International Humanitarian Law Commons^™

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Key Un Committee Clears Path For Crimes Against Humanity Treaty Negotiations, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

On Friday, Nov. 22, 2024, the United Nations Sixth (Legal) Committee took a pivotal decision to advance toward negotiations on a global treaty regarding the prevention and punishment of crimes against humanity. The move is the latest in a series of discussions that has taken place over the past six years and brings States one step closer to finally closing the nearly 80-year-old gap in international law to comprehensively address these grave crimes.

We have been tracking this process together since 2021 in a Just Security series on the potential draft treaty, and in a recent article we chronicled the …

Justice Delayed Is Justice Denied: Moving Forward With A New Crimes Against Humanity Treaty, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

Eleven years after the International Law Commission (ILC) began considering the topic of crimes against humanity, and nearly 80 years after the London Charter was negotiated in the ashes of World War II, will States finally begin negotiating a new crimes against humanity treaty next year? The answer is not yet clear, although an overwhelming majority of the States expressing themselves last week said “yes.” This essay is a snapshot of the current state of play and is based on our firsthand observation of the plenary debate as well as discussions with State delegates and members of civil society. Negotiations …

A Draft Treaty On Crimes Against Humanity Draws More Engagement From States, Leila Nadya Sadat

Scholarship@WashULaw

The world’s first treaty on crimes against humanity inched closer to reality as the U.N. General Assembly’s Sixth (Legal) Committee recently wrapped up the last of a series of “resumed sessions” before States decide this October whether to proceed to formal negotiations on the document. Significantly more States and regional groups intervened during the most recent session, held last month, than in 2023, and the number that support the draft increased. Representatives of civil society also were present in much higher numbers, issuing a “Joint Statement in Support of Progress toward a Crimes Against Humanity Treaty” from more than 400 …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

The Crime Of Aggression: Its Nature, The Leadership Clause, And The Paradox Of Immunity, David Luban

Georgetown Law Faculty Publications and Other Works

The paper, written for a research handbook, critically surveys some fundamental philosophical, historical, and doctrinal issues in the crime of aggression. The two introductory sections set the theoretical issues in the context of Russia’s invasion of Ukraine, and explain the origins of criminalizing aggression under the heading of “crimes against peace.” Section 3 explores an ambiguity between aggression as first use of force and aggression as unprovoked use of force, while section 4 discusses the doctrinal distinction between acts of aggression and wars of aggression.

Sections 5 and 6 turn to the theory of aggression. Section 5 examines modern versus …

The Emerging Crime Of Persecution Based On Sexual Orientation, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article argues that persecution based on sexual orientation constitutes a crime against humanity under international law. Unlike other scholarship that has focused on the definition of crimes against humanity in the 1998 Rome Statute for the International Criminal Court—which does not explicitly enumerate “sexual orientation” as a protected classification—this Article looks to customary international law made up by the practices of states.

Diligent research has revealed that between 1998 and 2022, at least 107 states enacted laws or revised existing laws decriminalizing sexual orientation and/or categorizing sexual orientation as a protected classification from discrimination. This is in addition to …

A Right Without A Remedy: How One Cincinnatian's Story Illustrates Terrorism Victims' Inability To Obtain Compensation Under The Foreign Sovereign Immunities Act, Christopher T. Colloton

University of Cincinnati Law Review

No abstract provided.

Discussant Commentary On The Twenty-Fourth Annual Grotius Lecture, Karima Bennoune

Other Publications

I express my sincere thanks to the American Society of International Law and the International Legal Studies Program at American University Washington College of Law for the invitation to be this year’s commentator. It is indeed an honor to respond to Judge Charlesworth’s erudite Grotius Lecture: “The Art of International Law.”

Embracing The Flow: The Right To Menstrual Health As A Response To Climate Change Impacts In South Asia, Lea Kuhlmann

Seattle Journal of Technology, Environmental, & Innovation Law

No abstract provided.

Haiti: Confronting An Immense Challenge, Irwin Stotzky

University of Miami Inter-American Law Review

This article analyzes the history of Haiti, from its origins as a slave colony of France, which was the richest colony in the Americas, to its war of independence leading to the first Black independent nation in the Americas, to its economic re-enslavement under the power of France and then the United States. The article discusses the great harm the French caused the Haitian people by imposing through force a ransom of billions of dollars that has led Haiti to its present position of being on the brink of becoming a failed state, with all of the disastrous consequences for …

Haiti’S Legal Claim For Restitution: The Political Context For The Recovery Of The Double-Debt, Ira J. Kurzban

University of Miami Inter-American Law Review

This article discusses Haiti’s efforts to seek restitution from France for the “Double-Debt” imposed in 1825. After Haiti gained independence in 1804 following a slave revolt, France threatened to invade and re-enslave the Haitian people if they did not pay compensation to French slave owners for their lost “property.” This became known as the Double-Debt, as French and American banks profited by converting the debt into high-interest loans. In 2003, on the 200th anniversary of Haitian hero Toussaint Louverture’s death, Haiti’s president Jean-Bertrand Aristide announced his intention to demand repayment from France. This sparked retaliation from France and Haiti’s elite, …

Redress For Historical Injustices: Haiti’S Claim For The Restitution Of Post-Independence Payments To France, Günther Handl

University of Miami Inter-American Law Review

No abstract provided.

Restitution For Haiti, Reparations For All: Haiti’S Place In The Global Reparations Movement, Brian Concannon Jr., Kristina Fried, Alexandra V. Filippova

University of Miami Inter-American Law Review

Haiti’s claim for restitution of the debt coerced by France in exchange for Haiti’s 1804 independence has unique legal advantages that can open the door to broader reparations for the descendants of all people harmed by slavery. But in order to assert the claim, Haiti first needs help reclaiming its democracy from a corrupt, repressive regime propped up by the powerful countries that prospered through slavery and overthrew the Haitian President who dared to assert his country’s legal claim. This article explores Haiti’s Independence Debt, and the fight for restitution of it, in the context of two centuries of continued …

The War On Gangs: El Salvador’S Playground For International Human Rights Violations, Sanobar Valiani

University of Miami Inter-American Law Review

International human rights law was developed with the underlying philosophy that all human beings are born free and equal in dignity and rights. However, since its development, we have seen a vast number of human rights violations persist with no recourse. The War on Gangs in El Salvador is just one example of this. This Note examines the history of the War on Gangs in El Salvador, the tumultuous political landscape that has spurred as a result, and how political efforts to address gang violence have been used as a tactic to strip Salvadorans of their fundamental rights and dignity. …

Time To Enumerate The Slave Trade As A Distinct Provision In The Crimes Against Humanity Treaty, Patricia Viseur Sellers, Jocelyn Getgen Kestenbaum, Alexandra Lily Kather

Online Publications

The proposed Draft articles on Prevention and Punishment of Crimes against Humanity under consideration at the United Nations General Assembly’s Sixth Committee (Legal) are bereft of a distinct provision to address the international crime of the slave trade.

Climate Change, Corruption, And Colonialism: Solving The Conundrum With Regional Courts, Taylor Nchako

Northwestern University Law Review

It is no secret that climate change is the most pressing issue of our times. Global South countries, especially those in Africa, face challenges mitigating the worst impacts of climate change, adapting technological solutions, and continuing to develop their nation’s infrastructure and industry. Cameroon provides an archetypal example of the challenges many African countries face. Plagued by an economy that both exacerbates climate change and stands to collapse from it, Cameroon struggles with corruption that has roots in colonialism and neocolonialism. This corruption taints not only the forestry service and the executive branch, but the judiciary as well, leaving Cameroon’s …

Making The World Safer And Fairer In Pandemics, Lawrence O. Gostin, Kevin A. Klock, Alexandra Finch

Georgetown Law Faculty Publications and Other Works

Global health has long been characterized by injustice, with certain populations marginalized and made vulnerable by social, economic, and health disparities within and among countries. The pandemic only amplified inequalities. In response to it, the World Health Organization and the United Nations have embarked on transformative normative and financial reforms that could reimagine pandemic prevention, preparedness, and response (PPPR). These reforms include a new strategy to sustainably finance the WHO, a UN political declaration on PPPR, a fundamental revision to the International Health Regulations, and negotiation of a new, legally binding pandemic agreement (popularly called the “Pandemic Treaty”). We revisit …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Submission To The United Nations Universal Periodic Review Of Yemen, Mwatana For Human Rights, Smith Family Human Rights Clinic

Human Rights Institute

This submission focuses on international human rights and humanitarian law violations by the Government of Yemen and allied armed groups, as well as by the armed group Ansar Allah (the Houthis), as supported by Mwatana’s original factfinding and documentation.

Sexual Orientation At The Crossroads, Johan D. Van Der Vyver

Marquette Benefits and Social Welfare Law Review

The decision of the U.S. Supreme Court in the case of Bostock v. Clayton County that sexual orientation is included in the concept of “sex” in the non-discrimination provisions of the Civil Rights Act of 1964 is historically indefensible. The Civil Rights Act was initiated by President John F. Kennedy to combat racial discrimination in the workplace and the word “sex” was included in the Act by a “claque of Southern Congressmen” as part of a filibuster attempt to prevent its enactment. It was accepted by proponents of the Act on the instructions of President Johnson merely to avoid the …

A Not-So Turkish Delight: The Implications Of Turkey’S Unprecedented Withdrawal From A Groundbreaking Women’S Rights Treaty And The Need For International Reform, Allyssa Myers

Brooklyn Journal of International Law

Domestic violence against women is one of the most pervasive and pressing international issues of our time. There have been multiple international human rights treaties enacted to address this issue and move to end gender-based violence—the Council of Europe Convention on Preventing and Combatting Violence Against Women and Domestic Violence (Istanbul Convention) being one. Created in 2011, the Istanbul Convention sought to provide an international legal framework for how states should work toward eradicating gender-based violence. Turkey, the first country to sign and to subsequently ratify the Istanbul Convention, unprecedently withdrew from the Convention in 2021. Turkish President Recep Tayyip …

Indefinite Detention At Guantánamo: How The National Defense Authorization Act Results In Indefinite Detention In Violation Of International Human Rights, Molly Turro

Brooklyn Journal of International Law

The majority of the remaining detainees at Guantánamo Bay have been cleared for transfer to other countries. Provisions of the National Defense Authorization Act that prohibit government funds to be used for transfer and reinforce the United States government’s authority to detain enemy combatants until the end of active hostilities have left these detainees waiting in limbo to be transferred elsewhere. The following piece argues that the resulting indefinite detention that these Guantánamo detainees face is both a violation of international human rights and an unnecessary financial burden on the US government. This Note compares the approach taken by the …

International Agreements Shaping Migration Solutions, Camilo Mantilla

Refugee Law & Migration Studies Brief

In an increasingly complex and interdependent state of international relations, international treaty negotiation, adoption, and implementation constitute an important component of global foreign policy and activity of states. International agreements embody sovereign and state-to-state relations and behavior in a global forum. International agreements manifest in ways that vary in form, subject, formalities, parties, scope, forum and many other elements.

Nefarious Notarios: Responding To Immigration Scams As White Collar Crime As A Matter Of Public Policy, Sarah Cossman

Refugee Law & Migration Studies Brief

Immigration scams targeting non-citizens can have devastating impacts on an individual's status and ability to remain in the United States legally. The phenomenon of notario fraud occurs when an individual misrepresents themself as a notario publico in an effort to defraud immigrants seeking legal services. In Spanish-speaking countries, a notario publico is a highly trained legal professional, akin to an attorney, who provides legal advice and drafts legal documents. The term is a false cognate. The English equivalent, a notary, is an individual with narrow witnessing duties and much less discretion. Problems arise when individuals obtain a notary public license …

Anti-Corruption’S Next Great Migration?: Strengthening U.S. Refugee And Asylum Law Under Existing U.S. Anti-Corruption Commitments, Bianka Ukleja

Refugee Law & Migration Studies Brief

First, this paper will describe the U.S.’s anticorruption commitments under international law. Next, it will present the general features of current U.S. refugee and asylum law, pertaining to particular social group (PSG) and political opinion claims. Last, this paper will discuss how the Biden Anti-Corruption Memo provides fertile ground for DHS to initiate an informal rulemaking process under the Administrative Procedure Act (APA) to engage civil society on how U.S. refugee and asylum laws can better support a pathway to citizenship for anti-corruption activists in pursuit of key U.S. foreign policy interests abroad and who find themselves unable to seek …

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

Scholarly Articles in Law Reviews & 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 …

Submission To The United Nations Universal Periodic Review Of Saudi Arabia, Mwatana For Human Rights, Smith Family Human Rights Clinic

Human Rights Institute

Mwatana Organization for Human Rights (Mwatana) and the Columbia Law School Smith Family Human Rights Clinic (Clinic) jointly submit this report to inform the examination of Saudi Arabia during its Universal Periodic Review.