Closing Impunity Gaps for the Crime of Aggression

As stated at Nuremberg, the crime of aggression is the “supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” International instruments clearly and repeatedly have outlawed initiating wars of aggression and other illegal uses of armed force. States parties recently have defined and codified the crime in the Rome Statute of the International Criminal Court (ICC) and delineated the scope of the ICC’s jurisdiction over aggression. Although the ICC is an important mechanism for accountability and justice, it is not certain when it will be able to adjudicate the crime of aggression. Moreover, the ICC will not have jurisdiction to prosecute all individuals who wage aggressive war, nor will it be free of political cooptation by states parties interested in quashing attempts to seek justice for acts of aggression committed by their leaders. Consequently, advocates combating impunity for international crimes should continue to view the ICC as a court of last resort, especially for prosecuting cases of aggression. Despite the many legal and political challenges, primary responsibility for prosecuting individuals for the use of armed force in violation of the U.N. Charter—the crime of aggression—should still rest with national courts. Once aggression is criminalized at the domestic level, three types of extraterritorial jurisdiction—passive nationality jurisdiction, protective jurisdiction, and universal jurisdiction—are avenues for enabling criminal prosecution of leaders who illegally use armed force. This Article examines each of these principles, their potential, and the challenges inherent in prosecuting the crime of aggression in national courts. In addition, it supports scholars’ arguments for expanding national-level jurisdiction over crimes of aggression committed domestically and internationally, finding that the crime of aggression is among the ‘core’ international crimes demanding accountability at the domestic level. It challenges arguments put forth by some scholars that national legislatures and prosecutors should not criminalize or prosecute individuals who wage aggressive war and finds that domesticating international criminal law, including outlawing the crime of aggression, is essential to achieve more effective prosecution of aggression. Unless additional exceptions are made to the current legal structures, however, the challenges of bringing perpetrators of aggressive war to justice under domestic law are considerable. Individual states, therefore, should (1) exercise jurisdiction and prosecute the crime whenever possible, and (2) consider ways to widen domestic avenues for justice in cases of aggression

Prohibiting Slavery & The Slave Trade

Slavery and the slave trade stubbornly persist in our time, but they receive insufficient attention in international human rights law. Even when courts adjudicate slavery violations, they often fail to characterize slave trade conduct that nearly always precedes slavery. Courts also characterize acts that meet the definition of slavery or the slave trade only as other human rights harms, such as forced labor or human trafficking. This failure to accurately characterize violations also as slavery and the slave trade perpetuates impunity and denies victims full expressive justice. This Article argues for reviving international human rights law’s prohibitions of slavery and the slave trade. It also argues that a state responsibility complement to individual criminal accountability will assist to enforce or reform prohibitions of slavery and the slave trade in domestic laws, transform structures that perpetuate those harms, and dismantle systems that support them

Disaggregating Slavery and the Slave Trade

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors. This Article disaggregates slavery from the slave trade and slavery and the slave trade from human trafficking, arguing that untangling these prohibitions is important for several reasons. First, slavery and the slave trade persist as harms today as evidenced by, inter alia, kafala system abuses in Lebanon, slave market auctions in Libya, and Islamic State (IS) crimes in Iraq and Syria perpetrated against Yazidis. Second, slavery and the slave trade enjoy peremptory status, offering the highest form of protection in international law. Human trafficking does not. Third, naming and addressing violations of the slave trade—the precursory acts to slavery—helps to identify, provide redress, and prevent slavery and slave trade perpetration. Distinguishing the slave trade from slavery, and the slave trade and slavery from human trafficking, affords additional avenues for redress, maximizing full expressive accountability for states’ obligations to prohibit slavery and the slave trade. Finally, delineating these prohibitions provides legal clarity and accuracy, both by correctly characterizing harms and by properly interpreting treaty provisions and jurisdictional mandates. In the short term, playing “fast and loose” with distinct prohibitions undermines international law’s institutional legitimacy. In the long term, state practice and opinio juris that moves away from enforcing against slavery and slave trade harms might lessen or even erode these protective customary international law prohibitions

Disaggregating Slavery and the Slave Trade

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors. This Article disaggregates slavery from the slave trade and slavery and the slave trade from human trafficking, arguing that untangling these prohibitions is important for several reasons. First, slavery and the slave trade persist as harms today as evidenced by, inter alia, kafala system abuses in Lebanon, slave market auctions in Libya, and Islamic State (IS) crimes in Iraq and Syria perpetrated against Yazidis. Second, slavery and the slave trade enjoy peremptory status, offering the highest form of protection in international law. Human trafficking does not. Third, naming and addressing violations of the slave trade—the precursory acts to slavery—helps to identify, provide redress, and prevent slavery and slave trade perpetration. Distinguishing the slave trade from slavery, and the slave trade and slavery from human trafficking, affords additional avenues for redress, maximizing full expressive accountability for states’ obligations to prohibit slavery and the slave trade. Finally, delineating these prohibitions provides legal clarity and accuracy, both by correctly characterizing harms and by properly interpreting treaty provisions and jurisdictional mandates. In the short term, playing “fast and loose” with distinct prohibitions undermines international law’s institutional legitimacy. In the long term, state practice and opinio juris that moves away from enforcing against slavery and slave trade harms might lessen or even erode these protective customary international law prohibitions

Aesthetics of Slavery & Slave Trade Crimes

In his insightful new book, Invisible Atrocities, Randle DeFalco examines the aesthetic biases of international criminal law (ICL). DeFalco astutely argues that ICL prioritizes punishing horrific spectacles of violence while ignoring less visible, attritive forms of violence that cause similar levels of harm and suffering, generally over longer periods of time. While ICL is selective in its preference for horrific spectacles, even the spectacular violence has been rendered invisible in ICL when inconvenient factual evidence counters dominant narratives in international law. One such dominant narrative is the successful abolition of slavery and the slave trade of the nineteenth and twentieth centuries. While the United Kingdom did lead international efforts to abolish slavery and the slave trade, de facto slavery and the slave trade persist as such globally. As in some of the worst slave trades of the pastnamely, the Trans-Atlantic and East African Slave trades-contemporary conflicts and today\u27s liberal global economies of empire remain dependent upon slave trade and slavery institutions, systems, and practices. Why, then, does ICL unnecessarily narrow slavery crimes\u27 definitional breadth while naming slavery criminal conduct only as other crimes, including conscription of children, sexual slavery, and forced marriage as an other inhumane act, not to mention the transnational crime of human trafficking? And why has the slave trade been completely abandoned as a separately enumerated crime under the Rome Statute? This Article explores the ways in which slavery and the slave trade are rendered invisible in international law, escaping characterization as such or as international criminal conduct altogether. In particular, precursory conduct to slavery crimes tends to elude legal characterization. Consequently, the slave trade fails to be prosecuted and punished. This Article urges a commitment to understanding and rendering fully visible slavery and the slave trade as international crimes, to correcting aesthetic and other biases in ICL, and to providing redress for some of the most persistent crimes in international law

Combating Acid Violence in Bangladesh, India, and Cambodia

This Report is the first comprehensive, comparative study of acid violence that examines the underlying causes, its consequences, and the multiple barriers to justice for its victims. Acid attacks, like other forms of violence against women, are not random or natural phenomena. Rather, they are social phenomena deeply embedded in a gender order that has historically privileged patriarchal control over women and justified the use of violence to “keep women in their places.” Through an in-depth study of three countries, the authors of the Report argue that the due diligence standard can be a powerful tool for state and non-state actors to prevent and adequately respond to acid violence with the aim of combating it. In this respect, they identify key ways in which acid violence can be addressed by governments and corporations

Unsettling Human Rights Clinical Pedagogy and Practice in Settler Colonial Contexts

In settler colonial contexts, law and educational institutions operate as structures of oppression, extraction, erasure, disempowerment, and continuing violence against colonized peoples. Consequently, clinical legal advocacy often can reinforce coloniality--the logic that perpetuates structural violence against individuals and groups resisting colonization and struggling for survival as peoples. Critical legal theory, including Third World Approaches to International Law (“TWAIL”), has long exposed colonial laws and practices that entrench discriminatory, racialized power structures and prevent transformative international human rights advocacy. Understanding and responding to these critiques can assist in decolonizing international human rights clinical law teaching and practice but is insufficient in safeguarding against human rights clinical pedagogy and practice that contributes to settler colonial violence. This Article proposes not only decolonizing human rights clinical advocacy but also incorporating Indigenous values in human rights clinical practice and pedagogy in settler colonial contexts. In particular, the authors offer a method of human rights law teaching and advocacy that moves beyond client-centered or community-based lawyering that acknowledges oppressive power dynamics toward a collaborative model of co-creative strategic legal advocacy. At the same time, incorporating Indigenous values in human rights clinical pedagogy and practice transforms human rights practice to counter Eurocentric epistemologies by decentering human beings themselves toward a practice that rejects anthropocentrism and strives for balance with all living things. This method--rooted in epistemic pluralism and in adopting Indigenous worldview concepts of kinship, relationship, and reciprocity--requires a relinquishment of control over the process and a shift away from the dominant worldviews of knowledge production, power, and coloniality. Incorporating Indigenous values in human rights practice means acknowledging and redressing past and present collective harms, reorienting clinical pedagogy and practice to adopt new methods based on Indigenous epistemologies of familial relationship and reciprocity with one another, and all living relatives, deep listening, authentic trust-building, practicing gratitude and transforming allyship to kinship. With this methodology comes a process of unlearning and relearning (through different modes of learning) and of giving and receiving in a collective, reciprocal struggle in which all are invested and equal co-collaborators toward not only stopping or preventing human rights violations, but also in building community to transform the legal, educational, and other structures at the root of settler colonial violence. “Decolonization offers a different perspective to human and civil rights-based approaches to justice, an unsettling one, rather than a complementary one. Decolonization is not an ‘and.’ It is an elsewhere.

Unsettling Human Rights Clinical Pedagogy and Practice in Settler Colonial Contexts

In settler colonial contexts, law and educational institutions operate as structures of oppression, extraction, erasure, disempowerment, and continuing violence against colonized peoples. Consequently, clinical legal advocacy often can reinforce coloniality—the logic that perpetuates structural violence against individuals and groups resisting colonization and struggling for survival as peoples. Critical legal theory, including Third World Approaches to International Law (“TWAIL”), has long exposed colonial laws and practices that entrench discriminatory, racialized power structures and prevent transformative international human rights advocacy. Understanding and responding to these critiques can assist in decolonizing international human rights clinical law teaching and practice but is insufficient in safeguarding against human rights clinical pedagogy and practice that contributes to settler colonial violence. This Article proposes not only decolonizing human rights clinical advocacy but also incorporating Indigenous values in human rights clinical practice and pedagogy in settler colonial contexts. In particular, the authors offer a method of human rights law teaching and advocacy that moves beyond client-centered or community-based lawyering that acknowledges oppressive power dynamics toward a collaborative model of co-creative strategic legal advocacy. At the same time, incorporating Indigenous values in human rights clinical pedagogy and practice transforms human rights practice to counter Eurocentric epistemologies by decentering human beings themselves toward a practice that rejects anthropocentrism and strives for balance with all living things. This method—rooted in epistemic pluralism and in adopting Indigenous worldview concepts of kinship, relationship, and reciprocity—requires a relinquishment of control over the process and a shift away from the dominant worldviews of knowledge production, power, and coloniality. Incorporating Indigenous values in human rights practice means acknowledging and redressing past and present collective harms, reorienting clinical pedagogy and practice to adopt new methods based on Indigenous epistemologies of familial relationship and reciprocity with one another, and all living relatives, deep listening, authentic trustbuilding, practicing gratitude and transforming allyship to kinship. With this methodology comes a process of unlearning and relearning (through different modes of learning) and of giving and receiving in a collective, reciprocal struggle in which all are invested and equal co-collaborators toward not only stopping or preventing human rights violations, but also in building community to transform the legal, educational, and other structures at the root of settler colonial violence

Free Yezidi Foundation Public Memo – Lafarge Case

This memorandum supports the Free Yezidi Foundation’s (FYF) filing in the Lafarge Case concerning allegations of complicity in crimes against humanity, including genocide. The Lafarge Corporation continuously operated its factory and, moreover, financially contributed to the Islamic State of Iraq and al-Sham (IS, ISIS, Daesh) between 2013 and 2014, inclusive of the period between 3 August 2014 and 19 September 2014. During those weeks, and represented in a timeline annexed to this memorandum, international and French media, international organizations, and governments extensively reported on and condemned IS acts committed against the Yezidi population that could constitute crimes against humanity under the French Criminal Code (FCC), as well as under customary international law. Accordingly, FYF, as Civil Party in the Lafarge Case, presents certain factual and legal bases of crimes committed against Yezidi victims and survivors that could demonstrate Lafarge’s knowledge of, and complicity in, crimes against humanity

Dean Melanie Leslie’s Office Hours

Join Dean Leslie and meet two Cardozo professors on the frontline of global human rights initiatives, Professor Jocelyn Getgen Kestenbaumhttps://larc.cardozo.yu.edu/event-invitations-2023/1049/thumbnail.jp