International Humanitarian Law Commons^™

The Icc Should Not Encourage Occupation, Uri Weiss

Touro Law Review

No abstract provided.

Epilogue: Some Musings On Deterrence, Mark A. Drumbl

Scholarly Articles

Does law matter? Might it make a difference? Affect human behaviour? Assumptively, yes, it is easy to surmise such causation. Indeed, law can guide. Law manages. At times, law can even control and command and direct. But law is such a sprawling category. Not all laws are the same. Some laws are, in an Orwellian sense, more equal than others. Some walk on four legs, which is good, but not every law comes to walk on two legs when it is better. And some laws, well, they may not move anywhere (or anyone) at all.

Transit States To Destination Nations: Mexican And Moroccan Asylum Policies, Stephanie Evans

Vanderbilt Journal of Transnational Law

Much of the literature surrounding immigration and asylum analyzes the policies adopted by highly developed nations like the United States and countries in the European Union. However, as these nations' policies become increasingly restrictive, more migrants are turning towards neighboring nations that are easier to access but that have less developed immigration and asylum systems. Mexico and Morocco are two such nations. Historically, each has been a transit state--a nation that migrants traveled through in order to reach other states. However, both Mexico and Morocco are becoming destination nations. Social science scholarship has analyzed and compared changes in Mexico's and …

Investors As International Law Intermediaries: Using Shareholder Proposals To Enforce Human Rights, Kishanthi Parella

Seattle University Law Review

One of the biggest challenges with international law remains its enforcement. This challenge grows when it comes to enforcing international law norms against corporations and other business organizations. The United Nations Guiding Principles recognizes the “corporate responsibility to respect human rights,” which includes human rights due diligence practices that are adequate for “assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.” Unfortunately, many corporations around the world are failing to implement adequate human rights due diligence practices in their supply chains. This inattention leads to significant harms for …

Rule Of Law And Human Rights: Strengthening Democratic Institutions Academy On Human Rights And Humanitarian Law Articles On Rule Of Law And Human Rights: Strengthening Democratic Institutions: Introduction, Claudia Martin, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

We are delighted to present this year's publication of the Academy on Human Rights and Humanitarian Law, which includes two of the best essays in English and in Spanish recognized in the 2020 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 and on so many areas of the world. We hope these participants are able to use their articles as mechanisms for change.

Human Dignity Has No Borders: Respecting The Rights Of "People On The Move" And The Rights And Religious Freedom Of Those Who Aid Them, Christine M. Venter

Journal Articles

This Article argues that states must desist from and be held accountable for the ongoing practices of denying refugees due process and denying humanitarian groups the rights to freely associate and freely exercise their religion in assisting refugees.

Establishing State Responsibility In Mitigating Climate Change Under Customary International Law, Vanessa S.W. Tsang

LL.M. Essays & Theses

As acknowledged in the Paris Agreement’s Preamble, climate change is a “common concern of humankind.” To tackle the anthropogenic greenhouse gases (GHGs) at source, State governments played a pivotal role in implementing climate change policies. It thus justifies the approach of looking into the solutions to climate change from a state responsibility perspective. As mentioned by James Crawford, “[a]ny system of law must address the responsibility of its subjects for breaches of their obligations.” The finding of state responsibility in mitigating climate change will complement the treaty-based climate change regime, providing grounds for climate change litigations and policy formulation.

More …

Historical Basis And Legal Development [Of International Humanitarian Law], Mary Ellen O'Connell

Book Chapters

Chapter 2

Although the subject of this Handbook is the law applicable to the conduct of hostilities that applies once a party has entered into armed conflict (the jus in bello), that law cannot be properly understood without some examination of the separate body of rules which determines when resort to armed force is permissible (the jus ad bellum). The jus ad bellum has ancient origins but current law is founded on Article 2(4) and Chapter VII of the UN Charter.

Additional chapter authors:

Michael Bothe, Knut Dörmann, Tristan Ferraro, Nobuo Hayashi, Wolff Heintschel von Heinegg, Knut Ipsen, Ben F …

Justice Without Fear Or Favour? The Uncertain Future Of The International Criminal Court, Leila Nadya Sadat

Scholarship@WashULaw

This essay traces the history of the International Criminal Court from its establishment in 1998 until the current day. It briefly surveys the history of the Court’s founding and evokes many of its current challenges and innovative aspects of its jurisprudence, particularly regarding jurisdiction, immunities, and admissibility, including decisions relating to the Situations in Afghanistan, Bangladesh/Myanmar, Libya, Palestine, and Sudan. As the essay notes, although many challenges have emerged from internal difficulties the Court has faced or design elements of the Statute, external challenges arising from the geopolitical environment within which it operates exist as well. Despite these problems, which …

Crimes Against Humanity: Little Progress On Treaty As Un Legal Committee Concludes Its Work, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

The United Nations General Assembly’s legal committee again missed the opportunity to take action this year on the draft text of a new treaty on crimes against humanity proposed by the International Law Commission. The failure, in the form of a vote Nov. 18 on a draft resolution that simply took note of the draft articles, leaves a critical gap in the legal architecture for preventing and punishing mass atrocity crimes. The result deprives a range of victims and survivors the effective protection and justice they deserve.

Judicial Power—Immigration-Style, Jayanth K. Krishnan

Articles by Maurer Faculty

Throughout this current global pandemic, but of course, even before, former President Trump advocated enacting restrictive immigration measures. Under his tenure, the Department of Homeland Security (DHS) assumed enhanced judicial authority and issued decisions that often adversely affected noncitizens. However, in June 2020, the U.S. Supreme Court struck down one of the DHS's most well-known initiatives, which sought to end the 'DACA' program. The Court held that the agency could not do so arbitrarily and had to comply with the requirements set forth in the Administrative Procedure Act.

Yet, there have been other areas where the DHS, particularly through its …

The Right To Mental Health In Yemen, Waleed Alhariri, Amanda Mcnally, Sarah Knuckey

Faculty Scholarship

Mental health issues are all too common consequences of conflict and atrocity crimes, often causing upwards of one-quarter of the post-conflict, post-atrocity population to suffer from physical and mental sequelae that linger long after weapons have been silenced. After more than six years of ongoing conflict, Yemen’s already weak health care system is on the brink of collapse, and population resilience has been severely stressed by indiscriminate attacks, airstrikes, torture, food insecurity, unemployment, cholera, and now the COVID-19 pandemic. This paper examines Yemen’s responsibilities regarding the right to mental health and details the few actions the government has taken to …

States And Laws, Jews And Palestinians: Yadgar's Traditionist Alternative. A Reflection On Yadgar, Israel's Jewish Identity Crisis (Cambridge, 2020), James J. Friedberg

Intercultural Human Rights Law Review

This essay reviews Israel's Jewish Identity Crisis: State and Politics in the Middle East, published last year by Yaacov Yadgar (Stanley Lewis Professor of Israel Studies at the University of Oxford School of Global and Area Studies). His book connects Israel's sometimes arcane internal identity debates to core issues in the Israel/Palestine conflict, a connection largely unexamined prior to this book.

Functional Statehood In Contemporary International Law, William Thomas Worster

Brooklyn Journal of International Law

The international community lacks a form of territorial-based, international legal personality distinct from statehood, and yet, non-state, territorial entities of varying degrees of autonomy or independence need to function within the international community in some form. Some of these entities cannot be recognized as states because their creation violates jus cogens norms, though others are not recognized based on an assessment that they may not fully qualify as a state or that there are political reasons to refuse recognition. However, existing states still need to engage with these territorial quasi-states through the only paradigm the international community has—statehood. For example, …

The Amazon Ablaze: Are The Environmental Policies Of The Bolsanaro Administrative In Contravention Of Brazil’S Commitment To The Convention On Biological Diversity?, Jordan Johnson

Brooklyn Journal of International Law

In the Summer of 2019, the Amazonian Rainforest in Brazil experienced an unprecedented increase forest fires. This dramatic uptick in forest fires, according to environmental officials and scientists, is believed to have been caused by recent, rampant illegal deforestation of the Brazilian Amazonian Rainforest. Furthermore, some within the scientific community believe that the increased deforestation and ensuing forest fires are attributable to the anti-environmental protections and pro-development policies of Brazil's President, Jair Bolsonaro. Since taking office in January 2019, President Bolsonaro has publicly endorsed and encouraged deforestation of the Amazon as a means to spur economic development within Brazil. This …

Mandating Covid-19 Vaccines, Lawrence O. Gostin, Daniel A. Salmon, Heidi J. Larson

Georgetown Law Faculty Publications and Other Works

Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) vaccines hold promise to control the pandemic, and help restore normal social and economic life. The Food and Drug Administration (FDA) has granted emergency use authorization (EUA) for 2 mRNA vaccines and will likely issue full biologics licenses in the coming months. Anticipating vaccine scarcity, the Advisory Committee on Immunization Practice (ACIP) published guidance on vaccine priorities.

Data show 95% efficacy for vaccines granted an EUA, but even highly effective vaccines cannot curb the pandemic without high population coverage and maintenance of other mitigation strategies. Recent data from 1,676 adults surveyed November 30-December …

Common Article 1 And The Duty To "Ensure Respect", Michael N. Schmitt, Sean Watts

International Law Studies

Common Article 1 to the four 1949 Geneva Conventions requires Parties to those instruments to “respect and to ensure respect for the present Convention in all circumstances.” The provision is a corollary to the general international legal obligation of States to honor their treaty commitments, expressed classically in the maxim pacta sunt servanda.

Yet, academics and private organizations now use Common Article 1 as a vehicle to reimagine States’ enforcement obligations under the Geneva Conventions. Reinterpreting the article beyond its original meaning, they claim the article includes an “external” obligation—a duty on the part of all States to use …

Autonomous Cyber Weapons And Command Responsibility, Russell Buchan, Nicholas Tsagourias

International Law Studies

Autonomous cyber weapons have made their way onto the battlefield, raising the question of whether commanders can be held criminally responsible under command responsibility when war crimes are committed. The doctrine of command responsibility has a long history in international criminal law and comprises three core elements: the existence of a superior-subordinate relationship, the commander’s knowledge of the crime, and the commander’s failure to prevent or repress the subordinate’s criminal actions. This article unpacks the content of these elements and applies them to autonomous cyber weapons by treating them as being analogous to soldiers since they operate within an organized …

An Umbrella Of Autonomy: The Validity Of The Hong Kong Protests, Ciera Lehmann

Senior Honors Theses

Hong Kong has been fighting for democracy and to retain its autonomy from China, and the world has been watching. Over time, Hong Kongers have seen Beijing blatantly tighten its grip before time was up for the fifty-year agreement since the handover in 1997. In 2014, and again in 2019, hundreds of thousands of citizens filled the streets to participate in pro-democracy demonstrations with the protests only gaining momentum and influence. While there has mostly been support for Hong Kong’s independence movement, there has been argument that Beijing’s actions are completely justified. Should Hong Kong remain autonomous from China, and …

The Stellenbosch Consensus On Legal National Responses To Public Health Risks: Clarifying Article 43 Of The International Health Regulations, Roojin Habibi, Steven J. Hoffman, Gian Luca Burci, Thana Cristina De Campos, Danwood Chirwa, Margherita Cinà, Stéphanie Dagron, Mark Eccleston-Turner, Lisa Forman, Lawrence O. Gostin, Benjamin Mason Meier, Stefania Negri, Gorik Ooms, Sharifah Sekalala, Allyn Taylor, Alicia Ely Yamin

Georgetown Law Faculty Publications and Other Works

The International Health Regulations (IHR), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to global health emergencies such as the ongoing COVID-19 pandemic. Countries are permitted to exercise their sovereignty in taking additional health measures to respond to such emergencies if these measures adhere to Article 43 of this legally binding instrument. Overbroad measures taken during recent public health emergencies of international concern, however, reveal that the provision remains inadequately understood. A shared understanding of the measures legally permitted by Article 43 is a necessary step in …