Law Commons^™

Occupation Failures And The Legality Of Armed Conflict: The Case Of Iraqi Cultural Property, Mary Ellen O'Connell

The Ohio State University Moritz College of Law Working Paper Series

US Secretary of Defense Donald Rumsfeld dismissed the looting of the Iraqi National Museum in April 2003 by remarking, “stuff happens.” In doing so, he gave an early indication that in planning to invade Iraq, the Bush Administration failed to take seriously the legal obligations of an occupying power. Occupying powers have a variety of binding legal obligations, including obligations to stop looting, protect cultural property, and protect persons in detention. Yet, the Administration sent a wholly inadequate force to fulfill those obligations, and, more seriously, the force received no direct and imperative orders to do so. As a result, …

Justice In The Palestine-Israel Conflict, John B. Quigley

The Ohio State University Moritz College of Law Working Paper Series

Military-territorial conflicts are typically addressed by the international community on the basis of considerations of justice, meaning relevant standards accepted by the community of states for conduct among states and peoples. If such standards are followed, resulting agreements stand a greater chance of providing for a lasting peace. In the conflict over historic Palestine, considerations of justice have had to compete with considerations of major-power policy, from early twentieth century to the present. When negotiations re-commence, the international community should ensure that they be conducted with considerations of justice at the forefront. If that approach is taken, in particular regarding …

“Ua Koe Ke Kuleana O Na Kanaka” (Reserving The Rights Of Native Tenants): Integrating Kuleana Rights And Land Trust Priorities In Hawai`I, Jocelyn B. Garovoy

ExpressO

No abstract provided.

A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris

ExpressO

Attempts to outlaw political groups that are alleged to approve the use of violence, to limit the expression of views that challenge the core values of democratic nation-states, and to ban radical, separatist, or religious political parties are more widespread in recent years than at any other time since 1945. They gave rise in the last few years to litigation in Constitutional Courts and Supreme Courts in Spain, Germany, Turkey, France, Israel, and Latvia, as well as in the European courts.

The present article tells the story of the encounter in the years 1959-1965 between the Pan-Arab national movement El …

The Rise Of Managerial Judging In International Criminal Law, Maximo Langer

ExpressO

Abstract This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some of the …

International Legal Compliance: Surveying The Discipline, William C. Bradford

ExpressO

No abstract provided.

Evaluating Work: Enforcing Occupational Safety And Health Standards In The United States, Canada And Sweden, Daniel B. Klaff

ExpressO

The United States’ occupational safety and health enforcement system is breaking down. Klaff argues that much of this breakdown has to do with a fundamental lack of worker participation in the United States’ safety and health system. Klaff makes his case by comparing and contrasting the history and enforcement schemes of the United States, Canada, and Sweden. After arguing for economic rights as human rights, Klaff concludes by offering a set of recommendations for the United States’ occupational safety and health system based upon his value-centered analysis.

Democratic Responses To Terrorism: A Comparative Study Of The United States, Israel And India, Arunabha Bhoumik

ExpressO

This paper compares counter-terrorist policies in the United States, Israel and India through the lens of three models of counter-terrorist policies: the war model, the intelligence model, and the criminal justice model. After describing each model, the paper introduces different variables that are relevant in understanding a country’s counter-terrorist policies. Using these variables, the paper attempts to analyze and classify each country’s counter-terrorist policies.

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.

The Right To Family Life And Civil Marriage Under International Law And Its Implementation In The State Of Israel, Yuval Merin

ExpressO

The article deals with the protection of the right to family life under international law and its implementation in the State of Israel on three levels: protection of the family cell as a single unit; protection of the individuals comprising the family unit; and protection of the family in special circumstances (e.g., immigration rights).

The article begins by analyzing the characteristics of the right to family life and examining various definitions of the “family” under international and Israeli law. It also examines what it is that the right to family life encompasses and how it should be classified within the …

International Child Abductions: The Challenges Facing America , Charles F. Hall

ExpressO

International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …

Reverse Moderate Relativism Applied: Third Generation International Human Rights From An Islamic Perspective, Jason G. Morgan-Foster

ExpressO

This article develops my reverse moderate relativist theory on the universality of human rights, which I proposed in an article forthcoming in the ILSA J. Intl. & Comp. L. In this prior work, I argued that the debate over the universality of international human rights norms is too constrained, and that the three most popular theories in the universality debate – universalism, strict cultural relativism, and moderate cultural relativism – are each conceptually flawed. Universalism is untenable, because it eliminates the tensions between various cultures simply by ignoring them. Strict cultural relativism is unsatisfactory, because it discredits the whole field …

Assisted Reproduction In Germany And The United States: An Essay In Comparative Law And Bioethics , John A. Robertson

ExpressO

No abstract provided.

Lysistrata, Women And War: International Law's Treatment Of Women In Conflict And Post-Conflict Situations, Emma L. Lindsay

ExpressO

Aristophanes’ Lysistrata is powerful anti-war play often revived during times of international conflict. This paper uses Lysistrata to highlight and critique binary oppositions that underpin the treatment of women in conflict and post-conflict situations in the play and in international law. While many of the experiences of women and girls in war are similar to those of men and boys, there are important differences. Existing inequalities between women and men, and patterns of discrimination against women and girls, tend to be exacerbated in wartime. There are circumstances in which women suffer harms of a different kind and to a different …

A Positive Theory Of Universal Jurisdiction, Eugene Kontorovich

ExpressO

Academic discussions of universal jurisdiction (“UJ”) have been almost entirely normative, focusing on what UJ “should” be in an ideal world. This Article breaks with the normative approach and analyzes UJ from a positive perspective, drawing on historical evidence and rational choice models to understand what UJ has in fact been and what it can be.

Piracy was for centuries the only UJ offense. This Article begins by isolating the characteristics of piracy that made it uniquely suitable for UJ. While these characteristics show why UJ over piracy would cause fewer problems than UJ over other crimes, they still fail …

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.

Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis

ExpressO

Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.

This article explores …