Law & Justice
International Law Archive
IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION: MEMORANDUM BY THE SECRETARIAT. International Law Commission, United Nations. Web posted January 28, 2009.
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The Secretariat issues a study for the International Law Commission on the Immunity of State officials from foreign criminal jurisdiction. The study examines the main legal issues that arise in connection with the topic, both from classical and contemporary perspectives, also taking into account developments in the field of international criminal law that might have produced an impact on the immunities of State officials from foreign criminal jurisdiction. [Note: contains copyrighted material]
COMBATING MARITIME PIRACY. Council on Foreign Relations. Stephanie Hanson. January 27, 2009.
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Maritime piracy has been on the rise for years, according to the study. But until 2008, when pirates operating off the coast of Somalia hijacked a ship full of Russian tanks and an oil supertanker, the crime drew limited international attention. By early 2009, more than a dozen countries had deployed their navies to the Gulf of Aden to counter piracy, and the United Nations passed four resolutions in 2008 on the issue. The complexities of international maritime law make it difficult to prosecute pirates once they are caught.
[Note: contains copyrighted material]
AA09005
Hawkins, Darren POWER AND INTERESTS AT THE INTERNATIONAL CRIMINAL COURT (SAIS Review of International Affairs, Vol. 28, No. 2, Summer-Fall 2008, pp. 107-119)
Available online
According to Hawkins, associate professor of political science at Brigham Young University, the ICC should probably best turn its attention to training judges in developing countries with a weak institution of the rule of law. More effective and less costly ways exist to pursue justice in any single country than those used by the ICC, which lacks the money and force to arrest suspects and try them. The U.S. experience with the ICC has focused on punishing the mostly small countries that cooperated with the court; the United States would do better to press this listless organization into the service of countries struggling with or transitioning to democracy.
FIRST STEPS TOWARD RESTORING AMERICAN LEADERSHIP: LEGALITY MATTERS. Century Foundation. Jeffrey Laurenti. Web posted November 8, 2008.
Full Text [PDF format, 19 pages]
The author, Laurenti, suggests that to reclaim American leadership and credibility in resolving the many deepening crises on America’s international agenda, the next administration must move swiftly to reverse the U.S. rupture with international law and institutions of the past decade. The report argues that the collapse of America’s global standing during this decade has real and measurable consequences in shriveled U.S. capacity to influence events worldwide. The United States had honored international legal commitments without harm to America’s core interests from the presidencies of Truman and Eisenhower to those of Ford and Carter. [Note: contains copyrighted material]
SELECTED INTERNATIONAL AND REGIONAL HUMAN RIGHTS TREATIES.
Amnesty International. Web posted May 30, 2008.
Full Text [pdf format, 22 pages]
States which have ratified or acceded to a convention are party to the treaty and are bound to observe its provisions. States which have signed but not yet ratified have expressed their intention to become a party at some future date; meanwhile they are obliged to refrain from acts which would defeat the object and purpose of the treaty.
[Note: contains copyrighted material]
PROTECTING INTELLECTUAL PROPERTY RIGHTS IN CHINESE COURTS: AN ANALYSIS OF RECENT PATENT JUDGMENTS. Mei Y. Gechlik. Carnegie Papers, Carnegie Endowment for International Peace. January 2007.
Full Text [pdf format, 28 pages]
China’s president has vowed to make China an “innovative country” by 2020. In order to accomplish this goal, China must improve its patent protection system. Presently Chinese companies are hesitant to encourage technological innovation due to the fact that the current legal system does not fully protect research and development. Several recommendations are offered which would not only achieve China’s 2020 goal but would benefit American parties as well.
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Burgess, Douglas THE DREAD PIRATE BIN LADEN (Legal Affairs, July/August 2005, pp. 32-36)
Full text available from your nearest American Library
The author writes that the international community has been stymied in its efforts to deal with terrorism, because there has been no agreement on how to legally define terrorism. Burgess believes that terrorism has a precedent in piracy, whose history of state-versus-nonstate conflict is "long and notable". By the late seventeenth century, unemployed sailors in the English colonies had coalesced into pirate bands to seize ships and strike in revenge against societies they felt had abandoned them. The 1856 Declaration of Paris officially recognized pirates as a new category of international criminals, pursuing private war for private ends. The author argues that there are many parallels between pirates and terrorists -- both are "enemies of the human race", and all states are obligated to combat them. He believes that there would be great benefits in applying this legal definition to contemporary terrorism.
BALKAN COOPERATION ON WAR CRIMES ISSUES: 2005 UPDATE. [RS22097]
Julie Kim. Library of Congress. Congressional Research Service. March 28, 2005.
Download the document [pdf format, 6 pages]
A combination of intensified international pressure and deadlines associated with Euro-Atlantic integration processes has prompted a spate of transfers of persons indicted for war crimes to the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague in late 2004-early 2005. Full cooperation with The Hague tribunal has been established as a key prerequisite to further progress toward a shared long-term goal for the western Balkan countries: closer association with and eventual membership in the European Union (EU) and NATO. The Euro-integration efforts of Croatia, Bosnia- Herzegovina, and Serbia and Montenegro have stalled (to varying degrees) over ICTY cooperation, although recent evidence of progress in turning over indicted persons may prompt further consideration. Limited cooperation with ICTY has also held up some U.S. bilateral assistance to Serbia. Some top-ranking war crimes suspects remain at large; meanwhile, the Tribunal is preparing to wind down its operations and has issued its final indictments.
DETENTION OF AMERICAN CITIZENS AS ENEMY COMBATANTS. [RL31724]
Jennifer K. Elsea. Library of Congress. Congressional Research Service. Updated February 24, 2005.
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The law of war divides persons in the midst of an armed conflict into two broad categories: combatants and civilians. This fundamental distinction determines the international legal status of persons participating in or affected by combat, and determines the legal protections afforded to such persons as well as the legal consequences of their conduct. To limit exposure of civilians to military attacks, combatants are required, as a general rule, to distinguish themselves from civilians. Combatants who fail to distinguish themselves from civilians run the risk of being denied the privilege to be treated as prisoners of war if captured by the enemy.
This report analyzes the authority to detain American citizens who are suspected of being members, agents, or associates of Al Qaeda, the Taliban, or other terrorist organizations as “enemy combatants.” In June 2004, the Supreme Court issued three decisions related to the detention of “enemy combatants.” In Rasul v. Bush
, the Court held that aliens detained at the U.S. Naval Station at Guantánamo Bay, Cuba, have access to federal courts to challenge their detention. In Hamdi v. Rumsfeld
, a plurality held that a U.S. citizen allegedly captured during combat in Afghanistan and incarcerated at a Navy brig in South Carolina was entitled to notice and an opportunity to be heard by a neutral decision-maker regarding the government’s reasons for detaining him. The government instead reached an agreement with the petitioner that allowed him to return to Saudi Arabia, where he also holds citizenship, subject to certain conditions. The Court in Rumsfeld v. Padilla
overturned a lower court’s grant of habeas corpus to another U.S. citizen in military custody in South Carolina on jurisdictional grounds, sending the case to a district court in the Fourth Circuit for a new trial.
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Hendrickson, David C.; Tucker, Robert W. THE SOURCES OF AMERICAN LEGITIMACY (Foreign Affairs vol. 83, no. 6, November/December 2004, pp. 18-32)
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The authors believe that the legitimacy the U.S. has enjoyed since World War II is due to our commitment to international law, acceptance of consensual decision-making, and our goal of the preservation of peace. They argue that this has been jeopardized by the Bush administration's unilateral actions after 9/11. They note that the Bush administration is aware of declining U.S. legitimacy in the world arena. The strategy of preemptive strike in the face of an imminent threat may have helped maintain some degree of legitimacy; however, the authors believe that it has lost currency, given the lack of WMD evidence used to justify the war in Iraq. Recovery from this loss of legitimacy will be painstaking, as past actions taint our reputation as a country, the authors maintain. Despite the possibility of a intervention being vetoed by just one member, as was the case with Russia and Kosovo, the UN Security Council has been reasonably accommodating, they note, suggesting that the U.S. should give more heed to international organizations and begin mending relations through a policy that, at minimum, acknowledges multilateralism.