At Spreading the Jam, Dov Jacobs defends the Pre-Trial Chamber's conclusion in the Burundi situation that the OTP is not required to notify a state until after the PTC has authorized an investigation. Here are the critical paragraphs from his post: Note the different language used [in Art. 18] depending on whether there is a referral under 13(a) (state referral) or...
Last week I argued that the OTP's failure to ask the Pre-Trial Chamber to authorize an investigation prior to Burundi's withdrawal from the ICC becoming effective -- 28 October 2017 -- meant that the Court no longer had jurisdiction over crimes committed on Burundi's territory prior to that date. I still think my legal analysis is correct, but my factual...
[Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.] This May, the law of naval warfare took a significant step forward with the International Committee of the Red Cross (ICRC) release of an updated commentary on the Second...
[Sergey Vasiliev is an Assistant Professor of International Law, Grotius Centre for International Legal Studies, Leiden University. This is the second part of a two-part contribution. The first part can be found here.] Initiation of an investigation by the OTP post-withdrawal As I argued previously, no investigation in the Situation in Burundi can be initiated after 27 October 2017 unless the OTP made...
[Sergey Vasiliev is an Assistant Professor of International Law, Grotius Centre for International Legal Studies, Leiden University. This is the first part of a two-part contribution.] Questions raised by the ICC’s reaction to Burundi’s withdrawal On 27 October 2017, one year after Burundi notified the UN Secretary-General of its intention to withdraw from the Rome Statute, the withdrawal became effective in...
[Jennifer Trahan is an Associate Clinical Professor at the Center for Global Affairs at New York University.] The ICC Prosecutor announced last week that she was requesting the ICC Pre-Trial Chamber to authorize the Afghanistan Preliminary Examination moving into the Investigation stage. This would take the ICC’s Afghanistan investigation one step closer to resulting in actual cases. We have known for quite...
Very significant news out of the ICC today: after a decade-long preliminary examination, the OTP has finally decided to ask the Pre-Trial Chamber to authorize a formal investigation into the situation in Afghanistan. Here is a snippet from Fatou Bensouda's announcement: For decades, the people of Afghanistan have endured the scourge of armed conflict. Following a meticulous preliminary examination of the...
[Jennifer Trahan is Associate Professor, The Center for Global Affairs, NYU-SPS, and Chair of the International Criminal Court Committee of the American Branch of the International Law Association.] On Friday, October 27, Burundi’s withdrawal from the International Criminal Court’s Rome Statute, filed one year earlier, became effective. This sad event —the first ever withdrawal from the Court to become effective —...
As has been widely reported, Burundi has just become the first state to formally withdraw from the ICC. The OTP has been examining the situation in Burundi since April 2016, but it did not formally ask the Pre-Trial Chamber (PTC) to authorize an investigation prior to Burundi's withdrawal becoming effective. So what does Burundi's withdrawal mean for the OTP's preliminary...
I have just posted on SSRN a draft of a (very) long article entitled "Specially-Affected States and the Formation of Custom." It represents my first real foray into both "classic" public international law and postcolonial critique. Here is the abstract: Although the US has consistently relied on the ICJ’s doctrine of specially-affected states to claim that it and other powerful states...
Announcement ASIL presents "International Law and the Trump Administration: The Use of Force under International Law" Online, Monday, October 30 at 2:00 PM ET. This live online briefing, the eighth in the American Society of International Law's series on "International Law and the Trump Administration," will feature former senior U.S. officials from both Republican and Democratic administrations who were responsible for formulating...
[Malcolm Jorgensen is a Research Fellow at the Berlin Potsdam Research Group "International Law--Rise or Decline?"] In their new book The Internationalists: How a Radical Plan to Outlaw War Remade the World, Oona Hathaway and Scott Shapiro assert that Chinese occupation of maritime features in the South China Sea is “worth little as long as the rest of the world refuses...
