Robert Cryer’s research while affiliated with WWF United Kingdom and other places

In the Kiobel case a number of issues of international law arose, albeit almost sub silentio. International law is conspicuously absent from the majority opinion authored by Chief Justice Roberts. In terms of express reference to international law the decision, as a whole, is probably a disappointment to international lawyers, and perhaps also to the many amicus curiae. That said, Justice Breyer (writing for four members of the Court), did in the end look at international law, and investigated whether universal (criminal) jurisdiction existed over the relevant conduct. The reason for this, in Justice Breyer’s opinion, was that there was a strong US national interest in not being seen as a safe haven for those who have undertaken conduct that is sufficiently condemned that universal criminal jurisdiction exists over it. This, for Breyer, had implications for both the substantive and procedural questions relating to civil jurisdiction. The extent to which Breyer’s opinion is informed by, supported by and consistent with international law will be investigated. This will also encompass a discussion of the relevance of criminal jurisdiction as to the extent of civil jurisdiction. The piece concludes that with Breyer’s opinion, at least, a national interest in upholding international law can be seen, and one that is not inconsistent with the international law on jurisdiction.

This article seeks to investigate the question of imputation as it is understood in the law of England and Wales, and what insights it may have for international criminal law. It begins with some reflections on the (perhaps stereotyped) approach to criminal law in England and Wales, and the common law more generally, emphasizing the result-oriented, inductive approach. This way of seeing things can be seen as eschewing theory, but actually reflects unidentified theoretical commitments. From there this contribution moves on to explain the law of complicity in England and Wales, comparing it to how international criminal law, especially in the International Criminal Tribunal for the former Yugoslavia, treats general principles of liability. It then briefly mentions the other relevant crimes that exist in the law of England and Wales. The work then concludes with a plea for international criminal lawyers to overcome their national backgrounds and training, and develop reflexive principles of liability that are appropriate to, and reflect, the nature of offending in the context of international crimes. To further this it is suggested that those who are interested in international criminal law engage in a process where a series of situations are proposed, and lawyers and ethicists from across the spectrum discuss the appropriate results. From there some foundational principles may be developed that could form the basis of a more sophisticated approach to liability for international crimes.

This article investigates the difficult issues that have been raised in relation to witness tampering before international criminal courts. This is a significant problem for international criminal courts and tribunals, but has not yet been the subject of a great deal of comment. The article begins by setting out the difficulties that the courts and tribunals have encountered, through a discussion of their judgments on this point. It then turns to the black-letter law that the courts and tribunals have adopted to attempt to counter witness tampering. However, a description of the law alone cannot give a full picture of the difficulties that witness tampering, and protecting witnesses from it, present to international criminal courts and tribunals. These are explained, in part, through the fact that international criminal courts and tribunals operate in the absence of an effective international enforcement mechanism. This, and the conflict/post-conflict context against which those bodies tend to operate, is discussed, in part through the lens of the complementarity paradox identified by Paulo Benvenuti. The article concludes that although lessons can be learned from domestic approaches, the main limitation is the absence of any enforcement power at the international level, and that it is unlikely that one is likely to be created soon.

When the International Criminal Court (‘ICC’) was set up, the understanding about complementarity was that the Court was to exist in a slightly antagonistic relationship with domestic jurisdictions. The idea was that the ICC would prod states them with the not so implicit threat that, if they did not prosecute international crimes, the ICC would step in and do so. However, even early on some scholars noted the ‘complementarity paradox’, that the ICC would have to rely on the assistance of authorities that it had declared to be unwilling or unable to prosecute those crimes. As a result, the Prosecutor has attempted to move towards a more constructive relationship between the ICC and national jurisdictions, assisting them, and largely shying away from prosecuting governmental officials on the basis of a policy of ‘positive complementarity’, but with one exception. This is Sudan. Following the referral of the situation in Darfur to the Court by the Security Council in Resolution 1593, the Prosecutor began in a diplomatic idiom, relying on the fact of inactivity rather than unwillingness or inability, but then had to move to declaiming the lamentable failure of Sudan either to prosecute government officials suspected of crimes or to permit the ICC to take custody of them. This has reached its apogee in the indictment of the President of Sudan, Omar al Bashir, for war crimes, crimes against humanity and genocide. This chapter will investigate the way in which the attitude of the Prosecutor towards Sudan reflects the original concept of complementarity, and thus seek to reflect on the difficulties that have accompanied the concept, perhaps fromthe start. It will also look at the extent to which the Security Council could have, or should have, made any difference.

This is an amicus curiae brief, submitted to the International Criminal Court Appeals Chamber with permission of that chamber, in the case of Prosecutor v Laurent Gbagbo. The brief raises concerns about unnecessarily stringent approaches to crimes against humanity, as was arguably shown in certain aspects of the Gbagbo Adjournment Decision. The brief argues, inter alia, that ‘multiple’ must not be conflated with ‘widespread’, that ‘policy’ must not be conflated with ‘systematic’, that a policy need not be explicit or formally adopted, and that policy can be inferred from the implausibility of the crimes being unconnected individual action. The brief offers national and international jurisprudence highlighting that ‘attack’ and ‘policy’ are not onerous thresholds. The Appeals Chamber decided not to address those issues in that appeal, which was quite plausible and appropriate given its other findings and the scope of the appeal. Happily, many of the concerns raised and solutions proposed in the brief have been addressed and reflected in subsequent ICC cases, including the Katanga trial chamber judgment and the Gbagbo confirmation decision.

This piece looks at the approach of Antonio (Nino) Cassese to aspects of the sources of international law. After a small set of personal reflections, it begins by discussing Cassese’s general approach to international law, flagging up the co-existence of positivist and more naturalistic/humanistic approaches in his academic writings. It then moves on to how Cassese brought these approaches to his judicial work, in a manner which is termed ‘presentational positivism’. The piece explains this through an analysis of his contribution to the Tadić, Erdemović, and Kupreškić et al. cases, and attempts to explain how what, at first view, might seem to be different approaches in those cases to international law in fact reflect Cassese’s broader, humane view of international law. It then turns to his judicial and academic reflections on the authority of case law and how that relates to the level of reasoning they contain. This is investigated with particular reference to the difference of opinion between the ICTY and International Court of Justice (ICJ) in the Tadić and Bosnian Genocide cases, with a specific focus on how he sought to engage the ICJ in reasoned inter-judicial debate. It concludes with a comparison of Cassese with another major figure of 20th-century international law who sought to reconcile humanitarian impulses with often positivist presentations of international law, Sir Hersch Lauterpacht.

This market-leading textbook gives an authoritative account of international criminal law, and focuses on what the student needs to know - the crimes that are dealt with by international courts and tribunals as well as the procedures that police the investigation and prosecution of those crimes. The reader is guided through controversies with an accessible, yet sophisticated approach by the author team of four international lawyers, with experience both of teaching the subject, and as negotiators at the foundation of the International Criminal Court and the Rome conference. It is an invaluable introduction for all students of international criminal law and international relations, and now covers developments in the ICC, victims' rights, and alternatives to international criminal justice, as well as including extended coverage of terrorism. Short, well chosen excerpts allow students to familiarise themselves with primary material from a wide range of sources. An extensive package of online resources is also available.

INTRODUCTION: In spite of seeing ourselves as living in a modern international legal world, we still live in an era in which Latin seems to remain very much de rigueur. Jus ad bellum and jus in bello are part of our common lexicon, as are more controversial notions as jus cogens and erga omnes obligations. In the context of discussions about the modern fragmentation of international law, we still cannot get away from this, with our talk of lex specialis and sui generis regimes. Against this background, we are increasingly, as a scholarly community, being asked to accept another Latin-monikered form of law, the jus post bellum, or, perhaps, in Christine Bell’s terms, the lex pacificatoria. This chapter seeks to raise a number of caveats in relation to such suggestions. It is not the intention of this piece to implacably oppose jus post bellum as a concept. As we will see, it is, to say the least, a broad church, covering those who seek to use philosophy to investigate matters such as reparations and reconstruction as well as those who argue for a new form of law to deal, in toto, with post-war issues, in particular regime change. The former approach is not the target of this critique. This piece seeks to question the necessity of the creation of a whole new area of law to deal with post-conflict problems. We will proceed by way of some definitional issues, then raise some historico-methodological concerns before moving on to some seemingly technical legal difficulties, but difficulties that illustrate the difficulties of persuading states to integrate just war theory into modern international law. The chapter will finish with a critique of the more assertive claims of what jus post bellum ought to look like, in particular focusing on the work of Carsten Stahn and Brian Orend, two of the most influential writers who support the creation of a separate jus post bellum.