Search: unwilling or unable
07 Aug Symposium on The Principle of ne bis in idem in International Criminal Law: The Role of ne bis in idem in Transitional Justice – A Multi-level Approach to Justice, Truth, and Reconciliation
...of last resort, capable of prosecuting crimes that national jurisdictions are unwilling or unable to address. The principle of complementarity, as enshrined in Article 17 of the Rome Statute, is not only a cornerstone of the ICC’s jurisdictional framework but also a vital component of the broader transitional justice discourse. In transitional justice contexts, complementarity serves as a catalyst for strengthening national legal systems. By placing the onus on states to prosecute international crimes, it incentivizes legal and institutional reforms, capacity-building, and the development of robust judicial mechanisms. This approach...
06 Aug Symposium on The Principle of ne bis in idem in International Criminal Law: ne bis in idem in the Context of the ICC Cases Arising From the Situations in Africa
...in a final decision to the merits, thus acquiring the res judicata effect, and that they were not intended to shield Gaddafi from accountability for crimes against humanity. A pivotal point in this assessment was the lack of finality in regards to the judicial proceedings in the domestic courts, removing the accused from the protection of the ne bis in idem principle. In her assessment Gaiane emphasizes that Article 20(3) supports the ICC’s complementary jurisdiction by allowing intervention when domestic courts are unwilling or unable to prosecute genuinely. She notes...21 Feb Weekend Roundup: February 7-20, 2015
This fortnight on Opinio Juris, Kevin recommended an article on China’s proposed broad definition of terrorism, argued that there is no practice supporting the “unwilling or unable” test, and was surprised by the news that David Hicks’ conviction for material support for terrorism has been voided. Julian questioned whether the Outer Space Treaty allows for private exploitation of the Moon’s resources. Kristen advanced four reasons why the Security Council’s new Terrorist Financing Resolution is significant, and Jens explained why he remains troubled by the draft proposal to authorise the President...07 Nov New Report on European Counterterrorism Practice
...strategic view about the most effective approach to fighting terrorist organisations and a legal analysis that rejects the notion of a geographically unbounded armed conflict against a non-state group.” Recent practice of a few European states to be sure bear on other important questions of, for example, the extent of the embrace of the U.S. “unwilling or unable” theory of overcoming sovereignty objections to the use of force; and, for example, how international human rights law is thought to inform state use of force in self-defense against terrorist groups. But...26 Feb A Modest Suggestion for the Ukrainian Parliament (Updated)
...that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the...
18 Dec The AU Invokes the Doctrine of Specially-Affected States in Chagos Island
...practice. In my article, I used the example of the customary status of the “unwilling or unable” standard: although the US qualifies as specially affected because it uses force extraterritorially against non-state actors, those uses of force have produced at least four specially-affected states through effect: Syria, Pakistan, Afghanistan, and the Sudan. We can see a similar dynamic in the context of issues of customary that arise in post-colonial context. For every state that qualifies as specially affected because it was a coloniser, there are multiple states that qualify as...12 Feb International Disaster Law and the Standoff at the Venezuela-Colombia Border
...draft article 10, which provides that the affected State has primary, but not the exclusive, role in the direction, control, coordination and supervision of disaster relief assistance in its territory. When the extent of the disaster exceeds the State’s capabilities it has the duty to seek external assistance (draft article 11). Second, consent to humanitarian assistance cannot be withheld arbitrarily (draft article 13.2.), particularly when the affected State is unwilling or unable to provide the required assistance. The ILC implied the customary nature of this limited discretion by analyzing the...18 Apr Thoughts on the Ukraine Ad Hoc Self-Referral
...of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified. Parliament’s acceptance of the ICC’s jurisdiction, even on an ad hoc basis, seems specifically foreclosed by the Constitutional Court’s judgment. Ukraine’s President and Parliament clearly don’t care...
24 Jun Delivering on Domestic Justice in Africa for Atrocity Crimes
...especially true as accountability at the national level is touted as the ideal venue for delivering justice wherever possible and given the limited capacity and overloaded docket at the ICC. Of course, under the principle of complementarity, the ICC only steps in where national courts are unwilling or unable to investigate and, as appropriate, to prosecute the most serious international crimes. During the conference, more than a dozen government representatives took the floor one by one to describe their efforts to foster accountability domestically. On a positive note, states are...