Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02

2007 ◽  
Vol 101 (2) ◽  
pp. 459-465 ◽  
Author(s):  
Daniel Bodansky ◽  
Orna Ben-Naftali ◽  
Keren Michaeli
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Armed Conflicts ◽  
Direct Part ◽  
Customary International Law ◽  
High Court ◽  
Additional Protocol ◽  
Court Of Justice ◽  
The Supreme Court

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02. At <http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf>.Supreme Court of Israel, sitting as the High Court of Justice, December 13, 2006.In Public Committee Against Torture in Israel v. Government of Israel1 Targeted Killings) the Supreme Court of Israel, sitting as the High Court of Justice, examined the legality of Israel's “preventative targeted killings” of members of militant Palestinian organizations. The Court's unanimous conclusion reads:The result of the examination is not that such strikes are always permissible or that they are always forbidden. The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians “for such time as they take a direct part in hostilities” (§51(3) of [Additional Protocol I]). Harming such civilians, even if the result is death, is permitted, on the condition that there is no less harmful means, and on the condition that innocent civilians are not harmed. Harm to the latter must be proportional. (Para. 60)

Presumption of Marriage in Uganda

2020 ◽  
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Case Law ◽  
African Countries ◽  
High Court ◽  
The Supreme Court ◽  
Living Together ◽  
Law And Legislation ◽  
Court Of Appeal

Abstract Case law, amongst other sources, shows that many people in Uganda are living together as husband and wife although they are not married. Unlike legislation in other African countries such as Tanzania and Malawi, in Uganda, the pieces of legislation governing marriages are silent on the issue of presumption of marriage. Likewise, unlike in Kenya and South Africa where legislation does not provide for presumption of marriage but courts have held that such a presumption exists based on long cohabitation, Ugandan courts, the High Court, and the Court of Appeal, have held that Ugandan law does not recognise marriage based on long cohabitation (marriage by repute). However, courts will presume the existence of a marriage where a marriage ceremony took place. Since 2003, attempts to enact legislation to provide for the presumption of marriage in Uganda have not been successful. In this article, the author argues that there is still room for the Supreme Court to hold, on the basis of common law, that Ugandan law recognises the principle of presumption of marriage. This recognition would also be in line with Uganda’s international law obligation as the Committee on the Elimination of Discrimination against Women has called upon States Parties to CEDAW to enact legislation giving effect to de facto unions. The author relies on case law and legislation from some African countries to suggest ways in which the Supreme Court could deal with the issue of presumption of marriage.

Nevsun Resources Ltd. v. Araya et al. (S.C.C.)

2020 ◽  
Vol 59 (5) ◽  
pp. 747-810
Author(s):  
Russell Hopkins
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Customary International Law ◽  
The Supreme Court

In a judgment delivered on February 28, 2020, the Supreme Court of Canada held (by majority, 7–2) that Canadian common law does not contain an all-encompassing doctrine of non-justiciability based on foreign acts of state; and (by a narrower majority, 5–4) that alleged breaches of customary international law (CIL) arguably provide a novel cause of action in tort. The court held that claims against a Canadian mining corporation related to alleged violations at a mine in Eritrea could proceed to trial.

Inter-jurisdictional Co-operation in the MERCOSUR: The First Request for an Advisory Opinion of the MERCOSUR’s Permanent Review Tribunal by Argentina’s Supreme Court of Justice

2011 ◽  
Vol 10 (2) ◽  
pp. 261-284
Author(s):  
Luciano Donadio ◽  
Carlos Espósito
Keyword(s):  
Member State ◽  
Supreme Court ◽  
International Law ◽  
Advisory Opinion ◽  
Judicial Process ◽  
Milk Products ◽  
Final Destination ◽  
Court Of Justice ◽  
The Supreme Court ◽  
System 2

AbstractThis comment discusses the request for an advisory opinion that originated in the case Sancor c/ Dirección General de Aduanas. This case emerged from the resolution of the Argentine Ministry of Economy which set export duties of 5% to certain milk products, without discriminating with regard to the destination of them, i.e. including members as well as non-members of the Southern Common Market (MERCOSUR). In this way, and after a long judicial process, in October 2009 Argentina’s Supreme Court of Justice (CSJN) requested an advisory opinion from the Permanent Review Tribunal of the MERCOSUR, ‐ Tribunal Permanente de Revisión ‐ asking the question “Does the Treaty of Asunción require Member States of MERCOSUR the obligation not to impose duties on exports of goods which are originated in one of them and which have another Member State as its final destination?” This article describes the historical circumstances surrounding the Argentine governmental measure, and then analyzes three specific issues related to the request of the advisory opinion by the Supreme Court: 1) the place of international law in the Argentine legal system; 2) the procedural legitimacy of the decision of the Court; and 3) some substantive issues involved in the requested advisory opinion.

DUAL ATTRIBUTION OF ACTS COMMITTED BY A UN PEACEKEEPING FORCE: AN EMERGING NORM OF CUSTOMARY INTERNATIONAL LAW? THE DUTCH SUPREME COURT’S JUDGMENTS IN NUHANOVIÇ AND MUSTAFIĆ

2014 ◽  
Vol 23 (1) ◽  
pp. 287-297 ◽  
Author(s):  
Christine Bakker
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
International Law ◽  
Access To Justice ◽  
Customary International Law ◽  
Judicial Practice ◽  
Un Peacekeeping ◽  
European Court ◽  
The Supreme Court

In two cases lodged by victims (or their relatives) of the massacre in Srebrenica in 1995, the Supreme Court of the Netherlands has taken a progressive stance on the interpretation of international law on the responsibility of States and international organizations for wrongful acts. The Supreme Court upheld the earlier decisions of The Hague Court of Appeal, confirming that the Netherlands can be held responsible for the death and injuries of these victims, despite the fact that the Dutch troops employed to protect this enclave were part of a United Nations (UN) peacekeeping force. By accepting the possibility of dual attribution of an internationally wrongful act to both the UN and the troop-sending State, it has departed from the restrictive approach adopted in current judicial practice, in particular by the European Court of Human Rights. In this note, the Supreme Court’s judgments are discussed, focusing on (i) the question of dual attribution of an international wrongful act, and (ii) the extraterritorial application of human rights treaties. It concludes that, although the Supreme Court’s reliance on two sets of Draft Articles of the International Law Commission without referring to any State practice is surprising, these judgments should be welcomed as significant precedents, which may contribute to the development of a norm of customary international law. They also constitute an important step towards ensuring access to justice and reparation for the victims of gross human rights violations, such as those committed in Srebrenica.

South Africa’s Exercise of Universal Jurisdiction

2014 ◽  
Vol 3 (1) ◽  
pp. 146-158
Author(s):  
Saidat Nakitto
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Criminal Court ◽  
Universal Jurisdiction ◽  
Crimes Against Humanity ◽  
Customary International Law ◽  
High Court ◽  
The Supreme Court ◽  
Court Of Appeal

On 27 November 2013 the Supreme Court of Appeal of South Africa affirmed the decision of the High Court that South Africa’s Implementation of the Rome Statute of the International Criminal Court Act 2002 (icc Act) empowered South African officials to initiate investigations into crimes against humanity committed in Zimbabwe in the absence of the perpetrators in South Africa. This decision was in response to the true interpretation of section 4(3)(c) of the icc Act providing for universal jurisdiction. This paper examines the judgment of this Court, arguing that though customary international law is silent on the requirement for presence of the perpetrators for initiation of investigation, the Court should have given proper examination of this section by taking into consideration of the previous presence of some of the perpetrators in South Africa after the alleged crimes were committed.

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