I'll have much to say about various legal aspects of the Lubanga judgment in the days to come, but I wanted to start by discussing the relatively narrow -- though critically important -- point that Jens addressed in his post: the dispute between the majority and Judge Fulford concerning the correct interpretation of co-perpetration in Article 25(3)(a) of the Rome...
[Hari M. Osofsky is Associate Professor and 2011 Lampert Fesler Research Fellow, University of Minnesota Law School and Associate Director of Law, Geography & Environment, Consortium on Law and Values in Health, Environment & the Life Sciences] I am grateful for the opportunity to participate in this exchange over Tai-Heng Cheng’s ambitious and thoughtful new book, When International Law Works. ...
[Chester Brown is Associate Professor at the Faculty of Law, University of Sydney] Thanks to Professor Cheng for his thoughtful response. As a follow-up comment, this discussion should not conclude without mention of another hard case, being the International Court of Justice’s advisory opinion in Legality of the Threat or Use of Nuclear Weapons. In its advisory opinion of...
[Jens Ohlin is Associate Professor of Law at Cornell Law School] Cross-posted at LieberCode. So the ICC has released its first verdict and it only took 10 years. Most media reports are concentrating on the substantive crime – the use of child soldiers – because that issue has suddenly gained popular currency with the Kony2012 viral video. But the Lubanga decision is also...
I am grateful to Professor Brown’s careful summary of the thesis of When International Law Works. I should, however, make a few clarifying points about my analysis of some international incidents. Professor Brown, with gentlemanly understatement, notes that “some will have their eyebrows raised” by my analysis. Regarding Loewen v. United States, I confess I am rather ambivalent about the award. ...
[Chester Brown is Associate Professor at the Faculty of Law, University of Sydney] In international life, decision-makers face difficult problems on a regular basis. What should decision-makers do, for instance, when international rules that “promote minimum world order and universally-desired values” run counter to, or threaten, “basic values or essential interests of communities” that those decision-makers serve (p. 2)? ...
[Robert Howse is the Lloyd C. Nelson Professor of International Law at NYU School of Law] When International Law Works is a wide-ranging work with many important and original claims and arguments. Particularly congenial is the approach that the real world effects of international law be examined not through narrow studies of rule "compliance" but in a manner that takes into...
From AllAfrica.com: Today, International Criminal Court (ICC) judges in The Hague delivered the Court's first verdict—a finding of guilt against former Congolese warlord Thomas Lubanga. Prosecutors accused Lubanga of the war crimes of conscripting, enlisting, and using children under the age of 15 years for combat purposes while he served as political head of the Union of Congolese...
I agree with Professor Cheng that legal theory does not have to be predictive to be successful. But I wonder if he sets the bar a bit too low. In his previous post, he writes: Providing a framework of analysis to address international problems, to guide but not control, is perhaps the best that can be done. It may also be...
In a previous post, I noted that Peter Berkowitz defended the legality of a U.S. or Israeli attack on Iran's non-existent nuclear weapons program by invoking U.S. practice -- and only U.S. practice. He now has offered another defense of such an attack in response to an editorial by Bruce Ackerman in the L.A Times. Unfortunately, Berkowitz's second article is...
[John Knox is Professor of Law at Wake Forest Law School] The Supreme Court’s decision to send Kiobel back for reargument on whether the Alien Tort Statute allows courts to recognize a cause of action for violations of the law of nations in foreign territory will focus attention on the presumption against extraterritoriality, as Anthony Colangelo pointed out in his recent...
Panel 3 of the NYU JILP Vol. 44:2 Online Symposium
Thomas Spijkerboer is professor of migration law at VU University Amsterdam. His publications in English include Gender and Refugee Status (Ashgate, 2000), Women and Immigration Law (Routledge, 2007, edited volume with Sarah van Walsum), and Fleeing Homophobia (VU University Amsterdam/COC Nederland, 2011, with Sabine Jansen). A couple of weeks ago, a friend of mine who works for the Dutch asylum authorities told me an example of why he feels uneasy about the Dutch asylum policy towards gay Iraqi asylum seekers. The short version, which is sufficient for our purposes, is that a man was badly beaten because he was (correctly) thought to be gay because he wore very tight jeans. Even from this short summary, it is clear that this man was subjected to persecution on account of his being gay. Such past persecution as a result of membership of a particular social group gives rise to a presumption of a well-founded fear of being persecuted in the future; state practice to this effect has been codified in Article 4(4) of EU Directive 2004/83. The Hathaway/Pobjoy article gives ample arguments to deny this claim, allowing this man to return to a situation in which he has a well-founded fear of being persecuted on account of being gay. The reason why they argue that this claim has to be denied is because “[w]here risk accrues only by virtue of an applicant having engaged in an activity no more than peripherally associated with sexual identity – including where risk arises from an imputation of sexual identity derived solely from having engaged in such activity – it cannot be reasonably said to be a risk that arises “ ‘for reasons of’ sexual orientation.” Without any doubt, dressing in tight jeans is in the same category as the examples taken from Lord Rodgers’ statement which apparently so turns on Hathaway and Pobjoy: attending Kylie concerts, drinking exotically colored drinks, and doing boy talk. The Hathaway/Pobjoy argument leads to denial of a refugee claim, which clearly should not be denied. Something is fundamentally wrong with their argument. I posit that their article has two problems. The first is an incorrect application of refugee law doctrine – surprising, because Hathaway’s 1991 book is such an impressive doctrinal analysis. The second consists of the fantasy (current among legal scholars, therefore less surprising) that law and politics can be meaningfully separated.