Digital Commons Network^™

General Principles Of Procedural Law And Procedural Jus Cogens, S. I. Strong

Faculty Publications

General principles of law have long been central to the practice and scholarship of both public and private international law. However, the vast majority of commentary focuses on substantive rather than procedural concerns. This Article reverses that trend through a unique and innovative analysis that provides judges, practitioners, and academics from around the world with a new perspective on international procedural law. The Article begins by considering how general principles of procedural law (international due process) are developed under both contemporary and classic models and evaluates the propriety of relying on materials generated from international arbitration when seeking to identify …

Corporate Liability For Human Rights Violations: The Future Of The Alien Tort Claims Act, Milena Sterio

Law Faculty Articles and Essays

This paper addresses complex legal issues in light of and in the context of Jesner v. Arab Bank, a case involving the scope of corporate liability for human rights abuses under the Alien Tort Claims Act (ATCA). Part I provides a brief overview of the Jesner case. Part II outlines the case Kiobel v. Royal Dutch Petroleum Co. and its holding. Part III discusses Kiobel's shortcomings, including the vagueness of its "touch and concern" test and its failure to specify which law—international or domestic—applies to the issue of corporate liability under the ATCA. Part IV then proposes other …

Sequencing Peace And Justice In Syria, Milena Sterio

Law Faculty Articles and Essays

Since 2011, the conflict in Syria has caused the death of hundreds of thousands of individuals and the displacement of millions. Efforts to refer the Syrian situation to the International Criminal Court (ICC) have consistently failed despite well-documented reports about the commission of serious crimes in Syria, including the use of chemical weapons against civilians, torture, the use of child soldiers, and crimes of sexual violence.

This Article explores whether the dual goals of peace and justice can be reconciled in the Syrian context and how these goals may be properly sequenced in order to potentially achieve long-lasting peace in …

2016 Brandeis Institute Of International Judges Report

University of the Pacific Law Review

No abstract provided.

Local Human Rights Lawyering, Lauren Bartlett

All Faculty Scholarship

International human rights offer a powerful set of norms that have helped domestic advocates to successfully secure additional civil, political, economic and social rights for those living in poverty in the U.S. Legal aid attorneys, public defenders, and other public interest advocates have recognized human rights as an additional advocacy tool and are increasingly using human rights arguments in U.S. courts. This article examines three cases in which legal aid attorneys and public defenders successfully used human rights arguments in U.S. courts, and discusses emerging best practices for using human rights in litigation in the U.S.

Copla: A Transnational Criminal Court For Latin America & The Caribbean, Robert Currie, Jacob Leon

Articles, Book Chapters, & Popular Press

States in the Latin American and Caribbean regions have long called for the creation of an independent, international court to prosecute members of transnational organized crime gangs. These organizations not only profit from the illicit traffic in drugs, people and cultural property, but are able to corrupt and undermine the domestic legal systems and judiciaries of the affected states. This paper examines the current proposal for the creation of the "Latin American and Caribbean Criminal Court Against Transnational Organized Crime" (COPLA). It reviews the rationale for creating such a court, examines the main pillars of the current proposal, and suggests …

Limitless Discretion In The Wars On Drugs And Terror, Wadie E. Said

University of Colorado Law Review

The wars on terror and drugs have been defined, largely, by what they lack: a readily identifiable opponent, a clear end goal, a timeline, and geographical boundaries. Based on that understanding, this Article discusses the increasingly expansive discretion of American authorities to prosecute individuals where the wars on terror and drugs intersect. Through laws such as the Maritime Drug Law Enforcement Act, the ban on providing material support to foreign terrorist organizations, and the narco-terrorism statute, the United States exercises a kind of universal jurisdiction to pursue anyone, anywhere it believes its laws are being violated. Wielding the power of …

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Washington and Lee Law Review

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article …

Plata O Plomo: Effect Of Mexican Transnational Criminal Organizations On The American Criminal Justice System, Mark M. Mcpherson

St. Mary's Law Journal

Abstract forthcoming

Liberals Vs Romantics: Challenges Of An Emerging Corporate International Criminal Law, Carsten Stahn

Case Western Reserve Journal of International Law

Holding bystanders and corporate agents accountable for international crimes is often at the periphery of international criminal justice. Based on its liberal foundations, international criminal law has traditionally been strongly centered on individual agency. In the industrialist cases after World War II, individual criminal responsibility was used to demonstrate and sanction corporate involvement in crime. Ideas of corporate criminal responsibility have been voiced in the post-war era and in the context of the negotiations of the Statute. In recent years, they have witnessed a renaissance in several contexts: the jurisprudence of the Special Tribunal for Lebanon, the Malabo Protocol of …

Corporate Liability For Human Rights Violations: The Future Of The Alien Tort Claims Act, Milena Sterio

Case Western Reserve Journal of International Law

The article discusses issue of corporate liability under the U.S. Alien Tort Claims Act.

Politics, Power Dynamics, And The Limits Of Existing Self-Regulation And Oversight In Icc Preliminary Examinations, Asaf Lubin

Books & Book Chapters by Maurer Faculty

Professor Lubin's contribution to volume 2 is titled, "Politics, Power Dynamics, and the Limits of Existing Self-Regulation and Oversight in ICC Preliminary Examinations," pp. 77-150.

Should the normative framework that governs the International Criminal Court’s (‘ICC’) oversight concerning preliminary examinations undergo a reform? The following chapter answers this question in the affirmative, making the claim that both self-regulation by the Office of the Prosecutor (‘OTP’) and quality control by the Pre-Trial Chamber (‘PTC’) currently suffer from significant deficiencies, thus failing to reach the optimum point on the scale between absolute prosecutorial discretion and absolute control. The chapter demonstrates some of …

Procedural Justice In Transnational Contexts, Stephen Cody, Alexa Koenig

Suffolk University Law School Faculty Works

Procedural justice scholarship shows that perceptions of judicial fairness can strongly influence a court participant’s satisfaction with judicial outcomes, as well as the perceived legitimacy of the dispute resolution forum. What is largely unknown, however, is how procedural justice plays out in transnational contexts. Most previous studies focus on adjudication in domestic forums. Here, drawing on 622 semi-structured interviews with victims in cases before the International Criminal Court (ICC), we document how four core procedural justice principles–voice, neutrality, trust and respect–are interpreted differently in transnational rather than in national contexts. We also identify additional factors–including participants’ concerns over physical safety …

Responsible Resource Development: A Strategic Plan To Consider Social And Cultural Impacts Of Tribal Extractive Industry Development, Carla F. Fredericks, Kate Finn, Erica Gajda, Jesse Heibel

Publications

This paper presents a strategic, solution-based plan as a companion to our recent article, Responsible Resource Development and Prevention of Sex Trafficking: Safeguarding Native Women and Children on the Fort Berthold Reservation, 40 Harv. J.L. Gender 1 (2017). As a second phase of our work to combat the issues of human trafficking and attendant drug abuse on the Mandan, Hidatsa and Arikara Nation (MHA Nation), we developed a strategic plan to better understand the time, scale, and capacity necessary to address the rising social problems accompanying the boom of oil and gas development there. During our process, we discovered, …

Testimonial Injustice In International Criminal Law, Shannon Fyfe

Scholarly Articles

In this article, I consider the possibilities and limitations for testimonial justice in an international criminal courtroom. I begin by exploring the relationship between epistemology and criminal law, and consider how testimony contributes to the goals of truth and justice. I then assess the susceptibility of international criminal courts to the two harms of testimonial injustice: epistemic harm to the speaker, and harm to the truth-seeking process. I conclude that international criminal courtrooms are particularly susceptible to perpetrating testimonial injustice. Hearers in the international criminal courtroom should practice testimonial justice, but the institution is not structured in a way that …

Multilateralism’S Life-Cycle, Harlan G. Cohen

Scholarly Works

Does multilateralism have a life-cycle? Perhaps paradoxically, this essay suggests that current pressures on multilateralism and multilateral institutions, including threatened withdrawals by the United Kingdom from the European Union, the United States from the Paris climate change agreement, South Africa, Burundi, and Gambia from the International Criminal Court, and others, may be natural symptoms of those institutions’ relative success. Successful multilateralism and multilateral institutions, this essay argues, has four intertwined effects, which together, make continued multilateralism more difficult: (1) the wider dispersion of wealth or power among members, (2) the decreasing value for members of issue linkages, (3) changing assessment …

Constructing A "Creative Reading": Will Us State Cannabis Legislation Threaten The Fate Of The International Drug Control Treaties?, Michael Tackeff

Vanderbilt Journal of Transnational Law

While marijuana remains illegal at the federal level in the United States, state-level efforts to legalize cannabis have gained enormous momentum in recent years. The federal government, which possesses only limited power to stop this trend, has responded by grudgingly allowing such efforts to proceed, maintaining that its inaction on the issue comports with the international drug control regime. This presents a particularly complex problem for international policymakers and legal scholars, who worry that this state-federal conflict may render international drug treaties meaningless. This Note argues that the federal government's strategy is a productive lens through which to view an …

Resolving The Circuit Split Over Consent Based Searches In Shared Living Spaces, Christopher Grimaldi

Cardozo International & Comparative Law Review

The note argues that the police, not citizens, should bear the responsibility of resolving ambiguities in consent to search cases under the Fourth Amendment. It advocates for a solution that aligns with Supreme Court precedent, particularly Rodriguez and Salinas-Cano, to ensure constitutional protections while maintaining efficient law enforcement. The proposed approach emphasizes the importance of police inquiry to clarify authority over jointly used property, balancing individual privacy rights with practical law enforcement needs.

The Unexpected Scope Of The Cfaa: And How Netflix Users Could Be Committing A Federal Crime, Michael Levy

Cardozo International & Comparative Law Review

The Ninth Circuit's broad interpretation of the Computer Fraud and Abuse Act (CFAA) in United States v. Nosal II criminalizes everyday activities like password sharing, undermining the Act's original purpose to prevent hacking. The court ruled that accessing a computer after authorization has been revoked constitutes a violation, even if the access is for innocuous purposes. This interpretation disproportionately benefits large service providers, allowing them to suppress legitimate user claims and exposing millions of Americans to potential prosecution for common online practices.

Pluralism In International Criminal Procedure, Jenia I. Turner

Faculty Journal Articles and Book Chapters

Over the last two decades, international criminal procedure has become a recognized body of law, with textbooks, treatises, and law review articles discussing its rules and principles and theorizing its goals and methods. The term refers to the procedures used at the international criminal courts and tribunals created to address some of the most serious offenses, such as genocide, crimes against humanity, and war crimes. Some of these courts are fully international, like the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the permanent International Criminal Court (ICC). Others are “hybrid courts,” …

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Faculty Publications

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article …

Amicus Curiae Observations On The “Prosecution’S Request For A Ruling On Jurisdiction Under Article 19(3) Of The Statute”, Fannie Lafontaine, Robert Currie, Amanda Ghahremani

Reports & Public Policy Documents

The Amici Curiae (‘the Amici’) have been granted leave by Pre-Trial Chamber I (‘the Chamber’) to submit observations in the present proceeding, which derives from the Prosecutor’s request under art. 19(3) for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

The Amici respectfully offer the Chamber observations on the novel legal issues raised by the Prosecutor’s Request: (II) the scope of art. 19(3) and the powers of the Prosecutor to seek a ruling on jurisdiction before a formal situation has been assigned to it; (III) the scope …

In Defense Of Territorial Jurisdiction, Cody Jacobs

Faculty Scholarship

As the story is traditionally told, the minimum contacts test introduced in International Shoe v Washington freed personal jurisdiction from the dark age of territorialism and gave courts the flexibility to expand the scope of personal jurisdiction to keep pace with modern society. While scholars have critiqued the minimum contacts test on a number of grounds, the narrative that the Territorial Model was inherently problematic—and that Shoe was a step in the right direction— has gone largely unchallenged.

This Article challenges that narrative and argues for a return to the Territorial Model. While Shoe is traditionally cast as a step …

The Impact Of Human Trafficking In Asean: Singapore As A Case-Study, Jaya Anil Kumar

Research Collection Yong Pung How School Of Law

Southeast Asia remains a notorious hotbed for human trafficking. The seriousness of the problem has led to the emergence of various initiatives to combat human trafficking. This paper seeks to address why human trafficking in Southeast Asia remains a contentious issue despite the various initiatives put in place for its eradication. ASEAN Member States, including Singapore, can only resolve the current inertia when it comes to combatting trafficking-in-persons (TIP) by adopting a multidimensional, and multistakeholder approach to the problem. Within Singapore, it is recommended that the Prevention of Human Trafficking Act should be amended such that it provides greater protection …

"We Only Spy On Foreigners": The Myth Of A Universal Right To Privacy And The Practice Of Foreign Mass Surveillance, Asaf Lubin

Articles by Maurer Faculty

The digital age brought with it a new epoch in global political life, one neatly coined by Professor Philip Howard as the “pax technica.” In this new world order, government and industry are “tightly bound” in technological and security arrangements that serve to push forward an information and cyber revolution of unparalleled magnitude. While the rise of information technologies tells a miraculous story of triumph over the physical constraints that once shackled mankind, these very technologies are also the cause of grave concern. Intelligence agencies have been recently involved in the exercise of global indiscriminate surveillance, which purports to go …

The Peace Vs. Justice Debate And The Syrian Crisis, Paul Williams, Lisa Dicker, C. Danae Paterson

Scholarly Articles in Law Reviews & Journals

Peace negotiators often face the difficult decision of whether to pursue peace at the potential cost of achieving justice, or to pursue justice at the potential cost of achieving near term peace. There are abiding ethical and moral debates surrounding this tension between peace and justice. In Syria—where the death toll has exceeded 470,000, 11 million have been displaced, and there are over 14,000 documented cases of torture to the point of death—the peace versus justice debate is a living dilemma with which negotiators are currently grappling. This article strives to examine a timely facet of this multidimensional puzzle: how …

User-Generated Evidence, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Criminalization And The Politics Of Migration In Brazil, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

In May 2017, the government of Brazil enacted a new immigration law, replacing a statute introduced in 1980 during the country’s military dictatorship with progressive legislation that advances human rights principles and adopts innovative approaches to migration management. One of the most notable features of the new law is its explicit rejection of the criminalization of migration, and its promotion of efforts to regularize undocumented migrants. Although the law itself is new, the values embedded in the law reflect recent trends in Brazilian immigration policy, which has embraced legalization, and has generally resisted the use of criminal law to punish …

With Access And Justice For All, Sagit Mor

Cardozo Law Review

The article explores the intersection of the "right to access" and "access to justice," particularly for persons with disabilities, emphasizing how these concepts interact across various legal and social dimensions. It argues that the Convention on the Rights of Persons with Disabilities (CRPD) provides a comprehensive framework for addressing these issues, focusing on legal capacity, physical accessibility, and effective participation in legal proceedings. The analysis highlights the need to move beyond formal barriers to justice and address deeper structural and ideological challenges, including biased legal norms and the exclusion of disabled individuals from lawmaking processes. Ultimately, the article advocates for …

The Legacy Of British Rule On Lgbt Rights In Jamaica And The Cayman Islands, Zachary Stewart

Master's Theses

This thesis explores the relationship between British colonial influence and Lesbian, Gay, Bisexual, and Transgender (LGBT) rights in the Caribbean. Comparing the Cayman Islands, a British Overseas Territory, and Jamaica, an independent former colony of the United Kingdom, the situation for LGBT people is evaluated. While Jamaica has serious abuses and a concerning situation for the human rights of LGBT people, the Cayman Islands’ LGBT community’s position is far less concerning. Owing to its continued connection to the United Kingdom of Great Britain and Northern Ireland, the Cayman Islands’ LGBT rights situation is much less dire. Through British influence via …