International Humanitarian Law Commons^™

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

The Faces Of War: Reintroducing Women's Narratives In War, Robin Makena Peterson

CMC Senior Theses

Women take part in every war, but their accomplishments are mostly unacknowledged in the thousands of war stories told in the aftermath which tend to valorize men’s contributions as political leaders and soldiers. This erasure of women’s experience’s and agency in war holds true for war in Afghanistan, as well. This thesis identifies the gendered narratives told in books, movies, television shows, and the media but then offers, in contrast, narratives of Afghan and American women’s action during the forty years of war in Afghanistan. By sharing and contextualizing women’s stories, this paper strikes a blow against women’s erasure from …

The Role Of The Registry And Legal Division Of The African Court Of Human And People's Rights In Dispute Settlement, Olabisi D. Akinkugbe, Morris K. Odeh

Articles, Book Chapters, & Popular Press

This Essay explores whether the African Court of Human and People's Rights’ (African Court) Registry and Legal Division have a similar expansive role in the dispute settlement mechanism as the World Trade Organization's (WTO) Secretariat. The African Court is the African Union's regional body for enforcing human rights. This Essay contributes to the scholarship on African international courts by testing the central arguments in Pauwelyn and Pelc's “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement” through a comparative analysis of the role of the Secretariat within the African Court. Despite the growing …

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 …

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 …

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 …

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 …

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

Marquette Intellectual Property & Innovation Law Review

None

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 …

Covax: A Primer To International Efforts In Vaccine Distribution And Inequities, Diane Desierto

Journal Articles

I have a slightly different view from Dr. Oke in regard to his doubts regarding the utility of a waiver. To the extent that the precedent that we are looking at is whether or not there could be a waiver for countries that lack domestic manufacturing capabilities, to instead import a cheaper generic drug of the Covid vaccines that could be produced in other countries, mainly the particular hubs, such as in India and China, that is still an open question, and part of the proposal that is up before the TRIPS council involves that dimension and that aspect of …

The Minds Behind The Movement: The Role Of Academics In East Asia’S War Reparations Litigation, Timothy Webster

Faculty Scholarship

East Asia's war compensation litigation simultaneously unites diverse regional actors (lawyers, survivors, activists) and fray international relations (as recent verdicts from South Korea attest). However, one view of the merits of these lawsuits is that they have reconfigured transnational activism in East Asia, exhumed forgotten and suppressed histories of Japanese aggression, and on occasion compensated victims of World War II. This Article highlights the role of Chinese, Japanese, Korean, Taiwanese activists, lawyers and scholars in researching, filing, litigating and appealing over 80 lawsuits between 1972 and the present.

Japan’S Transnational War Reparations Litigation: An Empirical Analysis, Timothy Webster

Faculty Scholarship

Negotiating war reparations is traditionally the province of the political branches, yet in recent decades, domestic courts have presided over hundreds of compensation lawsuits stemming from World War II. In the West, governments responded to these lawsuits with elaborate compensation mechanisms. In East Asia, by contrast, civil litigation continues apace. This Article analyzes eighty-three lawsuits filed in Japan, the epicenter of Asia’s World War II reparations movement. While many scholars criticize the passivity of Japanese courts on war-related issues, this Article detects a meaningful role for Japanese courts in the reparations process: awarding compensation, verifying facts, and allocating legal liability. …

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Faculty Scholarship

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or anti-democratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

Little Progress In The Sixth Committee On Crimes Against Humanity, Leila Nadya Sadat

Scholarship@WashULaw

This essay takes up the work of the UN Sixth Committee to date on crimes against humanity. It offers the first comprehensive tabulation of States’ positions, an analysis of the work accomplished thus far, and suggests a potential roadmap for advancing the adoption of a new global treaty on crimes against humanity. The essay notes the substantial progress made by the International Law Commission in the development and shaping of the proposed draft treaty as well as the substantial support the ILC’s work has attracted from States. At the same time, it underscores the disappointing outcome of this year’s negotiations, …

Torture In Our Schools?, Leila Nadya Sadat

Scholarship@WashULaw

America’s kids are not okay. As gun violence surges and politicians dither, school shootings are traumatizing a generation of youth. While only one manifestation of America’s gun violence crisis, school shootings are shocking in their ferocity, the senseless and random nature of the violence, and their impact upon millions of young, captive, and vulnerable individuals. This Essay makes the claim that the suffering of America’s school children from uncontrolled gun violence may be significant enough in scale and kind to rise to the level of ill-treatment under international law, violating U.S. treaty obligations and customary international law. If so, their …

Coming Debates To Advance New Treaty On Crimes Against Humanity Will Require Skillful Leadership, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

The resolution adopted recently at the United Nations General Assembly’s legal committee on draft articles for a treaty on crimes against humanity creates a two-year process for debate and discussion of the proposal within the committee. This opens the door for the possible adoption of a new, critically needed, global treaty on crimes against humanity within the next three or four years. Such a treaty would close several gaps in the legal architecture of atrocity crimes — particularly the legal obligation to prevent crimes against humanity, a duty not imposed by complementary regimes, including the Rome Statute of the International …

How International Justice Can Succeed In Ukraine And Beyond, Leila Nadya Sadat, Christopher Hale

Scholarship@WashULaw

Depictions of gruesome and heartbreaking mass atrocities resulting from Russia’s invasion of Ukraine have injected discussions of war crimes trials into common discourse the world over. World leaders and government spokespersons in major capitols now field a steady stream of media questions on how crimes in Ukraine will be confronted. An unprecedented number of States Parties (41) of the International Criminal Court (ICC) referred the crimes in Ukraine to the ICC Prosecutor for investigation, and a video statement from the last living prosecutor of the Nuremberg era, 102-year-old Ben Ferencz, was played at one of the most-watched United Nations …

On Crimes Against Humanity, Protect The Un Sixth Committee’S Integrity With Action, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

Enthusiasm for negotiating and adopting a new global treaty on the prevention and punishment of crimes against humanity has been growing since the issuance of a model draft treaty 16 years ago, particularly after the United Nations International Law Commission (ILC) submitted a final set of draft articles to the General Assembly on Aug. 5, 2019. Although paragraph 42 of the ILC’s report recommended the “elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles,” progress on this important treaty has stalled in the U.N. General Assembly’s Sixth …

The Enduring Role Of Conflict In The Perpetuation Of Famine: Advancing 'The Right To Adequate Food' For Sustainable Peace, Robert M. Bane

Dissertations and Theses

The present thesis evaluates developments and trends in global conflict dynamics, global systems of governance, and global hunger. Together, the thesis investigates and upholds the notion that famine is a ‘man-made’ phenomenon and explains how famine persists in a world abundant with food. Through analysis and research the following is found: the occurrence of global conflict is accelerating alongside an increase in the severity of organized violence dynamics; global authoritarianism is expanding presenting a threat to global freedoms and liberal democracy; as these trends are occurring, world hunger is steadily on the rise reflecting a significant backsliding of progress achieved …

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 …

'The Perfect Shouldn't Be The Enemy Of The Good' — What Canada Can Do Today, Tomorrow & Next Week To Enhance Equitable Access To Covid-19 Biopharmaceutical Interventions, Matthew Herder

Reports & Public Policy Documents

There is overwhelming evidence of inequitable access to a range of COVID-19 targeting biopharmaceutical interventions, including not only vaccines but also anti-viral drug therapies, diagnostic tests, and various materials that are incorporated into these products. As recently explained by Yamey et al. in the British Medical Journal, inequitable access is baked into every phase of the biopharmaceutical system—from production and allocation to affordability and deployment. Yet, it is still possible to improve access to these critically important biopharmaceutical interventions in low and middle-income countries (LMICs). Intellectual property (IP) rights are one crucial site where policy intervention can make an immediate …

Addressing The Accountability Void: War Crimes Against Persons With Disabilities, William I. Pons, Janet E. Lord, Professor Michael Stein

All Faculty Scholarship

Academics rarely raise the need to consider persons with disabilities when preventing,

investigating and prosecuting international humanitarian law (IHL) violations.

Worse still, no actual attempts have been made to include a disability perspective

into practical guidance and monitoring mechanisms. This article addresses that

void by laying out how existing yet unutilized IHL obligations can be leveraged to

repress and suppress disability-based IHL violations. In doing so, the article will

detail how fact-finding approaches, criminal investigative processes and reporting

methods for IHL violations can be inclusive of persons with disabilities and thus

more appropriately address the endemic under-representation of a disability …

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.

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.

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.

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 …

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 …