Customary International Law

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To Custom or Not to Custom: A Battle for the Applicable Sources of Law at the Kosovo Specialist Chambers

Introduction Over the past 5 months, the Prosecutor of the Kosovo Specialist Chambers ('KSC') and defence counsels for multiple accused have been filing submissions on a legal question that is of utmost importance for the work of the Court: to what extent can the KSC apply customary international law (‘CIL’)? A series of jurisdictional motions, the most comprehensive one of which was filed by the Defence of Kadri Veseli in the Hashim Thaçi et al case, requested the pre-trial judge to find that the KSC lacks jurisdiction over arbitrary detention as a war crime in non-international armed conflicts, as well as over joint criminal enterprise (‘JCE’) and command responsibility. Aside from rejecting the customary legal basis of these constructs, the accused have principally argued that directly applying CIL in Kosovo’s legal order is unconstitutional, unless a domestic statutory provision that incorporated the respective CIL concept in Kosovo at the material time can be found. The KSC is reminded that, as a national court which is part of Kosovo’s judiciary, it is required to…

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International Law at NATO’s Brussels Summit

The June 2021 NATO summit in Brussels was noteworthy for the U.S. renewal of its commitment to the Alliance. Speaking with Secretary-General Stoltenberg, President Biden reassured NATO members (the “Allies”) that “NATO is critically important for U.S. interests” and “Article 5, we take as a sacred obligation.” Also noteworthy was the extent to which NATO…

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Old Habits Die Hard: Applying Existing International Law in Cyberspace and Beyond

In the past few years, a growing number of states have expressed their official positions on the applicability of international law in cyberspace. Most recently, New Zealand and Israel shared their own views on the topic to beef up the crowd. Initiatives of this kind are welcome and contribute to the gradual clarification of the extent…

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Israel’s Cautious Perspective on International Law in Cyberspace: Part II (jus ad bellum and jus in bello)

In Part I of this series, I assessed Israel’s approach to the identification and interpretation of international law in the cyber context, as set forth in an important virtual speech by Israel’s Deputy Attorney General for International Law, Dr. Roy Schöndorf, at the “Disruptive Technologies and International Law” conference hosted by the US Naval War College’s…

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Israel’s Cautious Perspective on International Law in Cyberspace: Part I (Methodology and General International Law)

Last week, Israel’s Deputy Attorney General for International Law, Dr. Roy Schöndorf, delivered an important virtual speech on his nation’s positions regarding the application of international law in cyberspace at the “Disruptive Technologies and International Law” conference hosted by the US Naval War College’s Stockton Center for International Law. The sophisticated presentation described…

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