Analysis and Commentary on International Law
The World Court Lacks Any Plausible Basis for Directing Provisional Measures Against Israel Under the Genocide Convention

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.

The Laws of War

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.

Thirty-Five Years of the “Citizens’ Constitution” of Brazil: A Review

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.

Is President Biden Being a Supportive Friend or a Too-Trusting Enabler in the Aftermath of October 7?

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.

Proportionality in the Israel-Gaza Conflict: A Legal Primer

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.

Cluster Mine Transfer: Cluster F*ck the Cluster Mine Norm? Part IV

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.

Why Didn’t the U.S. Bomb Kyoto?

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.

Cluster Mine Transfer: Cluster F*ck the Cluster Mine Norm? Part III

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.

Cluster Mine Transfer: Cluster F**k for the Cluster Mine Norm? Part II

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.

Cluster Mine Transfer: Cluster F*** for the Cluster Mine Norm?

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.

Accountability for Ukrainian War Crimes Ought to include Ukrainian War Crimes

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.

What’s the Difference Between Spying by Balloon Versus by Satellite?

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.

It is Time for the Biden Administration to Join the Rest of the World in Moving Against the Death Penalty

Amherst professor Austin Sarat argues that the Biden administration should join the rest of the world in officially opposing the death penalty by supporting the U.N. General Assembly’s resolution establishing a moratorium on executions. Professor Sarat points out that while supporting the resolution would not force the federal or state governments to change the status quo, it would put this country on record as committed to ending the death penalty—a particularly important accomplishment for a President who ran as an abolitionist.

For Domestic Consumption Only: Digesting Russia’s Rancid Case for War

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, describes the parallels between Russia’s invasion of Ukraine and Hitler’s invasion of Poland. Mr. Falvy argues that even if Russia can wrest more territory from Ukraine in the short term, it is difficult to foresee an end to the war it has started.

European Courts Deliver a Wake-Up Call about American Prison Conditions

Amherst professor Austin Sarat describes how courts in Europe, when faced with the question whether to extradite an escaped convict to the United States, have expressed greater concern about the conditions of American prisons than do American courts or legislatures. Professor Sarat argues that it is time for American courts to redress prison conditions and ensure that when we send someone to prison, we respect and protect their constitutional rights.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part IV—Assessing the U.S. Response

In this fourth in a series of columns about the U.S. military drone strike in Kabul that killed ten civilians (including seven children), Illinois Law professor Lesley M. Wexler considers whether the United States has now satisfactorily provided the recommended amends and discusses what more ought to be done. As to what more is needed, Professor Wexler suggests congressional review of the incident, chain of command accountability decisions, and a broader review of drone strikes.

Rejecting Vaccination Status Discrimination: Learning from the Laws of War

Illinois Law professor Lesley M. Wexler argues that a just society should not punish unvaccinated persons in the allocation of even scarce medical care and resources, despite the exceptional circumstances of a global pandemic. In support of this position, Professor Wexler analogizes to the exceptional circumstances of war, pointing out that the laws of war also emphatically reject status discrimination in medical decision-making.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part III—Making Amends

In this third and final part of a series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professors Lesley M. Wexler and Jennifer K. Robbennolt suggest a robust approach to making amends for the victims of lawful harm imposed during drone strikes and other military uses of force. Professors Wexler and Robbennolt note the substantial support for various aspects of amends from many key stakeholders, including the victims and their families, members of the military who suffer moral injury as a result of the killings, and even the U.S.’s military objectives, which often rely on winning the hearts and minds of local populations.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part II—Condolence and Solatia Payments

In this second of a three-part series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professor Lesley M. Wexler addresses the U.S. approach to voluntary condolence and solatia payments. Professor Wexler explains what these payments require and how they often fall short, and she points out the gulf between commitments to making condolence and solatia payments and payments actually made.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part I—Detecting Mistakes and No Required Reparations

In this first of a three-part series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professor Lesley M. Wexler raises two key concerns: that civil society rather than the government brought the mistake to light, and that there is no legal requirement to pay reparations. Professor Wexler describes the reasons behind our reliance on journalists and civil society to investigate problems like this strike and explains the relevant laws of war that allow the victims’ families to go uncompensated.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more