Author name: Branden Loizides

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Book Review: From Nuremburg to the Hague: The Future of International Criminal Justice

The last decade of the twentieth century witnessed the rapid expansion of international criminal law. Though catalyzed by many factors, signicant credit for this remarkable growth can be attributed to two mutually reinforcing phenomena. First, following the bloodshed in Rwanda and Yugoslavia, the international community resurrected the criminal tribunal as a fundamental component in defining and punishing criminal acts committed by state actors. Second, as the decade progressed, national governments became increasingly ready to protect their citizens’ rights by asserting “universal” jurisdiction over foreigners alleged to have violated those rights; most famously, this resulted in the London arrest of Augusto Pinochet. The growing acceptance of and jurisprudence surrounding both international criminal tribunals and universal jurisdiction came together in June 1998 when the United Nations adopted the Rome Statute, which defines the structure of the new International Criminal Court (I.C.C.).

Even if the immediate impetus for creating the I.C.C. was violence both in the Balkans and the African Great Lakes and related domestic judicial activism in the 1990s, the true forebear of the new Court is the Nuremberg Trials [hereinafter “the Trials”] following World War II; it was there that many of the notions later solidified by the Rome Statute were first promulgated, including the concept of “crimes against humanity.” Though the heritage of Nuremberg is evident in the I.C.C., the Trials have proven an uneasy foundation for the new body, with the precedent of Nuremberg’s dual political/judicial purpose causing some observers, and even potential I.C.C. member states, to shy away from endorsing the court. Philippe Sands’s edited work, From Nuremberg to the Hague: The Future of International Criminal Justice provides a wideranging examination of these issues, analyzing the Nuremberg Trials themselves, their impact on the ad hoc tribunals organized in response to Rwanda and Yugoslavia, and their likely impact on the potential of the I.C.C.

Book Reviews, Print Archives

Book Review: Law and Colonial Cultures: Legal Regimes in World History, 1400–1900

Challenging scholars of both colonial history and globalization, Lauren Benton’s Law and Colonial Cultures argues that state-centered legal orders emerged as a result of the presence of colonial powers, both European and non-European. She describes how the colonial state developed through jurisdictional conflicts between native judicial systems and colonial legal systems. These conflicts led colonial states to assume increased control of important economic transactions. Benton tackles both the scholarly accounts that claim colonizers overran helpless native populations and those that argue only European or Western powers pursued policies aimed toward promoting markets or economic growth. Benton even takes on one of the sacred cows of traditional colonial studies: Chinua Achebe’s Things Fall Apart. In Achebe’s novel, the protagonist, Okonkwo, faces two trials: the first by his fellow villagers and the second by a British colonial tribunal. In Benton’s rendering, Achebe depicts the first as part of a generally well-functioning Nigerian society suddenly ripped apart by the arrival of British colonialists, and the second as an entity almost entirely foreign to Okonkwo. In essence, Benton argues that, as a historical matter, not only would Okonkwo have been aware of the law governing British colonialists, but he would have taken advantage of it if he saw the possibility of a better outcome.

Benton traces, through five episodes in world history, how the colonizer’s law began as one of several legal systems, then gradually expanded to areas of economic concern, such as the enforcement of contracts or the transfer of property, and finally made a place for both indigenous and colonizing litigants. In seventeenth-century North America and Iberia, eighteenth-century Africa and India, and nineteenth-century Uruguay, Benton traces parallels in the historical development of the state-centered order. The reader will find engaging and thorough narratives on the legal history of these regions, but will be left unconvinced that a single phenomenon is at work. Benton is more successful at completing the historical narratives that emphasize the colonial state as resulting from competing European empires or from local processes that developed “national” consciousness in colonies. To this end, she claims that jurisdictional conflict formed a type of regime for this period.

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Federalism and the Tyranny of Religious Majorities: Challenges to Islamic Federalism in Sudan

Throughout the vicious cycle of dictatorships and civil wars that has characterized its post-independence history, Sudan has presented a classic case of religious majoritarian authoritarianism. The country’s northern Muslim elites have consistently argued that the Muslim majority has an inherent democratic right to establish an “Islamic” state governed by religiously inspired laws and norms. Since the early days of independence, and particularly since Islamists assumed power in 1989, this Islamic majoritarianism has manifested itself in a wide array of constitutional and legal pronouncements, as well as political practices, that entrench Islam in Sudan’s constitutional, political, and legal systems. Such persistent attempts to enforce an Islamic identity on the entire country have left its mostly southern religious minorities alienated and provoked numerous rebellions and secessionist movement over the past fifty years.

This Note argues that these formulations of Islamic federalism fall short of reversing the course of majoritarian tyranny in Sudan. This conclusion is of grave consequence given that the Machakos-stipulated six-year transitional period before a southern vote on self-determination—effectively the last chance for a united Sudan—will be under a variant of Islamic federalism. This formulation may render the southern vote for secession a foregone conclusion. The central aim of this Note is to explore the viability of federalism within an Islamic framework as an adequate response to majoritarian tyranny against non-Muslims in Sudan. Although there has been extensive scholarship on the role of religion in Sudanese politics, rarely has the issue been analyzed through the lens of majoritarian tyranny.

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Judicial Enforcement of the WTO “Hormones” Ruling Within the European Community: Toward EC Liability for the Non-Implementation of WTO Dispute Settlement Decisions?

On September 30, 2003, the European Court of Justice (ECJ) contemplated the possibility of holding the European Community liable for the non-implementation of World Trade Organization (WTO) Dispute Settlement Body (DSB) decisions. The implications of the ECJ’s reasoning in these judgments could be revolutionary not only for the EC legal order, but also for the legal systems of all WTO members. To date, no court of a WTO member state has recognized a private party’s right to rely on DSB rulings to initiate a claim of liability against a member state. Since WTO rules lack direct effect, member states typically prevent private parties from invoking DSB rulings before domestic courts. Hence private business operators are barred from recovering the damages suffered from non-compliance with DSB rulings.

The case at hand arose when a French meat trading company, Biret International, and its holding company, Etablissement Biret et Cie SA, filed actions before the Court of First Instance (CFI) of the European Communities seeking compensation for damages allegedly suffered as a result of the adoption and continuing enforcement of an EC ban on hormone-treated beef. The ban had already been condemned by the WTO in the well-known Beef Hormones cases. Biret, relying on WTO rulings in the Beef Hormones cases, asked the court to hold the European Community liable for failing to implement the decision within the prescribed period of time. In line with the ECJ’s longstanding tradition of denying the direct effect of General Agreement on Tariffs and Trade (GATT) and WTO law, the CFI rejected the claim on the ground that neither WTO agreements nor rulings could create rights for private individuals. In an appeal of this judgment, the ECJ dismissed the action on factual grounds, but did not rule that the plaintiff’s claim was unfounded. In this way, the ECJ left open the possibility that a WTO dispute settlement ruling could provide grounds for imposing liability on the European Community.

The objective of this Recent Development is to provide the reader with an analysis of the Biret judgments and their possible legal implications. Part I provides the necessary framework to understand the legal context underlying the Biret judgments. The Part briefly discusses the direct effect of WTO law, the functioning of the WTO dispute settlement system, the (non-) role of private parties, and the historical background of the Beef Hormones cases. Part II examines the Biret judgments by the CFI and the ECJ, and also the opinion of Advocate General Alber. Part III focuses on the legal implications of the Biret cases and their potential impact on the EC legal order and on other WTO member countries.

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Secrecy, Monopoly, and Access to Pharmaceuticals in International Trade Law: Protection of Marketing Approval Data Under the TRIPS Agreement

Among the many trade conflicts that divide the postindustrial economies of Europe, the United States, Japan, and the Commonwealth from the less information-driven economies of the rest of the world, one of the most consequential is the debate over how to balance access to medicines with the intellectual property protection demanded by their developers. Among the many facets of this debate is the question of whether pharmaceuticals, vaccines, biologics, and other therapeutic or preventative health consumables (to which this article will refer collectively as “drugs”) should be patentable in developing countries. This debate was partly resolved by the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), which allows signatories to exclude from patentability “diagnostic, therapeutic and surgical methods for the treatment of humans or animals” yet requires the patenting of pharmaceuticals after a transition period. Nonetheless, disagreement about access to medicines has plagued subsequent negotiations. The economically developed states, led by the United States, have demanded that WTO members cease liberal compulsory licensing practices and adopt patent protection regimes equivalent in most significant respects to those of the United States and Europe. Developing countries have requited these demands with insistence on better access to affordable drugs and medical technology originating in the economically developed states. The debate over patentability and compulsory licensing hinges partly on disagreement over whether patent protection in developing countries is a necessary incentive for optimal drug development and distribution. It is generally contended that the TRIPs Agreement has a significant effect in either promoting or retarding innovation necessary for pharmaceutical companies to invent and register drugs that prevent or treat diseases prevalent in developing countries. The WTO General Council has temporarily quieted this debate with its September 2, 2003, decision on paragraph 6 of the Doha Declaration, which sanctions compulsory licensing by the least-developed countries pursuant to notification requirements and other limitations. The Doha Round negotiations have not yet resolved, however, a second, equally contentious debate that focuses on whether similar incentives are needed to stimulate drug developers to seek marketing approval in developing countries.

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The Declining Significance of POW Status

What is the significance of prisoner-of-war (POW) status? Drawing on the substance, universal acceptance, broad-based institutionalization, and enforcement machinery of the Geneva Convention for the Protection of Prisoners of War (“POW Convention”), conventional wisdom maintains that denial of POW status to combatants has drastic protective and policy consequences. Contrary to this conventional wisdom, this Article argues that denial of POW status carries few protective or policy consequences, and that the gap in protection for those classified as POWs and those not so classified (e.g., those designated “unlawful combatants”) is closing. The only gaps that persist are: (1) that POWs are “assimilated” into the legal regime governing the armed forces of the detaining state; and (2) that POWs enjoy “combatant immunity.” The scope and significance of these gaps are, however, also diminishing—from both a protection and policy perspective. The Article further argues that this emerging “protective parity” has important implications for humanitarian law and policy: (1) it clarifies and consolidates debates about coverage gaps in the Geneva law; (2) it recasts debates about the proper procedure for determining “status” in humanitarian law (procedurally, POW status might be understood only as an affirmative defense to any prosecution for simple participation in hostilities); and (3) it underscores the escalating inefficiencies of approaches that calibrate treatment based on complex status determinations (and, in doing so, provides an explanation of why some states—including the United States—expressly incorporate elements of “protective parity” into their military policy). Finally, the Article offers a normative defense of “protective parity”—emphasizing whether it can be reconciled with the principle of distinction.

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