Recent Posts

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.] American exceptionalism is nothing new. Nor are debates about whether it is appropriate for US courts to look to foreign or international law, particularly when interpreting the US Constitution. Yet now-Justice Gorsuch’s recent testimony on the issue during his confirmation hearing still took my...

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor.] On March 22, 2017, Trial Chamber VII of the International Criminal Court handed down a sentencing decision (.pdf) in the case of The Prosecutor v. Bemba, et al. – a five-accused case of first impression before the Court of the...

Last month, Just Security published a long and thoughtful post by Rebecca Ingber with the provocative title "International Law is Failing Us in Syria." The international law she is talking about is the jus ad bellum -- the illegality of unilateral humanitarian intervention (UHI) in particular. In her view, the failure of the international community to use force to end the...

AJIL Unbound has just posted the contributions to a symposium entitled "Revisiting Israel's Settlements." The contributors are all superb: Eyal Benvenisti, Pnina Sharvit Baruch, David Kretzmer, Adam Roberts, Omar M. Dajani, and Yaël Ronen. The true highlight, though, is the essay that accompanies the symposium and will be published in the next issue of the American Journal of International Law: Theodor Meron's...

Hope our New York-area friends will be around for this one - Cardozo Law School and the ICRC are hosting an evening panel discussion: "A View from Abroad on Current Trends in Targeting, Detention and Trials." The panel will be at Cardozo Law School, 55 Fifth Avenue in New York, May 18, 6:00-7:30p.m., and features OJ's own Kevin Jon Heller,...

I had the great honour last week of giving a presentation to ICC member-states about Art. 15bis and Art. 15ter of the aggression amendments -- the conditions for the exercise of jurisdiction. The presentation was sponsored by the Assembly of States Parties (ASP) and organised by Austria, part of a series of presentations designed to prepare delegations to participate in the...

Wilbur Ross, the Secretary of Commerce: Speaking at the Milken Institute Global Conference on Monday, Commerce Secretary Wilbur Ross recalled the scene at Mar-a-Lago on April 6, when the summit with Chinese President Xi Jinping was interrupted by the strike on Syria. “Just as dessert was being served, the president explained to Mr. Xi he had something he wanted to tell him,...

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights. He is currently on exchange at Harvard Law School.] The International Criminal Court (ICC) faces many problems. Some of them are well known, for instance its inadequate budget, accusations of anti-African bias, and withdrawals from the Rome Statute. But there is a far more insidious cancer that is eating away at the Court’s legitimacy: complementarity. As with so many other developments at the ICC, it is the situation in the Democratic Republic of Congo (DRC) that foreshadows some of the Court’s long-term dilemmas, many of which received too little attention in Rome. This post explores how the Prosecutor’s confused approach to complementarity undermines the Court’s mission in the DRC and, potentially, in other situation countries going forward. The ICC and Congo To hear Fatou Bensouda tell it, the ICC’s intervention in the DRC is something of a success story. The Court’s track record there seems positive, especially when contrasted with other ICC situations: Thomas Lubanga and Germain Katanga have been tried and convicted, and Bosco Ntaganda is currently on trial. Another Congolese, Jean-Pierre Bemba, is the Court’s only high-profile convict to date, even if his conviction formally stems from the situation in the Central African Republic. Thus, with the possible exception of Mathieu Ngudjolo’s acquittal in 2012, Congo is usually portrayed as a beacon of hope for an otherwise beleaguered institution struggling to gain legitimacy in Africa. But is this narrative of success compelling? A cloud of suspicion has hung over the ICC’s activities in the DRC ever since Joseph Kabila ‘invited’ the first Prosecutor, Luis Moreno Ocampo, to launch an investigation in 2004. Kabila’s ‘self-referral’ succeeded beyond his wildest dreams: lacking a strategy for a country the size of Western Europe, the Office of the Prosecutor (OTP) initiated sporadic prosecutions which targeted only Kabila’s rivals, including Bemba who had almost defeated him in the 2006 presidential election. In stark contrast, the Congolese government’s crimes received no scrutiny in The Hague. Thirteen years after Kabila’s invitation, the ICC’s neglect of government crimes is coming home to roost. The DRC is in the news for all the wrong reasons. Kabila’s refusal to relinquish power, despite being constitutionally required to do so, has stoked mass violence on several occasions, leaving dozens dead in the streets of Kinshasa and other cities. After a series of damning reports (see here and here), last month the UN High Commissioner for Human Rights formally requested a commission of inquiry to examine ‘recurrent reports of grave violations’. Most importantly from the ICC’s perspective, these reports show beyond a shadow of a doubt that the violence is part of a governmental strategy to keep Kabila in power at all costs. The pattern is familiar: each time the political opposition organizes protests, state agents – police and military – resort to deadly force. Yet despite thousands of cumulative deaths, reports of dozens of mass graves, and even graphic videos of summary executions by government troops, the ICC has been virtually absent from the debate about accountability. Why, despite such overwhelming evidence of state criminality, has the ICC not investigated Kabila and his supporters?

Most readers are probably keenly familiar with International Law Reporter, the brainchild of Professor Jacob Katz Cogan (Cincinnati).  For those not aware, ILR provides notices of scholarship, conferences, calls for papers, and the like -- and it's available in RSS feeds and via Twitter.  (There's even a tip jar!)  It's invaluable for anyone in international law and, I expect, anyone...