The International Relations Value of Criminal Tribunals

By Graham Dumas, (J.D. Candidate 2011)

Much has been made in recent(ish) literature about the defects of criminal tribunals in post-conflict societies. Multiple authors over the past decade have rightly noted that such fora have dubious positive effects on the transitional justice process when viewed internally: tribunals fail to deter war criminals either because the chances of prosecution are very low, or because offenders act within the context of overwhelming social stress, often believing they are working for the greater good of society; as a measure of retributive justice, tribunals fail because the vast majority of perpetrators go unpunished; trials may upset the delicate balance of peace and conciliation, which in the end is the bedrock of ongoing stability in post-conflict societies. The list is long, and the points are largely valid.

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Book Review: Against the Death Penalty (Yorke ed.)

Continuing our ongoing series of book reviews, Alexanda McCown assesses Against the Death Penalty: International Initiatives and Implications, edited by Jon Yorke.  The book focuses on what empirically have been successful challenges to the death penalty and explores the relationship between public opinion and death penalty policy. However, given that the book discusses how life without parole might be an alternative to the death penalty that still violates human rights, this reviewer laments the book’s omission of other viable alternative sentences to the death penalty.

By Alexandra McCown

In November 2003, a jury delivered the death sentence to John Allen Muhammad, one of the two men behind the Washington, D.C.-area sniper attacks in 2002. The execution took place in 2009, almost six years to the day after his sentencing. If Muhammad had carried out the same crimes in Europe, he would not have been subject to capital punishment. In still other parts of the world, like the Caribbean, he may have received the death penalty, but ultimately his sentence would have been commuted since he remained on death row longer than five years. What accounts for regional differences in issuing (or not issuing) capital sanctions for heinous crimes such as the sniper attacks? Further, if Muhammad had received a sentence of life in prison without the possibility of parole (LWOP) in the United States or any other country, would that really have been preferable to a death sentence? Can shorter sentences effectively punish the perpetrator and protect society from future crime while simultaneously respecting criminals’ human rights?

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A Belated Thought on Wikileaks

by Graham Dumas (J.D. Candidate 2011)

I am a bit late in writing about the Wikileaks issue, but I would like to propose here a slightly different way of viewing the question through the lens of systems engineering. For a number of reasons, Wikileaks has presented to members of the military a simplified and seemingly less painful way to report violations of IHL, leading to a breakdown in, or rather an excursion from, the process the U.S. Military has been using to report, identify, prosecute, and ultimately prevent violations of military law and the law of armed conflict. To remedy this problem, the military should investigate both the demand and supply sides of the information pipeline, simplify the reporting process, and initiate a campaign to educate servicemen of the internal reporting channels available to them, the need to prevent extraneous leaks to the public, and the penalties for releasing classified information.  More after the jump.

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Book Review: Begley’s Why the Dreyfus Affair Matters

This installment in our ongoing series of book reviews takes on Why the Dreyfus Affair Matters by lawyer/novelist Louis Begley.  Hugh Murtaugh’s complimentary review of Begley’s work intertwines the Dreyfus and the Guantanamo narratives.  Both Begley and this reviewer conclude with the same lament from Proust: “As for asking oneself about its value, not one thought of it now . . . . It was no longer shocking. That was all that was required.”

By Hugh K. Murtagh

The story of Guantanamo Bay is not over. President Obama will not be able to shutter the island prison until at least 2011, and then only by moving the remaining detainees to a stateside facility. Time passes, details emerge: the “Camp Delta Standard Operating Procedures” find their way onto the internet; a military judge will not allow the prosecution of a terrorist leader because he has been so badly abused; Sami al-Hajj, the al-Jazeera journalist held for years on changing unsubstantiated charges, is finally released to Sudan, with his diaries.

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Cohen on Human Rights in China

On Saturday, the New York Times published an interview with NYU Professor Jerome A. Cohen regarding legal developments in China and the country's human rights record.  From the interview: “There are now some 200,000 judges, close to 180,000 prosecutors, roughly…

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Koskenniemi the scholar vs. Koskenniemi the commissioner

Sahib Singh of the University of Vienna has posted a paper on SSRN titled The Ethics of Fragmentation: Formalism’s Fallacies and the Potential of International Law.  The paper is interesting not least because it takes a serious and critical work at the fragmentation report of 2006, prepared for the International Law Commission by Martti Koskenniemi.  Singh’s paper investigates the work of a first-rate scholar closely affiliated with NYU Law’s Hauser Global Law School program, and for that alone it would be worth reading for NYU international law students.  But Singh’s paper is fascinating because it investigates the tension between Koskenniemi’s personal work and the report.  Abstract after the jump.

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Book Review: Clarke’s Fictions of Justice

This edition of our ongoing series of book reviews offers a critical but ultimately positive take on Kamari Maxine Clarke’s Fictions of Justice: The International Criminal Court and the  Challenge of Legal Pluralism in Sub-Saharan Africa. This book review is particularly timely, as the recent ECCC verdict in the “Duch” trial reminds us of that court’s landmark decision earlier this summer, which rejected one controversial form of “joint criminal enterprise” liability.  Kelly Geoghegan’s review, published in issue no. 42:3 of JILP, takes the opportunity to level her own criticism, or skepticism, at JCE theory.

By Kelly Geoghegan

Fictions of Justice is Kamari Maxine Clarke’s searching anthropological critique of both the international rule of law movement and its flagship tribunal, the International Criminal Court (ICC). Clarke explores the unspoken assumptions, or “fictions,” that underlie this movement, showing that these assumptions privilege Western ideas of justice over African ones and obscure the post-colonial economic forces behind Africa’s turmoil. Ultimately, Fictions of Justice is an anthropological work, not a legal text. Still, the book has potent insights to offer legal practitioners, particularly activists working “on behalf of victims” to achieve “universal” ideals of justice.

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