I have refrained from weighing in on the recent scandal at the ICTY concerning a letter written by the Danish judge, Frederik Harhoff, that accuses the President of the Tribunal, Judge Theodor Meron, of pressuring his fellow judges into acquitting high-profile defendants such as Gotovina and Perisic. I have done so not because the scandal isn't worth mentioning, but because...
I have been making my way through the defence response to Libya's admissibility challenge. It's excellent, both with regard to why Libya is not prosecuting the "same conduct" as the ICC and with regard to why Libya is currently unable to genuinely prosecute Al-Senussi. I was particularly struck by the defence argument that Libya does not currently have complete control...
Opinio Juris is pleased to welcome Professor Neomi Rao of George Mason University School of Law as guest-blogger for the next week. With the Syria crisis re-emerging as a possible flashpoint for military intervention, we thought it would be interesting for Professor Rao to discuss her recent work on the status and impact of the "Responsibility to Protect" principle that is...
There has been a rightful flurry of media interest in the saga of Edward Snowden, the U.S. government contractor who is the apparent source of the leaks about the U.S. National Security Program's data mining surveillance program. One area of focus is Snowden's decision to take refuge in Hong Kong from a possible prosecution by the U.S. government. As I noted...
Things are starting to heat up around the pending U.S. Supreme Court case Bond v. United States, which will test the scope of Congress's power to implement U.S. treaties. The case is a big one -- challenging as it does the holding of the most famous of U.S. foreign affairs law cases -- Missouri v. Holland and Oliver Wendell Holmes' wonderfully...
A couple of months ago, the ICTY Appeals Chamber acquitted Momčilo Perišić, the Chief of the General Staff of the Yugoslav Army, of aiding and abetting various international crimes committed by the Army of Republika Srpska (VRS) during the war in the Balkans. According to the Appeals Chamber, when a defendant is accused of aiding and abetting crimes committed by an organization,...
By any standard, the Pre-Trial Chamber's rejection of Libya's admissibility challenge is a crushing defeat for the Libyan government. Libya's challenge failed for two basic reasons: (1) Libya is not investigating the same case as the OTP; and (2) Libya is currently unable to genuinely prosecute Saif. I will address the first ground, which I think is legally correct but...
Irini Papanicolopulu highlights the important and sometimes central role that non-state actors have in the whaling disputes between Japan and Australia. Invoking the traditional lens of international law, she considers whether the actions of Sea Shepherd Conservation Society (SSCS) or the Institute for Cetacean Research can implicate state responsibility. Her conclusion is properly uncertain given the murky relationships between Australia...
This week we are delighted to bring you a symposium exploring the intersection between the law of responsibility and the law of the sea. The motivation for this symposium is twofold: First, although there is long interaction between the law of the sea and the law of responsibility, the law of the sea has become an area where the intersection is of...
In previous posts (here and here), I discussed the reasons why Obama will never actually enforce the "near certainty" standard regarding civilian casualties and noted that the standard is vastly more restrictive than IHL's principle of proportionality. In this post, I want to explain why the new targeting standards for the use of lethal force "outside the United States and...
As Bill Schabas noted in his recent post, the Comoros referral raises interesting questions concerning the Pre-Trial Chamber's power to review a decision by the OTP not to open a full investigation into a situation. Most people who don't keep a copy of the Rome Statute in their back pocket probably believe that the OTP has complete discretion concerning such...
This is very interesting. The Union of the Comoros, a state party to the Rome Statute since 2002, has formally referred Israel's attack on the flotilla that included the MV Mavi Marmara to the ICC. The question I want to address in this post is whether the Court has jurisdiction over the flotilla attack. I think it's clear that it does...
