Law Commons^™

Incorporating A 'Best Interests Of The Child' Approach Into Immigration Law And Procedure, Bridgette A. Carr

Articles

United States immigration law and procedure frequently ignore the plight of children directly affected by immigration proceedings. This ignorance means decision-makers often lack the discretion to protect a child from persecution by halting the deportation of a parent, while parents must choose between abandoning their children in a foreign land and risking the torture of their children. United States immigration law systematically fails to consider the best interests of children directly affected by immigration proceedings. This failure has resulted in a split among the federal circuit courts of appeals regarding whether the persecution a child faces may be used to …

Law, Economics, And Torture, James Boyd White

Book Chapters

This paper addresses three sets of questions, among which it wishes to draw connections: (1) Why has there been so little resistance to the recent massive transfer of national wealth to the rich and super-rich? It is the majority who are injured, and they presumably hold the power in a democracy: why have they not exercised it? (2) Why are law schools so dominated by questions of policy, with rather little interest in the intellectual and linguistic activities of the practicing lawyer and judge? Why indeed do judicial opinions themselves seem so often to be written in a dead and …

Intention, Torture, And The Concept Of State Crime, Aditi Bagchi

All Faculty Scholarship

Notwithstanding the universal prohibition against torture, and almost universal agreement that in order to qualify as torture, the act in question must be committed intentionally with an illicit purpose, the intentional element of torture remains ambiguous. I make the following claims about how we should interpret the intent requirement as applied to states. First, state intent should be understood objectively with reference to the apparent reasons for state action. The subjective motivation of particular state actors is not directly relevant. While we focus on subjective intent in the context of individual crime because of its relation to culpability and blameworthiness, …

Torture, With Apologies, Thomas P. Crocker

Faculty Publications

No abstract provided.

Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible, Michael P. Scharf

Faculty Publications

Written by a consultant to the United Nation's newly established Cambodia Genocide Tribunal, "Tainted Provenance" examines one of the most important legal questions that will face the Tribunal as it begins its trials next year -- whether evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng torture facility should be considered notwithstanding the international exclusionary rule for evidence procured by torture. The issue of whether there should be exceptions to the torture evidence exclusionary rule (and how those exceptions should be crafted to avoid abuse) has significant implications beyond the international tribunal, …

Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism, Catherine Powell

Georgetown Law Faculty Publications and Other Works

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition--and international law generally--poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question of torture within …

Torture And Islamic Law, Sadiq Reza

Faculty Scholarship

This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today's Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves "Islamic states." The status of …

Dark Ages Of Human Rights?, Linda A. Malone

Faculty Publications

No abstract provided.

Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism , Catherine Powell

Faculty Scholarship

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition -- and international law generally -- poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question …

Physicians And Torture: Lessons From The Nazi Doctors, George J. Annas

Faculty Scholarship

How is it possible? What are the personal, professional and political contexts that allow physicians to use their skills to torture and kill rather than heal? What are the psychological characteristics and the social, cultural and political factors that predispose physicians to participate in human rights abuses? What can be done to recognize at-risk situations and attempt to provide corrective or preventive strategies? This article examines case studies from Nazi Germany in an attempt to answer these questions. Subjects discussed include the psychology of the individual perpetrator, dehumanization, numbing, splitting, omnipotence, medicalization, group dynamics, obedience to authority, diffusion of responsibility, …

Human Rights Outlaws: Nuremberg, Geneva, And The Global War On Terror, George J. Annas

Faculty Scholarship

International human rights law was born from the ashes of World War II. The most important post-World War II products are the United Nations, the Nuremberg Trials, the Universal Declaration of Human Rights, and the Geneva Conventions of 1949. But that was not the end of the story. International human rights law continued to develop and expand right up to September 11,2001, most notably through the adoption of the International Covenant on Civil and Political Rights2 and the Convention Against Torture, 3 and the establishment of the International Criminal Court.4 With the exception of the criminal court, the United States …

Torture As A Problem In Ordinary Legal Interpretation, Alan Hyde

Cornell Law Faculty Publications

American legal discourse on torture takes for granted some, usually all, of the following propositions, that make discussion of torture more difficult than it should be. Torture is assumed to present unusually difficult problems of definition, full of vague concepts, fine lines, gray areas, murky moral dilemmas, "dirty hands." This vagueness is thought to be even more of a problem for the attendant concept of "cruel, inhuman, and degrading treatment." The legal sources of either prohibition are assumed to be dubious under American law. Prohibiting torture is, perhaps for these reasons, thought to require moral justification not necessarily required of …

Rettungsfolter (“Rescue Torture”): Report On The Gäfgen V. Germany Case Pending Before The European Court On Human Rights, James Maxeiner

All Faculty Scholarship

This comment reports on a case pending before the European Court of Human rights which raises the question whether torture can ever be supported to save human life.

Torture's Truth, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In this Article, I argue that the obstacles to having a serious conversation about torture are exacerbated by a truth that torture teaches us - a truth that we cannot afford fully to know and, so, frantically try to obscure. Law is about respect for commitments and limits, and the existence of torture challenges the possibility of such respect. If we are prepared to torture, then, it would seem, we are prepared to do anything, and the restraint that law purports to impose upon us is a fraud. Torture's truth, then, is that all of our promises to ourselves and …

Liberalism, Torture, And The Ticking Bomb, David Luban

Georgetown Law Faculty Publications and Other Works

Torture used to be incompatible with American values. Our Bill of Rights forbids cruel and unusual punishment, and that has come to include all forms of corporal punishment except prison and death by methods purported to be painless. Americans and our government have historically condemned states that torture; we have granted asylum or refuge to those who fear it. The Senate ratified the Convention Against Torture, Congress enacted antitorture legislation, and judicial opinions spoke of "the dastardly and totally inhuman act of torture.” Then came September 11.

Protecting Rights In The Age Of Terrorism: Challenges And Opportunities, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Depending on whom you speak to these days (and the mood in which you find them), international law is either practically moribund, or it's more vibrant and important than it has been for years. To take the good news story first, international law issues have been at the forefront of public discourse over the past few years. Pick your issue: the U.N. Charter and the international law on the use of force? The Convention Against Torture? The Geneva Conventions? You'll find it on the front page these days. Journalists are phoning international law professors for background briefings, and students are …

Flores V. Southern Peru Copper Corporation: The Second Circuit Fails To Set A Threshold For Corporate Alien Tort Claim Act Liability, Lori D. Johnson

Scholarly Works

In Flores v. Southern Peru Copper Corporation, the U.S. Court of Appeals, Second Circuit, re-examined its Alien Tort Claims Act (ATCA) jurisprudence and assumed that a private domestic company acting in its private capacity could be liable to Peruvian nationals under the ATCA for a wide range of torts under international law, including violations of rights to “life and health.” Previous cases and other Circuits held that only a handful of egregious crimes, when committed by a private individual or corporation, can justify private liability under the ATCA. Rather than abiding by these interpretations, however, the court examined in depth …

The International Law Of Torture: From Universal Proscription To Effective Application And Enforcement, Winston P. Nagan, Lucie Atkins

UF Law Faculty Publications

This Article presents a comprehensive review of world torture and the efforts to eradicate it through both official and unofficial strategies of intervention, with special emphasis on the legal strategies. This Article recognizes the complexity of these strategies as they form a vast number of initiatives emerging from various elements of the international community. Part II of the Article touches on matters of definition and legal history. This enables the examination of the inherent characteristics of torture as they impact issues of governance, social control, and principles of basic respect and human dignity. Part III examines the efforts to universally …

Introduction To Torture As Tort: From Sudan To Canada To Somalia, Craig M. Scott

Articles & Book Chapters

The present work is chapter 1 of the edited volume, Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart Publishing, Oxford, 2001). At the time the book was generated, the controversial nature of seeking globalised justice through national courts had become starkly apparent in the wake of the Pinochet case in which the Spanish legal system sought extradition of the former President of Chile from the United Kingdom in order to bring him to account under Spanish criminal law for a variety of alleged violations in Chile of human rights, most notably involving torture. Yet, …

Book Note, Fatma E. Marouf

Scholarly Works

Tortured Confessions presents an innovative perspective on the relationship between torture and propaganda. Abrahamian’s persuasive account exposes the intrinsic limitations of arguments that try to explain torture as simply the result of a “traditional” regime, a desire for social discipline, or a search fro security information; he binds torture instead to ideological warfare and political mobilization, the fundamental goals of military propaganda.

Living With The Death Penalty, Samuel R. Gross

Articles

The debate over the death penalty in the United States - such as it is - is framed in terms of criminal justice policy. The issues are the same ones we consider when the question is the length of prison sentence for a drug crime: Does the defendant deserve the penalty? Is it cost effective by comparison to other available sanctions? Will it deter others from committing the crimes for which he was convicted? Can we impose this punishment fairly? Can we make sure that innocent people are not condemned?

Testimony Before The Senate Committee On Foreign Relations, Convention Against Torture, David F. Forte

Law Faculty Presentations and Testimony

Hearing to examine issues related to U.S. ratification of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requiring nations to take measures to prevent torture and cruel and inhuman treatment, to prosecute or extradite alleged torturers, and to provide civil remedies for torture victims.

Support for U.S. ratification of UN convention against torture; examination of and concerns about proposed reservations and conditions to convention text (related materials, p. 49-60, 69-72); justification for certain reservations relating to U.S. sovereignty.

Recent Developments: The European Convention For The Prevention Of Torture And Inhuman Or Degrading Treatment Or Punishment, David P. Fidler

Articles by Maurer Faculty

No abstract provided.