Toward a Criminology of International Crime

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Freedom from Fear: Prosecuting the Iraqi Regime for the Use of Chemical Weapons

Since the recent war with Iraq, there is a lingering question as to how to prosecute Saddam Hussein (if captured) and the Iraqi regime for their past atrocities, particularly, the use of chemcial weapons against Iran during the Iran-Iraq War and the Kurds. This article provides a background of the crimes committed by the Iraqi regime, a discussion and recommendation of the various proseution fora, as well as a presentation of the evidence that can be used in a prosecution

Justice for the Forgotten: Saving the Women of Darfur

Since 2003, Darfur has lost nearly half of its six million inhabitants. As many as 500,000 people have been slaughtered, 2.2 million have been displaced, and an untold number have been savagely raped—all victims of a brutal five-year genocide orchestrated by the Sudanese government. The women of Darfur have borne the brunt of the violence: constantly targeted for rape, left physically and emotionally broken. The use of rape as a weapon of war should have shocked the conscience of the world, but we have failed to act, and instead have allowed the women of Darfur to be victimized repeatedly. This note argues that the international community must take two steps to save the women of Darfur: (1) continue criminal prosecutions of those responsible for the genocide in the International Criminal Court and (2) immediately undertake humanitarian solutions in Darfur, including aid disbursement, reparations, military intervention, and political pressure. It is only by combining legal and restorative solutions that the forgotten women of Darfur will truly receive justice

Justice Beyond Borders? Australia and the International Criminal Court

The International Criminal Court (ICC) came into being on 1 July 2002. A four-person team opened an office in The Hague and will collect reports and allegations of genocide, war crimes and crimes against humanity until judges and a prosecutor are appointed towards the end of 2003. Although the court was heralded by many states and international lawyers as the most important positive development in international law since the formation of the United Nations, it did not get off to an auspicious start. The Bush administration was concerned that US military forces operating overseas would be particularly vulnerable to what it described as 'politicised' prosecutions. It therefore insisted that not only would it not be a part of the ICC, but also that it would not sanction the continuation of UN peacekeeping operations. Closer to home, the Australian Senate only ratified the ICC's founding treaty, the Rome Statute, after a bitter debate that split both the Liberal and National parties. This was the case even though the Howard government-and Foreign Minister Alexander Downer in particular-had been a leading advocate of the court and ratification of the Rome Statute had been a Liberal Party election promise in 2001. The cost that Downer, and pro-ICC Attorney-General Daryl Williams had to pay in order to appease restive conservative backbenchers, the National Party, and an increasingly reluctant (and pro-US) Prime Minister and secure the ratification was a declaration that reaffirmed the primacy of the Australian judicial system over the ICC. The declaration insisted that no Australian would be prosecuted by the court without the consent of the Attomey-General, and asserted Australia's right to define what is meant by the crimes of genocide, war crimes, and crimes against humanity. We argue that although Downer and Williams should be commended for their commitment to international justice, the declaration attached to Australia's ratification was unnecessary and unhelpful. The first and third aspects of the declaration were unnecessary: the principle of complementarity enshrined in the Rome Statute means that the ICC already recognises the primacy of domestic jurisdiction, and the crimes covered are already considered to fall under universal jurisdiction, as the Nuremberg, Tokyo and more recent Pinochet trials showed (see Weller 1999). The second is unhelpful because it contravenes both the letter and the spirit of the Rome Statute. We will begin, then, by tracing the development of the ICC debate in Australian politics. In 1998, the government was an enthusiastic advocate of the court but by 2002 an alliance of an ardently pro-US Prime Minister, vocal right-wing parliamentarians and their supporters, and The Australian (and its foreign affairs editor Greg Sheridan in particular) combined to put ratification in doubt. Contrary to Prime Minister John Howard's claims, this debate was not well informed. Instead, it was characterised by hearsay, inaccuracy and scare-mongering. The subsequent section of the article demonstrates this by focusing on the background to, and creation of, the Rome Statute

Alternate Judges as Sine Qua Nons for International Criminal Trials

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\u27s case was both procedurally illegitimate and markedly at odds with the ICTY\u27s statutory guarantee of a fair trial. It also explains how ICTY proceedings came to be rendered vulnerable to the havoc created when a judge is lost mid-trial and consider show to mitigate the damage the Seselj decision has wrought upon the reputation of the ICTY. Finally, this Article illustrates how the International Criminal Court is currently destined for its own Selelj moment and contends that the proper way forward is through the liberal designation of alternate judges

Due Process Erosion: The Diminution of Live Testimony at the ICTY

Shortly after its creation in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) adopted an adversarial construct and advocated a preference for the presentation of direct evidence, or live witness testimony, in its criminal trials. In the wake of that decision and under considerable pressure to expedite its proceedings, the ICTY judges responded with efforts to streamline the trial process, amending the Tribunal’s Rules of Procedure and Evidence so as to incrementally increase the admissibility of written evidence. This article tracks the relevant rule changes and questions the merit of the decision to move away from live testimony. By highlighting the manner in which the shift lies at odds with the Tribunal’s adversarial system, this article establishes that the demise of live testimony at the ICTY interferes with the fair trial rights of the accused, in particular, the right to confront one’s accusers. It also refutes the assertion that the continental practice of admitting written evidence has analogical value with respect to the ICTY, raises the concern that the practice is actually an impediment to establishing the truth, and presciently raises concerns about the future diminution of live testimony at the Tribunal