The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law

In Hamdan v. Rumsfeld, the United States Supreme Court ruled that the military commissions that had been proposed by the Executive to prosecute a small number of detainees captured in the \u27war on terror\u27 could not proceed. In response to the Hamdan decision, Congress enacted a new military commission structure in the 2006 Military Commissions Act (MCA), which President Bush signed on October 17, 2006. The MCA establishes military commissions for aliens classified as unlawful enemy combatants. It lists the crimes chargeable by such commissions. The MCA also amends domestic legislation - for example, the War Crimes Act - initially enacted to implement the Geneva Conventions for U.S. officials. This Article explores triangulation among the Hamdan ruling, international criminal law, and the Geneva Conventions. My concerns are substantive as well as operational. In particular, I unpack: (1) Hamdan\u27s substantive contribution to international criminal law; and (2) the operational value of prosecution and punishment by military commission as a mechanism to enforce Common Article 3 of the Geneva Conventions. Little thought has been given to the goal or purpose of punishing convicted terrorists. We have not assessed what we actually hope to achieve by punishing. Is it deterrence? Retribution? Incapacitation? Reintegration and reconciliation? To restitute those harmed? Or is the goal of punishment something more communicative and pedagogical - namely, what I call expressivism - to augment the moral value of law, stigmatize those who break it, and establish an authoritative public, and transnational, narrative regarding the heinousness of terrorist violence? We only can properly assess the role of prosecution and punishment as an enforcement mechanism of the Geneva Conventions if we first identify what, exactly, we hope to achieve by punishing breaches thereof. Based on my analysis of perpetrators of atrocity in other contexts, I develop an argument that the most plausible - although quite fragile - justification for punishing convicted terrorists, in this case al-Qaeda terrorists connected to the September 11 attacks in the United States and other wide-scale attacks against civilians, is the expressive justification. Accordingly, it makes sense to structure process and punishment in a manner conducive to obtaining this goal. I argue that the 2006 MCA, although better able to facilitate expressive penological goals than the commissions that had been struck down in Hamdan, still remains deficient in important regards. I also explore the broader question whether the Geneva Conventions, in particular Common Article 3 thereof, should apply to conflict against non-state actor terrorist groups. I develop a response that, for a variety of expressive reasons, there is value in having them apply, although care must be taken not to overestimate this value

Transitional Justice Moments

Human rights are admittedly abstract but remain deeply personal. Often, however, it is easier for transitional justice to grapple with abstracted rights than it is to come to terms with actual human beings with all our indecision, nuance, resilience and unpredictability. A transitional justice brimming with abstractions and guidelines but that condescends flesh-and-blood beings quickly becomes ineffective and dehumanized. The vacillations of the human condition may well exasperate and confound, but they may also surprise and please. They may demonstrate growth and reveal great beauty. Senegalese writer Mariama Ba, in So Long a Letter, recounts how Ramatoulaye responds to news of her adolescent daughter’s concealed pregnancy. Ramatoulaye learns of the news from Farmata, the griot of the cowries. After confronting her anguished and ashamed daughter – holding her at once ‘painfully’ and ‘tightly’ – Ramatoulaye writes to Aissatou, her life-long confidante and daughter’s namesake

Pluralizing International Criminal Justice

From Nuremberg to The Hague scours the institutions of international criminal justice in order to examine their legitimacy and effectiveness. This collection of essays is edited by Philippe Sands, an eminent authority on public international law and professor at University College London. The five essays derive from an equal number of public lectures held in London between April and June 2002. The essays - concise and in places informal - carefully avoid legalese and arcania. Taken together, they cover an impressive spectrum of issues. Read individually, however, each essay is ordered around one or two well-tailored themes, thereby ensuring analytic rigor. Consequently, the overall collection is accessible without being breezy. It provides an insightful contribution to a burgeoning field and busy debate

From Timbuktu to The Hague and Beyond: The War Crime of Intentionally Attacking Cultural Property

This essay refracts the criminal conviction and reparations order of the International Criminal Court (ICC) in the Al Mahdi case into the much broader frame of increasingly heated public debates over the protection, removal, defacement, relocation, display and destruction of cultural heritage in all forms: monuments, artefacts, language instruction, art and literature. What might the work product of the ICC in the Al Mahdi proceedings -- and international criminal law more generally -- add, contribute or excise from these debates? This essay speculatively explores connections between the turn to penal law to protect cultural property and the transformative impulses that undergird transitional justice which, in turn, often insist upon cultural change, including to cultures of oppression and impunity. Along the way, this essay also unpacks thorny questions as to how to value cultural property; how to determine what, exactly, constitutes the kind of property whose destruction should be criminalized; and which ‘cultures’ should be protected by ‘whom’ and in ‘whose’ interests

Tax Enforcement at the Intersection of Social Welfare and Vulnerable Populations

This Essay engages with Professor Bernadette Atuahene’s theory of stategraft in the context of tax administration and the role that the Internal Revenue Service (IRS) plays in implementing certain social welfare benefits, including the Earned Income Tax Credit (EITC). Specifically, it considers whether the IRS’s denials of the EITC to those who might otherwise be eligible and entitled to it constitutes a wrongful taking by the state or a violation of basic human rights. While this Essay concludes that denials of the EITC generally do not fit within Atuahene’s definition of stategraft, it highlights two particularly problematic concerns with modern EITC enforcement and frames those within the context of Professor Atuahene’s broader concerns about how state actions affect vulnerable populations. One concern is the racially disparate EITC audit outcomes that have come to light. Though the IRS does not collect information on taxpayer race and ethnicity, a recent report found that, among all taxpayers claiming the EITC, Black taxpayers are statistically more likely to be audited than non- Black taxpayers. The other concern relates to the so-called two-year ban, which can be imposed by the IRS following a determination that a taxpayer wrongly claimed the EITC or Child Tax Credit due to reckless or intentional disregard of rules and regulations. Though the ban is not imposed frequently, this Essay highlights due process and fairness concerns related to this authority. This Essay concludes with brief remarks about the IRS’s enforcement priorities and efforts to curtail improper payment rates of refundable tax credits

International Human Rights, International Humanitarian Law, And Environmental Security: Can The International Criminal Court Bridge The Gaps?

Human rights law has evolved considerably over the past half-century. Much of this evolution has occurred at the international level

Toward a Criminology of International Crime

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

Memorializing Dissent: Justice Pal in Tokyo

Memorials and monuments are envisioned as positive ways to honor victims of atrocity. Such displays are taken as intrinsically benign, respectful, and in accord with the arc of justice. Is this correlation axiomatic, however? Art, after all, may be a vehicle for multiple normativities, contested experiences, and variable veracities. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must consider the full range of initiatives—whether pop-up ventures, alleyway graffiti, impromptu ceremonies, street art, and grassroots public histories—prompted by international criminal trials. Courts may be able to stage their own outreach, to be sure, but they cannot micromanage the outreach of others. And the outreach of others may look and sound strikingly different than that curated and manicured by courts. This essay presents one such othered outreach initiative: a memorial in Tokyo dedicated to Justice Radhabinod Pal of India, who authored a vehement dissent at the International Military Tribunal for the Far East (IMTFE). The IMTFE was established in 1946 to prosecute Japan’s leadership in the aftermath of the Second World War. Pal would have acquitted each defendant. This essay describes Justice Pal’s legal philosophy, situates his place in the currents of international law, and reflects on the broader role of memorials as discursive sites