Digital Commons Network^™

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

Privatization, Prisons, Democracy, And Human Rights: The Need To Extend The Province Of Administrative Law, Alfred C. Aman

Indiana Journal of Global Legal Studies

Back to Government?: The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts, Symposium. University of Trento, Italy, June 11-12, 2004.

Reclaiming Fundamental Principles Of Criminal Law In The Darfur Case, George P. Fletcher, Jens David Ohlin

Cornell Law Faculty Publications

According to the authors, the Report of the UN Commission of Inquiry on Darfur and the Security Council referral of the situation in Darfur to the International Criminal Court (ICC) bring to light two serious deficiencies of the ICC Statute and, more generally, international criminal law: (i) the systematic ambiguity between collective responsibility (i.e. the responsibility of the whole state) and criminal liability of individuals, on which current international criminal law is grounded, and (ii) the failure of the ICC Statute fully to comply with the principle of legality. The first deficiency is illustrated by highlighting the notions of genocide …

Plea Bargaining At The Hague, Julian A. Cook

Scholarly Works

Plea bargaining has come to The Hague. For most of its existence, the International Criminal Tribunal for the Former Yugoslavia (ICTY) shunned plea bargains. However, under pressure from United Nations member states and the impending deadline for the resolution of its caseload, the ICTY has increasingly relied on plea bargains in recent months. This Article exposes the deficiencies in guilty plea procedures at The Hague, particularly those designed to assess whether a plea is fully informed and voluntary. In a series of case studies, the Article argues that judicial questioning techniques have exploited the vulnerable state of defendants appearing before …

Cultural Relativism In International War Crimes Prosecutions: The International Criminal Tribunal For Rwanda, Ida L. Bostian

ExpressO

The tension between universalism and cultural relativism lies at the heart of war crimes and war crimes prosecutions. While cultural relativism arguments should never be the basis for ignoring war crimes outside of the West (particularly in Africa), neither should the international community adopt a radical universalist approach that ignores the unique circumstances underlying each war crimes prosecution. The establishment of the ICTR, over the objection of the post-genocide Rwandan government, probably erred on the side of universalism by ignoring the legitimate needs of the Rwandan people. Nevertheless, the ICTR has appropriately adopted a “mild” cultural relativist approach in its …

Abu Ghraib, Diane Marie Amann

Scholarly Works

This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …

Sita's Trousseau: Restorative Justice, Domestic Violence, And South Asian Culture, Rashmi Goel

Sturm College of Law: Faculty Scholarship

This article focuses on the particular cultural factors that affect South Asian women who are abused and immigrant South Asian women who are abused, in particular, in the restorative justice process. By exploring cultural practices and the icon of Sita, the mythological heroine of the Ramayana, this article demonstrates how the South Asian ideals of womanhood and wifehood help to create a mind-set whereby South Asian women are reluctant to advocate for themselves and are reluctant to leave. Such a condition is contrary to the conditions and abilities assumed by the restorative justicemovement for dispute resolution, inside or outside of …

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 …

Pluralizing International Criminal Justice, Mark A. Drumbl

Michigan Law Review

From Nuremberg to The Hague scours the institutions of international criminal justice in order to examine their legitimacy and effectiveness. This collection of essays is edited by Philippe Sands, an eminent authority on public international law and professor at University College London. The five essays derive from an equal number of public lectures held in London between April and June 2002. The essays - concise and in places informal - carefully avoid legalese and arcania. Taken together, they cover an impressive spectrum of issues. Read individually, however, each essay is ordered around one or two well-tailored themes, thereby ensuring analytic …

Exporting U.S. Anti-Terrorism Legislation And Policies To The International Law Arena, A Comparative Study: The Effect On Other Countries' Legal Systems, Olga Kallergi

Cornell Law School Inter-University Graduate Student Conference Papers

The terrorist attack on the World Trade Center in New York on 9/11 set in motion a new era all over the world: an era of a world uniting against a common enemy, but also an era of insecurity and fear. Laws have been changed worldwide, nations have united against a common threat, legal theories and beliefs of centuries have been questioned, and civil liberties have been replaced by a need for national safety. Has this worldwide effort worked? Is our world a better place now that we are all fighting the same enemy? Did we learn from our past …

A Comparative Analysis Of International Tribunals: The Formation Of An Iraqi Judiciary To Try Sadaam Hussein, Melissa L. Dougherty

ExpressO

Comparative Analysis of Tribunals regarding the formation of a Judiciary to try Sadaam Hussein. Several models are discussed: ICC, hybrid model, Rwanda model, and Yugoslav model. Interesting glimpse into the current state of the Iraqi Criminal Court.

Treaty Solutions From The Land Down Under: Reconciling American Federalism And International Law, Cyril R. Emery

ExpressO

No abstract provided.

Hijacked Justice: Domestic Appropriation Of International Norms, Jelena Subotić

Human Rights & Human Welfare

This paper explores the domestic politics of international norm diffusion, using the global transmission of transitional justice norms as the empirical context of the research. Applying sociological institutionalism as the principal theoretical framework, I argue that the motivation of states to adopt international models of transitional justice has changed over time. The transitional justice norm - that posits that war crimes and massive human rights abuses must be dealt with in a proper legal setting and not through “victors’ justice” or impunity - was institutionalized in large part as the result of a strong domestic demand for transitional justice in …

Jury Trials In Japan, Robert M. Bloom

ExpressO

The Japanese are seeking to involve their citizens in the judicial system. They are also establishing a check on the power of the judiciary. Towards these goals, they have enacted legislation to create jury trials. These remarkable ambitions envision adopting a mixed-jury system, slated to take effect in 2009. In this mixed-jury system, judges and citizens participate together in the jury deliberation.

This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. The article explores psychological theories surrounding collective judgment and how dominant individuals influence group …

The Milosevic Trial - Live: An Iconical Analysis Of International Law's Claim Of Legitimate Authority, Maya Steinitz

Faculty Scholarship

It has been argued that international law has recently "come of age", that it is a fully-fledged legal system like any other. It has also been argued that in order for a normative system to qualify as "law" it must, at the least, claim to possess legitimate authority and to be supreme to other normative systems. This article examines one highly visible development in international law - the criminal war trials - from a sociological perspective, trying to discern whether and how international law claims legitimate authority and supremacy. Specifically, it focuses on a deeply symbolic example of international criminal …

Pluralizing International Criminal Justice, Mark A. Drumbl

Scholarly Articles

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 …

The Abolition Of The Mandatory Death Penalty In India And Bangladesh: A Comparative Commonwealth Perspective, Andrew Novak

Global Business & Development Law Journal

No abstract provided.

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

Scholarly Articles

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 …

Iraq, Cambodia, And International Justice , Patricia M. Wald

American University International Law Review

No abstract provided.

The Convention On Cybercrime: A Harmonized Implementation Of International Penal Law: What Prospects For Procedural Due Process?, 23 J. Marshall J. Computer & Info. L. 329 (2005), Miriam F. Miquelon-Weismann

UIC John Marshall Journal of Information Technology & Privacy Law

The CoE Convention on cybercrime provides a treaty-based framework that imposes on the participating nations the obligation to enact legislation criminalizing certain conduct related to computer systems, create investigative procedures and ensure their availability to domestic law enforcement authorities to investigate cybercrime offenses, including procedures to obtain electronic evidence in all of its forms and create a regime of broad international cooperation, including assistance in extradition of fugitives sought for crimes identified under the CoE Convention. Since there is no internationally recognized legal definition of computer crime, this article briefly presents the generally recognized categories of cybercrime and then proceeds …

Judicial Reform In Afghanistan: A Case Study In The New Criminal Procedure Code, Faiz Ahmed

UC Law SF International Law Review

On January 4, 2004, the Islamic Transitional State of Afghanistan ratified a constitution. While lauded by many, a number of its articles have stirred debate within Afghanistan. Using the country's new criminal procedure code as a case study, the author addresses key questions pertaining to legal reform and development movements, including the foreign imposition of law, a lack of local participation in legal reform processes, and a blindness to the multiple layers of indigenous law practiced on the ground. The author concludes that these are all weaknesses that will fundamentally hamper the rebuilding of stable legal institutions in Afghanistan in …

The International Criminal Court And Human Rights Enforcement In Africa, Obasi Okafor-Obasi

ILSA Journal of International & Comparative Law

The inauguration of a permanent tribunal for the prosecution of serious crimes has raised anew the problem of enforcement of human rights in international law.

Cultural Relativism In International War Crimes Prosecutions: The International Criminal Tribunal For Rwanda, Ida L. Bostian

ILSA Journal of International & Comparative Law

"While academic debates about the possibility of objective truth and falsehood are often rarified to the point of absurdity, Rwanda demonstrated that the question is a matter of life and death."'

Isla Journal Of International & Comparative Law, Isla Journal Of International & Comparative Law

ILSA Journal of International & Comparative Law

"While academic debates about the possibility of objective truth and falsehood are often rarified to the point of absurdity, Rwanda demonstrated that the question is a matter of life and death."'

The Ruling Of The International Court Of Justice In The Avean And Other Meixican Natioanls: Enforcing The Right To Consular Assistance In U.S. Jurispudence, Adrienne M. Tranel

American University International Law Review

No abstract provided.

Lori Berenson V. Peru: An Analysis Of Selected Holdings By The Inter-American Court Of Human Rights, Joseph May

American University International Law Review

No abstract provided.

International Arbitration And Money Laundering, Andrew De Lotbiniére Mcdougall

American University International Law Review

No abstract provided.

Terrorists, Warlords, And Thugs , David M. Crane

American University International Law Review

No abstract provided.

Operation Murambatsvina: A Crime Against Humanity Under The Rome Statute? , Jeff Nicolai

American University International Law Review

No abstract provided.

A Question Of Justice: The Wto, Africa, And Countermeasures For Breaches Of International Trade, 38 J. Marshall L. Rev. 1153 (2005), Nsongurua J. Udombana

UIC Law Review

No abstract provided.