- Benjamin B. Ferencz, Preface
- Alette Smeulers, Barbora Holá, & Maartje Weerdesteijn, Introduction
- Alette Smeulers, Historical Overview of Perpetrator Studies
- Alette Smeulers, Barbora Holá & Maartje Weerdesteijn, Theories, Methods, and Evidence
- Chandra Lekha Sriram, Perpetrators, Fieldwork, and Ethical Concerns
- Mina Rauschenbach, Interviewing Perpetrators against the Backdrop of Ethical Concerns and Reflexivity
- Thijs Bouwknegt & Adina-Loredana Nistor, Studying 'Perpetrators' through the Lens of the Criminal Trial
- Ugur Ümit Üngö, Perpetration as a Process: A Historical-Sociological Model
- Kjell Anderson, The Margins of Perpetration: Role-Shifting in Genocide
- Erin Jessee, Beyond Perpetrators: Complex Political Actors surrounding the 1994 Genocide in Rwanda
- Jonathan Leader Maynard, Studying Perpetrator Ideologies in Atrocity Crimes
- Pieter Nanninga, Religion and International Crimes: the Case of the Islamic State
- Georg Frerks, The Female Tigers of Sri Lanka: The Legitimation of Recruitment and Fight
- Maartje Weerdesteijn, The Rationality and Reign of Paul Kagame
- Caroline Fournet, Nothing Must Remain: The (In)visibility of Atrocity Crimes and the Perpetrators' Strategies using the Corpses of their Victims
- Iva Vukusic, Plausible Deniability: The Challenges in Prosecuting Paramilitary Violence in the former Yugoslavia
- Mirza Buljubasic & Barbora Holá, Perpetrators on Trial: Characteristics of War Crime Perpetrators Tried by Courts in Bosnia and Herzegovina & ICTY
- Susanne Karstedt, 'Like Mirrors of Morality': Social Support for Nazi War Criminals in Post-War Germany
- Alette Smeulers, Concluding Thoughts
Friday, March 22, 2019
Smeulers, Weerdesteijn, & Holá: Perpetrators of International Crimes: Theories, Methods, and Evidence
Accusations of bad State behavior in cyberspace are proliferating, yet this increase in naming has not obviously produced much shame. Accused States uniformly deny the accusation or decline to comment, without changing behavior. For international lawyers, the problem is compounded by the absence of international law in these charges - States are not invoking international law when they complain of other States' behavior, suggesting the law is weak - or worse, irrelevant - in holding States accountable for their cyber operations.
In lieu of “naming and shaming,” we introduce and examine the broader concept of “accusation” as a social, political, and legal practice with diverse uses in cyberspace and beyond. Accusers must make strategic choices about how they frame their accusations, and we unpack various elements accusers may manipulate to advantage. Accusations also have many purposes. They may seek to “name and shame” an accused into conforming to certain behavioral expectations, but they may also aim at defensive or deterrent effects on both the accused and, crucially, on third parties. Particularly important, accusations may play a constitutive role, constructing new norms, including customary international law, within the international community. In short, accusations offer States and other stakeholder a menu of strategic options beyond those identified by the extant literature on naming and shaming.
This article tells the story of the doctrine of customary international law in the 98 years between the moment of the introduction in July 1920 of the draft rules to be applied by the new Permanent Court of International Justice and the International Law Commission’s adoption in May 2018 of its 16 Conclusions on the identification of customary international law. This story of the doctrine of customary international law is not linear. It is tumultuous and pockmarked by a series of metamorphoses. In particular, the tumultuous story told here is articulated around four moments of rupture: 1920, 1927, 1986, and 2018. These four metamorphoses correspond to four different stages in the life of the doctrine of customary international law: the age of innocence (1920-1927), the age of dualism (1927-1986), the age of turmoil (1986-2018), and the return to innocence (2018-present). The story offered in this article is a story about the four lives of customary international law. The story told in this article is meant to repudiate a common historical narrative found in the legal literature that locates the current two-element doctrine of customary international law in Article 38 of the Statute of the Permanent Court of International Justice, from which the 16 Conclusions on the identification of customary law adopted by the International Law Commission are supposedly directly extrapolated. Through the story of the four lives of the doctrine of customary law offered here, the argument is made that, patterned after the Descamps formula, Article 38 of the Statute of the Permanent Court of International Justice was originally the receptacle of a monolithic understanding of the ascertainment of customary law which has, not without irony, been resuscitated by the International Law Commission in its recent work on the identification of customary international law.
Thursday, March 21, 2019
- Sergio Puig, Contextualizing Cost Shifting: A Multimethod Approach
- Cleo Verkuijl, Harro van Asselt, Tom Moerenhout, Liesbeth Casier, & Peter Wooders, Tackling Fossil Fuel Subsidies Through International Trade Agreements: Taking Stock, Looking Forward
- Deborah Pearlstein, Armed Conflict at the Threshold?
- Dina D. Prokicì, SIAC Proposal on Cross-Institution Consolidation Protocol: Can It Be Transplanted into Investment Arbitration?
- Hanno Wehland, Domestic Courts and Investment Treaty Tribunals: The Effect of Local Recourse Against Administrative Measures on the Breach of Investment Protection Standardsnd
- Markus Burgstaller & Agnieszka Zarowna, Effects of Disposal of Investments on Claims in Investment Arbitration
- William Hooker, Nathalie Allen Prince, & David Turner, How Can Arbitrators Best Protect Their Deliberations from Disclosure: New Challenges and Opportunities in England
- Andrea Martignoni, Christopher Holland, & Freya Dinshaw, Australia’s Bilateral Investment Treaties: A Laid-Back Approach to Consent?
- Andrea Bianchi, The unbearable lightness of international law
- Eitan Diamond, Killing on camera: visual evidence, denial and accountability in armed conflict
- Elisabeth Schweiger, Listen closely: what silence can tell us about legal knowledge production
- Radha Ivory, Beyond transnational criminal law: anti-corruption as global new governance
- Kojo Koram, The Vitorian recovery and the (re)turn towards a sacrificial international law
- Marina Brilman, A hearing at the Military Tribunal of Yaoundé, Cameroon: lawyers and colonial legacies
Pinchis-Paulsen: Trade Multilateralism and National Security: Antinomies in the History of the International Trade Organization
Since 2016, the Trump Administration has taken several unilateral actions that defy the multilateral trading system that the US helped create after World War II. In particular, a “tariff war” began when the Trump Administration used a US trade law, known as Section 232 of the Trade Expansion Act of 1962, to impose billions of tariffs on imports of steel and aluminium from US trading partners and allies, such as Canada and the European Union. Nine countries have commenced dispute settlement proceedings under the World Trade Organization (WTO), challenging the US tariffs as WTO-illegal and unjustified on national security grounds. In response, the US has argued that the WTO rules contain a national security exception that is “self-judging” and non-justiciable, meaning that the US invocation of national security is not susceptible to review by WTO dispute settlement.
With extensive archival research and an assessment of primary sources, this paper considers the argument that the national security exception of the General Agreement on Tariffs and Trade (GATT) is both “self-judging” and non-justiciable. The paper focuses on the construction of the proposed predecessor to the WTO – the International Trade Organization (ITO). The paper emphasizes a series of internal US government debates that went on in Geneva, Switzerland, during the second preparatory committee meeting prior to the final UN conference on trade and employment in the Summer of 1947. Through an examination of internal US delegation meeting minutes, the paper reveals how US officials viewed trade multilateralism as a constitutive element of US foreign policy. It further shows that the US delegation demonstrated vigorous opposition towards language that entrenched unilateral interpretation of the national security exception, believing such language was a sure way destroy the ITO.
Motoc & Volikas: The Dialogue between the ECHR and the Italian Constitutional Court: The Saga of “GIEM and Others v Italy”
Following a series of cases brought against Italy in relation to non-conviction based confiscation, the European Court of Human Rights engaged in a judicial dialogue with the Italian Constitutional Court over the correct interpretation of the European Convention on Human Rights and in particular Article 7. This article elaborates on the background of this dialogue and analyses the European Court's position in its most recent judgement in this saga: GIEM and Others v Italy.
Wednesday, March 20, 2019
- Tracey Epps, Blake Carey, & Tess Upperton, Revolutionizing Global Supply Chains One Block at a Time: Growing International Trade with Blockchain: Are International Rules Up to the Task?
- Stefano Inama & Pramila Crivell, Convergence on the Calculation Methodology for Drafting Rules of Origin in FTAs Using the Ad Valorem Criterion
- Andrew Grainger, Jamie M. Rundle, & Saad Raafay Ahsen, Customs and Humanitarian Logistics
- Alex Ansong, The WTO Appellate Body: Are There Any Viable Solutions?
- Martin Wolfgang Zankl, The Effects of CETA on the Continuous Implementation of the Precautionary Principle within the European Union
- In Memoriam: Professor David D. Caron (1952–2018)
- Reinmar Nindler, The United Nation’s Capability to Manage Existential Risks with a Focus on Artificial Intelligence
- Ludovica Chiussi, The Role of International Investment Law in the Business and Human Rights Legal Process
- Maria Xiouri, The Exceptio Non Adimpleti Contractus in Public International Law
- Heather J Haase, 'Principled Noncompliance: Paving the Way for Cannabis Regulation under the International Drug Control Regime
In a recent book, Adil Ahmad Haque attempts to reconcile between jus in bello and ‘deep morality,’ by constructing international humanitarian law (IHL) as a prohibitive system, the constitutive aim of which is non-consequentialist: to ‘serve’ combatants by providing them with rules that if followed would allow them to better conform to their moral obligations. After situating Haque’s approach within the current debate between traditional and revisionist just war theorists, this review essay asks whether constructing IHL as a prohibitive set of norms is indeed sufficient to reconcile it with morality. By utilizing insights from legal realism, I argue that when determining whether law prohibits or permits, it is not sufficient to analyse pure legal concepts but, rather, we have to ask how law functions. This analysis reveals that IHL can be facilitative of action – meaning, of war – even if it is construed as formally prohibitive. This, in turn, calls for two conclusions: on the ethical level, when considering the morality of IHL, its facilitative function should be taken into account. On the legal level, recognizing the facilitative nature of IHL might assist us in answering key unresolved questions – namely, whether the material, spatial, and temporal thresholds for the application of IHL should be high or low.
Tuesday, March 19, 2019
When should International Humanitarian Law (IHL) prevail over, when give way to International Human Rights Law (IHRL)? IHL and IHRL give diverging answers to the crucial question of when it is permissible to kill during an armed confrontation. This paper contends that when two bodies of law make diverging substantive demands – as IHRL and IHL do – that which better discharges the law’s moral tasks should displace the other. The law’s two moral tasks, the paper argues, are to guide its subjects’ conduct, as often as possible, towards the course of action that conforms to their moral obligations (task one) and to secure the fullest feasible protection of rights in the outcome of conduct (task two).
IHL permits conduct that further diverges from our fundamental moral obligations of non-interference with the individual right to life. Yet, the law that more faithfully reflects underlying moral principles is not always the law that better discharges its moral tasks. Epistemic barriers to identifying the morally right course of action account for why a law that further diverges from moral principles might better guide the individual towards what is typically the morally right course of action (task one). Volitional defects may mean that a law that asks for a course of action other than the morally right one, generates better aggregate moral consequences (task two). Whether IHRL or IHL should prevail, depends on the epistemic and volitional context of decision-making during the conduct of hostilities.
The paper raises the question of whether IHL or IHRL should govern the conduct of hostilities for six types of non-international and international armed conflicts (NIACs and IACs). One of two characteristics distinguishes them from confrontations that do not count as armed conflicts: either the intensity of hostilities or a state’s (non-authorised) use of armed force outside its own territory. The paper analyses how the intensity and territorial scope of hostilities affect the epistemic and volitional context of decision-making on the battlefield and thereby IHRL’s and IHL’s respective ability to discharge the law’s two moral tasks.
This analysis leads to the following proposal for a moral division of labour between IHRL and IHL: As the morally prima facie better law IHRL should govern the conduct of hostilities in law enforcement operations. In non-protracted IACs, ‘symmetrical IHRL’ – applied as if both parties had a lawful aim - should govern the permissibility of killing. Above the threshold of intensity at which hostilities count as protracted, hence during NIACs and protracted IACs, we face a choice between affording individuals a guide towards what is typically the course of action that conforms to their moral obligations (task one) and reducing individual rights violations in the outcome of warfare (task two). ‘Symmetrical IHRL’ better discharges task one; IHL better discharges task two. It depends on the relative moral costs of prioritizing one task over the other, which body of law should prevail. I argue that IHL currently offers a better, but far from morally ideal law for governing the permissibility of killing during the conduct of hostilities, once these hostilities reach the crucial threshold of being protracted. From a moral point of view, IHL should therefore displace IHRL and govern, on its own, the conduct of hostilities during NIACs and protracted IACs.
Call for Submissions: Justice and Accountability for Sexual Violence in Conflict: Progress and Challenges in National Efforts to Address Impunity
Woolaver: From Joining to Leaving: Domestic Law’s Role in the International Legal Validity of Treaty Withdrawal
If a state withdraws from a treaty in a manner that violates its own domestic law, will this withdrawal take effect in international law? The decisions to join and withdraw from treaties are both aspects of the state’s treaty-making capacity. Logically, international law must therefore consider the relationship between domestic and international rules on states’ treaty consent both in relation to treaty entry and exit. However, while international law provides a role for domestic legal requirements in the international validity of a state’s consent when joining a treaty, it is silent on this question in relation to treaty withdrawal. Further, there has been little scholarly or judicial consideration of this question. This contribution addresses this gap. Given recent controversies concerning treaty withdrawal – including the United Kingdom’s exit from the European Union, South Africa’s possible withdrawal from the International Criminal Court, and the threatened US denunciation of the Paris Agreement – and the principles underlying this body of law, it is proposed that the law of treaties should be interpreted so as to develop international legal recognition for domestic rules on treaty withdrawal equivalent to that when states join treaties, such that a manifest violation of domestic law may invalidate a state’s treaty withdrawal in international law.