On the Crimes Subject to Prosecution in Military Commissions

The Military Commissions Act 2006 seems to have a much broaderapplication than the 2003 Military Commission Instruction Number2, or MCI2. None of the 28 specific crimes listed in 950v(b)of the 2006 Act mentions a nexus with armed conflict. This Actraises a number of questions. In particular three issues arerelevant: (i) Congress intended to act under its constitutionalpower ‘to define offenses against the law of nations.’In so far as some of these offences are not violations of thelaw of nations, they fall outside the field of legislative competence;(ii) the Military Commissions are given excessive discretionin the field of sentencing. There are no terms of imprisonmentprovided. In many cases the death penalty is allowed. Otherwisethe Commissions may impose any sentence they wish. This degreeof discretion arguably violates the Eighth Amendment against‘cruel and unusual punishment’; (iii) there mightbe a violation of the principle of equal protection: is it constitutionalto impose a special regime on suspects simply because they are‘aliens’?     

An Intentionally Unfair Trial

Numerous flaws made the Dujail trial a violation of the internationallyprotected human right to a fair trial. The United States andthe Iraqi authorities conducted an unfair trial knowing thatboth the Third and Fourth Geneva Convention describe ‘wilfullydepriving’ a person ‘of the rights of fair and regulartrial’ as a war crime. Even if Saddam Hussein was notto be regarded as a prisoner of war, that is, merely as a civilian,in any case his right to fair trial was protected by internationallaw. According to the author, both the relevant states and theindividuals involved in the unfair Dujail trial bear responsibilityfor breaches of international law.     

An Inquiry into the Turkish 'School' of International Law

This paper seeks to examine major Turkish textbooks of publicinternational law, focusing particularly on a small number ofcore areas in this discipline: historical origins and basicfeatures; formal sources; main subjects; the law of territory;international law and development. These textbooks show a stronginclination towards Eurocentrism and positivism due to theirdenial of the vigour of ‘soft law’, as manifestedfor instance in UN General Assembly resolutions, and of theirmarginal treatment of ‘international law and development’.What is more, substantive issues of international law are notdiscussed in a critical way; rather the procedures of the disciplineare given priority. This is almost to suggest that Turkish internationallaw scholars hold the view that their raison d’êtreis confined to ‘technical expertise’, and that therelationship between law, other disciplines and society liesoutside their domain. In the final analysis, therefore, thehard core of issues integral to international law and havinga deep impact on international politics, such as the searchfor a New International Economic Order (NIEO), the principleof self-determination and human rights are either entirely bypassedor treated only very narrowly in Turkish international law textbooks.     

The Vessel Hull Design Protection Act of 1998: is it still afloat?

Legal context. The Vessel Hull Design Protection Act (‘VHDPA’or ‘Act’) is a unique form of industrial designprotection under US law, part of the Digital Millennium CopyrightAct 1998. Congress provided this sui generis form of protectionin response to the Supreme Court's decision in Bonito Boatsv Thunder Craft Boats, Inc. This statute has been underutilizeddue to the difficulty in proving infringement, as unintendedconsequences were caused by the way ‘hull’ was originallydefined under the Act. A bill is pending in Congress that addresseshow a ‘hull’ is defined, eliminating any inclusionof ‘deck’ features, when passed, registrants shouldbe able to pursue infringers with greater success. Key points. The recreational boat manufacturing industry hasbeen plagued by low-cost boat makers who think nothing of takinga competitor's boat hull design, and using it as a ‘plug’to make a casting for their own unauthorized manufacturing use,a counterfeiting technique known in the trade as ‘splashing’a hull. In the eight years since enactment, the boating industryhas generally overlooked this form of intellectual propertyprotection due to the difficulty in proving infringement—thatis likely to change soon. Practical significance. The Act includes the right to excludeothers from making, having made, importing, offering for sale,or using in any trade, any boat hull embodying the protectedhull design. The Act provides compensatory recovery for damagesas well as injunctive relief. The newly revised Act has thepotential to provide a low-cost and effective form of intellectualproperty protection for recreational boat manufacturers whobuild hulls from moulded fibreglass or similar materials.     

'Unlawful Enemy Combatant': Status, Theory of Culpability, or Neither?

The Military Commissions Act of 2006 represents the United States’most recent effort to establish a forum to try detainees capturedin its ‘Global War on Terrorism’. This article brieflyexplores the Act's use of the term ‘unlawful enemy combatant’to define both subject matter jurisdiction as well as the potentialsource of criminal liability. The article highlights the term'sabsence from the positive law of war as well as confusion overits legal significance in United States domestic law. Examiningthe relationship between status and protections under the lawof war, the authors conclude the Act's use of the term ‘unlawfulenemy combatant’ reflects legal convenience more thanan objective assessment of the existing laws and customs ofwar.     

The Shifting and Multiple Border and International Law

The question of how the ‘border’ is conceived ininternational law, and how it shapes identity and peoples’lives, remains largely unexplored in the international legalliterature. This article seeks to contribute to our understandingof the meaning of the border in international law, and in thecontemporary context, by drawing on the work of the philosopherand political theorist, Étienne Balibar, and by reflecting,in the light of his work, on the recent decision of the Houseof Lords in R v Immigration Officer at Prague Airport. It isshown that international law's focus on the territorial bordermay render invisible other borders which are significant forsubaltern groups, and thereby fail to address the manner inwhich borders affect lives and determine outcomes. Borders arenot stable and ‘univocal’, but instead, ‘multiple’,shifting in meaning and function from group to group. They arealso being ‘exported’ such that a person may experiencea foreign border while still within the territory of their owncountry. In highlighting the multiplicity of borders, the articleseeks to prompt further reflection on the articulation and applicationof norms of international law in a way that addresses the realitiesof the contemporary context.     

Rethinking Guantanamo: Unlawful Confinement as Applied in International Criminal Law

Although criticism of US-led detention at GuantánamoBay has been extensive, little attention has been placed onevaluating the implications of international humanitarian lawstandards as applied in international criminal law. This paperconcludes that there is a striking resemblance between allegationsmade of Guantánamo and many of the scenarios that havegiven rise to individual criminal responsibility for unlawfulconfinement as a grave breach of the Geneva Conventions in othercontexts. In this regard, arguments that individuals who donot enjoy prisoner-of-war status fall into a legal vacuum orthat international humanitarian law has somehow been renderedobsolete by the ‘War on Terror’ ignore the factthat international criminal precedents unambiguously disagree.If nothing else, an analysis of international criminal law'streatment of unlawful confinement highlights the urgent needto rethink the legal basis for detention at Guantánamoand the risks of individual criminal responsibility for purportingto develop international humanitarian law through unilateralchanges in policy rather than formal international law-makingprocesses.     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.     

Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice

Since the establishment of the Permanent Court of InternationalJustice in 1922, governments have consented to, and activelyused, an ever larger number of international and transnationalcourts, quasi-judicial dispute settlement bodies and ad hocarbitral tribunals for the settlement of disputes over the interpretationand application of rules of international law. Such judicialclarification of disputed interpretations of incomplete, intergovernmentalagreements reduces not only the negotiation costs of governmentsby delegating the clarification of contested facts and legalclaims to independent third-party adjudication. Judicial decision-makingat intergovernmental, transnational, national and private levelsalso supplements rule-making and offers citizens judicial remediesfor defending their rights and interests. Modern internationaleconomic law increasingly complements intergovernmental, legislative,and administrative governance by multilevel ‘judicialgovernance’ so as to protect rule of law more effectivelyfor the benefit of citizens (Section I). This contribution criticizesthe one-sidedly power-oriented perceptions of WTO law as ‘internationallaw among states’ (Section II) and the related perceptionsof international judges as dependent agents of states (Section III).Civil society, parliaments and democratic governments shouldencourage national and international judges to cooperate intheir legal task of interpreting citizen-oriented internationaleconomic law ‘in conformity with principles of justiceand international law’, as explicitly prescribed in theVienna Convention on the Law of Treaties (VCLT). The legal coherenceof multilevel judicial governance depends on protecting principlesof procedural as well as substantive justice and a common conceptionof ‘rule of law’ not only in intergovernmental relationsamong states, but also vis-à-vis their citizens engagedin, and benefiting from, international trade (Sections IV–VIII).     

Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC

The author discusses the interaction between international andnational law in determining whether a case is admissible fromthe viewpoint of complementarity (Article 17 of the Statuteof the International Criminal Court) and with regard to theconcept of ‘interests of justice’ (Article 53 ofthe same Statute). Complementarity does not separate nationalfrom international criminal jurisdiction; nor does it put themin conflict with each other — rather, it favours the aforementionedinteraction. In addition, the concepts of ‘ability’and ‘willingness’ tend to ensure an indirect harmonizationof national criminal systems around common international criteria.As for reliance on the notion of ‘interests of justice’when determining whether to initiate proceedings, accordingto the author, Article 53 envisages a compromise between prosecutorialdiscretion and strict legality, thereby enshrining a hybridizationbetween various national traditions. The author notes that thedecision to open investigations should be objective and foreseeable;to this end, she suggests some general criteria, which are intendedto serve as guidelines for establishing whether, in a specificcase, the interests of justice warrant the initiation of proceedings.     

Part One of the Employment Act 2008: 'Better' Dispute Resolution?

This article will analyse Part One of the Employment Act 2008on employment dispute resolution and in particular the repealof the statutory workplace dispute resolution procedures onlyfour years after Regulations implemented them. It will beginby considering the background of increasing tribunal caseloadthat led to their introduction in the first place. Later sectionswill examine the replacement of these statutory procedures withwhat Ministers described as the triple package of a new AdvisoryConciliation and Arbitration Service (‘ACAS’) helpline,increased ACAS conciliation and a revised ACAS Code. The languageof repeal and the Act's reintroduction of the Polkey line ofcases might suggest that dismissal law is merely reverting backto its pre October 2004 position. This article will, however,conclude that Part One does not just ‘simplify’dismissal law, or ‘return’ the law to September2004 or indeed to any other time frame. Instead, it weakenskey procedural protections for employees potentially by conflatingthe 2002 Act's different tests of ‘automatically’unfair and ‘ordinarily’ unfair dismissals, for example.Lowering standards of procedural justice is significant in itselfbut this takes added importance for dismissed employees as tribunalsrarely investigate the substantive fairness of dismissals.     

The Orwellian Military Commissions Act of 2006

In three decisions in 2004 and 2006, the Supreme Court of theUnited States rejected the sweeping claims by President Bushthat his role as Commander in Chief entitled him to detain personsindefinitely and, if he chose, to subject them to war crimestrials before military commissions that did not have all ofthe procedural protections of courts martial. The Court's rulings,however, left open the possibility that, notwithstanding thetreaty obligations of the United States under the Geneva Conventions,Congress could authorize the President to take the steps thathe could not take unilaterally. In the Military CommissionsAct (MCA) of 2006, Congress did just that. However, despiteits title, the MCA does far more than authorize military commissions.Most significantly, it eliminates the statutory right of aliensdeclared by the government to be ‘unlawful enemy combatants’and detained indefinitely on that basis, to seek a writ of habeascorpus from a federal court. To be sure, the MCA provides someright of access to federal court for persons convicted of warcrimes by military commissions or found to be unlawful enemycombatants by a military ‘combatant status review tribunal’or equivalent body, but even then, it severely curtails opportunitiesfor judicial relief. In this and other respects, the MCA purportsto confer rights that, upon close inspection, prove illusory.For example, it uses the language of the Geneva Conventions,even while forbidding courts to look to international and foreignsources to construe that language. The MCA is, more broadly,an exercise in misdirection. It is, in a word, ‘Orwellian’.     

The Personal Nature of Individual Criminal Responsibility and the ICC Statute

By affirming criminal responsibility of the individual, theICC Statute recognizes a distinction from the internationalresponsibility of states, which is the basis of modern internationalcriminal law. The importance of the principle is evident notonly in the breadth and analytical nature of the provision dealingwith it, i.e. Article 25 of the Statute, but by its being placedin the part of the Statute devoted to the ‘General Principlesof Criminal Law’. After an introductory considerationof the context of the Article and of its general implications,this article analyses the contents of the regulation and thetype of responsibility outlined in it. The principle that emergescould be called the ‘personal nature’ of internationalcriminal responsibility. Although the general principles setout in the ICC Statute are rather rudimentary in comparisonwith what is to be found in the ‘General Part’ ofmost national criminal laws, the principle of personal responsibilityemerging from the Statute is nevertheless in the best traditionsof criminal law. It serves both as the foundation and as thelimitation of international criminal responsibility, so helpingto ensure that modern international criminal law is not a toolfor oppression but rather an instrument of justice.     

New developments in Belize Laws and Regulations affecting Trusts and Service Providers

The months of April and May 2007 have seen the enactment oftwo new pieces of legislation and one set of regulations. InJune 2007 the Regulations governing the Trust (Amendment) Act2007 and the International Financial Services Commission (Amendment)Act 2007 were passed. ‘The Trust and Company Services Providers (Best Practices)Regulations 2007’ were published in the Belize Gazetteon 7 April and came into force on 16 April. ‘The Trusts (Amendment) Act 2007’ and ‘TheInternational Financial Services Commission (Amendment) Act2007’ were signed on 30 May and were both published inthe Belize Gazette on 2 June. The regulations for these two, ‘The International TrustsRegulations 2007’ and ‘International Financial ServicesCommission (Licensing) Regulations 2007’ were enactedon     

The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of 'Murder in Violation of the Law of War'

This article examines the legal origins of ‘murder inviolation of the law of war’, an offence defined in theUS Military Commissions Act (MCA) and resorted to in the caseagainst Salim Ahmed Hamdan. Hamdan was acquitted of conspiringto commit this offence based in part on a questionable legalinstruction. The acquittal may have been proper under a correctview of the law. Nevertheless, the specific context in whichthis offence was alleged, combined with the judge's instruction,highlights key aspects of the US approach to the prosecutionof unprivileged fighters for a ‘law of war violation’.This approach, which is substantially represented by the USSupreme Court's judgment in ex parte Quirin, has been criticizedby International Humanitarian Law (IHL) scholars as an erroneousview of customary IHL. However, close analysis of the legaland historical context in which this approach developed revealsthat ‘murder in violation of the law of war’ isa municipal US offence that represents an English common lawimplementation of the law of nations. This article explainswhy reading this offence to incorporate IHL war crimes, as Hamdan'sjudge did, is inappropriate in the context of the MCA and Hamdan'scase. It then demonstrates that the authorities relied uponby the Quirin Court, the Lieber Code and a treatise by authoritativeUS military law commentator, William Winthrop, understood punishmentfor law of war violations to be permitted by the law of nationsbut imposed under municipal law. Thus, ‘murder in violationof the law of war’ is properly viewed as a municipal,common law offence punishing unprivileged fighters. In futurestudies the author will address the appropriateness of prescribingand enforcing this municipal offence in extraterritorial armedconflict.     

Joint Criminal Enterprise and Command Responsibility

The joint criminal enterprise doctrine appears more and moreas the ‘magic weapon’ in the prosecution of internationalcrimes. Yet, the doctrine not only gives rise to conceptualconfusion and conflicts with some fundamental principles of(international) criminal law but also invades the traditionalambit of command responsibility liability. This becomes obviousif both doctrines are applied simultaneously in cases againstaccused with some kind of superior position. After a short introductionon both doctrines, as interpreted in modern case law, the articlegives some examples of their simultaneous application and triesto develop distinguishing criteria in light of the case lawand a ‘dogmatic’ analysis of both the doctrines.A reference to the theory of ‘Organisationsherrschaft’shows that there is yet another option to impute internationalcrimes to top perpetrators.     

Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes

On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 1978–1992. The Courtheld in both cases that it had ‘universal jurisdiction’over violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of ‘torment’ (‘foltering’)and torture as a war crime (‘marteling’). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism.     

Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?

The nature of command responsibility is still open to debatein international criminal law: is a superior to be held criminallyresponsible for the crimes committed by his subordinates ‘asan accomplice’, for having participated in the commissionof the crime by omission, or as a perpetrator of a separateoffence of dereliction of duty? This article surveys the post-WW2case law and the first international instruments on this point,and then analyses the jurisprudence of the International CriminalTribunal for the former Yugoslavia (ICTY). The judges appearto have recently adopted a new approach to Article 7(3) ICTYSt.in that the superior is held responsible ‘for failureto prevent or punish with regard to the crimes of the subordinate’and no longer ‘for the crimes of his subordinates’.It is a responsibility ‘sui generis’ indeed, wherethe crime of the subordinate plays a central role in the attributionof responsibility to the superior. It is, therefore, necessaryto carefully consider the relationship between the superior'sfailure to act and the subordinate's crime, both with regardto objective and subjective elements. The same question finallyarises in relation to Article 28 of the Rome Statute, the literalinterpretation of which implies that a superior shall be punishedfor the same crime committed by his subordinates. In order toavoid the risk of holding a person guilty of an offence committedby others in violation of the principle of personal and culpablecriminal responsibility, it is crucial to consider separatelythe different cases of command responsibility, which are basedon distinct objective and subjective requirements.     

Thick, Thin and Thinner Patriotisms: Is This All There Is?

The ‘reinvention’ of nationhood in theory and thereform of British naturalization rules in praxis have been unableto address satisfactorily the issue of unjust exclusion andto make naturalization law and citizenship more compatible withdemocratic ideals. This has much to do with the fact that thediscourse of new patriotism and the reconfiguration of nationalcitizenship have inbuilt limits. In examining the ‘new’discourse of patriotism in its various shades, I argue thatit is inconsistent and unpersuasive. Neither the rehabilitationof civic nationalism under ‘republican patriotism’,nor ‘constitutional patriotism’, nor ‘rootedpatriotism’ succeed in transforming the nationality modelof citizenship in order to render it more compatible with contemporarydevelopments and with cultural pluralism. Similarly, the threemodels of citizenship developed by the literature, namely, postnational,transnational and multicultural citizenship remain rooted withinthe civic nationalist trajectory. Instead of arguing for theliberalization of naturalization requirements and the ensuingpluralization of citizenship, I put forward an argument as tohow the nationality model of citizenship might be transcendedby developing a model of civic registration. By contrastingthis model with the Labour Government’s reforms in thefields of naturalization and citizenship, I argue that the Nationality,Immigration and Asylum Act 2002 places too much emphasis onsocial cohesion, thereby overlooking that a sense of belongingto community develops with inclusion in society and politicsrather than as a result of citizenship ceremonies and languageproficiency tests.     

Whose 'Conduct Unbecoming'?: The Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator

The article focuses on the decision of the Israeli MilitaryAdvocate General (MAG) to charge an officer who ordered theshooting of a handcuffed, blindfolded Palestinian demonstrator,and the soldier who executed the order, for ‘conduct unbecoming’.It advances the following propositions: (i) from the perspectiveof the applicable international law, the facts of the case qualifythe shooting as a war crime; (ii) said decision of the IsraeliMAG is indicative of a policy of tolerance towards violenceagainst non-violent civilian protest against the constructionof the Separation Wall; (iii) the implication of such policyis twofold: first, it might transform ‘conduct unbecoming’— which as a matter of law is a war crime — intoa crime against humanity; second, it may well be construed asan invitation to the international community to intervene throughthe exercise of universal jurisdiction.