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Full-Text Articles in Law
Introduction: International Law Governing Armed Conflict, Christian Marxsen, Anne Peters
Introduction: International Law Governing Armed Conflict, Christian Marxsen, Anne Peters
Book Chapters
Wars are emergency situations, but in contrast to the saying according to which necessity knows no law, they are not lawless situations at all. Quite to the contrary, an extensive body of international treaties and customary international law provides detailed regulations. However, which rules do and should apply to what kinds of situation is a hotly debated issue and the subject of this book. Different regulatory paradigms are competing for how wartime situations shall be regulated – with significant legal, practical and institutional implications. This book approaches the legal issue in a Trialogue. The characteristic feature of a Trialogue is …
Justice In Syria: Individual Criminal Liability For Highest Officials In The Assad Regime, Seema Kassab
Justice In Syria: Individual Criminal Liability For Highest Officials In The Assad Regime, Seema Kassab
Michigan Journal of International Law
Seven years have passed since revolution broke out in Syria in March of 2011. During those six years, hundreds of thousands of Syrians lost their lives, millions of Syrians were internally displaced or left the country seeking refuge, and a beautiful and diverse country was hijacked and terrorized by civil war. Every day in Syria, people are detained, tortured, raped, and killed. Attacks on homes, hospitals, markets, and schools are common occurrences. At this stage of the conflict, there is little doubt that it is the most horrific and dire humanitarian crisis since World War II. The conflict began as …
Ambivalent Enforcement: International Humanitarian Law At Human Rights Tribunals, Shana Tabak
Ambivalent Enforcement: International Humanitarian Law At Human Rights Tribunals, Shana Tabak
Michigan Journal of International Law
In addition to exploring the limitations of the Inter-American System’s jurisdictional capacity to adjudicate issues of IHL, this Article examines Inter-American jurisprudence in light of recent scholarly conversations regarding the relevance of the principle of lex specialis, which seeks to guide tribunals when two bodies of law may apply simultaneously, by providing for the prioritization of a specialized body of law over a general one. This concept, first articulated by the International Court of Justice (ICJ) in the Nuclear Weapons case, has proven to be the source of much scholarly consternation. As a means of addressing problems arising from …
Toward A Legal Theory On The Responsibility To Protect, Monica Hakimi
Toward A Legal Theory On The Responsibility To Protect, Monica Hakimi
Articles
Over the past several decades, the central focus of international law has shifted from protecting only sovereign states to protecting individuals. Still, the worst imaginable human rights violations—genocides, ethnic cleansings, crimes against humanity, and systemic war crimes—occur with alarming frequency. And the international response is often slow or ineffectual. The most recent development for addressing this problem is the “responsibility to protect,” an idea that has received so much attention that it now goes simply by R2P. Almost all heads of state have endorsed R2P. The U.N. Secretary General has made R2P a top priority and issued multiple reports on …
A Functional Approach To Targeting And Detention, Monica Hakimi
A Functional Approach To Targeting And Detention, Monica Hakimi
Articles
The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the "domain method" is practically unworkable and theoretically dubious. Practically, the …
International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi
International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi
Articles
Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street corners, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for …
International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi
International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi
Articles
Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street comers, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for …
State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway
State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway
Michigan Journal of International Law
This Article begins with an examination of the development of the law of war (Part II) and human rights law (Part III) before looking at the differing legal categories of armed conflict (Part IV). It then examines the applicability of human rights law in situations of armed conflict (Part V) and the increasing complexity of defining violence, whether as armed conflict or otherwise (Part VI). The Article proceeds with an examination of the overlap between the law of war and human rights law (Part VII) and the risk of divergence that this overlap causes (Part VIII). Finally, it seeks to …
Why Sudan? Ambiguous Identities Forge Persistent Conflict, Laura Nyantung Beny
Why Sudan? Ambiguous Identities Forge Persistent Conflict, Laura Nyantung Beny
Articles
The following essay is excerpted from the prospectus for Perspectives on Genocide and Genocidal Violence in the Sudan, edited by Law School Assistant Professor Laura N. Beny, Sondra Hale of UCLA, and Lako Tongun of Claremont Colleges, California. The book is under advance contract for publication by the University of Michigan Press. Its 14 chapters, written by prominent historians, anthropologists, social scientists, political leaders, and others, “tell overlapping stories about the social constructions of race, gender, culture, and religious and political loyalties, each of which underlies the longstanding conflict” in Sudan, according to Beny, whose essay in the book is …
A Sign Of "Weakness"? Disrupting Gender Certainties In The Implementation Of Security Council Resolution 1325, Dianne Otto
A Sign Of "Weakness"? Disrupting Gender Certainties In The Implementation Of Security Council Resolution 1325, Dianne Otto
Michigan Journal of Gender & Law
This Article will examine whether efforts to implement the Resolution suggest new ways to address the old problems: the reliance on stereotyped gender representations to rally women in the cause of peace and the vexed strategic question of how movements for transformative change might influence the mainstream institutions of international law and politics. The first concerns the way that the category of gender is deployed by women's peace activism and by international institutions as they respond to it. The author’s question is whether it is possible to rally women to promote peace, while also challenging the gender dichotomies that underpin …
From Indifference To Engagement: Bystanders And International Criminal Justice, Laurel E. Fletcher
From Indifference To Engagement: Bystanders And International Criminal Justice, Laurel E. Fletcher
Michigan Journal of International Law
This Article contributes to the scholarship on transitional justice by examining how the legal architecture and operation of international criminal law constricts bystanders as subjects of jurisprudence, considering the effects of this limitation on the ability of international tribunals to promote their social and political goals, and proposing institutional reforms needed to address this limitation.
Religious Freedom And The Undoing Of The Westphalian State, Daniel Philpott
Religious Freedom And The Undoing Of The Westphalian State, Daniel Philpott
Michigan Journal of International Law
Not so long ago, in 1998, the world acknowledged both the fiftieth anniversary of the Universal Declaration of Human Rights and the 350th anniversary of the Peace of Westphalia. The Universal Declaration was celebrated in the popular press, by thousands of activists, and at well attended open forums at schools and universities. Westphalia was noted almost exclusively at academic conferences. But public obscurity is an undeserved fate for Westphalia, for its legacy in organizing our political world vies with that of the American and French revolutions. What Westphalia inaugurated was a system of sovereign states where a single authority resided …
Sexual Slavery And The International Criminal Court: Advancing International Law, Valerie Oosterveld
Sexual Slavery And The International Criminal Court: Advancing International Law, Valerie Oosterveld
Michigan Journal of International Law
This Article explores the advancement of the international crime of sexual slavery, from its initial inclusion in the Rome Statute of the International Criminal Court through further development in the delineation of the ICC's Elements of Crime document. This Article begins with a detailed exploration of the negotiation process that led to the inclusion of the crime of sexual slavery in the Rome Statute. The first Section describes the decision to include both sexual slavery and enforced prostitution as crimes, as well as the debate on listing sexual slavery as a crime separate from that of enslavement. Next, the Section …
Sexual Violence As Genocide: The Developing Law Of The International Criminal Tribunals And The International Criminal Court, Jonathan M.H. Short
Sexual Violence As Genocide: The Developing Law Of The International Criminal Tribunals And The International Criminal Court, Jonathan M.H. Short
Michigan Journal of Race and Law
This note will explore the treatment of the two primary violent sexual acts, rape and forced pregnancy, in modern international criminal law; more specifically in its treatment as genocide. The woman as an individual is the primary sufferer of sexual violence during armed conflict, however sexual violence is a calculated means by which perpetrators seek to destroy an entire ethnic group. Sexual violence is both an attack against the woman and an attack against the ethnic group, and should be prosecuted as such. While crimes against individuals are best prosecuted as crimes against humanity or under domestic law, crimes committed …
The International Legal Implications Of "Non-Lethal" Weapons, David P. Fidler
The International Legal Implications Of "Non-Lethal" Weapons, David P. Fidler
Michigan Journal of International Law
In this Article, the author attempts a comprehensive international legal analysis of "non-lethal" weapons to raise awareness about how many international legal issues they create and about the complexity of analyzing the international legality of the development and use of these weapons. In short, the emergence of "non-lethal" weapons does not rescue international law from its crisis in connection with controlling war. Indeed, in some respects, the coming of "non-lethal" weapons threatens to deepen that crisis in new and disturbing ways.
The Right To Return Under International Law Following Mass Dislocation: The Bosnia Precedent?, Eric Rosand
The Right To Return Under International Law Following Mass Dislocation: The Bosnia Precedent?, Eric Rosand
Michigan Journal of International Law
On the night of May 2, 1997, some twenty-five abandoned Serb houses were set on fire in the Croat-controlled municipality of Drvar, part of the Muslim-Croat Federation of Bosnia and Herzegovina. It was clear from all the circumstances that Croats organized the arson of houses in Drvar to obstruct the return of the original Serb residents to the area. Croat authorities then made a concerted effort to resettle displaced Croats in Drvar in order to solidify a stretch of "ethnically-pure" territory adjacent to the Republic of Croatia. These displaced Bosnian Serbs are just a few of the estimated 2.3 million …
The Concept Of Humanitarian Intervention Revisited, Yogesh K. Tyagi
The Concept Of Humanitarian Intervention Revisited, Yogesh K. Tyagi
Michigan Journal of International Law
Every case of humanitarian intervention gives rise to mixed feelings of hope and despair. Hope comes from the involvement of the international community, and despair comes from the fact that the state system is still too weak to meet its basic responsibility, namely, the protection of human dignity. Influenced by these mixed feelings, the present article attempts a new look at the concept of humanitarian intervention. In Part I, it examines the concept of humanitarian intervention. Part II analyzes the principal aspects of humanitarian intervention: the reasons for the intervention, the character of the target state, and the status of …
The Grave Breaches System And The Armed Conflict In The Former Yugoslavia, Oren Gross
The Grave Breaches System And The Armed Conflict In The Former Yugoslavia, Oren Gross
Michigan Journal of International Law
The system of grave breaches, established in the Conventions, is the focal point of the enforcement mechanism of international humanitarian law in general and of the Conventions in particular. It is therefore surprising that very little has been written to date about this system. This article is intended to fill that gap by discussing the repression -the prohibition, prosecution, and adjudication - of grave breaches of the Conventions. The article's main purpose is to chart and map the basic contours of the terrain of an area which despite its vast significance has not been adequately and systematically explored. It is …
The Emptiness Of The Concept Of Jus Cogens, As Illustrated By The War In Bosnia-Herzegovina, A. Mark Weisburd
The Emptiness Of The Concept Of Jus Cogens, As Illustrated By The War In Bosnia-Herzegovina, A. Mark Weisburd
Michigan Journal of International Law
The aim of this article is neither to condemn departures from jus cogens nor to engage in verbal gymnastics designed to obfuscate the fact that the international community is treating or will treat "peremptory norms" as moralisms irrelevant in practical terms. Rather, this article seeks to show that the problem lies in the concept of jus cogens itself. More specifically, the article intends to make the case that the concept is intellectually indefensible - at best useless and at worst harmful in the practical conduct of international relations.
The Law Of Belligerent Occupation And The Legal Status Of The Gaza Strip, Bob Labes
The Law Of Belligerent Occupation And The Legal Status Of The Gaza Strip, Bob Labes
Michigan Journal of International Law
Israel's presence in the Gaza Strip does, in fact, raise many interesting issues in international law, including questions concerning the law of belligerent occupation, and the law of self-determination. This note examines some of these questions. Part I of the Note discusses pertinent aspects of the law of belligerent occupation. It points out that among the features of the traditional concept of belligerent occupation is the existence of an armed conflict between the occupying state and the state whose territory is occupied. Part II examines the history of the Gaza Strip, in an attempt to determine whether it can be …
Humanitarian International Law In Islam: A General Outlook, Ahmed Zaki Yamani
Humanitarian International Law In Islam: A General Outlook, Ahmed Zaki Yamani
Michigan Journal of International Law
This article covers the following topics: humanitarian law and humanistic law, general concepts of humanitarian international law in Islam: armed conflict of a non-international nature and armed conflict of an international nature, and wars against polytheists and apostates.