EJIL Analysis

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“Solid jurisdictional basis”? The ICC’s fragile jurisdiction for crimes allegedly committed in Palestine

On 5 February 2021, Pre-Trial Chamber I issued its long-awaited decision regarding the ICC’s jurisdiction for possible war crimes committed in the occupied Palestinian territories (Gaza and the West Bank, including East Jerusalem) since 13 June 2014 (for an academic analysis, see the symposium here). The decision was requested by the Office of the Prosecutor (OTP), which, while assuming a “reasonable basis to believe” (Art. 53(1) ICC Statute [ICCS]) that such crimes have been committed (see Report on Preliminary Examination Activities 2020, para. 220–24), wanted to clarify the jurisdictional basis of its investigation at this early stage of the proceedings, given the controversies surrounding Palestinian statehood and the possible relevance of this question for the Court’s jurisdiction. The PTC affirmed the Court’s jurisdiction, covering the abovementioned territory, in a 2:1 vote (in favour French judge Perrin de Brichambaut and Beninese judge Alapini-Gansou, against Hungarian judge Kovács). It thus followed the OTP’s request (Decision, para. 22 ff.). Israel and Palestine, victims’ organisations as…

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Diplomats or fonctionnaires? The Contested Status of the EU’s ‘Embassy’ in the UK

May the European Union have a full diplomacy, on a par with States? This issue has been problematic since 1954, when the European Coal and Steel Community opened its first delegation – in London. Already in 1961, Pescatore wrote that ‘it is clear why the use of the term “diplomatic” to designate the Community’s missions in third…

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Extraterritorial Investigations in Hanan v. Germany; Extraterritorial Assassinations in New Interstate Claim Filed by Ukraine against Russia

In this post I will discuss two recent developments on the extraterritoriality of human rights front – the judgment of the Grand Chamber of the European Court of Human Rights in Hanan v. Germany, no. 4871/16, on the compliance with Article 2 ECHR of the investigation by German authorities into the Kunduz incident in Afghanistan,…

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Could the General Assembly Exclude Myanmar from the UN by Refusing to Recognise the Credentials of its Ruling Military Junta?

Earlier this month, Myanmar’s military seized power from the democratically elected government in a dramatic coup d’état.  State Counsellor Aung San Suy Kyi was arrested alongside other government ministers, parliamentarians and activists.  The military’s Commander-in-Chief, who a UN Fact-Finding mission said in 2018 should be prosecuted for crimes under international law, is running the country.    …

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Rocks in the Law of the Sea: Some comments on the South China Sea Arbitration Award

Article 121(2) of the United Nations Convention on the Law of the Sea (the Convention) stipulates that “the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.” According to the International Court of Justice, this rule has…

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