Law Commons^™

Fixing The Problem Of Incompetent Defense Counsel Before The International Criminal Court, Matthew Catallo

Michigan Journal of International Law

Throughout the latter half of the twentieth-century, defense counsel arguing before international criminal tribunals provided notoriously ineffective assistance. This note examines whether defense counsel similarly fail to provide competent assistance at the International Criminal Court––and if they do so for similar reasons. In examining the ICC’s procedural and regulatory framework, this note highlights the systemic inequities at the Court that favor the prosecution and devalue the defense, thereby hindering the acquisition of competent defense counsel and promoting the retention of incompetent defense counsel.

To address these iniquities, this note promotes various administrative reforms, all of which could be implemented without …

The Possibility Of Prosecuting Corporations For Climate Crimes Before The International Criminal Court: All Roads Lead To The Rome Statute?, Donna Minha

Michigan Journal of International Law

Due to rapid developments in climate science, scientists are now able to quantifiably link significant greenhouse gas emissions caused by major oil and gas corporations to specific climate impacts. These scientific advances have been accompanied by the publication of documents and studies suggesting that the oil and gas industry allegedly had knowledge of climate change as early as sixty years ago, and yet it actively worked to promote climate change denial and to delay governmental regulation on this matter. Though climate-related litigation is proceeding against the industry in different jurisdictions, proceedings brought against oil and gas corporations mainly focus on …

International Courts Improve Public Deliberation, Shai Dothan

Michigan Journal of International Law

The paper starts with the effects of international courts on the broader public and narrows down to their influence on a small elite of lawyers. Part I suggests that international courts captivate the public imagination, allowing citizens to articulate their rights. Part II demonstrates how governments, parliaments, and national courts around the world interact with international courts in ways that improve public deliberation. Part III studies the global elite of lawyers that work in conjunction with international courts to shape policy. Part IV concludes by arguing that the dialogue fostered between international courts and democratic bodies does, in fact, lead …

International Judicial Practices: Opening The "Black Box" Of International Courts, Jeffrey L. Dunoff, Mark A. Pollack

Michigan Journal of International Law

This paper utilizes “practice theory” to identify and analyze the everyday practices of international judges, with particular focus on practices associated with judicial decision-making. Examining judicial practices illuminates a wide range of otherwise hidden activities that shape international judicial opinions; provides a pathway toward uncovering the subjective understandings that international judges attach to their own behaviors; and reveals underlying causal processes and mechanisms that influence tribunal decisions. By opening the “black box” of international courts, the practice turn permits us to shed light on their inner workings, and thereby enrich our understanding of these increasingly important bodies.

Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart

Michigan Journal of International Law

Part I of this article traces the historical trends in the use of expert evidence in international disputes, from the scattered reliance on experts in the nineteenth and early twentieth centuries to the ubiquity of experts in modern disputes. With that perspective, Part II examines how decision makers have attempted to ensure reliability of the expert evidence that is flooding the evidentiary records of international disputes, while Part III outlines the many problems that still remain. Finally, Part IV proposes a non-exhaustive and nonbinding checklist of questions for analyzing the reliability of any type of expert evidence.

Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong

Michigan Journal of International Law

Unlike many types of domestic arbitration where unreasoned awards (often called “standard awards”) are the norm, international commercial arbitration routinely requires arbitrators to produce fully reasoned awards. However, very little information exists as to what constitutes a reasoned award in the international commercial context or how to write such an award. This lacuna is extremely problematic given the ever-increasing number of international commercial arbitrations that arise every year and the significant individual and societal costs that can result from a badly written award. Although this Article is aimed primarily at specialists in international commercial arbitration, the material is also useful …

Trying Terrorism: Joint Criminal Enterprise, Material Support, And The Paradox Of International Criminal Law, Alexandra Link

Michigan Journal of International Law

This Note will examine theoretical problems in ICL and public international law by evaluating the practical implications of applying ICL sources to find criminal liability outside the narrow confines of the international tribunals. It will examine the problems posed by the conflicting standards of the Rome Statute and ICTY jurisprudence as a matter of customary international law, the failure of U.S. courts to effectively confront the contextual and doctrinal analysis necessary to determine the limitations of these sources, and the proper application of these sources to the issues raised in Hamdan II and Al Bahlul. Viewing ICL through the lens …

Targeting And The Concept Of Intent, Jens David Ohlin

Michigan Journal of International Law

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well-settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems — often civil law jurisdictions — prosecutors, judges and even scholars have …

International Law's Erie Moment, Harlan Grant Cohen

Michigan Journal of International Law

The episode put the question starkly: Who fills the gaps in international law and how? A series of tribunals operating under Chapter 11 of the North American Free Trade Agreement (NAFTA) had adopted broader interpretations of vague treaty language than those recommended by the state parties. In response, government ministers from the three state parties, Mexico, Canada, and the United States, operating through the Free Trade Commission (FTC) established by the treaty, adopted "Notes of Interpretation" clarifying their view of the treaty's meaning. International tribunals are generally tasked with examining state practice, either to recognize rules of customary international law …

Legitimizing International Criminal Justice: The Importance Of Process Control, Nancy Amoury Combs

Michigan Journal of International Law

The last two decades have witnessed an astounding transformation of the international legal landscape as the international community has created a series of courts and tribunals to prosecute those accused of genocide, war crimes, and crimes against humanity. As a consequence of this international institution building, prosecutions are currently underway for crimes committed across the globe: in the former Yugoslavia, Bosnia, Sierra Leone, the Democratic Republic of the Congo, and Cambodia, among other places. These international criminal tribunals and particularly the first modern tribunal- the International Criminal Tribunal for the former Yugoslavia (ICTY)-have undergone two significant evolutions. One of these …

Choosing To Prosecute: Expressive Selection At The International Criminal Court, Margaret M. Deguzman

Michigan Journal of International Law

The International Criminal Court (ICC), an institution in its infancy, has had occasion to make only a relatively small number of decisions about which defendants and which crimes to prosecute. But virtually every choice it has made has been attacked: the first defendant, Thomas Lubanga, was not senior enough and the crimes with which he was charged-war crimes involving the use of child soldiers-were not serious enough; the Court should have investigated British soldiers for war crimes committed in Iraq; the ICC should not be prosecuting only rebel perpetrators in Uganda and the Democratic Republic of Congo; the Court's focus …

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. …

Israel, Palestine, And The Icc, Daniel Benoliel, Ronen Perry

Michigan Journal of International Law

In the wake of the Israel-Gaza 2008-09 armed conflict and recently commenced process at the International Criminal Court (ICC), the Court will soon face a major challenge with the potential to determine its degree of judicial independence and overall legitimacy. It may need to decide whether a Palestinian state exists, either for the purposes of the Court itself, or perhaps even in general. The ICC, which currently has 113 member states, has not yet recognized Palestine as a sovereign state or as a member. Moreover, although the ICC potentially has the authority to investigate crimes which fall into its subject-matter …

The Use Of Article 31(3)(C) Of The Vclt In The Case Law Of The Ecthr: An Effective Anti-Fragmentation Tool Or A Selective Loophole For The Reinforcement Of Human Rights Teleology?, Vassilis P. Tzevelekos

Michigan Journal of International Law

In Part I the Article will briefly introduce the question of the fragmentation of international law, and will more extensively delineate the role that the ILC attributed to Article 31(3)(c) and the ILC's expectations regarding its success in this role. Next, Part II will give an overview of the special elements of the ECHR socio-normative environment, which gave rise to the case law into which Article 31(3)(c) came into force. The Article will argue that, in addition to benefiting from the very special nature of the ECHR, the Strasbourg Court also has a significant number of interpretative tools that allow …

A Critical Guide To The Iraqi High Tribunal's Anfal Judgement: Genocide Against The Kurds, Jennifer Trahan

Michigan Journal of International Law

In the Anfal trial, the Iraqi High Tribunal (IHT or the Tribunal) in Baghdad convicted former Iraqi high officials of genocide, crimes against humanity, and war crimes. Unlike its predecessor-the Dujail trial-the Anfal trial included the presentation of a high volume of documentary and eye-witness evidence. This evidence clearly revealed the existence of a genocidal campaign by the former Iraqi government and military that eliminated an estimated 182,000 Iraqi Kurds in 1988, as part of the eight-phased "Anfal campaign" (the Anfal). Relying on this and other evidence, judges in the Anfal Trial Chamber explained fairly persuasively how genocide, crimes against …

The Pace Of International Criminal Justice, Jean Galbraith

Michigan Journal of International Law

For all the discussion, the pace of international criminal justice has not received careful consideration. Instead, there is uncritical acceptance that international criminal tribunals move slowly, and debate only over whether this slowness is inevitable and whether the tribunals are nonetheless worthwhile. But given how central the pace of international criminal justice is to considerations of its effectiveness-and indeed its legitimacy-it is crucial to understand both what pace should be reasonably expected and what pace actually occurs. This Article undertakes this project.

The Victims Of Victim Participation In International Criminal Proceedings, Charles P. Trumbull Iv

Michigan Journal of International Law

This Article proceeds as follows. Part I discusses the emerging norms regarding victims' rights in international law and the factors that influenced the victim participation scheme in the Rome Statute. Section A focuses on the victims' rights movement in domestic and international law; Section B examines the case law on victim participation from several treaty-based international human rights tribunals; and Section C explains how criticisms of the ICTY and the ICTR resulted in extensive rights for victims in the ICC. Next, Part II explains the statutory framework that governs the victims' role in ICC proceedings. It then discusses the emerging …

An Unrecognized State In Foreign And International Courts: The Case Of The Republic Of China On Taiwan, Pasha L. Hsieh

Michigan Journal of International Law

This Article provides a comparative analysis of the status of the Republic of China on Taiwan in foreign and international settings. Most existing literature written from the traditional public international law perspective focuses on Taiwan's separate statehood from China. This Article addresses an important pragmatic issue that international courts and courts in foreign countries frequently face: whether Taiwan is a "foreign State" for particular salutatory purposes in judicial proceedings. Part I of this Article provides an overview of China-Taiwan relations and the status of Taiwan under international law. I argue that the ROC on Taiwan has been a sovereign State …

Is Poetry A War Crime? Reckoning For Radovan Karadzic The Poet-Warrior, Jay Surdukowski

Michigan Journal of International Law

This Note will suggest that the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) can use Karadzic's texts and affectations to warrior poetry in the pretrial brief and in admitted evidence, if and when Karadzic ultimately appears for trial. The violent nationalism of radio broadcasts, political journals, speeches, interviews, and manifestos have been fair game for the Office of the Prosecutor to make their cases in the last decade in both the Yugoslavia and Rwanda Tribunals. Why should poetry, perhaps the most powerful maker of myth and in the Yugoslavia context, a great mover …

Pros And Cons Ensuing From Fragmentation Of International Law, Gerhard Hafner

Michigan Journal of International Law

The system of international law has become increasingly fragmented, particularly since the end of the Cold War. This paper intends to present the main features of this development and its implications.

Multiple International Judicial Forums: A Reflection Of The Growing Strength Of International Law Or Its Fragmentation?, Pemmaraju Sreenivasa Rao

Michigan Journal of International Law

The main thrust of this presentation is to suggest that the creation of multiple international judicial tribunals is a function of the ever-expanding nature of international law and that the creation of such tribunals is a sign of the growing maturity of international law. While it is admitted that these tribunals have to be sensitive to the needs of promoting the unity and integrity of international law, a brief look at the available evidence of their functioning so far has revealed no cause for concern of fragmentation. The author will look specifically at the working of the International Tribunal for …

International Legal Pluralism, William W. Burke-White

Michigan Journal of International Law

This symposium has sought to examine the fragmentation of the international legal system. Such a task presupposes that international law is, in fact, undergoing some form of fragmentation. A range of recent scholarship has described this so-called fragmentation in various ways and generally considered it a negative development, a threat to the legal system as we know it. This commentary challenges both these assumptions by suggesting that international law is not fragmenting, but rather is being transformed into a pluralist system. Instead of being undermined by fragmentation, the rules, the institutions, and practices of the international legal order can be …

Fragmentation Of International Law And Establishing An Accountability Regime For International Organizations: The Role Of The Judiciary In Closing The Gap, Karel Wellens

Michigan Journal of International Law

In the mid-nineties, the Editorial Board of the Netherlands Yearbook of International Law decided to select the diversity in secondary rules and the unity of international law as a topic to celebrate the Yearbook's twenty-fifth anniversary. The focus was on sources, responsibility, countermeasures, and dispute settlement, thus reflecting Hart's secondary rules of recognition, change, and adjudication.

Beyond State Sovereignty: The Protection Of Cultural Heritage As A Shared Interest Of Humanity, Francesco Francioni

Michigan Journal of International Law

In this paper the author will try to explore the topic from a different perspective: i.e. the emergence of cultural heritage as part of the shared interest of humanity, with the consequent need for international law to safeguard it in its material and living manifestations, including the cultural communities that create, perform and maintain it. Culture in itself is not extraneous to the formation of the modern nation State. Especially in the history of nineteenth century Europe, culture as language, religion, literary and artistic traditions provided the cement and the legitimizing element to support the claim to independent statehood.

Lessons From The Protracted Mox Plant Dispute: A Proposed Protocal On Marine Environmental Impact Assessment To The United Nations Convention On The Law Of The Sea, Maki Tanaka

Michigan Journal of International Law

Although the ITLOS order attempted to facilitate dialogue between the parties, the Tribunal was incapable of addressing the root cause of the MOX plant controversy, namely the lack of an adequate mechanism for transboundary environmental impact assessment at the onset of the conflict under UNCLOS. Similarly, the OSPAR and Annex VII tribunals have failed to bring about the efficient resolution of this procedural environmental dispute. This Article addresses the prevention of similar incidents by proposing the creation of a marine environmental impact assessment protocol to UNCLOS to make assessment procedures operational from the initial stage of controversial projects.

Sexual Slavery And The International Criminal Court: Advancing International Law, Valerie Oosterveld

Michigan Journal of International Law

This Article explores the advancement of the international crime of sexual slavery, from its initial inclusion in the Rome Statute of the International Criminal Court through further development in the delineation of the ICC's Elements of Crime document. This Article begins with a detailed exploration of the negotiation process that led to the inclusion of the crime of sexual slavery in the Rome Statute. The first Section describes the decision to include both sexual slavery and enforced prostitution as crimes, as well as the debate on listing sexual slavery as a crime separate from that of enslavement. Next, the Section …

Continuing Crimes In The Rome Statute, Alan Nissel

Michigan Journal of International Law

One of the most ambitious goals of the International Criminal Court is to balance the ideal of ending impunity with the legalistic protection of the accused from the arbitrary application of law. Accordingly, the main task of this Article will be to determine when continuing crimes will fall under the jurisdiction of the International Criminal Court according to the established primary and secondary sources of international law-i.e., within the rule of law.

Some Troubling Elements In The Treaty Language Of The Rome Statute Of The International Criminal Court, Catherine R. Blanchet

Michigan Journal of International Law

This Note will examine problems that arise from the language of the Rome Statute itself. Part II will examine the potential strategic uses of the Rome Statute's jurisdictional aspects. It will also examine how the fairness concerns raised by this potential usage are exacerbated when the potential State abuser is a permanent member of the Security Council. Part III will look at the language of the Rome Statute's definition of crimes against humanity. It will also examine the various and varying interpretations of this language by the scholars and commentators who have examined the issue.

Blending Criminal Procedure At The Ad Hoc Tribunals, William A. Schabas

Michigan Journal of International Law

Review of International Criminal Evidence by Richard May & Marieke Wierda

Multicultural Jurisdictions At The National And International Levels, Christina L. Brandt-Young

Michigan Journal of International Law

Review of Multicultural Jurisdictions: Cultural Differences and Women's Rights by Ayelet Shachar