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The Humanization Of War Reparations: Combatant Deaths And Compensation In Unlawful Wars, Hannes Jöbstl, Dean Rosenberg

Michigan Journal of International Law

Recent events have sparked a renewed interest in the law and practice of war reparations. While today it is uncontroversial that unlawful uses of force, including acts of aggression, entail the obligation of the wrongdoing state to make reparations, including by way of compensation, the precise extent of this obligation remains subject to debate. One particularly contentious aspect is whether, and to what extent, states that violate the prohibition on the use of force are obligated to pay compensation not only for harm caused to civilians and civilian objects, but also for damage caused to the armed forces of the …

Trade-Based Solutions For Revitalizing Post-Conflict Economies, Ryan R. Migeed

Michigan Journal of International Law

International trade improves efficiency in home markets, creates new sources of demand for domestic industries, and boosts worker productivity. However, some types of trade are better than others for reviving the economies of countries emerging from internal or international armed conflicts. This note evaluates existing trade mechanisms that ostensibly help developing countries but fail to actually do so. It ultimately recommends the use of investor-state partnerships over trade-based mechanisms as the appropriate tool for improving the economies of post-conflict states. Part I evaluates a number of these existing trade mechanisms, including preferential trade agreements and the General System of Preferences. …

The Gloss Of War: Revisiting The Korean War’S Legacy, Mary L. Dudziak

Michigan Law Review

In war powers analysis, reliance on the interpretive method of historical practice, also called the “gloss of history,” has made history a technology of the forever war. This approach draws upon the history of U.S. military conflict to interpret the scope of presidential war power and embeds past actions into the separation of powers. There is a crucial flaw in this methodology, however. The understanding of history in historical gloss is not informed by the changing historiography of war. This has led to a divergence between the “history” in legal authority and the revised historical understanding in scholarly works of …

Is Climate Change A Threat To International Peace And Security?, Mark Nevitt

Michigan Journal of International Law

The climate-security century is here. Both the United Nations Intergovernmental Panel on Climate Change (“IPCC”) and the U.S. Fourth National Climate Assessment (“NCA”) recently sounded the alarm on climate change’s “super-wicked” and destabilizing security impacts. Scientists and security professionals alike reaffirm what we are witnessing with our own eyes: The earth is warming at a rapid rate; climate change affects international peace and security in complex ways; and the window for international climate action is slamming shut.

Sexual Slavery As A War Crime: A Reform Proposal, Alessandro Storchi

Michigan Journal of International Law

For the first time in the history of international criminal law, the ICC Elements of Crimes included a statutory definition of sexual slavery as a war crime and as a crime against humanity. Such definition is derived from, and in fact almost identical to, the definition of enslavement in the same text. In July 2019, that language for the first time was adopted and applied in the conviction of general Bosco Ntaganda, the first ever conviction for sexual slavery as a war crime and as a crime against humanity at the ICC, as part of the situation in the Democratic …

The Fallacy Of Contract In Sexual Slavery: A Response To Ramseyer's "Contracting For Sex In The Pacific War", Yong-Shik Lee, Natsu Taylor Saito, Jonathan Todres

Michigan Journal of International Law

Over seven decades have passed since the end of the Second World War, but the trauma from the cruelest war in human history continues today, perpetuated by denial of responsibility for the war crimes committed and unjust attempts to rewrite history at the expense of dignity, life, and justice for the victims of the most serious human rights violations. The latest such attempt is a troubling recharacterization of the sexual slavery enforced by Japan during the Second World War as a legitimate contractual arrangement. A recent paper authored by J. Mark Ramseyer, entitled “Contracting for Sex in the Pacific War,” …

World Peace And Gender Equality: Addressing Un Security Council Resolution 1325’S Weaknesses, Elizabeth Griffiths, Sara Jarman, Eric Talbot Jensen

Michigan Journal of Gender & Law

The year 2020 marks the twentieth anniversary of the passage of United Nations Security Council Resolution (“UNSCR”) 1325, the most important moment in the United Nations’ efforts to achieve world peace through gender equality. Over the past several decades, the international community has strengthened its focus on gender, including the relationship between gender and international peace and security. National governments and the United Nations have taken historic steps to elevate the role of women in governance and peacebuilding. The passage of UNSCR 1325 in 2000 foreshadowed what many hoped would be a transformational shift in international law and politics. However, …

Resolutions Without Resolve: Turning Away From Un Security Council Resolutions To Address Conflict-Related Sexual Violence, Emma K. Macfarlane

Michigan Journal of Gender & Law

In 2008, the United Nations first recognized rape as a war crime with the passage of U.N. Security Council Resolution 1820. Since then, the fight against conflict-related sexual violence has become a frequent subject of Security Council Resolutions. But what, if anything, has changed? Wartime sexual violence is still prevalent today and shows no signs of slowing down. This Note argues that Security Council Resolutions are not an effective method to prevent conflict-related sexual violence. The procedural weaknesses in passing Security Council Resolutions and the structure of the Security Council itself may do more harm than good to the efforts …

Restoring The Power Of The Convening Authority To Adjust Sentences, Jacob R. Weaver

Michigan Law Review

In 2013, Congress abrogated the power of certain military officers to reduce court-martial sentences, thereby eliminating a military defendant’s best hope for efficient and effective relief from common legal errors in the military justice system. While the overhaul of the Uniform Code of Military Justice (UCMJ) in 2016 promised significant reform, it ultimately failed to substantially reduce common legal errors. This Note analyzes how the 2013 and 2016 reforms have combined to prevent military defendants from receiving timely and adequate relief. In light of this analysis, this Note suggests an amendment to the UCMJ that would restore to certain officers …

Different Problems Require Different Solutions: How Air Warfare Norms Should Inform Ihl Targeting Law Reform & Cyber Warfare, Christian H. Robertson Ii

University of Michigan Journal of Law Reform

On February 19, 2018, United Nations Secretary-General Antonio Guterres claimed that he was “absolutely convinced” that “the next war will begin with a massive cyber-attack to destroy military capacity . . . and paralyze basic infrastructure.” The Secretary-General’s greatest concern, however, is that he believes “there is no regulatory scheme for that type of warfare, it is not clear how the Geneva Convention or international humanitarian law applies to it.” Although Additional Protocol I to the Geneva Conventions (AP I) targeting laws generally identify who and what States may target in war, it expressly limits itself to attacks affecting people …

The Legal Architecture Of United Nations Peacekeeping: A Case Study Of Unifil, Layan Charara

Michigan Journal of International Law

This Note explores the ways UNIFIL is a unique peacekeeping force that can still teach broader lessons about UN peacekeeping It is organized into four parts: Part I provides a contour of UN peacekeeping operations; Part II chronicles the history of UNIFIL; Part III analyzes the current legal regime with respect to UN peacekeeping; and Part IV surveys solutions offered in the past and recommends more apposite courses of action to strengthen the legal recourse available to peacekeepers and their families.

This We’Ll Defend: Expanding Ucmj Article 2 Subject Matter Jurisdiction As A Response To Nonconsensual Distribution Of Illicit Photographs, Nicholas Karp

University of Michigan Journal of Law Reform

In March 2017, it was revealed that current and former armed service members shared thousands of nude photos of their female counterparts over social media. Although some of these photos were taken with the women’s consent, almost none of them were distributed with the women’s consent.

Victims have little legal recourse. Military law is silent on the matter of non-consensual distribution. Federal civilian law speaks only to interstate stalking, domestic violence, and harassment, while only thirty-four states have revenge porn laws that sufficiently criminalize nonconsensual distribution of illicit photographs. Further complicating matters, the perpetrator’s military status as active duty, reservist, …

Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb

Michigan Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect servicemembers from discrimination by civilian employers and to provide servicemembers with reemployment rights. Recent circuit court decisions, however, have maimed these protections by ruling that mandatory arbitration is permissible under USERRA. This Note argues that such rulings conflict with USERRA’s plain language, statutory structure, and purpose. Ultimately, in light of strong public policy considerations, this Note contends that mandatory arbitration should not be permissible under USERRA and proposes that Congress amend the Act to explicitly prohibit arbitration.

Looking Backward And Forward At The Suspension Clause, G. Edward White

Michigan Law Review

Review of Amanda L. Tyler's Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay.

Moral Disarmament: Reviving A Legacy Of The Great War, James D. Fry, Saroj Nair

Michigan Journal of International Law

In short, this Article examines the concept of moral disarmament using a broad-spectrum definition of humanity rather than the traditional IHL perspective. Rather than referring to human rights that are impacted by armaments, this Article looks at methods through which human initiative can create a society that truly hungers for disarmament. In other words, this Article points out that the extent of change that society can bring about through education, intellectual cooperation, peace initiatives, international affairs awareness, and intercultural communication can be reflected in the economic growth, social growth, and development of states. The aim is to help the reader …

Justice In Syria: Individual Criminal Liability For Highest Officials In The Assad Regime, Seema Kassab

Michigan Journal of International Law

Seven years have passed since revolution broke out in Syria in March of 2011. During those six years, hundreds of thousands of Syrians lost their lives, millions of Syrians were internally displaced or left the country seeking refuge, and a beautiful and diverse country was hijacked and terrorized by civil war. Every day in Syria, people are detained, tortured, raped, and killed. Attacks on homes, hospitals, markets, and schools are common occurrences. At this stage of the conflict, there is little doubt that it is the most horrific and dire humanitarian crisis since World War II. The conflict began as …

The Aba Rule Of Law Initiative Celebrating 25 Years Of Global Initiatives, M. Margaret Mckeown

Michigan Journal of International Law

Relying on extensive reports, program documentation, and interviews with important actors in the rule of law movement, this article will explore how one key player in the international-development field—the ABA—has furthered rule of law values through its global programs. The first half of the article surveys the ABA’s involvement in rule of law initiatives. Part I explores the origins of the ABA’s work in this field, which date back to the organization’s founding and took shape after the demise of the former Soviet Union. Part II surveys the expansion of the ABA’s programs beyond Eastern Europe to other regions—a growth …

Targeting The Targeted Killings Case - International Lawmaking In Domestic Contexts, Yahli Shereshevsky

Michigan Journal of International Law

The targeting of non-state armed groups members is perhaps the most debated legal issue in the law of contemporary armed conflicts between states and non-state actors. The 2006 Targeted Killings case of the Israeli Supreme Court (ISC) is a key reference point in this debate. Recently, without much scholarly or public attention, the government of Israel, in its report on the summer 2014 conflict in Gaza (the 2014 Gaza Conflict Report), dramatically diverged from the Targeted Killings case’s definition of legitimate targets in asymmetric conflicts. The Targeted Killings case held a conduct or functional membership-based approach to targeting. This approach …

Currency Wars And The Erosion Of Dollar Hegemony, Lan Cao

Michigan Journal of International Law

This Article examines how and why the dollar is being challenged. Part I provides a brief history of the U.S. dollar, showing how it has evolved from something with intrinsic value to something that has no intrinsic value, except via government fiat. Part I traces the evolution of money in the United States, from its original foundation in commodities and gold and silver coins, to the creation of money via Federal Reserve notes which function as money substitutes, that is, paper instruments that represent gold and silver and presumably can be converted into real money. The aim of Part I …

The Problem Of Purpose In International Criminal Law, Patrick J. Keenan

Michigan Journal of International Law

Keenan addresses the problem of purposes in this Article, with two principal objectives. The first is to sort through the competing theories to identify the core purposes of international criminal law. The second is to show how those purposes are or can be put into effect in actual cases. These questions are important because the purposes for which the law is deployed significantly influence how it is deployed. Prosecutors bring different kinds of cases and argue different theories based at least in part on what they hope to achieve. For example, in the domestic context, prosecutors might choose to prioritize …

Debunking The Myth Of Universal Male Privilege, Jamie R. Abrams

University of Michigan Journal of Law Reform

Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military’s statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male …

Ambivalent Enforcement: International Humanitarian Law At Human Rights Tribunals, Shana Tabak

Michigan Journal of International Law

In addition to exploring the limitations of the Inter-American System’s jurisdictional capacity to adjudicate issues of IHL, this Article examines Inter-American jurisprudence in light of recent scholarly conversations regarding the relevance of the principle of lex specialis, which seeks to guide tribunals when two bodies of law may apply simultaneously, by providing for the prioritization of a specialized body of law over a general one. This concept, first articulated by the International Court of Justice (ICJ) in the Nuclear Weapons case, has proven to be the source of much scholarly consternation. As a means of addressing problems arising from …

Virtual Violence - Disruptive Cyberspace Operations As "Attacks" Under International Humanitarian Law, Ido Kilovaty

Michigan Telecommunications & Technology Law Review

Power outages, manipulations of data, and interruptions of Internet access are all possible effects of cyber operations. Unfortunately, recent efforts to address and regulate cyberspace operations under international law often emphasize the uncommon, though severe, cyber-attacks that cause deaths, injuries, or physical destruction. This paper deals with cyber operations during armed conflicts that cause major disruption or interruption effects – as opposed to deaths, injuries, or physical destruction. The purpose of this paper is to explore the consequences of these cyber operations that cause major disruption or interruption effects, and to argue that they might still constitute “acts of violence,” …

Delegating Peace Enforcement Missions- But To Whom? What The U.N.'S Recent Recommendation Reveals About Today's Crisis In Legitimate Actors For Robust Peace Operations, Karima Tawfik

Michigan Law Review Online

This Essay argues that in assessing whether or not to move towards the U.N. panel’s proposed model that champions regional actors and ad hoc coalitions over the U.N. itself, the international community must weigh the marginal costs and benefits of this plan. This essay follows the U.N. panel’s call for the international community to derive lessons from the past by examining three case studies where regional actors and ad hoc coalitions, rather than the U.N., have embarked on peace enforcement missions. It argues that if the international community chooses to follow the U.N. panel’s recommendation on deferring to regional actors …

Rescuing Policy And Terror Victims: A Concerted Approach To The Ransom Dilemma, C. Elizabeth Bundy

Michigan Journal of International Law

Part I of this Note will analyze the current framework governing hostage situations to determine the permissibility of ransom payments under international law. Part II will examine the two dominant positions that have developed among states and identify the justifications and shortcomings of each. Part III will conclude, firstly, that for states to develop a multilateral approach to hostage situations, they must take the lead within their respective domestic spheres and, secondly, that the option to negotiate for ransomed release should be preserved as an essential tool for confronting terrorist organizations.

Identifying The Start Of Conflict: Conflict Recognition, Operational Realities And Accountability In The Post-9/11 World, Laurie R. Blank, Benjamin R. Farley

Michigan Journal of International Law

On December 19, 2008, the Convening Authority for the United States Military Commissions at Guantanamo Bay referred charges against Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri for his role in the October 2000 bombing of the U.S.S. Cole. The charge sheet alleged that al-Nashiri committed several acts—including murder in violation of the law of war, perfidy, destruction of property—”in the context of and associated with armed conflict” on or about October 12, 2000 in connection with the bombing. At the time of the attack, the statement that the United States was engaged in an armed conflict would have been a surprise …

Proportional Response: The Need For More—And More Standardized—Veterans’ Courts, Claudia Arno

University of Michigan Journal of Law Reform

Over the past two decades, judges and legislators in a number of states have recognized significant shortcomings in the ways traditional systems of criminal corrections address cases involving criminal offenders who are veterans of the U.S. armed services. This recognition has come at a time when policy-makers have similarly recognized that, for certain subsets of criminal offenders, “diversionary” programs may achieve better policy results than will traditional criminal punishment. In accordance with these dual recognitions, some states have implemented systems of veterans’ courts, in which certain offenders, who are also U.S. veterans, are diverted into programs that provide monitoring, training, …

The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash

Michigan Law Review

With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented …

Sexual Assault And Rape In The Military: The Invisible Victims Of International Gender Crimes At The Front Lines, Stella Cernak

Michigan Journal of Gender & Law

In the past several years in particular, intra-military sexual assault and rape in the U.S. armed forces have been the focus of frequent media attention and intense congressional debate. Despite reforms, the rate of intra-military sexual crimes continues to remain high, as does soldiers’ wariness to report instances of sexual violence to military commanders. These problems and others have invigorated the position taken by some that outside judicial review of intra- military sexual crimes is necessary to provide justice to victims and lower the rate of intra-military sexual assault and rape. This Note argues that one of the primary contributors …

Racial Templates, Richard Delgado, Juan F. Perea

Michigan Law Review

This riveting tale of greed, international skullduggery, and behind-the-scenes heroism recounts the events that led up to America’s “wicked war” with Mexico. It depicts how expansionist ambitions in high circles fueled jingoistic propaganda (pp. 25, 34–35, 58), fed a public eager for national muscle flexing (pp. 57, 103, 108), and set the stage for a military skirmish in a disputed region between two rivers (pp. 75–77, 95, 100, 138) that provided the pretext for a savage and short-lived military campaign against the weak new nation of Mexico in which the U.S. Army, under General Scott, marched all the way to …