In association with the International Commission of Jurists

Middle East

23 Sep

I agree with Jens' excellent post on the importance of the "unwilling or unable" standard to the US justification for legal strikes on non-state actors in Syria.  I agree this action may reveal state practice supporting (or rejecting) this legal justification.  I am curious whether the UK, France, or other states that may be participating in Syria strikes will embrace this theory....

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23 Sep

Today the U.S. launched airstrikes against ISIS and other extremist groups within Syrian territory. In the past, airstrikes were limited to Iraqi territory, which came with the consent of the Iraq government (and were thus legally uncontroversial from the perspective of jus ad bellum). Today's airstrikes require a sophisticated legal argument to explain the intrusion on Syria's territorial sovereignty. Samantha...

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23 Sep

[Jennifer Trahan is an Associate Clinical Professor of Global Affairs at NYU-SPS.] President Obama’s speech on September 10th raised many legal issues, including, whether there needs to be added Congressional authorization for the use of force, or one can utilize the pre-existing Authorization for the Use of Military Force (“AUMF”) that Congress granted after 9/11 (see Deborah Pearlstein’s post and Peter Spiro’s).  But his speech also raised profound questions at a second level – that of public international law (touched upon by Kevin Jon Heller). This may not seize the attention of the American public, but surely coalition partners would ask these questions:  what was Obama’s basis for the legality of air strikes in Syria? It is somewhat troubling that President Obama took the step of supporting air strikes in Syria, without articulating any clear legal foundation at the international level.  Just to be clear, the issue of air strikes in Iraq against the Islamic State in Iraq and Syria (“ISIS”) does not raise similar questions, as Iraq had earlier consented to the use of force. There are a number of possible legal rationales for air strikes in Syria, but the U.S. needs to make the case under one of these grounds.  Such a legal foundation was not well-articulated in President Obama’s speech. 
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14 Sep

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC)] Back in January, I wrote a guest post  about prize proceedings initiated by the Government of Israel against the Finnish vessel Estelle, intercepted by the Israeli navy while attempting to breach the Gaza blockade in late 2012. As I wrote back then, the proceedings were held before the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel. The State based its application to condemn the vessel on old pieces of British legislation, which granted prize jurisdiction to courts in Mandatory Palestine (the British Naval Prize Act of 1864 and the British Prize Act of 1939). As I noted back in January, prize powers have never been exercised by Israel before. Moreover, prize proceedings are extremely rare globally. Indeed, since customary prize law allows belligerents to capture and condemn private vessels – both “enemy” and, in some cases, “neutral” – prize law seems at odds with contemporary human rights norms protecting private property. In this context, my January post raised several questions for the Haifa Court. Among these, I’ve questioned the continuous relevance of prize law in the human rights era, and whether Israeli administrative law will affect the Court’s understanding of prize law. Well, the wait is over: on August 31, the Court (Judge Ron Sokol), has rendered a 33-page decision in The State of Israel v. The Vessel Estelle. I will spare the readers from detailing the Court’s finding of jurisdiction, although doubtless interesting to legal historians: the bottom line is that it has found itself to have inherited the jurisdiction from the former British prize courts in Palestine. But the Court had some interesting things to say in terms of substantive prize law.
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12 Sep

Mike Lewis has a guest post at Just Security today responding to Ryan Goodman's recent post exploring what the US's claimed "unwilling or unable" test for self-defence against non-state actors means in the context of Syria and ISIS. Ryan, careful scholar as always, rightly points out that the test "remains controversial under international law." Mike doesn't seem to have any such...

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11 Sep

Last night I blogged about Obama's speech that outlined the administration's plan to contain and destroy ISIS. I noted that Obama announced his intention to ask for congressional authorization for the plan while steadfastly maintaining that he did not need this authorization. He was vague about why. In my blog last night, I presumed that he was asserting that he...

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10 Sep

Bobby Chesney has responded at Lawfare to my most recent post on the CIA and the public-authority justification. It's an excellent response from an exceedingly smart scholar. I still disagree, but Bobby's post really hones in on the differences between us. I'll leave it to readers to decide who has the better of the argument. I do, however, want to discuss...

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08 Sep

In the first part of my response to Bobby, I argued (after meandering around a bit) that Title 50's "fifth function" provision cannot be used to authorise the CIA to kill Americans overseas -- a necessary condition of any argument that the CIA is entitled to a public-authority justification with regard to 18 USC 1119, the foreign-murder statute. (Bobby kindly responds here.) I...

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06 Sep

My friend Bobby Chesney has responded at Lawfare to my previous post arguing that Title 50 does not provide the CIA with a public-authority justification to kill Americans overseas. He disagrees with both of the limits on presidential authority to authorise covert action I discussed. I will address the Article II question in a separate post; in this post I want...

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05 Sep

[Col. (reserve) Liron A. Libman is the former head of the International Law Department in the Israel Defense Forces. He is currently a PhD candidate at the Hebrew University of Jerusalem and teaches criminal law at Ono Academic College.] Recently, there has been extensive discussion regarding a possible Palestinian application to the ICC, and the various complex legal issues that would arise from such a move. Most commentators have cited internal Palestinian politics as the main reason for Abbas' foot-dragging with regard to approaching the ICC. In essence, the claim is that since Hamas is committing war crimes against Israel, any Palestinian initiative at the ICC would expose Hamas officials to proceedings before the ICC. In fact, the Palestinian Ambassador to the UN Human Rights Council Ibrahim Khraishi has explicitly stated that Hamas' launching of missiles at civilian objects constitutes a crime against humanity, warning that this makes an application to the ICC problematic for Palestinians (See here).  What is largely overlooked is the commission of similar acts by armed factions of the Fatah party, particularly the Al Aqsa Martyrs' Brigade. This post will briefly explore evidence of Fatah's involvement in firing rockets at Israeli civilians, and the possible criminal liability of Palestinian Authority (PA) or PLO officials for those attacks. The Fatah movement dominates the PA. Palestinian President Abbas is also the political leader of Fatah, which is the largest faction in the Palestine Liberation Organization (PLO). Evidence indicates that the Fatah-affiliated Al Aqsah Martyrs' Brigade, like Hamas, intentionally directs rocket attacks at Israeli civilians and civilian centers. These attacks are not occasional shootings, attributable to a rogue group of militants – they are regular occurrences. This faction does not try to hide its involvement in these incidents; on the contrary, it takes pride in the attacks and even posts videos of them on its official YouTube channel. See also various reports here and here. For example, on July 25th the Brigades claimed responsibility for targeting Beersheba and Ashdod, two Israeli large cities, with three grad missiles. On July 30th, they claimed responsibility for firing 7 rockets into Israeli cities. Furthermore, it is interesting to note, that the Fatah Al Aqsah Martyrs' Brigade was supposedly dismantled following President Abbas's decree in 2007. Now it has re-emerged, declaring an "open war against the Zionist enemy [Israel]" not just in Gaza but also in the West Bank and Israel within the green line. This declaration was accompanied by a list of attacks carried in the West Bank, mostly against military targets but some against civilian settlements. Until now, no response to this development by President Abbas or the PA leadership was recorded [for more details see: here]. From a criminal law point of view, it is clear that those actually firing rockets towards civilians and into civilian centers, whether they are connected to Hamas, Fatah or other Palestinian factions, are committing war crimes enshrined in article 8(2) of the Rome Statute, inter alia intentionally targeting civilians; since these acts were committed as part of a widespread and systematic attack on the civilian population, it is also possible that they were committing crimes against humanity. A more complex and interesting question is that of other persons who may be held responsible for these crimes, most particularly among senior PA officials.  Both factual and legal issues would have to be explored in this regard.
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