Law Commons^™

A Legal Herstory Of Wwii ‘Comfort Women’ — Chapters: Past, Present, And Beyond, Linny Kit Tong Ng

LL.M. Essays & Theses

This paper delves into the legal accountability and historical narrative, which go hand in hand, surrounding the comfort women system implemented by the Imperial Japanese Army during WWII. These women, including my late grandmother from South Korea, were forced into sexual slavery, servicing Japanese soldiers across the Asia-Pacific. Despite being one of the most significant atrocities in history, with victims from 10 countries and between 20,000 to 500,000 individuals, the plight of comfort women remains relatively unheard of.

The politicization of the comfort women movement has been a barrier to both acknowledgment and justice. My grandmother's silence for 80 years …

"Other Inhumane Acts Of A Similar Character Intentionally Causing Great Suffering." Does Ecocide Fit Within The Bounds Of Crimes Against Humanity, Amanda Price

Case Western Reserve Journal of International Law

No abstract provided.

Criminal Justice Is Local: Why States Disregard Universal Jurisdiction For Human Rights Abuses, Jeremy A. Rabkin, Craig S. Lerner

Vanderbilt Journal of Transnational Law

A German court recently convicted a minor Syrian official of abuses committed in Syria's civil war. The case was announced with fanfare but has since stirred no interest. Nor should this be surprising. The world has been here before. There was intense excitement in 1998, when British authorities arrested Augusto Pinochet, the former president of Chile, for human rights abuses committed in Chile. It was taken at the time as vindicating the doctrine that the worst human rights abuses fall under "universal jurisdiction," allowing any state to prosecute, even for crimes against foreign nationals on foreign territory. As generally acknowledged …

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

Justice For Venezuela: The Human Rights Violations That Are Isolating An Entire Country, Andrea Matos

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Litigating Genocide: A Consideration Of The Criminal Court In Light Of The German Jew's Legal Response To Nazi Persecution, 1933-1941, Jody M. Prescott

Maine Law Review

After years of negotiation, a majority of the nations of the world have agreed to create an International Criminal Court. It will be given jurisdiction over three core types of offenses: genocide, crimes against humanity, and war crimes. With regard to war crimes, however, nations that join the court may take advantage of an “opt-out” procedure, whereby the court's jurisdiction over these offenses may be rejected for seven years after the court comes into existence. For various reasons, a small number of nations, including the United States, have refused to sign the treaty creating the court. While heralded as a …

International Decision, International Criminal Court, Decision On The Authorization Of An Investigation Into The Situation In The Republic Of Kenya, Charles Chernor Jalloh

Charles C. Jalloh

On March 31, 2010, in its first ever decision authorizing a prosecutorial proprio motu investigation, the Pre-Trial Chamber of the International Criminal Court (ICC) granted the ICC Prosecutor permission to investigate the shocking violence which followed Kenya’s December 2007 Presidential elections under Article 15 of the Rome Statute of the International Criminal Court. The majority of the Chamber ruled that both the contextual and underlying requirements of crimes against humanity had been fulfilled, including that they were committed as part of a state or organizational policy as required by Article7(2)(a) of the Rome Statute. According to the majority, the latter …

International Decision, International Criminal Court, Judgment On The Appeal Of The Republic Of Kenya Against Pre-Trial Chamber Decision Denying Inadmissibility Of The Kenya Situation, Charles Chernor Jalloh

Charles C. Jalloh

A fundamental pillar of the Rome Statute of the International Criminal Court (ICC) is Article 17, which enshrines the complementarity principle – the idea that ICC jurisdiction will only be triggered when states fail to act to prosecute genocide, crimes against humanity and war crimes within their national courts or in circumstances where they prove unwilling and or unable to do so. The problem is that, as shown in this case report in the American Journal of International Law on the first ICC Appeals Chamber ruling regarding a state party’s objection to the court’s assertion of jurisdiction over its nationals, …

Detention By Armed Groups Under International Law, Andrew Clapham

International Law Studies

Does international law entitle armed groups to detain people? And what obligations are imposed on such non-state actors when they do detain? This article sets out suggested obligations for armed groups related to the right to challenge the basis for any detention and considers some related issues of fair trial and punishment. The last part of this article briefly considers the legal framework governing state responsibility and individual criminal responsibility for those that assist armed groups that detain people in ways that violate international law.

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 …

State-Enabled Crimes, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

International crimes are committed by individuals, but many – from genocide in Rwanda to torture at Abu Ghraib – would not have occurred without the integral role played by the State. This dual contribution, of individual and State, is intrinsic to the commission of what I term “State-Enabled Crimes.” Viewing international adjudication through the rubric of State-Enabled Crimes highlights a feature of the international judicial architecture that is typically taken for granted: its bifurcated structure. Notwithstanding the deep interrelationship between individual and State in the commission of State-Enabled Crimes, the international legal system adjudicates the responsibility of each under two …

Arendt On The Crime Of Crimes, David Luban

Georgetown Law Faculty Publications and Other Works

Genocide–-the intentional destruction of groups “as such”–-is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.

Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her …

Restrictions On Humanitarian Aid In Darfur: The Role Of The International Criminal Court, Mominah Usmani

Georgia Journal of International & Comparative Law

No abstract provided.

Accelerated Formation Of Customary International Law, Michael P. Scharf

Faculty Publications

This article examines the phenomenon of accelerated formation of customary international law. It argues that in periods of fundamental change (which the author characterizes as "Grotian Moments"), whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, customary international law may form much more rapidly and with less state practice than is normally the case to keep up with the pace of developments. The article examines several case studies that explore the application and contours of the concept of "Grotian Moments."

Pluralizing International Criminal Justice, Mark A. Drumbl

Mark A. Drumbl

This Review Essay of Philippe Sands' (ed.) From Nuremberg to the Hague (2003) explores a number of controversial aspects of the theory and praxis of international criminal law. The Review Essay traces the extant heuristic of international criminal justice institutions to Nuremberg and posits that the Nuremberg experience suggests the need for modesty about what criminal justice actually can accomplish in the wake of mass atrocity. It also explores the place of one person's guilt among organic crime, the reality that international criminal law may gloss over criminogenic conditions in its pursuit of individualized accountability, the possibility of group sanction …

Collective Violence And Individual Punishment: The Criminality Of Mass Atrocity, Mark A. Drumbl

Mark A. Drumbl

There is a recent proliferation of courts and tribunals to prosecute perpetrators of genocide, war crimes, and crimes against humanity. The zenith of this institution-building is the permanent International Criminal Court, which came into force in 2002. Each of these new institutions rests on the foundational premise that it is appropriate to treat the perpetrator of mass atrocity in the same manner that domestic criminal law treats the common criminal. The modalities and rationales of international criminal law are directly borrowed from the domestic criminal law of those states that dominate the international order. In this Article, I challenge this …

Criminalizing Hate Speech In The Crucible Of Trial: Prosecutor V. Nahimana , Diane F. Orentlicher

Diane Orentlicher

No abstract provided.

The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting

Pepperdine Dispute Resolution Law Journal

On July 18, 2000, as part of the Annual Meeting of the American Bar Association, an all star cast of American and English lawyers gathered in the Common Room of the Law Society of England and Wales in London to simulate oral argument before the International Criminal Court ("ICC"). The fictitious proceedings involved a head of state, President Luis Medema, charged with genocide, war crimes and crimes against humanity. The prosecutors and defense counsel engaged in lively oral argument before the Trial Chamber in the context of three critical issues: (1) jurisdiction of the ICC over citizens of non-state parties; …

A Complementarity Conundrum: International Criminal Enforcement In The Mexican Drug War, Spencer Thomas

Vanderbilt Journal of Transnational Law

Drug-related violence in Mexico has claimed over 34,000 lives since Mexican President Felipe Calderon initiated his crackdown on Mexico's drug cartels in 2006 with the deployment of military troops to Michoacan. Somewhat surprisingly, Mexico's drug war has garnered rather little attention from the international community, despite a wealth of headlines in popular media. This Note takes up the question of international criminal enforcement in Mexico against Los Zetas, widely considered Mexico's most violent drug cartel. By setting up a hypothetical--but possible--International Criminal Court (ICC) prosecution of Los Zetas cartel leader Heriberto Lazcano, this Note demonstrates that the ICC Prosecutor could …

Reflections From The International Criminal Court Prosecutor, Fatou B. Bensouda

Vanderbilt Journal of Transnational Law

Today I would like to introduce the idea of a new paradigm in international relations, which was introduced by the work of the drafters of the Rome Statute and the establishment of the International Criminal Court (ICC): this idea is that of law as a global tool to contribute to the world's peace and security. This idea first surfaced with the belief that the power of law has the capacity to redress the balance between the criminals who wield power and the victims who suffer at their hands. Law provides power for all regardless of their social, economic, or political …

International Decision, International Criminal Court, Judgment On The Appeal Of The Republic Of Kenya Against Pre-Trial Chamber Decision Denying Inadmissibility Of The Kenya Situation, Charles Chernor Jalloh

Faculty Publications

A fundamental pillar of the Rome Statute of the International Criminal Court (ICC) is Article 17, which enshrines the complementarity principle – the idea that ICC jurisdiction will only be triggered when states fail to act to prosecute genocide, crimes against humanity and war crimes within their national courts or in circumstances where they prove unwilling and or unable to do so. The problem is that, as shown in this case report in the American Journal of International Law on the first ICC Appeals Chamber ruling regarding a state party’s objection to the court’s assertion of jurisdiction over its nationals, …

Remarks On The Gjil Symposium On Corporate Responsibility And The Alien Tort Statute, Vivian Grosswald Curran

Articles

The following essay is a summary of remarks I delivered at the symposium on corporate responsibility and the Alien Tort Statute held at Georgetown Law School after the first Kiobel v. Royal Dutch Petroleum Co. Supreme Court oral argument. My remarks addressed the importance of considering foreign national law when judging the meaning of universal civil jurisdiction, and, implicitly, the inextricability of domestic from international law matters.

International Decision, International Criminal Court, Decision On The Authorization Of An Investigation Into The Situation In The Republic Of Kenya, Charles Chernor Jalloh

Faculty Publications

On March 31, 2010, in its first ever decision authorizing a prosecutorial proprio motu investigation, the Pre-Trial Chamber of the International Criminal Court (ICC) granted the ICC Prosecutor permission to investigate the shocking violence which followed Kenya’s December 2007 Presidential elections under Article 15 of the Rome Statute of the International Criminal Court. The majority of the Chamber ruled that both the contextual and underlying requirements of crimes against humanity had been fulfilled, including that they were committed as part of a state or organizational policy as required by Article7(2)(a) of the Rome Statute. According to the majority, the latter …

United States Objection To The International Criminal Court: A Paradox Of "Operation Enduring Freedom", Remigius Chibueze

Annual Survey of International & Comparative Law

There has been tremendous success in the signing and ratification of the ICC Statute. To date, 139 countries have signed and 89 countries, encompassing countries from all regions of the globe, have ratified the statute, which took effect on July 1, 2002 after being ratified by more than 66 countries. While most countries declared their support for the ICC, the U.S. was not in favor of signing the statute and therefore voted against it. There is no doubt that the September 11, 2001 attacks on the United States were crimes against humanity as contained in the Rome Statute. Therefore, if …

Universal Jurisdiction And The Case Of Belgium: A Critical Assessment, Roozbeh (Rudy) B. Baker

Roozbeh (Rudy) B. Baker

Praised in some quarters as a useful tool for bringing criminal perpetrators to justice, criticized by others as a threat to state sovereignty, universal jurisdiction has certainly emerged as a heated topic within international criminal law. In 1993, the Kingdom of Belgium enacted a domestic statute, the Loi du 16 Juin, which codified (in domestic Belgian law) the use and application of universal jurisdiction (for international crimes) in Belgian courts. The Statute, which went through two major revisions in February 1999 and April 2003, granted Belgian courts jurisdiction over war crimes, crimes against humanity, and genocide, regardless of where in …

Reassessing The Role Of International Criminal Law: Rebuilding National Courts Through Transnational Networks, Elena Baylis

Articles

The international community has long debated its role in redressing grave atrocities like war crimes and crimes against humanity. This Article suggests that this debate has focused too much on trials in international and hybrid courts as the primary conduit for international contributions to justice in post-conflict states. It proposes that the international community should look instead to national courts as the primary venue for such trials and to transnational networks as an effective mechanism for international involvement. Key characteristics of this model include: (1) reliance on transnational networks to convey international criminal law and international resources into national settings; …

Tribunal-Hopping With The Post-Conflict Justice Junkies, Elena Baylis

Articles

The field of post-conflict justice is characterized in no small part by international interventions into post-conflict settings. International interveners invest substantial resources toward the goals of post-conflict justice, including creating legal accountability for atrocities and rebuilding local and national justice systems that respect human rights and rule of law. The aims of post-conflict justice and the mechanisms by which the international community can contribute to post-conflict legal institutions and processes have been and continue to be studied intensively.

But while the institutions, processes, and goals of post-conflict justice have been carefully scrutinized, another aspect of international interventions into post-conflict justice …

Transnational Networks And International Criminal Justice, Jenia Iontcheva Turner

Michigan Law Review

The theory of transgovernmental networks describes how government officials make law and policy on issues of global concern by coordinating informally across borders, without legal or official sanction. Scholars have argued that this sort of coordination is useful in many different areas of cross-border regulation, including banking, antitrust, environmental protection, and securities law. One area to which the theory has not yet been applied is international criminal law. For a number of reasons, until recently, international criminal law had not generated the same transgovernmental networks that have emerged in other fields. With few exceptions, international criminal law had been enforced …

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

The Obligation To Use Force To Stop Acts Of Genocide: An Overview Of Legal Precedents, Customary Norms, And State Responsibility, Joshua M. Kagan

San Diego International Law Journal

Though the Genocide Convention was created to "liberate mankind from [the] odious scourge" of genocide, the dreams of its drafters have still not come to fruition. The commission of genocide, widely considered the most appalling of all crimes, did not end with the signing and ratification of the Convention in 1948. Genocide continues in the world today. While its sentiments were noble and its aims commendable, the Genocide Convention as it is interpreted and applied today is insufficient to stop the commission of genocide in the world. In order to rid the world of this crime, a new interpretation of …