Eugene Kontorovich has responded at Volokh Conspiracy to my previous post about politically-motivated acts of violence on the high seas. I invite interested readers to examine for themselves the various documents Eugene and I discuss; in this final post I simply want to correct a fundamental error on Eugene's part concerning the Harvard Draft Convention on Piracy -- an error...
Both Eugene and Maggie disagree with my claim that politically-motivated acts of violence on the high seas were not traditionally considered piracy under international law, but were instead simply criminal acts that the offended state could prosecute as it saw fit. Here is Eugene (my emphasis; combining two comments): The rule is clear as both a matter of customary international law...
As Julian noted earlier, the Ninth Circuit, in an opinion written by Judge Kozinski, has decided that anti-whaling activism qualifies as piracy if it involves violence against a ship on the high seas. I'm running short for time right now, but I want to briefly respond to Kozinski's key claim about the traditional understanding of piracy's "private ends" requirement (p....
Matt Bors takes the lead, at least for today: ...
That may seem like a ridiculous question. After all, Libya is doing everything in its power to prosecute Saif domestically -- and he is facing a variety of charges that carry the death penalty. But consider the text of Art. 17(2), the "unwillingness" prong of the the admissibility test: In order to determine unwillingness in a particular case, the Court shall...
As I have explained before, Libya's admissibility challenge must fail if it cannot ensure that the militia in Zintan who have Saif custody will transfer him to the government to stand trial, because Art. 17(3) of the Rome Statute deems a state "unable" to prosecute if, "due to a total or substantial collapse or unavailability of its national judicial system, the...
I noted a few days ago that the OTP made a serious legal error when it suggested that Libya's challenge to the admissibility of the case against Saif could succeed even if Libya had to try Saif in absentia. Fortunately, the OTP has recognized its mistake and withdrawn its submission: The Prosecution wishes to retract its reference to the possibility of...
The Australian political world is all abuzz at the prospect of Assange running for the Senate in the upcoming federal election, which will be held on September 14. It's not completely clear whom he'll run against, but he will register as a voter in my home state of Victoria and intends to start a new political party, surprisingly entitled the...
My friend Jens Ohlin (Cornell) has just posted a very important article on SSRN entitled "Targeting and the Concept of Intent." Here is the abstract: International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike;...
Okay, I admit it. The ICC is a failure. As Raj Kannappan insightfully notes at the Washington Times, its botched prosecution of Milosevic proves it: Although the International Criminal Court (ICC) was established with the promise of bringing to justice a host of international criminals, the Court has fallen short of delivering on that promise. Eleven years ago, on February 12, 2002, the...
Last May, I offered some critical thoughts on Opinio Juris about Charles Taylor's 50-year sentence at the Special Court for Sierra Leone. I have just finished a short essay (8,000 words) on Taylor's sentence that will appear in an upcoming issue of the Journal of International Criminal Justice; you can find the essay on SSRN. Here is the introduction: On 30 May...
The OTP has weighed in on Libya's ongoing challenge to the admissibility of the case against Saif Gaddafi. In its view, although there are serious questions concerning whether Libya is investigating the same conduct as the OTP, Libya is currently willing and able to conduct a genuine prosecution. Unfortunately, its conclusion regarding ability rests on a very serious legal error....
