International Humanitarian Law Commons^™

Symposium On The 1977 Geneva Protocols, Hamilton Desaussure

Akron Law Review

There is general agreement that the Hague Conventions of 1899 and 1907, while still technically in force, have been made largely obsolete by technological advance in weapons systems, communications, air power, and the ballistic missile. Yet the fundamental axiom that acts of war should not cause unnecessary or disproportionate suffering with regard to the military advantage to be gained, remains unchanged from those early conventions. What is new in the Protocols of 1977 is the added emphasis placed on the protection of the civilian population, not only in occupied areas held by the enemy, but also for the protection of …

Is The International Court Of Justice Worth The Effort?, Joseph L. Daly

Akron Law Review

Throughout history most peacemaking has been a response to a particular crisis - efforts of two countries to solve a dispute by treaty or to negotiate the end of a war. But as the instruments of war have become more and more horrible, as wars have come to take an ever increasing toll on civilian populations, world leaders have tried to establish a structure for peace, a permanent way of avoiding conflict by appealing to reason, not to weapons. Our century has hoped that some sort of international tribunal - a world court - would decide disputes on enduring principles …

The Law Of Naval Warfare And China’S Maritime Militia, James Kraska, Michael Monti

International Law Studies

China operates a vast network of fishing vessels that form a maritime militia equipped and trained to conduct intelligence, communications, and targeting support for the People's Liberation Army Navy. Fishing vessels normally are exempt from capture or attack in the law of naval warfare unless they are integrated into the naval forces, but distinguishing between legitimate fishing vessels and maritime militia during naval warfare is virtually impossible.

Judicial Enforcement Of International Human Rights, Edward D. Re

Akron Law Review

Lawyers are thinkers who must determine what are the fundamental human rights that must be legally enforced by a society worthy of being called civilized. Lawyers, therefore, devote their energies not only to human rights, but also to legal remedies designed to give effect to fundamental rights. Hence, for lawyers, the legal question presented deals with convening the ideals into legally enforceable norms. To phrase the inquiry in simple terms: what needs to be done to give legal effect to those moral norms which embody human rights and fundamental freedoms? What are the institutions of government that are charged with …

Sale V. Haitian Centers Council, Inc.: Closing The Golden Door, Dennis E. Wasitis

Akron Law Review

The purpose of this note is to carefully examine the Supreme Court's reasoning in Sale v. Haitian Centers Council, Inc. Part II sketches the contours of our recent policies with Haiti, and highlights the relevant refugee law involved. Part III dissects the case itself and presents the facts, procedure, and reasoning of the majority and minority. Finally, Part IV probes the strength of the court's analysis, and assesses the future implications of the decision.

Fleeing Cuba: A Comparative Piece Focused On Toro And The Options Victims Of Domestic Violence Have In Seeking Citizenship In The United States And Canada, Kiersten M. Schramek

Pace International Law Review

The United States Court of Appeals for the Eleventh Circuit decided a case on February 4, 2013 that has undoubted international implications. Toro v. Sec’y dealt with the language of the Cuban Refugee Adjustment Act of 1966 (CAA) and the provisions of the Violence Against Women Act (VAWA).

This article focuses on how and why the court reached its decision. It analyzes the conflict between the “plain language” of the CAA and its statutory construction to rebut the court’s assertion that the VAWA self-petition was irrelevant in this case, and ultimately, offer an alternative analysis to this case.

This article …

The Applicability Of The Humanitarian Intervention 'Exception' To The Middle Eastern Refugee Crisis: Why The International Community Should Intervene Against Isis, Milena Sterio

Law Faculty Articles and Essays

The refugee crises in Iraq and Syria, which has been evolving over the past decade as a result of both ongoing conflict in these countries and the recent surge of Islamic State-led violence, has morphed into a true humanitarian catastrophe. Tens of thousands of refugees have been subjected to violence and have been dispersed and forced to live under dire conditions; such massive population flows have destabilized the entire region and have threatened the stability of neighboring countries. The United States and several other countries have been engaged in a military air strike campaign against the Islamic State, but the …

Memo To Prime Minister Cameron On The Revision Of The U.K. National Action Plan On Business And Human Rights, Kaitlin Y. Cordes, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In July 2015, CCSI sent a memo to U.K. Prime Minister David Cameron to provide input on the 2015 revision of the U.K. National Action Plan on business and human rights, originally published in 2013. The memo applauded the U.K. Government’s early adoption of a National Action Plan consistent with the UN Guiding Principles on Business and Human Rights, noting that responsible and rights-respecting outward investment can support sustainable development in host countries, and that the U.K. Government has an important role to play in promoting responsible business operations. The memo urged the government to highlight the importance of land …

Russia’S Annexation Of Crimea: The Mills Of International Law Grind Slowly But They Do Grind, Robin Geiss

International Law Studies

In her speech at the Munich Security Conference in February 2015, Chancellor Angela Merkel unwaveringly said: “Europe’s borders are and will remain unalterable.” At the same time, however, most observers agree that Crimea will remain de facto under Russian control. Against this backdrop the article assesses the contemporary and possible future legal status of Crimea. Particular attention is given to the inseparability of the link between Russia’s unlawful use of force and the purported territorial status alteration of Crimea, the concept of remedial secession and Crimea’s current status as an occupied territory.

Applying The European Convention On Human Rights To The Use Of Physical Force: Al-Saadoon, David S. Goddard

International Law Studies

In Al-Saadoon and Others v. Secretary of State for Defence, the High Court of Justice of England and Wales has found that the United Kingdom’s obligations under the European Convention on Human Rights (ECHR) can be activated extraterritorially simply through the use by State agents of physical force against an individual. This article explains the judgment and places it in the context of the development of the law both in the United Kingdom and at the European Court of Human Rights (ECtHR). While it remains subject to appeal domestically and its approach may not be followed by the ECtHR, …

The Combatant Status Of The “Little Green Men” And Other Participants In The Ukraine Conflict, Shane R. Reeves, David Wallace

International Law Studies

As an occupation and a civil war are simultaneously taking place in Ukraine a particularly vexing international law question is presented: what is the legal status of those involved in the hostilities? This article is designed to answer that question and to identify the associated rights, duties and responsibilities of the participants in the conflict.

Brief Of Amici Curiae Human Rights Organizations In Support Of Plaintiffs-Appellants, Georges V. United Nations, Docket No. 15-00455 (Second Circuit 2015), William Aceves, Baher Azmy, Sarah Dávila-Ruhaak

Court Documents and Proposed Legislation

Amici Curiae consist of twenty-four human rights organizations from the United States and around the world that are committed to the rule of law and respect for fundamental rights, including the essential requirement of accountability for wrongdoing. Amici are deeply concerned that thousands of innocent victims of the 2010 cholera outbreak in Haiti, which is widely acknowledged to have been caused by the United Nations and the United Nations Stabilization Mission in Haiti (“MINUSTAH”), have received no redress for their suffering and injuries. This cholera epidemic compounded the profound suffering already experienced by the Haitian people as a result of …

How Has The Practice Of Unilateral Forcible / Military Intervention ( As Evident By The Case Of Kosovo, Tanzania, And Russia) Eroded The Primacy Of Territorial Sovereignty? This Question Is Answered Through The Use Of Three Different Frameworks : 1) Legal Positivism And 2) Normative Hierarchy, 3) Third World Approaches To International Law (Twail)., Sama Eissa

Theses and Dissertations

The principle of state sovereignty; the right of states to exclusive control over their own territory, is seen as an integral part of the current international order... The whole thesis project revolves around the impact of unilateral humanitarian intervention on the primacy of territorial sovereignty. To be more specific, it explores the role played by the emerging norm of unilateral humanitarian intervention and whether or not it washed away the notion of territorial sovereignty mentioned in the UN charter. The main question the thesis project aims to answer is: How has the practice of unilateral forcible / military intervention ( …

Conflict Classification In Ukraine: The Return Of The “Proxy War”?, Robert Heinsch

International Law Studies

The article examines the exact conditions for classifying an armed conflict under international humanitarian law against the backdrop of the crisis in Ukraine, taking into account the difficult factual situation on the ground and the involvement of the different parties to the conflict. Apart from dealing with the requirements of an international or a non-international armed conflict, it looks again into the specific circumstances for the “internationalization” of an internal armed conflict. In doing so, the author revisits the various approaches found in the jurisprudence of the International Court of Justice in its 1986 Nicaragua and 2007 Genocide judgments, as …

Regulating Hostilities In Non-International Armed Conflicts: Thoughts On Bridging The Divide Between The Tadić Aspiration And Conflict Realities, Geoffrey S. Corn

International Law Studies

International Humanitarian Law (IHL) evolved to strike a rational balance between the necessity of using combat power to defeat enemy opponents, and the humanitarian interest of mitigating the human suffering resulting from armed conflict. Ironically, however, the “type” of conflict most comprehensively regulated by this law—international or inter-State (IACs)—is not the “type” of armed conflict that has been most notable for producing humanitarian suffering since the end of World War II. Instead, non-international armed conflicts (NIACs)—conflicts between States and organized non-State belligerent groups, or even between multiple non-State belligerent groups—have been notorious for their brutality, indifference towards humanitarian restraint, and …

State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, H. Scott Fairley

Georgia Journal of International & Comparative Law

No abstract provided.

Law, Rhetoric, Strategy: Russia And Self-Determination Before And After Crimea, Christopher J. Borgen

International Law Studies

The article considers how and why Russia has used international legal arguments concerning self-determination in relation to its intervention in Ukraine. Of what use is legal rhetoric in the midst of politico-military conflict? The article reviews the laws of self-determination and territorial integrity and considers Russia’s changing arguments concerning these concepts over the cases of Kosovo, South Ossetia, and Ukraine. Inasmuch as international law is the vocabulary and the grammar of modern diplomacy, States may use legal rhetoric with multiple audiences in mind. While the shifts in Russia’s arguments may be due to strategic needs in specific conflicts, the legal …

State Opinio Juris And International Humanitarian Law Pluralism, Michael N. Schmitt, Sean Watts

International Law Studies

International humanitarian law has developed through a pluralistic process. Its history reveals a pattern of rough proportionality between State opinio juris and non-State expressions of law. These diverse sources have maintained a respectable yet realistic balance between humanity and military necessity. However, current IHL dialogue presents a stark contrast to the vibrant and pluralistic exchanges of the past. The substantive input of non-State actors such as non-governmental organizations, tribunals, and scholars far outpaces the work of States. Parity of input, especially in quantitative terms, is surely too much to demand and surely not necessary given the special status of State …

Authorization Versus Regulation Of Detention In Non-International Armed Conflicts, Ryan Goodman

International Law Studies

What does the law of armed conflict say about detention in non-international armed conflict? Is the law “utterly silent,” as some contend, with respect to the grounds for detention—regulating who may be confined and for what status or behavior? And do the in bello rules provide a source of affirmative authority that empowers belligerents to engage in detention? How those questions are resolved and, in particular, the basis for reaching the conclusions may have unintended consequences for the regulation of warfare. This article contends that the laws of war regulate the grounds for detention but do not authorize detention in …

Quis Custodiet Ipsos Custodies? The Current State Of Sexual Assault Reform Within The U.S. Military And The Need For The Use Of A Formal Decisionmaking Process In Further Reform, Danielle Rogowski

Seattle University Law Review

Who protects those who protect the nation? In the United States, these responsibilities are levied upon the U.S. Congress, which has Constitutional authority to “make rules for the Government and Regulation of the land and naval Forces.” As such, the U.S. military currently has a robust and well-developed judicial system governed by the Uniform Code of Military Justice (UCMJ). Yet critics have attacked this system during the past two decades by alleging that it fails to adequately prevent and prosecute sexual assault within the ranks. Following scandals at the 1991 Tailhook Convention, Aberdeen Proving Grounds, and the United States Air …

How To Become A Real-Life Human Rights Activist, Provost Marcella David

Environmental and Animal Law

Florida Agricultural and Mechanical University College of Law presented an Annual Lecture on Human Rights & Global Justice. FAMU's Provost, Vice President for Academic Affairs and Professor of Law has taught public international law, human rights, national security law, and humanitarian law. Her research interests include the use of economic and other sanctions, international criminal law, and questions related to international organizations.

Introduction: Global Health Governance And A Framework Convention On Global Health, Lance Gable, Ames Dhai, Robert Marten, Benjamin Mason Meier, Jennifer Prah Ruger

Law Faculty Research Publications

No abstract provided.

International Humanitarian Law And North Korea: Another Angle For Accountability, Morse Tan

Marquette Law Review

Throughout the last twenty years, the international focus on North Korea has predominantly been on its security issues while there is a paucity of scholarship exploring the legal implications of North Korea’s grave human rights violations. This Article attempts to bridge this void through international humanitarian law, which applies to North Korea’s continued hostilities and defiance on the Korean peninsula and around the world.

This Article further analyzes international law in relation to North Korea’s repeated irresponsible military provocations against South Korea, the United States, and the world. It looks at such actions through an international humanitarian law lens, which …

Law Of War Developments Issue Introduction, David Glazier

Loyola of Los Angeles Law Review

No abstract provided.

The Boundless War: Challenging The Notion Of A Global Armed Conflict Against Al-Qaeda And Its Affiliates, Andrew Beshai

Loyola of Los Angeles Law Review

The U.S. military response to the 9/11 attacks has expanded into a “global war” without a definite geographic scope. Both the Bush and Obama administrations have executed attacks in several countries including Somalia, Afghanistan, Pakistan, and Yemen under the “global war” paradigm. This Article challenges the concept of a global armed conflict, instead favoring the “epicenter-of-hostilities” framework for determining the legality of military action against Al-Qaeda, the Taliban, and other terrorist groups. This approach, rooted in established international law, measures the existence of specific criteria in each nation where hostile forces are present to determine if an armed conflict in …

Self-Determination And Secession Under International Law: The New Framework, Milena Sterio

Law Faculty Articles and Essays

This Article argues toward the necessity to develop a new international law framework on secession. The development of such a normative framework is necessary in order to address various secessionist situations around the globe and to replace the resolution of secessionist struggles through politics of the Great Powers with true legal norms.

This Article first analyzes several examples of successful and failed secessions in recent history. Next it focuses on existing international law on the subject matter of secession and concludes that existing norms are insufficient and indefinite. Finally, it develops a new proposed framework on secession, which attempts to …

Repatriate . . . Then Compensate: Why The United States Owes Reparation Payments To Former Guantánamo Detainees, Cameron Bell

Loyola of Los Angeles Law Review

In late 2001, U.S. government officials chose Guantánamo Bay, Cuba, as the site to house the “war on terror” detainees. Since then, 779 individuals have been detained at Guantánamo. Many of the detainees have endured years of detention, cruel and degrading treatment, and for some, torture—conduct that violates well-established prohibitions against torture and inhumane treatment under both general international law and the law of war. Under these bodies of law, the United States is required to make reparation—through restitution, compensation, and satisfaction—for acts that violate its international obligations. But the United States has not offered financial compensation to any Guantánamo …

Transitional Justice And Judicial Activism— A Right To Accountability?, Ruti Teitel

Articles & Chapters

Victims of systemic rights abuses, their families, and non-governmental organizations are turning to international and regional human rights tribunals to address the failure of states to investigate, prosecute, and remedy past human rights violations. In many cases this relates to acts that occurred decades ago and for which a previous repressive regime was responsible. In other cases there may be powerful interests within the state, such as the police or security service, that are complicit with the violations in question. This Article explores the historical and political contexts in which these cases have arisen, how the courts approach the question …

Maturing Justice: Integrating The Convention On The Rights Of The Child Into The Judgments And Processes Of The International Criminal Court, Linda A. Malone

Faculty Publications

No abstract provided.

Beginning To Learn How To End: Lessons On Completion Strategies, Residual Mechanisms, And Legacy Considerations From Ad Hoc International Criminal Tribunals To The International Criminal Court, Dafna Gozani

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.