Law Commons^™

Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Advances in information technology have irrevocably changed the nature of war crimes investigations. The pursuit of accountability for the most serious crimes of concern to the international community now invariably requires access to digital evidence. The global reach of platforms like Facebook, YouTube, and Twitter means that much of that digital evidence is held by U.S. social media companies, and access to it is subject to the U.S. Stored Communications Act.

This is the first Article to look at the legal landscape facing international investigators seeking access to digital evidence regarding genocide, war crimes, crimes against humanity, and aggression. It …

Post-Conflict Reconciliation In Ukraine, Elena Baylis

Articles

Reconciliation mechanisms should be a core component of transitional justice in Ukraine. The nature of this conflict as a war justified by claims about history, identity, and legitimacy suggests that there will be a need for post-war reconciliation initiatives. Such reconciliation measures would be intended to enable Ukraine’s Russian, Ukrainian, and other communities to live together constructively within the same state. The goals of social reconciliation also converge with Ukraine’s long-term, political aims vis-à-vis both Russia and the European Union. This paper addresses three types of reconciliation measures that are important for post-conflict Ukraine. Instrumental mechanisms to engage post-conflict social …

Russia, Ukraine, And The Challenge Of Wartime Accountability, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

There has been a notable shift in the emerging Russian perspective on international law and international organizations, a trend that began nearly a decade prior to Russia's invasion of Ukraine. Over this period, Russia has made substantial alterations to its laws, constitution, and international commitments, effectively withdrawing from previously accepted legal obligations. Furthermore, Russia has increasingly rejected fundamental international legal norms and principles with growing fervor.

In the keynote remarks delivered during the Texas Tech Law Review 2023 Criminal Law Symposium, the author delves into this significant shift, providing illustrative examples.

War Crimes: History, Basic Concepts, And Structures, Richard J. Wilson

Articles in Law Reviews & Other Academic Journals

On May 24, 20022, the Washington Post carried front-page news that a court in Ukraine had sentenced a 21-year-old Russian soldier, Vadim Shishimarin, to life imprisonment for the war crime of premeditated murder of a civilian, 62-year-old Oleksandr Shelipov. The session was the first war crimes trial in Ukraine since Russia's invasion three months earlier.

The Weaponization Of Rape: Military Culture, Tactical Warfare, And Legal Justice, Claire Velte

International Relations Summer Fellows

The long-accepted narrative of wartime rape is one of inevitability, with sexual violence committed at the hands of soldiers during conflict being written off as an unavoidable side-effect of war. In reality, however, wartime rape can be systematically and tactically employed by military forces to terrorize the bodies of their enemies, often as an attempt to physically and psychologically destroy certain populations. The act itself, when employed tactically, is legally recognized as a weapon of war—and the rape of civilians by military forces was legally designated as a crime against humanity in 1993—yet rape continues to be utilized in conflict …

War Torts, Rebecca Crootof

Law Faculty Publications

The law of armed conflict has a built-in accountability gap. Under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. Accountability mechanisms for civilian harms are limited to unlawful acts: Individuals who willfully target civilians or otherwise commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts must make reparations under the law of state responsibility. But no entity is liable for lawful but unintended harmful acts—regardless of how many or how horrifically civilians are hurt.

This Article proposes developing an …

Talking Foreign Policy: "Blood & Treasure", Milena Sterio, Michael P. Scharf, Gregory P. Noone, Sandra Hodgkinson, Darin Johnson

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to talkingforeignpolicy@case.edu.

SEPTEMBER 28, 2021 BROADCAST

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

"A Hussy Who Rode On Horseback In Sexy Underwear In Front Of The Prisoners": The Trials Of Buchenwald’S Ilse Koch, Mark A. Drumbl, Solange Mouthaan

Scholarly Articles

Ilse Koch’s trials for her role in atrocities at the Nazi Buchenwald concentration camp served as visual spectacles and primed her portrayal in media and public spaces. Koch’s conduct was credibly rumored to be one of frequent affairs, simultaneous lovers, and the sexual humiliation of prisoners. The gendered construction of her sexual identity played a distortive role in her intersections with law and with post-conflict Germany. Koch’s trials revealed two different dynamics. Koch’s actions were refracted through a patriarchal lens which spectacularized female violence and served as an optical space to (re)establish appropriate feminine mores. Feminist critiques of Koch’s trials …

Weaving A Broader Tapestry, Mark A. Drumbl

Scholarly Articles

This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020).

Charles Jalloh delivers a comprehensive and authoritative survey of the legacy—in law—of the Special Court for Sierra Leone (SCSL). Through compendious research and considerable personal experience, Jalloh tracks the SCSL’s jurisprudential contributions and legal footprints upon a number of doctrinal areas: child soldiering, forced marriage, immunities, personal jurisdiction, and amnesties. Jalloh also examines the SCSL’s interface with Sierra Leone’s truth commission. Indeed, the SCSL is among the few …

Disaggregating Corporate Liability: Japanese Multinationals And World War Ii, Timothy Webster

Faculty Scholarship

The past two decades have witnessed unprecedented attention to corporate legal liability for human rights abuses. Yet the supporting jurisprudence is relatively thin. Scholars generally agree that corporations can incur legal liability for serious violations of international human rights law. But courts find any number of ways to avoid such a result. This Article finds qualified support for an emergent norm of corporate civil liability from recent litigation in Japan. Specifically, the transnational war reparations litigation of the past three decades has yielded a consistent jurisprudence of qualified liability. Courts detail the abuses committed by Japan's largest multinational corporations, and …

Memorializing Dissent: Justice Pal In Tokyo, Mark A. Drumbl

Scholarly Articles

Memorials and monuments are envisioned as positive ways to honor victims of atrocity. Such displays are taken as intrinsically benign, respectful, and in accord with the arc of justice. Is this correlation axiomatic, however? Art, after all, may be a vehicle for multiple normativities, contested experiences, and variable veracities. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must consider the full range of initiatives—whether pop-up ventures, alleyway graffiti, impromptu ceremonies, street art, and grassroots public histories—prompted by international criminal trials. Courts may be able to stage their own outreach, to be …

Post-Genocide Justice In Rwanda, Mark A. Drumbl

Scholarly Articles

The Rwandan genocide triggered a vast number of criminal and quasi-criminal prosecutions. Rwanda therefore constitutes an example of a robust and rapid implementation of criminal accountability for atrocity. Rwanda, moreover, departed from other countries – such as South Africa – by eschewing a truth and reconciliation process as part of a transitional justice process. This chapter unpacks three levels of judicialization that promoted criminal responsibility for atrocity in Rwanda: the ICTR, specialized chambers of national courts, and gacaca proceedings. The ICTR indicted roughly 90 individuals, the national courts convicted in the area of 10,000 defendants (with some proceedings remaining ongoing), …

Lawyering Peace: Infusing Accountability Into The Peace Negotiations Process, Paul Williams

Articles in Law Reviews & Other Academic Journals

On August 28, 2019, Dr. Paul R. Williams delivered the Bruce J. Klatsky Endowed Lecture on Human Rights at Case Western Reserve University School of Law. This article, based on his lecture, examines how justice has repeatedly found a foothold in peace processes, and how the international community can continue to work towards embedding accountability into peace processes to achieve durable peace. This article traces the arc of accountability in peace processes, from an era of impunity and a period of stepping stones moments, to today’s uncertain moment for post-conflict accountability and justice mechanisms. The author argues that comprehensive transitional …

The Policy On Children Of The Icc Office Of The Prosecutor: Toward Greater Accountability For Crimes Against And Affecting Children, Diane Marie Amann

Scholarly Works

The Policy on Children published by the International Criminal Court Office of the Prosecutor in 2016 represents a significant step toward accountability for harms to children in armed conflict and similar extreme violence. This article describes the process that led to the Policy and outlines the Policy’s contents. It then surveys relevant ICC practice and related developments, concluding that despite some salutary efforts, much remains to be done to recognize, prevent and punish the spectrum of conflicted-related crimes against or affecting children.

Codifying The Obligations Of States Relating To The Prevention Of Atrocities, Sean D. Murphy

GW Law Faculty Publications & Other Works

Exactly what types of obligations of States fall within the realm of “prevention” of atrocities, such as genocide, war crimes and crimes against humanity? It could generally be thought that some types of obligations are directly connected to prevention (obligations of prevention), while others are of a different nature, though bearing upon the issue of prevention (obligations relating to prevention). Based on a review of major multilateral treaties, this essay identifies six key obligations of States that relate, directly or indirectly, to the prevention of atrocities. Such obligations were deemed essential for inclusion in the International Law Commission’s 2019 articles …

Observations Of Professor Gabor Rona On The Pre-Trial Chamber's Conclusion That Events Beyond The Territory Of Afghanistan Lack Sufficient Nexus To The Armed Conflict There For Pruposes Of Application Of Rome Statute War Crimes, Gabor Rona

Amicus Briefs

Prof. Gabor Rona, Director of CLIHHR's Law and Armed Conflict Project, submitted an amicus brief to the International Criminal Court (ICC) in connection with the Prosecutor's request to commence an investigation into international crimes arising out of the situation in Afghanistan. A Pre-Trial Chamber (PTC) had rejected the Prosecutor's request to investigate CIA war crimes arising from secret detention and torture of detainees at "black sites" in Poland, a State Party to the ICC Treaty. The PTC held that those events lacked sufficient nexus to the armed conflict in Afghanistan. Rona argues to the Appellate Chamber that both the Geneva …

Talking Foreign Policy: Untangling The Yemen Crisis, Milena Sterio, Michael P. Scharf, Paul R. Williams, James Johnson, Laura Graham

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to talkingforeignpolicy@case.edu.

The Trump Administration And The International Criminal Court: A Misguided New Policy, Milena Sterio

Law Faculty Articles and Essays

In a recent speech, National Security Advisor John Bolton delivered remarks on "Protecting American Constitutionalism and Sovereignty from International Threats." In his remarks, Bolton announced a new American policy vis-a-vis the International Criminal Court (ICC or Court). According to Bolton, the ICC "has been ineffective, unaccountable, and indeed, outright dangerous." While Bolton and others in the Trump Administration are at liberty to craft new policies, it is important that such policies be based on accurate facts and an accurate understanding of the law.

This Article highlights factual errors from Bolton's remarks and criticizes some of his arguments as misguided and …

The Persecution Of Stones: War Crimes, Law's Autonomy And The Co-Optation Of Cultural Heritage, Timothy W. Waters

Articles by Maurer Faculty

In 1567, a bridge was built over a river in Bosnia-a bridge widely seen as a work of great beauty. In 1993, it was destroyed in a war. What did its destruction mean? Was it a crime-and which one? An assault on culture-and whose? Between 2004 and 2017, a trial held in The Hague sought to answer these questions. The way it did-the assumptions and categories the prosecutors and judges deployed, the choices they made-tells us something important about how law operates and how it appropriates other bodies of knowledge, whether in a now-obscure Balkan conflict or on the battlefields …

An International Tribunal For The Use Of Nuclear Weapons, Anthony J, Colangelo, Peter Hayes

Faculty Journal Articles and Book Chapters

Although offenses against international law have been proscribed at a certain level of generality, nobody hitherto has examined closely the scientific and ecological damages that would be imposed by nuclear strikes in relation to resulting possible law-ofwar violations. To correct that information deficit and institutional shortfall, the first Part of this Article constructs a hortatory proposal for a tribunal for the use of nuclear weapons under international law. The second Part of the Article shows how such a tribunal statute would have a real-world effect on those charged with launching nuclear strikes and determining the legality of the strike orders. …

Epilogue: Homecoming Kings, Queens, Jesters, And Nobodies, Mark A. Drumbl

Scholarly Articles

This epilogue unpacks the return of convicted war criminals as homecomings, with all the attendant rites, rituals, and expectations. Knotting together the various papers in this edited collection, this paper examines how the international community constructs an ideal homecoming and, in turn, how such a construction may simply be fanciful.

The Peace Vs. Justice Debate And The Syrian Crisis, Paul Williams, Lisa Dicker, C. Danae Paterson

Articles in Law Reviews & Other Academic Journals

Peace negotiators often face the difficult decision of whether to pursue peace at the potential cost of achieving justice, or to pursue justice at the potential cost of achieving near term peace. There are abiding ethical and moral debates surrounding this tension between peace and justice. In Syria—where the death toll has exceeded 470,000, 11 million have been displaced, and there are over 14,000 documented cases of torture to the point of death—the peace versus justice debate is a living dilemma with which negotiators are currently grappling. This article strives to examine a timely facet of this multidimensional puzzle: how …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • United States Abstains on Security Council Resolution Criticizing Israeli Settlements • United States Sanctions Russian Individuals and Entities After Accusing Russian Government of Using Hacking to Interfere with U.S. Election Process; Congressional Committees and Intelligence and Law Enforcement Agencies Continue to Investigate President Trump’s Connections to Russian Officials • Second Circuit Overturns $655 Million Jury Verdict Against Palestine Liberation Organization and Palestinian Authority • New Legislation Seeks to Confirm Immunity of Artwork and Facilitate Cultural Exchange • United States Confronts China over Seizure of Unmanned Drone in the South China Sea • International Criminal Court Prosecutor …

Wrestling Tyrants: Do We Need An International Criminal Justice System?, Christopher L. Blakesley

Scholarly Works

Prof. Christopher L. Blakesley delivered this keynote address at the Crimes Without Borders: In Search of an International Justice System Symposium, held at the McGeorge School of Law in the spring of 2016.

Constructing Citizenship Through War In The Human Rights Era, Timothy W. Waters

Articles by Maurer Faculty

War's historical relationship to the creation of territorial nation-states is well known, but what empirical and normative role does war play in creating the citizen in a modern democracy? Although contemporary theories of citizenship and human rights do not readily acknowledge a legitimate, generative function for war - as evidenced by restrictions on aggression, annexation of occupied territory, expulsions, denationalization, or derogation of fundamental rights - an empirical assessment of state practice, including the interpretation of international legal obligations, suggests that war plays a powerfully transformative role in the construction of citizenship, and that international law and norms implicitly accept …

Can The International Criminal Court Deter Atrocity?, Hyeran Jo, Beth A. Simmons

All Faculty Scholarship

Whether and how violence can be controlled to spare innocent lives is a central issue in international relations. The most ambitious effort to date has been the International Criminal Court (ICC), designed to enhance security and safety by preventing egregious human rights abuses and deterring international crimes. We offer the first systematic assessment of the ICC's deterrent effects for both state and nonstate actors. Although no institution can deter all actors, the ICC can deter some governments and those rebel groups that seek legitimacy. We find support for this conditional impact of the ICC cross-nationally. Our work has implications for …

El Salvador Must End Immunity For Wartime Crimes, Lauren Carasik

Media Presence

No abstract provided.

Children, Diane Marie Amann

Scholarly Works

This chapter, which appears in The Cambridge Companion to International Criminal Law (William A. Schabas ed. 2016), discusses how international criminal law instruments and institutions address crimes against and affecting children. It contrasts the absence of express attention in the post-World War II era with the multiple provisions pertaining to children in the 1998 Statute of the International Criminal Court. The chapter examines key judgments in that court and in the Special Court for Sierra Leone, as well as the ICC’s current, comprehensive approach to the effects that crimes within its jurisdiction have on children. The chapter concludes with a …

The Combatant's Stance: Autonomous Weapons On The Battlefield, Jens David Ohlin

Cornell Law Faculty Publications

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 …