In association with the International Commission of Jurists

International Criminal Law

23 Oct

Just Security has been kind enough to post my reply to an excellent post by Ryan Goodman. Here is the introduction: In a recent post here at Just Security, Ryan Goodman offered a novel – and characteristically intelligent – defense of the US position that it is involved in a non-international armed conflict (NIAC) not only with al-Qaeda, but also with al-Qaeda’s “associated forces.”...

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13 Oct

One of the most distressing aspects of the admissibility decision in al-Senussi is PTC I's remarkable unwillingness to question Libya's strategic invocation of its precarious "security situation." As described by Libya, that situation really is magic -- somehow managing to prevent the Libyan government from doing anything to protect al-Senussi's rights without preventing the government from prosecuting al-Senussi. Consider the issue I...

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12 Oct

Pre-Trial Chamber I has granted Libya's challenge to the admissibility of the case against Abdullah al-Senussi. This is obviously a major win for the Libyan government, especially given that the very same PTC denied its admissibility challenge regarding Saif Gaddafi. There is much to like in the PTC's decision. It takes a very broad approach to the "same conduct" requirement with regard...

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10 Oct

In my previous post on the Taylor appeal, I noted two troubling aspects of the Appeals Chamber's judgment concerning customary international law: (1) its erroneous belief that legal principles that narrow criminal responsibility have to have a customary foundation; and (2) its hypocritical affirmation that recklesness is the mens rea of aiding and abetting (which goes beyond the ICTY and ICTR)...

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02 Oct

[Judge Howard Morrison is a Judge at the ICTY and the ICC] Dr. Philipp Ambach deals with a topic that is contemporary and contentious. In a world where the globalisation of most aspects of human life and endeavour is readily apparent it cannot be that case that those who engage in commercial, and often highly profitable, enterprises that have an impact upon...

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01 Oct

Ryan has kindly responded to my post commenting on his claim that "arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict." Unfortunately, our conversation has something of a Pinteresque quality: in claiming that I mischaracterized one of his central claims, he mischaracterizes my central claim....

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29 Sep

I pointed out last month that Owen Bowcott, a legal affairs correspondent for the Guardian, incorrectly claimed that "[g]enerals and politicians could evade responsibility for war crimes in future because of a ruling requiring proof that they 'specifically directed' atrocities." That is not what Perisic does: the Appeals Chamber did not say that a perpetrator must specifically direct a crime; it said that a perpetrator...

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28 Sep

The Pre-Trial Chamber has ordered the Registrar to arrange a privileged visit between al-Senussi and his ICC lawyer, Ben Emmerson, in Libya. On the positive side, the PTC seems to have learned something from Libya's abhorrent detention of Melinda Taylor. Witness the following language in the order: 15. Taking into account the purpose of the visit, the provisions of the ad...

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27 Sep

As one commenter to Ken's post on the draft UN Security Council Resolution notes, there will be no Security Council referral to the ICC on Syria. Currently there is one paragraph in the draft resolution expressing the Security Council's "strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable;"  That's not...

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27 Sep

As readers know, the Special Court for Sierra Leone's Appeals Chamber upheld Charles Taylor's conviction and 50-year sentence yesterday. It's been interesting to watch human-rights groups and advocates claim, predictably, that the judgment is a milestone in the fight against impunity, a position that seems to wilfully ignore the significant failure of the prosecution in the case. After all, both...

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25 Sep

For the non-twitterati, Omar al-Bashir has -- unsurprisingly -- cancelled his trip to the UN. That decision reflects an underappreciated "soft power" aspect of the ICC: even an unexecuted arrest warrant limits the freedom of a suspect facing charges. There may be no reasonable prospect of Bashir being arrested anytime soon. But there is also no reasonable prospect that he...

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