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The Yugoslav Truth And Reconciliation Commission: A Shaky Start, Jelena Pejic

Fordham International Law Journal

The purpose of this Essay is to examine the establishment of the Yugoslav Truth and Reconciliation Commission and to draw some early conclusions on whether it will be capable of rendering the facts that I would so desperately like my uncle to face. The first part will deal with the need for a Truth and Reconciliation Commission, while the second part will outline and then comment on its basic documents. The assumption is that the reader is basically familiar with the work of similar commissions around the world and the text will therefore not attempt to repeat the literature on …

Was Genocide Committed In Bosnia And Herzegovina? First Judgments Of The International Criminal Tribunal For The Former Yugoslavia, William A. Schabas

Fordham International Law Journal

There are to date some six significant judicial pronouncements dealing with the interpretation and application of article 4--genocide - of the ICTY Statute: two Rule 61 hearings; the Trial Chamber rulings in Jelisic, Krstic, and Sikirica; and the Appeals Chamber decision in Jelisic. In the course of these judgments, the ICTY has made important pronouncements about the actus reus of genocide, the nature of the protected groups, the quantitative dimension of the crime, and the concept of intent.

It is now nearly a decade since international justice began examining whether genocide was committed in Bosnia. Astonishingly, the really big question-and …

Unbundling Ge/Honeywell: The Assessment Of Conglomerate Mergers Under Ec Competition Law, Götz Drauz

Fordham International Law Journal

A careful approach needs to be taken by antitrust authorities in the assessment of the possible exclusionary effects of conglomerate mergers on competitive conditions. In general, conglomerate mergers will raise concerns when they make the leverage of market power possible, thus having as their effect or object a foreclosure of the market to effective competition. The resulting competitive harm stems from the accumulation of substantial market power across complementary products or product ranges that, not being based on normal business performance or competition on the merits, may substantially reduce consumers' choice and ultimately lead to higher prices and a loss …

Policing Undercover Agents In The United Kingdom: Whether The Regulation Of Investigatory Powers Act Complies With Regional Human Rights Obligations, Cara Hirsch

Fordham International Law Journal

This Comment explores the background of the conflict in Northern Ireland and an example of alleged past corruption in the UK security forces' use of covert agents. It discusses the legal background surrounding the enactment of RIPA, including the direct legislative history of the Act and the Act's indirect history, as evidenced through decisions of the European Court of Human Rights. It also examines the statutory framework of RIPA focusing on the provisions that serve as a check on the use of covert human surveillance in the United Kingdom and Northern Ireland. Finally, this Comment argues that RIPA is insufficient …

Www.Swissbankclaims.Com: The Legacy And Morality Of The Holocaust-Era Settlement With The Swiss Banks, Michael J. Bazyler

Fordham International Law Journal

This Essay discusses the post-settlement process following the claims made against Union Bank of Switzerland (“UBS”) and Credit Suisse by survivors of the Holocaust and their heirs. The author analyzes the settlement and provides both a legal and moral accounting of this litigation. This Essay is a continuation of the author's earlier writings on the subject.

Promise Unfulfilled: Law, Culture, And Women's Inheritance Rights In Ghana, Jeanmarie Fenrich, Tracy E. Higgins

Fordham International Law Journal

This Report presents the findings of a Fordham delegation. It consists of three parts. Part I sets out Ghana's obligations under international law as they relate to issues of women's equality generally and inheritance rights specifically. Part II describes the sources of Ghanaian law relevant to the issue. Part II begins with a very general description of the Ghanaian family. It then proceeds to analyze in some detail customary law governing marriage and property, including the customary law of intestate succession, which governed estates prior to 1985. Part II then describes both constitutional and statutory law relevant to intestate succession, …

Current Apathy For Coming Anarchy: Building The Special Court For Sierra Leone, Nicole Fritz, Alison Smith

Fordham International Law Journal

Part I of this Article examines the chronology of the decade-long conflict in Sierra Leone. It provides an illuminating backdrop against which the Special Court may be assessed and highlights particular features that the institutional design of the Special Court would have to accommodate. Part II explores the precedents for the Special Court. Specifically, it considers the establishment of the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the International Criminal Tribunal for Rwanda ("ICTR"), and the impetus behind the International Criminal Court, developments that parallel in time the unfolding of Sierra Leone's conflict. Part III subjects particular features …

The Prosecution Of Persons Who Sexually Exploit Children In Countries Other Than Their Own: A Model For Amending Existing Legislation, Daniel Edelson

Fordham International Law Journal

Part I of this Note describes child sex tourism, focusing on both the tourists and their victims. Additionally, Part I discusses extraterritorial legislation as a means to combat child sex tourism. Part II presents country specific examples of extraterritorial legislation against the sexual exploitation of children. Part III sets forth a model of extraterritorial legislation against child sex tourism as well as non-legislative steps that countries should take in response to child sex tourism. Finally, Part III recommends changes that the United States should adopt to more effectively address child sex tourism.

The Working Group On Aggression At The Preparatory Commission For The International Criminal Court, Silvia A. Fernandez De Gurmendi

Fordham International Law Journal

The Working Group on aggression has tackled both main issues referred to in article 5 of the Rome Statute and Resolution F, namely the definition of the crime and the conditions of exercise of jurisdiction by the Court. For some participants these two issues are closely interrelated to the point that one cannot be considered without the other. Without prejudice to the substance of this view, in practice, a separate debate has taken place to allow an orderly discussion of each aspect of the problem.

Discussions during and after Rome demonstrate that there is no easy solution to any of …

The Draft Budget For The First Financial Period Of The Court , Rolf Einar Fife

Fordham International Law Journal

The preparatory work before the entry into force of the Rome Statute of the International Criminal Court (“Rome Statute” or “Statute”) is nearing completion. Basic normative structures governing the establishment and work of the future International Criminal Court (“Court”) have been negotiated. With the discussions on the first draft Budget (“Budget”) and other issues related to the administrative and financial operation of the Court, preparations have taken a significant “practical turn.” The fundamental aim of the Budget is to translate the objectives of the Court in monetary terms and to provide the resources needed by the Court's organs and the …

Rule Of Procedure Of The Assembly Of States Parties To The Rome Statute Of The International Criminal Court , Saeid Mirzaee Yengejeh

Fordham International Law Journal

In this Essay, the author intends to elaborate only on those Rules that are unique, or were the subject of lengthy discussion in the working group. It is practically impossible to discuss all rules contained in the Rules of Procedure. Before beginning, one point needs to be clarified. There are a number of rules in the Rules of Procedure that simply repeat the provisions of the Statute. This was a conscious decision made by the working group, which included harmless repetitions in order to provide a handy set of rules for future delegates to the Assembly that will cover all …

International Criminal Justice From Paper To Practice - A Contribution From The International Criminal Tribunal For Rwanda To The Establishment Of The International Criminal Court, Adama Dieng

Fordham International Law Journal

The international society's pursuit of international criminal justice entails the creation of a stateless jurisdiction with international scope that holds individuals, rather than States, responsible. As the institutions mandated to exercise international criminal jurisdiction begin to develop their operations, it becomes clear that the execution of justice entails a wide range of policy decisions normally undertaken by the State, in terms of legal aid, policing, education, and information, to mention but a few areas. The International Criminal Court may draw upon the wealth of operational experience of the Tribunals in these areas, but will nonetheless continue to develop its own …

The Cooperation Of States With The International Criminal Court , Valerie Oosterveld, Mike Perry, John Mcmanus

Fordham International Law Journal

This Article explores the various cooperation obligations included within the Rome Statute related to arrest and surrender; investigation and evidence gathering; privileges and immunities of Court officials; witness protection; enforcement of ICC sentences, fines, and forfeiture orders; and offenses against the administration of justice. The nature of each obligation will be discussed within the context of the Rome Statute itself, its negotiation history, and a comparison of how Canada, Switzerland, and the United Kingdom have implemented their obligations to cooperate with the ICC into their domestic law, to the end of providing technical assistance to States undertaking the important task …

The Case Against The International Criminal Court , Lee A. Casey

Fordham International Law Journal

This article argues against participation by the United States in the International Criminal Court. The article attempts to show that participation in the ICC regime would be inconsistent with American democracy, inimical to American national interests and would violate the Constitution. Were the United States to become a State party to the Rome Statute, it would, for the first time since July 4, 1776, acknowledge the superior authority of an institution neither elected by the American people, nor accountable to them for its actions. Not surprisingly, ratification of the Rome Statute also would violate the Constitution

The Right Of A Minor In Israel To Participate In The Decision-Making Process Concerning His Or Her Medical Treatment, Yehiel S. Kaplan

Fordham International Law Journal

The Article raises questions concerning the validity of the age of eighteen years as the youngest age allowing independent consent of a minor in Israel to his or her medical treatment. One of the primary suggestions in the Article is that there is a need to apply the informed consent doctrine to the medical treatment of Israeli and other minors who possess the appropriate capacities deemed necessary for comprehending the full implication of their consent. The authors believe that the doctrine of “developing capacities,” as formulated in Article 12 of the U.N. Convention on the Rights of the Child, to …

Alientating "Human" From "Right": U.S. And Uk Non-Compliance With Asylum Obligations Under International Human Rights Law, Inna Nazarova

Fordham International Law Journal

Snapshot of the state of asylum seekers' rights in the United States and the UK at the time it was written. It provides an overview of U.S. and UK obligations to asylum seekers under international human rights law. The Comment also discusses the basics of U.S. and UK domestic law and procedure relevant to claims for asylum. The author advocates that the United State and the UK adopt a comprehensive approach to preserve asylum seekers' rights and concludes that domestic law should not become a pretext for human rights violations of asylum seekers in the post-September 11th world.

Keynote Address, Stuart Eizenstat

Fordham International Law Journal

Keynote address given by the Clinton Administration's leader on Holocaust-era issues as Special Representative of the President and Secretary of State. The address covered the details of major agreements with the Swiss, Germans, Austrians, and French concerning monetary restitution. The adddress provides an overview of the development of a push in the U.S. to take on the Swiss banks on behalf of Holocaust survivors and their heirs.

Allocating The Proceeds Of Settlements: Looted Assets, Successor Interests, Recovered Properties, And Settlement Funds, Transcripts

Fordham International Law Journal

Record of panel discussion on how the proceeds of Holocaust restitution settlements should be allocated. Special attention is paid to looted assets, successor interests, recovered properties, and settlement funds.

The Preparatory Commission For The International Criminal Court, Philippe Kirsch, Valerie Oosterveld

Fordham International Law Journal

As it becomes increasingly clear that the International Criminal Court will be set up in the near future, it is important to reflect on the work of the Preparatory Commission for the International Criminal Court. When the Rome Statute was being negotiated, it became very clear that additional documents would be necessary in order to create a fully functioning ICC. At the time, eight such documents were identified and included in Resolution F of the Final Act of the Rome Diplomatic conference. As work on these documents nears completion, States have begun to consider the practicalities of setting up the …

The Agreement On Privileges And Immunities Of The International Criminal Court , Phakiso Mochochoko

Fordham International Law Journal

The purpose of this Essay is to examine the provisions of the Agreement and provide the reader with hopefully useful background information on how compromises that enabled delegates to finalize the Agreement were reached. The hope is that this will augur well for a better understanding of the Agreement by filling some of the gaps that may be apparent from a cursory reading of the Agreement. The views expressed herein are those of the author and do not in anyway bind delegates that negotiated the Agreement.

The International Criminal Court Arrives - The U.S. Position: Status And Prospects , John Washburn

Fordham International Law Journal

This Essay first examines the current official U.S. position on the Court. The second section describes the development of the position as stated by Ambassador Prosper throughout the negotiations for the ICC from 1994 to the present. The final section reviews the prospects for changes in the U.S. position in the early years of the ICC's existence.

Competing Frameworks For Assessing Contemporary Holocaust-Era Claims, Vivian Grosswald Curran

Fordham International Law Journal

Suppression and erasure have played a significant role in the context of the Holocaust. The massive number of deaths yielded a terrible weight of silence, and the erasure of memory occurred in a multiplicity of ways, including: (1) viciously and cynically on the part of many who sought to hide all traces of their crimes; (2) protectively on the part of some who sought to save the lives of the prosecuted; and (3) inevitably as the result of the disappearance of a world and culture destroyed beyond any possibility of resuscitation by the few individuals who survived in displacement and …

The Strategies Used To Achieve Non-Monetary Goals, Transcripts

Fordham International Law Journal

Record of remarks from a panel titled, “The Strategies used to Achieve Non-monetary Goals.” Panelists included law professors, Director of the Office of Special Investigations, United States Department of Justice, and a Holocaust survivor and Treasurer of the American Gathering of Jewish Holocaust Survivors.

Introduction- Twenty-Five Years Of The Fordham International Law Journal, Joseph C. Sweeney

Fordham International Law Journal

A review of the history of the Fordham ILJ. It is a partial reprint of an essay published in 20 FORDHAM INT'L L.J. 1 (1996). The essay attempts to briefly summarize the purpose of the ILJ and past volumes.

Operational Aspects Of Setting Up The International Criminal Court: Building On The Experience Of The International Criminal Tribunal For The Former Yugoslavia , Hans Holthuis

Fordham International Law Journal

This Essay examines the practical experience of the International Criminal Tribunal for the former Yugoslavia ("ICTY") and, in particular, its Registry with regard to operational matters and its relevance within the setup of the International Criminal Court ("ICC"). While the first part is dedicated to the basic legal groundwork that forms the basis for the work of the ICC (including its financial regulations, a multilateral agreement on its privileges and immunities, and the agreement governing the relationship between the ICC and the United Nations), the second part deals with the more practical aspects of the question of how to start …

Necessary Steps For The Creation Of The International Criminal Court , Jennifer Schense

Fordham International Law Journal

This Essay will examine in further detail the legal structure for the actual establishment of the Court and relevant examples, in particular the establishment of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and the International Tribunal on the Law of the Sea. This Essay will also set forth some recommendations for timely action by governments, the United Nations, and other experts, to ensure that a solid foundation for the Court is constructed in a timely way.

The International Criminal Court: Alive, Soon Kicking!, Harry Verwij

Fordham International Law Journal

In this brief essay, I will give an overview of my insights as to what urgent practical steps need to be taken by the Preparatory Commission ("Prepcom"), the Assembly of States Parties ("ASP"), and the Host State, the Netherlands, in order to guarantee the early establishment of the Court. I assume that my readers have a high level of understanding of the Rome Statute, the Prepcom, and other related documents.

An Assessment Of The Icc Statute, Roy S. Lee

Fordham International Law Journal

The large number of signature States together with the current speed of ratification from various regions of the world seems to indicate the general acceptance of the treaty; many of the problems first identified have since been clarified and resolved. It seems reasonable to expect the Rome Statute to come into operation as early as next summer. While it is necessary to ensure effective criminal investigation and prosecution to counter serious human rights violations, we need also to develop additional ways and means for addressing the root causes that led to violations and impunity. Justice is important but justice alone …

Dealing With The Risks And Responsibilities Of Landmines And Their Clearance, Michael Polkinghorne, James Cockayne

Fordham International Law Journal

Part I of this Essay addresses the issues of State responsibility for landmine removal. Part II discusses the various legal issues that landmine removal programs present. It does so by examining: (1) the international obligations that exist; (2) the domestic legal considerations; and (3) some of the issues facing governments who wish to remove landmines by the common measure of contracting out such work to third parties. The central question Part II considers is whether and how States can transfer the risks associated with landmine clearance to contractors.

Along The Spectrum Of Women's Rights Advocacy: A Cross-Cultural Comparison Of Sexual Harassment Law In The United States And India, Louise Feld

Fordham International Law Journal

This Comment compares the development of sexual harassment law in the United States and India. It strives to contribute to this global feminist debate by highlighting the successes and failures of each country's respective anti-harassment protections. It also compares the United States' and India's legal approaches to the problem of workplace sexual harassment. The Comment also discusses the successes and failures of the U.S. and Indian protections in a manner that attempts to minimize the problems present in cross-cultural studies.