Courts Commons^™

Plea Bargaining At The International Criminal Tribunal For The Former Yugoslavia, Ralph Henham, Mark Drumbl

Scholarly Articles

The International Criminal Tribunal for the former Yugoslavia (ICTY) increasingly has turned to plea bargains to resolve the cases before it. A number of factors motor this trend. One is administrative: the ICTY has been subject to considerable pressure from the United Nations Security Council and donor states to accelerate its work. Another is the desire to obtain acknowledgements of responsibility from perpetrators. Moreover, there is concern that, as time passes, the memories of witnesses dim. The rigours of direct and cross-examination may retraumatise those who have survived mass atrocity. ICTY judges also have expressed their understanding that guilty pleas …

Terrorism: The International Response Of The Courts (The Institute For Advanced Study Branigin Lecture), Michael D. Kirby

Indiana Journal of Global Legal Studies

The Institute for Advanced Study Branigin Lecture

Fig Leaves, Fairytales, And Constitutional Foundations: Debating Judicial Review In Britain, Lori A. Ringhand

Scholarly Works

This paper examines an ongoing debate about the origins and legitimacy of judicial review as practiced in Britain. I begin by examining how British law traditionally has attempted to justify judicial review of governmental actions. I then discuss how that orthodox view has been challenged, and how the proponents of the orthodoxy responded to that challenge. In doing so, I explain how the British debate has evolved into a far-reaching examination of the role of interpretive methodologies in legitimating judicial power. I conclude by exploring how the richness and depth of the British discussion can inform the larger debate about …

The Ictr And Justice For Rwandan Women, Mark A. Drumbl

Scholarly Articles

In this article, I hope to spring from the discussion of the ICTR's gender jurisprudence to a broader conversation that touches on the relationship between this jurisprudence and life for Rwandan women today. In particular, I'd like to consider three questions: What do both the gender jurisprudence and the jurisprudence at large of the ICTR mean to women, individually and collectively, in Rwanda? How do other modalities of accountability that operate in postgenocide Rwanda respond to gender violence and promote gender equality? What is the situation of Rwandan women today?

Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I, Rachel Vorspan

Vanderbilt Journal of Transnational Law

In this-Article Professor Vorspan examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on detention, deportation, conscription, and confiscation of property, the Author revises the conventional depiction of the English judiciary during World War I as passive and peripheral. She argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal freedom. Second, they …

The Writ Of Habeas Corpus And The Special Court For Sierra Leone: Addressing An Unforeseen Problem In The Establishment Of A Hybrid Court, Anthony O'Rourke

Journal Articles

No abstract provided.

Altmann V. Austria And The Retroactivity Of The Foreign Sovereign Immunities Act, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Republic of Austria v. Altmann, the U.S. Supreme Court decided that the Foreign Sovereign Immunities Act of 1976 (FSIA) generally applies to claims based on events that occurred before the Statute's enactment. To decide the retroactivity question, the Court had occasion to consider the essential nature of foreign sovereign immunity: is it merely a procedural immunity providing foreign states with present protection from the inconvenience and indignity of a lawsuit, or is it something more than that? The Court's examination of this question was brief and unsatisfying. Its analysis would have been enriched by a recognition that foreign …

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Faculty Scholarship

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

Foreword: Rethinking Reconstruction After Iraq, Diane Marie Amann

Scholarly Works

Foreword to a symposium held on March 12, 2004 by the UC Davis Journal of International Law & Policy. Entitled “Rethinking Reconstruction After Iraq,” the symposium was designated a regional meeting of the American Society of International Law and the American Branch of the International Law Association, and further was sponsored by the American National Section of the International Association of Penal Law and the International Human Rights Committee of the Bar Association of San Francisco.

Hong Kong Right Of Abode: Ng Siu Tung & (And) Others V. Director Of Immigration - Constitutional And Human Rights At The Mercy Of China, Teresa Martin

San Diego International Law Journal

This Comment argues that the Court's refusal to sidestep the Standing Committee's reinterpretation using either the Doctrine of Legitimate Expectation, or the judgments previously rendered clause in the Basic Law, signifies its capitulation to the Standing Committee, and its inability to protect constitutional rights and/or human rights in Hong Kong. This Comment will first give a brief background on the concept of one country, two systems and the drafting of the basic law. Second, it will introduce the Right of Abode cases, and explain the constitutional crisis of 1999. Third, it analyzes Ng Siu Tung & Others v. Director of …

Military Detention And The Judiciary: Al Qaeda, The Kkk And Supra-State Law, Wayne Mccormack

San Diego International Law Journal

This Article touches on the choice of whether to use the language and tools of war or the language and tools of law enforcement in responding to terrorism. The principal focus, however, is on the limited issue of judicial review and military detentions. The Article reviews the case law created on this subject during the Civil War and World War II. Historical considerations are found by the author to be relevant and helpful in solving the incoherency of current legal responses to terrorism. For instance, indefinite military detention is not coherent with either the international law concept of violations of …

From The Nuremberg Charter To The Rome Statute: Defining The Elements Of Crimes Against Humanity, Mohamed Elewa Badar

San Diego International Law Journal

The purpose of this study is to examine the past and present contours of the prohibition of "crimes against humanity", analyzing and scrutinizing the essential elements of this crime, with a view to obtaining and drawing together basic criteria that could eventually guide the adjudication of this offence. Furthermore, this clarification of "crimes against humanity" is particularly timely with respect to the soon functioning International Criminal Court (ICC).

Soldiers Of Semipalatinsk: Seeking A Theory And Forum For Legal Remedy, Anne Miers Kammer

San Diego International Law Journal

This Comment will address the unique dilemma of individuals in Kazakhstan whose health has been compromised by the former Soviet Union's 40-year period of nuclear testing on what is now Kazakhstan soil. The principal legal analysis of this Comment will focus on the availability of remedies (in the form of monetary damages available through legal resolution) to the citizens and/or state of Kazakhstan, and potential judicial forums in which to seek those remedies. Particular attention will be paid to the comparative likelihood of successful remedial legal action if pursued by a private class of Kazakhstan citizens versus action pursued by …

Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis

ExpressO

Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.

This article explores …

Rulemaking From The Bench: A Place For Minimalism At The Icty, Megan A. Fairlie

Faculty Publications

This article explores the ability of the International Criminal Tribunal for the former Yugoslavia to create and amend its own Rules of Procedure and Evidence. It also focuses on the manner in which the Tribunal addresses issues that arise, throughout the course of its proceedings, for which its statute and rules are silent. This article advances the theory that, when confronted with issues that are controversial, complex, or for which there is a lack of consensus among national legal systems or the Tribunal’s judiciary, the Court should simply decide the case before it rather that create broad and binding rules. …

Prosecutor V Radislav Krstić: Icty Authenticates Genocide At Srebrenica And Convicts For Aiding And Abetting, Mark Drumbl

Scholarly Articles

The Krstić Appeals Chamber decision makes two major contributions to international criminal law. It also provides a number of additional insights and clarifications. In this case note, I will critically examine the two major contributions. Firstly, Krstić authenticates that genocide was in fact perpetrated against the Bosnian Muslims of Srebrenica. This serves an important didactic purpose. Srebrenica is the only incidence of genocide the ICTY has found amidst the pervasive violence that roiled the former Yugoslavia. Secondly, Krstić narrows the scope of joint criminal enterprise as a mechanism to attribute individual criminal liability for acts perpetrated by groups acting collectively. …

When A Good Idea Is Poorly Implemented: How The International Criminal Court Fails To Be Insulated From International Politics And To Protect Basic Due Process Guarantees, Andrew J. Walker

West Virginia Law Review

No abstract provided.

Separations, Blow-Outs, And Fallout: A Treadise On The Regulatory Aftermath Of The Ford-Firestone Tire Recall, 37 J. Marshall L. Rev. 1073 (2004), Kevin M. Mcdonald

UIC Law Review

No abstract provided.

Fragmentation Of International Law And Establishing An Accountability Regime For International Organizations: The Role Of The Judiciary In Closing The Gap, Karel Wellens

Michigan Journal of International Law

In the mid-nineties, the Editorial Board of the Netherlands Yearbook of International Law decided to select the diversity in secondary rules and the unity of international law as a topic to celebrate the Yearbook's twenty-fifth anniversary. The focus was on sources, responsibility, countermeasures, and dispute settlement, thus reflecting Hart's secondary rules of recognition, change, and adjudication.

Courts And Globalization, Sir David Williams David Q. C.

Indiana Journal of Global Legal Studies

Globalization, Courts, and Judicial Power Symposium

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Cardozo Journal of Conflict Resolution

This Article will consider mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article will outline how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation's citizens as "justice." The Article will then highlight particular aspects of the changing picture of the American civil justice system to suggest that today's sprawling and multitiered structure is increasingly disengaged from its democratic roots. Finally, the Article …

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 …

Guantánamo, Diane Marie Amann

Scholarly Works

This article addresses not only offshore detainees at Guantánamo and elsewhere, but also the two Americans and one Qatari held in the United States as enemy combatants. It focuses on the critical issues in U.S. litigation - extraterritoriality and deference - yet also examines the scope of detention and the propriety of proposed special tribunals. After demonstrating that in the wake of September 11, 2001, no U.S. constitutional precedent governed these issues, the article then looks to norms drawn from international humanitarian and human rights law to aid decision. The Supreme Court increasingly consults such external norms as persuasive authority; …

National Courts, Global Cartels: F. Hoffman-Laroche V. Empagran, S.A., Hannah Buxbaum

Articles by Maurer Faculty

This comment discusses the Supreme Court's recent decision in Hoffman-LaRoche v. Empagran, an action brought by foreign plaintiffs under U.S. antitrust law to recover damages caused by the activities of a global price-fixing cartel. It describes the jurisdictional issues raised by conduct that affects the global market for a particular good, and analyzes the Court's reliance on notions of comity to restrain the reach of U.S. antitrust law. It argues, however, that the decision does not in fact undermine the anti-comity approach adopted in the 1993 Hartford Fire case, as the Court here assumes that the cartel's effects in the …

Whose Justice - Reconciling Universal Juristidiction With Democratic Principles, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Order In The Court: Judicial Stability And Democratic Success In Haiti, Ben J. Scott

Vanderbilt Journal of Transnational Law

Haiti faces many challenges in its attempt to build a stable, liberal democracy. Haitians have endured a legacy of chaotic and heavy-handed rule in recent decades, and the success of democracy in Haiti is both hoped for and doubted by Haitians and the international community. One reason for the doubts has been the failure of the Haitian government successfully to implement free and fair elections. Citizens and candidates are often hesitant even to participate in elections. Though both were tragic, neither the failed legislative and presidential elections of 2000, nor the subsequent coup d'etat in 2004 that resulted in the …

Unilateral Multilateralism: United States Policy Toward The International Criminal Court, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Federal Courts, International Tribunals, And The Continuum Of Deference: A Postscript On Lawrence V. Texas, Roger P. Alford

Journal Articles

Last year, in the pages of this journal, I published an article addressing the role of international tribunal decisions in federal courts.1 In that article, it was suggested that federal courts should confer varying degrees of deference to international tribunal decisions depending on the circumstances presented. Such degrees of deference were plotted along a "continuum of deference." See: Federal Courts, International Tribunals, and the Continuum of Deference

The purpose of this brief Postscript is to reconsider the "no deference" model in light of the Supreme Court's decisions in Bowers and Lawrence. The Postscript elucidates why Lawrence relied on an international …