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Remodeling The Fruitless Link Between The Security Council And The International Criminal Court: Why Amending The Un Charter Could Be The Greatest Tribute International Politics Has Ever Paid To International Law, Mickey Isakoff

Et Cetera

Established in 2002, the International Criminal Court (“ICC”) has become a symbolic cornerstone of international criminal jurisprudence—prosecuting and convicting individuals for the commission of genocide, crimes against humanity, war crimes, and crimes of aggression—collectively referred to as atrocity crimes.

One way the ICC can lawfully exercise jurisdiction is by referral—in the form of a resolution—from the UN Security Council. The language of Charter of the United Nations and the Rome Statute collaborate to provide an avenue for the Security Council to grant the ICC jurisdiction over atrocity crime situations. Such resolutions grant the ICC full jurisdiction over the suspected …

Prosecuting Gender Persecution At The Icc: Definitions, Policies, And Practice, Milena Sterio, Yvonne Dutton

Law Faculty Articles and Essays

This Article's primary goal is to highlight the International Criminal Court (ICC)'s Office of the Prosecutor (OTP)'s Gender Persecution Policy, while also demonstrating its place in the trajectory of the ICC's progress in changing the course of human history as relates to the recognition of and prosecution of sexual and gender-based (SGBV) crimes. To that end, some background is necessary to contextualize the ICC's current policy and practice as relates to the crime of gender persecution. Part II discusses the Rome Statute's unique contributions to the development of international criminal law regarding SGBV crimes, including the crime of gender persecution. …

The War In Ukraine And The Legitimacy Of The International Criminal Court, Milena Sterio, Yvonne Dutton

Law Faculty Articles and Essays

The news of the many atrocities being committed as the war in Ukraine rages on has prompted a chorus of calls seeking to hold perpetrators accountable. Heralded as a critical player is the International Criminal Court (the ICC or “Court”). Unlike in the past where states have decried requests to increase the Court’s budget or refused to cooperate with the Office of the Prosecutor’s (“OTP”) efforts to gather evidence or arrest suspects, states are generously donating funding and other resources to bolster the Court’s likelihood of bringing successful prosecutions.

This Article argues that the unique situation surrounding state support for …

Globalization, State Sovereignty, And The Development Of International Criminal Law, Milena Sterio

Law Faculty Articles and Essays

"Today, virtually all nation-states have gradually become enmeshed in and functionally a part of a larger pattern of global transformations and global flows. Transnational networks and relations have developed across virtually all areas of human activity. Goods, capital, people, knowledge, communications, and weapons, as well as crime, pollutants, fashions and beliefs, rapidly move across territorial boundaries. Far from being a world of "discrete civilizations, "or simply an international society of states, it has become a fundamentally interconnected global order, marked by intense patterns of exchange as well as by clear patterns of power, hierarchy and unevenness."

"To speak of globalization …

The Ukraine Crisis And The Future Of International Courts And Tribunals, Milena Sterio

Law Faculty Articles and Essays

The Ukraine crisis is an example of modern-day conflict which poses various accountability challenges and demonstrates that not a single existing prosecutorial mechanism is capable of achieving a full measure of accountability while fulfilling the different goals of international criminal justice. As discussed in this Article, the prosecution of a sufficient number of Russian perpetrators of atrocities, as well as of Russian leaders, conducted legitimately and effectively, will necessitate the utilization of almost all accountability models - Ukrainian courts, a war crime chamber, the ICC, as well as an ad hoc aggression tribunal. The Ukrainian crisis demonstrates that all international …

Comments On The International Criminal Court Office Of The Prosecutor's Draft Policy On The Crime Of Gender Persecution Under The Rome Statute, Milena Sterio

Law Faculty Reports and Comments

The Draft Policy promises to be a seminal contribution not only to the Office of the Prosecutor's (OTP) policy and practice and the International Criminal Court's (ICC) jurisprudence on gender persecution, but also to the development of international criminal law generally. Building on its prior work, including the 2014 Policy Paper, the OTP is well placed to develop policies and procedures that protect historically marginalized and oppressed groups, deliver justice that accurately reflects the depth and breadth of the gender persecution suffered, and shed light on a crime that has to date received only limited attention.

As it finalizes the …

Business, Human Rights, And Transitional Justice: Overcoming The Regulatory Dysfunction Of International Law, Jelena Aparac

Global Business Law Review

It is said that traditional international public law is state-centric and concerns mostly State obligations and responsibility. For this, it excluded corporate actors from any accountability mechanism, even when the corporations contribute to armed conflicts and international crimes. International law does not provide a clear definition of what amounts to “subjects” under this set of rules or criteria for how to determine legal personality. At the same time, some branches of international public law directly regulate corporate actions, namely international economic law and international humanitarian law. Conversely, international courts and tribunals have accepted the corporate jus standi, in some …

Canadian Corporations Bound By The Phoenix: Setting The Path For The United States, Kelly Brickman

Global Business Law Review

This Note argues that the United States courts have jurisdiction to consider corporate liability for international law violations of human rights under the reasoning of the Supreme Court of Canada, in Nevsun Resources Ltd. v. Araya. The United States Supreme Court has escaped holding such liability exists, but Canada has outlined how countries, such as the United States, no longer can avoid holding corporations liable under customary international law. Corporate liability for human rights violations committed abroad is a cutting-edge issue. The United States Supreme Court has considered the issue before, but the Court used different analyses and was …

The Human Rights Due Diligence Standard-Setting In The European Union: Bridging The Gap Between Ambition And Reality, Jernej Letnar Černič

Global Business Law Review

Globalization has, over the past decades, erased borders between continents and countries. It has propelled international trade to previously unforeseen heights. Nonetheless, it has brought about not only positive impact, but also negative consequences for individuals and communities worldwide. Businesses have often been alleged to have been directly or indirectly involved in human rights violations. On the other hand, rights-holders have often found it difficult to enforce corporate human rights obligations and accountability either at home or abroad. Nonetheless, the field of business and human rights has in recent years witnessed seminal developments from the adoption of binding laws in …

Talking Foreign Policy: "Blood & Treasure", Milena Sterio, Michael P. Scharf, Gregory P. Noone, Sandra Hodgkinson, Darin Johnson

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to talkingforeignpolicy@case.edu.

SEPTEMBER 28, 2021 BROADCAST

Grotian Moments And Statehood, Milena Sterio

Law Faculty Articles and Essays

Grotian Moments are instances of accelerated formation of customary law, sparked by significant world events, such as wars, terrorist attacks, or natural catastrophes. This Article applies the Grotian Moment theory to the legal criteria of statehood, in an attempt to assess whether an evolution in specific elements of statehood has resulted in such paradigm-shifting Grotian Moments. In Part II, this Article analyzes the Grotian Moment theory while distinguishing it from other types of customary law formation. Part III focuses on the legal theory of statehood and each of its constitutive elements. Part IV discusses whether any such elements of statehood …

Amicus Curiae Observations By Public International Law & Policy Group, Milena Sterio, Michael P. Scharf, Paul R. Williams

Law Faculty Briefs and Court Documents

The amicus brief argues that in a case where the defendant alleges a ground excluding criminal responsibility (an affirmative defense), such as mental illness or duress, the defendant has an evidentiary burden to produce some evidence to support his/her claim of mental illness or duress, but that the prosecution retains the legal burden of proof to establish the defendant's responsibility beyond reasonable doubt.

“This ruling will have repercussions for future cases where the defendant asserts a mental illness or duress affirmative defense. Depending on how the ICC decides, future defendants will have to meet a specific evidentiary (or legal) burden …

Darryl Robinson's Model For International Criminal Law: Deontic Principles Developed Through A Coherentist Approach, Milena Sterio

Law Faculty Articles and Essays

Darryl Robinson’s new book, Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law, presents a compelling argument: that international criminal law would benefit from deontic reasoning. According to Robinson, this type of deontic reasoning “requires us to consider the limits of personal fault and punishability,” and is a “normative reasoning that focuses on our duties and obligations to others.” Moreover, Robinson argues in this book that coherentism is the best method for identifying and defining deontic principles. Robinson explains that coherentism is an approach where “[w]e use all of our critical reasoning tools to test past understandings …

Women As Judges At International Criminal Tribunals, Milena Sterio

Law Faculty Articles and Essays

This Article analyzes the presence of female judges within international criminal tribunals, starting with the Yugoslavia and Rwanda Tribunals in the 1990s. In particular, the Article discusses specific numbers of female judges at the Yugoslavia and Rwanda Tribunals, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the newly created Kosovo Specialist Chambers, and the International Criminal Court.

While the presence of women as prosecutors, defense attorneys, victim representatives, and other professionals at these tribunals is equally important, this Article focuses on the number of female judges, as such data …

Amicus Curiae Observations By Public International Law & Policy Group, Situation In The Democratic Republic Of The Congo, Milena Sterio, Michael P. Scharf, Paul R. Williams

Law Faculty Briefs and Court Documents

The Public International Law & Policy Group (“PILPG”) offers the following amicus curiae observations pursuant to the Decision No. ICC-01/04-02/06-2569. PILPG is willing to appear before the Court if it would assist. Prof. Paul R. Williams, Dean Michael P. Scharf, Prof. Milena Sterio, Dr. Brianne McGonigle Leyh, Dr. Julie Fraser, Jonathan Worboys, Eian Katz, Raghavi Viswanath, Nicole Carle, Alexandra Koch, Isabela Karibjanian, and Olivia Wang contributed to these observations.

Introductory Note To United Nations Security Council Resolution 2498, Milena Sterio

Law Faculty Articles and Essays

On November 15, 2019, the United Nations Security Council passed Resolution 2498, which extended the mandate of the previously established Panel of Experts of Somalia by an additional year; the Resolution also expanded the scope of the Panel's inquiry by specifically tasking the Panel to investigate Al-Shabaab's revenue sources and illegal taxation schemes.

Introductory Note: Georgia V. Russia (European Court Of Human Rights), Milena Sterio

Law Faculty Articles and Essays

In a January 31, 2019 decision, the European Court of Human Rights (ECtHR, or Court) held that Russia, the respondent state, should pay Georgia, the applicant state, 10 million euros as just satisfaction for violations committed by Russia against Georgian nationals; these violations had previously been established in the Court's main judgment in 2014 (Georgia v. Russia). The Court also held that Georgia should distribute this amount to approximately fifteen hundred Georgian victims, which had been identified in the Court's main judgment in 2014. In this important decision, the ECtHR continued to build on its recent case law, in holding …

The International Criminal Court: Current Challenges And Prospect Of Future Success, Milena Sterio

Law Faculty Articles and Essays

The ICC has served as an agent of impunity since its inception in 1998, and its fundamental role in the field of international criminal justice as a permanent accountability mechanism remains undisputed. The court is, however, facing significant challenges which may threaten its legitimacy. These challenges can be surmounted if the court is willing to take a hard look at its own procedures, prosecutorial practices, and judicial attitudes. The ICC's future may be bright if the court makes significant changes in the present.

Talking Foreign Policy: The Rohingya Genocide, Milena Sterio, Todd Buchwald, Jenny Domino, Rebecca Hamilton, Michael P. Scharf, Paul R. Williams

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to talkingforeignpolicy@case.edu.

OCTOBER 1, 2019 BROADCAST

Talking Foreign Policy: Untangling The Yemen Crisis, Milena Sterio, Michael P. Scharf, Paul R. Williams, James Johnson, Laura Graham

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to talkingforeignpolicy@case.edu.

Talking Foreign Policy: Responding To Rogue States, Milena Sterio, Todd F. Buchwald, James Johnson, Michael P. Scharf, Paul R. Williams

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest manner:

• The ambassador: …

The Trump Administration And The International Criminal Court: A Misguided New Policy, Milena Sterio

Law Faculty Articles and Essays

In a recent speech, National Security Advisor John Bolton delivered remarks on "Protecting American Constitutionalism and Sovereignty from International Threats." In his remarks, Bolton announced a new American policy vis-a-vis the International Criminal Court (ICC or Court). According to Bolton, the ICC "has been ineffective, unaccountable, and indeed, outright dangerous." While Bolton and others in the Trump Administration are at liberty to craft new policies, it is important that such policies be based on accurate facts and an accurate understanding of the law.

This Article highlights factual errors from Bolton's remarks and criticizes some of his arguments as misguided and …

Talking Foreign Policy: North Korea Summit, Milena Sterio, Shannon French, Tim Webster, Paul R. Williams, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest manner:

• The ethicist: …

Talking Foreign Policy: Jesner V. Arab Bank, Milena Sterio, Thomas Buergenthal, Carsten Stahn, Avidan Cover, Timothy Webster, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by Case Western Reserve University School of Law Co-Dean Michael Scharf, in which experts discuss the salient foreign policy issues of the day. Dean Scharf created Talking Foreign Policy to break down complex foreign policy topics that are prominent in the day-to-day news cycles yet difficult to understand.

This broadcast featured:

• Judge Thomas Buergenthal, the youngest survivor of the Auschwitz death camp, who went on to become the Dean of American University Law School, to serve for twelve years as a judge on the Inter-American Court of Human Rights, and then …

Corporate Liability For Human Rights Violations: The Future Of The Alien Tort Claims Act, Milena Sterio

Law Faculty Articles and Essays

This paper addresses complex legal issues in light of and in the context of Jesner v. Arab Bank, a case involving the scope of corporate liability for human rights abuses under the Alien Tort Claims Act (ATCA). Part I provides a brief overview of the Jesner case. Part II outlines the case Kiobel v. Royal Dutch Petroleum Co. and its holding. Part III discusses Kiobel's shortcomings, including the vagueness of its "touch and concern" test and its failure to specify which law—international or domestic—applies to the issue of corporate liability under the ATCA. Part IV then proposes other …

Sequencing Peace And Justice In Syria, Milena Sterio

Law Faculty Articles and Essays

Since 2011, the conflict in Syria has caused the death of hundreds of thousands of individuals and the displacement of millions. Efforts to refer the Syrian situation to the International Criminal Court (ICC) have consistently failed despite well-documented reports about the commission of serious crimes in Syria, including the use of chemical weapons against civilians, torture, the use of child soldiers, and crimes of sexual violence.

This Article explores whether the dual goals of peace and justice can be reconciled in the Syrian context and how these goals may be properly sequenced in order to potentially achieve long-lasting peace in …

The Karadžić Genocide Conviction: Inferences, Intent, And The Necessity To Redefine Genocide, Milena Sterio

Law Faculty Articles and Essays

This Article first discusses and analyzes the Genocide Convention and its strict definition of genocide and the "intent" requirement. It then focuses on the evolution of this definition in light of the recent Karadžić case. This Article demonstrates that in modern-day conflicts, the finding of genocidal intent may be an impossible task for the prosecution and that the ICTY Trial Chamber’s method of inferring intent based on knowledge and other indirect factors may be the only way that prosecutors will be able to obtain future genocide convictions. This Article then discusses a possible re-drafting and re-conceptualizing of the genocide definition …

Individual Criminal Responsibility For The Destruction Of Religious And Historic Buildings: The Al Mahdi Case, Milena Sterio

Law Faculty Articles and Essays

Ahmad Al Faqi Al Mahdi, also known as Abou Tourab, was a member of the radical Islamic group Ansar Eddine, serving as one of four commanders during its brutal occupation of Timbuktu in 2012. The International Criminal Court (ICC) indicted Al Mahdi on several charges of war crimes for intentional attacks against ten religious and historic buildings and monuments. All the buildings that Al Mahdi was charged with attacking had been under UNESCO protection and most had been listed as world heritage sites.

The case against Al Mahdi at the ICC unfolded relatively quickly and efficiently, from the official Malian …

Self-Determination And Secession Under International Law: Nagorno-Karabakh, Milena Sterio

Law Faculty Articles and Essays

The principle of self-determination grants minority groups defined as “peoples” the right to auto-determine their political future. This principle, while stemming back to post-World War I ideologies, has guided decolonisation and has served as the theoretical underpinning of former colonies’ independence quests. In the more recent decades, however, questions have surfaced regarding this principle’s applicability in the non-decolonisation paradigm: can secessionist movements rely on the principle of self-determination to justify their independence demands? Or, does the principle of self-determination in the non-decolonisation paradigm only bestow a right to internal autonomy on secessionist entities, while obligating them to remain within the …

The Applicability Of The Humanitarian Intervention 'Exception' To The Middle Eastern Refugee Crisis: Why The International Community Should Intervene Against Isis, Milena Sterio

Law Faculty Articles and Essays

The refugee crises in Iraq and Syria, which has been evolving over the past decade as a result of both ongoing conflict in these countries and the recent surge of Islamic State-led violence, has morphed into a true humanitarian catastrophe. Tens of thousands of refugees have been subjected to violence and have been dispersed and forced to live under dire conditions; such massive population flows have destabilized the entire region and have threatened the stability of neighboring countries. The United States and several other countries have been engaged in a military air strike campaign against the Islamic State, but the …