The Civil Enforcement Of Human Rights Norms In Domestic Courts

This Article will attempt to make the case for the domestic civil action in defense of international human rights in the face of a potential threat to such litigation

The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change

This article contends that in the upcoming Human Rights Committee proceedings, the U.S. should abandon the categorical argument that its human rights obligations do not apply extraterritorially in favor of a more nuanced approach that reflects the majority position reached by the range of human rights treaty bodies and courts as well as the legal framework applicable to our coalition partners and other allies. The U.S. failure to acknowledge limited, well-established, and principled exceptions to a strictly territorial application of its human rights obligations ultimately undermines the legitimacy of other, more efficacious, arguments at its disposal—such as its position on IHL as the lex specialis in situations of armed conflicts and well-developed justifications for its actions on the merits—as well as its commitment to the human rights system more broadly

International Humanitarian Law Teaching Supplement: Volume 2 - International Criminal Law

This supplement is designed to provide comprehensive yet focused materials on international humanitarian law (IHL), or the law of armed conflict, for inclusion in other substantive courses, such as public international law, international criminal law, or foreign relations law. The supplement is divided into four main substantive chapters on IHL—when does IHL apply, conflict classification, and means and methods of combat—with an emphasis on how these concepts would arise in a legal proceeding, such as a war crimes prosecution. Each chapter contains an introduction to the main IHL concepts; cases and primary source materials drawn from the jurisprudence of the international criminal tribunals; notes and questions for discussion; and a series of problems to enables students to further explore the topics at hand

The Inconsequential Choice-Of-Law Question Posed By Jesner V. Arab Bank

In Jesner v. Arab Bank, the United States (U.S.) Supreme Court has taken up the question of whether victims of human rights abuses can sue corporations and other legal entities for violations of the law of nations under the Alien Tort Statute (ATS)

‘The Grass that Gets Trampled When Elephants Fight’: Will the Codification of the Crime of Aggression Protect Women?

This article analyzes the outcome of the Kampala process with an eye toward the rarely-considered gender aspects of the crime of aggression, whether or not the provisions adopted represent an advancement for women, and how aspects of feminist theory might interpret the new regime. The Article concludes that any impact of the provisions will inevitably be limited by gaps and ambiguities in the definition of the crime and the jurisdictional regime, which is premised on state consent and exempts non-states parties altogether. At the same time, the insertion of the crime of aggression in the Rome Statute enables the prosecution of a wider range of acts, and actors, that cause harm to women and makes actionable harm to women that may not rise to the level of war crimes or crimes against humanity and that has historically been rendered juridically invisible by the collateral damage euphemism. Extending the reach of international criminal law may generate indirect negative effects from the interaction of the Court’s potential to prosecute the crime of aggression and the long-standing jus in bello, that body of rules governing how war is waged rather than why war is waged, which is the purview of the jus ad bellum. By penalizing the resort to armed force, the threat of prosecution of the crime of aggression may undermine incentives to comply with key doctrines within international humanitarian law that serve to protect civilians and other vulnerable groups. It also remains to be seen whether the codification of the crime of aggression will serve any deterrent purpose whatsoever when governmental leaders contemplate using force – offensively or defensively – in their international relations, especially in situations that do not implicate exigent sovereign threats. To the extent that the new provisions do exert a restraining effect, the expansive way in which the crime has been defined may end up chilling those uses of force that are protective and thus more discretionary, such as uses of force employed pursuant to the nascent doctrine of responsibility to protect. The crime may thus result in more ex post prosecutions at the expense of ex ante efforts at preventing and repressing violence. Whether this over-deterrence argument should be raised on behalf of women, however, requires an acceptance of the legitimacy, if not lawfulness, of humanitarian intervention with or without Security Council approval and a coming to terms with a certain valorization of militarism and its inherent masculinities – a perspective that is alien to much feminist thinking. The International Criminal Court (ICC) has yet to demonstrate that it can fulfill its current mandate. Operationalizing the crime of aggression without allocating additional resources to enable the Court to prosecute this controversial, largely unprecedented, and qualitatively different crime may distract the Court from responding more effectively to the “atrocity crimes” that now finally address gender-based violence more directly. The crime may also encourage the Court to focus on leaders in capital cities rather than the warlords next door, whom victims more directly associate with atrocities and without whose prosecution it may be impossible to achieve complete justice for women. Given the potential to reach top political leaders, the crime may be also subject to abuse. The amendments approved in Kampala will eventually permit states parties to refer each other to the ICC as alleged violators of the prohibition against aggression. Misuse of this referral authority could render the Court little more than just another forum for states to manipulate and exploit in order to advance their interests. Such an outcome would politicize and de-legitimate the Court. At this early stage in the life of the Court and in the absence of any concrete experience investigating or prosecuting the new crime of aggression, these bases for criticism and praise are inherently speculative. Applying a feminist perspective to the codification of the crime of aggression yields no easy conclusions. Rather, reasoning through the central question of whether the codification of the crime in the ICC Statute will be good for women produces a dizzying spiral of dialectical reasoning. And so, as a feminist, I approach the crime with a profound ambivalence

The Definition of Crimes Against Humanity: Resolving the Incoherence

This Article discusses the contours of the prohibition of crimes against humanity with reference to proceedings before the International Criminal Tribunal for the Former Yugoslavia (ICTY) and deliberations at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC). Because the contemporary status of this offense under international law cannot be understood or appreciated without reference to its history, this Article traces the evolution of the concept of crimes against humanity with particular reference to the genesis and re-interpretation of the war nexus requirement. A recurrent theme in this narrative is the search for an element of the offense sufficient to distinguish crimes against humanity from ordinary municipal crimes (e.g., murder, assault or false imprisonment) and to justify the exercise of international jurisdiction over inhumane acts that would otherwise be the subject of domestic adjudication. As this Article reveals, the war nexus originally served this purpose for the Nuremberg architects, although the time-honored doctrine of humanitarian intervention could have provided adequate precedent for the international prosecution of crimes against humanity. The ICTY devised an ingenuous solution to the problem of delimiting international jurisdiction and distinguishing crimes against humanity from ordinary crimes. The Trial Chamber did not require proof of a substantial link between the defendant\u27s inhumane act and a state of war. Rather, the Chamber defined crimes against humanity in terms of the mens rea of the defendant and the existence of a widespread or systematic attack against a civilian population. However, at the same time, a Trial Chamber of the Tribunal added additional elements to the definition of crimes against humanity that further complicate the definition and the Prosecution\u27s burden of proof. The Article argues that these elements should be eliminated on appeal. [N.B. The Appeals Chamber did overturn the Trial Chamber in this regard in the Tadic case.] Most recently, members of the international community drafting the Statute for the permanent ICC drew upon the ICTY Statute and the work of the Tribunal in drafting a consensus definition of crimes against humanity that will govern prosecutions before the new court. Fortunately, these drafters stopped where the Trial Chamber should have. They defined crimes against humanity with reference only to the existence of a widespread or systematic attack against a civilian population and the mental state of the individual defendant. In so doing, they recognized that once the abuse of civilians surpasses a particular threshold, the prescriptions of international law are activated and individual perpetrators can be held internationally liable for their acts of murder, assault, rape, or unlawful detention. The evolving definition of crimes against humanity since the Nuremberg era provides an example of the way in which the principles guiding the contemporary codification of international criminal law are dramatically shifting. Such norms were previously drafted with an eye toward fortifying, or at least defending, state sovereignty. Over time, however, these guiding principles have become more concerned with condemning injurious conduct and guaranteeing the accountability of individuals who subject others, including their compatriots, to inhumane acts

International Humanitarian Law Teaching Supplement: Volume 2 - International Criminal Law

This supplement is designed to provide comprehensive yet focused materials on international humanitarian law (IHL), or the law of armed conflict, for inclusion in other substantive courses, such as public international law, international criminal law, or foreign relations law. The supplement is divided into four main substantive chapters on IHL—when does IHL apply, conflict classification, and means and methods of combat—with an emphasis on how these concepts would arise in a legal proceeding, such as a war crimes prosecution. Each chapter contains an introduction to the main IHL concepts; cases and primary source materials drawn from the jurisprudence of the international criminal tribunals; notes and questions for discussion; and a series of problems to enables students to further explore the topics at hand

State Cooperation & the International Criminal Court: A Role for the United States?

This article appeared in a white paper from the American Society of International Law on the relationship between the United States and the International Criminal Court in the post-Kampala Review Conference period. This article is premised on the recognition that (1) the International Criminal Court is almost entirely dependent on State cooperation to effectuate its mandate to bring to justice individuals responsible for committing the most serious crimes of concern to the international community as a whole and (2) cooperation is central to the evolving relationship between the ICC and the United States. Notwithstanding the rapprochement between the ICC and the U.S. under the Obama administration, domestic legislation dating from the Bush Administration prohibits most forms of cooperation with the Court absent specific waivers or other contingencies. If the United States is to best position itself to use all international tools available to it to advance United States interests in responding effectively to the commission of international crimes, this legislation should be repealed or significantly scaled back. Short of ratifying the ICC Statute, this article discusses a number of ways that the United States can work with the Court to both promote the United States\u27 foreign policy agenda and support the mission of the Court. It argues that re-engaging with the Court through appropriate cooperative efforts will go far toward restoring the United States to its prior leadership position in the arena of international justice

The International Citizens\u27 Tribunal for Sudan Case Number: ICTS-1 the Prosecutor Against Omar Hasan Ahmad Al-Bashir President of the Government of Sudan

This Indictment served as the basis for the presentation of the case against President Omar Hassan Ahmad al-Bashir of Sudan before an International Citizens\u27 Tribunal for Sudan. The model Indictment charged al-Bashir with genocide, crimes against humanity, and war crimes in Darfur under the most current theories of individual criminal responsibility under international criminal law. The Tribunal was staffed by a panel of African and North American jurists, Nobel Peace Prize winner Wole Soyinko of Nigeria presiding. The proceedings themselves involved oral testimony by a former member of the Department of State, a journalist active in Darfur, a representative of Physicians for Human Rights, and several survivors of the Sudanese regime, among others