The Occasional Paper Series

Torkel Opsahl Academic EPublisher
Brussels, 2025
34 pages.
Published on 6 October 2025.
ISBN: 978-82-8348-287-4.
PURL: http://www.toaep.org/ops-pdf/18-brutalization/.

Torkel Opsahl Academic EPublisher
Brussels, 2025
39 pages.
Published on 5 August 2025.
ISBN: 978-82-8348-266-9.
PURL: http://www.toaep.org/ops-pdf/17-ukrainian/.
Topic: Drawing on the collapsed prosecutions at the International Criminal Court – most recently in cases against Gbagbo and Blé Goudé – Ewan Brown and William H. Wiley argue that international prosecutorial offices consistently fail to collect sufficient high-quality evidence and to assess properly what they hold. They identify three persistent shortcomings: deficient collection planning, the absence of professionalized collection management, and inadequate evidence review. They distinguish crime base, linkage and contextual evidence, cautioning against the chronic over-collection of crime base material at the expense of linkage evidence. Borrowing from Western security-intelligence practice, Brown and Wiley advocate dedicated collection managers, devil’s advocacy within investigative teams, and robust external evidence review.
Keywords: International criminal investigations; crime base, linkage and contextual evidence; collection planning and management; ICC Office of the Prosecutor; Gbagbo and Blé Goudé acquittal; evidence review procedures; quality control in prosecutorial practice.

Torkel Opsahl Academic EPublisher
Brussels, 2024
29 pages.
Published on 2 December 2024.
ISBN: 978-82-8348-247-8.
PURL: http://www.toaep.org/ops-pdf/16-dellavalle/.
Topic: In this paper, Sergio Dellavalle defends cosmopolitan law as an indispensable framework for addressing global challenges that transcend nation-states. Dellavalle argues that international law cannot achieve its purpose of guaranteeing peace without a cosmopolitan foundation rooted in the ethical use of practical reason. He examines three core challenges facing cosmopolitan law: inclusivity (potentially involving all individuals and groups worldwide), normativity (translating ethical principles into binding positive law), and legitimacy (justifying erga omnes obligations absent unanimous state consent). Tracing the concept from Stoic philosophy through Kant, Kelsen, and contemporary constitutionalization theories, Dellavalle surveys five legitimation strategies and, despite current crises – democratic decline, populism, deglobalization – affirms cosmopolitan law as a rational imperative.
Keywords: Cosmopolitan law; international law theory; constitutionalization of international law; universalism and particularism; legitimacy and erga omnes obligations; practical reason and legal philosophy; global governance and dual democracy; jus cogens and universal human rights; democratic backsliding.

Torkel Opsahl Academic EPublisher
Brussels, 2023
45 pages.
Published on 23 December 2023.
ISBN: 978-82-8348-227-0.
PURL: http://www.toaep.org/ops-pdf/15-greve/.
Topic: In this paper, written in tribute to the Albanian Constitutional Court’s thirtieth anniversary, Judge Hanne Sophie Greve traces the historical origins of the phrase ‘general principles of law recognized by civilized nations’ in Article 38 of the Statutes of the Permanent Court of International Justice and the International Court of Justice. Examining The Hague Peace Conferences, the Advisory Committee of Jurists, League of Nations mandates, the European Convention on Human Rights, and international humanitarian law, Judge Greve argues the term is obsolete and discriminatory. Yet she contends civilization, understood as a normative standard alongside humanity, offers dual protection worth preserving in any future revision.
Keywords: General principles of law recognized by civilized nations; Article 38 ICJ Statute; The Hague Peace Conferences; international humanitarian law; Martens clause; rule of law and humanity (homo humanus); sources of international law.

Torkel Opsahl Academic EPublisher
Brussels, 2022
127 pages.
Published on 9 November 2022.
ISBN: 978-82-8348-131-0.
PURL: http://www.toaep.org/ops-pdf/14-rhein-fischer-mensing/.
Topic: In this paper, Paula Rhein-Fischer and Simon Mensing examine the legal framework through which Germany governs remembrance of the National Socialist past. They identify three categories of memory laws: explicit punitive provisions (notably Holocaust denial and glorification of Nazi rule under Section 130 of the German Criminal Code), explicit non-punitive provisions (such as assembly restrictions at Nazi memorial sites), and ‘quasi-memory laws’ that acquire mnemonic significance through judicial interpretation. Rhein-Fischer and Mensing test the compatibility of these laws with the European Convention on Human Rights and European Union law, and explore three distinctive features of German memory governance: the concept of militant democracy, growing criticism of the current memory culture, and ‘new right-wing’ populism.
Keywords: Memory laws and mnemonic governance in Germany; Holocaust denial; National Socialism (Nazism); militant democracy (streitbare Demokratie); Vergangenheitsbewältigung; glorification of Nazi rule; dissemination of Nazi symbols; freedom of expression; ECHR; right-wing populism; AfD; second historians’ dispute (Historikerstreit).

Torkel Opsahl Academic EPublisher
Brussels, 2022
33 pages.
Published on 22 September 2022.
ISBN: 978-82-8348-211-9.
PURL: http://www.toaep.org/ops-pdf/13-kress/.
Topic: In this paper, Claus Kreß examines Russia’s war of aggression against Ukraine through the lens of the international law prohibition of the use of force, described by the International Court of Justice as a ‘cornerstone of the United Nations Charter’. Tracing Russia’s violations from 2014 through the February 2022 escalation, Kreß rejects Russia’s purported self-defence justifications and analyses the international community’s reactions, including United Nations Security Council and General Assembly responses, third-State military assistance to Ukraine, and questions of State and individual criminal responsibility. He also addresses peace treaty constraints and ceasefire scenarios, arguing that determined international support can safeguard both Ukraine’s territorial integrity and the prohibition’s enduring authority.
Keywords: Jus contra bellum; Russia–Ukraine war; Article 2(4) and Article 51; right of self-defence (individual and collective); crime of aggression; individual criminal responsibility; law of neutrality and non-belligerency; reparations; Security Council veto; Uniting for Peace resolution; peace negotiations; territorial concessions.

Torkel Opsahl Academic EPublisher
Brussels, 2022
96 pages.
Published on 16 September 2022.
ISBN: 978-82-8348-132-7.
PURL: http://www.toaep.org/ops-pdf/12-hansen/.
Topic: In this paper, Thomas Obel Hansen examines the International Criminal Court’s preliminary examination into alleged war crimes by British forces in Iraq (2003–2008), re-opened in 2014 following submissions by European Center for Constitutional and Human Rights and others. Based on interviews with British authorities, ICC officials, and lawyers, Hansen critically assesses assumptions about ‘positive complementarity’, distinguishing between ‘hand-over’ and ‘burden-sharing’ versions. He analyses interactions between the ICC’s Office of the Prosecutor and the United Kingdom government, examining domestic mechanisms like the Iraq Historic Allegations Team and its closure. Hansen argues that mainstream assumptions about preliminary examinations galvanizing domestic accountability are overstated, and that the UK’s campaign against claimant lawyers has significantly undermined accountability efforts for alleged systematic detainee abuse.
Keywords: ICC preliminary examination; positive complementarity; British war crimes in Iraq; Iraq Historic Allegations Team (IHAT); detainee abuse and unlawful killings; OTP strategies; UK domestic accountability mechanisms; Article 15 communications.

Torkel Opsahl Academic EPublisher
Brussels, 2022
87 pages.
Published on 19 July 2022.
ISBN: 978-82-8348-175-4.
PURL: http://www.toaep.org/ops-pdf/11-damojipurapu/.
Topic: In this paper, Medha Damojipurapu examines the nature and underlying themes of contemporary hate speech directed against Muslims in the name of Hinduism in India, focusing primarily on incidents since 2014 during the ruling Bharatiya Janata Party’s rule. Damojipurapu traces the historical and cultural roots of such rhetoric, including the consolidation of religious identities during British colonial rule and the rise of Hindu nationalism through ideologues like Vinayak Damodar Savarkar and Madhav Sadashivrao Golwalkar. She documents concrete instances of hate speech – including the Delhi pogrom, anti-CAA violence, ‘love jihád’, cow vigilantism, and calls for genocide at the Haridwar Dharam Sansad – while analysing India’s statutory framework and Supreme Court jurisprudence on hate speech, and proposing supplementary measures to address impunity.
Keywords: Hate speech in India; anti-Muslim violence; Islamophobia; Hindu nationalism (Hindutva); Delhi pogrom 2020; Citizenship (Amendment) Act; Jihád terminology (love jihád, corona jihád, land jihád); incitement to genocide and Dharam Sansad; Indian Penal Code (Sections 153A, 295A, 505).

Torkel Opsahl Academic EPublisher
Brussels, 2019
36 pages.
Published on 6 December 2019.
ISBN: 978-82-8348-150-1.
PURL: http://www.toaep.org/ops-pdf/10-tonkin/.
Topic: In this paper, Derek Tonkin examines the nature and scale of migration from Bengal into Arakan (Rakhine) during British colonial rule, drawing extensively on census records, settlement reports, and contemporary colonial documents. Tonkin contrasts the purposeful recruitment of Indian professional and skilled labour into Burma generally with the largely voluntary, informal settlement of Bengali agricultural labourers in Arakan, encouraged but not directly transferred by British authorities. Finding Arakan ‘almost depopulated’ in 1826 following the Burmese invasion of 1785, the British facilitated repopulation through tax incentives and porous borders. While acknowledging Britain’s colonial legacy, Tonkin argues no clear violation of international law occurred, and today’s Rohingya rightfully belong in Myanmar.
Keywords: Bengal–Arakan migration; British colonial rule in Burma; Rohingya historical identity; Rakhine State demographics; Chittagonian immigration; British Burma censuses (1872–1931); Muslim-Buddhist communal relations in Arakan; colonial legacy and international law.

Torkel Opsahl Academic EPublisher
Brussels, 2019
24 pages.
Published on 15 August 2019.
ISBN: 978-82-8348-085-6.
PURL: http://www.toaep.org/ops-pdf/9-bergsmo/.
Topic: In this paper, Morten Bergsmo examines the International Criminal Court’s investigation into alleged crimes in Myanmar’s Rakhine State against the backdrop of the country’s colonial history. Bergsmo argues that the ICC Prosecutor’s focus on deportation and demographic questions inevitably turns attention to Rakhine’s demographic background, shaped by Britain’s transfer of millions of civilians from colonial India into Burma during the late colonial period. While such population transfers are now criminalized under international law, the historical transfers into Burma remain widely considered legally irrelevant. Bergsmo invites consultation on designing a sui generis process to address this sense of double standards, reduce excessive polarization over accountability, and recognize the lingering harm caused by colonial-era demographic transformation, thereby supplementing – not impeding – existing accountability mechanisms.
Keywords: Myanmar/Rakhine State accountability; Rohingya crisis and deportation; Situation in Bangladesh/Myanmar; British colonial rule in Burma; colonial-era population transfers; transfer of civilians into occupied territory; Article 49(6), Geneva Convention IV; double standards in international criminal law; post-colonial international law; TWAIL.

Torkel Opsahl Academic EPublisher
Brussels, 2019
30 pages.
Published on 31 May 2019.
ISBN: 978-82-8348-116-7.
PURL: http://www.toaep.org/ops-pdf/8-kress/.
Topic: In this paper, Claus Kreß offers observations on the unanimous Judgment of 6 May 2019 by the Appeals Chamber of the International Criminal Court, which held that Jordan was under no obligation to respect former Sudanese President Omar Al-Bashir’s Head of State immunity ratione personae when requested by the Court to arrest and surrender him. Kreß agrees with the Chamber’s findings on both the ‘Security Council avenue’ and the ‘Customary Law avenue’, including the interplay between Articles 27(2) and 98(1) of the Rome Statute. However, he argues the Chamber should have circumscribed more narrowly the non-applicability of customary Head of State immunity, limiting it to international criminal courts genuinely embodying the international community’s ius puniendi over crimes under customary international law.
Keywords: ICC; Jordan Appeals judgment; Omar Al-Bashir; immunity ratione personae; international criminal courts and tribunals; Security Council Resolution 1593; Articles 27(2) and 98(1), Rome Statute; ius puniendi of the international community; horizontal co-operation; arrest and surrender.

Torkel Opsahl Academic EPublisher
Brussels, 2018
42 pages.
Published on 6 February 2018.
ISBN: 978-82-8348-176-1.
PURL: http://www.toaep.org/ops-pdf/7-dalessandra/.
Topic: In this paper, Federica D’Alessandra offers a celebratory tribute to Benjamin B. Ferencz, the last living Nuremberg prosecutor, tracing his seven-decade-long contribution to international criminal law. It examines his role as Chief Prosecutor in the landmark Einsatzgruppen case (United States v. Otto Ohlendorf et al.), his pioneering work on reparations and restitution for Holocaust victims through the JRSO, Claims Conference, and United Restitution Organization, and his pursuit of compensation from German industrialists who profited from forced labour. She further discusses Ferencz’ enduring advocacy for a permanent International Criminal Court, his intellectual influences, and his unwavering campaign to criminalize aggressive war-making, culminating in the Kampala Amendments and the activation of the ICC’s jurisdiction over the crime of aggression in 2017.
Keywords: Benjamin B. Ferencz; Nuremberg Military Tribunals; crime of aggression; International Criminal Court; Rome Statute; Holocaust reparations and restitution; Jewish Restitution Successor Organization (JRSO); Kampala amendments; post-World War II international criminal justice.

Torkel Opsahl Academic EPublisher
Brussels, 2016
50 pages.
Published on 29 August 2016.
ISBN: 978-82-8348-109-9.
PURL: http://www.toaep.org/ops-pdf/6-christensen/.
Topic: In this paper, Stian Nordengen Christensen examines how white phosphorus weapons are regulated under international law, assessing their status against the Chemical Weapons Convention, the Convention on Certain Conventional Weapons, and customary international humanitarian law. Drawing on use by United States forces in Fallujah (2004) and Israeli forces in Gaza (2008–2009), Christensen analyses five main military applications: smoke screens, illumination, target marking, ‘flushing out’ combatants, and incendiary purposes. He concludes that no general prohibition exists, though specific applications may violate principles of distinction and unnecessary suffering. Christensen argues a case exists for stronger international regulation and explores three treaty-based approaches to achieve tighter restrictions.
Keywords: White phosphorus; chemical weapons; incendiary weapons; customary international humanitarian law; principle of distinction; unnecessary suffering and superfluous injury; Operation Cast Lead; Gaza; Israel; United States.

Torkel Opsahl Academic EPublisher
Brussels, 2017 and 2019
87 pages (English) and 90 pages (B/C/S).
Published on 9 May 2017 (English) and 25 August 2019 (B/C/S).
ISBN: 978-82-8348-179-2 (English) and 978-82-8348-115-0 (B/C/S).
PURL: http://www.toaep.org/ops-pdf/5-bogoeva/ (English) and http://www.toaep.org/ops-pdf/5-bogoeva-b-c-s/ (B/C/S).
Topic: In this paper, Julija Bogoeva presents the findings of a five-month review of all judgements of the International Criminal Tribunal for the former Yugoslavia rendered by April 2015, examining whether the Tribunal established the goals of the warring parties and the nature of the conflict in the former Yugoslavia. Bogoeva demonstrates that the judgements consistently found the Serbian and Croatian leaderships pursued expansionist nationalist goals – a Greater Serbia and Greater Croatia – through criminal means including terror, persecution, and ethnic cleansing. The conflict was legally classified as international in character and characterized by widespread and systematic attacks against civilian populations across Croatia, Bosnia and Herzegovina, and Kosovo. She argues these tested facts constitute a crucial contribution to historical truth, countering revisionist tendencies.
Keywords: ICTY; Greater Serbia and Greater Croatia; expansionist nationalism; ethnic cleansing and persecution; armed conflict classification; crimes against humanity; Srebrenica genocide; widespread and systematic attack against civilians; joint criminal enterprise; common criminal purpose.

Torkel Opsahl Academic EPublisher
Brussels, 2014
37 pages.
Published on 28 November 2014.
ISBN: 978-82-93081-40-1.
PURL: http://www.toaep.org/ops-pdf/4-kress/.
Topic: Drawing inspiration from Oscar Schachter’s 1977 essay on the ‘Invisible College of International Lawyers’, Claus Kreß traces the historical evolution of international criminal law scholarship from the inter-war pioneers through the post-Nuremberg uncertainty and Cold War stagnation to the post-1993 renaissance following the establishment of the International Criminal Tribunal for the former Yugoslavia and International Criminal Court. He argues that international criminal law has now emerged as a full-fledged scholarly discipline performing essential theoretical, doctrinal, advisory, control, empirical, and historical functions. Kreß calls for the universalization of this scholarly college through greater participation from African, Arab, Asian, South American, and Russian scholars.
Keywords: International criminal law scholarship; invisible college of international lawyers; International Criminal Court; Nuremberg and Tokyo trials legacy; universalization of international criminal justice; functions of legal scholarship; cosmopolitanism; cultural pluralism in international law; regional contributions to international criminal law.

Torkel Opsahl Academic EPublisher
Oslo, 2013
53 pages.
Published on 24 January 2013.
ISBN: 978-82-93081-39-5.
PURL: http://www.toaep.org/ops-pdf/3-bonomy/.
Topic: In this paper, Lord Iain Bonomy examines the International Criminal Tribunal for the former Yugoslavia’s jurisprudence on the principles of distinction and protection in armed conflict, assessed through Articles 2, 3, and 5 of its Statute. Lord Bonomy analyses how Trial and Appeals Chambers have addressed direct attacks on civilians and civilian objects, including dual-use facilities, alongside the prohibitions on indiscriminate and disproportionate use of force. He explores the evolving definition of ‘civilian’ and ‘civilian population’, the treatment of persons hors de combat, and the recognition of ‘terrorizing the civilian population’ as a war crime, demonstrating the ICTY’s contribution to clarifying customary international humanitarian law for modern armed conflicts.
Keywords: ICTY jurisprudence; principle of distinction; protection of civilians in armed conflict; indiscriminate and disproportionate attacks; crimes against humanity; war crimes; crime of terrorizing the civilian population; customary international humanitarian law.

Torkel Opsahl Academic EPublisher
Oslo, 2011
23 pages (English version), 29 pages (Thai version).
Published on 27 September 2011.
ISBN English: 978-82-93081-38-8.
ISBN Thai: 978-82-93081-51-7.
PURL: http://www.toaep.org/ops-pdf/2-goldstone/.
PURL: http://www.toaep.org/ops-pdf/2-goldstone-thai/.
Topic: In this fifth Princess Maha Chakri Sirindhorn Lecture, Justice Richard J. Goldstone traces the evolution of international criminal law from its ancient roots in reciprocity through Nuremberg to the establishment of the International Criminal Court. He examines key developments including universal jurisdiction, command responsibility, the denial of Head of State immunity, and the ad hoc tribunals for the former Yugoslavia and Rwanda. Justice Goldstone defends the ICC against allegations of selective prosecution, illustrates the deterrent effect of international criminal law through case studies including NATO’s Kosovo campaign, and discusses the Responsibility to Protect doctrine. He also urges Asian nations, particularly Thailand, to ratify the Rome Statute.
Keywords: Rome Statute ratification; universal jurisdiction; command responsibility; Responsibility to Protect (R2P); Nuremberg legacy; South-East Asia and international criminal justice; war crimes accountability.

Torkel Opsahl Academic EPublisher
Oslo, 2011
18 pages.
Published on 9 February 2011.
ISBN: 978-82-93081-37-1.
PURL: http://www.toaep.org/ops-pdf/1-kaul/.
Topic: In this 2011 LI Haopei Lecture, Judge Hans-Peter Kaul examines whether States retain an inherent right to wage war and explores the implications of the 2010 Kampala breakthrough, which incorporated the crime of aggression into the Rome Statute of the International Criminal Court. Drawing on the Nuremberg legacy and the vision of Robert H. Jackson, Judge Kaul reflects on Article 2(4) of the Charter of the United Nations and the troubling persistence of armed conflicts since 1945. He argues that initiating a war of aggression is the supreme international crime and offers seven legal-policy suggestions – including awareness campaigns, ratification drives, and educational initiatives – to ensure the effective criminalization of aggressive war-making after 2017.
Keywords: Crime of aggression; Kampala Review Conference; Rome Statute amendments; Nuremberg Principles; Robert H. Jackson; jus ad bellum; prohibition of use of force; criminalization of aggressive war-making.