I have been making my way through the defence response to Libya's admissibility challenge. It's excellent, both with regard to why Libya is not prosecuting the "same conduct" as the ICC and with regard to why Libya is currently unable to genuinely prosecute Al-Senussi. I was particularly struck by the defence argument that Libya does not currently have complete control...
On 6 February 2103, the PTC ordered Libya to surrender Al-Senussi to the ICC. Libya failed to comply with that order; instead, on April 2, it filed an admissibility challenge in the case and argued that Art. 95 of the Rome Statute entitled it to postpone surrender pending resolution of its challenge. Yesterday, the PTC agreed with Libya. The PTC correctly...
At the outset, I am concerned by the structure of Kevin’s reasoning. Kevin (and apparently the ICTY judges he supports) seem to reason inductively, taking the putative innocence of weapons transfers by American and British governments to Syrian rebels as a point of departure. Although I’m sure Kevin just means to use a well-known contemporary example to illustrate his concerns, the optics are bad for him and the ICTY—by backing into this issue with the a priori assumption that American and British practices are necessarily beyond reproach, the reasoning risks substantiating views (so common now among African leaders and TWAIL scholars) that the discipline is structurally biased. To preserve the impartiality and therefore legitimacy of international criminal law, surely we should start with a morally defensible concept of complicity, then let responsibility attach where it may. Otherwise, the new “specifically directed” test speaks to darker problems that infect the entire system.
I am currently in Durban, South Africa, co-teaching a fantastic ICL course with my friend (and War and Law blogger) Chris Gevers at the University of KwaZulu-Natal. Durban is a very nice city, with amazing coffee -- high praise from someone who lives in Melbourne. I will be spending three days in Cape Town next week, then two days in Johannesburg....
A couple of months ago, the ICTY Appeals Chamber acquitted Momčilo Perišić, the Chief of the General Staff of the Yugoslav Army, of aiding and abetting various international crimes committed by the Army of Republika Srpska (VRS) during the war in the Balkans. According to the Appeals Chamber, when a defendant is accused of aiding and abetting crimes committed by an organization,...
By any standard, the Pre-Trial Chamber's rejection of Libya's admissibility challenge is a crushing defeat for the Libyan government. Libya's challenge failed for two basic reasons: (1) Libya is not investigating the same case as the OTP; and (2) Libya is currently unable to genuinely prosecute Saif. I will address the first ground, which I think is legally correct but...
The Pre-Trial Chamber has held that Libya cannot try Saif and must surrender him immediately to the Court -- which, of course, it will not do. Analysis when I have time to read the lengthy judgment, which can be found here....
Bloomberg reports very disturbing statements made by a spokesperson for the Free Syrian Army: Communities inhabited by Shiite Muslims and President Bashar al-Assad’s Alawite minority will be “wiped off the map” if the strategic city of Al-Qusair in central Syria falls to government troops, rebel forces said. “We don’t want this to happen, but it will be a reality imposed on everyone,”...
A number of people have responded to my drone posts (see here and here) by arguing that the "near certainty" standard Obama endorsed regarding the possibility of civilian casualties represents a break from the past -- a new targeting standard, not an old one. If that's the case, someone needs to tell the Secretary of State. Here is what John Kerry...
In previous posts (here and here), I discussed the reasons why Obama will never actually enforce the "near certainty" standard regarding civilian casualties and noted that the standard is vastly more restrictive than IHL's principle of proportionality. In this post, I want to explain why the new targeting standards for the use of lethal force "outside the United States and...
[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] On drones there was not that much new from President Obama yesterday, but what he emphasized tells us something about where the debate on drones remains. Echoing statements that have been previously made by a number of his advisers he...
A couple of people have suggested to me that I should be celebrating Obama's adoption of the "near certainty" standard, because it is more protective of civilians than the principle of proportionality. I will not celebrate the standard, for two very simple reasons. First, I don't believe for a moment that Obama will actually enforce it, no matter how pure...
