In association with the International Commission of Jurists

General

04 Dec

[Dr Lorenzo Kamel is Senior Fellow at IAI and Research Fellow at Harvard’s CMES]

It would seem unnecessary in 2015 to refer to the League of Nations or the Mandate for Palestine when discussing the legal status of the Palestinian territories. Yet, in recent years several scholars are resorting to these issues to provide a legal justification for the construction/enlargement of outposts/settlements and the indirect denial of the right of the Palestinian people to self-determination. This article aims to deconstruct these approaches and to shed light on the selective use of history and international law that underpins them. The 89 pages of the Levy Report, released on 9 July 2012 by a special committee appointed in late January 2012 by PM Netanyahu to investigate whether the Israeli presence in the West Bank is to be considered an occupation or not, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”. In a video entitled “the Legal Case for Israel,” international lawyer Eugene Kontorovich pointed out that “up to 1948 all this area [present-day Israel and the Palestinian territories] was Palestine reserved as a Jewish State by the League of Nations Mandate […] the legality of the Mandate jurisprudence cannot be changed.” More in general and according to an interpretation held by a growing number of scholars and by most of Israel’s right-wing parties, the preamble as well as Article 2 of the Mandate secured the establishment of the Jewish National Home on, in Howard Grief’s words, “the whole country of Palestine, not a mere part of it.” (H. Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem: Mazo, 2008), p. 106.) It would follow that, as argued by the late Eugene Rostow, “the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948”. But to resort to the League of Nations and the British Mandate for Palestine might be counterproductive for those committed to finding legal justifications for the construction of outposts, or the enlargement of settlements, in the Palestinian territories. The term “national home,” in fact, had no mutually agreed-upon meaning or scope and the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities. True, in 1919 prominent British official Jan Christiaan Smuts, a leading figure in Lloyd George’s War Cabinet and an open supporter of racial segregation, envisaged the rise of “a great Jewish State.” Lloyd Gorge himself pointed out that “it was contemplated that when the time arrived for according representative institutions in Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth”. On the other hand, the first Attorney General of Palestine, “lifelong Zionist” Norman Bentwich, contended that “a national home, as distinguished from a state, is a country where a people are acknowledged as having a recognized legal position and the opportunity of developing their cultural, social and intellectual ideals without receiving political rights”. This position was also consistent with the one expressed a few years earlier by the general secretary and future President of the Zionist Organization Nahum Sokolov. He represented the Zionist Organization at the 1919’s Paris Peace Conference, where made it clear that the
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04 Dec

Just a reminder that the deadline for applications for the Fifth Annual Junior Faculty Forum for International Law, which will be held at NYU from June 27-29, 2016, is fast approaching. Applications are due December 15. Those who are keen to make an application can find the details of the application procedure set out here. As always, I highly recommend that young scholars...

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02 Dec

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He will be in Paris for the climate change negotiations. This is the second in a series of updates both from the U.S. and from Paris. Professor Bodansky has...

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30 Nov

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He will be in Paris for the climate change negotiations. This is the first in a series of updates both from the U.S. and from Paris. Professor Bodansky has...

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26 Nov

Happy Thanksgiving.  As those of us in the United States celebrate our Thanksgiving holiday, it is of course imperative to remember that many people outside our country are facing serious problems and perilous circumstances. In response to the terror attacks in Paris (and in Mali), the government of UK Prime Minister David Cameron has once again called on British lawmakers to...

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23 Nov

Your weekly selection of international law and international relations headlines from around the world: Africa Mali's president has questioned claims that al-Mourabitoun, an al-Qaeda linked group, was responsible for last week's assault on a luxury hotel in the capital Bamako. Plans by the Senegalese government to prohibit women from wearing full-body veils, amid growing security concerns, have sparked debate within the majority-Muslim country. Al Jazeera investigates...

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16 Nov

Your weekly selection of international law and international relations headlines from around the world: Africa Judges at the International Criminal Court on Friday granted early release to convicted war criminal Germain Katanga, making the Congolese warlord, sentenced to 12 years in prison in 2014, the first ICC convict to be freed. The Congo Basin in Africa, the world's second-largest tropical forest, is facing...

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11 Nov

[This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.] We are proud to partner once again with Opinio Juris to present an online symposium discussing a thought-provoking issue of international significance. This year, we highlight Professor Rachel Lopez’s The...

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09 Nov

Marty Lederman last week posted a typically comprehensive treatment of the legal issues raised by Charlie Savage’s account of the administration decision to send forces into Pakistan to kill or capture Osama bin Laden. I’d earlier criticized the CIA’s apparent view that non-self-executing treaties are not legally binding on the President, and I take Marty plainly to agree with this principle. It’s no doubt true there is yet more to learn and understand about how the CIA’s position on this question has actually manifested itself in administration decision-making, but given what we already know, I’m not sure how to avoid the already deeply concerning conclusion that as a general matter the CIA seems to have badly misunderstood the legally binding nature of treaties the United States has signed and ratified. Where Marty and I appear to disagree is on the question (a question I set aside at the beginning of the last post) whether the United States’ incursion into Pakistan during the bin Laden mission violated Article 2(4) of the UN Charter (one of those legally binding (even if non-self-executing) treaty provisions) prohibiting the “use of force against the territorial integrity or political independence of any state.” There is of course vigorous ongoing disagreement (e.g. here and here, but this is only the tip of the iceberg) about the argument that there is any exception to the Art. 2(4) principle on the grounds that the target country is “unwilling or unable” to address the threat a non-state actor on its territory poses to the targeting country. But let’s ignore all that for now and just assume for the sake of argument that one embraces some “unwilling or unable” exception to the Article 2 prohibition. Even assuming as much, the argument the administration lawyers appear to have made in the bin Laden case goes a step beyond. In particular, because the United States did not want to risk alerting Pakistan of the operation in advance for fear that Pakistani officials would inform bin Laden, the lawyers would have had to argue that the targeting country could conclude on its own that the target country is “unwilling” to address the non-state actor threat, whether or not the country would in fact be willing if asked. In Marty’s conception, the argument would go as follows. (1) The “unwilling or unable” test “is best understood as an application of the jus ad bellum requirement of necessity.” (2) Because the United States had a reasonable and well-founded fear that elements of the Pakistani government would have tipped off bin Laden, making any subsequent intervention impossible, it was reasonable for the lawyers to conclude that the U.S. use of force “without prior Pakistani notification/coordination was, more likely than not, necessary to interdict the threat posed by bin Laden.” (emphasis mine) Put more directly, a target country can be deemed “unwilling” to address a non-state actor threat if the targeting country thinks it is “necessary” to do the targeting itself. Marty forthrightly notes that there is no current law that informs this argument – an artifact, it seems to me, of the reality that only a handful of countries have yet recognized the “unwilling or unable” exception at all. But that does not mean there is no law here that applies.
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09 Nov

Your weekly selection of international law and international relations headlines from around the world: Africa Residents of Sierra Leone's capital held a candlelit vigil and celebrations to mark the end of an Ebola epidemic that has killed almost 4,000 people including more than 220 health workers since it began last year. The international community has condemned Burundi's government for inciting violence amid a...

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09 Nov

I'm delighted to announce that two good friends, Leiden's Larissa van den Herik (also one of my PhD supervisors!) and Manchester's Jean d'Aspremont, are the new General Editors for CUP's prestigious Cambridge Studies in International and Comparative Law book series, which celebrates its 70th birthday next year. Here is Larissa's statement: It is with great enthusiasm that I take on the general editorship of...

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