Search: unwilling or unable
21 Feb US Troops in Iraq: Likely out of Reach of the ICC
...Art. 16 and preclude ICC jurisdiction. Finally, Art. 17 of the ICC statute requires “complementarity.” That means if a local or national investigation or prosecution of the conduct at issue is taking place, the Court is prohibited from exercising its jurisdiction. The only exception is where the state is “unwilling of unable” to exercise the jurisdiction. The US military investigations into and subsequent prosecutions of abuses at Abu Ghraib under the Uniform Code of Military Justice, for example, would likely trigger Art. 17 and halt effective jurisdiction of the ICC....07 Mar Weekend Roundup: February 21- March 6, 2015
...proposed Hong Kong Human Rights and Democracy Act amounts to a violation of the principle of non-intervention. Julian then argued that the proposed Iran Nuclear Agreement Review Act would only impose modest oversight on the administration, and should therefore not be vetoed by the President, although he pointed out that it is close to having enough votes to override a veto. Julian also updated us on the latest steps in the Ghana-Côte d’Ivoire ITLOS arbitration. Kevin traced the march of the “unwilling and unable” doctrine through academia and spread the...06 May Time for Secretary Clinton to Call Her Lawyer?
If I were the Obama administration, I would be looking to put together an ad hoc task force of senior administration lawyers, led by Harold Koh, to defend the following propositions as matters of law. It is: okay to enter a country that is “unable or unwilling,” [temporarily recall Deeks to DOS] okay to treat it as armed conflict under jus ad bellum justification of self-defense, okay not to undertake the action as law enforcement, versus attack in armed conflict, okay to use lethal force, okay to attack without warning,...
02 Dec When a Preliminary Examination Closes, a New Era Opens: The OTP’s Innovative Support for Transitional Justice in Colombia
...itself, involving a complex array of actors and accusations, will continue to evolve over a significant period of time and take many years to complete”. In this context, when Prosecutor Khan decided that “[t]he progress made has led the Office to determine that the national authorities of Colombia are neither inactive, unwilling nor unable to genuinely investigate and prosecute [RSt] crimes”, he implicitly acknowledged that the SJP satisfied the “traditional” complementarity test mentioned above. Hence, he sought assurances from the Government of Colombia that it would cooperate fully with the...
07 Apr The Role of Business in War: A Different Defense to Corporate Complicity? Part II: A Different Defense
...of IHL, “the publicity of certain war crimes and atrocities may be sufficient to establish mens rea of a MNC”. Crucially, the courts are unwilling to accept “we did not know” on face value and willful blindness is not an accepted defense. Complicity: In Practice Currently, there is no exhaustive list of instances where a company or its officials would be found liable for corporate complicity, nor is there definitive guidance as to when a company, despite its participation, would not be complicit. However, a review of case history and...
23 Dec Crimes against the Rohingya: ICC Jurisdiction, Universal Jurisdiction in Argentina, and the Principle of Complementarity
...was designed to supplement rather than supplant domestic prosecutions of international crimes. Embedded in the Rome Statute is a presumption in favor of domestic proceedings, and under RS Article 17 a case is inadmissible and the ICC is barred from exercising its jurisdiction, if ‘a state with jurisdiction over the case’ is investigating or prosecuting the same case as is before the ICC, unless the state is ‘unwilling’ or ‘unable’ to genuinely conduct investigations or prosecutions. Under RS Article 17 ‘a state with jurisdiction over the case’ includes a state...
03 Apr COVID-19 Symposium: The Use of Criminal Sanctions in COVID-19 Responses – Enforcement of Public Health Measures, Part II
...adhere to treatment, ‘or are unwilling or unable to comply with infection control measures … the interests of other members of the community may justify efforts to isolate the patient involuntarily’. But, under international human rights law and standards, as reflected in the Siracusa Principles, resort to deprivation of liberty must be provided for and carried out in accordance with the law; directed toward a legitimate objective (with due regard to the WHO guidance when public health is the legitimate aim being pursued); strictly necessary in a democratic society; the...
12 Apr Symposium on Dominic Ongwen Case: Navigating the Complexities of Reparations for Victims of Northern Uganda
...reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations – The Ugandan government recognizes the importance of reparation as an integral component of victims’ reintegration into society. On June 17, 2019, Uganda adopted the National Transitional Justice Policy (NTJP), an overarching framework of the Government of Uganda (GoU) designed to address justice, accountability and reconciliation needs of post-conflict Uganda. The NTJP is informed by Uganda’s national and international obligations to provide avenues for redress...25 Nov Let’s Be Real: An International Anti-Corruption Court Would Never Work
...whom national governments are unwilling and unable to punish, but willing to grab and turn over, is really, really, hard. Because relying on member states to turn over their own people is the primary (even exclusive) way an international court can acquire custody, it has always been puzzling to me that folks believed the ICC would provide much additional deterrence to potential criminal defendants. Getting other member states to turn over defendants who escape to their jurisdiction is a bit easier, but not much. I just don’t see any reason...14 Mar Complementarity and a Potential Settlements Case: A Response to the OTP’s Report on its Preliminary Examination of the Situation in Palestine
...may bear criminal responsibility for the role which they allegedly play in legitimising demolition of Palestinian homes as well as dispossession of Palestinians. However, the NGO’s own research shows that access to the HCJ for Palestinian petitioners is increasing; this is not suggestive of a Court delivering “fake justice” which does not conduct genuine proceedings. NGO reports and commentary which suggest that the HCJ is either unable or unwilling to investigate settlements cases must be scrutinised carefully before it can properly be argued that the presumption of good faith to...