Reforming the International Criminal Court: Lean In or Leave

The International Criminal Court, established by statute by 120 states in 1998, is charged with bringing the rule of law into some of the most difficult and dangerous situations in the world. From its inception, it has faced criticism; however, now a “Leave” campaign has emerged. This Article argues that instead of this campaign, scholars and political leaders should lean in to bring about reforms in a constructive manner

Torture in Our Schools?

America’s kids are not okay. As gun violence surges and politicians dither, school shootings are traumatizing a generation of youth. While only one manifestation of America’s gun violence crisis, school shootings are shocking in their ferocity, the senseless and random nature of the violence, and their impact upon millions of young, captive, and vulnerable individuals. This Essay makes the claim that the suffering of America’s school children from uncontrolled gun violence may be significant enough in scale and kind to rise to the level of ill-treatment under international law, violating U.S. treaty obligations and customary international law. If so, their ill-treatment is not only a consequence of misguided legislative policy preferences, but a violation of their fundamental legal rights

Introduction: From Ferguson to Geneva and Back Again

For decades, social and physical scientists have asserted that “race” is a social construct rather than a biological reality. Conversely, skin color is objectively identifiable. Yet, the law has focused largely upon racial categories to remedy discrimination against individuals based upon their skin color or “racial” identification. While some authors continue to argue that race is “real” either from a biological or sociological perspective, and others continue to challenge its biological and legal salience, this debate has proven largely unsatisfactory to policy makers and others interested in understanding both the social construction of race and skin color and its impact on the lives of individuals. This debate is not only taking place in the United States, but all over the world. Picking up on this global trend and frustrated with the failure of academic and public discourse—particularly in the United States—to recognize this shift of rhetoric and the continuing harm of skin tone bias either as a proxy for “racial discrimination” or as a harm in its own right, in 2014, Washington University Law Professor Kimberly Jade Norward published an edited volume entitled “Color Matters: Skin Tone Bias and the Myth of a Post-racial America.” To explore Professor Norwood’s hypothesis the Whitney R. Harris World Law Institute at Washington University School of Law convened a conference on Global Perspectives on Colorism. Believed to be the first global conference ever convened on the legal and sociological effects of color, the conference brought together speakers from all over the world—Latin America, Europe, Israel, India and the United States—as well as individuals hailing from different academic and professional disciplines. The Articles in this Issue represent but a sampling of the discussions and presentations that occurred last April, but they are fine ones

Little Progress in the Sixth Committee on Crimes Against Humanity

This essay takes up the work of the UN Sixth Committee to date on crimes against humanity. It offers the first comprehensive tabulation of States’ positions, an analysis of the work accomplished thus far, and suggests a potential roadmap for advancing the adoption of a new global treaty on crimes against humanity. The essay notes the substantial progress made by the International Law Commission in the development and shaping of the proposed draft treaty as well as the substantial support the ILC’s work has attracted from States. At the same time, it underscores the disappointing outcome of this year’s negotiations, which once again resulted in a stalemate because of a “pocket veto” that allowed a tiny handful of States to block forward movement. It concludes that States and members of civil society must work assiduously in 2022 to complete this much needed treaty

The Nuremberg Trial, Seventy Years Later

Seventy years ago, Justice Robert H. Jackson gave the opening statement for the Prosecution at the trial of the major German defendants before the International Military Tribunal at Nuremberg. According to Telford Taylor, a member of his team, Jackson had been nervous and irritable for weeks prior to the opening of the trial, which had almost been delayed, over his objections, several times. But once he walked to the podium and began to speak, his voice was clear, and his commitment was unshakeable—no one listening that day or reading his statement afterwards could doubt his passion, eloquence and firm conviction that his role was to bring the rule of law to bear on the question of what to do with the twenty-two captured Germans in the dock that day. Jackson understood that this was no ordinary trial and knew that the world was watching and would judge him harshly if he failed. He did not. Jackson, like the other prosecutors that presented evidence to the Tribunal over the next ten months, rose to the occasion. His Opening Statement, in particular, and its impact over the decades, has been forever etched in the hearts and minds of scholars, activists and students of Nuremberg. The author will address only briefly the Nuremberg trials themselves, and then quickly turn to their legacy—how the extraordinary events of 1945 and 1946 have shaped the world since that time. Then, attention is turned to aspects of the Nuremberg legacy that remain either unfinished or have tarnished, rather than brightened, with the passage of time, and conclude with some final reflections on what can be done to reinforce the legacy so that we do not find ourselves, seventy years hence, “breathless and ashamed” as they were in 1945, at the devastation wrought by a world at war, but enjoying the benefits and prosperity that have resulted from our efforts to promote the gradual and unceasing construction of a world at peace

An American Vision for Global Justice: Taking the Rule of (International) Law Seriously

This article suggests that international law should be elevated from its current status as an occasional tool or convenient rhetorical device of U.S. foreign policy to a chief element both in international relations and United States diplomacy. Put another way, the United States needs to take its commitment to the rule of law to the global stage, thereby playing to American strengths, enhancing American legitimacy and moral authority, and perpetuating the leadership role that the United States has historically exercised in the conduct of international affairs. As the hegemon presiding over—and benefiting the most from—the global economy, the United States has both a vital interest in maintaining the stability of that system and a responsibility to ensure that the system is fair. While military force will surely continue to play a central role in the conduct of foreign affairs, coercion without legal authority lacks legitimacy and breeds resentment. As lawyers and as citizens, we understand the deep and abiding importance of law and legal institutions domestically—and it is virtually impossible to conceive of a just, peaceful, and stable international order without seeing a place for the rule of law within that order

Pandemic Nationalism, COVID-19, and International Law

This Essay explores possible reforms to the World Health Organization (WHO) considering its response to the COVID-19 pandemic. It also suggests using existing mechanisms to enforce the WHO Constitution and the International Health Regulations (IHR). The Essay focuses on three aspects of global health governance: (1) how nationalism of powerful States renders pandemic control difficult given the “weakest-link public goods” character of global health emergencies; (2) how legal and practice reforms might nonetheless strengthen and fortify the WHO’s response; and (3) how existing provisions of the WHO Constitution and the IHR might be enforced through the dispute resolution clauses in these instruments using principles of State Responsibility. Though successive reforms have been proposed to the WHO in response to previous health crises, growing nationalism in the United States and China has impeded their implementation. International law and existing provisions of the WHO Constitution and the IHR offer some relief, but face obstacles in their effective enforcement. Paradoxically, meaningful reform may be both desirable and yet difficult to achieve in the current geopolitical context, even with the election of a committed multilateralist U.S. President. Until that changes, States will need to use existing legal frameworks creatively, including formal dispute settlement provisions as well as informal pathways to invigorate treaty provisions and hold each other to account. Civil society organizations, including networks of health professionals and scientists, will also need to continue to press international organizations and national systems to adhere to global norms. This Essay is part of a comprehensive project studying the global response to COVID-19