Search: unwilling or unable
28 Apr Taking Complementarity Seriously: Why is the International Criminal Court Not Investigating Government Crimes in Congo?
...Court officials, the ICC is not a ‘port of first call’ but rather ‘a court of last resort’. Put differently, the Prosecutor intervenes only when national authorities do not, or are ‘unwilling or unable’ to, discharge their prosecutorial duties. In its press releases, the ICC seizes on complementarity to explain its inaction in Congo. For instance, in her most recent press release, Bensouda urge[s] the competent DRC authorities, in accordance with the principle of complementarity, which lies at the heart of the Rome Statute of the ICC and which confers...18 Feb Judicial Vetting: The Forgotten Aspect of Argentina’s Transition
...from an authoritarian regime or from a period of armed conflict might not be up to these tasks. Reforming the courts might be necessary but if the judges staffing them are unwilling or unable to do their job as required in the new dispensation or have been implicated in the human rights abuses it is unlikely that the courts will function properly or that the people will trust them. Different processes have been adopted around the world for dealing with the issue of inherited judges. These range from the retention...
09 Oct Trump vs. International Law: Koh’s Blueprint for Ending America’s Wars and Avoiding Perpetual War
...footing, Koh’s concerns are focused on the dangers of wars that are unbounded in their substantive and temporal scope—who we are fighting and for how long. When it comes to geographic boundaries for wartime targeting, however, he offers only the unwilling and unable test and the Presidential Policy Guidance put into place by President Obama as constraints. Koh is of course right to argue that the use of armed drones in wartime can be lawful. But if peace is to be the norm and war the exception, as Koh argues...28 Oct Revised Version of Complementarity Essay on SSRN
...crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions better serve the goals of the Rome Statute. I challenge both theses in the essay and defend an alternative theory of complementarity that focuses exclusively on sentence. In particular, I...03 Oct Kiobel Roundtable: Getting Exhaustion Right
...remedies are “futile” (p. 4) or “unavailable” (p. 30) or where the foreign forum is “unwilling or unable” to provide relief (p. 26). While these formulations are correct, they should be more precise and comprehensive. Five exceptions to exhaustion under generally recognized principles of international law were set forth by the Inter-American Court of Human Rights in its landmark 1988 Judgment in Velásquez-Rodríguez v. Honduras. (The first three are taken textually from the American Convention on Human Rights.) The exceptions are as follows: Due Process Violations: Where “the domestic legislation...13 Dec The Puzzling US Submission to the Assembly of States Parties
...Leone.” The most bizarre argument in the submission has to do with the principle of complementarity (p. 1): Additionally, we are concerned about any ICC determination — as required by the Rome Statute’s core principle of complementarity — on, for example, the genuineness of U.S. legal proceedings without United States consent. The principle of complementarity fundamentally limits the ICC’s exercise of jurisdiction to those cases in which a State is genuinely unwilling or unable to comply with its duties, such as those under the Geneva Conventions, to investigate and prosecute...29 Oct A Cybersecurity Treaty? Adam Segal and Matthew Waxman Think Not
...circumstance in which the host state was unwilling or unable to act. U.S. actions are precedent for nothing more, and nothing less, than this. Of course, that does not mean that a state like Iran won’t do its best to analogize some future action to the U.S. drone program, in circumstances in which we do not find the analogy persuasive (because we disagree that the host-state is unwilling or unable to act, or more likely, because we disagree that the target of that state’s use of force posed a sufficient...
13 Nov Symposium on Erin Pobjie’s Prohibited Force: Scoping out the Prohibition on the Use of Force in Anomalous Situations
...has limits under contemporary international law. As Adil Haque puts it “Under the law of self-defense, even a legitimate aim must be set aside if it is outweighed by the harmful effects of the force necessary to achieve it.” As is well known to readers of this blog-site there are attempts to infuse the law of self-defence with old ideas from the law of neutrality. The suggestion is that, where a state is unwilling or unable to deal with threats emanating from its territory, the law of self-defence would allow...
09 May Why Does the United States Continue to Oppose International Courts?
...investigate individual suspects and seek indictments against them as long as they fall under the subject matter jurisdiction defined by the Rome Statute. The ICC’s process is characterized by deferential complementarity. Its primary duty is to ensure that national court systems are given sufficient opportunity to “investigate and prosecute individuals suspected of committing atrocity crimes referred to the Court” (p. 75). The ICC takes initiative only after national courts are unwilling or unable to carry out proper investigations or prosecutions. After all, “the long-term objective is to strengthen the capabilities...