In association with the International Commission of Jurists

Courts & Tribunals

15 Jun

 [Jeremy Rabkin is Professor of Law at George Mason University School of Law.] I entirely accept what James Kraska says about the benefits of the navigation rules in UNCLOS.  But when Kraska and others say these rules are favorable, they mean the UNCLOS rules – as American officials would interpret them.  Unfortunately, UNCLOS doesn’t leave it up to American officials to interpret...

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15 Jun

OK, that is a little overdramatic.  Still, the U.S. government has effectively switched sides in the upcoming Supreme Court case: Kiobel v Royal Dutch Shell.  In the first incarnation of this case, the U.S. government had filed a brief supporting the petitioners and rejecting the lower court's holding that corporations cannot be sued under the Alien Tort Statute. But in a...

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14 Jun

I wanted to thank Professors Allen, Kraska, and Noyes for their contributions to our discussion on US ratification of UNCLOS. I've learned a great deal from their posts and I hope our readers have as well. I wanted to remind our readers, however, that we will hear from two leading scholars tomorrow -- Jeremy Rabkin and Steven Groves -- who...

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14 Jun

[John E. Noyes is the Roger J. Traynor Professor of Law at California Western School of Law.] The U.S. Senate Foreign Relations Committee is currently holding hearings on U.S. acceptance of the 1982 Convention on the Law of the Sea, as modified by the 1994 Part XI Implementation Agreement (the “LOS Convention”).  The Committee favorably reported the LOS Convention in 2004...

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13 Jun

Public Citizen, an anti-free trade group based here in the U.S., sent around an email detailing its objections to a leaked draft text of the ongoing TransPacific Partnership negotiations, which would create a massive Pacific free-trade zone.  Its main complaint is not actually to the free-trade portion of the agreement, but to the proposals for a robust investor-state dispute resolution...

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03 Jun

I want to congratulate my friend Andrew Cayley, the Chief International Co-Prosecutor of the ECCC and a barrister at London's Doughty Street Chambers, on being named QC in England.  Given the constant turmoil that has roiled the ECCC over the past year, the news is a welcome (re-)affirmation of Andrew's legal ability.  The ECCC is lucky to have him....

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13 May

[Leila Hanafi works as regional coordinator for the Middle East and North Africa at the Coalition for the International Criminal Court. This contribution is cross-posted at the Middle East Monitor.] The ongoing post-conflict reconstruction process in Libya is reigniting a crucial debate among transitional justice advocates as to the role the International Criminal Court (ICC) can play in delivering justice and...

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11 May

[Doug Cassel is Professor of Law at Notre Dame Law School] Venezuelan President Hugo Chavez on April 30 directed his Council of State (a policy advisory body) to study Venezuela’s “withdrawal” from the Inter-American Commission on Human Rights.  He asked for their recommendation within days, not weeks.  This is the latest move in the Bolivarian Republic’s long record of denouncing the Commission and the Inter-American Court of Human Rights as tools of US imperialism, supposedly biased against socialist Venezuela. But the real reason for Chavez’ pronouncement, say human rights groups – in my view correctly – is that the Commission and Court hold the Chavista regime accountable for its systematic violations of the independence of the judiciary (1, 2), and of freedom of the press, (3, 4), as well as other serious violations of human rights (5, 6). Chavez’ call was promptly cheered by other high officials in Caracas.  It seems a foregone conclusion that the Council will recommend withdrawal.  Since Chavez has already declared that Venezuela should have withdrawn a long time ago, he is all but certain to heed such a recommendation. Withdrawing from the Commission, however, is not so simple.
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09 May

When is an arbitral panel an international tribunal for purposes of Section 1782? Section 1782, of course, is the statute that authorizes federal courts to order discovery in aid of proceedings before foreign courts and international tribunals. As discussed in a forthcoming article in the Virginia Journal of International Law entitled, Ancillary Discovery to Prove Denial of Justice,...

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06 Apr

[David Davenport is a Research Fellow at the Hoover Institution] In the end, the Prosecutor of the International Criminal Court made the only “legal” decision he could:  the ICC has no jurisdiction to act on the complaint of the Palestinian National Authority since Palestine is not a State and the Court is limited to accepting submissions by States.  The only case in favor...

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04 Apr

Last week I had the good fortune to attend a reception in Washington D.C. with various arbitration luminaries announcing the inauguration of the Jerusalem Arbitration Center. With almost $5 billion in annual trade between Palestine and Israel, it is imperative to establish a neutral forum for resolving business disputes. JAC is established under the auspices of the...

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21 Mar

[James G. Stewart is Assistant Professor of Law at the University of British Columbia] My article argues for an end to modes of liability in international criminal justice. It uses complicity, also known as aiding and abetting or accomplice liability, to show that all modes of liability violate standards international criminal lawyers have deployed as benchmarks in the deconstruction of other modes of liability like superior responsibility and joint criminal enterprise. Thus, I advocate for a unitary theory of blame attribution, whereby responsibility turns only on having made a causal contribution to the relevant harm and having made the requisite blameworthy moral choice designated within the offense. I argue that this unitary theory could attach to all prosecutions for international crimes, both international and domestic, which would transcend the long-endured fixation on modes of liability within the discipline. I could say considerably more about the content of the article itself, but a longer abstract and an earlier draft of the entire paper are available on SSRN. I therefore think it more interesting and less repetitive to describe the influences that brought me to this position and the lessons I have learned though this process: Influence One - Major Decisions about “Modes of Liability” without a Theoretical Framework Several years ago, I worked as an Appeals Counsel for the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia. In that capacity, I was assigned to an issue of particular conceptual difficulty: within the context of superior responsibility, was a superior’s failure to punish subordinates for international crimes he knew they had perpetrated a means of participating in his subordinates’ international crimes, or a separate lesser inchoate crime comparable to dereliction of duty? On the one hand, international courts had clearly treated failures to punish as a means of participating in the underlying crime for a very long time, perfectly oblivious to the conceptual problem. On the hand, the competing idea raised initially by Mirjan Damaška, was that international criminal justice was draconian in convicting an accused of a crime he in no way caused. The two positions seemed equally compelling—one favored formalistically ascertaining and applying the content of existing international law, the other gave preference to basic concepts of fairness derived from criminal principles. In the unreasonably short period of time we had to take a position on the issue of this theoretical complexity, it struck me that many advocates sought to justify or refute the approach by making analogies to equivalent domestic concepts, and there was a real absence of any significant conceptual framework through which to decide. This article was an attempt to plot that framework.
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