Criminal Law Commons^™

A Complementarity Conundrum: International Criminal Enforcement In The Mexican Drug War, Spencer Thomas

Vanderbilt Journal of Transnational Law

Drug-related violence in Mexico has claimed over 34,000 lives since Mexican President Felipe Calderon initiated his crackdown on Mexico's drug cartels in 2006 with the deployment of military troops to Michoacan. Somewhat surprisingly, Mexico's drug war has garnered rather little attention from the international community, despite a wealth of headlines in popular media. This Note takes up the question of international criminal enforcement in Mexico against Los Zetas, widely considered Mexico's most violent drug cartel. By setting up a hypothetical--but possible--International Criminal Court (ICC) prosecution of Los Zetas cartel leader Heriberto Lazcano, this Note demonstrates that the ICC Prosecutor could …

Bringing Nuremberg Home: Justice Jackson's Path Back To Buffalo, October 4, 1946, John Q. Barrett

Faculty Publications

During one permanently consequential decade in the history of the United States and the world, United States Supreme Court Justice Robert H. Jackson delivered three major lectures at the University of Buffalo. The last of these was Jackson's May 9, 1951, James McCormick Mitchell Lecture, "Wartime Security and Liberty under Law," which inaugurated this distinguished lecture series. Justice Jackson's first formal lecture at the University of Buffalo occurred on February 23, 1942, halfway through his first year as a Supreme Court Justice and just twelve weeks after the attack on Pearl Harbor brought the United States into World War II. …

"There Is A World Elsewhere": Preliminary Studies On Alternatives To Interest-Based Bargaining, F. Peter Phillips

Cardozo Journal of Conflict Resolution

We live in an Age of Reason, which our predecessors were pleased to call an Age of Enlightenment. The laws of physics and molecular chemistry, not the appearance of angels to shepherds, define our social expectations. In economics and in politics, we accept the guidance of a collective rationale, an Invisible Hand that, if it doesn't predict, nevertheless records the aggregate of decisions made by millions of social actors, each expressing not the general welfare but their individual self-interest.

Arbitrating Cultural Property Disputes, Elizabeth Varner

Cardozo Journal of Conflict Resolution

Years drag by, vicious allegations fly across the world stage, parties die frustrated. While cultural property disputes are frequently arbitrated internationally, arbitration is not often used in domestic cultural property disputes. One of the paradoxes of cultural property disputes is the need to resolve the issue while not harming the parties' reputation or devaluing the cultural property. While scholars have shown much interest in arbitrating cultural property disputes in the United States, maximizing the potential of arbitration in cultural property disputes has largely been ignored.

Rejecting the acceptability of litigating cultural property disputes in the battlefield of the courtroom, this …

Reflections From The International Criminal Court Prosecutor, Fatou B. Bensouda

Vanderbilt Journal of Transnational Law

Today I would like to introduce the idea of a new paradigm in international relations, which was introduced by the work of the drafters of the Rome Statute and the establishment of the International Criminal Court (ICC): this idea is that of law as a global tool to contribute to the world's peace and security. This idea first surfaced with the belief that the power of law has the capacity to redress the balance between the criminals who wield power and the victims who suffer at their hands. Law provides power for all regardless of their social, economic, or political …

Book Review: Gary Botting, Extradition Between Canada And The United States (Ardsley: Transnational Publishers, 2005), Robert Currie

Articles, Book Chapters, & Popular Press

Both domestic and international laws regarding the extradition of fugitive criminal offenders are in a state of flux throughout the world. The current legal landscape reflects tension between the interest of state authorities in promoting “security,” on the one hand, and increasing recognition that human rights obligations are at play, on the other. Gary Botting’s book, Extradition Between Canada and the United States, successfully addresses this tension by way of a detailed examination of what is probably the most integrated extradition partnership outside the European Union.

Charter Without Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms, Robert Currie

Articles, Book Chapters, & Popular Press

The first decades of the Supreme Court of Canada's Charter jurisprudence have coincided roughly with an increase in the extent to which Canada is affected by transnational crime and the nation's consequential participation in inter-state efforts to combat it. The court itself has remarked on its discrete "jurisprudence on matters involving Canada's international co-operation in criminal investigations and prosecutions." This article examines the Court's adoption of a different approach to Charter analysis in cases involving transnational elements and surveys where the Court has "drawn the line" in terms of Charter application. By way of analyzing jurisprudence on exclusion of evidence …

Par In Parem Imperium Non Habet, Beth Van Schaack

Faculty Publications

The principle of complementarity undergirds the International Criminal Court’s admissibility regime. And yet, in the negotiations leading up to the 2010 Review Conference in Kampala, Uganda, delegates did not fully focus on the potential for the addition of the crime of aggression to destabilize the Court’s complementarity regime. The only guidance from the ASP came in the form of two interpretive Understandings that express a subtle preference that States Parties not incorporate the crime into their domestic codes. If States Parties heed this call - which they should - the Court will inevitably be faced with situations in which there …

International Decision, International Criminal Court, Judgment On The Appeal Of The Republic Of Kenya Against Pre-Trial Chamber Decision Denying Inadmissibility Of The Kenya Situation, Charles Chernor Jalloh

Faculty Publications

A fundamental pillar of the Rome Statute of the International Criminal Court (ICC) is Article 17, which enshrines the complementarity principle – the idea that ICC jurisdiction will only be triggered when states fail to act to prosecute genocide, crimes against humanity and war crimes within their national courts or in circumstances where they prove unwilling and or unable to do so. The problem is that, as shown in this case report in the American Journal of International Law on the first ICC Appeals Chamber ruling regarding a state party’s objection to the court’s assertion of jurisdiction over its nationals, …

The Message And Means Of The Modern Terrorism Prosecution, Wadie E. Said

Publications

This Article, written in conjunction with Transnational Law and Contemporary Problems' 2011 Symposium on Ten Years After 9/11: Rethinking Counterterrorism, stemmed from a panel that examined "how the United States and other Western countries receive Islamic culture in their societies and how they export their Western cultures to the Islamic world, in each case to assess the degree to which their cross-cultural behaviors mitigate or worsen anti-Western terrorism from the Middle East and Central/South Asia and to recommend solutions if needed."' This contribution focuses on the criminal terrorism prosecution in the United States, and takes up the panel's theme by …

The End Of 'Modes Of Liability' For International Crimes, James G. Stewart

All Faculty Publications

Modes of liability, such as ordering, instigation, superior responsibility and joint criminal liability, are arguably the most discussed topics in modern international criminal justice. In recent years, a wide range of scholars have rebuked some of these modes of liability for compromising basic concepts in liberal notions of blame attribution, thereby reducing international defendants to mere instruments for the promotion of wider socio-political objectives. Critics attribute this willingness to depart from orthodox concepts of criminal responsibility to international forces, be they interpretative styles typical of human rights or aspirations associated with transitional justice. Strangely, however, complicity has avoided these criticisms …

Overdetermined Atrocities, James G. Stewart

All Faculty Publications

An event is overdetermined if there are multiple sufficient causes for its occurrence. A firing squad is a classic illustration. If eight soldiers are convened to execute a prisoner, they can all walk away afterwards in the moral comfort that “I didn’t really make a difference; it would have happened without me.” The difficulty is, if we are only responsible for making a difference to harm occurring in the world, none of the soldiers is responsible for the death — none made, either directly or through others, an essential contribution to its occurrence. In many respects, this dilemma is the …

Torture And The War On Terror: The Need For Consistent Definitions And Legal Remedies, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Aedpa Mea Culpa, Larry Yackle

Faculty Scholarship

In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.

German Vat Compliance: One Step Closer To Automated Third-Party Solutions, Richard Thompson Ainsworth

Faculty Scholarship

Recent developments in German VAT compliance, notably (a) the imposition of criminal penalties for failing to immediately amend a preliminary return that is known to be in error [Bundesgerichtshof decision of March 17, 2009, No. BGH 1 StR 342/08], when considered in tandem with (b) amendments to the voluntary disclosure rules, Gesetz zur Vebesserung der Bekämpfung von Geldwäsche und Steuerhinterziehung, it is clear that the German VAT compliance landscape has changed dramatically in the past year.

Taken as a whole, the German rules strongly encourage internal audits, self-reviews, and immediate self-disclosures of errors in previously filed returns and taxes paid. …

Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein

San Diego International Law Journal

The Order in Council permitting the prosecution appeal of "Mo" Courtney's acquittal and allowing him to be retried for the same offense of which he had previously been acquitted stems from the Criminal Justice Act 2003. That Act, which applies in England and Wales, grants the government the right to appeal certain rulings by the trial judge in criminal prosecutions on an indictment, including a ruling that there is no case to answer, i.e., a directed verdict of acquittal, and if the appeal is successful, allows the reviewing court to order that the acquitted defendant?s trial be resumed or that …

Flying Into The Future: Drone Warfare And The Changing Face Of Humanitarian Law, Michael A. Newton

Vanderbilt Law School Faculty Publications

Before we consider the specifics of drone warfare, we must remember two predicate points. Firstly, the discipline of international criminal law has never been healthier as the era of accountability is irreversibly underway. While the challenges of administering justice in the midst of profound political and personal passions remain, there is no current shortage of young and inspired advocates who wish to contribute. Furthermore, they do so against the backdrop of a developed discipline. It cannot be forgotten that the discrete discipline that we term international criminal law, and that many of us teach in our law schools, has taken …

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise: With An Assessment Of The Preventing Human Smugglers From Abusing Canada's Immigration System Act (Bill C-4), Benjamin Perrin

All Faculty Publications

Migrant smuggling is a dangerous, sometimes deadly, criminal activity which cannot be rationalized, justified, or excused. From both a supply and demand side, failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel; endangers the lives and safety of smuggled migrants, undermines border security, with consequences for the Canada/U.S. border, and undermines the integrity and fairness of Canada’s mmigration system. Introduced in Parliament in June, 2011, the Preventing Human Smugglers from Abusing Canada’s Immigration …

The Pluralism Of International Criminal Law, Alexander K. A. Greenwalt

Indiana Law Journal

This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …

International Drug Trafficking: A Global Problem With A Domestic Solution, Matthew S. Jenner

Indiana Journal of Global Legal Studies

Forty years ago, the world declared war on drugs. Today, after decades of failing to adequately control drug consumption, an even graver problem has emerged: violent drug traffickers have taken the industry hostage and will stop at nothing to preserve their power. Governments have instituted dozens of programs to dismantle the illicit drug industry, but they have seen only marginal success. One strategy, however, has yet to be fully tested: universal legalization. Universal legalization of all drugs would attack the illicit drug market head-on, destroying the profit incentive for drug traffickers and placing control of the industry in the hands …

Universal Jurisdiction Not So Universal: A Time To Delegate To The International Criminal Court, Dalila V. Hoover

Cornell Law School Inter-University Graduate Student Conference Papers

The exercise of universal jurisdiction in cases involving crimes under international law remains highly debated and underlines a certain number of legal and political issues in its implementation. Because the principle of universal jurisdiction relies on national authorities to enforce international prohibitions, pivotal decisions are expected to reflect, to a greater or lesser extent, domestic decision-makers’ positions as to the interests of justice, the national interest and other criteria. In many States, the legal system lacks the means to investigate or prosecute on the basis of universal jurisdiction. Indeed, many legal systems do not define the term “crimes” that can …

Infusing Due Process And The Principle Of Legality Into Contempt Proceedings Before The International Criminal Tribunal For The Former Yugoslavia Ad The International Criminal Tribunal For Rwanda, Gwendolyn Stamper

Michigan Law Review

Contempt proceedings before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda suffer from two procedural defects: the hearings run afoul of the principle of legality and fail to afford calibrated procedural protection for accused contemnors. First, this Note contends that these two tribunals properly rely on their inherent powers to codify procedural rules for contempt proceedings. However the tribunals' inherent power to prosecute contempt does not allow the courts to punish contemptuous conduct that has not been explicitly proscribed. Such a prosecution contravenes the principle of legality, which provides that criminal responsibility may …

Piracy Off The Coast Of Somalia: In Search Of The Solution, Alexandr Rahmonov

Cornell Law School Inter-University Graduate Student Conference Papers

Piracy it is not a phenomenon of the past. Modern piracy has become a profitable business, especially off the coast of Somalia, where thousands of pirates are currently involved in criminal activity targeting all kinds of vessels from fishing boats to oil supertankers. Only in 2009, Somali pirates committed about 217 attempted and actual attacks. As a response, the UN Security Council has passed several resolutions authorising military raids against pirates "on land and by air" and requested the Secretary-General to submit a report offering effective counter-piracy measures. Drafted in July 2010, the "Report on possible options to further the …

International Criminal Court's Protection Of Women: The Hands Of Justice At Work, Tina R. Karkera

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Jurisdiction, Treaties, And Due Process, Roberto Iraola

Buffalo Law Review

No abstract provided.

Special Court For Sierra Leone: Achieving Justice?, Charles Chernor Jalloh

Michigan Journal of International Law

The creation of the Special Court for Sierra Leone (SCSL or the Court) in early 2002 generated high expectations within the international community. The SCSL was generally deemed to herald a new model or benchmark for the assessment of future ad hoc international criminal courts. As the Court completes the trial of former Liberian President Charles Taylor in The Hague-its last-nine years later, this Article offers an early and broad assessment of whether it has fulfilled its promise. More specifically, this Article examines whether the SCSL has achieved, or more accurately-because its trials are still ongoing-whether it is achieving justice. …

The Material Support Prosecution And Foreign Policy, Wadie E. Said

Indiana Law Journal

No abstract provided.

The Ruckus In The Caucasus: A Case Against Mikheil Saakashvili For Crimes Against Humanity In The August War, Yancy Cottrill

University of the District of Columbia Law Review

While the world's attention was focused on the fireworks display of the 2008 Olympic Games in China, the citizens of South Ossetia were watching the sky too. Only their sky was being lit up by warfare. At 7:30 p.m. on August 7, 2008, Georgian President Mikheil Saakashvili, held a televised speech promising the Ossetians a ceasefire and unlimited autonomy.' At 11:00 p.m., Saakashvili ordered the Georgian Army to launch an offensive on Tskhinvalli, the capital of South Ossetia. Over the next five days, the civilians of South Ossetia and Abkhazia would be directly targeted by the Georgian forces and forcibly …

Gangs, Violence, And Victims In El Salvador, Guatemala, And Honduras, Juan J. Fogelbach

San Diego International Law Journal

Country conditions in El Salvador, Guatemala and Honduras will require U.S. courts to address complex protection law issues involving current and former gang members, as well as their victims. For example, just three months after the Seventh Circuit's decision, the Sixth Circuit also held that former gang members were a particular social group. In order to ensure proper handling of these cases, advocates, adjudicators, government attorneys, and judges must acquire a high level of understanding of gangs and violence in the affected countries. To facilitate this process, this paper will synthesize and analyze publicly available information on gangs and violence …

My Brother's Keeper: An Empirical Study Of Attorney Facilitation Of Money-Laundering Through Commercial Transactions, Lawton P. Cummings, Paul T. Stepnowsky

Faculty Scholarship

In recent years, various “gatekeeping initiatives” have been introduced through inter-governmental standard-setting organizations, such as the Financial Action Task Force, as well as through federal legislation in the United States, which seek to apply the mandatory customer due diligence, record keeping, and suspicious activity reporting obligations contained in the existing anti-money laundering regime to lawyers when they conduct certain commercial transactions on behalf of their clients. The organized bar has argued against such attempts to regulate it, in part, due to the lack of empirical data showing that, as a threshold matter, lawyers unwittingly aid money laundering in a significant …