Search: unwilling or unable
04 Apr Kenya’s Latest Attempt to Invoke Complementarity
...which conditions a finding of inadmissibility on a state investigating the specific suspect summonsed to appear before the Court. That is clear from the the text of the Article (emphasis mine): 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated...15 Jun Guest Post: Revoking Citizenship of Foreign Fighters: Implications for the Jurisdiction of the International Criminal Court
...generally not possible (nor just) to prosecute an individual in absentia. This situation is foreseen by art 17, which expressly allows the Court, in determining the admissibility of a case before it, to consider whether a State is unwilling or unable to proceed, including by being unable to obtain the accused. It also illustrates the importance of the ICC having jurisdiction in this context. The main source used in relation to the issue of continuing crimes was Alan Nissel, ‘Continuing Crimes in the Rome Statute’ (2004) 25 Michigan Journal of...06 Sep Protection of Civilians Symposium: Why are UN Peacekeepers Failing to Protect Civilians?
...B. Undue reliance on the primary responsibility of the host State The phrase “without prejudice to the responsibility of the host Government” is intended to confirm that the UNPKO’s POC mandate does not relieve the host Government of its ultimate responsibility for the protection of civilians. While the POC mandate includes assisting host governments to fulfill their responsibility, it also requires UNPKOs to act independently when the host Government is unable or unwilling, and even to take action against host Government forces where and when they pose a threat to...12 Oct Peaceful Settlement in Uganda Jeopardized by ICC Arrest Warrants
war crimes. If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute. A country may be determined to be “unwilling” if it is clearly shielding someone from responsibility for ICC crimes.” So what happens when a country considers the option of granting amnesty as part of a peaceful settlement of a civil war? Is an approach of amnesty – together with a Truth and Reconciliation Commission – one viable approach...03 Jan Four Quick Thoughts on Justice in Libya
...must deem a case inadmissible (thus permitting a national prosecution) if “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” That provision does not limit admissibility challenges to States Parties; it extends to any state that has jurisdiction over the crimes in question. And Libya certainly has jurisdiction over Saif’s crimes. Had the drafters of the Rome Statute wanted to condition admissibility challenges to states that had ratified the...29 Aug Author of “No Easy Day” Admits to Committing a War Crime
...rounds." diane1976 What was the legal justification for violating Pakistani sovereignty? That the battlefield included the part of their country in which his house was located? This seems to be a war with a moving battlefield that follows people around wherever they may be and whatever they may be doing. Chris Diane: I think the most rational argument for the violation of Pakistani sovereignty is that Pakistan was unwilling or unable to act against al Qaeda, which organises armed attacks against the US from within Pakistan's territory. If we accept...18 Jul Will Mali Be the First Bensouda-Era Investigation?
...it is active — and only if it is active — we then move to the second step of the complementarity analysis and ask whether the state is nevertheless unwilling or unable to genuinely investigate or prosecute. The first “activity” step is thus critical, because it provides states with an iron-clad method for avoiding responsibility for national prosecutions: as long as a state does not initiate an investigation or prosecution of a suspect being sought by the ICC, the Court will have to find the case against that suspect admissible....06 May The Armed Conflict with Al Qaeda
...targets can be targeted over time. As for space, the conflict follows the lawful targets – no safe havens among the unable or unwilling sovereigns – and hostilities against them can be initiated at any time or place, at least among the unable or unwilling. For purposes of the threshold of violence, however, my understanding of the US view is that all the various instance of attacks, uses of force, individual hostilities across many places over time are aggregated together – this being one enemy, under the view of the...08 Oct Eric Posner Calls Out Harold Koh on the Legality of Drone Strikes Under International Law
In his latest Slate article, Professor Eric Posner highlights (for non-specialist readers) the questionable international legal foundation of the Obama Administration’s “drone war on terror” in Pakistan, Yemen, and elsewhere (e.g. Libya). The whole idea that the U.S. can infer Pakistan’s consent to the strikes due to Pakistan’s refusal to object to CIA faxes is not terribly persuasive. I am more attracted to the “unwilling or unable” theory of the drone strikes, but I recognize it is far from flawless either. Posner goes on to question whether international law can...11 Oct On the Wittes/Heller Debate over Al-Aulaqi
...neutral country. Note that the trigger has been that the neutral country is either unwilling or unable to expel or intern. Willing and even attempting but unable still yields the right of attack. I know of what I expect to be a wonderful article being written on this (not by me). Anon's various policy concerns regarding these armed conflicts and their incidents are certainly worth considering, but they do not change what the law allows or permits. For example, suspected combatants or civilian security threats may be detained and, if...