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Abstract:
The international community has long debated its role in redressing grave atrocities like war crimes and crimes against humanity. This Article suggests that this debate has focused too much on trials in international and hybrid courts as the primary conduit for international contributions to justice in post-conflict states. It proposes that the international community should look instead to national courts as the primary venue for such trials and to transnational networks as an effective mechanism for international involvement. Key characteristics of this model include: (1) reliance on transnational networks to convey international criminal law and international resources into national settings; (2) hybrid international-national processes in which international actors play a supporting, rather than a controlling, role; and (3) integration of international support for atrocity trials into broader efforts to rebuild national judicial systems.

Crimes against humanity, war crimes, Hybrid courts, International criminal courts, National courts, Legal pluralism, Policy-oriented jurisprudence, Post-conflict justice, Transitional justice, Transnational legal process, Transnational judicial dialogue, Transnational networks

Abstract:
Even as American attention is focused on Iraq's struggle to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society - Kosovo - has begun negotiations to resolve the question of its political independence. Kosovo's efforts to establish multi-ethnic rule of law in the context of persistent ethnic divisions offer lessons in transitional justice and in managing legal pluralism for Iraq and other states.

In Kosovo today, two parallel judicial systems each claim sole jurisdiction over the province. One system was established by the United Nations administration in Kosovo, while the other system is maintained by the government of Serbia, the remnants of the courts that existed before Serbia was forced out of Kosovo by NATO bombing in 1999. The parallel courts present a transitional justice issue that is as crucial to rebuilding Kosovo's post-conflict society as convening a truth commission or conducting criminal trials. On one level, the existence of the parallel courts is a manifestation of the ongoing political dispute over sovereignty. The parallel courts also represent an extreme example of the legal pluralism that has developed in other divided societies. Finally, the lack of any recognition of judgments between these systems has created legal chaos for the people who depend on those judgments. Conflicting judgments have been issued in civil cases, and criminal defendants are subject to prosecution and punishment in both systems.

This article addresses the problem of the mutual non-recognition of judgments between Kosovo's parallel systems in light of existing national and international models for judgment recognition and enforcement. Each of these models strives to strike a balance between two competing values: (1) certainty in the finality and consistency of legal judgments and (2) ensuring those judgments' essential fairness. Using these values as a guide, I assess whether and how the existing models might be adapted to Kosovo's context, concluding that the proper balance between legal certainty and fairness will permit categorical recognition of most parallel civil judgments, but will require case by case, discretionary review of criminal judgments. Finally, from this analysis, I develop a set of factors for consideration by other states.

post-conflict, post-conflict justice, transitional justice, rule of law, legal pluralism, kosovo, recognition, enforcement, recognition of judgments, conflict of laws, foreign judgments, ethnic, religious, arbitration, kosovo

Abstract:
Administrative law has been transformed after 9/11, much to its detriment. Since then, the government has mobilized almost every part of the civil bureaucracy to fight terrorism, including agencies that have no obvious expertise in that task. The vast majority of these bureaucratic initiatives suffer from predictable, persistent, and probably intractable problems - problems that contemporary legal scholars tend to ignore, even though they are central to the work of the writers who created and framed the discipline of administrative law.

We analyze these problems through a survey of four administrative initiatives that exemplify the project of sending bureaucrats to war. The initiatives - two involving terrorism financing, one involving driver licensing, and one involving the adjudication of asylum claims - grow out of the two statutes perhaps most associated with the war on terrorism, the USA PATRIOT Act of 2001 and the REAL ID Act of 2005. In each of our case studies, the civil administrative schemes used to fight terrorism suffer from the incongruity of fitting civil rules into an anti-civil project, the difficulties of delegating wide discretion without adequate supervision, and the problem of using inexpert civil regulators to serve complex law enforcement ends. We conclude that anti-terrorism should rarely be the principal justification for a new administrative initiative, but offer some recommendations as to when it might make sense to re-purpose civil officials as anti-terrorism fighters.

national security, terrorism, war on terror, administrative law, administrative agencies, USA PATRIOT Act, REAL ID Act, sanctions, banking, IEEPA, OFAC, Treasury, Homeland Security, immigration, asylum, DMV, drivers license, FinCEN, money laundering

Abstract:
The field of post-conflict justice is characterized in no small part by international interventions into post-conflict settings. International interveners invest substantial resources toward the goals of post-conflict justice, including creating legal accountability for atrocities and rebuilding local and national justice systems that respect human rights and rule of law. The aims of post-conflict justice and the mechanisms by which the international community can contribute to post-conflict legal institutions and processes have been and continue to be studied intensively.

But while the institutions, processes, and goals of post-conflict justice have been carefully scrutinized, another aspect of international interventions into post-conflict justice has been evaluated less thoroughly: the people who carry out the interventions. Who are the international lawyers, human rights officers, and others who do this crucial work on behalf of interveners, and what is their role in shaping post-conflict accountability and legal reform?

Looking behind processes and institutions to the people involved is particularly critical in the post-conflict justice context, because there exists a tight-knit network of repeat players (the "post-conflict justice junkies") who move quickly and repeatedly from one international criminal tribunal or other post-conflict justice institution to the next ("tribunal-hopping"). In this symposium article, I explore the implications of the existence of this network and its practice of tribunal-hopping for the effectiveness of international involvement in post-conflict justice. This article sets out my initial observations and analysis in preparation for an empirical study.

post-conflict justice, transitional justice, rule of law, international criminal court, special court for sierra leone, international criminal tribunal, kosovo, cambodia, east timor, rwanda, democratic republic of congo, crimes against humanity, genocide, war crimes, united nations, NGO

Abstract:
Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. Ethnically divided states have struggled to build safeguards against such disputes into their political and legal systems by establishing federal political structures, designing elections to encourage participation, and entering complex power-sharing arrangements, but such measures cannot be expected to prevent all conflict. Human rights and minority rights guarantees likewise have proven unable to accommodate all relevant groups and interests. Accordingly, multi-ethnic states facing persistent ethnic conflicts need to develop effective dispute resolution systems for resolving those conflicts as they arise. This presents an important question: what kinds of processes and institutions might enable ethnic groups to resolve their conflicts with each other and the state? This Article explores that question, reviewing the interdisciplinary literature on ethnic conflicts, the legal literature on legal process and conflict resolution, and a case study of ethnic conflicts and conflict resolution in Ethiopia. At crucial moments in the development of an ethnic conflict, legal processes such as mediation, arbitration or constitutional interpretation might play a role in resolving the dispute. But ethnic conflict resolution institutions and processes must be carefully designed to take account of the variety, complexity and dynamics of ethnic conflicts, and to address the substantial number of ethnic groups and interests that diverge from the humna rights and minority rights models. Ultimately, the Ethiopian example calls on us to consider whether and how legal processes might be able to ameliorate the threat posed by ethnic conflict.

ethnic conflict, legal process, ethnic, minority, indigenous, human rights, minority rights, constitution, constitutional interpretation, mediation, arbitration, conflict resolution, ethiopia