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Studying various aspects of the relationship between peacemaking and international law, this project used a wide range of data. For the first aspect, which was to examine assumptions underpinning claims about the contribution of... more
Studying various aspects of the relationship between peacemaking and international law, this project used a wide range of data. For the first aspect, which was to examine assumptions underpinning claims about the contribution of international legal mechanisms towards peacemaking, it looked at official documents, press statements, promotional material and academic literature on the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court and that of international commissions of inquiry. It then relied on earlier empirical research, by other researchers and this researcher, to consider the assumptions in light of the empirical evidence. For the second part of the research, which examined the conceptualisation of the relationship between peace and justice in the context of the international law on self-determination, the project obtained thousands of photographs of relevant material in the ...
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Part of the book Mobilising International Law for “Global Justice” (edited by Jeff Handmaker and Karin Arts, forthcoming with Cambridge University Press), this chapter argues that the very first situation before the International Criminal... more
Part of the book Mobilising International Law for “Global Justice” (edited by Jeff Handmaker and Karin Arts, forthcoming with Cambridge University Press), this chapter argues that the very first situation before the International Criminal Court is illustrative of how the globalisation of international criminal justice amplifies some voices while silencing others. The chapter shows how in northern Uganda the globalisation of criminal justice offered a site for what Martti Koskenniemi has called ‘the politics of re-description’ and we give four examples: (1) the struggle between a military approach and reconciliation efforts in the period prior to ICC intervention; (2) the ICC referral as a way to re-describe the conflict and to continue a military approach; (3) the Juba peace process as a negotiation between legal and other approaches and (4) the post-Juba period, in which a political agreement is approached legalistically.
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Written for the forthcoming Oxford Handbook of the Theory of International Law, this chapter analyses the role of ‘theory’ in the field of international criminal law. It finds theory in international criminal law all over the place:... more
Written for the forthcoming Oxford Handbook of the Theory of International Law, this chapter analyses the role of ‘theory’ in the field of international criminal law. It finds theory in international criminal law all over the place: theory is almost irrelevant whilst also highly influential; it is both explicated and covered up; it is developed but also immature. However, it is not just that the state of theory is all over the place; there is no shared understanding of what ‘theory’ in, or of, international criminal law refers to. Theorising the concept of theory itself, the chapter identifies at least four types of ‘theories’ in international criminal law: (1) ‘factual theories’ (theories of a case); (2) ‘operational theories’ (mental schemes that the field employs in its operations, for instance to organise modes of liability, systematise crimes, or classify sentences); (3) ‘foundational theories’ (systems of ideas about the origins, essence and rationales of the field); and (4) ‘external theories’ (theories that try to make sense of international criminal law as a phenomenon, and study the meaning and effects of the field as a whole beyond its stated objectives, usually from a perspective external to international criminal law).Theorising international criminal law is not exclusive to scholars or practitioners: international criminal law is also ‘theorised’ by millions of people who, without considering themselves to be ‘theorists’ or ever using the word ‘theory’, try to make sense of international criminal law as they encounter it in their daily lives. As a result, in addition to the axis along which we find factual, operational, foundational and external theories, we can also identify a further axis, with ‘official’ and ‘popular’ theories at its ends.It is usually when the different types of theories in international criminal law are considered in light of each other that theoretical weaknesses are revealed and, on that ground, the field is labelled as ‘under-theorised’. Perhaps the greatest disconnect is between the official and the popular theories. Tribunals increasingly pay attention to ensuring that the official theories (in particular, the foundational theories) inform the general public’s views, especially in countries where international criminal tribunals intervene. Far less attention, however, is being given to ensuring that popular theories are fed back into the official theories, which in fact have much to gain from connecting with the day-to-day experience of international criminal law. However, for that to happen, official theories of international criminal law must first recognise popular theories as valuable.
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According to the dominant narrative, the right of self-determination became relevant as a matter of law only after the 1960s or even only in the early 1970s. However, by reviving a seemingly forgotten episode in the legal history of self-... more
According to the dominant narrative, the right of self-determination became relevant as a matter of law only after the 1960s or even only in the early 1970s. However, by reviving a seemingly forgotten episode in the legal history of self- determination, this article shows that during the UN Security Council’s second year of operation, in 1947, the United Kingdom invoked the right of self-determination of another people, the Sudanese, as their legal entitlement in its effort to counter Egyptian claims on the Sudan. Giving a strong voice to primary sources, this article narrates how British officials in the Sudan managed to promote in London the idea of Sudanese self-determination, even if only to serve, not challenge their own colonial power and behaviour. They were so successful in doing this that the British Government, despite the UK’s strategic and colonial interests, ultimately invoked self-determination as part of its legal argumentation in the Security Council.
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According to the dominant narrative, the right of self-determination became relevant as a matter of law only after the 1960s or even only in the early 1970s. Reviving a seemingly forgotten episode in the legal history of... more
According to the dominant narrative, the right of self-determination became relevant as a matter of law only after the 1960s or even only in the early 1970s. Reviving a seemingly forgotten episode in the legal history of self-determination, this article, however, shows that during the UN Security Council's second year of operation, in 1947, the United Kingdom invoked the right of self-determination of another people, the Sudanese, as their legal entitlement, in its effort to counter Egyptian claims on the Sudan. Giving a strong voice to primary sources, this article narrates how British officials in the Sudan managed to promote the idea of Sudanese self-determination so successfully in London that the British Government, despite the UK's strategic and colonial interests, ultimately invoked self-determination as part of its legal argumentation in the Security Council.
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This essay, forthcoming in the British Yearbook of International Law, reviews Philippe Sands’ book ‘East West Street’, and the documentary and theatre performance that preceded the book’s release. These works tell unforgettable stories of... more
This essay, forthcoming in the British Yearbook of International Law, reviews Philippe Sands’ book ‘East West Street’, and the documentary and theatre performance that preceded the book’s release. These works tell unforgettable stories of Lviv and Nuremberg, of Hersch Lauterpacht, Rafael Lemkin and Hans Frank, of genocide and crimes against humanity. The book straddles several genres: according to its cover it is ‘part historical detective story, part family history, part legal thriller’. But it is more than that: it is also part psychological drama, part ‘third-generation Holocaust representation’, part Yizkor. This essay argues that it is best read as a life story - the story of Sands’s life. It is ‘the story of his *life*’ in that Sands has again, and better than ever, popularised international law. But it is also ‘the story of *his* life’: Sands himself is the character who binds the stories together. Read as a life story, the book stands out as a unique, unputdownable and unpindownable personal exploration of family silences and histories, that cannot be generalised.
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Forthcoming in Landmark Cases in Public International Law (Hart, 2017), this chapter investigates the ‘landmark’ status of the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Tadic v... more
Forthcoming in Landmark Cases in Public International Law (Hart, 2017), this chapter investigates the ‘landmark’ status of the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Tadic v Prosecutor (1995). The chapter differentiates between two types of landmarks: signposts for other travelers, indicating the direction to be followed, or high-water points, relics of a particular moment in time. This chapter considers the significance of the Tadic case in both senses of landmark. After reflecting upon the case as a matter of diplomatic and legal history, it analyses the interlocutory appeal decided by the Appeals Chamber on 2 October 1995 as a landmark with respect to three areas of international law: general international law, international humanitarian law and international criminal law. It ends with a perspective on the significance of the interlocutory appeal for legal reasoning in international law. It concludes that in some areas ...
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This chapter examines the role of the International Criminal Court (ICC) in conflict prevention in Africa. To that end, it reflects critically on three questions. First, what does the ICC have to do with prevention? Second, what does the... more
This chapter examines the role of the International Criminal Court (ICC) in conflict prevention in Africa. To that end, it reflects critically on three questions. First, what does the ICC have to do with prevention? Second, what does the Court have to do with the prevention of conflict in particular? And finally, even more specifically, what does it have to do with the prevention of conflict in Africa? In addressing these questions, the chapter highlights some of the most frequent assumptions underpinning claims about the ICC and conflict prevention on the continent.
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Opening 'Making and Breaking Peace in Sudan and South Sudan', this chapter introduces the book’s key concepts: peace and peacemaking. The contributions in this volume show that ideas of peace have been contested in the Sudans, and... more
Opening 'Making and Breaking Peace in Sudan and South Sudan', this chapter introduces the book’s key concepts: peace and peacemaking. The contributions in this volume show that ideas of peace have been contested in the Sudans, and that different modalities of peacemaking have both gone together and have competed with each other. This chapter draws on these contributions in order critically to interrogate diverse ideas of peace and practices of peacemaking that have been prevalent in the Sudans. It connects them to their roots in major traditions in political thought and sets out why they are often problematic when applied to complex conflicts such as in the Sudans. Rather than arguing for one specific understanding of peace or modality of peacemaking, this chapter explains why the volume has taken a perspectival approach. Adopting the vantage points of multiple different actors, a perspectival approach foregrounds on-the-ground contestations over different ideas of peace and modes of peacemaking. Understanding what peacemaking has come to mean in the Sudans – how different understandings of peace have been deployed, but also contested, in the processes of ‘making’, and with what effects – allows scholars and practitioners to reconsider prospects for peace in the region, and well beyond.
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... Sarah Nouwen (PhD candidate International Law Cambridge (UK), MPhil International Relations Cambridge (UK), LLM Utrecht University School of Law (the Netherlands)) worked in Sudan as a consultant to the ... His political rival within... more
... Sarah Nouwen (PhD candidate International Law Cambridge (UK), MPhil International Relations Cambridge (UK), LLM Utrecht University School of Law (the Netherlands)) worked in Sudan as a consultant to the ... His political rival within the SLM/A, Abdul Wahid, did not. ...
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This panel was convened at 2:15 pm, Friday, April 5, by its moderator, Ademola Abass of the Institute for Comparative Regional Integration Studies, United Nations University, who introduced the panelists: Theodore Christakis of the... more
This panel was convened at 2:15 pm, Friday, April 5, by its moderator, Ademola Abass of the Institute for Comparative Regional Integration Studies, United Nations University, who introduced the panelists: Theodore Christakis of the University of Grenoble; Francis M. Ssekandi, Lecturer-in-Law, Columbia University Law School; and Sarah Nouwen of Cambridge University. INTRODUCTORY REMARKS BY ADEMOLA ABASS * When the UN Charter was adopted in 1945, it was envisaged that regional organizations would play certain roles in respect of peace and security. This role, it needs to be emphasized, was only the product of an afterthought. Initial discussions during the United Nations Conference on International Organization (UNCIO) that led to the creation of the UN Charter did not include the possibility of regional organizations playing any peace and security role. The UN Charter provides, in Chapter VIII, for regional organizations to play both pacific and enforcement roles in respect of peace and security. Whereas these organizations, which are organically referred to in the UN Charter as regional arrangements or agencies, could settle disputes among their members peacefully without involving the UN Security Council (Article 52), they are forbidden by Article 53 to take enforcement action without Security Council authority. The Charter also empowers the Security Council to use regional organizations for such actions as it deems fit. It is probably correct to state that in no other continent has the role envisaged for regional organizations in 1945 undergone such profound change and transformation than in Africa. Not only have African regional organizations become, by far, the most actively engaged with peace and security (at least insofar as being physically involved in such matters is concerned), they have also been extremely proactive in interpreting Chapter VIII provisions in a manner that has enabled them continuously to undermine the constitutional structure of the Chapter's framework. Up until about 1990, the majority of African regional organizations were essentially economic groupings with little or no competence in maintaining peace and security among their member states. This situation was owed partly to the Cold War, which ensured that regional organizations would not obtain the required UN Security Council authorization for undertaking muscular military operations among their member states, and partly to the fact that African states were themselves notoriously protective of their sovereignty. Thus, any talks of military intervention by African organizations (or any organization, for that matter) during this time were a non-starter. One serious consequence of the inability of the UN to respond to conflicts in an equitable and timely fashion is the opening up of a subsidiarity space for regional organizations. African organizations, coming from a region that has unarguably been the worst hit by the UN's selective intervention machinery, began to tackle African conflicts from 1990. From the brave, if neophytic, intervention by ECOWAS in Liberia and Sierra Leone between 1990 and 2003, to the virtual irrelevance of the African Union in the resolution of the Libya and Ivory Coast debacles in 2011 and 2012, African organizations have played varying roles in maintaining peace and security on the continent. Naturally, interventions by African organizations in armed conflicts have produced some costly mistakes, just as they have also authored some modest gains. Serious lessons have (and are still being) learned as the process continues. The role of African regional organizations in peace and security continues to change in key areas, both in respect of their member states and, more importantly, in their relation to the UN Security Council. With regard to their member states, some African organizations have been able to adopt treaties, which enable them to disaggregate or altogether dispense with the consent of their members before they can take enforcement action in response to their conflicts. …
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Part of a special issue on the proposed Convention on the Prevention and Punishment of Crimes against Humanity in the Journal of International Criminal Justice, this essay does not comment on what is in the draft Convention, but on what... more
Part of a special issue on the proposed Convention on the Prevention and Punishment of Crimes against Humanity in the Journal of International Criminal Justice, this essay does not comment on what is in the draft Convention, but on what is not in it: consideration of the demands of a negotiated settlement to end armed conflict or political oppression. In the context of a negotiated settlement, the essence of transitional justice is the pursuit of justice in a way that facilitates the simultaneous pursuit of peace and reconciliation. Reading the draft articles and commentaries through this transitional-justice lens, the essay reflects upon the proposed Convention’s implications for attempts to transition from conflict to peace and from oppression to democracy. With the aim of opening up a debate, it poses a political question to states — essentially about the meaning of justice and who should decide on that meaning — and a doctrinal question to the International Law Commission — about the current status of amnesties in international law.This article was written as part of a research programme supported by the Economic and Social Research Council (ES/L010976/1), the Leverhulme Trust (PLP-2014-067), and the Isaac Newton Trust (RG79578)
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In its Taylor decision the Special Court for Sierra Leone denied immunity ratione personae to the, at the time of the indictment, President of Liberia. This article first analyzes the legal reasoning of that decision. The Court's... more
In its Taylor decision the Special Court for Sierra Leone denied immunity ratione personae to the, at the time of the indictment, President of Liberia. This article first analyzes the legal reasoning of that decision. The Court's finding that it is an international court is approved; the consequence it attaches to that finding is criticized. The decision is then presented as an illustration of the negative consequences of relying upon controversial elements of the ICJ's Arrest Warrant case. It is suggested that instead of the distinction between national and international courts, the difference between criminal responsibility and procedural immunity could have been the basis for the reasoning of the ICJ and Special Court.
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Part of the book Mobilising International Law for “Global Justice” (edited by Jeff Handmaker and Karin Arts, forthcoming with Cambridge University Press), this chapter argues that the very first situation before the International Criminal... more
Part of the book Mobilising International Law for “Global Justice” (edited by Jeff Handmaker and Karin Arts, forthcoming with Cambridge University Press), this chapter argues that the very first situation before the International Criminal Court is illustrative of how the globalisation of international criminal justice amplifies some voices while silencing others. The chapter shows how in northern Uganda the globalisation of criminal justice offered a site for what Martti Koskenniemi has called ‘the politics of re-description’ and we give four examples: (1) the struggle between a military approach and reconciliation efforts in the period prior to ICC intervention; (2) the ICC referral as a way to re-describe the conflict and to continue a military approach; (3) the Juba peace process as a negotiation between legal and other approaches and (4) the post-Juba period, in which a political agreement is approached legalistically.
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Published on April 17 2020The last issue of EJIL’s 30th anniversary volume opens with our ‘Afterword’ rubric, in which Janne E. Nijman, Francesca Iurlaro and Benjamin Straumann react to Martti Koskenniemi’s EJIL Foreword, ‘Imagining the... more
Published on April 17 2020The last issue of EJIL’s 30th anniversary volume opens with our ‘Afterword’ rubric, in which Janne E. Nijman, Francesca Iurlaro and Benjamin Straumann react to Martti Koskenniemi’s EJIL Foreword, ‘Imagining the Rule of Law: Rereading the Grotian “Tradition”’, published in our first issue of the year. The Articles section opens with a contribution by Raffaela Kunz, who analyses the intricate interplay between human rights courts and domestic courts, portraying the diverse and at times even conflicting roles performed by national courts. Michelle Burgis-Kasthala shifts the focus to the civil war in Syria and evaluates the work of the Commission for International Justice and Accountability, which, she argues, may be characterized as ‘entrepreneurial justice’. Francisco de Abreu Duarte concludes this section by critically reflecting on the jurisdictional monopoly of the European Court of Justice. Taking the investment court system as a case study, he not only examines the ‘final say’ of the Court but also the power-grabbing concept of autonomy of the European Union as well as its external implications and impact. To mark EJIL’s 30th Anniversary our Roaming Charges in this issue presents a kaleidoscope of all Roaming Charge photographs over the last nine years
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This article argues that it is important for the International Court of Justice to be given an opportunity, for instance through a request for an Advisory Opinion, to explain what exactly it meant when it suggested that the ordinarily... more
This article argues that it is important for the International Court of Justice to be given an opportunity, for instance through a request for an Advisory Opinion, to explain what exactly it meant when it suggested that the ordinarily applicable international law on immunities need not be an obstacle “before certain international criminal courts, where they have jurisdiction”. Two international criminal courts have built a structure of case law on this one obiter comment, which it seems unable to support.