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EJIL Talk! Book Discussion: L’acte déclencheur d’un conflit armé international – Introductory Post

Published on May 30, 2017        Author: 
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This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Introduction

During the night of Thursday April 6 and Friday April 7 2017, the United States carried out airstrikes on a Syrian military base that had allegedly been used by the Syrian authorities to launch a chemical attack against its own population. As those airstrikes were, to the best of my knowledge, the first ones conducted by the United States that directly and deliberately targeted Syrian positions in Syria, the question that arose for many scholars, humanitarian actors and members of the military was the following: are the United States and Syria in an international armed conflict (IAC)? Or were they already engaged in such a conflict since the United States had been using force on the territory of Syria against the Islamic State since 2014? If there was no previous IAC between the United States and Syria on April 6, did those attacks add an IAC to the preexisting non-international armed conflict (NIAC) between the United States and the Islamic State? Did they transform (‘internationalize’) this preexisting NIAC into a IAC? Or should the attacks of April 6 and 7 fall outside the scope of international humanitarian law (IHL)?

Answering these questions, and more generally classifying hostilities, is crucial in international law. Indeed, rules applicable to an IAC – including the Geneva Conventions (GC), the first Additional Protocol (AP I), other treaties and provisions of international (and national) law and rules of customary law – create a legal framework significantly different from the one applicable in a NIAC or in the absence of a conflict. L’acte déclencheur d’un conflit armé international explores what act or acts might trigger an IAC. It uses Article 2 common to the GC as its starting point since this provision states that each of the four GC:

“shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”.

The notion of IAC being the main entry point for the application of the core treaties of IHL, and the concept of NIAC being closely linked to the one of IAC, means that understanding the triggering act of such a conflict is a preliminary question to almost any application of IHL. Read the rest of this entry…

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Book Discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international”.

Published on May 30, 2017        Author: 
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The blog is happy to announce that over the next few days we will host a discussion on Djemila Carron’s book, “L’acte déclencheur d’un conflit armé international“. 

Djemila Carron is a lecturer at the Law Clinic on the rights of vulnerable people at the University of Geneva. She will kick off the discussion this afternoon with an introductory post about her book. Comments by Julia Grignon (Professor of the Faculty of Law at Laval University (Quebec)) and Dr. Tristan Ferraro (Senior Legal Advisor at the ICRC (HQ Geneva)) will follow. Djemila will then bring the discussion to a close with a response to the comments.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in – comments will of course be open on all posts.

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“Complicity in International Law”: Author’s Response

Published on April 14, 2017        Author: 
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This post is the final part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Introduction

I am grateful to Oxford University Press and the editors of EJIL:Talk! for putting together this discussion and to Elies, Elizabeth, and Helmut for their contributions. I appreciate their engagement with my work. In this piece, I consider the central points in each of their pieces.

State Assistance in Practice

Elizabeth’s three examples – the provision of arms, the use of military bases, and the grant of financial and other assistance to the justice and human rights sectors – provide a helpful grounding for considering how often questions of complicity are arising in practice. Her contribution zeroes in on the difficulties relating to the nexus element and the fault element. Taking them in turn, there are slightly different difficulties here.

As to the nexus element, even if we agree on the normative standard there is the challenge of applying that standard across the myriad ways that states provide assistance to other states. We can quite easily imagine situations where the assistance is insufficiently connected to the principal wrong, just as we can easily imagine situations where the standard is met. Beyond those poles, things are very difficult. That might seem unsatisfactory, but here it is worth emphasising the relative newness of the rule – it is still embedding itself into customary practice. As it does so, we are likely to see the incremental development and clarification of a regime-specific test.

As to the fault element, by contrast, the initial problem lies on the normative level itself – the potential discrepancy between the textual standard of knowledge and the commentary’s reference to intent. Read the rest of this entry…

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Testing Jackson’s Discussion of State Responsibility in the Context of Government Assistance. Book Discussion

Published on April 13, 2017        Author: 
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This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Criticisms of western governments for aiding and assisting other states to act in breach of international law are now common. While such criticisms may sometimes be as much to do with the policy of the thing, there is also increasing focus on the law. The ongoing judicial review in the English courts regarding the provision of arms and military equipment to Saudi Arabia in the context of the conflict in the Yemen (The Queen on the application of Campaign against the Arms Trade v. The Secretary of State for International Trade) illustrates the possibility of litigation on the issue in domestic courts. Miles Jackson’s book on ‘complicity’ gives an introduction and a foundation for thinking about this highly topical subject, in the context both of international criminal law and of state responsibility, and adds to the growing literature. This brief note considers, in the context of state responsibility, whether the book is also of use to the practitioner – whether government adviser, non-governmental organisation, or advocate – who has to apply the law before or after the event.

Jackson’s discussion of state responsibility can be tested in the context of three examples of government assistance; the choice of examples here is unashamedly UK-centric, but instances can be found in many other countries. The first is the provision to other governments of arms and other materiél in a conflict to which the assisting government is not a party and where the assisted government is alleged to be in breach of international humanitarian law in the conduct of the conflict. The second example stems from allowing other governments the use of airfields and military bases on the assisting government’s territory. Here there may be allegations of breaches of ius ad bellum by an assisted state which uses a loaned base to launch an armed conflict, or of human rights abuses such as unlawful rendition of individuals from the base. The third example is the provision of financial and practical aid to improve another state’s justice or human rights sectors. In such a case the relevant sectors of the assisted government are unlikely to have a good record: is it lawful to assist them to improve, or will the aid make the assisting state complicit? Read the rest of this entry…

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New Insights and Structural Clarity: Miles Jackson’s “Complicity in International Law”

Published on April 12, 2017        Author: 
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This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Recently, a number of studies have been published on complicity in international criminal law. In 2014, Neha Jain published a study on Perpetrators and Accessories in International Criminal Law. More recently, Marina Aksenova published a book on Complicity in International Criminal Law. As the titles of both books suggest, the main focus is on international criminal law (ICL). Aksenova, by way of contrast to individual complicity, does dedicate a chapter to State complicity.

Miles Jackson’s work, published in 2015, entitled Complicity in International Law takes a broader and a narrower approach than the books of Jain and Aksenova. While the latter conduct in-depth comparative criminal law analysis, Jackson’s focus is narrower; it is firmly on the international concept of complicity, as the title of the book appropriately suggests. His approach is broader in that, alongside individual complicity, he discusses State complicity. In comparative law terms, this could be qualified an ‘internal’ comparative analysis; discussing a legal concept of a different nature (criminal/individual v. civil/state) but within the same legal system: international law. This terminology is however misleading bearing in mind international law’s pluralist nature. The cross-disciplinary analysis of complicity, across ICL and IL, is more ‘external’ than any ICL-domestic criminal law comparison. And this is exactly the intriguing feature of the book: the juxtaposition of individual and state complicity. Do these concepts have enough in common to be usefully discussed within one and the same analytical framework? It is interesting to note that Helmut Aust in his fine and thorough study on Complicity and State Responsibility does not, by way of analogy, touch upon individual complicity in international law. Having said that, the fact that an emerging strand of scholarship approaches questions on international legal responsibility from a ‘shared perspective’ may be sufficient justification for this cross-disciplinary approach. Read the rest of this entry…

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“Complicity in International Law”: An Overview. Book Discussion

Published on April 12, 2017        Author: 
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This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Introduction

No one is ever accused of being complicit in something good. Across areas of law, complicity – the idea of participation in another’s wrong – has received increased attention in the last decade. To take one domestic jurisdiction, England and Wales, accessorial liability in private law and criminal law has been subject to detailed re-evaluation. In international criminal law, the acquittal of Momcilo Perisic by the ICTY Appeals Chamber brought deep recrimination and comment. And in the law of state responsibility, the complicity rule in Article 16 of the Articles on State Responsibility is increasingly invoked in the context of the arms trade, counter-terrorism, and development aid.

This increased attention forms the background to the book. My overarching aim is to understand and analyse how international law regulates individual and state complicity. This overarching aim is supplemented by, where appropriate, critique as to the scope of the relevant rules and a normative claim as to how complicity rules ought to be structured. To this end, the book is structured as follows. Part A builds an analytical framework for understanding complicity rules and defends the normative claim mentioned above. Part B addresses complicity in international criminal law, including complicit omissions and command responsibility. Part C does two things. First, it considers state participation in the wrongdoing of other states and tracks the move from what I call specific complicity rules to the general rule on aid or assistance in Article 16 of the Articles on State Responsibility. Second, it addresses state participation in the actions of non-state actors. In doing so, it appraises the claim that complicity has permeated the secondary rules on the attribution of conduct in international law and proposes a non-state analogue to the rule in Article 16. Part D concludes. Read the rest of this entry…

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Author’s Response: The Politics of Gender Justice at the ICC: Legacies and Legitimacy

Published on December 22, 2016        Author: 
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I am immensely grateful to the EJIL:Talk! Editors for sponsoring this discussion and to Mark Drumbl, Patricia Viseur Sellers and Valerie Oosterveld for their thoughtful and detailed responses to my book The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy. It is a true honour for me to have had these three esteemed international law experts carefully read and comment on my work. Their eloquent responses captured aspects of my argument better than I ever could, and I thank them for helping me to think more clearly about how the different facets of the book speak to various audiences, and the work that still needs to be done in understanding gender and other intersecting injustices under ICL.

I was heartened that both Patricia and Valerie responded favourably to my positioning as a ‘critical friend’ of the ICC, and the ICL feminist legal project more broadly. Immersing myself in the critical feminist law literature in recent years, I quickly realised many of its core critiques are similar to those of some feminist political scientists and sociologists who regard feminist engagement with ‘the state’ as a dangerous project, likely only to lead to co-option and shoring up a patriarchal institution (see my analysis of these debates here). While not dismissing the limitations, compromises, challenges, and indeed losses that can come with engagement with any aspect of the law – including ICL – I have also felt some unease with arguments that recommend rejecting the feminist legal project in its entirety. This comes from my deep pragmatic impulse. If gender justice advocates withdraw from engagement with powerful institutions – be they courts, state bureaucracies, or legislatures – these institutions won’t stop regulating our lives. Read the rest of this entry…

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Gender Justice and International Criminal Law: Peeking and Peering Beyond Stereotypes. Book Discussion

Published on December 21, 2016        Author: 
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Louise Chappell unpacks how gender justice advocacy at the International Criminal Court contests the gendered legacies of international criminal law. Deploying a feminist institutionalist framework, Chappell provides an anatomy of these advocacy efforts in the establishment of the Rome Statute regime as well as in the ICC’s actual operations. Chappell offers a detailed road-map of gender at the ICC, and does so through a powerful (and seamless) synthesis of qualitative, quantitative, and expository methodologies. In short: her superb book is a must-read.

Chappell unfurls how gender advocacy nested within the ICC. The ICC, assuredly, is not an island. Concerns about gender justice animate the work of other international courts and tribunals. Both concurrently and previously to the ICC, these other tribunals advanced goals of equal representation in international institutions and criminalized acts of gender- and sexual-based violence. The ICTY, for example, confirmed in Furundžija that rape and other forms of sexual violence in armed conflict are war crimes. It also ruled that rape and sexual violence could constitute the actus reus of torture. The ICTR held in Akayesu that rape can constitute genocide as an act integral to the destruction of a group.  Furthermore, as Darryl Robinson and Gillian MacNeill note, in addition to defining rape the two ad hoc tribunals also ‘recognized many other forms of sexual and gender based violence, including sexual slavery, enforced prostitution, enforced sterilization, sexual mutilation, and public humiliation of a sexual nature.’ The ad hoc tribunals also developed procedural rules of evidence that promoted gender justice by protecting witnesses who came forward to testify. Finally, the Special Court for Sierra Leone merits mention. Its ground-breaking work on sexual slavery and forced marriage as an ‘other inhumane act’ has informed the proceedings currently underway at the ICC against the LRA’s Dominic Ongwen.

Gender justice at the ICC cannot be disentangled from gender justice in the enforcement of international criminal law generally. Read the rest of this entry…

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Gender Justice Legacies at the ICC. Book Discussion

Published on December 20, 2016        Author: 
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Louise Chappell’s The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy is a wonderfully-written account of the recent history of the International Criminal Court’s (ICC’s) role in promoting gender-inclusive justice. Her book demonstrates deep thinking and cogent analysis. It brings together three strands of political and legal theory – gender justice, feminist institutionalism, and the legitimacy of international organizations – to provide a unique analytical perspective on the mandate of the ICC and its implementation of the gender-related provisions in the Rome Statute. Ultimately, her interdisciplinary analysis provides a convincing analysis of gender-related developments within the Rome Statute and within the ICC.

Adopting a definition of gender justice from social theorist Nancy Fraser (p. 5), Chappell approaches the term from three directions: redistribution; identity recognition; and representation. Quoting Fraser, Chappell explains that redistribution focuses on addressing women’s exploitation, deprivation and marginalization (p. 6). Recognition involves instilling institutional patterns that express equal respect and opportunity for women and men (p. 6). Representation is focused on creating new rules and structures of inclusion, often through procedural means (p. 6).

Throughout the book, Chappell approaches her analysis from the point of view of “critical friendship”. Chappell and Mackay define critical friends as those who offer “sympathetic critique and make contextual judgment. They celebrate the ‘small wins’ that feminist insiders may make against the odds, and expose the gendered obstacles and power asymmetries that blunt reformist potential” (p. 9). Read the rest of this entry…

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Beyond a Recitation of Sexual Violence Provisions: A Mature Social Science Evaluation of the ICC. Book Discussion

Published on December 20, 2016        Author: 
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Louise Chappell has penned a significant book – The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy.  Far removed from a recitation of expanded sexual violence provisions within the Rome Statute, or a reiteration of the constricted definition of gender, Chappell sharply defies how to tally whether the International Criminal Court has delivered upon a gender justice mandate that is inextricable from its very institutional legitimacy.  The book tenaciously grapples with Nancy Fraser’s tripartite model of gender justice that necessitates redistribution, recognition and representation in order to generate a transformative justice that can address transnational injustices in a post-Westphalian context.   The author applies a decidedly feminist institutionalism to examine the Court, an innovative judicial mechanism that has inherited legacies from the law and from other international tribunals and courts.  Starting with the vaulted design of the Rome Statute, the book explores the formal and informal functioning of the rules and of the Court as well as the nested or international spatial context in which the ICC operates.

Importantly, throughout this exploration, Chappell identifies as a critical friend, but not an identical twin of the “feminist international legal project” nor is she an adept of the linear triumphalist approach to transitional justice.  She refrains from any attempts to embody an androcentric reasonable person stance. The author acknowledges that the book under-develops the impact of inter-sectional fault lines other than gender, in its “captured” state.  It also consigns the gender jurisprudence to being synonymous with female-related sexual assault cases. Notwithstanding, through the deployment of finely honed theoretical frameworks emerge measured, human-centered and keen observations of the Court’s initial decade as a supra-national provider of gender justice. Two eminent themes that Chappell unwraps, legitimacy of female presence at international judicial mechanisms and ramifications of the Women’s Caucus’ negotiation of the Rome Statute and, another sub silentio theme, the verve of a complex feminist critique of the ICC, merit sustained public attention.  Read the rest of this entry…

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