Does the International Law of Assassination Outside of the Battlefield Make Sense?

Alan Dershowitz’s recent Huffington Post column discusses the legality of the assassination of Mahmoud al-Mabhouh, (now former) leader of Hamas’ military wing. Commentators correctly speculate that Israel was responsible. Dershowitz argues that the assassination did not violate international law. Whether or not the assassination violated international law, another important question is whether the relevant international law makes sense.

Dershowitz’s first inquiry is to determine if al-Mabhouh was a combatant vis-à-vis his killers. Accepting that the Israelis assassinated him, al-Mabhouh was a combatant—considering that he was an “active participant in the ongoing war by Hamas against Israeli civilians. Indeed, it is likely that he was killed while on a military mission to Iran in order to secure unlawful anti-personnel rockets that target Israeli civilians.[1]” Now that we’ve established that al-Mabhouh was a combatant, we have to determine if there are circumstances in which international law forbids combatant assassinations. Presumably, international law does not allow assassinations of combatants under all circumstances.

Dershowitz writes that geography is the only limitation on assassinations of combatants. Had the assassination taken place in Gaza, it assuredly would have been legal. The only complication to the legality of the assassination is the fact that it took place in Dubai. Dubai law and sovereignty was violated—but nothing else. Perhaps there should be other circumstances in which assassinations of combatants are prohibited. I confess to not being an international law expert;…

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Disentangling politics and law in East Jerusalem

Israeli construction in East Jerusalem is nothing new; since 1967, when Israel conquered the territory along with the rest of what had come to be known as the West Bank from neighbouring Jordan and extended Israeli administration over the entire city, Israel has settled close to 200,000 of its Jewish citizens in Jerusalem’s eastern sector (which has an Arab population of approximately 230,000).[1] Due to the acceleration of Israeli construction in recent months and renewed political will within the US administration to aggressively advance the Israeli-Palestinian peace process, East Jerusalem construction has increasingly become a source of tension between Israel and its Western allies and a focal point of media attention.

The status of Jerusalem is one of the most contentious issues in the Middle East and has no clear-cut solution. I would not presume to offer one. I will, however, attempt to disentangle and analyze some of the various legal and political considerations that are implicated in Israel’s construction in East Jerusalem.

Historical overview

Faced with rising internecine conflict between Jews and Arabs in Mandatory Palestine and the incompatible nationalist aspirations of both groups, Britain in 1947 placed the question of Palestine before the United Nations. The UN General Assembly proposed to partition Palestine (Resolution 181) into two sovereign states, with Jerusalem a corpus separatum to be administered by an international regime under the control of the UN. This proposal was never implemented; during…

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What the ICJ ruling on Kosovo could mean for Palestine

The year 2009 saw a renewed push, albeit a stunted one, for Palestinian statehood. Palestinian Prime Minister Salam Fayyad gained considerable attention in the West for his plan to oversee construction of state infrastructure from the ground up, and for his announcement that this would lead to a declaration of independence within two years. There has been notable progress, with significant growth both in the Palestinian economy and its governmental and security infrastructure. Given the current political climate in Israel, however, it seems unlikely that a bilateral peace agreement will be reached by Fayyad’s deadline. If negotiations don’t yield the results the Palestinian Authority (PA) is seeking, will it take the bold move of declaring statehood unilaterally? The Palestinians tried this gambit before, unsuccessfully, in the pre-PA days.

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…

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Who needs a written constitution?

We in Canada tend to think of our Constitution, most notably the 1982 Canadian Charter of Rights and Freedoms, as a distinct source of national pride. Indeed, the importance of the Charter cannot be overstated – it has had far-reaching international influence as a model of constitutional reform, for example helping to shape the post-Apartheid South African constitution, the New Zealand Bill of Rights Act, and the UK Human Rights Act;[1] moreover Canadian Charter cases are “routinely referred to in most of the Commonwealth.”[2]

One of the most important functions of a written constitution is the entrenchment of certain human rights which are recognized as universal and not subject to the whims of the legislature; as such, the Canadian Charter was also an important step, as it broke with the British tradition of parliamentary supremacy by giving broad powers of judicial review to the courts, and granted even broader rights than did the US Bill of Rights (though this is partly balanced by the fact that Charter rights are subject to the notwithstanding clause).

One might worry, then, about the protection of human rights in countries that do not have written constitutions. Most notably, the UK has no formal written constitution, but instead relies on conventions and common law principles to fill in the gaps of statute law. Many such principles, written or unwritten, as well as certain statutes and treaties, have been granted constitutional force.[3] Through…

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Bil’in (Village Council) c. Green Park International Inc: an Overeaching Assertion of Jurisdiction?

In his detailed analysis of Bil’in (Village Council) c. Green Park International Inc, James Yap argues that the plaintiffs will have a great chance of overturning Cullen J.’s decision to decline jurisdiction. Since our own Alexandra Dodger introduces this intricate case very well, I direct those who are unfamiliar with it to her entry. While I welcome the decision for its potential to end the impunity with which Canadian corporations operate overseas, I believe that the Court of Appeal would not overturn Cullen J.’s decision if it did hear the matter. I agree with the outcome because the connection between the dispute and Québec is far too superficial for a Québec court to legitimately claim jurisdiction over the action. However, the issues raised by the application of forum non conveniens to this case should make us think twice before dismissing the plaintiffs’ action as an abusive or exaggerated assertion of jurisdiction.

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later points out

this lone and apparent…

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Quebec Courts Open a New Chapter on Corporate Civil Liability: Paying for War Crimes?

The Palestinian village of Bil’in is headed to the Quebec Cour d’appel, in an attempt to hold two Montreal corporations civilly liable for their actions in the occupied Palestinian territories. Justice Louis-Paul Cullen of the Superior Court ruled against the villagers in a decision handed down on September 18, 2009.

Bil’in is a tiny agricultural community of 1,800 residents located 12 kilometres west of Ramallah, well within to the 1967 Armistice line dividing Israel and the West Bank. Though it is firmly rooted in the Occupied Palestinian Territories, the village has been bisected by the Israeli “Security Barrier”. The route of the barrier was deemed to be illegal, and in breach of international law by the International Court of Justice in 2004. In 2007, the High Court of Justice in Israel ordered the wall re-routed, confirming they saw no security or military reasons to maintain the current path of the wall, deeming it “highly prejudicial” to the villagers of Bil’in. Still, the wall remains in place, prompting Bil’in and its allies to seek new forums for judicial redress.

Their attorney, Israeli human rights lawyer Michael Sfard, decided a new approach was needed and began to target the corporations that he claims are complicit in the loss of Bil’in’s land. On the other side of the Israeli barrier, the settlement bloc of Modi’in Ilit has been constructed. And the development companies building these rapidly growing…

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