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International & Comparative Law Review

Vol.34 Electronic Supplement 2011

Noriega v. Pastrana: The Supreme Court Takes a Step Back from the Table

The Military Commissions Act of 2006 expressly removed the Geneva Conventions as a source of rights for any person litigating against the United States or its agents. For General Manuel Noriega, the Geneva Conventions provided him with his sole opportunity for relief from what is, in his opinion, a grave injustice; without it, he has no hope of returning to his home country any time in the near future. Thus, Noriega petitioned the Supreme Court and asked the Court to find this restriction to be an unconstitutional suspension of the writ of habeas corpus. To perform this analysis, the Supreme Court would have had to delve into territory previously unexplored and narrowly avoided. Ultimately, the Court declined to accept certiorari, over a strong objection by Justice Thomas, joined by Justice Scalia. This Comment argues that the Supreme Court has avoided the issue long enough, and should have settled the matter once and for all by accepting General Noriega’s challenge.

Jason E. Armiger

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Pro-Choice: Achieving the Goals of the International Criminal Court Through the Prosecutor's Proprio Motu Power

This Comment examines the proprio motu power of the International Criminal Court’s Prosecutor through the lens of a recent decision to permit the court’s Prosecutor to investigate potential crimes against humanity in the Republic of Kenya. After a deeply contested election in 2007, violence exploded across the country leaving many civilians hurt or dead. The Prosecutor asked the court to permit him to open an investigation, a first in the ICC’s history, where most investigations are initiated through a request from either a State Party or the Security Council. While the use of the proprio motu initiative is deeply controversial, this Comment proposes that this prosecutorial power is essential in achieving the goals of the ICC: to end impunity for crimes against humanity.

Jonathan Jeung-Meng Fork

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Hooded: Binyam Mohamed and the State Secrets Privilege

The use of the state secrets doctrine in cases involving enemy combatants ought to be subjected to further review in order to ensure that it is not utilized in a way that protects the U.S. government from allegations of wrongdoing. R. (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs sheds light on the problems associated with the doctrine’s use in its analysis of the validity of disclosure of evidence pertaining to an individual detained as an enemy combatant. The reasoning by the English Court of Appeal suggests that there was no real threat to either U.S. or English intelligence or military secrets in disclosing the relevant documents, and that the doctrine was employed in error. This Comment suggests that the use of the state secrets doctrine and the control principle in this case serves to deny democratic accountability by violating an individual’s right of access to the court.

Laura K. Mehalko

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Samantar v. Yousuf: A False Summit in American Human Rights Civil Litigation

The quest to bring human rights abusers to justice is a challenge wrought with legal obstacles. One such obstacle is the common law principle of sovereign immunity, under which a foreign nation cannot be sued in a court outside of its own jurisdiction. In 1976, Congress sought to eliminate inconsistent application of such immunity by passing the Foreign Sovereign Immunities Act (FSIA). The inconsistency remained, however, as some circuit courts interpreted the FSIA immunity as applying to both foreign government officials, as well as foreign states. The U.S. Supreme Court settled the issue in 2010 in Samantar v. Yousuf, a civil suit against a former Somali general charged with torture, when it held that FSIA immunity does not apply to foreign officials sued in their individual capacity. While some lauded the decision as a landmark in human rights litigation, such optimism appears misplaced. Because of the various avenues of common law immunity still available to foreign officials, the possibility that the precedent of Samantar will prove to be a valuable tool in bringing justice to abuse victims remains highly remote.

Timothy E. Donahue

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Unreasonable Reasonableness: Standardizing Procedural Norms of the ICC Through Al Bashir

 On March 4, 2009, the International Criminal Court issued its first ever arrest warrant against a sitting head of state, Omar Hassan Ahmad Al Bashir. The warrant, issued in relation to the situation in the Darfur region of Sudan, was notable both for its inclusion of charges of war crimes and crimes against humanity, and for its exclusion of charges of genocide. On appeal, the decision not to include the genocide charges in the warrant was unanimously overruled for an error in law regarding the standard of proof utilized to determine the sufficiency of mens rea. The International Criminal Court is the only permanent international adjudicatory body tasked with the criminal adjudication of individuals accused of the most serious crimes of international concern. In overruling this decision, therefore, the International Criminal Court not only standardized the evidentiary thresholds for the prosecution of genocide charges in its Chambers, but at the same time distinguished itself among the growing field of international adjudicatory bodies.

David F. Crowley-Buck

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"Inapposite" and "Amorphous": The D.C. Circuit's Rejection of International Law

Since the U.S. invasion of Afghanistan in 2002, the court system has been flooded with habeas corpus petitions from prisoners held at the U.S. naval detention facility in Guantanamo Bay, Cuba. These petitioners contest the President’s authority to detain them and often rely on principles of law governing international war to support their arguments. A recent D.C. Circuit Court of Appeals decision rejected international law as an interpretive tool for U.S. courts, raising questions about the role of international law in the U.S. legal system. This Comment argues that international law, while not binding on the courts, provides useful guidance for interpretation.

Katherine Riley

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International Environmental Disputes and the Need for Court-Commissioned Independent Experts

In complex environmental disputes the International Court of Justice should utilize its investigatory powers to identify long-term environmental impacts before reaching legal conclusions. Pulp Mills on the River Uruguay highlights the ICJ’s current reluctance to utilize its investigatory powers—instead, the court relies on the parties’ contentious scientific submissions and fails to verify all potential environmental harms. In so doing, the court fails to conform to the international principle of sustainable development. This Comment identifies the Rules of Court and past cases that demonstrate that justices have the power to question expert witnesses and request independent investigation when evaluating questionable or incomplete scientific evidence. Additionally, this Comment argues that such ICJ-ordered independent investigations will bolster growing international support for the principle of sustainable development.

Michael J. McDermott

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Meeting its Immunity Obligations: The United Nations and Employee Sexual Harassment Claims

The United Nations and its officials have long received immunity in matters related to the organization’s functions, leaving employees with only one forum in which to seek redress: the U.N.’s own internal justice system. Unfortunately, this forum has not properly addressed employee allegations of sexual harassment. Although recognition of the internal justice system’s failings led the U.N. to institute significant reforms in 2009, this Comment argues that further reforms are needed to ensure employee claims are properly handled in the future.

Megan Felter

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