International Law Commons^™

Questioning Unlimited Veto Use In Face Of Atrocity Crimes, Jennifer Trahan

Case Western Reserve Journal of International Law

"This article discusses the need to re-visit—based on existing legal obligations—the problem of veto use by the permanent members of the UN Security Council while there are ongoing atrocity crimes (genocide, crimes against humanity, and/or war crimes). Specifically, the article— which previews the arguments in my forthcoming book—raises the question of whether all such veto use is consistent with international law."

The Security Council Veto In The Context Of Atrocity Crimes, Uniting For Peace And The Responsbility To Protect, Ved P. Nanda

Case Western Reserve Journal of International Law

"After Russia’s thirteen vetoes and seven by China to shield the Syrian regime from any action, it seems reasonable to ask the question: In light of the findings of several U.N. reports, as well as reports from credible human rights organizations, that Syrian military and security forces have continued to commit atrocity crimes ever since the onset of the Syrian crisis, is it not prudent to explore the measures to protect innocent men, women, and children from such flagrant violations of human rights?"

Section 230 And The Duty To Prevent Mass Atrocities, David Sloss

Case Western Reserve Journal of International Law

"Of course, any proposal to create a statutory exception to section 230 immunity raises a set of complex questions about the proper scope of such an exception. This article identifies the key issues that would need to be resolved if Congress decided to create an exception along these lines. The remainder of this article consists of three parts. The first part explains why removal of immunity from civil liability is an appropriate mechanism to help prevent use of social media to incite or induce commission of mass atrocity crimes. The second part contends that the exception to section 230 immunity …

Social Media Platforms In International Criminal Investigations, Rebecca J. Hamilton

Case Western Reserve Journal of International Law

"YouTube’s tagline is “Broadcast Yourself.”64 People around the world have taken up the invitation, including people whose lives are being lived out in conflict zones. Proponents of international criminal justice have seized upon the resulting material for its evidentiary value, and we are seeing the field of international criminal investigations in the midst of a major transformation as a consequence. There has been plenty of commentary about this transformation in terms of the challenges and opportunities that the evidence itself brings. But less attention has been given to what these technology-driven developments have done to expand the range of actors …

Irregular Forces, Irregular Enforcement: Making Peace Agreements In Non-International Armed Conflicts Durable, Margaux J. Day, Eian Katz

Case Western Reserve Journal of International Law

"The legal status of NIAC peace agreements is a matter that remains unresolved. While it is clear that AOGs may attain international legal personality in some contexts, authoritative sources of interpretation have not reached a consensus with respect to their capacity to create contracts. In Part I, this Article reviewed the controversy over AOG treaty-making power and the split within the courts on the issue. In Part II, it illustrated the many different areas of international law under which AOGs are held to possess legal personality, suggesting that they could be able to accede to binding treaties. Part III showed …

Prosecuting Starvation Crimes In Yemen's Civil War, Laura Graham

Case Western Reserve Journal of International Law

"This article will discuss whether the responsible parties for starvation in Yemen can be prosecuted under international criminal law (ICL) or international humanitarian law (IHL) for war crimes or crimes against humanity (CAH)."

Attacks Against Cultural Heritage As A Crime Against Humanity, Yaron Gottlieb

Case Western Reserve Journal of International Law

"The article begins with a brief overview of the contemporary international criminal law regime governing attacks against cultural heritage. It continues by identifying the main legal gaps as well as additional considerations that support the introduction of a distinct crime against humanity in the Draft Convention’s list of crime. The article then defines the proposed new crime and analyzes the crime’s elements including a definition of cultural heritage for the purpose of the Draft Convention."

The International Law Commission's First Draft Convention On Crimes Against Humanity: Codification, Progressive Development, Or Both?, Charles C. Jalloh

Case Western Reserve Journal of International Law

"It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law."

Too Few Trials, Too Many Tribulations: The Icc's Terrible Year And Where To Go From Here, Elizabeth Evenson

Case Western Reserve Journal of International Law

"In June 2018, the International Criminal Court (ICC) appeals chamber reversed what had been the court’s most significant verdict: a 2016 conviction of a former Congolese vice-president, Jean-Pierre Bemba, for crimes committed in the Central African Republic.1 This was significant because it was the court’s first conviction for crimes of sexual and gender-based violence and on the basis of command responsibility, and because Bemba was among the most senior-ranking officials to appear for trial at the court.

An acquittal needs to be understood as a legitimate outcome to any justice process, but, in context, the decision touched off alarm bells …

Documentation For Accountability, Jessica C. Levy, Paul R. Williams

Case Western Reserve Journal of International Law

" In armed conflicts across the globe, it is imperative that war crimes, crimes against humanity, genocide, and other violations of international humanitarian law are effectively documented. Providing such documentation to judicial mechanisms can be critical for efforts to hold those who commit atrocities accountable. 72 Given the delays that routinely plague efforts to secure justice, it is important that the crimes are documented and that the evidence is ready for use in prosecutions when they emerge. Fortunately, the number of civil society actors engaged in documentation projects is growing rapidly, and technological innovations are beginning to emerge to assist …

The International Criminal Court: Current Challenges And Prospect Of Future Success, Milena Sterio

Case Western Reserve Journal of International Law

"The ICC has served as an agent of impunity since its inception in 1998, and its fundamental role in the field of international criminal justice as a permanent accountability mechanism remains undisputed. The court is, however, facing significant challenges which may threaten its legitimacy. These challenges can be surmounted if the court is willing to take a hard look at its own procedures, prosecutorial practices, and judicial attitudes. The ICC’s future may be bright if the court makes significant changes in the present." (Conclusion, p. 478)

A Program For The Next Icc Prosecutor, Alex Whiting

Case Western Reserve Journal of International Law

"As the International Criminal Court (ICC) begins the process of selecting the next Prosecutor, it finds itself at a critical moment. Few people believe that the institution has lived up to expectations. The court has brought relatively few cases, and many have not succeeded.2 While convictions were achieved in the Lubanga, Ntaganda, Katanga, and Al Mahdi cases, as well as in the obstruction of justice cases arising out of the Bemba prosecution, many other cases failed at the confirmation stage, during or after trial, or on appeal.3 he future looks grim. Presently, there is just one case at trial (Ongwen) …

Talking Foreign Policy: April 24, 2019 Broadcast: "Untangling The Yemen Crisis", Tfp Panel

Case Western Reserve Journal of International Law

"According to a recent UN report, the war in Yemen has become the worst humanitarian crisis on the planet. Welcome to Talking Foreign Policy. I’m your host Michael Scharf, [co-]Dean of Case Western Reserve University School of Law. In this broadcast our expert panelists will be discussing the history of the Yemen conflict, the challenges to resolving it, and the prospects for achieving accountability for the war crimes that have been committed there. Joining us for the second segment today, as soon as his cab arrives, is Dr. Paul Williams,3 the President of the Public International Law and Policy Group, …

Talking Foreign Policy: October 1, 2019 Broadcast: "The Rohingya Genocide", Tfp Panel

Case Western Reserve Journal of International Law

"According to a recent UN report, Facebook bears responsibility for the worst humanitarian disaster on the planet – the mass attacks against the Rohingya people of Burma. Welcome to “Talking Foreign Policy.” I’m your host, Michael Scharf, [co-]Dean of Case Western Reserve University School of Law. In this broadcast, our expert panelists will help us understand the Rohingya crisis, the role of Facebook, and the prospects for achieving accountability for the international crimes that have been committed against the Rohingya people in Burma."

Social Media: A Good Alternative, For Alternative Service Of Process, Emily Davis

Case Western Reserve Journal of International Law

A cost efficient and effective means of alternative service of process in civil and commercial cases upon both domestic and international defendants lies in social media. Traditional methods of service of process are preferred, but are not always practicable. When a defendant cannot be reached through traditional methods, judges should use their discretion and allow alternative service by social media in appropriate cases. Current methods of alternative service, such as publication, are not efficient or effective. By allowing alternative service of process via social media in certain cases, the defendant is much more likely to receive actual notice in a …

Abuse Of Power: Immigration Courts And The Attorney General's Referral Power, Julie Menke

Case Western Reserve Journal of International Law

In June 2018, then Attorney General Jeff Sessions issued Matter of A-B-. This decision vacated the holding of the 2014 Board of Immigration Appeals decision, Matter of A-R-C-G-. In A-R-C-G-, the adjudicator held that, depending on the specific facts of the case, “married women in Guatemala who are unable to leave their relationship” constitutes a particular social group. Membership in a particular social group is one of five ways to qualify for asylum in the United States. Membership is based on a fact specific analysis conducted by an immigration adjudicator. Sessions’s decision to vacate Matter of A-R-C-G- had a devastating …

Introducing Private-Property Rights To Cuba: How Cuba's New Constitution Paves The Way For Economic Growth, Renee Monzon

Case Western Reserve Journal of International Law

On February 24, 2019, Cuba adopted a new Constitution.1 The new Constitution formally recognizes private-property ownership. From the beginning of Socialism’s impact on Cuba, private-property ownership had been legally abolished until Fidel Castro stepped down from power in 2008.2 This new Constitution shows a departure from the socialist grasp on the economy. Cuba likely recognizes that private-property ownership is fundamental to economic growth in capitalist countries and now seeks to benefit from the growth that accompanies a system of private-property rights. Cuba is not the first socialist country to embark on a process of property privatization. This paper will look …

The Time For Judgment Has Arrived: The Zivotofsky V. Clinton Effect On The Political Question Doctrine's Application To The War Powers Resolution, Shannon M. Doughty

Case Western Reserve Journal of International Law

The War Powers Resolution was enacted to serve as a congressional restraint on the President’s power to engage in Military Action. Since then, Congress and the President have disagreed over the enforcement and constitutionality of the statute. Nonetheless, courts have dismissed cases regarding the War Powers Resolution claiming it is of a solely political nature i.e. a political question. The Judiciary traditionally apply the political question doctrine to issues regarding foreign affairs and, in effect, avoided hearing cases regarding the specifics of the war powers pertaining to Executive and Congress. This lack of judicial determination has resulted in the and …

"Balancing" Free Expression And Religious Feelings In E.S. V. Austria: Blasphemy By Any Other Name?, John G. Wrench

Case Western Reserve Journal of International Law

The European Court of Human Rights’ 2018 decision in E.S. v. Austria upheld an Austrian court’s conviction based on “disparaging religious doctrine.” The Court took this opportunity to reaffirm problematic, decades-old precedent, while creating new contradictions in its analysis of free expression claims. Despite the EU’s modern opposition to the criminalization of blasphemy, E.S. v. Austria in effect sends a contradictory message. This Comment explores the roots of the Court’s struggle to find an appropriate balance between the values of religious tolerance and freedom of expression, analyzes the Court’s recent decision, and suggests future paths to recalibrate the Court’s approach …

Case Global: Cwru Law Students Document War Crimes In Yemen Conflict, Case Western Reserve University School Of Law, The Frederick K. Cox International Law Center

Case Global Newsletter

Vol. 11, No. 1 (2019)

• Special Report: Students Document War Crimes in Yemen Conflict
• Trade Law Q&A with Professor Colares
• Special Report: Advocating for Refugees from Cleveland to Burma
• Frederick K. Cox International Law Center Names New Director
• Foreign Concurrent Degree Program Leads to Elite Law Firm Employment
• CWRU Teams Triumph at International Moot Court Competitions…
• International Law Curriculum: Sequence to Success
• Dean Scharf Featured on United Nations Audiovisual Library of International Law 
• CWRU’s Talking Foreign Policy Radio Program Examines the Crisis in Yemen
• CWRU Expands its Reach in Asia
• Fulbright Scholar Professor Cover Teaches International Law in Kenya
• Law …

The Trump Administration And Immigration Judges: Decreased Judicial Independence Or Increased Efficiency?, Aleksandar Cuic

Case Western Reserve Journal of International Law

Through the Attorney General, the Trump administration has changed asylum and immigration policies in several ways. In 2018, former-Attorney General Sessions used his referral power to overturn an immigration court's determination that victims of domestic violence are eligible for asylum as members of a "particular social group. " In the same year, the Attorney General issued a decision that prohibits immigration judges from administratively closing cases. Lastly, then-acting Attorney General Whitaker certified a case that raised a question as to whether membership in a family is a "particular social group" under asylum law. This article explores a question raised by …

Five Unanswered Questions From Trump V. Hawaii, Josh Blackman

Case Western Reserve Journal of International Law

This article addresses five topics left unanswered by the majority opinion in Trump v. Hawaii, which upheld President Trump's travel ban in its entirety. What will happen on remand with respect to discovery? How should lower courts treat "this President, " as opposed to "the President "? How does the Constitution apply to aliens who are not seeking entry into the United States but have already crossed the border? What is the scope of the president's Article II power to exclude aliens? And, what is the permissible scope of a nationwide injunction?

Regulatory Cooperation And The Trump Administration, David Zaring

Case Western Reserve Journal of International Law

regulatory cooperation, regulatory harmonization, administrative law

Foreword: International Law And Policy In The Age Of Trump, Michael P. Scharf, John G. Wrench

Case Western Reserve Journal of International Law

An introduction to the issue topics, ranging from U.S.-North Korean relations and its policies toward rogue states to immigration law and human rights in the U.S.

Elements Of Its Own Demise: Key Flaws In The Obama Administration's Domestic Approach To The Iran Nuclear Agreement, Jamil N. Jaffer

Case Western Reserve Journal of International Law

The article discusses the United States' eventual withdrawal by the U.S. from Joint Comprehensive Plan of Action (JCPOA). Congressional review of the agreement helped President Donald Trump's withdrawal.

Exiting Paris: What The Climate Accord Teaches About The Features Of Treaties And Executive Agreements, Eugene Kontorovich

Case Western Reserve Journal of International Law

The article discusses the United States' withdrawal from the Paris Climate Accords, which has two features -- a protracted withdrawal period and broad multilateral structure--which keep it from having an effect as a sole executive agreement.

Klatsky Endowed Lecture In Human Rights, Catherine Marchi-Uhel

Case Western Reserve Journal of International Law

Catherine Marchi-Uheldiscusses widespread violations of human rights and international humanitarian lawm which the international community should address.

Leverage Is Everything: Understanding The Trump Administration's Linkage Between Trade Agreements And Unilateral Import Restrictions, Richard O. Cunningham

Case Western Reserve Journal of International Law

This paper offers an understanding of the Trump administration's (Administration) often-perplexing approach to international trade policy and, in particular, the Administration's repeated threats to withdraw from or renegotiate bilateral, regional and multilateral trade agreements. The central premise offered here is that all Administration trade actions--including both its approach to trade agreements and its threats or use of unilateral import restrictions--must be seen in terms of two fundamental goals. The first is to eliminate U.S. trade deficits with foreign countries (individually or collectively). The second is to restore the U.S. manufacturing sector by limiting imports and by bringing back to the …

Lunch Address: The United States' Role In International Human Rights Under The Trump Admininstration, Elisa Massimino

Case Western Reserve Journal of International Law

Elisa Massimino presents an adaptation of her speech, which focuses on role of the U.S. in the international human rights. Specific topics included praise of dictoators, withdrawal from the Human Rights Council, the need to fight to preserve and restore democracy and rule of law and the Trump Adminsitration's blocking of Muslim refugees.

Mens Rea Reform As A Demand-Side Solution To The Problem Of Sex Trafficking, Daniel Michael Criswell

Case Western Reserve Journal of International Law

Trafficking in persons has existed around the world for many years, yet the United States has only begun to take this modem form of slavery seriously in the last two decades. The nature of sex trafficking has caused confusion for the United States and others around the globe regarding how to best deal with the commercial sex industry. The failure to reduce the commercial sex industry through traditional means of prosecuting the traffickers and their victims has motivated Sweden, and consequently the United States, to pursue a different strategy: reducing the demand through the prosecution of the buyers of commercial …