Criminal Law Commons^™

Under International Law, What Conventions Or Customary International Law Best Address Modern Acts Of Piracy?, Baker & Mckenzie Llp

War Crimes Memoranda

No abstract provided.

How Leadership In International Criminal Law Is Shifting From The United States To Europe And Asia: An Analysis Of Spending On And Contributions To International Criminal Courts, 55 St. Louis U. L.J. 953 (2011), Stuart K. Ford

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Somali Piracy Problem: A Global Puzzle Necessitating A Global Solution, Milena Sterio

American University Law Review

Over the past few years, piracy has exploded off the coast of Somalia. The Somali pirates congregate on a mother ship and then divide into smaller groups that sail out on tiny skiffs. Using potent weapons like AK-47’s and hand-propelled grenades, the Somali pirates then attack civilian ships carrying cargo through the Gulf of Aden, toward South Africa or Asia. Once they have overtaken the victim vessel, pirates typically hijack the vessel’s cargo and crewmembers. The former is often resold to willing buyers (some of which include terrorist organizations like Al Qaeda). The latter are taken to the Somali shore …

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

Elisabeth Haub School of Law Faculty Publications

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. …

Widening Our Lens: Incorporating Essential Perspectives In The Fight Against Human Trafficking, Jonathan Todres

Michigan Journal of International Law

In 2000, the international community formally launched the modern movement to combat human trafficking with the United Nations' adoption of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Trafficking Protocol). With the Trafficking Protocol, the international community created a new cornerstone upon which to build a global initiative to combat this modem form of slavery. As the first major international treaty on human trafficking in half a century, the Trafficking Protocol represented a significant step forward. One hundred forty-seven countries are now party to the …

Special Issue On International Criminal Law: Editorial, Charles C. Jalloh

Articles

No abstract provided.

A Kind Of Judgment: Searching For Judicial Narratives After Death, Timothy W. Waters

Articles by Maurer Faculty

Much of international criminal law's attraction rests on the 'authoritative narrative theory '--the claim that legal judgment creates incontestable narratives that serve as the foundation, or at least a baseline, for post-conflict reconciliation. So what happens when there is no judgment? This is the situation that confronted the International Criminal Tribunal for the Former Yugoslavia when its most prominent defendant, Slobodan Milosevic, died. By turning scholarship's attention towards a terminated trial, this Article develops an indirect but powerful challenge to one of the dominant views about what international criminal law is for, with interdisciplinary implications for human rights, international relations, …

"So Vast An Area Of Legal Irresponsibility"? The Superior Orders Defense And Good Faith Reliance On Advice Of Counsel, Mark W.S. Hobel

National Security Law Program

This Note argues that the modern superior orders defense represents the most relevant and just paradigm for assessing the potential criminal liability of U.S. interrogators who claim that they were authorized and counseled by government lawyers prior to using techniques that likely constituted torture. However, recent U.S. law, most importantly sections of the Detainee Treatment Act of 2005, constitutes an extension of the superior orders defense as it would apply to interrogators, and may not only fully immunize government officials and agents involved in interrogations, but also disrupt emerging international legal norms surrounding the superior orders defense.

Part I of …

The Beasts In The Jungle: Animal Welfare In International Law, Catherine Sykes

LLM Theses

Animal welfare has emerged as a pervasive concern in modern international law. The purpose of this study is to situate the international legal principle protecting the welfare of animals within the broader framework of international law. The study uses a constructivist model to develop a theory of the place of animal welfare in the international legal regime that has due regard for cultural differences and the diversity of international society. The historical antecedents for an obligation to protect animal welfare in various global cultures are considered. The argument posits an internationally recognized principle of humane treatment of animals based on …

Mental Torture: A Critique Of Erasures In U.S. Law, David Luban, Henry Shue

Georgetown Law Faculty Publications and Other Works

Both international and federal law criminalize mental torture as well as physical torture, and both agree that “severe mental pain or suffering” defines mental torture. However, U.S. law provides a confused and convoluted definition of severe mental pain or suffering—one that falsifies the very concept and makes mental torture nearly impossible to prosecute or repress. Our principal aim is to expose the fallacies that underlie the U.S. definition of mental torture: first, a materialist bias that the physical is more real than the mental; second, a substitution trick that defines mental pain or suffering through a narrow set of causes …

Risk Taking And Force Protection, David Luban

Georgetown Law Faculty Publications and Other Works

This paper addresses two questions about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy's civilians as for one's own.

The questions take on special importance in warfare where one side is able to attack the other side from a safe distance, but at the cost of civilian lives, while safeguarding civilians may require soldiers to take precautions that expose them to greater risk. In a well-known article, Asa Kasher and Amos Yadlin argue that while …

Hannah Arendt As A Theorist Of International Criminal Law, David Luban

Georgetown Law Faculty Publications and Other Works

This paper examines Hannah Arendt's contributions as a theorist of international criminal law. It draws mostly on Eichmann in Jerusalem, particularly its epilogue, but also on Arendt's correspondence, her writings from the 1940s on Jewish politics, and portions of The Human Condition and her essays. The paper focuses on four issues: (1) Arendt's conception of international crimes as universal offenses against humanity, and the implications she draws for theories of criminal jurisdiction; (2) her "performative" theory of group identity as acts of political affiliation and disaffiliation, from which follows a radically different account of the crime of genocide than …

Joint Intentions To Commit International Crimes, Jens David Ohlin

Cornell Law Faculty Publications

The following article is an attempt to provide a coherent theory that international tribunals may use to ground the imposition of vicarious liability for collective crimes. Currently, the case law and the literature is focused on a debate between the Joint Criminal Enterprise (JCE) doctrine applied by the ICTY and the co-perpetration doctrine applied by the ICC, which defines co-perpetrators as those who have joint control over the collective crime. The latter doctrine, influenced by German criminal law theory, has recently won many converts, both in The Hague and in the Academy, because it allegedly avoids many of the pitfalls …

Reconsidering Trials In Absentia At The Special Tribunal For Lebanon: An Application Of The Tribunal's Early Jurisprudence, Maggie Gardner

Cornell Law Faculty Publications

Since Nuremburg, no individual has been prosecuted in an international or internationalized court entirely in his or her absence. That may soon change. The Special Tribunal for Lebanon, which is empowered to try defendants in absentia, has now confirmed its first indictment. While its trial in absentia procedures were met with concern and criticism from some quarters when they were first announced, reconsideration is warranted in light of subsequent judicial developments. The judges of the Special Tribunal for Lebanon have now established in their preliminary decisions an interpretive approach to the Tribunal’s Statute that is adamantly purposive. This purposive approach …

Assessing The African Union Concerns About Article 16 Of The Rome Statute Of The International Criminal Court, Charles C. Jalloh, Dapo Akande, Max Du Plessi

Articles

This article assesses the African Union's (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU's repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC's failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the …

Criminal Reports: United States Of America V. Khadr, Steve Coughlan, Robert Currie

Articles, Book Chapters, & Popular Press

The United States of America sought the extradition of the applicant to face terrorism-related charges. The applicant had been taken into custody by the Pakistani Intelligence Agency, the ISI, and held in a secret detention centre for approximately fourteen months before he was released and repatriated to Canada. He had been interrogated by American FBI agents while in Pakistan and had given them a statement. He also gave a statement to CSIS following his return to Canada, and shortly after that gave a second statement to FBI officials. The applicant sought a stay of proceedings of the extradition hearing on …

Hiv And Women: Incongruent Policies, Criminal Consequences, Aziza Ahmed

Faculty Scholarship

UN Women must take an aggressive role in the standardization of laws and policies at the global and national level where their incongruence has negative and often criminal consequences for the health and lives of women and girls. This article focuses in on three such examples: opt-out testing for HIV, criminalization of vertical transmission, and the new World Health Organization guidelines on breastfeeding.

The Law Of War In The War Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

The struggle to define the contours of the legal regime and to correctly communicate those expectations to the broader audience of civilians is a recurring problem that is integrally related to the current evolution of warfare. Shaping the expectations and perceptions of the political elites who control the contours of the conflict is perhaps equally vital. The paradox is that as the legal regime applicable to the conduct of hostilities has matured over the last century, the legal dimension of conflict has at times overshadowed the armed struggle between adversaries. As a result, the overall military mission will often be …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

The Reason Behind The Rules: From Description To Normativity In International Criminal Procedure, Noah Weisbord

Faculty Publications

As the International Criminal Court (ICC) continues to mature in its practices, it provokes discussion on whether the comfortable framework of adversarial and inquisitorial systems should be used to evaluate an institution that exists in a fundamentally different context from that of national criminal justice systems. In order to avoid entangling the ICC in rules that are not tailored to fit its specific goals and institutional context, the normative purposes underlying procedural rules derived from domestic institutions should be reexamined.

This article draws out basic principles that may be of use in reexamining the reasoning behind the rules of procedure …

Feminism, Power, And Sex Work In The Context Of Hiv/Aids: Consequences For Women's Health, Aziza Ahmed

Faculty Scholarship

This paper examines the involvement of feminists in approaches to sex work in the context of HIV/AIDS. The paper focuses on two moments where feminist disagreement produced results in favor of an "anti-trafficking" approach to addressing the vulnerability of sex workers in the context of HIV. The first is the UNAIDS Guidance Note on Sex Work and the second is the "anti-prostitution pledge" found in the Presidents Emergency Plan for AIDS Relief. This article also examines the anti-sex work position articulated by abolitionist feminists and demonstrates the unintended consequences of the abolitionist position on women's health. By examining the actual …

Mugged Twice?: Payment Of Ransom On The High Seas, Lawrence Rutkowski, Bruce G. Paulsen, Jonathan D. Stoian

American University Law Review

No abstract provided.

Professionalism In Corrections And The Need For External Scrutiny: An International Overview, Andrew Coyle

Pace Law Review

No abstract provided.

Mondrowitz V. State Of Israel, Ayala Procaccia, Miriam Naor, Elyakim Rubinstein

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

An appeal against the decision by the Jerusalem District Court whereby the State’s request to declare the appellant eligible for extradition to the United States, and this in order that he be criminally prosecuted for serious sex offenses against minors which he allegedly committed in the 1980s, must be granted. Until 1984, when he moved to Israel, the appellant was a resident and citizen …

Salvage Awards On The Somali Coast: Who Pays For Public And Private Rescue Efforts In Piracy Crises?, Geoffrey Christopher Rapp

American University Law Review

This paper, a contribution to the "Troubled Waters: Combating Modern Piracy with the Rule of Law" symposium, explores the question of who pays for rescue efforts associated with maritime piracy. The paper explores the availability of admiralty law's salvage awards to governmental and non-governmental actors who intervene to rescue vessels and crew from pirates. Such awards provide an unusual incentive to rescue, traditionally unavailable for land-based rescue, but may raise complicated questions of policy and international law. The paper concludes by comparing salvage awards to a recent trend in American states to adopt "Search and Rescue" expense statutes allowing governments …

Israel, Palestine, And The Icc, Daniel Benoliel, Ronen Perry

Michigan Journal of International Law

In the wake of the Israel-Gaza 2008-09 armed conflict and recently commenced process at the International Criminal Court (ICC), the Court will soon face a major challenge with the potential to determine its degree of judicial independence and overall legitimacy. It may need to decide whether a Palestinian state exists, either for the purposes of the Court itself, or perhaps even in general. The ICC, which currently has 113 member states, has not yet recognized Palestine as a sovereign state or as a member. Moreover, although the ICC potentially has the authority to investigate crimes which fall into its subject-matter …

Fighting Piracy With Private Security Measures: When Contract Law Should Tell Parties To Walk The Plank, Jennifer S. Martin

American University Law Review

This Article addresses the following question: when should contract law permit parties to discontinue performance under a private security contract aimed to combat piracy? Piracy has been 'on the rise' off Somalia and in East Asia, with serious attacks escalating. Some shipping companies have responded by drafting 'best management practices', hiring security companies to advise on countering the threat and hiring armed or unarmed security protection. After presenting representative factual situations involving pirate attacks, the Article describes the traditional approach to defining the obligations of parties and the performance issues that arise during contractual performance. This approach takes into account …

Of Shrines, Memorials And Museums: Using The International Criminal Court's Victim Reparation And Assistance Regime To Promote Transitional Justice, Frédéric Mégret

Buffalo Human Rights Law Review

This article reviews and critically assesses the Rome Statute's complex victim reparation and assistance regime. The regime is a dual one, characterized by its reliance both on reparations ordered by the International Criminal Court and assistance provided by the Trust Fund for Victims. Both approaches raise a series of quantitative, qualitative, scope and contextual problems which are very imperfectly answered at present. In particular, there is a risk that the broader needs of transitional justice will be omitted as falling neither under "reparations" or "assistance." Rather than address the issue of the best reparations/assistance regime in the abstract, this article …

The Analogy Between Piracy And Human Trafficking: A Theoretical Framework For The Application Of Universal Jurisdiction, Miriam Cohen

Buffalo Human Rights Law Review

Universal jurisdiction is a doctrine by which States can assert jurisdiction over certain clearly circumscribed offenses that occur outside their territory and without any nexus to the nationality of the victim or the alleged perpetrator. The doctrine was originally developed to address piracy that occurred on the high seas. Because piracy occurred across international borders, thus impacting international navigation and commerce, it was seen as a threat to many, if not all nations. The justification for asserting universal jurisdiction over piracy was primarily based on the locus of the crime, its effect on many States, and its alleged heinous nature. …

Counterfeit Conspiracy: The Misapplication Of Conspiracy As A Substantive Crime In International Law, Taylor R. Dalton

Cornell Law School J.D. Student Research Papers

In the International Criminal Tribunal for Rwanda (ICTR) case Prosecutor v. Musema, the trial chamber held that an individual can be found guilty solely for the crime of conspiracy to commit genocide even if no genocide takes place. The trial chamber found its jurisdiction to punish the crime of conspiracy under its establishing statute, but looks almost exclusively at national legal traditions to determine its content. It cites no other international law supporting its decision to incorporate domestic concepts into the crime. In contrast, the Rome Statute of the International Criminal Court, which relatively recently entered into force, seems to …