Search: unwilling or unable
29 Aug The Cliff of Targeted Killings: From Rushdie to Al-Zawahiri
...use force in the territory of another state must have that other state’s consent, unless they are responsible for the actual, ongoing, or imminent threat. It is highly unlikely that Afghanistan’s Taliban government consented to the US’s strike on al-Zawahiri as they publicly denounced the strike. The US has recognized a policy of not seeking consent from such a state if they are unwilling or unable to prevent or address the threat, yet this approach is widely debated and employed by a vast minority of states. (see here and here)....30 Oct Huge Win in the Zimbabwe Torture Docket Case
...subsidiarity…. [T]he principle of non-intervention in the affairs of another country must be observed; investigating international crimes committed abroad is permissible only if the country with jurisdiction is unwilling or unable to prosecute and only if the investigation is confined to the territory of the investigating state. Simply put, we may not investigate or prosecute international crimes in breach of considerations of complementarity and subsidiarity. The second is that there must be “anticipated presence” of the suspect in South Africa (p. 35): The second limiting principle is practicability. Before our...
13 Mar The “Inverted Border”: When did the Border become an Obligation to Keep In Rather than a Prerogative to Keep Out?
...migrants or drugs towards the US but there is no evidence to that effect, and any move to an “unwilling or unable” standard would end up producing an entirely bloated sense of third states’ obligations towards one’s borders. The US border, then, precisely because the US is sovereign, is for the US to police. If the US wants to protect its borders it should, under international law and precisely because it is a sovereign state, do so at its own expense. One way of thinking of this is as the...
20 Jan Geoengineering and the Use of Force
...to bear for a relaxation of the jus ad bellum—claims in favor of preventative self-defense and the unwilling or unable doctrine similarly tried to undermine the standards relating to the scale, gravity, attribution, and imminence of armed attacks as the triggering condition for self-defense. All of these efforts have in one way or another sought to alter the nature or timing of the acts that successfully trigger the right of self-defense. The imminent launch of a geoengineering effort that is thought likely to risk catastrophic climate consequences may not fit...
08 Feb Is Russia’s Bullying Illegal?
...own nationals when they are faced with imminent destruction in another state. For instance, if the local state is unwilling or unable to counter a terrorist attack against foreigners on its territory or even supports the outrage, their home state may mount a rescue operation if their very lives are in imminent danger. This was the case in the Entebbe mission mounted by Israel against Uganda in 1976. Other cases concern situations where local order has broken down and foreigners are subject to deliberate and systematic attack by rebel movements...10 Mar Weekend Roundup: March 4-10, 2019
...(ICCPR). Alexandra Lily Kather and Anne Schroeter provided a gendered critique in two parts (here and here) of the German Federal Public Prosecutor’s strategy towards detaining, investigating, and prosecuting returning female ISIL members, which represents the broader challenges facing other EU member states. Srinivas Burra book-ended the week nicely by returning to the discussion of the legal implications of the recent India-Pakistan military standoff, with a particular focus on the “unwilling or unable” test vis-à-vis the exercise of self-defense. Many thanks to our guest contributors and have a great week!...
21 Jul Duterte’s Arrest, the ICC, and the Politics of Accountability
...Penal Code and Republic Act No. 9851, Duterte could have been prosecuted domestically. However, there have been no substantive efforts to hold him accountable under these statutes, reinforcing the ICC’s assessment under the ‘unwilling or unable’ standard (Article 17, Rome Statute). Rather than seeing a reckoning through its own courts, the Philippine government essentially deferred the problem to the ICC. This is a familiar pattern in global justice, a phenomenon of states ‘outsourcing’ their problems to international institutions. Instead of dealing with the messy realities of prosecuting a powerful figure...19 Dec Sudan Blocks ICC Probe on Darfur
...“unwilling or unable” to do so. Art. 17 Sect. 2 states: In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified...