Judging Leaders Who Facilitate Crimes by a Foreign Army: International Courts Differ on a Novel Legal Issue

In one of the most significant cases in the history of international criminal law, Prosecutor v. Perisic, the International Criminal Tribunal for the Former Yugoslavia (ICTY) effectively addressed an issue of first impression: may a military or political leader be convicted for knowingly facilitating crimes by another state\u27s army? The influential tribunal answered this question in the negative--knowledge that the recipients of military assistance are perpetrating crimes is essentially irrelevant absent evidence that the facilitator specifically intended that crimes occur. The ICTY Appeals Chamber thus acquitted Serbian General Momilo Peridid, who had been convicted at trial of knowingly aiding and abetting atrocities by the Bosnian Serb army in Sarajevo and Srebrenica between 1993 and 1995. The record suggests that certain judges were concerned that convicting individuals like Perisic could potentially disrupt international relations by casting too wide a net for convicting leaders whose provision of military aid facilitates crimes by a foreign army. The Special Court for Sierra Leone subsequently held that the controversial Perisic precedent did not comport with customary international law, and therefore affirmed the conviction of Charles Taylor, the former Liberian President, for knowingly assisting atrocities by rebel forces during the Sierra Leone Civil War. In an even more striking development, a different ICTY appellate panel thereafter reversed the Perisic legal standard on the ground that it neither comported with ICTY jurisprudence nor customary international law. This Article analyzes this historic turn of events and explores the appropriate legal standard to convict leaders who enable atrocities by a foreign army

Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies. Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term to be “cruel and unusual punishment” under the Eighth Amendment. By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice. Many scholars concluded that punitiveness had become its defining norm. Yet a quiet revolution in Eighth Amendment jurisprudence, a wave of reforms, and other social developments suggest that American penal philosophy may be inching toward norms—dignity, proportionality, legitimacy, and rehabilitation—that have checked draconian prison terms in Europe, Canada, and beyond. In 2010, the Supreme Court began limiting the scope of life imprisonment without parole for juveniles in a series of landmark Eighth Amendment cases. Partly drawing upon the principles in these decisions, twenty-two states have abolished life without parole categorically for juveniles, providing them more protections than under the Eighth Amendment. The narrow focus on the differences between juveniles and adults in the aftermath of these reforms obscured American law’s increasing recognition of humanitarian norms that are hardly age-dependent—and strikingly similar to those in other Western democracies. Historiography sheds light on why the academy has largely overlooked this relative paradigm shift. As America faced mass incarceration of an extraordinary magnitude, research in recent decades has focused on divergence, not convergence. This Article advances a comparative theory of punishment to analyze these developments. In the United States and throughout the West, approaches toward punishment are impermanent social constructs, as they historically tend to fluctuate between punitive and humanitarian concerns. Such paradigm shifts can lead to periods of international divergence or convergence in penal philosophy. Notwithstanding the ebb and flow of penal attitudes, certain long-term trends have emerged in Western societies. They encompass a narrowing scope of offenders eligible for the harshest sentences, a reduction in the application of these sentences, and intensifying social divides about their morality. Restrictions on lifelong imprisonment for juveniles and growing social polarization over mass incarceration in the United States may reflect this movement. However, American justice appears particularly susceptible to unpredictable swings and backlashes. While this state of impermanence suggests that the reform movement might reverse itself, it also demonstrates that American justice may keep converging toward humanitarian sentencing norms, which were influential in the United States before the mass incarceration era. Two patterns regarding the broader evolution of criminal punishment ultimately stand out: cyclicality and steadiness of direction. The patterns evoke a seismograph that regularly swings up or down despite moving steadily in a given direction. American justice may cyclically oscillate between repressive or humanitarian aspirations, and simultaneously converge with other Western democracies in gradually limiting or abolishing the harshest punishments over the long term

The Exceptional Absence of Human Rights as a Principle in American Law

Compared to other Western democracies, references to “human rights” are rare in domestic American law. A survey of landmark Supreme Court cases reveals that both conservative and liberal Justices made no mention of “human rights” when addressing fundamental questions: racial segregation, the death penalty, prisoners’ rights, women’s rights, children’s rights, gay rights, and indefinite detention at Guantanamo. This absence illustrates a broader societal trait. In the United States, “human rights” commonly evoke foreign problems like abuses in Third World dictatorships—not domestic problems. By contrast, human rights play a relatively important role as a domestic principle in Europe, Canada, Australia, and New Zealand. Diverse legal, political, sociological, historical, and normative factors shed light on why human rights have hardly made headway as a domestic principle in America. The disinclination to frame domestic problems as human rights issues or to consider humanitarian questions per se helps explain why modern-day America has a worse human rights record than other Western democracies in various areas, including criminal justice, the “War on Terror,” and access to affordable health care. America notably has the highest incarceration rate worldwide; is the only Western democracy to retain the death penalty; and has openly tortured alleged terrorists. In addition, it is the sole Western nation to lack universal health care, which is essentially considered a human right elsewhere in the West. The relative absence of human rights as a principle in contemporary American law is particularly striking given that America has made substantial contributions to the development of individual rights since becoming the first modern democracy to emerge from the Enlightenment in the 18th century. American leaders like Franklin Roosevelt, Eleanor Roosevelt, and Martin Luther King also played an active role in promoting the principle of “human rights” as it gradually emerged into a major international movement. If human rights have not achieved meaningful recognition as a domestic legal principle in the United States, it partly reflects the contradictions of American society

Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies. Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term to be “cruel and unusual punishment” under the Eighth Amendment. By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice. Many scholars concluded that punitiveness had become its defining norm. Yet a quiet revolution in Eighth Amendment jurisprudence, a wave of reforms, and other social developments suggest that American penal philosophy may be inching toward norms—dignity, proportionality, legitimacy, and rehabilitation—that have checked draconian prison terms in Europe, Canada, and beyond. In 2010, the Supreme Court began limiting the scope of life imprisonment without parole for juveniles in a series of landmark Eighth Amendment cases. Partly drawing upon the principles in these decisions, twenty-two states have abolished life without parole categorically for juveniles, providing them more protections than under the Eighth Amendment. The narrow focus on the differences between juveniles and adults in the aftermath of these reforms obscured American law’s increasing recognition of humanitarian norms that are hardly age-dependent—and strikingly similar to those in other Western democracies. Historiography sheds light on why the academy has largely overlooked this relative paradigm shift. As America faced mass incarceration of an extraordinary magnitude, research in recent decades has focused on divergence, not convergence. This Article advances a comparative theory of punishment to analyze these developments. In the United States and throughout the West, approaches toward punishment are impermanent social constructs, as they historically tend to fluctuate between punitive and humanitarian concerns. Such paradigm shifts can lead to periods of international divergence or convergence in penal philosophy. Notwithstanding the ebb and flow of penal attitudes, certain long-term trends have emerged in Western societies. They encompass a narrowing scope of offenders eligible for the harshest sentences, a reduction in the application of these sentences, and intensifying social divides about their morality. Restrictions on lifelong imprisonment for juveniles and growing social polarization over mass incarceration in the United States may reflect this movement. However, American justice appears particularly susceptible to unpredictable swings and backlashes. While this state of impermanence suggests that the reform movement might reverse itself, it also demonstrates that American justice may keep converging toward humanitarian sentencing norms, which were influential in the United States before the mass incarceration era. Two patterns regarding the broader evolution of criminal punishment ultimately stand out: cyclicality and steadiness of direction. The patterns evoke a seismograph that regularly swings up or down despite moving steadily in a given direction. American justice may cyclically oscillate between repressive or humanitarian aspirations, and simultaneously converge with other Western democracies in gradually limiting or abolishing the harshest punishments over the long term

Human rights in France and the United States : a dialectic of convergence and divergence

La thèse examine l'évolution des droits de l'homme et de la dignité humaine en France et aux États-Unis depuis les Lumières. Sa dialectique pluridisciplinaire offre de nouvelles perspectives sur les processus forgeant I'entendement de ces normes à travers l'expérience de deux sociétés ayant joué un rôle historique majeur. Les révolutions américaine et française convergèrent dans leurs revendications de droits universels. Pourtant, chaque pays diverge considérablement de nos jours. Tandis que la Déclaration des droits de l'homme de 1789 a intégré le bloc de constitutionnalité, le concept des «human rights» n'est essentiellement pas utilisé en droit étasunien. De surcroît, l'Amérique s'exempte souvent des normes internationales, à l'instar de sa rétention de la peine de mort. Or, une telle divergence n'a pas toujours existé. Contestant l'idée d'une filiation quasi directe entre la Déclaration de 1789 et les droits de l’homme aujourd'hui, la thèse aborde le lien entre la Révolution française et la modernité́. Elle examine également la réticence de la France à ratifier la Convention européenne des droits de l'homme et comment elle fut un des deniers pays de l'Europe de l'Ouest à abolir la peine capitale. La première partie de la thèse offre une analyse macro-sociétale de la conception des droits de l’homme dans chaque nation depuis les révolutions du 18e siècle. La deuxième partie se centre sur la justice pénale, dont la peine de mort, l'incarcération et le traitement des prisonniers, afin d'évaluer l'impact des droits de l'homme sur le droit positif durant cette période. La thèse révèle ainsi comment ces droits ont été pensés, protégés et déniés au fil des générations.The dissertation examines the evolution of human rights and human dignity in France and the United States since the Enlightenment. Its multidisciplinary dialectic offers news perspectives on the processes shaping the conception of these norms through the experience of two nations with a major historic role.The American and French revolutions converged in invoking universal rights. Yet each country diverges considerably today. While the Declaration of the Rights of Man of 1789 is now a French constitutional text, the concept of "human rights" is hardly used in U.S. law. Moreover, America commonly exempts itself from international human rights norms, as illustrated by its retention of the death penalty. However, this profound divergence did not always exist. Calling into question the notion of a quasi-direct link between the French Declaration of 1789 and human rights nowadays, the dissertation addresses the relationship between the French Revolution and modernity. It also examines France's reticence to ratify the European Convention on Human Rights and how it was among the last Western European nations to abolish capital punishment. The dissertation's first half offers a macro-societal analysis of the evolution of human rights in each nation since the revolutions of the 18th century. The second half focuses on criminal justice, including the death penalty, incarceration, and prisoners’ rights, to assess the impact of human rights and human dignity on positive law during this period. The dissertation ultimately reveals how human rights have been conceived, protected, and denied for generations