Law Commons^™

The Post-Ongwen Case Period And The Reconciliation Process In Northern Uganda: Local Communities As A Site Of Knowledge, Christelle Molima Bameka

Scholarly Articles

By providing victims with more space in the Ongwen case, the International Criminal Court (icc) has significantly contributed to the healing of the trauma and community reconciliation in northern Uganda. That said, this court has also raised issues that could affect local efforts to achieve peace, namely the positioning of victims of child soldiers vis-à-vis criminal child soldiers. Drawing on qualitative data collected through focus group discussions with some community members from locations under investigation by the icc, this sociolegal study examines the victims’ narratives about child soldiers and the different ideas of human rights that emerge. Then, it explores …

Pandemic As Transboundary Harm: Lessons From The Trail Smelter Arbitration, Russell A. Miller

Scholarly Articles

The COVID-19 pandemic has caused incalculable harm around the world. The fact that this immense harm can be traced back to a localized outbreak in or near Wuhan, China, raises questions about the responsibility China might bear for the pandemic under public international law. Famously applied in the seminal Trail Smelter Arbitration (1938/1941), the Transboundary Harm Principle provides that no state can use or allow the use of its territory in a manner that causes significant harm in the territory of other states. This article does not intend to tap into the unseemly, xenophobic spirit that animates much of the …

International Law In The Boardroom, Kishanthi Parella

Scholarly Articles

Conventional wisdom expects that international law will proceed through a “state pathway” before regulating corporations: it binds national governments that then bind corporations. But recent corporate practices confound this story. American corporations complied with international laws even when the state pathway broke down. This unexpected compliance leads to three questions: How did corporations comply? Why did they do so? Who enforced international law? These questions are important for two reasons. First, many international laws depend on corporate cooperation in order to succeed. Second, the state pathway is not robust, then or now. It is therefore vital to identify alternatives to …

The Visualities And Aesthetics Of Prosecuting Aged Defendants, Mark Drumbl, Caroline Fournet

Scholarly Articles

The prosecution—whether domestic or international—of international crimes and atrocities may implicate extremely aged defendants. Much has been written about the legalisms that inhere (or not) in trying these barely alive individuals. Very little however has been written about the aesthetics the barely alive encrust into the architecture of courtrooms, the optics these defendants suffuse into the trial process, and the expressive value of punishing them. This is what we seek to do in this project.

Refugees Under Duress: International Law And The Serious Nonpolitical Crime Bar, David Baluarte

Scholarly Articles

Congress intended that the serious nonpolitical crime bar under United States asylum law have the same meaning and scope as the 1F(b) Refugee Convention exclusion clause. The Supreme Court has repeatedly held that it was the intent of Congress to not only replicate the language of the provisions of the Refugee Convention in United States law, but to incorporate the full extent of the meaning of such language and bring the United States into compliance with its treaty obligations. Accordingly, when Congress reproduced exactly the language of the Article 1F(b) exclusion clause in the INA, it intended for that provision …

A New Narrative Of Statelessness, David Baluarte

Scholarly Articles

Statelessness: A Modern History by Dr. Mira Siegelberg offers a meticulous reconstruction of the varied contributions of artists, scholars, and policy makers to the understanding of statelessness in the years between the First and Second World Wars. Siegelberg situates statelessness in some of the most prominent debates about international law and relations in modern history, most notably whether the individual is an appropriate subject of international law and whether a political order beyond the confines of the nation-state is desirable.

Submission Of Amicus Curiae Observations In The Case Of The Prosecutor V. Dominic Ongwen, Erin Baines, Kamari M. Clarke, Mark A. Drumbl

Scholarly Articles

The important questions laid out by the Appeals Chamber in this case highlight the need for the proper delineation and interplay between mental illness and criminal responsibility under international law. Specifically, this case represents a watershed moment for the Appeals Chamber to set a framework for adjudicating mental illness in the context of collectivized child abuse and trauma. This is especially true for former child soldiers who occupy both a victim and alleged perpetrator status.

"A Hussy Who Rode On Horseback In Sexy Underwear In Front Of The Prisoners": The Trials Of Buchenwald’S Ilse Koch, Mark A. Drumbl, Solange Mouthaan

Scholarly Articles

Ilse Koch’s trials for her role in atrocities at the Nazi Buchenwald concentration camp served as visual spectacles and primed her portrayal in media and public spaces. Koch’s conduct was credibly rumored to be one of frequent affairs, simultaneous lovers, and the sexual humiliation of prisoners. The gendered construction of her sexual identity played a distortive role in her intersections with law and with post-conflict Germany. Koch’s trials revealed two different dynamics. Koch’s actions were refracted through a patriarchal lens which spectacularized female violence and served as an optical space to (re)establish appropriate feminine mores. Feminist critiques of Koch’s trials …

Weaving A Broader Tapestry, Mark A. Drumbl

Scholarly Articles

This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020).

Charles Jalloh delivers a comprehensive and authoritative survey of the legacy—in law—of the Special Court for Sierra Leone (SCSL). Through compendious research and considerable personal experience, Jalloh tracks the SCSL’s jurisprudential contributions and legal footprints upon a number of doctrinal areas: child soldiering, forced marriage, immunities, personal jurisdiction, and amnesties. Jalloh also examines the SCSL’s interface with Sierra Leone’s truth commission. Indeed, the SCSL is among the few …

Investors As International Law Intermediaries: Using Shareholder Proposals To Enforce Human Rights, Kishanthi Parella

Scholarly Articles

One of the biggest challenges with international law remains its enforcement. This challenge grows when it comes to enforcing international law norms against corporations and other business organizations. The United Nations Guiding Principles recognizes the “corporate responsibility to respect human rights,” which includes human rights due diligence practices that are adequate for “assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.” Unfortunately, many corporations around the world are failing to implement adequate human rights due diligence practices in their supply chains. This inattention leads to significant harms for …

Hearing On The Foreign Sovereign Immunities Act, Coronavirus, And Addressing China’S Culpability Before The Senate Committee On The Judiciary, Russell A. Miller

Scholarly Articles

There are a number of theories about the Chinese government’s acts or omissions concerning the emergence and world-wide spread of the coronavirus that may be the proximate cause of actionable transboundary harm. All of these theories start with the incontestable fact that the coronavirus outbreak originated in China. One theory is concerned with the conduct of the Chinese government after the health crisis emerged. This “ex post” theory alleges a broad range of acts and omissions that helped transform a local outbreak into a global pandemic. There is room for this theory under the Transboundary Harm Principle. But the “ex …

Memorializing Dissent: Justice Pal In Tokyo, Mark A. Drumbl

Scholarly Articles

Memorials and monuments are envisioned as positive ways to honor victims of atrocity. Such displays are taken as intrinsically benign, respectful, and in accord with the arc of justice. Is this correlation axiomatic, however? Art, after all, may be a vehicle for multiple normativities, contested experiences, and variable veracities. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must consider the full range of initiatives—whether pop-up ventures, alleyway graffiti, impromptu ceremonies, street art, and grassroots public histories—prompted by international criminal trials. Courts may be able to stage their own outreach, to be …

Post-Genocide Justice In Rwanda, Mark A. Drumbl

Scholarly Articles

The Rwandan genocide triggered a vast number of criminal and quasi-criminal prosecutions. Rwanda therefore constitutes an example of a robust and rapid implementation of criminal accountability for atrocity. Rwanda, moreover, departed from other countries – such as South Africa – by eschewing a truth and reconciliation process as part of a transitional justice process. This chapter unpacks three levels of judicialization that promoted criminal responsibility for atrocity in Rwanda: the ICTR, specialized chambers of national courts, and gacaca proceedings. The ICTR indicted roughly 90 individuals, the national courts convicted in the area of 10,000 defendants (with some proceedings remaining ongoing), …

Protecting Stateless Refugees In The United States, David Baluarte

Scholarly Articles

This article proposes a more complete and nuanced consideration of statelessness in asylum adjudication procedures in the United States and the possibility of reopening previously denied asylum claims for this purpose. The article proceeds in four parts, beginning with a discussion of statelessness in the United States. Next, the article describes the international protection frameworks for both refugees and stateless persons and identifies important points of intersection between these frameworks. Then the article argues that discriminatory denationalization that renders a person stateless triggers refugee protection, thereby making victims of such deprivation eligible for asylum in the United States. The article …

Family In The Balance: Barton V. Barr And The Systematic Violation Of The Right To Family Life In U.S. Immigration Enforcement, David Baluarte

Scholarly Articles

The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” …

Hard And Soft Law Preferences In Business And Human Rights, Kishanthi Parella

Scholarly Articles

States and non-state actors, such as business organizations and NGOs, have varying preferences among regulatory options in business and human rights. Some actors prefer soft law governance while others advocate for legally binding solutions at the national and international levels. In this essay, I explore some of the factors that may explain why state and non-state actors hold these diverse preferences. I conclude that while some of these preferences may be attributable to the unique advantages of soft lawor hard law, other preferences likely depend on the effects produced by the interaction of both types of law within the broader …

Is It Time For Global Justice? International Human Rights And Wrongs In The 21st Century, Christopher J. Whelan

Scholarly Articles

Human rights are controversial, yet the question posed in this Article – “is it time for Global Justice?” – begs several, critical, questions which must be addressed first. If humans disagree on which rights should be universal; if human rights are “little more than thistledown, springing up at random and blowing away as time’s whirligig spins,” then how on earth can there be international human rights?

The Arrival Of "Statelessness Studies"?, David C. Baluarte

Scholarly Articles

In this symposium contribution, the author provides a view that the study of statelessness has emerged as a multi-disciplinary field and urge that we institutionalize it as such. Statelessness is fundamentally a legal concept. The definition of ‘stateless person’ specifically refers to the operation of law, and the protections envisioned by both the 1954 and 1961 Conventions afforded to stateless persons are legal in nature. At the same time, formal legal reasoning has proven inadequate to fully understand statelessness and protect stateless persons. Moreover, factual statelessness enjoys few legal protections, but is essential to a more robust understanding of nationality …

From Timbuktu To The Hague And Beyond: The War Crime Of Intentionally Attacking Cultural Property, Mark A. Drumbl

Scholarly Articles

This essay refracts the criminal conviction and reparations order of the International Criminal Court (ICC) in the Al Mahdi case into the much broader frame of increasingly heated public debates over the protection, removal, defacement, relocation, display and destruction of cultural heritage in all forms: monuments, artefacts, language instruction, art and literature. What might the work product of the ICC in the Al Mahdi proceedings -- and international criminal law more generally -- add, contribute or excise from these debates? This essay speculatively explores connections between the turn to penal law to protect cultural property and the transformative impulses that …

Book Review, Marcos Zunino, Justice Framed: A Genealogy Of Transitional Justice (2019), Mark A. Drumbl

Scholarly Articles

Transitional justice initiatives, broadly speaking, respond to systematic human rights abuses. These initiatives take multiple shapes and forms. This means that the actual practice of transitional justice is diverse and organic. Transitional justice discourse, however, is aspirational, normative and selective. It is less heterogeneous and far more directive. Marcos Zunino’s eye-opening book, Justice Framed, is about gaps between narrative discourse and tangible practice. It is about the effects of discourse on practice. More pointedly, Justice Framed is about how discourse ‘surfaces’ certain kinds of practices of the past while sidelining and ignoring others. Hence, to come full circle, this book …

Epilogue: Homecoming Kings, Queens, Jesters, And Nobodies, Mark A. Drumbl

Scholarly Articles

This epilogue unpacks the return of convicted war criminals as homecomings, with all the attendant rites, rituals, and expectations. Knotting together the various papers in this edited collection, this paper examines how the international community constructs an ideal homecoming and, in turn, how such a construction may simply be fanciful.

Book Review, Anton Weiss-Wendt, The Soviet Union And The Gutting Of The Un Genocide Convention (2017), Mark A. Drumbl

Scholarly Articles

Weiss-Wendt’s book unpacks what happened to “genocide” as it journeyed along this path of codification. To be clear, codification was conditioned by compromise among states; and states were often motivated by Cold War selfishness, spite, manipulation, and machination. The Convention narrowed—and even mangled—the set of protected groups to national, ethnic, racial, and religious. The Convention, moreover, limited the recognized forms that genocide could take. The title of Weiss-Wendt’s book reflects its argument that the expansiveness of genocide as an idea was “gutted” in the process of codifying it in an international treaty.

Book Review, Jamie Rowen, Searching For Truth In The Transitional Justice Movement (2017) & Leonie Steinl, Child Soldiers As Agents Of War And Peace: A Restorative Transitional Justice Approach To Accountability For Crimes Under International Law (2017), Mark A. Drumbl

Scholarly Articles

Why do truth commissions emerge following some conflicts but not others? Jamie Rowen tackles this question in Searching for Truth in the Transitional Justice Movement. Rowen approaches this topic through a detailed study of three jurisdictions: the former Yugoslavia, Colombia, and the United States. Although truth commissions did progress in Colombia, they stalled in both the former Yugoslavia in the wake of the Balkan Wars as well as in the United States in regard to the conduct of US officials after the events on 11 September 2001. Rowen unpacks what happened and what failed to happen — and why …

The Information Regulation Of Business Actors, Kishanthi Parella

Scholarly Articles

A transnational legal order (TLO) is emerging regarding the role of businesses in respecting human rights. This legal order includes multistakeholder initiatives, international organization recommendations and guidelines, NGO certifications, and other voluntary instruments. Many of the norms within this TLO are nonbinding and therefore lack mandatory compliance; what they may possess is persuasive power, particularly when the norms are developed, endorsed, and managed by reputable organizations. It is that reputational, or legitimacy, advantage that matters for encouraging industry associations to comply with the nonbinding norms associated with these organizations. Industry associations and other business actors will gravitate more towards legitimacy …

The United States And The International Criminal Court: A Complicated, Uneasy, Yet At Times Engaging Relationship, Leila Nadya Sadat, Mark A. Drumbl

Scholarly Articles

The United States is not a party to the International Criminal Court and this Article demonstrates that it has a complicated relationship to questions of complementarity in the Rome Statute. Federal and (to a small degree) state criminal law in the United States codifies some of the crimes that, conceptually, relate to conduct proscribed in the Rome Statute, but coverage is incomplete and jurisdiction may often be lacking. Thus, the United States is able to prosecute a limited number of ICC crimes in federal courts as such, particularly genocide, torture, and some war crimes including the recruitment or use of …

Victims Who Victimise, Mark A. Drumbl

Scholarly Articles

How to speak of the agency of the oppressed to harm others in times of atrocity? This article juxtaposes Holocaust literature (Levi, Frankl, Kertesz, Ka-Tzetnik) with Holocaust judging (the Kapo collaborator trials in Israel). It does so didactically to interrogate international criminal law’s interaction with former child soldier Dominic Ongwen, currently awaiting trial at the International Criminal Court.

Transitional Justice Moments, Mark A. Drumbl

Scholarly Articles

Human rights are admittedly abstract but remain deeply personal. Often, however, it is easier for transitional justice to grapple with abstracted rights than it is to come to terms with actual human beings with all our indecision, nuance, resilience and unpredictability. A transitional justice brimming with abstractions and guidelines but that condescends flesh-and-blood beings quickly becomes ineffective and dehumanized. The vacillations of the human condition may well exasperate and confound, but they may also surprise and please. They may demonstrate growth and reveal great beauty. Senegalese writer Mariama Ba, in So Long a Letter, recounts how Ramatoulaye responds to …

Extracurricular International Criminal Law, Mark A. Drumbl

Scholarly Articles

This article unpacks the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ats). The ats allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations. While diverse, citations to international cases and materials in ats adjudication cluster around three areas: (1) aiding and abetting as a mode of liability; (2) substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability. The limited capacity of international criminal courts and tribunals portends that domestic tort …

International Criminal Law: Year In Review 2014-2015, Mark A. Drumbl

Scholarly Articles

This publication is based on Professor Drumbl's remarks on September 1, 2015, at the Ninth International Humanitarian Law Dialogs held in Chautauqua, New York.

What I do not want to do is review and repeat what has already been said about the international arena. I thought what I would do is boil it down to a couple observations that I have about the activities at the international institutions over the past year, and discuss four elements that have emerged.

One is transition. What I mean by this is that the work of a number of the international institutions is winding …

Stepping Beyond Nuremberg’S Halo: The Legacy Of The Supreme National Tribunal Of Poland, Mark A. Drumbl

Scholarly Articles

The Supreme National Tribunal of Poland (Najwyzszy Trybunal Narodowy (Tribunal)) operated from 1946 to 1948. It implemented the 1943 Moscow Declaration in the case of suspected Nazi war criminals. This article unpacks two of the Tribunal’s trials, that of Rudolph Hoess (Kommandant of Auschwitz (Oswiecim) and Amon Goeth (commander of the Krakow-Plaszow labour camp). Following an introduction, the article proceeds in four sections. Section 2 sets out the Tribunal’s provenance and background, offering a flavour of the politics and pressures that contoured (and co-opted) its activities so as to recover its place within the imagined spaces of international criminal accountability. …