Two Weeks in Review, 25 September – 8 October 2023

Taha Almasri undertakes an examination of the legal lacuna in the International Criminal Court jurisprudence on jurisdiction for the transboundary crime against humanity of deportation. In particular, whether the deportation of victims across the high seas into the territory of a Rome Statute state party falls within the ICC’s territorial jurisdiction. Almasri examines the contention that deportation is completed on the high seas and outlines why the special nature of the maritime environment supports construing deportation as a crime that continues into the territorial waters of the receiving state.

See the full post here.

Juliette McIntyre, Kyra Wigard, and Ori Pomson provide a recap of the preliminary objections hearings in Ukraine v. Russia. The authors find that:

‘The fact that 32 States chose to intervene in the jurisdiction phase perhaps indicates that the Court accepting the case was never a certainty. Or it perhaps reveals the opposite: as Germany pointed out, 1 in 5 State Parties agree on the interpretation of Article IX and the Court’s power to proceed to the merits. Either way, this case continues to set new records at the Court and no doubt the preliminary objections judgment will provide yet another landmark moment. As the case develops, there are lessons to be learned both for the Court in dealing with such a large number of intervenors and for intervenors in considering strategies that are most well-suited for judicial proceedings at the ICJ. Finally, while we have expressed pessimism regarding certain aspects of Ukraine’s case on jurisdiction, even if we are proven correct, this would not necessarily mark the end of the road for this case. Ukraine’s so-called ‘reverse compliance request’ can survive a finding that there was no existing dispute regarding Russia’s alleged violation of the Convention or that the latter allegation does not fall within the compromissory clause.’

Read their post here.

Tilman Rodenhäuser and Mauro Vignati explore the obligations of civilian hackers operating in the context of armed conflicts. The authors explain why this growing trend must be of concern to States and societies. Subsequently, they present eight international humanitarian law-based rules that all hackers who carry out operations in the context of an armed conflict must comply with, and recall States’ responsibility to restrain them.

See their analysis here.

In his post titled ‘A Contentious Toll,’ Manuel Casas considers Argentina’s decision late last year to impose a toll on cargo shipped through the Paraná-Paraguay Watercourse. The decision resulted in an ongoing dispute between Argentina and Paraguay, a state that is heavily reliant on the watercourse. Casas contends that:

‘If the dispute is ultimately submitted to an arbitral tribunal (which Paraguay has already threatened), it is likely that there will be an interim measures phase. If the proceedings end up being protracted, a provisional measures order suspending the toll (or allowing it to stand) would also likely be relevant in the continuing diplomatic negotiations regarding the toll. 

Overall, however, and despite some diplomatic pressure, Argentina may have some incentives to perhaps negotiate on price—but not to completely yield in the application of the toll charges.’

See the full post here.

Lawrence Hill-Cawthorne examines the responsibility of Syria under the Convention Against Torture. This question will be the center of the upcoming pleadings before the International Court of Justice by the parties in relation to Canada and the Netherlands’ joint Application against Syria, alleging violations of the Convention Against Torture in the ongoing civil war in Syria. In the post, the author considers the broader context of armed conflict, the scope of obligations under the Convention Against Torture that is asserted by the applicants, and the particular relief sought.

Read the full post here.

This week, a Joint Open Letter to the Editorial Board of EJIL: Talk! was published along with a response by the Board. The letter, written by scholars and practitioners, expresses the undersigned’s disappointment regarding the publication of a symposium based on papers presented at an Israeli Defense Forces MAG Conference.

See the letter here and the response here.

EJIL: The Podcast! Episode 21: The ICC’s Other Africa Bias? is now out. In this episode, EJIL editor-in-chief Sarah Nouwen discusses with Stewart Manley and Pardis M. Tehrani the ICC bias that disadvantages Africa. Listen to the podcast here: 

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