The irreplaceable Carmi Lecker called my attention yesterday to a proposal by Switzerland to deem the intentional starvation of civilians a war crime in non-international armed conflict (NIAC). At present, it is only a war crime in international armed conflict (IAC) -- Art. 8(2)(b)(xxv) of the Rome Statute. Here is the text of the proposal: Add to article 8, paragraph 2...
A few months ago, I was invited by the Polish Ministry of Justice to participate in a one-day conference on the responsibility of lawyers for judicial crimes, part of Poland's Day of Remembrance for the Victims of Stalinism and Nazism. The Ministry asked me to discuss American prosecutions of Nazi lawyers at the Nuremberg Military Tribunals -- something I wrote...
I have uploaded a new article on the crime of aggression to SSRN. Here is the abstract: Immediately after the historic adoption of the aggression amendments on 14 December 2017, a number of participants in the negotiations expressed their belief that activating the crime of aggression would help deter states from engaging in the illegal use of force. Unfortunately, the version...
Last week, I asked my followers on twitter to weigh on whether human-rights NGOs should offer unpaid internships. The poll offered three choices: (1) paid only; (2) unpaid is okay; (3) NGOs should offer a mix of paid and unpaid. I expected position 2 to be unpopular, but I thought position 3 would garner the most votes. I was right about...
As I have discussed before, in March 2018 the Presidency curiously dissolved the Pre-Trial Chamber (PTC III) that had been dealing with the Afghanistan situation for six months and assigned that situation to a new PTC. Judge Mindua remained part of the new PTC (PTC II), while Judges Chung and Pangalangan were replaced by two newly-elected judges, Akane and Aitala....
As expected, the OTP has asked the Pre-Trial Chamber (PTC) to grant leave to appeal its refusal to authorise the Afghanistan investigation. I'm in Kiev and don't have as much time to write as I'd like, so I just want to offer a few quick thoughts on the OTP's motion, which seeks appeal on three interrelated issues. First, I think it's...
I had the pleasure on Wednesday of attending Keith Raynor's talk "International Criminal Justice: Where Does It Go from Here?" at Lincoln's Inn in London. I had never been to an Inn of Court before, and it was great fun. I still can't get over not being allowed to go the bathroom during dinner, and -- as someone who...
I am delighted to announce that Angela is the newest permanent member of Opinio Juris! We have thoroughly enjoyed her blogging this past month and look forward to hearing much more from her in the future. As a reminder, Angela is a Zimbabwean international lawyer who currently works for the Wayamo Foundation. She focuses on enhancing the domestic capacity of African prosecutors...
Imagine the following situation, S1. During a bitter and very one-sided armed conflict, the President of Alpha commits genocide on the territory of Beta. Alpha is not a member of the ICC; Beta is. When the President of Alpha attends a peace conference in Beta, Beta arrests him and prosecutes him for genocide. In this scenario, Beta has clearly violated international...
On 17 May 2017, Judge Marc Perrin de Brichambaut gave a talk at Peking Law School about the role of victims at the ICC. The talk, which was recorded and then transcribed, included a number of shocking comments, such as describing "the Africans" as "a group of 54 countries who provide the suspects and the accused" to the Court. Judge...
I thought I was done blogging about the Pre-Trial Chamber's authorization decision, but there is another aspect of it that keeps nagging at me: the limits PTC II would have imposed on the OTP's investigation if it had authorized it. Here are the key paragraphs (emphasis mine): 40. More specifically, the precise width and breadth of the Prosecutor's power to investigate...
I have been thinking more about how the OTP can appeal the Pre-Trial Chamber's refusal to authorize the Afghanistan investigation. I was perhaps a bit too dour in my assessment of whether the Appeals Chamber is likely to get the chance to reverse a decision that I consider fundamentally flawed. The most obvious option would be to seek leave to appeal the...