International Humanitarian Law Commons^™

Defining The End Of New Wars, Jeroen Jansen

Archived Theses and Dissertations

New wars are defined by their innate disposition to blur distinctions and human rights violations while structurally undermining the enjoyment of human rights. These wars are self-fueling human rights cataclysms that destroy society and its social contract by blurring the distinction between government, army and people. These characteristics prolong into what is perceived as post-conflict and blur the distinction between war and peace. The lack of acknowledgment and understanding of these characteristics among the actors who provide relief and seek resolution to the conflict undermines the effectiveness of their actions and the coordination among them resulting in aid gaps. The …

Should The Right To Strike Be Justified As A Civil Or Political Right?, Elham Eidarous Al-Kassir

Archived Theses and Dissertations

The recognition and protection of the right to strike have seen huge developments since the beginning of the twentieth century. The traditional basis upon which this right was based on the international arena and in national jurisdictions is one that views the right to strike as an essential tool in the hands of workers and their representative organizations to strengthen their bargaining power against employers, which means that the right to strike is one of economic and social rights enjoyed by humans in their capacity as workers. Yet, there are calls for widening the basis of recognition of this right …

Rethinking Norms On Return To Urban Refugee Situations: Sub-Saharan African Refugees In Cairo And Irregular Secondary Movement To Israel, Mallory Charlotte Wankel

Archived Theses and Dissertations

The long-running controversy in international refugee law over the concept of safe third countries is particularly challenging when refugees migrate irregularly from urban settings. While urban-based refugees often face a distinct set of human rights violations, the complexity that characterizes how these abuses fit into the larger picture of urban poverty and state ineffectiveness, combined with continued ambiguity concerning the minimal standards of protection necessary to allow a state to return a refugee to a first country of asylum, allows receiving states to deny protection obligations by relying on the argument that the hardships compelling movement, if they did not …

Islamist Terrorism And The Classical Islamic Law Of War, Joseph Hoelz

International Law Studies

Islamist terrorists have had a large influence on U.S. foreign and domestic policy for more than twenty years, and yet policy makers, legal practitioners, and the public know very little about what motivates these violent extremist organizations. A primary unifying principle among the various Islamist terrorist groups is their desire to return to a religiously ordered State, justified and based upon their interpretation of the Shari’a, or Islamic law. This article explores the Islamist terrorist interpretation of Shari’a law and how it generally contradicts that of mainstream Islamic scholars. The article begins with a review of the primary and secondary …

Developing A Practice In Remote Sensing For Next-Generation Human Rights Researchers, Theresa Harris, Jonathan Drake, Umesh K. Haritashya, Wumi Asubiaro Dada, Fredy Cumes

Biennial Conference: The Social Practice of Human Rights

Remote sensing is increasingly recognized as an important tool for documenting human rights abuses. When used alongside interviews, case studies, surveys, forensic science, and other well-established research methods in human rights and humanitarian practice, remotely sensed data can effectively geolocate and establish chronologies for mass graves, forced displacement, destruction of cultural heritage sites, and other violations. But as a highly technical field of science that relies on ever-changing technologies, remote sensing and geospatial analysis are not readily accessible for human rights and humanitarian practitioners. The community of practice grew out of innovative work by practitioners at NGOs and specialized inter-governmental …

Migration And Mortality: Social Death, Dispossession, And Survival In The Americas, Miranda Cady Hallett, Joseph Nevins, Jamie Longazel, Amelia Frank-Vitale, Alicia Yvonne Estrada, Abby C. Wheatley

Biennial Conference: The Social Practice of Human Rights

This panel presents research from the new edited volume Migration and Mortality (edited by Longazel and Hallett, Temple University Press, 2021). Death threatens migrants physically during perilous border crossings between Central and North America, but many also experience legal, social, and economic mortality. Rooted in histories of colonialism and conquest, exclusionary policies and practices deliberately take aim at racialized, dispossessed people in transit. Once in the new land, migrants endure a web of systems across every facet of their world—work, home, healthcare, culture, justice—that strips them of their personhood, denies them resources, and creates additional obstacles that deprive them of …

The Good, The Bad, And The Historically Anti-Semitic: An Analytical Comparison Of Anti-Hate Laws In Germany And The United States, Jamie Rauch

Brooklyn Journal of International Law

Confronted every day with drastically increasing accounts of hate crimes and hate speech, nations’ legislators have routinely tried and subsequently failed to implement effective legislation capable of curbing the hatred epidemic currently sweeping the globe. This failure is due in large part to the lack of a universal stance on hate crime regulation and criminalization. Two countries in particular, the United States and Germany, embody two diametrically opposing approaches taken by nations in the present-day war on hate speech. This Note explores the dramatic dichotomy between the legislative framework surrounding the regulation of hate speech in these two countries. This …

The Right To Food Comes To America, Wendy Heipt

Journal of Food Law & Policy

The people of Maine recently exercised an opportunity no citizen of this country has ever had before: the ability to vote on whether to enshrine a right to food in their state constitution. This Essay provides an overview of Maine’s experience with food rights in order to explain how the state came to occupy this unique position.

Mental Illness In The Criminal Justice System: Erasing The Stigma On A Global Scale, Jennifer Rabbino

Brooklyn Journal of International Law

Mental illness has long been misunderstood and severely stigmatized worldwide. For several hundred years, rather than offering prompt and proper treatment, most countries treated mental illness by isolating patients from society. Moreover, that ill treatment remains to this day, with over 90% of the developing world's population living with a mental illness completely untreated and legal systems the world over struggling with how best to treat mentally ill defendants fairly. This Note will scrutinize and compare the treatment of the mentally ill defendants in Western and African nations. It will then focus on the legal systems in Uganda and Ghana …

Environmental Law, Disrupted By Covid-19, Rebecca Bratspies, Vanessa Casado-Pérez, Robin Kundis Craig, Lissa Griffin, Keith Hirokawa, Sarah Krakoff, Katrina Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, Erin Ryan, David Takacs

Faculty Scholarship

As we were in the final phases of editing a book on disruption in environmental law, a pandemic swept across the world disrupting daily life and the functioning of society to an extent unprecedented in living memory. The novel coronavirus known as COVID-19 was identified in China in late 2019 and by late February 2020, it had spread to every continent except Antarctica; as of April, 2021, the World Health Organization (WHO) estimated that over 148 million people had been infected worldwide with over 3 million deaths. Scientists and public health experts have raced to understand the virus—how is it …

Redefining The Safe Third Country Exception Of The Immigration And Nationality Act In The Wake Of Trump, Daniel E. Rabbani

Brooklyn Law Review

The U.S. Immigration and Nationality Act lays out when an asylum seeker has the right to apply for asylum in the United States. This right is not available, however, when an asylum seeker passes through a designated Safe Third Country. A Safe Third Country is an internationally used concept that, pursuant to an international agreement, requires refugees to seek asylum in the first safe country that they step foot in. As the Safe Third Country exception on the Immigration and Nationality Act stands now, there are no guidelines on how to evaluate whether a country is in fact safe. This …

Gulf Of Guinea And Maritime (In)Security: Musings On Some Implications Of Applicable Legal Instruments, Edwin E. Egede

Brooklyn Journal of International Law

The Gulf of Guinea (GoG) is an enormous and diverse region consisting of approximately 6,000 km of coastline extending from Senegal to Angola. It is a maritime area of strategic importance because it is resource-rich with hydrocarbons, fish and other resources. Also, it is important as a vital maritime transit hub. Unlike certain other shipping lanes that have been identified as chokepoints, the GoG, because of its width, is not susceptible to blockades and major shipping accidents. Previously the maritime (in)security in the GoG had not received the same high-profile attention from the international community as the situation in the …

High Time For A Change: How The Relationship Between Signatory Countries And The United Nations Conventions Governing Narcotic Drugs Must Adapt To Foster A Global Shift In Cannabis Law, Alexander Clementi

Brooklyn Journal of International Law

Since the early 1970’s, the inclusion of cannabis and its byproducts in the United Nations Single Convention on Narcotic Drugs has mandated a strict prohibition on cultivation and use of the substance, which has led to a largely global practice of criminalization and imprisonment of anyone found to be in its possession. Yet recently, mostly in response to growing public health concerns, countries like Uruguay, Portugal, The Netherlands, Canada, and the United States have enacted laws which seek to decriminalize or even legalize cannabis use and possession. Yet, cannabis remains classified as a Schedule IV narcotic under the Single Convention, …

Protecting Internet Access: A Human Rights Treaty Approach, Harpreet Kaur

Brooklyn Journal of International Law

With the evolution of the internet, the world has also seen a marked increase in government-ordered internet shutdowns and restrictions, sometimes with dubious justifications and sometimes with no justification at all. As people have become increasingly reliant on the internet for their day-to-day activities and to keep up with important news, internet restrictions often disrupt lives and violate people’s civil and human rights. While no international law directly protects internet access, it is implicitly advocated for under the freedom of opinion and expression. The upward trend of internet restrictions, however, suggests that an implied protection of access to a necessary …

Compulsory Dna Testing In Argentina: The Right To Truth Versus The Right To Privacy, Margaret Foster

Brooklyn Journal of International Law

During the Dirty War—a seven year repression by the Argentinian junta of political dissidents and alleged subversives—an estimated 500 babies were stolen from their mothers while imprisoned and given to leading military officials as "adopted" children. These children had their true identities erased and replaced with a false one covering up their true origins. This Note will explore Argentina's response to the Dirty War. Namely, it will consider the tension between the right to truth—an international right right often associated with enforced disappearances—and the right to privacy. In particular, it will consider cases in which adults resisted DNA testing to …

Iranian Music Censorship & International Human Rights Law, Cameron Moody

Brooklyn Journal of International Law

The 1979 Islamic Revolution in Iran saw sweeping changes in the country’s cultural policies, including the restriction of nearly all types of musical production. Today, the music production environment in Iran remains incredibly hostile to all but a select few. Iran’s government prohibits the production of most types of music and routinely prosecutes musicians. This Note seeks to examine the ways in which the existing U.N. framework for promoting musician’s rights fails to apply to the situation in Iran. Despite Iran being a signatory to the foundational UN Human Rights treaties, the country routinely flouts these rights. This Note argues …

Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes

Brooklyn Journal of International Law

The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human …

No Future But A Shared Future, Lawrence O. Gostin, Kevin A. Klock, Sam F. Halabi, Katie Gottschalk, Katherine Ginsbach

Georgetown Law Faculty Publications and Other Works

The COVID-19 pandemic revealed the fractured and inadequate state of national and global health law and institutions, revealing deeply embedded inequalities. In response to a World Health Assembly resolution proposing a special session to consider the benefits of developing a WHO convention or other international instrument on pandemic preparedness and response, the O’Neill Institute for National and Global Health Law and the Foundation for the National Institutes of Health (FNIH) convened 30 of the world’s leading authorities on global health law, financing, biomedical science, implementation, and emergency response along with leaders from prominent international organizations deeply engaged in responding to …

Going Global, Acting Local: How An International Pandemic Convention Can Support Regional And Community Response, Kevin A. Klock, Lawrence O. Gostin, Sam F. Halabi

Georgetown Law Faculty Publications and Other Works

A WHO pandemic convention could set in place an overarching framework needed for strengthening global health security. As the World Health Assembly (WHA) debated the merits of such an agreement, a critically important regional instrument – the Treaty for the Establishment of the African Medicines Agency (AMA Treaty) – entered into force on 5 November 2021. The new agency will, among other things, ensure there is a “common framework” for addressing “emerging issues and pandemics in the event of a public health emergency on the continent with cross border or regional implications.”

An improved worldwide health security strategy is essential …

Title 42, Asylum, And Politicising Public Health, Michael Ulrich, Sondra S. Crosby

Faculty Scholarship

President Biden has continued the controversial immigration policy of the Trump era known as Title 42, which has caused harm and suffering to scores of asylum seekers under the guise of public health.1 The Centers for Disease Control and Prevention (CDC) ordered the policy in March 2020 with the stated purpose of limiting the spread of the coronavirus into the U.S.; though, CDC and public health officials have admitted this policy has no scientific basis and there is no evidence it has protected the public.2,3 Instead, the impetus behind the policy appears to be a desire to keep out or …

Animating The U.S. War Crimes Act, Beth Van Schaack

International Law Studies

All war crimes are challenging to prosecute. Typical reasons include the technicality of some constitutive elements, the difficulties of amassing sufficient evidence, the vagaries of unreliable or unavailable witnesses, and the often-impenetrable khaki wall of silence. Adding to these challenges, the United States has erected a number of idiosyncratic structural barriers in the way in which it has incorporated the prohibitions against war crimes into its domestic legal frameworks, both military and civilian. This article addresses problems with the U.S. federal war crimes statute and proposes reforms that would (1) better conform to U.S. obligations under the Geneva Conventions and …

Justice For Venezuela: The Human Rights Violations That Are Isolating An Entire Country, Andrea Matos

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Revisiting Ad Bellum Proportionality: Challenging The Factors Used To Assess It, Yishai Beer

International Law Studies

Traditionally, international law has established a binary distinction between jus ad bellum and jus in bello. The former relates to the right to exercise military force. The latter regulates the conduct of adversaries engaged in an armed conflict. However, the prevailing legal approach doesn't accept this dichotomy. It wants to reduce war's hazards by applying the ad bellum rules, including the proportionality requirement, continuously throughout the conduct of armed conflict. To that end, it has established factors that define the essence of the continuing ad bellum proportionality requirement. This article challenges the near-unanimous consensus regarding these factors. It argues that …

Redeeming Justice, Terrell Carter, Rachel López, Kempis Songster

Northwestern University Law Review

Approximately three decades ago, two of us, Terrell Carter and Kempis Songster, were sentenced to life in prison without the possibility of parole. The U.S. Supreme Court has said that this sentence, effectively an order to die in prison, represented a legal determination that we were irredeemable. In this Article, with insights from our coauthor and friend, human rights scholar Rachel López, we ask: What does it mean for the law to judge some human beings as incapable of redemption? Isn’t the capacity for change core to the human condition, and shouldn’t that be reflected in the law?

This Article …

Case Study: The International Criminal Tribunal For The Former Yugoslavia’S Court Transcripts In Bosnian/Croatian/Serbian—Part 1: Needs, Feasibility, And Output Assessment, Besmir Fidahić

Genocide Studies and Prevention: An International Journal

International Criminal Tribunal for the Former Yugoslavia (ICTY) remains the most important organization for the past, the present, and the future of the former Yugoslavia. Faced with a country that always lived under totalitarian regimes with very little insight into actions of the groups and individuals who reaped unthinkable havoc on each other at the end of the twentieth century, the ICTY set undisputable historical record about events that took place during the 1991–1999 wars and put the country on an excellent track towards transformation for the better. But even 28 years since the establishment of the ICTY, the former …

Know Thy Enemy: The Use Of Biometrics In Military Operations And International Humanitarian Law, Marten Zwanenburg

International Law Studies

Biometrics is a technology that is increasingly being adopted by armed forces. It is the automated recognition of individuals based on their biological or behavioral characteristics. Important questions in relation to the use of this technology by armed forces concern the legal framework that governs such use. This article discusses the relationship between International Humanitarian Law (IHL) and biometrics, by focusing on a number of different activities carried out during armed conflict in which biometrics can play a role. It concludes that although IHL contains no rules that expressly regulate the use of biometrics, a number of IHL rules are …

A Human Rights Crisis Under Our Roof, Aglae Eufracio

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Stemming The Tide: Social Norms And Child Sex Trafficking, Melissa L. Breger

Dickinson Law Review (2017-Present)

Despite decades of attempts to eradicate the industry, child sex trafficking continues to flourish. Arguably, there is debate about whether adults willingly choose sex work, yet there are no arguments supporting the notion that children make any such choice. When children are bought and sold for sexual purposes, it is child sex trafficking.

Academic legal research has focused comprehensively on the identification of child victims and the prosecution of child traffickers, yet there has not been as salient a focus on reducing the market of buyers of trafficked children. It is the reduction of demand where theories of re-norming and …

Fiscal Decolonization-Indigenous Fiscal Autonomy And Tax Jurisdiction, Riad Kherallah

LLM Theses

This thesis focuses on the relationship between Indigenous fiscal autonomy and self-determination. Indigenous nations’ ability to achieve self-determination is dependent upon their ability to autonomously finance self-government. Unfortunately, Canada’s colonial policies have weakened Indigenous economies and rendered them dependent upon the Crown. Due to Indigenous nations’ lack of fiscal autonomy, Crown policies designed to promote Indigenous self-government have proven inadequate. This thesis argues for using the United Nations Declaration on the Rights of Indigenous Peoples as a blueprint for developing more equitable economic relations. While there are various elements to Crown-Indigenous economic relations, this thesis focuses on the distribution of …