International Humanitarian Law Commons^™

Animating The U.S. War Crimes Act, Beth Van Schaack

International Law Studies

All war crimes are challenging to prosecute. Typical reasons include the technicality of some constitutive elements, the difficulties of amassing sufficient evidence, the vagaries of unreliable or unavailable witnesses, and the often-impenetrable khaki wall of silence. Adding to these challenges, the United States has erected a number of idiosyncratic structural barriers in the way in which it has incorporated the prohibitions against war crimes into its domestic legal frameworks, both military and civilian. This article addresses problems with the U.S. federal war crimes statute and proposes reforms that would (1) better conform to U.S. obligations under the Geneva Conventions and …

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.

Revisiting Ad Bellum Proportionality: Challenging The Factors Used To Assess It, Yishai Beer

International Law Studies

Traditionally, international law has established a binary distinction between jus ad bellum and jus in bello. The former relates to the right to exercise military force. The latter regulates the conduct of adversaries engaged in an armed conflict. However, the prevailing legal approach doesn't accept this dichotomy. It wants to reduce war's hazards by applying the ad bellum rules, including the proportionality requirement, continuously throughout the conduct of armed conflict. To that end, it has established factors that define the essence of the continuing ad bellum proportionality requirement. This article challenges the near-unanimous consensus regarding these factors. It argues that …

Redeeming Justice, Terrell Carter, Rachel López, Kempis Songster

Northwestern University Law Review

Approximately three decades ago, two of us, Terrell Carter and Kempis Songster, were sentenced to life in prison without the possibility of parole. The U.S. Supreme Court has said that this sentence, effectively an order to die in prison, represented a legal determination that we were irredeemable. In this Article, with insights from our coauthor and friend, human rights scholar Rachel López, we ask: What does it mean for the law to judge some human beings as incapable of redemption? Isn’t the capacity for change core to the human condition, and shouldn’t that be reflected in the law?

This Article …

Case Study: The International Criminal Tribunal For The Former Yugoslavia’S Court Transcripts In Bosnian/Croatian/Serbian—Part 1: Needs, Feasibility, And Output Assessment, Besmir Fidahić

Genocide Studies and Prevention: An International Journal

International Criminal Tribunal for the Former Yugoslavia (ICTY) remains the most important organization for the past, the present, and the future of the former Yugoslavia. Faced with a country that always lived under totalitarian regimes with very little insight into actions of the groups and individuals who reaped unthinkable havoc on each other at the end of the twentieth century, the ICTY set undisputable historical record about events that took place during the 1991–1999 wars and put the country on an excellent track towards transformation for the better. But even 28 years since the establishment of the ICTY, the former …

Know Thy Enemy: The Use Of Biometrics In Military Operations And International Humanitarian Law, Marten Zwanenburg

International Law Studies

Biometrics is a technology that is increasingly being adopted by armed forces. It is the automated recognition of individuals based on their biological or behavioral characteristics. Important questions in relation to the use of this technology by armed forces concern the legal framework that governs such use. This article discusses the relationship between International Humanitarian Law (IHL) and biometrics, by focusing on a number of different activities carried out during armed conflict in which biometrics can play a role. It concludes that although IHL contains no rules that expressly regulate the use of biometrics, a number of IHL rules are …

A Human Rights Crisis Under Our Roof, Aglae Eufracio

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

Abstract forthcoming.

Fiscal Decolonization-Indigenous Fiscal Autonomy And Tax Jurisdiction, Riad Kherallah

LLM Theses

This thesis focuses on the relationship between Indigenous fiscal autonomy and self-determination. Indigenous nations’ ability to achieve self-determination is dependent upon their ability to autonomously finance self-government. Unfortunately, Canada’s colonial policies have weakened Indigenous economies and rendered them dependent upon the Crown. Due to Indigenous nations’ lack of fiscal autonomy, Crown policies designed to promote Indigenous self-government have proven inadequate. This thesis argues for using the United Nations Declaration on the Rights of Indigenous Peoples as a blueprint for developing more equitable economic relations. While there are various elements to Crown-Indigenous economic relations, this thesis focuses on the distribution of …

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Stemming The Tide: Social Norms And Child Sex Trafficking, Melissa L. Breger

Dickinson Law Review (2017-Present)

Despite decades of attempts to eradicate the industry, child sex trafficking continues to flourish. Arguably, there is debate about whether adults willingly choose sex work, yet there are no arguments supporting the notion that children make any such choice. When children are bought and sold for sexual purposes, it is child sex trafficking.

Academic legal research has focused comprehensively on the identification of child victims and the prosecution of child traffickers, yet there has not been as salient a focus on reducing the market of buyers of trafficked children. It is the reduction of demand where theories of re-norming and …

Intellectual Property Exhaustion And Parallel Imports Of Pharmaceuticals: A Comparative And Critical Review, Irene Calboli

Faculty Scholarship

This Chapter addresses the topic of intellectual property (IP) exhaustion in the context of the parallel trade of pharmaceuticals. These imports, which are controversial in general, are more complex with respect to pharmaceuticals, which require additional marketing and import authorizations. Nevertheless, individual countries remain free to accept these imports under the flexibility of Article 6 of the Agreement on Trade Related Aspects to Intellectual Property Rights (TRIPS Agreement). This Chapter reviews several national approaches—in developed, developing, and least developed countries (LDCs)—from the perspective of the exhaustion of patent rights as well as other IP rights. Through this review, it highlights …

The Labyrinth Of Data Collection For Humanitarian Project Funding And Implementation, Maria Alejandra Pulido

Independent Study Project (ISP) Collection

My research concentrates on four NGOs: IOM, IDMC, JIPS, and OCHA which use different tools to collect data and translate the information into evidence for data-driven decision making (DDDM) for the implementation of humanitarian assistance projects. I focus on the importance, advantages, and various data collection tools which help ameliorate the humanitarian sector since it does not have a current professionalized path to enter the workforce. I incorporated four interviews, attended two conferences and analyzed multiple online sources during my project.

Understanding Modern History Of International Food Law Is Key To Building A More Resilient And Improved Global Food System, Michael T. Roberts

Journal of Food Law & Policy

This article advocates the need for a history of the development of modern international food law and suggests an analytical approach to complement the chronicling of events. Comprehension of this history will help elucidate the evolution of a complicated modern global food system, including its resiliency and vulnerability as demonstrated by Covid-19, thereby providing valuable context for change in the system where needed. This essay makes the case for such a history in three parts. First, it briefly demonstrates the need for a historical perspective through a critical examination of a journal article that speaks to Covid-19 food security in …

Intelligence Sharing In Multinational Military Operations And Complicity Under International Law, Marko Milanovic

International Law Studies

This article examines the international legal framework applicable to intelligence sharing in multinational military operations, with a particular focus on complicity scenarios. It first provides a theoretical overview of the role of fault in complicity, of how intent and knowledge can be conceptualized, and of the attribution of fault to States. It then looks in detail at the rule codified in Article 16 of the International Law Commission’s Articles on State Responsibility, and argues that this rule is best understood as employing multiple modes of fault (direct and indirect intent and wilful blindness). The article also argues that international humanitarian …

Booty, Bounty, Blockade, And Prize: Time To Reevaluate The Law, Andrew Clapham

International Law Studies

This article considers the so-called belligerent rights of States in times of war. In particular it focuses on booty of war, blockade, and the capture of merchant ships and their cargo. It is suggested that, while the rules may not often be applied today, they nevertheless continue to exert a certain influence, contributing to confusion about the boundaries of the legitimate use of force and a blurring of the distinction between military objectives and civilian objects.

Considering that the UN Charter has outlawed the use of force, the article also questions why such rules concerning capture should continue to have …

Fixing The Business Of Food: Aligning Food Company Practices With The Sdgs, Sustainable Development Solutions Network, Columbia Center On Sustainable Investment, Sanda Chiara Lab, Barilla Center For Food And Nutrition

Columbia Center on Sustainable Investment Staff Publications

The food sector confronts significant sustainable development challenges. It both contributes to, and suffers from, environmental degradation, especially human-induced climate change and deforestation. Although it can provide farming communities with livelihoods and incomes, it also can fuel land grabs that undermine community rights and wellbeing. The sector feeds the growing global population, but also contributes to the epidemics of obesity and metabolic diseases, while chronic malnutrition has continued to worsen in the years since adoption of the Sustainable Development Goals (SDGs).

In light of these challenges and opportunities, a number of frameworks, guidance documents, and standards have aimed to create …

A Fresh Approach To What It Means To Be A Religious Refugee, Brienna Bagaric, Jennifer Svilar

Pepperdine Law Review

The world is currently experiencing an unprecedented displaced persons crisis. There are more than 70 million people worldwide who have been forcibly displaced from their homeland and are in search of a new country in which to settle. There is no international appetite to absorb these people. There is only one legal pathway by which displaced people can claim an entitlement to settle in another country. This is pursuant to the Refugee Convention. More than 140 countries including the United States are signatories to this convention. The difficulty experienced by displaced people is now particularly acute so far as entry …

The Plea Of Necessity: An Oft Overlooked Response Option To Hostile Cyber Operations, Louise Arimatsu, Michael N. Schmitt

International Law Studies

States are increasingly focused on the measures—cyber or otherwise—that they can take in response to hostile cyber operations. Although cyber operations are usually responded to with acts of “retorsion” (acts that are lawful, although unfriendly), international law recognizes other self-help mechanisms that allow for more robust responses. In the cyber context, most attention has focused on countermeasures and self-defense. Yet, both are subject to various limitations that constrain their availability.

This article examines a further option, the so-called “plea of necessity.” It allows States to respond to a hostile cyber operation when the action taken would otherwise be unlawful but …

Tindak Pidana Pencucian Uang, Yunus Husein

Indonesian Journal of International Law

Money laundering is considered as a transnational organized crime. The logic of elimination money laundering is to omit the criminal’s motivation to enjoy their proceed of crime. The efforts to eliminate money laundering is much related to the issues of national jurisdiction. Thus, it requires international cooperation among countries, where international law is needed. Eventhough there is still no specific convention about money laundering, but regulation about money laundering is partially arranged in some conventions such as Vienna Convention 1988 and in UN Convention on Transnational Organized Crimes 2000. Indonesia has enacted a regulation is amended by UU No. 25 …

Enhancing Maritime Security In The Malacca Strait: Cooperation Against Piracy And Maritime Terrorism, Rheny Wahyuni Pulungan

Indonesian Journal of International Law

The Malacca Strait, together with the Singapore Strait, are two of the most important straits in the world and consequently there is significant traffic through them, reported to be approximately 60,000 vessels a year. The rising number of violent and well-coordinated attacks on transiting ships in these straits has become a very serious problem, such as threats of unauthorized boarding; theft of personal property, cargo and the ships themselves; and violence against, and the kidnapping or murder of, seafarers. One effort which is likely to enhance security in the Malacca Straits is the establishment of 'joint patrol areas', where more …