Home Archive for category "EJIL Analysis" (Page 2)

Targeting Child Soldiers

Published on January 12, 2016        Author: 

Despite the numerous volume on child soldiers in legal literature over the last few decades, very little has been said on targeting child soldiers. It seems to be something international lawyers would rather not talk about. The fact that legal literature doesn’t say much about targeting child soldiers doesn’t mean that no such practice exists, or that soldiers haven’t discuss the matter. In 2002, the US Marine Corps Warfighting Laboratory organised a ‘Cultural Intelligence Seminar’ on the implication of child soldiering for US forces. One trigger for that discussion was the fact that the very first US soldier killed in Afghanistan reportedly was a Special Forces Sergeant shot by a 14-year-old boy. The year before, in Sierra Leone, a squad from the Royal Irish Regiment was taken prisoner by a group consisting mostly of armed children called the West Side Boys, as the British soldiers were hesitant to open fire. After they had been held hostage for two weeks, an assault was launched by an SAS unit supported by suppression fire from helicopters, leading to between 25 to 150 dead among the West Side Boys. Finally, during the civil war in Sri Lanka, a Government aircraft bombed what was deemed an LTTE training camp, killing a reported 61 minors, mostly girls. Although the LTTE was widely known to use child soldiers, and the specific facts were contested, the Sri Lanka Government was adamant that if a child took up arms, then he or she could be targeted and killed.

The phenomenon of child soldiers remains widespread, and their activities does include direct participation in hostilities. It is imperative that international humanitarian law provide guidance as to what opposing forces can do if they are confronted with that reality. In this piece, I suggest that there are elements in international humanitarian law that support adapting a child-specific approach to targeting. Under this approach, the fact that a potential target is a child should prima facie raise a doubt as to whether he or she is targetable. Although the doubt may be dissipated in light of available facts, overcoming the presumption of civilian status might require more than would be the case for an adult. In addition, even if a child is deemed targetable, the allowable means and methods must nevertheless reflect the protected status of children in international law. Read the rest of this entry…

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Immunity of Heads of State on the Retreat

Published on January 11, 2016        Author: 

On December 31st, the United Nations Dag Hammarskjöld Library tweeted that its most popular item of 2015 was my book entitled “Immunity of Heads of State and State Officials for International Crimes”.

The tweet immediately led to an intense controversy on Twitter and to a number of articles (here or here). Many commentators suggested that the book has been popular because diplomats were looking for ways to protect themselves or their bosses. Some also claimed that it was a poor sign for the United Nations. The news website Vox wrote: “The UN is full of delegates representing awful dictatorships, and the book that got checked out the most from the UN library was about … how to be immune from war crimes prosecution. That does not seem like a good thing!”

Numerous commentators jumped to the conclusion that the book was some sort of recipe to escape prosecution for international crimes. But in fact, rather than for criminal dictators, the book is for committed prosecutors and judges. In particular, it contains a detailed analysis of the relevant customary international law. Read the rest of this entry…

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Curriculum Vitae: A Prequel | The Video

Published on January 10, 2016        Author: 

Earlier this week, we reproduced in two posts on EJIL:Talk! Roger O’Keefe’s insighful and hilarious Inaugural Lecture, delivered at UCL at the end of 2015. It is now available as an online video.

In his inaugural lecture, Professor O’Keefe teases out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet.

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Trivia Competition: Provisional Measures and Joinder of Cases at the International Court of Justice

Published on January 8, 2016        Author: 

A few years ago I began the practice of asking on this blog – every now and again – trivia question relating to international law, with the questions focusing mainly on the practice of the International Court of Justice (ICJ) and other international tribunals. Unfortunately, I have not done this in quite a while. You can find previous questions (and answers) here or by viewing the EJIL:Trivia category in the list of categories on the right hand column of the blog. Last month, the International Court of Justice delivered its Judgment in the joined cases concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). This judgment and the cases provide me with an opportunity to ask a set of trivia questions relating to the ICJ.

On this occasion, we will offer a prize to one respondent. The person who provides the most correct answers will win a free subscription to the European Journal of International Law for 2016. In the case of a tie, the first person to provide their answers will be the winner.

In the Costa Rica v. Nicaragua case, the Court found that “Nicaragua has breached the obligations incumbent upon it under the Order indicating provisional measures issued by the Court on 8 March 2011”. This is a relatively rare finding by the Court that a party has breached a provisional measures Order indicated by the Court earlier in that case. This finding was not merely made in passing but was recorded in the dispositif of the judgment. My first question is a perhaps an easy one:

1) In what other case has the Court made a finding in the dispositif of a judgment that a party has breached a provisional measures order made by the Court?

The rest of my questions relate to joinder of cases at the ICJ. The Costa Rica v Nicaragua and Nicaragua v Costa Rica cases began as separate proceedings which were joined together by the Court in 2013 (see this press release). Under Article 47 of the Rules of the ICJ,

The Court may at any time direct that the proceedings in two or more cases be joined. It may also direct that the written or oral proceedings, including the calling of witnesses, be in common;  or the Court may, without effecting any formal joinder, direct common action in any of these respects.”

There are not too many cases that have been joined by the Court and my second question is this:

2) In which proceedings have cases before the International Court been joined?

Read the rest of this entry…

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The Establishment of a Special Court against Terrorism

Published on January 7, 2016        Author: 

The possibility of establishing an International Court against Terrorism is not entirely new, and has been addressed by scholars. However, the idea has recently regained momentum as a result of a joint Romanian-Spanish initiative (summarised here). In a recent event held at the T.M.C. Asser Instituut organised by the authors of this post, this possibility was thoroughly discussed. While indubitably commendable on the political level, such effort will face some very challenging legal issues. The aim of this post is to give a succinct account of these issues.

To begin with, a Special Court against Terrorism (SCT) will be confronted with a major question concerning its jurisdiction ratione materiae. What are the acts that would fall under its jurisdiction? What are the constitutive elements of a terrorist act subject to the SCT’s jurisdiction? Indeed, this issue is connected with a vexed question of international law, namely the definition of terrorism. As is well known, there is no generally accepted definition of terrorism under general international law. The perpetration of terrorist acts during wartime is (at least in part) covered by the law of armed conflict. Those acts may amount to war crimes in case of serious violations of international humanitarian law. The rules applicable to terrorist acts perpetrated in times of peace are more uncertain. The numerous UN conventions on terrorism only apply if the conduct in question falls under the relevant sector covered (e.g. nuclear terrorism).

The most famous attempt to define terrorism in times of peace in a general manner has been made by the Special Tribunal for Lebanon Read the rest of this entry…

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The Use of Force against ISIL in Libya and the Sounds of Silence

Published on January 6, 2016        Author: 

As acknowledged by the UN Security Council in Resolution 2249 (2015), ISIL constitutes ‘a global and unprecedented threat to international peace and security’. At least in part, the unprecedented nature of this threat can be attributed to the fact that, in addition to the swathes of territory held in Iraq and Syria, ISIL maintains a presence in various other states, including Libya, Afghanistan, Egypt, Tunisia and Nigeria. Consequently, it was only a matter of time before states started considering striking these other states.

On 13 November, the US made the first move in expanding operations beyond Iraq and Syria, conducting the first airstrike by a Western state specifically targeting ISIL within Libya. It has now been confirmed that the successful strike killed Abu Nabil, the US-dubbed ‘leader’ of ISIL in Libya. Little has been said regarding the airstrike by states or legal commentators, though this is understandable in a period where the world is coming to terms with the devastating terrorist attacks in Paris, Mali, Nigeria, Tunisia and Egypt. However, reflecting back on the strike, questions surround its legality. This post will focus on legality under jus ad bellum, while acknowledging that an airstrike directly targeted at an individual may also trigger international humanitarian law and human rights law.

Prior to assessing the legality of the strike, it is important to consider what we actually know about the strike. In announcing the strike against Abu Nabil, the US Pentagon Press Secretary stated that:

‘On November 13, the U.S. military conducted an airstrike in Libya against Abu Nabil, aka Wissam Najm Abd Zayd al Zubaydi, an Iraqi national who was a longtime al Qaeda operative and the senior ISIL leader in Libya.

Reporting suggests he may also have been the spokesman in the February 2015 Coptic Christian execution video. Nabil’s death will degrade ISIL’s ability to meet the group’s objectives in Libya, including recruiting new ISIL members, establishing bases in Libya, and planning external attacks on the United States.

While not the first U.S. strike against terrorists in Libya, this is the first U.S. strike against an ISIL leader in Libya and it demonstrates we will go after ISIL leaders wherever they operate.

We will provide additional information as and when appropriate. This operation was authorized and initiated prior to the terrorist attack in Paris.’

Notably, the statement provides no explicit legal justification for the strike. This silence has not been remedied since, leaving us to perform the risky task of reading between the lines of the Pentagon statement, while searching for a possible legal justification for this prima facie breach of Article 2(4) UN Charter. Read the rest of this entry…

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Filed under: EJIL Analysis, Libya, Use of Force

Curriculum vitae: A Prequel (Part II)

Published on January 5, 2016        Author: 

This is the second part of the inaugural lecture of Roger O’Keefe, Professor of Public International Law at University College London (Part I is available here). In the lecture he teases out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet.

All characters depicted in this tale are fictional, sort of. Any resemblance to academics, judges or journals living or dead is intended in a jesting and friendly spirit. All legal actions should be directed in the usual way to Professor Joseph Weiler.

But it was not all beauty, truth, and miscellaneous high-mindedness. The international legal system, while its own reality, was predicated on the external reality—the real reality, as it were—of the practice of states. It was ultimately positivist, and as an international legal positivist D. H. G. H.-G. Salamander was necessarily a down-and-dirty empiricist. And what down-and-dirty data, what incident and idiosyncrasy with which to work! All human life was there! The agony and the ecstasy, the tragedy and farce, the stuff and nonsense of international affairs past and present, visibilium omnium et invisibilium! The human world, the bringer of plurabilities, its song be sung, its rill be run! Like the sea, it teemed with life. So too knew it death, the destroyer of worlds, Assyrian, wolf, and fold all kneeling before it and trembling. The divine comedy! The encyclopaedia satanica! He sang the corpus eclectic. Out of this Dionysian frenzy, out of the fury and the mire of human veins, it was not only the distinctive service but also a large part of the fun of the international lawyer to discern and to elaborate with Anzilottian clarity a normative logic.


As for whether at heart he was an international legal apologist or critic, Salamander took the view that he could rightly no more praise or condemn international law for justice or injustice than he could a language for a kind or hurtful word. There was no use indicting laws. They were no shoddier than what they peddled. Law, to quote again the immortal Austrian, was simply ‘a specific social technique for the achievement of ends determined by politics’ [Hans Kelsen, The Law of the United Nations. A Critical Analysis of Its Fundamental Problems, with Supplement (New York: Frederick A Praeger, 1950), xiii]. International law, as someone else would write somewhere, was no more than a vehicle for human values, a language of human self-ordering, a particular praxis of human willing. If the rules were warped, the blame lay with the crooked timber.


Yet for all her tender ministrations, Eunomia remained a demanding mistress. She also remained a demanding read, or at least her namesake did, although no-one—the London cabbie, the troika (or trinity) of sage, prophet, and poet, and least of all D. H. G. H.-G. Salamander—minded too much.

Yes, she was a demanding mistress alright. So much to write, so little time, to borrow from Wonka. The job involved so much drudgery. Tomorrow and tomorrow and tomorrow crept in this petty pace from day to day. Yet here were his friends pumping out publications as if by colonic irrigation! The pugnacious Georgian, the feisty Serb, the neotenous Nigerian, the bouffanted Belgian … Goddammit, did that well-coiffed Walloon never sleep? The productivity of these characters was demoralising! Just when he thought it was safe to go back in the water, out leapt another book, article, chapter or blog-post by one of these men possessed! Read the rest of this entry…

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Curriculum vitae: A Prequel (Part I)

Published on January 4, 2016        Author: 

In his inaugural lecture, Roger O’Keefe, Professor of Public International Law at University College London, teases out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet.

All characters depicted in this tale are fictional, sort of. Any resemblance to academics, judges or journals living or dead is intended in a jesting and friendly spirit. All legal actions should be directed in the usual way to Professor Joseph Weiler.


A long time ago, in a hemisphere far, far away, was born a man by the grandiloquently improbable name of Dionisio Hans Georg Hans-Georg Salamander. Reared in a home girt by sea and seared by summer infernos, he was a creature of both water and fire. As a boy, he enjoyed endless days at the beach and, as something of a juvenile versifier, endless nights in the embrace of Calliope, Euterpe, Erato or Thalia, depending on which was free and could bear to spend a warm summer’s evening humouring an underage wordsmith. Young Dionisio Hans Georg Hans-Georg did well at school and, after what could only be called a modicum of tertiary educational peripatesis, his grown self settled on a career as an international lawyer. Well, it could only be called that by a lawyer.

More precisely, D. H. G. H.-G. Salamander settled on a career as an academic international lawyer.


‘Pah!’, scoffed a City solicitor friend, informed one drunken night of Salamander’s vocation. ‘Those that can, do. Those that can’t, teach.’

‘Ho, ho!’, replied Salamander sarcastically. ‘Those that can, do. Those that can’t, solicit.’

Absurdly early next morning, nursing a hangover, a cut lower lip and the forlorn wish that his jeu de mot had been by way of l’esprit de l’escalier, Salamander was up and at ’em, slaving over a manuscript to the inexorable deadline of some unrelenting editorial Fury. Absurdly early … Inexorable … L’esprit de l’escalierLo spirito … Der Geist Der Volksgeist … Der Rechtsgeist ... L’esprit des lois La solidarité sociale Le dédoublement fonctionnel ... Voiceless labiodental fricative on cut lower lip … La compétence de la compétence … Forlorn … Forlorn! The very word was like a bell to toll him back from the sibilant fricative of article 36(6) of the Statute of the International Court of Justice to his sole self! And sole was the word. It was a solitary calling. Eunomia was a demanding mistress. To mix metaphors.


In terms of the legal philosophy to which he subscribed, D. H. G. H.-G. Salamander was a positivist. Given the practical difficulty in a world of sometimes radical moral and political pluralism of ascertaining from reason an objective notion of the good, he believed that the inter-subjective approximation of the latter derivable, directly or at one adjudicatory remove, from the premise that international law was what states—through their governments, as the representatives of their peoples—mutually agreed it to be was the most legitimate and prudent basis for an international legal order.

This was not to say that said Salamander was ideologically wedded to the privileged position of states within the international legal order of his day. International legal positivism, to his way of seeing things, had nothing inherently to do with states. What legal positivism meant was simply that the law was whatever an authorized temporal lawmaker validly said it was (or ‘posited’, as in ‘lay down’), instead of being wholly deducible from certain first principles or divinely ordained; and in the international legal system as it then stood, it just so happened that the authorized temporal lawmakers were first and foremost states. Read the rest of this entry…

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Happy New Year & Most Read Posts of 2015

Published on December 31, 2015        Author: 

As 2015 comes to an end and we enter into 2016, I would like to wish our readers a Happy New Year! I also take the opportunity to provide you with a list of the 20 most read posts for 2015. The information used in compiling the list is from Google Analytics, which tell us which gives us information about the number of times pages on the blog are viewed. The posts listed below were not all written in 2015 but were the ones accessed most frequently in 2015. In fact, nearly half of the posts in the list below were not written in 2015. It is encouraging to see that readers come to blog not just to access current material but that pieces are regarded as having some enduring value.  We strive to cover a range of areas of international law on the blog, and the list below, contains pieces with diverse subject matter. However, it is noticeable that right at the top of this list of most read posts, there is a concentration on pieces that touch on the use of force and armed conflict. The list below is reverse order, with the top 10 posts below the fold:

20) On the Entirely Predictable Outcome of Croatia v. Serbia, Marko Milanovic

19) Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ, Antonios Tzanakopoulos (2013)

18) Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups, Marc Weller

17) European Hypocrisy: TTIP and ISDS, Joseph Weiler

16) Double Duty at the ICC, Daphné Richemond-Barak

15) The Grand Chamber Judgment in Hassan v UK, Lawrence Hill-Cawthorne (2014)

14) The new enemy of mankind: The Jurisdiction of the ICC over members of “Islamic State”  Kai Ambos

13) European Court Decides Al-Skeini and Al-Jedda Marko Milanovic (2011)

12) Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 2) Arman Sarvarian & Rudy Baker

11) Espionage & Good Faith in Treaty Negotiations: East Timor v Australia Dapo Akande & Kate Mitchell (2014) Read the rest of this entry…

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Filed under: EJIL Analysis

A Preview of a Prequel: Roger O’Keefe’s Inaugural Lecture

Published on December 30, 2015        Author: 

Early in the New Year, we will have the pleasure of posting Roger O’Keefe’s inaugural lecture,roger-okeefe delivered earlier month, at University College London. In the lecture, “Curriculum Vitae. A Prequel“,  Roger:

 “tease[s] out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet”.

animal-reptile-salamander-north-american-salamander-610x340The lecture is very much in the vein of Roger’s masterful piece: “Once upon a time there was a gap” from about 5 years ago. It is a wonderfully written piece that will have you laughing out loud. Watch out for the cameo appearances made by real life academics (departed and still living – including editors of blogs) as well as judges. The genius of the piece lies in the fact that as much as it is a humorous piece, it is also a most thoughtful piece about international law theory and methodology. It should cause readers to reflect on issues like the role and function of international law (and indeed of international lawyers). Those of you who enjoyed “Once upon A time there was a gap” will surely enjoy this new piece. I would encourage you to re-read the earlier piece to whet the appetite. Those who have not enjoyed the previous piece, well, that can only be because you have not yet read it. So you should also read that earlier piece and look out for the tale about D. H. G. H.-G. Salamander!

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