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Abstract:
This Essay examines the contentions of U.S. government lawyers that the U.S. should abandon the provisions of the Geneva Conventions in favor of a de novo legal regime that would govern the capture, detention, treatment and trial of enemy prisoners taken in the Global War on Terrorism (GWOT), whether captured in the U.S. or abroad. In particular, it examines the question of extraordinary rendition - transferring detainees abroad for detention and interrogation either from the United States, on behalf of the United States, or from occupied Iraq. Although the numbers of prisoners rendered abroad has been relatively few, the covert nature of the operations, and the allegations of prisoner mistreatment raise very troubling questions about the wisdom and the legality of the U.S. rendition program. It concludes that extraordinary rendition is not permissible under existing, applicable and well-established norms of international law. Additionally, because renditions are carried out in secret, employ extralegal means, and often result in prisoner abuse, including cruel treatment, torture, and sometimes death - they appear to be emblematic of the larger human rights concerns that trouble many of the detention and interrogation practices employed by the U.S. government since September 11, 2001. Of particular concern is that rather than explicitly amending the law or articulating clear, narrowly tailored justifications for derogating from the law, derogations that would presumably be temporary and specific, such as the derogations permitted under international human rights treaties, government officials have sought to redefine legal norms in an exceptional burst of "executive activism" in ways that are neither particularly plausible or persuasive. This use of legal subterfuge is deeply troubling in and of itself, as well as in regards to it potentially harmful consequences. Finally, the Essay questions the efficacy, as well as the wisdom, of these extralegal policies.

international law, war on terror, extraordinary rendition, Geneva Conventions, International Humanitarian Law, Iraq, Guantanamo Bay, torture

Abstract:
This article examines recent state and international practice regarding amnesties for jus cogens crimes, particularly cases from Latin America as well as from international courts and tribunals, and explores the transnational legal dialogue between courts, and to a lesser degree, legislatures, that has led to international norm creation in this area, strengthening the prohibition against amnesties considerably. At the same time, constraints upon the exercise of universal jurisdiction, whether imposed by legislatures, articulated in judicial opinions, or created by international treaty, have provided a political check to the otherwise unbounded exercise of universal jurisdiction by states and the exercise of universal international jurisdiction by the international community taken as a whole. Indeed, the article suggests that the question of amnesties for war crimes, crimes against humanity and genocide raises profound questions about the nature and form of international criminal law - its substantive content, temporal dimensions, and constitutional status. The article challenges the conventional wisdom that "swapping justice for peace," is morally and practically acceptable. Instead, what longitudinal studies we have suggest that amnesty deals typically foster a culture of impunity in which violence becomes the norm, rather than the exception. The article considers amnesties from a jurisdictional approach, in which domestic, transnational and international amnesties are considered in both horizontal and vertical perspective. Finally, while noting that international criminal justice is not a "one size fits all" proposition, and that carefully tailored and culturally sensitive approaches suitable to individual cases is required, the article underscores the importance of the emerging normative and legal structure apparent in international criminal law, as well as the need for imperial powers such as the United States to submit themselves to the rule of law in order to enhance the legitimacy and effectiveness of the rules.

international criminal law, war crimes, crimes against humanity, genocide, amnesty, universal jurisdiction, international law, General Pinochet, Special Court for Sierra Leone, international court of justice, International Criminal Court, transnational legal process, imperialism; jus cogens

Abstract:
In Terrorism and the Rule of Law, I argue that a "rule of law" approach to the use of force is not only required by the United Nations Charter framework, but is the strategy most likely to be successful in the long term in protecting the national security of the United States. Specifically, rather than attempting a post-hoc rationalization of what the United States did after September 11, 2001, I suggest that what it could and should have done was to obtain a Security Council Resolution specifically authorizing the Afghan campaign. Such a Resolution would have been, in my view, not only attainable, but desirable. I conclude that the U.S. lost a tremendous opportunity to reinforce norms of international law that could now assist it in its struggle against international terrorism, and suggest that the current unilateralist tendencies of the government are generally destabilizing and potentially injurious to U.S. interests.

Abstract:
This article examines the U.S. practice of extraordinary rendition, a method of transferring detainees abroad for detention and interrogation either from the United States, on behalf of the United States, or from occupied Iraq. It concludes that rendition does not comply with either international human rights norms or the laws of war. The article examines the Nuremberg consensus arrived at following the Second World War, which provided for individual criminal responsibility for the commission of crimes under international law, and suggests that following the Nuremberg principles would be more effective than extralegal government activity. The article disputes the propositions of conservative government lawyers and their academic surrogates that Geneva law is now either quaint or obsolete; instead, it argues that the government has made what is, at best, a tenuous case that Geneva law and international human rights norms are inconvenient. If the administration is sincere in its claim that new international legal paradigms must be adopted in order to successfully combat the scourge of international terrorism, the appropriate vehicle to do so would be the establishment of new multilateral regimes that attract broad international support, not creative are interpretations of the law that are patently inconsistent with prior U.S. and international understandings.

international law, extraordinary rendition, ghost detainees, international human rights law, laws of war, military commissions act, torture, terrorism, al qaeda, September 11th, CIA black sites, international humanitarian law

Abstract:
This article examines current American attitudes about international law and international legal regimes. The positive and negative effects of globalization combined with the status of the United States as the world's only superpower have led to an increased global awareness of the stature of the United States in relation to the rest of the world. Americans are now constantly reminded of the importance of United States' participation in the global arena and how such participation directly affects their own interests. Paradoxically, American society has been relatively slow to think about globalization in legal terms. Within the last fifty years, international law and adjudication have undergone a radical transformation in both form and function, indicated by both the quantity and the quality of its law-making and practice. Yet, while international law and lawmaking have risen to unprecedented prominence outside U.S. borders, the United States has increasingly turned its back on the legitimizing and stabilizing role that international law may play in the global forum. This article definitively rejects persistent, outmoded notions questioning the legitimacy of international law and argues that the United States needs to take its commitment to the rule of law to the global stage, thereby playing to American strengths, enhancing American legitimacy and moral authority, and perpetuating the leadership role that the United States has historically exercised in the conduct of international affairs. Finally, this article debunks the notion of absolute sovereignty in the face of the ever-increasing benefits and deficits associated with globalization and global awareness. Recognizing that global problems require global solutions and that old structures tied to the decentralized Westphalian system are disintegrating, this article espouses an embracing of new systems, possibly hierarchal and centralized, to take their place.

Globalization, International Affairs, International Criminal Conduct (ICC), International Criminal Law, International Law, International Legal Regimes, Sovereignty, U.S. Foreign Policy

Abstract:
The United States is generally proud of its leadership role at the Nuremberg trials, making America's current rejection of the precedent they established seem paradoxical. This article approaches the "Nuremberg Paradox" by examining the French experience with the Nuremberg trials, and comparing France's adoption and internalization of international criminal law to that of its American cousin. The Article concludes that an important reason that the Nuremberg principles never took root in the United States stems from the different legal cultures and traditions of the two countries, particularly as regards the field of international criminal law. Examining the inter-war, post war and modern application of international criminal law in France and the United States, one is struck by the long-standing legal, philosophical and political differences exhibited by the two countries' approaches, and perhaps most starkly, the differences that appeared during the negotiation, adoption and ratification of the International Criminal Court Statute in 1998. Indeed, although the French Parliament was willing to ratify the ICC Statute and at the same time adopt a constitutional amendment abrogating the immunities and future amnesties granted to its own members and the President of the French Republic, U.S. opposition to the treaty has been consistent and, at times, overwhelming. In exploring these questions, the article surveys the interwar scholarship, the post-world war II prosecutions of Vichy collaborators and former Nazis in the Touvier, Barbie, and Papon cases, and France's more recent exercises of universal jurisdiction in the modern period of international criminal law. The implications of the French experience are analyzed in light of Harold Koh's transnational legal process theory, which captures the process by which France internalized the Nuremberg principles, but does not explain why that process took hold in France but not in the United States. The Article's central claim is that deeper historical, cultural and social factors that influenced French legal culture explain the differences between the two countries approaches. Indeed, an examination of the French precedent illuminates our understanding of how and why international criminal law remains only superficially and sporadically enforceable in the United States.

Int'l law, int'l crim law, comp law, human rgts, transnational legal process, Nuremberg trials, Nuremberg Paradox, France, US, Maurice Papon, Paul Touvier, Klaus Barbie, Javor, Munyesyaka, Kadhafi, Harold Koh, Crimes against humanity, Genocide, War crimes, Univ jurisdiction, ICC, Genocide Convention

Abstract:
The Rwandan genocide remains one of the most horrific atrocities of the Twentieth Century, resulting in the death of an estimated 500-800,000 human beings, massacred over a one hundred day period. In the fourteen years since the genocide, attempts at justice and reconciliation in Rwanda have involved a delicate interplay between national legal systems and the international legal order. This article examines three fora in which Rwandans have been tried for involvement in the genocide: the International Criminal Tribunal for Rwanda, Rwandan courts including Gacaca Tribunals, and French attempts to exercise universal jurisdiction. Using Rwanda as a case study, the article illustrates the issues, concerns, and difficulties that arise when multiple jurisdictions assert a right to exercise criminal jurisdiction over the perpetrators of serious atrocity crimes. Beginning with a discussion of the political context, this article considers what the competing narratives and litigation in various fora have meant for the project of international and transnational criminal justice. Cases involving the commission of atrocities pose unique challenges for the international legal order. As the normative structure of international criminal law has arguably been strengthened, political constraints increasingly come to the fore. As illustrated in Rwanda, universal jurisdiction or other bases of jurisdiction may remain necessary vehicles for justice and reconciliation, or, at the very least, they may serve as catalyst for change in Rwanda itself.

transjudicial dialogue, international criminal law, Rwandan genocide, universal jurisdiction, terrorism, France