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Abstract:
This paper reviews in some depth the development in international human rights law of the right to legal assistance in both civil and criminal proceedings. The paper draws from international treaties and standards, as well as from the decisions of the international treaty bodies that interpret the treaties in question. The last section deals with special situations involving the right to legal assistance, including juvenile proceedings, the death penalty, military tribunals and times of national emergency.

NOTE: An updated version of this paper appears as Chapter 2, "Procedural Safeguards for the Defense in International Human Rights Law," in my co-edited book, Defense in International Criminal Proceedings: Cases, Materials and Commentary (Michael Bohlander, Roman Boed and Richard J. Wilson eds. 2006), Transnational Publishers.

legal assistance, assigned counsel, international human rights, criminal cases, civil cases

Abstract:
This paper was presented at a symposium on Fulfilling the Legacy: International Justice 60 Years After Nuremberg, sponsored by Amnesty International, and published by the Gonzaga Journal of International Law. The article critiques the detention of enemy combatants by U.S. military forces at Guantanamo Bay, Cuba, and the adoption of the Military Commissions Act of 2006. The article arises from the author's representation of Omar Khadr, a Canadian citizen and one of the youngest detainees held at the base. Omar was 15 years old when captured in Afghanistan. He turned 21 years old in September 2007, having spent his adolescence in virtual isolation in Camps 5 and 6 at Guantanamo.

Guantanamo, Military Commission, human rights, enemy combatant, criminal law, criminal procedure, Canada

Abstract:
This article summarizes the legal issues involved in the consideration by the Spanish Supreme Court of the appeal of the conviction by the Spanish Audiencia Nacional court of Adolfo Scilingo, an Argentine military officer, for crimes against humanity in Argentina. It discusses the legal analysis of the court and their reluctant acceptance of the notion of universal jurisdiction in Spain. The article also discusses the ongoing legal disputes in the long pre-trial saga of Miguel Angel Cavallo, another Argentine officer in Spanish custody whose trial is still pending, several years after his extradition from Mexico. Finally, the article discusses the ever-expanding scope of Spanish universal jurisdiction to reach crimes alleged to have been committed in Guatemala, Tibet, China, Western Sahara and on the high seas between Africa and Spain, as well as recent statutory expansion of the universal jurisdiction statute in Spain.

Spain, Argentine, Dirty War, Crimes Against Humanity, Human Rights

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Abstract:

This paper summarizes human rights principles that underlie the right to legal assistance. It then sets out international sources for the right to legal assistance in criminal and civil cases, as well as international interpretations of the content of the right. It is helpful to read it together with an accompanying paper, "The Right to Legal Assistance in Civil and Criminal Cases in International Human Rights Law".

legal assistance, assigned counsel, international human rights, criminal procedure

Abstract:
This review essay critiques The Pinochet Effect, by Prof. Naomi Roht-Arriaza. Her text follows the complex and phenomenal ripples in international and domestic legal proceedings that follow directly and indirectly from the Pinochet litigation in the Spanish courts, particularly after the decision by the British courts to permit extradition of the former president of Chile to Spain from England to stand trial for crimes including torture, alleged to have been committed in Chile. The essay updates Prof. Roht-Arriza's splendid research while providing a different sense of the context in which the original prosecutions began than that which is offered by her.

Universal Jurisdiction, Spain, Audiencia Nacional, Pinochet, Argentina, Chile, comparative law, criminal law, criminal procedure, torture, crimes against humanity, genocide

Abstract:
This paper arose from a presentation at the McCoubrey Centre for International Law at Hull University in the United Kingdom, at a conference on "Law and Security, Post 9/11". The conference took place in February of 2005 and represents reflections on my personal experience in the representation of Omar Khadr, a Canadian citizen who was captured by U.S. and Northern Alliance forces near Khost, Afghanistan, in July, 2002. He was held at Bagram Air Force Base for several months, and transferred to Guantanamo Bay, where he has been held ever since. He was 15 years old at the time of his capture. The article discusses who was at Guantanamo as of the date of its writing, why the U.S. government's detention policy unfolded the way it did, who our client is, and what the ideal outcome of his case would be.

Guantanamo, Military Commission, human rights, enemy combatant, criminal law, criminal procedure, law of war, Canada

Abstract:
The 1998 arrest of Augusto Pinochet in London, based on the warrant of a Spanish court for crimes committed in Chile, was a landmark in the movement for international justice and accountability. The story behind the Spanish prosecutions, both legal and political, is little-known outside of a small circle of lawyers and activists who initially mounted the case in the Spanish Audiencia Nacional. This paper tells that story. Parallel actions against the military leadership of Chile and Argentina began in the Spanish courts in 1996 with the careful marshalling of evidence to show the pattern of torture and disappearances by the governments of both countries. This article documents the procedural history and the evidence offered in both the Chilean and Argentine prosecutions, and gives the context of Spanish law and procedure on which the prosecutions were based.

Universal Jurisdiction, Spain, Audiencia Nacional, Pinochet, Argentina, Chile, comparative law, criminal law, criminal procedure, torture, crimes against humanity, genocide

Abstract:
In February of 2009, the Eminent Jurists' Panel of the International Commission of Jurists, based in Geneva, Switzerland, issued an important report on terrorism, counter-terrorism and human rights, entitled "Assessing Damage, Urging Action." The document here is my statement to the Panel on the issues involved in the detention and trial of children involved in armed conflict (not all are child soldiers) at Guantanamo Bay, Cuba. The Panel's final report does not include any specific reference to that issue, so I am posting the statement here.

Guantanamo Bay, Guantanamo, Cuba, Military Commission, Terrorism, Enemy Combatant, Trial, Juveniles, detainee, war crime

Abstract:
Clinical legal education is one of the most exciting and well-accepted innovations in legal education during the 20th Century. This article defines what the author means by clinical legal education and discusses its world-wide dissemination, primarily through foundations and government funding: the Ford Foundation, the Open Society programs of George Soros, the U.S. Agency for International Development, the American Bar Association's CEELI program, the U.N. High Commissioner for Refugees, and some international financial institutions such as the World Bank. The article briefly examines 'best practices' in the globalization of clinics in Poland, South Africa and Chile.

Clinical Legal Education, legal education, globalization, Ford Foundation, Open Society, George Soros, American Bar Association, CEELI, Poland, Chile, South Africa

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This short article gives an overview of recent developments in recognition of the right to effective defense in international criminal proceedings, with particular attention to new structures. The systems for provision of defense lawyers are examined in a case study of the Charles Taylor trial by the Special Court for Sierra Leone, sitting in The Hague, as well as the Bosnian War Crimes Chamber and the Special Tribunal for Lebanon.

defense lawyers, international criminal proceedings, Charles taylor, effective defense, Bosnian War Crimes Chamber, Special Tribunal for Lebanon

Abstract:
This is a brief summary of the events in Spain leading up to the trial of Argentine military officers Adolfo Scilingo and Miguel Angel Cavallo for their role in international crimes committed during Argentina's Dirty War (1976-1983). Both were in custody in Spain. Both were tried using the same basis in universal jurisdiction that had been invoked to attempt to try Augusto Pinochet, military leader of Chile from 1973-1989. Scilingo had come to Spain voluntarily, while Cavallo was extradited, after protracted legal proceedings, from Mexico, where he lived under an assumed name and identity. This article summarizes some of the factual background of their crimes and provides a sketch of the trial process in the Spanish Audiencia Nacional, the national court that was scheduled to try these men.

Spain, Argentina, International Crimes, Dirty War, Universal Jurisdiction

Abstract:
Clinical legal education has achieved widespread acceptance throughout the world, growing by leaps and bounds during recent decades in countries like Russia and China, and expanding rapidly in other areas of Eastern Europe, Latin America and Africa. It is, arguably, the most significant innovation in legal education since the “invention” of the Socratic-case method in the United States, at the turn of the 20th Century. There is, however, one geographic area where the philosophy and methodology of clinical legal education has been resisted. That area is Continental Western Europe (the UK has something of a tradition of clinics, though stunted). This article examines the reasons for resistance to clinical theory and practice as part of law school curricula in Western European law schools. Some of that resistance lies in history and structure of legal education and the legal profession, particularly the organization and power of the law school professoriate. The article further suggests that the Bologna process of European integration in all fields of education may provide opportunities for innovation in clinics through law school curricular reform. The doctrinal area of international human rights law and practice may provide further inroads into that resistance.

Legal Education, Curricular reform, Clinical legal education

Abstract:
Clinical legal education has achieved widespread acceptance throughout the world, growing by leaps and bounds during recent decades in countries like Russia and China, and expanding rapidly in other areas of Eastern Europe, Latin America and Africa. It is, arguably, the most significant innovation in legal education since the “invention” of the Socratic-case method in the United States, at the turn of the 20th Century. There is, however, one geographic area where the philosophy and methodology of clinical legal education has been resisted. That area is Continental Western Europe (the UK has some clinics, though not widespread). This article examines the reasons for resistance to clinical theory and practice as part of law school curricula in Western European law schools. Some of that resistance lies in history and structure of legal education and the legal profession, particularly the organization and power of the law school professoriate. The article further suggests that the Bologna process of European integration in all fields of education may provide opportunities for innovation in clinics through law school curricular reform. The doctrinal area of international human rights law and practice may provide further inroads into that resistance.

legal education, clinical education, western europe

Abstract:
From June of 2004, through June of 2007, I represented Omar Khadr, a detainee at Guantanamo Bay, Cuba. Omar, a Canadian citizen, was 15 years old when captured, and he was - and is - one of the very few detainees facing trial by a military commission. President Obama's decision to close Guantanamo and to put the commission trials on hold leaves us all with questions as to what will happen. This reflection was written in 2007, just about when I stopped representing Omar. The lower federal courts have not, in my view, used international law in any meaningful way in resolving legal claims by the detainees, whether having to do with torture, conditions of confinement or arguments for release, despite the existence of scores of relevant international norms. I continue to represent two other detainees, one from Libya and one from Azerbaijan. Neither can go home, and, despite the closure order, we continue to fight for their release in both the courts and through diplomatic channels.

Guantanamo Bay, Enemy Combatant, Military Commission, Detainee, Terrorism, Juvenile

Abstract:
This article examines the history and development of three law school clinical programs in Chile, from the time of their founding through 2000. The three programs - the University of Chile Law School, the Catholic University of Chile Law School and the Diego Portales Law School - are also studied in the broader legal and political cultures of Chile and the structure and profile of university education there. The structures and operation of the three clinics are examined in significant detail in part to provide a model for other clinical programs in the global South. Some broader questions about clinical legal education in countries in political transition are also addressed, such as whether clinics there meet legitimate educational objectives, and whether clinic students are trained for what lawyers do in Chile. The article concludes that adult experiential learning is culturally transcendent. Finally, it explores the tensions in the justice mission of clinics, particularly during times of great political repression and later transition to democracy.

clinical legal education, legal education, Chile, experiential learning, apprenticeships, legal aid, public interest law, developing countries, transitional democracies, dictatorships

Abstract:
This article takes a broad look at the use of assigned counsel in both international and domestic venues for the trial of international crimes. It suggests that independent and adequately resourced structures for the delivery of defense services are essential to the operation of such systems. It examines the work of the ICTY and the ICTR, the planned organization of defense services in the International Criminal Court, as well as the hybrid courts in Sierra Leone, Kosovo, East Timor and Cambodia. It also looks at the domestic trial of international crimes in Rwanda and Ethiopia. After examination of the characteristics of these offices, several core concepts for an independent defense office are examined and critiqued.

international criminal courts, ICTY, ICTR, Kosovo, East Timor, Cambodia, Sierra Leone, Rwanda, Ethiopia, criminal defense, assigned counsel, public defense, defense services, criminal procedure

Abstract:
Latin America is said to be undergoing a revolution in criminal procedure, a radical movement from the historical inquisitorial system of the region towards a more accusatorial system with common law or "American" characteristics. This article explores the extent to which the Inter-American system for the protection of human rights, through the jurisprudence of its Commission and Court, has contributed to that revolution or held it in check. The normative content of the international instruments of the system reflect no particular procedural tradition, and do not speak at all to some of the most contested issues in procedural debates, such as victims' rights or explicit prohibitions on police misconduct. The application of those norms in the cases and reports of the Commission and Court demonstrate that human rights plays a dual role, both holding states back from over-aggressive law enforcement and pushing it forward when systems creak with age or outmoded ideas.

Latin America, International Law, Inter-American System for the Protection of Human Rights, Human Rights, Americas

Abstract:
This short piece reviews Brant Goldstein's Storming the Court: How a Band of Yale Law Students Sued the President - and Won. At the same time, it compares the work methods and styles of the Yale clinical program with the work of our students at American University 's Washington College of Law, also in Guantanamo matters. In the "first" Guantanamo, involving the Haitian boat-lift, our Human Rights Law Clinic represented a single client, a woman who was evacuated to Walter Reed Hospital in Washington with her infant son, who was deathly ill. The American and Yale law school clinical programs continue to work with cases arising from the "second" Guantanamo, the detention of so-called enemy combatants in the war on terror.

Guantanamo Bay, Enemy Combatant, Military Commission, Detainees, Human Rights Clinics