University of Pennsylvania Journal of International Law, Vol. 45(1), 2023
States are often enriched by the flow to their coffers of wealth accrued to private actors throug... more States are often enriched by the flow to their coffers of wealth accrued to private actors through internationally harmful conduct such as overfishing, acts causing transboundary air or marine pollution, cyber attacks, and international corruption. A portion of the wealth acquired by private actors through such conduct is often passed on to the state through its tax system. This article argues that this form of income to the state triggers the application of the international norm against unjust enrichment. Under the international law of unjust enrichment, such income could give rise to a duty of restitution owed by the enriched state to any state harmed by the conduct of the private actors. This article argues that the purposes of the norm against unjust enrichment – promoting individual justice between parties and removing incentives for wrongful conduct – require its application in international law to the indirect enrichment of a state as a result of internationally harmful conduct by its taxpayers. Such application of the international norm against unjust enrichment is particularly important because of (a) evidentiary difficulties in the international arena, which significantly erode the efficacy of the remedial regime that is based on the rules concerning the responsibility of states for internationally wrongful conduct; (b) the unavailability in international law of a cause of action against private actors engaging in internationally harmful conduct; and (c) the limited capacity of a state harmed by the conduct to recover from such actors under its domestic legal system. The article suggests that the purview of the international norm against unjust enrichment extends to situations of an indirect link between the loss of the claimant state and the gain of the enriched state, provided that such link is sufficiently close.
The Rome Statute of the International Criminal Court completely divests the Court of the power to... more The Rome Statute of the International Criminal Court completely divests the Court of the power to compel a state to disclose evidence in its possession if the state opposes such disclosure on grounds of national security. If a state refuses to disclose information essential to the adjudication of a case on national security grounds, the ICC may settle fair trial concerns either by drawing factual inferences favourable to the defendant or by staying the proceedings. I argue, however, that in practice such judicial powers do not provide a sufficient guarantee of a fair trial. I propose to allay fair trial concerns arising from the refusal of states to allow the ICC access to evidence in their possession by introducing a reform in the exercise of the ICC's prosecutorial discretion. According to my proposal, the requirement of a fair trial, which entails the disclosure of material essential for the defence, would be incorporated into the criteria that guide the ICC Prosecutor in the selection of cases for prosecution. Although the present article focuses on the issue of national security evidence, the reach of the proposed reform extends to all cases of state refusal to allow the ICC access to evidence, regardless of the grounds for refusal.
University of Pennsylvania Journal of International Law, Vol. 42(1), p. 1 , 2020
This Article explores a path in international law for recognizing the right of the Palestinian po... more This Article explores a path in international law for recognizing the right of the Palestinian population of the West Bank to Israeli citizenship, based on the annexationist policies of Israel in the West Bank. The scope of the obligation of states to confer citizenship on individuals is determined by international human rights law (“IHRL”). The Article shows that a plausible reading of the IHRL treaty obligations of Israel suggests that it has a duty to grant citizenship to individuals born in its territory, who would otherwise be stateless, and that most West Bank Palestinians are currently considered stateless. Therefore, if a given area of the West Bank is considered to have become part of Israel, most Palestinians subsequently born in such territory are plausibly entitled to receive Israeli citizenship as a matter of treaty law. There also seems to be a broad, emerging right under customary international law of the residents of a territory acquired by a state to receive the citizenship of that state, regardless of whether or not they would otherwise be considered stateless. The West Bank is a territory under Israeli occupation, and annexation by an occupier of any part of the occupied territory violates international law. The Article argues, however, that the illegal annexation by Israel of an occupied territory would make that territory a part of Israel for the limited purpose of the right to citizenship, as an exception to the principle that illegal annexation is null and void. Hence, the existing and emerging IHRL obligations of Israel to grant citizenship to residents of territory acquired by Israel extend to Palestinians residing in areas of the West Bank illegally annexed by Israel. The Article argues further that, for the purpose of applying the norms of IHRL that concern the right to citizenship, the definition of annexation extends beyond formal annexation and encompasses de facto annexation as well. Annexation of occupied territory results from the occupier’s display of sovereignty in that territory, among other things, by settling its own population in the occupied territory. In view of the current spread of Israeli settlements across the West Bank, unless Israel removes, within a reasonable time period, many of these settlements, the entire territory of the West Bank may be considered to have been annexed, and the entire Palestinian population of the West Bank would have a strong claim to Israeli citizenship under an emerging norm of international law.
What is the scope of the Palestinian entitlement to the territory of the West Bank, currently occ... more What is the scope of the Palestinian entitlement to the territory of the West Bank, currently occupied by Israel? The right of the Palestinian people to self-determination and its derivative, a Palestinian right to statehood, have been widely acknowledged. But does the right to self-determination determine the borders of the Palestinian state, giving rise to a Palestinian territorial entitlement to the whole of the West Bank? The article answers this question in the negative, demonstrating that neither state practice nor the jurisprudence of the International Court of Justice support a rule of customary international law that assigns self-determination considerations a role in the demarcation of international boundaries. The article also examines the role of international recognition of title to territory in the resolution of the territorial dispute between Israel and the Palestinians. To what extent does international law empower the international community to resolve a territorial dispute over the objection of an affected party, by pronouncing a collective position that reflects near-consensus? The article concludes that a collective recognition by the international community of Palestinian title to territories currently occupied by Israel would have neither a probative value nor a constitutive effect under international law, unless such international position takes the form of U.N. Security Council action in the exercise of its binding powers under Chapter VII of the U.N. Charter. The article further demonstrates that international law does not support an Israeli claim to sovereignty over the occupied West Bank. This inquiry focuses on a critical examination of a theory recently advanced in legal literature, which predicates such a claim on the doctrine of uti possidetis juris. Finally, the article considers the consequences of the absence of a norm of international law governing the demarcation of the border between Israel and the Palestinians.
Indeterminacy in the law of war exacts a severe humanitarian toll, and it is not likely to be red... more Indeterminacy in the law of war exacts a severe humanitarian toll, and it is not likely to be reduced by the conclusion of additional treaties. The present article argues that the adverse consequences of this indeterminacy may be mitigated through a U.N. Security Council action establishing an international advisory regime and using the broad powers of the Security Council to provide incentives for states to subscribe to this regime voluntarily. States subscribing to the advisory regime (“operating states”) would undertake to follow the interpretation of the law of war laid out by international legal advisors. The advisory regime would represent a bargain between the Security Council and operating states, which would grant protection for states against the costs that typically attach to non-compliance with the law of war, to the extent that the state followed the legal guidance provided by the international advisors. This article demonstrates that the powers of the Security Council under the U.N. Charter accommodate such a bargain. The desirability of the proposed advisory regime from a humanitarian perspective, and its appeal for states, depend on the interpretive approach to the law of war that would guide the international advisors. This article identifies an interpretive approach to the law of war that would make the proposed advisory regime the best bargain from a humanitarian perspective that is politically feasible. Such an interpretive approach marks the farthest a state would be willing to stray from the most permissive interpretive approach to the law of war made possible by the indeterminacy of the law to secure the benefits that the advisory regime offers. Use of such an interpretive approach would be secured through the selection of international advisors, tailored to ensure that they are inclined to embrace the desired interpretive approach.
The George Washington International Law Review, 2006
TAKING WAR SERIOUSLY: APPLYING THE LAW OF WAR TO HOSTILITIES WITHIN AN OCCUPIED TERRITORY Ariel Z... more TAKING WAR SERIOUSLY: APPLYING THE LAW OF WAR TO HOSTILITIES WITHIN AN OCCUPIED TERRITORY Ariel Zemach* Abstract This Article ... Michael Walzer thus observes that where the forces of an occupant are attacked by guerrilla fighters, we must imagine a ...
The Rome Statute of the International Criminal Court prohibits an Occupying Power from settling i... more The Rome Statute of the International Criminal Court prohibits an Occupying Power from settling its own population in the territory it occupies. This Comment argues that the settlement prohibition violates basic principles of fairness in criminal law, which require confining the reach of international criminal law to punishing violations of fundamental, self-evident moral norms. The settlement prohibition does not fulfill the moral gravity requirement: The prohibition does not reflect the international community’s moral judgment. Further, an objective moral judgment in this context is often unavailable.
THE LIMITS OF INTERNATIONAL CRIMINAL LAW: HOUSE DEMOLITIONS IN AN OCCUPIED TERRITORY Ariel Zemach... more THE LIMITS OF INTERNATIONAL CRIMINAL LAW: HOUSE DEMOLITIONS IN AN OCCUPIED TERRITORY Ariel Zemach' I. Introduction The values of liberty, fairness and democracy underlie Western criminal law systems.' Each of these values challenges the International ...
TAKING WAR SERIOUSLY: APPLYING THE LAW OF WAR TO HOSTILITIES WITHIN AN OCCUPIED TERRITORY Ariel Z... more TAKING WAR SERIOUSLY: APPLYING THE LAW OF WAR TO HOSTILITIES WITHIN AN OCCUPIED TERRITORY Ariel Zemach* Abstract This Article ... Michael Walzer thus observes that where the forces of an occupant are attacked by guerrilla fighters, we must imagine a ...
The prevailing view in the legal literature on the fight against terrorism is that the current st... more The prevailing view in the legal literature on the fight against terrorism is that the current structure of international law–the law enforcement/armed conflict dichotomy–is ill-suited to address large-scale hostilities between a state and a terrorist organization. The law enforcement model is governed by international human rights law. The armed conflict model is primarily governed by the law of war. Human rights law, it is argued, allows states too little in their struggle against terrorist organizations while the law of war allows them too much. Hence, many advocate the development of a new body of law, a normative middle ground between the law of war and human rights law, applicable to armed conflicts between a state and a terrorist entity. According to this approach, large-scale hostilities between a state and a terrorist organization are considered armed conflict. Yet the application of the law of war to such conflicts is qualified by the principles of international human rights law. The interaction between the law of war and human rights law produces a new, distinct set of norms. The permission to use lethal force afforded to a state under these norms is broader than the one afforded to it under human rights law yet narrower than the one available to the state under the law of war. This article rejects the normative middle ground approach and defends the traditional law enforcement/armed conflict dichotomy. It advances a very high threshold for the existence of armed conflict, arguing that only hostilities that border on full-scale war amount to an armed conflict. Within the sphere of armed conflict, properly constructed, the law of war does not allow states too much. On the contrary, it offers the best bargain from a humanitarian perspective, and therefore its application should not be qualified. This article further argues that grave, large-scale violence that falls short of a full-scale war is governed exclusively by human rights law. This argument is tenable provided that human rights law presents realistic standards of conduct for states in the face of such violence. The author argues that it does. The liberties to exercise lethal force required in order to contain grave, large-scale violence are, and should be, available to a state under human rights law. In the course of this inquiry, the author addresses two questions concerning the scope of permission to kill suspected terrorists afforded to a state under human rights law: 1. When is the threat sufficiently proximate to justify the use of lethal force against the suspected terrorist? 2. Can a state engage in counter-terrorism operations that are likely to result in the unintentional killing of innocent persons?
This Article concerns the relationship between the doctrine of universal jurisdiction and the pri... more This Article concerns the relationship between the doctrine of universal jurisdiction and the principle of equality before the law. While inequality before the law always presents a challenge to the legitimacy of a criminal justice system, it has an especially devastating effect on universal jurisdiction's claim to legitimacy. At the same time, the exercise of universal jurisdiction lends itself to discrimination and arbitrariness far more readily than regular domestic prosecutions. This Article proposes a reform in the international law of universal jurisdiction that would ameliorate, as far as possible, the problem of inequality before the law in the exercise of universal jurisdiction. This reform introduces limitations on the liberty of states to " choose their battles " in the enforcement of international criminal law. The proposed reform assigns a pivotal role to the International Criminal Court (" ICC "). It sets forth a mechanism by which the ICC would designate particular states to exercise universal jurisdiction over crimes relating to a particular situation. Such designation would be a precondition for a state's liberty to exercise universal jurisdiction. The legal regime advocated here would thus replace the existing norm of international law that allows any state to exercise universal jurisdiction over core international crimes. This Article demonstrates that the proposed designation mechanism would constitute, in and of itself, a substantial guarantee of equality before the law in the exercise of universal jurisdiction. This Article then proceeds to propose prosecutorial guidelines that, under the proposed reform, a state would be required to apply in its exercise of universal jurisdiction. Finally, it sets forth a mechanism that would allow the ICC Prosecutor to monitor the compatibility of a state's exercise of universal jurisdiction with the principle of equality before the law. This international oversight mechanism is tailored with a view to minimizing, as far as possible, both sovereignty and economic costs for the state exercising universal jurisdiction. Far from limiting the reach of universal jurisdiction, the proposed reform would enhance the fight against impunity by diffusing current objections to the exercise of universal jurisdiction in absentia, thereby facilitating the assertion of such jurisdiction by states.
It is widely agreed that the settlement by Israel of its own nationals in the occupied Palestinia... more It is widely agreed that the settlement by Israel of its own nationals in the occupied Palestinian territories is illegal under international law. This article examines whether international law nevertheless protects the interest of individual settlers in non-repatriation. The author argues that international human rights law does not prohibit the repatriation of Israeli settlers. No provision of an international human rights treaty brings the non-repatriation plea of Israeli settlers within the realm of a protected human right. Even if it were possible to point to such a provision, the repatriation of Israeli settlers would probably be permitted under the balancing of interest regime that generally prevails in international human rights law. The article proceeds to examine the protection granted to illegally implanted settlers under the rules of customary international law that determine the legal consequences of state conduct that violates international law ("State Responsibility Rules"). State Responsibility Rules generally require a state that violated international law to eliminate the consequences of such violation, but the Rules may exempt the violating state from this obligation in view of the interests of individuals. The article shows that examining whether international human rights law prohibits the repatriation of illegally implanted settlers is fundamentally different from examining whether State Responsibility Rules exempt the occupant from carrying out repatriation. The interests of individual settlers may attain sufficient legal significance to support an exemption for an occupant from its duty under State Responsibility Rules to eliminate the consequences of its illegal settlement activity (i.e., the duty to repatriate the settlers) even in the absence of a human rights law prohibition against repatriation. Such an exemption does not depend on a robust balancing-of-interests analysis of the type that prevails in international human rights law. Rather, State Responsibility Rules seem to exempt an occupant from the obligation to repatriate illegally implanted settlers whenever the imposition of such obligation would result in the forcible eviction of a large number of individuals. The author argues that a case for such an exemption has emerged with regard to the settlers implanted by Israel in the occupied Palestinian territories. The article maintains further that the absence of a duty to repatriate the settlers allows for a strong argument in favor of including the interest in non-repatriation within the sphere of interests that Israel may legitimately promote in negotiating the end of occupation.
Illegal occupation gives rise to a duty of the occupant to withdraw from the occupied territory i... more Illegal occupation gives rise to a duty of the occupant to withdraw from the occupied territory immediately and unconditionally. International law has long recognized the illegality of occupation that results from an unlawful use of force by the occupying state. An emerging approach among international lawyers holds that occupation resulting from a lawful use of force by a state, in self-defense, may also become illegal. Proponents of this approach link the illegality of the occupation to the occupant's violation of the prohibition on the use of force or of the right of peoples to self-determination. These violations result from the occupant's policies which amount to de facto annexation of the occupied territory, manifested in refusal to engage in good-faith negotiations to end the occupation or in actions aimed at perpetuating the occupation (e.g., enabling the settlement of the occupant's citizens in the occupied territory). Arguments that such conduct renders the occupation illegal have largely focused on the occupation of Arab territories by Israel. This article argues that the purview of the notion of illegal occupation in international law does not extend to occupation resulting from the lawful use of force by a state in self-defense ("lawfully created occupation"). The article reviews the various theories presented in support of such an extension, but shows that state practice does not support the existence of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal. The author subscribes to the view that a policy of de facto annexation pursued by an occupant violates the right to self-determination, and possibly the prohibition on the use of force. Such violation leads to legal consequences, but these do not include the illegality of occupation. This article examines the rules of international law that determine the legal consequences of state conduct that violates international law, and shows that these rules do not accommodate an extension of the notion of illegal occupation to lawfully created occupation. The article proceeds to argue that the introduction of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal is inadvisable because such a norm would be full of uncertainty.
University of Pennsylvania Journal of International Law, Vol. 45(1), 2023
States are often enriched by the flow to their coffers of wealth accrued to private actors throug... more States are often enriched by the flow to their coffers of wealth accrued to private actors through internationally harmful conduct such as overfishing, acts causing transboundary air or marine pollution, cyber attacks, and international corruption. A portion of the wealth acquired by private actors through such conduct is often passed on to the state through its tax system. This article argues that this form of income to the state triggers the application of the international norm against unjust enrichment. Under the international law of unjust enrichment, such income could give rise to a duty of restitution owed by the enriched state to any state harmed by the conduct of the private actors. This article argues that the purposes of the norm against unjust enrichment – promoting individual justice between parties and removing incentives for wrongful conduct – require its application in international law to the indirect enrichment of a state as a result of internationally harmful conduct by its taxpayers. Such application of the international norm against unjust enrichment is particularly important because of (a) evidentiary difficulties in the international arena, which significantly erode the efficacy of the remedial regime that is based on the rules concerning the responsibility of states for internationally wrongful conduct; (b) the unavailability in international law of a cause of action against private actors engaging in internationally harmful conduct; and (c) the limited capacity of a state harmed by the conduct to recover from such actors under its domestic legal system. The article suggests that the purview of the international norm against unjust enrichment extends to situations of an indirect link between the loss of the claimant state and the gain of the enriched state, provided that such link is sufficiently close.
The Rome Statute of the International Criminal Court completely divests the Court of the power to... more The Rome Statute of the International Criminal Court completely divests the Court of the power to compel a state to disclose evidence in its possession if the state opposes such disclosure on grounds of national security. If a state refuses to disclose information essential to the adjudication of a case on national security grounds, the ICC may settle fair trial concerns either by drawing factual inferences favourable to the defendant or by staying the proceedings. I argue, however, that in practice such judicial powers do not provide a sufficient guarantee of a fair trial. I propose to allay fair trial concerns arising from the refusal of states to allow the ICC access to evidence in their possession by introducing a reform in the exercise of the ICC's prosecutorial discretion. According to my proposal, the requirement of a fair trial, which entails the disclosure of material essential for the defence, would be incorporated into the criteria that guide the ICC Prosecutor in the selection of cases for prosecution. Although the present article focuses on the issue of national security evidence, the reach of the proposed reform extends to all cases of state refusal to allow the ICC access to evidence, regardless of the grounds for refusal.
University of Pennsylvania Journal of International Law, Vol. 42(1), p. 1 , 2020
This Article explores a path in international law for recognizing the right of the Palestinian po... more This Article explores a path in international law for recognizing the right of the Palestinian population of the West Bank to Israeli citizenship, based on the annexationist policies of Israel in the West Bank. The scope of the obligation of states to confer citizenship on individuals is determined by international human rights law (“IHRL”). The Article shows that a plausible reading of the IHRL treaty obligations of Israel suggests that it has a duty to grant citizenship to individuals born in its territory, who would otherwise be stateless, and that most West Bank Palestinians are currently considered stateless. Therefore, if a given area of the West Bank is considered to have become part of Israel, most Palestinians subsequently born in such territory are plausibly entitled to receive Israeli citizenship as a matter of treaty law. There also seems to be a broad, emerging right under customary international law of the residents of a territory acquired by a state to receive the citizenship of that state, regardless of whether or not they would otherwise be considered stateless. The West Bank is a territory under Israeli occupation, and annexation by an occupier of any part of the occupied territory violates international law. The Article argues, however, that the illegal annexation by Israel of an occupied territory would make that territory a part of Israel for the limited purpose of the right to citizenship, as an exception to the principle that illegal annexation is null and void. Hence, the existing and emerging IHRL obligations of Israel to grant citizenship to residents of territory acquired by Israel extend to Palestinians residing in areas of the West Bank illegally annexed by Israel. The Article argues further that, for the purpose of applying the norms of IHRL that concern the right to citizenship, the definition of annexation extends beyond formal annexation and encompasses de facto annexation as well. Annexation of occupied territory results from the occupier’s display of sovereignty in that territory, among other things, by settling its own population in the occupied territory. In view of the current spread of Israeli settlements across the West Bank, unless Israel removes, within a reasonable time period, many of these settlements, the entire territory of the West Bank may be considered to have been annexed, and the entire Palestinian population of the West Bank would have a strong claim to Israeli citizenship under an emerging norm of international law.
What is the scope of the Palestinian entitlement to the territory of the West Bank, currently occ... more What is the scope of the Palestinian entitlement to the territory of the West Bank, currently occupied by Israel? The right of the Palestinian people to self-determination and its derivative, a Palestinian right to statehood, have been widely acknowledged. But does the right to self-determination determine the borders of the Palestinian state, giving rise to a Palestinian territorial entitlement to the whole of the West Bank? The article answers this question in the negative, demonstrating that neither state practice nor the jurisprudence of the International Court of Justice support a rule of customary international law that assigns self-determination considerations a role in the demarcation of international boundaries. The article also examines the role of international recognition of title to territory in the resolution of the territorial dispute between Israel and the Palestinians. To what extent does international law empower the international community to resolve a territorial dispute over the objection of an affected party, by pronouncing a collective position that reflects near-consensus? The article concludes that a collective recognition by the international community of Palestinian title to territories currently occupied by Israel would have neither a probative value nor a constitutive effect under international law, unless such international position takes the form of U.N. Security Council action in the exercise of its binding powers under Chapter VII of the U.N. Charter. The article further demonstrates that international law does not support an Israeli claim to sovereignty over the occupied West Bank. This inquiry focuses on a critical examination of a theory recently advanced in legal literature, which predicates such a claim on the doctrine of uti possidetis juris. Finally, the article considers the consequences of the absence of a norm of international law governing the demarcation of the border between Israel and the Palestinians.
Indeterminacy in the law of war exacts a severe humanitarian toll, and it is not likely to be red... more Indeterminacy in the law of war exacts a severe humanitarian toll, and it is not likely to be reduced by the conclusion of additional treaties. The present article argues that the adverse consequences of this indeterminacy may be mitigated through a U.N. Security Council action establishing an international advisory regime and using the broad powers of the Security Council to provide incentives for states to subscribe to this regime voluntarily. States subscribing to the advisory regime (“operating states”) would undertake to follow the interpretation of the law of war laid out by international legal advisors. The advisory regime would represent a bargain between the Security Council and operating states, which would grant protection for states against the costs that typically attach to non-compliance with the law of war, to the extent that the state followed the legal guidance provided by the international advisors. This article demonstrates that the powers of the Security Council under the U.N. Charter accommodate such a bargain. The desirability of the proposed advisory regime from a humanitarian perspective, and its appeal for states, depend on the interpretive approach to the law of war that would guide the international advisors. This article identifies an interpretive approach to the law of war that would make the proposed advisory regime the best bargain from a humanitarian perspective that is politically feasible. Such an interpretive approach marks the farthest a state would be willing to stray from the most permissive interpretive approach to the law of war made possible by the indeterminacy of the law to secure the benefits that the advisory regime offers. Use of such an interpretive approach would be secured through the selection of international advisors, tailored to ensure that they are inclined to embrace the desired interpretive approach.
The George Washington International Law Review, 2006
TAKING WAR SERIOUSLY: APPLYING THE LAW OF WAR TO HOSTILITIES WITHIN AN OCCUPIED TERRITORY Ariel Z... more TAKING WAR SERIOUSLY: APPLYING THE LAW OF WAR TO HOSTILITIES WITHIN AN OCCUPIED TERRITORY Ariel Zemach* Abstract This Article ... Michael Walzer thus observes that where the forces of an occupant are attacked by guerrilla fighters, we must imagine a ...
The Rome Statute of the International Criminal Court prohibits an Occupying Power from settling i... more The Rome Statute of the International Criminal Court prohibits an Occupying Power from settling its own population in the territory it occupies. This Comment argues that the settlement prohibition violates basic principles of fairness in criminal law, which require confining the reach of international criminal law to punishing violations of fundamental, self-evident moral norms. The settlement prohibition does not fulfill the moral gravity requirement: The prohibition does not reflect the international community’s moral judgment. Further, an objective moral judgment in this context is often unavailable.
THE LIMITS OF INTERNATIONAL CRIMINAL LAW: HOUSE DEMOLITIONS IN AN OCCUPIED TERRITORY Ariel Zemach... more THE LIMITS OF INTERNATIONAL CRIMINAL LAW: HOUSE DEMOLITIONS IN AN OCCUPIED TERRITORY Ariel Zemach' I. Introduction The values of liberty, fairness and democracy underlie Western criminal law systems.' Each of these values challenges the International ...
TAKING WAR SERIOUSLY: APPLYING THE LAW OF WAR TO HOSTILITIES WITHIN AN OCCUPIED TERRITORY Ariel Z... more TAKING WAR SERIOUSLY: APPLYING THE LAW OF WAR TO HOSTILITIES WITHIN AN OCCUPIED TERRITORY Ariel Zemach* Abstract This Article ... Michael Walzer thus observes that where the forces of an occupant are attacked by guerrilla fighters, we must imagine a ...
The prevailing view in the legal literature on the fight against terrorism is that the current st... more The prevailing view in the legal literature on the fight against terrorism is that the current structure of international law–the law enforcement/armed conflict dichotomy–is ill-suited to address large-scale hostilities between a state and a terrorist organization. The law enforcement model is governed by international human rights law. The armed conflict model is primarily governed by the law of war. Human rights law, it is argued, allows states too little in their struggle against terrorist organizations while the law of war allows them too much. Hence, many advocate the development of a new body of law, a normative middle ground between the law of war and human rights law, applicable to armed conflicts between a state and a terrorist entity. According to this approach, large-scale hostilities between a state and a terrorist organization are considered armed conflict. Yet the application of the law of war to such conflicts is qualified by the principles of international human rights law. The interaction between the law of war and human rights law produces a new, distinct set of norms. The permission to use lethal force afforded to a state under these norms is broader than the one afforded to it under human rights law yet narrower than the one available to the state under the law of war. This article rejects the normative middle ground approach and defends the traditional law enforcement/armed conflict dichotomy. It advances a very high threshold for the existence of armed conflict, arguing that only hostilities that border on full-scale war amount to an armed conflict. Within the sphere of armed conflict, properly constructed, the law of war does not allow states too much. On the contrary, it offers the best bargain from a humanitarian perspective, and therefore its application should not be qualified. This article further argues that grave, large-scale violence that falls short of a full-scale war is governed exclusively by human rights law. This argument is tenable provided that human rights law presents realistic standards of conduct for states in the face of such violence. The author argues that it does. The liberties to exercise lethal force required in order to contain grave, large-scale violence are, and should be, available to a state under human rights law. In the course of this inquiry, the author addresses two questions concerning the scope of permission to kill suspected terrorists afforded to a state under human rights law: 1. When is the threat sufficiently proximate to justify the use of lethal force against the suspected terrorist? 2. Can a state engage in counter-terrorism operations that are likely to result in the unintentional killing of innocent persons?
This Article concerns the relationship between the doctrine of universal jurisdiction and the pri... more This Article concerns the relationship between the doctrine of universal jurisdiction and the principle of equality before the law. While inequality before the law always presents a challenge to the legitimacy of a criminal justice system, it has an especially devastating effect on universal jurisdiction's claim to legitimacy. At the same time, the exercise of universal jurisdiction lends itself to discrimination and arbitrariness far more readily than regular domestic prosecutions. This Article proposes a reform in the international law of universal jurisdiction that would ameliorate, as far as possible, the problem of inequality before the law in the exercise of universal jurisdiction. This reform introduces limitations on the liberty of states to " choose their battles " in the enforcement of international criminal law. The proposed reform assigns a pivotal role to the International Criminal Court (" ICC "). It sets forth a mechanism by which the ICC would designate particular states to exercise universal jurisdiction over crimes relating to a particular situation. Such designation would be a precondition for a state's liberty to exercise universal jurisdiction. The legal regime advocated here would thus replace the existing norm of international law that allows any state to exercise universal jurisdiction over core international crimes. This Article demonstrates that the proposed designation mechanism would constitute, in and of itself, a substantial guarantee of equality before the law in the exercise of universal jurisdiction. This Article then proceeds to propose prosecutorial guidelines that, under the proposed reform, a state would be required to apply in its exercise of universal jurisdiction. Finally, it sets forth a mechanism that would allow the ICC Prosecutor to monitor the compatibility of a state's exercise of universal jurisdiction with the principle of equality before the law. This international oversight mechanism is tailored with a view to minimizing, as far as possible, both sovereignty and economic costs for the state exercising universal jurisdiction. Far from limiting the reach of universal jurisdiction, the proposed reform would enhance the fight against impunity by diffusing current objections to the exercise of universal jurisdiction in absentia, thereby facilitating the assertion of such jurisdiction by states.
It is widely agreed that the settlement by Israel of its own nationals in the occupied Palestinia... more It is widely agreed that the settlement by Israel of its own nationals in the occupied Palestinian territories is illegal under international law. This article examines whether international law nevertheless protects the interest of individual settlers in non-repatriation. The author argues that international human rights law does not prohibit the repatriation of Israeli settlers. No provision of an international human rights treaty brings the non-repatriation plea of Israeli settlers within the realm of a protected human right. Even if it were possible to point to such a provision, the repatriation of Israeli settlers would probably be permitted under the balancing of interest regime that generally prevails in international human rights law. The article proceeds to examine the protection granted to illegally implanted settlers under the rules of customary international law that determine the legal consequences of state conduct that violates international law ("State Responsibility Rules"). State Responsibility Rules generally require a state that violated international law to eliminate the consequences of such violation, but the Rules may exempt the violating state from this obligation in view of the interests of individuals. The article shows that examining whether international human rights law prohibits the repatriation of illegally implanted settlers is fundamentally different from examining whether State Responsibility Rules exempt the occupant from carrying out repatriation. The interests of individual settlers may attain sufficient legal significance to support an exemption for an occupant from its duty under State Responsibility Rules to eliminate the consequences of its illegal settlement activity (i.e., the duty to repatriate the settlers) even in the absence of a human rights law prohibition against repatriation. Such an exemption does not depend on a robust balancing-of-interests analysis of the type that prevails in international human rights law. Rather, State Responsibility Rules seem to exempt an occupant from the obligation to repatriate illegally implanted settlers whenever the imposition of such obligation would result in the forcible eviction of a large number of individuals. The author argues that a case for such an exemption has emerged with regard to the settlers implanted by Israel in the occupied Palestinian territories. The article maintains further that the absence of a duty to repatriate the settlers allows for a strong argument in favor of including the interest in non-repatriation within the sphere of interests that Israel may legitimately promote in negotiating the end of occupation.
Illegal occupation gives rise to a duty of the occupant to withdraw from the occupied territory i... more Illegal occupation gives rise to a duty of the occupant to withdraw from the occupied territory immediately and unconditionally. International law has long recognized the illegality of occupation that results from an unlawful use of force by the occupying state. An emerging approach among international lawyers holds that occupation resulting from a lawful use of force by a state, in self-defense, may also become illegal. Proponents of this approach link the illegality of the occupation to the occupant's violation of the prohibition on the use of force or of the right of peoples to self-determination. These violations result from the occupant's policies which amount to de facto annexation of the occupied territory, manifested in refusal to engage in good-faith negotiations to end the occupation or in actions aimed at perpetuating the occupation (e.g., enabling the settlement of the occupant's citizens in the occupied territory). Arguments that such conduct renders the occupation illegal have largely focused on the occupation of Arab territories by Israel. This article argues that the purview of the notion of illegal occupation in international law does not extend to occupation resulting from the lawful use of force by a state in self-defense ("lawfully created occupation"). The article reviews the various theories presented in support of such an extension, but shows that state practice does not support the existence of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal. The author subscribes to the view that a policy of de facto annexation pursued by an occupant violates the right to self-determination, and possibly the prohibition on the use of force. Such violation leads to legal consequences, but these do not include the illegality of occupation. This article examines the rules of international law that determine the legal consequences of state conduct that violates international law, and shows that these rules do not accommodate an extension of the notion of illegal occupation to lawfully created occupation. The article proceeds to argue that the introduction of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal is inadvisable because such a norm would be full of uncertainty.
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Papers by Ariel Zemach
This article argues that the purposes of the norm against unjust enrichment – promoting individual justice between parties and removing incentives for wrongful conduct – require its application in international law to the indirect enrichment of a state as a result of internationally harmful conduct by its taxpayers. Such application of the international norm against unjust enrichment is particularly important because of (a) evidentiary difficulties in the international arena, which significantly erode the efficacy of the remedial regime that is based on the rules concerning the responsibility of states for internationally wrongful conduct; (b) the unavailability in international law of a cause of action against private actors engaging in internationally harmful conduct; and (c) the limited capacity of a state harmed by the conduct to recover from such actors under its domestic legal system. The article suggests that the purview of the international norm against unjust enrichment extends to situations of an indirect link between the loss of the claimant state and the gain of the enriched state, provided that such link is sufficiently close.
The West Bank is a territory under Israeli occupation, and annexation by an occupier of any part of the occupied territory violates international law. The Article argues, however, that the illegal annexation by Israel of an occupied territory would make that territory a part of Israel for the limited purpose of the right to citizenship, as an exception to the principle that illegal annexation is null and void. Hence, the existing and emerging IHRL obligations of Israel to grant citizenship to residents of territory acquired by Israel extend to Palestinians residing in areas of the West Bank illegally annexed by Israel.
The Article argues further that, for the purpose of applying the norms of IHRL that concern the right to citizenship, the definition of annexation extends beyond formal annexation and encompasses de facto annexation as well. Annexation of occupied territory results from the occupier’s display of sovereignty in that territory, among other things, by settling its own population in the occupied territory. In view of the current spread of Israeli settlements across the West Bank, unless Israel removes, within a reasonable time period, many of these settlements, the entire territory of the West Bank may be considered to have been annexed, and the entire Palestinian population of the West Bank would have a strong claim to Israeli citizenship under an emerging norm of international law.
The article also examines the role of international recognition of title to territory in the resolution of the territorial dispute between Israel and the Palestinians. To what extent does international law empower the international community to resolve a territorial dispute over the objection of an affected party, by pronouncing a collective position that reflects near-consensus? The article concludes that a collective recognition by the international community of Palestinian title to territories currently occupied by Israel would have neither a probative value nor a constitutive effect under international law, unless such international position takes the form of U.N. Security Council action in the exercise of its binding powers under Chapter VII of the U.N. Charter.
The article further demonstrates that international law does not support an Israeli claim to sovereignty over the occupied West Bank. This inquiry focuses on a critical examination of a theory recently advanced in legal literature, which predicates such a claim on the doctrine of uti possidetis juris. Finally, the article considers the consequences of the absence of a norm of international law governing the demarcation of the border between Israel and the Palestinians.
The advisory regime would represent a bargain between the Security Council and operating states, which would grant protection for states against the costs that typically attach to non-compliance with the law of war, to the extent that the state followed the legal guidance provided by the international advisors. This article demonstrates that the powers of the Security Council under the U.N. Charter accommodate such a bargain.
The desirability of the proposed advisory regime from a humanitarian perspective, and its appeal for states, depend on the interpretive approach to the law of war that would guide the international advisors. This article identifies an interpretive approach to the law of war that would make the proposed advisory regime the best bargain from a humanitarian perspective that is politically feasible. Such an interpretive approach marks the farthest a state would be willing to stray from the most permissive interpretive approach to the law of war made possible by the indeterminacy of the law to secure the benefits that the advisory regime offers. Use of such an interpretive approach would be secured through the selection of international advisors, tailored to ensure that they are inclined to embrace the desired interpretive approach.
1. When is the threat sufficiently proximate to justify the use of lethal force against the suspected terrorist?
2. Can a state engage in counter-terrorism operations that are likely to result in the unintentional killing of innocent persons?
Far from limiting the reach of universal jurisdiction, the proposed reform would enhance the fight against impunity by diffusing current objections to the exercise of universal jurisdiction in absentia, thereby facilitating the assertion of such jurisdiction by states.
The author argues that international human rights law does not prohibit the repatriation of Israeli settlers. No provision of an international human rights treaty brings the non-repatriation plea of Israeli settlers within the realm of a protected human right. Even if it were possible to point to such a provision, the repatriation of Israeli settlers would probably be permitted under the balancing of interest regime that generally prevails in international human rights law.
The article proceeds to examine the protection granted to illegally implanted settlers under the rules of customary international law that determine the legal consequences of state conduct that violates international law ("State Responsibility Rules"). State Responsibility Rules generally require a state that violated international law to eliminate the consequences of such violation, but the Rules may exempt the violating state from this obligation in view of the interests of individuals. The article shows that examining whether international human rights law prohibits the repatriation of illegally implanted settlers is fundamentally different from examining whether State Responsibility Rules exempt the occupant from carrying out repatriation. The interests of individual settlers may attain sufficient legal significance to support an exemption for an occupant from its duty under State Responsibility Rules to eliminate the consequences of its illegal settlement activity (i.e., the duty to repatriate the settlers) even in the absence of a human rights law prohibition against repatriation. Such an exemption does not depend on a robust balancing-of-interests analysis of the type that prevails in international human rights law. Rather, State Responsibility Rules seem to exempt an occupant from the obligation to repatriate illegally implanted settlers whenever the imposition of such obligation would result in the forcible eviction of a large number of individuals. The author argues that a case for such an exemption has emerged with regard to the settlers implanted by Israel in the occupied Palestinian territories. The article maintains further that the absence of a duty to repatriate the settlers allows for a strong argument in favor of including the interest in non-repatriation within the sphere of interests that Israel may legitimately promote in negotiating the end of occupation.
This article argues that the purposes of the norm against unjust enrichment – promoting individual justice between parties and removing incentives for wrongful conduct – require its application in international law to the indirect enrichment of a state as a result of internationally harmful conduct by its taxpayers. Such application of the international norm against unjust enrichment is particularly important because of (a) evidentiary difficulties in the international arena, which significantly erode the efficacy of the remedial regime that is based on the rules concerning the responsibility of states for internationally wrongful conduct; (b) the unavailability in international law of a cause of action against private actors engaging in internationally harmful conduct; and (c) the limited capacity of a state harmed by the conduct to recover from such actors under its domestic legal system. The article suggests that the purview of the international norm against unjust enrichment extends to situations of an indirect link between the loss of the claimant state and the gain of the enriched state, provided that such link is sufficiently close.
The West Bank is a territory under Israeli occupation, and annexation by an occupier of any part of the occupied territory violates international law. The Article argues, however, that the illegal annexation by Israel of an occupied territory would make that territory a part of Israel for the limited purpose of the right to citizenship, as an exception to the principle that illegal annexation is null and void. Hence, the existing and emerging IHRL obligations of Israel to grant citizenship to residents of territory acquired by Israel extend to Palestinians residing in areas of the West Bank illegally annexed by Israel.
The Article argues further that, for the purpose of applying the norms of IHRL that concern the right to citizenship, the definition of annexation extends beyond formal annexation and encompasses de facto annexation as well. Annexation of occupied territory results from the occupier’s display of sovereignty in that territory, among other things, by settling its own population in the occupied territory. In view of the current spread of Israeli settlements across the West Bank, unless Israel removes, within a reasonable time period, many of these settlements, the entire territory of the West Bank may be considered to have been annexed, and the entire Palestinian population of the West Bank would have a strong claim to Israeli citizenship under an emerging norm of international law.
The article also examines the role of international recognition of title to territory in the resolution of the territorial dispute between Israel and the Palestinians. To what extent does international law empower the international community to resolve a territorial dispute over the objection of an affected party, by pronouncing a collective position that reflects near-consensus? The article concludes that a collective recognition by the international community of Palestinian title to territories currently occupied by Israel would have neither a probative value nor a constitutive effect under international law, unless such international position takes the form of U.N. Security Council action in the exercise of its binding powers under Chapter VII of the U.N. Charter.
The article further demonstrates that international law does not support an Israeli claim to sovereignty over the occupied West Bank. This inquiry focuses on a critical examination of a theory recently advanced in legal literature, which predicates such a claim on the doctrine of uti possidetis juris. Finally, the article considers the consequences of the absence of a norm of international law governing the demarcation of the border between Israel and the Palestinians.
The advisory regime would represent a bargain between the Security Council and operating states, which would grant protection for states against the costs that typically attach to non-compliance with the law of war, to the extent that the state followed the legal guidance provided by the international advisors. This article demonstrates that the powers of the Security Council under the U.N. Charter accommodate such a bargain.
The desirability of the proposed advisory regime from a humanitarian perspective, and its appeal for states, depend on the interpretive approach to the law of war that would guide the international advisors. This article identifies an interpretive approach to the law of war that would make the proposed advisory regime the best bargain from a humanitarian perspective that is politically feasible. Such an interpretive approach marks the farthest a state would be willing to stray from the most permissive interpretive approach to the law of war made possible by the indeterminacy of the law to secure the benefits that the advisory regime offers. Use of such an interpretive approach would be secured through the selection of international advisors, tailored to ensure that they are inclined to embrace the desired interpretive approach.
1. When is the threat sufficiently proximate to justify the use of lethal force against the suspected terrorist?
2. Can a state engage in counter-terrorism operations that are likely to result in the unintentional killing of innocent persons?
Far from limiting the reach of universal jurisdiction, the proposed reform would enhance the fight against impunity by diffusing current objections to the exercise of universal jurisdiction in absentia, thereby facilitating the assertion of such jurisdiction by states.
The author argues that international human rights law does not prohibit the repatriation of Israeli settlers. No provision of an international human rights treaty brings the non-repatriation plea of Israeli settlers within the realm of a protected human right. Even if it were possible to point to such a provision, the repatriation of Israeli settlers would probably be permitted under the balancing of interest regime that generally prevails in international human rights law.
The article proceeds to examine the protection granted to illegally implanted settlers under the rules of customary international law that determine the legal consequences of state conduct that violates international law ("State Responsibility Rules"). State Responsibility Rules generally require a state that violated international law to eliminate the consequences of such violation, but the Rules may exempt the violating state from this obligation in view of the interests of individuals. The article shows that examining whether international human rights law prohibits the repatriation of illegally implanted settlers is fundamentally different from examining whether State Responsibility Rules exempt the occupant from carrying out repatriation. The interests of individual settlers may attain sufficient legal significance to support an exemption for an occupant from its duty under State Responsibility Rules to eliminate the consequences of its illegal settlement activity (i.e., the duty to repatriate the settlers) even in the absence of a human rights law prohibition against repatriation. Such an exemption does not depend on a robust balancing-of-interests analysis of the type that prevails in international human rights law. Rather, State Responsibility Rules seem to exempt an occupant from the obligation to repatriate illegally implanted settlers whenever the imposition of such obligation would result in the forcible eviction of a large number of individuals. The author argues that a case for such an exemption has emerged with regard to the settlers implanted by Israel in the occupied Palestinian territories. The article maintains further that the absence of a duty to repatriate the settlers allows for a strong argument in favor of including the interest in non-repatriation within the sphere of interests that Israel may legitimately promote in negotiating the end of occupation.