Search: unwilling or unable
03 Jun A Sentence-Based Theory of Complementarity
...the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary 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...
07 Jul Customary International Law Symposium: The Stubborn Tenacity of Secondary Rules
...no question that states routinely take issue with how international courts, NGOs, and even other states understand and apply CIL’s secondary rules. But Hakimi does not provide even one example of a state rejecting the “rulebook” theory of CIL as a whole – i.e., describing a given norm as CIL even though it does not view that norm as a valid and binding primary rule produced by the operation of secondary rules. The closest she comes is in her discussion of whether the so-called “unwilling or unable” (U/U) test for...03 Sep Combating Terrorism Consistent with the Charter
threat emerges joint cooperation obviates the need for unilateral intervention. Those are the easy cases. The harder cases address situations where a state is unwilling or unable to effectively act, as in Lebanon, Pakistan, Sudan, and Somalia. The even harder case is when the state sponsors the terrorism, as with Iran and Syria. In those situations, the state will not be willing to authorize United States’ intervention. Farer suggests that in those situations where a state will not authorize United States’ intervention the Security Council is the only recourse. He...
16 Jul The “Cienfuegos Affair” and the Proposal for a New Regional Transnational Criminal Court in Latin America (COPLA)
...that the court will be ‘complementary to the national systems of criminal justice’ and that it will be ‘authorized to exercise its jurisdiction over individuals … in cases that the national systems of justice are unwilling or unable to try’. How are these difficult issues of inability and willingness to be understood? In Cienfuegos’ case, the Mexican government simply announced that there is no case to answer. This may be the case, although, the U.S. Justice Department, for one, does not agree (the Department has said that it stands by...28 Oct Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land
Let’s set aside for now the apparent reliance on the “unwilling or unable” exception to justify the U.S. invasion of Pakistan without that country’s consent – even without having asked the country for its consent. Let’s also set aside the apparent designation of the bin Laden operation as a “covert action” under U.S. law – when it’s not at all clear the operation was intended “to influence political, economic, or military conditions abroad,” as the U.S. law of covert action requires (as opposed to, for example, just killing or capturing...
21 Aug States of Justice Symposium: A Response
...in fact have common interests and pursue them collaboratively (self-referrals for instance, or the complementarity principle). Cirimwani proposes a “proceduralising” of the “unwilling or unable” as a way out of the complementarity principle conundrum. As it is the case for all procedures, I agree that a clearer guideline on the assessment of the “unwilling and unable” could be useful. K. K. Sithebe argues that “there are gaps […] in texts that are critical of the ICC and/or international criminal justice” – I assume my book fits this mold – in...
07 May Reassuring the Inviolability of Diplomatic Premises: Worrying Trends from Ecuador to Syria
...two decades in prosecuting the “War on Terror” against non-state actors. In the 2014 air campaign against ISIL, the United States endorsed the “unwilling or unable” doctrine of self-defence, in which action against a non-state threat is permissible so long as the state in which the non-state actor resides is either “unwilling” or “unable” to suppress the threat without external intervention. In 2012, Sir Daniel Bethlehem encapsulated these operational standards in a series of principles that has come to be known as the “Bethlehem Doctrine.” It states that the imminence...21 Apr Ugly Infighting at the ICC
...an important one. The RNW article quoted above, like so many articles (and blog posts) on the Libya situation, incorrectly presumes that the ICC would be entitled to reject an admissibility challenge on the ground that Saif would not receive a fair trial in Libya. As I have explained before, the drafters of the Rome Statute specifically rejected the idea that the absence of due process renders a state “unwilling” or “unable” to prosecute; a state can be considered unwilling or unable only if its national prosecution is designed to...
24 Sep France’s Declaration on International Law in Cyberspace: The Law of Peacetime Cyber Operations, Part I
...of countermeasures. However, France stresses that even if a State failed to take all reasonable measures to stop its territory being used to commit internationally wrongful acts against third States by non-State actors, or if it were incapable to prevent them, this would not constitute an exception from the prohibition of the use of force. Accordingly, in France’s view, only political and diplomatic action as well as non-forcible countermeasures are allowed against States which are unwilling or unable to stop non-State actors from using its territory for internationally wrongful acts....26 Feb Symposium: The Assumptions of Koh’s Transnational Legal Process as Counter-Strategy
...elongated” notion of imminence, and the “unwilling or unable” doctrine, for its justification of such use of force. But as Kevin notes, and many others have argued, this “elongation” of the concept of imminence actually strips it of any temporal component, and so guts a concept that is integral to the broader doctrine of self-defense. Other aspects of the unwilling or unable doctrine similarly distort the relationship between jus ad bellum and both IHL and the law of state responsibility, and excessively privileges the interests of powerful states over the...