Archives‎ > ‎

Volume II Issue 3 (July 2015)

1. Grand Corruption: Strategies for Preventing International Impunity by Esther Hava of Facultad de Derecho. Universidad de Cádiz, Spain, at 481–521;

Abstract. This article presents an analysis of the arguments for and against including the most serious cases of corruption within the jurisdiction of the International Criminal Court. The purpose is to suggest a realistic strategy for advancing towards the goal of preventing impunity in such cases. It therefore begins with a presentation of the problems posed by the concept of “Grand Corruption” itself, as well as its classification as a discrete crime. Next, continuing the theme of the ICC regulatory framework, there is analysis of the various classifications possible for the phenomenon of corruption within the workings of the Court. These are divided into actions already subject to prosecution, such as corruption of witnesses before the Court, and the actions that could be prosecuted without the need to amend the Rome Statute. In the final section, there is a brief exposition of the principle weaknesses in the theories proposing that the most serious cases of Grand Corruption be considered crimes against humanity as categorized in the Rome Statute. This is followed by a description of the strategy judged most appropriate for the purpose in mind, i.e. including the factors that characterize Grand Corruption among the essential criteria for confirming the jurisdiction of the ICC in respect of a specific situation or case, as well as for deciding the penalty to be imposed on those guilty of such crimes.

Keywords: International Criminal Law, International Procedural Law, Comparative Law, International Jurisdiction, Impunity.

2. Indigenous Rights before the Inter-American Court of Human Rights: a Call for a Pro Individual Interpretation by Valerio de Oliveira Mazzuoli of Federal University of Mato Grosso, Brazil, and University of Lisbon, Portugal Dilton Ribeiro of Queen’s University, Canada, at 522–54;

Abstract. In its traditional conception, international law regulates relations between sovereign states. This definition is challenged by current developments of international law, especially in the area of human rights. The human person is arguably a bearer of rights and duties under international law. However, recognizing this individual legal personality is not enough. International bodies and treaties need to acknowledge that individuals are subjects of international law within a pluralistic world. In other words, the law of nations must crystalize the idea that individuals are, with all their cultural differences, subjects of international law. The Inter-American Court of Human Rights recognizes this view through its pro homine principle, which informs that human rights instruments must seek the best possible protection for the human person. In this interpretative framework, the Inter-American Court crystalized a body of norms protecting indigenous rights and their cultural and historical backgrounds within the general protection system of the American Convention. The extensive interpretation of rights articulates a new view on the individual legal personality. Accordingly, this article seeks to understand this approach based on key decisions of the Inter-American Court of Human Rights on indigenous cases. 

Keywords: International Legal Subject, Human Rights, Group Rights, Cultural Pluralism, Pro Homine Principle, Legal Interpretation. 

3. Do It for the Kids: The Afghan Juvenile Code in Practice by Christopher W. Carlson of George Washington University Law School, at 555-82; 

Abstract. This article assesses and compares Afghanistan’s juvenile procedures with the systems and norms advocated by the United Nations (“UN”). The Afghan Juvenile Code of 2005 is compared with the UN Convention on the Rights of the Child’s four key guidelines. The four guidelines include: (1) imprisonment of juveniles “shall be used only as a measure of last resort”; (2) any such imprisonment shall be “for the shortest appropriate period of time”; (3) juveniles who are in prison shall be “separated from adults”; and (4) they shall have the right to maintain “family contact.” These guidelines serve as a medium through which the international community can illustrate the broad principles of protection and rights for children that should universally be upheld.

The most striking contrast between the Afghan system and the systems in most member countries of the UN is the dominant role that autonomous Afghan tribes play within the criminal justice system. These tribes, which internally administer the criminal justice system, are deeply ingrained within the Afghan state and will likely never be fully centralized. Taking this into consideration, this essay focuses on Afghanistan’s formal adjudication model and explores methods of connecting existing informal and formal adjudication structures to achieve transparency and legitimacy within the Afghan tribal system.

Keywords: Children Rights, Comparative Law, Islamic Law, Juvenile Law, Criminal Justice System, Law Reform.

4. Islamic Hamas and Secular Fatah: How Does the Governing Process Work? by Shadi Alshdaifat of  Isra University, Faculty of Law, Amman, Jordan & Sanford R. Silverburg of Department of History and Politics, Catawba College, Salisbury, NC, at 583–649; 

Abstract. The goal of the Palestinians in their conflict with Israel is to gain national self-determination through a two-state solution. To accomplish this goal it is necessary for the Palestinians to create a singularly viable governing system in order to negotiate with Israel as a “partner for peace.” We endeavor to provide an examination of the Palestinian governing system under the Palestine Authority (PA), operated by Fatah in the West Bank and Hamas, its main opposition, in the Gaza Strip. Underlying the conflict between the two major political parties, Fatah and Hamas, it is pointed out, that following international legal principles of uti possidetis and the doctrine of postliminium, it is necessary for belligerents to negotiate the change in the status of conflicted territory resulting from armed conflict. Negotiations between Israel and the Palestinians requires the latter to create a unified government which has its challenges internally and externally. There is, additionally, the tension between Islam and its role in governance versus a purely secularist approach. An analysis of the situation is presented along with a discussion of governance and its requirements in any future Palestinian state and its outlook.

Keywords: State-Building, Law and Religion, Conflict Resolution, Local Governance, Peacebuilding. 

Abstract. Although it may counter-intuitive, in the United States each individual State has authority to manage federal property in the absence of Congressional direction to the contrary. Recently, this jurisdictional conflict has come to a head in Utah as the State has introduced non-native mountain goats near federal property to increase recreational opportunities. This article discusses the sources of federal and State wildlife management authority and concludes that the State of Utah, along with any other of the several United States, has the authority to unilaterally introduce wildlife onto federal land.