Criminal Law Commons^™

The Complexity Of International Criminal Trials Is Necessary, 48 Geo. Wash. Int'l L. Rev. 151 (2015), Stuart Ford

UIC Law Open Access Faculty Scholarship

There is a widespread belief among both academics and policymakers that international criminal trials are too complex. As a result, tribunals have come under enormous pressure to reduce the complexity of their trials. However, changes to trial procedure have not meaningfully affected trial complexity. This Article explains why these changes have failed and argues that the complexity of international criminal trials is necessary for them to achieve their purposes.

Using a multiple regression model of the factors driving trial complexity at the International Criminal Tribunal for the former Yugoslavia (ICTY), this Article shows that the largest drivers of complexity are …

Self-Interest Or Self-Inflicted? How The United States Charges Its Service Members For Violating The Laws Of War, Chris Jenks

Faculty Journal Articles and Book Chapters

This chapter explores the aspects of self-interest implicated by the US military prosecuting its own service members who violate the laws of war under different criminal charges than it prosecutes enemy belligerents who commit substantially similar offences. The chapter briefly explains how the US asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the …

Non-State Armed Groups And The Role Of Transnational Criminal Law During Armed Conflict, Christopher L. Blakesley, Dan E. Stigall

Scholarly Works

With the ascendance of the terrorist group known as the Islamic State of Iraq and Syria (ISIS), the international community has struggled to adapt to the new international security context. Among the challenges that are currently being confronted are questions relating to how states may effectively facilitate international cooperation to counter ISIS (especially among countries in the Middle East and North Africa). Within this context, guidance from the United Nations on international cooperation posits that “[t]he universal counter-terrorism conventions and protocols do not apply in situations of armed conflict” – a legal position that would serve to stymie important cooperative …

Proceedings Of The Ninth International Humanitarian Law Dialogs, International Criminal Law: Year In Review 2014–2015, Mark A. Drumbl

Scholarly Articles

This publication is based on Professor Drumbl's remarks on September 1, 2015, at the Ninth International Humanitarian Law Dialogs held in Chautauqua, New York.

What I do not want to do is review and repeat what has already been said about the international arena. I thought what I would do is boil it down to a couple observations that I have about the activities at the international institutions over the past year, and discuss four elements that have emerged.

One is transition. What I mean by this is that the work of a number of the international institutions is winding …

Human Rights Thinking And The Laws Of War, David Luban

Georgetown Law Faculty Publications and Other Works

In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person…. The general principle of respect for human dignity is . . . the very raison d'être of international humanitarian law and human rights law.”

Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is …

Explaining Inhumanity: The Use Of Crime-Definition Experts At International Criminal Courts, Caroline Davidson

Vanderbilt Journal of Transnational Law

International criminal courts must not only decide the guilt or innocence of defendants in immensely serious cases, but also make good law in the process. To help them do so, these courts have turned to experts. This Article identifies a type of expert witness that, thus far, has escaped scholarly attention: the crime-definition expert. Crime-definition experts have provided expert reports and testimony to international criminal courts on the meaning of the very crimes with which defendants are charged, including genocide, forced marriage, and recruitment and use of child soldiers. This Article critically evaluates the risks associated with using crime-definition experts …

Predictive Due Process And The International Criminal Court, Samuel C. Birnbaum

Vanderbilt Journal of Transnational Law

The International Criminal Court (ICC) operates under a regime of complementarity: a domestic state prosecution of a defendant charged before the ICC bars the Court from hearing the case unless the state is unable or unwilling to prosecute the accused. For years, scholars have debated the role of due process considerations in complementarity. Can a state that has failed to provide the accused with adequate due process protections nonetheless bar a parallel ICC prosecution? One popular view, first expressed by Professor Kevin Jon Heller, holds that due process considerations do not factor into complementarity and the ICC could be forced …

Arendt On The Crime Of Crimes, David Luban

Georgetown Law Faculty Publications and Other Works

Genocide–-the intentional destruction of groups “as such”–-is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.

Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her …

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

Vanderbilt Journal of Transnational Law

When one of the three judges hearing the case against Vojislav Seselj 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 had not spent a single day participating in the proceeding--had familiarized himself with the trial record. This Article demonstrates why the plan to proceed with a new judge in Seselj's case was both procedurally illegitimate and markedly at odds with the ICTY's statutory guarantee of a fair …

The Faults In "Fair" Trials: An Evaluation Of Regulation 55 At The International Criminal Court, Margaux Dastugue

Vanderbilt Journal of Transnational Law

Despite its reputation as a "provision of an exceptional nature," Regulation 55 has become one of the most contested procedural devices employed by the judges at the International Criminal Court (ICC). Hailing from civil law tradition, Regulation 55 permits the ICC to modify the charges against an accused at any time--either during or after the trial--if the judiciary decides it cannot convict the accused on the original charges. This use of Regulation 55 in three of the ICC's seven trials has demonstrated that the ICC cannot effectively safeguard a defendant's fundamental trial rights: the right to be informed of charges, …

Repatriation Of Korean Cultural Property Looted By Japan-Can A Sincere Apology Resolve The Centuries-Old Korea/Japan Disputes?, Melissa (Youngjae) Koo

Cardozo Journal of Conflict Resolution

This Note will focus on the disputes between Korea, both North and South Korea, and Japan surrounding Korean cultural property looted by Japan and will explore concrete solutions for resolving such issues through alternative dispute resolution-more specifically, an apology. It will consider two predominant exampies of cultural property looting, which occurred during Japanese invasions of Korea-first, at the end of the sixteenth century and, the second, from 1910 to 1945. Additionally, Japan has frequently been characterized as being a "significant market" for stolen cultural property. It is reported that there are at least 34,157 objects of Korean origin in Japan, …

Trade Secret Hacking, Online Data Breaches, And China’S Cyberthreats, Peter K. Yu

Cardozo Law Review de•novo

Taking advantage of the forum provided by this timely Symposium, this Article closely examines the ongoing debate on China’s sustained effort in using online hacking and other intrusive techniques to steal trade secrets and proprietary data from U.S. businesses. Part I outlines the five common narratives that have thus far been advanced to recount this widely criticized effort. Sensing the narratives’ negative overtones, Part II offers five modest suggestions on how a more positive debate can be constructed to help identify ways to reduce online hacking and data breaches as well as to enhance the protection of trade secrets and …

Foreword | Contested Justice: The Politics And Practice Of Internationcontested Justice, The Politics And Practice Of International Criminal Court Interventionsal Criminal Court Interventions, Ruti G. Teitel

Articles & Chapters

No abstract provided.

From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies, Roger-Claude Liwanga

Brooklyn Journal of International Law

Over the last seven decades, there has been a global proliferation of international and regional human rights tribunals. But with no coercive power to enforce their judgments, these international tribunals rely either on the good faith of the State parties or on the political process for the implementation of their remedial orders. This nonjudicial approach to enforcement has showed its limits, as most State parties are noncompliant with international judgments to the detriment of human rights victims. This article recommends a new approach involving the judicialization of the post-adjudicative stage of international proceedings as an avenue to increase the enforceability …

The Right To No: The Crime Of Marital Rape, Women's Human Rights, And International Law, Melanie Randall, Vasanthi Venkatesh

Brooklyn Journal of International Law

More than half of the world’s countries do not explicitly criminalize sexual assault in marriage. While sexual assault in general is criminalized in these countries, sexual assault perpetrated by a spouse is entirely legal. The human rights violations inhere in acts of violence against women are now well recognized. Yet somehow marital rape is a particular form of gendered violence that has escaped both criminal law sanctions and human rights approbation in a great number of the world’s nations.

This silence in the law creates legal impunity for men who sexually assault or rape the women who are their wives …

Roper V. Simmons - Supreme Court's Reliance On International Law In Constitutional Decision-Making, Jessica Mishali

Touro Law Review

No abstract provided.

Extradition - Denial Of Asylum - Withholding Deportation - Different Tactics Used By The Attorney General To Deliver Provisional Irish Republican Army Members To The British: Doherty V. United States, 908 F.2d 1108 (2d Cir. 1990), William Roebuck

Georgia Journal of International & Comparative Law

No abstract provided.

Transborder Abductions By American Bounty Hunters - The Jaffe Case And A New Understanding Between The United States And Canada, Kristofer R. Schleicher

Georgia Journal of International & Comparative Law

No abstract provided.

European Court Of Human Rights - Extradition - Inhuman Or Degrading Treatment Or Punishment, Soering Case, 161 Eur. Ct. H.R. (Ser. A) (1989), David L. Gappa

Georgia Journal of International & Comparative Law

No abstract provided.

A Contextualized Account Of General Principles Of International Law, Michelle Biddulph, Dwight Newman

Pace International Law Review

This Article examines general principles of international law through the innovative means of comparing their use in four different, novel areas of international law—international environmental law, international investment law, international criminal law, and international indigenous rights. By doing so, the Article is able to make the distinct claim that there is no one, single methodology for analysis of general principles of international law. Rather, each area of international law tends to use a methodology suited to its policy objectives and overall characteristics as a specific area of law. The Article characterizes two predominant academic approaches to general principles: a purely …

A Spectrum Of International Criminal Procedure: Shifting Patterns Of Power Distribution In International Criminal Courts And Tribunals, Jessica Peake

Pace International Law Review

Using the pure adversarial model expounded in part I (a) as the baseline for analysis, Parts II, III and IV of this article will explore the procedural evolution that has taken place at the International Criminal Tribunal for the Former Yugoslavia (II), the International Criminal Court (III) and the Extraordinary Chambers in the Courts of Cambodia (IV). Part V will then plot the structural and procedural shifts that have taken place at those courts onto the spectrum of procedure identified in part I (c), before concluding, in Part VI, with what these shifts teach us about the convergence of adversarial …

Excuses, Justifications, And Duress At The International Criminal Tribunals, Noam Wiener

Pace International Law Review

This article examines the application of the defense of duress by international criminal tribunals through analyzing opposing theoretical approaches to justifications and excuses. The purpose of this examination is twofold. First, the article offers a framework for duress’s application by examining scholarly approaches to duress and by analyzing the application of the defense by international tribunals. This analysis includes the tribunals constituted following the Second World War and International Criminal Tribunal for the Former Yugoslavia (ICTY). Second, the article provides insight into the underlying rationales that guide judges at the international tribunals in the last decade through the judges’ application …

Raped By The System: A Comparison Of Prison Rape In The United States And South Africa, Alexandra Ashmont

Pace International Law Review

The main objective of this article is to create overall awareness and to give people a real sense of the events that go on every day inside prison walls. The article is meant to show people that the way they think about prison and prison rape specifically is severely jaded. What happens behind prison bars should certainly not stay behind prison bars. The stories within this article are unlike any prison rape stories people have heard before. They are harsh, inhumane, and deeply disturbing. The only way to incite change is to open people’s eyes to the true conditions within …

An International Crimes Court: Further Tales Of The King Of Corinth, Jose A. Baez

Georgia Journal of International & Comparative Law

No abstract provided.

Extradition - International Law - The United States Night Circuit Court Of Appeals Holds Government-Sponsored Abduction Abroad Is Not A Lawful Alternative To Extradition. United States V. Verdugo-Urquidez, 939 F.2d 1341 (9th Cir. 1991), Thomas L. Horan

Georgia Journal of International & Comparative Law

No abstract provided.

The Sex Tourism Industry Spreads To Costa Rica And Honduras: Are These Countries Doing Enough To Protect Their Children From Sexual Exploitation?, Nancy Beyer

Georgia Journal of International & Comparative Law

No abstract provided.

The Extradition Proceedings Against General Augusto Pinochet: Is Justice Being Met Under International Law?, Anita C. Johnson

Georgia Journal of International & Comparative Law

No abstract provided.

The Case Of Wang Zong Xiao V. Reno: The International Implications Of Prosecutorial Misconduct, William W. Tanner

Georgia Journal of International & Comparative Law

No abstract provided.

Refusal To Extradite: An Examination Of Canada's Indictment Of The American Legal System, Jami Leeson

Georgia Journal of International & Comparative Law

No abstract provided.

Dead Man's Hand: Reshuffling Foreign Sovereign Immunities In U.S. Human Rights Litigation, David J. Bederman

Georgia Journal of International & Comparative Law

No abstract provided.