International Humanitarian Law Commons^™

Teaching Trusts & Estates And Elder Law: Pedagogy For The Future, 117 Penn St. L. Rev. 987 (2013), Susan Cancelosi, Barry Kozak

UIC Law Open Access Faculty Scholarship

No abstract provided.

Fairness And Politics At The Icty: Evidence From The Indictments, 39 N.C. J. Int'l L. & Com. Reg. 45 (2013), Stuart K. Ford

UIC Law Open Access Faculty Scholarship

No abstract provided.

Remarks: Syria And The Arab Spring Symposium, Chiara Giorgetti

Law Faculty Publications

Remarks on Syria and the Arab Spring given at the 2012 University of Baltimore Journal of International Law Symposium on the Arab Spring.

Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

Public debate is heating up over the future development of autonomous weapon systems. Some concerned critics portray that future, often invoking science-fiction imagery, as a plain choice between a world in which those systems are banned outright and a world of legal void and ethical collapse on the battlefield. Yet an outright ban on autonomous weapon systems, even if it could be made effective, trades whatever risks autonomous weapon systems might pose in war for the real, if less visible, risk of failing to develop forms of automation that might make the use of force more precise and less harmful …

Targeting And The Concept Of Intent, Jens David Ohlin

Michigan Journal of International Law

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well-settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems — often civil law jurisdictions — prosecutors, judges and even scholars have …

Juvenile Pirates: "Lost Boys" Or Violent Criminals?, Milena Sterio

Law Faculty Articles and Essays

Piracy off the coast of Somalia has flourished over the past decade, and has both caused a global crisis in maritime shipping and destabilized regional security in East Africa. In addition, piracy attacks have spread more recently to the coast of West Africa, and in particular, the Gulf of Guinea. Thus, piracy is an ongoing global issue that should continue to occupy many maritime nations in the near future, and one that should command continuous scholarly attention.

This article examines the issue of juvenile piracy, with a specific focus on the treatment of juvenile piracy suspects by both the capturing …

Some Pluralism About Pluralism: A Comment On Hanoch Dagan's "Pluralism And Perfectionism In Private Law", Jedediah S. Purdy

Faculty Scholarship

Hanoch Dagan is among “those who think it advantageous to get as much ethics into the law as they can,” in the phrase of Oliver Wendell Holmes, Jr. His pluralism is a perfectionism for polytheists: There are many human goods, and each has its domain, including some portion of the law of property. Depending on where we stand on the property landscape at any time, we may be community-minded sharers, devoted romantics in marriage, or coolly rational market actors, and the local property law will smooth each of these paths for us. Property law is built on the design of …

The Long-Term International Law Implications Of Targeted Killings Practices, Christof Heyns, Sarah Knuckey

Faculty Scholarship

One of the most crucial and enduring questions about “targeted killings” is: How will the currently expanding practices of singling out individuals in advance and eliminating them in other countries without accountability impact the established international legal system?

International law, since at least World War II, has developed various mechanisms to limit killing in general, including targeted killings. These take the form of vigorous protections for the right to life under human rights law; safeguards against the interstate use of force while permitting states to protect themselves where necessary; and aiming to strike a balance between the principles of humanity …

Sex Trafficking: The Influence Of Cultures, Socio-Economic Structures And Law & Order On Sex Trade In Asia, Saanya Dua

Political Science Theses and Capstones

Sex trafficking and prostitution are both matters of concern in today’s world. Trafficking of human beings is a global phenomenon and has been a topic of increased discussion and attention. It is believed that the sex trade industry is considered to be the fastest growing criminal industry in the world, currently it is second to drug trafficking in terms of profits through an illegal industry. Several initiatives have been made to prevent trafficking, through significant legislative and other actions provided to aid victims and those vulnerable in the world. However, the lack of systematic research is a big issue. Asia …

Proceedings Of The Seventh International Humanitarian Law Dialogs, Recent Developments In International Criminal Law: 2012–2013, Mark A. Drumbl

Scholarly Articles

This publication is based on Professor Drumbl’s keynote address on August 27, 2013 at the Seventh International Humanitarian Law Dialogs held in Chautauqua, New York.

Networks In Non-International Armed Conflicts: Crossing Borders And Defining "Organized Armed Group", Peter Margulies

Law Faculty Scholarship

No abstract provided.

‘Germans Are The Lords And Poles Are The Servants’: The Trial Of Arthur Greiser In Poland, 1946, In The Hidden Histories Of War Crimes Trials (Kevin Jon Heller & Gerry Simpson Eds., 2013), Mark A. Drumbl

Books and Chapters

In the aftermath of World War II, the first conviction of an influential Nazi German official for the crime of waging aggressive war was delivered not by the International Military Tribunal at Nuremberg, but, rather, by the Supreme National Tribunal of Poland sitting in Poznán. The accused was Arthur Greiser. Beginning in September 1939, Greiser served as Gauleiter (i.e. Governor) of the Warthegau, a large expanse of western Poland that had been illegally annexed to Nazi Germany. The Warthegau's residents suffered brutally under Greiser's boot.

The Polish Tribunal sentenced Greiser to death on July 9, 1946. His execution by public …

Behind The Flag Of Dunant: Secrecy And The Compliance Mission Of The International Committee Of The Red Cross, Steven Ratner

Book Chapters

In the world where most NGOs see their role in the international legal process as public advocacy, often through naming and shaming, the International Committee of the Red Cross stands apart. Much of its work consists of confidential visits and secret communications to warring parties. It rarely identifies violators publicly; it leaves its legal position on many issues ambiguous; and at times it avoids legal discourse entirely. This aversion to transparency is not only at odds with the assumptions of the naming and shaming strategy regarding the most effective means to induce compliance. It also makes it almost impossible for …

Review Of The Verdict Of Battle: The Law Of Victory And The Making Of Modern War, Robert D. Sloane

Faculty Scholarship

This is a brief review of The Verdict of Battle: The Law of Victory and the Making of Modern War (2012), by James Q. Whitman, a remarkably erudite and original contribution to scholarship on military history and the law of war. It sketches the work’s compelling historical arguments and then critiques its (comparatively modest) polemical dimensions and normative conclusions.

Correspondents' Reports United States Of America, Chris Jenks

Faculty Journal Articles and Book Chapters

This correspondent report compiles examples of where and how in 2013 the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in military courts-martial and captured enemy belligerents in military commissions and by US federal courts hearing detainee habeas challenges.

Belligerent Targeting And The Invalidity Of A Least Harmful Means Rule, Geoffrey S. Corn, Laurie R. Blank, Chris Jenks, Eric Talbot Jensen

Faculty Journal Articles and Book Chapters

The law of armed conflict provides the authority to use lethal force as a first resort against identified enemy belligerent operatives. There is virtually no disagreement with the rule that once an enemy belligerent becomes hors de combat — what a soldier would recognizes as “combat ineffective” — this authority to employ deadly force terminates. Recently, however, some have forcefully asserted that the LOAC includes an obligation to capture in lieu of employing deadly force whenever doing so presents no meaningful risk to attacking forces, even when the enemy belligerent is neither physically disabled or manifesting surrender. Proponents of this …

After Assad: Syria’S Post-Conflict Reconstruction, H. M. Roff

Human Rights & Human Welfare

Simon Adams and Condoleezza Rice warn us that with the portended fall of Syria's Bashar al-Assad, the country could witness even more heinous crimes and, potentially, regional political fallout. These worries are not unfounded. However, what seems to be truly missing in their discussions is any mention of post-conflict reconstruction planning. This is unfortunate, as much handwringing is still occurring over "what to do" in Syria, and it will continue until there is a clear vision of what to do after this civil war. Syria's post-conflict reconstruction plan is—or should be—inherently tied to its current operational agenda.

Myths About Syria, James Pattison

Human Rights & Human Welfare

In my contribution, I want to focus on five fallacious claims and arguments that have been presented about the conflict in Syria. (Please note that this piece was written in Dec 2012).

All Other Breaches: State Practice And The Geneva Conventions’ Nebulous Class Of Less Discussed Prohibitions, Jesse Medlong

Michigan Journal of International Law

With respect to the protections afforded by the Geneva Conventions, a great deal of ink has been spilled in recent years over the two-tiered system of tribunals employed by the United States in its prosecution of enemy combatants in the “war on terror.” Less discussed, though, is the wholly separate two-tiered system for sorting violators of the Geneva Conventions that emerges from the very text of those agreements. This stratification is a function of the Conventions’ distinction between those who commit “grave breaches” and those who merely commit “acts contrary to the provisions of the present convention” or “all other …

Comments: At The Intersection Of National Interests And International Law: Why American Interests Should Assume The Right Of Way, Clark Smith

University of Baltimore Journal of International Law

Following the interwar period and disastrous results of an isolationist foreign policy, the United States changed course coming out of the Second World War. Assuming the global leadership role, the U.S. led the international effort to design and build the international institutions and organizations that would ensure and manage the global recovery from the war that ravaged the world’s economy, deter future wars by providing checks on and a balance of power, and that would ensure, to some degree, international systems based on rule of law. Pursuit of U.S. interests should, when possible, be carried out within that international legal …

Comments: Stuck Between A Rock And A Hard Place: Does Lebanon Have A Responsibility To Respect Syrian Refugees?, Robert Demirji

University of Baltimore Journal of International Law

This comment looks at the current crisis in Syria and its effect on Lebanon. This comment first looks at the recent history of Lebanon stemming from the entrance of Palestinians into Lebanon after their deportation of Israel to Lebanon today. Thereafter, this comment looks at the evolution of the responsibility to protect doctrine from the Universal Declaration of Human Rights, to the 2005 World Summit Outcome Report to the 2009 Secretary General Report on Responsibility to Protect. This comment addresses the role of both Lebanon and the international community in its responsibility to protect Syrian refugees. This comment concludes with …

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise, Benjamin Perrin

All Faculty Publications

Migrant smuggling is a dangerous, sometimes deadly, criminal activity. Failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel, endangers the lives and safety of smuggled migrants, undermines border security, and undermines the integrity and fairness of immigration systems. Introduced in the Canadian House of Commons in June 2011, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Bill C-4) includes proposed amendments to the Immigration and Refugee Protection Act that would enhance …

Bordering On Failure: Canada-U.S. Border Policy And The Politics Of Refugee Exclusion, Efrat Arbel, Alletta Brenner

All Faculty Publications

In June 2012, the Canadian government ushered in sweeping reforms to Canada’s refugee system. These reforms brought debates about Canadian refugee protection to the forefront of legal and political discourse. In advancing these reforms, the Canadian government has asserted that Canada’s refugee system is among the most generous and compassionate in the world. Canada’s doors, the Canadian government has stated, remain open to legitimate refugees. This report evaluates these claims by examining the U.S.-Canada Safe Third Country Agreement and border measures implemented under the rubric of the Multiple Borders Strategy, and analyzing their effects on asylum seekers. A detailed examination …

Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States, Efrat Arbel

All Faculty Publications

This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada-US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional …

An Analysis Of The Legal Status Of Cia Officers Involved In Drone Strikes, Donna R. Cline

San Diego International Law Journal

This Article introduces international humanitarian law as the applicable legal standard, and develops the distinction between international and non-international armed conflict. Section II will define the key elements used to determine whether a situation of hostilities rises to the level of an armed conflict: the intensity of the conflict and the organization of the parties. Furthermore, this section will analyze the idea of internationalized armed conflict and examine the standard for determining when an attack by an armed group may be attributed to a State. Section III of this article describes the different categories of actors found in situations of …

Organizing For Cyberspace Operations: Selected Issues, Paul Walker

International Law Studies

No abstract provided.

Hate Speech And Persecution: A Contextual Approach, Gregory S. Gordon

Vanderbilt Journal of Transnational Law

Scholarly work on atrocity-speech law has focused almost exclusively on incitement to genocide. But case law has established liability for a different speech offense: persecution as a crime against humanity (CAH). The lack of scholarship regarding this crime is puzzling given a split between the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia on the issue of whether hate speech alone can serve as an actus reus for CAH-persecution. This Article fills the gap in the literature by analyzing the split between the two tribunals and concluding that hate speech alone may be the …

Optimal Asylum, Shalini B. Ray

Vanderbilt Journal of Transnational Law

The U.S. asylum system is noble but flawed. Scholars have long recognized that asylum is a "scarce" political resource, but U.S. law persists in distributing access to asylum based on an asylum seeker's ability to circumvent migration controls rather than the strength of the asylum seeker's claim for protection. To apply for asylum, an asylum seeker must either arrange to be smuggled into the United States or lie to the consulate while abroad to obtain a nonimmigrant visa. Nonimmigrant visa requirements effectively filter the pool of asylum applicants according to wealth, educational attainment, and intent not to remain in the …

Returning Sovereignty To The People, Hallie Ludsin

Vanderbilt Journal of Transnational Law

Governments across the world regularly invoke sovereignty to demand that the international community "mind its own business" while they commit human rights abuses. They proclaim that the sovereign right to be free from international intervention in domestic affairs permits them unfettered discretion within their territory. This Article seeks to challenge those proclamations by resort to sovereignty in the people, a time-honored principle that is typically more rhetorical than substantive. Relying on classical interpretations of sovereignty, this Article infuses substance into the concept of sovereignty in the people to recognize that a government is entitled to sovereign rights only as the …

The Invention Of A Human Right: Conscientious Objection At The United Nations, 1947-2011, Jeremy Kessler

Faculty Scholarship

The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state's decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human …