Weekend Roundup: March 17-23, 2012

A new feature this week on Opinio Juris is the Weekday News Wrap. The latest edition, with links to the earlier ones, can be found here.

At the beginning of the week, we continued last week’s roundtable discussion of the ICC’s Lubanga Judgment. Cecile Aptel discussed the split between the judges on whether the charge of using children “to participate actively in the hostilities” includes the use of children as cooks or sex slaves. She pointed out that this discussion arose in particular as a result of the prosecution’s decision not to include allegations of sexual violence in the charges against Lubanga. Dov Jacobs’ contribution also dealt with this exclusion. He questioned whether something can or should be done, in particular by the judges, to change the content of the charges mounted by the prosecution. James Stewart put the Lubanga case in the context of the conflict in the DRC and questioned whether it will be the beginning of international justice for the region. Mark Drumbl looked ahead at the possible legacies of the Lubanga judgment through a jurisprudential, a pedagogic and a bureaucratic lens. Mark Kersten asked in his post whether the Lubanga judgment would have a deterrent effect on the use of child soldiers, in general as well as in the DRC.

Further on Lubanga, Julian Ku pointed to a NY Times op-ed criticising the ICC as throwing a spanner in the works of reconciliation. Julian also questioned what those who, like Teju Cole, criticise Kony 2012 as “white savior complex” propose as an alternative.

On Saturday, Doug Cassel posted on his recent experience as a paid consultant for Chevron which prompted him to write an open letter to the human rights community questioning whether the ends justify the means. The post attracted a lot of comments as well as a response by Kevin Heller.

In other posts, Kevin Heller found Jack Goldsmith’s admission in a Foreign Policy editorial that the “unwilling or unable”-test for self-defence against a non-state actors is not “settled in international law” refreshing. Roger Alford posted on the broken windows theory of corruption and Ken Anderson posted on how to declare war, Joan of Arc-style.

David Landau responded to Mark Tushnet’s comments on his article “The Reality of Social Rights Enforcement” in a final installment of the Third Harvard International Law/Opinio Juris Symposium that took place earlier in the year.

This week’s main event was our first symposium with the Leiden Journal of International Law, at the occasion of the Journal’s 25th birthday.

The symposium kicked off with a discussion of two articles on the impact of the ICJ’s Nicaragua judgment, which also celebrated its 25th anniversary. The articles, by Lori Damrosch and Marcelo Kohen, are introduced here. John Dugard agreed with Lori Damrosch that the ICJ has become more of a “World Court” since the Nicaragua judgment, but has become less popular in the US. Lori Damrosch’s response can be found here. André Nollkaemper’s comments on Marcelo Kohen’s article focused on the relevance of the Nicaragua judgment to understand the younger “responsibility to protect”-doctrine.

The second part of the symposium discussed James Stewart’s article in which he advances a “unitary theory of blame attribution, whereby responsibility turns only on having made a causal contribution to the relevant harm and having made the requisite blameworthy moral choice designated within the offense”. James’ first post describes the events that prompted him to think about “modes of liability”.

Daryll Robinson commented on James’ proposition that some of the conceptual issues international criminal law suffers from are not unique to the international system but rather inherited from the domestic criminal law systems from which the international system draws its inspiration. He also questioned whether the unitary theory, while defensible, was also preferable. James’ response can be found here.

In his comments, Thomas Weigend agreed with James’ diagnosis of the contradictions in the law of complicity in international criminal law, but disagreed with the proposal to do away with the different modes of liability and shift the emphasis instead to the sentencing stage. James’ response can be found here.

Finally, Jens Ohlin strongly disagreed with the unitary theory and defended the importance of the distinction between principals and accessories. James’ response can be found here.

For those of you who want to continue the discussion, the Leiden Journal of International Law invites you to their event at next week’s Annual Meeting of the American Society of International Law to celebrate their 25th anniversary.

At the same conference, you will also be able to attend a new series of talks, ASIL IDEAS, introduced here by Harlan Cohen.

Many thanks to all our guest contributors and have a nice weekend!