International Humanitarian Law Commons^™

Amicus Curiae Observations By Public International Law & Policy Group, Milena Sterio, Michael P. Scharf, Paul R. Williams

Law Faculty Briefs and Court Documents

The amicus brief argues that in a case where the defendant alleges a ground excluding criminal responsibility (an affirmative defense), such as mental illness or duress, the defendant has an evidentiary burden to produce some evidence to support his/her claim of mental illness or duress, but that the prosecution retains the legal burden of proof to establish the defendant's responsibility beyond reasonable doubt.

“This ruling will have repercussions for future cases where the defendant asserts a mental illness or duress affirmative defense. Depending on how the ICC decides, future defendants will have to meet a specific evidentiary (or legal) burden …

Redefining The Safe Third Country Exception Of The Immigration And Nationality Act In The Wake Of Trump, Daniel E. Rabbani

Brooklyn Law Review

The U.S. Immigration and Nationality Act lays out when an asylum seeker has the right to apply for asylum in the United States. This right is not available, however, when an asylum seeker passes through a designated Safe Third Country. A Safe Third Country is an internationally used concept that, pursuant to an international agreement, requires refugees to seek asylum in the first safe country that they step foot in. As the Safe Third Country exception on the Immigration and Nationality Act stands now, there are no guidelines on how to evaluate whether a country is in fact safe. This …

Mental Illness In The Criminal Justice System: Erasing The Stigma On A Global Scale, Jennifer Rabbino

Brooklyn Journal of International Law

Mental illness has long been misunderstood and severely stigmatized worldwide. For several hundred years, rather than offering prompt and proper treatment, most countries treated mental illness by isolating patients from society. Moreover, that ill treatment remains to this day, with over 90% of the developing world's population living with a mental illness completely untreated and legal systems the world over struggling with how best to treat mentally ill defendants fairly. This Note will scrutinize and compare the treatment of the mentally ill defendants in Western and African nations. It will then focus on the legal systems in Uganda and Ghana …

Gulf Of Guinea And Maritime (In)Security: Musings On Some Implications Of Applicable Legal Instruments, Edwin E. Egede

Brooklyn Journal of International Law

The Gulf of Guinea (GoG) is an enormous and diverse region consisting of approximately 6,000 km of coastline extending from Senegal to Angola. It is a maritime area of strategic importance because it is resource-rich with hydrocarbons, fish and other resources. Also, it is important as a vital maritime transit hub. Unlike certain other shipping lanes that have been identified as chokepoints, the GoG, because of its width, is not susceptible to blockades and major shipping accidents. Previously the maritime (in)security in the GoG had not received the same high-profile attention from the international community as the situation in the …

Protecting Internet Access: A Human Rights Treaty Approach, Harpreet Kaur

Brooklyn Journal of International Law

With the evolution of the internet, the world has also seen a marked increase in government-ordered internet shutdowns and restrictions, sometimes with dubious justifications and sometimes with no justification at all. As people have become increasingly reliant on the internet for their day-to-day activities and to keep up with important news, internet restrictions often disrupt lives and violate people’s civil and human rights. While no international law directly protects internet access, it is implicitly advocated for under the freedom of opinion and expression. The upward trend of internet restrictions, however, suggests that an implied protection of access to a necessary …

Iranian Music Censorship & International Human Rights Law, Cameron Moody

Brooklyn Journal of International Law

The 1979 Islamic Revolution in Iran saw sweeping changes in the country’s cultural policies, including the restriction of nearly all types of musical production. Today, the music production environment in Iran remains incredibly hostile to all but a select few. Iran’s government prohibits the production of most types of music and routinely prosecutes musicians. This Note seeks to examine the ways in which the existing U.N. framework for promoting musician’s rights fails to apply to the situation in Iran. Despite Iran being a signatory to the foundational UN Human Rights treaties, the country routinely flouts these rights. This Note argues …

High Time For A Change: How The Relationship Between Signatory Countries And The United Nations Conventions Governing Narcotic Drugs Must Adapt To Foster A Global Shift In Cannabis Law, Alexander Clementi

Brooklyn Journal of International Law

Since the early 1970’s, the inclusion of cannabis and its byproducts in the United Nations Single Convention on Narcotic Drugs has mandated a strict prohibition on cultivation and use of the substance, which has led to a largely global practice of criminalization and imprisonment of anyone found to be in its possession. Yet recently, mostly in response to growing public health concerns, countries like Uruguay, Portugal, The Netherlands, Canada, and the United States have enacted laws which seek to decriminalize or even legalize cannabis use and possession. Yet, cannabis remains classified as a Schedule IV narcotic under the Single Convention, …

Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes

Brooklyn Journal of International Law

The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human …

The Good, The Bad, And The Historically Anti-Semitic: An Analytical Comparison Of Anti-Hate Laws In Germany And The United States, Jamie Rauch

Brooklyn Journal of International Law

Confronted every day with drastically increasing accounts of hate crimes and hate speech, nations’ legislators have routinely tried and subsequently failed to implement effective legislation capable of curbing the hatred epidemic currently sweeping the globe. This failure is due in large part to the lack of a universal stance on hate crime regulation and criminalization. Two countries in particular, the United States and Germany, embody two diametrically opposing approaches taken by nations in the present-day war on hate speech. This Note explores the dramatic dichotomy between the legislative framework surrounding the regulation of hate speech in these two countries. This …

Justice For Venezuela: The Human Rights Violations That Are Isolating An Entire Country, Andrea Matos

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

Abstract forthcoming.

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Stemming The Tide: Social Norms And Child Sex Trafficking, Melissa L. Breger

Dickinson Law Review (2017-Present)

Despite decades of attempts to eradicate the industry, child sex trafficking continues to flourish. Arguably, there is debate about whether adults willingly choose sex work, yet there are no arguments supporting the notion that children make any such choice. When children are bought and sold for sexual purposes, it is child sex trafficking.

Academic legal research has focused comprehensively on the identification of child victims and the prosecution of child traffickers, yet there has not been as salient a focus on reducing the market of buyers of trafficked children. It is the reduction of demand where theories of re-norming and …

Intellectual Property Exhaustion And Parallel Imports Of Pharmaceuticals: A Comparative And Critical Review, Irene Calboli

Faculty Scholarship

This Chapter addresses the topic of intellectual property (IP) exhaustion in the context of the parallel trade of pharmaceuticals. These imports, which are controversial in general, are more complex with respect to pharmaceuticals, which require additional marketing and import authorizations. Nevertheless, individual countries remain free to accept these imports under the flexibility of Article 6 of the Agreement on Trade Related Aspects to Intellectual Property Rights (TRIPS Agreement). This Chapter reviews several national approaches—in developed, developing, and least developed countries (LDCs)—from the perspective of the exhaustion of patent rights as well as other IP rights. Through this review, it highlights …

Environmental Protection And Human Rights In The Pandemic, Maria Antonia Tigre, Sarah C. Slinger, James R. May

Scholarly Works

The Covid-19 outbreak in 2020 took the world by surprise. The virus spread quickly around the globe and death tolls were constantly on the rise at early stages of the pandemic. Although vaccine rollouts have helped halt the number of deaths, inequality in accessing vaccines and effective treatments is still a major issue. From the onset, Covid-19 negatively impacted global well-being and myriad human rights. The present report examines how environmental protection and related human rights have been affected by the Covid-19 pandemic. Based on link between environmental and human health, this report focuses on ecological human rights. The report …

Fixing The Business Of Food: Aligning Food Company Practices With The Sdgs, Sustainable Development Solutions Network, Columbia Center On Sustainable Investment, Sanda Chiara Lab, Barilla Center For Food And Nutrition

Columbia Center on Sustainable Investment Staff Publications

The food sector confronts significant sustainable development challenges. It both contributes to, and suffers from, environmental degradation, especially human-induced climate change and deforestation. Although it can provide farming communities with livelihoods and incomes, it also can fuel land grabs that undermine community rights and wellbeing. The sector feeds the growing global population, but also contributes to the epidemics of obesity and metabolic diseases, while chronic malnutrition has continued to worsen in the years since adoption of the Sustainable Development Goals (SDGs).

In light of these challenges and opportunities, a number of frameworks, guidance documents, and standards have aimed to create …

A Fresh Approach To What It Means To Be A Religious Refugee, Brienna Bagaric, Jennifer Svilar

Pepperdine Law Review

The world is currently experiencing an unprecedented displaced persons crisis. There are more than 70 million people worldwide who have been forcibly displaced from their homeland and are in search of a new country in which to settle. There is no international appetite to absorb these people. There is only one legal pathway by which displaced people can claim an entitlement to settle in another country. This is pursuant to the Refugee Convention. More than 140 countries including the United States are signatories to this convention. The difficulty experienced by displaced people is now particularly acute so far as entry …

The Plea Of Necessity: An Oft Overlooked Response Option To Hostile Cyber Operations, Louise Arimatsu, Michael N. Schmitt

International Law Studies

States are increasingly focused on the measures—cyber or otherwise—that they can take in response to hostile cyber operations. Although cyber operations are usually responded to with acts of “retorsion” (acts that are lawful, although unfriendly), international law recognizes other self-help mechanisms that allow for more robust responses. In the cyber context, most attention has focused on countermeasures and self-defense. Yet, both are subject to various limitations that constrain their availability.

This article examines a further option, the so-called “plea of necessity.” It allows States to respond to a hostile cyber operation when the action taken would otherwise be unlawful but …

Tindak Pidana Pencucian Uang, Yunus Husein

Indonesian Journal of International Law

Money laundering is considered as a transnational organized crime. The logic of elimination money laundering is to omit the criminal’s motivation to enjoy their proceed of crime. The efforts to eliminate money laundering is much related to the issues of national jurisdiction. Thus, it requires international cooperation among countries, where international law is needed. Eventhough there is still no specific convention about money laundering, but regulation about money laundering is partially arranged in some conventions such as Vienna Convention 1988 and in UN Convention on Transnational Organized Crimes 2000. Indonesia has enacted a regulation is amended by UU No. 25 …

Enhancing Maritime Security In The Malacca Strait: Cooperation Against Piracy And Maritime Terrorism, Rheny Wahyuni Pulungan

Indonesian Journal of International Law

The Malacca Strait, together with the Singapore Strait, are two of the most important straits in the world and consequently there is significant traffic through them, reported to be approximately 60,000 vessels a year. The rising number of violent and well-coordinated attacks on transiting ships in these straits has become a very serious problem, such as threats of unauthorized boarding; theft of personal property, cargo and the ships themselves; and violence against, and the kidnapping or murder of, seafarers. One effort which is likely to enhance security in the Malacca Straits is the establishment of 'joint patrol areas', where more …

Preventing Retaliation In Trade By Harmonizing The Measures, Muhammad Putra Iqbal

Indonesian Journal of International Law

Sanitary and Phytosanitary Measures (SPS) Agreement as a globally-accepted legal document within the World Trade Organization (WTO) is very important in ensuring food traded across the boundaries is safe for consumers and also protecting animal and plant from diseases and pests. Therefore, SPS Agreement's role within the international trade is very crucial. This paper evaluates "Indonesia-China candy case" that closely related to the implementation of the SPS Agreement. It is concluded that Indonesia as a member of WTO has declared and proven that Indonesia national regulations on food safety comply with international standard. On the other hand, China should show …

Environmental Protection And State Responsibility In International Humanitarian Law, Arie Afriansyah

Indonesian Journal of International Law

International armed conflicts is not only threatened the existence of human being, but also brought great environmental damage that has served to raise the international community's deep concern. The conflicting parties are liable for violations of their international obligations including damages to the environment. The obligations of warring parties to protect the environment are sourced not only from treaty law but also from customary law. Even though the conflict has ceased, they are still liable for the violations as long as the damages continue. That is why the legal concept of State offers an important doctrine in international conflicts offering …

Author's Right Is Not Only Copyright, Agus Sardjono

Indonesian Journal of International Law

This article discusses the difference between the concept of Author's Right and Copyright. These two concepts are often mistakenly considered to be inter-changeable. The purpose of this article is to help readers obtain a better insight into the basic concept of Author's Right and Copyright.

“I Want Justice From People Who Did Bad Things To Children”: Experiences Of Justice For Sex Trafficking Survivors, John G. Morrissey, James Havey, Glenn M. Miles, Nhanh Channtha, Lim Vanntheary

Dignity: A Journal of Analysis of Exploitation and Violence

This research from the Butterfly Longitudinal Research Project focused on understanding the experiences and perceptions of justice and the justice system for 93 Cambodia participants (including 88 survivors of sex trafficking) as they navigated the legal system. Thirty-two of these survivors had experiences in court and provided details into their courtroom experiences, predominantly within Cambodia but also in the United States. The survivors’ experiences were diverse; however, the prevailing themes were: fear throughout their legal journeys; a low level of awareness and understanding of their legal experiences; and that NGO support was essential for these survivors to engage in the …

International Law Review In The Assassination Of General Qasem Soleimani, Dina Yulianti, Hasan Sidik, Mu'min Mu'min

Indonesian Journal of International Law

International law is formed by the global community to establish legal rules, norms, and standards of behavior between sovereign nations to create a peaceful world order. However, since the world order is anarchy with no supreme executive authority, obedience and disobedience to international law often depends on the state’s power. For instance, the assassination of General Qasem Soleimani, a prominent Iranian general, by the US military in Iraqi territory sparked a debate about international law. This article shows that the US action violated International Humanitarian Law (IHL) and International Human Rights Law (IHRL). Additionally, it violated the UN Convention for …

Application Of The Due Diligence Principle To Cyber Operations, Tomohiro Mikanagi

International Law Studies

The discreet use of proxies by States renders it difficult to prove attribution to States under the existing rules of attribution. On the other hand, the due diligence principle, if applicable, does not require attribution but can lead to the invocation of State responsibility for cyber operations emanating from the territory of other States. In the Corfu Channel judgment the ICJ recognized “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States,” and UN Member States agreed that existing international law applies to cyber operations. However, the UN Members …

Intolerable Histories And Imperfect Narratives: Nationhood, Identity, And The Integrity Of Law In Post-Vichy France And Beyond, Kaela S. Holmen

Foreign Languages & Literatures ETDs

The principal aim of this thesis project is to examine the socio-legal context of the Vichy regime in World War II France, and to provide an understanding of how that context informed, and continues to inform, the integrity of French nationhood. With Ernest Renan’s oubli serving as a framework for the solidification of nationhood, I will demonstrate that the betrayals to French law and custom that were committed in an attempt to right the wrongs of the Vichy resulted in an imperfect forgetting, and ultimately, a more fragmented national sense of self. I contend that this imperfect oubli resulting from …

Justice Delayed, Justice Denied? The Search For Accountability For Alleged Wartime Atrocities Committed In Sri Lanka, Aloka Wanigasuriya

Pace International Law Review

During the final stages of its nearly three-decades-long civil war in 2009, Sri Lanka attracted considerable international attention due to the allegations of international crimes that were said to have been committed both by the Sri Lankan government Armed Forces, the Guerilla Force, and the Liberation Tigers of Tamil Eelam (LTTE). According to United Nations (UN) experts, an estimated 40,000 civilians were killed during the final offensive, which lasted from January to May 2009. However, the Sri Lankan government has set this figure at 9,000 with no civilian casualties. Several UN bodies found credible allegations that international crimes were committed …

The Role Of Nations-State In Protecting And Supporting Internally Displaced Persons, Daisy Byers

Master's Theses

The rising increase of Internally Displaced Persons (IDPs) has become a global problem. There are over 40 million internally displaced people globally, and 15.9 million are displaced in Africa. These displacements come into place due to war/conflict, corruption, massive human rights violations, natural disasters, urban renewal projects (at the hands of powerful nations such as America, China, France, UK, etc.), and large-scale development projects. According to UNHCR, refugees are people who have international cross-border. In contrast, internally displaced persons must stay within their own country and stay under the protection of their government, even if the government is the reason …

A Bibliometric Analysis Of Research Trends Of Inter Linkages Between Disaster Management And Law, Shashikala Gurpur Dr, Manika Kamthan Dr, Vartika Tiwari Ms.

Library Philosophy and Practice (e-journal)

This study is the bibliometric analysis of research publications that focus on highlighting the inter linkages between disaster management and laws. The main objectives of the study are to determine the frequency of such publications and also to establish that inter linkages between disaster management and law have not received enough attention from the researchers. The data was collected from the Scopus database using VOSviewer software. Literatures written from 2000 to 2020 were perused. The study consisted of a total of 1649 documents which are classified into articles, letters, editorials conference papers, and reviews. Data collected is analyzed and presented …

A Bibliometric Analysis Of Research Trends Of Inter Linkages Between Disaster Management And Law, Shashikala Gurpur Dr., Manika Kamthan Dr., Vartika Tiwari Ms.

Library Philosophy and Practice (e-journal)

This study is the bibliometric analysis of research publications that focus on highlighting the inter linkages between disaster management and laws. The main objectives of the study are to determine the frequency of such publications and also to establish that inter linkages between disaster management and law have not received enough attention from the researchers. The data was collected from the Scopus database using VOSviewer software. Literatures written from 2000 to 2020 were perused. The study consisted of a total of 1649 documents which are classified into articles, letters, editorials conference papers, and reviews. Data collected is analyzed and presented …