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Search: Symposium on the Functional Approach to the Law of Occupation

04 Jul

...the crime. Case law is peppered with discussion as to whether those who are hors de combat are “civilians” or constitute members of the “civilian population” for the purposes of crimes against humanity. Careful examination of this jurisprudence reveals that international criminal courts and tribunals, particularly the ad hoc tribunals, have taken different approaches to this issue. The International Criminal Tribunal for the former Yugoslavia’s (ICTY) case law has taken a meandering path. Some cases have endeavoured to include those who are hors de combat within the notion of “civilian”...
04.07.16 | |

16 Sep

[Richard H. Steinberg is Professor of Law at the University of California. Los Angeles; Visiting Professor of International, Comparative & Area Studies at Stanford University; and Director of the Sanela Diana Jenkins Human Rights Project.] I am grateful for Ian Hurd’s thoughtful comment on my book chapter partly because it supports my claim that that everyone borrows from the realist tradition. Moreover, Hurd’s comment inadvertently recapitulates a narrow structural realist view of international law (recalling the associated dysfunctional debate of the 1980s) that I intended my chapter to supersede, offering...
16.09.13 | |

12 Dec

[Pierre Bodeau-Livinec is Professor of Public Law at University Paris-Nanterre and the Managing Editor of The Law and Practice of International Courts and Tribunals.] As Kristen Boon very aptly points out, apologies given on December 1 by Secretary-General Ban Ki-moon for the role of the United Nations with regard to the cholera outbreak in Haiti can only be welcomed as a highly significant “change of direction” in the conduct adopted by the UN since 2010. At the same time, the Secretary-General’s statement and the report introducing “A new approach to...
12.12.16 | |

19 Oct

two would be an exaggeration. Jus cogens does not actually challenge positivism; on one possible interpretation, it can provide exception to the positivist criteria of law-making because it is public policy; on another interpretation, jus cogens actually conforms to the requirements of positive customary international law, but the constituents of customary law are then redefined in practice, again to conform to the public policy nature of jus cogens. These two explanations are not mutually exclusive. In more specific terms, the international tribunal’s consistent willingness to accept the customary law status...
19.10.09 | |

02 Apr

and its participants itself, where necessary supported by treaty law (like the Vienna Convention on the International Sale of Goods), and in practice formed and operating much like public international law with its different sources, as may be shown particularly in its foreign investment law branch. That is the modern lex mercatoria. It is very different therefore from the law of the codification, but similar to what prevailed earlier. It is now in its formation and operation in fact closer to the common law which is not statist per se...
02.04.12 | |

06 Dec

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is Co-Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and project leader of the Jus Post Bellum Project.] Introduction International Criminal Justice is a tipping point. It is a bit like a scene in Woody Allen’s “Match Point” movie. The ball is in the air. It has hit the net. But it cannot quite decide where to...
06.12.16 | |

02 Aug

...there was a strong 19th century practice against state-level activity interfering with foreign relations (see the discussion in my piece in the Colorado Law Review symposium). Zschernig may have represented the doctrine's zenith. Wouldn't you concede that if it could have been shown that Oregon's action posed a serious threat to our Cold War relations with the Soviets the decision would have been justified? (I know that doesn't fit with the facts of the case, but the twist isn't implausible.) Today the functional (call it "policy" if you want, but...
02.08.07 | |

18 Apr

...include Russia’s invasion of Crimea? I had an interesting twitter debate earlier today on that issue with a bunch of smart Court-watchers, including Ryan Goodman, Eugene Kontorovich, Mark Kersten, Martin Holtermann, and David Kaye. I pointed out that it’s difficult to see what international crimes Russia committed during the invasion, other than the non-prosecutable crime of aggression. Ryan replied that a longer self-referral could give the ICC an opportunity to address important issues in the law of occupation. (See also his post here.) That’s absolutely true — but only if...
18.04.14 | |

19 Jul

Avi Keslinger He is not advocating crimes against humanity either. He said that hey will be treated in accordance with international law and ALLOWED to leave WITH GENEROUS SUPPORT (my emphasis). In other words, those who desire to leave (and probably most would) would be aided by the Israeli government. Presumably that means both giving them monetary gifts and pairing them with countries which will be willing to accept them as immigrants (and there are countries in need of moneyed immigrants). All will be done in accordance with international law....
19.07.14 | |

25 Aug

...el roam Auriane Botte , just consider the following : jus cogens, means as stated by you , consensus !! yet , it does mean also that : No domestic law , can , or actually , prescribed by law , permits such crimes of jus cogens . Means , that , he who violates it , on his own has done it !! means : Individual responsibility, and solely individual one , since: The perpetrator , has violated , the law , compelling law , of his own country...
25.08.15 | |

24 Oct

...taken decisions on the basis of irrational arguments. Scary? Yes, irrationality is always scary. But even irrationality is predictable, if we understand how it works. It is high time we adjust our international relations theories to take into account “irrationality”. If we do that, instead of creating international law to cope with problems after they emerge, which is what we invariably do right now, we might be able to create international law that can prevent problems in the first place. That would bring international governance to a far superior level....
24.10.06 | |

07 Jun

Tobias Thienel If the aim of international human rights law (I am engaging in teleological thinking here) is to provide full protection, as appropriate to the circumstances, why would it allow for a 'third box'? Human rights law in some parts stops where international humanitarian law takes over, because the latter body provides the more appropriate form of protection, in the circumstances of an armed conflict. No such considerations apply where there is no other form of protection, so why reduce the guarantees of international law? Less theoretically speaking, I...
07.06.06 | |