International Humanitarian Law Commons^™

Custom's Method And Process: Lessons From Humanitarian Law, Monica Hakimi

Faculty Scholarship

A central question in the literature on customary international law (CIL) goes to method: what is the proper method for “finding” CIL – that is, for determining that particular norms qualify as CIL? The traditional method is to identify a widespread state practice, plus evidence that states believe that the practice reflects the law (opinio juris). That method has long been criticized as incoherent, unworkable, and out of touch with modern sensibilities. Thus, much of the CIL literature addresses its perceived problems. The principal goals of this literature are to help resolve whether norms that are claimed to …

Cameroon Pastoralists Fight For Their Way Of Life, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

After years of struggles against governments and private parties, the Mbororo-Fulani are gaining international attention. But is this too little too late?

Why The Extractive Industry Should Support Mandatory Transparency: A Shared Value Approach, Julien Topal, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The Transparency Amendment, included in the Dodd‐Frank Wall Street Reform and Consumer Protection Act, can be an important tool in curtailing the resource curse that so heavily burdens resource‐rich developing countries by shedding light on opaque payments between the extractive sector and host countries. From the get‐go, however, extractive industry companies have fiercely opposed the new mandatory disclosure requirements as set out in this regulation. The corporate opposition is for the largest part motivated by the fear of a competitive disadvantage that derives from the fact that the amendment is housed with the Securities and Exchange Commission (SEC) and thus …

Promises To Keep: Diplomatic Assurances Against Torture In Us Terrorism Transfers, Human Rights Institute

Human Rights Institute

“Diplomatic assurances” are promises not to torture. They are sought when transferring a detainee from the custody of one government to another. Not surprisingly, they are sought from governments that typically torture.

This report surveys the law and practice of assurances in the US and, comparatively, in Canada and Europe. It is the culmination of a long-term engagement by Columbia’s Human Rights Clinic and its faculty to research and support advocacy on diplomatic assurances. That process has involved advocacy with Swedish NGOs, support for research by Human Rights Watch, FOIA requests with the ACLU and collaborative efforts with UN mechanisms. …

The Transformation Of The Laws Of War Into Humanitarian Law, Mark Antaki

Studio for Law and Culture

This study undertakes a genealogy of crimes against humanity. It inquires into key historical transformations that preceded the official birth of crimes against humanity in positive international law. The study brings to light changes in understandings of law, politics, and human being-together that accompany the articulation of crimes against humanity.

To speak of crimes against humanity is to speak the death of God. With the French Revolution, man displaces God as ground and measure of law and politics, leading to the articulation of crimes against humanity. The man who displaces God is “natural man,” a man who is naturally …

United States Detention Operations In Afghanistan And The Law Of Armed Conflict, Matthew C. Waxman

Faculty Scholarship

Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the …

Intervention To Stop Genocide And Mass Atrocities: International Norms And U.S. Policy, Matthew C. Waxman

Faculty Scholarship

The collective international failure to stop genocidal violence and resulting humanitarian catastrophe in Sudan prompts the familiar question of whether the United States or, more broadly, the international community has the political will and capabilities necessary to deter or stop mass atrocities. It is well understood that mobilizing domestic and international political support as well as leveraging diplomatic, economic, and maybe even military tools are necessary to stop mass atrocities, though they may not always be enough. Other studies have focused, therefore, on what steps the United States and its international partners could take to build capabilities of the sort …

Agora: Icj Advisory Opinion On Construction Of A Wall In The Occupied Palestinian Territory: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

Only rarely does an international judicial opinion attract attention on the front pages of newspapers around the world, and spur activism-or condemnation-from diverse segments of global civil society. The advisory opinion of the International Court of Justice Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory is such a case. As the Court recognized in addressing the question put to it by the United Nations General Assembly, the choice of the term "wall" to designate the subject matter of the proceeding already opens up an area of debate, since not all of the contested structure is …

Provisional Relief In Transnational Litigation, George A. Bermann

Faculty Scholarship

In this article, Professor Bermann identifies and analyzes the principal problems raised by the rapidly growing phenomenon of transnational provisional relief National courts are facing serious challenges in organizing such interventions, but as yet lack a sufficiently comprehensive framework of analysis. The author begins with the clarifying distinction that provisional relief may be transnational either because of its significant effects abroad or because it lends support to protective measures ordered by foreign courts, and draws on the experiences of U.S. and foreign courts in determining the costs of both granting and withholding provisional relief He concludes that, despite the very …

Report Of The Commission Of Enquiry Into Certain Allegations Of Cruelty And Human Rights Abuse Against Anc Prisoners And Detainees By Anc Members, Motsuenyane Commission Of Inquiry, Margaret A. Burnham, Bernard E. Harcourt, David E. Loftis, Samuel M. Motsuenyane, David M. Zamchiya

Faculty Projects

The Motsuenyane Commission of Inquiry was appointed by the President of the African National Congress of South Africa (ANC), Dr. Nelson Mandela, to investigate allegations of human rights abuses and alleged disappearances among its members. Its terms of reference were dated the 12th January, 1993. This is a historic event insofar as it is the first time that a liberation movement has engaged an independent commission to review allegations that its members violated human rights guarantees within its ranks.

International Human Rights Law In Soviet And American Courts, Lori Fisler Damrosch

Faculty Scholarship

To what extent should domestic courts apply international law – specifically the international law of human rights? I would like to examine this question with reference to two very different states: the Union of Soviet Socialist Republics and the United States. For quite distinct reasons, neither of the two has yet fully embraced the idea of direct application in national tribunals of the body of international law that regulates the relationship between human beings and their own governments. As the post-Cold War era unfolds, it is time to ask whether either or both of these erstwhile adversaries might finally be …