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Herb Keinon  |  Settlements

Despite considerable pressure from both the US and Egypt to continue the settlement construction moratorium for another three months, Prime Minister Binyamin Netanyahu’s senior ministers, a forum known as the septet, decided this week not to extend the freeze.
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Irit Kohn  |  International Law

Israel, as a democratic State, looks for legal tools to curb such smuggling and respond to Hamas' terrorist attacks against its citizens. One of the tools available under international law is the maritime blockade. Israel, finding itself in a state of armed conflict with Hamas, has opted to employ this legal measure.

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Irit Kohn  |  Gaza

What does international law have to say about blockades against rogue enterprises?

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Amb. Dore Gold, Amb. Meir Rosenne, Prof. Ruth Lapidoth, Amb. Yehuda Blum, Amb. Richard Holbrooke  |  Resolution 242

UN Security Council Resolution 242 of November 1967 is the most important UN resolution for peacemaking in the Arab-Israel conflict. The resolution never established the extent of Israel’s required withdrawal from territories captured during the Six-Day War in exchange for peace with its Arab neighbors. The borders of any Israeli withdrawal were meant to reflect its right to live within “secure and recognized” boundaries.

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Eugene Kontorovich  |  Piracy

For centuries, aggressive international enforcement, facilitated by a legal regime that was the model of international cooperation, has been key to suppressing piracy on the high seas. Today, as a long-simmering piracy problem boils over off the Horn of Africa, nations have begged off from enforcing the law against this group of international criminals that threatens to bring much of international shipping to a standstill. The global shirking of prosecutorial responsibility is particularly hard to square with the eagerness with which the same countries have sought to prosecute much more complex and politically sensitive offenses. Coming at a time when increasingly bold claims have been made about international law’s ability to resolve massive problems like genocide and decades-long ethnic conflict, its incapacity to deal with the international equivalent of ordinary street crime.

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Eugene Kontorovich  |  UN Charter

While territorial conquest has been relatively infrequent in the post-World War II period, most conquests have not been condemned by the international community. Indeed, open acceptance is as common as condemnation. The small likelihood of international opposition to conquest suggests that the relatively low incidence of conquest should be attributed to causes other than the non-recognition norm. This does not mean that the anti-conquest norm has no force or "compliance pull," but it does suggest that condemnation and nonrecognition are not likely play a significant role in decisions about whether to conquer.

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12/01/2009 05:00:00
Zachary Elkins, Tom Ginsburg, Beth Simmons  |  Universal Declaration of Human Rights Conference

Nearly two decades ago, Professor Louis Henkin begin his magisterial The Age of Rights with a ringing claim of universality: "Ours is the Age of Rights. Human Rights is the idea of our time, the only moral-political idea to have received universal acceptance." Henkin's historical observations, and the conventional wisdom that they embody about the spread of rights, raise as many questions as they answer. Has there been any degree of convergence on the menu of rights? This paper is a very preliminary exploration of the convergence hypothesis. Based on a large sample of national constitutional practice, we observe several interesting results. First, international covenants are themselves diverse, being no more similar to each other on average than the median pair of constitutions in the sample. Second, relatively few rights are truly universal in national constitutional practice. The temporal and geographic patterns appear to be far more complicated than the simple convergence story would have it. Third, notwithstanding the diversity, the UDHR and ICCPR do seem to have exerted some convergence pressure, in that we observe that constitutions adopted after the international instruments become more similar to the covenants than they were beforehand. For the ICCPR, this is qualified by the presence of some constitutions that do not become more similar. This paper was presented at the conference Sixty Years Since the Adoption of the Universal Declaration of Human Rights and Genocide Convention: Evaluating the Record, at Bar Ilan University on December 10, 2008.

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Amichai Cohen  |  Proportionality

"Proportionality" has become a common term, widely used by human rights organizations, politicians, soldiers and laypersons. But its precise legal meaning is little understood. NGOs allege that a certain attack was disproportionate because civilians were killed; military officers retort that the action was proportional because the enemy fired first. From a legal standpoint, both claims are inaccurate, and based on irrelevant conceptions of proportionality. The goal of this paper is not to justify or discredit the use of proportionality, but rather to clarify its parameters, and identify the problems confronting attempts to apply it, especially in the context of military operations. The main claim in this paper is the following: Proportionality cannot be analyzed as a legal term disconnected from the institutions that apply it. Proportionality may be understood only in the context of its application by the courts. This paper was presented at the conference Sixty Years Since the Adoption of the Universal Declaration of Human Rights and Genocide Convention: Evaluating the Record, at Bar Ilan University on December 10, 2008.

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Jide Nzelibe  |  Universal Declaration of Human Rights Conference

Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting perpetrators, will help realize the post-World War II vision of making atrocities a crime of the past. This Article argues, in contrast, that humanitarian interventions are often likely to create unintended, and sometimes perverse, incentives among both the victims and perpetrators of atrocities. The problem is that when the international community intervenes in the civil wars or insurrections where most humanitarian atrocities take place, its decision is partially endogenous or interdependent with that of the combatants; humanitarian interventions both influence and are influenced by the decisions of the victims and perpetrators of atrocities. Herein lies the paradox: because humanitarian interventions tend to increase the chance that rebel or victim group leaders are going to achieve their preferred political objectives, such leaders might have an incentive to engage in the kinds of provocative actions that make atrocities against their followers more likely in the first place. More specifically, the prospect of humanitarian intervention often increases the level of uncertainty about the distribution of costs and resolve between the combatants. In turn, such uncertainty amplifies the possibility of divergent expectations between the dominant and rebel group regarding the outcome of a civil war. At bottom, the prospect of humanitarian intervention might sometimes increase the risks of genocidal violence. This Article turns to insights from the domestic framework of torts and criminal law to elaborate upon the theoretical framework that motivates this perverse dynamic, provides some contemporary illustrations from civil wars in Africa and the Balkans, and recommends improvements to the current regime to mitigate some of its unintended effects. This Article concludes that the optimal regime of humanitarian intervention would incorporate comparative fault principles that take into account the failure of victim (or rebel) leaders to take adequate precautions against the risks of humanitarian atrocities. This paper was presented at the conference Sixty Years Since the Adoption of the Universal Declaration of Human Rights and Genocide Convention: Evaluating the Record, at Bar Ilan University on December 10, 2008.

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Eugene Kontorovich  |  Law

The article explores the constitutionality (under the U.S. Constitution) of U.S. exercises of universal jurisdiction. The article finds that Article I of the constitution limits American exercises of universal jurisdiction, and calls into question many attempts at universal jurisdiction, including many uses of the Alien Tort Statute.

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Anthony J. Colangelo  |  Incitement to Genocide

This Article offers a coherent way of thinking about double jeopardy rules among sovereigns. Its theory has strong explanatory power for current double jeopardy law and practice in both U.S. federal and international legal systems, recommends adjustments to double jeopardy doctrine in both systems, and shar pens normative assessment of that doctrine. The Article develops a jurisdictional theory of double jeopardy under which sovereignty signifies independent jurisdiction to make and apply law. Using this theory, the Article recasts the history of the U.S. Supreme Court’s “dual sovereignty” doctrine entirely in terms of jurisdiction, penetrating the opacity of the term sovereign as it is often deployed by the Court and supplying a useful analytical predictor for future extension of the doctrine. The Article then applies the theory to the international legal system to explain the confused and seemingly dissonant body of modern international law and practice on double jeopardy, including the international law of human rights and extradition, international criminal tribunal statutes, and the exercise of universal jurisdiction. The Article next explores the theory’s implications for U.S and international law in light of two main double jeopardy concerns: the individual right to be free from multiple prosecutions and the sovereign ability to enforce law. It argues that since the U.S. dual sovereignty doctrine originally derived and continues to derive justification from the sovereign’s jurisdiction over the defendant, the Court’s present analysis is incomplete and betrays the doctrine’s own foundations by ignoring a basic, and necessary, constitutional inquiry: whether a successively prosecuting sovereign’s exercise of jurisdiction satisfies due process. This inquiry would enrich present doctrine by incorporating individual rights concerns—concerns that right now are completely absent from dual sovereignty analysis—and holds the potential to alter outcomes, especially in cases of successive prosecutions between U.S. states and by the federal government when it exercises jurisdiction extraterritorially. The theory similarly enriches international doctrine through a reasonableness evaluation of a successively prosecuting nation-state’s jurisdiction that resembles U.S. due process tests. Finally, the Article suggests that where multiple sovereigns legitimately may exercise jurisdiction it does not mean that they will; institutionalized comity mechanisms between enforcement authorities of different sovereigns can accommodate both the sovereign interest to enforce law and the individual interest to be free from multiple prosecutions by encouraging the representation of multiple sovereigns’ interests in a single prosecution in a single forum. This paper was presented at the conference Ending Impunity or Decreasing Accountability? Averting Abuse of Universal Jurisdiction on November 26, 2008 in London.

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