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Custom's Method And Process: Lessons From Humanitarian Law, Monica Hakimi

Book Chapters

A central question in the literature on customary international law (CIL) goes to method: what is the proper method for "finding" CIL - that is, for determining that particular norms qualify as ClL? The traditional method is to identify a widespread state practice, plus evidence that states believe that the practice reflects the law (opinio juris). That method has long been criticized as incoherent, unworkable, and out of touch with modern sensibilities. Thus, much of the CIL literature addresses its perceived problems. The principal goals of this literature are to help resolve whether norms that are claimed to be CIL …

Targeted Killings By Drones: A Domestic And International Legal Framework, Catherine Lotrionte

Journal of International and Comparative Law

No abstract provided.

Customary Constraints On The Use Of Force: Article 51 With An American Accent, William C. Banks, Evan J. Criddle

Faculty Publications

This article, prepared for the symposium on ‘The Future of Restrictivist Scholarship on the Use of Force’, examines the current trajectory of restrictivist scholarship in the United States. In contrast to their counterparts in continental Europe, American restrictivists tend to devote less energy to defending narrow constructions of theUNCharter. Instead, they generally focus on legal constraints outside the Charter’s text, including customary norms and general principles of law such as necessity, proportionality, deliberative rationality, and robust evidentiary burdens. The article considers how these features of the American restrictivist tradition reflect distinctive characteristics of American legal culture, and it explores the …

The Antiboycott Law: The Regulation Of International Business Behavior, Stanley J. Marcuss

Georgia Journal of International & Comparative Law

No abstract provided.

Pressures And Principles - The Politics Of The Antiboycott Legislation, Henry J. Steiner

Georgia Journal of International & Comparative Law

No abstract provided.

Off Target: Selection, Precaution, And Proportionality In The Dod Manual, Adil Ahmad Haque

International Law Studies

The United States Department of Defense Law of War Manual misrepresents customary international law governing target selection, precautions in attack and proportionality. Contrary to the Manual’s assertions, attackers with a choice of targets for obtaining a similar military advantage must select the target that endangers the fewest civilians; often must avoid harming civilians even at some additional risk to themselves or to their mission; and must refrain from attack if the expected harm to civilians—including to civilians forced to serve as human shields—would be excessive in relation to the anticipated military advantage.

The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr.

International Law Studies

The U.S. Department of Defense’s (DoD) new Law of War Manual has generated serious debate about its treatment of a variety of issues including human shields, the status of journalists, cyber operations, the precautions to be taken prior to attacks and even the role of honor in war. Although this article does not purport to be a comprehensive response to every critique of the Manual and, indeed, cites opportunities for its improvement, it nevertheless concludes that on balance the Manual provides an excellent, comprehensive and much-needed statement of DoD’s view of the lex lata of the law of war.

The Combatant’S Stance: Autonomous Weapons On The Battlefield, Jens David Ohlin

International Law Studies

Do Autonomous Weapon Systems (AWS) qualify as moral or rational agents? This paper argues that combatants on the battlefield are required by the demands of behavior interpretation to approach a sophisticated AWS with the “Combatant’s Stance”—the ascription of mental states required to understand the system’s strategic behavior on the battlefield. However, the fact that an AWS must be engaged with the combatant’s stance does not entail that other persons are relieved of criminal or moral responsibility for war crimes committed by autonomous weapons. This article argues that military commanders can and should be held responsible for perpetrating war crimes through …

The Hidden Costs Of Strategic Communications For The International Criminal Court, Megan A. Fairlie

Faculty Publications

In little more than a decade, the International Criminal Court (ICC) has received nearly 11,000 requests for its Prosecutor to conduct atrocity investigations around the globe. To date, no such communication has resulted in an official investigation. Nevertheless, the act of publicizing these investigation requests has proven to be an effective, attention-getting tool that can achieve valuable, alternative goals. This fact explains the increasing popularity of “strategic communications” — highly publicized investigation requests aimed not at securing any ICC-related activity, but at obtaining some non-Court related advantage. This Article, which is the first to identify this trend, explains why the …

The 2016 Philip C. Jessup International Law Moot Court Competition

ILSA Journal of International & Comparative Law

BACKGROUND

Riesland and Amestonia are neighboring States with a common language and similar ethnic composition. They enjoy healthy cross-border economic, cultural, and security ties. Riesland is the top importer of Amestonian agricultural products, which has contributed to Amestonia’s rapid GDP growth. The States have concluded a number of bilateral treaties on subjects such as tourism, extradition, and intelligence-sharing.

Known Unknowns: State Cyber Operations, Cyber Warfare, And The Jus Ad Bellum, Peter Z. Stockburger

American University International Law Review

No abstract provided.

Twin Peaks And Financial Regulation: The Challenges Of Increasing Regulatory Overlap And Expanding Responsibilities, Andrew J. Godwin, Steve Kourabas, Ian Ramsay

The International Lawyer

No abstract provided.

Untying The Gordian Knot: Re-Assessing The Impact Of Business And Human Rights Principles On Extractive Resource Governance In Sub-Saharan Africa, Oyeniyi Abe

American University International Law Review

No abstract provided.

Potential Impacts On Individuals Caused By The Invasion Of Ngos Into International Politics, Zhao Li, Haibin Qi

University of Baltimore Journal of International Law

In the contemporary world, NGOs are playing significant roles in international cooperation and globalization. This actively promotes the formation of a global society. Accompanying that, NGOs also have an increased international political influence. Against this background, some scholars believe the rise of NGOs will create an era of individuals’ emancipation from the sovereign states, while others consider that the golden age of autonomy has passed. This paper studies the essence of the association dominated by NGOs and how this association affects individuals in international politics. This paper suggests that the ideal subject for NGOs is one with clearly defined and …

Expanding Past Genocide, Crimes Against Humanity, And War Crimes: Can An Icc Policy Paper Expand The Court's Mandate To Prosecuting Environmental Crimes?, Payal Patel

Loyola University Chicago International Law Review

No abstract provided.

The 2016 Philip C. Jessup International Law Moot Court Competition

ILSA Journal of International & Comparative Law

The State of Amestonia and the Federal Republic of Riesland appear before the International Court of Justice in accordance with Article 40(1) of its Statute through submission of a special agreement for resolution of all the differences between them concerning the Frost Files.

Guilty Until Proven Innocent: A Comparative Analysis Of Organized Crime Laws In The United States, Italy, Japan, And Ecudor, Christina M. Strompf

ILSA Journal of International & Comparative Law

“[T]he ‘relative power’ of criminal networks will continue to rise, and some countries could even be taken over and run by these networks.”1 The Federal Bureau of Investigation (FBI) defines “organized crime” as “any group having some manner of formalized structure and whose primary objective is to obtain money through illegal activities.

Aerospace And Defense Industries, R. Locke Bell, Johny Chaklader, Donna A. Dulo, Priya Iyengar, Kevin J. Lombardo, Jason M. Silverman

The International Lawyer

No abstract provided.

Can The Icc Consider Quesztions On Jus Ad Bellum In A War Crimes Trial?, Thomas S. Harris

Case Western Reserve Journal of International Law

War has forever been considered the utmost necessary evil. Nevertheless, international law has for some time sought to limit the right to wage war (jus ad bellum), as well as the means and methods employed amid war (jus in bello). Although these two branches of law now share humanitarian purposes the prevention of war and its effects -- they have generally been kept separate throughout history. However, confronted with widespread violations of jus in bello, resulting in appalling humanitarian disasters, some have suggested amending their relationship. This was notably sought at the Nuremberg Trials, where prosecutors failed to contend that …

The Third Player-Illegal Combatant, Emanual Gross

San Diego International Law Journal

This Article will examine the current status of the international law of war with respect to terrorist organizations and their operatives. The central argument of this article is that international humanitarian law is unable to cope with the reality of international terrorism. The basic definitions of "combatant" and "civilian" are not suitable within the context of the age of terrorism. In the past, combatants were presumed to be either a member of a state, or in the alternative, freedom fighters expressing an idea of resistance against a colonial occupation. Terrorist organizations and their members are not freedom fighters, but rather, …

Drawing Lines Among The Persecuted, Kate Evans

Faculty Scholarship

Should a victim of persecution be denied protection in the United States if his persecutors forced him to participate in their campaign of terror? In its 2009 decision, Negusie v. Holder, the Supreme Court recognized the “difficult line drawing problems” presented by this question, but failed to offer concrete guidance to the lower courts or the executive agencies charged with drawing those lines. Circuit courts employ a variety of standards, leaving the law in disarray.

This Article offers original historical research to argue that asylum seekers charged with participating in persecution should be afforded a duress defense. It traces the …

Understanding The Global In Global Finance And Regulation, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr.

Faculty Scholarship

The U.S. Department of Defense’s (DoD) new Law of War Manual has generated serious debate about its treatment of a variety of issues including human shields, the status of journalists, cyber operations, the precautions to be taken prior to attacks and even the role of honor in war. Although this article does not purport to be a comprehensive response to every critique of the Manual and, indeed, cites opportunities for its improvement, it nevertheless concludes that on balance the Manual provides an excellent, comprehensive and much-needed statement of DoD’s view of the lex lata of the law of war.

Accountability And Autonomous Weapons: Much Ado About Nothing?, Charles J. Dunlap Jr.

Faculty Scholarship

This purpose of this essay is to critique a 2015 report entitled Mind the Gap: The Lack of Accountability for Killer Robots by Human Rights Watch (HRW) produced with the assistance of the Harvard Law School’s International Human Rights Clinic (IHRC). The HRW/IHRC paper attempted to establish that autonomous weapons should be banned because, they claim, “neither criminal law nor civil law guarantees adequate accountability for individuals directly or indirectly involved in the use of fully autonomous systems.” Contrary to HRW/IHRC assertions, this article maintains that although no one can “guarantee” accountability, there are sufficient legal tools to do so …

Towards A New International Law Of The Atmosphere?, Peter H. Sand, Jonathan B. Wiener

Faculty Scholarship

Inclusion of the topic ‘protection of the atmosphere’ in the current work programme of the UN International Law Commission (ILC) reflects the long overdue recognition of the fact that the scope of contemporary international law for the Earth’s atmosphere extends far beyond the traditional discipline of ‘air law’ as a synonym for airspace and air navigation law. Instead, the atmospheric commons are regulated by a ‘regime complex’ comprising a multitude of economic uses including global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks, and addressed by a wide …

Can Thomas Kwoyelo Negate The Requisite Mens Rea By Qualifying For Any Psychological Defenses Resulting From His Adbuction During His Childhood By A Militant Organization?, Scott Bobbitt

War Crimes Memoranda

No abstract provided.

Trump's Foreign Policy: Realist Economic Nationalism, Eric Engle

Loyola University Chicago International Law Review

This article presents newly-elected President Trump's proposed foreign policies, contextualizing them in the greater picture of U.S. global strategy. It argues that Trump's proposed foreign policies are largely a salutary reaction against repeated neoconservative errors, perpetrated by both Republicans and Democrats. However, like the younger President Bush, Trump pursues a unilateral approach to international relations. Trump's unilateralism risks repeating some of the unilateralist errors of the younger Bush. Moreover, Trump's policies to restrict immigration, raise wages, introduce tariffs, and pursue protectionist policies, if in fact implemented, will prove economically disastrous and will fail to deliver the promised prosperity for ordinary …

Delegating Peace Enforcement Missions- But To Whom? What The U.N.'S Recent Recommendation Reveals About Today's Crisis In Legitimate Actors For Robust Peace Operations, Karima Tawfik

Michigan Law Review Online

This Essay argues that in assessing whether or not to move towards the U.N. panel’s proposed model that champions regional actors and ad hoc coalitions over the U.N. itself, the international community must weigh the marginal costs and benefits of this plan. This essay follows the U.N. panel’s call for the international community to derive lessons from the past by examining three case studies where regional actors and ad hoc coalitions, rather than the U.N., have embarked on peace enforcement missions. It argues that if the international community chooses to follow the U.N. panel’s recommendation on deferring to regional actors …

International Intellectual Property Shelters, Sam F. Halabi

Faculty Publications

The battle over the reach and strength of international protections for intellectual property rights is one of the critical flashpoints between wealthy and low-income countries: those protections are perceived to obstruct access to essential medicines, thwart regulatory efforts to promote individual and population health, and undermine traditional forms of agriculture and food production. While scholars have thoroughly tracked the bilateral and multilateral trade and investment treaties responsible for the expansion of international intellectual property rights worldwide, they have paid significantly less attention to the strength and form that opposition to international intellectual property expansion has taken. This Article examines the …

The Destruction Of Cultural Heritage: A Crime Against Property Or A Crime Against People?, 15 J. Marshall Rev. Intell. Prop. L. 336 (2016), Patty Gerstenblith

UIC Review of Intellectual Property Law

The destruction of cultural heritage has played a prominent role in the ongoing conflicts in Syria and Iraq and in the recent conflict in Mali. This destruction has displayed the failure of international law to effectively deter these actions. This article reviews existing international law in light of this destruction and the challenges posed by the issues of non-international armed conflict, non-state actors and the military necessity exception. By examining recent developments in applicable international law, the article proposes that customary international law has evolved to interpret existing legal instruments and doctrines concerning cultural heritage in light of the principles …