Hannibal Travis

The genocide in Pontos and in other parts of Anatolia, as well as in Thrace, is not merely as part of history but a window into a contemporary human rights crisis. The destruction continues in a somewhat less violent form in our time as the culture, language, and religious rites of the Ottoman Greeks are being lost due to massacres, forcible exile, and expropriations of sacred sites. This chapter introduces relevant human rights norms and argues that measures implemented by the international community after other genocides could be a model for restitution and guarantees of non-recurrence in Pontos and other parts of Turkey. It is a chapter preprint from The Genocide of the Christian Populations in the Ottoman Empire and Its Aftermath (1908-1923) (Taner Akçam, Theodosios Kyriakides, and Kyriakos Chatzikyriakidis eds., Routledge 2024)

The Supreme Court has made it more difficult to quote from existing imagery, music and text, and harder to critique society by borrowing and amplifying others’ works. The 7-2 majority opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith builds on the copyright and fair use decisions of the past 200 years. At first glance, it reads like the triumph of an independent creator over more powerful forces that seek to profit from original work without paying. Justice Sonia Sotomayor, writing for the majority, affirmed the right of photographer Lynn Goldsmith to copyright protection “even against famous artists.” Many fair use determinations, especially in the future, will be made by software with limited opportunities for human review. Without a clear rule that creators have certain liberties to borrow portions of existing works, new works will be systematically deleted or downranked to oblivion, with little recourse for those who create them. Despite the dampening effect that the Warhol decision may have, fair use will continue to be with us. Quotation, pastiche, burlesque and mashups are as old as the Book of Genesis.

The internet has opened access to culture. Billions of webpages build on the art, images, music, film, television and writing of the past. This explosion of content leads to tough questions over ownership of creative work and exclusivity of use. The highest court in the land may soon try to better define the limits of free use, or the right to remix previously published work. On Oct. 12, 2022, the U.S. Supreme Court heard oral arguments in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The case addresses when artists or writers may quote from and comment on others’ works. While quotation in everyday speech usually refers only to text, as a legal matter, paintings, photographs and architectural forms are also subject to quotation. A decision from the court is expected in May or June 2023. With the justices’ questioning bringing out serious problems with the lower court ruling, a resolution in favor of subsequent artists’ rights could help writers and filmmakers as well. It will help decide whether a few unlucky creators will be hit with large judgments, and millions more creators will be deterred from expressing themselves or may have their work automatically filtered by faceless censors.

For centuries, research publications, encyclopedias, and lexicons have helped advance knowledge by drawing freely on expressive works, without seeking licenses for most of what they reference or “use.” Today, that longstanding practice is under new and intense scrutiny. One pressing question is whether chatbots powered artificial intelligence (AI) should be treated differently. Major copyright holders, including The New York Times, leading authors, and powerful music rights organizations, have filed lawsuits against companies such as OpenAI, Anthropic, and Google. They argue that the training and output of AI systems infringe the exclusive rights of copyright holders, principally the rights of reproduction, distribution, and preparation of derivative works. The Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith has raised the stakes in this copyright controversy by narrowing the meaning of transformative fair use and casting fresh doubt on whether copyright law still permits the creation of generative AI (gen-AI) models as modern lexicons of knowledge. This article examines prior copyright claims against lexicons, scholarly works, and directories, among other technologies and creations, and explains why the right to release a universal lexicon of culture and thought must be defended. At stake is not simply a technical question of doctrine, but the future of tools that help society organize and expand human knowledge. First, the purpose of a lexicon or grand encyclopedia differs fundamentally from that of novels, songs, or other creative works, or even individual news articles, press releases, or webpages. Courts have long recognized that reference works, like news reporting and scholarship, serve purposes that fair use protects, precisely because they promote the progress of knowledge rather than mere entertainment. Second, the amount and substantiality of what is used in AI outputs can often be negligible. Any fragment that may appear in output is generally tiny, both in absolute terms and as a proportion of the original work, and rarely, if ever, recreates the expressive heart of that work. Third, efforts to prohibit research-based creativity by invoking hypothetical licensing markets threaten to dismantle fair use itself. They invite a circular reasoning process in which any unpaid use is treated as illegal harm simply because it could have been licensed. Some courts have rightly rejected this logic and have insisted that fair use requires rightsholders to demonstrate a real and direct connection between a specific use and actual loss, whether in sales, profits, or other market value. Mere claims that a license might have been sold are not enough. What follows is an analysis of why generative AI models fit within the longstanding protections of fair use, and how courts should apply similarity-related principles of fact, genre, and research to defend the creation of these modern lexicons.

Google Book Search (GBS) has captured the attention of many commentators and government officials, but even as they vigorously debate its legality, few of them have marshaled new facts to determine its likely effects on publishing and other information markets. This Article challenges the conventional wisdom propounded by the U.S. and German governments, as well as Microsoft and other competitors of Google, concerning the likely economic impact of mass book-digitization projects. Originally advanced by publishing industry lobbying groups, the prevailing account of mass book-digitization projects is that they will devastate authors and publishers, just as Napster and its heirs have supposedly devastated musicians and music labels. Using the impact of GBS on the revenues and operating incomes of U.S. publishers believing themselves to be the most affected by it, this Article finds no evidence of a negative impact upon them. To the contrary, it provides some evidence of a positive impact, and proposes further empirical research to identify the mechanisms of digitization’s economic impact. The debate surrounding the GBS settlement is critically important to students, writers, researchers, and the general public, as it may decide whether a federal appellate court or even the U.S. Supreme Court allows the best research tool ever designed to survive. If the theory of Microsoft and some publishing trade associations is accepted, the courts may enjoin and destroy GBS, just as Napster was shut down a decade ago. The Article aims at a preliminary estimate of the economic impact of mass digitization projects, using GBS as a case in point. It finds little support for the much-discussed hypothesis of the Association of American Publishers and Google’s competitors that the mass digitization of major U.S. libraries will reduce the revenues and profits of the most-affected publishers. In fact, the revenues and profits of the publishers who believe themselves to be most aggrieved by GBS, as measured by their willingness to file suit against Google for copyright infringement, increased at a faster rate after the project began, as compared to before its commencement. The rate of growth by publishers most affected by GBS is greater than the growth of the overall U.S. economy or of retail sales. Thus, the very publishers that have sued Google have seen their revenues grow faster than retail sales or the U.S. economy as a whole (measured by gross domestic product). This finding parallels some of the research that has been done since the Napster case on the economic impact of peer-to-peer file sharing on sales of recorded music. Future studies may provide a more granular estimate of the economic impact of frequent downloads or displays of pages of particular books on the sales of such books

Studies on nationalism and the emergence of modern ethnic identities rarely examine sources dating from the period between 0 CE (A.D.) and 1453 CE, or the period between the fall of the Neo-Assyrian Empire in the mid-first millennium CE and the Age of Discovery in the mid-second millennium CE. Testing generally accepted theories of national and ethnic distinctiveness against these sources reveals that a similar case exists for the existence of an Assyrian identity and nation as for a Greek, Kurdish, Jewish, or Persian identity or nation. Assyrian populations, religions, and political formations survived in present-day Iraq, Iran, and Turkey from 0 CE well into the 1800s CE. Commentators on modern nationalism in relation to Assyrian identity have assumed, with little evidence, that the non-Arab, non-Jewish peoples of the East lacked the agency or the intellect to maintain a consistent identity or national movement, and that these peoples relied in their ignorance and indolence on the theories of Western missionaries and colonial officials. In the 1980s, a new generation of scholars emerged who posited that nations and peoples emerged in conjunction with modern capitalistic cultural forms and secular nationalistic liberalism. The new theory of "imagined communities" represented a departure from a long tradition of historical and cultural work which assumed nations and peoples as subjects of analysis without critically examining the linguistic, cultural, or religious foundation of these groups of individuals or families. This new theory, however, has the risk of degenerating into a vulgar instrumentalism, which speculates that identity entrepreneurs can manufacture ethnic, racial, or religious identity for their own purposes and little objective foundation. Thus, more recent research points out the flaws in grounding national and ethnic distinctions in modern nationalism by compiling evidence that nations and peoples perceived themselves and were perceived as such by other collectivities, long before the rise of European humanism or the Enlightenment. This study attempts to show that the longevity and diversity of national and ethnic distinctions undermines a one-size-fits-all explanation of such distinctions in the manner of Benedict Anderson’s “Imagined Communities.” The evidence from the Assyrian case suggests that the undifferentiated hordes of Asia did not coalesce and order themselves in modern times and under Western influence into nations created and sustained by advanced technology. This “Imagined Communities” narrative suffers from hindsight bias and an exaggerated Eurocentrism. It also insults and infantilizes the peoples and nations of premodern eras and non-Western regions by assuming they lacked the intelligence with which modern Europeans constructed national cultures, laws, literatures, schools, and economies. Historians have long since disproved such ideas. By examining translations of and academic commentary on Aramaic, Greek, Roman, and Persian literature and inscriptions, among other sources, this Essay demonstrates that the British Empire invented neither the modern Assyrians as a people, nor the territory of modern Assyria that was considered for statehood by the League of Nations after World War I. Rather, the identification of present-day northern Iraq, northwestern Persia, and southeastern Turkey as “Assyria” draws support from the Middle Assyrian and Neo-Assyrian usage of the second and third millennia BCE, and the Greek, Roman, Persian, and Aramaic usage in the first millennium CE. Finally, the contribution of ancient Assyria to the cultures, languages, and religions of the non-Muslim populations of contemporary Iran, Iraq, and Turkey may no longer be doubted, especially when it comes to the Assyrian Christians, Mandaeans, and Yezidis. This ancient contribution is present in these peoples' daily vocabularies, place-names, and indigenous beliefs

This chapter in a forthcoming book attempts to map global patterns by which local tyrannies become sources of potentially global infringements on freedom of expression, particularly but not exclusively on the YouTube Web site. It illustrates certain parallels between the efforts to force copyright filters on YouTube and the Web in the West, and to harden the Great Firewalls of China, Arabia, and Persia in the East. The parallels include preemptive filtering, deep packet inspection, overbroad restrictions, and harms to user privacy. Generally speaking, blasphemy and seditious libel are the dominant forms of censorship in the impoverished and/or dictatorial societies of Africa and central and southern Asia, with insulting the great leader similarly controversial at the fringes of Asia including China, Thailand, and Turkey, and in the South Atlantic including Colombia, Honduras, and Zimbabwe. By contrast, intellectual property is prompting many of the Web site takedowns for political and cultural speech in the North Atlantic including Europe and the United States. Resistance to censorship around the world employs both legal and extra-legal tactics. Internet freedom has worked its way into our constitutional and statutory law in the North Atlantic and Europe, and parts of Africa, Latin America, and Asia. Therefore, a judicial consensus is emerging that freedom of expression must rein in the enforcement of corporate catalogs of intellectual property rights. In large swaths of Africa and Asia, however, constitutions often do not mandate robust judicial protection of freedom of expression, so public intolerance of censorship presents a more direct battle of forces. In these societies, self-help, surreptitious defense of new public spheres, trans-border cooperation, and voting with one’s feet are more likely to succeed than filing lawsuits or asserting constitutional rights. There, YouTube bans and shutdowns of the entire Internet with proxy servers and aid from foreign Web firms, sometimes enjoying explicit diplomatic support

The U.N. Declaration on the Rights of Indigenous Peoples requires states to provide an effective remedy to indigenous peoples deprived of their cultural, religious, or intellectual property (IP) without their free, prior and informed consent. The Declaration could prove to be important safeguard for the indigenous peoples of Iraq and Turkey, the victims for centuries of massacres, assaults on their religious and cultural sites, theft and deterioration of their lands and cultural objects, and forced assimilation. These peoples, among them the Armenians, Assyrians, Greeks, and Yezidis of Turkey and Turkish-occupied Cyprus, and the Armenians, Assyrians, Yezidis, and Mandaeans of Iraq, have lost more than two-thirds of their peak populations, most of their cultural and religious sites, and thousands of priceless artifacts and specimens of visual art. The European Union has probed these violations of indigenous people's rights as part of the process of bringing Turkish laws and policies into compliance with European human rights standards. The United States has investigated violations of the rights of Iraq’s indigenous peoples in reports issued by the various executive agencies and legislative committees. My paper will summarize the results of these inquiries, and propose four reforms. First, restitution or compensation should be implemented for the widespread destruction of indigenous peoples’ cultural and intellectual properties by previous Turkish and Iraqi regimes. Second, efforts to promote the security of indigenous peoples’ surviving intellectual and cultural patrimony must be adopted. Third, transnational corporations and other large enterprises such as museums and publishers should respect the rights of indigenous people to protect, access, and use their cultural and intellectual property held outside of Turkey and Iraq. Fourth, policies within Turkey and Iraq that restrict the preservation and transmission of indigenous cultural and intellectual manifestations must be reformed or abolished. This article also describes the growing body of law governing indigenous peoples' rights, particularly in Europe. Applicable general international law standards are set forth in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Hague Convention with Respect to the Laws and Customs of War on Land, the Hague Regulations Respecting the Laws and Customs of War on Land, the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, the Convention for the Protection of Cultural Property in the Event of Armed Conflict, the Convention on Biodiversity, the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, and the United Nations Declaration on the Rights of Indigenous Peoples. European standards are embodied in the European Convention on Human Rights and Fundamental Freedoms, the Copenhagen principles on human rights in the EU, the Framework Convention for the Protection of National Minorities, the OSCE Oslo Recommendations Regarding the Linguistic Rights of National Minorities, and the Council of the European Union's Framework decision on Racism and Xenophobia. In the United States, additional standards are set forth in the Foreign Relations Act of 1961, the International Religious Freedom Act of 1998, the Alien Tort Claims Act, and the Torture Victims Protection Act

Does browsing the world through a screen change a person, especially in the context of COVID-19? Recent studies indicate that self-care, psychological well-being, and empathy may suffer. The “Californian ideology” privileges expression of the self even as digital technology tends to interrupt the modern trend towards elaborating distinct selves via texts that convey knowledge. Meanwhile, digital browsing may be fracturing attention and empathy. As these changes proceed, legislators react to a medical and social crisis. Relaxation of business, community center, and school closures prevailed, under pressure from advocates of liberty, jobs, and pro-market economics. A rival set of regulatory reforms would prioritize fighting the virus and providing more relief to its victims as being forms of care for others. In the international domain, nationalist ideology and economic warfare intensify disparities in access to medical care, imported goods, and livelihoods. At stake is how best to take beings into care.

This article addresses a few moments in the evolution of human security law in Iraq, focusing in particular on the Coalition Provisional Authority, the new Iraqi Constitution, the Iraqi High Tribunal (successor to the Iraqi Special Tribunal), and the International Criminal Court. It synthesizes the results of some existing research on ongoing impunity for certain crimes against political candidates, journalists, anti-corruption activists, and ethnic and religious minorities, a situation which may have tainted Iraq’s transition to a more democratic republic, while aggravating other conflicts, such as those in Syria. In theory, the institutions of human and national security can help reconcile peoples whose tenuous unity had been shattered in wartime. The sometimes competing priorities and policies of Iraqi politicians, civil society groups, and judges resulted in swift justice for Iraqi officials responsible for mass killings involving Shi’a Arab, Kurdish, and other victims, but a lack of justice for other segments of the population. The emphasis of some claims of injury over others may have "reenchanted" some sectors of Iraqi society with the state and its institutions, while alienating others and contributing to ruptures in the social fabric. The Coalition Provisional Authority, Iraqi leaders, and international community ensured that the high-profile proceedings against former regime officials would not be accompanied or followed by others that some Iraqis might perceive as being as pressing as those of the Iraqi High Tribunal, relating to the impact of sanctions and aerial bombardment, the legality of Iraq's occupation, torture, etc.

This paper will describe the drafting history of the Principles of the Law of Software Contracts, with particular attention to the extent of consumer and public-interest group representation in the process. The drafting process, I will argue, did not take adequate stock of problems identified in the late 1990s with proposed Article 2B of the Uniform Commercial Code, and then the Uniform Computer Information Transactions Act (“UCITA”), including provisions encouraging terms in violation of public policy, that constitute copyright or patent misuse by attempting to prohibit fair use or withdraw material from the public domain, or that are not properly disclosed before the purchase. The difference between the present situation and the 1990s, however, is the much greater importance today of European Community directives on the subject of consumer protection and electronic commerce, particularly given the explosion in e-commerce between the United States and Europe. This paper will analyze whether the Principles do enough to protect the interests of consumers and the public in four key areas: (1) consistency with U.S. federal and state statutory and common law, (2) clear and conspicuous disclosure of all relevant terms and conditions prior to the sale, (3) regulation and prevention of one-sided and unconscionable contract terms, and (4) consistency with European Community and domestic European law. My thesis is that the Principles and the comments thereto appear to sanction conduct that is in tension with the federal Copyright and Patent Acts, the common law of several U.S. states, and the European Community’s directives, especially those on the Legal Protection of Software Programs (1991), Unfair Terms in Consumer Contracts (1993), and Protection of Consumers in Respect of Distance Contracts (1997). To that extent, the Principles seem to be an imperfect attempt to unify the law of software contracts, codify best practices, or develop the law in a desirable direction. Finally, the paper will discuss whether and when it is appropriate to harmonize U.S. and E.C. law and public policy

With an epic historical sweep, “Genocide in the Middle East: The Ottoman Empire, Iraq, and Sudan,” reveals how the struggles by nations and empires to establish their regional supremacy resulted in the destruction of families and human groups. This book presents a new theory of the meaning and scope of the U.N. Convention on the Prevention and Punishment of the Crime of Genocide of 1948, based on the drafting history, the case law of international criminal tribunals, and practice of the states parties to the convention since the 1950s. It then paints an expansive portrait of genocide against populations on all six inhabitable continents, with a special focus on the greater Middle East and North Africa since the nineteenth century. In the Ottoman Empire, the Interior Minister issued orders describing the Armenian, Assyrian, and Greek subjects of the empire as saboteurs allied to Russia who needed to be deported from their homes, and led efforts to massacre entire cities, carry out systematic rapes, and impose famine and disease on the surviving remnants. Similarly, in 1980s Iraq the Revolutionary Command Council of the Ba’ath party issued orders that served as the basis of convictions for genocide and other crimes in the Iraqi High Tribunal. These orders declared that areas serving as a base of operations for Kurdish and pro-Iranian insurgents should be rendered devoid of all life. Finally, in the Darfur region of Sudan, as in southern Sudan before it, the President and Interior Minister issued orders to the army and allied militia to kill and drive out entire communities in regions seeking independence, autonomy, or simply political equality. This book also provides cause for hope, explaining how former dictators have been tried and convicted of genocide and crimes against humanity, and how their victims have won independence and compensation for their losses after the fact in places like Armenia, Israel, Bosnia and Herzegovina, Kosovo, northern Iraq, East Timor, and southern Sudan. What others are saying: “The comprehensive research is breath-takingly evident. This historical account of the lesser know genocidal conflicts is incredibly revealing. Perhaps the best thing one could say about this book is that the familiar adage—'Those who ignore history are bound to repeat it'—reverberates throughout this intensely engaging volume.” — ASIL UN21 Newsletter “This ambitious book in its research and coverage tells a sorry tale of mankind’s inhumanity and intolerance over millennia of genocidal deeds and rhetoric. A fast-moving narrative reaches from biblical times to Darfur, describing tragic events accompanied by selective quotations from their participants and observers. Genocide may be a recently invented term, but its occurrences based on a variety of causes and reasons seem to have been a deep part of the human experience of group interactions.” — Henry Steiner, Professor of Law, Emeritus, Harvard Law School, and co-author, International Human Rights in Context: Law, Politics, Morals (Oxford and New York: Oxford University Press, 3d ed. 2007) “In Genocide in the Middle East, Hannibal Travis breaks new ground in genocide studies by unveiling the full panoply of genocidal processes in the Middle East and West Asia as no previous scholar has. But he does much more: in terms of its twentieth and twenty-first-century coverage, this is simply the most expansive, detailed, and up-to-date history of genocide we possess.” — Adam Jones, Associate Professor, Political Science, University of British Columbia Okanagan, and author of Genocide: A Comprehensive Introduction (London: Routledge, 2006) "[T]he book seeks to present a comprehensive study of genocide.... Eyewitness accounts and diplomatic reports are effectively interwoven with other documentary evidence and academic research to produce a very thorough and disturbing portrait of this history." Mark Welton, Professor of International and Comparative Law, U.S. Military Academy, West Point

Genocide, Ethnonationalism, and the United Nations examines a series of related crises in human civilization growing out of conflicts between powerful states or empires and indigenous or stateless peoples. This is the first book to attempt to explore the causes of genocide and other mass killing by a detailed exploration of UN archives covering the period spanning from 1945 through 2011. Hannibal Travis argues that large states and empires disproportionately committed or facilitated genocide and other mass killings between 1945 and 2011. His research incorporates data concerning factors linked to the scale of mass killing, and recent findings in human rights, political science, and legal theory. Turning to potential solutions, he argues that the concept of genocide imagines a future system of global governance under which the nation-state itself is made subject to law. The United Nations, however, has deflected the possibility of such a cosmopolitical law. It selectively condemns genocide and has established an institutional structure that denies most peoples subjected to genocide of a realistic possibility of global justice, lacks a robust international criminal tribunal or UN army, and even encourages "security" cooperation among states that have proven to be destructive of peoples in the past. Questions raised include: What have been the causes of mass killing during the period since the United Nations Charter entered into force in 1945? How does mass killing spread across international borders, and what is the role of resource wealth, the arms trade, and external interference in this process? Have the United Nations or the International Criminal Court faced up to the problem of genocide and other forms of mass killing, as is their mandate?

This article is an extended exercise in 'genocide originalism.' Some leading genocide scholars have propounded a supposedly “legal” definition that is unduly narrow. Purportedly based on the drafting history of the Genocide Convention, this narrow definition actually rests upon incomplete and selective references to legal sources. A narrow definition has important effects on debates concerning whether partial genocides, such as by 'ethnic cleansing,' may constitute the crime of genocide. In this article, I survey evidence that the drafters and ratifiers of the Genocide Convention did not adopt a requirement of genocidal intent that would be nearly impossible to satisfy, namely an intent to totally destroy a race. Efforts to equate genocidal intent with total racial destruction have been disturbingly common within the United Nations system over the past decade, including in the findings of International Court of Justice (ICJ) on genocide in Bosnia and Herzegovina, of the International Commission of Inquiry on Darfur (ICID) on genocide in western Sudan and eastern Chad, and of the trial chamber of the U.N.-backed International Criminal Court (ICC) on genocide in Darfur. At the root of this misunderstanding is the equation of the intent to destroy a group required by Article II of the Genocide Convention with a deliberate plan or policy of a state to exterminate the members of an entire racial group, or a total genocide. Contrary to this distortion of the Convention, its drafters rejected efforts to limit genocide to total destruction, a plan or policy of destruction, or a motive of racial hatred. This article contends that the original understanding of the crime of genocide did not require a total genocide, and that this original understanding is reflected in the text of the Genocide Convention, the 'travaux preparatoires', and the course of performance of the treaty by the United Nations and its member states.

This chapter critically examines the scholarly and political discourse since the 1960s on “the Armenian Genocide.” This discourse represents not only a forgetting or continued unawareness that there were Assyrian and Greek victims of the anti-Christian massacres of the late Ottoman Empire and early Turkish republic, but an active suppression of our existing historical knowledge about Assyrian and Greek victims. There were between two and seven million Greeks and approximately 500,000 Assyrians living in the Ottoman Empire in 1914, but only about 258,000 Christians of all kinds remaining in Turkey by 1927, even though Turkey once included substantial Assyrian and Greek regions. Two potential explanations for the ongoing concealment of the Assyrian and Greek genocides are that there was little writing on Ottoman mass killing in general prior to the 1970s, and that recent scholarship that made the Assyrian and Greek genocides prominent within genocide studies. Neither of them holds water, because there was abundant documentation of the Ottoman Christian genocide before the allegedly forgotten Armenian genocide began to be remembered, and very recent scholarly works minimize or completely ignore Assyrian and Greek victims.

From the publisher: The Convention on the Prevention and Punishment of the Crime of Genocide was the first human rights treaty adopted by the United Nations, reflecting the global commitment to 'never again' in the wake of the Holocaust. Seven decades on, The United Nations and Genocide examines how the UN has met, and failed to meet, the commitment to 'prevent and punish' the crime of genocide. It explores why the UN was unable to respond effectively to the genocides in Cambodia, Rwanda, the Balkans, and Darfur, and considers new approaches recently adopted by the UN to address genocide. This volume asks the crucial question: can the UN protect peoples from genocide in the modern world? From the chapter author: There are a variety of reasons why UN members might not join together to prevent or punish a genocide, either through UN mechanisms or with a regional or unilateral intervention. First, they might regard the conflict and related atrocities as a permissible exercise of the right of individual or collective self-defense, as the United States argued in the case of the Vietnam War and the bombardment of the Ho Chi Minh trail and alleged 'Vietcong' bases in Cambodia and Laos. A very narrow reading of the Genocide Convention would aid such efforts. Second, there might be a political bloc or superpower behind the perpetrators, as with communist China in the case of Cambodia, or the Arab League or the African Union in the case of Iraq or Sudan. Third, there might be an absence of religious solidarity with the group, as with the Mandaeans and Yezidis of Iraq, the animists of southern Sudan, or the Catholic or Orthodox Christians of Nigeria or Syria, as opposed to other groups benefiting from religious solidarity or a willingness to sacrifice self-interest to aid the group(s), such as the Palestinians, Bosnian Muslims, Kuwaitis, or Libyans. To begin with the 'legal' factor, a number of scholars, not to mention defense attorneys, advocate a restrictive interpretation. Such an interpretation may halt efforts to impose the death penalty or other sanctions on perpetrators of 'genocides' in Cambodia, Ethiopia, Iraq, Sudan, Yugoslavia, and elsewhere. The most prominent example is Professor William Schabas, in his often-cited book 'Genocide in International Law: The Crime of Crimes' (2000; rev. 2009). While acknowledging that the drafting history of the Convention does not define genocide as requiring a genocidal plan or policy by identifiable government officials, his book argues that genocide is impossible to imagine without such a plan. Professor Schabas has argued elsewhere that genocide did not occur in Cambodia, Darfur, Bosnia and Herzegovina, or Kosovo because there was no plan by a ruling elite to intentionally and completely destroy a race. Professor Schabas continued to maintain this interpretation past the point in time at which judges had arguably rejected it. When scholars pointed out that the drafting history often repudiated his narrow reading of the Genocide Convention, he appealed to public policy arguments against recognizing too many genocides. The gist of this policy argument is that a generous interpretation of the Genocide Convention 'demeans the suffering of the victims.' Yet the idea that the survivors of massacres are demeaned by genocide prevention is an odd one, and an idea that survivors often deny.

Copyright law's expansion must be analyzed from the standpoint of the comparative history and philosophy of exclusive rights in lands on the one hand, and in creative expression on the other. Expansion is driven by the persistence of a particularly influential mode of discourse about property rights from the English Enclosure Movement of the seventeenth and eighteenth centuries down to the Internet copyright debates of the 1990s. The duration and breadth of copyright have been extended to economically dubious and arguably unconstitutional lengths. At each new incursion into the intellectual commons, substantially the same dual-pronged justification has been brought to bear, combining a one-sided emphasis on certain “natural” rights with a rudimentary and poorly documented account of the “tragedy of the commons.” This unmooring of copyright from the historical limits on its scope and duration threatens to chill the flow of public domain material and transformative works onto the World Wide Web. The author argues that a searching First Amendment inquiry into the dubious origins of Blackstonian copyright, along with a more critical appraisal of its philosophical provenance, should precede implementation of “notice-and-take-down” schemes and other statutory, technological, and contractual restrictions on imitation and quotation in cyberspace and elsewhere. Absent such an inquiry, the redefinition of “piracy” to include evaluation, critique, parody, and even reproduction of public domain works will undo recent advances in the accessibility and heterogeneity of information.

This Essay explores postmodern censorship of pacifist expression. Postmodern censorship is distinguishable from its pre-modern or modern counterparts by its immaterial, seemingly nonviolent ways of watching and influencing private activity, rather than using material violence as an ostentatious tyrant would. While still sculpting citizens’ beliefs and behaviors, postmodern power applies itself to private technologies and the enjoyment of what seems to be leisure time or tools such as television or radio. Postmodern regulation directs itself at privatized implementation of governmental objectives, including the lies and crimes of governments. It simulates real events in spectacles of illusion and artifice. In the postmodern era, everything is increasingly artificial, real events are excluded from the public spectacle, and the meaning of words and concepts is lost.

This Article provides historical and legal support for the contention that the Sudanese government is guilty of genocide in southern Sudan, the Nuba mountains, and the Darfur region. Specifically, the government and the militias it sponsors have massacred civilians in these regions on a wide scale, starved and enslaved their inhabitants, committed widespread rape, burned hundreds or thousands of villages, and blocked humanitarian aid from reaching the victims in such a way as to ensure that mass deaths resulted. For these reasons, this Article disagrees with the 2005 report of the the International Commission of Inquiry on Darfur, submitted to the U.N. Secretary-General in early 2005 at the request of the U.N. Security Council, which concluded that the element of genocidal intent was missing because the government had not exterminated the entire population of Darfur. This Article applies the Genocide Convention, in light of the precedents established by national and international tribunals that have construed it over the years, to establish that genocide has occurred in Sudan because the Sudanese military and allied militia have killed and wounded many members of identifiable indigenous African groups by means of repeated and large-scale destructive and discriminatory acts. Genocidal intent may be inferred under such circumstances, as it was after the genocides in German-occupied Europe, the former Yugoslavia, and Rwanda. This Article also attempts to account for the inadequate international response to genocide in Sudan by reference to the incentives of the Sudanese government and its allies and trading partners to drive indigenous African populations off their land in order to exploit the substantial oil deposits that have been opened to exploration by multinational corporations such as the China National Petroleum Corp. The proceeds of Sudanese oil sales enrich governments with seats on the Security Council, both directly through state-controlled oil companies and indirectly by growing their oil and arms industries. Multinational corporations and their respective governments have therefore armed the perpetrators of genocide in Sudan, and helped sustain an apathetic international response. After suffering from this dynamic for more than a decade, indigenous African leaders in Sudan, as well as international human rights advocates, have argued that Sudan's oil revenues represent a source of leverage over the government's genocidal policies. This Article argues that Sudan's oil revenues, and those of its multinational corporate partners, should be tapped to compensate Sudan's indigenous African populations for their human and material losses, and to secure for them a fair share of their country's natural resources. Such a compensatory approach to the problem of genocide in Sudan may also transcend some of the difficulties that genocide scholars have identified as inhibiting the effectiveness of international criminal prosecutions as deterrents to genocidal conduct, including the inadequacy of punishing a few token officials for the policies of an entire regime, including thousands of members of heavily-armed and well-organized army and militia units. The Article concludes by exploring different potential approaches to the question of how best to compensate victims of genocide and crimes against humanity in Sudan. One model is provided by the Darfur Peace Agreement, which calls for the government to pay $30 compensation to victims of genocide in Darfur. This amount, divided among the families of more than than 450,000 murdered Darfurians, is of course too paltry to be unacceptable to leaders of indigenous Africans in Sudan. For this reason, the former chief prosecutor of the International Criminal Tribunal for the former Yugoslavia, as well as Human Rights Watch and Amnesty International, have argued that a more appropriate model may be provided by the U.N. Compensation Commission (UNCC), which levied reparations obligations directly against Iraq's oil exports as a result of its invasion and attempted annexation of Kuwait in 1990. The UNCC has already awarded more than $21.8 billion in reparations to Kuwaiti, Saudi, Jordanian, Palestinian, Israeli, and American corporations and citizens injured in their businesses or persons as a result of the war and related events. A similar commission for Sudan would actually be more justifiable than the UNCC was, among other reasons because millions, rather than a few thousand, civilians have been killed in Sudan. A third model looks to the multinational corporation that knowingly provide a genocidal government with the resources to carry out its policies, or that reward it for displacing civilians from resource-rich areas. This model is exemplified by the Second Circuit's recent opinion in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007), which held that oil corporations that aid and abet violations of customary international law may be sued for damages under the Alien Tort Claims Act if they they willingly supplied the means for a government to violate customary international law prohibitions against genocide or torture. The Article closes with the observation that genocide in Sudan and elsewhere is often motivated by the incentive of a dominant group to expropriate a foreign or minority population's land, natural resources, property, and uncompensated labor. The restitution or redistribution of these resources stolen by governments and multinational corporations may deter genocide as an instrument of public policy by making it less profitable, and, more importantly, provide some means for populations driven from their ancestral homes and lands to survive. In Sudan and eastern Chad, where displaced civilians have sometimes been reduced to eating tree bark and drinking fetid water to stay alive, the question of compensation as a human rights and human security measure could not be more urgent.