In association with the International Commission of Jurists

General

18 Oct

The US and Israel are set to hold a joint missile exercise later this month, displaying their close cooperation in the face of Iran’s nuclear program development. Both Uganda and Rwanda have denied involvement with rebels in the Democratic Republic of the Congo and call recent allegations by the UN “rubbish.” Russia has criticized the European Union for the recent sanctions it...

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17 Oct

The leader in question, not surprisingly, is Bryan Fischer, the head of the extremely powerful American Family Association.  Here is what he said in an interview: Hitler recruited around him homosexuals to make up his Stormtroopers, they were his enforcers, they were his thugs. And Hitler discovered that he could not get straight soldiers to be savage and brutal and vicious...

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17 Oct

The D.C. Circuit’s decision overturning Salim Hamdan’s military commission conviction on the grounds that “material support for terrorism” is not a war crime under international law is significant in a host of ways. Steve Vladeck lists a few over at Lawfare. Beyond that, it strikes me that the decision offers a handful of indicators Congress might especially note....

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17 Oct

South Sudan's Parliament has ratified a border and oil deal with Sudan, which includes a demilitarized zone between the two states. The EU has placed new sanctions on Iranian oil, gas and tanker companies, the effects of which Iran calls futile. In related news, A NYTimes article describes the impact of European sanctions on Iran's ability to keep the money printing presses going. Invoking humanitarian reasons, the UK...

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16 Oct

U.S. Secretary of State Hillary Clinton assumed responsibility for last month's deadly attack on the U.S. diplomatic mission in Benghazi, Libya. Commentary on this move from PrawfsBlawg can be found here and Foreign Policy analysis, here. The International Tribunal for the Former Yugoslavia begins trying its last suspect, Goran Hadzic, today. Also on the ICTY docket today, Radovan Karadzic has begun his defense...

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15 Oct

Argentina is, to put it bluntly, one of the world’s greatest sovereign deadbeats, defaulting on its sovereign bonds more than once as well as bearing the distinction of being the world’s number one respondent in ICSID arbitration claims (or at least close to number one).  Last week, the ongoing struggle between foreign creditors and Argentina found a new flashpoint as...

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15 Oct

A Human Rights Watch report outlines Syria’s recent use of cluster munitions in civilian areas, a potential war crime. Turkey has banned Syrian aircraft from its airspace as a show of its increasingly firm stance against President Al-Assad’s regime. The EU plans new major sanctions against the banking sector, industry and shipping in Iran. Iran said that the launch of a drone intro...

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13 Oct

This week on Opinio Juris, Eric Posner's Slate article about the legality of US drone strikes in Pakistan attracted the attention of Julian Ku and Kevin Jon Heller. Julian wondered whether Koh's "conversion" on the issue will serve as a shield against international arguments about the illegality of the strikes. Kevin in turn expressed hope that Posner's rejection of the "unwilling or...

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12 Oct

The European Union has won the 2012 Nobel Peace Prize for uniting the continent in the face of the ongoing economic crisis. The 10th anniversary of the Bali bombings is being remembered in Bali, Indonesia, and in Australia. The NY Times reports how Indonesian counter-terrorism forces still battle local militant groups. Human rights activists in Iran are reportedly beaten, raped and sleep deprived, according to a...

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11 Oct

Royal Dutch Shell Plc., faces a lawsuit today in a district court in The Hague that seeks to make Shell and other corporations responsible for pollution resulting from three oil spills in 2004, 2005 and 2007 in the Niger Delta. Russia has said it will not renew the expiring 1991 arms agreement with the US requiring the dismantaling of nuclear and chemical weapons, as it...

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11 Oct

I'm sorry I didn't discover it until he linked to me, but Derek Gregory -- the Peter Wall Distinguished Professor and Professor of Geography at the University of British Columbia -- has recently started a blog entitled Geographical Imaginations: War, Space, and Security. Gregory is one of the great political geographers of his or any generation; I can't recommend the...

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10 Oct

[Mark A. Drumbl is Class of 1975 Alumni Professor of Law & Director of the Transnational Law Institute, Washington and Lee University School of Law] This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.
International criminal law reclines upon simple binaries: good/evil – for instance – as well as authority/helplessness and perpetrator/victim. Victims, however, can victimize. And, correlatively, perpetrators can both kill and save at the same time. Perpetrators may do so selflessly at great risk to themselves or selfishly at great benefit to themselves. Or they may do so impulsively – perhaps with no discernible motive at all. In Roman Polanski’s The Pianist, Itzhak Heller, a Jewish ghetto police guard, suddenly pulls the protagonist Władysław Szpilman out of a line of detainees forced to board a train to Treblinka. Heller, derided for having badly beat up Jews, risks death to save Szpilman – but only Szpilman, who himself is far from heroic – from death.  The scene ends. The audience is left hanging in the characters’ “grey zone”. Why did Heller do that? And why Szpilman?
The erraticism of human nature unsettles the reductive parsimony of the courtroom. It is tough enough to convict human rights abusers for their inhumanity. Now, the law has to recognize their glimmers of humanity, as well, and make sense of these dissident facts. Assuredly, tout comprendre, c’est tout pardonner; but perhaps, also, tout considérer, ça pardonne également. Professor Galbraith’s important article explores how international criminal law (ICL) grapples with the abuser who also saves the lives of others.  She does so through an examination of the place of “good deeds” in the sentencing practice of the ad hoc tribunals. Galbraith understands “good deeds” to signify acts of humanitarian behavior undertaken by the convict, presumably in the time-frame covered by the indictment, towards individuals on the “other side,” notably, individuals who are not the specific victims of the convict’s crimes. Galbraith’s research demonstrates that the ICTY and ICTR consider good deeds (a.k.a “selective assistance”) in mitigation of sentence, albeit in a manner that is inconsistent within the tribunals themselves and also inconsistent as between the two tribunals. Galbraith is concerned with this incoherence. In response, she builds a normative argument in favor of considering good deeds in mitigation. She roots her argument in a retributive understanding that – regardless of motive –good deeds undertaken toward members of the other side ought to count. Hers is therefore an objective, effects-based analysis. For Galbraith, obligation does not matter either: in other words, respecting customary international law requirements also constitutes a good deed. Regardless of pre-existing duty, or subjective motive, “a defendant who has done good deeds towards those on the other side of the conflict merits less retribution, from a collective perspective, than a comparable defendant without such good deeds.”  The less selective the assistance, to be sure, the more it should count. Galbraith’s article is a valuable contribution to sentencing, which chronically presents as one of ICL’s most under-theorized aspects. It does not surprise me that judicial treatment of good deeds as mitigating circumstances remains unpredictable and desultory.  Galbraith’s development of a workable test is to be applauded. In my book Atrocity, Punishment, and International Law, I chided ICL for its excessive dependence on the principles of ordinary municipal criminal law – which I had described as “borrowed stilts.” Galbraith’s push to ground a theory of good deeds in the specifics of collective atrocity crimes is a refreshing bid to develop a sui generis penology for ICL. Five aspects of Galbraith’s project, nevertheless, uncork broader questions.

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