Search: unwilling or unable
13 Aug Climate Wars and Jus ad Bellum: Part II
...mass destruction wielded by “nuclear rogue states;” in the form of the “unwilling or unable” doctrine to deal with transnational terrorists in non-consenting states; and to permit the use of force in response to cyber-attacks by either states or non-state actors (NSAs). All of these efforts sought to weaken the criteria for “armed attack” as the triggering condition for self-defense, and to pervert the concept of imminence, all of which undermined the core principle of necessity. They also attempted to weaken aspects of causality and attribution in applying self-defense to...23 Sep Does the Collective Self-Defense Justification Extend to Khorasan? If Not, Then Is There One?
I agree with Jens’ excellent post on the importance of the “unwilling or unable” standard to the US justification for legal strikes on non-state actors in Syria. I agree this action may reveal state practice supporting (or rejecting) this legal justification. I am curious whether the UK, France, or other states that may be participating in Syria strikes will embrace this theory. (I already know the Russians have roundly rejected this US justification). I also wonder whether this legal justification will weaken, as a policy matter, the ability of the...12 Mar Bradley Book Symposium: The Reality of International Delegations
...the ICC. I am not so sure about this conclusion. Unlike an extradition, the transfer of an individual to the ICC would only occur after a determination that the U.S. was unwilling or unable to prosecute that person under U.S. laws. The transfer is not made in order to have the individuals prosecuted under foreign laws. It is made to give a different legal entity (the ICC) to prosecute someone for the same exact crimes and under the same laws the defendant would have faced in the U.S. Additionally, it...18 Mar Wronging Rights on the Warrant for Bashir
...prohibitions on the exercise of jurisdiction over someone who has been kidnapped, so it’s quite likely that the doctrine of male captus, bene detentus (“wrongly captured, properly detained”) would apply. Alternately, if Bashir traveled to a state with a universal jurisdiction statute, he could be arrested on a domestic warrant issued under that law. Presumably, the arresting state could then determine that it is “unwilling or unable” to prosecute him within the terms of the Rome Statute and hand him off to the ICC, which could again invoke male captus,...
20 Nov Centre Stage Again – Allegations of UK War Crimes in Iraq
...report at the annual Assembly of States Parties to be held during the first week of December this year, hopefully shedding light on progress made by all parties, domestic and international over the course of the year. Given that the ICC is a court of last resort, it can only pursue an investigation when the state in question (in this instance the UK) is unwilling or unable to genuinely pursue the matter. Some would say that the UK is taking all the necessary steps whilst others are of the view...
24 Nov Italy’s Difficult Relationship with the Domestic Crime of Torture
...that when they engage in torture, they are committing the most egregious violation of human dignity and physical/mental integrity. Therefore, on a more symbolic level, a specific serious stigma attaches to public torture since it represents the most egregious infringement on human dignity and humanity. Additionally, precisely because of their role as public officials, these individuals might end up never being prosecuted or convicted. The link between the state apparatus and public officials committing torture entails that the national penal system might be unwilling or unable to function properly. Ultimately,...06 Feb Bobby Chesney on Targeting Al-Awlaki
...— the questions and the order of raising them. One observation is that I would put less weight on sovereign consent for the jus ad bellum analysis (ie, Yemen permitting the US action). This is in large part because in my view the bedrock international law principle for the United States is, and always has been, that although territorial integrity is foundational to legal sovereignty, a state that is either unwilling or unable to control the use of its territory by non-state actor terrorist or other armed groups acting against...20 Dec Weekend Roundup: December 13-19, 2014
This week on Opinio Juris, our regular bloggers touched on a variety of topics again with Kevin rejecting Ashley Deeks’ evidence that the international response to ISIS supports the “unwilling or unable” test under article 51 UN Charter and Kristen expanding the UN’s list of 13 things to know about UN sanctions to 16. Prompted by Christopher Kutz’ essay, Julian asked whether the norm against torture is indeed dying in the US. In guest posts this week, Bede Sheppard discussed new guidelines to protect schools and universities from military use...
10 Oct Business Responsibility in Public Health Emergencies
...influence or profit’ would not be valid considerations for this purpose but may be relevant considerations for philanthropic activities. This is because there is a risk of corporations having to perform ever-expanding duties when operating in states unwilling or unable to fulfil their human rights duties. This responsibility may cover the whole spectrum of rights, as Ruggie has repeatedly said, but the ‘baseline benchmarks’ of judging responsibility were those instruments of international human rights law in Principle 12 aforementioned. Additional standards not only apply in conflict situations but in situations...
23 Jun Revisiting International Cooperation on Illicit Trafficking by Sea: Indonesia and the Final Voyage of the M/V Wise Honest (Part I)
...then, the DPRK will continue to exploit jurisdictions unwilling or unable to take measures. Interdicting the M/V Wise Honest The M/V Wise Honest’s final voyage involved the illicit trafficking of coal from North Korea and the planned illicit trafficking of heavy equipment to DPRK. In neither case did this conduct fall within the exceptions to the UNSC’s prohibitions (Res 2371, para. 8; Res 2397, para. 7). The UNSC’s maritime interdiction framework therefore applied throughout the voyage (Res 2375, paras. 7-12; Res 2397, paras. 9-16). These measures were adopted under Article...