Law Commons^™

Accountability For “Crimes Against The Laws Of Humanity In Boxer China: The Experiment With International Justice At Paoting-Fu, Benjamin E. Brockman-Hawe

Benjamin E. Brockman-Hawe

This paper covers a significant but generally unknown and understudied caesure in the development of international criminal law occurred during the Boxer Rebellion, an anti-Western and anti‑Christian peasant insurgency mostly located in Northeast China. During the early stages of the Chinese intervention, at a time when the relief force was still bogged down in Beijing, approximately seventy Christians were gruesomely murdered in Paoting-fu. Securing and “punishing” the city became a priority for Western military forces, who began the necessary short march southward once Beijing’s Legation Quarter was cleared of Boxers. The Poating-fu operation could have taken the form of the …

Dealing With Dangerous Women: Sexual Assault Under Cover Of National Security Laws In India, Surabhi Chopra Prof.

Surabhi Chopra Prof.

DEALING WITH DANGEROUS WOMEN: SEXUAL ASSAULT UNDER COVER OF NATIONAL SECURITY LAWS IN INDIA

This article examines violence against women suspected of being security threats in India’s internal conflict zones, one of the very few scholarly works to do so.

I focus on two cases in particular. In 2004, Thangjam Manorama was arrested by paramilitaries on suspicion of belonging to a violent separatist group, and found raped and murdered several hours later. I look at her family’s attempts to hold the armed forces accountable for her death. I also look at the ongoing criminal prosecution of Soni Sori, an indigenous …

Trading Police For Soldiers: Has The Posse Comitatus Act Helped Militarize Our Police And Set The Stage For More Fergusons?, Arthur Rizer

Arthur L. Rizer III

The recent protests, police overreaction, and subsequent riots in Ferguson, Missouri, demonstrated to Americans and to the world the true extent of the militarization of police in communities across the United States. Deployed throughout Ferguson, in preemption and then in response to protesters’ actions, were ranks of heavily armed, flak-jacketed, camouflage uniformed police standing atop and around armored personnel carriers with machine guns mounted. Such a response evidences that the line between police and soldiers in communities is blurring, if not blurred. This militarization is, in part, a result of a principle Americans have held dear since our founding, that …

Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy

Hugh Mundy

During a 2009 speech in Ghana, President Barack Obama said, “Africa doesn’t need strongmen. It needs strong institutions.” Obama credited Ghana’s “impressive rates of growth” to the country’s “repeated peaceful transfers of power even in the wake of closely contested elections.” Free elections and non-violent power transfers, he said, “may lack the drama of the twentieth century’s liberation struggles” but “will ultimately be more significant.” Last July, the president expressed similar sentiments during a highly anticipated trip to Kenya. Côte d’Ivoire offers a stark example of the instability wrought when an unseated leader refuses to cede power. Once hailed as …

Hannibal At The Gate: Border Kids, Drugs, And Guns – And The Mexican Cartel War Goes On, Arthur Rizer

Arthur L. Rizer III

This article argues that the current cartel war in Mexico represents a clear and present danger to the national security of the United States. Some have estimated Mexico, one of the United States’ closest allies, has lost more than 60,000 people in its drug war. That is approximately a murder every hour related to cartel violence. Some experts claim the death toll has been greatly soft-pedaled, with the government reducing violence by simply not reporting it, and that the actual death toll is over 100,000. These numbers do not even include the nearly 40,000 Americans who die each year from …

The Road Most Travel: Is The Executive’S Growing Preeminence Making America More Like The Authoritarian Regimes It Fights So Hard Against?, Ryan T. Williams

Ryan T. Williams

Back To The Future With The Uniform Code Of Military Justice: The Need To Recalibrate The Relationship Between The Military Justice System, Due Process, And Good Order And Discipline, Anthony J. Ghiotto

Anthony J. Ghiotto

In recent years, the military justice system has come under increased Congressional and public scrutiny. Driving much of this increased scrutiny is the issue of sexual assault. The dramatic increase in reported sexual assaults, coupled with the military’s response, resulted in public officials calling for dramatic reform of the military justice system. These calls for reform included limiting, and even removing, the role commanders play in the military justice system. The military departments must proceed carefully, though, with these calls for reform. Dramatic reforms designed to correct the apparent flaws in the military justice system may in turn undermine the …

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 …

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 …

Terrorism And Associations, Ashutosh A. Bhagwat

Ashutosh Bhagwat

The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September 11 attacks reveals continuing and unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms. Yet the courts have barely begun to acknowledge, much less address, these serious issues. In the Supreme Court’s only sustained engagement with these …

Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat

Elisa Poteat

No abstract provided.

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

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 …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Military Extraterritorial Jurisdiction Act And Its Implications For Private Military Companies, Dustin M. Tipling

ExpressO

Private Military Companies (PMCs) are civilian staffed corporations that provide military (and law enforcement) services, logistics, and support under contract to a government both inside and outside the country’s borders. Prior to Congress passing the Military Extraterritorial Jurisdiction Act, U.S. courts lacked jurisdiction to prosecute civilians accompanying United States’ Armed Forces overseas. This article will specifically address how the United States exercises jurisdiction and prosecutes the civilian employees of PMCs in United States courts for crimes they have committed in foreign countries while working under contract to the United States government.

Sentencing Disparity In Desertion And Absent Without Leave Trials: Advocating A Return Of “Uniform” To The Uniform Code Of Military Justice., Scott R. Sylkatis

ExpressO

No abstract provided.

The Legality Of Governmental Responses To Terrorism And The Dichotomous Characterization Of Terrorists As Criminals Or Enemy Combatants, Gregory E. Maggs

ExpressO

This article argues that the United States and other nations ought to create specialized laws to regulate governmental responses to terrorism, rather than debating whether the current laws of war or the current rules of law enforcement should apply. These specialized laws would see terrorism as a problem that sometimes lies between traditional crime and traditional warfare, and would establish rules designed to address governmental responses to it.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will provide …

The Roadmap For Failure: Israeli And Palestinian Discountenance And Misunderstanding, John J. Marciano

ExpressO

As tensions rise with the assassination of key Hamas figures, the situation in Israel and the Occupied Territories call out for committed, reasoned action. In the past, the peace process has consisted of half-hearted attempts to pacify both the Israeli and Palestinian populaces. This is exemplified by the recent Roadmap for peace, which was supported by the United States.

However, the lack of true dedication among the players has arguably resulted in crimes against humanity on both sides. The previous peace plans fail to recognize this, and have perpetuated the violence with cookie-cutter approaches that are not closely tailored to …

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.

The Death Penalty--An Obstacle To The "War On Terrorism"?, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. …

Barbarians At The Gates: A Post-September 11th Proposal To Rationalize The Laws Of War, William C. Bradford

ExpressO

My article, Barbarians at the Gates: A Proposal to Rationalize the Laws of War. The piece proposes that in the War on Terror a new approach to the laws of war is necessary to harmonize the functional purpose of the law of war with the nature of the threat presented by terrorism to civilization.

The Last Line Of Defense: The Doctrine Of Command Responsibility, Gender Crimes In Armed Conflict, And The Kahan Report (Sabra & Shatilla), Sherrie L. Russell-Brown

ExpressO

“THE LAST LINE OF DEFENSE” addresses using the doctrine of command responsibility - the doctrine according to which military and non-military leaders can be held individually criminally responsible for the crimes committed by their subordinates - before the International Criminal Court (ICC) as a way to prevent gender crimes in armed conflict. The prevention of gender crimes in armed conflict is an important issue for a variety of reasons. One extremely important reason is the connection that the United Nations has cited between the AIDS pandemic in Sub-Saharan Africa and rape in armed conflict. In addition, in the August 25, …

Task Force Statement Of The Twentieth Century Fund's Task Force On Apprehending Indicted War Criminals: Meeting The Obligations Of Justice, Paul Williams

Articles in Law Reviews & Other Academic Journals

No abstract provided.