Digital Commons Network^™

U.S. And U.K. Approaches To The War On Terror: The Surveillance Of Religious Worship, Jodie A. Kirschner

University of Miami International and Comparative Law Review

No abstract provided.

Transnational Criminal Law And Procedure: An Introduction, Sadiq Reza

Journal of Legal Education

No abstract provided.

Incorporating Transnational Law In First Year Criminal Law And Procedure Classes, Ellen S. Podgor

Journal of Legal Education

No abstract provided.

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 …

The U.S. View Of The Convention On The Rights Of The Child - Time For Reconsideration, Jonathan Todres, Howard Davidson

Faculty Publications By Year

No abstract provided.

The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman

ExpressO

Peter Irons’ WAR POWERS favors congressional initiative in questions of war and peace but makes a historical argument that our government has strayed from the constitutional design in the service of an imperialist foreign policy. John Yoo’s THE POWERS OF WAR AND PEACE seeks to overthrow the traditional perspective on war powers espoused by Irons in favor of executive initiative in war. Yoo also pursues a revisionist perspective on the treaty power, which favors executive initiative in treaty negotiation and interpretation but insists on congressional implementation so as to minimize the impact of international obligations on domestic law. This Essay …

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

ExpressO

No abstract provided.

The Transition From The Inquisitorial To The Accusatorial System Of Trial: Procedure: Why Some Latin American Lawyers Hesitate , Leonard L. Cavise

ExpressO

The article is born of my experience teaching American-style trial advocacy to over 15 groups of Latin American lawyers coming from countries in transition from the inquisitorial to the accusatorial model. The first part of the article reviews the principal differences in the two systems as it affects trial procedure. The article then reviews those aspects of accusatorial trial proceedings that caused the greatest degree of discomfort to the foreign lawyers. Finally, the article attempts to posit a few recommendations that should help not only to ease the transition process but also to anticipate the next level of procedural and …

Calling The United States' Bluff: How Sovereign Immunity Undermines The United States' Claim To An Effective Domestic Human Rights System, Denise L. Gilman

ExpressO

This article challenges the claims made by the United States that the civil rights system in this country adequately protects human rights, making it unnecessary for the United States to take on additional international human rights commitments. Specifically, the article uses international human rights law and comparative law to analyze the broad sovereign immunity doctrines that protect government actors in the United States from suits for damages even where constitutional violations are in play.

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 …

Analysis Of Certain Aspects Of The “Long-Term Legal Strategy Project For Preserving Security And Democratic Freedoms In The War On Terrorism” Report In Light Of Customary International Law, Michael P. Hatchell

ExpressO

No abstract provided.

Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy

ExpressO

After 14 years of unconscionable wrath against local civilians, including enforced recruitment of thousands of child soldiers, the rebel group The Lord’s Resistance Army (“LRA”) was offered amnesty by the Ugandan government in 2000. However, as the conflict continued unabated, the Ugandan government, for the first time in the history of the Court, referred its case to the International Criminal Court (“ICC”). The ICC Prosecutor announced the beginning of an investigation and issued warrants for seven top LRA officers in October of 2005. The potential ICC prosecution raises many questions about the jurisdiction of the new court, including whether the …

Developing Development Theory: Law & Development Orthodoxies And The Northeast Asian Experience, John K.M. Ohnesorge

ExpressO

None of the orthodox theories about law and economic development produced in recent decades has been based on a study of the "miracle" economies of Northeast Asia, nor have any of these orthodoxies seriously been tested against the Northeast Asian experience of law and development. This article conducts such a test, finding that none of these orthodoxies fares well when its claims are tested against the Northeast Asian experience. Rather than using Northeast Asia's experience to produce yet another orthodoxy, however, this article instead proposes rethinking how we understand the task of legal technical assistance, a rethinking which is based …

The Forgotten Threat: Private Policing And The State, Elizabeth E. Joh

Indiana Journal of Global Legal Studies

What do Disneyland, the Abu Ghraib U.S. military prison, the Mall ofAmerica, and the Y-12 nuclear security complex in Oak Ridge, Tennessee have in common? They have wildly different purposes, but they share a common characteristic as employers of private police. This answer-indicative of the prevalence and numbers of private police today-would have struck the nineteenth -century observer as evidence of a gross failure by the state. Yet that reaction, in turn, would seem odd to us. Vocal support of private police can be found among public police chiefs, lawmakers, and even President Bush.

What kinds of criticisms were once …

The Military Commissions Act, Coerced Confessions, And The Role Of The Courts, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Rules Are Made To Be Broken: How The Process Of Expedited Removal Fails Asylum Seekers, Michele R. Pistone, John J. Hoeffner Esq.

Working Paper Series

Immigration inspectors are authorized to deport persons who arrive at U.S. ports without valid travel documents. This process, which usually occurs within 48 hours and does not allow for judicial review, is called expedited removal. This article begins by summarizing the findings of the few studies allowed access to the process. The authors extrapolate from the studies to demonstrate that thousands of genuine asylum seekers have erroneously been deported via expedited removal. The greatest cause of erroneous deportation is a failure by the agency responsible for the process, Customs and Border Protection (CBP), to follow its own rules. The heart …

Broadening Executive Power In The Wake Of Avena: An American Interpretation Of Pacta Sunt Servanda, Houston A. Stokes

Washington and Lee Law Review

No abstract provided.

The Iraqi High Criminal Court: Controversy And Contributions, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba’athists is one of the most visible of the current efforts to establish criminal accountability for violations of international norms. Juxtaposed against other tribunals, the High Criminal Court has provoked worldwide debate over its processes and its prospects for returning societal stability founded on respect for human rights and the rule of law to Iraq. This article explores in detail the legal basis for the formation of the High Criminal Court under the law of occupation. It addresses the relationship between the Iraqi model of prosecuting crimes …

International Law And Rehnquist-Era Reversals, Diane Marie Amann

Scholarly Works

In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended to overlook the …

The Final Balance Sheet? The International Criminal Court’S Challenges And Concessions To The Westphalian Model, Jackson N. Maogoto

ExpressO

This Article examines the organization and operating principles of the International Criminal Court. Many aspects of the Rome Statute challenge fundamental tenets of the structure of international law existing heretofore. No analysis could address all the aspects of this new international institution and the Article seeks to focus attention on some of its major features impacting on State sovereignty--the focus of this Article. The Article explores the structure and competence of the Court and in particular the powers of the prosecutor, general principles underlying the jurisdiction of the Court, the formulation of the complementarity principle in the Court’s Statute, the …

Non Bis In Idem And The International Criminal Court, Reynaud Neil Daniels

ExpressO

Non bis in idem, or the double jeopardy principle, is a fundamental element of fairness in criminal procedure. At its core, it prohibits the state from repeatedly prosecuting, and punishing, individuals for the same offence. The Rome Statute contains the principle but affords little protection against harassment by contracting parties.

A Giant Without Limbs: The International Criminal Court’S State-Centric Cooperation Regime, Jackson N. Maogoto

ExpressO

The International Criminal Court is one of the great international institutions in mankind’s history with the potential to reconfigure significant aspects of the international system with regard to criminal jurisdiction. But like the international penal institutions before it, the success of the ICC revolves around international cooperation. An institutional check on the ICC’s power is that it will have to work through States. States Parties will be asked to arrest and surrender suspects, investigate and collect evidence, extend privileges and immunities to ICC officials, protect witnesses, enforce ICC orders for fines and forfeiture and, at times, prosecute those who have …

America’S War On Terror: Rattling International Law With Raw Power? , Jackson N. Maogoto

ExpressO

The need for more dramatic targets has led to the new and somewhat exaggerated emphasis on a unilateral right of pre-emptive self-defence by the United States. What is most striking about the new US policy is that it portrays state-sponsored terrorism and rogue states possessing weapons of mass destruction as a new problem, and unilateral action as the only way of dealing with them. It is dangerous to marginalise the UN and increase the role of multilateral global coalitions or unilateral action in policing “evil-doing” as this has the potential to supplant what initially was designed as the role of …

Contemporary Private Military Firms Under International Law: An Unregulated “Gold Rush”, Jackson N. Maogoto

ExpressO

The Article addresses the legal issues raised by the ascendance of contemporary Private Military Firms. This article has as its aim an exploration of the thorny legal issues raised by the commodification of force. It discusses the nature of the contemporary PMF noting that it bears vestiges of yester year mercenaries. It then grapples with their uncertain status under international law despite the fact that they potentially pose problems for state authority and the direct control of states over the use of force. At the heart of the argument is the reality that PMFs maintain the ability to inflict violence …

Christiane Wilke On Global Justice Or Global Revenge? International Criminal Justice At The Crossroads By Hans Köchler. New York: Springer, 2003., Christiane Wilke

Human Rights & Human Welfare

A review of:

Global Justice or Global Revenge? International Criminal Justice at the Crossroads by Hans Köchler. New York: Springer, 2003.

Appeasing The International Conscience Or Providing Post-Conflict Justice: Expanding The Khmer Rouge Tribunal’S Restorative Role, Nema Milaninia

ExpressO

Three decades after the Cambodian civil war, the leaders of the Khmer Rouge will finally be brought before an internationalized domestic tribunal. While the majority of those most responsible have died off or received immunity for their conduct, the Khmer Rouge Tribunal has the historic possibility of reaffirming the importance of international criminal justice and providing an historical narrative of the crimes committed and victims created.

This commentary evaluates the importance of restoration in transitional justice and the importance victims and witnesses play in post-conflict justice. This article will argue that previous post-conflict remedies required a balance of restorative and …

Analyzing The International Criminal Court Complementarity Principle Through A Federal Courts Lens, Ada Y. Sheng

ExpressO

The signing of the Rome Statute that created the International Criminal Court (ICC) was viewed by many in the international law community as a constitutional moment not unlike the passage of the Judiciary Act of 1789. In giving birth to a new type of legal institution, however, the Rome Statute created a void in the ability of any existing body of law to precisely convey the nature of the ICC. The Court is neither in a direct vertical nor horizontal relationship to State courts, with the result that traditional international or national legal norms do not apply. The UN referral …

Developing Reasoned Framework For International Choice With Criminal Procedure, Nancy D. Erbe

ExpressO

While scholars fiercely debate retributive versus restorative justice within the U.S. criminal system, the international community is quietly, steadily and creatively combining the two. Fortunately, enough case study material exists to begin identifying a rational framework to guide future procedural choice.

Punitive Damages, Liquidated Damages, And Clauses Penale In Contract Actions: A Comparative Analysis Of The American Common Law And The French Code Civil, Charles R. Calleros

ExpressO

Although American common law allows punitive damages for reckless or intentional torts, it will neither allow a jury to assess punitive damages for breach of contract nor permit enforcement of a contractual damages clause that is deemed to be punitive. This approach is rooted in an early Chancery practice of granting equitable relief from oppressive penal bonds and has been more recently justified as a means of facilitating efficient breach. Economic efficiency, however, can be accomplished even if punitive damages could be assessed for intentional breach, because the parties would have an incentive to negotiate a release from the first …

In The Best Interest Of The Child, Ellen L. Buckwalter

ExpressO

Each year more than 200,000 children in the United States are abducted by family members. When a child is abducted across international borders, the difficulties are compounded. Since the late 1970s, The Department of State’s Office of Children’s Issues has been contacted in approximately 16,000 cases involving children who were either abducted from the United States or prevented from returning to the U.S. by one of their parents.

The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) adopted on October 24, 1980, reflects a worldwide concern about the harmful effects that parental kidnapping has on children …