to come clean, this is the moment.

Kevin John Heller

I don’t know. I really don’t…

Janet Anderson

In this field of the ICC. Do you get all the questions you think people always should… should ask?

Kevin John Heller

Um… I mean, I think… I think I generally get asked the questions that I expect to get asked because I probably because I am so opinionated and there’s not a lot of I don’t really have a lot of hidden views on the court. If I… I think something I will say it. 

In general, I bemoan the lack of attention to kind of the pragmatic aspects of the court. And I do talk about that whenever I can. But you know, a lot of my work is driven by pragmatism where I say the, the law should be interpreted as X, not because I think X is like the greatest position ever, but because that’s the best the ICC can do, right now. That’s not the way that most people think about the court. They tend to think in absolutes. They tend to think in ideals. They don’t like pragmatic concessions. You know, so I’ll give you a nerdy… nerdy example, for my work that you know, I have this “sentence based theory of complementarity” where I could not care less what a state prosecutes a suspect for. It doesn’t have to be an international crime. I don’t even care if it’s a particularly serious ordinary crime. If they’re going to put that person in jail for as long as the ICC would put them in jail. I don’t see why the court should prosecute them again.

Janet Anderson

The whole Al…

Kevin John Heller

The Al Bashir situation I in fact, I’ve been meaning to write a little blog post kind of I did a poll on Twitter, but I wanted to write a blog post saying, okay, we all know that Sudan is not going to seriously prosecute Bashir, but if they were, let’s imagine that they had a very serious prosecution for corruption. And as a result of the corruption trial, he was sentenced to 30 years in prison with no real possibility of being sprung, like six months later. He’ll be dead before he serves that sentence. The chances of him even facing the charges that he is getting longer than a 30 year sentence at the ICC is essentially zero. 

For me, in a perfect world, where the court had unlimited resources and unlimited courtrooms and unlimited prosecutors, yeah, prosecute him for an international crime, on the basis that international crime has more expressive value than, say, corruption. But that’s not the ICC we have, it’s not the ICC we will ever have. 

So for me, not dismissing that there is something different about prosecuting an individual for corruption than genocide, I don’t see why the court would ever waste its resources, given that he’s going to spend the rest of his life in jail anyway. And that’s very much the opposite of the way the complementarity jurisprudence has developed, which has become narrower and narrower and narrower, and essentially making it impossible for a state to keep control of a prosecution. 

So people don’t like talking about those kinds of pragmatics. They don’t like concessions to reality. They want always the maximal most expressive position. Even, you know, if you point out that well, gee, failed ICC prosecution has zero expressive value, you might have been prosecuting him for a more serious crime, but if you can’t actually convict him, you know, is that really all that progressive and good for the court? 

But those questions I never talked about with anybody.

Stephanie van den Berg

Tell us what’s the one thing that everybody gets wrong about what you do?

Kevin John Heller

Oh, that’s an easy one. The um, you know, I’ve been, I’ve been blogging for… I’m like, the granddaddy of bloggers, like…

Janet Anderson

We should say, at Opinio Juris.

Kevin John Heller

At Opinio Juris, right, so I’ve been blogging at Opinio Juris for almost 14 years, which is like 1000 years in blog years, their opinion. I was not a founding member of opinion us, but I was like… Roger Alfred and I were like, the first two non-founders to join the blog. And I’ve written, I think, 3000 blog posts and a couple million blog words, you know, I, I’m on Twitter, and I have a particular style. I, I have mellowed quite a bit over the years, often at the demand of my co-bloggers, you know, where I tend to blog and tweet when I’m angry about something. And sometimes I’m not quite as circumspect, as I probably should be in my rhetoric. So the most common thing is, when people meet me for the first time, the most common reaction is, “wow, you’re a lot nicer in person than I expected you to be”. [LAUGHTER] Because they only know me through the kind of hyperbolic, you know, sarcastic rhetoric that I that I use in my writing, when, like they don’t they don’t see the fact that I can have an incredibly, incredibly tense discussion with someone like I don’t know, Mike Schmidt, about IHL. And Mike, and I’ve known each other for years, and we’re friends and, you know, we hug each other when we see each other and go have beers. It’s not. I mean, it’s not that I don’t take seriously the debates, but I try to separate the person from the view. And so you know, I can have a really strident conversation with somebody and tell them that they’re being idiots and that their position is ridiculous and, and still be really good friends with him. Alex Whiting, and I have me, we’ve been really good friends for years. And I don’t think anybody would know that by just reading, you know, our tweets. So I think it’s one of the costs of people knowing you only through your “public persona” that, you know, maybe I’m sure many people, their public personas and their private personas are exactly the same. But there can be a gap. And I think that that most people don’t know that there’s actually a pretty big gap between how I am publicly and personally.

Janet Anderson

Um, we’d also like to ask you, what have you seen or read recently that you’d like to recommend?

Stephanie van den Berg

Doesn’t have to be international law, but it can be.

Kevin John Heller

I don’t know. So I mean, I think Black Earth Rising actually, is a really good example. I was really expecting to hate Black Earth Rising because no one’s ever done anything that even touches on the ICC in a way that’s not an atrocity. And we can talk about Crossing Lines if you want. 

So I had very, very low expectations. In terms of Black Earth Rising’s use of the ICC, it lived up to my expectations of being an atrocity. It got everything completely even though Hugo Blick, the writer, director, actually did spend a lot of time at the court talking to people like Fatou. Obviously, didn’t take notes or something. But in general, I thought the show was absolutely brilliant. And it did such a spectacular job really kind of exploring the complexity of post-Rwandan genocide politics. I don’t have any friends in the Rwandan government. So I don’t know what their response was, I’m pretty sure they would have absolutely hated the miniseries. But it was incredibly it was riveting, in terms of its exploration of Rwandan politics, and I had never seen, you know, outside of, you know, kind of abstract, you know, academic work such an intelligent discussion of… of the difficulty of dealing with post-atrocity situations when the government in power weren’t responsible for the majority of the atrocities but certainly didn’t come to power with clean hands. And that really, I hope everybody watches it, and doesn’t learn anything about the ICC from it, but learns a lot about the Rwandan genocide.

Janet Anderson

And it’s only been, you know, 20 years that the ICC has been in position. It’s only been you know…

Kevin John Heller

I don’t like to… I don’t like the qualifier ‘only’, but that’s ok.

Janet Anderson

It’s okay. It’s been a limited amount of time that the ICC has been around, it’s been a limited amount of time that we’ve had these international tribunals. And I have the sense that, that they have really started to get into a lot of creative brains. There… any reference to war crimes, brings for them the idea of this court on the hill, not on a hill, because it’s the Netherlands but, a court over there, somewhere in… there in The Hague, and they project on it, all kinds of fantasies. And what do you see that?

Kevin John Heller

Absolutely. And I think it’s incredibly pernicious in every respect. But this kind of also gets to my own view of international criminal justice, where I have very little faith or belief in international tribunals. And I think if international criminal law has a future, its domestic, and perhaps a regional, but certainly not international. It drives me absolutely crazy, that no matter what the atrocity, no matter what the situation, the first impulse of everyone in the field is always “Oh, let’s refer to the ICC or the ICC should get involved.” And, you know, I would think that if the fire department was called to 15, fires and managed to maybe like, put one of the 15 out and even then, you know, the fire came back a few weeks later, you would stop thinking maybe we should call the fire department every time there’s a fire, but no one ever seems to learn. They don’t seem to be able to entertain the possibility that there are other ways of bringing accountability to international criminals. And, and I think this kind of pop cultural obsession with international organisations kind of really does reflect that. And again, that’s what I liked about Black Earth Rising. A lot of it is about, you know, domestic prosecutions and at least threats of domestic prosecution. And, you know, I would like to see, you know, a movie about the Habre trial. I mean, you know, you… you want something that happened in international criminal justice that actually allows us to be somewhat optimistic about the future. It’s certainly a lot more the Habre trial than anything that the ICC has ever done. But yet, again, perhaps because it’s easily represented, and people understand it, or just because of it does suck up so much of the oxygen in the room. It’s always the ICC. It’s always an international tribunal.

Stephanie van den Berg

The one thing that I really did enjoy that they got very right is how the ICC looks and how that kind of IKEA international justice on the cheap courtroom looked. Like the building the style of the building they got right. That was about the only thing in my opinion, but so what were the worst, the worst offences… 

Kevin John Heller

The absolutely worst offence was when I think it was the French police. They show up to arrest the suspect, it might have been the British police, I don’t… don’t quite remember the police. And they say we are placing you under arrest pursuant to Article 25(3)(A) of the Rome Statute, which is just the definition of perpetration. It… nothing to do with arrest, or the powers of the court. It’s literally a substantive provision of the Rome Statute. And, and I have… I just I literally have no idea how Hugo Blick came up with that one, but I had a good long laugh about that. The fact that the British hold an extradition hearing, 

Stephanie van den Berg

Yeah that’s pretty good, yeah.

Kevin John Heller

You don’t hold an extradition hearing. It’s… A) it’s not extradition, and B) you don’t have a hearing. It’s just you’re surrendering a suspect to the ICC. So that was completely… wrong.

Stephanie van den Berg

I absolutely loved the scene where the prosecutor strolls out with the main victim right next to the entrance of the court, completely unprotected, ready to be shot down. [LAUGHTER]

Kevin John Heller

No spoilers! No spoilers!

Janet Anderson

As you do, with victims…

Stephanie van den Berg

I’ve been… I’ve never seen Fatou Bensouda stroll around the kind of plaza in front of the ICC. And I would love it if she did because I could ask her…

Kevin John Heller

Especially if she did it with someone like Katanga, or…

Stephanie van den Berg

Exactly. I mean, it’s it’s every journalist dream that this is going to happen.

Kevin John Heller

Exactly.

Janet Anderson

So, little bits of artistic licence? 

Kevin John Heller

Yeah, no, I think that one might be artistic licence. What was another one that um… oh, there was one of the characters… when they released the guy from the ICC. He expresses his surprise that “Oh, why wasn’t he arrested and prosecuted by the UN?” she says. I kept thinking.

Janet Anderson

Which UN?

Kevin John Heller

Well, UN. Yeah, like A) the UN doesn’t arrest people, and B) that there are no other courts. So I’m not sure where they expected this guy to be prosecuted. But again, I think they were just trying to, you know, it was trying to play up the surprise of the… the suspect being released. But you know, I don’t know you do know about my dark past as a TV writer. 

Stephanie van den Berg

Oooooh, no.

Kevin John Heller

So I, I wrote and produced television for four years between… in Hollywood, between being a criminal defence attorney in Los Angeles, and my first teaching job at the University of Georgia. And I worked on law and cop shows, mostly, and the thing that drove me crazy, was not artistic licence, because you know, you’re telling a story. You’re not it’s not a documentary, you’re not trying to get everything absolutely right. But why would you engage in completely false artistic licence, when you could very easily not do something false and be exactly and get exactly the same point across like you didn’t really need to…

Janet Anderson

So, so you really complaining about laziness?

Kevin John Heller

Yeah, it’s laziness. You know, I remember, the person who helped me get into, into the… into the biz, was one of the executive producers of Law and Order. And he had been a public defender in Brooklyn, before he became a TV writer. Law and Order was absolutely obsessed with being accurate. They were so obsessed with being accurate that every year that the show is renewed, they would get the conviction statistics of the Brooklyn District Attorney’s office that they were a fictional representation of. And they would essentially peg the outcome of the trials during the season to that. So if the Brooklyn DA had a really good year, and had like a 95% conviction rate, about 95% of the defendants that year on the show would be convicted. If they had a really bad year, it was 80%, the show would have more acquittals. I mean, that’s how obsessed with accuracy they were and again, sometimes they also deviated and because it was necessary to, you know, for the excitement of the show, but they were very careful to never gratuitously get things wrong. And so many shows just, they just don’t seem to care at all.

Janet Anderson

Oh, which is your favourite, really bad representation of something that uses the term ICC?

Kevin John Heller

Oh, that’d be that’s an easy one. That’s Crossing Lines. 

Janet Anderson

Yay. We love it.

Kevin John Heller

Crossing Lines is itself a crime against humanity.

Stephanie van den Berg

It’s on Netflix for everybody who wants to watch it.

Kevin John Heller

It… actually, to be fair, I actually kind of like the show. If you… if you turn off your ICC brain, and you just… you do is like kind of a police procedural with really good looking actors, shot in really pretty places in Europe. It’s kind of a fun show. But you kind of have to appreciate a show that is based on a premise that is entirely false. I mean, the… the basic premise of the show is that this elite, ICC investigative team investigates crimes that cross state borders.

Stephanie van den Berg

Like a serial killer, I think the first serial killers. I watched it, because it’s now on Netflix. I missed it the first time round. And I was… I was checking out something about it, because I wanted to see where it was shot what was supposed to be the Netherlands, and why all the people were supposed to be “Dutch”, had German accents. I found out it was shot in Prague. But then mainly, I saw that you’re in the Wikipedia entry for Crossing Lines.

Kevin John Heller

Yeah, I am on the Wikipedia entry, haha. Well, because I blogged really extensively about the first season of it. And then I finally just kind of became learned helpless and stopped blogging about it. But it was just I mean, really, you just have to appreciate a show that the fundamental premise is completely wrong. Because again, I think I wrote this in my first blog post about it, I’m like, why set it at the ICC? Like, you didn’t…

Janet Anderson

It could be at Europol! It could be set at Interpol! It could be set at all kinds of places.

Kevin John Heller

You know, a special international criminal tribunal for transnational crime or something like, you could just make something up. And I guess, again, it’s playing on, I suppose least in Europe, kind of name recognition that people would say, oh, “ICC, I’m interested in the ICC. So I’m interested in Crossing Lines.” But oh, my god, they would come away with it from the few seasons of that show having no idea what the ICC actually does…

Stephanie van den Berg

And apparently believing that the ICC investigative team would meet in the bierkeller look alike place. 

Kevin John Heller

Yes, in a basement in The Hague. Cool offices they had in that building. [LAUGHTER]

Janet Anderson

So have you been consulting on any other media projects? Are we going to expect a… of you behind the scenes making sure that we do get something good coming out? 

Kevin John Heller

No, probably not. It’s kind of sad, actually. Because, um, so a friend of mine, a woman who I wrote with on a show called The Court long ago, when I was a TV writer, she’s gone on to be an incredibly successful TV producer. And she produced… she created and produced a show called Rizzoli and Isles, which is actually the most…It was her show. And she it’s the most successful show and TBS is history. And she was always a very successful writer. But this moved her to another level and, and for a very long time, and we’ll come back to it at some point, we, you know, we pitched not an ICC international criminal law show to lots of places. And sadly, the… the network that wanted the most was the BBC. And then it kind of got killed by Black Earth Rising because they just they couldn’t do… the development exact couldn’t sell, like the absolute higher ups on doing two shows about international criminal justice at the same time. 

And our show was very much deliberately not about the ICC. It was called Tribunal. And it was really about an ad hoc tribunal being set up in Georgia to deal with kind of, you know, crimes committed during an ongoing rebellion. And was dark and gritty and smart. And, and Janet is a such a phenomenal writer. It’s unbelievable. And we came so close to selling it so many times. And it’s just the nature of Hollywood. Okay, well eventually have to move on to something else. But maybe someday you will see that because we’ll always go back to it.

Janet Anderson

Yeah, I’m sure we’d all love to see that. Okay. Well, thanks very much, Kevin, for coming on and sharing your history!

Kevin John Heller

Well, thank you for having me. And thank you for… for making me your first token, man. 

Janet Anderson

Very welcome.

Stephanie van den Berg

And we hope to have some other men. Not a lot because then you won’t be the token anymore. But definitely more and maybe we will ask you back when they get new developments in Myanmar.

Kevin John Heller

Happy to come back anytime.

[OUTRO MUSIC]

This podcast was created and presented by Janet Anderson and Stephanie van den Berg. 

Show notes and additional blogs are available on asymmetricalhaircuts.com

It is recorded in The Hague Humanity Hub, home to a community of innovators in the field of peace, justice, development and humanitarian action. 

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Disclaimer:

This transcript was generated using online transcribing software, and checked and supplemented by the Asymmetrical Haircuts team. Because of this we cannot guarantee it to be completely error free. Please check the corresponding audio for any errors before quoting.