International Humanitarian Law Commons^™

Introduction Human Rights And States Of Emergency: Unexpected Crisis And New Challenges, Claudia Martin, Diego Rodriguez-Pinzon

American University International Law Review

We are delighted to present this year’s special issue of the American University International Law Review and the Academy on Human Rights and Humanitarian Law, which includes two of the best essays in English and in Spanish recognized in the 2021 Human Rights Essay Award competition. It is satisfying to think that this competition allowed a number of participants an opportunity to expound their thoughts on so many important topics, regarding so many areas of the world. We hope these participants are able to use their articles as mechanisms for change.

The Peace Corps Is Failing To Keep Volunteers Safe, Marnie Leonard

Human Rights Brief

Nicole Jacobson, an American Peace Corps Volunteer (PCV) in a Zambian village, was “far from home and feeling alone” when the father of the host family that the Peace Corps (“the agency”) placed her with sexually assaulted her. Jacobson reported the assault to Peace Corps staff, who told her it was a cultural misunderstanding and kept Jacobson at the site for more than a year before allowing her to leave in 2018. Unfortunately, Jacobson’s story is not unique. In fact, she is one of many Returned Peace Corps Volunteers (RPCVs) who have come forward in recent years to share stories …

Brazil’S Violence Against Indigenous Peoples, Andre Taylor

Human Rights Brief

Centuries of violence and displacement define the relationship between indigenous peoples and the successive governments of Brazil. As Brazil embarks on a massive expansion of its agribusiness and mining operations, the systemic denial of land rights and illegal economic activity on protected lands has threatened traditional ways of life practiced by indigenous peoples. The most aggressive policy taken by the Brazilian government has involved legitimizing land claims on unregistered ancestral indigenous lands for development, putting 37,800 square miles of territory at risk for exploitation by loggers, ranchers, and farmers.

The Right To Assembly Should Extend Online In China, Gracie Kreth

Human Rights Brief

Peng Shuai, China’s star tennis player, logged onto the Chinese social media platform Weibo in November 2021 and posted a description of her relationship with Zhang Gaoli, a powerful Chinese leader and former Vice Premier of China. Shuai alleged in her post that after a consensual relationship with Gaoli, he sexually assaulted her. She described her feelings from the trauma and the suicidal thoughts that followed. Within minutes, the Chinese government scrubbed the post from the internet — but it was still quick to spread, battling the “Great Firewall.” Shuai’s profile essentially disappeared online; along with Shuai in the real …

Romanian Government Will Implement Measures To Prevent Further Violations Of Rightsof People With Mental Health Conditions Or Disabilities In Accord With The Decision Of The European Court Of Human Rights, Tesa Hargis

Human Rights Brief

On June 21 and 22, the European Court of Human Rights (ECtHR) and Romania discussed reform measures based on various judgements delivered during the nine-year period between 2012 and 2021. At issue before the ECtHR’s Department for Execution of Judgments was insufficient legal protection, lack of medical and social care, deficiencies in the legal framework governing involuntary placement, inadequate management of psychiatric conditions of detainees, and overcrowding and poor conditions in Romanian mental health facilities.

Chocholáčv. Slovakia: Prisoners, Porn, & Morality In Human Rights, Amanda Lorenzo

Human Rights Brief

Chocholáč v. Slovakia asks whether Slovakia’s disciplinary actions against a prisoner in possession of concealed pornographic materials violated the European Convention of Human Rights (“the Convention”). Roman Chocholáč, a thirtythree-year-old currently serving a life sentence in Leopoldov prison was found possessing a “popular weekly magazine” with sexually-explicit pictures pasted inside. The State deemed the added material a threat to morality and prison staff confiscated it. On November 21, 2017, Chocholáč v. Slovakia was brought to the European Court of Human Rights (ECtHR), presenting legal questions under Slovakia’s Criminal Code and Execution of Prison Sentences Act, as well as Articles 8 …

Overcoming The Westphalian Notion Of "Absolute Sovereignty": The Venezuelan Case With The Inter-American Convention Of Human Rights, Gabriel Ortiz

Human Rights Brief

In 2012, Former Venezuelan President Hugo Chavez withdrew from the American Convention on Human Rights (ACHR or “the Convention”). He presented a letter issued by the Department of Foreign Affairs before the Secretary General of the Organization of American States (OAS). The denunciation became effective in 2013. Thereafter, no one could petition before the Inter-American Commission or the Inter-American Court (IACHR) to hold Venezuela accountable for human rights violations. Meanwhile, between 2014 and 2019, the government’s armed groups have killed more than 19,000 people.

Prologue, Claudio Grossman, Robert K. Goldman

American University International Law Review

We are pleased to write this prologue for the special issue of the American University International Law Review featuring the winning papers from the 2021 Human Rights Essay Award, sponsored by the Academy on Human Rights and Humanitarian Law of American University Washington College of Law.

Derogations To Human Rights During A Global Pandemic: Unpacking Normative And Practical Challenges, Roman Girma Teshome

American University International Law Review

After the World Health Organization (WHO) characterized the COVID-19 outbreak as a “global pandemic,” States responded by taking more restrictive and urgent measures. These measures ranged from restrictions on public events to partial or total lockdowns, which restrict a plethora of human rights. Additionally, an unprecedented number of States declared a state of emergency to justify these measures; as of this writing, roughly two-thirds of States declared a state of emergency due to COVID-19 under the International Covenant on Civil and Political Rights (“ICCPR”).

Reparations, Or Hush Money?, Christina Glekas

Journal of Race, Gender, and Ethnicity

No abstract provided.

Rejecting Customary Regression: Unilateral Humanitarian Intervention & The Evolution Of Customary International Law, Elisabeth J. Brennen

Michigan Journal of International Law

Humanitarian intervention is perhaps one of the most important topics in international affairs. It raises questions of morality and militarism, becoming a platform for sharp debate in international law. This note discusses both the moral and legal questions presented by unilateral humanitarian intervention (“UHI”). It argues that UHI is antithetical to the progression of customary international law due to customary international law’s evolutive nature and the ongoing importance of decolonization. UHI is not only normatively undesirable, but the particular normative criticisms of the doctrine – that it is regressively imperialist and neo-colonial – render it fundamentally incompatible with customary international …

Grotian Moments And Statehood, Milena Sterio

Law Faculty Articles and Essays

Grotian Moments are instances of accelerated formation of customary law, sparked by significant world events, such as wars, terrorist attacks, or natural catastrophes. This Article applies the Grotian Moment theory to the legal criteria of statehood, in an attempt to assess whether an evolution in specific elements of statehood has resulted in such paradigm-shifting Grotian Moments. In Part II, this Article analyzes the Grotian Moment theory while distinguishing it from other types of customary law formation. Part III focuses on the legal theory of statehood and each of its constitutive elements. Part IV discusses whether any such elements of statehood …

The Invasion Of Ukraine: A Gross Violation Of International Law, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

In recent weeks, humanity has witnessed a war in Europe as a result of Russia’s unjustified invasion of Ukraine.

Released, But Not Free: The Unexonerated, Heidi Gilchrist

Faculty Scholarship

No abstract provided.

Talking Foreign Policy: "Blood & Treasure", Milena Sterio, Michael P. Scharf, Gregory P. Noone, Sandra Hodgkinson, Darin Johnson

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].

SEPTEMBER 28, 2021 BROADCAST

Recognizing A Fundamental Right To A Clean Environment: Why The Juliana Court Got It Wrong And How To Address The Issue Moving Forward, Robert Kemper

FIU Law Review

As the existential threat of climate change becomes increasingly prevalent, U.S. plaintiffs, lawyers, and activists have begun seeking redress in federal courts arguing for recognition of a constitutional right to a clean environment. Recently, in Juliana v. United States, the Ninth Circuit explicitly recognized the grave threat of climate change for the health, well-being, and security of the American people and the nation as a whole. Additionally, the court found that the U.S. government has contributed to climate change through both inaction and policy decisions that promote the use of fossil fuels. The plaintiffs claimed that they had a constitutional …

Effectiveness Of The Existing International Humanitarian Law Provisions In Protecting The Natural Environment During Internal Armed Conflicts, Joharah M. Alkahtani

Dissertations & Theses

The environment is inherently at risk in any armed conflict and the natural environment is always a victim of wars. In order to properly protect the environment, the international community must explicitly recognize the civilian nature of the environment and bar all damages to it notwithstanding its extent, longevity and severity. The current study focuses on the environmental protection during armed conflicts. In World War I, parties employed the indiscriminate use of chemical weapons as a way of gaining military advantage over their enemies. The world responded by adopting the Convention on the Prohibition of the Development, Production, Stockpiling and …

Voices From Below—Africa’S Contribution To The Development Of The Norm Of Corporate Responsibility To Respect Human Rights, Akinwumi Olawuyi Ogunranti

PhD Dissertations

The long conversations about corporate responsibility predominantly take place in forums and conferences in the Global North. Yet, the majority of the human rights abuses and their impacts are felt by peasants, farmers, children, and women in local communities in the Global South who do not have a voice in the institutionalized governance systems that animate global affairs. This thesis answers the question of how norms and human rights institutions in Africa can influence the corporate responsibility to respect (CR2R) norm as embedded in pillar II of the United Nations Guiding Principles on Business and Human Rights. Through the theory …

Some Reflections On The Fourth Chilean-German-Tanzanian Legal Talk, James M. Cooper

Faculty Scholarship

On December 3, 2021, the Heidelberg Center for Latin America convened a group of academicians from around the world to explore the way legal pluralism contests values (including the protection of universal human rights), disrupts our national legal systems, and provides for self-determination. The transnational webinar was co-sponsored by the University of Heidelberg and University of Bayreuth of Germany, Universidad de Chile, University of Dar Es Salaam in Tanzania, Faculdades de Campinas in Brasil, as well as California Western School of Law/Proyecto ACCESO in the United States, and the German Academic Exchange Service (DAAD).

The webinar brought together participants with …

The Right To Privacy And Data Protection In Times Of Armed Conflict, Asaf Lubin, Russell Buchan

Books & Book Chapters by Maurer Faculty

Contemporary warfare yields a profound impact on the rights to privacy and data protection. Technological advances in the fields of electronic surveillance, predictive algorithms, big data analytics, user-generated evidence, artificial intelligence, cloud storage, facial recognition, and cryptography are redefining the scope, nature, and contours of military operations. Yet, international humanitarian law offers very few, if any, lex specialis rules for the lawful processing, analysis, dissemination, and retention of personal information. This edited anthology offers a pioneering account of the current and potential future application of digital rights in armed conflict.

In Part I Mary Ellen O’Connell, Tal Mimran and Yuval …

Margins Of Empire: The Sakhalin Koreans’ Long Saga Home, Timothy Webster

Faculty Scholarship

Migration carries with it many risks, from perilous journeys along risky corridors to hostile environments in one's adopted country. But what happens when migrants cannot return home? This Article examines the difficulties endured by Sakhalin Koreans, a group of ethnic Koreans who emigrated to Sakhalin Island during the Japanese colonial period and found themselves stranded in a foreign country (the Soviet Union) for the next half century. After recounting the migration of Koreans to Sakhalin, and analyzing lawsuits filed in Japan to repatriate them, it analyzes the infirmities of the international human rights system and the challenges of repatriating a …

South Korea Shatters The Paradigm: Corporate Liability, Historical Accountability, And The Second World War, Timothy Webster

Faculty Scholarship

South Korea is currently revising its interpretation of Japanese colonialism, and the fallout from World War II more generally. In 2018, the Supreme Court of South Korea issued two opinions that staked new ground in this process of legal revision. First, by holding Japanese multinational enterprises legally liable for events that took place in the early 20th century, the verdicts fissure a wall of corporate impunity that courts in Japan, the United States and many Western jurisdictions have erected over the past three decades. Second, by situating the decisions within Korea’s own colonial past, the judgments advance a post-colonial jurisprudence …

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

FIU Law Review

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors. This Article disaggregates slavery from the slave trade and slavery …

Intellectual Property Rights As A Barrier For Developing Countries To Access A Covid-19 Vaccine, Kristina Frkovic

Marquette Intellectual Property & Innovation Law Review

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The Reasonable Intelligence Agency, Asaf Lubin

Articles by Maurer Faculty

Article 57(2) of the First Additional Protocol to the Geneva Conventions requires parties to an armed conflict to “do everything feasible to verify” their objects of attack and take “all precautions” to minimize civilian casualties and unintentional damage to civilian property. This obligation has been interpreted in international law to require state parties to set up an “effective intelligence gathering system” that would properly identify targets using all technical means at the disposal of the combating forces.

But existing law has failed to define what “effective intelligence” looks like. Quite the opposite. Modern history is filled with examples of intelligence …

Academy On Human Rights And Humanitarian Law Articles On Human Rights And States Of Emergency: Unexpected Crisis And New Challenges: Introduction, Claudia Martin, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

We are delighted to present this year's special issue of the American UniversityInternationalLaw Review and the Academy on Human Rights and Humanitarian Law, which includes two of the best essays in English and in Spanish recognized in the 2021 Human Rights Essay Award competition. It is satisfying to think that this competition allowed a number of participants an opportunity to expound their thoughts on so many important topics, regarding so many areas of the world. We hope these participants are able to use their articles as mechanisms for change.

Academy On Human Rights And Humanitarian Law Articles On Human Rights And States Of Emergency: Unexpected Crisis And New Challenges: Prologue, Claudio Grossman, Robert K. Goldman

Scholarly Articles in Law Reviews & Journals

We are pleased to write this prologue for the special issue of the American UniversityInternationalLaw Review featuring the winning papers from the 2021 Human Rights Essay Award, sponsored by the Academy on Human Rights and Humanitarian Law of American University Washington College of Law.

Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Online intermediaries are omnipresent. Each day across the globe, the corporations running these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes. Online intermediaries, however, are almost never held to account for their complicity in the resulting harms. This Article introduces the concept of platformenabled crimes into the legal literature to highlight the ways in which the ordinary business activities of online intermediaries enable the commission of crime. It then focuses on a subset of platform-enabled crimes—those in which a social media …

Guide On Multisectional Responses For The Protection Of Migrants, Refugees, And Internally Displaced Persons During And After The Covid-19 Pandemic, Diego Rodriguez-Pinzon, Claudia Martin

Research Reports & White Papers

The Guide on Multisectoral Responses for the Protection of Migrants, Refugees, and Internally Displaced Persons during and after the COVID19 pandemic is an initiative of the Department of Social Inclusion of the Secretariat for Access to Rights and Equity of the Organization of American States (OAS) that offers a situational analysis and promotes a dialogue on proposals to address the particular needs of migrants, refugees, and internally displaced persons in the face of the emergency generated by COVID-19. It also seeks to define proposals with a post-pandemic perspective that provide multisectoral responses to address the needs of vulnerable populations.

This …

Introduction: International Law And Inequalities, Diane Desierto

Journal Articles

Equality is both a premise and a promise (or at least much lip service is paid to such) of today’s international law. Customary international law and instruments such as the United Nations Charter, the Universal Declaration of Human Rights and other foundational treaties of the multilateral system are premised on the equality of states, the right to self-determination and the fundamental equality of human beings. With the era of decolonization, international law also became a battleground for material equality. In the wake of the 2008 financial crisis, (economic in-)equality once again entered the limelight in a number of disciplines, not …