International Humanitarian Law Commons^™

Effectiveness Of The Existing International Humanitarian Law Provisions In Protecting The Natural Environment During Internal Armed Conflicts, Joharah M. Alkahtani

Dissertations & Theses

The environment is inherently at risk in any armed conflict and the natural environment is always a victim of wars. In order to properly protect the environment, the international community must explicitly recognize the civilian nature of the environment and bar all damages to it notwithstanding its extent, longevity and severity. The current study focuses on the environmental protection during armed conflicts. In World War I, parties employed the indiscriminate use of chemical weapons as a way of gaining military advantage over their enemies. The world responded by adopting the Convention on the Prohibition of the Development, Production, Stockpiling and …

Enter At Your Own Risk: Criminalizing Asylum-Seekers, Thomas M. Mcdonnell, Vanessa H. Merton

Elisabeth Haub School of Law Faculty Publications

In nearly three years in office, President Donald J. Trump’s war against immigrants and the foreign-born seems only to have intensified. Through a series of Executive Branch actions and policies rather than legislation, the Trump Administration has targeted immigrants and visitors from Muslim-majority countries, imposed quotas on and drastically reduced the independence of Immigration Court Judges, cut the number of refugees admitted by more than 80%, cancelled DACA (Deferred Action for Childhood Arrivals), and stationed Immigration Customs and Enforcement (“ICE”) agents at state courtrooms to arrest unauthorized immigrants, intimidating them from participating as witnesses and litigants. Although initially saying that …

Targeted Capture, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

This Article confronts one of the most difficult and contested questions in the debate about targeted killing that has raged in academic and policy circles over the last decade. Suppose that, in wartime, the target of a military strike may readily be neutralized through nonlethal means such as capture. Do the attacking forces have an obligation to pursue that nonlethal alternative? The Article defends the duty to employ less restrictive means (“LRM”) in wartime, and it advances several novel arguments in defense of that obligation. In contrast to those who look to external restraints--such as those imposed by international human …

International Criminal Law For Retributivists, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment--which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits--has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice--for example, the extreme selectivity of punishment or the lack of certain social or political preconditions--are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing …

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.

First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …

Sow What You Reap? Using Predator And Reaper Drones To Carry Out Assassinations Or Targeted Killings Of Suspected Islamic Terrorists, Thomas M. Mcdonnell

Elisabeth Haub School of Law Faculty Publications

This article explores whether targeted killing of suspected Islamist terrorists comports with international law generally, whether any special rules apply in so-called “failed states,” and whether deploying attack drones poses special risks for the civilian population, for humanitarian and human rights law, and for the struggle against terrorism. Part I of this article discusses the Predator Drone and its upgraded version Predator B, the Reaper, and analyzes their technological capabilities and innovations. Part II discusses international humanitarian law and international human rights law as applied to a state’s targeting and killing an individual inside or outside armed conflict or in …

The Pluralism Of International Criminal Law, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …

Duress, Demanding Heroism And Proportionality: The Erdemovic Case And Beyond, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

This Article discusses the Erdemovic case in order toexamine whether duress should be a defense to a crime against humanity. Although the Article contends that the arguments in favor of permitting the defendant to claim duress weaken as the seriousness of the offense charged increases, the Article also argues that the duress defense should usually succeed if it can be proved that the actor could not have prevented the threatened harm by refusing to capitulate to the coercion. After balancing the competing considerations, the Author concludes that the defendant in Erdemovic should have been able to claim duress as a …

Equal By Law, Unequal By Caste: The "Untouchable" Condition In Critical Race Perspective, Smita Narula

Elisabeth Haub School of Law Faculty Publications

Caste-based oppression in India lives today in an environment seemingly hostile to its presence: a nation-state that has long been labeled the “world's largest democracy;” a progressive and protective constitution; a system of laws designed to proscribe and punish acts of discrimination on the basis of caste; broad-based programs of affirmative action that include constitutionally mandated reservations or quotas for Dalits, or so-called “untouchables;” a plethora of caste-conscious measures designed to ensure the economic “upliftment” of Dalits; and an aggressive economic liberalization campaign to fuel India's economic growth.

This Article seeks to answer the question of how and why this …

Justice Without Politics: Prosecutorial Discretion And The International Criminal Court, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

The ICC Prosecutor's own charging policies should be prepared to give way to the judgments of legitimate political actors in times of political transition when actual arrests are more likely and competing justice proposals pose a more troubling challenge to the ICC's authority. In that scenario, I argue that the Prosecutor should encourage legitimate political actors to reach policy decisions that will command deference by the ICC. Such deference could take one or both of the following forms: (1) explicit deference to political actors, principally the U.N. Security Council acting under Chapter VII of the U.N. Charter, and (2) implied …

The Right To Food: Holding Global Actors Accountable Under International Law, Smita Narula

Elisabeth Haub School of Law Faculty Publications

Economic globalization represents both an unmet opportunity and a significant challenge for the fulfillment of social and economic rights, including the right to food. While corporate sector accountability and the responsibility of international financial institutions (IFIs) to ensure social and economic rights are now at the forefront of the globalization discourse, greater attention must be paid to how these actors can be held accountable under international law. The existing human rights legal framework is ill-equipped to deal with violations committed by non-state actors, such as transnational corporations (TNCs), and multi-state actors, such as IFIs. Using the right to food as …

Targeting The Foreign Born By Race And Nationality: Counterproductive In The "War On Terrorism"?, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

Times of emergency may justify certain restrictions on liberties, but the nature of the terrorist challenge calls for a much more measured and nuanced response. Al Qaeda is said to have cells operating in as many as sixty countries. Furthermore, Al Qaeda is best described as a decentralized network of extremist Islamic groups and individuals rather than a unified military organization. To reduce or eliminate the threat they pose requires the cooperation of the governments, police officers, and individual citizens in the countries where Al Qaeda linked individuals and groups operate. Such help is necessary to obtain intelligence, arrest, capture, …

The Death Penalty--An Obstacle To The "War On Terrorism"?, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. …

Overlooked Danger: The Security And Rights Implications Of Hindu Nationalism In India, Smita Narula

Elisabeth Haub School of Law Faculty Publications

This Article will examine the rise of Hindu nationalism in India and provide an overview of its already devastating consequences. In February and March 2002, over 2000 people were killed in state-supported violence against Muslims in the western state of Gujarat, led by the Hindu nationalist BJP that also heads a coalition government at the center. The attacks were carried out with impunity by members of the BJP, the Rashtriya Swayamsevak Sangh (“RSS,” National Volunteer Corps), the Vishwa Hindu Parishad (“VHP,” World Hindu Council), and the Bajrang Dal (the militant youth wing of the VHP). Collectively, these groups are known …

Justice Denied? The Adjudication Of Extradition Applications, Ann Powers

Elisabeth Haub School of Law Faculty Publications

This article was prompted when a well-regarded LL.M. candidate at Pace Law School's Center for Environmental Legal Studies was arrested and subjected to extradition proceedings. Faculty, staff, and students became embroiled in efforts, ultimately successful, to challenge the extradition request. In doing so, they confronted the substantive and procedural barriers faced by an accused in current extradition processes and the significant potential for human rights abuses. Thus, this article, which analyzes current extradition law, updates what has been a slowly developing area of the law and proposes changes to address some of the shortfalls. Part II presents a brief history …

Rethinking Genocidal Intent: The Case For A Knowledge-Based Interpretation, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

From its initial codification in the 1948 Convention on the Prevention and Punishment of Genocide to its most recent inclusion in the Rome Statute of the International Criminal Court, the international crime of genocide has been defined as involving an "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." The predominant interpetation of this language views genocide as a crime of "specific" or "special" intent, in which the perpetrator deliberately seeks the whole or partial destruction of a protected group. This Note pursues an alternate approach. Relying on both the history of …