- Douglas M. Gibler & Andrew P. Owsiak, Democracy and the Settlement of International Borders, 1919 to 2001
- Patrick E. Shea & Paul Poast, War and Default
- Susan G. Sample, Power, Wealth, and Satisfaction: When Do Power Transitions Lead to Conflict?
- Matthias Flückiger & Markus Ludwig, Youth Bulges and Civil Conflict: Causal Evidence from Sub-Saharan Africa
- Sandra Ley, To Vote or Not to Vote: How Criminal Violence Shapes Electoral Participation
- Corinne Bara, Legacies of Violence: Conflict-specific Capital and the Postconflict Diffusion of Civil War
- Federica Alberti, Sven Fischer, Werner Güth, & Kei Tsutsui, Concession Bargaining: An Experimental Comparison of Protocols and Time Horizons
- Jonathan Hall, Integration of Refugees and Support for the Ethos of Conflict
Saturday, September 8, 2018
Mendeloff: Punish or Persuade? The Compellence Logic of International Criminal Court Intervention in Cases of Ongoing Civilian Violence
Can International Criminal Court (ICC) interventions in ongoing conflicts help curtail war crimes and civilian abuses that are being actively perpetrated? The court has increasingly intervened in such cases, partly with the intention of using its prosecutorial power to stop ongoing abuses. Yet, while much has been said about the court's potential for deterrence, little attention has been devoted to its compellent effects. Drawing on insights from the literature on coercive diplomacy, strategic bargaining, and civilian victimization, this article clarifies and critically assesses the logic of ICC compellence in cases of ongoing civilian violence. I argue that some forms of ICC intervention have compellent potential but are inherently limited. Specifically, I show why threats of prosecution, rather than actual indictments, are far more likely to be effective at curtailing violence, but also how their effective application is highly constrained by the court's own core normative principles, rules, and structures. While some see the main problem as weak enforcement—something that can be remedied with greater political will—there is a more fundamental impediment: to compel effectively, the court must carefully coordinate its actions with other states’ diplomatic and military efforts or allow itself to be used strategically by states pursuing diplomatic and military measures to curtail violence—positions that are incompatible with the court's statutory obligations and its very ethos as an independent and impartial nonstate judicial institution.
Central elements of the international liberal order include political commitments to multilateralism, human rights, democracy, free trade, and the rule of law. These central commitments–which are also the core legal issues that international courts are regularly called upon to adjudicate–are now being called into question. This book chapter explains how I see the future of international courts given the current political moment. Using the historical institutionalist concept of a critical juncture, I explain how the current critical juncture is very different from past critical junctures, but this difference does not necessarily portend a bleak future for international courts. Institutions are sticky, and they tend to endure. In the past, ICs sustained long periods of limited political support in “sleeping beauty mode,” a repose that endured until compliance constituencies seeking legal enforcement embraced litigation as a tool to promote their objectives. More problematic, however, is that international court’s legitimacy and authority are co-dependent on the legitimacy and authority of international law and of the rule of law more generally. The fate of international courts depends to a large extent on whether the political commitment to legality as a key source of political legitimation, and to a rules-based international order endures. The new challenge for international judges is, therefore, that ICs are actors that uphold the political system that is now being contested, and international judges will be asked to uphold this political system at a moment when their key domestic compliance partners are under siege.
Conference: The Judicial Power of Africa’s Supranational Courts / Le pouvoir judiciaire des Cours supranationales d’Afrique
Africa boasts a high number of supranational courts, but at the same time there appears to be a widespread lack of willingness among Member States to comply with rulings issued by these courts. The conference will address this paradox and investigate which forms of judicial power are being favoured by African States on the one hand and African supranational courts on the other. It will analyse to what extent approaches of activism or, conversely, restraint, are being considered as legitimate and effective by these actors.
The conference will address dynamics that are potentially common to supranational institutions operating in different fields of law, such as the African Court of Human and Peoples’ Rights, the Court of Justice of the Economic Community of West African States (ECOWAS), the Court of Justice and Arbitration of the Organisation pour l’harmonisation en Afrique du droit des affaires (OHADA), and the East African Court of Justice.
L'Afrique compte un nombre élevé de juridictions supranationales; cependant, il semble que les États membres ne soient pas toujours enclins à se conformer aux décisions rendues. La conférence abordera ce paradoxe et cherchera à mettre en lumière quelles formes de pouvoir judiciaire sont favorisées respectivement par les États africains et les juridictions supranationales africaines. Les participants analyseront dans quelle mesure les approches activistes de ces juridictions ou, inversement, leur autolimitation, sont considérées légitimes et efficaces par ces acteurs.
La conférence traitera ainsi de dynamiques du pouvoir judiciaire qui seraient potentiellement communes aux institutions supranationales opérant dans différents domaines du droit, telles que la Cour africaine des droits de l'homme et des peuples, la Cour de justice de la Communauté économique des États de l'Afrique de l'Ouest (CEDEAO), la Cour Commune de Justice et d'Arbitrage (CCJA) de l'Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA), et la Cour de Justice de l'Afrique de l’Est.
Conference: Protecting Civilian Institutions and Infrastructure from Cyber Operations: Designing International Law and Organizations
Bonino: La France contre les droits de l’Homme ? La difficile ratification par la France de la Convention européenne des droits de l’Homme (1950-1974)
Nous proposons d’étudier à grands traits les raisons pour lesquelles la France a mis vingt-cinq ans, entre 1950 et 1974, à ratifier la Convention européenne des droits de l’Homme, dans le cadre du Conseil de l’Europe, alors même qu’elle était l’un des pays les plus favorables à sa mise en œuvre lors de sa rédaction. Nous nous sommes surtout attachés à montrer que les motivations principales sont bien moins d’ordre juridique que politique, le plus souvent liées à la politique intérieure française ainsi qu’aux contextes juridique national et international. L’histoire de la ratification de ce texte est riche car on peut esquisser à travers elle une certaine histoire politique et juridique de la France, retracer l’évolution des mentalités juridiques et de la société en général.
In many ways, the United States' post-9/11 engagement with legal rules is puzzling. Officials in both the Bush and Obama administrations authorized numerous contentious counterterrorism policies that sparked global outrage, yet they have repeatedly insisted that their actions were lawful and legitimate.
In Plausible Legality, Rebecca Sanders examines how the US government interpreted, reinterpreted, and manipulated legal norms and what these justificatory practices imply about the capacity of law to constrain state violence. Through case studies on the use of torture, detention, targeted killing, and surveillance, Sanders provides a detailed analysis of how policymakers use law to achieve their political objectives and situates these patterns within a broader theoretical understanding of how law operates in contemporary politics. She argues that legal culture--defined as collectively shared understandings of legal legitimacy and appropriate forms of legal practice in particular contexts--plays a significant role in shaping state practice. In the global war on terror, a national security culture of legal rationalization encouraged authorities to seek legal cover-to construct the plausible legality of human rights violations-in order to ensure impunity for wrongdoing.
Looking forward, law remains vulnerable to evasion and revision. As Sanders shows, despite the efforts of human rights advocates to encourage deeper compliance, the normalization of post-9/11 policy has created space for future administrations to further erode legal norms.
Friday, September 7, 2018
- Kirsten Ainley, Stephen Humphreys, & Immi Tallgren, International criminal justice on/and film
- Peter D Rush & Maria Elander, Working through the cinematography of international criminal justice: procedures of law and images of atrocity
- Ulrike Weckel, Watching the accused watch the Nazi crimes: observers’ reports on the atrocity film screenings in the Belsen, Nuremberg and Eichmann trials
- Eugene McNamee & Maria Andrews, Judgment at Nuremberg: Hollywood takes the international criminal law stand
- Sophie Rigney, ‘You start to feel really alone’: defence lawyers and narratives of international criminal law in film
- Books etc.
- Nathaniel Berman, The Devil’s party: the discourse of demonisation in a fracturing world
- Sección de Artículos de Investigación desde el Derecho Internacional Penal
- Mónica Rocha Herrera, ¿Cuáles son las obligaciones de un comandante militar en campo? Evolución Jurídica de la Doctrina de la Responsabilidad del Superior Jerárquico: De Yamashita a Bemba Gombo en la Corte Penal Internacional
- Sección de Artículos de Investigación desde otras áreas de las Ciencias Humanas y Sociales
- Hector Olasolo, Éric Lair, & Lucia Carcano, Justicia, (des)orden y grupos al margen de la ley: Miradas cruzadas sobre Brasil, México y Colombia
- Sección de Ensayos de Investigación seleccionados en la VI edición del Certamen Blattmann, Odio Benito y Steiner
- Catalina Fernández Cartier, Los crímenes de violencia sexual cometidos al interior de un grupo armado: El caso de los niños soldados en The Prosecutor vs. Bosco Ntaganda
- Thairi Moya Sánchez, Grupos civiles armados en Venezuela: ¿Actores de un ‘aparato organizado de poder’?
- Sección de Ensayos de Investigación seleccionados en la I edición del Certamen de Estudios Críticos sobre la Justicia
- Nathalie Ferreira de Andrade, Pacificación en la Favela no para la Favela. Un análisis del proyecto de paci cación y de los programas gubernamentales, como justicia comunitaria, implementados en la Favela, investigando quiénes son los verdaderos bene ciarios del programa y resaltando la potencia política favelada en ese contexto
- Maria Dolores Nuñez Ávila, El reconocimiento de “la justicia indígena” como agente de la reivindicación de los pueblos indígenas en el marco del pluralismo jurídico
- Arturo Felipe Onfray Vivanco, Reflexiones sobre el vínculo entre reformas a la Administración de Justicia, Economía y Desarrollo Económico
Thursday, September 6, 2018
Bellal & Heffes: ‘Yes, I Do’: Binding Armed Non-State Actors to IHL and Human Rights Norms Through Their Consent
In the last few decades, the role and status of armed non-state actors (ANSA) have become essential topics of analysis and discussion in order to better understand current international humanitarian law (IHL) and international human rights law (IHRL) dynamics. Although contemporary public international law still seems to be predominantly State-oriented, it is undeniable that a variety of these non-state entities have played quite important roles, giving rise to many discussions and complex debates. One relevant issue is related to the reasons why they are bound by international law. A classical approach to the traditional theory of sources of international law relies on the consent given by States to be bound by an international rule. When dealing with ANSAs, however, the reasons why they are obligated by both IHL and IHRL lie beyond merely accepting the existence of their obligations. While some views take into account their consent, others are based on their relationship with territorial States and the rules previously accepted by States’ authorities. Implementing one or the other is not merely an intellectual exercise, and which alternative is taken will certainly have a direct impact on the effectiveness of international law as perceived by ANSAs.
Public International Law
- Yves Daudet (Université Paris 1), Conférence inaugurale : 1919-2019, le flux du multilatéralisme
- Hilary Charlesworth (Univ. of Melbourne; Australian National Univ.), General Course: The Art of International Law
- Concepción Escobar Hernández (Universidad Nacional de Educación a Distancia), Les immunités des représentants de l’État en droit international
- Shotaro Hamamoto (Univ. of Kyoto), Perspectives de l’arbitrage entre l’investisseur et l’État fondé sur un traité
- Said Mahmoudi (Stockholm Univ.), The Argument of Self-Defense in Relation to “Unwilling-or-Unable” States
- Sandrine Maljean-Dubois (Centre national de la recherche scientifique), Le droit international de la biodiversité
- Gérard Niyungeko (formerly, Judge, la Cour africaine des droits de l’homme et des peuples), Les juridictions internationales africaines
- Kerstin von der Decken (Kiel Univ.), International Law on the Protection of Cultural Heritage
Private International Law
- Gary Born, Inaugural Lecture: International Arbitration: Choices of Law
- Diego P. Fernández Arroyo (Sciences Po), Cours général : La traversée du miroir : la progressive dénationalisation du droit international privé
- Yas Banifatemi (Shearman & Sterling), Les pouvoirs de l’arbitre en arbitrage international
- Sandrine Clavel (l’Université de Versailles Saint-Quentin-en Yvelines / Paris-Saclay), L’intégration des considérations éthiques dans le droit des contrats du commerce international
- Manuel Desantes Real (l’Université d’Alicante), Droit international privé et juridiction unifiée du brevet
- Franco Ferrari (New York Univ.), Forum Shopping Despite Unification of Law
- Anastasia Grammaticaki-Alexiou (Aristotle Univ. of Thessaloniki), Best Interests of the Child in Private International Law
- Eduardo Silva Romero (Rosario Univ.; Sciences Po), Legal Fictions in International Arbitration
- Matthias Weller (Univ. of Bonn), “Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?
The Ottoman-Russian wars of the eighteenth century reshaped the map of Eurasia and the Middle East, but they also birthed a novel concept - the prisoner of war. For centuries, hundreds of thousands of captives, civilians and soldiers alike, crossed the legal and social boundaries of these empires, destined for either ransom or enslavement. But in the eighteenth century, the Ottoman state and its Russian rival, through conflict and diplomacy, worked out a new system of regional international law. Ransom was abolished; soldiers became prisoners of war; and some slaves gained new paths to release, while others were left entirely unprotected. These rules delineated sovereignty, redefined individuals' relationships to states, and prioritized political identity over economic value. In the process, the Ottomans marked out a parallel, non-Western path toward elements of modern international law. Yet this was not a story of European imposition or imitation-the Ottomans acted for their own reasons, maintaining their commitment to Islamic law. For a time even European empires played by these rules, until they were subsumed into the codified global law of war in the late nineteenth century. This story offers new perspectives on the histories of the Ottoman and Russian Empires, of slavery, and of international law.
Wednesday, September 5, 2018
Waddington & Lawson: The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts
Introduced in 2008, the UN Convention on the Rights of Persons with Disabilities has existed for nearly a decade. This comprehensive study examines how courts in thirteen different jurisdictions make use of the Convention. The first sustained comparative international law analysis of the CRPD, Waddington and Lawson's ground breaking text illuminates the intersection between human rights law, disability law and international law through an examination of the role of courts. The first part of the book contains chapters specific to each jurisdiction. The second part consists of comparative chapters which draw on the rich analysis of the jurisdiction-specific chapters. These chapters reflect on emerging patterns of judicial usage and interpretation of the CRPD and on the wider implications for human rights theory and the nascent field of international comparative human rights law. This volume is a vital and thought-provoking addition to the literature on comparative international law and disability rights.
The Foreign Sovereign Immunities Act (FSIA) was passed by Congress as a comprehensive statute to cover all instances when foreign states are to be immune from suit in the courts of the United States, as well as when foreign state immunity is to be limited. Judicial interpretation of one of the FSIA’s exceptions to immunity has undergone significant evolution over the years with respect to foreign state property expropriations committed in violation of international law. U.S. courts initially construed this FSIA exception by denying immunity only if the defendant state had expropriated property of a citizen of a nation other than itself. Later, such suits were allowed even where the plaintiffs were deemed by the court to have been formal citizens so long as they had not been treated as such at the time of the expropriation. This tended to occur where states had dispossessed groups of citizens, often minority populations, of their property rights, and often coincided with grave human rights violations.
In the most recent appellate decisions to consider the issue, two circuits, the Seventh and D.C., nationality has been discarded entirely as a criterion to abrogate immunity if a court considers the defendant state’s expropriation to have been part of a policy of genocide. The D.C. circuit has gone still further in the later of the cases and equates the act of property expropriation with genocide. Both circuits initially also imposed a new exhaustion of local remedies requirement. As of 2018, a conflict exists between the two circuits on that issue.
The genocide interpretation with the imposition of exhaustion distorts both the FSIA and international customary law. It risks trivializing the concept of genocide, and in the Seventh Circuit it removes exhaustion from its international law roots in cases that occur exclusively in international tribunals by inserting the requirement into a domestic court framework. Neither development is consistent with the FSIA statute. Coupling the new genocide category with an exhaustion requirement also has a net effect of depriving plaintiffs of recovery inasmuch as lawsuits in the foreign defendant states are unlikely to succeed, and the obstacles are steep for persuading U.S. federal courts subsequently to retry a case once an adverse foreign judgment has been issued.
In this chapter, I explore the relationship between international law and domestic legal systems in the counterterrorism area, with a particular focus on the United Nations Security Council’s (UNSC’s) promulgation of relevant legal obligations. The chapter critically examines some ways in which international criminal law may accommodate ‘terrorism’, along with its more important shortcomings in doing so, and canvasses key developments regarding States’ counterterrorism obligations since 9/11. Then, I investigate the viability of expanding the International Criminal Court’s jurisdiction to encompass ‘crimes’ of ‘terrorism’, along with the prospect of UNSC referrals to that court involving terrorism-related cases. In critically analysing ground-breaking UNSC resolutions imposing wide-ranging counterterrorism duties on States, I shed light on that organ’s ‘quasi-legislative’ exercise of its powers and the implications for the implementation of those obligations in domestic law. Building on this foundation, the chapter briefly turns to an analysis of how these duties are implemented and enforced in domestic settings, with emphasis on Australia, Canada, and Singapore. My ambition is to show that international counterterrorism obligations remain painstakingly dependent on States’ national security policies. Ultimately, I argue that it might be more helpful to embrace a broader conception of international criminal law, as an effective global counterterrorism campaign can only be pursued meaningfully through what I term a ‘transnational network of criminal and civil law’.
de la Rasilla del Moral: Bartolomé De Las Casas: A Radical Humanitarian in the Age of the Great Encounter
Few lives may be as propitious to an understanding of the biographical genre as a way of addressing a larger historical theme than the life of the greatest advocate for justice and freedom for the Amerindian peoples in the sixteenth century. For generations, the life and works of Bartolomé de las Casas have served as lenses to look through at events and processes unleashed by the ‘great encounter’. Deeply intertwined with what came to be known as the ‘duda indiana’ (the ‘Indian Doubt’) among Spanish intellectual and political elites, were three interwoven dimensions that situate the praxis and theory of de las Casas’ life and work within the theological, moral and legal debates triggered by the Spanish Conquest of America. Traditionally, this has been considered as the birthdate of international law and, for some, building on the Lascasian legacy, of contemporary human rights law too.
This book is the first and only practical guide to negotiating peace. In this ground-breaking book Sven Koopmans, who is both a peace negotiator and a scholar, discusses the practice, politics, and law of international mediation. With both depth and a light touch he explores successful as well as failed attempts to settle the wars of the world, building on decades of historical, political, and legal scholarship.
Who can mediate between warring parties? How to build confidence between enemies? Who should take part in negotiations? How can a single diplomat manage the major powers? What issues to discuss first, what last? When to set a deadline? How to maintain confidentiality? How to draft an agreement, and what should be in it? How to ensure implementation? The book discusses the practical difficulties and dilemmas of negotiating agreements, as well as existing solutions and possible future approaches. It uses examples from around the world, with an emphasis on the conflicts of the last twenty-five years, but also of the previous two-and-a-half-thousand. Rather than looking only at either legal, political or organizational issues, Negotiating Peace discusses these interrelated dimensions in the way they are confronted in practice: as an integral whole. With one leading question: what can be done?
- Michael Douglas & Nicholas Loadsman, The Impact of the Hague Principles on Choice of Law in International Commercial Contracts
- Andrew Edgar & Rayner Thwaites, Implementing Treaties in Domestic Law: Translation, Enforcement and Administrative Law
- Gabrielle Holly, Transnational Tort and Access to Remedy under the UN Guiding Principles on Business and Human Rights: Kamasee v Commonwealth
- David Hughes, Investigation as Legitimisation: The Development, Use and Misuse of Informal Complementarity
- Ching-Fu Lin & Han-Wei Liu, Regulatory Rationalisation Clauses in FTAs: A Complete Survey of the US, EU and China
- Yvette Maker, Anna Arstein-Kerslake, Bernadette McSherry, Jeannie Marie Paterson & Lisa Brophy, Ensuring Equality for Persons with Cognitive Disabilities in Consumer Contracting: An International Human Rights Law Perspective
- Frédéric Mégret, The Laws of War and the Structure of Masculine Power
- Aoife O’Donoghue, ‘The Admixture of Feminine Weakness and Susceptibility’: Gendered Personifications of the State in International Law
- Ksenia Polonskaya, Diversity in the Investor–State Arbitration: Intersectionality Must Be a Part of the Conversation
- Barrie Sander, The Method is the Message: Law, Narrative Authority and Historical Contestation in International Criminal Courts
- Cait Storr, ‘Imperium in Imperio’: Sub-Imperialism and the Formation of Australia as a Subject of International Law
- Caleb H Wheeler, Re-Examining Corporate Liability at the International Criminal Court Through the Lens of the Article 15 Communication against Chiquita Brands International
Tuesday, September 4, 2018
The principle of universal jurisdiction is a unique ground of jurisdiction in international law that may permit a State to exercise national jurisdiction over certain crimes in the interest of the international community. This means that a State may exercise jurisdiction regarding a crime committed by a foreign national against another foreign national outside its territory. Such jurisdiction differs markedly from the traditional bases of jurisdiction under international law, which typically require some type of territorial, nationality or other connection between the State exercising the jurisdiction and the conduct at issue. Due to the definitional and other ambiguities surrounding the universality principle, which has in its past application strained and today continues to strain relations among States at the bilateral, regional and international levels, this paper successfully made the case for the inclusion of "Universal Criminal Jurisdiction" as a topic in the long-term program of work of the International Law Commission during its Seventieth Session (2018). It was submitted that taking up a study of this timely topic, which has been debated by the Sixth Committee of the UN General Assembly since 2010, could enhance clarity for States and thereby contribute to the rule of law in international affairs.
- Ian Hurd, The Empire of International Legalism
- Roundtable: Alternatives to War
- James Pattison, Introduction
- Cécile Fabre, The Case for Foreign Electoral Subversion
- James Pattison, Covert Positive Incentives as an Alternative to War
- Corneliu Bjola, The Ethics of Countering Digital Propaganda
- Michael L. Gross, Backfire: The Dark Side of Nonviolent Resistance
- Alex J. Bellamy, Ending Atrocity Crimes: The False Promise of Fatalism
- Alejandra Mancilla, The Moral Limits of Territorial Claims in Antarctica
- Review Essay
- George F. DeMartino, Reconstructing Globalization in an Illiberal Era
- Ming Du, Re-Conceptualizing the Role of Science in International Trade Disputes
- Rudolf Adlung, Brexit from a WTO/GATS Perspective: Towards an Easy Divorce?
- Jimmyn Parc & Patrick Messerlin, In Search of an Effective Trade Policy for the Film Industry: Lessons from Korea
- Minjung Kim, The ‘Standard’ in the GATT/WTO TBT Agreements: Origin, Evolution and Application
- Simplice A. Asongu, Jacinta C. Nwachukwu, & Gilbert A. A. Aminkeng, Lessons from a Survey of China’s Economic Diplomacy
- Jiaxiang Hu & Jie (Jeanne) Huang, Dispute Resolution Mechanisms and Organizations in the Implementation of ‘One Belt, One Road’ Initiative: Whence and Whither
- Julien Briguet, The State’s Invisible Hand: Chinese SOEs Facing EU Antitrust Law
Antje Wiener examines the involvement of local actors in conflicts over global norms such as fundamental rights and the prohibition of torture and sexual violence. Providing accounts of local interventions made on behalf of those affected by breaches of norms, she identifies the constraints and opportunities for stakeholder participation in a fragmented global society. The book also considers cultural and institutional diversity with regard to the co-constitution of norm change. Proposing a clear framework to operationalize research on contested norms, and illustrating it through three recent cases, this book contributes to the project of global international relations by offering an agency-centred approach. It will interest scholars and advanced students of international relations, international political theory, and international law seeking a principled approach to practice that overcomes the practice-norm gap.
Monday, September 3, 2018
- Catherine Amirfar & Ashika Singh, The Trump Administration and the “Unmaking” of International Agreements
- Daniela Caruso, Non-Parties: The Negative Externalities of Regional Trade Agreements in a Private Law Perspective
- Courtney Hillebrecht & Alexandra Huneeus, with Sandra Borda, The Judicialization of Peace
- David A. Koplow, The Fault Is Not in Our Stars: Avoiding an Arms Race in Outer Space
One of the defining narratives of the Court’s first 15 years of operation has been that it has an anti-Africa bias. This view, initially promulgated by individuals whom the Court sought to prosecute, moved into the mainstream and is now advanced through Africa’s regional body, the African Union. On the most strident telling of this narrative, the Court acts with animus against Africans, while purposefully shielding the most powerful States in the international system. (The ‘anti-Africa court’ narrative.) The counter-narrative to this, advanced by Court officials and their most ardent supporters, emphasizes that African countries were the earliest advocates of the Court; far from having an anti-Africa bias, the ICC is a court by and for Africa. This narrative is often linked to the idea that any claim of bias is presumptively untrue because decisions at the Court are made solely based on law. As the current ICC Prosecutor, Fatou Bensouda, has put it: ‘[T]he Prosecutor does not take into account any political considerations. These, we continue to say, belong to other institutions…. [The Office of the Prosecutor] has to scrupulously respect legal limits.’ On this view, law-like activity is a-political, therefore any charge of bias against a particular State or region is necessarily false. (The ‘a-political court’ narrative). There is, however, another perspective, which rejects the conflation of the terms legal and a-political, stressing instead the observation of Sarah Nouwen and Wouter Werner that law itself can be, and often is, both political and non-political. With this understanding in place, it becomes possible to move beyond a blanket denial of the idea that the Court could ever act politically, and engage substantively with the arguments of those who accuse it of doing so. This chapter looks at these issues through the relationship between the ICC, the U.N. Security Council, and the African Union.
This book challenges the unacceptable gap between the positive rules of the international law governing armed hostilities and actual state practice. It discusses reducing the human suffering caused by this reality. The current law does not seem to be optimal in balancing the different interests of states' militaries and the humanitarian agenda. In response to this challenge, this book offers a new paradigm based on reality that may elevate the humanitarian threshold by replacing the currently problematic imperatives imposed upon militaries with professionally-based, therefore attainable, requirements. The aims of the suggested paradigm are to create an environment in which full abidance by the law becomes a realistic norm, thus facilitating a second, more important aim of reducing human suffering.
Militaries function in a professional manner; they develop and respect their doctrine, operational principles, fighting techniques and values. Their performances are not random or incidental. The suggested paradigm calls for leveraging the constraining elements that are latent in military professionalism. Talking professional language and adopting the professional way of thinking that underlies militaries' conduct makes it possible to identify and focus upon the core interests of a military in any given lawful war - those that ought to be taken into consideration - alongside those that can be sacrificed for the sake of the humanitarian concerns, while still allowing the military mission to be achieved. Indeed, leveraging professional standards and norms would establish a reasonable modus vivendi for a military, while allowing substantial new space for the humanitarian mission of the law.
Sunday, September 2, 2018
- Klaus Peter Berger, The Direct Involvement of the Arbitrator in the Amicable Settlement of the Dispute: Offering Preliminary Views, Discussing Settlement Options, Suggesting Solutions, Caucusing
- Michael W. Bühler, Out of Africa: The 2018 OHADA Arbitration and Mediation Law Reform
- Gordon Blanke, Free Zone Arbitration in the United Arab Emirates: DIFC v. ADGM: (Part I)
- Edgardo Muñoz, Mexican Punitive Damages in Commercial Arbitration: Forecasting the Future
- Mauro Megliani, Thou Shalt Not Arbitrate: Sovereign Debt and Investment Arbitration