Law Commons^™

Law Not War: A Reflection On The Life And Work Of Benjamin B. Ferencz, 1920-2023, Patricia M. Mische

The Journal of Social Encounters

Solidarity in this essay is differentiated from collectivism, conformity, group think, herd mentality and mob action. It is defined as a mindful and empathetic choice to work in unity with others to alleviate human suffering and uphold human dignity by advancing systems of greater justice, peace, freedom, and inclusion for all. This form of solidarity is explored through the prism of one person’s life – that of Benjamin Ferencz – and how he used his experience, talents, and skills to develop and promote the international legal framework needed to address and prevent crimes against humanity. It traces his life from …

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 …

Justice Without Power: Yemen And The Global Legal System, Amulya Vadapalli

Michigan Law Review

The war in Yemen has remained the world’s worst humanitarian crisis since 2015, and yet it is shockingly invisible. The global legal system fails to offer a clear avenue through which the Yemeni people can hold the state actors responsible for their harm accountable. This Note analyzes international legal mechanisms for vindicating war crimes and human rights abuses perpetrated in Yemen. Through the lens of Yemen’s humanitarian crisis, it highlights gaps in the global legal structure, proposes alternative accountability processes, and uses a variety of sources—including interviews with practitioners and Arabic language legal scholarship—to explicate a victim-centered transitional justice process …

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.

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 …

International Criminal Responsibility Of The Individual: A Quantum Leap For Man’S Humanity, Giovanni Distefano Prof.

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

Properly speaking, international criminal responsibility is not a new chapter of public international law, but rather the recent revival of an old chapter of the Law of Nations. In the recent past, we have seen the emergence of ad hoc international criminal tribunals that is with a limited competence, as established in their statutes.([1]) Instead, today’s International Criminal Court enjoys, within its statutory (treaty) limits, a general jurisdiction; it is thus a permanent organ of a general character, mirroring the ICJ in matters of international criminal law. It will also be in charge of the international criminal responsibility …

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 …

Parameters Summer 2022, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

Dysfunctional Warfare: The Russian Invasion Of Ukraine, Rob Johnson

The US Army War College Quarterly: Parameters

Russia’s invasion of Ukraine was based on false premises, faulty assumptions, and a weak strategy. As the conflict has unfolded, heavy losses have imposed a strain on available Russian manpower. The Russian army reached a culminating point outside Kyiv and has exhibited little sign of operational learning. By contrast, Ukrainians have fought an existential war, making good use of dispersed light infantry tactics with high motivation levels. Western support has allowed them to compensate for their deficiencies in armaments and munitions. This commentary also shows military and policy leaders how the political context continues to impose limitations on the Ukrainians.

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 …

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 …

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

Animating The U.S. War Crimes Act, Beth Van Schaack

International Law Studies

All war crimes are challenging to prosecute. Typical reasons include the technicality of some constitutive elements, the difficulties of amassing sufficient evidence, the vagaries of unreliable or unavailable witnesses, and the often-impenetrable khaki wall of silence. Adding to these challenges, the United States has erected a number of idiosyncratic structural barriers in the way in which it has incorporated the prohibitions against war crimes into its domestic legal frameworks, both military and civilian. This article addresses problems with the U.S. federal war crimes statute and proposes reforms that would (1) better conform to U.S. obligations under the Geneva Conventions and …

U.S. Recognition Of A Commander’S Duty To Punish War Crimes, Brian Finucane

International Law Studies

This article explores the United States' recognition of the doctrine of command responsibility. The doctrine has been invoked by those alleging that President Trump’s pardons of U.S. personnel convicted or accused of war crimes could amount to war crimes themselves. The article focuses on a commander’s duty to punish war crimes by his subordinates. It examines the United States’ past recognition of the duty to punish as an element of command responsibility under the law of war. The principle that a commander has an obligation to punish war crimes by his subordinates is not a progressive development of the law …

Sexual Slavery As A War Crime: A Reform Proposal, Alessandro Storchi

Michigan Journal of International Law

For the first time in the history of international criminal law, the ICC Elements of Crimes included a statutory definition of sexual slavery as a war crime and as a crime against humanity. Such definition is derived from, and in fact almost identical to, the definition of enslavement in the same text. In July 2019, that language for the first time was adopted and applied in the conviction of general Bosco Ntaganda, the first ever conviction for sexual slavery as a war crime and as a crime against humanity at the ICC, as part of the situation in the Democratic …

The Fallacy Of Contract In Sexual Slavery: A Response To Ramseyer's "Contracting For Sex In The Pacific War", Yong-Shik Lee, Natsu Taylor Saito, Jonathan Todres

Michigan Journal of International Law

Over seven decades have passed since the end of the Second World War, but the trauma from the cruelest war in human history continues today, perpetuated by denial of responsibility for the war crimes committed and unjust attempts to rewrite history at the expense of dignity, life, and justice for the victims of the most serious human rights violations. The latest such attempt is a troubling recharacterization of the sexual slavery enforced by Japan during the Second World War as a legitimate contractual arrangement. A recent paper authored by J. Mark Ramseyer, entitled “Contracting for Sex in the Pacific War,” …

International Criminal Responsibility Of The Individual: A Quantum Leap For Man’S Humanity, Giovanni Distefano

UAEU Law Journal

Properly speaking, international criminal responsibility is not a new chapter of public international law, but rather the recent revival of an old chapter of the Law of Nations. In the recent past, we have seen the emergence of ad hoc international criminal tribunals that is with a limited competence, as established in their statutes.[1] Instead, today’s International Criminal Court enjoys, within its statutory (treaty) limits, a general jurisdiction; it is thus a permanent organ of a general character, mirroring the ICJ in matters of international criminal law. It will also be in charge of the international criminal responsibility of …

Roadblocks Of Retribution: The Problems With Internationalized Criminal Tribunals As A Mechanism For Reconciliation, Elizabeth Anne Weinman

Senior Theses

Since their inception, scholars have questioned the efficacy of internationalized criminal tribunals, or ICTs. ICTs are a tool for the international community to deal with and punish perpetrators of atrocities. More recent ad hoc (or ‘as needed’) tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL) also stated goals beyond the retributive justice of punishment; they sought to promote reconciliation. I examined why these courts were ultimately unable to promote reconciliation. Through an analysis of the histories, formation, and implementation of the ICTY and SCSL, I found that these …

"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 …

The Icc Should Not Encourage Occupation, Uri Weiss

Touro Law Review

No abstract provided.

Can Soldiers Do ”The Decent Thing” In War? The Just War Tradition, The Laws Of War, And Saving Private Ryan, Ted Van Baarda

The International Journal of Ethical Leadership

No abstract provided.

Prosecuting Starvation Crimes In Yemen's Civil War, Laura Graham

Case Western Reserve Journal of International Law

"This article will discuss whether the responsible parties for starvation in Yemen can be prosecuted under international criminal law (ICL) or international humanitarian law (IHL) for war crimes or crimes against humanity (CAH)."

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 …