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Last Year's List

Date Title Author Reference
***New***
May
An Overview of the Principle of Complementarity Kevin Jon Heller Opinio Juris,
24 May 2024
The author provides an overview of the Rome Statute's principle of complementarity. The principle has been consistently misrepresented by politicians and journalists since word first got out that the Prosecutor, Karim Khan KC, intended to seek arrest warrants in the Palestine situation not only for Hamas leaders but also for senior Israeli government officials. He provides four particularly striking – and sadly representative – examples of misrepresentation. The first is the infamous letter 12 Republican senators sent to the Prosecutor, threatening to sanction him, other ICC employees, and their families if he proceeded to apply for arrest warrants. The second is a tweet from Republican senator Lindsay Graham, who did not sign the Republican letter. The third is a statement by the US Secretary of State, Anthony Blinken; The fourth is an article in the Times of Israel written by Jeremy Sharon. The overview explains why the four quotes so fundamentally misrepresent the principle of complementarity. The letter from the senators reduces complementarity to whether a state is generally willing and able to investigate. But that isn't the issue. All that matters is whether Israel is willing and able to investigate the specific suspects wanted by the ICC and is actively conducting those investigations when it invokes complementarity. For the same reason, if the PTC rejected an admissibility challenge by Israel, that would in no way call into question "the legitimacy of Israel's laws, legal system, and democratic form of government." Those issues are irrelevant to the complementarity analysis. The letter from Sen. Graham is mistaken because complementarity does not require "the ICC to let the nation in question's legal system move first before any action is taken by the Court." Sec. Blinken's statement is incorrect for similar reasons: the OTP has no obligation to allow "the Israeli legal system a full and timely opportunity to proceed." Finally, with regard to the Sharon article in the Times of Israel, it is simply not the case that the PTC will decide admissibility "based on the fact that Israel has an independent judiciary and is capable of investigating the alleged crimes itself."
Summary extracted by Aspals

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***New***
May
Panel of Experts Publishes Report Supporting ICC Arrest Warrant Applications for Crimes in Israel and Palestine Amal Clooney and Marko Milanovic EJIL Talk
May 20, 2024
A Panel of Experts in International Law convened by the Prosecutor of the International Criminal Court, Karim Khan KC, today announced its conclusions. The Panel was established at the Prosecutor’s request in support of his investigation into the ‘Situation in the State of Palestine’, which covers international crimes committed either on the territory of Palestine or by a Palestinian national. The Panel’s mandate was to advise the Prosecutor on whether his applications for arrest warrants met the standard provided in Article 58 of the Rome Statute of the International Criminal Court. The Panel members unanimously endorsed the Prosecutor’s assessment that the Court had jurisdiction over the case and that there were ‘reasonable grounds to believe’ that individuals named in the arrest warrants — including senior leaders of Hamas and Israeli Prime Minister Benjamin Netanyahu — have committed war crimes or crimes against humanity within the jurisdiction of the Court.
Summary extracted by Aspals

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***New***
May
The War Crime Of Starvation – The Irony Of Grasping At Low Hanging Fruit Geoff Corn, Emanuela-Chiara Gillard Articles of War
May 15, 2024
Rumours surrounding possible International Criminal Court (ICC) arrest warrants in the Situation in the State of Palestine have raised several important legal, procedural and political questions. Without joining speculation of what the ICC Prosecutor might do, or entering into a discussion of compliance with international humanitarian law (IHL) during the current hostilities in Gaza, the authors want to react to one point relating to predictions of forthcoming charges, specifically, the likelihood the Prosecutor will pursue particular “low hanging fruit” crimes.
Summary extracted by Aspals

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April In Honour Of Yoram Dinstein – Superior Orders And The International Criminal Court: Custom Or Compromise? Charles Garraway [Articles of War]
April 19, 2024
Superior orders were always a matter of great importance to Professor Dinstein from his earliest years. He remained to the end a staunch defender of the “no defence” school, initiated by the Nuremberg Tribunal. This piece is based on research carried out for a debate with Professor Dinstein on Article 33 of the Rome Statute of the International Criminal Court (ICC), a debate which actually took place in Court 600 in Nuremberg, the historic site of the Nuremberg trials.
Summary extracted by Aspals

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April Hamas–Israel: TikTok And The Relevance Of The Cognitive Warfare Domain Sascha-Dominik Dov Bachmann The Defence Horizon Journal,
2024
As much as the current Hamas-Israel war occurs on the battlefield, it is being fought in the domain of cognitive warfare. The current conflict highlights the use of cognitive warfare – to influence public support for either side. In cognitive warfare, the human mind becomes the battlefield. The aim is to change what people think and how they think and act. Cognitive warfare as information warfare is what we see again in the current Hamas - Israel conflict: the bombing of the Al-Ahli Arab Hospital in Gaza and the question of attribution and its exploitation have shown the power of both influence operations and disinformation as key elements of cognitive warfare. The West is on a trajectory to lose its youth to such malicious foreign influence in the cognitive domain. This undermining of Western resilience will only benefit the new global order of authoritarian regimes and despotism, with the PRC and Russia being the two main geopolitical players. A comprehensive whole of government plus and society approach involving all stakeholders (both public and private) is needed to raise awareness and work towards both deterrence and resilience.
Summary extracted by Aspals

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April Hors De Combat: Clarifying The US Law Of War Manual Major Adam Reitz Articles of War
Apr 5, 2024
The US Army Judge Advocate General's Legal Center and School instructs on international protections for the wounded and sick, one of the many aspects of the Geneva Conventions emphasized to both seasoned and new military lawyers. One focus of instruction is to determine when a wounded soldier ought to be recognized as hors de combat ("out of the fight") and therefore, can no longer be made the object of attack. To that end, we expose judge advocates to the First Geneva Convention (GC I), Additional Protocol I to the Geneva Conventions (AP I), and the US Department of Defense (DoD) Law of War Manual. Within the Law of War Manual, judge advocates review a section on hors de combat which observes, "In order to receive protection as hors de combat, the person must be wholly disabled from fighting" (§ 5.9.4). Following this instruction, military lawyers are provided with the following facts.
An infantry soldier is advancing on an objective when an enemy bullet hits the soldier's thigh. The soldier drops their weapon, reaches into a first aid kit to dress their wounds, starts screaming for a medic, and yells, "I’m going to die!!"
Is this soldier out of the fight?
Summary extracted by Aspals

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March How to Pave the Way for Diplomacy to End the War in Ukraine Samuel Charap and Jeremy Shapiro Foreign Affairs
March 5, 2024
Ukraine and its Western backers have precious little common ground with Russia. Yet all the key players seem to agree on one critical issue: the war in Ukraine will end in negotiations. As Russian President Vladimir Putin told the conservative broadcaster Tucker Carlson in a recent interview: “We are willing to negotiate.” A spokesman for the U.S. National Security Council, while casting doubt on Putin's sincerity, retorted in a statement that “both we and President Zelensky have said numerous times that we believe this war will end through negotiations.” The absence of decisive battlefield outcomes over the past two years has made the alternative to a negotiated end (one side's absolute victory) seem like a fantasy.
Even if a deal is currently out of the question, all parties should take steps now to bring about the possibility of talks in the future. In the middle of a war, it is hard to know whether an adversary is genuinely ready to end the fighting or cynically talks of peace only to further the aims of war. The challenge of discerning an adversary's intentions is nearly impossible in the absence of dialogue. Therefore, it is necessary to open channels of communication so as to be in a position to take advantage of the opportunity to pursue peace when that opportunity comes.
Summary extracted by Aspals

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February Regulating Military Force Series - Justice And Accountability In The Era Of Modern Mercenarism Martin Faix, Marko Svicevic, Sean Watts Articles of War,
February 20, 2024
The twenty-first century has witnessed a visible trend and an inevitable proliferation of private military companies (PMC), entities that offer military skills and expertise in conflict-affected areas. The term PMC is often used interchangeably with references to private military and security companies (PMSC), defined by the UN Working Group on the use of mercenaries as any "corporate entity which provides on a compensatory basis military and/or security services by physical and/or legal entities." This post addresses how the emergence of PMCs obfuscates the legal distinction between PMCs and mercenaries, followed by their status under international humanitarian law (IHL). The focus subsequently shifts towards an analysis of individual criminal responsibility and State responsibility in order to identify ways to achieve justice and ensuring accountability in the era of corporate mercenaries.
Summary extracted by Aspals

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February Gaza and the End of the Rules-Based Order - What the Israel-Hamas War Means for the Future of Human Rights and International Law Agnes Callamard Foreign Affairs
February 15, 2024
Israel's campaign of retaliation against Hamas has been characterized by a pattern of war crimes and violations of international law. Israel's stated justification for its war in Gaza is the elimination of Hamas, which is responsible for the horrific crimes committed during its October 7 attack on Israel: 1,139 people, mostly Israeli civilians, killed; thousands more wounded; a yet unknown number of women and girls subjected to sexual violence; and 240 people taken hostage, many of whom are still held by Hamas. In response, Israel forcibly displaced Palestinians, imposing conditions that have left hundreds of thousands without basic human necessities. It has carried out indiscriminate, disproportionate, and direct attacks on civilians and "civilian objects," such as schools and hospitals. Some 28,000 Palestinians have been killed, the majority of them women and children. Vast sections of Gaza have been pulverized; a fifth of its infrastructure and most of its homes are now damaged or destroyed, leaving the region largely uninhabitable. Israel imposed a prolonged blockade, denying Palestinians adequate food, potable water, fuel, Internet access, shelter, and medical care: action amounting to collective punishment. It is detaining Gazans in inhumane and degrading conditions, and Israel admits that some of those detained have already died. Meanwhile, in the West Bank, violence against Palestinians by Israeli forces and settlers has increased markedly.
Summary extracted by Aspals

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February ICJ Delivers Preliminary Objections Judgment in the Ukraine v. Russia Genocide Case, Ukraine Loses on the Most Important Aspects Marko Milanovic EJIL Talk,
February 2, 2024
The International Court of Justice delivered its judgment on the preliminary objections raised by Russia on jurisdiction and admissibility in the genocide case that Ukraine had brought against it after the full-scale invasion in February 2022. Bottom line – Ukraine lost pretty badly. This case is different from all of the other genocide cases brought before the Court so far, including the most recent one, South Africa v. Israel. While in all other genocide cases the claim is that the respondent committed genocide, in Ukraine v. Russia the claim is that Russia falsely asserted that Ukraine committed genocide against Russians or Russian-speakers in Ukraine, and on that basis then proceeded to invade Ukraine. So this is a genocide case in reverse.
Summary extracted by Aspals

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January South Africa challenges Israel at the International Court of Justice Michelle Farrell and Jasmin Johurun Nessa [Liverpool University]
15 January 2024
On 29 December 2023, South Africa filed an application instituting proceedings against Israel before the International Court of Justice (ICJ). South Africa alleges that Israel's conduct in Gaza violates its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by committing genocide against Palestinians in Gaza, failing to prevent genocide, and failing to prevent or punish incitement to genocide.
Summary extracted by Aspals

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January The Mariupol Test: Analysing the Briefs of Third States Intervening in Ukraine and the Netherlands v. Russia Marko Milanovic EJIL Talk,
9 January 2024
The interstate case of Ukraine and the Netherlands v. Russia is currently pending on its merits before the Grand Chamber of the European Court of Human Rights. It is one of the most complex and politically momentous cases ever to be heard by the Court. Russia is no longer participating in the proceedings, and will not comply with any judgment rendered by the Court. This means that the immediate practical consequences of the judgment itself will be relatively limited, although I'm sure Ukraine will try to use it in various creative ways (for example, to justify the seizure of frozen Russian assets for any reparation that Ukraine is due, and the transfer of such assets by third states to Ukraine). The judgment will also have a symbolic, expressive impact. It may also bring some measure of satisfaction to the victims of the human rights violations at issue. But, perhaps most importantly, the judgment will provide the most authoritative statement by the Court on how the European Convention should apply extraterritorially and in armed conflict in future cases, those involving member states other than Ukraine. In other words, the import of this case is far from limited to the hostilities in Ukraine alone.
Summary extracted by Aspals

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2024 Civilian Harm and Military Legitimacy in War Benjamin Krick, Jonathan Petkun, Mara Redlich Revkin SSRN
November 14, 2023
The legitimacy of armed forces in the eyes of civilians is increasingly recognized as crucial not only for battlefield effectiveness but also for conflict resolution and peacebuilding. However, the micro-determinants of "military legitimacy" are poorly understood. We argue that perceptions of military legitimacy are shaped by two key dimensions of warfare: just cause and just conduct. Leveraging naturally occurring variation during one of the most deadly urban battles in recent history—the multinational campaign to defeat the Islamic State in Mosul, Iraq—we evaluate our theory with a mixed-methods design combining original survey data, satellite imagery, and interviews. Civilians living in neighborhoods where armed forces were less careful to protect civilians view those forces as less legitimate than civilians elsewhere. Surprisingly, these results persist after conditioning for personal experiences with harm, suggesting that perceptions are influenced not only by victimization—consistent with previous studies—but also by beliefs about the morality of armed forces' conduct and the cause for which they are fighting.
Summary by Authors

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