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A Belated Thought on Wikileaks

by Graham Dumas (J.D. Candidate 2011)

I am a bit late in writing about the Wikileaks issue, but I would like to propose here a slightly different way of viewing the question through the lens of systems engineering. For a number of reasons, Wikileaks has presented to members of the military a simplified and seemingly less painful way to report violations of IHL, leading to a breakdown in, or rather an excursion from, the process the U.S. Military has been using to report, identify, prosecute, and ultimately prevent violations of military law and the law of armed conflict. To remedy this problem, the military should investigate both the demand and supply sides of the information pipeline, simplify the reporting process, and initiate a campaign to educate servicemen of the internal reporting channels available to them, the need to prevent extraneous leaks to the public, and the penalties for releasing classified information.  More after the jump.

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Book Review: Begley’s Why the Dreyfus Affair Matters

This installment in our ongoing series of book reviews takes on Why the Dreyfus Affair Matters by lawyer/novelist Louis Begley.  Hugh Murtaugh’s complimentary review of Begley’s work intertwines the Dreyfus and the Guantanamo narratives.  Both Begley and this reviewer conclude with the same lament from Proust: “As for asking oneself about its value, not one thought of it now . . . . It was no longer shocking. That was all that was required.”

By Hugh K. Murtagh

The story of Guantanamo Bay is not over. President Obama will not be able to shutter the island prison until at least 2011, and then only by moving the remaining detainees to a stateside facility. Time passes, details emerge: the “Camp Delta Standard Operating Procedures” find their way onto the internet; a military judge will not allow the prosecution of a terrorist leader because he has been so badly abused; Sami al-Hajj, the al-Jazeera journalist held for years on changing unsubstantiated charges, is finally released to Sudan, with his diaries.

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Cohen on Human Rights in China

On Saturday, the New York Times published an interview with NYU Professor Jerome A. Cohen regarding legal developments in China and the country's human rights record.  From the interview: “There are now some 200,000 judges, close to 180,000 prosecutors, roughly…

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Koskenniemi the scholar vs. Koskenniemi the commissioner

Sahib Singh of the University of Vienna has posted a paper on SSRN titled The Ethics of Fragmentation: Formalism’s Fallacies and the Potential of International Law.  The paper is interesting not least because it takes a serious and critical work at the fragmentation report of 2006, prepared for the International Law Commission by Martti Koskenniemi.  Singh’s paper investigates the work of a first-rate scholar closely affiliated with NYU Law’s Hauser Global Law School program, and for that alone it would be worth reading for NYU international law students.  But Singh’s paper is fascinating because it investigates the tension between Koskenniemi’s personal work and the report.  Abstract after the jump.

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Book Review: Clarke’s Fictions of Justice

This edition of our ongoing series of book reviews offers a critical but ultimately positive take on Kamari Maxine Clarke’s Fictions of Justice: The International Criminal Court and the  Challenge of Legal Pluralism in Sub-Saharan Africa. This book review is particularly timely, as the recent ECCC verdict in the “Duch” trial reminds us of that court’s landmark decision earlier this summer, which rejected one controversial form of “joint criminal enterprise” liability.  Kelly Geoghegan’s review, published in issue no. 42:3 of JILP, takes the opportunity to level her own criticism, or skepticism, at JCE theory.

By Kelly Geoghegan

Fictions of Justice is Kamari Maxine Clarke’s searching anthropological critique of both the international rule of law movement and its flagship tribunal, the International Criminal Court (ICC). Clarke explores the unspoken assumptions, or “fictions,” that underlie this movement, showing that these assumptions privilege Western ideas of justice over African ones and obscure the post-colonial economic forces behind Africa’s turmoil. Ultimately, Fictions of Justice is an anthropological work, not a legal text. Still, the book has potent insights to offer legal practitioners, particularly activists working “on behalf of victims” to achieve “universal” ideals of justice.

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The Effects of the ICJ Decision on Kosovo (if any) on the “Frozen Conflicts” of the Former Soviet Union

by Graham Dumas (J.D. Candidate 2011)

Note: This is a cross-post from my Russia-specific blog, Onion Domes and Oligarchs.

That yesterday’s advisory opinion by the International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, was decided on extremely narrow grounds has already been noted elsewhere in the blogosphere. Further, its status as an advisory opinion of course means that it is non-binding (though widely respected) and pertains only to the question asked of the Court by the U.N. General Assembly.

Nevertheless, it may be interesting to apply to the context of the frozen conflicts in the former Soviet Union some of the principles discussed in and generated by the Court’s Kosovo opinion. After all, political leaders in Moscow have frequently (and threateningly) cited Kosovo as a precedent for the independence of Abkhazia and South Ossetia, despite the obvious and numerous differences between these cases. A brief bit of analysis after the jump.

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ICJ Rules on Kosovo Independence

The International Court of Justice today held that international law did not prohibit Kosovo’s declaration of independence, while sidestepping the larger issue of Kosovo’s statehood.  All of the opinions can be found here, but we are happy to host the opinion of the court on this JILP Forum, since the ICJ’s site has been difficult to access as of late.

In a way, as Chris Borgen notes at Opinio Juris, this result should not come as a surprise, since international law generally does not seem to have much to say about declarations of independence.  The Court sidesteps the trickier problem of the lex specialis created by S.C. Res. 1244 (and the subsequent Constitutional Framework adopted by UNMIK) by holding that the declaration did not constitute an act of one of the Provisional Institutions of Self-Government.  This lays the groundwork for the Court to conclude that the declaration essentially took place outside the scope of S.C. Res. 1244 and the framework.  Preliminary thoughts after the jump.

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Implications of European De-Integration for International Law

By Matthew Turk

The G20 Summit

At the recent G20 Summit, European leaders butted heads with the Obama administration by opposing further stimulus spending and calling for greater fiscal “austerity.”  The move to fiscal tightening, even during unsteady economic times, reveals the profound affect that the Greek debt crisis has had on policymakers in other European countries.  In particular, it indicates a common concern that growing public debt poses near-term challenges to the continued viability of an economically integrated European Union.  The potential unraveling of the legal-institutional structures of European integration uproots assumptions about international law held by commentators across the ideological spectrum.

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