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Herb Keinon

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

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

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” 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

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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