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09 Oct LJIL Symposium Vol 25-3: Wording in International Law: A Response
...the term “wordfare” would become a term of art and would enter the vocabulary of our self-reflection, I am happy that such a neologism led Michael to take pains to unearth the etymology of the term ‘(war)fare’ which he has so often been using and which we have, in the past, exchanged extensively about. A few words on Francesco’s insightful gender-related observation ought to be formulated. Although none of us can seriously claim to have the expertise nor the statistics to draw any conclusion in this respect, it certainly is...
17 Nov The Genocide Case Against Putin is Stronger Than You Probably Think: Part 1 – The Cultural Genocide Exclusion Doctrine
...intent to destroy a group’s physical existence and that killings “have a particular importance in proving genocidal intent,” (p. 850) structures lay and lawyerly ideas of genocide and, I believe, serves as a gatekeeper determining which cases are pursued. But the caselaw is not as settled as some exclusionists insist. Events in Ukraine could provide an opportunity for a more searching judicial scrutiny. This post outlines the doctrine of exclusion and compares it to the Genocide Convention’s text, finding that the weight of the text augers against exclusion. The second...12 May States Are Failing Us in Syria — Not International Law
...reality is that there will be times that states use force out of a sense of moral imperative and long-term strategic importance, and not out of a specific self-defense rationale. International law – and we international lawyers – can try to stand in the way, at times constraining morally imperative action, at times getting bulldozed; or we can look the other way and be sidelined, perhaps even tell policymakers and our clients to move forward without us. Or, we can engage and work with them to help craft the most...30 May Indian Treaty Interpretation
...according to the meaning of the term in international law; or that treaties involving indigenous peoples are not treaties in the present conventional sense of the term, that is, instruments concluded between sovereign States (hence the established position of the United States and Canadian judiciary, by virtue of which treaties involving indigenous peoples are considered to be instruments sui generis); or that those legal instruments have simply been superseded by the realities of life as reflected in the domestic legislation of States. 116. Whatever the reasoning followed, the dominant viewpoint...
07 Oct Symposium on Gender Representation: The International Criminal Court’s “Boys Club” Problem
...the International Atomic Energy Agency which have a maximum of five years (para 249). The Experts recommend something between the five-year term of the Registrar, and the nine-year terms of the judges and prosecutor (para 249). Whilst that is very helpful it does not help solve the imbalance with current P-5s and director level staff. In its Overall Response to the IER, the Court’s resistance to the tenure proposal was evident, particularly the OTP which used the example of a Senior Trial lawyer to make its point. According to the...06 Dec Guest Post: Iran and Diplomacy – Countermeasures Against Immunity and Immunity Against Countermeasures
(see above), drawing the conclusion that “no reciprocal breach of diplomatic immunity is permissible” (para 125). The ILC’s use of the term “reciprocal” means that it is talking not only about countermeasures against abuses of diplomatic immunity, but also about violations of immunity as countermeasures. It did not, however, cite the relevant obiter. 4. Conclusion Regarding diplomatic immunity and countermeasures, the Tehran judgment seems to make two interesting and important points: Firstly, countermeasures cannot be used against abuses of diplomatic immunity, and secondly, countermeasures cannot violate diplomatic immunity. These two...29 Jul The Role of the Courts
...in the book. But it’s important to include in this discussion the costs of an aggressive judicial posture in these matters–the costs to democratic accountability for fateful decisions of risk allocation, the costs to military effectiveness, and the costs to long-term policy-making flexibility. I think we have tended to give these costs short-shrift in our enthusiasm for near-term practical gains. And while those costs are difficult to calculate at this stage, I also think the gains have been at least somewhat overstated. The population of Gitmo was declining even before...09 Apr Should the U.S. Use “Lawfare” Against Russia?
Back in 2007, Messrs David Rivkin and Lee Casey’s Wall Street Journal op-ed helped popularize the term “lawfare” among U.S. conservatives, who have used the term to decry legal tactics that challenged US policy in the war on terrorism. As they defined it then: The term “lawfare” describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and...