A “Democratic Exception” to ICC Jurisdiction
On 21 November 2024, the International Criminal Court issued arrest warrants for the Israeli Prime Minister and the former Minister of Defence, for alleged crimes against humanity and war crimes in the ongoing Israel-Gaza War. Equally contentious was the response of leading Western states – including Germany and France – who have questioned or openly rejected treaty obligations to enforce the warrants. This is a conspicuously fraught position for countries who previously welcomed 2023 ICC arrest warrants for Russian President Vladimir Putin in legally identical circumstances.
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Under Guise of War
The Knesset’s legislative work since October 2023 has included several legislative initiatives that may be creating a framework for furthering systemic discrimination against Arab Israelis. These new laws could pose a dangerous new precedent in Israel, stripping the right to equality and human dignity of their meaning and threatening the already fragile state of democracy as we know it.
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Who Let the Bots Out
As artificial intelligence revolutionizes modern warfare, systems like Israel’s Lavender and Ukraine’s Clearview AI are transforming combat with precision and efficiency. This advancement has sparked an urgent debate on the responsible use and governance of AI in military, with 57 countries signing the Political Declaration on AI’s military applications, urging adherence to international law. Central to this is the accountability – who is responsible when AI systems violate laws? This blog post argues that state responsibility for AI violations remains viable within existing legal frameworks.
Continue reading >>The Silence of the Israeli Supreme Court Judges
The arrest warrants by the ICC for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for alleged war crimes and crimes against humanity are a red card for the Israeli legal system indicating grave doubts whether the Israeli legal system fulfills the complementarity requirement. Paradoxically, an indictment on the Israeli justice system arrives after the Israeli Supreme Court has recently fortified its position. Yet, the more the Court expanded its reach into the political arena, the less it could fulfill its core role of defending basic human rights.
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Deporting the Enemy Within
Two weeks ago, the Israeli Knesset passed a law that grants the Minister of the Interior powers to deport family members of terrorists, including Israeli citizens. The logic of this law, its instrumentalization of legitimate security concerns to not just deny the rights and membership status of minority groups but attack the foundations of a constitutional system, is not unique to contemporary Israeli politics. As such, this logic needs confronting and refuting, and this law presents an important opportunity to do so.
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Farewell to the Rules-Based Order
As political analysts debate the reasons for Trump’s victory, one contributing factor is surely the utter failure of Biden’s Gaza policies. As the US has continued to fund an Israeli war of annihilation against Gaza, the democratic ticket became a hard sell for many who care about Palestinians. Yet, Gaza has also triggered a veritable renaissance of international litigation. With Gaza destroyed and Trump in the White House, this tension may have reached a terminal point. And yet, I argue, the ghost of a rule-based order lingers in our political imagination despite its inability to shape outcomes.
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Tackling Israel’s Interference with the International Criminal Court
On 8 October 2024, The Guardian reported that a criminal complaint had been filed in the Netherlands in connection with the shocking (yet unsurprising) revelations published by The Guardian, +972 Magazine, and Local Call on 28 May concerning hostile state activities targeting the International Criminal Court (ICC). The criminal complaint is both timely and viable and should lead to the expeditious opening of an investigation by the Dutch prosecution service. The political response by the Dutch and other governments of ICC States so far is insufficient to address the problem of interference with the ICC investigation in the Situation in the State of Palestine.
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Apartheid or Systemic Discrimination?
This contribution argues that, reading between the lines, the expression “systemic discrimination”, which the Court referred to in para. 223 of the Advisory Opinion, was used as a synonym for “apartheid”, even though the Court did not link this description to a breach of Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, but there does not appear to be any substantial difference between apartheid and systemic discrimination. This is because the word systemic is associated with crimes against humanity which is how apartheid is defined as a crime in international law.
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The ICJ Advisory Opinion and Israeli Law
This post examines the relationship between the Advisory Opintion and Israeli law with respect to the duty to distinguish between Israel and the OPT. While the Opinion requires States to distinguish between Israel and the OPT in their dealings with Israel, and to omit acts that may strengthen Israel’s hold of the Territories, calls for such distinction are a civil tort under Israeli law, and those making them can be denied entry to Israel. As a result, Israelis are unlikely to support the Opinion. This will contribute to the growing gap between the international discourse and the domestic discourse in Israel with respect to the OPT.
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The Findings of the ICJ Advisory Opinion on the Oslo Accords and the Amici Curiae Proceedings before the ICC in the Situation of Palestine
This article focuses on the legal findings of the ICJ concerning the Oslo II Accord, and argues in favour of its relevance in deciding the jurisdictional question raised by the UK before the International Criminal Court (ICC). It also addresses whether invoking this question through a procedure of an amicus curiae during the warrant of arrest stage fits neatly within the ICC’s procedural regime, and it concludes that it does not.
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Non-Recognition and Non-Assistance
The International Court of Justice (ICJ) not only made it crystal clear that Israeli occupation is illegal in every respect – by itself a challenge for Western foreign offices as they face reproaches for double standards. The Court also added a number of paragraphs detailing the legal consequences of the Advisory Opinion for UN Member States.
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The Obligation of Non-recognition, Occupation and the OPT Advisory Opinion
In the OPT Advisory Opinion, the ICJ considered that Israel’s abuse of its position as an Occupying Power, through de jure and de facto annexation of the Occupied Palestinian Territory (OPT) and continued frustration of the right of the Palestinian people to self-determination, renders Israel’s presence in the OPT unlawful. In determining the legal consequences of this illegal presence, the Court held by a vote of 12:3, that all States are under an obligation “not to recognize as legal the situation arising from the unlawful presence of the State Israel in the Occupied Palestinian Territory”. This holding was not accompanied by any concretization in either the Advisory Opinion or any of the many declarations and separate opinions attached to it.
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Limiting ‘Security’ as a Justification in the ICJ’s Advisory Opinion
While international law accepts that States may employ otherwise prohibited actions in exceptional circumstances and within certain constraints, the Advisory Opinion firmly affirms that security cannot justify illegal actions such as annexation or prolonged occupation. The rights of the Palestinian people, including their right to self-determination, cannot be compromised by security claims. The Advisory Opinion serves to limit State practices predicated upon security when those practices violate essential rights and when the security claim is based upon an illegal situation created by the very State which invokes security concerns.
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Security Considerations, the Duty to End Belligerent Occupations and the ICJ Advisory Opinion on Israeli practices and policies in the Occupied Palestinian Territory
This contribution discusses three possible rationales for the Court’s rejection of the relevance of Israel’s security concerns: Lack of proof of serious and legitimate security concerns by Israel, the insufficiency of broad security concerns to justify the continued use of force, and the insufficiency of broad security concerns to deny realization of Palestinian self-determination. As long as international law doctrine on the duty to end a belligerent occupation despite the prevalence of serious security concerns remains contested, and as long as security conditions in the region remain extremely unstable, it is unlikely that a withdrawal will be deemed practicable
Continue reading >>The ICJ’s Treatment of Questions of Occupation in Gaza
The ICJ’s treatment of the state of occupation in Gaza is questionable. While it rightly accepted the functional approach to occupation, I doubt whether Israel was indeed capable of exercising its authority in Gaza sufficiently for its occupation to be found as having continued post-2005. The Court should have relied on Israel’s continued exercise of administrative authority vis-a-vis Gaza residents to find the existence of a state of occupation.
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The Functional Approach as Lex Lata
The ICJ has de facto adopted the functional approach to occupation with regard to Gaza. The Opinion is thus a critical point in the development of the law of occupation, in that it transcends a binary approach to the question of the existence of occupation, in favour of a more nuanced approach that enables holding that a territory is occupied, but not in an “all or nothing” way. More generally, the Opinion as rejects a more restrictive approach to the question of whether occupation exists in a territory or not in favour of a more flexible approach.
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The Advisory Opinion on Israel’s Policies and Practices in the Occupied Palestinian Territory
This post analyses the separation between jus ad bellum / in bello as arising from the Advisory Opinion of the ICJ. This separation was challenged by many States appearing before the Court, some of which implied that Israel’s policies and practices, as violations of jus in bello, rendered the occupation unlawful under jus ad bellum. The Court ultimately reaffirmed the separation with a twofold argument, namely qualifying the ‘legality of the occupation’ as a jus ad bellum question, and framing Israel’s policies and practices (prolonged occupation, annexation, and settlement policy) as violations of jus ad bellum.
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The Legality of the Occupation and the Problem of Double Effect
The conflict between Israel and Palestine, or more accurately, between the two Peoples, has persisted for over a century. A tragic reminder of the unbearable costs of this conflict is the deadly October 7 attack by Hamas on Israel, and the ensuing war, which has led to horrific consequences, with thousands of Israelis and Palestinians killed, many severely injured, and extensive damage to the civilian infrastructure in the Gaza Strip. In these circumstances, an important question arises: what role should international law and international tribunals play in mitigating the grave harm to all those involved in the conflict?
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