Two Weeks in Review, 6 – 19 November 2023

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Legal Dimensions of the Israel-Hamas Conflict

Classification 

Jérôme de Hemptinne offers his analysis of the classification of the Gaza conflict within the framework of international humanitarian law (IHL). The author systematically analyzes various scenarios to determine the most protective legal framework for vulnerable individuals and objects. The central argument posits that considering Palestine as a State and Gaza as an occupied territory offers optimal legal safeguards under both IHL and international criminal law. However, this necessitates categorizing Hamas militias as a distinct type of belligerent, as armed forces without ties to the Palestine State for targeting purposes on the one hand, and civilians for protection purposes on the other.

Read the full post here.

Self-defense 

Raphael Van Steenberghe critically examines the legal implications arising from the recognition or denial of Israel’s right to self-defense by other states amidst the ongoing  Gaza conflict. Advocating for the acknowledgment of this right, Van Steenberghe contends that it introduces an additional layer to the constraints of jus in bello. The author emphasizes that recognizing Israel’s right to self-defense inherently subjects its actions to assessments of proportionality and necessity. This recognition, imposes limitations on Israeli military operations in Gaza, particularly when jus in bello falls short of providing sufficient constraints.

Read the full post here.

In his post titled ‘Does Israel Have the Right to Defend Itself?‘ Marko Milanovic delves into various responses and their implications regarding Israel’s right to self-defense under Article 51 of the UN Charter. Milanovic challenges the notion that the answer to this question exists in a binary form, asserting that responses are contingent on underlying assumptions. He concludes that in situations where the law reaches its limits, ethics takes precedence over legal considerations. Milanovic posits that ethically, Israel can only justify taking innocent lives if it can demonstrate that such actions would ultimately save more lives in the future. Critically, Milanovic argues that the burden lies with Israel to show that, even if civilian casualties are not intentional, its actions are directed toward saving more lives in the long run. From Milanovic’s perspective, the moral question of Israel’s right to self-defense under Article 51 transcends the legal nuances and ethical considerations take precedence.

See the full post here.

Proportionality

In his post titled ‘In Defence of Doctrinal Assessments: Proportionality and the 31 October Attack on the Jabalia Refugee Camp,’ Brian L. Cox undertakes a meticulous examination of the process employed to determine the lawfulness of the October 31st attack. Cox identifies two prevailing types of conclusions, with one focusing on the human suffering caused by the attack, and the other asserting the attack’s unlawfulness. Emphasizing that the mere existence of horrifying effects does not ipso facto render the attack illegal, Cox concludes that personnel responsible for planning or conducting attacks during armed hostilities must adhere to international law as it doctrinally exists. He contends that external observers evaluating compliance with the Law of Armed Conflict (LOAC) after an attack, based on the often limited information available in the public domain, should be held to the same doctrinal standards.

Read the full analysis here.

Luigi Daniele discusses a growing trend among scholars specializing in the laws of armed conflict, which he characterizes as seeking to legitimize and validate actions that result in civilian casualties. He argues that this trend, as he terms it, fosters misconceptions, particularly in understanding the interplay between the principles of distinction and proportionality under customary International Humanitarian Law (IHL). Daniele critiques various analyses for disproportionately expanding the scope of proportionality at the expense of the principle of distinction, contributing to the inadequacy of IHL and international criminal law in curbing hostilities effectively. He urges academics to emphasize the indiscriminate nature of certain attacks, such as the bombing of the Jabalia refugee camp in Gaza and contends that justifying attacks resulting in extensive civilian harm as proportionate under IHL is untenable. As such, he finds that attacks resulting in extensive civilian harm cannot be justified as proportionate under IHL and warns against interpretations that might inadvertently support indiscriminate killing and destruction.

Read the full analysis here.

In his post titled ‘In Defence of Preliminary Assessments: Proportionality and the 31 October Attack on the Jabalia Refugee Camp,’ Marc Schack responds to a prior post by Andreea Manea. Schack engages with Manea on two key aspects: first, he scrutinizes the strength of the case presented, and second, he addresses the amount of information necessary for conducting preliminary assessments. By defending the validity and importance of preliminary assessments, Schack contributes to the ongoing discourse surrounding the October 31st attack on the Jabalia Refugee Camp.

Read the full post here.

Additional Posts

EU gender policy 

In their insightful exploration, Ina Opartyová and Justin Lindeboom scrutinize the gender-sensitive aspects of the European Union’s external trade policy. Recognizing gender equality as a central priority within the EU’s external policies and actions, the authors delineate the progress made by the EU in advancing a gender-sensitive trade agenda. Presenting three free trade agreements as illustrative examples, Opartyová and Lindeboom underscore the importance of incorporating enforceable gender equality provisions into trade agreements. They advocate for gender-sensitive monitoring of compliance and emphasize the necessity of taking gender equality aspects in sustainability impact assessments seriously. The authors contend that these measures are indispensable for the development and implementation of a fully gender-sensitive EU trade policy.

Read the full post here.

ICJ elections 

Andreas Zimmermann delves into the outcome of the recent triennial election for the International Court of Justice (ICJ). Zimmermann’s focus centers on the non-re-election of Russian judge Kirill Gevorgian, who also served as the Vice-President of the Court. Notably, Zimmermann highlights that this marks the second instance in the Court’s history where a national of a permanent member of the Security Council was not re-elected. The author raises probing questions regarding whether this event signifies a broader development within the ICJ.

Read the full analysis here

Trade and disputed territories

Zvenyslava Opeida explores the application of WTO law to disputed territories, focusing on questions arising from the annexation of Crimea and a recent antidumping investigation against Imports from China. Opeida finds that:

The de facto control approach to the application of WTO law is constructed based on the language of GATT Article XXVI:5, specifically designed to address the colonial past, and state practice predating the WTO. The case of the annexation of Crimea offers a chance to reassess the relevance of this logic for today. Similarly, this approach has so far been analyzed in the context of the right to trade with disputed territories thereby focusing on the main argument in favor of this approach: incorporating such territories into world trade would advance the objectives of the WTO. The ongoing anti-dumping investigation, however, has brought to light the potential risks of such an approach, as it could be used for derogating from essential obligations under WTO law, thereby posing a potential threat to the entire global trade system.

Read her full analysis here.

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