International Humanitarian Law Commons^™

Talking Foreign Policy: Untangling The Yemen Crisis, Milena Sterio, Michael P. Scharf, Paul R. Williams, James Johnson, Laura Graham

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to [email protected].

Reputation As A Disciplinarian Of International Organizations, Kristina Daugirdas

Articles

As a disciplinarian of international organizations, reputation has serious shortcomings. Even though international organizations have strong incentives to maintain a good reputation, reputational concerns will sometimes fail to spur preventive or corrective action. Organizations have multiple audiences, so efforts to preserve a “good” reputation may pull organizations in many different directions, and steps taken to preserve a good reputation will not always be salutary. Recent incidents of sexual violence by UN peacekeepers in the Central African Republic illustrate these points.

Alternatives To Investor-State Dispute Settlement, Lise Johnson, Jesse Coleman, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Proponents often explain support for international investment agreements (IIAs) for their ability to: (1) promote investment flows; (2) depoliticize disputes between investors and states; (3) promote the rule of law; and (4) provide compensation for certain harms to investors – objectives of varying degrees of importance to multinational enterprises, home states, host states, and other stakeholders.

While each of these objectives may seem desirable, it is important to consider what exactly they mean and whether IIAs are optimally tailored to achieve them.

This two-part series aims to consider just that. In the first blog installment, we asked of investor-state dispute …

The Mass Murder Of The European Jews And The Concept Of ‘Genocide’ In The Nuremberg Trials: Reassessing Raphaël Lemkin’S Impact, Alexa Stiller

Genocide Studies and Prevention: An International Journal

Nuremberg’s prosecutors prominently used Lemkin’s genocide concept. They also dealt in detail with the mass murder of Europe’s Jews. However, for them ‘genocide’ and the Holocaust were not congruent. They used different definitions of Lemkin’s concept and interpreted the relationship between the mass murder of the European Jews and the entire mass violence of the Nazis differently. Lemkin had little influence on the application of his concept in the Nuremberg trials between 1945 and 1949. The implementation of the 1948 United Nations Genocide Convention put an end to the broad use of the original concept from 1944. Although both Lemkin …

Elusive Justice: The Rohingya Chronic Crisis And The Responsibility To Protect, Sumangala Bhattacharya

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Responsibility In Building Rule Of Law: Kosovo Challenges, Avdullah Robaj, Sabiha Shala

International Journal on Responsibility

The principle of the rule of law is one of the most important and essential principles for any state and for democratic society. Its fullest realization in everyday life is the best guarantee for development of democracy and recognition and enforcement of citizens' fundamental rights and freedoms. To this end, the general principles of the rule of law today occupy a special place and are fixed explicitly in contemporary constitutions and democratic legislation. The well-known countries of Western democracies have long established a rich and valuable legacy in this regard. When exploring the contours and details about establishing the rule …

International Criminal Responsibility In Kosovo: Establishment Of The International Criminal Court – De Lege Lata, De Lege Ferenda, Mujë Ukaj, Qendresa Jasharaj

International Journal on Responsibility

The Special Court of Kosovo (Kosovo Specialist Chambers and Specialist Prosecutor's Office) with headquarters in The Hague, is one of the biggest problems Kosovo faced since the declaration of independence. This topic has been treated very little in scientific terms, while in the media it is written very much, calling it harmful to Kosovo, and even had opinions that it is a racist court since the same will initially only judge the KLA (Kosovo Liberation Army) members for alleged war crimes in Kosovo. The Special Court of Kosovo is presented as a sui generis case in the practice of international …

Beyond Geneva: Detainee Review Processes In Non-International Armed Conflict—A U.S. Perspective, Ryan J. Vogel

International Law Studies

The need for detainee review in non-international armed conflict has never been more imperative. Yet, the law of armed conflict is almost completely silent on the subject. Although the law may not require States to conduct detainee review processes in non-international armed conflict, the spirit of the law encourages it, and States—particularly the United States—have begun to see utility in the development and implementation of such review processes. The object of this article is to identify an appropriate framework for detainee review, examine relevant U.S. state practice, and provide practical guidelines for implementing processes to review the status and threat …

Becoming Unconventional: Constricting The 'Particular Social Group' Ground For Asylum, Fatma Marouf

Faculty Scholarship

Part I of this Article provides a brief background about the evolution of the PSG ground in the United States and how it has become increasingly complicated and constricted over time. Part II discusses several ways that recent administrative decisions have imposed uniquely strict requirements for PSG-based asylum claims, both procedurally and substantively. Namely, the recent decision of the Board of Immigration Appeals ("BIA") in Matter of W-Y-C- & H-O-B- creates two new procedural restrictions. First, it imposes an exceedingly strict pleading standard in PSG cases by requiring "exact delineation" of the PSG. Second, Matter of W-Y-Cprohibits asylum seekers from …

Assigning Protection: Can Refugee Rights And State Preferences Be Reconciled?, James C. Hathaway

Articles

The theoretically global responsibility to protect refugees is today heavily skewed, with just ten countries – predominantly very poor – hosting more than half of the world’s refugee population. Refugee protection has moreover become tantamount to warehousing for most refugees, with roughly half of the world’s refugees stuck in “protracted refugee situations” for decades with their lives on hold. Both concerns – the unprincipled allocation of responsibility based on accidents of geography and the desperate need for greater attention to resettlement as a core protection response – cry out for a global, managed system to protect refugees.

Innovative Financing Solutions For Community Support In The Context Of Land Investments, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments.

Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors. …

Rethinking Social Resistance Through The Consolidating Politics Of Humanitarian Populism In Mytilene, Greece, Othon Alexandrakis

Indiana Journal of Global Legal Studies

During the spring of 2015, thousands of migrants began to arrive daily on the shores of Lesvos, Greece, from nearby Turkey. As the Greek government and the European Union (EU) monitored the unfolding situation, diverse ad hoc humanitarian projects flourished on the island. These projects enacted a field of action grounded in intersecting, concerning effects and values of care. This essay considers the challenges these projects posed to the local, national, and transnational humanitarian apparatus that eventually moved in and attempted to regulate these players. Drawing on recent work in anthropology on sense and critical agency, I discuss these challenges …

To Secede Or Not Secede? Is It Even Possible?, T. Z. Cook

Indiana Journal of Global Legal Studies

Secession seems like a concept of the past. In our increasingly globalizing world, nationalism was growing archaic and halting progress. But secession has seen a surge in the last ten years. Kosovo declared independence from Serbia in 2008. The United Kingdom seceded from the European Union in the infamous "Brexit." And in 2017, Catalonia's grab for independence sparked the worst crisis in Spain since the days of Francisco Franco.1 Alongside these high-profile secessions, smaller movements, which until now were simply brewing and bubbling, are becoming inspired. One such movement is "The South is My Country," a coalition of three southern …

International Criminal Court Comes Of Age, Nancy Amoury Combs

Popular Media

No abstract provided.

Book Review, Marcos Zunino, Justice Framed: A Genealogy Of Transitional Justice (2019), Mark A. Drumbl

Scholarly Articles

Transitional justice initiatives, broadly speaking, respond to systematic human rights abuses. These initiatives take multiple shapes and forms. This means that the actual practice of transitional justice is diverse and organic. Transitional justice discourse, however, is aspirational, normative and selective. It is less heterogeneous and far more directive. Marcos Zunino’s eye-opening book, Justice Framed, is about gaps between narrative discourse and tangible practice. It is about the effects of discourse on practice. More pointedly, Justice Framed is about how discourse ‘surfaces’ certain kinds of practices of the past while sidelining and ignoring others. Hence, to come full circle, this book …

Theorizing Sexual Violence Against Men In The Middle East And North African Region As Gender-Related Persecution Under Refugee And Asylum Law, Valorie K. Vojdik

Book Chapters

No abstract provided.

A Step Too Far: Matter Of A-B-, "Particular Social Group," And Chevron, Jaclyn Kelley-Widmer, Hillary Rich

Cornell Journal of Law and Public Policy

Every day, thousands of Central American asylum seekers, many fleeing persecution from domestic abusers and gangs, attempt to seek refuge in the United States. To receive asylum, those escaping such violence typically must show membership in a "particulars social group." In Matter of A-B-, issued in June 2018, then-Attorney General Jefferson B. Sessions III attempted to destroy the viability of domestic-violence-related particular social groups altogether. As we demonstrate in this Article, this far-reaching decision should not receive Chevron deference from reviewing courts.

A-B- is concerning both for its potentially calamitous effect on individuals fleeing domestic and gang violence and for …

Sexual Exploitation And Abuse In Conflict: An International Crime?, Clare Brown

American University International Law Review

No abstract provided.

The United Nations Human Rights Council: Is The United States Right To Leave This Club?, Sarah Joseph, Eleanor Jenkin

American University International Law Review

No abstract provided.

They Hate U.S. For Our War Crimes: An Argument For U.S. Ratification Of The Rome Statute In Light Of The Post-Human Rights Era, 53 Uic J. Marshall. L. Rev. 1011 (2019), Michael Drake

UIC Law Review

No abstract provided.

Virtual Hatred: How Russia Tried To Start A Race War In The United States, William J. Aceves

Faculty Scholarship

During the 2016 U.S. presidential election, the Russian government engaged in a sophisticated strategy to influence the U.S. political system and manipulate American democracy. While most news reports have focused on the cyber-attacks aimed at Democratic Party leaders and possible contacts between Russian officials and the Trump presidential campaign, a more pernicious intervention took place. Throughout the campaign, Russian operatives created hundreds of fake personas on social media platforms and then posted thousands of advertisements and messages that sought to promote racial divisions in the United States. This was a coordinated propaganda effort. Some Facebook and Titter posts denounced the …

Lost To The Ages: International Patrimony And The Problem Faced By Foreign States In Establishing Ownership Of Looted Antiquities, William R. Ognibene

Brooklyn Law Review

Centuries ago, it was a widespread practice to travel the world and return with souvenirs from ancient civilizations. As time advanced, national patrimony laws and export restrictions prohibited this practice; but the art market for antiquities continued to grow. The great value proscribed to these objects of cultural heritage created an opportunity for years of illicit looting, smuggling, and sales. Finally, an international solution was deemed necessary, culminating in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. But what of the works that had been stolen …

Striking A Grotian Moment: How The Syria Airstrikes Changed International Law Relating To Humanitarian Interventions, Michael P. Scharf

Faculty Publications

In the years since the 1999 NATO airstrikes on Serbia to prevent ethnic cleansing of the Kosovar Albanians, international law has been moving in fits and starts toward recognition of a limited right of humanitarian intervention in the absence of Security Council approval. But all the ingredients necessary for the crystallization of customary international law were not present until the April 14, 2018 U.S./French/U.K. airstrikes on Syrian chemical weapons facilities. This article examines the unique features of the April 2018 airstrikes – the context of a crisis of historic proportions, the focus on preventing the use of chemical weapons, the …

The Legal Architecture Of United Nations Peacekeeping: A Case Study Of Unifil, Layan Charara

Michigan Journal of International Law

This Note explores the ways UNIFIL is a unique peacekeeping force that can still teach broader lessons about UN peacekeeping It is organized into four parts: Part I provides a contour of UN peacekeeping operations; Part II chronicles the history of UNIFIL; Part III analyzes the current legal regime with respect to UN peacekeeping; and Part IV surveys solutions offered in the past and recommends more apposite courses of action to strengthen the legal recourse available to peacekeepers and their families.

The Trump Administration And The International Criminal Court: A Misguided New Policy, Milena Sterio

Law Faculty Articles and Essays

In a recent speech, National Security Advisor John Bolton delivered remarks on "Protecting American Constitutionalism and Sovereignty from International Threats." In his remarks, Bolton announced a new American policy vis-a-vis the International Criminal Court (ICC or Court). According to Bolton, the ICC "has been ineffective, unaccountable, and indeed, outright dangerous." While Bolton and others in the Trump Administration are at liberty to craft new policies, it is important that such policies be based on accurate facts and an accurate understanding of the law.

This Article highlights factual errors from Bolton's remarks and criticizes some of his arguments as misguided and …

Talking Foreign Policy: North Korea Summit, Milena Sterio, Shannon French, Tim Webster, Paul R. Williams, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest manner:

• The ethicist: …

Talking Foreign Policy: Responding To Rogue States, Milena Sterio, Todd F. Buchwald, James Johnson, Michael P. Scharf, Paul R. Williams

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest manner:

• The ambassador: …

The Human Rights Movement And The Prevention Of Evil: The Need To Look Inward As Well As Out, Jeffrey A. Brauch

Catholic University Law Review

The modern human rights movement began as a response to great evil perpetrated by individuals and nations against others during and preceding World War II. The movement has been dedicated to protecting the rights of individuals by confronting evil and holding nations accountable should efforts to prevent it fail.

This article contends that while the human rights movement is good at confronting evil “out there,” it has failed in important ways to recognize flaws within itself. In particular, it displays a hubris that shows itself in two ways. First, the movement has embraced a utopian expansion of rights to be …

What Is Puerto Rico?, Samuel Issacharoff, Alexandra Bursak, Russell Rennie, Alec Webley

Indiana Law Journal

Puerto Rico is suffering through multiple crises. Two are obvious: a financial crisis triggered by the island’s public debts and the humanitarian crisis brought on by Hurricane Maria. One is not: the island’s ongoing crisis of constitutional identity. Like the hurricane, this crisis came from outside the island. Congress, the U.S. Supreme Court, and the Executive Branch have each moved in the last twenty years to undermine the “inventive statesmanship” that allowed for Puerto Rico’s self-government with minimal interference from a federal government in which the people of Puerto Rico had, and have, no representation. From the point of view …

Submission To The United Nations Universal Periodic Review Of Yemen, Mwatana Organization For Human Rights, Human Rights Clinic, Cairo Institute For Human Rights Studies, International Federation For Human Rights (Fidh), Gulf Centre For Human Rights (Gchr)

Human Rights Institute

Mwatana for Human Rights (Mwatana), the Columbia Law School Human Rights Clinic (the clinic), Cairo Institute for Human Rights Studies (CIHRS), International Federation for Human Rights (FIDH), and the Gulf Centre for Human Rights (GCHR) submit this report to inform the examination of Yemen during its third Universal Periodic Review (UPR). This submission focuses on international human rights and humanitarian law violations by the Government of Yemen and by the armed group Ansar Allah (the Houthis).