Volume 37, No. 1 (2005)

DANCING WITH THE DEVIL: PROSECUTING WEST AFRICA'S WARLORDS: BUILDING INITIAL PROSECUTORIAL STRATEGY FOR AN INTERNATIONAL TRIBUNAL AFTER THIRD WORLD ARMED CONFLICTS

by David M. Crane

37 Case W. Res. J. Int'l Law 1

I have come to you directly from West Africa, as I have said, to talk to you about what we call “dancing with the devil,” taking down some of the worst war criminals in history and how we developed the initial prosecuto-rial strategy to do just that. These war criminals have, in Sierra Leone alone, caused the murder, rape, maiming, and mutilation of over five hundred thousand human beings and displaced over a million more throughout the region. To date we have accounted for most of those who bear the greatest responsibility for these horrors, the result being that we have also exposed and are assisting in breaking up a multi-million dollar diamonds-for-guns joint criminal enterprise. The devils we dance with everyday are not only the criminal actors being prosecuted, but the peripheral players who have been involved in this decade long tragedy. These actors include gun runners, diamond dealers, the Russian and Ukrainian mafia, other international criminal organizations, and terrorists, to include Hezbollah and Al Qaeda. All of them were involved in West Africa taking blood diamonds from the mines of eastern Sierra Leone and trading them for cash to buy weapons to sustain the conflicts throughout the region or international terrorism. West Africa was a lawless land where accountability was nonexis-tent. The rule of the gun reigned supreme.

Before we go any further into my talk regarding the building of an ini-tial prosecutorial strategy in war torn regions of the third world, such as in Sierra Leone, let me give you a brief overview about the Special Court, the world’s first hybrid international war crimes tribunal.

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INTERNATIONAL CRIMINAL LAW - HOW LONG WILL SOME MISS THE MISSING LINK?

by Hans Corell

37 Case W. Res. J. Int'l Law 11

Perhaps you find the title somewhat enigmatic. If you are a practitio-ner, you may even wonder how this is related to your practice, your profes-sional responsibility or ethical obligations. My hope is that you will realize that the topic has everything to do with precisely this. But let us go back a little and look at criminal law in general. Law, and in particular criminal law, has existed in all societies in accordance with the maxim ubi civitas – ibi jus; where there is a society there is also a legal order.

The content of this law has always reflected the existing values and the current development. At least in my country, we do not have to go back a long way in time to find criminal law provisions that would be wholly unacceptable in today’s society.

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DEBATE: WILL SADDAM HUSSEIN GET A FAIR TRIAL?

by Curtis F. J. Doebbler & Michael P. Scharf

37 Case W. Res. J. Int'l Law 21

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DEVELOPING A UNIVERSAL JURIDICAL CONSCIENCE: TRINDADE OFFERS A VIABLE AGENDA FOR THE 21ST CENTURY

Book Review by Johannes van Aggelen

37 Case W. Res. J. Int'l Law 41

The first two volumes of this seminal treatise in Portuguese on the his-tory, conceptional development and in-depth analysis of the jurisprudence of regional, and international tribunals on international human rights law, were published in 1997 and 1999 respectively.1 This third volume, pub-lished in 2003, is the apogee of a successful attempt to bring closer to the reader in his native country the evolution of one of the foremost develop-ments in public international law over the last fifty years. After having been associated with the Inter-American Court of Human Rights for more than a decade, culminating in the Presidency during the last four years, this distin-guished Ambassador of public international law gives a unique insight into the workings of institutions intended to humanize public international law through the development of international human rights law. In view of the importance of these volumes, the international legal community would greatly benefit from the publication of an updated English translation in the future.

The third volume of Trindade’s trilogy begins with a chapter on the re-gional protection in the Inter-American hemisphere. This presents an un-paralleled analysis of the historical evolution and current stance of this branch of law. The fact that the author during his tenure at the Court ap-pended over thirty-five concurring and dissenting opinions itself constitutes a major achievement towards granting every human being the procedural right of “locus standing in judicio,” as well as confirming the irrevocable trend towards the universal juridical conscience of humanity. He also leaves a lasting imprint on the development of the Rules of Court, of which the fourth revision bears his signature.

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NOTES

THE LOOTING OF IRAQI ART: OCCUPIERS AND COLLECTORS TURN AWAY LEISURELY FROM THE DISASTER

by Amy E. Miller

37 Case W. Res. J. Int'l Law 49

There is a plant which grows at the bottom of the ocean that, when eaten, returns man to his youth. One man, Gilgamesh, tied rocks to his feet, sank deep below the waves of the sea and plucked the plant from the ocean floor. When he returned to the surface he was afraid to eat it and decided to travel home, to the city of Uruk, to test the plant’s powers on an old man living there. He crossed many mountains and oceans during his trip, and one night while he lay sleeping a snake slithered up to Gilgamesh and ate the magic plant. When the snake slipped away he left his old skin behind, and ever since that day, snakes have shed their skin reclaiming their youth.

The foregoing is an excerpt from the Epic of Gilgamesh, which art historians consider the oldest written story on Earth, even pre-dating the Iliad. The tale unfolds on twelve stone tablets, which archeologists discovered in Nineveh, Iraq, amidst ruins of the library of an Assyrian king who ruled from 669-633 B.C.3 Where are these tablets now? Nobody knows. They are just some of the thousands of artifacts stolen or destroyed in April 2003 during the widespread looting and destruction following the invasion of Iraq.

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ENSHRINING A SECULAR IDOL: A JUDICIAL RESPONSE TO THE VIOLENT AFTERMATH OF AYODHYA

by Sheetal Parikh

37 Case W. Res. J. Int'l Law 85

On December 6, 1992, the secular foundation of the Indian State collapsed, as a mob of over 200,000 Hindu extremists, clad in saffron headbands, tore down and demolished the Babri Mosque, a long-standing Muslim edifice located in the northern town of Ayodhya. Thousands of right-wing Hindu fundamentalists vigorously participated in the demolition of the Babri Mosque because they believed Muslim leaders of the Mughal Empire seized land and constructed a mosque on a site that formerly housed a Hindu temple. These Hindus believe that the mosque was built on a site commemorating the Hindu god Ram, one of the most revered Hindu gods. Proving to be one of the nation’s most cataclysmic events, the incident precipitated intense rioting throughout India, with the ultimate death toll exceeding 2,800 citizens. In a matter of only a few hours, the crowd violated national, constitutional commitments to secularism.

This transformative event demonstrates how religion and nationalism have become inextricably linked in modern India, frustrating the nation’s constitutional goal of becoming a “secular democratic republic.” In India, “secular” is not synonymous with anti-religious; the constitutional definition of secularism is a grant of freedom of exercise, and not an absence of all religion. Furthermore, secularism in India is the State’s guarantee of freedom of religious association and not a strict separation between Church and State.

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FEDERAL PREEMPTION IN AN AGE OF GLOBALIZATION

by Ryan Patton

37 Case W. Res. J. Int'l Law 111

States and other sub-national units do not operate in a foreign relations vacuum. As corporations expand beyond the borders of their home countries, contact between states regulating what was once within their sole discretion has taken on international importance. Sub-national economies have economic significance on the world stage, and this significance is felt by corporations and governments that are affected by differing controls enacted by states. For instance, in 2001 California’s economy ranked as the fifth largest in the world, behind the United States, Japan, Germany, and the United Kingdom; New York, the next largest state economy, was about 60% the size of California’s. Because of such a large stake in international trade, many state and local governments engage in limited foreign relations, such as attempts to attract foreign investment or deal with regional issues that extend over national boundaries. This brings into question exactly how far U.S. states can go when dealing with foreign entities while still operating under their traditional competencies outlined in the Constitution. The federal government has jurisdiction in much out-of-state regulation thanks to the Foreign and Interstate Commerce Clauses. In addition, the Constitution spells out prohibitions against states engaging in specific foreign affairs while reserving specific powers to the federal government. However, while the Constitution grants specific powers to the federal government as well as to the states, the framework does not cover every possibility. Because of the effects globalization has brought, what was once largely the realm of the states (the regulation of intrastate commerce) has, by the advance of technology and business sophistication, encroached upon traditional federal government powers (foreign affairs and the inter-state/foreign commerce clauses). This conflict has led to a series of Supreme Court decisions addressing the question of when federal preemption of state law is applicable. The question contains pitfalls for federalism concerns when state laws, which are facially constitutional, conflict with federal interests in foreign affairs (such as multinational trade agreements and maintaining diplomatic relations). This conflict cuts to the core of the recent resurgence of federalism and states rights. In an atmosphere where the expansion of federal power along Interstate Commerce Clause lines has been checked, where the Supreme Court indicates it respects the sovereigntyof states to effectively govern within their own borders, one must ask if that applies to actions which have implications beyond their borders. Does globalization now prevent the states from acting where they otherwise could? Furthermore, may the federal government commandeer large intrastate economies for the coercive diplomatic power those economies have in foreign affairs?

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