In association with the International Commission of Jurists

Courts & Tribunals

30 Jul

While I was on (my completely undeserved) vacation in California recently, I noticed more evidence that China's government is becoming hyper-sensitive about criticism of its non-participation in the Philippines-China arbitration at the Hague. First, a top U.S. government official stated at a conference on July 21 that, among other things, "...

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19 Jul

No matter how many times I read the decision, I keep coming back to this paragraph: 51. As a final note, the Chamber cannot overlook the discrepancy between, on the one hand, the Prosecutor’s conclusion that the identified crimes were so evidently not grave enough to justify action by the Court, of which the raison d’être is to investigate and prosecute...

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17 Jul

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel's attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based...

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01 Jun

Earlier this week, the Appeals Chamber rejected Cote d'Ivoire's challenge to the admissibility of the case against Simone Gbagbo. The challenge was based on Gbagbo's 20-year sentence for disturbing the peace, forming and organising armed gangs, and undermining state security. Like the Pre-Trial Chamber, the Appeals Chamber concluded that Gbagbo's domestic convictions failed to satisfy Art. 17's "same conduct" requirement, making...

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22 May

Last week, I made the mistake of relying on an article in Electronic Intifada about a recent speech by Moshe Ya'alon, the Israeli Defense Minister. Here are the relevant paragraphs in the article: Israeli defense minister Moshe Yaalon on Tuesday said Israel would attack entire civilian neighborhoods during any future assault on Gaza or Lebanon. Speaking at a conference in Jerusalem, Yaalon...

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19 May

It's becoming an old story: the Pre-Trial Chamber (PTC) rejects a charged mode of liability after a confirmation hearing, so the OTP simply asks the Trial Chamber (TC) to give the defendant notice that it will consider convicting him on the basis of the rejected mode anyway. This time, the defendant is Laurent Gbagbo. The OTP initially alleged that Gbagbo is responsible for various crimes against...

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06 May

Darryl is one of my very favourite international criminal law scholars. Indeed, I think he is the leading purveyor of what we might call "meta" ICL scholarship -- scholarship that is concerned less with doctrine than with the nature of ICL reasoning and rhetoric itself. His article "The Identity Crisis of International Criminal Law" is a genuine classic, and I learn from everything...

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05 May

I have not been surprised by the swelling opposition in the U.S. (mostly from the progressive left) against proposed trade agreements with Pacific and European nations (TPP and TTIP).  But I am mildly surprised by the way in which TPP and TTIP opponents have zeroed in on the inclusion of investor-state arbitration mechanisms as a rallying point for their opposition....

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07 Apr

Negotiations over the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) have highlighted the growing debate over investment arbitration. Last week the New York Times published an article summarizing objections to the TPP investment chapter. The article notes that politicians, law professors and liberal activists “have expressed fears the provisions would infringe on United States...

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06 Apr

Nearly everyone treats Palestine's membership in the ICC as a done deal; after all, the UN Secretary-General (UNSG) has accepted Palestine's accession to the Rome Statute and the OTP has publicly stated that "since Palestine was granted observer State status in the UN by the UNGA, it must be considered a 'State' for the purposes of accession." But neither the...

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