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Introduction*

The United States, like many nation-states, presently claims the authority to project its criminal laws beyond its territorial borders. Indeed, the United States now extends aggressively its criminal laws to activity occurring halfway around the globe. Yet this energetic boom of extraterritorial jurisdiction throws into sharp relief a variety of opposing legal interests: most prominently, those of the foreign individuals to whom the United States subjects its laws. Are there constitutional limits on the ability of the United States to project its criminal laws anywhere in the world, and to anyone it likes? If so, what are they, in what constitutional provisions do they reside, and are they enforceable in U.S. courts? And importantly, if such limits exist, do they hamper the ability of the United States effectively to prosecute dangerous criminals for extraterritorial activity? Given the unprecedented scope of jurisdiction that the United States now claims, the current fight against extraterritorial crime envisages novel legal clashes raising precisely these types of questions. And yet despite their centrality to pressing issues of the day, such as the criminal law front to the war on terror, these questions have been left largely untouched by commentators and unresolved by courts.

In response to these questions, this Article sets out to identify and evaluate potential constitutional limits on the ability of the United States to extend extraterritorially its criminal laws, and more particularly, its anti-terrorism laws. I focus on the United States’ anti-terrorism legislation because given recent history and the current political environment, acts of terrorism are both the most palpable crimes to which the United States applies its laws extraterritorially and the crimes over which the United States most aggressively asserts extraterritorial jurisdiction. In fact, it is presently the stated policy of the United States to wage a war against “terrorism” writ large, wherever it occurs around the world. And a powerful tool in this war is the arsenal of far-reaching anti-terrorism laws currently promulgated in the federal code.

The Article engages and weaves together a number of different areas of law: chiefly, constitutional law, criminal law, and international law. Indeed, I conclude ultimately that while the present constitutional landscape prescribes certain structural and due process limits on the United States’ ability to project and apply extraterritorially its anti-terrorism laws, doctrines of international law intersect with the Constitution to avoid these limits, leaving the United States virtually unconstrained to extend the core panoply of its anti-terrorism laws to foreigners abroad. This may seem surprising at first: international law is often thought of as a constraint on state power. Contrary to this assumption, I show that international law actually expands the power of the United States—under the Constitution—in the context of extraterritorial jurisdiction over terrorist acts committed abroad. Specifically, the international legal doctrine of universal jurisdiction interacts with sources of congressional lawmaking authority to overcome any potential constitutional obstacles to the extraterritorial application of U.S. law to the perpetrators of “universal” crimes under international law; crimes that include terrorist acts like the bombing of public places, infrastructure, transportation systems, airports and aircraft, as well as hijacking, hostage taking, and even financing foreign terrorist organizations. However, constitutional limits—most notably those contained in the Fifth Amendment’s Due Process Clause—do restrict the ability of the United States to apply extraterritorially those U.S. code provisions outlawing conduct that is not subject to universal jurisdiction under international law, such as providing material assistance to, or receiving military training from a foreign terrorist organization. My hope in making these arguments is to provide a clearer and more comprehensive picture of this urgent yet under-analyzed legal topic, and to present a compelling claim in favor of an expansive jurisdiction over dangerous extraterritorial crimes like acts of terrorism—but one that both advances and supports the rule of law and individual rights.

Part I of this Article briefly describes the legal concept of jurisdiction and the modern growth of extraterritorial jurisdiction in both national and international law. It explains the different types of jurisdiction at play in combating extraterritorial crime: jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce. And it clarifies that when courts speak of extraterritorial jurisdiction, they are referring principally to jurisdiction to prescribe, or the authority to apply law. I then emphasize the international legal doctrine of universal jurisdiction, which holds that the commission of certain “universal” crimes gives rise to jurisdiction by all states, irrespective of territorial or national links to the accused criminal or the crime itself.

Part II identifies the possible limitations on the extraterritorial application of U.S. prescriptive jurisdiction. These limits are of two main sorts. The first are structural, and go to Congress’s power to legislate in the first instance. The second involve due process considerations imposed by the Fifth Amendment and thus are personal to the accused, shielding the individual against an unconstitutional application of an otherwise lawful enactment.

As to structural limits, I examine the ambit of Congress’s lawmaking authority under the most pertinent enumerated powers for enacting anti-terrorism legislation of extraterritorial application. These powers include the Offences Clause, granting Congress the power “[t]o define and punish . . . Offences against the Law of Nations,” the Foreign Commerce Clause, and the Necessary and Proper Clause license to effectuate the Article II Treaty Power. I argue that while anti-terrorism legislation enacted pursuant to the Foreign Commerce Clause and Congress’s authority to execute the Treaty Power is subject to potential geographical limits, legislation enacted pursuant to the Offences Clause is not, both as a matter of existing Supreme Court jurisprudence and under at least two original interpretations of the Clause. Moreover, I suggest that Congress also likely has the un-enumerated authority to proscribe terrorist acts abroad pursuant to its “inherent” foreign affairs power. I conclude, however, that when applied to individual defendants, exercises of each of these sources of legislative power—whether enumerated or inherent—are nonetheless still subject to the constraints imposed by the Fifth Amendment’s Due Process Clause.

As to Fifth Amendment due process limits, I look to resolve the apparent confusion in the Courts of Appeal, which uniformly have evaluated extensions of U.S. law to foreigners abroad under the Fifth Amendment—and in terrorism cases to boot. Against the conflicting views of commentators—which either look to the domestic context for the appropriate due process framework or resist a due process analysis of federal extraterritoriality largely over concerns that it unduly weakens U.S. sovereignty on the world stage —I propose a due process test that incorporates principles of international law. This test both accurately describes what courts are doing right in practice and successfully balances individual liberty interests against important governmental objectives like combating extraterritorial crime and maximizing U.S. sovereignty. Indeed, my test frees the United States to apply its laws extraterritorially where it otherwise might not be constitutionally capable under some of the tests courts presently purport to employ—namely, tests that borrow from the domestic context and require a nexus to the United States.

Under a test that incorporates international law, where a U.S. law proscribes a “universal” crime, no Fifth Amendment due process claim stands in the way of the application of that law to the individual accused, even where that individual or the conduct in question has no overt nexus to the United States. Because the proscription is not just one of national law, but also of a pre-existing and universally applicable international law, the accused cannot claim to be shielded from the application of a prohibition to which he is already and always subject. And thus according to what this Article presents as the proper due process analysis, the application of that law will not run afoul of the Fifth Amendment: the accused cannot claim lack of notice of the illegality of his conduct, or for that matter, of the substantive law being applied to him. But for this theory to hold, the offense must in fact be universal, and the U.S. law must reflect faithfully the international prohibition—that is, it must embody the substantive definition of the crime as prescribed by international law. Otherwise, the notice criteria compelled by Fifth Amendment due process will not be satisfied. The trick then is to determine which terrorist offenses qualify as universal, and whether Congress has defined them correctly.

Part III presents a framework for evaluating these conditions. In response to the first condition, it argues that through their substantive and jurisdictional provisions, widely ratified international treaties indicate which crimes are universal by manifesting not only widespread condemnation of the crime that is the subject of the treaty, but also by establishing and even mandating extraterritorial and extra-national jurisdiction for all states parties with respect to the prosecution of its perpetrators. To be clear at the outset, I do not argue that the treaty provisions themselves set forth definitively the international law of universal jurisdiction in these respects, but rather that they make up the best evidence of what that law is. And in the context of the international law against specific acts of terrorism, the custom evidenced by these treaties is bolstered by an extensive state practice guided by a sharp sense of opinio juris. Accordingly, and in response to the second condition, these treaties also contain the best record of the international legal definitions of universal terrorist crimes. And since federal legislation implementing U.S. obligations under the treaties tends to track faithfully the treaty definitions of the crimes (and courts consequently use these definitions to prosecute), we can say with some confidence that the U.S. legislation embodies the substantive definition of the crime as prescribed by international law. Hence terrorist crimes that are not universal will not enable the United States to act beyond the constitutional limits mentioned above. But as to the core panoply of terrorist offenses—namely those that are the subjects of widely ratified international treaties evidencing universal jurisdiction—the United States enjoys an unconstrained jurisdiction under both international and national law….

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Introduction*

In the article by Ethiopis Tafara and Robert Peterson, the authors propose a framework to apply to foreign financial services providers accessing the U.S. capital market (the “Blueprint”). Rather than requiring foreign stock exchanges and foreign broker-dealers to register with the Securities and Exchange Commission (“SEC”), as is currently the case, the Blueprint instead recommends “a system of substituted compliance with SEC regulations.” I appreciate the invitation to provide a commentary on the Blueprint, which comes at such a critical juncture in time.

In this commentary, I discuss the global factors and recent developments that are exerting, and will continue to exert, inevitable pressure on securities regulators to open up cross-border access in financial services. In commenting on the Blueprint, I suggest the need for a framework and associated criteria to aid in assessing such a framework. Alternative approaches are outlined and discussed, including a description of the Canada-U.S. Multijurisdictional Disclosure System (“MJDS”), the EU system, and a recent proposal by the Toronto Stock Exchange Group (“TSX Group”).

Globalization

The Blueprint begins with the observation that capital markets are global. This observation is self-evident and support for it is omnipresent. Globalization is a fact. Innovative technologies are driving faster and more efficient trading, and they do not recognize national borders. Capital market participants are expanding their business activities into foreign markets. Investors are seeking international investment opportunities. The impact of these changes is profound and not yet fully realized.

Consider the recent flurry of media articles reporting on potential capital tie-ups, mutual listings, alliances, takeovers, and mergers between stock exchanges around the world. Recently, NASDAQ made a bid for the London Stock Exchange (“LSE”) which, although rebuffed, resulted in NASDAQ acquiring a significant interest in the LSE. Shortly thereafter, the New York Stock Exchange (“NYSE”) Group made an offer for Euronext N.V., the second-largest European stock exchange. The Paris-based Euronext signaled its support for a deal with the NYSE, maintaining that such an alliance would be “advantageous to Europe while leveraging transatlantic synergies.” Contemporaneously, the Deutsche Boerse of Frankfurt apparently continues to pursue its plan to create a pan-European exchange, which would include Italy’s Borsa Italiana. Euronext and the NYSE Group have reportedly said that they remain willing to negotiate with Deutsche Boerse and Borsa Italiana with a view to combining their European cash equity businesses.

The Chicago Mercantile Exchange recently announced plans to buy the Chicago Board of Trade, which would create the world’s biggest market with a market value of U.S. $25 billion. In addition, the TSX Group has struck a deal with Brazil’s São Paulo Stock Exchange (“BOVESPA”) that could lead to an interlisting of stocks, with some speculating that the move is designed to draw some of South America’s largest mining firms to Toronto indices.

Recent media reports have suggested that the “merger frenzy” among exchanges appears to be spreading to Asia. There is talk of an “alliance” between the NYSE Group and the Tokyo Stock Exchange, two of the world’s largest stock markets measured by total market value of stocks listed. It appears these discussions are “focus[ed] on cross-listing, technology sharing and, possibly, small investments by each exchange in the other.” In addition, NASDAQ is reportedly exploring co-operative agreements with both Japan’s Jasdaq Securities Exchange and the Korea Exchange, Inc. in areas that may be “in the interests of maintaining fair and orderly markets and in the best interests of listed companies” in both jurisdictions.

This chess game of proposed exchange mergers, capital tie-ups, and alliances being played out on the global stage bears witness to the truism that capital markets are global. Proponents argue that cross-listings will benefit the following categories: (a) issuers by expanding their sources of capital, (b) investors by expanding their investment opportunities internationally, and (c) capital markets generally through the enhanced liquidity and potential analyst coverage that should naturally flow as a result of these events.

Accepting that these developments are occurring is not a difficult stretch. An in-depth analysis of why they are occurring is beyond the scope of this brief commentary. The emergence of new technologies has resulted in enhanced capital mobility and access to foreign markets and investors. Some claim that the increased regulatory burden in the United States, combined with mounting concerns over exposure to U.S.-style class actions and more aggressive enforcement, may be driving companies to raise capital in foreign markets. The rise of the LSE in popularity and international appeal is also most likely a relevant factor, along with the ever-increasing depth and liquidity of the European and Asian capital markets. Another influential factor is the demutualization of exchanges and their conversion to “for-profit” entities. This has, in turn, unleashed pressure from shareholders to increase profits through expansion, investment in new technology, and cost cutting, forcing these for-profit entities to eschew nationalistic or protectionist tendencies in the bid for value maximization.

It is clear that these developments bring with them increasing pressure on regulators to develop models for better coordinating their regulatory oversight in an effort to ensure that domestic regulation does not unduly hamper the pursuit of business strategies and to ensure that domestic regulation is not indirectly exported to issuers and markets extraterritorially. Although the Blueprint is not directly related to or contingent upon these internationally focused developments at the exchange level, it is against this backdrop and historically significant context that the Blueprint has been developed….

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Introduction*

In their article entitled A Blueprint for Cross-Border Access to U.S. Investors: A New International Framework, Ethiopis Tafara and Robert Peterson offer a proposal for eliminating some of the barriers between U.S. financial markets and comparably regulated financial markets outside the United States. Under this proposal, non-U.S. securities exchanges and broker-dealers (termed “foreign financial service providers” in the article) would be able to obtain exemptions from registration with the U.S. Securities and Exchange Commission (“SEC”) based on their compliance with substantively comparable non-U.S. securities regulations and laws and supervision by a substantively comparable non-U.S. securities regulator. With the benefit of this registration exemption, U.S. investors will have better and less costly access to a wider array of diversified investment opportunities and reciprocal exemptions for U.S. financial service providers will afford the same benefits to non-U.S. investors.

This is an idea whose time has certainly come. Indeed, it is one that is long overdue. There can be no argument that the securities markets are now global and that the dominance of the United States as the leading player in the global marketplace is being challenged. The SEC can no longer afford to sit on the sidelines and pretend that the U.S. market is the only game in town. It must acknowledge that other securities markets and regulators have matured to the point where they rival (and some might argue exceed) the United States in sophistication. Investing in non-U.S. markets is no longer the exclusive province of megainstitutions or the ultrawealthy; it is an essential component of prudent portfolio diversification for all investors. The SEC must find a way to work with its counterparts outside the United States to eliminate barriers to cross-border investment. Tafara and Peterson have proposed a new framework (the “Proposed Framework”), one built on the idea of “substituted compliance,” to commence this process. The Proposed Framework is certainly a step in the right direction and its basic tenets should be embraced and pursued by the SEC. The SEC, however, must exercise care
and restraint in its implementation (especially with respect to its assessment of the comparability of non-U.S. regulatory regimes) in order for the Proposed Framework to succeed. Moreover, the SEC needs to be bolder and go farther in its response to the globalization of the securities markets. It should extend the substituted compliance approach to other areas, such as capital raising, and to other market participants. And it should do so quickly….

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Introduction*

The rapid pace of technological advances is bringing us closer to the reality of a seamless global capital market. In such a world, investors would have access to increased liquidity, greater diversification, and a wider range of investment options regardless of their location. Capital would be more efficiently allocated throughout the global economy to the benefit of all participants. However, complex political obstacles are hindering such a development. One underlying problem facing the United States is how to balance improved U.S. investor access to foreign investment opportunities with the need to safeguard the integrity of the U.S. market. The Securities and Exchange Commission (“SEC”) is responsible for regulating this balance and is guided by its mission “to protect investors; maintain fair, orderly and efficient markets; and facilitate capital formation.”

In A Blueprint for Cross-Border Access to U.S. Investors: A New International Framework, Ethiopis Tafara and Robert Peterson put forth a seemingly compelling argument to address this problem through the adoption of a new international framework for the SEC’s handling of foreign investment opportunities. Tafara and Peterson argue that change is necessary as the SEC’s current approach to foreign investment opportunities is out of date and needs to adapt to the increasing interconnectedness of global markets. They point out that while the SEC has made accommodations for some foreign issuers listing on U.S. exchanges, its counterparts in other countries have not given U.S. investors similar support and instead offer limited information and several layers of costly intermediaries. The proposed framework aims to rectify this situation through a system of substituted compliance with SEC regulations whereby “instead of being subject to direct SEC supervision and U.S. federal securities regulations and rules, foreign stock exchanges and broker-dealers would apply for an exemption from SEC registration based on their compliance with substantively comparable foreign securities regulations and laws, and supervision by a substantively comparable foreign securities regulator.” However, while such reform may on the surface seem reasonable, the practicability of implementing these changes today is questionable while the risk for U.S. investors is high….

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Introduction*

In the debate over global economic liberalization, few issues have been as contentious or hard-fought as the calls to incorporate social standards and labor rights provisions into free trade agreements (“FTAs”).

In the United States, the inclusion and design of such provisions—a process often referred to as “linkage”—remains a highly controversial issue and one that has played a significant role in the political and policy debates over the rapidly increasing number of bilateral and regional FTAs that the U.S. government is negotiating. In one of the most widely followed recent examples, the U.S. House of Representatives, in a 217-215 vote, and the U.S. Senate in a 54-45 vote, barely ratified the Central American Free Trade Agreement (“CAFTA”) with six Central American countries. One of the major causes of its near defeat was the design of its labor provisions, which were deemed to be too weak given the poor record of labor law enforcement and the levels of poverty in CAFTA countries. Even more recently, in the debate over an FTA with the Sultanate of Oman, Democrats on the House Ways and Means Committee voted unanimously to defeat the FTA in part because the labor rights provisions in the FTA were inadequate in light of Oman’s weak labor standards. In the final vote, the FTA passed the whole Congress 221-105, with some key Democrats changing their votes based upon assurances by the Government of Oman that it would amend its collective bargaining laws. Even then, only twenty-two Democrats voted in favor of the agreement. Current negotiations over other trade agreements, such as the Andean Trade Promotion Agreement with Peru and Colombia and the more far-reaching Free Trade Agreement of the Americas (“FTAA”), are also likely to raise serious labor rights questions and objections.

Much of the disagreement in these debates centers on the question of how effectively trade-related labor rights provisions hold states accountable for their inadequate labor laws or inadequate labor law enforcement. The approach states have taken—an approach that I term a State Action–State Sanctions Model—primarily aims to pressure states to amend their labor laws and/or enforce their labor laws in a prescribed manner, or suffer economic consequences.

However, in light of contemporary scholarship on regulation and international governance, and in light of the fact that developing countries often have highly dysfunctional labor regulatory systems and are ineffective enforcers of labor laws and workers’ rights, such a state-centric focus is misguided. Instead, if trading partners are serious about protecting workers’ rights in a global economy, a new approach should be adopted that simultaneously recognizes the increasingly important role of private regulatory regimes in the enforcement of workers’ rights, and that aims to develop well-functioning, democratically accountable public labor regulation regimes.

This Article therefore argues for a new approach to trade and labor linkage that I term “Integrative Linkage” (“IL”). It is so-termed because the IL methodology integrates public and private regulatory approaches in the design and implementation of trade-based labor rights enforcement regimes. IL moves away from the predominant State Action–State Sanctions Model toward a more nuanced and encompassing approach that utilizes the powerful potential of private regulatory strategies. Rather than conceptualizing public and private regulation as operating in discrete realms that have little overlap, IL aims to create institutions that effectively combine the two in order to achieve a more effective trade and labor rights regime. Importantly, IL does not necessarily seek as a normative end the deregulation or even decentralization of regulatory authority, but instead actively seeks to bolster public regulatory capacity and improve democratic functioning. Such an approach is generally applicable, and is relevant not only to the United States and its trading partners in their bilateral and regional trading arrangements, but to other regional free trade areas and their members as well.

The structure of this Article is as follows: In Part I, I briefly survey the legal and normative justifications for linking trade agreements and labor standards and describe some principles that ought to guide the construction of labor provisions in trade agreements, taking special note of human rights and development concerns.

In Part II, I analyze how these provisions have been realized in domestic legislation, bilateral and regional trade agreements, and the World Trade Organization (“WTO”), as well as how scholars have approached linkage. I demonstrate that (a) both in practice and in theory, the predominant approach to linkage has focused on the State and has implicitly adopted a State Action–State Sanctions Model that is particularly ill-suited to developing countries with dysfunctional regulatory regimes; (b) extant regimes in the three predominant loci of trade and labor linkage have been largely ineffective in improving labor conditions, in part because of their reliance on the State Action–State Sanctions Model; and (c) despite this ineffectiveness, bilateral and regional agreements hold the most promise for the creation of effective trade and labor regimes.

I then turn in Part III to a description of developments in “private regulation” and describe the ways in which non-state actors and private regulation have played an increasingly important role in transnational labor regulation.

In Part IV, I examine an enlightening case study of creative linkage in Cambodia in which the market for labor rights compliant clothing has helped improve working conditions and has become a source of competitive advantage for the country. The Cambodia experiment can be viewed as an early prototype of an IL approach to linkage, and one that some development organizations are looking to as a possible model to follow in other countries.

In Part V, I put forward the basic tenets of an IL approach. In this model, bilateral and regional trade agreements would explicitly provide for labor rights enforcement regimes that focus less on evaluating and sanctioning state action and more on firm-level performance and the generation and dissemination of information about those firms. The trading partners would design specifically tailored regimes that address the particular regulatory concerns of those parties in experimental and diverse ways that aim to improve workers’ rights enforcement and bolster public regulatory capacity. Such regulatory capacity building would be achieved, in part, through the empowerment and participation of relevant stakeholder groups and of civil society. The varied IL regimes in different trading regions would then provide IL models and best practices to other regional and bilateral arrangements in a process of networked learning….

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Not since the trials of the Nazi leaders at the first international war crimes court in Nuremberg has such a prominent mass murderer been brought to account. The proceedings will doubtless be televised. With the eyes of the world on it, the [Hussein trial] will be a great show.

Introduction*

On November 5, 2006, guards led Saddam Hussein into the defendant’s dock of a tense courtroom in Baghdad.  Ordered to stand, Mr. Hussein took a seat instead, telling the judge in a mocking voice that he could hear him just as well from his seat.  The judge sent two bailiffs to raise the former dictator to his feet.  When one touched him, Mr. Hussein cried out, “You stupid man, there’s no need to twist my arm!”  Then he stood to hear the decision of the Iraqi Special Tribunal (“IST”) in the Dujail case.

Chief Judge Raouf Abdel-Rahman proceeded to read the verdicts and sentences for Mr. Hussein and his six co-defendants.  The court sentenced Mr. Hussein to death by hanging for willful killing, ten years’ detention for deportation of citizens, ten years’ detention for imprisonment or other severe deprivation of liberty in violation of international law, seven years’ imprisonment for torture, and seven years’ imprisonment for other inhumane acts.  He was acquitted of charges of forced disappearances.  As the judge pronounced the sentence, Mr. Hussein thrust his right forefinger in the air and shouted: “Long live the people! Long live the nation! Down with the occupiers! Down with the spies!”  When the bailiffs moved to restrain him, he resisted angrily, then faced the chief judge, crying out: “Go to hell, you and the court!”  He told the panel of judges they hadn’t decided anything themselves: “You are servants of the occupiers and their lackeys! You are puppets!”

Five minutes later, Mr. Hussein was on his way back to his cell,  but the drama outside the courtroom was just beginning. All across the country, Iraqis had sat glued to their televisions, awaiting the verdict with bated breath.  Having heard the death sentence, people in Dujail celebrated, burning pictures of Mr. Hussein and defying curfew to gather in the city center for a banquet.  Meanwhile, in Mr. Hussein’s hometown of Tikrit, thousands of demonstrators flooded the streets in anger, some firing guns.  A police vehicle, rather than enforcing the curfew, led a group of demonstrators down Tikrit’s main street.  In Baghdad, the Iraqi government shut down two Sunni television stations, claiming they had broadcast images intended to provoke violence.

The verdict reverberated on the other side of the Atlantic as well. U.S. President George W. Bush immediately seized on the verdict, trumpeting it as “a major achievement for Iraq’s young democracy and its constitutional government.”  Others in the United States and Iraq expressed suspicion that the timing of the decision was driven by Republicans’ desire to boost their chances in midterm elections, scheduled to take place two days after the verdict issued.

The verdict and its aftermath put many of the IST’s distinctive features on display, including the posturing of its insolent and infamous defendant, the rapt attention of its television audience, censorship, the ambiguous role of U.S. pressure, and the trial’s major social and political ramifications both in Iraq and abroad. Reactions to the verdict cast in stark relief the rift between those supporting the conviction and those who thought it was wrong. Although the division was particularly evident at the time of the verdict, debate has been raging about the trial since its inception. Some observers are concerned that the trial’s planners accorded the defendants inadequate rights and protections.  Others have complained that the protections are too many; “put simply,” wrote one observer, “in the trial of Saddam Hussein, the international community seems wedded to process at the expense of pageant.”  While numerous commentators have faulted the IST for failure to qualify as an international effort and for the extensive involvement of the United States in its design,  others have defended its Iraqi location and use of Iraqi Arabic language, saying that the trial will promote “institutional capacity building” and avoid problems inherent in translation.  Assessment of the conduct of the trial has been similarly discordant, with some observers complaining that Mr. Hussein hijacked the process for his own purposes and others complaining that he was silenced.

If prior trials in the wake of mass atrocity are any indication, the debate over the IST is likely to go on for some time.  I make no effort to bring it to a quicker resolution. Rather, I seek to advance the discussion by giving more substance to one of the terms that has figured prominently in the debate: “show trial.” The term has been much bandied about: “[T]he truth about Saddam’s rule is so apparent that his defenders would rather make a show trial of the proceedings than face the facts,” The Washington Times stated.  “While the proceedings against Saddam may bring short-term satisfaction,” wrote the Houston Chronicle, “they run the danger of becoming a mere show trial.”  A commentator for the International Herald Tribune warned that “if leaders of Saddam Hussein’s regime are prosecuted by, or on behalf of, the United States, Iraqis will view the prosecutions as ‘show trials.’”  And a Human Rights Watch official expressed fear that the Iraqi trials could turn into “political show trials.”  But what exactly is a show trial?

In Part I, I propose a definition of “show trial” that encompasses many of the common uses of the term. Part II moves from the theoretical to the more concrete, laying out eight characteristics that may be useful in identifying show trials as conceived in Part I. Part III uses these characteristics to determine that the IST’s Dujail trial should be considered a show trial and situates it in comparison to several other well-known show trials. The conclusion considers the role Saddam Hussein’s trial will play in the future of Iraq….

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.