Regions

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)...

Reading Roger's post last week about how lower courts are interpreting the Supreme Court's ATS ruling in Kiobel made me recall that I've fallen down in posting papers to SSRN - including a new one in the Cato Supreme Court Review 2012-2013, "The Alien Tort Statute's Jurisidictional Universalism in Retreat."  The article (chatty and speculative, be warned, an essay aimed at a broader audience than ATS specialists or international law scholars) tries to set Kiobel and, for that matter, the ATS itself, in a wider frame of what jurisdiction is supposed to mean beyond its technicalities.  It contrasts the sweeping universalist language of 1980s-era ATS suits, and the belief of people like Judge Irving Kaufman (who wrote the celebrated Filartiga opinion) that they were pronouncing on "international law " through the exercise of universal jurisdiction, even though it happened to be in a US district court and applying distinctly US concepts through and through, with Kiobel's return to traditional jurisdictional categories. Whether the Chief Justice's application of the presumption against extraterritoriality or Justice Breyer's more capacious, yet still traditionally grounded, tests for jurisdiction, Kiobel signaled that the traditional grounds found, for example, in the Restatement of Foreign Relations are the ones that matter.  One could say, of course, that this has been true for a while.  After all, arguing that the ATS might require some conduct by someone that constitutes a violation of the law of nations, but doesn't take into account whether the law of nations recognizes that someone as having the legal capacity to violate the law of nations, and so merely a domestic statute providing a domestic civil remedy for something that need not be international law as such, but merely conduct that would, if done by some actor with legal capacity, violate international law - well, that isn't making any sweeping assertions about being international law or universal jurisdiction for the application of international law.  It's just a peculiar American statute that gate-keeps liability with a weirdly counterfactual reference to international law as it might be. International law in the subjunctive mood, maybe we could say.  But in that case, treating the statute as merely a domestic one with a weirdly constructed trigger, invoking a "law of nations" that we don't mean the way other people mean it, argues strongly for a traditional approach to jurisdiction - it's not universal jurisdiction anymore, because we're not pretending that our reference point is actually universal, but instead merely a claim of extraterritoriality.  So it doesn't seem quite so strange that the Chief Justice would invoke the presumption against extraterritoriality, because the thing, the statute, that plaintiffs propose to apply extraterritorially isn't truly a claim of universality, either.

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...

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...

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...

[John P. Cerone is Visiting Professor of International Law at the Fletcher School of Law & Diplomacy (Tufts University) and Professor of Law at the New England School of Law.  He has also served as Special Advisor to the US delegation to the UN Human Rights Council and as a legal advisor to international criminal courts.] Omar al Bashir, President of...

Wow! I kind of assumed all the posturing and tough talk from U.S. and ICC officials would scare off Sudan's President Bashir from visiting NY next week to address the UN General Assembly.  But it appears he really is coming. Sudanese President Omar Hassan al-Bashir, wanted by the International Criminal Court on genocide charges, said on Sunday he planned to attend...

Eric Posner has a new Cassandra column at Slate, this latest one foretelling the doom of the ICC. There isn't much point in disagreeing with his basic thesis; no one knows at this point -- not him, not I -- whether the ICC will succeed. It is possible, however, to take issue with a number of assertions that Posner makes in...

In today's weekly news wrap, Jessica flagged an article that said Saif was due to appear in court in Tripoli for the beginning of the pre-trial phase of the case against him, al-Senussi, and 36 (!) other defendants. The article was inaccurate, and was later updated to make clear that Saif was appearing in Zintan on unrelated charges -- not...

According to Reuters, the US is dropping hints that it will grant Omar al-Bashir a visa to travel the UN for the annual meeting of the General Assembly: A senior State Department official said Bashir would "not receive a warm welcome" if he were to travel to the U.N. meeting. The official said Bashir had applied for a visa to attend...