Two Weeks in Review, 1–14 January

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The beginning of 2024 has been exceptionally busy for EJIL: Talk!. Over the last two weeks, the blog featured analyses of the application filed by South Africa before the ICJ concerning alleged violations by Israel of its obligations under the Genocide Convention in relation to Palestinians in the Gaza Strip, developments within the European human rights system, functional and personal immunities, and the legality of recent US export controls. Moreover, our Editor Dapo Akande commemorated the blog’s fifteenth anniversary and presented the most-read entries of 2023.

South Africa v Israel

Luciano Pezzano analysed recourse to the ICJ under Article IX of the Genocide Convention as a form of discharging the obligation to prevent genocide. He described South Africa’s application as ‘the very first time in a judicial proceeding before the ICJ [where] a State recognizes its obligation to prevent genocide in a territory thousands of kilometres beyond its jurisdiction’.

Jesse Lempel claimed that the ICJ’s authority to indicate provisional measures should be constrained by the right of self-defence recognised in Article 51 of the UN Charter. That argument was challenged in a post by Marc Weller, who contended that the ICJ ‘has had no hesitation in the past to adopt interim measures of protection where the use of force and claims to self-defence are concerned’. Weller concluded that ‘Israel cannot avoid scrutiny of its use of force and associated practices, and possible interim measures of protection, simply by invoking self-defence’.

Finally, Olivia Flasch asked how the statements of Israeli officials should be assessed when determining genocidal intent.

Developments in the European human rights system

Our Editor Marco Milanovic analysed the submissions of the 26 ECHR member states intervening in Ukraine and the Netherlands v. Russia, pending on its merits before the Grand Chamber of the European Court of Human Rights. He argued that while all 26 states are intervening to support Ukraine through a joint coordinated brief, that brief contains ambiguous arguments and is silent on important controversial points.

Sissy Katsoni analysed the much-awaited judgment of the European Court of Human Rights in M.L. v Poland – one of the approximately 1,000 applications submitted before the Court regarding the restrictive Polish abortion policy. She foregrounded the shortcomings of the judgment in light of decisions of UN treaty bodies and criticised the Court’s ‘manoeuvring around the explicit acknowledgement and stronger protection of abortion rights under the ECHR’.

Juri Huttunen explored the phenomenon of ‘instrumentalised migration’, which he defined as the ‘cross-border population movements that have been deliberately created or manipulated in order to induce political, military and/or economic concessions from a target state or states’. He examined the alternatives open to receiving states under the ECHR and jus ad bellum.

Functional and personal immunities

Kai Ambos commented on the Federal Government of Germany’s Draft Bill that introduces changes in the Code of Crimes against International Law, the Code of Criminal Procedure, and the Courts Constitution Act. He argued that the German Federal Government should have taken an unequivocal position in favour of restricting functional immunity, concluding this would send a strong signal against impunity and steer ICL developments ‘in the right direction’.

Against the many proposals to create a special tribunal for prosecuting Russian political and military leaders for committing the crime of aggression, André de Hoogh challenged suggestions that the personal immunities of the troika could be declared inapplicable before an international tribunal. He concluded that ‘personal immunities benefiting the Russian troika under customary international law cannot be ignored before a special tribunal, even when declared inapplicable by the General Assembly itself or in an agreement between the UN and Ukraine’.

Legality of US export controls

Daan Kingma studied the recent export controls the US government imposed on Dutch chip machines as part of the broader US chip blockade against China. He argued that these measures contravened international law and concluded that ‘as the Netherlands gets increasingly caught up in Great Power competition between the US and China due to its critical position in the global semiconductor supply chain, the Dutch government should be more assertive in defending its core economic interests’.

EJIL: Talk! at 15

You can read here Dapo Akande’s reflections on the blog’s fifteenth anniversary and 2023’s most viewed posts.

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