Faculty Bibliography

Should we use the language of international criminal law (ICL) to discuss, analyze, and address Western policies of migration control? Such policies have included or resulted in indefinite and inhumane detention, deportations, including through practices of push- and pull-backs and numerous deaths of migrants attempting to cross land or sea borders. And yet, recourse to ICL's conceptual and rhetorical apparatus, often reserved for “unimaginable atrocities,” may seem ill-fitting and an emotive stretch of doctrine. Drawing from international strategic litigation practice on Australian and European policies, this article examines whether the legal concept of crimes against humanity can apply to the deaths, detention, and deportation of migrants, as part and consequence of Western policies of migration control. As migration control policies involve increasingly sophisticated practices of outsourcing and responsibility avoidance, I further ask whether the tools ICL has developed to describe system criminality can trace individual liability against the distance created by such policies. I also inquire into the potential that the transnational nature of migration and the spreading of anti-migration policies have in activating the jurisdiction of courts and the prioritization of the role of the International Criminal Court. Finally, I consider the danger of fetishizing an international punitive approach, before offering some thoughts that aim to bridge a critical approach to international criminal law with its use in meaningful strategic litigation. Throughout the Article, I argue that applying the categories of ICL to Western policies of migration control can contribute to revealing both the potential and the limits of the regime and its institutions, as well as the structures of asymmetry and injustice present both in anti-migration policies and in international criminal law itself.

What should be the role of law in response to the spread of artificial intelligence in war? Fuelled by both public and private investment, military technology is accelerating towards increasingly autonomous weapons, as well as the merging of humans and machines. Contrary to much of the contemporary debate, this is not a paradigm change; it is the intensification of a central feature in the relationship between technology and war: double elevation, above one’s enemy and above oneself. Elevation above one’s enemy aspires to spatial, moral, and civilizational distance. Elevation above oneself reflects a belief in rational improvement that sees humanity as the cause of inhumanity and de-humanization as our best chance for humanization. The distance of double elevation is served by the mechanization of judgement. To the extent that judgement is seen as reducible to algorithm, law becomes the handmaiden of mechanization. In response, neither a focus on questions of compatibility nor a call for a ‘ban on killer robots’ help in articulating a meaningful role for law. Instead, I argue that we should turn to a long-standing philosophical critique of artificial intelligence, which highlights not the threat of omniscience, but that of impoverished intelligence. Therefore, if there is to be a meaningful role for law in resisting double elevation, it should be law encompassing subjectivity, emotion and imagination, law irreducible to algorithm, a law of war that appreciates situated judgement in the wielding of violence for the collective.

The armed drone, as an object and a symbol, is everywhere: in the news, in popular culture, in scholarship. Through and beyond its aesthetic and technical features, this chapter argues that the drone signifies the changing relationship between law and war. The object communicates a set of promises, of war as precise and asymmetrical governance: promises that this chapter assesses and critiques through a discussion of the object’s material and symbolic functions. The drone is very real, but it is also a symbol, a myth, a fixture in our imagination. Indeed, the very image accompanying this chapter, which is considered to be ‘the most widely reproduced image’ of a drone, is tellingly revealed to be a construct, a fiction, superimposed on stock images of the Afghan landscape. The very real object of the armed drone is appropriated, serving as a language to convey and debate the hopes and anxieties over what it signifies, namely the new way of war. To the extent that this new way of war is accepted as ‘the new paradigm’, the object serves Barthes’ ultimate understanding of the myth, namely that ‘in the eyes of the myth-consumer…it transforms history into nature’. History can be contested; it is ongoing; its course can be altered. Nature is entrenched. The object, by compellingly communicating the myth of ‘the new paradigm’, imposes it. International legal language is at the very center of the tension between the drone’s reality and its promise. International lawyers debate the compatibility of (the use of) drones with the principles of distinction and proportionality, their contribution to the creation of a borderless battlefield and the effects of this to the sovereignty of (weak) states, the classification of combatants and individuals who can be targeted, and the overall manifest lack of transparency and accountability in their use. The armed drone’s significance in international law and international legal debate can be explored through three perspectives/images: the image of the object itself as proliferated in the media, the image(s) the object generates for the targeters, and the image of the object for the targeted.

In recent years, Greece has inflicted widespread inhuman and degrading treatment on asylum seekers. The European Union border agency Frontex has knowingly exposed asylum seekers to such treatment in Greek detention centres. This article argues that acts of Greek and Frontex agents may lead to individual responsibility for crimes against humanity under Article 7 1. (e), (h) and (k) of the Rome Statute. Investigation of such acts remains unlikely, not due to the relevant doctrine, but due to a popular imagination of crimes against humanity as radically evil acts. But International Criminal Law should not only aim to punish radically evil acts. Equally important is seemingly banal violence that appears as an inevitable by-product of global social and economic structures. Such is the violence currently wielded against asylum seekers. Confronting the latter category requires the ICC Prosecutor to realize the political nature of her judgement.