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Siege Starvation: A War Crime Of Societal Torture, Tom Dannenbaum

Chicago Journal of International Law

A recent amendment to the Rome Statute of the International Criminal Court has drawn unprecedented attention to the war crime of starvation of civilians as a method of warfare. It comes at a time when mass starvation in war is resurgent, devastating populations in Yemen, Ethiopia, Syria, South Sudan, Nigeria, and elsewhere. The practice has also drawn the scrutiny of the United Nations Security Council. And yet, despite this heightened profile and sharpened urgency, what precisely is criminally wrongful about starvation methods remains underspecified.

A common way of thinking about the criminal wrong is as a form of killing or …

Comparative International Law And The Social Science Approach, Emilia Justyna Powell

Chicago Journal of International Law

The social science approach has already contributed and continues to contribute to the study of international law. In particular, research that incorporates the social science approach has provided much insight into reality and day-to-day functioning of international law by going beyond historical and normative description and providing generalizable theories. If based on a sound theoretical framework that is subsequently tested in a rigorous scientific manner, the social science approach allows us to uncover a multiplicity of factors that commingle to shape states’ preferences and actions toward international law. Combining insights provided by analysis of large-N data with qualitative methodology allows …

International Law And Transnational Legal Orders: Permeating Boundaries And Extending Social Science Encounters, Gregory Shaffer, Terence C. Halliday

Chicago Journal of International Law

This Essay elaborates in three ways the call for a renewal of social science approaches to international law advanced by Daniel Abebe, Adam Chilton, and Tom Ginsburg. First, while we affirm the importance of what they call the “scientific method” of hypothesis testing, we argue that it can and must be complemented by several other well-institutionalized social science approaches to international law. Second, we loosen the conventional “internal”/“external” distinction in legal scholarship and make the case that conceptualization and empirics are integral to both approaches. Third, we propose that the full promise of social science approaches to international law can …

In Defense Of The Special Tribunal For Lebanon And Thecase For International Corporate Accountability, Osama Alkhawaja

Chicago Journal of International Law

In 2014, the Special Tribunal for Lebanon (“STL”) examined evolving international standards of corporate accountability and held that legal entities can be found liable for criminal conduct as a general principle of international law. Prior to this decision, and in stark contrast to trends in domestic legal regimes, no legal entity had ever been prosecuted, convicted, or sentenced in an international court. Although this marked a watershed moment in global corporate accountability mechanisms, it has had little precedential effect; scholars have argued it is because the decision lacked a valid legal basis and is limited in scope. This Comment addresses …

The Persecution Of Stones: War Crimes, Law’S Autonomy And The Co-Optation Of Cultural Heritage, Timothy William Waters

Chicago Journal of International Law

In 1567, a bridge was built over a river in Bosnia—a bridge widely seen as a work of great beauty. In 1993, it was destroyed in a war. What did its destruction mean? Was it a crime—and which one? An assault on culture—and whose? Between 2004 and 2017, a trial held in The Hague sought to answer these questions. The way it did—the assumptions and categories the prosecutors and judges deployed, the choices they made—tells us something important about how law operates and how it appropriates other bodies of knowledge, whether in a now-obscure Balkan conflict or on the battlefields …

From The State Of Emergency To The Rule Of Law: The Evolution Of Repressive Legality In The Nineteenth Century British Empire, Christopher M. Roberts

Chicago Journal of International Law

Why are contemporary laws and techniques that state authorities use to crack down on political dissent so similar across countries? This Article argues that at least part of the answer may be found by turning to colonial history. The Article has two Parts. In the first Part, the Article explores the manner in which, over the course of the nineteenth century, the British deployed various different legal and institutional approaches in response to an Irish polity that consistently refused to submit to British authority. In the second Part, the Article examines the manner in which the approaches developed in Ireland …

Turning In The Widening Gyre: History, Corporate Accountability, And Transitional Justice In The Postcolony, Jeffrey Atteberry

Chicago Journal of International Law

This Article argues that transitional justice, by increasing efforts to include corporate accountability within its various mechanisms, may confront the global structures of rule that systematically produce conditions of violence within formerly colonized nation-states. Building on work by Giorgio Agamben and Homi Bhabha, I demonstrate that the very notion of a “transition” around which transitional justice is articulated derives from a nineteenth-century understanding of history that reflects the ideology of development which supported the colonial system. Moments of violent historical discontinuity, legally conceptualized as “states of exception,” provide the paradigmatic bases for models of transitional justice. But, in the history …

Between Reparations And Repair: Assessing The Work Of The Icc Trust Fund For Victims Under Its Assistance Mandate, Anne Dutton, Fionnuala Ní Aoláin

Chicago Journal of International Law

The practice of international justice has made a significant shift from narrowly focused criminal accountability to a broader and more holistic understanding encompassing the totality of victims’ justice needs. In particular, international criminal justice is concerned with victims of mass atrocity crimes, whose needs are profound and whose capacities are limited by the experiences of gross and systematic violence. These needs include individual and communal capacity building to engage in criminal processes as well as remedy and repair in the aftermath of criminal procedures. The Trust Fund for Victims represents, in many ways, the epicenter of this shift in international …

"We Only Spy On Foreigners": The Myth Of A Universal Right To Privacy And The Practice Of Foreign Mass Surveillance, Asaf Lubin

Chicago Journal of International Law

The digital age brought with it a new epoch in global political life, one neatly coined by Professor Philip Howard as the “pax technica.” In this new world order, government and industry are “tightly bound” in technological and security arrangements that serve to push forward an information and cyber revolution of unparalleled magnitude. While the rise of information technologies tells a miraculous story of triumph over the physical constraints that once shackled mankind, these very technologies are also the cause of grave concern. Intelligence agencies have been recently involved in the exercise of global indiscriminate surveillance, which purports to go …

Closing Impunity Gaps For The Crime Of Aggression, Jocelyn Getgen Kestenbaum

Chicago Journal of International Law

As stated at Nuremberg, the crime of aggression is the “supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” International instruments clearly and repeatedly have outlawed initiating wars of aggression and other illegal uses of armed force. States parties recently have defined and codified the crime in the Rome Statute of the International Criminal Court (ICC) and delineated the scope of the ICC’s jurisdiction over aggression. Although the ICC is an important mechanism for accountability and justice, it is not certain when it will be able to adjudicate …

Hybrid Tribunals And The Composition Of The Court: In Search Of Sociological Legitimacy, Harry Hobbs

Chicago Journal of International Law

Sociological legitimacy is a critical yet undertheorized element of a successful international criminal tribunal. This Article examines the link between sociological legitimacy and the composition of hybrid courts by analyzing the practice of five international criminal tribunals: the ICC, ICTY, ICTR, SCSL, and the ECCC. It finds that the presence of local judges on international criminal courts offers a firmer normative basis for enhancing their legitimacy among the local community. However, the Article also finds that despite impressive scholarly efforts to demystify the “homogenous” international community, international judges are not sufficiently particularized. The solution I offer is both principled and …

Impossible To Regulate: Social Media, Terrorists, And The Role For The U.N., Paulina Wu

Chicago Journal of International Law

The posting of journalist beheadings online and the arrests of numerous nationals attempting to join terrorist organizations have shown that terrorists are increasingly using social media to spread ideology and recruit members. The popularity of social media around the world provides a huge potential audience for terrorist content. Unfortunately, because of states' inability to cooperate, previous attempts to govern and police the Internet have failed. Any regulation of the Internet or social media also raises collective action problems and baseline definition issues. The U.N. is not in the position to pass a binding treaty or convention because use of social …

An Efficient Anticorruption Sanctions Regime? The Case Of The World Bank, Tina Søreide, Linda Gröning, Rasmus Wandall

Chicago Journal of International Law

With its sanctions regime, the World Bank has sent a clear message to client governments and suppliers that it will not tolerate corruption. However, as this Article argues, with its present design, the sanctions regime at the same time runs counter to the World Bank’s own development agenda. Thus, the regime will have limited effect in protecting funds for development, reducing corruption risks, promoting the integrity and functionality of markets, and strengthening domestic law enforcement institutions. A key problem is that efforts to strengthen law enforcement at the national level are too limited. The sanctions primarily target private suppliers, while …

How International Institutions Evolve , Anu Bradford

Chicago Journal of International Law

Economic theory suggests that international institutions cannot simultaneously widen and deepen. There is an inevitable trade-off between the benefits of size and the costs of heterogeneity. Consequently, institutions ought to be either small and deep or, alternativey, large and shallow. Yet in reality, we observe that international institutions embrace new members while concurrently pursuing deeper cooperation. This Article seeks to explain how institutions evolve over time in light of this size/heterogeneity trade-off. It examines the strategic responses of members of institutions to heterogeneity costs and identifies two distinct yet related strategies that allow states to pursue gains from cooperation while …

Bringing The Guilty To Justice: Can The Icc Be Self-Enforcing?, Nada Ali

Chicago Journal of International Law

Even though the International Criminal Court was instituted with the express goal of ending impunity, its lack of enforcement powers threatens to undermine its credibility as well as the effective administration of international criminal justice. While proponents of the court are content to rely on questionable means of enforcement such as military interventions, ICC skeptics are adamant that granting amnesties will ensure the removal of dictators from power. But, could there be a median solution between the extremes of at-any-cost accountability and outright exemption from punishment? Game theoretic analysis of the ICC offers a glimmer of hope for the effective …

Conflict Minerals And The Law Of Pillage, Patrick J. Keenan

Chicago Journal of International Law

The illicit exploitation of natural resources-often called conflict minerals-has been associated with some of the worst violence in the past half-century, especially in the Democratic Republic of the Congo. Prosecutors and scholars have struggled to develop legal tools to adequately hold accountable those who have been responsible for the exploitation of civilians and resources in conflict. The most common legal tool, the crime of pillage, has been inadequate because it has been applied only to discrete, relatively small episodes of theft. As important as it has been, the episodic theory is of limited utility when applied to what have been …

Navigating Conflicts In Cyberspace: Legal Lessons From The History Of War At Sea, Jeremy Rabkin, Ariel Rabkin

Chicago Journal of International Law

Despite mounting concern about cyber attacks, the United States has been hesitant to embrace retaliatory cyber strikes in its overall defense strategy. Part of the hesitation seems to reflect concerns about limits imposed by the law of armed conflict. But analysts who invoke today's law of armed conflict forget that war on the seas has always followed different rules. The historic practice of naval war is a much better guide to reasonable tactics and necessary limits for conflict in cyberspace. Cyber conflict should be open-as naval war has been-to hostile measures short of war, to attacks on enemy commerce, to …

Toward A Situational Model For Regulating International Crimes, Andrew K. Woods

Chicago Journal of International Law

The international criminal regime, as currently conceived, relies almost exclusively on the power of backward-looking criminal sanctions to deter future international crimes. This model reflects the dominant mid-century approach to crime control, which was essentially reactive. Since then, domestic criminal scholars and practitioners have developed and implemented new theories of crime control-theories notable for their promise of crime prevention through ex ante attention to community and environmental factors. Community policing crime prevention through environmental design, and related "situational" approaches to crime control have had a significant impact on the administration of domestic criminal law. This Article evaluates the implications of …

Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman

Chicago Journal of International Law

International courts are playing an increasingly important role in deciding international disputes and in defining the content of international law. Yet women make up only a meager percentage of international court judges. This Article explores the relationship between the paucity of women judges and the legitimacy of international courts. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the Article argues that under-representation of one sex affects the normative legitimacy of international courts because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do …

The Church Abuse Scandal: Processing The Pope Before The International Criminal Court, Benjamin David Landry

Chicago Journal of International Law

In the early 2000s, the Catholic Church was revealed to have been involved in a pattern of sexual abuse of children. The Church's internal policies allowed members to cover up the abuse by swearing victims to secrecy and refusing to report the abuse to authorities. This routine arguably enabled further abuse by providing abusers with continued access to children. Due, in part, to the hierarchical structure of the Church, commentators argued for the prosecution of Church leadership. Commentators focused on Cardinal Joseph Ratinger, now Pope Benedict XT7, who was, from 1971 to his elevation to the Holy See in 2005, …

Joint Intentions To Commit International Crimes, Jens David Ohlin

Chicago Journal of International Law

The following article is an attempt to provide a coherent theory that international tribunals may use to ground the imposition of vicarious liability for collective crimes. Currently, the case law and the literature is focused on a debate between the Joint Criminal Enterprise JCE) doctrine applied by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the co-perpetration doctrine applied by the International Criminal Court (ICC), which defines co-perpetrators as those who have joint control over the collective crime. The latter doctrine, influenced by German criminal law theory, has recently won many converts, both in The Hague and in …

A Three-Pronged Approach: How The United States Can Use Wto Disclosure Requirements To Curb Intellectual Property Infringement In China, Mark Liang

Chicago Journal of International Law

Counterfeiting and the piracy of consumer goods in China are serious and globally recognized problems. Despite concerns expressed by the US and past efforts, China has been unable to enforce IP rights effectively for decades. As a result, American businesses seeking to sell IP-protected goods in China suffer tens of billions of dollars in losses every year. This Comment aims to determine and assess what measures the US may take to reduce IP infringement in China in the short term. China's weak IP enforcement record is a result of both long-term and short-term causes. Short-term causes (that is, causes that …

Kant, Habermas And Democratic Peace, Robert J. Delahunty, John Yoo

Chicago Journal of International Law

Our core claim, then, is this: Habermas conceives the "Kantian project" to be one of securing global peace and upholding basic human rights through strengthening and expanding supranational and transnational institutions. In substance, he is offering a kind of Kantian world federalism as the way forward for the global community of states. We consider that approach fundamentally mistaken. In our view, democracy-promotion is clearly the better path. It recognizes the necessity and desirability of a plurality of independent nation states. It is more protective of both the freedom of individuals and the cultural identities of peoples. It is far more …

Legal Ethics In International Criminal Defense, Jenia Iontcheva Turner

Chicago Journal of International Law

I argue that distinctive features of international criminal courts and prosecutions suggest a more flexible approach to the ethical norms governing defense advocacy, closer to that embodied by the Model Rules. Moreover, I suggest that international criminal courts should promulgate guidelines which convey to defense attorneys that particular aggressive practices are not required by ethical duties and that such practices may be more inconsistent than consistent with good defense lawyering. I do not propose additional rules that would absolutely prohibit such practices in international courts. Nor do I suggest that defense attorneys should ever fail to diligently and zealously represent …

Can You Hear Me Now? The Case For Extending The International Judicial Network, Cesare P.R. Romano

Chicago Journal of International Law

This Article intends to take stock of almost two decades of tumultuous multiplication of judicial institutions, which has led to at least more than a dozen fully functioning international courts and several dozen quasi-judicial, implementation-control and sundry dispute-settlement bodies. The growth has been organic and unplanned. The stated aim of this panoply of bodies and procedures is to ensure that international law is observed and that disputes arising out of its implementation or interpretation are settled peacefully and in an orderly fashion. But one could ask whether, and to what extent, this remarkable growth of bodies and procedures has brought …

Why Different Jurisdictions Do Not (And Should Not) Adopt The Same Antitrust Rules, David S. Evans

Chicago Journal of International Law

A single dish cannot serve the tastes of a hundred people, says an ancient Chinese proverb. So it is with the rules for assessing whether practices engaged in by firms with significant market power are anticompetitive. More than one hundred countries have competition laws and most of them have government authorities entrusted with enforcing those laws in the first instance. Yet these jurisdictions are a varied lot. Some have emerged from decades of communist rule while others have only recently privatized companies responsible for substantial parts of the economy. Their legal institutions differ, as do perhaps their tastes for dominant …

No Way Out? The Question Of Unilateral Withdrawals Or Referrals To The Icc And Other Human Rights Courts, Michael P. Scharf, Patrick Dowd

Chicago Journal of International Law

This Article addresses the consequent issue: What if a state, self-referring or referring the situation in another country, changes its mind and attempts to "withdraw" its ICC referral? What is the role and appropriate response of the ICC at that point? This issue becomes especially relevant and pressing as events in Uganda unfold and the possibility looms of an attempted "withdrawal" of Uganda's referral. This Article examines the Rome Statute, the drafting history, and the expert commentaries, together with the statutory and case law of the other major human rights courts and bodies, and the Vienna Convention on the Law …

The Clash Of Commitments At The International Criminal Court, Tom Ginsburg

Chicago Journal of International Law

On July 10, 2008, International Criminal Court ("ICC") Prosecutor Luis Moreno-Ocampo informed members of the UN Security Council that he would be issuing an indictment against Sudanese President Omar Hassan al Bashir on charges of genocide and crimes against humanity for events in Darfur. The indictment, issued July 14, brought into stark relief the consequentialist debate over international criminal justice. Opponents of impunity celebrated the possibility that the international community might at last be willing to take concrete steps toward ending the Darfur genocide. On the other hand, aid groups on the ground feared retaliation and expulsion, and diplomats argued …

The Politics Of International Judicial Appointments, Erik Voeten

Chicago Journal of International Law

This Article evaluates what we know about the politics of international judicial appointments and identifies some areas for future research. Although the conclusion offers some discussion of the normative implications of this research, this is deliberately not an attempt to identify how the appointment process should work, but rather an exploration of if and how governments do use the appointment process to shape the international judiciary. Theoretically, the Article draws from the broad framework of principal-agent theory, in which governments are the multiple principals and judges the multiple agents. This framework does not assume that the agents always do what …

Making The State Do Justice: Transnational Prosecutions And International Support For Criminal Investigations In Post-Armed Conflict Guatemala, Naomi Roht-Arriaza

Chicago Journal of International Law

This Article will first briefly describe the background of the Guatemalan conflict and the evolution of the transnational cases against the military high command. It will then focus on some of the legal strategy issues involved and on the gains and losses of this transnational networking approach to combating impunity. In particular, it will look at how the multinational legal team, working simultaneously in the Spanish and Guatemalan courts on different aspects of the case, has allowed for learning and training opportunities for the lawyers involved, has forced local courts to engage with international law, and has tried to use …