Law Commons^™

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Aggressor Status And Its Impact On International Criminal Law Case Selection, Nancy Amoury Combs

Pace International Law Review

The laws of war apply equally to all parties to a conflict; thus, a party that violates international law by launching a war is granted the same international humanitarian law rights as a party that is required to defend against the illegal war. This doctrine—known as the equal application doctrine—has been sharply critiqued, particularly by philosophers, who claim the doctrine to be morally indefensible. Lawyers and legal academics, by contrast, defend the equal application doctrine because they reasonably fear that applying different rules to different warring parties will sharply reduce states’ willingness to comply with the international humanitarian law system …

The Conferred Jurisdiction Of The International Criminal Court, Leila Nadya Sadat

Notre Dame Law Review

After twenty years of operation, we know that the International Criminal Court (ICC) works in practice. But does it work in theory? A debate rages regarding the proper conceptualization of the Court’s jurisdiction. Some have argued that the ICC’s jurisdiction is little more than a delegation by states of a subset of their own criminal jurisdiction. They contend that when states ratify the Rome Statute, they transfer some of their own prescriptive or adjudicative criminal jurisdiction to the Court, meaning that the Court cannot do more than the state itself could have done. Moreover, they argue that these constraints are …

Sexual Orientation At The Crossroads, Johan D. Van Der Vyver

Marquette Benefits and Social Welfare Law Review

The decision of the U.S. Supreme Court in the case of Bostock v. Clayton County that sexual orientation is included in the concept of “sex” in the non-discrimination provisions of the Civil Rights Act of 1964 is historically indefensible. The Civil Rights Act was initiated by President John F. Kennedy to combat racial discrimination in the workplace and the word “sex” was included in the Act by a “claque of Southern Congressmen” as part of a filibuster attempt to prevent its enactment. It was accepted by proponents of the Act on the instructions of President Johnson merely to avoid the …

Two Countries In Crisis: Man Camps And The Nightmare Of Non-Indigenous Criminal Jurisdiction In The United States And Canada, Justin E. Brooks

Vanderbilt Journal of Transnational Law

Thousands of Indigenous women and girls have gone missing or have been found murdered across the United States and Canada; these disappearances and killings are so frequent and widespread that they have become known as the Missing and Murdered Indigenous Women Crisis (MMIW Crisis). Indigenous communities in both countries often lack the jurisdiction to prosecute violent crimes committed by non-Indigenous offenders against Indigenous victims on Indigenous land. Extractive industries—businesses that establish natural resource extraction projects—aggravate the problem by establishing temporary housing for large numbers of non-Indigenous, primarily male workers on or around Indigenous land (“man camps”). Violent crimes against Indigenous …

Sanctions As Virtue-Signaling: Transitioning From Symbolism To Reparation For Rohingya Genocide Victim, Kelsey Peden

American University International Law Review

Kyi sat on the banks of the Inya Lake, saying goodbye to the place they said was no longer her home. The government of Myanmar had given her an option: leave or be arrested. She felt lucky to leave; most activists she knew did not get a warning first. A few kilometers away, her parents’ graves sat cleaned, adorned with fresh flowers. She hoped her sister would keep up the task in her absence, but she hadn’t been able to get ahold of her in quite some time. The feeling of the country was getting more concerned—"frantic" she explained, laughing, …

The Slippery Concept Of "Object And Purpose" In International Criminal Law, Patrick J. Keenan

American University International Law Review

In little more than twenty-five years, the field of international criminal law has grown from a small slice of public international law into a functioning system of international justice, complete with multiple juridical bodies and substantial scholarly attention. Building on the legacy of the Nuremberg Tribunals and drawing from international humanitarian law, human rights law, and domestic criminal law principles, international criminal law has become its own discipline. Creating any new field of law is a complicated endeavor; this is especially true when the field affects and is affected by so many politically sensitive issues. Throughout this doctrinal experiment, one …

The International Criminal Court’S Arbitrary Exercise Of Its Duties Under The Rome Statute To The Benefit Of Western Global Supremacy, Azadeh Shahshahani, Sofia Veronica Montez

Human Rights Brief

The International Criminal Court (ICC) is a constituent institution of the United Nations (UN) that investigates and prosecutes perpetrators of genocide, war crimes, crimes against humanity, and the crime of aggression. Established in 1998 by the Rome Statute, the ICC may open an investigation through referrals by state parties to the Statute; referrals by the UN Security Council; or the prosecutor’s own initiative. Additionally, non-party states may extend qualified jurisdiction to the ICC to prosecute cases within their territories, setting the scope of investigations and prosecutions as well as the dates they shall encompass.

The Rome Statute assigns various other …

Lessons In Movement Lawyering From The Ferguson Uprising, Maggie Ellinger-Locke

Human Rights Brief

Michael Brown was killed by Officer Darren Wilson on August 9, 2014. That day, I was on vacation in Michigan with my family, hanging on the beach and playing in the water. My father passed away from liver cancer exactly four months before, and I made the decision to close down his law practice in the St. Louis, Missouri area, and move to Washington, DC, where my longterm partner had taken a job. The trip to Michigan was supposed to be a stopover on my way to DC; my car was packed to the brim.

Cross-Examination Of Witnesses In Chinese Criminal Courts: Theoretical Debates, Practical Barriers, And Potential Solutions, Zhiyuan Guo

Vanderbilt Journal of Transnational Law

Questioning witnesses is essential for both fact-finding and ensuring the defendant's right to confrontation in criminal trials. Part I introduces the recently released judicial interpretation on the Application of Criminal Procedure Law by China's Supreme Court as a background for discussion of this Article. In Part II, the author sets the stage by arguing that resolution of questions concerning examination and cross-examination of witnesses is essential to the effective achievement of China's trial-centered criminal procedure law reform. In Part III, a historical review is given of the academic debate on the questioning of witnesses in Chinese criminal courts. Part IV …

Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Online intermediaries are omnipresent. Each day across the globe, the corporations running these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes. Online intermediaries, however, are almost never held to account for their complicity in the resulting harms. This Article introduces the concept of platformenabled crimes into the legal literature to highlight the ways in which the ordinary business activities of online intermediaries enable the commission of crime. It then focuses on a subset of platform-enabled crimes—those in which a social media …

Darryl Robinson's Model For International Criminal Law: Deontic Principles Developed Through A Coherentist Approach, Milena Sterio

Law Faculty Articles and Essays

Darryl Robinson’s new book, Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law, presents a compelling argument: that international criminal law would benefit from deontic reasoning. According to Robinson, this type of deontic reasoning “requires us to consider the limits of personal fault and punishability,” and is a “normative reasoning that focuses on our duties and obligations to others.” Moreover, Robinson argues in this book that coherentism is the best method for identifying and defining deontic principles. Robinson explains that coherentism is an approach where “[w]e use all of our critical reasoning tools to test past understandings …

Definition Of The Crime Of Aggression And The Pertinent Conditions Of Practice Of The International Criminal Court In The Light Of The Amendments To The 2010 Kampala Conference, Dr. Zeyad Jaffal

UAEU Law Journal

This study showed the difficulties faced to reach an agreed definition of the crime of aggression since the establishment of the League of Nations in 1919 until the establishment of the International Criminal Court in 1998. In fact, these difficulties are still very problematic even after reaching a definition of this crime in the First Review Conference of the International Criminal Court, which held in Kampala in 2010, either because of the many loopholes contained in this definition or the different interpretations put forward by international jurisprudence around.

This study has concluded that the definition of the crime of aggression, …

A False Messiah? The Icc In Israel/Palestine And The Limits Of International Criminal Justice, Jeremie Bracka

Vanderbilt Journal of Transnational Law

This Article challenges the International Criminal Court’s (ICC) quasi-messianic mandate in the Middle-East. It casts doubt over the legal basis and desirability of an ICC intervention in the situation of Palestine. Despite the prosecutor’s formal opening of an investigation in 2021, there exist formidable obstacles to exercising jurisdiction over Gaza and the Israeli settlements. The Office of the Prosecutor (OTP) faces an uphill battle based on complex territorial and temporal dimensions. Indeed, the admissibility hurdles at the ICC of Palestinian statehood, complementarity, gravity and the interests of justice merit close inquiry. This Article also challenges the ICC as an ideal …

Brain-Computer-Interfacing & Respondeat Superior: Algorithmic Decisions, Manipulation, And Accountability In Armed Conflict, Salahudin Ali

Catholic University Journal of Law and Technology

This article examines the impact that brain-computer-interfacing platforms will have on the international law of armed conflict’s respondeat superior legal regime. Major Ali argues that the connection between the human brain and this nascent technology’s underlying technology of artificial intelligence and machine learning will serve as a disruptor to the traditional mental prerequisites required to impart culpability and liability on commanders for actions of their troops. Anticipating that BCI will become increasingly ubiquitous, Major Ali’s article offers frameworks for solution to BCI’s disruptive potential to the internal law of armed conflict.

Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis

Dickinson Law Review (2017-Present)

Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.

Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …

Leahy—Sharpening The Blade, Nandor F.R. Kiss

Pace International Law Review

Over the course of the last 20 years, the Leahy Law has become one of the cornerstones of foreign and human rights policy. Yet, despite its largely unchallenged importance, field practitioners and other stakeholders have identified a number of substantive and practical deficiencies that greatly diminish the law’s ability to achieve the desired effect, and worse, may pose a risk to the United States’ interests. In reflecting on these deficiencies, and armed with decades of data and anecdotal evidence, this Article proposes adjustments focused on better aligning the law’s intent and effect. These recommendations range from semantic edits to substantive …

It's Complicated: The Challenge Of Prosecuting Tncs For Criminal Activity Under International Law, Jena Martin

Faculty & Staff Scholarship

This essay aims to tackle an increasingly thorny and relevant issue: what do you do if a Transnational Corporation (TNC) commits a crime? The question raises a number of challenges, both philosophically and practically. First, what does it mean to prosecute an organization? Although there are some limited examples (the United States’ prosecution of accounting firm Arthur Andersen being among the most note-worthy), we have relatively little precedence regarding what this would entail; how exactly do you put a corporation on trial? Second, practically speaking, where do you hold the trial? This challenge is magnified by the fact that, by …

Implementation Of International Law In The Criminal Legislation Of The Republic Of Uzbekistan, F. Fazilov

Review of law sciences

In this article, the author analyzes the issues of bringing criminal norms in accordance with the international treaties of the Republic of Uzbekistan.

Implementation Of International Law In The Criminal Legislation Of The Republic Of Uzbekistan, F. Fazilov

Review of law sciences

In this article, the author analyzes the issues of bringing criminal norms in accordance with the international treaties of the Republic of Uzbekistan.

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with the …

User-Generated Evidence, Rebecca Hamilton

Articles in Law Reviews & Other Academic 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 …

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 …

The Evolution Of Pattern Of Criminalizing The Unknown Crime Of Rape In Global Scale, Sahar Jalili

SJD Dissertations

Rape is a crime globally condemned, yet it's one of the most controversial crimes at the time. What this research did was to gather the information of countries' rape laws in their penal codes from all over the world and create a pattern of how countries on a global scale criminalize rape and how far they have changed in the past century. The goal was to produce a rape criminalization map of the world to show which elements are playing the main factors and which factors are missing, how close countries define rape and how different their reactions are.

The …

Corporate Criminal Responsibility For Human Rights Violations: Jurisdiction And Reparations, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Keeping Secrets: The Case For A North American Trade Secret Agreement, Jonathan K. Heath

The Journal of Business, Entrepreneurship & the Law

In this paper, I attempt to give an overview of the statutory trade secret protections available in the United States, Canada, and Mexico, and suggest a solution to the problem of inadequate and confusing trade secret legislation: an international agreement between the NAFTA signatories criminalizing the theft of trade secrets.

Environmental Crimes And Imprisonment: Does Prison Work To Prevent And Punish Environmental Criminals?, Rafael Wolff

Dissertations & Theses

Environmental degradation is a global problem. Humans need natural resources to survive and, as those resources are limited, humans’ use of these resources should respect a sustainable pace established by law. There are many approaches to addressing environmental degradation that do not honor the legal limitations and one of them is through criminal law. The question that is posed in this thesis is whether imprisonment, one of the most severe methods of punishment, is a suitable option to repress and prevent environmental crimes.

This thesis is divided in three chapters. The first chapter discusses why environmental crimes are relevant. It …

Divided We Fall: How The International Criminal Court Can Promote Compliance With International Law By Working With Regional Courts, Tatiana E. Sainati

Vanderbilt Journal of Transnational Law

Kenya's 2007 presidential elections inflamed deep-seeded ethnic tensions in the country, sparking violence that left thousands dead and more than half-a-million civilians displaced. After the bloodshed, Kenya failed to investigate, prosecute, and punish those responsible for the atrocities. The Prosecutor for the International Criminal Court (ICC) launched an investigation into the Kenyan situation, acting under his statutory authority, and eventually brought charges against six high-ranking Kenyans, including President Kenyatta. After years of investigations, the Prosecutor ultimately withdrew the case against the Kenyan President--a potentially fatal failure heralded by some as the death knell of the ICC.

During the course of …

Zero-Tolerance Comes To International Law, Aya Gruber

Publications

No abstract provided.

International Criminal Law: Cases And Materials, Jimmy Gurule, Jordan Paust, Bruce Zagaris, Leila Sadat, Michael Scharf, M. Cherif Bassiouni

Jimmy Gurule

The fourth edition has been significantly updated, especially to reflect case trends in the International Criminal Court and the International Criminal Tribunals for Former Yugoslavia and for Rwanda (encompassing, among other matters, individual responsibility, defenses, war crimes, genocide, and other crimes against humanity). Some of the chapters have new sub-subtitles and relevant domestic cases have been added or noted in various chapters. There are also additions to the Documents Supplement.