Introduction

The articles in this symposium issue of the Michigan Journal of International Law represent the product of a historic and path-breaking conference held at the University of Michigan Law School in February 2007. The two-day meeting brought together an extraordinary array of scholars and practitioners to examine closely the relevance of international law for the gathering of intelligence by states. Although this long-neglected topic has gained increased relevance since the use of more controversial intelligence-gathering methods by the United States as part of its global war on terror, many of the legal issues are as old as the craft of intelligence itself

The Law of Occupation and UN Administration of Territory: Mandatory, Desirable, or Irrelevant?

Governments and international organizations as well as academic commentators have remarked upon the similarities and differences between occupation of territory by States and administration of territory by the United Nations. Although formal administration of territory by the United Nations has been limited to a small number of cases, the possibility of future revival of this practice warrants consideration of the relevance of the law of occupation (hereafter LO) to this phenomenon. This paper attempts to sketch out the major issues in an attempt to guide the experts in their discussion

Business

This chapter seeks to expose some of the divergences between doctrine and reality, and to suggest ways of understanding the field that take proper account of business. It does so first by examining the roles and goals of business entities with respect to international environmental law. It then examines how international law has accommodated the place of business in environmental policy with respect to two key issues: (1) corporations as the target of legal obligations; and (2) corporations as participants in the process of international environmental law, particularly with respect to law-making and implementation. I conclude with some thoughts regarding a reconceptualization of the doctrine

Review of \u3cem\u3eHuman Rights: Between Idealism and Realism\u3c/em\u3e

For centuries, moral philosophers have regarded ethics and justice in the international plane as part of their domain. The move from the personal to the societal or national to the global seems effortless. In recent years, philosophers in ethics have devoted considerable attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits better treatment of an individual’s co-nationals; while those in politics have revisited issues of international justice through, for instance, works on human rights and just war theory. These two bodies of work both address what constitutes a just world and what role the individual should play in furthering it. They correspond in many ways to the interactional versus institutional conceptions of morality and justice identified by Thomas Pogge

Accountability and the Sri Lankan Civil War

Sri Lanka\u27s civil war came to a bloody end in May 2009, with the defeat of the Liberation Tigers of Tamil Eelam (LTTE) by Sri Lanka\u27s armed forces on a small strip of land in the island\u27s northeast. The conflict, the product of long-standing tensions between Sri Lanka\u27s majority Sinhalese and minority Tamils over the latter\u27s rights and place in society, had begun in the mid-1980s and ebbed and flowed for some twenty-five years, leading to seventy to eighty thousand deaths on both sides. Government repression of Tamil aspirations was matched with ruthless LTTE tactics, including suicide bombings of civilian targets; and for many years the LTTE controlled large parts of northern and eastern Sri Lanka. The war\u27s last phase was characterized by a large intensification of violence from September 2008 through May 2009, as the government deployed an impressive military force against LTTE-controlled areas by land, sea, and air. In the process, its armed forces attacked civilians and hospitals, and denied food and medicines to the population; the LTTE, for its part, refused to let civilians under its control cross to the safety of government-held areas. As a result, thousands of civilians in the north were killed and injured, and hundreds of thousands displaced from their homes and eventually interned in government camps. Nearly the whole LTTE leadership was killed in the process. International organizations, nongovernmental organizations (NGOs), and foreign media had little access to the conflict zone. The government took credit internationally for its success in defeating a terrorist movement and won a huge majority in the next election. In such a scenario, is it possible to devise strategies to hold accountable those from both sides who committed abuses against civilians? This Current Development reviews the efforts by international actors to address accountability for the civilian deaths and injuries during the final stages of the conflict. It examines the reactions of the United Nations to the war; the work of the secretary-general\u27s Panel of Experts on Accountability in Sri Lanka; and the follow-up to that report culminating in the passage of a resolution on Sri Lanka in the Human Rights Council in March 2012. My goal is to highlight the key issues of international law that have arisen and the approach taken by the UN system. The Sri Lanka case shows that, despite an impressive set of legal norms in place to deal with atrocities such as those committed in this conflict, the infusion of politics and the limitations of unprepared institutions can seriously delay prospects for accountability

Labeling Mass Atrocity: Does and Should International Criminal Law Rank Evil?

This essay concerns mass atrocity, not the kind that happened on September 11th, but an older kind when governments and those under them and supported by them killed innocent civilians on the basis of their ethnicity, on the basis of their politics, on the basis of their religion, or other traits of the group. These acts, crimes against humanity and genocide, were criminalized in the period after World War II by the International Military Tribunal and then by the Genocide Convention. These were very, very important steps forward in international criminal law, but the result of the post-war period was, in effect, two international criminal prescriptions, one through custom and one through treaty, and for two different crimes. The customary law crime was the crime against humanity, now codified more or less in the treaty establishing the International Criminal Court. The treaty-based law crime was the crime of genocide as set forth in the Genocide Convention of 1948

Think Again: The Geneva Conventions

The following essay is based on the author’s article of the same name in the “Think Again” section of the March/April 2008 issue of Foreign Policy (pages 26-32). It is reproduced here with permission from FOREIGN POLICY, www.ForeignPolicy.com, #165 (March/April 2008). Copyright 2008 by the Carnegie Endowment for International Peace. The “Think Again” section of Foreign Policy seeks to educate readers by presenting and responding to common myths and conventional wisdom on important matters of international relations. “The Geneva Conventions are obsolete”. Only in the minor details. The laws of armed conflict are old; they date back millennia to warrior codes used in ancient Greece. But the modern Geneva Conventions, which govern the treatment of soldiers and civilians in war, can trace their direct origin to 1859, when Swiss businessman Henri Dunant happened upon the bloody aftermath of the Battle of Solferino. His outrage at the suffering of the wounded led him to establish what would become the International Committee of the Red Cross, which later lobbied for rules improving the treatment of injured combatants. Decades later, when the devastation of World War II demonstrated that broader protections were necessary, the modern Geneva Conventions were created, producing a kind of international “bill of rights” that governs the handling of casualties, prisoners of war (POWs), and civilians in war zones. Today, the conventions have been ratified by every nation on the planet

Land Feuds and Their Solutions: Finding International Law Beyond the Tribunal Chamber

The resolution of conflicting claims to land has long stood at the heart of the project of international law. Indeed, the encounter between the order envisaged by advocates of the law of nations and what Georges Scelle called the obsession with territory has been a defining struggle for our field, demonstrating to some its promise and to others its futility. Much, perhaps even most, legal scholarship on this subject over the last century has focused on adjudication by ad hoc tribunals or standing courts, in which jurists have derived and invoked hallowed principles that enabled them to draw lines-across mountains, deserts, rivers, and human settlements-where mere politicians had never succeeded. The doctrines on territorial sovereignty emanating from these decisions suggested a bright future for law. Yet a more pessimistic appraisal would see a darker image, one characterized by war-interstate, colonial, and civil and territorial settlement whose lines have reflected power and politics, but surely not norms. Adjudications could be viewed as a sideshow for addressing small-scale conflicts, the results dictated more by a desire to appease both parties than by reasoning toward some principled solution

Can We Compare Evils? The Enduring Debate on Genocide and Crimes Against Humanity

A look back at the twentieth century reveals that the most critical steps in the criminalization of mass human rights constituted the academic work of Raphel Lemkin and his conceptualization of genocide; the International Military Tribunal Charter’s criminalization of crimes against humanity and the trials that followed; and the conclusion and broad ratification of the Genocide Convention. The Convention was the first treaty since those of slavery and the “white slave traffic” to criminalize peacetime actions by a government against its citizens. Since that time, customary international law has recognized the de-coupling of crimes against humanity from wartime. The result of this process has been two separate international criminal proscriptions—one through custom, one through treaty—covering slightly different sets of atrocities against civilians. The three key differences between genocide under the Genocide Convention and crimes against humanity (under multiple definitions, including that of the Statute creating the International Criminal Court (ICC Statute)) are the inclusion in the former only of three elements: (a) the intent to destroy a group in whole or in part; (b) a limited set of groups against whose members the relevant acts are criminal, i.e., racial, religious, national, or ethnic; and (c) a limited list of grave underlying acts focusing on physical extermination.1 Why should we care if international law recognizes two different crimes? Domestic law frequently criminalizes different acts as different crimes—if the difference between libel and battery makes perfect sense to us, or that between homicide and manslaughter, why not just see this as part of same issue? The short answer is that reality will not let us—that governments, NGOs, and the public see genocide and crimes against humanity not simply as distinct crimes, but that the former is worse than the latter—and, moreover, that a determination that a state or group has committed the former should trigger more serious consequences against the violator than should the latter. Inversely, governments, both those committing atrocities and those responding to them, refuse to use the term genocide because they fear that their publics will demand some kind of action to stop it. These divergent outcomes represent a challenge for international human rights insofar as the protection of human rights demands responses to both and prosecution of both

The War on Terrorism and International Humanitarian Law

My focus today is on the broad question of the so-called war on terrorism and how it fits within the framework of the rules of international humanitarian law. Are these laws applicable? There have been a variety of claims since September 11th that humanitarian law needs some kind of revision. Some making this claim assert that the current legal regime is too generous to terrorists, while others insist that it is too generous to governments. The International Committee of the Red Cross (ICRC) has even convened various groups of experts to discuss this issue and the assumption among many has been that the law is inadequate. My thesis today, however, is that international humanitarian law as currently developed does provide an adequate framework and that major revisions for it are premised on a variety of misconceptions about that law. I want to suggest four misconceptions about international humanitarian law and why understanding those will, I hope, convince you that the overall framework does not require major revision