Digital Commons Network^™

Targeting Co-Belligerents, Jens David Ohlin

Cornell Law Faculty Working Papers

One of the central controversies of the targeted killing debate is the question of who can be targeted for a summary killing. The following chapter employs a novel normative framework: how to link an individual terrorist with a non-state group that threatens a nation-state. Six linking principles are catalogued and analyzed, including direct participation, co-belligerency, membership, control, complicity and conspiracy. The analysis produces counter-intuitive results, especially for civil libertarians who usually eschew status principles in favor of conduct principles. The concept of membership, a status concept central to international humanitarian law, is ideally suited to situations, like targeted killings, that …

Legal Lines In Shifting Sand: Immigration Law And Human Rights In The Wake Of September 11, Daniel Kanstroom

Daniel Kanstroom

In March of 2004, a group of legal scholars gathered at Boston College Law School to examine the doctrinal implications of the events of September 11, 2001. They reconsidered the lines drawn between citizens and noncitizens, war and peace, the civil and criminal systems, as well as the U.S. territorial line. Participants responded to the proposition that certain entrenched historical matrices no longer adequately answer the complex questions raised in the “war on terror.” They examined the importance of government disclosure and the public’s right to know; the deportation system’s habeas corpus practices; racial profiling; the convergence of immigration and …

Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom

Daniel Kanstroom

The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which contains the worst features …

Sharpening The Cutting Edge Of International Human Rights Law: Unresolved Issues Of War Crimes Tribunals, Daniel Kanstroom

Daniel Kanstroom

International criminal tribunals have emerged as the most tangible and well-known mechanism for seeking justice in the wake of atrocious human rights violations. As the enterprise has developed, the need to ask fundamental questions is obvious, compelling, and essential. In March, 2006, the Boston College International and Comparative Law Re-view, together with The Center for Human Rights and International Justice at Boston College and the Owen M. Kupferschmid Holocaust/Human Rights Project convened a diverse and impressive group of speakers from academia, the judiciary, and legal practice to evaluate: the development of “common law” of the tribunals, the function and limits …

Deportation, Social Control, And Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, Daniel Kanstroom

Daniel Kanstroom

From the Author’s Introduction: We live in a time of unusual vigor, efficiency, and strictness in the deportation of long-term permanent resident aliens convicted of crimes. This situation is the result of some fifteen years of relatively sustained attention to this issue, which culminated in two exceptionally harsh laws: the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In many cases, these laws have brought about a rather complete convergence between the criminal justice and deportation systems. Deportation is now often a virtually automatic consequence of criminal …

Untangling The Web: Exploring Internet Regulation Schemes In Western Democracies, Renee Keen

San Diego International Law Journal

This Comment investigates past censorship schemes proposed and implemented by selected democratic administrations, in order to develop an improved framework and accompanying infrastructure that may accomplish the goals that these policies envisioned, but failed to achieve. The difficulty of this undertaking is in developing the intermediate and legally defensible parameters under which a regulation scheme can endure and gain support in a democratic society. The greater difficulty lies in developing a system that can accomplish these objectives in the burgeoning and ever-changing cyber realm. The challenges posed by Internet activity are novel ones, and the legitimacy of the actions taken …

Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein

San Diego International Law Journal

The Order in Council permitting the prosecution appeal of "Mo" Courtney's acquittal and allowing him to be retried for the same offense of which he had previously been acquitted stems from the Criminal Justice Act 2003. That Act, which applies in England and Wales, grants the government the right to appeal certain rulings by the trial judge in criminal prosecutions on an indictment, including a ruling that there is no case to answer, i.e., a directed verdict of acquittal, and if the appeal is successful, allows the reviewing court to order that the acquitted defendant?s trial be resumed or that …

The Abuse Of Guaranteed Pending Trial In The Chinese Criminal Process: A Violation Of International Human Rights Law, Li Enshen

Indonesian Journal of International Law

Guaranteed pending trial (Qubao Houshen) is one of the coercive measures used by the Chinese authorities to release suspects on bail in the criminal process. Unlike the western general practices, this instrument is not characterized as a legal right of suspects, but an effective means to circumvent the procedural requirements of investigation and prosecution in the laws. Further, the abuse of guaranteed pending trial is in fragrant violation of minimal international standards of human rights protection in the criminal justice system. The article first examines the procedural and practical deficiencies of this measure in the Chinese context. It then argues …

Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr

Bernard Sama

The month July of 2011 marked the birth of another nation in the World. The distressful journey of a minority people under the watchful eyes of the international community finally paid off with a new nation called the South Sudan . As I watched the South Sudanese celebrate independence on 9 July 2011, I was filled with joy as though they have finally landed. On a promising note, I read the UN Secretary General Ban Ki-moon saying “[t]ogether, we welcome the Republic of South Sudan to the community of nations. Together, we affirm our commitment to helping it meet its …

The International Review | 2011 Fall/Winter, Michael Rhee

The International Review Newsletter

Cigarettes meet international law: Will tobacco use go up in smoke?

Stopping the recruitment and use of child soldiers

No place to call home: The status and rights of stateless people

Collective punishment and international law: Punished for the acts of others

The United Nations and the Rule of Law: Delivered by UN Secretary-General Ban Ki-moon

Does international law effectively protect art, antiquities, and cultural property?

Who will prosecute the son of Col. Muammar Qaddafi?

Saudi Arabia: Arrested for being a woman driver

United States: Copyright protection for fashion designs?

Arctic Council: Setting the stage for more cooperation in the …

Human Trafficking For Begging, Iveta Cherneva

Buffalo Human Rights Law Review

Beggars are a part of the street landscape of any major city. However, many of the children and elderly women begging on the streets are forced beggars: victims of trafficking in persons who are part of a beggars ring with an organizational complexity comparable to that of a medium-size business enterprise. The present work focuses on the phenomenon of trafficking in persons for the purpose of begging, arguing for its legal conceptualization under international law. Although it is occasionally mentioned in a limited number of international reports and legal documents as a form of trafficking-related exploitation, forced begging is a …

Negotiating The India-Pakistan Conflict In Relation To Kashmir., Varun Vaish

Varun Vaish

Any academic discussion centered on a particular conflict is incomplete without first attempting to garner a better understanding of the genesis and subsequent alteration of the underlying factors that contribute to a dispute through an integrative approach. Such an approach has been termed as “Transformation Studies,” wherein an attempt is made to first study the experiences which lead to grievances and ultimately to disputes. In this approach the emergence and transformation of a dispute is analogous to studying a social process as it occurs.Only when a particular experience is perceived to be injurious, does one feel the need to attribute …

The Death Of Dr. Hugo Spadafora: Human Rights Investigative Responsibility Is Past Due, Judith K. Furukawa

American University International Law Review

No abstract provided.

The Pluralism Of International Criminal Law, Alexander K. A. Greenwalt

Indiana Law Journal

This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …

Prosecution Of Trafficking In Persons Cases: Integrating A Human Rights-Based Approach In The Administration Of Criminal Justice, Anne T. Gallagher, Nicole Karlebach

Anne T Gallagher

The Argument Against International Abduction Of Criminal Defendants: Amicus Curiae Brief Filed By The Lawyers Committee For Human Rights In United States V. Humberto Alvarez-Machain, Ruth Wedgwood

American University International Law Review

No abstract provided.

Evidence Obtained By Cruel, Inhuman Or Degrading Treatment: Why The Convention Against Torture’S Exclusionary Rule Should Be Inclusive, Akmal Niyazmatov

Cornell Law School Inter-University Graduate Student Conference Papers

Convention against Torture (CAT) prohibits admissibility of evidence obtained by torture but fails to extend similar prohibition to evidence obtained by cruel, inhuman or degrading treatment (CIDT evidence). Manfred Nowak argues that CAT's failure to prohibit CIDT evidence can be resolved if in interpreting torture we take the purposive element, instead of severity, as the main element that distinguishes torture from CIDT. He argues that both torture and CIDT require infliction of severe pain and thus it must be the purpose for which severe pain was inflicted that distinguishes torture from CIDT. If the purposive element is key in distinguishing …

Universal Jurisdiction Not So Universal: A Time To Delegate To The International Criminal Court, Dalila V. Hoover

Cornell Law School Inter-University Graduate Student Conference Papers

The exercise of universal jurisdiction in cases involving crimes under international law remains highly debated and underlines a certain number of legal and political issues in its implementation. Because the principle of universal jurisdiction relies on national authorities to enforce international prohibitions, pivotal decisions are expected to reflect, to a greater or lesser extent, domestic decision-makers’ positions as to the interests of justice, the national interest and other criteria. In many States, the legal system lacks the means to investigate or prosecute on the basis of universal jurisdiction. Indeed, many legal systems do not define the term “crimes” that can …

Winning At The Expense Of Law: The Ramifications Of Expanding Counter-Terrorism Law Enforcement Jurisdiction Overseas, Tyler Raimo

American University International Law Review

No abstract provided.

International And Regional Standards For Protecting Victims Of Domestic Violence, Andreea Vesa

American University Journal of Gender, Social Policy & the Law

No abstract provided.

How Effective The International Criminal Court Has Been: Evaluating The Work And Progress Of The International Criminal Court, Moses Retselisitsoe Phooko

Notre Dame Journal of International & Comparative Law

There are serious challenges facing the International Criminal Court (ICC). Two of these hindrances are that: firstly, the ICC has been accused of only targeting the African continent; and secondly, the Rome Statute of the International Criminal Court (Rome Statute) has no enforcement mechanism against the state parties who refuse to cooperate with the court. In light of these challenges, the question is whether the ICC would be able to meet the expectations of the international community. The significance of this study is to contribute to the effort of making the ICC an independent, credible and effective tribunal to end …

Legal Outlier, Again? U.S. Felon Suffrage: Comparative And International Human Rights Perspectives, Reuven (Ruvi) Ziegler

Dr. Reuven (Ruvi) Ziegler

The judiciousness of American felon suffrage policies has long been the subject of scholarly debate, not least due to the large number of affected Americans: an estimated 5.3 million citizens are ineligible to vote as a result of a criminal conviction. This article offers comparative law and international human rights perspectives and aims to make two main contributions to the American and global discourse. After an introduction in Part I, Part II offers comparative law perspectives on challenges to disenfranchisement legislation, juxtaposing U.S. case law against recent judgments rendered by courts in Canada, South Africa, Australia, and by the European …

Domestic Violence In The United States: A Preliminary Report Prepared For Rashida Manjoo, U.N. Special Rapporteur On Violence Against Women, Brenda V. Smith, Caroline Bettinger-Lopez, Farrah Elchahal, Miraisy Rodriguez, Monika Siwiec, Christina Brandt-Young, Kirsten Carlson, Gabrielle Davis, Margaret Drew, Rebecca Landy, Adam Dubin, Rachel Natelson, Sandra Park, Ana Romes, Jessica Rubenstein, Cynthia Soohoo, Cheryl Thomas, Sandra Jezierski, Casey R. Schultz

Reports

Domestic violence is a distinctive and complex type of violence. The intimate relationship between the victim and the perpetrator is historically construed as private and therefore beyond the reach of law. The often hidden site of the violence buttresses this conceptualization. The victim is often financially dependent on her abuser, and other economic and familial factors complicate the victim’s response to abuse. Moreover, women who complain of domestic violence frequently face intimidation, retaliation, and stigmatization, and thus incidents of domestic violence are notoriously under-reported and under-prosecuted throughout the world, including the United States.

Any meaningful analysis of the nature and …

21st Annual Fulbright Symposium - Harmony And Dissonance In International Law, Brad Lai

The Sompong Sucharitkul Center for Advanced International Legal Studies

Conference proceedings from The 21st Annual Fulbright Symposium on International Legal Problems.

Should Criminal Juries Give Reasons For Their Verdicts?: The Spanish Experience And The Implications Of The European Court Of Human Rights Decision In Taxquet V. Belgium, Stephen C. Thaman

Chicago-Kent Law Review

This article uses the European Court of Human Rights judgment of Taxquet v. Belgium, decided by the Grand Chamber in 2010, which held that in some cases the trial jury's failure to give reasons for its verdict of guilt could constitute a violation of the right to a fair trial under Article 6 of the European Convention of Human Rights, as a springboard for discussing whether or not criminal trial juries in Europe and the United States should be more accountable for their verdicts. The article explains the special jury verdicts traditionally used in Europe and the new Spanish requirement …

Special Court For Sierra Leone: Achieving Justice?, Charles Chernor Jalloh

Michigan Journal of International Law

The creation of the Special Court for Sierra Leone (SCSL or the Court) in early 2002 generated high expectations within the international community. The SCSL was generally deemed to herald a new model or benchmark for the assessment of future ad hoc international criminal courts. As the Court completes the trial of former Liberian President Charles Taylor in The Hague-its last-nine years later, this Article offers an early and broad assessment of whether it has fulfilled its promise. More specifically, this Article examines whether the SCSL has achieved, or more accurately-because its trials are still ongoing-whether it is achieving justice. …

Foreword, Brian J. Kennedy

San Diego International Law Journal

This final issue of the San Diego International Law Journal's twelfth volume is composed of articles which examine a broad range of contemporary legal issues which raise foreign, international, and global concerns.

From Rapists To Superpredators: What The Practice Of Capital Punishment Says About Race, Rights And The American Child, Robyn Linde

Faculty Publications

At the turn of the 20^th century, the United States was widely considered to be a world leader in matters of child protection and welfare, a reputation lost by the century’s end. This paper suggests that the United States’ loss of international esteem concerning child welfare was directly related to its practice of executing juvenile offenders. The paper analyzes why the United States continued to carry out the juvenile death penalty after the establishment of juvenile courts and other protections for child criminals. Two factors allowed the United States to continue the juvenile death penalty after most states in …

The Layha For The Mujahideen: An Analysis Of The Code Of Conduct For The Taliban Fighters Under Islamic Law, Muhammad Munir Dr.

Dr. Muhammad Munir

The following article focuses on the Islamic Emirate of Afghanistan Rules for the Mujahideen to determine their conformity with the Islamic jus in bello. This code of conduct, or Layha, for Taliban fighters highlights limiting suicide attacks, avoiding civilian casualties, and winning the battle for the hearts and minds of the local civilian population. However, it has altered rules or created new ones for punishing captives that have not previously been used in Islamic military and legal history. Other rules disregard the principle of distinction between combatants and civilians and even allow perfidy, which is strictly prohibited in both Islamic …

The Layha For The Mujahideen: An Analysis Of The Code Of Conduct For The Taliban Fighters Under Islamic Law, Muhammad Munir Dr.

Dr. Muhammad Munir

The following article focuses on the Islamic Emirate of Afghanistan Rules for the Mujahideen to determine their conformity with the Islamic jus in bello. This code of conduct, or Layha, for Taliban fighters highlights limiting suicide attacks, avoiding civilian casualties, and winning the battle for the hearts and minds of the local civilian population. However, it has altered rules or created new ones for punishing captives that have not previously been used in Islamic military and legal history. Other rules disregard the principle of distinction between combatants and civilians and even allow perfidy, which is strictly prohibited in both Islamic …