In association with the International Commission of Jurists

Recent Posts

04 Aug

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.] New reports say the Palestinian leadership has decided to seek to join the International Criminal Court as a member state. The PA has been threatening such action fairly constantly for several years, and it remains to be seen whether they mean it this time. A recent and little-noticed development at the ICC suggests the Palestinian Authority may have a harder time getting the Court to accept its accession than many previously thought. A few months ago, in a situation quite analogous to the Palestinians', the Court rejected an attempted accession. Recall that the ICC rejected a 2009 Palestinian attempt to invoke its jurisdiction by saying that it lacked the competence to determine if Palestine was a "state" under international law. A main motive for the last year's General Assembly's vote to treat Palestine as a non-member state was to bolster its case for ICC membership. The idea was that the OTP would look only to the formal, "political" action of the General Assembly, rather the the objective factors of whether Palestine satisfies the criteria of statehood, such as whether they control their own territory. Whether that is true or not, recent developments show that even if the OTP accepts that Palestine is a state - ignoring objective tests - it would conclude that the PA cannot accept jurisdiction on behalf of that state, certainly not for Gaza.
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04 Aug

Africa The United States will announce nearly $1bn in business deals, increase funding for peacekeeping and commit billions of dollars to expanding food and power programs in Africa during a summit this week, officials said. Little action has been taken to clean up pollution caused by oil production in Nigeria's Niger Delta region, either by the government or Shell Oil, Amnesty International and other groups have said. Health...

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03 Aug

Call for Papers The Lex Mercatoria Publica Project at the Max Planck Institute in Heidelberg has issued a Call for Papers for a workshop on "The (Comparative) Constitutional Law of Private-Public Arbitration" to be held on 21-22 November 2014. Against the background of a rising number of arbitrations between private economic actors and public law bodies, both on the basis of contracts...

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02 Aug

This week on Opinio Juris, we had some vigorous debate on the legality of Israel's "Operation Protective Edge" in Gaza. Kevin opened the week with the question whether Israel can cut off water and electricity to Gaza, and Janina Dill raised two concerns with the IDF's practice of using warnings. Julian commented on the Joint Declaration on the Gaza Offensive signed by over 140...

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01 Aug

[Ori Pomson and Tali Kolesov Har-Oz are both teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty.]  Introduction The recent hostilities between Israel and Hamas have attracted a great deal of media and public attention. However, while a number of media reports have alluded to the legality vel non of certain actions committed by both sides, they have thus...

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01 Aug

Under any view, the privilege of combatancy is key to the basic architecture of the law of war. It stands at the fault line between domestic criminal law and International Humanitarian Law, between impermissible killing and lawful belligerency. Simply put, the privilege of combatancy transforms, almost magically, what would otherwise be an unlawful act of murder into a lawful killing...

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01 Aug

[David Benger is the Course Assistant for the Brandeis University in The Hague intensive summer school in International Criminal Law. He may be reached at dabenger [at] gmail [dot] com.] The International Criminal Court, an ostensibly purely legal organization, is nevertheless plagued by a wide variety of political pressures. For example, the attempt to balance The Court’s relationship with The African Union (widely considered to be deteriorating) and its relationship with the United States (widely considered to be improving) is an important thorn in the side of the Court’s daily operations. This post will examine the re-opening of the preliminary examination of British soldiers in Iraq through the lens of the potential political fallout of that decision. The re-opening of the preliminary examination in Iraq is not a signal of sufficient substance to appease the African anti-ICC lobby. Unless and until there are actual trials of European commanders in The Hague (not likely in the near future), the characterization of the ICC by African leaders as a neo-imperialist Western tool is not likely to dissipate based on a mere preliminary examination. With regard to the United States, however, the impact of this decision will almost certainly resonate. Though many observers of the USA-ICC relationship subscribe to the narrative of a steadily improving rapport between the two, this post will argue that this is not quite the case. In fact, the relationship between the Court and the USA is in a decidedly precarious position, and the re-opened Iraq investigation may have a decisive and damning impact on America’s potential support for The Court.
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31 Jul

According to Standard & Poor's, Argentina has defaulted on at least some of its sovereign bonds, after last minute negotiations failed to reach a deal with its holdout bondholders, who had won a series of victories in U.S. court.  Although there are reports that some U.S. banks representing the rest of the bondholders are exploring ways to buy out the holdout bondholders...

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30 Jul

[Janina Dill is a Lecturer at the Department of Politics and International Relations at the University of Oxford.] In the ongoing military campaign ‘Protective Edge’ the Israeli Defence Forces (IDF) consistently issues warnings before air strikes against targets in Gaza. The population is warned of impending attacks with phone calls, text messages or so called ‘knocks on the roof’ (dropping of non- or low-impact explosives on the intended target). The warnings play a central role in Israel’s claim that, contrary to Palestinian armed groups, namely Hamas; it obeys the strictures of international law. ‘While the IDF goes to extraordinary lengths to avoid civilian casualties, Hamas deliberately puts civilians in the line of fire, the IDF maintains on its official blog. The First Additional Protocol to the Geneva Conventions, the relevant sections of which have the status of customary international law, in Article 57(2) c indeed prescribes that ‘effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit’. Warnings, their frequency and form, are at the centre of a narrative that Israel does not simply comply with, but goes beyond the call of international law in its care for the civilians of Gaza. ‘Israel's use in the Gaza Strip of non-lethal warning shots to the roofs of buildings which constitute military targets … is not legally obligated’, the Military Advocate General’s Corps holds. Media commentary commends Israel for giving civilians a way out without even being obliged to do so. This is a misunderstanding of Article 57. The provision establishes an unequivocal obligation to warn before attacks that implicate the civilian population – as air strikes against a territory as densely populated as Gaza will regularly do. Granted, it is not an absolute obligation. The law recognizes that sometimes it may not be possible to warn. Crucially the provision does not say ‘warn if possible’, but ‘warn unless impossible’. It is open to interpretation when that is the case and reasonable people may disagree, but the default is to issue a warning and it is a failure to do so that requires explanation. Warnings are not acts of charity. But are the kinds of warnings issued as part of Operation Protective Edge manifestations of the IDF’s commitment to the laws of war? The practice raises two distinct concerns. The first is that the air strikes the IDF carries out after issuing warnings are indicative of a misunderstanding of the legal implications warning before an attack. It has none! The second is the concern that the practice itself violates international law. I discuss them in turn.
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30 Jul

[Jens Iverson is a researcher at the Law Faculty of the University of Leiden.] Imagine there is a potential peace agreement that would end a civil war, but only at the cost of leaving portions of the country in question in the hands of a group that systematically violates the human rights women and girls.  The government is backed by a...

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28 Jul

A few hours ago, the NY Times broke a story that the United States views Russian tests of a ground-launched missile as violating the 1987 INF treaty, formally (and lengthily) titled, "The Treaty Between The United States Of America And The Union Of Soviet Socialist Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles".  According to the story, the State...

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