The success or failure of such a move largely hinges on the international community’s (and in particular, a few key players’) willingness to recognize Palestinian sovereignty against Israel’s wishes. To gain recognition as a member of the United Nations, it would require the support of at least 96 countries including all permanent members of the UN Security Council (UNSC).

A number of analysts have already noted similarities between the case of Palestine and that of Kosovo, which unilaterally declared its independence from Serbia two years ago next week. Though remaining nominally under UN administration under the terms of UNSC Resolution 1244, to date Kosovo’s independence has been recognized by 63 countries, including the United States and many European countries. Its status remains uncertain however, and due to opposition from Russia and China it has little hope of becoming a UN member-state.

In response to Kosovo’s declaration of independence, Serbia has called on the International Court of Justice (ICJ) to rule on the legality of this move. The effects of the ICJ’s advisory opinion, which is expected later this year, are not likely to change things on the ground; where it may have an effect is to influence the international community’s willingness to accept Kosovo’s sovereignty, potentially leading to greater legitimacy and UN membership.

Recognizing the implications of the decision, both sides have vested themselves seriously in the proceedings. Serbia has argued that Kosovo’s independence violates Serbia’s territorial integrity and the terms of Resolution 1244. Kosovo has argued, inter alia, that Resolution 1244 never envisioned a return to full Serbian sovereignty and that the history of violent persecution of Albanians by Serbs, which came to a horrific peak under Slobodan Milosevic, justifies its claim to self-determination on the grounds of protecting the human rights and civil rights of a minority group. This argument is somewhat tenuous, as it could potentially open the door to dozens of other separatist groups seeking independence and implicitly offer legal recognition to those who would seek to achieve nationalist goals by fostering ethnic violence. I would not venture to speculate yet as to the decision of the court, but as the first case of secession to be decided by the ICJ it is sure to have implications for other separatist groups, including the Palestinians.

If the ICJ determines Kosovo’s secession to be legal, it seems likely that a Palestinian declaration of independence will closely follow suit. The two cases bear many similarities: both have been marked by decades of ethnic conflict and persecution, both saw a disenfranchised ethnic group pushing for autonomy in a territory that historically was shared but where it currently constitutes a majority, both are areas of particular concern for the international community, both Serbia and Israel have symbolic nationalist reasons for wanting to hold onto their breakaway territories, and both conflicts have so far proven irresolvable without an imposed or unilateral solution.

Moreover, thanks to Fayyad and those who came before him, the Palestinians already have the benefit of numerous state or quasi-state institutions, and far broader international support than Kosovo does. When the PLO previously declared Palestinian statehood in 1988, the state of Palestine was recognized by close to 100 countries. Today, the number would be much higher, particularly as many European countries have recently expressed a readiness to accept a unilateral Palestinian declaration of independence. Moreover, unlike in 1988, today all major powers – including the United States – have expressed their commitment in principle to a Palestinian state.

Such a state is most probably going to emerge, one way or another. Regardless of the ICJ’s decision on Kosovo, it is unlikely that the Palestinians will wait forever for a peace agreement with Israel. Palestinian President Mahmoud Abbas and others have long been seeking a more prominent role for international institutions, and particularly the ICJ, in their standoff with Israel, and a favourable ruling in this case will certainly bolster their position.

Proceedings against Radovan Karadzic began on October 28, 2009, despite the accused’s refusal to attend court. The case was supposed to start on October 26 but Karadzic, who is representing himself, asked for at least eight more months to prepare his case. The court gave him 24 hours to change his mind. After he failed to appear on Tuesday, judges ordered the Prosecution to open its case and warned Karadzic to appear in court or risk having counsel assigned to him and being tried in absentia.

For more information, see the Reuters article or our own Lee Rovinescu’s analysis of the situation.

2. R. v. Munyaneza

On October 29, 2009, Justice André Denis of the Quebec Superior Court handed down a life sentence to Désiré Munyaneza, the Rwandan genocidaire who helped organize and perpetrate the mass-murder of Tutsis in the Butare area. On May 22, 2009, Justice Denis found Munyaneza guilty of two counts of genocide, two counts of crimes against humanity and three counts of war crimes. Having concluded that the killings were premeditated, Justice Denis held that Munyaneza would not be eligible for parole for 25 years.

Munyaneza was the first person to be charged under Canada’s Crimes Against Humanity and War Crimes Act. The Act incorporates universal jurisdiction, allowing Canada to prosecute any individual present in Canada for genocide, war crimes and crimes against humanity.

3. United States of America v. Cail

On October 26, 2009, the Alberta Court of Appeal upheld the Minister of Justice’s decision to extradite Ronald Cail, a Canadian citizen and Albertan resident, to the United States (US) for the distribution of child pornography.

Having allegedly distributed the material via his computer from his Alberta home, Cail argued that the evidence did not establish that the crime at issue occurred within the foreign jurisdiction. He essentially relied on s. 47(e) of the Extradition Act, which provides that the Minister may refuse extradition where “none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction”. The Court acknowledged this basis for refusal but added that it was discretionary and not absolute. It supported the Minister’s privileging of US interests in prosecuting the crime over those of Canada. In so doing, the Court implicitly privileged the use of an interests-analysis approach when making extradition decisions over the use of traditional localization rules. The court notably admitted the difficulty in determining the location of such a crime: “when someone sends child pornography over the internet the crime is partly committed at both ends of the transmission”.

Cail also argued that “it would be unjust or oppressive for [him] to be tried in the US for an offence allegedly committed in Alberta, in the absence of assurances regarding funding for legal assistance”. Dismissing this argument, the Court posited that “the Minister is entitled to assume that the person sought by the foreign jurisdiction will receive a fair trial there”. Drawing on Canada v. Schmidt ([1987] 1 S.C.R. 500), the Court concluded that the Minister of Justice only has to seek assurances when extradition would “shock the conscience” of Canadians.

For more information, see the full decision.

4. ‘Honduras’ v. Brazil?

On October 28, 2009, the Interim Government of Honduras filed an application to institute proceedings against Brazil at the International Court of Justice. According to the ICJ press release, the Interim Government seeks a declaration that Brazil has breached the principle of non-intervention by allowing ousted President, José Manuel Zelaya Rosales, and his supporters to take refuge in the Brazilian embassy and use the premises as “a platform for political propaganda and thereby [threaten] the peace and internal public order of Honduras”.

James Harrison of International Law Observer argues that it is “a particularly controversial [move] given the international condemnation of the coup d’etat”. Brazil has already indicated that it does not consider the interim government to be competent to bring the case. As Dapo Akande writes at EJIL talk, the ICJ may get to pronounce on whether the new “government” is actually the government. For a preliminary analysis of this issue, see Akande’s full post.

Nonetheless, the future of the proceedings is now in question: on October 30, 2009, the interim leader of Honduras, Roberto Micheletti, signed an agreement with Zelaya to end the crisis and create a power-sharing government.

5. French Embezzlement Probe Against African Leaders Comes to a Halt

Anti-corruption group Transparency International had accused Omar Bongo of Gabon, Denis Sassou-Nguesso of the DRC, Teodoro Obiang Nguema of Equatorial Guinea, and their relatives, of acquiring luxury homes and cars in France with African public funds. On October 29, 2009, the Court of Appeal of Paris ruled that the complaint was inadmissible because the NGO had no interest in the matter. The court justified this decision with a finding that the NGO had not suffered a direct personal injury from the alleged corruption. Transparency International has already announced that it will appeal this decision to France’s highest court.

For more information, see the le Monde or Reuters articles.

6. Do Predator Drone Attacks Violate International law?

On October 27, 2009, Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, warned that the United State’s use of unmanned warplanes to carry out attacks in Pakistan and Afghanistan may be illegal. Reiterating concerns that he raised with the US in June, Alston criticized the US administration for failing to reveal

the legal basis on which the United States is operating the drones, [the] precautions it is taking to ensure these weapons are used strictly for purposes consistent with international humanitarian law, and [the] mechanisms … in place to review the use of the weapons (Reuters).

Opinio Juris’ Kenneth Anderson, who has written extensively about targeted killings, believes that the US’ targeted killing program is perfectly legal but regards the unwillingness of the Obama administration to clearly state the legal basis on which this program operates to be “a serious legal policy mistake”.

7. US and EU Reach Agreement on New International Criminal Law Treaties

On October 28, 2009, the US and the EU announced an agreement for two treaties on mutual legal assistance and extradition. The new treaties seek to improve EU-US cooperation in combating terrorism, cyber crime, international fraud, human and drug trafficking, and other serious international crimes. According to the Courthouse News Service, the new treaties “include first-time rules that would allow EU countries to refuse to extradite criminals that might be subject to the death penalty, but left dangling the issues of Guantanamo Bay prisoners”.

For more information, see the US Department of Justice press release and the Jurist article.

Other notable developments and opinions:

• Janet Albrechtsen – Has Anyone Read the Copenhagen Agreement?
• The U.N. backed negotiations on global arms trade treaty
• U.N. again condemns U.S. embargo against Cuba
• U.N. Chief Ban Launched an Inquiry Into Guinea Protest Violence