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

Untold Truths: The Exclusion of Enforced Sterilizations from the Peruvian Truth Commission\u27s Final Report

This Article argues that the exclusion of enforced sterilization cases from the Peruvian Truth Commission\u27s investigation and Final Report effectively erases State responsibility and decreases the likelihood for justice and reparations for women victims-survivors of State sponsored violence in Peru. In a context of deep cultural and economic divides and violent conflict, this Article recounts how the State\u27s Family Planning Program violated Peruvian women\u27s reproductive rights by sterilizing low-income, indigenous Quechua-speaking women without informed consent. This Article argues that these systematic reproductive injustices constitute an act of genocide, proposes an independent inquiry, and advocates for a more inclusive investigation and final report for future truth commissions whose goals include truth, accountability, and justice for all victims-survivors of state-sponsored violence. Leaders responsible for the enforced sterilization of more than 200,000 Peruvian women, including former President Alberto Ken\u27ya Fujimori, must be held accountable for past violations in order to fully realize future reconciliation and justice in Peru

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

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

Untold Truths: The Exclusion of Enforced Sterilizations from the Peruvian Truth Commission\u27s Final Report

This presentation argues that the exclusion of enforced sterilization cases from the Peruvian Truth Commission\u27s investigation and Final Report effectively erases State responsibility and decreases the likelihood for justice and reparations for women victims-survivors of State-sponsored violence in Peru. In a context of deep cultural and economic divides and violent conflict, this presentation recounts how the State\u27s Family Planning Program violated Peruvian women\u27s reproductive rights by sterilizing low-income, indigenous Quechua-speaking women without informed consent. This presentation argues that these systematic reproductive injustices constitute an act of genocide, proposes an independent inquiry, and advocates for a more inclusive investigation and final report for future truth commissions whose goals include truth, accountability, and justice for all victims-survivors of state-sponsored violence. Leaders responsible for the enforced sterilization of more than 200,000 Peruvian women, including former President Alberto Ken\u27ya Fujimori, must be held accountable for past violations in order to fully realize future reconciliation and justice in Peru

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