Criminal Law Commons^™

Responses To The Ten Questions, Mary Ellen O'Connell

Mary Ellen O'Connell

No abstract provided.

Enhancing The Status Of Non-State Actors Through A Global War On Terror?, Mary Ellen O'Connell

Mary Ellen O'Connell

Soon after September 11, President Bush declared a global war on terrorism and members of terrorist groups "combatants." These declarations are not only generally inconsistent with international law; they also reverse the trend regarding the legal status of international non-state actors. For decades, law-abiding non-state actors, such as international humanitarian aid organizations, enjoyed ever-expanding rights on the international plane. Professor Schachter observed how this trend came at the expense of the nation-state. He also predicted, however, that the nation-state would not fade away any time soon. And, by the late Twentieth Century, the trend toward enhanced status was noticeably slowing. …

Unfunding Terror - Perspectives On Unfunding Terror (Panel One), Jimmy Gurule

Jimmy Gurule

According to the FBI, the September 11, 2001 terrorist attacks against the World Trade Center and the Pentagon that claimed the lives of 2,973 innocent civilians required as much as $500,000 to stage. At the time, al Qaeda, the jihadi terrorist organization responsible for the mass killings, was operating on an annual budget between $30 and $50 million. However, despite the obvious fact that terrorists need money to support their terrorist operations and organizational infrastructure, prior to 9/11, preventing the financing of terrorism was not a priority for the United States or international community. Moreover, a comprehensive legal framework to …

Pretrial And Preventive Detention Of Suspected Terrorists: Options And Constraints Under International Law, Douglass Cassel

Douglass Cassel

No abstract provided.

Chasing Bits Across Borders, Patricia L. Bellia

Patricia L. Bellia

As computer crime becomes more widespread, countries increasingly confront difficulties in securing evidence stored in electronic form outside of their borders. These difficulties have prompted two related responses. Some states have asserted a broad power to conduct remote cross-border searches - that is, to use computers within their territory to access and examine data physically stored outside of their territory. Other states have pressed for recognition of a remote cross-border search power in international fora, arguing that such a power is an essential weapon in efforts to combat computer crime. This Article explores these state responses and develops a framework …

Border Searches In The Age Of Terrorism, Robert M. Bloom

Robert Bloom

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have …

Rights, Culture, And Crime: The Role Of Rule Of Law For The Women Of Afghanistan, Mark A. Drumbl

Mark A. Drumbl

This Article explores the role of rule of law in redressing crimes and human rights abuses committed against the women of Afghanistan. Mainstream discourse approaches the situation binarily, obliging women to choose between international and often distant human rights, on the one hand, or proximate cultural/religious norms, on the other, in order to adjudicate gender crimes. This can lead either to externalized justice or, in the case of the implementation of Afghan local law, to renewed victimization of women in the name of redressing abuses suffered by other women. Local law in Afghanistan is reflected in codes such as the …

A Spectrum Of International Criminal Procedure: Shifting Patterns Of Power Distribution, Jessica S. Peake

Jessica S Peake

International criminal procedure is characterized by a fundamental structural shift in the allocation of power between the actors in a criminal trial – the judges, Prosecution and defense - away from that traditionally ascribed under an adversarial system and towards the power distribution structure more common to the inquisitorial system. By looking at the Statutes and RPEs of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), it is possible to identify varying degrees of power shifts in each court: across each we see a …

The Crisis Of A Legal Framework: Protection Of Victims Of Human Trafficking In The Bulgarian Legislation, Vladislava Stoyanova

Vladislava Stoyanova

The Council of Europe Group of Experts on Action against Trafficking in Human Beings reported that in Bulgaria no adult victim of human trafficking received any assistance and that no adult victim was granted a reflection period. A close examination of the Bulgarian legislative framework could explain this unpromising picture. In this article, I develop three arguments in relation to the Bulgarian legislation on protection of trafficked persons. First, in some respects, Bulgaria has failed to fulfil its international obligations. Second, the national legal framework regulating the conditions under which trafficked person are assisted and protected is surrounded by legal …

The Forgotten Nuremberg Hate Speech Case: Otto Dietrich And The Future Of Persecution Law, Gregory S. Gordon

Gregory S. Gordon

Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against …

The New Moral Turpitude Test: Failing Chevron Step Zero, Mary Holper

Mary Holper

In the waning days of the Bush administration, Attorney General Michael Mukasey decided In re Silva-Trevino, in which he reversed over a century of immigration law precedent by creating a new moral turpitude test. He abandoned the well-entrenched "categorical approach," the mechanism by which immigration judges decide whether a noncitizen is removable for a criminal conviction, and allowed judges to engage in a factual inquiry of whether an offense involves moral turpitude. The Attorney General made such a broad, sweeping change through a process that allowed no input from affected parties, including the individual whose case became the new precedent. …

"First, Do No Harm:" Interpreting The Crime Of Aggression To Exclude Humanitarian Intervention, Joshua L. Root

Joshua L. Root

The yet to be implemented Article 8 bis of the Rome Statute criminalizes, as the crime of aggression, acts of aggression which by their “character, gravity and scale” constitute a “manifest violation” of the Charter of the United Nations. This article argues that Article 8 bis must be construed so as to exclude from the International Criminal Court’s jurisdiction uses of force which are facial violations of the UN Charter but which nonetheless comport with the principles and purposes of the Charter, such as bona fide humanitarian intervention unauthorized by the Security Council. This article applies the Vienna Convention on …

U.S. Institutionalized Torture With Impunity: Examining Rape And Sexual Abuse In Custody Through The Icty Jurisprudence, Allison Rogne

Allison Rogne

It is a well-established principle, both domestically and internationally, that rape is torture when suffered as part of confinement. It is also well documented, both domestically and internationally, that rape is rampant in U.S. prisons. And it is well established, both domestically and internationally, that those who torture should not do so with impunity, that that impunity is an affront to civilization and the human rights principles to which we all strive. And yet, in U.S. prisons, shocking numbers of women are systematically raped and sexually abused by those that would rehabilitate them. Female prisoners are victims of vaginal and …

An Exploratory Study Of Investment Compliance Management In The Enron Collapse, Valencia Tamir Johnson Dr.

Valencia T Johnson

This paper is to critique a thesis titled An Exploratory Study of Investment Compliance Management in the Enron Collapse (2013). This thesis can be found on the IBLS database, and on the Thomas Jefferson School of Law record database. This paper mentions the Enron scandal that played a major role in shaking investors’ and stakeholders’ confidence, in part because the corporation’s administrators were able to conceal its losses for nearly five years. This thesis examines the history of Enron and describes the circumstances leading up to its collapse in 2001, paying particular attention to the violation of corporate governance laws …

A Decade Of Progress: Promising Models For Children Found In The Turkish Juvenile Justice System, Brenda A. Mckinney, Lauren Salins

Brenda A McKinney

Turkey has improved its approach to interacting with children in conflict with the law over the past decade, moving closer to a system that ensures its children the opportunity to strive for a better future. This Article focuses on two promising Turkish reforms that hold potential to improve juvenile justice systems internationally, namely: open model incarceration and Turkey’s approach to diversion. This Article demonstrates how a child-centered juvenile justice system can improve public safety and outcomes for youth. It also addresses potential challenges to each model and identifies broader issues that may require reform.

Speech Along The Atrocity Spectrum, Gregory S. Gordon

Gregory S. Gordon

In the abstract, speech may have much intrinsic value with its power to facilitate democracy, self-actualization, and good will. But, in certain contexts, it can also be quite deleterious, spawning division, ignorance, and hatred. Within the crucible of atrocity, speech may be similarly Janus-faced. Its power to prevent mass violence is indubitable. But its capacity for enabling mass violence is similarly unquestionable. So the issue arises: when and how may speech work for good or ill in relation to atrocity? This Article grapples with that question. And, in doing so, it finds that the relationship between speech and atrocity should …

International Money Laundering: The Need For Icc Investigative And Adjudicative Jurisdiction, Michael R. Anderson

Michael Anderson

Money laundering is one of the most pressing issues in the realm of international financial crimes. One of the biggest issues involved in international money laundering is the problem of adjudication. There is no international organization that currently hears these sorts of claims, forcing nations to adjudicate these crimes on their own, often without adequate resources to effectively investigate and enforce their money laundering statutes.

This article argues that, in order to more effectively prevent and adjudicate international money laundering offenses, the International Criminal Court should adopt an international money laundering statute designating these activities as a crime within the …

Power-Sharing, Post-Electoral Contestations, And The Dismemberment Of The Right To Democracy In Africa, Rowland Cole

rowland cole

While Africa has made recent significant democratic gains, the problem of rigged elections tends to persist. Elections in Africa mostly tend to lack transparency and are often skewed in favour of the incumbent. Recent events on the continent have shown the tendency of incumbents to manipulate electoral processes so as to remain in power. This often leads to violent backlash from those who believe that they have been robbed of electoral victory. In some instances, the violence has spiralled out of control, requiring regional intervention. The African Union (AU) tends to resolve these disputes by resorting to power-sharing. However, power-sharing …

Accountability For System Criminality, Mark A. Drumbl

Mark A. Drumbl

Not available.

'Lesser Evils' In The War On Terrorism, Mark A. Drumbl

Mark A. Drumbl

No abstract provided.

The Expressive Value Of Prosecuting And Punishing Terrorists: Hamdan, The Geneva Conventions, And International Criminal Law, Mark A. Drumbl

Mark A. Drumbl

In Hamdan v. Rumsfeld, the United States Supreme Court ruled that the military commissions that had been proposed by the Executive to prosecute a small number of detainees captured in the 'war on terror' could not proceed. In response to the Hamdan decision, Congress enacted a new military commission structure in the 2006 Military Commissions Act (MCA), which President Bush signed on October 17, 2006. The MCA establishes military commissions for aliens classified as unlawful enemy combatants. It lists the crimes chargeable by such commissions. The MCA also amends domestic legislation - for example, the War Crimes Act - initially …

Looking Up, Down And Across: The Icty's Place In The International Legal Order, Mark A. Drumbl

Mark A. Drumbl

Not available.

Victimhood In Our Neighborhood: Terrorist Crime, Taliban Guilt, And The Asymmetries Of The International Legal Order, Mark A. Drumbl

Mark A. Drumbl

This Article posits that the September 11 attacks constitute nonisolated warlike attacks undertaken against a sovereign state by individuals from other states operating through a non-state actor with some command and political structure. This means that the attacks contain elements common to both armed attacks and criminal attacks. The international community largely has characterized the attacks as armed attacks. This characterization evokes a legal basis for the use of force initiated by the United States and United Kingdom against Afghanistan on October 7, 2001. Notwithstanding the successes of the military campaign and the need for containment of terrorist activity, this …

Pluralizing International Criminal Justice, Mark A. Drumbl

Mark A. Drumbl

This Review Essay of Philippe Sands' (ed.) From Nuremberg to the Hague (2003) explores a number of controversial aspects of the theory and praxis of international criminal law. The Review Essay traces the extant heuristic of international criminal justice institutions to Nuremberg and posits that the Nuremberg experience suggests the need for modesty about what criminal justice actually can accomplish in the wake of mass atrocity. It also explores the place of one person's guilt among organic crime, the reality that international criminal law may gloss over criminogenic conditions in its pursuit of individualized accountability, the possibility of group sanction …

Collective Violence And Individual Punishment: The Criminality Of Mass Atrocity, Mark A. Drumbl

Mark A. Drumbl

There is a recent proliferation of courts and tribunals to prosecute perpetrators of genocide, war crimes, and crimes against humanity. The zenith of this institution-building is the permanent International Criminal Court, which came into force in 2002. Each of these new institutions rests on the foundational premise that it is appropriate to treat the perpetrator of mass atrocity in the same manner that domestic criminal law treats the common criminal. The modalities and rationales of international criminal law are directly borrowed from the domestic criminal law of those states that dominate the international order. In this Article, I challenge this …

Por Um Law No Mundo: Fundamentos Jusfilosóficos Do Instituto Da Adoção Como Direito Humano, Paulo Barrozo

Paulo Barrozo

Este ensaio articula os fundamentos jusfilosóficos do direito humano e cosmopolita dos jovens privados de autêntica relação pais-filhos de serem adotados, tendo assim acesso à experiência de crescer como fihas ou filhos. Esta visão jusfilosófica da adoção como direito humano é contraposta à abordagem, até então predominante, consequencialista-filantrópica da adoção. Uma vez apresentados os fundamentos jusfilosóficos em questão, cinco principais distinções emergem entre a adoção como direito humano e a visão tradicional da adoção. Primeiro, a perspectiva da adoção como direito humano reconhece o fato de que negligência e abuso de jovens é proporcionalmente e em termos absolutos mais frequente …

“Germans Are The Lords And Poles Are The Servants”: The Trial Of Arthur Greiser In Poland, 1946, Mark Drumbl

Mark A. Drumbl

No abstract provided.

The Innocent Defendant’S Dilemma: An Innovative Empirical Study Of Plea Bargaining’S Innocence Problem, Lucian Dervan, Vanessa Edkins

Lucian E Dervan

In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the …

What May Be The Possible Reservations Of Turkey To Access The Icc Rome Statute, Devrim Aydin

devrim aydin

No abstract provided.

Impunity Writ Large: A Study Of Crimes Committed During Anti-Veerappan Operations, Saumya Uma

Dr. Saumya Uma