Search: Affective Justice: Book Symposium: A Response
26 Jun Justice Breyer Rejects Pragmatic Comparativism in Heller
No surprise, the Supreme Court in the Second Amendment case of D.C. v. Heller refrains from any discussion of contemporary foreign or international laws or practices. The Court, per Justice Scalia, does discuss historical comparativism at some length (pp. 19-22), and Justice Stevens in dissent challenges this historical reading (pp. 27-31). But the really interesting part of Heller regarding comparativism comes from Justice Breyer’s dissent. He examines one amicus brief‘s pragmatic arguments that look to comparative experiences to suggest tighter gun control laws lead to more murders. (See my post...04 Nov Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court
with broad policy discretion to approve or disapprove domestic transitional justice policies without the assistance of meaningful legal standards, then justifying the ICC becomes a more difficult proposition. My Article takes up this problem through a focused analysis of the ICC’s response to the Ugandan peace process. My three principal claims are as follows: first, the Rome Statute does not, in fact, provide meaningful guidance to the Court as it navigates the particular dilemmas of transitional justice in Uganda. Second, the development of ex ante guidelines to cabin prosecutorial discretion-a...
09 May Why Does the United States Continue to Oppose International Courts?
pursuit of criminal responsibility and accountability. This is particularly instrumental in conflict-torn societies, whose rebuilding and stabilization efforts rest on political reconciliation through an apolitical execution of justice. These lofty ambitions vested in the ICC are the natural extension of the liberal notion of justice, which the United States’ own eminently rich constitutional tradition has historically upheld. Yet, the ICC’s limited jurisdiction presents an enormous challenge to international justice and is typically delimited by: (i) States accession to treaties; (ii) the UN Security Council’s political alignments, configurations, and the power...18 Jun Guest Post: Exploring Legal Rationales for South Africa’s Failure to Arrest al-Bashir
arena would be to succumb to self-subversion, or worse, to surrender to the blackmail of perfection. It is better to bring some human rights abusers to justice than none at all: the best should not be the enemy of the good." The problem, of course, is that the belief that international criminal justice can make incremental headway in terms of reducing its selectivity is based on an article of faith, a faith which the history of international criminal justice to date would suggest is misplaced. Nonetheless, I imagine most would...27 Jun An African Backlash Against International Criminal Justice?
example, is facing prosecution through the African Union, a move which has had enthusiastic support from African human-rights advocates. Obviously, these are very difficult issues. My co-author Jide Nzelibe and I have discussed the costs of international criminal justice in Africa at length here in this forthcoming article in the Washington University Law Review, but we both would agree that there are no easy answers here. Hopefully, what is emerging in Africa should remind supporters of international criminal justice that there are downsides as well as upsides to these processes....
12 Oct Reflecting with Practitioners: How is Latin America (Still and Again) Paving the Way for the Promotion of Accountability for Sexual Violence in Conflict Before National Courts?
In past decades, Latin American countries witnessed violent conflict and serious human rights abuses at the hands of state and non-state actors. In these contexts, conflict-related sexual violence was widespread, perpetrated in order to advance military goals and as a tactic of repression against political opponents and communities. But as the region has grappled with the past through efforts toward justice and accountability, there have been positive legal developments that warrant attention and should inform policy, judicial, and programmatic responses elsewhere. Taking stock of these developments, four leading experts––Daniela Kravetz,...08 Feb Why I Disagree with Marty Lederman About Prosecuting Waterboarders
...for me to tell anybody who relied, justifiably, on a Justice Department opinion that not only may they no longer rely on that Justice Department opinion, but that they will now be subject to criminal investigation for having done so. That would put in question not only that opinion, but also any other opinion from the Justice Department. Essentially, it would tell people: “You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when, as and if the tenure of...
19 Jul Options for a Peace Settlement for Ukraine: Option Paper XI – Reconciliation
...and perpetuate a conflict-oriented cultural and historical narrative. However, such provisions can be implemented effectively only if the parties are willing to comply in good faith. 3. Justice processes A peace agreement could also provide for transitional justice processes, which are meant to promote reconciliation through pursuit of truth and accountability for the conflict and its harms. Transitional justice institutions can take many forms and serve many purposes, and this paper will not fully address this issue but will examine it only through the lens of reconciliation. This section briefly...
15 Mar Why Creating a Special Tribunal for Aggression Against Ukraine is the Best Available Option: A Reply to Kevin Jon Heller and Other Critics
...current events, especially when compared to the amount currently being spent to arm Ukraine and to put financial pressure on Russia, then something about our priorities is very wrong indeed. The principal criticism of the ad hoc proposal is that it would represent an egregious example of selective justice, which would undermine the international criminal justice project. This argument has several variations: that past crimes of aggression have gone unpunished; that in the future others will remain beyond the reach of the law; that it is unnecessary to establish a...
30 Jun The Early Stages of ICC Proceedings: Why the Court Must Ensure Access to Justice for Victims and Suspects (Part I: Victims and ICC Investigations: Rhetoric v. Reality)
evidence, and selects crimes, suspects, and charges. This is the first in a two-part post which considers the Court’s early stages of proceedings, first from the perspective of victims, and then from the perspective of defendants. We ask whether current approaches to the oversight of the ICC’s early stages are fit for purpose: both in terms of living up to rhetoric about victim-centred justice, and for safeguarding fundamental rights held by its defendants. Our analysis concludes that without clearer regulations, procedural safeguards, and meaningful access to justice, the Court risks...