Saturday, June 16, 2007
Friday, June 15, 2007
The politics of legitimacy is central to international relations. When states perceive an international organization as legitimate, they defer to it, associate themselves with it, and invoke its symbols. Examining the United Nations Security Council, Ian Hurd demonstrates how legitimacy is created, used, and contested in international relations. The Council's authority depends on its legitimacy, and therefore its legitimation and delegitimation are of the highest importance to states.
Through an examination of the politics of the Security Council, including the Iraq invasion and the negotiating history of the United Nations Charter, Hurd shows that when states use the Council's legitimacy for their own purposes, they reaffirm its stature and find themselves contributing to its authority. Case studies of the Libyan sanctions, peacekeeping efforts, and the symbolic politics of the Council demonstrate how the legitimacy of the Council shapes world politics and how legitimated authority can be transferred from states to international organizations. With authority shared between states and other institutions, the interstate system is not a realm of anarchy. Sovereignty is distributed among institutions that have power because they are perceived as legitimate.
This book's innovative approach to international organizations and international relations theory lends new insight into interactions between sovereign states and the United Nations, and between legitimacy and the exercise of power in international relations.
- Thomas G. Weiss & Sam Daws, World Politics: Continuity & Change since 1945
- Michael Barnett & Martha Finnemore, Political Approaches
- José E. Alvarez, Legal Perspectives
- Leon Gordenker & Christer Jönsson, Evolution in Knowledge
- M.J. Peterson, General Assembly
- David M. Malone, Security Council
- Gert Rosenthal, Economic and Social Council
- Ralph Wilde, Trusteeship Council
- James O.C. Jonah, Secretariat: Independence & Reform
- Edward Newman, Secretary-General
- James Crawford & Tom Grant, International Court of Justice
- W. Pal S. Sidhu, Regional Groups and Alliances
- Ngaire Woods, The Bretton Woods Institutions
- Paul Wapner, Civil Society
- Craig N. Murphy, Private Sector
- Barbara Crossette, Media
- Keith Krause, Disarmament
- Rama Mani, Peaceful Settlement of Disputes and Conflict Prevention
- Michael Doyle & Nicholas Sambanis, Peacekeeping Operations
- David Cortright, George A. Lopez, & Linda Gerber-Stellingwerf, Sanctions
- Michael Pugh, Peace Enforcement
- Ramesh Thakur, Humanitarian Intervention
- Roland Paris, Post-Conflict Peacebuilding
- Jane Boulden, Terrorism
- Bertrand G. Ramcharan, Norms and Machinery
- Richard Goldstone, International Criminal Court and Ad Hoc Tribunals
- Jeff Crisp, Humanitarian Action and Coordination
- Charlotte Bunch, Women & Gender
- Yves Beigbeder, Children
- Maivân Clech Lâm, Minorities & Indigenous Peoples
- Fen O. Hampson & Christopher K. Penny, Human Security
- Jacques Fomerand & Dennis Dijkzeul, Coordinating Economic & Social Affairs
- Gian Luca Burci, Health & Infectious Disease
- Nico Schrijver, Natural Resource Management & Sustainable Development
- Frank G. Madsen, Organized Crime
- W. Andy Knight, Democracy and Good Governance
- Richard Jolly, Human Development
- Edward C. Luck, Principal Organs
- Jeffrey Laurenti, Financing
- Chadwick Alger, Widening Participation
- Genevive Bastid Burdeau, Le commerce international des armes: de la sécurité à la défense de l’éthique et des droits de l’homme?
- Sandrine Maljean-Dubois & Jean-Christophe Martin, L’affaire de l’Usine Mox devant les tribunaux internationaux
- Gian Paolo Romano, Le choix des Principes UNIDROIT par les contractants à l’épreuve des dispositions impératives
- Yvonne Terlingen, The Human Rights Council: A New Era in UN Human Rights Work?
- Adam Branch, Uganda’s Civil War and the Politics of ICC Intervention
- Thomas Hurka, Liability and Just Cause
- Luis Cabrera, The Inconveniences of Transnational Democracy
- Anthony F. Lang, Jr., Crime and Punishment: Holding States Accountable
Thursday, June 14, 2007
This essay considers the constitutionality of both the habeas corpus and Geneva Convention provisions in the Military Commissions Act of 2006 (MCA). The MCA purports to preclude federal court jurisdiction over habeas corpus applications filed by detainees in the war on terrorism, providing them instead with D.C. Circuit review of their status determinations and military commission judgments. The MCA also has a number of provisions that either restrict judicial application of the Geneva Conventions or purport to interpret those Conventions. With respect to the habeas restriction, the essay concludes that the Supreme Court is likely to find that the detainees at the Guantánamo Bay naval base have a constitutional right of habeas corpus review, and that this right has not been validly suspended by the MCA. Nevertheless, depending on how they are interpreted, the provisions allowing for D.C. Circuit review could suffice to preserve the constitutional right. With respect to the MCA's Geneva Convention provisions, the essay concludes that Congress has the authority to decide that the United States will implement the Conventions through military regulations, congressional oversight of the military, criminal law, and diplomatic relations rather than through private judicial enforcement, and that a fair reading of its intent in enacting the MCA is that it has exercised this authority. In addition, while the provisions in the MCA that set forth particular interpretations of the Geneva Conventions are unlikely to be treated by courts as dispositive, the essay concludes that courts should give substantial deference to Congress's and the Executive's shared interpretation of the Conventions.
And here's Justice Stevens's full dissent:
Under New York law, real property owned by a foreign government is exempt from taxation when used exclusively for diplomatic offices or quarters for ambassadors or ministers plenipotentiary to the United Nations. For years, respondent (City) has levied property taxes against petitioner foreign governments for that portion of their diplomatic office buildings used to house lower level employees and their families. Petitioners have refused to pay the taxes. By operation of state law, the unpaid taxes converted into tax liens held by the City against the properties. The City filed a state-court suit seeking declaratory judgments to establish the liens’ validity, but petitioners removed the cases to federal court, where they argued that they were immune under the Foreign Sovereign Immunities Act of 1976 (FSIA), which is “the sole basis for obtaining jurisdiction over a foreign state in federal court,” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428. The District Court disagreed, relying on an FSIA exception withdrawing a foreign state’s immunity from jurisdiction where “rights in immovable property situated in the United States are in issue.” 28 U.S.C. §1605(a)(4). The Second Circuit affirmed, holding that the “immovable property” exception applied, and thus the District Court had jurisdiction over the City’s suits.
Held: The FSIA does not immunize a foreign government from a lawsuit to declare the validity of tax liens on property held by the sovereign for the purpose of housing its employees.
(a) Under the FSIA, a foreign state is presumptively immune from suit unless a specific exception applies. In determining the immovable property exception’s scope, the Court begins, as always, with the statute’s text. Contrary to petitioners’ position, §1605(a)(4) does not expressly limit itself to cases in which the specific right at issue is title, ownership, or possession, or specifically exclude cases in which a lien’s validity is at issue. Rather, it focuses more broadly on “rights in” property. At the time of the FSIA’s adoption, “lien” was defined as a “charge or security or incumbrance upon property,” Black’s Law Dictionary 1072, and “incumbrance” was defined as “[a]ny right to, or interest in, land which may subsist in another to the diminution of its value,” id., at 908. New York law defines “tax lien” in accordance with these general definitions. A lien’s practical effects bear out the definitions of liens as interests in property. Because a lien on real property runs with the land and is enforceable against subsequent purchasers, a tax lien inhibits a quintessential property ownership right - the right to convey. It is thus plain that a suit to establish a tax lien’s validity implicates “rights in immovable property.”
(b) This Court’s reading is supported by two of the FSIA’s related purposes. First, Congress intended the FSIA to adopt the restrictive theory of sovereign immunity, which recognizes immunity “with regard to sovereign or public acts (jure imperii) of a state, but not . . . private acts (jure gestionis).” Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682. Property ownership is not an inherently sovereign function. The FSIA was also meant to codify the real property exception recognized by international practice at the time of its enactment. That practice supports the City’s view that petitioners are not immune, as does the contemporaneous restatement of foreign relations law. The Vienna Convention on Diplomatic Relations, on which both parties rely, does not unambiguously support either party, and, in any event, does nothing to deter this Court from its interpretation.
446 F.3d 365, affirmed and remanded.
Diplomatic channels provide the normal method of resolving disputes between local governmental entities and foreign sovereigns. See Schooner Exchange v. McFaddon, 7 Cranch 116, 146 (1812). Following well-established international practice, American courts throughout our history have consistently endorsed the general rule that foreign sovereigns enjoy immunity from suit in our courts. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983); Nevada v. Hall, 440 U.S. 410, 417 (1979). The fact that the immunity is the product of comity concerns rather than a want of juridical power, see Verlinden B.V., 461 U. S., at 486, does not detract from the important role that it performs in ordering our affairs.
The Foreign Sovereign Immunities Act of 1976 (FSIA) both codified and modified that basic rule. The statute confirms that sovereigns are generally immune from suit in our courts, 28 U.S.C. §1604, but identifies seven specific exceptions through which courts may accept jurisdiction, §1605(a). None of those exceptions pertains, or indeed makes any reference, to actions brought to establish a foreign sovereign’s tax liabilities. Because this is such an action, I think it is barred by the general rule codified in the FSIA.
It is true that the FSIA contains an exception for suits to resolve disputes over “rights in immovable property,” §1605(a)(4), and New York City law provides that unpaid real estate taxes create a lien that constitutes an interest in such property, N. Y. C. Admin. Code §11–301 (Cum. Supp. 2006). It follows that a literal application of the FSIA’s text provides a basis for applying the exception to this case. See ante, at 4–5. Given the breadth and vintage of the background general rule, however, it seems to me highly unlikely that the drafters of the FSIA intended to abrogate sovereign immunity in suits over property interests whose primary function is to provide a remedy against delinquent taxpayers.
Under the majority’s logic, since “a suit to establish the validity of a lien implicates ‘rights in immovable property,’” ante, at 5, whenever state or municipal law recognizes a lien against a foreign sovereign’s real property, the foreign government may be haled into federal court to litigate the validity of that lien. Such a broad exception to sovereign immunity threatens, as they say, to swallow the rule. Under the municipal law of New York City, for example, liens are available against real property, among other things, to compel landowners to pay for pest control, emergency repairs, and sidewalk upkeep. See N. Y. C. Admin. Code §§17–145, 17–147, 17–151(b) (2000); see also M. Mitzner, Liens and Encumbrances, in Real Estate Titles 299, 311–314 (J. Pedowitz ed. 1984). A whole host of routine civil controversies, from sidewalk slip-and-falls to landlord-tenant disputes, could be converted into property liens under local law, and then used - as the tax lien was in this case - to pierce a foreign sovereign’s traditional and statutory immunity. In order to reclaim immunity, foreign governments might argue in those cases - just as the Governments of India and the People’s Republic of Mongolia tried to argue here - that slip-and-fall claims, even once they are transformed into property liens, do not implicate “rights in immovable property.” But the burden of answering such complaints and making such arguments is itself an imposition that foreign sovereigns should not have to bear.
The force of the arguments of the Solicitor General as amicus curiae supporting petitioners buttresses my conviction that a narrow reading of the statutory exception is more faithful to congressional intent than a reading that enables a dispute over taxes to be classified as a dispute over “rights in immovable property.” It is true that insofar as the FSIA transferred the responsibility for making immunity decisions from the State Department to the Judiciary, Verlinden B.V., 461 U.S., at 487–488, the views of the Executive are not entitled to any special deference on this issue. But we have recognized that well-reasoned opinions of the Executive Branch about matters within its expertise may have the “power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
And I am persuaded. At bottom, this case is not about the validity of the city’s title to immovable property, or even the validity of its automatic prejudgment lien. Rather, it is a dispute over a foreign sovereign’s tax liability. If Congress had intended the statute to waive sovereign immunity in tax litigation, I think it would have said so.
Accordingly, I respectfully dissent.
Wednesday, June 13, 2007
This annual compilation of documents and commentary highlighting significant developments in public and private international law, and is an invaluable resource for practitioners and scholars in the field. Each annual edition compiles excerpts from documents such as treaties, diplomatic notes and correspondence, legal opinion letters, judicial decisions, Senate committee reports and press releases. All of the documents which are excerpted in the Digest are selected by members of the Legal Adviser's Office of the U.S. Department of State, based on their judgments about the significance of the issues, their potential relevance to future situations, and their likely interest to practitioners and scholars.
From the earliest days of its history, the United States has relied on the bounty and opportunity of the seas for sustenance, for economic development, for defense and for communication and interaction with the rest of the world.
Today, as the world's strongest maritime power and a leader of global maritime commerce, the United States has a compelling national interest in a stable international legal regime for the oceans. The time has come to take action to protect and advance the nation's national security, economic and environmental interests in the maritime domain - through accession to the Convention on the Law of the Sea.
The convention entered into force in 1994 and now has more than 150 parties. It supports and strengthens navigational rights essential to global mobility and it clarifies and confirms important oceans freedoms. U.S. accession to the convention would put the maritime security and economic rights the nation enjoys on the firmest legal footing.
Accession makes sense from a national security perspective. This is a critical time for America and our friends and allies - faced with a wider and more complex array of global and transnational security challenges than ever before. Effectively meeting those challenges requires unimpeded maritime mobility - the ability of our forces to respond any time, anywhere, if so required.
The convention recognizes and supports the rights of transit and innocent passage - it confirms that there is no need to ask each country along the way for a permission slip. That freedom is already widely accepted in practice, but the convention provides a welcome legal certainty - a certainty and confidence that the nation owes to our brave men and women in uniform, as they deploy around the world to protect and defend freedom and liberty.
Accession also has great value from an economic perspective. In the first place, the freedom of navigation the convention helps ensure is as critical to global economic development as it is to security considerations.
The United States would also receive direct economic benefit from the rights the convention provides to coastal nations to regulate and protect their offshore marine areas. Specifically, the convention recognizes the sovereign rights of coastal nations over natural resources like oil, gas and minerals, in "exclusive economic zones" out to 200 nautical miles, and in rigorously defined continental shelf regions. The United States stands to gain considerably, sinceits Arctic shelf could potentially extend out to 600 nautical miles.
As a corollary, the convention recognizes coastal states' rights to extend over their respective maritime zones specific environmental protections - like regulating fishing stocks and ocean pollution. Assigning and supporting responsibility in this way could markedly improve prospects for the protection of the global environment.
Accession makes sense from the perspective of U.S. leadership on the world stage. Joining the convention would give the nation a seat at the table, a voice in the debates, to help shape the future development of oceans law, policy and practice. Accession would also give the United States better opportunities to keep a close watch on other nations' efforts to exercise their rights under the law of the sea and to counter excessive claims if necessary.
Finally, accession would powerfully and publicly reiterate the nation's commitment to the rule of law as the basis for policy and action. It would make U.S. leadership more credible and compelling, in important multi-national efforts like the Proliferation Security Initiative - designed to counter proliferation of weapons of mass destruction and other dangerous materials. And it would strengthen the general argument in favor of more robust international partnership in all domains - partnerships essential to meeting today's global and transnational security challenges.
For all of these reasons, President Bush has urged the Senate to act favorably on U.S. accession to the Law of the Sea Convention, during this session of Congress. It is simply the right thing to do, to support America's national interests, and to lay an effective foundation for the use and protection of the world's oceans for generations to come.
The 15th Annual Conference of the Australian and New Zealand Society of International Law, 'Restoring the Rule of Law in International Affairs', takes place takes place at a time of increasing calls from some quarters to rescue international law from the quagmire of power politics by restoring the rule of law in all aspects of international affairs including peace and security, environmental protection, oceans governance, human rights, and trade.
- L. Gradoni, ‘You Will Receive a Fair Trial Elsewhere': The Ad Hoc International Criminal Tribunals Acting as Human Rights Jurisdictions
- M. Ssenyonjo, The International Criminal Court and the Lord's Resistance Army Leaders: Prosecution or Amnesty?
- K. Daglish & H. Nasu, Towards a True Incarnation of the Rule of Law in War-torn Territories: Centering Peacebuilding in the Will of the People
- Z.W. Yihdego, The Role of Security Council Arms Embargoes in Stemming Destabilizing Transfers of Small Arms and Light Weapons (SALW): Recent Developments and Challenges
- U. Linderfalk, Is the Hierarchical Structure of Articles 31 and 32 of the Vienna Convention Real or Not? Interpreting the Rules of Interpretation
Tuesday, June 12, 2007
The conference's purpose is to bring together a colloquium of international law scholars, practitioners and students to examine current issues in international law and military operations. The first day will commence with an address by Stockton Professor Craig H. Allen, who will discuss the influence of international law on US maritime strategy. The first day will continue with a panel discussion on Law of the Sea and Maritime Security. The first day will conclude with a panel discussion concerning current issues relevant to the Law of Armed Conflict. The second day will be devoted to two panel discussions: New Developments in Maritime Enforcement of UN Security Council Resolutions and a panel discussion dedicated to coalition operations.The third day will consist of a panel discussion of the 2006 Lebanon conflict.
Tribunal judges today sentenced Milan Martić, a former political leader of Croatian Serbs, to 35 years' imprisonment for crimes committed during the early nineties against Croats and other non-Serbs in Croatia.
Martić was convicted on 16 counts of the indictment including persecutions, murder, torture, deportation, attacks on civilians, wanton destruction of civilian areas and other crimes against humanity and violations of laws and customs of war. He was acquitted on one count of the indictment charging him with extermination.
Between 1991 and 1995, Martić held positions of Minister of Interior, Minister of Defence and President of the self-proclaimed "Serbian Autonomous Region of Krajina" (SAO Krajina), which was later renamed "Republic of Serbian Krajina"(RSK). He was found to have participated during this period in a joint criminal enterprise which included Slobodan Milošević, whose aim was to create a unified Serbian state through commission of a widespread and systematic campaign of crimes against non-Serbs inhabiting areas in Croatia and Bosnia and Herzegovina envisaged to become parts of such a state.
The Trial Chamber found that, among others, Blagoje Adžić, Milan Babić, Radmilo Bogdanović, Veljko Kadijević, Radovan Karadžić, Slobodan Milošević, Ratko Mladić, Vojislav Šešelj, Franko "Frenki" Simatović, Jovica Stanišić, and Captain Dragan Vasiljković participated in the furtherance of the common criminal purpose of the joint criminal enterprise.
The Trial Chamber established that Martić exercised absolute authority over the Interior Ministry and, as RSK President, controlled its armed forces. As such, Martić was obligated to prevent or punish crimes but instead he abused his positions and promoted an atmosphere in which the non-Serb population was subjected to widespread and systematic crimes.
In addition, Martić was convicted of ordering rocket attacks on downtown Zagreb on 2 and 3 May 1995 in which seven people died and more than 200 were wounded. In several media statements, Martić admitted to having ordered the attacks. In a radio interview on 5 May 1995, he stated: "That order was given by me, personally, as a retaliation to Franjo Tuđman and his staff for the order he had given to commit aggression against Western Slavonia."
The Trial Chamber established that the majority of the crimes for which Milan Martić has been found guilty were committed against elderly people, against persons held in detention and against civilians. In determining the sentence, it took into account the effects of the crimes committed on victims and their families and noted that virtually the entire Croat and other non-Serb population was expelled from the area under Martić's control. In particular the Trial Chamber recalled the horrific injuries and the serious suffering inflicted on civilians as a consequence of the indiscriminate attacks on Zagreb, which Martić ordered.
The Trial Chamber noted that Martić evaded justice for seven years in the knowledge that an indictment was issued against him. In view of this, in determining the sentence, it gave only a minimum weight to his voluntary surrender in 2002.
- Marion Harroff-Tavel, The Humanitarian Diplomacy of the International Committee of the Red Cross
- SA de Freitas & WF Ellis, Mercenarism and Customary International Law
- Sandhiya Singh, Command Responsibility of Military and Civilian Superiors: An Examination of International Judicial Decisions
- Michael Cowling, International Lawmaking in Action - The 2005 Customary International Humanitarian Law Study and Non-International Armed Conflicts
- Max du Plessis & Christopher Gevers, Into the Deep End - The International Criminal Court and Sudan
- Cathy Powell & Garth Abraham, Terrorism and International Humanitarian Law
- Hennie Strydom, The Lesson of Darfur
- Jamie A. Williamson, Prosecutor v Mikaeli Muhimana
On 28 May 2007, the Russian Federation officially requested the Depository of the Treaty on Conventional Armed Forces in Europe (CFE Treaty), the Government of the Netherlands, to convene an Extraordinary Conference of the States Parties . . . . According to Article XXI of the CFE Treaty, any signatory State can request such an extraordinary conference in case "exceptional circumstances" relating to the Treaty arise. The Conference has to be convened no later than 15 days after the official request is made and should in principle last no longer than three weeks.In a May 28 press release, the Russian Ministry of Foreign Affairs explained that the request was made because:
of the serious problems that have arisen with the NATO nations' implementation of the Treaty as a result of its enlargement and NATO foot-dragging on ratification of the Agreement on the Adaptation of the CFE Treaty, signed in 1999.David Kramer, Deputy Assistant Secretary of State for European and Eurasian Affairs, in a May 31 speech to the Baltimore Council on Foreign Relations, responded to the Russian points:
President Putin [on April 26], in his "State of the Nation" Address, suggested he would consider suspending Russia's obligations under the Treaty on Conventional Armed Forces in Europe (CFE Treaty) if no progress was made on ratification of the Adapted CFE Treaty by NATO Allies. As it usually happens, such saber-rattling only succeeded in unifying the Alliance. In Oslo, NATO Ministers universally responded that we continue to regard the current CFE Treaty as a cornerstone of the European security. The Administration and NATO Allies are very serious about our support for Adapted CFE: the Adapted Treaty, signed in 1999, replaces the bloc-to-bloc structure of the original Treaty with a more flexible system of national and territorial equipment limits. But before we can ratify the Adapted CFE, Russia must fulfill commitments it made in Istanbul in 1999 to withdraw its forces and munitions from Georgia and Moldova. At the heart of the Adapted CFE Treaty lies the clear principle that no state can station troops on another's territory without the latter's consent. Both Georgia and Moldova have asked the Russian forces stationed there to leave, as is their right as sovereign, independent states. In Georgia, Russia has made major progress in fulfilling its commitments; in Moldova, by comparison, it has done nothing since 2003. Absent further progress on fulfilling Istanbul - and we have offered to help - we unfortunately will not be able to move forward on Adapted CFE Ratification.That same day, Russian President Vladimir Putin said: "We have signed and ratified the CFE and are fully implementing it. We have pulled out all our heavy weapons from the European part of Russia to (locations) behind the Ural Mountains and cut our military by 300,000 men. And what about our partners? They are filling eastern Europe with new weapons. A new base in Bulgaria, another one in Romania, a (missile defense) site in Poland and a radar in the Czech Republic. What we are supposed to do? We can't just sit back and look at that."
Last Wednesday, Russian Foreign Minister Sergei Lavrov is reported to have said that Russia will not withdraw from the CFE Treaty at this week's conference.
Assistant Secretary of State for European and Eurasian Affairs Daniel Fried will lead the U.S. delegation.
A short backgrounder on current U.S.-Russia relations can be found here.
Monday, June 11, 2007
- Gino Naldi, Western Sahara : Suspended Statehood or Frustrated Self-Determination?
- Obiora Chinedu Okafor, "Righting" Restructuring, and Rejuvenating the Postcolonial African State: The Case for the Establishment of an AU Special Commission on National Minorities
- Nsongurua J. Udombana, Battling Rights: International Law and Africa's War on Terrorism
- Segun Jegede, The Admissibility of Evidence in Proceedings Before the ICTR and the ICTY
- Beat Dold, & Lisa Yarwood, Victim Participation at the ICC: Valid Potentiality or Vanguard Pandering?
- Roland Adjovi, Le Conseil de sécurité des Nations Unies et la Cour Penale internationale
- David K. Nanopoulos, Remarques sur l'incidence d'une réforme du Conseil de sécurité sur la Cour internationale de Justice
- Spyridon Aktypis, Affaire frontalier (Benin/Niger), arrêt du 12 juillet 2005: deux points de vue (1)
- Affef Ben Mansour, Affaire frontalier (Benin/Niger), arrêt du 12 juillet 2005: deux points de vue (2)
Article 32(2) of the Rome Statute provides that "[a] mistake of law may . . . be a ground for excluding criminal responsibility if it negates the mental element required by such a crime." Although this provision has been described as "cryptic," I argue in this essay that it was specifically drafted to exculpate what common-law scholars have variously called "mistake of mixed fact and law," "mistake of legal fact," and - most usefully - "mistake of legal element": namely, a mistake regarding the definition of a legal element in a crime. A perpetrator who commits a mistake of legal element (MLE) cannot be said to have acted "knowingly" with regard to that element, and is thus entitled to an acquittal if the element requires knowledge. The war crime of attacking a civilian population, for example, requires the perpetrator to know that the population in question qualifies as civilian under international humanitarian law. A perpetrator who honestly but incorrectly believes that a population forfeits its civilian status if soldiers are present within it, therefore, commits an exculpatory MLE.
Most international criminal law scholars accept the idea that at least some MLEs are exculpatory under Article 32. At the same time, however, they insist that few MLE defenses will be successful. I disagree, for three reasons. First, nearly every crime in the Rome Statute contains at least one legal element; the "civilian" element alone, for example, appears in 16 different war crimes. Second, the two methods that the drafters of the Elements of Crimes used to limit MLEs - providing that legal elements only require knowledge of the underlying facts and replacing Article 30's default knowledge requirement with a simple negligence standard - are almost certainly inconsistent with the Rome Statute. Third, all of the mechanisms that scholars have proposed to limit MLEs - such as subjecting them to German criminal law's "layman's parallel evaluation" test or requiring them to be reasonable - are inconsistent with Article 32's common-law principles.
Properly understood, therefore, Article 32 potentially recognizes a wide variety of exculpatory MLEs. That is a disturbing prospect, because there is no reason why soldiers should not be expected to have at least a reasonable understanding of international humanitarian law. I thus conclude the essay by arguing that instead of finessing the literal language of Article 32 or pretending that the Article is not based on the common law, a better solution would be to eliminate the possibility of MLEs by specifically amending the Rome Statute to apply a negligence standard to legal elements.
- Jan Wouters, Frank Hoffmeister & Tom Ruys, Introduction
- Frank Hoffmeister & Pieter-Jan Kuijper, The status of the European Union at the United Nations
- Esa Paasivirta & Dominic Porter, EU coordination at the UN General Assembly and ECOSOC
- Johan Verbeke, EU-coordination on UN Security Council matters
- Jœrgen Mærsk Pedersen, FAO-EU cooperation: an ever stronger partnership
- Rudi Delarue, EU-ILO cooperation on employment and social affairs
- Carole Garnier, Daniel Daco, & Francesca di Mauro, UN-EU cooperation on financial issues - The role of the European Union at the International Monetary Fund and the World Bank
- Lucia Cavicchioli, The European Community at UNESCO: an exceptionally active observer?
- Barbara Eggers & Frank Hoffmeister, UN-EU Cooperation on public health - The evolving participation of the European Community in the World Health Organization
- Judith Kumin, UNHCR, the European Union and refugees
- Hadewych Hazelzet, The EU's human rights policy in the UN: An example of effective multilateralism?
- Jochen Jesinghaus, UN-EU cooperation on sustainable development
- Aurore Maillet, The EU: greening the UN? Environmental cooperation between the EU and the UN
- Jan Wouters & Tom Ruys, UN-EU cooperation on crisis management
- Jim Cloos, UN-EU cooperation on crisis management: putting effective multilateralism into practice
- Sven Biscop & Edith Drieskens, The European Security Strategy: Confirming the choice for collective and comprehensive security
- Kennedy Graham, EU-UN cooperation on security: In search of 'effective multilateralism' and a balanced division of tasks
- Gijs De Vries, UN-EU cooperation on terrorism
- Michael Karnitschnig, The UN and the EU in Kosovo - the challenges of joint nation-building
- Roman Kirn, Regional groups within the UN post-EU enlargement
- Danièle Smadja, The European Union and the reform of the United Nations
- Jo Leinen, The future of the United Nations: a view from the European Parliament
- Jan Wouters, Frank Hoffmeister, & Tom Ruys, Epilogue: The UN and the EU - the road to partnership