Recent legislation in Germany
Natalie von Wistinghausen and Katharina Braun explore Germany’s recent legislation regarding the prosecution of international crimes. This includes codifying the non-applicability of functional immunity in cases of international crimes, expanding the definition of crimes against humanity to include persecution based on sexual orientation, and extending criminal liability for environmental damage in armed conflicts. The authors find that these changes align German law with evolving international standards, particularly regarding sexual and gender-based violence and environmental protection. They further note that the reform enhances victims’ rights, allowing them to participate more fully in trials, though concerns remain about the potential oversimplification of victims’ interests through shared legal representation.The authors conclude that while the reforms are a step forward, the practical implementation of these provisions and the fair trial rights of the accused remain critical to solidifying Germany’s pioneering role in international criminal law. Read the full post here.
Isabel Walther discusses recent German legislative and judicial changes regarding functional immunity exceptions for international crimes, focusing on the impact of these changes on customary international law. The author highlights that the new German law codifies the Federal Court of Justice’s (FCJ) case law, which excludes functional immunity for crimes like genocide and war crimes. However, the author critiques the FCJ’s methodology and its failure to clearly connect its rulings to customary international law. Walther also emphasizes that a potential decision by the Federal Constitutional Court (FCC) could address these deficiencies, enhance Germany’s role in international criminal law, and improve the legitimacy of prosecutions. Read the full post here.
International criminal law & immunity
Sergey Vasiliev critiques the International Criminal Court’s (ICC) handling of the Situation in Palestine, particularly the Pre-Trial Chamber’s (PTC) decision to allow the UK to submit amicus curiae observations on the jurisdictional implications of the Oslo Accords. Vasiliev argues that this decision, which has led to significant delays in the issuance of arrest warrants for individuals involved in the Israeli-Palestinian conflict, reflects an unnecessary reopening of settled jurisdictional issues and raises concerns about the PTC’s transparency, procedural integrity, and the potential impact on justice for Palestinian victims. Read the full post here.
Benjamin Meret examines the inconsistency between some states’ positions on Draft Article 7 of the International Law Commission’s (ILC) work and their stance on prosecuting international crimes committed in Ukraine. Draft Article 7 proposes exceptions to functional immunity for serious international crimes, but it has faced skepticism from many states, including the US, UK, and France, who argue it does not reflect customary international law. Meret notes that despite opposing Draft Article 7, these states support Ukraine’s efforts to prosecute war crimes domestically. Meret argues that this stance reveals a contradiction: these states advocate for accountability in Ukraine while resisting the broader legal framework that would enable such prosecutions. The author finds that this inconsistency suggests a reluctance to apply legal rules uniformly when they might impact their own nationals or allies. Read the full post here.
Nile Basin cooperative framework agreement
Mahemud Tekuya discusses the Nile Basin Cooperative Framework Agreement (CFA), which has been ratified by South Sudan and five other upstream Nile Basin States, marking a significant step toward cooperative management of the Nile watercourse. The author finds that the agreement’s rejection by downstream states, Egypt and Sudan, presents challenges to its implementation. Tekuya explores the CFA’s negotiation history, key features, and the potential legal and political hurdles it faces. Further he argues that while the CFA offers a framework for equitable water use, its success hinges on Egypt and Sudan’s eventual participation, highlighting the need for basin-wide cooperation to ensure sustainable management of the Nile. Read the full post here.
The ICJ’s Palestine Advisory Opinion
David Keane examines the implications of the recent International Court of Justice (ICJ) Advisory Opinion on Israel’s actions in the Occupied Palestinian Territory, focusing on Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which condemns racial segregation and apartheid. Noting that the ICJ found Israel’s policies to breach Article 3, leading to debates on whether this constitutes a finding of apartheid, Keane delves into the origins and distinctions of racial segregation and apartheid within ICERD, CERD’s historical interpretation, and how these terms relate to Israe’s settlement policies. The piece also discusses potential legal consequences, including further litigation under ICERD and the possibility of broader international condemnation of Israel’s practices. Read the full post here.
Yussef Al Tamimi discusses the implications of the Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem by the International Court of Justice for the EU-Israel Association Agreement. The author highlights the legal obligations of EU member states not to recognize or support illegal activities in occupied territories, emphasizing the need for the EU to reassess its economic and diplomatic relations with Israel. The text argues that the EU must take stronger actions to align its policies with international law. Read the full post here.
EJIL: The Podcast! Episode 27: Preoccupied – The ICJ’s Palestine Advisory Opinion
In this episode, Dapo Akande, Marko Milanovic and Philippa Webb are joined by Yuval Shany, and discuss the recent advisory opinion of the International Court of Justice on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. The hosts and their guest explore the Court’s reasoning on how violations of international law in the occupied Palestinian territories rendered unlawful Israel’s continued presence there. They also examine various ambiguities in the Court’s opinion and what drove them, on matters such as apartheid in the territories and the occupation of Gaza.
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