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CfP: Contingency in the Course of International Law

by Kevin Jon Heller

Just a reminder that the deadline is fast approaching for the workshop I am organising with Ingo Venzke, “Contingency in the Course of International Law: How International Law Could Have Been.” The workshop, which will feature an opening address by Fleur Johns (UNSW) and a closing address by Sam Moyn (Yale), will be held over two half days and one full day from June 14-16, 2018. Here is the concept:

The workshop will ask a question that is deceptive in its simplicity: How might international law have been otherwise? The overarching aim will be to expose the contingencies of international law’s development by inquiring into international law’s past. Such inquiries may be of systematic purport – asking, for example, how a different conception of the sources of international law could have emerged. Or they may focus on specific areas of the law, asking questions like whether the idea of state crimes could have taken hold or whether the NIEO could have achieved greater success. International law’s past is almost certainly ripe with possibilities that we have forgotten. The workshop will seek to reveal and remember them.

The workshop will focus on trying to tell compelling stories about international law’s contingency. To be sure, those attempts may fail and claims to contingency may well turn out to be false. Either way, though, we will question the present state of international law by challenging its pretense to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: ‘If there is a sense of reality, there must also be a sense for possibility’.

While the operation of the law is bound to gloss over any contingency in its course, we wish to draw out those contingencies to learn what could (not) have been. Some contributions will focus on the operation of international law itself, exploring the differential developments that could have taken place concerning seminal judicial decisions (eg, what if France had won the Lotus case?), key treaties (eg, what if states had failed to conclude the Second Additional Protocol in 1977?), or important institutions (eg, what if the International Clearing Union had been established in 1949?). Another set of inquiries will question the development of international law in light of more general historical events that might not have happened or might have happened differently, such as the outbreak of World War I, the processes of decolonization, or the terrorist attacks of 9/11. And yet other angles are welcome.

In the course of concrete inquiries into international law’s past, there are numerous opportunities for theoretical reflection about the nature of contingency itself, ranging from philosophies of legal history to questions about the narrator’s perspective. How should actor- and structure-centered accounts of the past be combined in probing the contingency of past events? How should we cope with possible tensions between pursuing interests in the present while avoiding undue anachronisms? And how can we contextualize legal developments without reducing law to its context only? Not the least, the question of how it could have been provides a renewed take on perennial questions of international law’s relationship with power, culture, and justice.

The deadline for abstracts is December 1. You can download the full Call for Papers here. If you have any questions, please don’t hesitate to email me.

Do Kurds Have the Right to Self-Determination and/or Secession?

by Milena Sterio

[Milena Sterio is a Professor of Law and Associate Dean for Academic Enrichment at the Cleveland-Marshall College of Law.]

On September 25, 2017, Kurds voted in a self-declared independence referendum organized by the Kurdistan Regional Government (KRG). , According to the referendum results, it appears that about 78 per cent of Kurds actually participated in the referendum and that nearly 93 per cent of participants voted in favor of independence). This post will briefly analyze the Kurdish proposal for independence via a unilaterally organized referendum in the larger context of international law on self-determination and secession.

Although the Kurdish independence referendum resulted in a “yes” vote, does this mean that Kurds automatically have the right to separate from Iraq and form their own independent state? Under international law, the answer is no (despite the Kosovo “precedent,” which should continue to be viewed as exceptional). In international law, one of the main vehicles by which groups have achieved statehood in the post-World War II era is self-determination. Self-determination is a principle of international law which posits that specific groups called “peoples” have the right to auto-determine their political fate. The right to self-determination entails self-governance for peoples and the idea that every people should have a government representative of its interests. This idea is reflected in several important international documents, such as the 1970 Friendly Relations Declaration, which proclaims that peoples are to be “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”

Within the decolonization paradigm, it was widely accepted that colonized peoples did not possess governments representative of their interests and the principle of self-determination was interpreted in that context as entailing the right to separate from the colonizer and form a new independent state. This type of self-determination has been described as “external,” and is widely seen as the more disruptive form of self-determination because it entails the dismembering of the territory of the mother state. Almost all scholars of international law would agree that colonized peoples had the right to external self-determination. External self-determination is typically exercised through the process of secession – a separation from the larger mother state by the smaller territorial unit inhabited by the self-determination-seeking people. While international law recognizes the right to self-determination, international law does not contain a positive law norm on secession. In other words, no people or other minority group can claim an international law-bestowed right to secede (more on this below).

While everyone in the international community agrees that the principle of self-determination applies squarely within the decolonization paradigm, when this principle was one of the main theoretical foundations toward the creation of new states, it is uncertain as to how this principle applies within other non-decolonization contexts. Outside of the decolonization paradigm, the principle of self-determination has typically been interpreted to entail internal autonomy for the relevant people within an existing mother state- the right to form a representative regional parliament and to elect regional and perhaps national government officials, as well as the respect of other non-political minority rights (such as the right to speak a separate language, to have education choices, to freely exercise a different religion, to have respect for a regional culture, etc.). This type of self-determination has been described as “internal,” and many in the international community argue that outside of the decolonization paradigm, peoples only have internal self-determination rights. Unlike the exercise of external self-determination, the implementation of meaningful internal self-determination rights does not entail disrupting the territorial integrity of the larger mother state. This is why most scholars argue that peoples outside of the decolonization paradigm can only exercise self-determination rights within the territory of their mother state, in an internal manner.

Nonetheless, external self-determination has occurred outside of the decolonization context and is supported by some scholars in limited circumstances. A minority scholarly view recognizes that in instances of extreme persecution by the mother state, a non-colonized people ought to be able to exercise external self-determination through remedial secession (.pdf). According to this argument, if a mother state is completely non-representative of the interests of a particular people, then the people accrues the right to exercise external self-determination through a remedial secession. However, even those who espouse this view do not claim that international law contains a positive right of secession. Instead, secession is a process through which external self-determination may be achieved, and international law at best tolerates secession, in instances of legitimate external self-determination or in exceptional situations, like in Bangladesh or Eritrea. Precedent for this argument exists in recent history – in 2008, Kosovar Albanians unilaterally declared independence and seceded from Serbia, through the exercise of external self-determination. While many other states almost immediately recognized Kosovo as a new sovereign state, it is important to note that almost no such states argued that Kosovar Albanians were indeed exercising external self-determination, or that they had a right to remedial secession. Instead, most argued that Kosovo was sui generis, an exceptional case which does not constitute any sort of precedent in international law. However, the Kosovo “precedent” exists, for better or for worse, and it has been relied upon in the rhetoric of other independence-seeking groups, in South Ossetia and Abkhazia, and by Russia, to justify its annexation of Crimea. The issue of the Kosovar declaration of independence was also the subject of an International Court of Justice advisory opinion in 2010; the world court, in an opinion disappointing to many scholars of international law, avoided issues of self-determination and secession and instead decided that the Kosovar declaration of independence was not prohibited by international law. Thus, in the Kosovo case, secession was tolerated by the international community, not as a right but as the outcome of a self-determination quest (because, inter alia, the Serbian government was deemed as non-representative of Kosovar Albanian interests). This is why the Kosovo case will likely remain exceptional: while it may be viewed as setting a factual precedent, it may not be easily interpreted as crafting new legal precedent on self-determination and secession. In fact, one scholar has argued that Kosovo is a “hard case” which should not be used as precedent for making “bad law.”

What does all of the above imply for the Kurds? Kurds, assuming that they are a people, should have internal self-determination rights respected within Iraq. If those rights are not respected by Iraq, then it may be argued that Kurds would accrue rights to external self-determination, which they could potentially exercise through remedial secession. It is questionable whether, as of today, Kurds can demonstrate that their autonomy/internal self-determination rights are not respected by Iraq. The current government of Iraq may be willing to grant the Kurds meaningful autonomy within Iraq, and if this were the case, then Kurds would have to satisfy themselves with the exercise of internal self-determination. Thus, putting aside the Kosovo “precedent,” it is unclear that the Kurds have the right to secede from Iraq under international law. If the government of Iraq were willing to authorize the Kurds to have an independence referendum and to negotiate a separation agreement, this would then become a matter of domestic/Iraqi law and international law would no longer be relevant. Regardless of the ultimate outcome in Kurdistan, this situation remains pertinent and it will be of particular interests to other independence seeking groups in the near future, such as the Catalan in Spain.

The Law Applied by the UN Syria Commission to the Al-Jinah Strike is Correct – And Reflects US Doctrine: A Reply to LTC Reeves and Narramore

by Elvina Pothelet

[Elvina Pothelet is a Visiting Researcher at the Harvard Law School and a Ph.D. candidate at the University of Geneva.]

A few days ago, US Army Lieutenant Colonel Shane Reeves and Lieutenant Colonel Ward Narramore published a harsh criticism of the U.N. Commission of Inquiry (COI) on Syria for its “emphatic, and faulty, conclusion that the U.S. violated the Law of Armed Conflict (LOAC)” in an airstrike that hit a religious complex in the village of Al-Jinah. The two authors challenge both the factual and the legal findings of the Commission. In this post, I do not engage in the factual controversy – as long as the facts underlying the legal analysis are withheld from public or judicial scrutiny, everyone will inevitably retain room to influence the narrative. However, I challenge the surprising legal claim made by the authors that there is no duty to take all feasible precautions to minimize incidental civilian harm. This reading of the law contradicts a host of sources, including US military doctrine (for a strong critic of other arguments they raised see this on point reply by Adil Haque).

LTC Reeves and LTC Narramore argue that the COI applied a “non-existent legal standard” when it found that “United States forces failed to take all feasible precautions to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, in violation of international humanitarian law”. Let us first note that the COI did not, as the authors argue, “impose an absolute requirement on commanders to avoid or minimize incidental loss of civilian life”, but only a duty to take all feasible precautions to achieve this aim–an obligation of means rather than of results.

According to the authors, the COI mistakenly interpreted an obligation to refrain from causing excessive civilian harm as a more demanding duty to take all feasible precautions to minimize incidental civilian harm. It supposedly did so by borrowing the standard of Art. 57(2)(a)(ii) AP I to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding or minimizing incidental [civilian harm]” (emphasis added) and by unduly applying this standard to the proportionality rule (reflected in Art. 51(5)(b) and Art. 57(2)(a)(iii)).

I would respectfully suggest that their view conflates proportionality and precautions, and fails to recognize the full scope of the customary obligation to take precautions. It is clear that the Commission’s findings are not based on proportionality but on precaution rules. These rules include the duty to take all feasible steps to avoid or minimize incidental civilian losses. This obligation derives from Art. 57(1) – which the authors’ analysis omits. That paragraph provides that: “[i]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” This general obligation is to be implemented by taking different precautions including those described in other parts of Article 57. The general aim of “sparing civilians” includes protecting civilians both from deliberate targeting and from incidental harm. In relation to the later aspect, not only is it prohibited to cause excessive collateral damages, there is also a positive obligation to take feasible measures to minimize even those collateral damages that might be deemed acceptable under the proportionality rule.

This duty is stated explicitly in Rule 15 of the ICRC Study on Customary IHL and confirmed by state practice and scholarship. The U.S., which is not a party to AP I, has unambiguously recognized that, as a matter of customary law, “[a]ll practicable precautions, taking into account military and humanitarian considerations, shall be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and civilian objects” (see here p. 233). This obligation further appears in the U.S. Law of War Manual (see section 5.3.3 on “Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other Protected Persons and Objects” and section 5.11 on “Feasible Precautions In Conducting Attacks To Reduce The Risk Of Harm To Protected Persons And Objects”) as well as in the U.S. Operational Law Handbook (“If civilians are present, a duty also exists to take feasible… precautions to minimize civilian casualties”, p. 24). The Commission applies this exact rule. So LTC Reeves and LTC Narramore’s blunt statement that “this is simply not the legal standard” is more than a little surprising.

In their example of an enemy leader in a crowd of civilians, they claim that:

“[T]he law, as currently structured, allows a commander the discretion to drop a bomb on the hypothetical leader assuming the resultant civilian death and injury is not excessive in relation to the expected military advantage gained.”

I argue that the lawfulness of the strike depends on the rest of the story. The commander may well act in compliance with the principle of distinction and proportionality, but if she failed to take feasible precautions that could have brought the foreseeable civilian casualties down to, say, 30 instead of 50, then there is a LOAC violation (although no war crime would be committed).

As to the possible measures aiming at minimizing incidental losses, some are listed in Art. 57 (or in corresponding customary rules of the ICRC’s Study). But they are not limited to that list–and certainly not limited to the choice of means and methods of attack, as the authors seem (?) to suggest when they mention Art. 57(2)(a)(ii). The U.S. Law of War Manual Section 5.11 supports that finding:

“Feasible precautions in conducting attacks may include the following:…”

Feasible precautions could include for instance adjusting the timing or point of impact of the strike. Logically, collecting sufficient intelligence (on the nature of the target, possible collateral damages and how to minimize them) is the first component of the obligation to take precautions. This aspect is an important part of the COI’s findings.

Ultimately, whether the COI was correct when it concluded that the US airstrike on Al-Jinah violated the LOAC depends, as always, on the facts. The views of CENTCOM and the two authors on these facts are important. However, calling into question the law applied by the COI is not warranted here. There is a duty to take all feasible precautions to avoid or minimize incidental civilian casualties and damages–even below the threshold of proportionate collateral damages. Restating this is not an attempt “to usurp the LOAC by injecting some version of human rights laws” but a correct reading of the LOAC. It would be important for the authors to clarify their view, as this rule is too significant to leave the wrong impression that the US does not agree with it (anymore?). There is a number of complex legal questions implicated in this event (such as what precautions were “feasible” in this context, or what the commander could have “reasonably” known and how this relates to the COI’s findings on public knowledge about the religious nature of the building and the frequency of religious gatherings there) – but the existence of this specific rule is simply not one of them.

 

In Celebratus: M. Cherif Bassiouni (1937-2017)

by Mohamed Helal

[Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.]

Cherif Bassiouni, Distinguished Research Professor of Law Emeritus and President Emeritus of the International Human Rights Law Institute at the DePaul University College of Law, Honorary President of the Siracusa Institute (formerly known as the International Institute of Higher Studies in Criminal Sciences (ISISC) – Siracusa, Italy), and Honorary President of L’Association Internationale de Droit Pénal, passed away on September 25, 2017.

International law academe customarily mourns the passing of great jurists by authoring In memoria tributes to the departed leaders of our field. However, as I reflected on what to write to honor Cherif’s memory, I felt that an In memoriam was not exactly the suitable tribute. This is because Cherif’s legacy is in no danger of being forgotten. Cherif, or MCB, as his friends and close associates called him, has left us a mammoth scholarly record of thirty-five books, forty-four edited volumes, and over two hundred and seventy law review articles. These publications have been authored in and translated into multiple languages, including Arabic, English, French, Italian, and Spanish and have been cited by the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Supreme Court of the United States, and other judicial bodies.

Through these writings and in over six decades of teaching at the DePaul College of Law, in various universities in the United States and around the world, and at the Siracusa Institute, Cherif made a permanent mark on international law. He is essentially the father of International Criminal Law as we know it today; he is the authority on extradition law and practice; he has made immense contributions to international human rights law; he has written widely on Islamic law and Middle East politics; and he is one of the authors of the Rome Statute of the International Criminal Court. Cherif was also a consummate educator who cared deeply about his students. He always sought to nurture their ability to apply the law rigorously and to live up to the highest ideals of justice to which the legal profession aspires. For his contributions to humanity, Cherif was nominated to the Nobel Peace Prize in 1999, and was awarded numerous medals and decorations from the Egypt, Italy, France, Germany, Austria, Croatia, Bahrain, and the United States.

So in short, Cherif’s legacy is ineffaceable. This makes an In celebratus that commemorates Cherif’s life and contributions a more fitting tribute to this giant of international law.

***

There is one saying that encapsulates Cherif’s worldview. He repeated this saying often and it was included in a final message that he personally authored and that was sent out to his students, friends, and colleagues after his passing. It is this hadith by the Prophet Mohamed:

“If you see a wrong, you must right it:
with your hand if you can,
or, with your words, or with your stare, or with your heart
and that is the weakest of faith.”

Cherif’s life was dedicated to the righting of the many wrongs that afflict our world. He did this through his writings, his teaching, his advocacy, his volunteerism, and his involvement with the United Nations, all of which were all motivated by a commitment to confront tyranny and defend the defenseless. One way to celebrate and honor Cherif is to reflect on his scholarly work and discuss how he helped elucidate concepts such as Double Criminality for the purposes of extradition and articulate principles such as aut dedere aut judicare. Or one could recount his instrumental role in the drafting of the Convention Against Torture and the Rome Statute. However, having been a mentee, friend, and adoptive son of Cherif’s for many years, I would like to recount four stories from different stages in Cherif’s life which I knew were dear to his heart and that reflect his passion for the pursuit of justice.

The first story is from his childhood. As he tells us in his soon-to-be-published memoirs, one afternoon in 1943 his father, who was an Egyptian diplomat, received an unfamiliar guest in their home. Although he was not in the room, an ever-curious and ever-mischievous Cherif listened-in on the conversation. He saw this man roll-up his sleeve to reveal a number that had been tattooed on his forearm. Later, Cherif’s mother explained to him that there was a “bad man” in Europe who was taking certain people, tattooing numbers on their arms, and killing them. Who were these people, and why was the “bad man” killing them, asked Cherif. Unable to reveal the full extent of the terrible truth to her young son and unable to contain her emotions, Cherif’s mother simply told him that these people were Jewish like Mr. so-and-so and Ms. so-and-so who were Jewish friends of the Bassiouni family, and added that the “bad man” didn’t like these people only because they were Jewish. This experience left a lasting impression on Cherif. It introduced this seven year old boy to the existence of evil and ingrained in him a reflexive desire to defend the meek, the voiceless, and the powerless, and to resist those who commit such atrocities.

A few years later, Cherif witnessed another instance of injustice. This time, however, it was not tyranny directed at specific individuals or at particular peoples. Rather, it was imperialism that sought to subjugate an entire nation. In 1956, while he was studying law at the Faculté de Droit of the Université de Dijon in France, Egypt’s revolutionary President Gamal Abdel Nasser nationalized the Suez Canal. Shortly thereafter, Britain, France, and Israel signed the Sevres Protocol pursuant to which they launched the Suez War, which Egyptians call “The Tripartite Aggression,” in a bid to regain control of the Suez Canal and emasculate Nasser’s burgeoning influence across the Arab World and throughout the Third World. Cherif immediately dropped everything, returned to Egypt, joined the National Guard, and fought against the Anglo-French-Israeli invasion forces. For his bravery and for the injuries he sustained in combat, Cherif was awarded the Medal of Military Valor First Class, one of Egypt’s highest decorations at the time. This was Cherif at his finest. In the face of injustice that was manifesting itself at the level of relations among nations, Cherif left the relative safety of a quaint French university campus to risk his life fighting for his country.

The third story comes from the early 1990’s. By then Cherif had been teaching for decades and had become recognized as a leading authority on international criminal law. It was, therefore, natural for his compatriot UN Secretary General Boutros Boutros-Ghali to appoint him to serve on and then chair the Commission of Experts established by the Security Council to investigate the crimes being committed in the former Yugoslavia. The commission had an important impact on the development of international criminal law. It paved the way for the establishment of the International Criminal Tribunal for the former Yugoslavia and the evidence it gathered proved invaluable to the tribunal’s prosecutors as they commenced their investigations. One aspect of the commission’s work that has received relatively lesser attention was its role in shedding light on the use of rape as a weapon of war. The commission conducted interviews with hundreds of female and some male victims of rape, and documented patterns of sexual assault that were undertaken by belligerents to achieve tactical gains on the battlefield, to realize the strategic objective of ethnic cleansing, or for the mere entertainment of troops. Meeting victims of these horrendous crimes deeply affected Cherif. One summer night in his beloved retreat in Michigan he recounted this experience and began telling his wife Elaine Klemen and myself how for years after the end of the commission’s mandate he would get nightmares about the interviews he conducted with rape victims, and how one of his proudest moments was when rape was included as a war crime and crime against humanity in the Rome Statute.

The final story comes from the Bahrain Independent Commission of Inquiry (BICI), which Cherif chaired. I had the privilege of serving as the commission’s Legal Officer and worked closely with Cherif and the other commissioners on BICI’s Final Report. During a visit to a women’s detention facility, Cherif, BICI’s Chief Investigator Khaled Ahmed, and I met two high-profile detainees. These were Jalila Al-Salman, the Vice President of the Bahrain Teachers’ Association, who had been detained for allegedly inciting teachers to participate in anti-government protests, and Rula Al-Saffar, the President of the Bahrain Nursing Society, who had been detained for providing medical assistance to injured protestors. Both of these detainees recounted to us the inhumane and degrading treatment to which they were subjected. As we left the detention facility, Cherif appeared visibly shaken. He told Khaled and myself that he was determined to secure the release of these women and that he would raise the matter with H.M. King Hamad of Bahrain. Being the disciplined positivist that I am, I looked to Cherif and said: “But that’s not in our mandate. Our job is to investigate allegations of human rights abuse and faithfully report our findings. We’re impartial investigators not activists.” He looked at me and said: “Yes, we’re investigators, but we’re also here to do good.” He then went on to tell us about the following incident that happened during his service as the UN Independent Expert for Human Rights in Afghanistan.

He had located a detention facility in which 852 Afghan men where being held in despicable conditions. When he investigated the matter, Cherif discovered that these men had been held incommunicado for over two years because US Attorney General John Ashcroft wanted them to remain detained until they were interrogated. That night after witnessing the agony and misery of these detainees who were neither charged nor indicted of any crime, Cherif knelt to the ground and prayed to God. He said: “I truly want you to make me an instrument of these people’s freedom. I do not want reward or recognition – I just want the satisfaction of getting these people out.” The next morning, Cherif launched a campaign to set these men free. He met US Ambassador Khalilzad and virtually everyone in the Afghan government to secure the release of these men, including the Chief Justice, the Attorney General, the Minister of Interior, and President Hamid Karzai. In each of these meetings, Cherif gave the Afghan Government an ultimatum: he threatened to announce and widely publicize this unjust mass incarceration in his report to the UN Secretary General, unless these men were released. Sure enough, a few days after he returned to Chicago, his representative in Kabul, Hatem Aly, called to inform him that the 852 men had been released and returned to their families.

Naturally, having heard this moving story and seeing Cherif’s resolve to intercede on behalf of Jalila Al-Salman and Rula Al-Saffar, I relented (not that it was up to me whether Cherif discussed the matter with H.M. King Hamad anyway!) Sure enough, weeks later, these two women were released from detention to spend Eid Al-Fitr with their families. This was only one example of many interventions that Cherif and Khaled made on behalf of victims of human rights abuses in Bahrain. They helped reinstate hundreds of students and employees who had been expelled from their schools or jobs for demonstrating against the government and they helped establish a compensation commission to provide financial reparation for the victims of human rights abuses.

***

In addition to his professional pursuits, Cherif was a multifaceted man of many talents and multiple layers of identity.

Cherif was an immensely proud Egyptian. I think there is no story he enjoyed telling as much as that of his fighting in the 1956 Suez War. But Cherif was also a citizen of the world and a proud naturalized American. He unwaveringly believed in those universal self-evident truths that are the foundation of the ideals that make America great. He was an unrelenting advocate of the unalienable right of every human being to pursue a life of liberty, dignity, and happiness.

Cherif was a force of nature. He wrote his latest book on the former Yugoslavia while battling multiple myeloma. Cherif was also a perfectionist. As Kelly McCracken-Pembleton, Giovanni Pasqua, Assia Buonocore, Filipo Musca, Stefania Lentinello, Neil Townsend, Jessica DeWalt, Daniel Swift, Deirdre McGrory, Douglass Hansen, Molly Bench, Kandy Christensen, Meredith Barges, Jennifer Gerard, Kari Kammel, Mohamed Abdel Aziz and all those who worked with him know, Cherif was a tough taskmaster. He was an obsessive micro-manager who paid close attention to every substantive and procedural detail of his work. But he also cared deeply about our lives. To many of us, especially Khaled Ahmed, Yaser Tabbara, Ahmed Rehab, Kelly McCracken-Pembleton, and myself he was our adoptive father. He advised us on our education, counseled us on our careers, consoled us during life’s trials and tribulations, and mediated arguments with our significant others. Cherif was omnipresent in the lives of all those around him, and for many of us, including myself, he was our anchor.

Cherif was a patron of the arts, a connoisseur of fine wines, and an amateur singer (although I wouldn’t count this as one of his outstanding talents!) He was an aristocrat who ‘walked with Kings, but never lost the common touch’. His charm, his charisma, and his sense of humor were enrapturing. His soul was generous and his heart compassionate; he was an unmatched orator; an inspiring teacher; a gifted wordsmith; a spectacular storyteller; and a supreme scholar of encyclopedic knowledge.

Cherif was a warrior for justice. He confronted the worst in man with the best in man, he fought might with right, and stood for virtue in the face of evil.

– Farewell, MCB! Gone, but never forgotten. May you rest in peace.

A Farewell Note from Professor M. Cherif Bassiouni

by Julian Ku

As most of our readers know, Professor M. Cherif Bassiouni, a leading figure in the creation of the field of international criminal law, passed away yesterday at the age of 79. Professor Bassiouni had a large email list of friends and acquaintances, and his email account sent out one last posthumous message last night. We are posting it here for those of you who did not receive it. Please feel free to leave any notes and comments below on your memories of Professor Bassiouni or how his work affected you. 

Oona Hathaway and Scott Shapiro’s New Book “The Internationalists”

by Deborah Pearlstein

I have a review up at the Washington Post. A great read.

If President Trump Ends the Iran Deal, Can He Trigger the Security Council Snapback?

by Jean Galbraith

[Jean Galbraith is an Assistant Professor of Law at the University of Pennsylvania Law School]

President Trump has reportedly made a decision about whether or not to end the Iran deal – although he won’t yet say what he’s decided.  The Iran deal, more formally known as the Joint Comprehensive Plan of Action (JCPOA), is a political commitment rather than an agreement that is binding as a matter of international law.  President Trump can thus abandon the Iran deal without violating international law, although there will be plenty of other repercussions from such a step.

But abandonment will nonetheless raise at least one interesting legal question.  If the United States ends the Iran deal, can it thereby trigger the re-imposition of Security Council sanctions against Iran?

First, a bit of background (discussed more here).  Prior to the JCPOA, the Security Council had imposed various sanctions against Iran – sanctions which all countries were legally obligated to enact.  The core bargain in the Iran deal involved the lifting of sanctions, including these Security Council sanctions, in exchange for Iran’s commitments not to develop nuclear weapons and its acceptance of a monitoring regime.  But what would happen if Iran failed to honor its commitments?  In that case, would there be the votes on the Security Council to re-impose sanctions or instead might Russia or China veto such a resolution?  In order to address this concern, negotiators included innovative provisions in the JCPOA and in Security Council Resolution 2231, which was passed in July of 2015 to help implement the JCPOA.  These provisions have been referred to as the “snapback” provisions, and I have called them “trigger termination” provisions.

Summarizing a bit, Resolution 2231 provided that the pre-existing Security Council resolutions imposing sanctions on Iran are terminated, but they can be reinstated at any time during the next 10 years by any single P5 country (including the United States) or by Germany, under certain conditions.  Specifically, the country seeking reinstatement must notify the Security Council “of an issue that [it] believes constitutes significant non-performance of commitments under the JCPOA.”  If the Security Council does not pass any resolutions on this issue in the 30 days following notification, then the prior resolutions imposing sanctions are automatically reinstated.  These resolutions would not apply retroactively to contracts signed prior to their reinstatement.

If President Trump simply ends the Iran deal without trying to trigger the snapback provision, then he can only re-impose U.S. sanctions.  (He could try to persuade other countries to re-impose sanctions, but his ability to do that in practice will likely be fairly low.)  But what if instead of or in addition to announcing an “end” to the deal, President Trump states that Iran is not complying with the deal and attempts to trigger the snapback provision?  Will this be effective as a matter of law, even if President Trump’s claim of Iranian non-compliance looks like a pretext?

In a comment I wrote in the October 2015 issue of the American Journal of International Law (draft version here), I addressed the issue of a pretextual snapback.  I wrote as follows:

Resolution 2231’s trigger termination has some protections against arbitrar[y use], but not very strong ones.  The activator can be a single state – any one of the P5 [including the United States], Germany, or theoretically Iran.  The standard is that this state must ‘believe’ that there is ‘significant non-performance of commitments under the JCPOA.’  While ‘significant non-performance of commitments under the JCPOA’ is a reasonably clear criterion, the fact that the activator is only required to ‘believe’ this nonperformance to have occurred makes the standard a fairly flexible one.  But although flexible, it is not a grant of total discretion.  It must require a good faith belief in significant nonperformance, for otherwise it would be meaningless.  Indeed, if such a good faith belief is demonstrably absent, other states would have grounds for considering that the trigger termination has not been properly activated.  In that case, they could presumably treat Resolution 2231 as continuing in force and thereby have a legal basis for declining to reinstitute the prior sanctions.

If President Trump tries to trigger the snapback provision now, other countries will have reasonable grounds for disputing the legal effectiveness of such a trigger.  Of course, if the United States walks away from the Iran deal and re-imposes its own sanctions, Iran may then cease its implementation of the deal and ramp up its pursuit of nuclear weapons.  After that point, the United States will have good faith grounds to believe in Iran’s significant non-performance – but if Iranian non-compliance is clearly due to U.S. non-compliance, states might raise other arguments for doubting the legal ability of the United States to trigger the snapback.

In closing, my thanks to the editors of the Opinio Juris blog for letting me contribute this guest post.

The Drafters Knew Best: Corporate Liability and the Alien Tort Statute

by Heather Cohen

[Heather Cohen is a Legal & Policy Associate with the International Corporate Accountability Roundtable (ICAR), which harnesses the collective power of progressive organizations to push governments to create and enforce rules over corporations that promote human rights and reduce inequality.]

Can corporations be held accountable in the United States for violations of international law? This question is back before the Supreme Court of the United States (SCOTUS) this fall. On October 11, 2017, SCOTUS will hear oral arguments in Jesner v. Arab Bank, PLC on the question of whether corporations can be held liable under the Alien Tort Statute (ATS). In the case, the plaintiffs, victims of terrorism in Israel, allege that Arab Bank knowingly and willfully used its U.S. branch to provide financial services to the terrorist organizations that harmed them and their family members.

On August 21, Arab Bank filed its respondent brief in the proceedings, arguing that corporations should not be held liable for violations of international law under the ATS. This argument is inconsistent with the intent of the drafters of the Constitution who enacted the law, as well as with the legal interpretation that has followed.

An analysis of the language and historical context of the ATS demonstrates that the drafters of the Constitution intended for the ATS to be applied broadly to both individuals and legal persons, such as corporations. By placing no categorical limits on who can be sued under the legislation, it is clear that corporations can and should be held liable for violations of international law under the ATS.

The Enactment of the ATS and its Application to Legal Persons

The ATS was passed by the First Congress in 1789 to demonstrate the commitment of the new country to upholding the “law of nations,” thereby granting the United States legitimacy on the world stage. Its enactment was spurred by two incidents of offences against foreign ambassadors, but the law would also provide merchants plagued by piracy with a legal avenue to obtain remedy for the harm and losses suffered.

In passing the ATS, the First Congress chose not to limit who can be sued under the legislation:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

By choosing not to exclude any particular class of defendant, the ATS places no limitation on who can be sued. This is made even more clear by the contrasting restriction on who can sue, i.e. only “aliens.”

Historical context suggests that the First Congress intended the law to hold both legal persons as well as natural ones accountable. Courts have held legal persons liable for their abuses as far back as the 1600s. A number of piracy cases provide a clear example of this. For instance, in 1666, Thomas Skinner sued the East India Company for “robbing him of a ship and goods of great value.” The U.K. House of Lords ruled in favor of Mr. Skinner and held that the company owed him compensation. Even where piracy was not committed by corporations, courts have imputed corporate form to the ships themselves. Similarly, early American courts held that ships, as entities, could be ordered to pay damages for piracy. They reasoned that it made financial sense to direct judgment against a captured ship, which had substantial value, while pirates were unlikely to pay the compensation ordered.

These piracy cases demonstrate that courts during the era of the drafters of the Constitution were not only familiar with the concept of liability for legal persons, but that they regularly imposed it for violations of international law. In light of this familiarity, the fact that the First Congress did not limit the language of the ATS suggests that it intended for legal persons, such as corporations, to be sued under the statute.

A Modern Interpretation of the ATS

This interpretation has been supported by courts in subsequent decisions. For example, the D.C. Court of Appeals, in Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 48 (D.C. Cir. 2011), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013) held that “[t]he notion that corporations could be held liable for their torts… would NOT have been surprising to the First Congress that enacted the ATS” [emphasis added]. For decades, corporations have been sued under the ATS “without any indication that the issue [of their liability] was in controversy, whether in ruling that ATS cases could proceed or that they could not on other grounds.

Since its passage in 1789, the ATS has remained the law of the United States for more than two hundred years, without ever being limited, narrowed, or amended by Congress. In contrast, Congress has made it abundantly clear when it does mean to exclude a particular class of defendants, namely corporations, from liability. For instance, the Torture Victim Protection Act (TVPA) explicitly excludes suits against corporations. While one can argue that failure to amend the ATS does not necessarily mean acceptance, one cannot negate the fact that both times that the issue of corporate liability under the ATS has come before SCOTUS, the U.S. Government has argued in favor of it. The Government has made it clear that it supports the original words and meaning of the ATS.

Arab Bank’s Interpretation of the ATS

Faced with this evidence of the intent of the drafters of the Constitution, all Arab Bank can do is endeavor to chip away at little pieces of it by attempting to undermine the piracy cases raised by the petitioners and their amici. In Arab Bank’s brief, it attacks the British case by claiming that the East India Company functioned more like a sovereign than a corporation, and that the case was ultimately vacated by King Charles II.

While it is beyond the scope of this blog to offer an analysis of the differences between the East India Company and the modern day corporation, the broad power and scope of today’s multinational corporations suggest that these differences may be much smaller than they initially appear. For example, one often cited variance is the power the East India Company had to “operate its own courts and establish its own law.” However, modern corporations likewise operate their own courts through grievance mechanisms, such as that offered by Barrick Gold in response to sexual violence at its mine in Papua New Guinea. In any event, what is relevant is that “the East India Company was on any number of occasions judged by English courts to be a legal person subject to both English common and civil law.

Also problematic with Arab Bank’s critique of the British case is the weight that it places on the intervention of the monarchy, namely, the decision by King Charles II to vacate the case. This decision is simply emblematic of the politics and the central role the Monarch played at the time. Using this political dynamic to criticize the case is unpersuasive.

To undermine the American piracy cases, Arab Bank argues that a ship is not a corporation and that holding a ship liable for the acts committed by the people operating it is not equivalent to accepting the concept of corporate liability. However, this argument is purely a matter of semantics and ignores the very basic concept of corporate liability, which is to hold a legal entity liable for the acts of individuals operating within it. This is exactly what the court did when imposing liability on the ships in these piracy cases.

Conclusion

If SCOTUS rules that corporations cannot be held liable under the ATS, it will be overturning hundreds of years of legal tradition, as well as undermining the chosen words and understanding of the drafters of the Constitution. Such a ruling would similarly undercut the legal interpretation adopted by numerous courts and policymakers following the First Congress. Furthermore, Arab Bank’s arguments are not convincing and fail to undermine the evidence that the ATS was intended to apply to both legal and non-legal persons.

Will SCOTUS respect the wishes of the drafters of the Constitution by holding Arab Bank liable for providing financial services to terrorist organizations? Those of us who believe in the underlying principles of this Nation certainly hope so.

UK-Saudi Arabia Arms Trade before the High Court: Questions following the Judgment

by Riccardo Labianco

[Riccardo Labianco is a PhD candidate at SOAS, University of London. His research focuses on state-to-state military assistance in times of conflict.]

On 10th July 2017, the High Court of Justice (HCJ) delivered its decision regarding the choice of the Secretary of State for International Trade not to halt the transfers of arms between the UK and Saudi Arabia (SA). The Campaign Against Arms Trade (CAAT), the claimant, requested judicial review of that choice, in light of the violations of international humanitarian law (IHL) committed by SA in the conflict in Yemen which likely occurred through UK-manufactured arms and weapons. Eventually, the judges accepted the government’s arguments and dismissed the request for judicial review. This decision was based on the fact that the UK government was the only actor able to assess the absence of a clear risk of IHL violations that could be committed with the transferred arms, due to its inside knowledge of the Saudi administration and its engagement with it. As shown below, the absence of a clear risk of IHL violations must be assessed before authorising any arms export.

Two aspects of the judgment are analysed here. First, the HCJ’s interpretation of the “Consolidated Criteria for Arms Export”, a piece of EU legislation incorporated in the UK legal system. Second, the choice to consider the UK’s “privileged position” within the Saudi administration as an essential element for the lawfulness of the arms transfers.

Response from the EIC of the Journal of the History of International Law

by Kevin Jon Heller

[The following is a response from Anne Peters, the Editor-in-Chief of the Journal of the History of International Law]

Dear readers,

The JHIL received this letter and had agreed towards the authors in writing to publish it in the JHIL as soon as possible.

Publication in JHIL does not imply any agreement or endorsement by the editors or by the academic advisory board of the opinions expressed in an article.

The selection of articles for the journal occurs through double blind peer review on the basis of their academic quality. In the case of the article on the Jamestown Massacre, the editors were able to obtain only one peer review report.

The editor-in-chief acknowledges that there were flaws in the review process and apologizes for this.

The JHIL has recently amended the selection and review procedure in order to strengthen the process.

The new authors’ guidelines containing the description of the review process can be found on the Journal’s website.

Anne Peters

Letter to the Editors of the Journal of the History of International Law

by Kevin Jon Heller

[This letter was sent to the editors of the Journal of the History of International Law on 29 August 2017. I am a signatory, not the letter’s author.]

Dear Editors,

We are writing to express our grave concern about the publication of an article entitled ‘The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention’ in the latest issue of the Journal of the History of International Law. We find the decision to publish this article strange to understand to the extent that it combines dubious anachronisms and legal framings, problematic application of legal doctrine, selective presentation of facts and quotations, and outright contradictions and falsehoods. Notably, it is difficult, if not outright impossible, to reconcile the different parts of the argument with each other as well as with the conclusions of the article. For even if one was to ignore issues of historical accuracy and legal argumentation and accept the author’s arguments, this does not support in any way the conclusion that ‘Jamestown was radically disproportionate to any violence committed by the English, before or after 1622’ (p. 48), or that ‘a sense of self-respect, or at least … a sense of self-preservation’ (ibid) was the core or the motive of settlers’ actions and attitudes post-1622. After all, the article repeatedly emphasises the distinction between (genocidal) intent and motive only to collapse the two when it comes to justifying the acts of English settlers. In other words, this is a piece of work that fails in relation to its own terms as well as in relation to general standards of academic argumentation and rigour.

Since the said article is of considerable length and there are significant problems on virtually every page, we will only focus on a limited number of issues while emphasising that our enumeration is not exhaustive. To begin with, it is notable that even though the author argues that the Powhatan targeted the settlers indiscriminately and without respect for the distinction between ‘combatants and non-combatants’ (p.1), he also goes to great lengths to argue that no armed conflict (or ‘war’ in his own words) was taking place anyway. In any event, the existence, or not, of an armed conflict is doctrinally irrelevant for the finding of the crime of genocide. A review process exhibiting minimal familiarity both with international humanitarian law and the law of genocide would have pointed out these argumentative discontinuities. We find it impossible to find an explanation of what brings together combatants, the absence of armed conflict and the potential perpetration of genocide, since legal doctrine does not. We suspect that the author’s intention to portray the Powhatan as barbarians who embarked on senseless violence out of the blue might shed light on the structure of the article to the extent that international law fails to do so.

Moreover, we are surprised that the peer review process did not challenge the fact that at least the first part of the article is grounded on the argument that no other ‘single massacre’ (p. 5) claimed so many lives as the events in Jamestown. Since the ‘ratio of deaths per incident’ is a criterion as such unknown to international law, and hardly defensible from a moral or political perspective, this is an argumentative move worthy of serious scrutiny. The fact that this arbitrary criterion is clearly linked to an effort to ignore, underplay and eventually justify the prolonged, systematic and (alas) mostly successful process of exterminating Native Americans, dispossessing them of their land, and destroying their society and culture, should have raised even more questions. Indeed, even though Bennett focuses on English settlers, he fails to situate the events within a broader historical context of empire and colonisation as a process that did not simply encompass occasional, unconnected outbreaks of mass violence, but was specifically premised on continuous expansionism to the detriment of the existing occupiers of the land that culminated in their dispossession. The word ‘empire’ does appear twice in the article, but only in order to describe the political relations between the Powhatan and other Native Americans (p. 14, p. 17). Even if one disagrees with our assessment of imperialism and colonisation as articulated above, it would still be difficult to contest the prima facie relevance of this historical context to the discussed topic…

Symposium on Occupation Law: The Writing the on the Wall 2.0: A Rejoinder

by Aeyal Gross

[Aeyal Gross is Professor of Law at the Tel-Aviv University Law School and Visiting Reader in Law at SOAS, University of London. In Fall 2017, he will be a Fernand Braudel Senior Fellow at the European University Institute. This post is the final post of the symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

Nothing could be more rewarding for authors than to have experts on the topics discussed in their books sharing ideas, concerns, and critiques. I am thus deeply grateful to the four contributors who devoted time and thought to comment on my book as well as to the editors of Opinio Juris. In this brief reply, I cannot do justice to all the contributors’ comments but will try to address some of them.

Eliav Lieblich addresses the normative/functional approach to occupation developed in my book and points to its potential for creating new ambiguities. Rather than limit the application of this approach to a “full” post-occupation stage, after states remove “boots on the ground” while retaining some form of control, Lieblich considers the option of states exercising control over some government functions in other states without a previous “traditional” occupation stage.

In a way, this question returns to a more fundamental one: should the beginning and end of occupation be viewed as symmetric for all purposes, including for a functional analysis of occupation? I address this question in my book and argue that dismantling an occupation is different from establishing one. One response to Lieblich, then, could be that the remnants of an occupation that never ended may possibly signal that the law of occupation continues to apply functionally, even when the remaining degree of control might have been insufficient to establish the occupation and apply the laws that govern it. Another answer, however, backed by some of the decisions of the Ethiopia Eritrea Claims Commission (EECC), support the notion that the law of occupation could be triggered based on partial or functional occupation and not only following a “full” occupation.

The question of what might be the triggering standards for functional occupation is also raised by Kristen Boon. Boon asks how to avoid a standard that is either too high (imposing positive obligations on states simply holding territories within their sphere of influence) or too low (permitting states to operate just short of the “boots on the ground” standard or taking advantage of new forms of technology while depriving individuals of the humanitarian protections they are legally owed). Finding a “one size fits all answer” may be hard, but one guiding principle should be whether the perceived occupier exercises some power over the territory with its actions preventing exercise of authority by other powers, especially the authorities of the occupied party. As I note in the book, Judge Kooijmans’s separate opinion in the Armed Activities (DRC v Uganda) case, which views states as occupiers when their actions preclude the functioning of local government, seems to be a step in the right direction (see pp. 74 and 129). Combined with the EECC approach mentioned above, we can consider that the responsibilities of occupation exist when power – not just influence – is exercised. From this perspective, continued Israeli control of the airways and waterways of Gaza in a way that does not allow the local population and its government to exercise control, seems like a clear case of occupation functionally continuing.

 

Whatever the answers we choose to Lieblich’s and Boon’s questions, they seemingly highlight two significant issues. The first is that, once we stop thinking of occupation in on/off terms, we realize that a continuum exists between occupation and other forms of control. The second is that, given occupation’s indeterminacy, the functional approach presented in my book attempts to replace a “pick and choose approach” with one that creates accountability, without claiming this to be a panacea to all the problems of the law of occupation. No such panaceas are available in law (or in life …).

Lieblich further ponders whether the functional approach does not ultimately collapse into some extra-territorial variation of human rights implementation. Although this is a valid question, it is pertinent to insist on the special protections that the law of occupation makes available (including the special status of protected persons) that are lost in a human rights analysis. In the last chapter of the book, I show how a human rights analysis often undermines the special protections accorded within the law of occupation. In this light, shifting the focus to the extra-territorial application of human rights law does not appear to be an alternative to the solution offered by the functional approach.

Finally, Lieblich mentions that the functional approach, which I began to develop in my work in 2007, has recently been endorsed by the ICRC. The need for this approach arose after the 2005 Gaza disengagement, growing out of both my academic research and my NGO work. I first presented it at the closing plenary lecture of a 2007 conference organized by the Minerva Centres for Human Rights at the Tel-Aviv and Hebrew Universities together with the ICRC, to mark the fortieth anniversary of the Israeli occupation of the Occupied Palestinian Territory, and first published about it in 2012, in a post that opened a symposium on the topic in this blog. As Lieblich notes, the ICRC adopted a variation of what was suggested in my work and the work of the Gisha NGO, on whose board I serve, and eventually backed the functional approach in its 2016 updated commentary on the Geneva Conventions, as documented here. The ICRC model, however, is a somewhat narrower version of the view developed in my book. It considers the functional approach relevant to “specific and exceptional cases,” whereas my analysis throughout the book shows that, given the indeterminacy of many situations where occupation and sovereignty are mixed, we need to rely on it regularly (see p. 133, n. 350). The Gaza situation and the analysis it required led me to a deeper understanding of how indeterminacy, control, and functions are always relevant to the understanding of occupation, be it in Berlin, Iraq, or Ethiopia-Eritrea.

While Lieblich’s comment considers the actual framework of the law of occupation, Valentina Azarova points to the connection between the law of occupation and other regimes of international law. Specifically, Azarova notes the role of jus ad bellum in the prohibition of annexation and shows how this prohibition should be seen as deriving from jus ad bellum rather than, as my analysis might imply, from the law of occupation itself. The law of occupation, she argues, depends for its proper function on the operation of other rules of international law, such as jus ad bellum, yet notes that an unlawful annexation maintained through occupation exposes the limit of the jus in bello/jus ad bellum distinction. Indeed, occupation highlights the complexities of the relationship between them, as Iris Canor noted. Azarova’s comments require me to reconsider the relationship between the law on the use of force (jus ad bellum) and occupation, a question I admittedly scarcely addressed in the book.

Going back to the law of occupation itself, Diana Buttu points to its limited role in giving any remedy to Palestinians. She argues that, despite very small legal victories (or, in her usage, “victories”), Israeli courts have legitimized Israel’s actions and prevented any scrutiny of the big picture, focusing instead on localized practices. Indeed, part of my reason for writing Illegal Occupation with Orna Ben-Naftali and Keren Michaeli in 2005 was to take back the discussion to the big picture— the illegality of the occupation itself. I find Buttu’s reservations about my statement that “only insisting on the normative content can save the benevolent reading of this body of international law… and prevent a return of colonialism” (252) intriguing, when she notes how, in the case of Israel, we are not facing a return of colonialism since it never left. Whereas I was alluding to the return of a colonialism that has been rendered illegal but might be brought back in the guise of a legally structured occupation, Buttu seems to be referring to this specific territorial context, pointing to the continuity of colonialism/occupation in Israel/Palestine (and beyond). How is this particular continuity an instance of a general continuity between the law of colonialism and the law of occupation? These questions need a broader scope than the one considered in my book. In his recent book on the Israeli occupation, Gershon Shafir touches on this relationship in the Israeli-Palestinian context from a historical political perspective, but further legal historical work seems warranted on this issue.

Coming from a very different perspective, and that is an understatement, Eugene Kontorovich questions the value of the normative approach from several perspectives, mainly that of gaps of enforcement in the law of occupation. Violations of the law of occupation by countries other than Israel have, in Kontorovich’s argument, gone unnoticed by the international community. But even if, for the sake of the argument, we agreed that Israel is treated as an exception, the enforcement gaps he addresses remain relevant to Israel too. He has counted about five hundred UN General Assembly resolutions dealing with Israel and very few regarding other occupations. These resolutions, however, remain unenforced and, moreover, since for the most they are not backed by the Security Council, are not even binding. How do these conditions affect Kontorovich’s suggestion that, before building a normative regime of occupation, it might make sense to bolster the existing one? I would argue that, without endorsing a normative approach, much of the criticism of Israel, at least at the legal level, not only lacks concrete enforcement but remains focused on specific issues, thus validating the bigger picture of this occupation rather than pointing to it as intrinsically illegal and illegitimate. The normative approach, then, which could help us to evade this vicious cycle, would prove vital for breaking the current impasse.

Kontorovich also notes that assigning a key role to self-determination, as I do in the normative analysis, constitutes a departure from current law and practice, which respect the sovereignty of states and not of peoples. Insistence on the relevance of self-determination first emerged in the 2005 Illegal Occupation article by Ben-Naftali, Michaeli, and myself. It is justified not only by the current understanding of self-determination in international law as a necessary interpretation of the law of occupation but also given the need to deal with occupation in areas where no state had previously been sovereign, such as the Occupied Palestinian Territory or Western Sahara. Taking self-determination out of this equation would imply denying protection to people who are occupied but had previously lacked a state.

Finally, though I do not share Kontorovich’s interpretation of the political context, I will avoid a factual and political argument on his determination that the Israeli occupation is different given the rejection of “numerous … good-faith offers of statehood to the Palestinians,” an issue I deliberately sidestepped in my book. My argument is that this occupation, which entails the constant dispossession of Palestinians, the establishment of a discriminatory apartheid-like regime, and illegal settlements whose existence is central to the dispossession and discrimination, is illegal regardless of who is to “blame” for the lack of an Israeli-Palestinian peace settlement. Had the occupation abided by international law (meaning no settlements and no dispossession of the Palestinian population) and notwithstanding the denial of liberties inherent in any situation of occupation, we would be engaging in an entirely different discussion. The current occupation, now ongoing for fifty years, which denies Palestinians their most basic liberties and dispossesses them daily, often denying their very life, must stop, and this illegal and inexcusably unjust situation must be brought to an end.