In association with the International Commission of Jurists

Middle East

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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04 Sep

Today's Jerusalem Post features an article discussing testimony by a former commander of British forces in Afghanistan that purports to demonstrate the IDF takes more care in avoiding civilian casualties than any other army in the world. Here is a snippet: Israel's ratio of civilian to military casualties in Operation Protective Edge was only one-fourth of the average in warfare around the...

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27 Aug

On the record, US officials invariably defend even the most indefensible IDF uses of force in Gaza, most often parroting the Israeli line that the IDF does everything it can to spare civilian lives and that Hamas's use of human shields is responsible for any innocent civilians the IDF does kill. When speaking anonymously, however, those same officials tell a very different...

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21 Aug

Last November, I wrote a post entitled "Terrorism Is Dead, and Britain Has Killed It." I chose that title because I couldn't imagine a conception of terrorism more absurd than the one argued by the British government and accepted by a Divisional Court: namely, that David Miranda's mere possession of documents illegally obtained by Edward Snowden qualified as terrorism under the Terrorism Act 2000. I obviously...

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09 Aug

Kirsty Brimelow QC, the chair of the Bar Human Rights Committee (BHRC) -- and a colleague of mine at Doughty Street Chambers -- has responded to my position on the 2009 Declaration, as recounted by Joshua Rozenberg in this Guardian article. Here is the relevant paragraph: Neither Rozenberg's opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support...

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