In association with the International Commission of Jurists

Middle East

12 Sep

[I posted this originally at the same time as Duncan, so it is a bit repetitive, but I'll leave its content basically as is]. Sad and startling news:  U.S. Ambassador to Libya Christopher Stevens was killed yesterday in a rocket attack on the U.S. Consulate in Benghazi.  This is an addition to another violent attack on the U.S. Embassy in...

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06 Sep

Having followed the terrorism litigation against Iran for years, I was fascinated to read of the recent legislation—Section 502 of the Iran Threat Reduction and Syria Human Rights--that creates a legislative fix for victims of one particular group of terrorist victims but not thousands of others. The law in question grants plaintiffs/judgment creditors in one and only one case—Peterson...

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31 Aug

A recent post at Mother Jones mentions my view of UBL's killing and provides Ken's brief thoughts on his death: Kenneth Anderson, a law professor at American University Washington School of Law, disagrees. "Being wounded does not necessarily render one hors de combat; hors de combat means they’re not actually posing a threat to you," Anderson says, citing moments where wounded...

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29 Aug

Of the 1500+ posts I've written for Opinio Juris over the past seven years, none angered my fellow progressives more than the post in which I claimed that the killing of Usama bin Laden was perfectly legal under international law.  Here is what I wrote: To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international...

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24 Aug

South Africa recently decided that, in order to avoid consumer confusion, goods imported from the Occupied Palestinian Territories must include special labels that make clear they were not produced in Israel.  Israel's outrage was predictable -- but its rhetoric was anything but: The Israeli Foreign Ministry said it would summon South Africa's ambassador to lodge a protest over the decision on...

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24 Jul

[Solon Solomon is a Former Member of the Knesset (Israeli Parliament) Legal Department in charge of international and constitutional issues] Traditionally, the law of occupation envisions the continuation and preservation of the status quo ante. Yet, in cases of prolonged occupations, it has been conceded that the occupying power can alter legal or factual reality if this is for the betterment of the local occupied population’s life. The question is though if in such instances, alongside a dynamic interpretation of the law of occupation, the factual and normative status quo can be subject to a change in order to meet the needs not of the local population but of the occupying power. One way to reach an affirmative answer is to broadly interpret existing notions in the law of occupation, such as that of “military necessity.” This is the path traditionally chosen by Israel’s Supreme Court which has consistently ruled that “military necessity” covers also the wider security needs of the occupying power’s civilians. Alternatively, someone can opt to render a dynamic note to the law of occupation and interpret it accordingly. No longer does occupation remain a static, historical fact, but it adapts to the advent of time. The question is if such adaptation is only factual or also legal. Two recent examples from the two classical prolonged occupations in the Middle East bring to the frontline this de facto and de jure transformation the law of occupation undergoes or aspires to undergo.
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11 Jul

The Independent has the story: European governments, including Britain's, have received legal opinion from a leading international counsel who argues they would be fully within their rights to ban trade with Israeli settlements in the occupied West Bank. The formal opinion from James Crawford, professor of international law at Cambridge University, is likely to inject fresh momentum into campaigns in the United...

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10 May

More follies from the Khalid Sheikh Mohammed military commission: The video and audio feed from the war court at Guantanamo Bay is on a time delay so as to prevent accidental or deliberate disclosure of classified information during proceedings. As Khalid Sheik Mohammed and the other alleged 9/11 plotters were being arraigned last Saturday, the feed abruptly cut out. Reporters and observers...

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30 Apr

Of course, that means it's been a much better week for anyone who isn't so keen on the prospect of attacking Iran.  I'm not sure the nails are in Netanyahu's political coffin quite yet, but the carpenters are certainly gathering their supplies.  First up, Lt. Gen. Benny Gantz, Chief of Staff of the IDF, rejecting the notion that Iran is...

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27 Apr

[Valentina Azarov is a Lecturer in International Law and Human Rights, Al-Quds Bard College, Al-Quds University, Palestine (on leave)] This is the fifth response in our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post. Those who believe in the progressive development of international law but remain fully aware of the deficiencies of its enforcement, have good reason to view the proposed functional approach to the law of occupation with cautious optimism. However, there must be a further elaboration and concretization of its mechanism or process, lest this approach to operationalising the way the law of occupation is applied contributes to the law’s indeterminacy. This brief response therefore seeks to ask guiding questions and postulate some predicaments in order to elaborate the content of the functional approach, and explain the ways in which it relates to the binary, or on/off, approach. Some basic considerations include: what are the elements and purpose of the protective function of the law of belligerent occupation? How is this function expected to be fulfilled, operationally? The interpretation of the law of occupation I suggest is teleological and genealogical: conscious of the historical context of the law, the manner in which its provisions were drafted and the purpose they were meant to serve. Most contributions to this symposium have shared this interpretation, in that they have taken as a starting point the fact that the law of occupation is charged with the arduous task of tying the hands of the occupier in order to safeguard against abuses of the law.  Given that belligerent occupation is a phenomenon of war, and that it would be unwarranted to assume good faith between enemies in wartime, no commonality of interest should be presumed to exist between the occupier and the occupied population. The law must thus guard against the occupier’s adoption of the ‘pick and choose’ approach, especially in situations where an occupier maintains ‘effective control’ but attempts to limit its scope of influence so as to claim that it has relinquished its responsibility in certain domains. The law of occupation was meant to protect the occupied population against such disingenuous, abusive attempts by the occupier to mask the extent of its continued influence over their lives.
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