Articles Posted in International Law

Illinois Law professor Lesley M. Wexler examines recent U.S. policy shifts under the Biden administration regarding the authorization of cluster munitions (ATACMS) and anti-personnel landmines for use in Ukraine, along with their implications for international humanitarian law. Professor Wexler argues that these reversals, particularly the facilitation of Ukraine’s violation of the Landmine Ban Treaty, represent a concerning erosion of international humanitarian law norms and treaties, warning that such case-by-case justifications could lead to a broader collapse of civilian protection standards in warfare.

Illinois Law professor Lesley M. Wexler analyzes the legality of Israel’s pager and walkie-talkie strikes against Hezbollah under international humanitarian law, focusing on the Convention on Conventional Weapons (CCW) and the prohibition on unnecessary suffering. Professor Wexler concludes that while the strikes likely fall under the CCW’s definitions of “booby-traps” and “other devices,” the question whether they violate the prohibition on unnecessary suffering remains open, pending more detailed information about the injuries caused and the military necessity of the tactics used.

Illinois Law professor Lesley M. Wexler examines the legal implications of Israel’s alleged attacks on Hezbollah’s pagers and walkie-talkies in Lebanon, focusing on how these actions may be interpreted under the Convention on Conventional Weapons (CCW), particularly its provisions on booby-traps and other devices. Professor Wexler explores various interpretations of the CCW’s articles, questioning whether the attacks constitute booby-traps under the convention’s definition, whether they violate prohibitions on using apparently harmless objects as weapons, and whether they comply with restrictions on using such devices in civilian-populated areas. She suggests that while the attacks raise complex legal questions, their legality depends on specific interpretations of the CCW and broader principles of international humanitarian law.

NYU Law professor Samuel Estreicher and 3L Klara Nedrelow analyze the International Court of Justice’s July 19, 2024 advisory opinion on Israel’s policies in the occupied Palestinian territories, focusing on the dissenting opinion of Judge Julia Sebutinde. Professor Estreicher and Ms. Nedrelow argue that the ICJ’s opinion is one-sided and fails to consider the complexity of the Israeli-Palestinian conflict, emphasizing that a lasting solution requires carefully negotiated agreements between both parties rather than judicial recommendations based on incomplete narratives.

NYU Law professor Samuel Estreicher and 3L Klara Nedrelow discuss the International Court of Justice’s May 24, 2024 order granting additional provisional measures against Israel in response to South Africa’s request, including an analysis of the court’s decision and the separate and dissenting opinions of various judges. Professor Estreicher and Ms. Nedrelow highlight the inconsistencies and potential overreach in the court’s decision, emphasizing the lack of consensus among judges and questioning whether the ICJ has exceeded its jurisdiction under the Genocide Convention by ordering measures that may not be directly related to preventing genocide.

In this second of a series of columns on Israel’s strike on the World Central Kitchen convey, Illinois Law professor Lesley M. Wexler explores the lack of individual remedies available to the victims of the strike and other civilian casualties in Gaza, particularly focusing on the limitations of tort liability, solatia, and condolence payments, and the UN Register of Damages. Professor Wexler argues that while these avenues for compensation are currently unavailable or unlikely to be pursued by Israel, the question of individual compensation for civilian victims should be addressed as part of a future political resolution to the Israel-Hamas conflict.

Illinois Law professor Lesley M. Wexler discusses Israel’s attack on a World Central Kitchen humanitarian aid convoy in Gaza, the subsequent investigation, and the limited accountability measures taken by Israel in response. Professor Wexler argues that Israel should pursue more serious criminal accountability and undertake a systematic review of its actions during the Israel-Hamas conflict to address concerns about transparency, neutrality, and compliance with the laws of war, particularly regarding the protection of civilians and aid workers.

Illinois Law professor Lesley M. Wexler examines the legality of Israel’s military operation at the al-Shifa hospital complex in Gaza during the Israel-Hamas war, focusing on specific allegations such as attacks on the hospital, the killing of Faiq Mabhouh, civilian protections, and treatment of journalists and medical staff. Professor Wexler argues that while the legality depends on contested facts that warrant further investigation, hospitals can lose protection if used for military purposes, and the treatment of protected persons like journalists and medical staff raises serious legal concerns under international humanitarian law.

NYU Law professor Samuel Estreicher and 3L Klara Nedrelow argue that the International Court of Justice (ICJ) incorrectly imposed provisional measures on Israel regarding its actions in Gaza, as it failed to establish even a preliminary basis for genocide intent required under the Genocide Convention. Professor Estreicher and Ms. Nedrelow contend that South Africa’s allegations lacked plausibility due to the absence of specific intent to destroy the Gazan/Palestinian people, a critical element for genocide, in contrast to previous ICJ rulings that required a higher burden of proof for genocidal intent.

NYU Law professor Samuel Estreicher defends Israel’s right to self-defense against Hamas, arguing that its actions in Gaza comply with international humanitarian law, particularly the principles of military necessity, distinction, and proportionality. Professor Estreicher refutes claims that Israel is an “occupying power” in Gaza and that the right of self-defense does not apply to non-state actors like Hamas, comparing Israel’s military actions to those of the U.S. against al-Qaeda and ISIS.

Carlos Bolonha, professor of law at Federal University of Rio de Janeiro; Igor De Lazari, a PhD student at Federal University of Rio de Janeiro and state judge; and Antonio Sepulveda, professor of law at Getulio Vargas Foundation (FGV) and at the Fluminense Federal University; highlight the Brazilian Constitution’s adaptability and resilience over 35 years, having undergone 131 amendments to address contemporary democratic challenges and maintain stability despite political and economic turmoil. Despite these successes, there remains a significant gap between the constitutional promises and their actual fulfillment among Brazilians, with issues like widespread disinformation, inconsistent legal applications, and a lack of popular constitutional engagement still prevalent.

Law professor and economist Neil H. Buchanan argues that Democratic primary voters were not adamantly opposed to Joe Biden but preferred other candidates, and while his presidential nomination was initially disappointing for some, his decency and surprising policy actions have been a positive aspect of his presidency. Professor Buchanan draws an analogy between Biden’s empathetic support of his son’s struggles and his approach to foreign policy, especially in relation to Israel, suggesting that Biden’s personal experiences with empathy and loss have informed his measured, empathetic foreign policy stance, despite some critics wishing for a firmer response to Israeli actions.

Illinois Law professor Lesley M. Wexler explores the complexities of the concept of “proportionality” in the Israel-Gaza conflict, examining it both from the lens of international law and public opinion. Professor Wexler delineates two aspects of international law that govern proportionality: “jus ad bellum,” which speaks to when force is permissible, and the laws of war, which set guidelines for conduct during conflict. She emphasizes that while public debates often conflate legal and moral considerations, a nuanced understanding of existing international law is crucial for assessing the legality of actions in such conflicts.

In this fourth in a series of columns, Illinois Law professor Lesley M. Wexler explains how the U.S., Ukraine, and Cluster Mine Ban Treaty parties can reinforce norms against cluster munitions use and enhance civilian protections, given the controversial decision of the Biden administration to supply Ukraine with these munitions. Professor Wexler argues that the U.S. and Ukraine should take several steps to bolster their public commitments to keeping civilians safe from cluster munitions including: both joining the Cluster Mine Ban Treaty or negotiating international restriction on high dud rates under the Convention on Certain Conventional Weapons; Ukraine operationalizing its assurances about use, conducting investigations into past unlawful use, and implementing Civilian Casualty Tracking Analysis and Response cells; and the U.S. monitoring and reporting on Ukraine’s compliance, tightening restrictions on the munitions use, and ceasing transferring cluster munitions once conventional artillery becomes more widely available.

UNLV Boyd School of Law professor Leslie C. Griffin explores the nuanced and multifaceted influences behind the U.S. decision to bomb Hiroshima and Nagasaki instead of Kyoto during World War II. Drawing upon the speculated influence of Secretary of War Henry Stimson’s personal connection to Kyoto and weather conditions affecting bombing success, Professor Griffin emphasizes the complex interplay between personal morality, strategic considerations, and even uncontrollable factors like the weather in shaping historical outcomes.

In this third in a series of columns about the Biden administration’s transfer of cluster mines to Ukraine, Illinois Law professor Lesley M. Wexler explains why, even in the absence of a clear international violation, the transfer implicates the norm against cluster mine use. Professor Wexler describes cluster mine norms before the U.S. transfer to Ukraine and explains why, in her view, the transfer is problematic.

In this second in a series of columns discussing the U.S. transfer of cluster munitions to Ukraine, Illinois Law professor Lesley M. Wexler discusses the domestic issues for the United States and international law issues for Cluster Ban Treaty members. Professor Wexler also addresses arguments about Ukraine losing the moral high ground and weakening the alliance.

In this three-part series of columns, Illinois Law professor Lesley M. Wexler comments on the recent news that the Biden administration will be providing cluster munitions to Ukraine. In this Part I, Professor Wexler explains what cluster munitions are, why the Biden administration decided to give them to Ukraine, the potential impact on civilian populations, and the international law issues the United States and Ukraine face as a result.

Illinois law professor Lesley M. Wexler argues that based on the principle that justice needs to be justice for all, Ukraine should facilitate investigation of possible crimes by Ukrainians against Russians—not just crimes by Russians against Ukrainians. Professor Wexler contends that while U.S. and allied support for Ukraine must remain steadfast, encouraging Ukraine to make sure that all potential war crimes are investigated strengthens rather than weakens its moral authority.

In light of recent news that the U.S. shot down a Chinese surveillance balloon, Cornell Law professor Michael C. Dorf explains the differences between spying by ballon and spying by satellite and explores some of the murky legal areas with respect to sovereign airspace, outer space, and military uses of both. Professor Dorf points out that modern satellites can capture remarkably clear images of Earthbound sites, but a comparably equipped surveillance balloon, in virtue of being ten or more times closer to the Earth’s surface, can necessarily capture even greater detail.