In association with the International Commission of Jurists

Search: unwilling or unable

14 Feb

...whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. This is not a question of whether Libya will give Saif a fair trial; it is a question whether Libya’s can hold a trial at all, as “trial” is defined by the Rome Statute. And according to the plain language of Article 17(3), Libya is not currently able to try Saif. Unless it...
14.02.13 | |

20 Feb

...national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out proceedings”. Hence, Libya will not be able to conduct the proceedings within the terms of Article 17(3) if it cannot get custody of Saif Al-Islam as a result of “a total or substantial collapse or unavailability of its national judicial system” and the possibility of conducting a trial in absentia is not relevant for such determination. This is absolutely correct, and the OTP deserves credit for being...
20.02.13 | |

31 Mar

...– we were told the Police will never say in writing they are not able to police an event, in other words the University had doubts about the Police’s ability to do their job of upholding the law! The university claims that the Police are not able or unwilling to become too involved because the University is ‘private property’, which we find astonishing. The University is a public space, it was established by a Royal Charter and it has public roles and duties including upholding freedom of speech and to...
31.03.15 | |

01 Nov

The most significant problem with the Order, of course, is the one I identified in my previous post: namely, that Rule 15bis applies only to “part heard” cases — not cases that have been over for nearly two years. But it’s worth noting that the Acting President has also disregarded a number of procedural requirements of Rule 15bis. Recall the text of the relevant provisions: (C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for a period which is likely to be longer...
01.11.13 | |

19 May

...violating Pakistani national sovereignty--he doesn't even make the claim that Pakistan was unwilling or unable to prevent bin Laden from conducting further attacks, though no doubt the US believes this to be the case. He also suggests both self-defense and ongoing armed conflict were justifications for the use of force--yet does nothing to clarify the nature and scope of either, particularly whether there are any recognized geographic boundaries/territorial nexus in the armed conflict or such limits on the use of self-defense. That the administration considered bin Laden a combatant and...
19.05.11 | |

13 May

...none at all.' [from his Protecting the Vulnerable: A Reanalysis of Our Social Responsibilities, 1985] As Goodin concludes, 'the state should become responsible whenever there is no one with primary responsibility, or whenever those with primary responsibility are unable or unwilling to discharge it,' keeping in mind here of course that the state has the 'deepest pockets.' John Stuart Mill called it 'the great error of reformers and philanthropists... to nibble at the consequences of unjust power, instead of redressing the injustice itself.' Indeed. Well, I'm now late for my...
13.05.06 | |

04 Jun

...not of belligerents. I don't see why recognizing Hamas as a belligerent makes all Hamas terrorists "armed forces" of a "Party to the conflict" with the meaning of GCIII. Incidentally, even if Hamas were to declare a maritime blockade, and it were a belligerent, it would be unable to meet the legal requirement of “effectiveness” and thus Hamas would not be legally entitled to stop and search etc. So even if Israel is recognizing Hamas’ belligerent status, it’s not clear there’s much danger there. (Of course, additionally, under the rules...
04.06.10 | |

14 Jul

...by Hezbollah necessarily impinges on Lebanese sovereignty. My take is that Lebanon would have to live with that as it is either unable or unwilling to deal with Hezbollah itself. The main issues, again, are necessity and proportionality. Even though Israel would be within bounds of IHL/jus in bello to attack Lebanese military facilities, even those unaffiliated with Hezbollah in any way, it would violate the jus ad bellum if it did so, as that would not be an act of self-defense against Hezbollah. I do want to make another...
14.07.06 | |

03 Oct

...military operation that killed AA. The US simply did not need to invoke self-defense; it would only have had to do so had Yemen not consented, as any use of force on Yemeni soil would then have been a presumptive violation of Art. 2(4) of the UN Charter. Had Yemen not consented, this is where the 'unwilling or unable' analysis could arguably kick in, but again, Yemen DID consent. So we're left with human rights law, which does not contain some sort of absolute prohibition on the intentional taking of...
03.10.11 | |

03 Mar

state-centric system etc.; the other says that attribution is not necessary, and that state A may invade state C if C is unable or unwilling to stop B. So, by way of actual examples - did the actions of Al Qaeda have to be attributable to Afghanistan so that the US could invade Afghanistan? Or, did the actions of Hezbollah have to be attributable to Lebanon so that Israel could invade Lebanon in 2006? Or, to give an ongoing example - do the actions of the PKK in Northern Iraq...
03.03.08 | |

03 Nov

...court or tribunal that the evidence proves guilt beyond reasonable doubt and not because the accused is unable to respond to the charges properly because of inadequate time. A Martin: you said it yourself, it's quite legitimate. Do we need to link back to KJH's previous post with Karadzic's letter to the court? That all being said, I would agree that he should have turned up to the first day of the trail, outlining these reasons as to why he should not be expected in court in the days proceeding....
03.11.09 | |

15 Mar

...US isolated and unable to provide exclusive access except against other US firms. The collapse of the Reciprocating States regime and the isolation and demise of the US seabed mining industry after the LOS Convention came into force, and existence of 8 active development operations (including from France, Germany, Japan, Russia, India, China, South Korea and a consortium of east european states) under the ISA, suggests to me that a bilateral approach to the extended shelf is doomed to follow the same path. US firms are not only unable to...
15.03.10 | |