Law Commons^™

Prosecuting Gender Persecution At The Icc: Definitions, Policies, And Practice, Milena Sterio, Yvonne Dutton

Law Faculty Articles and Essays

This Article's primary goal is to highlight the International Criminal Court (ICC)'s Office of the Prosecutor (OTP)'s Gender Persecution Policy, while also demonstrating its place in the trajectory of the ICC's progress in changing the course of human history as relates to the recognition of and prosecution of sexual and gender-based (SGBV) crimes. To that end, some background is necessary to contextualize the ICC's current policy and practice as relates to the crime of gender persecution. Part II discusses the Rome Statute's unique contributions to the development of international criminal law regarding SGBV crimes, including the crime of gender persecution. …

Globalization, State Sovereignty, And The Development Of International Criminal Law, Milena Sterio

Law Faculty Articles and Essays

"Today, virtually all nation-states have gradually become enmeshed in and functionally a part of a larger pattern of global transformations and global flows. Transnational networks and relations have developed across virtually all areas of human activity. Goods, capital, people, knowledge, communications, and weapons, as well as crime, pollutants, fashions and beliefs, rapidly move across territorial boundaries. Far from being a world of "discrete civilizations, "or simply an international society of states, it has become a fundamentally interconnected global order, marked by intense patterns of exchange as well as by clear patterns of power, hierarchy and unevenness."

"To speak of globalization …

The War In Ukraine And The Legitimacy Of The International Criminal Court, Milena Sterio, Yvonne Dutton

Law Faculty Articles and Essays

The news of the many atrocities being committed as the war in Ukraine rages on has prompted a chorus of calls seeking to hold perpetrators accountable. Heralded as a critical player is the International Criminal Court (the ICC or “Court”). Unlike in the past where states have decried requests to increase the Court’s budget or refused to cooperate with the Office of the Prosecutor’s (“OTP”) efforts to gather evidence or arrest suspects, states are generously donating funding and other resources to bolster the Court’s likelihood of bringing successful prosecutions.

This Article argues that the unique situation surrounding state support for …

The Ukraine Crisis And The Future Of International Courts And Tribunals, Milena Sterio

Law Faculty Articles and Essays

The Ukraine crisis is an example of modern-day conflict which poses various accountability challenges and demonstrates that not a single existing prosecutorial mechanism is capable of achieving a full measure of accountability while fulfilling the different goals of international criminal justice. As discussed in this Article, the prosecution of a sufficient number of Russian perpetrators of atrocities, as well as of Russian leaders, conducted legitimately and effectively, will necessitate the utilization of almost all accountability models - Ukrainian courts, a war crime chamber, the ICC, as well as an ad hoc aggression tribunal. The Ukrainian crisis demonstrates that all international …

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

Grotian Moments And Statehood, Milena Sterio

Law Faculty Articles and Essays

Grotian Moments are instances of accelerated formation of customary law, sparked by significant world events, such as wars, terrorist attacks, or natural catastrophes. This Article applies the Grotian Moment theory to the legal criteria of statehood, in an attempt to assess whether an evolution in specific elements of statehood has resulted in such paradigm-shifting Grotian Moments. In Part II, this Article analyzes the Grotian Moment theory while distinguishing it from other types of customary law formation. Part III focuses on the legal theory of statehood and each of its constitutive elements. Part IV discusses whether any such elements of statehood …

Darryl Robinson's Model For International Criminal Law: Deontic Principles Developed Through A Coherentist Approach, Milena Sterio

Law Faculty Articles and Essays

Darryl Robinson’s new book, Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law, presents a compelling argument: that international criminal law would benefit from deontic reasoning. According to Robinson, this type of deontic reasoning “requires us to consider the limits of personal fault and punishability,” and is a “normative reasoning that focuses on our duties and obligations to others.” Moreover, Robinson argues in this book that coherentism is the best method for identifying and defining deontic principles. Robinson explains that coherentism is an approach where “[w]e use all of our critical reasoning tools to test past understandings …

Women As Judges At International Criminal Tribunals, Milena Sterio

Law Faculty Articles and Essays

This Article analyzes the presence of female judges within international criminal tribunals, starting with the Yugoslavia and Rwanda Tribunals in the 1990s. In particular, the Article discusses specific numbers of female judges at the Yugoslavia and Rwanda Tribunals, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the newly created Kosovo Specialist Chambers, and the International Criminal Court.

While the presence of women as prosecutors, defense attorneys, victim representatives, and other professionals at these tribunals is equally important, this Article focuses on the number of female judges, as such data …

Introductory Note To United Nations Security Council Resolution 2498, Milena Sterio

Law Faculty Articles and Essays

On November 15, 2019, the United Nations Security Council passed Resolution 2498, which extended the mandate of the previously established Panel of Experts of Somalia by an additional year; the Resolution also expanded the scope of the Panel's inquiry by specifically tasking the Panel to investigate Al-Shabaab's revenue sources and illegal taxation schemes.

Introductory Note: Georgia V. Russia (European Court Of Human Rights), Milena Sterio

Law Faculty Articles and Essays

In a January 31, 2019 decision, the European Court of Human Rights (ECtHR, or Court) held that Russia, the respondent state, should pay Georgia, the applicant state, 10 million euros as just satisfaction for violations committed by Russia against Georgian nationals; these violations had previously been established in the Court's main judgment in 2014 (Georgia v. Russia). The Court also held that Georgia should distribute this amount to approximately fifteen hundred Georgian victims, which had been identified in the Court's main judgment in 2014. In this important decision, the ECtHR continued to build on its recent case law, in holding …

The International Criminal Court: Current Challenges And Prospect Of Future Success, Milena Sterio

Law Faculty Articles and Essays

The ICC has served as an agent of impunity since its inception in 1998, and its fundamental role in the field of international criminal justice as a permanent accountability mechanism remains undisputed. The court is, however, facing significant challenges which may threaten its legitimacy. These challenges can be surmounted if the court is willing to take a hard look at its own procedures, prosecutorial practices, and judicial attitudes. The ICC's future may be bright if the court makes significant changes in the present.

Talking Foreign Policy: The Rohingya Genocide, Milena Sterio, Todd Buchwald, Jenny Domino, Rebecca Hamilton, Michael P. Scharf, Paul R. Williams

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.

OCTOBER 1, 2019 BROADCAST

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 …

Talking Foreign Policy: Responding To Rogue States, Milena Sterio, Todd F. Buchwald, James Johnson, Michael P. Scharf, Paul R. Williams

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest manner:

• The ambassador: …

Talking Foreign Policy: North Korea Summit, Milena Sterio, Shannon French, Tim Webster, Paul R. Williams, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest manner:

• The ethicist: …

Corporate Liability For Human Rights Violations: The Future Of The Alien Tort Claims Act, Milena Sterio

Law Faculty Articles and Essays

This paper addresses complex legal issues in light of and in the context of Jesner v. Arab Bank, a case involving the scope of corporate liability for human rights abuses under the Alien Tort Claims Act (ATCA). Part I provides a brief overview of the Jesner case. Part II outlines the case Kiobel v. Royal Dutch Petroleum Co. and its holding. Part III discusses Kiobel's shortcomings, including the vagueness of its "touch and concern" test and its failure to specify which law—international or domestic—applies to the issue of corporate liability under the ATCA. Part IV then proposes other …

Talking Foreign Policy: Jesner V. Arab Bank, Milena Sterio, Thomas Buergenthal, Carsten Stahn, Avidan Cover, Timothy Webster, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by Case Western Reserve University School of Law Co-Dean Michael Scharf, in which experts discuss the salient foreign policy issues of the day. Dean Scharf created Talking Foreign Policy to break down complex foreign policy topics that are prominent in the day-to-day news cycles yet difficult to understand.

This broadcast featured:

• Judge Thomas Buergenthal, the youngest survivor of the Auschwitz death camp, who went on to become the Dean of American University Law School, to serve for twelve years as a judge on the Inter-American Court of Human Rights, and then …

Sequencing Peace And Justice In Syria, Milena Sterio

Law Faculty Articles and Essays

Since 2011, the conflict in Syria has caused the death of hundreds of thousands of individuals and the displacement of millions. Efforts to refer the Syrian situation to the International Criminal Court (ICC) have consistently failed despite well-documented reports about the commission of serious crimes in Syria, including the use of chemical weapons against civilians, torture, the use of child soldiers, and crimes of sexual violence.

This Article explores whether the dual goals of peace and justice can be reconciled in the Syrian context and how these goals may be properly sequenced in order to potentially achieve long-lasting peace in …

The Karadžić Genocide Conviction: Inferences, Intent, And The Necessity To Redefine Genocide, Milena Sterio

Law Faculty Articles and Essays

This Article first discusses and analyzes the Genocide Convention and its strict definition of genocide and the "intent" requirement. It then focuses on the evolution of this definition in light of the recent Karadžić case. This Article demonstrates that in modern-day conflicts, the finding of genocidal intent may be an impossible task for the prosecution and that the ICTY Trial Chamber’s method of inferring intent based on knowledge and other indirect factors may be the only way that prosecutors will be able to obtain future genocide convictions. This Article then discusses a possible re-drafting and re-conceptualizing of the genocide definition …

Individual Criminal Responsibility For The Destruction Of Religious And Historic Buildings: The Al Mahdi Case, Milena Sterio

Law Faculty Articles and Essays

Ahmad Al Faqi Al Mahdi, also known as Abou Tourab, was a member of the radical Islamic group Ansar Eddine, serving as one of four commanders during its brutal occupation of Timbuktu in 2012. The International Criminal Court (ICC) indicted Al Mahdi on several charges of war crimes for intentional attacks against ten religious and historic buildings and monuments. All the buildings that Al Mahdi was charged with attacking had been under UNESCO protection and most had been listed as world heritage sites.

The case against Al Mahdi at the ICC unfolded relatively quickly and efficiently, from the official Malian …

Self-Determination And Secession Under International Law: Nagorno-Karabakh, Milena Sterio

Law Faculty Articles and Essays

The principle of self-determination grants minority groups defined as “peoples” the right to auto-determine their political future. This principle, while stemming back to post-World War I ideologies, has guided decolonisation and has served as the theoretical underpinning of former colonies’ independence quests. In the more recent decades, however, questions have surfaced regarding this principle’s applicability in the non-decolonisation paradigm: can secessionist movements rely on the principle of self-determination to justify their independence demands? Or, does the principle of self-determination in the non-decolonisation paradigm only bestow a right to internal autonomy on secessionist entities, while obligating them to remain within the …

The Applicability Of The Humanitarian Intervention 'Exception' To The Middle Eastern Refugee Crisis: Why The International Community Should Intervene Against Isis, Milena Sterio

Law Faculty Articles and Essays

The refugee crises in Iraq and Syria, which has been evolving over the past decade as a result of both ongoing conflict in these countries and the recent surge of Islamic State-led violence, has morphed into a true humanitarian catastrophe. Tens of thousands of refugees have been subjected to violence and have been dispersed and forced to live under dire conditions; such massive population flows have destabilized the entire region and have threatened the stability of neighboring countries. The United States and several other countries have been engaged in a military air strike campaign against the Islamic State, but the …

Self-Determination And Secession Under International Law: The New Framework, Milena Sterio

Law Faculty Articles and Essays

This Article argues toward the necessity to develop a new international law framework on secession. The development of such a normative framework is necessary in order to address various secessionist situations around the globe and to replace the resolution of secessionist struggles through politics of the Great Powers with true legal norms.

This Article first analyzes several examples of successful and failed secessions in recent history. Next it focuses on existing international law on the subject matter of secession and concludes that existing norms are insufficient and indefinite. Finally, it develops a new proposed framework on secession, which attempts to …

Humanitarian Intervention Post-Syria: A Grotian Moment, Milena Sterio

Law Faculty Articles and Essays

Grotian Moment is a term that signifies a "paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance." A Grotian Moment is thus "an instance in which a fundamental change in the exiting international system happens, thereby provoking the emergence of a new principle of customary law with outstanding speed." Professor Richard Falk invented the term Grotian Moment in 1985. Since then, the term has been employed by experts in a variety of ways. Here, I will adopt the following meaning of Grotian Moment as proposed by Professor Michael Scharf: "a transformative …

Humanitarian Intervention Post-Syria: Legitimate And Legal?, Milena Sterio

Law Faculty Articles and Essays

This article looks at the state of affairs under international law by focusing on the existing ban on the use of force and the established exceptions thereto as of December 2014. Topics discussed include the concept of humanitarian intervention, the civil crises in Syria, and international law for the legality of military intervention in Syria. It also examines Harold Koh's proposed normative framework for humanitarian intervention.

Juvenile Pirates: "Lost Boys" Or Violent Criminals?, Milena Sterio

Law Faculty Articles and Essays

Piracy off the coast of Somalia has flourished over the past decade, and has both caused a global crisis in maritime shipping and destabilized regional security in East Africa. In addition, piracy attacks have spread more recently to the coast of West Africa, and in particular, the Gulf of Guinea. Thus, piracy is an ongoing global issue that should continue to occupy many maritime nations in the near future, and one that should command continuous scholarly attention.

This article examines the issue of juvenile piracy, with a specific focus on the treatment of juvenile piracy suspects by both the capturing …

A Tale Of Two States: Territoriality And Minority Rights In Kosovo And Georgia, Milena Sterio

Law Faculty Articles and Essays

This article argues that territoriality and minority rights can work in tandem, because most secessionist claims by minority groups involve claims to territory. Thus, territoriality and minority rights are both about land, and the relevant inquiry should be whether to alter the status quo, at the expense of a mother State's territory and in order to accommodate minority rights. This paper seeks to answer this difficult question in the context of recent secessionist struggles in Kosovo and in Georgia. Part 2 discusses the principle of territorial integrity under international law, before turning to a discussion of minority rights, and in …

A Grotian Moment: Changes In The Legal Theory Of Statehood, Milena Sterio

Law Faculty Articles and Essays

This article examines the Grotian Moment theory and its practical application toward the legal theory of statehood. To that effect, this article describes, in Part II, the notion of a Grotian Moment. In Part III, it examines the legal theory of statehood in its traditional form. Part IV describes changes in the legal theory of statehood brought about by the forces of globalization in a Grotian Moment manner. These changes include a new notion of state sovereignty and the accompanying right to intervention, the emergence of human and minority rights that sometimes affect state territorial integrity, the existence of de …

On The Right To External Self-Determination: "Selfistans," Secession, And The Great Powers' Rule, Milena Sterio

Law Faculty Articles and Essays

This Article discusses, in Part II, the notion of self-determination, its history, and its recent applications. In Part III, this Article describes how the theory of self-determination is linked to other international law concepts, such as statehood, recognition, sovereignty, and intervention. Part IV focuses on several case studies to illustrate the discrepancy of results attached to the self-determination struggles by different peoples.

This Article describes the self-determination quests of East Timor, Kosovo, Chechnya, South Ossetia, and Abkhazia, and will show that while the first two entities achieved external self-determination, the latter three did not. Finally, Part V of this Article …