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If President Trump Ends the Iran Deal, Can He Trigger the Security Council Snapback?

Wednesday, September 20, 2017
by Jean Galbraith

by Jean Galbraith [Jean Galbraith is an Assistant Professor of Law at the University of Pennsylvania Law School] President Trump has reportedly made a decision about whether or not to end the Iran deal – although he won’t yet say what he’s decided.  The Iran deal, more formally known as the Joint Comprehensive Plan of […]

The Drafters Knew Best: Corporate Liability and the Alien Tort Statute

Thursday, September 14, 2017
by Heather Cohen

by Heather Cohen [Heather Cohen is a Legal & Policy Associate with the International Corporate Accountability Roundtable (ICAR), which harnesses the collective power of progressive organizations to push governments to create and enforce rules over corporations that promote human rights and reduce inequality.] Can corporations be held accountable in the United States for violations of […]

UK-Saudi Arabia Arms Trade before the High Court: Questions following the Judgment

Wednesday, September 13, 2017
by Riccardo Labianco

[Riccardo Labianco is a PhD candidate at SOAS, University of London. His research focuses on state-to-state military assistance in times of conflict.]

On 10th July 2017, the High Court of Justice (HCJ) delivered its decision regarding the choice of the Secretary of State for International Trade not to halt the transfers of arms between the UK and Saudi Arabia (SA). The Campaign Against Arms Trade (CAAT), the claimant, requested judicial review of that choice, in light of the violations of international humanitarian law (IHL) committed by SA in the conflict in Yemen which likely occurred through UK-manufactured arms and weapons. Eventually, the judges accepted the government’s arguments and dismissed the request for judicial review. This decision was based on the fact that the UK government was the only actor able to assess the absence of a clear risk of IHL violations that could be committed with the transferred arms, due to its inside knowledge of the Saudi administration and its engagement with it. As shown below, the absence of a clear risk of IHL violations must be assessed before authorising any arms export.

Two aspects of the judgment are analysed here. First, the HCJ’s interpretation of the “Consolidated Criteria for Arms Export”, a piece of EU legislation incorporated in the UK legal system. Second, the choice to consider the UK’s “privileged position” within the Saudi administration as an essential element for the lawfulness of the arms transfers.

Response from the EIC of the Journal of the History of International Law

Wednesday, September 6, 2017
by Kevin Jon Heller

by Kevin Jon Heller [The following is a response from Anne Peters, the Editor-in-Chief of the Journal of the History of International Law] Dear readers, The JHIL received this letter and had agreed towards the authors in writing to publish it in the JHIL as soon as possible. Publication in JHIL does not imply any […]

Letter to the Editors of the Journal of the History of International Law

Wednesday, September 6, 2017
by Kevin Jon Heller

[This letter was sent to the editors of the Journal of the History of International Law on 29 August 2017.]

Dear Editors,

We are writing to express our grave concern about the publication of an article entitled ‘The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention’ in the latest issue of the Journal of the History of International Law. We find the decision to publish this article strange to understand to the extent that it combines dubious anachronisms and legal framings, problematic application of legal doctrine, selective presentation of facts and quotations, and outright contradictions and falsehoods. Notably, it is difficult, if not outright impossible, to reconcile the different parts of the argument with each other as well as with the conclusions of the article. For even if one was to ignore issues of historical accuracy and legal argumentation and accept the author’s arguments, this does not support in any way the conclusion that ‘Jamestown was radically disproportionate to any violence committed by the English, before or after 1622’ (p. 48), or that ‘a sense of self-respect, or at least … a sense of self-preservation’ (ibid) was the core or the motive of settlers’ actions and attitudes post-1622. After all, the article repeatedly emphasises the distinction between (genocidal) intent and motive only to collapse the two when it comes to justifying the acts of English settlers. In other words, this is a piece of work that fails in relation to its own terms as well as in relation to general standards of academic argumentation and rigour.

Since the said article is of considerable length and there are significant problems on virtually every page, we will only focus on a limited number of issues while emphasising that our enumeration is not exhaustive. To begin with, it is notable that even though the author argues that the Powhatan targeted the settlers indiscriminately and without respect for the distinction between ‘combatants and non-combatants’ (p.1), he also goes to great lengths to argue that no armed conflict (or ‘war’ in his own words) was taking place anyway. In any event, the existence, or not, of an armed conflict is doctrinally irrelevant for the finding of the crime of genocide. A review process exhibiting minimal familiarity both with international humanitarian law and the law of genocide would have pointed out these argumentative discontinuities. We find it impossible to find an explanation of what brings together combatants, the absence of armed conflict and the potential perpetration of genocide, since legal doctrine does not. We suspect that the author’s intention to portray the Powhatan as barbarians who embarked on senseless violence out of the blue might shed light on the structure of the article to the extent that international law fails to do so.

Moreover, we are surprised that the peer review process did not challenge the fact that at least the first part of the article is grounded on the argument that no other ‘single massacre’ (p. 5) claimed so many lives as the events in Jamestown. Since the ‘ratio of deaths per incident’ is a criterion as such unknown to international law, and hardly defensible from a moral or political perspective, this is an argumentative move worthy of serious scrutiny. The fact that this arbitrary criterion is clearly linked to an effort to ignore, underplay and eventually justify the prolonged, systematic and (alas) mostly successful process of exterminating Native Americans, dispossessing them of their land, and destroying their society and culture, should have raised even more questions. Indeed, even though Bennett focuses on English settlers, he fails to situate the events within a broader historical context of empire and colonisation as a process that did not simply encompass occasional, unconnected outbreaks of mass violence, but was specifically premised on continuous expansionism to the detriment of the existing occupiers of the land that culminated in their dispossession. The word ‘empire’ does appear twice in the article, but only in order to describe the political relations between the Powhatan and other Native Americans (p. 14, p. 17). Even if one disagrees with our assessment of imperialism and colonisation as articulated above, it would still be difficult to contest the prima facie relevance of this historical context to the discussed topic...

Symposium on Occupation Law: The Writing the on the Wall 2.0: A Rejoinder

Thursday, August 31, 2017
by Aeyal Gross

by Aeyal Gross [Aeyal Gross is Professor of Law at the Tel-Aviv University Law School and Visiting Reader in Law at SOAS, University of London. In Fall 2017, he will be a Fernand Braudel Senior Fellow at the European University Institute. This post is the final post of the symposium on Professor Aeyal Gross’s book The Writing […]

Symposium on Occupation Law: Control and the Law of Occupation

Thursday, August 31, 2017
by Kristen Boon

by Kristen Boon One of the interesting observations Aeyal makes in his important new book The Writing on the Wall, is that new forms of control are radically challenging the law of occupation.   Traditionally, occupation has been understood as a question of fact:  territory will be considered occupied if there are “boots on the ground” […]

Symposium on Occupation Law: The Necessary Non-Normativity and Temporal Indeterminacy of Occupation Law

Wednesday, August 30, 2017
by Eugene Kontorovich

by Eugene Kontorovich [Eugene Kontorovich is a Professor at Northwestern University Pritzker School of Law. This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).] Prof. Gross’s excellent book The Writing on the Wall: Rethinking the International Law of Occupation presents a […]

Fitting a Square Peg into a Round Hole

Wednesday, August 30, 2017
by Diana Buttu

by Diana Buttu [Diana Buttu is a lawyer and activist who is currently a law fellow at the University of Windsor Law School.] This June, Israel marked 50 years of military occupation of the West Bank, Jerusalem and the Gaza Strip. Far from being a sombre affair, this anniversary was met with wide celebrations by […]

Of Fire and Fury: The Threat of Force and the Korean Missile Crisis

Wednesday, August 30, 2017
by Mohamed Helal

by Mohamed Helal [Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.]  Wars of Words and Tweets The recent escalation of tensions on the Korean Peninsula provides an opportunity to reflect on the prohibition on the threat of […]

Rethinking the Regulation of Occupation in International Law: A Review of Gross’ ‘The Writing on the Wall’

Tuesday, August 29, 2017
by Valentina Azarova

by Valentina Azarova [Valentina Azarova, Post-Doctoral Fellow, Center for Global Public Law, Koç University Law School, Istanbul; legal adviser, Global Legal Action Network (GLAN).] The Writing on the Wall is a valuable response to growing frustration with the inadequacies of the law of occupation in redressing contemporary realities of foreign territorial control. The book, informed […]

The Normative and Functional Approaches to Occupation: A Response to Aeyal Gross

Tuesday, August 29, 2017
by Eliav Lieblich

by Eliav Lieblich [Eliav Lieblich is Associate Professor at Buchmann Faculty of Law, Tel Aviv University.] Introduction Living up to its name, Aeyal Gross’s insightful new book engages critically with traditional assumptions of the law of occupation. As in his past work, Gross’s critique here is firmly rooted in traditions of legal realism, critical legal […]

Writing ‘The Writing on the Wall:’ Why and How to Rethink The Law of Occupation

Monday, August 28, 2017
by Aeyal Gross

by Aeyal Gross [Aeyal Gross is Professor of Law at the Tel Aviv University Law School. He is also Visiting Reader in Law at SOAS, University of London. In Fall 2017 he will be a Fernand Braudel Senior Fellow at the European University Institute]. When I started writing on the law of occupation about twelve […]

Symposium: Aeyal Gross’s “The Writing on the Wall”

Monday, August 28, 2017
by Kevin Jon Heller

by Kevin Jon Heller Over the next four days we will be featuring an online discussion of my SOAS collleague and TAU law professor Aeyal Gross‘s new book for Cambridge University Press, The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017). The book develops ideas that Aeyal discussed on Opinio Juris — in a […]

Events and Announcements: August 27, 2017

Sunday, August 27, 2017
by Jessica Dorsey

by Jessica Dorsey Call for Papers On 14 December 2017, the Asser Institute and the Research Group on “Constitutional Responses to Terrorism” within the International Association of Constitutional Law (IACL) will jointly organise an international conference on ‘Human Dignity and Human Security in Times of Terrorism: International (Human Rights) Law Challenges and Opportunities’. This conference, […]