Search: Symposium on the Functional Approach to the Law of Occupation
25 Jul Missiles and Messages: Characterizing the Use of Force between Iran and Israel
[ Masoud Zamani is a lecturer in International Law and International Relations at the University of British Columbia, Canada. Amir Abbas Kiani is a collaborating researcher in International Law at Shiraz University, Iran.] The recurring exchange of lethal force and military operations between Iran and Israel gives rise to several urgent and complex legal questions within the framework of jus ad bellum. A particularly intriguing feature of these confrontations is their episodic nature, prompting debate over whether they are better understood as anticipatory self-defense or unlawful reprisals. On the one...
06 Aug Emerging Voices: The Use of the ‘Proxy Argument’ in the Al-Bashir Case–A Riddle for the Law of International Organizations
of the organization are the key concept that can turn an independent state into an organ. Indeed, the core of the controversy concerns the nature of the arrest warrant as a rule of an international organization. If the arrest warrant is international law, the ICC is a functional entity of which member states are independent sovereign entities. They remain responsible for the action taken while implementing ICC law. Conversely, if the arrest warrant is internal law, the ICC is a supra-national, constitutional, entity under which member states appear as organs....21 Jun Let’s Not Confuse War Powers with the War Powers Resolution
unilaterally introduced forces into the Persian Gulf consistent with the Resolution, but neither would have passed constitutional muster). On the other hand, it can’t constrain Presidents to terminate military operations without affirmative congressional action, as the 60-day clock would require. From a functional perspective, the default termination provision leaves important military decisionmaking intolerably hostage to the probabilities of congressional inaction (Kosovo as exhibit A). That’s getting lost in the debate over the meaning of “hostilities”. Even if the Libya operation does qualify as such for purposes of the law, it...21 Nov LJIL Symposium: A Response to Professor Brad R. Roth on (Empty?) Promises of Self-Determination
[Zoran Oklopcic is an Associate Professor of International Law at Carleton University in Canada. He focuses on self-determination, popular sovereignty in theory of constitutional law and on the theories of secession and territorial rights] I am grateful to Professor Brad Roth for engaging with my article, “Beyond Empty, Conservative, and Ethereal: Pluralist Self-Determination and a Peripheral Political Imaginary”. In his response, Roth embraces my understanding of his account of self-determination as “emptied” of normative content, and, in fact, insists on rejecting projects that would seek to give it a more...
26 Apr Expedient or Reckless? Reconciling Opposing Accounts of the IDF’s Use of AI in Gaza
...assigned to the IDF’s Southern Command (the headquarters responsible for prosecuting the war in Gaza) appears to be close-held information but Mimran claims that a maximum of 50 lawyers on a rotating watch is a “close” estimate of current force composition. If we assume that in the war’s first week 1.) some of these lawyers were not already mobilized; 2.) some were otherwise occupied with non-targeting duties; and 3.) the remainder were split between, say, 12-hour shifts, this leaves a (generous) estimate of perhaps 10 lawyers on-station doing targeting determinations...
28 Jul The Use of Universal Jurisdiction in Switzerland: Progresses and Pushbacks in Judging Crimes Against Humanity
– and hence validating – existing Swiss case law in this regard (the Kosiah case first paved the modern Swiss case law: first instance judgment SK.2019.17 of 18 June 2021 and appeal decision CA.2022.8 of 30 May 2023; currently pending before the Swiss Federal Court), the FCC recalled that despite the absence of a written provision in Swiss law in the year 2000 (the moment of the first crimes which Ousman Sonko was accused of), crimes against humanity were already defined and punished by international customary law and that there was already a...06 Jan New Essay at SSRN on the Role of the International Prosecutor
...domestic counterparts. Because international prosecution is both highly discretionary and politically charged, the legitimacy of international criminal justice depends, in large part, on the ability of tribunals to strike an appropriate balance between independence and accountability. This chapter explores the tension between the two. Section I addresses the Prosecutor’s structural independence — her independence from external political actors and other organs of the tribunal. Section II examines the Prosecutor’s functional independence – her practical ability to exercise her discretion free from undue limitation. As always, comments and criticisms most welcome!...
22 Jul The “Camp Zeist” Solution to the Iranian Nuclear Problem: How the Scottish Court in The Netherlands Could Be a Model for a New Deal with Iran
[Jens Iverson is an assistant professor of international law at Leiden University] The Iranian Non-proliferation Problem: Where to Enrich? The main sticking point for a nuclear non-proliferation deal with Iran is domestic uranium enrichment. It seems intractable: but it might not be. Iran has been clear that it is open to a new deal, but insists it must be able to enrich uranium domestically. It frames domestic processing capacity as its “nuclear rights.” Iran has rejected proposals that its enrichment be placed, in the long run, in the territory of...25 Oct The Surprising Mbeki Report (Updated)
...dealt with by the national system. This is simply a reflection of the functional limitations of the ICC. It is important that all stakeholders should realize this, and therefore focus on the vital importance of strengthening national legal systems. The principle of complementarity under the Rome Statute in any event gives precedence to national systems, even when a situation has been referred by the Security Council. This means that the ICC is obliged to take into consideration the fact that a State has taken or is taking effective justice measures...24 Oct Remedying UN Abuses by Forcing the Host State’s Hand: Current Case Calls for the Haitian Government to Trigger a Standing Claims Commission
[Frédéric Mégret is an Associate Professor of Law at McGill University Faculty of Law.] On the 26th September, a group of diligent Haitian lawyers headed by human rights defender Patrice Florvilus requested an emergency injunction (“en référé”) before the Tribunal de Première Instance de Port-au-Prince against the State of Haiti, that would compel it to trigger the creation of the standing claims commission, as anticipated by the Status of Forces Agreement in effect with the United Nations since the creation of MINUSTAH in 2004. The goal of triggering such a...