Volume 35, Issue 1

The Laws of War and the “Lesser Evil”

Written by Gabriella Blum

One of the fundamental principles of international humanitarian law (IHL) is that it recognizes no lesser-evil justification for breaking its rules. Those violating the laws of war will thus be viewed as war criminals even when their conduct was intended to—and in fact did—prevent much greater harm. This Article argues that this deep-rooted absolutist stance undermines the humanitarian drive of the laws of war, and offers, instead, a lesser-evil defense.

The argument begins with the obvious analogy to the necessity defense in domestic criminal law, emphasizing the adaptations that are necessary in order to transpose the domestic concept onto the international plane. It then proceeds to test possible first-order accounts—deontological, consequentialist, and institutional—for why IHL might nonetheless prefer a more absolutist stance than domestic law. It finds that none of these accounts offers a compelling explanation for the exclusion of any lesser-evil justification from IHL. The Article then proceeds to develop a blueprint for a humanitarian necessity justification that would exculpate an actor who violated the laws of war in the name of a greater humanitarian good under certain conditions. A central component of the justification, which is required given the special nature of IHL, is a condition that the greater humanitarian good would benefit the enemy, rather than the actor’s own people.

Three case studies are taken up to demonstrate the implications of IHL’s absolutism: the “Early Warning Procedure” employed by the Israeli Defense Force in the West Bank, the paradigmatic case of interrogational torture, and the atomic bombings of Hiroshima and Nagasaki. Under the paradigm of a humanitarian necessity justification suggested here, the Early Warning Procedure and perhaps even the atomic bombing of Hiroshima (but not Nagasaki) might be justified, but the paradigmatic case of interrogational torture cannot.

The Blank-Prose Crime of Aggression

Written by Michael J. Glennon

On February 13, 2009, the Special Working Group on the Crime of Aggression (SWGCA), a group set up under the treaty establishing the International Criminal Court (ICC), announced a historic breakthrough. After five years of deliberation, the panel proclaimed it had finally reached agreement on a draft definition of the crime of aggression.

The treaty that set up the court, called the Rome Statute, provides for prosecution of that crime, but the framers of the Statute were unable to agree upon a definition. Prosecution of that crime was suspended until the Statute could be amended to include a definition. The Assembly of States Parties will take up the Working Group’s proposed definition at its Review Conference in May 2010 in Kampala, Uganda. I suggest in this Article that the proposed definition would constitute a crime in blank prose—one that would run afoul of basic international human rights norms and domestic guarantees of due process in its disregard of the international principle of legality and related U.S. constitutional prohibitions against vague and retroactive criminal punishment. The argument in favor of criminalizing aggression is, in Reinhold Niebuhr’s felicitous phrase, “a logic which derives the possibility of an achievement from its necessity.”

Proponents appear to believe it is necessary that the crime of aggression be defined; therefore, they believe, the crime of aggression is perforce capable of being defined. But necessity, moral or otherwise, does not imply juridical achievability. Repeated efforts to define aggression foundered throughout the twentieth century as continuing political and cultural differences among states have prevented the formation of a consensus. Strong and weak states have long been sharply divided over when the use of force is appropriate and whether their own military and political leaders ought to be prosecuted for such an offense. The high level of specificity needed to impose individual criminal liability – as opposed merely to guide state conduct – has therefore proven unattainable. The ambiguous definition now under consideration papers over those differences. Prosecution under it would turn upon factors that the law does not delineate, rendering criminal liability unpredictable and undermining the law’s integrity. The proposed definition cannot be reconciled with the Rome Statute’s own requirement that the court apply the law consistently with internationally recognized human rights. The definition’s ambiguity broadens its potential reach to the point that, had it been in effect for the last several decades, every U.S. President since John F. Kennedy, hundreds of U.S. legislators and military leaders, as well as innumerable military and political leaders from other countries could have been subject to prosecution.

Path Dependence in Discrimination Law: Employment Cases in the United States and the European Union

Written by Katerina Linos

Race analogies are a staple of U.S. antidiscrimination advocacy. However, many worry that race precedents have made U.S. equality law overly formalistic and have blocked sex, disability, age, and sexual orientation claims that do not fit neatly into the race-blindness paradigm.

Are race precedents severe constraints? Or are they malleable tools? To date, examining the U.S. historical record has not led to a clear answer or allowed for the development of a practicable alternative to the race-blindness model. New comparative evidence sheds light on these questions. The European Court of Justice developed its sex discrimination case law over the course of four decades and only recently decided its first race, age, disability, and sexual orientation claims between 2006 and 2009.

This Article argues that the sequence in which courts adjudicate claims is an important determinant of the doctrines they develop, and shapes the success and failure of claims subsequent groups bring. The comparison between the United States and the European Union reveals that departing from race-blindness is a double-edged sword. EU equality law offers greater protections to individuals who make claims that courts consider group-typical (e.g., women seeking flexible schedules to take care of children). In contrast, U.S. law benefits atypical workers (e.g., older workers seeking to work past conventional retirement ages). The concept of path dependence helps explain these developments and helps identify the moments when politics, culture, and ideology have more significant or more limited influence on court decisions.

Note: Enforced Disappearance as a Crime Under International Law

Written by Brian Finucane

Enforced disappearance as a crime under international law has a long and neglected history. This Note argues that the criminal prohibition of disappearance is rooted in the laws of war, rather than in late-twentieth-century human rights law.

By analyzing the judgments of the Nuremberg Tribunals, the Note shows that the conduct underlying enforced disappearance carried individual criminal liability at the time of the Second World War, both as a war crime and as a crime against humanity. The Note traces the origins of the prohibition to the protection of the family by the nineteenth-century laws of war. By using the prosecution of enforced disappearance in Bosnia and Herzegovina as a case study, the Note show the practical relevance of enforced disappearance as a crime’s grounding in the laws of war.

Note: Caste and the Problem of Social Reform in Indian Equality Law

Written by Scott Grinsell

This Note explores the forms of social theory that shaped the Indian Supreme Court’s development of a regime of equality law to abolish the caste system. In particular, it focuses on the doctrine in cases where a person’s relationship to the caste system, whether by conversion or marriage, is substantially altered.

The Note suggests that problems raised by this doctrine underlie a conception of the relationship between legal reform and communal affiliation that is at the center of the logic of Indian equality law. Finally, the Note considers the possible implications of this approach for American equal protection law and theory.

Recent Development: Forthcoming Changes in the Shari’ah Compliance Regime for Islamic Finance

Written by Scott R. Anderson

Three decades ago, many saw Islamic finance as something of an oxymoron. Religious prohibitions on the collection of interest (riba) and speculative investment (gharar) seemed to stand in clear tension with modern economic practices, limiting Muslim consumers’ ability to engage in worldwide financial markets. But subsequent years of innovation have yielded financial instruments and services that are able to reproduce many of the benefits of conventional finance without violating the tenets of Islamic law, or shari’ah.

Increasingly popular among Muslim and non-Muslim issuers alike, these Islamic financial products are estimated to be worth as much as $822 billion worldwide, making them a significant part of the global financial system. This rapid growth has not come without controversy. Critics have charged that ostensibly shari’ah-compliant products often mimic conventional financial products too closely, compromising the ethical principles served by riba and gharar restrictions. These disputes over shari’ah compliance have at times deterred Muslim consumers from purchasing disputed products and limited how broadly the products can be effectively marketed across the Islamic world.

This Recent Development examines the plan that one prominent organization, the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI), has recently put into motion to address these problems, wherein it assumes an unprecedented regulatory role in reviewing the shari’ah compliance of products industry-wide. To place this plan into perspective, Part II provides background on interpretive debates within Islamic finance, while Part III describes the industry’s current decentralized system for ensuring shari’ah compliance. Part IV details the AAOIFI’s plan and considers how it reflects other actions that the AAOIFI has taken to address recent shari’ah compliance controversies. Part V concludes that, while the AAOIFI’s new authority should help promote convergence in shari’ah compliance standards, it may also slow innovation and ultimately fragment Islamic financial markets if applied too aggressively. To avoid this outcome, the AAOIFI should retain its historical commitment to gradual change and consensus-building as it approaches its new responsibilities.
Written by Alyssa King
In October 2009, the former Law Lords became justices of the newly created Supreme Court of the United Kingdom. With new jurisdiction, and with its own building and resources, the Supreme Court is separate from Parliament for the first time. The new Court can be seen as a procedural complement to the substantive reform made by the United Kingdom’s Human Rights Act (HRA). Parliament’s decision to create the Court, like its choice to codify human rights law, was made partly in response to the influence of the European Court on Human Rights (ECtHR) and supranational institutions on the state. Some politicians hoped that a supreme court would be able to articulate a distinct national vision in response to the imposition of supranational instruments.

If this reaction were confined to the United Kingdom, it might be a particularity of that state’s relationship with continental Europe, but similar courses of action have come to pass in other states with traditions of parliamentary sovereignty. In 2003, reforms in Belgium gave the Constitutional Court the power to review rights under the national constitution. The French Parliament is finalizing a grant of concrete jurisdiction over rights cases to the Constitutional Council which previously was limited to abstract questions of constitutionality raised by Parliament. In each of these instances, parliamentary discussions have highlighted the perceived need to create a system of constitutional review that will have priority over review under the European Convention on Human Rights (ECHR).

Recent Development: North Korea and the Politics of International Trade Law: the Kaesong Industrial Complex and WTO Rules of Origin

Written by Daniel J. Knudsen & William J. Moon

The Kaesong Industrial Complex (KIC), a new joint economic venture between the Democratic People’s Republic of Korea (North Korea) and the Republic of Korea (South Korea), is becoming a nexus of controversial issues in international trade law. The manufacturing centers at Kaesong, located in North Korea, use North Korean labor and South Korean capital to produce labor-intensive products like clothes, shoes and watches. These goods are then shipped to South Korea and either consumed there or exported.

The export of KIC goods could be problematic under the World Trade Organization’s (WTO) Rules of Origin and rules on preferential treatment. North Korea is not a member of the WTO, and its human rights record and isolationism make it a highly polarizing state. States that have allowed KIC goods to be treated as goods produced in South Korea are pursuing a policy that may violate WTO regulations. Through South Korea’s membership in the WTO and South Korean Free Trade Agreements (FTAs), the goods produced in the KIC bypass many of the trade sanctions placed upon North Korean goods.

Recent Publications


International Human Rights Law: Returning to Universal Principles. By Mark Gibney

Just Trade. By Berta E. Hernández-Truyol & Stephen J. Powell

The Birthright Lottery. By Ayelet Shachar

The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II. By Yuma Totani

Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. By Mark Tushnet

Democracy Goes to War: British Military Deployments Under International Law. By Nigel D. White