Comparative and Foreign Law Commons^™

Taking Judicial Notice Of Genocide? The Problematic Law And Policy Of The Karemera Decision, Ralph Mamiya

ExpressO

On June 16, 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda issued a decision in Prosecutor v. Karemera taking judicial notice of the fact that genocide occurred in Rwanda in 1994. This decision startled many court observers. While no internationally respected commentator would today question whether the Rwanda genocide took place, should such an event be judicially noticed without evidence? This paper examines that question, arguing that the ICTR Appeals Chamber’s expansive use of judicial notice in Karemera was both illogical and unwise. Genocide, whether as an historical fact or legal charge, fails to meet the “common …

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.

Combating Terrorism In Bosnia-Herzegovina: Explaining And Assessing Article 201 Of The Bosnian Criminal Code, Henry M. Lovat

ExpressO

This paper explores the legal measures that have been enacted in Bosnia-Herzegovina (BiH) to counter the threat of terrorism, focusing particularly on the international and domestic political context in which the reform of the Bosnian criminal code was carried out, on the apparent origins of Article 201 of the BiH criminal code in the European Union Framework Decision on Combating Terrorism of June 2002 and on the strengths and weaknesses of this definition in the Bosnian context. The paper argues firstly that the events of 9/11, while certainly of significance, were less salient to the definition of terrorism adopted in …

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole E. Jacoby

ExpressO

U.S. and German courts alike long have struggled to find the proper balance between protecting the privacy rights of criminal suspects and granting law enforcement officials the adequate tools to fight crime. The highest courts in each country have produced different paradigms for determining where the public sphere ends and the private sphere begins. In a series of cases, the U.S. Supreme Court has inquired whether a criminal defendant had a reasonable expectation of privacy when the state conducted a warrantless search of the suspect’s person, premises, or belongings. Germany’s Federal Constitutional Court, in contrast, has asked whether an investigative …

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.

To Charge Or Not To Charge, That Is Discretion: The Problem Of Prosecutorial Discretion In Chile, And Japan's Solution, Kirtland C. Marsh

Washington International Law Journal

Chile’s recent criminal procedure reform is an ambitious program to bring greater transparency, fairness, and effectiveness to the country’s legal system. However, the success of the reform is not assured. To a great extent, the reform’s success will depend on the new national Office of the Public Prosecutor’s ability to enforce laws and direct law enforcement within the confines of the new system. Prosecutors must balance the interests of the Chilean public’s demands for order and convictions with the reform’s underlying principles of impartiality and enhanced rights for defendants. If prosecutors resort to the excesses used by investigating judges under …

Litigating Child Recruitment Before The Special Court For Sierra Leone, Noah B. Novogrodsky

San Diego International Law Journal

In May 2004, the Special Court for Sierra Leone issued a landmark decision finding that an individual may be held criminally responsible for the offense of recruiting child soldiers into armed conflict. As a hybrid tribunal established by the United Nations and the Government of Sierra Leone to try those who "bear the greatest responsibility" for serious violations of international humanitarian law committed during the country's civil war after November 1996, the Special Court is the first international criminal body to indict a person for the crime of recruiting and employing children in war. The decision in the case of …

Brief Of The University Of Toronto International Human Rights Clinic As Amicus Curiae To The Special Court For Sierra Leone, Noah B. Novogrodsky

San Diego International Law Journal

This brief addresses three questions: 1) the illegality of recruiting child soldiers into armed conflict; 2) the application of penal sanctions in international humanitarian law; and 3) the proper application of the principle of nullum crimen sine lege. Part I of our argument will establish that the recruitment of children into armed conflict is and was unquestionably a violation of international humanitarian law at the time the alleged offences took place. Part II will explain when international law permits prosecution of violations of international humanitarian law irrespective of whether penal sanctions are attached. Amici conclude that such prosecutions are permitted …

Europeanizing Self-Incrimination: The Right To Remain Silent In The European Court Of Human Rights, Mark Berger

Faculty Works

Since it came into force in September, 1953, the European Convention on Human Rights has served as a reflection of Europe's movement toward the establishment of common standards of individual human rights and freedoms. The forty-five countries that are currently signatories to the Convention are subject to the jurisdiction of the European Court of Human Rights (ECHR) which was established in 1959 as a mechanism to interpret and enforce the obligations created by the Convention. Although the Convention contains no explicit reference to a right to remain silent, and despite the differing legal systems of the contracting states, the Court …

Christ, Christians & Capital Punishment, Mark Osler

ExpressO

Last year, I came to a startling conclusion: That the debate over the death penalty in the United States is largely among Christians, but has ignored the capital sentencing which is at the center of that faith. The result of this epiphany is Christ, Christians & Capital Punishment.

In this article, I argue that the story of Christ parallels modern capital practice in many respects: Christ was turned in by a paid informant (Judas), arrested in a strategic manner, given an arraignment and stood mute, was tried, convicted and sentenced, appealed to two separate sovereigns, and finally was denied a …

Gender Equality, Social Values And Provocation Law In The United States, Canada And Australia, Caroline A. Forell

ExpressO

In this article I examine and compare the partial defense of provocation as it applies to domestic homicide in Australia, Canada, and the United States on both the gendered-male basis of jealous rage and gendered-female basis of fear. I explain why substantive equality, prevalent under Canadian constitutional law, has not resulted in woman-friendly provocation rules in Canada and the United States and why Australia is the leader in incorporating substantive equality into its provocation doctrine. I conclude that the main reason why some Australian jurisdictions have abolished provocation and others have female-friendly versions of the doctrine is that, unlike Canada …

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …

Prospects For Citizen Participation In Criminal Trials In Japan, Colin P.A. Jones

Washington International Law Journal

A review of The Lay Judge System, by Takashi Maruta (2004).

Domestic Violence In Ghana: The Open Secret, Nancy Chi Cantalupo, Sue Shin, Kay Park, Lisa Vollendorf Martin

Law Faculty Research Publications

No abstract provided.

Dostoyevsky And The Therapeutic Jurisprudence Confession, 40 J. Marshall L. Rev. 41 (2006), Amy D. Ronner

UIC Law Review

No abstract provided.

Second Chance For Justice: Reevaluation Of The United States Double Jeopardy Standard, 40 J. Marshall L. Rev. 371 (2006), Andrea Koklys

UIC Law Review

No abstract provided.

Trial By Jury Involving Persons Accused Of Terrorism Or Supporting Terrorism, Neil Vidmar

Faculty Scholarship

This chapter explores issues in jury trials involving persons accused of committing acts of international terrorism or financially or otherwise supporting those who do or may commit such acts. The jury is a unique institution that draws upon laypersons to decide whether a person charged with a crime is guilty or innocent. Although the jury is instructed and guided by a trial judge and procedural rules shape what the jury is allowed to hear, ultimately the laypersons deliberate alone and render their verdict. A basic principle of the jury system is that at the start of trial the jurors should …

A Comparative Approach To Teaching Criminal Procedure And Its Application To The Post-Investigative Stage, Stephen C. Thaman

All Faculty Scholarship

This article addresses why a comparative perspective should be brought into a basic bar course like criminal procedure. American courts and students should be aware of how other countries process their criminal cases to determine whether we can learn from them. It discusses archetypes of criminal procedure as teaching tools, applications of comparative models in the post-investigative stage of criminal procedure, the right to an oral immediate trial and the right to confront witnesses, and the division of labor between lay and professional judges in deciding facts, guilt, and sentencing. By immersing oneself in comparative law and the history of …

Compelled Self-Reporting And The Principle Against Compelled Self-Incrimination: Some Comparative Perspectives, Mark Berger

Faculty Works

This article examines the tension between mandatory self-reporting and identification statutes and the right to be free of compelled self-incrimination. The author reviews decisions addressing this issue taken by the European Court of Human Rights ('ECtHR'), the Privy Council, and the Supreme Courts of Canada and the United States. He then analyses applicable public policies and assesses the alternative approaches available to accommodate these conflicting interests.

Judicial Participation In Plea Negotiations: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

Current rules in most U.S. jurisdictions prohibit judges from becoming involved in plea negotiations and limit the judges' role to reviewing a plea bargain once it is presented by the parties. The enclosed article surveys three systems that provide for more significant judicial involvement - Germany, Florida, and Connecticut - and suggests that a judge's early input into plea negotiations can render the final disposition more accurate and procedurally just. Based on interviews with practitioners and a review of the case law, the article outlines a model for greater judicial involvement in plea negotiations.

Transnational Criminal Law And Procedure: An Introduction, Sadiq Reza

Faculty Scholarship

What is “transnational” criminal law? One possibility is foreign criminal law, meaning the scope and substance of what is deemed criminal behavior in other lands and the theories that ostensibly justify punishing for such behavior, indeed deeming it criminal in the first place. Another is foreign criminal procedure, the “how” of foreign criminal law’s “what” and “why”: the rules and practices of investigating crime, prosecuting suspected criminals, and adjudicating criminal cases in other lands or systems. More common meanings, judging from articles in U.S. law reviews, are comparative criminal law and comparative criminal procedure, though these might differ from their …

An Economic Model Of Fair Use (With Thomas Miceli), Richard Adelstein

Richard Adelstein

A formal model of the law of fair use.