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Is Israel’s Use of Force in Gaza Covered by the Jus Ad Bellum?

Published on August 22, 2014        Author: 

On any account, the conflict in Gaza is depressing. It is clear that Hamas’ firing of rockets which are incapable of distinguishing between military and civilian targets is a violation of international humanitarian law. However, the question whether Israel’s actions in Gaza, which have reportedly resulted in the death of over 2000 people, comply with international law generates much more heated debate. As Professor Geir Ulfstein has pointed out, in a recent post on Just Security, in discussions about whether Israel has violated international law, “the focus is only on violations of international humanitarian law (jus in bello), not on breaches of restrictions following from the right of self-defence (jus ad bellum).” An example is this post by Mark Ellis, Executive Director of the International Bar Association on Huffington Post. One of the key questions that arise in connection with Israel’s actions in Gaza is whether its actions are proportionate. In a later post I will focus on proportionality and what it might mean in this conflict. Suffice it to say for now that as Geir Ulfstein notes (and as pointed out by Marko in this post) the “requirements of proportionality are different in international humanitarian law (IHL) and as a restriction on the right of self defence”. One may also note that even if every individual acts of targeting by a party to a conflict is proportionate under IHL, the overall campaign might still be disproportionate under the law relating to self defence in the jus ad bellum. Prof Ulfstein ends his post by saying that “the restrictions on self-defence for Israel’s military operations should receive more attention”. This posts responds to that call.

In this post, I wish to address the question whether Israel is bound by the law relating to self-defence in the action it is taking in Gaza. Put differently, the question is whether the international law limitations on the right of self-defence apply to Israeli action in Gaza? As Israel’s actions in Gaza are taken in response to Hamas’ actions and Israel claims to be acting in self defence, our intuitions might suggest that we ought to assess whether Israel’s actions comply with the international law limits on self defence. In particular, one may ask whether Israel’s actions are proportionate in the jus ad bellum sense.

Despite first impressions, it is not at all obvious that the jus ad bellum applies to Israel’s use of force in Gaza. When one scratches beneath the surface, the question appears more complicated. Read the rest of this entry…

 

Mapping the Scholarly Commentary on Israel-Gaza Wars 2008-2014

Published on August 11, 2014        Author: 

John Louth, Editor-in-Chief of Academic Law Books, Journals and Online content at Oxford University Press has produced another one of those impressive Debate Maps that they have been creating over the last year or so. This one is about the Israel-Gaza Wars from 2008 to 2014 and it:

“. . . maps scholarly commentary on the international law aspects of the armed conflict(s) between Israel and Gaza since Israel withdrew from the territory. Sources in the map include commentary published in English language law blogs and newspapers, and free content from OUP’s online services other free repositories.

A later update of this map will include consideration of a referral of the situation to the International Criminal Court.

Whereas previous maps attempted to provide comprehensive coverage of blog commentary, this map is more selective due to the time period covered. Comments from readers pointing out important issues and perspectives that have not been included can be sent to john.louth {at} oup(.)com.”

We at EJIL:Talk! have, at least thus far, not had much to say about the current conflict in Gaza. However, as the OUP Debate Map shows, we have have posted extensively on previous manifestations of the conflict between Israel and Gaza. Much of that prior analysis remains relevant to the current conflict. We are highlighting that previous commentary in our “From the Archives” box which is to the left of this post (if you’re on a computer) or below the list of posts (if you’re on a mobile device). As John has not yet included material on the possibility of a Palestinian acceptance of the jurisdiction of the ICC, we have included in the “From the Archives” box some of the previous EJIL:Talk! posts on that issue. We have also included some of the posts on whether Gaza is occupied - an issue of critical importance with regard to the debate on whether Israel has a continuing obligation to supply electricity to the territory. We have also included some of our early posts on proportionality and on the question of who is to be regarded as a combatant in Gaza (here, here and here).

As with the other Debate Maps produced by OUP, this one is to be highly recommended. It is one of the easiest and best ways to get an overview of the legal issues and provides a really useful bibliography of scholarship on those issues. For an explanation by John and Merel Alstein at OUP of the thinking behind the Debate Maps see here and here.

 

Transatlantic Roundtable on Challenges to IHL

Published on July 16, 2014        Author: 

This week, leading academics and practitioners from the US, UK, continental Europe, and Israel will gather at the University of Oxford to discuss a range of IHL-related issues – from addressing violations of the rules of war to military ops that go beyond the traditional battlefield.  The two-day roundtable discussion will focus on transatlantic issues relating to international humanitarian law (IHL). Civilian and military participants from Canada, the United States, the United Kingdom, continental Europe and Israel will address a variety of IHL issues of concern to their own States, as well as relating to cooperation between States. The idea is to share ideas across borders in order to exchange approaches to various IHL and national security issues and advance the dialogue on these issues. The roundtable is organized by the International Committee of the Red Cross’ delegations in Washington, D.C. and London, the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations , the Robert S. Strauss Center for International Security and Law at the University of Texas, and the South Texas College of Law.

Participants will discuss the following topics:

- Updates in the overlap between IHL and IHRL

What have the major updates in the interplay between IHL and International Human Rights Law (IHRL) been over the past year? Has IHRL gone too far into influencing IHL? What are the effects of this interplay?

 - Accountability for violations of IHL

Read the rest of this entry…

Filed under: Announcements and Events
 

New Issue of EJIL (Vol. 25: No. 1) Published

Published on April 8, 2014        Author: 

The latest issue of the European Journal of International Law , the first of 2014, (Vol. 25, No. 1) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, as well as on EJIL’s Oxford University Press site. Readers can access those articles that are freely available from both places. As it happens, a good deal of the current issue is freely available even those readers without a subscription. Readers, with or without a subscription, can access Daniel Bethlehem’s article,  “The End of Geography: The Changing Nature of the International System and the Challenge to International Law” as well as responses to that piece by  David Koller and  Carl Landauer . Also freely available are the articles in the Joint Symposium with the International Journal of Constitutional Law (I*CON): Revisiting Van Gend en Loos. Subscribers have full access to the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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Announcements: BIICL Course on Public International Law; 21st C Borders Conference;

Published on March 30, 2014        Author: 

1. The British Institute of International and Comparative Law (BIICL) will be running a short course from 29-30 April 2014 entitled, Public International Law in Practice. The dynamic, two-day programme will be focused on current developments in public international law and their application in national and international litigation, in governmental and international policy-making and in international legal and diplomatic practice. Participants will be provided with a concise introduction to key issues across a broad range of areas of public international law – from the nature of international law to international resolution of disputes, from human rights to international investment law.  Led by many of the Institute’s leading researchers and practitioners, the course is ideal for those in the early and middle years of legal practice, those working in governmental and non-governmental organisations with legal elements to their work, those in moving legal practice areas, and students who are studying for a postgraduate degree which includes aspects of international law. This course is unique in that it introduces participants to public international law as it arises in practice in a concise and engaging way. The course fee is £375 (incl VAT) and it is accredited with 14.5 CPD hours. Find out more and book online here.

2. Call for Papers: Conference on 21st Century Borders: Territorial Conflict and Dispute Resolution, 13th June 2014, University of Lancaster. 21st Century borders are coming under increasing strain with shifting balances of international power. This was seen most dramatically in the recent Russian annexation of the Crimea and its connected repudiation of uti possidetis that underpinned statehood in the former Soviet Union. In East Asia tensions remain high in sovereignty disputes over islands and maritime delimitation. Renewed attempts to reach a settlement between Israel and Palestine similarly turn on the crucial issue of borders. In addition to these, a number of other states have been involved in long-running boundary conflicts. This conference, organised by the Centre for International Law and Human Rights at Lancaster University Law School will explore the causes and dynamics of contemporary territorial disputes as well as mechanisms to resolve them. We welcome abstracts for papers of no more than one page from both established researchers and early career academics. Please send your proposals to Dr. James Summers j.summers {at} lancaster.ac(.)uk. The deadline for abstracts is 20th April 2014.

 

Filed under: Announcements and Events
 

New Issue of EJIL (Vol. 25: No.1) Out Next Week

Published on March 28, 2014        Author: 

The latest issue of the European Journal of International Law will be published at the end of next week. Over the course of next week, in advance of the publication of the new issue, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will then appear in the Editorial in the upcoming issue. Here is the Table of Contents of the next issue of EJIL:

Editorial

The International Society for Public Law – Call for Papers and Panels; Van Gend en Loos – 50th Anniversary; Vital Statistics; Roll of Honour; Quantitative Empirical International Legal Scholarship; In this Issue

EJIL: Keynote Debate!

Daniel Bethlehem, The End of Geography: The Changing Nature of the International System and the Challenge to International Law

David S. Koller, The End of Geography: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Carl Landauer, The Ever-Ending Geography of International Law: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Articles

Maria Aristodemou, A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours

Christopher Wadlow, The beneficiaries of TRIPS: Some Questions of Rights, Ressortissants and International Locus Standi

Revisiting Van Gend en Loos: A Joint Symposium
with the International Journal of Constitutional Law (I·CON)

JHH Weiler, Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy

Eyal Benvenisti and George Downs, The Premises, Assumptions, and Implications of Van Gend en Loos: Viewed from the Perspectives of Democracy and Legitimacy of International Institutions Read the rest of this entry…

Filed under: EJIL Analysis
 
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ICON-S Inaugural Conference June 2014 – Rethinking the Boundaries of Public Law and Public Space: Call for Papers & Panels—

Published on March 26, 2014        Author: 

The European Journal of International Law is  pleased to announce the Call for Papers & Panels  for the Inaugural Conference of ICON-S: the International Society of Public Law. ICON-S is a new international learned society. Its Pro Term Executive Committee includes many of the world’s leading scholars in the field of public law (and public international law). ICON-S will be launched officially at its Inaugural Conference in Florence, Italy, on June 26-28, 2014. The conference will feature plenary and concurrent panels. Scholars–both senior and junior, including graduate students–are invited to submit papers and/or fully-formed panels for the conference. Please join us for what promises to be an important moment in the field of public law. The deadline for the call for papers is March 31. Further details about the conference are below the fold. Read the rest of this entry…

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Oxford University Press Debate Map on Ukraine

Published on March 14, 2014        Author: 

Over the past couple weeks, there has been a flurry of writing on this blog  (see here, here, here and here) and elsewhere about events in Crimea/Ukraine. Oxford University Press have produced another of their ever so useful Debate Maps on Ukraine.

“The  . . . index maps scholarly commentary on the legal arguments regarding the public international law (and some domestic constitutional law) aspects of the use of force in Ukraine, published in English language legal blogs and newspapers, and free content from OUP’s online services.

Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.”

I could not recommend this Debate Map, and the other OUP maps (here, here, here),  more highly. There is so much writing on topical international law issues that it can be difficult to stay abreast of what has been written, particularly over a short space of time. The Debate Map is an excellent way of doing so.

 
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Appeal from the Ukrainian Association of International Law

Published on March 5, 2014        Author: 

The Ukrainian Association of International Law has issued an analysis of recent events in the Ukrainian. An English translation of this analysis and appeal is included below. I am told that the original can be found here. The Association argues that Russia’s decision to move military forces into Ukraine is not only a violation of the UN Charter and general international law, but also of the bilateral treaty permitting Russia to retain the Black Sea Fleet in Ukraine, and also of the security assurances given in the Budapest Memorandum of 1994 by Russia (and also by the US, the UK, France and China). Much of the analysis contained in the Appeal by the Association is undoubtedly correct.

The Association rejects Russian claims that it is acting to protect rights of the Russian population in Ukraine. However, it is surprising to read that “[the Association] would like to stress that no duly authorized national, foreign or international institution has declared any violation of human rights on the territory of Ukraine, or specifically in the Autonomous Republic of Crimea, which would have required the intervention of any subject of international law or the international community.” Is this to say that it would have been lawful for Russia to intervene had there been such a declaration of violation of human rights?

“An Appeal from the Ukrainian Association of International Law to the people of Ukraine, the Russian Federation and the fraternal people of the neighboring States with whom we share close family ties and historical connections, as well as the international community as a whole:

On 1 March 2014 at 17.21 (Kyiv time), the Council of the Federation of the Federal Assembly of the Russian Federation (the Council of the Federation) unanimously supported the appeal of the President of the Russian Federation, Mr. Vladimir Putin, on sending a “limited contingent of military troops” of the armed forces of the Russian Federation into the territory of Ukraine.

This decision was taken in breach of the United Nations Charter, Read the rest of this entry…

 
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Oxford Public International Law Discussion Group Podcasts

Published on February 19, 2014        Author: 

The purpose of this post is to alert readers to the podcasts of the Oxford Public International Law Discussion Group. The Oxford PIL Discussion Group hosts a speaker event each week and topics involve contemporary and challenging issues across a range of areas of international law. Speakers include distinguished international law practitioners, academics, and legal advisers from around the world. Podcasts of these talks, going back over a year are available, on the Oxford Public International Law @ Oxford website. The most recent podcasts are of the talk given week before last by Prof Martti Koskenniemi (University of Helsinki) and that of the week before by Prof. Kevin Jon Heller (now at the University of London). This week we are delighted to host Professor Elies van Sliedregt (Dean, VU University of Amsterdam Law School) who will speak on culture clashes in international criminal law, and next week we have the reknowned arbitrator, the Honourable Charles Brower, who speaking on the fate of international dispute resolution.

Those of you who are able to make it to Oxford to attend in person are welcome to come along. The group typically meets each Thursday during Oxford terms in The Old Library, All Souls College, with lunch commencing at 12:30. The discussion group’s meetings are part of the programme of the British Branch of the International Law Association and are supported by the Law Faculty and Oxford University Press. No RSVP is necessary. To join the PIL Email List and to receive information about the PIL Discussion Group meetings, as well as other PIL@Oxford news contact Jennifer.hassan {at} law.ox.ac(.)uk

Filed under: Announcements and Events
 
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