Criminal Law Commons^™

Implications Of Non-Exclusive Choice Of Forum Clauses In Determining The Competent Dispute Resolution Forum In Indonesia, Alvansa Vickya, Tiurma M.P. Allagan

Indonesia Law Review

This research aims to analyze the implications of a non-exclusive choice of forum clause in determining the competent dispute resolution forum in Indonesia based on theories related to Private International Law, International Contract Law, and International Civil Procedure Law. Based on the results of this research, the implications of the non-exclusive choice of forum clause in determining the competent dispute resolution forum in Indonesia have not been fully regulated by Indonesian laws and regulations. This can be seen from the use of the doctrines of forum non conveniens, lis pendens, and res judicata, the three of which are still not …

Global Partnership Should Be The Way Forward To Combat Money Laundering, Maame Nyakoa Boateng

Dickinson Law Review (2017-Present)

This Comment compares the major anti-money laundering (“AML”) laws in the United States and Iran. This Comment argues that even though the United States is advanced in its compliance approach, without a partnership with countries that are more vulnerable to money laundering attacks, its AML efforts could prove counter-productive because of the inter-connectedness of our world today. Accordingly, this Comment proposes a global partnership between countries with effective AML legislation and countries with less effective AML legislation to combat this complex crime.

Human Dignity As A Chameleon, Ariel L. Bendor, Michal Tamir

Cardozo International & Comparative Law Review

This article offers an innovative argument, according to which courts do not interpret human dignity according to an abstract theoretical position on the nature of the value only, nor subordinate themselves to the subjective purpose of the drafters of a constitution. Thus, courts-whether in the United States, where human dignity is not explicitly mentioned in the Constitution, or in countries where the right is constitutionally enshrined, such as Germany, South Africa, and Israel-interpret and apply human dignity on the basis of the entirety of the provisions of the particular constitution. Human dignity serves as a constitutional chameleon in the sense …

Getting To Phi: The Case For Excusatory Derogations From Iccpr Rights, Benjamen F. Gussen

Cardozo International & Comparative Law Review

This Article highlights the need for excusatory derogations from human rights. Currently, there is exclusive reliance on justification when upholding derogations from International Covenant on Civil and Political Rights ("ICCPR ) rights. In contrast, an excusatory derogation accentuates the requisite international policy intervention to assist national and subnational governments toward a proportional response to public emergencies. The right to mobility under the ICCPR, and its renditions in the constitutions of Australia and Canada, are used to illustrate this proposition. Border closures in response to the coronavirus pandemic provide context to elucidate how different types of public emergencies dictate different approaches …

Advance To The Nearest Dispensary: How Quebec's Marijuana Monopoly Is A Model For Future Legalized States, Jason Levine

Cardozo International & Comparative Law Review

The note argues that a state-run monopoly model for marijuana sales, inspired by Quebec's approach, could more effectively promote public health and reduce black-market competition compared to the current license authorization model used in U.S. states like Colorado and California. By centralizing control over pricing, distribution, and product regulation, a monopolistic structure could address challenges such as high taxes, slow transition phases, and the dominance of illegal markets. The analysis draws parallels to alcohol sales frameworks and highlights how a government-run system could avoid federal tax burdens under Section 280E of the Internal Revenue Code.

Duty To Rescue In The Digital Age: A Comparative Analysis, Cameron Kellett

Cardozo International & Comparative Law Review

The article advocates for the enactment of state legislation establishing a duty-to-rescue doctrine, arguing that the absence of such a legal duty leads to preventable harm and undermines societal solidarity. It critiques the arbitrary nature of the special relationship exception under current law and proposes Minnesota's duty-to-rescue statute as a model for reform. The analysis emphasizes that requiring bystanders to provide reasonable assistance, without endangering themselves, is both feasible and morally justifiable, as it aligns with human tendencies to help others in distress.

Non-State Actors "Under Color Of Law": Closing A Gap In Protection Under The Convention Against Torture, Anna R. Welch, Sangyeob Kim

Faculty Publications

The world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-state actors such as gangs, drug cartels, militias, and terrorist organizations is challenging states’ authority to control and govern torture committed within their territory.

In the United States, those seeking protection against deportation under the Convention Against Torture (“CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. However, what is …

International White-Collar Crime And The Globalization Of Internal Investigations Ten Years Later, Lucian E. Dervan

Law Faculty Scholarship

In International White-Collar Crime and the Globalization of Internal Investigations Ten Years Later, Lucian E. Dervan revisits and reassesses the framework first articulated in his 2011 article examining the risks and structural challenges of cross-border internal corporate investigations

2StetsonBusLRev120 . The article evaluates how four core areas—selection of investigative counsel, cross-border data collection and transfer, employee interactions in varied labor law environments, and disclosure and settlement strategies—have evolved over the past decade in response to intensified global enforcement cooperation, expanding data privacy regimes, and shifting geopolitical dynamics. Dervan demonstrates that while practitioners have grown more sophisticated in navigating privilege …

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …

Introductory Note To Prosecutor V. Ratko Mladić (U.N. Int’L Residual Mechanism Crim. Tribunals App. Chamber), Steven Arrigg Koh

Faculty Scholarship

On June 8, 2021, the UN International Residual Mechanism for Criminal Tribunals (Mechanism) Appeals Chamber delivered its appeals judgment in Prosecutor v. Ratko Mladić. The judgment affirmed the 2017 trial judgment of Trial Chamber I of the UN International Criminal Tribunal for the former Yugoslavia (ICTY), which convicted Mladić, the Bosnian Serb commander, of genocide, crimes against humanity, and war crimes during the war in Bosnia between 1992 and 1995, as well as affirming his sentence of life imprisonment. This constituted Mladić’s final appeal, opening the door for his assignment to a prison somewhere in Europe.

Criminal Law In A World Of States, Ryan Liss

Michigan Journal of International Law

In recent decades, a new school of criminal law theory has emerged. Its proponents reject the traditional story that criminal law ought to be justified on either retributivist or utilitarian grounds alone. Instead, they argue that justifications for criminal law must be rooted in a broader political theory of the state’s authority. While this political theory turn is becoming increasingly dominant in the literature, it gives rise to two significant challenges that scholars have thus far failed to recognize. These challenges emerge when we turn our attention from an internal, domestic view of the state to the world beyond its …

The Global Practice Of Systematic Enforced Disappearances Of Children In International Law: Strategies For Preventing Future Occurrences And Solving Past Cases, Jeremy J. Sarkin, Elisenda Calvet Martinez

Catholic University Law Review

The aim of this article is to first investigate and understand the widespread and systematic practice of enforced disappearances against children around the world, with a key purpose being to show that it is a regular occurrence. The article reviews the systematic disappearances of children in their historical context, beginning from the Second World War. A variety of country examples –some historical and some contemporary –are discussed to indicate the widespread nature of the practice. The variety of cases is used to understand why states participate in such practices and why children specifically are targeted as victims of enforced disappearances. …

Cross-Examination Of Witnesses In Chinese Criminal Courts: Theoretical Debates, Practical Barriers, And Potential Solutions, Zhiyuan Guo

Vanderbilt Journal of Transnational Law

Questioning witnesses is essential for both fact-finding and ensuring the defendant's right to confrontation in criminal trials. Part I introduces the recently released judicial interpretation on the Application of Criminal Procedure Law by China's Supreme Court as a background for discussion of this Article. In Part II, the author sets the stage by arguing that resolution of questions concerning examination and cross-examination of witnesses is essential to the effective achievement of China's trial-centered criminal procedure law reform. In Part III, a historical review is given of the academic debate on the questioning of witnesses in Chinese criminal courts. Part IV …

Criminal Justice Is Local: Why States Disregard Universal Jurisdiction For Human Rights Abuses, Jeremy A. Rabkin, Craig S. Lerner

Vanderbilt Journal of Transnational Law

A German court recently convicted a minor Syrian official of abuses committed in Syria's civil war. The case was announced with fanfare but has since stirred no interest. Nor should this be surprising. The world has been here before. There was intense excitement in 1998, when British authorities arrested Augusto Pinochet, the former president of Chile, for human rights abuses committed in Chile. It was taken at the time as vindicating the doctrine that the worst human rights abuses fall under "universal jurisdiction," allowing any state to prosecute, even for crimes against foreign nationals on foreign territory. As generally acknowledged …

Institutional Doxing And Attribution: Searching For Solutions To A Law-Free Zone, Kimberlee Styple

Georgia Journal of International & Comparative Law

No abstract provided.

Cedaw And Transformative Judicial Obligations: The Vulnerable Migrant Domestic Worker And Root Causes Of Abuse, Cheah W. L.

Michigan Journal of International Law

CEDAW’s transformative provisions, which require states to address root causes of injustice and discrimination, can be made more effective not only through legislation and policy, as commonly argued, but through the judiciary. This article highlights the need to develop the content and implementation of transformative judicial obligations under CEDAW through a comparative study of judicial decisions on the abuse of female MDWs in three key MDW destinations that are party to CEDAW—Hong Kong, Singapore, and Malaysia. By engaging with scholarship on CEDAW’s positive obligations, transformative equality, and theories of adjudication, this article argues that criminal law courts should not only …

The Visualities And Aesthetics Of Prosecuting Aged Defendants, Mark Drumbl, Caroline Fournet

Scholarly Articles

The prosecution—whether domestic or international—of international crimes and atrocities may implicate extremely aged defendants. Much has been written about the legalisms that inhere (or not) in trying these barely alive individuals. Very little however has been written about the aesthetics the barely alive encrust into the architecture of courtrooms, the optics these defendants suffuse into the trial process, and the expressive value of punishing them. This is what we seek to do in this project.

Refugees Under Duress: International Law And The Serious Nonpolitical Crime Bar, David Baluarte

Scholarly Articles

Congress intended that the serious nonpolitical crime bar under United States asylum law have the same meaning and scope as the 1F(b) Refugee Convention exclusion clause. The Supreme Court has repeatedly held that it was the intent of Congress to not only replicate the language of the provisions of the Refugee Convention in United States law, but to incorporate the full extent of the meaning of such language and bring the United States into compliance with its treaty obligations. Accordingly, when Congress reproduced exactly the language of the Article 1F(b) exclusion clause in the INA, it intended for that provision …

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

Law Faculty Articles and Essays

In 1997, the Taiwanese legislature amended the Code of Criminal Procedure to incorporate the core of the American Miranda rule into the legal system. The Miranda rule requires police officers and prosecutors to notify criminal suspects subject to custodial interrogation of their right to remain silent and their right to retain legal counsel. In subsequent amendments, the legislature enacted a series of laws to further reform interrogation practices in the same vein.

What happened next is a study in unintended consequences and the interdependence of law and culture. Using ethnographic methods and data sources collected over the past four years …

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

FIU Law Review

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors. This Article disaggregates slavery from the slave trade and slavery …

Rule Of Law And International Human Rights, Vincent J. Samar

Cardozo International & Comparative Law Review

This article reviews the field of international human rights with particular attention to the way that the International Court of Justice, the International Criminal Court, the Human Rights Committee, and local domestic courts operate to resolve human rights cases. It first notes what internationally recognized human rights there are and the sources that give rise to them. It then explains how relativism enters human rights decision-making, especially at the domestic court level, in part because a common grounding for the human rights propounded was never adopted. Even at the level of the International Court of Justice, its failure to include …

Admissibility Of Hearsay Gathered Under Mlat: A Tempest In Canada, Robert Currie

Articles, Book Chapters, & Popular Press

One of the most pervasive and longstanding problems in the practice of mutual legal assistance in criminal matters between states has been ‘form of evidence’–specifically, can the requested state provide evidence in such form as will be useful and admissible under the criminal evidence laws of the requesting state?It tends to be common law states that have difficulties with admissibility of MLAT-sourced evidence, and these often develop ‘work-arounds’ in their laws which attempt to relax admissibility standards. Canada is one such state, but a series of recent prosecutions has revealed judicial resistance to the tools employed. This note examines these …

Editors' Note, Robert Currie, Neil Boister, Masha Fedorova, Sabine Gless, Cecily Rose, Sara Wharton

Articles, Book Chapters, & Popular Press

No abstract provided.

State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson

Articles, Book Chapters, & Popular Press

Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …

Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Online intermediaries are omnipresent. Each day across the globe, the corporations running these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes. Online intermediaries, however, are almost never held to account for their complicity in the resulting harms. This Article introduces the concept of platformenabled crimes into the legal literature to highlight the ways in which the ordinary business activities of online intermediaries enable the commission of crime. It then focuses on a subset of platform-enabled crimes—those in which a social media …

Hernández V. Mesa: A Case For A More Meaningful Partnership With The Inter-American Commission On Human Rights, Peyton Jacobsen

Seattle University Law Review

Through an in-depth examination of Hernández, the Inter-American Human Rights System, and the success of Mexico’s partnership with said system, this Note will make a case for embracing human rights bodies— specifically, the Inter-American System on Human Rights—as an appropriate and necessary check on the structures that form the United States government. Part I will look closely at the reasoning and judicially created doctrine that guided the decision in Hernández, with the goal of providing a better understanding of the complicated path through the courts that led to a seemingly straightforward yet unsatisfying result. Part II will illustrate the scope …

Fifth-Dimensional Warfare And National Security In Canada: Situating Microdeviation Theory Within C-59: An Act Respecting National Security Matters, Hayden Slight

Theses and Dissertations (Comprehensive)

In an era of rapid technological change, the growing threat environment in the cyber dimension will continue to influence how a sovereign nation contends with attacks that can occur from any corner of the world. The growing adaptation and expansion of technology belonging to the Internet of Things (IoT) and the increasing prevalence of social media (Facebook, Twitter) has also influenced the spreading of attack surfaces that can become victim to exploitation by motivated parties including foreign states and terrorist groups. Against this backdrop, Canada’s own efforts to modernize and reinforce its own national security agencies resulted in the developing …

Little Progress In The Sixth Committee On Crimes Against Humanity, Leila Nadya Sadat

Scholarship@WashULaw

This essay takes up the work of the UN Sixth Committee to date on crimes against humanity. It offers the first comprehensive tabulation of States’ positions, an analysis of the work accomplished thus far, and suggests a potential roadmap for advancing the adoption of a new global treaty on crimes against humanity. The essay notes the substantial progress made by the International Law Commission in the development and shaping of the proposed draft treaty as well as the substantial support the ILC’s work has attracted from States. At the same time, it underscores the disappointing outcome of this year’s negotiations, …

Submission Of Amicus Curiae Observations In The Case Of The Prosecutor V. Dominic Ongwen, Erin Baines, Kamari M. Clarke, Mark A. Drumbl

Scholarly Articles

The important questions laid out by the Appeals Chamber in this case highlight the need for the proper delineation and interplay between mental illness and criminal responsibility under international law. Specifically, this case represents a watershed moment for the Appeals Chamber to set a framework for adjudicating mental illness in the context of collectivized child abuse and trauma. This is especially true for former child soldiers who occupy both a victim and alleged perpetrator status.

Amicus Curiae Observations By Public International Law & Policy Group, Milena Sterio, Michael P. Scharf, Paul R. Williams

Law Faculty Briefs and Court Documents

The amicus brief argues that in a case where the defendant alleges a ground excluding criminal responsibility (an affirmative defense), such as mental illness or duress, the defendant has an evidentiary burden to produce some evidence to support his/her claim of mental illness or duress, but that the prosecution retains the legal burden of proof to establish the defendant's responsibility beyond reasonable doubt.

“This ruling will have repercussions for future cases where the defendant asserts a mental illness or duress affirmative defense. Depending on how the ICC decides, future defendants will have to meet a specific evidentiary (or legal) burden …