Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979

In this piece, Professor Blakesley reviews “Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979” by Joseph J. Lambert

Autumn of the Patriarch: The Pinochet Extradition Debacle and Beyond--Human Rights Clauses Compared to Traditional Derivative Protections Such as Double Criminality

This article will analyze human rights law to see whether it plays any role in the protection of the individual in the face of international extradition or other international cooperation in criminal matters. I will consider two approaches to extradition and human rights that seem to be vying for position in the world arena and the tension between them. The first is to apply the traditional statist exemptions to extradition, which sometimes have enabled a few human rights protections. This approach is based on the concept that states are the only subjects of international law. Thus, it is state\u27s interests, rights, and obligations that are to be vindicated. If a fugitive is to be protected, it is because the state wills it so. The second approach considers the individual, at least to a degree, to be a subject of international law. It is the fugitive\u27s interests and rights that are at issue and that human rights law protects. Thus, extradition law (treaties, custom, and domestic law) should include certain specific, basic human rights clauses or rules, through which the fugitive, if he obtains, will be exempt from extradition. These may include specific, wholesale human rights clauses in extradition treaties and domestic extradition laws. It can be argued that, even without a specific clause, established international human rights rules are incorporated by reference. The battle between these approaches illustrates the tension between the value of protecting individual human rights in the criminal justice arena and the need to provide effective international law enforcement. Most recently, the process that leads to the English decision not to extradite Augusto Pinochet to Spain exemplified the tension between these values. It is interesting to wonder about the apparent oddity that many, though not all, human rights activists, who traditionally have been quite vigorously libertarian in protecting rights of individuals facing criminal justice systems of various nations (and, presumably still are in the run-of-the-mill cases), have become pro-prosecution hawks and quite weak on the incorporation of broad human rights protections for those brought before international tribunals or otherwise prosecuted for the more heinous international crimes. Some of the reactions to the Pinochet decision are representative. I will argue that if we are seriously going to try to end impunity for crimes against humanity and war crimes, it must be done in a way that is consistent with the highest protection of human rights interests for those being prosecuted. Otherwise, the system will ultimately fall of its own weight or become a tool of repression itself. If we are not scrupulous in protecting the accused from abuses and deprivation of civil liberties and ensuring related human rights protections for the accused during extradition, investigation, and trial, we will ultimately condemn the viability of human rights and criminal justice

Law, Language, Crime, and Culture: The Value and Risks of Comparative Law

Words, language, culture, and literature are so important to us human beings that it should come as little surprise that they are part of our law. This article considers language and law in general with a focus on issues of criminal justice, both domestic and international. I examine how and why comparative law is valuable in a criminal procedure course, and generally for domestic and international criminal justice. My examination begins by looking back to our common roots in crime, punishment, and expiation, with a special focus on the role of torture and its impact on current criminal justice systems. Comparative law also serves as a springboard from which to ponder law and philosophy in the context of a basic or advanced criminal procedure course. International criminal courts provide a useful example of the value and challenges of comparative law because they are actually experiments in mixing legal systems and procedures as they function in the arena of international law. Although wholesale or simplistic borrowing is wrong and often harmful, carefully comparing how disparate systems resolve similar problems is most helpful. To elucidate this, I use the examples of “verdict” and “to represent.” They look the same on paper, but manifest quite differently in practice in America and in Europe — prime examples of why comparative analysis can be so illuminating. It should not be surprising that comparative analysis is crucial to courses or parts of courses in international or transnational criminal law, as functionally, those are mixed systems — requiring a mixture of international law and domestic law or of international law and that of two or more domestic legal systems. This is especially so in international law, which functions as a mixed jurisdiction essentially comprised of Romano-Germanic and Common Law elements and approaches. Those who understand and can work with both the Romano-Germanic and the Common Law systems will be more able to understand the nuances of international law, its methods, analytical style, and sources. This will help them succeed in practice, scholarship and teaching

Wrestling Tyrants: Do We Need an International Criminal Justice System?

Prof. Christopher L. Blakesley delivered this keynote address at the Crimes Without Borders: In Search of an International Justice System Symposium, held at the McGeorge School of Law in the spring of 2016

Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, the Role of Human Rights, and Issues of Extraterritoriality Under International Criminal Law

This Article examines extradition and jurisdiction over extraterritorial crime, focusing on the relationship between jurisdiction and extradition in the broader context of human rights law. The authors challenge what they argue are chimerical, although strongly held beliefs in the incompatibility of European and United States criminal justice systems and extradition practices. They argue that cooperation in matters of international criminal law may be enhanced, while protection of human rights is promoted. The authors establish this possibility by breaking down the barriers to understanding that stem from the divergent European versus Anglo-American modes of analysis

Non-State Armed Groups and the Role of Transnational Criminal Law During Armed Conflict

With the ascendance of the terrorist group known as the Islamic State of Iraq and Syria (ISIS), the international community has struggled to adapt to the new international security context. Among the challenges that are currently being confronted are questions relating to how states may effectively facilitate international cooperation to counter ISIS (especially among countries in the Middle East and North Africa). Within this context, guidance from the United Nations on international cooperation posits that “[t]he universal counter-terrorism conventions and protocols do not apply in situations of armed conflict” – a legal position that would serve to stymie important cooperative efforts throughout the Middle East and which, if accepted as accurate, would prevent those states and others from addressing terrorism and many problems associated with non-state armed groups within a rule of law framework. This article, therefore, examines that U.N. legal position and, concomitantly, the unfrequented legal realm that lies at the crossroads of transnational criminal law and the law of armed conflict – providing an analysis of the emerging field of transnational criminal law and exploring how this burgeoning area of international law interacts with the law of armed conflict. This, in turn, permits an illuminative discussion of how various areas of international law interact with one another and how conflicts between competing areas of law may be resolved. Drawing on international legal sources, comparative law, and relevant civil law scholarship, the analysis demonstrates that the terrorism suppression conventions as well as other similar conventions – both multilateral and bilateral – remain operative and are not muted by the fact of an armed conflict. The United Nations should, therefore, correct its analysis so that governments in the Middle East, North Africa, and elsewhere have clear and accurate legal guidance with regard to the applicability of the terrorism suppression conventions during a time of armed conflict. Such conventions, after all, are what provide the legal bases which permit states to adopt hybrid approaches to hybrid threats such as ISIS – enabling all elements of state power (including both military and law enforcement capabilities) to address an increasingly complex and malevolent phenomenon within a rule of law framework

J. Reuben Clark, Jr., law and international order

Journal ArticlePresident J. Reuben Clark, Jr., spent his professional career, spanning some twenty-seven years, as an international lawyer.1 From the time of his graduation from the Columbia Law School in 1906 and his appointment as assistant Solicitor (an assistant legal adviser in the Department of State) in the same year, to his appointment as second counselor in the First Presidency in 1933 following his resignation as Ambassador to Mexico, President Clark devoted himself almost exclusively to the problems of international law