Digital Commons Network^™

U.S. Mutual Assistance To Colombia: Vague Promises And Diminishing Returns, Luz Estella Nagle

Fordham International Law Journal

This Article addresses mutual assistance between the United States and Colombia and the issues surrounding the drug war. Part I examines past and present cooperative agreements, the goals of the agreements in the context of national and regional security, and the reasons the agreements have or have not succeeded. Part II discusses current U.S. aid policy toward Colombia and the problems the United States will face if assistance proceeds as planned. Part III presents a critical view of Colombia as a nation unable to deal successfully with its many political, social, and moral crises, and incapable of living up to …

Defense Requests For International Judical Assistance: The U.K. Perspective, Christopher Murray

Fordham International Law Journal

The purpose of this Essay is to examine the machinery for providing evidence to defendants in foreign proceedings and the extent to which there is equality of arms and opportunity between the prosecutor and defendant when obtaining evidence from abroad in U.K. proceedings. This Essay will also identify the new problems that are starting to emerge when such equality is threatened. To do so, it explores the mechanism by which mutual assistance is governed in the United Kingdom - the Criminal Justice (International Co-operation) Act of 1990.

Bases For Refusing International Extradition Requests - Capital Punishment And Torture, Ved P. Nanda

Fordham International Law Journal

This Essay is an attempt to contribute to the scholarly investigation into how to reconcile the complementary and competing goals of protecting national security in the interest of law enforcement while still guaranteeing the protection of basic human rights of defendants. It focuses on two issues - capital punishment and torture - which form the bases for state refusal to extradite fugitives.

Extradition, Evidence Gathering, And Their Relatives In The Twenty-First Century: A U.S. Defense Counsel Perspective, Bruce Zagaris

Fordham International Law Journal

The United States is serving as a laboratory to resolve the tension between globalization, rising transnational criminality, and the demand for enhanced human rights. This Essay reviews selected areas of evidence gathering and extradition in transnational crime and closely related areas. The perspective will focus particularly on the rights of defendants.

Never Again?, Sven Alkalaj

Fordham International Law Journal

This article argues that the international community must learn from the genocide in Bosnia and Herzegovina in order to prevent history from repeating itself. It highlights that firm action must be taken to punish the perpetrators of genocide as soon as it is discovered and urges the establishment of a permanent international criminal court. Next it exposes the weaknesses of the ICTY in its inability to apprehend those that were indicted. Finally, it recommends measures that individual nations should implement at a domestic level.

International Human Rights And Standards, Jeremy Greenstock

Fordham International Law Journal

Major undertakings are necessary to translate international human rights from paper to reality. The International Criminal Court is a momentous step towards ratifying the near-universal standards regarding basic human rights during wartime, but the Court—reactive as it is—will not alone suffice. Proactive conflict prevention, through financial assistance and political pressure, is necessary to truly protect civilians from the impact of war. Still, some people may remain in danger. In these cases, the widespread negative impact of serious government human-rights violations, such as genocide, militates against non-intervention.

The Role Of The Icty In The Development Of International Criminal Adjudication, Ivan Simonovic

Fordham International Law Journal

This Essay examines the specific conditions and motives that led to the establishment of the International Criminal Tribunal for the Former Yugoslavia (‘Tribunal‘ or ‘ICTY‘), its features as both a legal and a political institution, and the role of the ICTY in the development of international criminal adjudication. First, this article discusses the establishment of the ICTY. Second, this article discusses the role of the ICTY as a political and legal institution. Third, this article explores the role of the ICTY in the development of international criminal adjudication. Finally, this article evaluates the results of the ICTY to date.

Regina V. Bartle And The Commissioner Of Police For The Metropolis And Others Ex Parte Pinochet: Universal Jurisdiction And Sovereign Immunity For Jus Cogens Violations, Jodi Horowitz

Fordham International Law Journal

This Comment analyzes the recent House of Lords decision that did not recognize that universal jurisdiction existed over jus cogens crimes before the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture” or “Convention”) came into effect, and therefore did not consider Senator Pinochet's acts of torture committed prior to the existence of the Convention. Part I discusses the atrocities committed in Chile, and examines the legal doctrines applicable to prosecuting Senator Pinochet. In this light, Part I discusses the development of universal jurisdiction and its applicability to human rights violations. Part I also …

U.S.-Russian Mutual Legal Assistance Treaty: Is There A Way To Control Russian Organized Crime?, Eugene Solomonov

Fordham International Law Journal

This Comment analyzes U.S. and Russian bilateral cooperation in fighting organized crime and the difficulties associated with this fight. Part I of this Comment presents the historical development of Russian organized crime, its domestic effects, and its internationalization, particularly in the United States. Part I also highlights the Russian government's legislative attempts to combat organized crime. Finally, Part I examines examples of international bilateral cooperation, such as that between Israel and the United States, which can be emulated by the Russian and U.S. authorities. Part II analyzes the existing Mutual Legal Assistance Agreement (“MLAA”) between the United States and the …

Prosecution And Punishment Of The Crime Of Genocide, Johan D. Van Der Vyver

Fordham International Law Journal

Part I of this Article scrutinizes the current definition of genocide in view of its theoretical circumscription in the Genocide Convention and with special reference to the judgment of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu. Part II considers the validity and the application of the principle of universal jurisdiction to the crime of genocide, and the consequent duty of states to bring perpetrators of genocide to justice. Part III focuses on the jurisdiction ratione materia of the ICC regarding the crime of genocide. Part IV will pay special attention to the prosecution of genocide in the …

The Russian Approach: The Fight Against Genocide, War Crimes, And Crimes Against Humanity, Sergey Lavrov

Fordham International Law Journal

Despite some ambiguous periods in Russia’s history, its record in affirming the foundations

of humanism in international relations is unquestionable. The new democratic Russia, which is

faithful to traditions of humanism and mercy, is making strong efforts to defend victims of genocide,

war crimes, and crimes against humanity. The experience of the international community

in combating genocide, war crimes, and crimes against humanity indicates that the fight against

these evils is bound with efforts to support international peace and security. Post-World War II

history indicates that it is the United Nations that is the central figure in the struggle for …

Trips To Thailand: The Act For The Establishment Of And Procedure For Intellectual Property And International Trade Court, Andrea Morgan

Fordham International Law Journal

This Comment examines the extent to which the Intellectual Property and International Trade Court (IPIT) satisfies the intellectual property enforcement provisions of Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Part I presents the legal environment of intellectual property in Thailand before TRIPs, the background of TRIPs, and the enforcement requirements of TRIPs. Part II discusses the legislation creating the IPIT Court, and assesses the enforcement procedures as prescribed by the legislation that created the IPIT Court and as employed by the IPIT Court. Part III argues that the IPIT Court is a positive development because it reduces conflict …

Canada's Approach To Jurisdiction Over Cybertorts: Braintech V. Kostiuk, Daniel P. Schafer

Fordham International Law Journal

This comment explores a judgment in Texas against a Canadian defendant and corresponding suit in Canada seeking to enforce the judgment. The ultimate determination was significant, representing the first time that a Canadian appellate court addressed the impact of the Internet on a Court's adjudicatory decision. The comment explores the difficulty that the internet poses to the doctrine of recognition and enforcement of foreign judgments.

Genocide, War Crimes, Crimes Against Humanity, Mary Robinson

Fordham International Law Journal

This article examines such violations of international human rights as genocide, war crimes, and crimes against humanity. In Part I, the author explores the nature and uniqueness of these crimes. In Part II, the author suggests possible courses of action the international community can take and improvements that can be made in response. Finally, Part III analyzes methods of preventing such crimes from occurring.

From Nuremberg To Rome And Beyond: The Fight Against Genocide, War Crimes, And Crimes Against Humanity, Dieter Kastrup

Fordham International Law Journal

More than 200 years ago in his work "Perpetual Peace,"' Immanuel Kant called for peace and human rights to be protected under international law. Ever since, the United Nations, which was founded in 1945 as part of the worldwide fight against tyranny and heinous crimes, has been considering the idea of setting up a permanent International Criminal Court (or "Court"). Already in 1948, the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948 ("Convention") demanded the creation of an international tribunal. In 1993 and 1994, the Security Council of the United Nations established the …

The Icc's New Legal Landscape: The Need To Expand U.S. Domestic Jurisdiction To Prosecute Genocide, War Crimes And Crimes Against Humanity, Douglass Cassel

Fordham International Law Journal

The United States was one of only seven nations to vote against the treaty. The ensuing debate within the United States has properly focused on whether the United States can and should ratify the treaty or, if not, whether as a non-party the United States should support or oppose the new court. Largely overlooked, however, are two separate but related questions: (1) should the existing, incomplete jurisdiction of U.S. courts over crimes within the ICC Statute be expanded to ensure that such crimes may also be prosecuted in U.S. courts, under universal jurisdiction or other bases allowed by international law?; …

The Future Of Genocide: A Spectacle For The New Millenium?, David M. Smolin

Fordham International Law Journal

The lines between bearing witness and producing entertainment, between genuine outrage and self-righteous apathy can be initially difficult to discern. Such differences lie in the difficult areas of ethics, religion, and the hidden recesses of the human heart. Nonetheless, over thousands of years various world religions have sought to come to terms with the deepest questions pertaining to intention, action, and ethics, and particularly with the manner in which human beings are trained in ways of life or death. This Essay shall include some specifically Christian theological perspectives on the dilemmas that draw us toward the specter of genocide as …

Atrocities, Deterrence, And The Limits Of International Justice, David Wippman

Fordham International Law Journal

Unfortunately, the connection between international prosecutions and the actual deterrence of future atrocities is at best a plausible but largely untested assumption. Actual experience with efforts at deterrence is not encouraging. Before placing too much reliance on deterrence as a basis for supporting international criminal prosecutions, especially over possible alternatives such as truth and reconciliation commissions, we ought at least to consider carefully the obstacles to achieving effective deterrence.

Nato's Actions To Uphold Human Rights And Democratic Values In Kosovo: A Test Case For A New Alliance, Sergio Balanzino

Fordham International Law Journal

On NATO's fiftieth anniversary, we were faced with an unexpected choice: we had to decide whether the notion of common values is only rhetorical flourish or whether it carries real meaning. We made our choice. We decided that values do not only have to be preached, but also upheld. The essay will recount the events leading up to the deteriorating situation in Kosovo and outline the reasons for NATO's decision to take action. Next it will evaluate NATO's success in light of its humanitarian and military goals. Finally it will examine the challenges facing Kosovo and NATO in the future.

Protecting The Rights Of Pediatric Research Subjects In The International Conference On Harmonisation Of Technical Requirements For Registration Of Pharmaceuticals For Human Use, Ann E. Ryan

Fordham International Law Journal

This Comment argues that the parties to the International Conference on Harmonization of Technical Requirements for Regulation of Pharmaceutical Drugs (ITCH) should adopt more specific guidelines for pediatric research than those included in its Good Clinical Practice Guidelines (ICH GCP), and analyzes their attempt to do so in the Draft Guideline on Pediatric Trials. Part I of this Comment outlines the genesis of the current international guidelines for human research and how they relate to pediatric subjects. Part I also explains the human research guidelines of the three principal members of the ICH. Part II describes the function of the …

Sink Or Swim Together? Developments In European Citizenship, Annette Schrauwen

Fordham International Law Journal

This article raises questions related to the rights connected with European citizenship. Furthermore, it gives rise to the discussion of the basis of European citizenship. Finally, it questions the value of European citizenship to the benefit of raising popular support of European integration.

Humanitarian Intervention: Could The Security Council Kill The United Nations?, Inocencio Arias

Fordham International Law Journal

Will 1999 be an annus horribilis (‘horrible year‘) for the United Nations? Some tend to believe the answer is yes. U.N. Secretary General Kofi Annan's important yet controversial speech awhile ago is a timely warning. Criticism of U.N. inaction, inefficiency, and indolence in the case of Kosovo, and, to a certain extent, and even more surprisingly, in East Timor is widespread. The fact that the organization may only act, however, when the U.N. Member States agree is often overlooked. This Essay explores the U.S. attitude toward the U.N., institutional imbalances within the U.N., and possible solutions to problems that arise …

Some Thoughts On Restoration, Reintegration And Justice In The Transnational Context, Mark Andrew Sherman

Fordham International Law Journal

This Essay argues that all actors – prosecutors, judges, and defense counsel – should care about what happens to foreign offenders following a judgment of conviction or entrance of a guilty plea, and that transnational correctional processes should be constructed and used to facilitate restoration of the victim and victimized community, and rehabilitation and reintegration of the offender. This is critical because, as in the domestic context, decisions about where and how foreign offenders are to be punished have much to do with whether justice is achieved for victims, affected communities, and offenders.

Economic Incentives In Representing Publicly-Funded Criminal Defendants In England's Crown Court, Peter W. Tague

Fordham International Law Journal

The flux now engulfing the way in which the defenders of indigent criminal defendants are compensated in England's Crown Court provides a sober lesson for U.S. lawyers. Once, U.S. lawyers, who themselves are appointed to represent indigent defendants, could have cited English practice to support a hefty increase in the meager compensation they receive in many jurisdictions. Spiraling costs in England, however, have brought dramatic changes, and have occurred in a rush. This essay explores compensatory schemes, incentives to reduce the cost of case resolution, and methods to ensure adequate advocacy.

Attacking The Tools Of Corruption: The Foreign Money Laundering Deterrence And Anticorruption Act Of 1999, Juli Fendo

Fordham International Law Journal

This Comment discusses the effect that international organized crime and foreign government corruption has upon money laundering and the resultant need for the FMLDA. Part I discusses the basic elements of money laundering and the criminal actors who launder internationally, and anlyzes existing U.S. legislation designed to combat laundering and problems in the current legislation. Part II explains the legislative history, purpose, and proposed provisions of the FMLDA. Part III advocates adoption of this Act, and argues that the United States should no longer be complicit in the corruption and degradation of foreign governments via U.S. financial institutions.

The Rule Of Non-Contradiction In International Extradition Proceedings: A Proposed Apporach To The Admission Of Exculpatory Evidence, Jacques Semmelman

Fordham International Law Journal

The Gonzalez case is the latest in a growing series of cases that chip away at the Rule of Non-Contradiction. The case, for all practical purposes, entailed a trial on the merits before the extradition magistrate. This Article takes issue with Gonzalez and other cases that erode the Rule of Non-Contradiction. Recognizing the fairness concerns that motivate deviation from the Rule, this Article proposes a modification to it. Specifically, this Article proposes that courts adopt an approach similar to that used in civil cases for deciding a motion for summary judgment. If the accused's evidence is such that no reasonable …

The Concept Of Disclosure Within European Financial Institutions, Peter Nobel

Fordham International Law Journal

I have been asked to make a few remarks regarding Arthur Laby's presentation, but, as everyone knows, it is very hard to discuss anything with the Securities Exchange Commission (“SEC”). As far as I can see, the conceptual interplay of ‘disclosure versus substantive rules,‘ or rather — in its historical order — ‘substantive rules versus disclosure,‘ has not yet been widely discussed in Europe. Let me first set out what I mean by the two approaches as there are probably differences of definition between the United States and Europe, and, indeed, my understanding differs a bit from the one presented …

Defense Strategies Of National Carriers, Romina Polley

Fordham International Law Journal

This Essay will examine strategies implemented by national carriers in the European Union (or ‘EU‘) to preserve their longstanding monopolies that were constructed and protected by Member States against new airlines emerging in the framework of the liberalization of European Community (“EC” or “Community”) air transport. This analysis necessitates an assessment of whether liberalization of air transport in Europe has been a success, and if not, or not completely, what remains to be done to allow new entrants to challenge flag carriers, which still benefit from the advantages attributable to former protectionist regulation.