In association with the International Commission of Jurists

Recent Posts

27 Jan

[Stuart Ford is an Assistant Professor at The John Marshall Law School.] It is common to see people criticize international tribunals as too slow, too expensive, and inefficient.  Professor Whiting even argues this is now the consensus position among “policymakers, practitioners, and commentators (both academic and popular).”  But are these criticisms accurate?  At least with respect to the International Criminal Tribunal for the former Yugoslavia (ICTY), I believe the answer is no. Most of those who have criticized the ICTY are implicitly comparing the ICTY to trials in domestic courts.  And indeed, ICTY trials take much longer than the average domestic criminal proceeding.  For example, in 2011 nearly 70% of criminal trials in federal courts in the United States took one day or less to try and there were only 37 trials that lasted more than 20 days.  See here at Table T-2.  In comparison, the average ICTY trial has lasted 176 days.  So, it is true that trials in the U.S. are much quicker than trials at the ICTY, but it is also true that ICTY trials are vastly more complex than the average domestic trial, and we generally expect more complex trials to be more expensive.  As a result, it is misleading to compare the cost and length of the ICTY’s trials to those in other courts without first accounting for the complexity of those trials. Consequently, I propose a method for measuring trial complexity based on the number of trial days, trial exhibits and trial witnesses needed to complete a trial.  The figure below shows the relative complexity of trials at the ICTY and in the U.S.  As you can see, the average domestic trial barely registers on the chart, and even the Lucchese trial, one of the most complex trials ever conducted in the U.S., is only about half as complex as the ICTY’s most complex trial.  But measuring complexity is just the first step to understanding whether the ICTY is too slow and expensive.

Figure 1

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27 Jan

Your weekly selection of international law and international relations headlines from around the world: Africa The International Criminal Court  has scrapped a planned February 5 start date for the trial of Kenyan President Uhuru Kenyatta after prosecutors asked for more time to strengthen their case (ICC press release here). At least eight people were killed in mob violence in Central African Republic's capital, Bangui, as senior...

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26 Jan

The New York Times reports that  Ilham Tohti, a Uighur economics professor, has been arrested by Chinese authorities for separatism and inciting ethnic hatred.  A number of his students are also seemingly being detained. Tohti is just one person and, perhaps unfortunately for him, his case is emblematic of larger regional tensions in China and Central Asia. The Uighurs are a Turkic-speaking ethnic group, about...

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26 Jan

Calls for Papers This serves as a reminder that the deadline for submissions for the 2014 Cambridge Journal of International and Comparative Law Conference is fast-approaching. The original deadline has been extended to 29 January 2014. Please also note that the keynote address will be given by Judge Kenneth Keith of the International Court of Justice. For more information, please click here (.pdf). Transnational Legal Theory publishes...

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25 Jan

We here at Opinio Juris were saddened to hear of the passing last week of Georgetown Professor Barry Carter.  Our condolences go out to his friends and family. Georgetown Dean William Treanor has a tribute to Barry here. For my part, I've used Barry's textbook (which he originally authored with Philip Trimble, then Curt Bradley, and now Allen Weiner) ever since...

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25 Jan

This week on Opinio Juris, Julian discussed the US' funding (along with the EU and the UK) of a team of investigators gathering war crimes evidence in Syria and why that effort would probably not lead to any prosecutions. Chris pointed out a trend with regard to in cyber(in)security with his post on zero-day exploits, noting that the "money in the market...

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24 Jan

I just completed a draft essay on Kiobel for the Notre Dame Law Review (the symposium will include luminaries such as A.J. Bellia, Doug Cassel, William Castro, Bradford Clark, Bill Dodge, Eugene Kontorovich, Thomas Lee, Michael Ramsey, Ralph Steinhardt, Beth Stephens, and Carlos M. Vázquez). To my surprise after careful reflection there remains an important question that I have not...

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23 Jan

[Adam N. Steinman is Professor of Law and Michael J. Zimmer Fellow at Seton Hall University School of Law. This contribution is cross-posted at Civil Procedure & Federal Courts Blog.] Last week the Supreme Court issued its decision in Daimler AG v. Bauman, a case covered earlier here and here and here. In many ways, the case resembles Kiobel v. Royal Dutch Petroleum, last Term's decision on the Alien Tort Statute (ATS). The Daimler plaintiffs had brought claims under the ATS against Daimler—a German company headquartered in Stuttgart—for human rights and other violations committed by Daimler's Argentinian subsidiary during the "dirty war" of the 1970s and 1980s. The Supreme Court's decision in Daimler, however, is all about personal jurisdiction, and it is not limited to the ATS context. The Ninth Circuit had held that Daimler was subject to general personal jurisdiction in California based on the activities of its American subsidiary, MBUSA. Because it involves general jurisdiction, Daimler is an important follow-up to the Court's 2011 decision in Goodyear Dunlop v. Brown. Writing for a unanimous Court in Goodyear, Justice Ginsburg explained that general jurisdiction over corporations is proper "when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." In Daimler, all nine Justices conclude that it would be unconstitutional for California to exercise general jurisdiction over Daimler. Justice Ginsburg again writes for the Court, although Justice Sotomayor writes a separate concurrence that disagrees with much of Justice Ginsburg's reasoning. Parts of the decision—and some of the areas of disagreement—are harder than usual to follow because the parties either conceded or forfeited a number of potentially important points during the course of the litigation [See p.15]. That said, the most significant parts of the Daimler decision address three issues:
(1) When can a subsidiary's activities in the forum state be attributed to the parent for purposes of general jurisdiction? (2) More generally, when is a corporation subject to general jurisdiction under the Goodyear standard? (3) What role (if any) do the so-called "reasonableness" factors play in the general jurisdiction context?
The majority opinion does not provide much affirmative guidance on the first question, although Justice Ginsburg rejects the Ninth Circuit's approach. The Ninth Circuit had attributed MBUSA's contacts to Daimler using an "agency theory," which "rested primarily" on the premise that "MBUSA's services were 'important' to Daimler, as gauged by Daimler's hypothetical readiness to perform those services itself if MBUSA did not exist." [p.17] Justice Ginsburg reasons that this view "stacks the deck, for it will always yield a pro-jurisdiction answer." [p.17]. Nor—on these facts—could attribution be based on Daimler's "control" over MBUSA. According to the Ninth Circuit,
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23 Jan

All Things Considered ran an interview this past Monday with Alex Fowler, the chief privacy officer of Mozilla (developer of the Firefox web browser), stemming from a blog post Fowler had written critiquing President Obama’s speech last week concerning NSA activities. When asked about the “most glaring reform needs” that were not addressed in the President’s speech, Fowler said: right now,...

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22 Jan

Jess Bravin has an interesting report out in Thursday's WSJ (subscrip. req'd)  detailing U.S., UK, and EU support (and funding) for a team of investigators to gather evidence of war crimes by Syrian government and military officials. For nearly two years, dozens of investigators funded by the U.S. and its allies have been infiltrating Syria to collect evidence of suspected war crimes, sometimes...

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22 Jan

Posting has been a bit light lately and will continue to be light for a while, because I am in the process of relocating to London. If you would like to contact me, please use my new SOAS email address: kh33@soas.ac.uk. I am not sure how long I will be able to get emails at my Melbourne address....

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