The Duty to Bring Terrorists to Justice and Discretionary Prosecution

In Res. 1373 (2001), the Security Council laid down the dutyto bring terrorists to justice and to deny them safe haven.Whereas such duty expressed a clear political imperative inthe aftermath of 11 September 2001, it is less clear how nationalauthorities are supposed to translate it into a set of enforceablelegal obligations. If it is interpreted as ‘obliging’states to prosecute and try terrorists, as the Security CouncilCounter Terrorism Committee seems to suggest, the power of prosecutorsto decide whether or not to bring a case to court may be severelyimpaired. An unconditional obligation to bring terrorists tocourt would not necessarily strengthen states’ judicialresponse to the threat of international terrorism. A sensibleexercise of prosecutorial discretion may be instrumental inarticulating a flexible and more effective response in variouscircumstances. Moreover, a rigid interpretation of the requirementto bring terrorists to justice does not find support in SecurityCouncil and General Assembly resolutions on terrorism. Far frommandating that alleged offenders be unconditionally broughtto trial, the universal counter-terrorism conventions and protocolslimit themselves to requiring that the jurisdiction of nationalcourts be established, which is conceptually different fromimposing its actual exercise.     

The Nuremberg Trial and its Impact on Germany

The impact of the Nuremberg trial on Germany has changed overtime. It is not only a question of evolving legal debate, butalso a correlation of historical, political and moral developments.The author considers the reception of the International MilitaryTribunal (IMT) trial during the Cold War. West Germany rejectedNuremberg's historic precedent, principally on the grounds thatthe Allies had enforced victors’ justice, and that theTribunal had applied ex post facto law by violating the nullumcrimen principle. Meanwhile, East Germany seemingly took upthe cause of Nuremberg by prosecuting minor Nazi perpetrators.However, this affirmation was politically motivated, and itled to inhumane abuses of power, exemplified by the Waldheimtrials. The reunification of Germany marked the beginning ofa positive approach to the Nuremberg legacy: the new generationof judges, politicians and academics was increasingly sympatheticto international criminal justice, and adopted the Nurembergprecedent by dealing judicially with crimes committed in theEast during the Cold War. The study goes on to deal with therelevance of West German legal critique for modern internationalcriminal law. The author suggests that a distinction shouldbe made between true victims of international crimes and thosewho wish to revise history by portraying themselves as such,as many West Germans did after World War II. Moreover, the ‘victors’justice’ argument must not be used to conceal the factthat justice has indeed been administered. However, the criticismof the IMT's violation of the nullum crimen principle is firmlygrounded in the German, as opposed to Anglo-American, legaltradition.     

The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon

The Special Tribunal for Lebanon (STL) represents a sui generisinternational tribunal on various levels. It is the first timea treaty-based Tribunal has been established through a resolutionof the Security Council adopted under Chapter VII. A furtherunique feature is its sole dependence on domestic substantivecrimes. The attempt to include crimes against humanity in theStatute did not succeed, despite the fact that the elementsof a crime against humanity seem to be discernable in the conductthat falls within the jurisdiction of the STL. References tointernational and regional terrorism instruments, such as theArab Convention for the Suppression of Terrorism, were alsoabandoned. The Tribunal will rely on Lebanese criminal provisionsregarding terrorism, illicit associations, crimes and offencesagainst life and personal integrity. Lebanese law provides anold but concrete definition of terrorism. This raises the questionof whether the Lebanese definition, with its strengths and weaknesses,could assist in the evolution of a well-structured definitionof international terrorism. The possibility of ‘internationalizing’the Lebanese definition will depend on two factors: the judges’approach in adopting the Tribunal's rules of evidence and procedure,and then more importantly their creativity in developing thejurisprudence of the Tribunal.     

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.     

The Sovereignty Game States Play: (Quasi-)States in the International Order

This article discusses the puzzle of sovereign statehood in the context of state failure and anarchy in Sub-Saharan Africa. In the first section it suggests to analyse sovereignty as a discursive fact in terms of a Wittgensteinian language game. This renders recognition a pivotal element and rejects foundationalist notions of sovereignty. The second section analyses the ‘quasi-statehood narrative’. Whereas this narrative presents sovereignty as a game, it applies two different notions of games concomitantly. This article argues that the notion of quasi-statehood maintains an empirical kernel as the core of ‘real’ sovereign statehood and as such remains within the conventional sovereignty discourse. The epilogue states that such foundationalism is not an innocent analytical move. It shows how language can have far-reaching political impact in terms of legitimation of political actions, and how, ultimately, the conventional discourse drains international relations of its content. This will be illustrated by U.S. position to state failure in their War on Terrorism.     

'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 'final' privacy frontier? Regulating trans-border data flows

This article examines the threat to privacy posed by the transferof personal information from one jurisdiction to another. Despiteinternational trends towards greater protection of personalinformation, significant challenges to personal privacy arisein this context. These include the use of outsourcing by businesses,the encroachment of security laws and the potential ‘spill-over’of technologies developed for combating terrorism into the privatesector. Also significant are technologies enabling the ‘profiling’of individuals and ‘data mining’ across borders.Against this backdrop, the article considers existing jurisdictionalresponses towards regulating personal information flows acrossborders. It considers various actual or proposed solutions including‘safe-harbours’, contractual mechanisms and extra-territorialapplications. The article concludes that many of the existingapproaches to regulating trans-border information flows areto some extent deficient and suggests the need for a new ‘fourthgeneration’ set of data protection protocols. In formulatingthe latter, analogies are drawn from other relevant areas ofthe law in order to furnish creative solutions to the problem.     

联合国反洗钱立法的发展及其对我国的影响

联合国《禁毒公约》最先在国际公约中对洗钱作出了惩治性规定,其后的《制止向恐怖主义提供资助的国际公约》进一步将反恐融资与洗钱犯罪联系起来,之后的《巴勒莫公约》则明确地提出了独立的＂洗钱罪＂概念,2003年《反腐败公约》开始通过专门条文的形式对洗钱行为的预防与定罪作出了更详细的规定。这些联合国公约对反洗钱所作规定的变化,体现了国际反洗钱立法的发展过程,也对我国不同时期的反洗钱立法产生了重要影响。     

Law's Legitimacy and 'Democracy-Plus'

Is it the case that the law, in order to be fully legitimate,must not only be adopted in a procedurally correct way but mustalso comply with certain substantive values? In the first partof the article I prepare the ground for the discussion of legitimacyof democratic laws by considering the relationship between law’slegitimacy, its justification and the obligation to obey thelaw. If legitimacy of law is seen as based on the law beingjustified (as in Raz’s ‘service conception’),our duty to obey it does not follow automatically: it must bebased on some additional arguments. Raz’s conception oflegitimate authority does not presuppose, as many critics claim,any unduly deferential attitude towards authorities. Disconnectionof the law’s legitimacy from the absolute duty to obeyit leads to the second part of the article which consists ina critical scrutiny of the claim that the democratically adoptedlaw is legitimate only insofar as it expresses the right moralvalues. This claim is shown to be, under one interpretation(‘motivational’), nearly meaningless or, under anotherinterpretation (‘constitutional’), too strong tosurvive the pressure from moral pluralism. While we cannot hopefor a design of ‘pure procedural democracy’ (byanalogy to Rawlsian ‘pure procedural justice’),democratic procedures express the values which animate the adoptionof a democratic system in the first place.     

From Benchmarking to Final Status? Kosovo and The Problem of an International Administration's Open-Ended Mandate

This contribution examines certain inherent shortcomings ofan ‘open-ended’ institution-building operation forwhich the future status of the entity in statu nascendi remainsundecided. It first addresses the policy of conditionality throughwhich Kosovo’s international administration attempts tomeasure the performance of local institutions against imported‘standards’. The external representation functionof an international administration acting on behalf of a non-stateterritorial entity, as an agent of necessity, is then analysed,considering recent and little-known developments and suggestingthat UNMIK’s practice supports the argument that ‘internationalized’territories possess limited legal personality. Turning ‘inward’to a sphere of domestic governance, the contribution highlightssome of the problems encountered with regard to the privatizationof public assets in Kosovo. Here, it argues that UNMIK is awkwardlycaught between the pursuit of both the interests of the territoryunder its administration and the collective interest of theorganized international community – two sets of interestswhich can collide head-on. The article concludes by suggestingthat an international territorial agent should not, as a rule,attempt to mediate a solution, but endeavour to represent theterritory in good faith.

‘You gave us freedom, but not a future’.¹

     

Hate Speech,Group Libel,and “Ford's Megaphone”

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA: Stanford University Press. Pp. xv, 408. $55.00, cloth; $24.95, paper. This essay on Victoria Saker Woeste's Henry Ford's War on Jews and the Legal Battle Against Hate Speech (2012) emphasizes that what made Ford's broadsides against Jews in the 1920s so dangerous was technology—his command of an unparalleled network of distribution, through his nationwide Ford dealerships. In addition, at the time of Ford's libels, US legal culture had not yet absorbed the idea that ideological and psychological subordination of minority groups was the principal harm worked by what would later be called “hate speech.”     

The Hand Rule and United States v. Carroll Towing Co. Reconsidered

Judge Learned Hand’s opinion in United States v. CarrollTowing Co. (1947) is canonized in the law-and-economics literatureas the first use of cost-benefit analysis for determining negligenceand assigning liability. This article revisits the case in whichthe Hand formula was born and examines whether Judge Hand’sruling in that case would provide correct incentives for efficientlevels of precaution. We argue that the negligence test as usedby Judge Hand is somewhat different from the Hand test as usedby modern law-and-economics theorists. With a game theoreticanalysis of the case, we show that Judge Hand’s negligencetest could in fact produce games with inefficient equilibria,or with liability determinations opposite Judge Hand’s.     

The Legal Response of the League of Nations to Terrorism

Terrorism was first confronted as a discrete subject matterof international law by the international community in the mid-1930s,following the assassination of a Yugoslavian king and a Frenchforeign minister by ethnic separatists. The League's attemptto generically define terrorism in an international treaty prefiguredmany of the legal, political, ideological and rhetorical disputeswhich plagued the international community's attempts to defineterrorism in the 50 years after the Second World War. Althoughthe treaty never entered into force following the dissolutionof the League itself, the League's core definition has beenhighly resilient and has influenced subsequent legal effortsto define terrorism. While the League's 1937 Convention forthe Prevention and Punishment of Terrorism is often referredto obliquely in international legal discussions of terrorism,the drafting of the Convention has seldom been intensively analysed.By closely examining its drafting, this article elucidates howthe drafters of the Convention agreed on a definition of terrorism,and why they rejected alternative definitions. In doing so,it hopes to refresh and enliven current international debatesabout definition in the wake of the United Nation's 60th anniversaryyear, which saw renewed emphasis placed on the quest for definition.     

Montesquieu's Mistakes and the True Meaning of Separation

In The Spirit of the Laws, Montesquieu concluded that a constitutionof liberty could best be achieved, and had been achieved inBritain, by assigning three essentially different governmentalactivities to different actors. He was wrong. His mistaken conclusionrested on two errors. First, Montesquieu thought that the primaryexercise of powers could durably be divided only where thosepowers differed in kind. Second, Montesquieu failed to recognizethe lawmaking character of executive and judicial expositionof existing law. This article analyzes implications of Montesquieu’smistakes for modern claims, both in Britain and in the UnitedStates, that liberty and the rule of law are promoted by separatingpower in certain contexts. In particular, this article questionsthe British Government’s recent claim that the valuesunderlying separation-of-powers theory call for removing ultimateappellate jurisdiction from the House of Lords. It also tracesMontesquieu’s influence on the American founders’attempt to separate power along essentialist lines, and considerssome sub-optimal consequences of that attempt, including thenon-delegation quandary and the emergence of an unchecked judiciallawmaker.     

Framing Henry Ford's War: Representation,Speech, and the New Civil Rights History

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA: Stanford University Press. In this essay, I respond to three readers of my book, Henry Ford's War and the Legal Battle Against Hate Speech, by embracing the opportunity to reconsider the book's theoretical and historiographical frames. I synthesize the contributions that Clyde Spillenger, Carroll Seron, and Aviam Soifer make in their deep readings of the book and respond to their criticisms. I then place the book into a new interpretive frame that is emerging in the field of the “new civil rights history,” as it is now being conceptualized in the work of Risa Goluboff, Kenneth Mack, Tomiko Brown‐Nagin, and others writing on civil rights advocacy in the twentieth‐century United States.     

The WTO's First Antitrust Case - Mexican Telecom: A Sleeping Victory for Trade and Competition

A World Trade Organization (WTO) dispute panel has decided theWTO’s first antitrust case. It resolved the matter infavour of the United States’ claim that Mexico had anticompetitivelyfacilitated exploitative prices and a cartel that raised theprice of terminating cross-border telephone calls in Mexicoand thereby harmed trade and competition. The case is Mexico– Measures Affecting Telecommunications Services (April2004) (‘the Mexican telecom case’). This essay arguesthat if the WTO’s antitrust clause was in fact triggered(which is a point of contention), Mexico’s conduct violatedits obligations. Furthermore, it argues that the GATS antitrustobligation in the telecommunications sector should be acknowledgedas occupying an important place at the intersection of trade,competition and industrial policies. Antitrust law is the otherside of the coin of liberal trade law. Antitrust law opens marketsby prohibiting private and other commercial restraints, whiletrade law opens markets by prohibiting public restraints. BeforeMexican telecom, no legal discipline was regarded as copiousor flexible enough to address combined public and private restraints.In particular, nations were allowed free rein to privilege nationalchampions that harmed competition in and out of their country,imposing costs on outsiders as well as on their own people.A positive reading of the antitrust clause helps to fill thegap.     

Prestige,Networks, and Social Mobility Among Lawyers: A View from California of Woeste's book,Henry Ford's War on Jews and the Legal Battle Against Hate Speech

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA.: Stanford University Press. Pp. 424. $48.95 cloth; $24.95 paper; $24.95 e‐book. In Henry Ford's War on Jews and the Legal Battle Against Hate Speech (2012), Victoria Saker Woeste raises provocative questions for students of the legal profession. Aaron Sapiro, an Eastern European, Jewish immigrant to California, rose to international prominence through his corporate specialization in agricultural cooperatives. Our understanding of the social structure of the legal profession, based on studies of the East and Midwest, shows that for most of the twentieth century, the structure of the bar was highly stratified around markers of ethno‐religious status. The trajectory of Sapiro's career does not fit this story. A focus on the West generally or California in particular complicates our understanding of how factors such as ethno‐religious background, social networks, career mobility, and prestige interact.     

Reflections on Henry Ford's War on Jews

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA: Stanford University Press. This essay provides an introduction to and overview of four essays that emerged from an “Author Meets Readers” session at the 2013 Annual Meeting of the Law and Society Association, considering Victoria Saker Woeste's book, Henry Ford's War on Jews and the Legal Battle Against Hate Speech. Three essays are authored by panelists (Aviam Soifer, Carroll Seron, and Clyde Spillenger) and a final essay is provided by Woeste. The essays explore larger themes suggested by the book, including what the involvement of Louis Marshall reveals about the rise and role of spokespeople purporting to represent Jewish interests; whether the arc of Aaron Sapiro's education and career challenges our understandings of the development of the legal profession in the late nineteenth and early twentieth centuries; and how the law of group libel intersected with government attempts to regulate hate speech during the twentieth century. Woeste ends the symposium with a reconsideration of Henry Ford's War and how it fits into the new civil rights history.     

Judicial Monitoring of Compliance: Introducing 'Problem Solving' Approaches to Domestic Violence Courts in England and Wales

This article examines the development of specialist domesticviolence courts. It overviews the features of ‘problemsolving’ courts and considers the extent to which thefledgling domestic violence courts in England and Wales areadopting the problem solving approaches found in some specialistcourts in the United States of America. Whilst noting some ofthe successes of the first seven domestic violence courts inEngland and Wales, the article concludes that more effectiveinterventions in domestic violence cases can be achieved throughgreater involvement of the judiciary in ongoing monitoring ofthe defendant’s compliance with court ordered perpetratorprogrammes.