Harvard ILJ

In my view, the argument that the ICC should focus “exclusively on sentencing” when determining whether “ordinary” crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability.

While Professor Heller may be successful in showing that a sentence-based approach is superior to a charge-based approach, I will argue that a sentence-based approach also raises some serious difficulties that have not been addressed. I will therefore suggest a third option, a process-based approach.

Landau’s article advances our understanding of the remedial issues he discusses. But, I believe that there are some empirical and conceptual matters that require additional exploration.

In my comments I would like to emphasize some points that may not be fully accounted for in this supply-and-demand scenario.

First, while the hunt for arable land for food may explain many of the large transnational land deals, they appear to be part of a deeper structural change – the emergence of a transnational real estate market. What explains this change?

Recognizing that Hollis’ project here is not to propose a complete solution [to the threat posed by cyber attacks] but merely a framework upon which to build, I will focus my comments on four points in Hollis’ paper: proximity, frequency, technology protection, and the continuing problem of attribution. While these four points are fundamental to Hollis’ proposal, I believe that they also present some difficulties.

Blum’s normative analysis of the desirability of CDRs in IHL is exceptionally powerful, and I agree with most of her conclusions. This brief response, therefore, is intended to be more constructive than critical. In particular, I want to raise five issues that I believe warrant further exploration…

Sources of instability in the emerging global regime for foreign investment lie in its origin in dispersed negotiations for bilateral treaties and in the absence of a central organizational authority. Given the lack of convincing evidence that the regime encourages more investment or lowers its cost, one might ask whether the system is worth trying to preserve.

A widespread “turn to history” has marked international legal scholarship in recent years. In the rich and extensive study to which the present note responds, Arnulf Becker Lorca offers a new contribution to the growing literature on nineteenth-century international law by approaching this period from the semi-periphery.

I start out by introducing the important thesis that Becker Lorca terms the particularistic universalism of international law in the nineteenth century, a development that began with the historic turn which followed the natural law of the seventeenth and eighteenth centuries and climaxed with the legal positivism of the nineteenth century. I then expand this thesis by noting how particularistic universalism grew historically out of the plurality of universalistic conceptions of international law proclaimed by different legal civilizations, rather than just by Western civilization. With that done, I critically discuss the standard of civilization by analyzing it not only in legal terms but also from an anthropological and sociopolitical standpoint. Finally, I underscore the continuity of the West’s civilizing and hegemonic ideology encapsulated in international law and spanning from the early modern age to the contemporary world, regardless of however much it takes on different conceptual forms.

One point undergirds much of what follows and is therefore worth emphasizing
up front. In the article, I describe the extent and devastating impact of human rights
violations by U.N. peacekeepers. These violations are, of course, the central focus of
the debate at hand. Preventing such wrongdoing and providing appropriate remedy
when it occurs must be our guiding objectives. However, these violations must be
considered in context.

In his thoughtful response, John Parry offers an elegant dissection of the different
mens rea standards for accomplice liability.

A Response to Tom Dannenbaum, Translating the Standard of Effective Control into a System of Effective Accountability, 51 Harv. Int’l L.J. 301 (2010).