International Humanitarian Law Commons^™

Responsibility In Building Rule Of Law: Kosovo Challenges, Avdullah Robaj, Sabiha Shala

International Journal on Responsibility

The principle of the rule of law is one of the most important and essential principles for any state and for democratic society. Its fullest realization in everyday life is the best guarantee for development of democracy and recognition and enforcement of citizens' fundamental rights and freedoms. To this end, the general principles of the rule of law today occupy a special place and are fixed explicitly in contemporary constitutions and democratic legislation. The well-known countries of Western democracies have long established a rich and valuable legacy in this regard. When exploring the contours and details about establishing the rule …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Rethinking Social Resistance Through The Consolidating Politics Of Humanitarian Populism In Mytilene, Greece, Othon Alexandrakis

Indiana Journal of Global Legal Studies

During the spring of 2015, thousands of migrants began to arrive daily on the shores of Lesvos, Greece, from nearby Turkey. As the Greek government and the European Union (EU) monitored the unfolding situation, diverse ad hoc humanitarian projects flourished on the island. These projects enacted a field of action grounded in intersecting, concerning effects and values of care. This essay considers the challenges these projects posed to the local, national, and transnational humanitarian apparatus that eventually moved in and attempted to regulate these players. Drawing on recent work in anthropology on sense and critical agency, I discuss these challenges …

To Secede Or Not Secede? Is It Even Possible?, T. Z. Cook

Indiana Journal of Global Legal Studies

Secession seems like a concept of the past. In our increasingly globalizing world, nationalism was growing archaic and halting progress. But secession has seen a surge in the last ten years. Kosovo declared independence from Serbia in 2008. The United Kingdom seceded from the European Union in the infamous "Brexit." And in 2017, Catalonia's grab for independence sparked the worst crisis in Spain since the days of Francisco Franco.1 Alongside these high-profile secessions, smaller movements, which until now were simply brewing and bubbling, are becoming inspired. One such movement is "The South is My Country," a coalition of three southern …

Law, Politics, And Populisim In The U.S.A. P.A.T.R.I.O.T. Act, Jothie Rajah

Indiana Journal of Global Legal Studies

The U.S.A. P.A.T.R.I.O.T. Act is legislation that simultaneously brings into being very particular notions of the American 'national' and, as its counterpart, a post-9/11 "global." Through a study of the Patriot Act, my paper unpacks the co-constitutions of national/global and a related series of binaries: domestic/foreign; patriot/terrorist; us/them; and innocence/evil. By exploring the structuring logics and language of these binaries in the Act, my paper scrutinizes the global role of U.S. legislative text in our world: a world in which "a global society has come into being but possesses as yet, no institutions proper to its name."1 In the context …

Book Review, Marcos Zunino, Justice Framed: A Genealogy Of Transitional Justice (2019), Mark A. Drumbl

Scholarly Articles

Transitional justice initiatives, broadly speaking, respond to systematic human rights abuses. These initiatives take multiple shapes and forms. This means that the actual practice of transitional justice is diverse and organic. Transitional justice discourse, however, is aspirational, normative and selective. It is less heterogeneous and far more directive. Marcos Zunino’s eye-opening book, Justice Framed, is about gaps between narrative discourse and tangible practice. It is about the effects of discourse on practice. More pointedly, Justice Framed is about how discourse ‘surfaces’ certain kinds of practices of the past while sidelining and ignoring others. Hence, to come full circle, this book …

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: …

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: …

The Human Rights Movement And The Prevention Of Evil: The Need To Look Inward As Well As Out, Jeffrey A. Brauch

Catholic University Law Review

The modern human rights movement began as a response to great evil perpetrated by individuals and nations against others during and preceding World War II. The movement has been dedicated to protecting the rights of individuals by confronting evil and holding nations accountable should efforts to prevent it fail.

This article contends that while the human rights movement is good at confronting evil “out there,” it has failed in important ways to recognize flaws within itself. In particular, it displays a hubris that shows itself in two ways. First, the movement has embraced a utopian expansion of rights to be …

It Takes A Village: An Analysis Of Multilateralism And The Legal Mechanisms Designed To Prevent Violence Against Women, Madison Ivey

Scripps Senior Theses

Treaties and international organizations work together to create a global environment that protects the rights of a person and actively promotes the well-being of society. However, they do not necessarily guarantee the rights of everyone. Since women are not explicitly named in human rights documents, they are often not granted equal human rights. Therefore, it takes more than just international legal instruments to guarantee women's rights as human rights. A combination of civil society (NGOs), International organizations (IOs), and domestic government creates a perfect coalition to beat the barriers that must be overcome to fully protect women from violence.

Armenia And Azerbaijan's Struggle With Occupation In Nagorno-Karabakh, Carolyn Morway

Brooklyn Journal of International Law

The corrupt occupation of Nagorno-Karabakh and its surrounding areas has resulted in displaced civilians, chaotic military violence, poor judicial law-making, and hostile international relations. Analyzing the international law of occupation’s purposes and its humanitarian requirements illustrates that there is a need for change. Set against the backdrop of Nagorno-Karabakh’s precarious situation, the international community should take this opportunity to reformulate the international law of occupation with sovereignty and humanitarian principles guiding the change. The effort could prevent another such “frozen conflict.”

From Discretion To Law: Rights-Based Concerns And The Evolution Of International Sanctions, Christopher Roberts

Brooklyn Journal of International Law

This Article considers the manner in which rights-based concerns have increasingly impacted upon the nature of international sanctions regimes. First, this Article considers two better-known instances of this impact—the manner in which general sanctions became more targeted, and the manner in which due process concerns came to receive greater respect in the context of targeting decisions. Following these investigations, this Article turns to explore a third, under-recognized development—the gradual evolution of a sense that sanctions may be required in certain instances. It explores this development by highlighting the growing scope of understandings of responsibility within various bodies of public international …

Moving From Management To Termination: A Case Study Of Prolonged Occupation, David Hughes

Brooklyn Journal of International Law

In 2017, the Israeli occupation of the Palestinian territories reached a half-century in duration. This reignited a conversation amongst legal scholars. In articles and books, lawyers questioned the efficacy of occupation law. They asked whether it had become an anachronism. Across Israel and the Palestinian territories, those that directly invoke the law of occupation sought a more effective means of adapting the law to meet the exigencies of a fifty-year-old occupation. The accompanying debates recalled questions concerning the legal treatment of prolonged occupation. This article seeks to fundamentally alter the recurring discourse. Built around a detailed case study of Israel’s …

The Price Is Rights: Getting The United Arab Emirates Up To International Speed In The Labor Law Department, Janae C. Cummings

Brooklyn Journal of International Law

Despite a rapidly growing economy and a tremendous accumulation of wealth, the United Arab Emirates has facilitated many human rights abuses against migrant workers from impoverished countries throughout the world. The UAE’s system of recruitment, payment and living conditions put already vulnerable populations in considerably worse economic conditions by exploiting their labor and creating significant barriers to challenging the unjust employment system. After being sold on the idea that migrating to the UAE would bring a semblance of economic advancement, many migrants find themselves in inhumane working conditions and debt from having to pay excessive amounts of money to recruitment …

Venezuela: A Uniquely Senian Insight Into A Human Rights Crisis, Andrea I. Scheer

Brooklyn Journal of International Law

For over twenty decades, Venezuelan political leaders have blatantly disregarded their citizens’ human rights, leading to the downfall of Venezuela’s economy and democratic institutions, including severe food and medicine shortages, as well as staggering inflation rates. As a result, Venezuela provides a unique affirmation of the Capabilities Approach introduced by Professor Amartya Sen, which focuses not only on the freedoms that individuals possess, but also on what individuals are capable of doing as possessors of these freedoms. This Note seeks to use Sen’s Capabilities Approach to understand the nature and scope of Venezuela’s multidimensional crisis, arguing that a Senian approach …

We Are All Farkhunda: An Examination Of The Treatment Of Women Within Afghanistan's Formal Legal System, Ashley Lenderman

Indiana Journal of Constitutional Design

In this paper, I will examine three cases of violence against women that went through the Afghan formal legal system: the case of Farkhunda, the Paghman district gang rape case, and the case of Sahar Gul. In the first Part, I will discuss the formal legal system framework on which the cases are based. In the second Part, I will discuss the cases in detail. In the third Part, I will describe neo-liberal, reformist, and neo-fundamentalist approaches to interpretation of Islamic law, and I will then draw out pieces of the decisions from the three cases that closely match these …

Policing Against The State: United Nations Policing As Violative Of Sovereignty, Alexandra R. Harrington

San Diego International Law Journal

It is the author's contention that both parties to the policing arrangement-be they individuals, states, or organizations-give up portions of their sovereignty in the creation and maintenance of the police and policed relationship where the police are not serving the state which theoretically guards the policed. Part II of this Article provides a discussion of legal concepts of state sovereignty in international law. Part III examines the role of police in U.N. peacekeeping missions from the first peacekeeping mission entailing policing operations in the 1960s through present day operations. This examination reveals a pattern in the growth and development of …

Revisiting Belligerent Reprisals In The Age Of Cyber?

Marquette Law Review

None.

The Failure Of International Law In Palestine, Svetlana Sumina, Steven Gilmore

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

La Proteccion De Los Inmigrantes Irregulares En Los Estados Unidos Y La Libertad De Circulacion En Una 'Union Americana', Kristina M. Campbell

Journal Articles

Este artículo es una continuación y ampliación de una propuesta que formulé en 2009, y se plantea si —y cómo— los Estados Unidos pueden apartarse de su actual sistema de regulación de la inmigración punitivo, cuasi-penal y de exigencia dura de su cumplimiento. ¿Es posible para los Estados Unidos y sus vecinos acercarse a un sistema de protección de los refugiados y otros migrantes irregulares del resto de las Américas, modelado sobre el concepto de «libertad de circulación» de la Unión Europea? Si es así, ¿a qué debería parecerse dicho sistema? Permitiendo a todos los ciudadanos de una «Unión Americana» …

Targeting The Targeted Killings Case - International Lawmaking In Domestic Contexts, Yahli Shereshevsky

Michigan Journal of International Law

The targeting of non-state armed groups members is perhaps the most debated legal issue in the law of contemporary armed conflicts between states and non-state actors. The 2006 Targeted Killings case of the Israeli Supreme Court (ISC) is a key reference point in this debate. Recently, without much scholarly or public attention, the government of Israel, in its report on the summer 2014 conflict in Gaza (the 2014 Gaza Conflict Report), dramatically diverged from the Targeted Killings case’s definition of legitimate targets in asymmetric conflicts. The Targeted Killings case held a conduct or functional membership-based approach to targeting. This approach …

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 …

Legal Pluralism And The Threat To Human Rights In The New Plurinational State Of Bolivia, James M. Cooper

Faculty Scholarship

Bolivia, the chronically poor, landlocked Andean country has long seen its indigenous populations marginalized, languishing in underdevelopment. Spanish colonialists destroyed any vestige of the vibrant, complex civilization that existed in the region – including the religious, political and legal systems in place for centuries. In December 2005, Evo Morales Ayma was the first elected President of indigenous descent. After leading the changes in the country’s Constitution, Morales continued to rule Bolivia until the writing of this Article. The New Political Constitution of Plurinational State of Bolivia of 2009 and a national law for community justice, signed into law by Morales, …

Inaccessible Apexes: Comparing Access To Regional Human Rights Courts And Commissions In Europe, The Americas, And Africa Symposium: Comparing Regional Human Rights Regimes, Claudia Martin, Francoise Hampson, Frans Vilijoen

Scholarly Articles in Law Reviews & Journals

The three well-established regional human rights systems (in Europe, the Americas, and Africa) aim to provide access to individuals to a decision and remedy based on the violation of human rights in the founding treaties. In this article, the notion of the "dispute pyramid," developed in sociolegal studies, generally, is adjusted to describe and help us better understand regional access. Access differs considerably across the three systems, and its major stumbling blocks present themselves at different stages. In the European system, most cases are dismissed at the admissibility phase. In the Inter-American system, most cases are weeded out at the …

Mass Displacement Of Destitute People: A Trigger For Non-Refoulement Protection?, Bernardo De Souza Dantas Fico, Leticia Machado Haertel

Biennial Conference: The Social Practice of Human Rights

This paper focuses on two problems around the mass displacement of people in extreme poverty: the characterization of such people as refugees and the application of the non-refoulement principle to mass displacements.

Extreme poverty is causal to grave human rights violations such as deprivation of water, of food, and of an adequate standard of living. These circumstances may reach a degree in which life in a country is unbearable — forcing people to move in order to enhance their likelihood of survival.

The classic understanding of the non-refoulement obligation, as enshrined in the 1951 Refugee Convention, forbids states from returning …

Ties Of Separation: Analogy And Generational Segregation In North America, Australia, And Israel/Palestine, Hedi Viterbo

Brooklyn Journal of International Law

This article takes analogy as both its mode and object of inquiry, to canvas the relationship between historical-geographical analogies and generational segregation (the large-scale separation of children and adults) from three complementary perspectives. First, due to restrictions recently introduced by the Israeli authorities, Palestinian prisoners have been prevented from reading popular study materials dealing with both Indigenous child removal and analogies concerning settler-indigenous relations in North America and Australia. This article revives the critical potential of this encounter with analogies and accounts by asserting an analogy between the removal of indigenous children to boarding schools in the United States and …

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …

Detention By Armed Groups Under International Law, Andrew Clapham

International Law Studies

Does international law entitle armed groups to detain people? And what obligations are imposed on such non-state actors when they do detain? This article sets out suggested obligations for armed groups related to the right to challenge the basis for any detention and considers some related issues of fair trial and punishment. The last part of this article briefly considers the legal framework governing state responsibility and individual criminal responsibility for those that assist armed groups that detain people in ways that violate international law.

Security Council Resolution 2178 (2014): An Ineffective Response To The Foreign Terrorist Fighter Phenomenon, Cory Kopitzke

Indiana Journal of Global Legal Studies

Thousands of foreign terrorist fighters poured into the Middle East from almost every country across the globe. Radicalized by professionally edited videos and propaganda disseminated through the Internet, people from all walks of life were captivated by the Islamic State's rhetoric, and nations were struggling to figure out how to stop them. One solution came in the form of a United Nations Security Council Resolution- Resolution 2178 (2014). This resolution is directed specifically at foreign terrorist fighters and calls upon all Member States to act with haste to address this new phenomenon. Critics were quick to call into question the …

Comments On The Nuremberg Principles And Conscientious Objection With Special Reference To War Crimes, Robert K. Woetzel

The Catholic Lawyer

No abstract provided.