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Begin New Search Political Geography Global Focus Author Oona A. Hathaway

1. Accountability for War Crimes in Syria: The “Criminalization” Confusion

Author:
Oona A. Hathaway, Paul Strauch, Beatrice Walton, and Zoe Weinberg
Publication Date:
04-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In 1942, three years before World War II came to a close, international lawyer Hersch Lauterpacht prepared a memorandum for the Committee on Crimes Against International Public Order. In it, he considered whether the Nazis should be tried for war crimes when the war ended. Before he could address when and whether to prosecute the Nazis for war crimes, he observed, it was first and foremost necessary to determine “what is a war crime.” Nearly 80 years later, this question looms yet again—this time in the horrific Syrian civil war. No international court or tribunal currently has jurisdiction over the vast crimes committed in Syria since 2011. It seems unlikely at the moment that Syria itself will provide an accounting, and the prospect of the United Nations Security Council agreeing to establish a new tribunal or refer the Syria situation to the International Criminal Court (ICC) appears slim. As a result, domestic courts, mainly in Europe, have taken the lead in pursuing criminal accountability for crimes committed in Syria. The International, Impartial, and Independent Mechanism (IIM), established by the UN General Assembly in 2016, is also beginning to assist domestic Syria-related prosecutions.
Topic:
International Law, United Nations, Humanitarian Intervention, and International Criminal Court (ICC)
Political Geography:
Global Focus

2. What is a War Crime?

Author:
Oona A. Hathaway, Paul Strauch, Beatrice Walton, and Zoe Weinberg
Publication Date:
04-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Here we propose a potential solution to the challenges surrounding the definition of war crimes we identified. In an effort to eliminate the confusion that results from over-reliance on prior criminalization, we distill the concept of war crimes down to its essence. A better approach, we argue here and in a forthcoming article, is to define war crimes as consisting of two key elements: (1) a breach of international humanitarian law (IHL) that is (2) “serious.” This approach is not only more jurisprudentially grounded, but it also has several benefits in the context of ongoing prosecutions of Syrian war criminals in Europe.
Topic:
Genocide, International Law, War Crimes, and Humanitarian Crisis
Political Geography:
Global Focus

3. Arms Trafficking: The International and Domestic Legal Framework

Author:
Oona A. Hathaway, Elizabeth Nielsen, Chelsea Purvis, Saurrabh Sanghvi, and Sara Solow
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The conventional arms trade,2 both legal and illegal, is vast in scope. As of 2001, there were an estimated half billion documented small arms in the world, more than one for every twelve people.3 International arms sales are a booming business, and the United States is the world’s largest exporter. In 2008, worldwide arms transfer agreements reached a value of $55.2 billion, of which 76.4% involved developing nations.4 The United States accounted for $37.8 billion, or 68.4%, of these worldwide arms transfer agreements,5 and U.S. activity falls into five categories: foreign military sales agreements between foreign governments and the Department of Defense, direct commercial sales to foreign buyers negotiated by U.S. companies, leases of military equipment by U.S. entities, excess defense materials, and emergency decreases of weapons stockpiles.6 An extensive legal regime has emerged at the international and domestic levels to regulate conventional arms trafficking. This report aims to provide an overview of that framework. It surveys existing international arms trafficking agreements and provides an analytic framework for distinguishing between them. It also surveys the domestic legal framework regarding arms trafficking. Together, these overviews provide a starting point for identifying the shortcomings of existing law, identifying gaps in the legal framework as it currently operates, and considering options to begin to address these shortcomings. This report begins in Part I by briefly outlining the scope of the problem of conventional arms trafficking. It then turns in Part II to identifying three fundamental axes on which international arms trafficking agreements differ. First, each agreement targets one or more points in a conventional arms life cycle: it targets the point of production; the point of domestic ownership and transfer; or the point of interstate transfer. Second, agreements differ in the scope of weapons they cover—they may target different classes of weapons (such as major conventional weapons, small arms and light weapons, and dual-use technologies) and different legal categories of weapons (for example, some cover both legal and illicit weapons, while others only focus on illicit weapons). Third, agreements differ in terms of their enforceability: some are legally binding while others set nonbinding goals. Part III of the report examines the ways in which the United States regulates arms trafficking through its domestic laws and international agreements. It shows that the United States places strong controls on interstate transfers of arms, but it has a more mixed record when it comes to regulating earlier stages of the arms life cycle. While U.S. law places a number of marking and recordkeeping requirements on arms producers and sellers, domestic ownership laws are lax compared to those of other countries. Part IV shows that there are three major gaps in extant arms trafficking agreements. First, the international agreements that are the most enforceable either fail to target arms trafficking at multiple points in the life cycle or fail to cover a broad scope of weapons. Second, arms trafficking agreements do not adequately regulate the illicit resale of arms in the black market after they are produced and sold for the first time legally. This is because there is no binding and enforceable agreement that requires states to track all domestic weapons transfers, from their initial sale to the final sale before their export. Finally, major arms suppliers, such as the United States, are not party to several major arms trafficking agreements. To address these shortcomings, this report offers three options available to U.S. policymakers for strengthening arms trafficking laws. First, the United States could increase multilateral engagement by ratifying the leading regional arms trafficking agreement, Inter-American Convention Against Illicit Manufacturing of and Trafficking in Firearms, Ammunitions, Explosives, and Other Related Materials (CIFTA). Doing so would likely require no changes in U.S. domestic law but would strengthen the U.S. ability to coordinate its arms control efforts with other countries while encouraging other countries to more effectively address arms trafficking. Second, the United States could increase bilateral programmatic assistance to address arms trafficking—at the very least by taking arms trafficking into account in existing assistance programs. Finally, the United States could engage more actively in leading negotiations over a robust and comprehensive arms trade treaty. Such an agreement would ideally aim to bring the international legal standards developed in CIFTA to the global stage. In leading the way toward such a comprehensive treaty, the United States could encourage universal adoption of the high standards the United States already has in place to ensure that arms are not transferred for illegitimate purposes—purposes that may directly affect U.S. security interests.
Topic:
International Trade and Finance, Arms Trade, Trafficking, Legal Theory, and Illegal Trade
Political Geography:
Global Focus