62 research outputs found
Introductory Note to Prosecutor v. Ratko Mladic--U.N. Int’l Residual Mechanism Crim. Tribunals App. Chamber
On June 8, 2021, the UN International Residual Mechanism for Criminal Tribunals (Mechanism) Appeals Chamber delivered its appeals judgment in Prosecutor v. Ratko Mladić. The judgment affirmed the 2017 trial judgment of Trial Chamber I of the UN International Criminal Tribunal for the former Yugoslavia (ICTY), which convicted Mladić, the Bosnian Serb commander, of genocide, crimes against humanity, and war crimes during the war in Bosnia between 1992 and 1995, as well as affirming his sentence of life imprisonment. This constituted Mladić’s final appeal, opening the door for his assignment to a prison somewhere in Europe
Othering Across Borders
Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering
The Criminalization of Foreign Relations
Overcriminalization has rightly generated national condemnation among policymakers, scholars, and practitioners alike. And yet, such scholarship often assumes that the encroachment of criminal justice stops at our borders. This Article argues that our foreign relations are also at risk of overcriminalization due to overzealous prosecution, overreaching legislation, and presidential politicization—and that this may be particularly problematic when U.S. criminal justice supplants certain nonpenal U.S. foreign policies abroad. This Article proposes three key reforms—presidential distancing, prosecutorial integration, and legislative de-escalation—to assure a principled place for criminal justice in foreign relations
Respectful Consideration after Sanchez-Llamas v. Oregon: Why the Supreme Court Owes More to the International Court of Justice
This Note argues that the doctrine of “respectful consideration” has emerged as little more than a hollow acknowledgement of the ICJ before the Court engages in its own independent interpretation of the Vienna Convention. It further argues that, while the ICJ has no actual legal authority to interpret the Vienna Convention from the U.S. domestic perspective, the Supreme Court should nonetheless treat ICJ decisions with greater deference. Specifically, Justice Stephen Breyer’s test from his Sanchez-Llamas dissent accords the proper level of deference by permitting, in limited circumstances, the remedies of suppression of the evidence and exceptions to state procedural default rules. By applying this test, the Court would respect the ICJ’s expertise in interpreting the Vienna Convention, protect the national interest in uniform treaty interpretation, and ensure security of American diplomats abroad. Additionally, Justice Breyer’s formulation of “respectful consideration” in the Vienna Convention context can and should serve as a blueprint for the Supreme Court in future treaty interpretation case
Core Criminal Procedure
Constitutional criminal procedural rights are familiar to contemporary criminal law scholars and practitioners alike. But today, U.S. criminal justice may diverge substantially from its centuries-old framework when all three branches recognize only a core set of inviolable rights, implicitly or explicitly discarding others. This criminal procedural line drawing takes place when the U.S. criminal justice system engages in law enforcement cooperation with foreign criminal justice systems in order to advance criminal cases.
This Article describes the two forms of this criminal procedural line drawing. The first is a “core criminal procedure” approach, rooted in fundamental rights, that arises in the exchange of electronic evidence but is related to two prior eras’ cross-sovereign criminal procedural articulation—the Warren Court incorporation of the Bill of Rights’ criminal procedural protections and engagement with international human rights instruments. Alternatively, courts today may use an ad hoc “outlier” approach, only excluding foreign evidence, convictions, or extradition requests in extreme circumstances that “shock the conscience.”
This Article argues that the former approach is superior to the latter, and argues for a methodology—rooted in constitutional law, international human rights, and comparative legal functionalism—for evaluating foreign legal systems. To support this argument, this Article draws on political theory concerned with global justice. This Article concludes by considering how core criminal procedure informs U.S. engagement with international criminal tribunals and investigative mechanisms
The Emerging Enforcement Practice of the International Criminal Court
The dual enforcement regime of the International Criminal Court constitutes a fundamental pillar of the Rome Statute of the International Criminal Court and represents a novel system within the history of international criminal law. This article is the first to focus on the emerging practice of the Court as it begins developing and implementing this unique enforcement regime. Drawing directly from the recent history within the Presidency and focusing on the current activities of the Trust Fund for Victims, this Article explains how, why, and in what direction the Court\u27s enforcement practice is evolving
Geography and Justice: Why Prison Location Matters in U.S. and International Theories of Criminal Punishment
This Article is the first to analyze prison location and its relationship to U.S. and international theories of criminal punishment. Strangely, scholarly literature overlooks criminal prison designation procedures—the procedures by which a court or other institution designates the prison facility in which a recently convicted individual is to serve his or her sentence.
This Article identifies this gap in the literature—the prison location omission—and fills it from three different vantage points:
(1) U.S. procedural provisions governing prison designation;
(2) international procedural provisions governing prison designation; and
(3) the relationship between imprisonment and broader theories of criminal punishment.
Through comparison of U.S. and international prison designation systems, this Article argues that prison location materially advances core rationales of criminal punishment
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