Digital Commons Network^™

Civil Liberties Advocacy Organizations In Canada: A Survey And Critique, Jeremy Patrick

ExpressO

Civil Liberties Advocacy Organizations in Canada: A Survey and Critique.” This article explores the structure and activities of modern civil liberties groups in Canada through a comparative look with the ACLU in the United States. The thesis of the article is that the Canadian model of having fragmented and isolated groups in some provinces is not as effective as the American model of having a single, national organization with affiliates in each state.

Yukos Risk: The Double Edged Sword, Joseph Tanega, Dmitry Gololobov

ExpressO

Abstract The article focuses on elucidating the meaning of Yukos risk mainly in terms of corporate bankruptcy litigation in multiple jurisdictions, including, the U.S., U.K., The Netherlands, and Russia. The emphasis is on understanding the various legal theories and the court decisions reached so far in this continuing legal saga.

The Coalescence Of United States Immigration Law And International Criminal Law: An Exploration Of Elias Zacarias In The Context Of Female Genital Mutilation, George S. Yacoubian

ExpressO

In INS v. Elias Zacarias, the Supreme Court (SC) affirmed that nongovernmental actors (e.g., guerilla groups) can commit “persecution” as defined by § 101(a)(42) of the Immigration and Nationality Act (INA). Human rights violations by any international actor, governmental or otherwise, can thus, according to Elias Zacarias, trigger asylum protection in the United States (US). In contrast, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which the US is a party, requires the victimizer to be a “public official or other person acting in an official capacity.”

The CAT thus imposes a state …

One Step Forward, Two Step Backwards: Addressing Objections To The Icc’S Prescriptive And Adjudicative Powers , Nema Milaninia

ExpressO

The Rome Statute of the International Criminal Court (ICC) permits the ICC to exercise subject-matter jurisdiction over individuals who engage in war crimes, genocide, crimes against humanity, and crimes of aggression. However, under Article 13, the ICC may only exercise personal jurisdiction over persons referred by the Security Council under Chapter VII, or over nationals of a state party, or persons whose alleged criminal conduct occurred on the territory of a state party

This article evaluates the interplay between principles of public international law and international criminal law in determining whether the ICC’s grant of jurisdiction under the Rome Statute …

The Role Of International Human Rights Law In The American Decision To Abolish The Juvenile Death Penalty, William A. Feldman

ExpressO

This article focuses on the recent (2005) decision of the United States Supreme Court in Roper v. Simmons, declaring the juvenile death penalty unconstitutional. The article discusses the impact of international law, particularly human rights law, on the decision of the Court, and speculates about the influence of international law on future decisions.

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power, Juliet P. Stumpf

ExpressO

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract …

Impotence Of Being Earnest: Status Of The United Nations Standard Minimum Rules For The Treatment Of Prisoners In Europe And The United States, Sara A. Rodriguez

ExpressO

The Standard Minimum Rules for the Treatment of Prisoners were approved with the most earnest of good intentions at the First United Nations Crime Congress in 1955, in an attempt to establish “what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.” In spite of their noble purpose, implementation of these rules has been somewhat of a disappointment. Europe has adopted the Standard Minimum Rules wholesale. The United States, by contrast, has declined to adopt a set of standards patterned after the Standard Minimum Rules, relying instead on pre-existing correctional …

Calling The United States' Bluff: How Sovereign Immunity Undermines The United States' Claim To An Effective Domestic Human Rights System, Denise L. Gilman

ExpressO

This article challenges the claims made by the United States that the civil rights system in this country adequately protects human rights, making it unnecessary for the United States to take on additional international human rights commitments. Specifically, the article uses international human rights law and comparative law to analyze the broad sovereign immunity doctrines that protect government actors in the United States from suits for damages even where constitutional violations are in play.

Domestic Violence And Legal Reforms In Nigeria: Prospects And Challenges, Itoro Eze-Anaba

ExpressO

The article focuses on the challenges for women’s rights activists attempting to provide a better legal regime for victims of domestic violence in Nigeria. It is my desire to provide a resource material on the issue of domestic violence for activists, policy makers, legislators and law reformers who are engaged in providing a better legal framework for the protection and promotion of women’s rights in a developing country like Nigeria. Having worked extensively on this issue, the article documents my experience on law reform advocacy in Nigeria.

Analysis Of Certain Aspects Of The “Long-Term Legal Strategy Project For Preserving Security And Democratic Freedoms In The War On Terrorism” Report In Light Of Customary International Law, Michael P. Hatchell

ExpressO

No abstract provided.

Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy

ExpressO

After 14 years of unconscionable wrath against local civilians, including enforced recruitment of thousands of child soldiers, the rebel group The Lord’s Resistance Army (“LRA”) was offered amnesty by the Ugandan government in 2000. However, as the conflict continued unabated, the Ugandan government, for the first time in the history of the Court, referred its case to the International Criminal Court (“ICC”). The ICC Prosecutor announced the beginning of an investigation and issued warrants for seven top LRA officers in October of 2005. The potential ICC prosecution raises many questions about the jurisdiction of the new court, including whether the …

The International Criminal Tribunal For Rwanda: A Paper Umbrella In The Rain? Initial Pitfalls And Brighter Prospects, Jackson N. Maogoto

ExpressO

The tragedy which befell Rwanda in 1994 deserves a special place in the bloodstained pages of history. The Rwandan genocide merits distinction primarily because of its shocking efficiency, its scale and its proportional dimensions among the victim population. The Security Council's resolution establishing the ICTR articulates a set of decisions, assumptions, wishes, and objectives. Primarily, the States that voted in favour of the creation of the ICTR indicated that the root of the problem was individual violations of international criminal law. Only one State that voted for the resolution did not equate ipso facto ICTR actions with justice. That State …

Sovereignty In Transition: Human Rights And International Justice, Jackson N. Maogoto

ExpressO

Sovereign excesses in the twentieth century resulted in the murder of approximately 170,000,000 persons by their sovereign. This statistic, a potent testimony of sovereign excesses through gross and systematic human rights violations firmly places human rights and humanitarian problems on the international plane. This reality (identified and articulated in the Report of the Secretary General’s High-level Panel on Threats, Challenges and Change) firmly places human rights problems on the international plane and mandates a fundamental rethinking about the basis of sovereignty’s political and associational organization in the new millennium. This Article has as its modest aim an examination and analysis …

Civil Liberties V National Security In Times Of Crisis: The Past Use Of Internment Without Trial In The United States And The United Kingdom And The Lessons For The Ongoing 'War On Terror.' , Richard D. Donald

ExpressO

History teaches that, in time of crisis, we have often sacrificed fundamental freedoms unnecessarily. The Executive and Legislative Branches, reflecting public opinion formed in the heat of the moment, frequently have overestimated the need to restrict civil liberties. This has been especially true in regards to internment without trial. Neither novel nor normal, internment is an emergency measure which has regularly been employed in times of national crisis. Through an examination of two historical models this project aims to identify some the difficulties associated with the application of a policy of internment. Given it’s ongoing use around the world in …

Appeasing The International Conscience Or Providing Post-Conflict Justice: Expanding The Khmer Rouge Tribunal’S Restorative Role, Nema Milaninia

ExpressO

Three decades after the Cambodian civil war, the leaders of the Khmer Rouge will finally be brought before an internationalized domestic tribunal. While the majority of those most responsible have died off or received immunity for their conduct, the Khmer Rouge Tribunal has the historic possibility of reaffirming the importance of international criminal justice and providing an historical narrative of the crimes committed and victims created.

This commentary evaluates the importance of restoration in transitional justice and the importance victims and witnesses play in post-conflict justice. This article will argue that previous post-conflict remedies required a balance of restorative and …

The Anomaly Of Guantanamo: Two Innocent Men Caught In A Devastating Legal Limbo, Lauren S. Elfant

ExpressO

No abstract provided.

In The Best Interest Of The Child, Ellen L. Buckwalter

ExpressO

Each year more than 200,000 children in the United States are abducted by family members. When a child is abducted across international borders, the difficulties are compounded. Since the late 1970s, The Department of State’s Office of Children’s Issues has been contacted in approximately 16,000 cases involving children who were either abducted from the United States or prevented from returning to the U.S. by one of their parents.

The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) adopted on October 24, 1980, reflects a worldwide concern about the harmful effects that parental kidnapping has on children …

Refugee Security And The Organizational Logic Of Legal Mandates, Mariano-Florentino Cuellar

ExpressO

While the refugee protection system is one of international law’s most recognizable features, it routinely places massive numbers of refugees in camps in the developing world, where they face chronic threats to their physical security from crime and disorder, coercion, and military attacks. Yet key actors responsible for refugee protection, including host states, advanced industrialized countries, and the United Nations High Commissioner for Refugees (UNHCR), generally have failed to prioritize refugee security. This article asks: (1) Why? (2) What have been the consequences? (3) And what do these answers reveal about how organizations carry out legal mandates in complicated political …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

Superstition-Based Injustice In Africa And The United States: The Use Of Provocation As A Defense For Killing Witches And Homosexuals, Jennifer Dumin

ExpressO

This Article examines two different instances where strong cultural and religious beliefs suggest that an individual is justified in taking another’s life. Focusing primarily on South Africa and the United States, it argues that the rationale used to defend those who kill suspected witches and those who kill suspected homosexuals is the same – merely because a criminal holds a belief that the victim is evil, the criminal is somehow entitled to a lesser punishment. In the United States, those who readily recognize the absurdity of the witchcraft defense may have some difficulty in recognizing the same level of absurdity …

Reinvigorating First Year Criminal Law: Integrating Mental Disability Issues Into The Criminal Law Course, Linda C. Fentiman

ExpressO

This article explores how mental disability issues can be incorporated into a traditional criminal law class, in order to enrich student understanding of both mental disability law and criminal law doctrine. The intersection of mental disability with the doctrinal aspects of criminal law can be broken into five major categories: 1) the justifications for punishment; 2) the definition of crime in general, e.g., the requirements of a voluntary act, mens rea, and causation; 3) the definition of particular crimes, such as murder, manslaughter, rape, and burglary; 4) defenses to crime, including mistake of law and of fact, as well as …

The Transnational Judicial Discourse And Felon Disenfranchisement: Re-Examining The Textual Premise Of Richardson V. Ramirez, Jason G. Morgan-Foster

ExpressO

This article is simultaneously an international comparative law piece about prisoner disenfranchisement in various countries, a transnational work of legal theory providing a framework for the use of foreign law in domestic constitutional courts, and a domestic analysis of the constitutional underpinnings of felon disenfranchisement.

The article begins with a comprehensive comparative analysis of the recent prisoner disenfranchisement decisions in Canada, South Africa, and Europe. It notes that the over-arching theme of these decisions is to view the acceptability of prisoner disenfranchisement along a continuum, where it becomes more acceptable the more serious the offense committed.

The article then examines …

An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce

ExpressO

This paper examines the copious problem of world poverty affecting half of the world’s population in the South and assesses the international legal obligations of the international legal community, viz., developed states, transnational corporations and the international financial institutions of the IMF, World Bank and WTO to the eradication of poverty and the growth of sustainable development, in view of the inviolability and peremptory nature of the Charter of the UN, and the international human rights provisions arising therefrom. To this extent, we examine the 1986 General Assembly Declaration on the Right to Development, along with the other International Bill …

The Transformation Of South African Private Law After Ten Years Of Democracy: The Role Of Torts (Delict) In The Consolidation Of Democracy, Christopher J. Roederer

ExpressO

Although the role of the private law has been largely ignored in studies of transitional justice, private law is a crucial component in South Africa’s transition/transformation. Contrary to the views of some commentators, the private law and delict in particular, were tainted by apartheid. Further, even if the private law of South Africa was not infected by the apartheid cancer, it acted as a carrier and facilitator of apartheid values and policies, perpetuating the inequities apartheid. While there is evidence of the cancer in apartheid case law the more serious problem was a failure of delict to progress under apartheid. …

Cultural Relativism In International War Crimes Prosecutions: The International Criminal Tribunal For Rwanda, Ida L. Bostian

ExpressO

The tension between universalism and cultural relativism lies at the heart of war crimes and war crimes prosecutions. While cultural relativism arguments should never be the basis for ignoring war crimes outside of the West (particularly in Africa), neither should the international community adopt a radical universalist approach that ignores the unique circumstances underlying each war crimes prosecution. The establishment of the ICTR, over the objection of the post-genocide Rwandan government, probably erred on the side of universalism by ignoring the legitimate needs of the Rwandan people. Nevertheless, the ICTR has appropriately adopted a “mild” cultural relativist approach in its …

The Rise Of Managerial Judging In International Criminal Law, Maximo Langer

ExpressO

Abstract This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some of the …

International Legal Compliance: Surveying The Discipline, William C. Bradford

ExpressO

No abstract provided.

Democratic Responses To Terrorism: A Comparative Study Of The United States, Israel And India, Arunabha Bhoumik

ExpressO

This paper compares counter-terrorist policies in the United States, Israel and India through the lens of three models of counter-terrorist policies: the war model, the intelligence model, and the criminal justice model. After describing each model, the paper introduces different variables that are relevant in understanding a country’s counter-terrorist policies. Using these variables, the paper attempts to analyze and classify each country’s counter-terrorist policies.

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.