Analysis and Commentary on International Law
“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part IV—Assessing the U.S. Response

In this fourth in a series of columns about the U.S. military drone strike in Kabul that killed ten civilians (including seven children), Illinois Law professor Lesley M. Wexler considers whether the United States has now satisfactorily provided the recommended amends and discusses what more ought to be done. As to what more is needed, Professor Wexler suggests congressional review of the incident, chain of command accountability decisions, and a broader review of drone strikes.

Rejecting Vaccination Status Discrimination: Learning from the Laws of War

Illinois Law professor Lesley M. Wexler argues that a just society should not punish unvaccinated persons in the allocation of even scarce medical care and resources, despite the exceptional circumstances of a global pandemic. In support of this position, Professor Wexler analogizes to the exceptional circumstances of war, pointing out that the laws of war also emphatically reject status discrimination in medical decision-making.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part III—Making Amends

In this third and final part of a series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professors Lesley M. Wexler and Jennifer K. Robbennolt suggest a robust approach to making amends for the victims of lawful harm imposed during drone strikes and other military uses of force. Professors Wexler and Robbennolt note the substantial support for various aspects of amends from many key stakeholders, including the victims and their families, members of the military who suffer moral injury as a result of the killings, and even the U.S.’s military objectives, which often rely on winning the hearts and minds of local populations.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part II—Condolence and Solatia Payments

In this second of a three-part series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professor Lesley M. Wexler addresses the U.S. approach to voluntary condolence and solatia payments. Professor Wexler explains what these payments require and how they often fall short, and she points out the gulf between commitments to making condolence and solatia payments and payments actually made.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part I—Detecting Mistakes and No Required Reparations

In this first of a three-part series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professor Lesley M. Wexler raises two key concerns: that civil society rather than the government brought the mistake to light, and that there is no legal requirement to pay reparations. Professor Wexler describes the reasons behind our reliance on journalists and civil society to investigate problems like this strike and explains the relevant laws of war that allow the victims’ families to go uncompensated.

U.S. Supreme Court Again Restricts the Viability of International Human Rights Lawsuits in Federal Courts Under the 1789 Alien Tort Statute

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on the U.S. Supreme Court’s recent decision in Nestlé v. Doe, in which the Court held that mere “corporate activity” within the United States is not enough to satisfy the general presumption against the extraterritorial application of federal law. Professor Estreicher and Ku point out that questions about the scope of future ATS claims or corporate liability may never be resolved if the vast majority of ATS claims are dismissed as a result of the Court’s reinvigorated extraterritoriality test.

Hamas, Not Israel, Violated International Humanitarian Law

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku argue that, with regard to recent armed hostilities in the Gaza Strip, Israel’s use of force likely conformed to applicable international laws of war and was legally justified, whereas Hamas’s actions repeatedly violated the core, bedrock principle that civilians cannot be targeted. Professors Estreicher and Ku point out that the presently known facts support the conclusion that Israel complied with customary international law, codified in the 1949 Geneva Conventions and their subsequent protocols: use of force is limited to (1) situations of military necessity; (2) where the use of force makes a distinction between combatants and non-combatants; and (3) where the use of force is proportionate to the concrete military objective sought to be achieved.

Police Use of Lethal Force in Rio de Janeiro: Challenges and Perspectives

Igor De Lazari, a Brazilian legal scholar, Antonio Sepulveda, Professor of Law at the Getulio Vargas Foundation (FGV) and at the Fluminense Federal University, and Ana Beatriz a legal assistant at the Public Ministry Office of the State of Santa Catarina and Criminal Procedure Law Specialist, comment on the police use of lethal force in Rio de Janeiro. The authors suggest several institutional and social policy changes that would begin to address the disproportionate use of lethal force in Rio and restore public faith in its public security policy

International Criminal Court Authorizes Investigation Into Alleged War Crimes in Territory “Occupied” by Israel as a Result of the Israeli-Palestinian Conflict

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by a Pre-Trial Chamber of the International Criminal Court (ICC) ruling that the ICC’s jurisdiction extends to territory occupied by Israel during the 1967 Six Day War, namely, the West Bank, Gaza, and East Jerusalem. Professors Estreicher and Ku argue that the tenuous and legally unpersuasive nature of the ICC’s jurisdictional assertion in this case, as well as similarly aggressive findings over U.S. activities in Afghanistan, will only further weaken the tribunal’s overall international legitimacy going forward.

Military #MeToo, Part II: In Bad Company— Canada’s Armed Forces #MeToo Crisis

In this second of a series of columns on military sexual harassment and sexual assault, Illinois Law professor Lesley M. Wexler compares and contrasts the U.S. military’s efforts to address the problem with how the Canadian military is addressing the same issue. Professor Wexler notes that Canada’s government has adopted several tools to address sexual harassment and misconduct that the United States has not yet accepted, and while the two militaries are not identically situated, we should pay close attention their efforts and see whether lessons may be learned.

Oprah Interview as Truth Commission – Part II: What Counts as Success?

In this second of a series of columns, Illinois Law professor Lesley M. Wexler continues analogizing Oprah’s interview with Meghan and Harry to a truth commission and describes some goals against which we might measure the success of a truth commission. Professor Wexler proposes such measures as (1) whether the commission finishes its mandate and widely disseminates its findings, (2) whether it establishes a definitive narrative of the relevant abuses, and (3) whether it serves as catharsis for individual victims. She suggests that although some initial facts on the ground are negative, reform and reconciliation are still possible.

Supreme Court Rules that Claims of Nazi-Era Expropriation of Jewish Property Are Barred by Germany’s Sovereign Immunity

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by the U.S. Supreme Court, holding that the doctrine of sovereign immunity bars claims based on Nazi-era expropriation of Jewish property. Professors Estreicher and Ku argue that the unanimous decision in that case, Germany v. Philipp reflects a now-solid trend of Roberts Court decisions limiting the reach of U.S. law and jurisdiction to stay within the territory of the United States while also avoiding controversial and unsettled interpretations of international law.

Who Counts as a Jew?

Cornell law professor Sherry F. Colb comments on a recent decision by the Supreme Court of Israel holding that people who have undergone Conservative or Reform conversions in Israel qualify as Jews under the Israeli Law of Return. Professor Colb explains the significance of this decision and explores some of the downsides that remain in the Israeli approach to who counts as a Jew.

Shinzo Abe’s Biggest Failure Is His Greatest Legacy: Preservation of Japan’s Anti-Military Constitutional Provision

In response to the news that Japan’s Prime Minister Shinzo Abe resigned due to health reasons, Cornell law professor Michael C. Dorf comments on Abe’s efforts to amend Article 9 of Japan’s Constitution, which was imposed on the country by Supreme Allied Commander Douglas MacArthur after World War II. Dorf describes one bad reason and two good reasons that have been offered for a change in Article 9, but he argues that the case for retaining Article 9 is stronger.

What Good Is a Treaty That Congress Can Simply Discard? Quite a Bit, as the Creek Nation’s Victory in the Supreme Court Shows

Cornell law professor Michael C. Dorf comments on the recent decision by the U.S. Supreme Court in McGirt v. Oklahoma, holding that a substantial portion of the state of Oklahoma is an Indian reservation of the Creek Nation. Dorf observes that the majority’s approach in McGirt makes it more likely that courts will find the existence of reservations for other tribes, but there could be collateral consequences in many other contexts.

Home Invasion: Warrantless Searches in Brazil and the United States

Igor De Lazari, a Brazilian legal scholar, and Antonio Sepulveda, Professor of Law at the Getulio Vargas Foundation (FGV) and at the Fluminense Federal University, offer a comparative analysis of warrantless searches in Brazil and the United States. De Lazari and Sepulveda call for guidance from each country’s high court to help clarify the law and facilitate uniform and predictable rulings on the constitutionality of certain warrantless searches.

Joint Employer Liability: Notes from Australia

NYU law professor Samuel Estreicher and Nicholas Saady, LLM, conduct a comparative analysis of the doctrine of joint employer liability, looking at the rules adopted by the U.S. Department of Labor and National Labor Relations Board as compared to the approach Australia has taken in an analogous context, “accessorial liability” doctrine.

International Criminal Court Lacks Authority to Proceed Against Israel

NYU law professor Samuel Estreicher and JD candidate George Bogden, PhD, comment on a recent filing by the Prosecutor of the International Criminal Court (ICC) asking the court to exercise jurisdiction and grant permission to pursue an investigation of alleged war crimes in the West Bank and the Gaza Strip. Estreicher and Bogden argue that because Israel is not a state party to the action and Palestine is not a state recognized by international law, the ICC lacks territorial jurisdiction under the Rome Statute.

The Argentine Election and the Limits of the Peter Principle

Cornell law professor Michael C. Dorf comments on Argentina’s national elections last month, in which the country elected as Vice President Cristina Fernández de Kirchner, who had previously served as President of Argentina from 2007 to 2015. Dorf considers why Kirchner, and indeed anyone, would accept a lower position than what she has previously held. Dorf argues that due to the Peter Principle—which states that workers in a hierarchical organization tend to rise to their level of incompetence—we would do well as a society to abandon the whole concept of a demotion.

U.K. Supreme Court Prorogation Judgment Exemplifies Representation-Reinforcing Judicial Review

Cornell law professor Michael C. Dorf comments on the recent unanimous decision by the U.K. Supreme Court ruling that Prime Minister Boris Johnson acted unlawfully in asking the Queen to prorogue Parliament. Dorf explains how that ruling highlights the error of the U.S. Supreme Court’s recent ruling in Rucho v. Common Cause, in which the Court declined to intervene in a political gerrymandering case, citing the so-called political question doctrine.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more