Litigating “Palestine” Before International Courts and Tribunals: The Prospects of Success and Perils of Failure
The Hastings International and Comparative Law Review has just published my paper on Palestine and the possibilities of international litigation. The paper was originally presented at the Hastings College of the Law in San Francisco on 25 March 2011.
You can read my review of John Quigley's The Statehood of Palestine: International Law and the Middle East Conflict (Cambridge: Cambridge University Press, 2010) in Vol. 105, The American Journal of International Law (2011), p. 407.
This article revisits the use of force discourse that was invoked by states, international organisations, and individuals in response to Israel's military assault on the Gaza Strip in Operation Cast Lead. In particular, it examines the legal issues raised in a letter published by two dozen international lawyers in The Sunday Times (of London) on January 11, 2009, characterising the assault as an act of aggression. The author argues that the key issue in making this determination would seem to be the legal status of the Gaza Strip. This is because if Gaza is still considered occupied territory,then the situation is one of belligerent occupation and the question of aggression would not normally arise. However, there have been examples of state practice where non-state entities entitled to self-determination have been subjected to acts of aggression in the past. In those cases, it was the gravity of the military offensive that was the determining factor. Seen in this light, and taking the United Nation's 1974 Definition of Aggression as a guiding document, it could be argued that the Gaza Strip was subjected to an act of aggression in Operation Cast Lead.
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