I considered adding a question mark to the title of this post, but there's really no need. I argued a couple of days ago that the real scandal concerning Judge Harhoff's letter was the Judge's willingness to reveal confidential discussions between the ICTY's judges. We now have to acknowledge another aspect of the scandal: quite understandably, defence attorneys are making...
On 11 June 2013, Judge Sanji Mmasenono Monageng asked the Presidency to excuse her from the Appeals Chamber concerning the recent denial of Libya's admissibility challenge to the case against Saif Gaddafi, which Libya is appealing. Judge Monageng's request was based on her previous participation (as Presiding Judge) in the Pre-Trial Chamber's decision to issue an Arrest Warrant for Saif...
I have refrained from weighing in on the recent scandal at the ICTY concerning a letter written by the Danish judge, Frederik Harhoff, that accuses the President of the Tribunal, Judge Theodor Meron, of pressuring his fellow judges into acquitting high-profile defendants such as Gotovina and Perisic. I have done so not because the scandal isn't worth mentioning, but because...
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...
