Is the Duty to Prevent Genocide an Obligation of Result or an Obligation of Conduct according to the ICJ? (blogpost)

This post analyses the duty to prevent genocide embodied in the 1948 UN Genocide Convention as described by the International Court of Justice in the Bosnia v. Serbia case. In particular, the paper addresses an issue that has received scant attention in legal literature: the consequences of considering the duty to prevent genocide an obligation of conduct regulated by due diligence, as affirmed by the International Court of Justice, in relation to the commission of a wrongful act

The Italian Constitutional Court’s Ruling against State Immunity when International Crimes Occur: Thoughts on Decision No 238 of 2014

The tension between access to justice and jurisdictional immunity of States is one of the most debated topics in current public international law. The present essay aims to explore the Italian Constitutional Court’s opinion on this matter, in particular after its recent judgment no. 238 of 2014, in which the Court stated that Italy is no longer bound by the rule on State immunity in the case of civil proceedings dealing with damages caused by the Nazi army during World War II. Studying the Court’s reasoning and the arguments provided in order to compel Italy not to implement the ICJ judgment in the Jurisdictional Immunities of the State could provide a new point of view in the International Community, based on domestic constitutional norms, about the fundamental need to protect the rights of the human being, even to the detriment of a international customary rule

Genocide, Obligations Erga Omnes and Responsibility to Protect

In 2007, the International Court of Justice declared that states have a duty to prevent genocide from occurring in another state since the prevention and punishment of genocide is a concern of every state and of the international community as a whole. The doctrine of the responsibility to protect will be analysed in the light of the erga omnes and erga omnes partes character of the rules embodied in the Convention on the Prevention and Punishment of the Crime of Genocide. It is argued that, even though there are differences between the Court’s decisions about genocide and the applicable regime regarding the consequences of serious violations of erga omnes obligations, they are both consonant with the doctrine of the responsibility to protect since they are both inspired by the need to guarantee the protection of fundamental legal value

Factors Relevant for the Assessment of Sufficient Gravity in the ICC Proceedings and the Elements of International Crimes

The question of the assessment of ‘sufficient gravity’ for the purpose of cases and potential cases before the International Criminal Court (ICC) has been increasingly debated over the last decade. The relevant ICC case law – which this paper will examine briefly – is not explicit as to which elements are relevant for this gravity assessment. Accordingly, an analysis of this issue is of practical relevance and has some theoretical allure since the gravity assessment may lead to the decision not to open an investigation or to consider inadmissible a case. The present paper suggests that only factors that are not elements of international crimes should be taken into consideration. In order to advance this argument, this paper examines the recent proceedings on Mavi Marmara, in which there was strong disagreement between the Office of the Prosecutor (OTP) and the Pre-Trial Chamber I (PTCI) in regards to the gravity of the potential cases arising from that situation

La recente adesione palestinese alle convenzioni di diritto umanitario e ai principali trattati a tutela dei diritti dell’uomo

This article analyses the recent human rights activism of the State of Palestine, which have joined a number of international human rights and humanitarian law conventions in April 2014. The Palestinian accession to these conventions poses interesting legal challenges regarding the right of the Palestinian entity to join multilateral conventions pursuant to international treaty law. The paper also explores the practical consequences of the Palestinian accessions in the field of the protection of human rights in the Occupied Palestinian Territory, and the partition of responsibility for human rights protection between Israel and the State of Palestine

State Responsibility for International Humanitarian Law Violations by Private Actors in Occupied Territories and the Exploitation of Natural Resources

The interplay between public and private actors in the exploitation of natural resources in an occupied territory makes the regime of state and individual responsibility particularly complex in cases of exploitation by private actors that result in a breach of international humanitarian law. The Occupying Power has the duty not to deplete the natural resources of the occupied territory and, according to the case law of the International Court of Justice, it must also ensure that private actors do not exploit the natural resources of the occupied territory in violation of international humanitarian law. This paper explores the legal basis of this duty of vigilance and the consequences of the Occupying Power’s responsibility for the acts of private actors

The Palestinian Right to Exploit the Dead Sea Coastline for Tourism

Scholars in the past decades have paid little attention to the exploitation of the Dead Sea coastline for tourism purposes. The Dead Sea’s Israeli and Jordanian shores are famous touristic attractions at the basis of a quickly expanding industry. In contrast, the Palestinian portion of the Dead Sea coastline is not exploited for tourism; it falls into the so-called Area C of the West Bank, where the government of Israel maintains total control and construction permits for tourism-related investments have been constantly denied to Palestinian investors. The present essay aims to analyse the Palestinian right to exploit the Dead Sea coastline in light of the relevant international law framework, based on international humanitarian law, on the principles of self-determination of peoples, and of permanent sovereignty over natural resources. Moreover, the situation will be evaluated in light of the Oslo accords, which embody provisions regarding the Palestinian Dead Sea exploitation. The result of the analysis is that, according to international law, Palestinian investors have the right to exploit the Dead Sea coastline, which falls into the West Bank. Israel, as an occupying power, cannot deny the Palestinians access to their coastline, and its current policy rises to the level of an international wrongful act

The Self-Proclaimed Statehood of the Islamic State between 2014 and 2017 and International Law

The Islamic State of Iraq and Syria is considered one of the most serious threats to the entire world. In order to provide a lawful response against this threat, it is necessary to verify whether the Islamic State is actually a State. The concept of State is still at the centre of the contemporary international legal order, but there is not a general consensus about the elements that constitute a State under international law, and the conditions pursuant to which international personality is conferred to an entity claiming statehood. Accordingly, it can be useful to examine both the factual bases of the Islamic State and its legal entitlement to aspire to become an independent State under international law. From this enquiry, at the moment the Islamic State appears not to be a State in light of international law, but rather a group of insurgents with a territorial basis

The Italian Constitutional Court’s ruling against state immunity when international crimes occur: thoughts on decision no 238 of 2014

The tension between access to justice and jurisdictional immunity of States is one of the most debated topics in current public international law. The present essay aims to explore the Italian Constitutional Court’s opinion on this matter, in particular after its recent judgment no. 238 of 2014, in which the Court stated that Italy is no longer bound by the rule on State immunity in the case of civil proceedings dealing with damages caused by the Nazi army during World War II. Studying the Court’s reasoning and the arguments provided in order to compel Italy not to implement the ICJ judgment in the Jurisdictional Immunities of the State could provide a new point of view in the International Community, based on domestic constitutional norms, about the fundamental need to protect the rights of the human being, even to the detriment of a international customary rule