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Papers by Giulia Pinzauti
The Military Law and the Law of War Review
The prohibition of territorial acquisitions by force is undisputed. Scholars agree that an occupy... more The prohibition of territorial acquisitions by force is undisputed. Scholars agree that an occupying power cannot annex any of the territory it occupies, or its status would become illegal. But at what point does an occupation regime cross a legal tipping point into annexation? This article seeks to conceptualize the threshold between occupation and creeping annexation. It posits that, to answer that question, it is necessary to make an overall assessment of the quality and quantity of the display of the occupant state’s powers over the occupied territory. The study analyses nine examples of de jure or de facto annexation. Through a systematic comparative analysis of those nine examples with three other case studies of belligerent occupation in which the occupier(s) did not have the animus to annex the occupied territory, the article identifies several ‘red flags’ of an occupying state’s intention to integrate a territory. While these indicators are not legal conditions of creeping ...
Journal of International Criminal Justice
This article revisits the possibility of prosecuting the underlying acts of aggression as crimes ... more This article revisits the possibility of prosecuting the underlying acts of aggression as crimes against humanity before the International Criminal Court, with specific reference to the February 2022 unlawful use of force against Ukraine by the Russian Federation. The authors argue that Russia’s unlawful use of force in breach of the right to self-determination of the Ukrainian people, which caused them great suffering or serious injury to mental/physical health, can be qualified as other inhumane acts under Article 7(1)(k) of the Rome Statute. While this approach has its challenges, it would allow the Court to prosecute the underlying acts of aggression as crimes against humanity avoiding the jurisdictional limitations that apply to the crime of aggression.
Leiden Journal of International Law
In this article, 'remote hearing' refers to a hearing held with the parties participating via vid... more In this article, 'remote hearing' refers to a hearing held with the parties participating via videoconferencing software; 'hybrid hearing' refers to a hearing where some party representatives are present in the Great Hall of Justice and some participate via videoconference. Throughout the pandemic, some judges, including the President, have been present in the Great Hall for hearings. 'virtual hearing' encompasses both remote and hybrid hearings. 2 This is what Lord Burnett, the Lord Chief Justice of England and Wales, stated in evidence to the House of Lords constitution committee, regarding the work of the courts and judiciary of England and Wales.
Journal of International Criminal Justice
One of the traditional criteria for statehood under the Montevideo Convention is that an entity p... more One of the traditional criteria for statehood under the Montevideo Convention is that an entity possesses an ‘effective government’. Against this backdrop, this article discusses the impact of belligerent occupation on Palestine’s ability to possess an effective government, and thus fulfil the criteria for statehood. It argues that, as a matter of law, the requirement of effective government should not be interpreted strictly. Statehood does not require an immutable threshold of effectiveness; rather, the criterion has been flexibly interpreted and applied in practice. Belligerent occupation is a factual circumstance calling for such a flexible interpretation. While occupation impairs an occupied entity’s ability to exercise the functions of government, it does not affect statehood. Within the framework of the Rome Statute, the fact that the Court has jurisdiction over situations of belligerent occupation confirms this interpretation. Moreover, when assessing whether an occupied ent...
Leiden Journal of International Law
Last year the International Court of Justice (ICJ) marked its seventieth anniversary, and in the ... more Last year the International Court of Justice (ICJ) marked its seventieth anniversary, and in the most recent issue of the Leiden Journal of International Law, Hugh Thirlway recognized this milestone with a look back through some key developments at the Court, focusing on the last few years. Here, we would like to undertake a retrospective of another sort, paying tribute to the ongoing connection between the Court and the Journal by taking a brief tour through the Journal's coverage of the Court over the years. It is hoped that this retrospective will not only bring back some fond memories but also – by viewing this material as a whole, and pointing out certain gaps in the Journal’s coverage of the Court's work – stimulate future analyses.
The Future of International Law, 2012
The Italian Yearbook of International Law Online, 2007
Journal of International Criminal Justice, 2005
Journal of International Criminal Justice, 2008
The European Court of Human Rights has the inherent jurisdiction to incidentally apply provisions... more The European Court of Human Rights has the inherent jurisdiction to incidentally apply provisions pertaining to the domestic systems of the contracting states or belonging to other branches of international law (such as international criminal law and humanitarian law) whenever the Convention contains a renvoi to such bodies of law. Practice shows that the Court does apply these 'external' provisions, though not always accurately. For instance in the Kononov case, due to a misapprehension of the rules of humanitarian law on civilian immunity (and, as a consequence, of the secondary rules of international criminal law), the Court wrongly held that the respondent state breached Article 7 of the Convention in convicting the applicant of war crimes. As the Court declared itself competent to apply municipal law on the strength of the renvoi enshrined in the relevant provisions of the Convention, this article argues it should also have applied humanitarian law incidentally when dealing with human rights violations committed in time of armed conflict.
Journal of International Criminal Justice, Mar 10, 2010
The article deals with some of the new legal issues arising in the Mrkšić et al. A... more The article deals with some of the new legal issues arising in the Mrkšić et al. Appeal Judgment, with particular regard to the responsibility of the accused Veselin Šljivančanin for his role in the attack against Croat prisoners of war (POWs) that occurred in Ovčara, Croatia, in 1991. The ICTY Appeals Chamber shed light on the nature and scope of
The Military Law and the Law of War Review
The prohibition of territorial acquisitions by force is undisputed. Scholars agree that an occupy... more The prohibition of territorial acquisitions by force is undisputed. Scholars agree that an occupying power cannot annex any of the territory it occupies, or its status would become illegal. But at what point does an occupation regime cross a legal tipping point into annexation? This article seeks to conceptualize the threshold between occupation and creeping annexation. It posits that, to answer that question, it is necessary to make an overall assessment of the quality and quantity of the display of the occupant state’s powers over the occupied territory. The study analyses nine examples of de jure or de facto annexation. Through a systematic comparative analysis of those nine examples with three other case studies of belligerent occupation in which the occupier(s) did not have the animus to annex the occupied territory, the article identifies several ‘red flags’ of an occupying state’s intention to integrate a territory. While these indicators are not legal conditions of creeping ...
Journal of International Criminal Justice
This article revisits the possibility of prosecuting the underlying acts of aggression as crimes ... more This article revisits the possibility of prosecuting the underlying acts of aggression as crimes against humanity before the International Criminal Court, with specific reference to the February 2022 unlawful use of force against Ukraine by the Russian Federation. The authors argue that Russia’s unlawful use of force in breach of the right to self-determination of the Ukrainian people, which caused them great suffering or serious injury to mental/physical health, can be qualified as other inhumane acts under Article 7(1)(k) of the Rome Statute. While this approach has its challenges, it would allow the Court to prosecute the underlying acts of aggression as crimes against humanity avoiding the jurisdictional limitations that apply to the crime of aggression.
Leiden Journal of International Law
In this article, 'remote hearing' refers to a hearing held with the parties participating via vid... more In this article, 'remote hearing' refers to a hearing held with the parties participating via videoconferencing software; 'hybrid hearing' refers to a hearing where some party representatives are present in the Great Hall of Justice and some participate via videoconference. Throughout the pandemic, some judges, including the President, have been present in the Great Hall for hearings. 'virtual hearing' encompasses both remote and hybrid hearings. 2 This is what Lord Burnett, the Lord Chief Justice of England and Wales, stated in evidence to the House of Lords constitution committee, regarding the work of the courts and judiciary of England and Wales.
Journal of International Criminal Justice
One of the traditional criteria for statehood under the Montevideo Convention is that an entity p... more One of the traditional criteria for statehood under the Montevideo Convention is that an entity possesses an ‘effective government’. Against this backdrop, this article discusses the impact of belligerent occupation on Palestine’s ability to possess an effective government, and thus fulfil the criteria for statehood. It argues that, as a matter of law, the requirement of effective government should not be interpreted strictly. Statehood does not require an immutable threshold of effectiveness; rather, the criterion has been flexibly interpreted and applied in practice. Belligerent occupation is a factual circumstance calling for such a flexible interpretation. While occupation impairs an occupied entity’s ability to exercise the functions of government, it does not affect statehood. Within the framework of the Rome Statute, the fact that the Court has jurisdiction over situations of belligerent occupation confirms this interpretation. Moreover, when assessing whether an occupied ent...
Leiden Journal of International Law
Last year the International Court of Justice (ICJ) marked its seventieth anniversary, and in the ... more Last year the International Court of Justice (ICJ) marked its seventieth anniversary, and in the most recent issue of the Leiden Journal of International Law, Hugh Thirlway recognized this milestone with a look back through some key developments at the Court, focusing on the last few years. Here, we would like to undertake a retrospective of another sort, paying tribute to the ongoing connection between the Court and the Journal by taking a brief tour through the Journal's coverage of the Court over the years. It is hoped that this retrospective will not only bring back some fond memories but also – by viewing this material as a whole, and pointing out certain gaps in the Journal’s coverage of the Court's work – stimulate future analyses.
The Future of International Law, 2012
The Italian Yearbook of International Law Online, 2007
Journal of International Criminal Justice, 2005
Journal of International Criminal Justice, 2008
The European Court of Human Rights has the inherent jurisdiction to incidentally apply provisions... more The European Court of Human Rights has the inherent jurisdiction to incidentally apply provisions pertaining to the domestic systems of the contracting states or belonging to other branches of international law (such as international criminal law and humanitarian law) whenever the Convention contains a renvoi to such bodies of law. Practice shows that the Court does apply these 'external' provisions, though not always accurately. For instance in the Kononov case, due to a misapprehension of the rules of humanitarian law on civilian immunity (and, as a consequence, of the secondary rules of international criminal law), the Court wrongly held that the respondent state breached Article 7 of the Convention in convicting the applicant of war crimes. As the Court declared itself competent to apply municipal law on the strength of the renvoi enshrined in the relevant provisions of the Convention, this article argues it should also have applied humanitarian law incidentally when dealing with human rights violations committed in time of armed conflict.
Journal of International Criminal Justice, Mar 10, 2010
The article deals with some of the new legal issues arising in the Mrkšić et al. A... more The article deals with some of the new legal issues arising in the Mrkšić et al. Appeal Judgment, with particular regard to the responsibility of the accused Veselin Šljivančanin for his role in the attack against Croat prisoners of war (POWs) that occurred in Ovčara, Croatia, in 1991. The ICTY Appeals Chamber shed light on the nature and scope of