In association with the International Commission of Jurists

International Criminal Law

15 Nov

[Ilias Bantekas is Professor of Law at Brunel University in London.] This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below. Causality is central in the operation of criminal attribution in all legal systems. It makes sense of course that liability for particular conduct exists where it is proven...

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15 Nov

[Darryl Robinson is an Assistant Professor at Queen’s University, Faculty of Law] This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below. Much has been written about command responsibility. In my article, I argue that views on the nature of command responsibility have become unnecessarily obscure and convoluted, and that the problem flows from an early misstep in the jurisprudence. If we revisit the first misstep, a simple and elegant solution is available. Famously, early Tribunal jurisprudence concluded that the ‘failure to punish’ branch of command responsibility is irreconcilable with a contribution requirement. It therefore rejected any requirement that the commander’s dereliction contributed to core crimes. This however generated a contradiction, because Tribunal jurisprudence (1) recognizes the culpability principle, whereby causal contribution is necessary to share in liability for a crime and yet (2) uses command responsibility to convict commanders of core crimes without causal contribution. Subsequent efforts to deny the resulting contradiction, and later efforts to avoid the contradiction, have spawned many inconsistent, complex and convoluted claims about command responsibility. These include the descriptions of command responsibility as responsibility for-the-acts-but-not-for-the-acts, as a ‘sui generis’ hybrid whose nature has not been explained, as neither-mode-nor-offence, or as sometimes-mode-sometimes-offence. Many such descriptions are elusively vague, and necessarily so, because clarity would reveal the contradiction.
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14 Nov

I have been having an interesting twitter exchange with Ben Wittes about an online "Choose Your Own Adventure" game created by the Truman National Security Project.  The game, which is entitled "Tell Me How This Ends," asks you to decide how the President of the United States should respond to news that Iran has accumulated enough enriched uranium to build...

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14 Nov

The Melbourne Journal of International Law is delighted to continue our partnership with Opinio Juris. This week will feature three articles from Issue 13(1) of the Journal. The full issue is available for download here. Today, our discussion commences with Spencer Zifcak’s article ‘The Responsibility to Protect after Libya and Syria’. Professor Zifcak draws on the disparate responses to the humanitarian...

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01 Nov

I blogged late last year about the UK Court of Appeal's judgment in Secretary of State for Foreign and Commonwealth Affairs v. Rahmatullah, which implicitly repudiated a little-known OLC memo written by Jack Goldsmith that concluded “operatives of international terrorist organizations” are not “protected persons” for purposes of Article 49 of the Fourth Geneva Convention -- a provision that prohibits...

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30 Oct

The article, which is available in draft form on SSRN, is entitled "'One Hell of a Killing Machine': Signature Strikes and International Law."  It is forthcoming in the Journal of International Criminal Justice as part of a mini-symposium on targeted killing edited by Cornell's Jens Ohlin.  Here is the abstract: The vast majority of drone attacks conducted by the U.S. have...

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23 Oct

Julian beat me to discussing Romney's statement last night that, if elected, he would “make sure that Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation" (what we ICL scholars call "direct and public incitement to genocide").  I disagree with Julian, however, that Ahmadinejad could not be prosecuted in the United States.  Pursuant to the Genocide...

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23 Oct

Contra Peter, there was one indisputable reference to international law in last night's U.S. presidential debate. Mitt Romney repeated his argument that Iran's president should be indicted for inciting genocide.  This idea has spawned quite a bit of reaction, especially from the lefty blogosphere. One typical reaction, from Greg Sargent, suggests that Romney is turning his back on his famously...

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22 Oct

I am delighted to announce that Oxford University Press has just published a paperback edition of my book, The Nuremberg Military Tribunals and the Origins of International Criminal Law.  The paperback is priced at a very reasonable £25 -- £45 cheaper than the hardback.  Here again is the description: This book provides the first comprehensive legal analysis of the twelve war...

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21 Oct

I want to call readers' attention to an excellent new article by James Stewart (UBC; currently a Global Hauser Fellow at NYU) that is forthcoming in the Journal of International Criminal Justice.  Here is the abstract of the article, entitled "Overdetermined Atrocities": An event is overdetermined if there are multiple sufficient causes for its occurrence. A firing squad is a classic...

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17 Oct

Jack Goldsmith offers five thoughts today at Lawfare about the D.C. Circuit's Hamdan II decision.  I agree with two of his thoughts -- that the government is free to rely in future prosecutions on alternatives to material support (MST) such as aiding and abetting terrorism, and that (sadly)  al-Bahlul could be detained indefinitely if he is ultimately acquitted by his...

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