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Full-Text Articles in Law

Long Live Joint Criminal Enterprise: With A Particular Reference To Tadić’S Interactive Construction Between “The Beast” And Specific Direction, Miguel Ângelo Loureiro Manero De Lemos Dec 2022

Long Live Joint Criminal Enterprise: With A Particular Reference To Tadić’S Interactive Construction Between “The Beast” And Specific Direction, Miguel Ângelo Loureiro Manero De Lemos

San Diego International Law Journal

The idea that Joint Criminal Enterprise, in particular its extended version, contravenes fundamental principles of criminal law has gained track. Thus, not only did the International Criminal Court distance itself from the construct but, today, the widely held view is that the extended version should be discarded, not least because it is not grounded in customary international law. This Article challenges that view. While addressing scholarly criticism towards Joint Criminal Enterprise, and demonstrating why the “beast” is a solid construction, it argues that prosecutors and judges must look past the written provisions of the Statute of the International Criminal Court …


Weaving A Broader Tapestry, Mark A. Drumbl Jan 2021

Weaving A Broader Tapestry, Mark A. Drumbl

Scholarly Articles

This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020).

Charles Jalloh delivers a comprehensive and authoritative survey of the legacy—in law—of the Special Court for Sierra Leone (SCSL). Through compendious research and considerable personal experience, Jalloh tracks the SCSL’s jurisprudential contributions and legal footprints upon a number of doctrinal areas: child soldiering, forced marriage, immunities, personal jurisdiction, and amnesties. Jalloh also examines the SCSL’s interface with Sierra Leone’s truth commission. Indeed, the SCSL is among the few …


Social Contract Theory And Transitional Justice: A Philosophical Approach To A Problem Of Global Importance, Brendan Moriarty Jun 2020

Social Contract Theory And Transitional Justice: A Philosophical Approach To A Problem Of Global Importance, Brendan Moriarty

Dissertations, Theses, and Capstone Projects

In this thesis, I seek to bring together two areas of scholarly work to see how each can inform the other: social contract theory and transitional justice. The social contract, as it exists and as it was theorized about by Rousseau, was born from the world-historic forces that spread capitalism across the globe, stirring up nationalism everywhere it went. In its wake, there was vast inequality and new legal regimes which protected the hoarded wealth of the capitalist class by enshrining the right of private property along with life and liberty. To examine the intricacies of transitional justice and its …


Legal Frameworks For Protecting Cultural Heritage In Conflict Zones, Marcie M. Muscat Jan 2020

Legal Frameworks For Protecting Cultural Heritage In Conflict Zones, Marcie M. Muscat

Dissertations and Theses

Cultural heritage has always been at risk during times of war. UNESCO first endeavored to address the issue shortly after World War II, in 1954, when it passed the first of three signature conventions to protect against the damage, destruction, and pillage of cultural property in times of armed conflict. Lacunae and other deficiencies in their frameworks, however, rendered these conventions difficult to enforce and largely ineffectual. This study offers an assessment of the strengths and limitations of the UNESCO system of cultural-heritage protection, with a particular focus on the 1954 Hague Convention. It is argued that, by superseding certain …


Memories Of Judgment: Constructing The Icty's Legacies, Diane Orentlicher Jan 2020

Memories Of Judgment: Constructing The Icty's Legacies, Diane Orentlicher

Articles in Law Reviews & Other Academic Journals

As the title of this symposium reflects, a critically important dimension of the Tribunal's legacy is its role in understanding the war and genocide in Bosnia. In my remarks, I want to drill down on the word "understanding," one of the most complex facets of the ICTY's legacy. In brief, I will make four points. The first is that the ICTY's expected contribution to understanding the 1990s conflict in Bosnia and the atrocities associated with that conflict was deeply important to many individuals whom I have interviewed in Bosnia-Herzegovina, as well as in Serbia, about the ICTY's impact in their …


The Legal Fog Of An Illusion: Three Reflections On "Organization" And "Intensity" As Criteria For The Temporal Scope Of The Law Of Non-International Armed Conflict, Jann K. Kleffner Jun 2019

The Legal Fog Of An Illusion: Three Reflections On "Organization" And "Intensity" As Criteria For The Temporal Scope Of The Law Of Non-International Armed Conflict, Jann K. Kleffner

International Law Studies

The "organization" of the non-State armed group and the "intensity" of the violence between it and its opponent(s) have emerged as the two key criteria to determine the temporal scope of the law of non-international armed conflict. These criteria have served to lift the fog of law in some important respects. Yet, several aspects of the temporal scope of the law of non-international armed conflict remain unsettled. This article addresses three of them, namely the assertion that the factors for ascertaining organization and intensity that have evolved in the jurisprudence of international criminal courts and tribunals are indicative rather than …


No Witness, No Case: An Assessment Of The Conduct And Quality Of Icc Investigations, Dermot Groome Apr 2019

No Witness, No Case: An Assessment Of The Conduct And Quality Of Icc Investigations, Dermot Groome

Dermot M Groome

The conduct and quality of investigations pursued by the Office of the Prosecutor of the International Criminal Court have come under increasing scrutiny and criticism from judges on the Court. Criticism is directed at the time and length of investigations; the quality of the evidence advanced in court; the inappropriate delegation of investigative functions, and the failure to interview witnesses in a way that is consistent with the Prosecution’s obligation to conduct investigations fairly under Article 54 of the Rome Statute. This essay explores these criticisms and concludes that the judges are justified in their concerns regarding the Prosecution’s investigative …


Nineteen Minutes Of Horror: Insights From The Scorpions Execution Video, Iva Vukušić Oct 2018

Nineteen Minutes Of Horror: Insights From The Scorpions Execution Video, Iva Vukušić

Genocide Studies and Prevention: An International Journal

After the fall of Srebrenica in summer of 1995, the Scorpions unit, dispatched to support the Bosnian Serb Army as it took over the enclave, shot six men in Trnovo. The men, three of whom were underage, were some of thousands of Bosnian Muslims that fell into the hands of Bosnian Serb troops, and that were executed in the days and weeks following July 11th. A member of the unit filmed the execution. Fragments of the video were first shown during the Slobodan Milosevic trial, and multiple times in the years after, in the courtrooms in The Hague and Belgrade. …


Epilogue: Homecoming Kings, Queens, Jesters, And Nobodies, Mark A. Drumbl Jan 2018

Epilogue: Homecoming Kings, Queens, Jesters, And Nobodies, Mark A. Drumbl

Scholarly Articles

This epilogue unpacks the return of convicted war criminals as homecomings, with all the attendant rites, rituals, and expectations. Knotting together the various papers in this edited collection, this paper examines how the international community constructs an ideal homecoming and, in turn, how such a construction may simply be fanciful.


Pluralism In International Criminal Procedure, Jenia I. Turner Jan 2018

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,” …


An Overview Of Justice In The Former Yugoslavia And Reflections For Accountability In Syria, Professor Jennifer Trahan Jan 2017

An Overview Of Justice In The Former Yugoslavia And Reflections For Accountability In Syria, Professor Jennifer Trahan

ILSA Journal of International & Comparative Law

This article provides an overview of justice for crimes perpetrated in the former Yugoslavia during the wars in the 1990s.


Lawyers Without Borders, Catherine A. Rogers Apr 2016

Lawyers Without Borders, Catherine A. Rogers

Catherine Rogers

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …


Spandau Revisited: The Question Of Detention For International War Crimes, Mary Margaret Penrose Jul 2015

Spandau Revisited: The Question Of Detention For International War Crimes, Mary Margaret Penrose

Meg Penrose

Drazen Erdemovic. The name may be unfamiliar to many outside the former Yugoslavia. The name will surely be unknown by most people outside the international community and those committed to the universal protection of human rights through criminal prosecution. Drazen Erdemovic is a confessed killer. Drazen Erdemovic has confessed to killing somewhere between seventy and one hundred unarmed Muslims in a mass execution as a member of the Bosnian Serb army in July 1995. In this regard, he is the first convicted defendant to stem from the International Criminal Tribunal for the former Yugoslavia (ICTY) established by the United Nations …


Regulating Hostilities In Non-International Armed Conflicts: Thoughts On Bridging The Divide Between The Tadić Aspiration And Conflict Realities, Geoffrey S. Corn May 2015

Regulating Hostilities In Non-International Armed Conflicts: Thoughts On Bridging The Divide Between The Tadić Aspiration And Conflict Realities, Geoffrey S. Corn

International Law Studies

International Humanitarian Law (IHL) evolved to strike a rational balance between the necessity of using combat power to defeat enemy opponents, and the humanitarian interest of mitigating the human suffering resulting from armed conflict. Ironically, however, the “type” of conflict most comprehensively regulated by this law—international or inter-State (IACs)—is not the “type” of armed conflict that has been most notable for producing humanitarian suffering since the end of World War II. Instead, non-international armed conflicts (NIACs)—conflicts between States and organized non-State belligerent groups, or even between multiple non-State belligerent groups—have been notorious for their brutality, indifference towards humanitarian restraint, and …


Alternate Judges As Sine Qua Nons For International Criminal Trials, Megan A. Fairlie Jan 2015

Alternate Judges As Sine Qua Nons For International Criminal Trials, Megan A. Fairlie

Faculty Publications

When one of the three judges hearing the case against Vojislav Šešelj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge — who has not spent a single day participating in the proceedings — has familiarized himself with the trial record. This article demonstrates why the plan to proceed with a new judge is both procedurally illegitimate and markedly at odds with the ICTY’s statutory guarantee of a …


The Surprising Acquittals In The Gotovina And Perišić Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep’S Clothing?, Mark A. Summers Jan 2015

The Surprising Acquittals In The Gotovina And Perišić Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep’S Clothing?, Mark A. Summers

Richmond Journal of Global Law & Business

No abstract provided.


Second-Order Linking Principles: Combining Vertical And Horizontal Modes Of Liability, Jens David Ohlin Dec 2014

Second-Order Linking Principles: Combining Vertical And Horizontal Modes Of Liability, Jens David Ohlin

Jens David Ohlin

Both the ICTY and the ICC have struggled to combine vertical and horizontal modes of liability. At the ICTY, the question has primarily arisen within the context of ‘leadership-level’ JCEs and how to express their relationship with the Relevant Physical Perpetrators of the crimes. The ICC addressed the is-sue by combining indirect perpetration with co-perpetration to form a new mode of liability known as indirect co-perpetration. The following article argues that these novel combinations — vertical and horizontal modes of liability — cannot be simply asserted; they must be defended at the level of criminal law theory. Unfortunately, courts that …


Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin Dec 2014

Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin

Jens David Ohlin

International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law - punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency - the lack of a unique theory of punishment …


The Erdemovic Sentencing Judgement: A Questionable Milestone For The International Criminal Tribunal For The Former Yugoslavia, Sienho Yee Oct 2014

The Erdemovic Sentencing Judgement: A Questionable Milestone For The International Criminal Tribunal For The Former Yugoslavia, Sienho Yee

Georgia Journal of International & Comparative Law

No abstract provided.


When Skeletons Come Out Of The Closet: Implications Of The Bosnian Genocide Decision For Serbia's Eventual Eu Accession, Edina Slomic Sep 2014

When Skeletons Come Out Of The Closet: Implications Of The Bosnian Genocide Decision For Serbia's Eventual Eu Accession, Edina Slomic

Georgia Journal of International & Comparative Law

No abstract provided.


Sexual Violence Against Men And Women In War: A Masculinities Approach, Valorie K. Vojdik Jun 2014

Sexual Violence Against Men And Women In War: A Masculinities Approach, Valorie K. Vojdik

Nevada Law Journal

No abstract provided.


Gender And Armed Conflict, Christine Chinkin May 2014

Gender And Armed Conflict, Christine Chinkin

Book Chapters

The construction of social sex and gender roles means that armed conflict is sexed and gendered. Men still make up the majority of the fighting forces, while women's generally unequal and subordinate social and economic position makes them vulnerable in particular ways during conflict. Women and men, girls and boys all suffer gender-based violence. Such violence is directed at a person because of his or her gender. For instance men sustain specific harms such as disappearances and deliberate killings in greater numbers than women, while women disproportionately experience sexual violence. The detention of Bosnian Muslims at Potocari on 12 July …


International Institutions And The Resource Curse, Patrick Keenan Apr 2014

International Institutions And The Resource Curse, Patrick Keenan

Penn State Journal of Law & International Affairs

Many countries that are richly endowed with natural resources have failed to turn that resource wealth into sustained development. In many places, a small coterie of elites has become rich while most citizens see little benefit from their country’s vast resource wealth. A principal cause of this problem, often called the resource curse, is weak domestic institutions that permit leaders to enrich themselves and ignore the development needs of the country. From this, most scholars and policymakers have concluded that the way to fix the resource curse is to reform domestic institutions.

This article challenges the conventional wisdom and argues …


The Arab Spring’S Four Seasons: International Protections And The Sovereignty Problem, Jillian Blake, Aqsa Mahmud Apr 2014

The Arab Spring’S Four Seasons: International Protections And The Sovereignty Problem, Jillian Blake, Aqsa Mahmud

Penn State Journal of Law & International Affairs

In December 2010, public demonstrations erupted throughout the Middle East against autocratic regimes, igniting a regional political transformation known as the Arab Spring. Depending on events, modern international criminal and humanitarian law provided certain protections to vulnerable populations. However, international law did not provide a uniform degree of protection to civilians and combatants who faced similar circumstances. This Article argues for a uniform standard of protections for all populations affected by armed conflict, war crimes, and crimes against humanity. It evaluates each of five major Arab Spring uprisings (Tunisia, Bahrain, Egypt, Syria, and Libya) and describes the legal protections that …


The Impact Of The Icty On Atrocity-Related Prosecutions In The Courts Of Bosnia And Herzegovina, Yaël Ronen Apr 2014

The Impact Of The Icty On Atrocity-Related Prosecutions In The Courts Of Bosnia And Herzegovina, Yaël Ronen

Penn State Journal of Law & International Affairs

The International Criminal Tribunal for Yugoslavia was not mandated to proactively promote domestic prosecutions of war-related crimes. However, its operation may have had some impact on domestic proceedings concerning war-related crimes in Bosnia and Herzegovina. The object of this article is to identify and explain this impact, with respect to qualitative (institutional legal capacities), quantitative (rates of prosecution and trends in sentencing), and normative (the adoption and application of criminal law norms) benchmarks.


The Limits Of Judicial Idealism: Should The International Criminal Court Engage With Consequentialist Aspirations?, Shahram Dana Apr 2014

The Limits Of Judicial Idealism: Should The International Criminal Court Engage With Consequentialist Aspirations?, Shahram Dana

Penn State Journal of Law & International Affairs

Idealism about what international criminal justice mechanisms can achieve has lead to ideologically driven judicial decision-making in international criminal law (ICL). ICL idealism manifests itself in the belief that international criminal prosecutions can achieve an awesome array of goals. These include retribution, deterrence, reconciliation, rehabilitation, incapacitation, restoration, building a historical record, preventing revisionism, expressive and didactic functions, crystallizing international norms, general affirmative prevention, establishing peace, preventing war, vindicating international law prohibitions, setting standards for fair trials, combating impunity, and more. Ironically, this idealistic overreach, although usually well intended, has actually contributed to the politicization of the international judicial process.

The …


No Witness, No Case: An Assessment Of The Conduct And Quality Of Icc Investigations, Dermot Groome Apr 2014

No Witness, No Case: An Assessment Of The Conduct And Quality Of Icc Investigations, Dermot Groome

Penn State Journal of Law & International Affairs

The conduct and quality of investigations pursued by the Office of the Prosecutor of the International Criminal Court have come under increasing scrutiny and criticism from judges on the Court. Criticism is directed at the time and length of investigations; the quality of the evidence advanced in court; the inappropriate delegation of investigative functions, and the failure to interview witnesses in a way that is consistent with the Prosecution’s obligation to conduct investigations fairly under Article 54 of the Rome Statute. This essay explores these criticisms and concludes that the judges are justified in their concerns regarding the Prosecution’s investigative …


Destroying The Legacy Of The Icty: Analysis Of The Acquittals Of Jovica Stanišic And Franko Simatović, Katherine Pruitt Jan 2014

Destroying The Legacy Of The Icty: Analysis Of The Acquittals Of Jovica Stanišic And Franko Simatović, Katherine Pruitt

San Diego International Law Journal

In a 2005 press release by the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), Chief Prosecutor Carla Del Ponte stated “[t]he debate on war crimes in the former Yugoslavia is not subsiding. It is present in the daily life and media, and always politicised . . . I am much more concerned about the victims of war crimes and their families, and I appeal to you to make the victim aspect of any legal process a priority.” Despite this stated dedication to war crimes victims and their families, the ICTY’s Trial Chamber (“Chamber”) recently acquitted two state security officials …


The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing?, Mark A. Summers Jan 2014

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing?, Mark A. Summers

Richmond Journal of Global Law & Business

No abstract provided.


Classification Of Cyber Conflict, Michael N. Schmitt Dec 2013

Classification Of Cyber Conflict, Michael N. Schmitt

International Law Studies

No abstract provided.