Courts & Tribunals

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.] The International Criminal Tribunal for the former Yugoslavia (ICTY) is undoubtedly one of the most important institutions in the history of international law, not only for its catalytic effect in generating trials for international crimes before both international and domestic courts but also for breathing new life into both international humanitarian and criminal law. Yet, the ICTY Appeals Chamber recently rendered a judgment on the law of complicity in Prosecutor v Momčilo Perišić (see here), that could undo much of its legacy. In this first of two posts, I will set out the background to this case and consider the problem of “specific direction” as an element of the actus reus, which the Appeals Chamber has newly adopted. In a second post, I will focus on the mental element of complicity, showing how a more traditional approach to mens rea can address the underlying concerns without so seriously disrupting the law of complicity. Two weeks ago, I attended a roundtable dedicated to the law of complicity at the University of San Diego.  Over the course of two days, a dozen of the best criminal theorists in the English-speaking world came together to debate four competing accounts of complicity.  On the flight home, however, I was more than slightly surprised to learn that the ICTY had just announced a new understanding of the doctrine that is without equivalent in any national law, very different from the Tribunal’s earlier jurisprudence and at odds with the views of all experts congregated at the roundtable I had just attended. Indeed, the new understanding of complicity that the ICTY adopts in Perišić appears inconsistent with foundational principles of criminal law in ways that seriously compromise the doctrine.  Below, I explain why this new position is so troublesome, before I go on to suggest a safer path the Appeals Chamber could have followed. Momčilo Perišić was the Chief of the General Staff of the Yugoslav Army (VJ), making him the highest ranking officer in that army. Between August 1993 and November 1995, he provided extensive military and logistical aid to the Army of Republika Srpska (VRS), lead by the infamous Radovan Karadžić and Ratko Mladić. At trial, Perišić was convicted of aiding and abetting international crimes perpetrated by the VRS, most notably for crimes associated with the sniping campaign used to terrorize civilians within Sarajevo and for the terrible bloodletting at Srebrenica. Perišić unquestionably provided the VRS with large quantities of weapons, seconded officers involved in these crimes to the VRS (Mladić included), and supported the VRS in a host of other ways. Was all this support innocuous assistance of a general type or criminal complicity in the international crimes undertaken by the VRS?

The U.N. General Assembly has voted in favor of the Arms Trade Treaty, which would do what exactly?  Its proponents say it will create an international mechanism to regulate the international sale of arms and other weapons.  Its critics say it will infringe on the individual rights of citizens and nations to buy and possess weapons by requiring member states...

I was struck by this line from an editorial in an Australian paper about the latest clashes between Sea Shepherd (e.g. the Ninth Circuit's "pirates") and Japanese whalers: [T]hat the International Court of Justice is expected to hear Australia's case to shut down the Antarctic hunt later this year. Three years after the case began,  this hearing can't come soon enough. I agree....

A depressingly large number of U.S. media outlets are covering the Italian Supreme Court's decision to order a new trial in the case against Amanda Knox, the American exchange student charged with murdering her British roommate in Italy. Knox was convicted in trial court, but that conviction was overturned on appeal. I say depressing because this is hardly the most significant...

Just in case there was any doubt, the Philippines-China arbitration over the South China Sea will go forward.  International Tribunal of the Law of the Sea President Shunji Yanai has appointed a second arbitrator. The [Philippines] Department of Foreign Affairs (DFA) confirmed on Monday that the Itlos president, Judge Shunji Yanai, appointed Polish Itlos Judge Stanislaw Pawlak to the panel last...

Breaking news:  China has rejected arbitration under Annex VII of the UN Convention on the Law of the Sea with the Philippines, dealing a heavy blow to the future of dispute settlement under UNCLOS (h/t China Law Prof Blog).  According to this China Daily report, "Chinese Ambassador to the Philippines Ma Keqing had an appointment with officials from the Philippines' Foreign...

As far as I can tell, the Chinese government continues to pretend as if the Philippines' Law of the Sea arbitration claim doesn't exist.  Articles like this one suggest the Philippines government continues to wait for some official or unofficial Chinese response.  The February 22 deadline for China to appoint an arbitrator is fast approaching. There are obviously bigger things going...

I used to blog regularly about the Whale Wars, my name for the ongoing struggle between Japanese Whalers and those groups devoted to protecting whales.  But I stopped almost three years ago when Australia filed its case against Japan in the ICJ, since nothing important seems to have happened since then.  (Did we really need 22 months for written proceedings, when...

Apparently, the U.S. conservative policymaking world has made its peace with the ICC.  As long as the ICC doesn't bother the US, the US won't bother the ICC.  But the US has no plans to join either.  That is the bottom line from this report from Colum Lynch. Have U.S. conservatives really lost the war on the International Criminal Court? A decade...

Neither the arbitral tribunal's order demanding Ecuador act to stop enforcement of the $18 Billion judgment against Chevron, nor Ecuador's continued brazen refusal to follow the order is really much a surprise. The Chevron-Ecuador Death Cage Match continues unabated and has gotten so out of control that almost nothing shocks me about this case anymore.  A former Ecuadorian judge swearing...

I have posted on SSRN my latest article, "Ancillary Discovery to Prove Denial of Justice" just published in the Virginia Journal of International Law. It analyzes Section 1782 discovery proceedings in the context of BIT arbitration and argues that there is now uniform agreement among federal courts that investment arbitration panels are "international tribunals" within the meaning of Section...