Two Weeks in Review, 20 May – 2 June 2024

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International Criminal Law

Thomas Obel Hansen offers his analysis of key objections by states to the ICC prosecutor’s request for arrest warrants in the Palestine investigation. These include: the equivalence between Hamas and Israeli leadership, the ICC’s lack of jurisdiction since Israel is not a State Party and Palestine is not universally recognized as a state, the disregard of the principle of complementarity, the flawed OTP’s process questioning the legitimacy of the process and the impact the request may have on the prospect of a ceasefire, hostage release, and provision of humanitarian aid. The author argues that the various objections raised lack substantial legal merit. Read the full post here.

John B. Quigley offers a critique of the ICC Prosecutor Karim Khan’s characterization of the Gaza hostilities as involving two separate armed conflicts: an international conflict between Israel and Palestine, and a non-international conflict between Israel and Hamas. Quigley challenges the rationale behind treating Hamas as a non-state actor distinct from Palestine, given Hamas’s political and governmental role in Gaza following its 2006 electoral victory and subsequent governance. Quigley further argues that traditionally, conflicts in the ‘occupied Palestinian territories’ have been viewed as international in nature, citing historical and legal precedents, including decisions by the Israeli Supreme Court and international bodies such as the International Court of Justice. He asserts that Khan’s dual-conflict framework complicates the legal analysis without clear justification and may require re-framing to align with established interpretations of the nature of the Gaza hostilities. Read the full post here.

Veronika Bilkova and Elīna Šteinerte examine the activation of the Moscow Mechanism by the Organization for Security and Cooperation in Europe (OSCE) participating states to address the arbitrary deprivation of liberty of Ukrainian civilians by the Russian Federation. The authors introduce the main factual and legal findings of a recent report presented to the OSCE Permanent Council in April 2024. The report focuses on the arbitrary deprivation of liberty of Ukrainian civilians by the Russian Federation, detailing numerous violations of international law, including extrajudicial killings, torture, and enforced disappearances. The report concludes that these actions constitute clear violations of international human rights law and international humanitarian law, likely amounting to war crimes and crimes against humanity. Further, recommendations are made to various actors, including the Russian Federation, Ukraine, third states, and international organizations, to address these violations comprehensively. Read the full post here.

Animals and International Law

Jérôme de Hemptinne examines whether it makes sense to apply International Criminal Law (ICL) to animals, arguing initially that ICL is largely designed to protect human dignity in crises that threaten peace and security, thus appearing inadequate for animal protection. However, the author suggests that the evolving status of animals in various jurisdictions and the increasing concern for animal welfare should influence the development of ICL. Three approaches are examined in this regard: re-conceptualizing existing international crimes to include animals, minimally reinterpreting these crimes to offer incidental protection to animals in human crises, and creating a new international crime specifically against animal cruelty. The author concludes that:

“Ultimately, grounding the constitutive elements of an international crime against animality on these flexible considerations of nature, purposes, and scale would provide judges enough margin of appreciation and interpretation to progressively declare particularly repulsive and large-scale forms of animal exploitation illegal and to shape an international order that is more respectful of animals’ interests.”

Read the full post here.

Theodor Schilling offers his analysis of the ECtHR’s recent judgment in the case regarding ritual slaughter bans in Belgium. Although noting the positive change in ethical thinking, the author stresses that prioritizing animal welfare over freedom of religion may come at a cost to the protection of minority rights, particularly the freedom to manifest religious beliefs. The author argues that the ECtHR’s judgment undermines religious freedom without providing clear justification. Additionally, he finds that the judgment’s deference to societal choices risks marginalizing minority rights and neglecting the importance of religious precepts for believers. Read the full post here.

More Posts

Ekaterina Antsygina and Joanna Mossop discuss the United States’ announcement of the outer limits of its extended continental shelf (ECS) and the reactions from Russia and China, questioning the US’s ability to claim an ECS without acceding to the United Nations Convention on the Law of the Sea (UNCLOS). The authors explore whether the US, as a non-party to UNCLOS, can submit data to the Commission on the Limits of the Continental Shelf (CLCS) for consideration and establish final and binding outer limits under Article 76(8). Additionally, they address the interconnection between Articles 76 and 82 of UNCLOS and propose recommendations for States Parties to UNCLOS in responding to the US’s ECS announcement and addressing the challenges arising from the application of Articles 76 and 82. Read the full post here.

Hosung Ahn explores the United Nations’ (UN) severe liquidity crisis in light of international law obligations. The author finds that the financial contributions owed by UN Member States are not merely political commitments but legal obligations under international law, specifically Article 17 of the UN Charter. The author argues that failure to meet these obligations has significant legal consequences and undermines the operational effectiveness of the United Nations, highlighting the urgent need for Member States to take their financial responsibilities seriously to avoid potential legal and functional repercussions for the organization. Read the full post here.

Matteo Tondini discusses the legal basis for military activities in the Red Sea and the Gulf of Aden, focusing on the European Union’s EUNAVFOR ASPIDES operation. The author analyzes whether these activities can be justified under Article 51 of the UN Charter or as counter-piracy operations, proposing a novel approach based on the concept of collective countermeasures. The author argues that this alternative interpretation provides a coherent legal framework for ASPIDES’ actions, offering insights into the ongoing legal debate surrounding military interventions in the region. Read the full post here.

See EJIL’s recent editorial note on third-party services promising publications in EJIL here.

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The European Journal of International Law has new advanced articles and advanced reviews are available to read online.

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