Search: unwilling or unable
09 Oct What Kind of Drones Arms Race Is Coming?
...the United States had not done so is far-fetched. That is so not least because the United States has long held that it, or other states threatened by terrorist non-state actors in safe havens across sovereign borders, can be targeted if the sovereign is unable or unwilling to deal with them. There’s nothing new in this as a US view of international law; it goes back decades, and the US has not thought it some special rule benefiting the US alone. So the idea that the US has somehow developed...09 May Surprise, the NTC Amnesties Its Own Crimes
...new law, distinguishing between “good” amnesties and “bad amnesties” and pointing out that, by any measure, this is one of the bad ones. He also rightly adds, referring to Libya’s pending admissibility challenge at the ICC, that “Judges aren’t politically blind. They may not be able to rule that Libya is unable or unwilling to try Saif or Senussi on the basis of the country’s commitment, or lack thereof, to trying other perpetrators, but it certainly doesn’t give a good impression.” I’d simply add that the amnesty foregrounds the importance...19 Aug Prosecuting Piracy
...international standards of justice applicable to piracy trials, factors guiding the sentencing of convicted pirates, and repatriation and reintegration of pirates after completing jail time. While the stars are not currently in alignment for the establishment of a Special Anti-Piracy Tribunal, I predict that the idea will gain traction in coming months as it becomes increasingly clear that Somalia is unwilling and unable to prosecute pirates domestically, that Somalia officials and elites may themselves be involved in piracy, and that a major international effort at prosecution as well as suppression...
02 Jul The Use of Benchmarks in the Colombia Situation: An Opportunity for a Victim-Oriented Approach to ICC Complementarity
...pressure mechanism towards accountability for senior army officials. However, these benchmarks should not remain limited to prosecutorial strategies: their conceptualization presents an important opportunity for the OTP to give a more central role to victims’ rights to the truth, participation, reparations, and protective measures in its complementarity analysis. Victims’ rights and complementarity In accordance with Article 17 of the Rome Statute, the ICC may move towards the opening of an investigation if the case is of sufficient gravity and if the country in question is ‘’unwilling’’ or ‘’unable’’ to genuinely...28 Aug Emerging Voices: Incorporation of Plural Realisations of Justice within the ICC System
...of whether a state with a duty to prosecute is unable or unwilling to conduct genuine proceedings. As it is an operative mechanism to be applicable in every diverse situation internationally, the internal components of complementarity are entirely based on discretionary determinations of the Court. In effect, this keeps the complementarity regime extremely flexible, but sacrifices legal certainty and consistency in application. The discretionary nature also makes it difficult for the state to challenge the Court’s determinations. The concern is that this balancing mechanism may be used by the Court...26 Jan Guest Post: Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict
...security and counterterrorism, articulated the notion of a global NIAC when he stated “[t]here is nothing in international law that…prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.” When we look at this statement from the perspective of the consenting State rather than from the perspective of the attacking State, two things become obvious. The first is that the attacking State’s claims to IHL targeting authorities are...23 Jul John Bellinger Gets it Right on Consular Convention Implementing Legislation
...and notes that although the Obama administration has embraced the idea of enforcing international legal obligations it still faces a dilemma on this issue: President Obama now faces the same challenges as Mr. Bush in 2005: an international obligation to review the cases of those Mexicans remaining on death rows across the country; state governments that are politically unwilling or legally unable to provide this review; and a Congress that often fails to appreciate that compliance with treaty obligations is in our national interest, not an infringement of our sovereignty....
28 Jan Thailand’s National Screening Mechanism: Key Issues
...more questions than answers on refugee protection. Who qualifies as a protected person? An obvious first question is who is entitled to protection under the regulation. The regulation conspicuously avoids use of the term “refugee”, instead defining a “protected person” as someone who is unable or unwilling to return to their country of domicile due to a reasonable cause for persecution, “as determined by the Committee.” This qualification leaves the question of protection wide open, with the Committee free to decide both the eligibility requirements for protected person status and...
11 Feb The Prospects of Prosecuting Rohingya Deportation before the International Crimes Tribunal, Bangladesh (ICT-BD)
...39), in the event of prosecution or investigation of “same person and substantially the same conduct” by any State Party, the ICC will consider that case as inadmissible, provided that the state in question is not unwilling, unable or inactive in dealing with such prosecution or investigation. As the ICC Office of the Prosecutor (OTP) encourages the positive complementarity and the issue of complementarity could arise at several stages of proceedings, the prospects of prosecution of crimes allegedly committed against the Rohingya population before Bangladeshi judiciary is still relevant. The...