Law Commons^™

Assessing The International Criminal Court, Beth A. Simmons, Mitchell Radtke, Hyeran Jo

All Faculty Scholarship

One of the most important issues surrounding international courts is whether they can further the dual causes of peace and justice. None has been more ambitious in this regard than the International Criminal Court (ICC). And yet the ICC has been the object of a good deal of criticism. Some people claim it has been an expensive use of resources that might have been directed to other purposes. Others claim that its accomplishments are meager because it has managed to try and convict so few people. And many commentators and researchers claim that the Court faces an inherent tension between …

Brief Amici Curiae On Behalf Of International And Constitutional Law Experts In Support Of Petition For Certiorari, Al Bahlul V. United States , 840 F.3d 757 (D.C. Cir. 2016) (En Banc), Robert D. Sloane, Foley Hoag Llp

Faculty Scholarship

Amici curiae, legal experts in international and constitutional law, believe that a majority of the en banc panel in Bahlul v. United States, 840 F.3d 757 (D.C. Cir. 2016) (en banc), mistakenly affirmed Ali Hamza Ahmad Suliman al Bahlul’s conviction by a military commission for a non-international war crime. The main concurring opinion in that case misconceived how international law defines the jurisdiction of law-of-war military commissions. As amici argue below, it is the Constitution—not international law—that limits the jurisdiction of lawof-war military commissions.

For The Sake Of Consistency: Distinguishing Combatant Terrorists From Non-Combatant Terrorists In Modern Warfare, Alexander Fraser

University of Richmond Law Review

No abstract provided.

Prosecuting Child Soldiers: The Call For An International Minimum Age Of Criminal Responsibility, Brittany Ursini

St. John's Law Review

(Excerpt)

This Note discusses the current state of international law on the MACR and proposes a solution that balances the protection of child soldiers with the rights of the victims harmed by their unlawful conduct. Part I of this Note provides a brief background of child soldiers and closely examines the relevant international law addressing the criminal responsibility of child soldiers. Part II illustrates the deficiencies of current international law and describes how the deficiencies affect and contribute to the competing arguments regarding a MACR. Part III discusses the need for an international MACR. Finally, Part IV proposes an international …

Prosecuting The Material Support Of Terrorism: Federal Courts, Military Commissions, Or Both?, P. Scott Rufener

University of Massachusetts Law Review

This note argues that given the recent changes in the 2009 MCA the overall scheme for prosecuting material support of terrorism offenses is satisfactory (i.e., material support crimes should remain under the jurisdiction of both forums), but that the jurisdiction of military commissions over material support offenses should be limited to those providing material support to further specific acts of terrorism (as opposed to generalized support) and to those giving aid to terrorists or foreign terrorist organizations (hereinafter ―FTOs) in active theaters of war.

Qualified Immunity, Constitutional Stagnation, And The Global War On Terror, Sarah L. Lochner

Northwestern University Law Review

No abstract provided.

Enlightening The Forgotten: Removal Of State Cases Involving Service-Members Into Federal Courts, Michael C. Walsh

Michael C Walsh

No abstract provided.

Kiobel, Extraterritoriality, And The "Global War On Terrorism", Craig Martin

Craig Martin

For the purpose of exploring the issues of extraterritoriality raised in Kiobel v. Royal Dutch Petroleum Co., this project sought to examine how the federal courts have considered extraterritoriality in cases arising in the so-called “global war on terror” (GWOT). The inquiry leads to some new and arguably important observations about extraterritoriality in the GWOT policies and related jurisprudence. The plaintiffs in Kiobel claimed, under the Alien Tort Statute (ATS), that the defendant corporations were liable for complicity in Nigeria’s conduct of indefinite detention, torture, and extrajudicial killing. The U.S. Supreme Court departed from the issue of corporate liability under …

The Push To Criminalize Aggression: Something Lost Amid The Gains?, Mark A. Drumbl

Mark A. Drumbl

The International Criminal Court has jurisdiction over the crime of aggression, but the Rome Statute fails to define the crime. A Special Work- ing Group on the Crime of Aggression, however, has made considerable progress in developing a definition. The consensus that has emerged favors a narrow definition. Three characteristics animate this consensus: (1) that state action is central to the crime; (2) that acts of aggression involve inter- state armed conflict; and (3) that criminal responsibility attaches only to very top political or military leaders. This Article normatively challenges this consensus. I argue that expanding the scope of the …

Kiobel, Extraterritoriality, And The "Global War On Terror", Craig Martin

Maryland Journal of International Law

No abstract provided.

Immoral Waiver: Judicial Review Of Intra-Military Sexual Assault Claims, Francine Banner

Francine Banner

This essay critiques the application of the Feres doctrine and the policy of judicial deference to military affairs in the context of recent class actions against government and military officials for constitutional violations stemming from sexual assaults in the U.S. military. The Pentagon estimates that 19,000 military sexual assaults occur each year. Yet, in 2011, fewer than two hundred persons were convicted of crimes of sexual violence. In the face of such pervasive and longstanding constitutional violations, this essay argues that the balance of harms weighs heavily in favor of judicial intervention. The piece discusses why, from both legal and …

Human Rights Litigation And The National Interest: Kiobel'S Application Of The Presumption Against Extraterritoriality To The Alien Tort Statute, Jonathan Hafetz

Maryland Journal of International Law

No abstract provided.

The Ferrini Doctrine: Abrogating State Immunity From Civil Suit For Jus Cogens Violations, Natasha Marusja Saputo

University of Miami National Security & Armed Conflict Law Review

Article 10 of the Italian Constitution incorporates generally recognized principles of international law. Thus, State immunity from civil suit in the domestic courts of another State——a principle generally recognized in international law——would apply in Italy. However, the protection of fundamental human rights is another generally recognized principle in international law and the ostensible conflict between these two principles has resulted in a series of controversial rulings issued by the Italian Court of Cassation. These rulings allow for the abrogation of State immunity from civil suit in the domestic courts of another State for alleged violations of jus cogens or peremptory …

Prosecuting The Crime Of Aggression In The International Criminal Court, Johan D. Van Der Vyver

University of Miami National Security & Armed Conflict Law Review

No abstract provided.

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

Scholarly Works

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

The Push To Criminalize Aggression: Something Lost Amid The Gains?, Mark A. Drumbl

Scholarly Articles

The International Criminal Court has jurisdiction over the crime of aggression, but the Rome Statute fails to define the crime. A Special Work- ing Group on the Crime of Aggression, however, has made considerable progress in developing a definition. The consensus that has emerged favors a narrow definition. Three characteristics animate this consensus: (1) that state action is central to the crime; (2) that acts of aggression involve inter- state armed conflict; and (3) that criminal responsibility attaches only to very top political or military leaders. This Article normatively challenges this consensus. I argue that expanding the scope of the …

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of International Armed Conflict, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

Faculty Journal Articles and Book Chapters

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

Preferring Defects: The Jurisdiction Of Military Commissions, Madeline Morris, Allison Hester-Haddad

Faculty Scholarship

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson

ExpressO

Although the American military is effectively one of the most potent of international institutions, discussions of its regulation have been oddly domestic. The court-martial – the single most important institution for disciplining military forces, preventing atrocities and punishing offenders – has seen its jurisdiction and procedures hotly debated, but most often by those in uniform or individuals interested in domestic military policy. This paper aims to internationalize the discussion, recognizing that the discipline of American military forces is of major concern to both international law and U.S. foreign policy. By exploring the interaction between a major innovation in international law …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Military Extraterritorial Jurisdiction Act And Its Implications For Private Military Companies, Dustin M. Tipling

ExpressO

Private Military Companies (PMCs) are civilian staffed corporations that provide military (and law enforcement) services, logistics, and support under contract to a government both inside and outside the country’s borders. Prior to Congress passing the Military Extraterritorial Jurisdiction Act, U.S. courts lacked jurisdiction to prosecute civilians accompanying United States’ Armed Forces overseas. This article will specifically address how the United States exercises jurisdiction and prosecutes the civilian employees of PMCs in United States courts for crimes they have committed in foreign countries while working under contract to the United States government.

A Simple Prescription For Texas's Ailing Court System: Stronger Stare Decisis., Andrew T. Solomon

St. Mary's Law Journal

Several Texas Supreme Court Justices have recently criticized Texas’s appellate justice system for its failure to provide consistency and the unfairness it produces, namely how litigants are treated differently despite the identical factual circumstances. Despite the warnings of various Texas Justices, neither the Texas Supreme Court nor the Texas Legislature have done much to rectify the lack of uniform justice received by Texas litigants. Most of the proposals to reform the Texas appellate justice systems’ unfairness have focused exclusively on structural changes. While structural changes could help reduce inconsistent “justice”, these reforms fail to address the main substantive problem—Texas’s weak …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Countering Terrorism: From Wigged Judges To Helmeted Soldiers - Legal Perspectives On America's Counter-Terrorism Responses, Jackson Nyamuya Maogoto

San Diego International Law Journal

This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures an implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN's ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms-law enforcement and conflict management. Part III oves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. This part offers a discussion of the …

United States V. Bean: Shoveling After The Elephant., Pannal Alan Sanders

St. Mary's Law Journal

Over the years Congress has enacted and amended several versions of the United States Code (U.S.C) § 925(c). Several reported cases illustrate the courts’ early efforts to develop a coherent body of jurisprudence with respect to the procedural and substantive aspects of U.S.C. § 925(c) judicial review. Specifically, the § 925(c) denials of relief by the Director before the congressional appropriations ban commenced in 1993. Although the methodology and reasoning behind these decisions differ in their details, several themes are discernable. First, even without the express provisions for judicial review added by the Firearms Owners Protection Act (FOPA), courts consistently …

The Continuing Saga Of Rippling Puddles, Small Handles And Links Of Chains: Wetlands Action Network V. United States Army Corps Of Engineers, Elizabeth A. Roche

Villanova Environmental Law Journal

No abstract provided.

Appeals In The Ad Hoc International Criminal Tribunals: Structure, Procedure, And Recent Cases, Mark A. Drumbl, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Warrantless Arrest Jurisdiction In Texas: An Analysis And A Proposal., Gerald S. Reamey, J. Daniel Harkins

St. Mary's Law Journal

Within the State of Texas, there exist a great number of “peace officers” who are granted a wide range of power and authority. This includes the power to make warrantless arrests and searches pursuant to those arrests. Significant ambiguity exists regarding a peace officer’s jurisdiction. The confusion is largely due to imprecise statutory language and varying judicial interpretations. Article 998 of Texas Revised Civil Statutes, for example, bestowed on city police officers the same powers, authority, and jurisdiction as city marshals. The statute, though, neglected to define the extent of that jurisdiction, or even what “jurisdiction” meant in that context. …

The Law Of The Flag, The Law Of Extradition, The Nato Status Of Forces Agreement, And Their Application To Members Of The United States Army National Guard, Fred W. Beesley, Jr.

Vanderbilt Journal of Transnational Law

With the advent of Project Capstone in 1980, the United States Army adopted a master European war plan which committed virtually every Army National Guard and Army Reserve unit to a large-scale field army for use in the European Theater of Operations. The plan was designed to combat a hypothetical offensive by tank-heavy Warsaw Pact forces through the centuries-old Fulda Gap invasion route in the central region of the Federal Republic of Germany, or through the relatively vulnerable North German Plain.

Actions by Warsaw Pact troops in Poland and Afghanistan increase the likelihood that United States contingency war planning will …