“Highly recommended”: Professor Chapman on “Due Process Abroad”

Due Process Abroad is the title of the timely manuscript that Nathan S. Chapman (right), an Assistant Professor here at the University of Georgia School of Law, has just posted at SSRN. At the influential Legal Theory Blog, Georgetown Law Professor Lawrence Solum has given his “highly recommended” recognition to this study of the extraterritorial application of the Due Process Clause of the U.S. Constitution.

The manuscript, which forms part of our Dean Rusk International Law Center Research Paper Series at SSRN, may be downloaded here.

Here’s the abstract:

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure.

Up to now, scholars have uniformly concluded that the founding generation did not understand due process to apply abroad, at least not to aliens. This Article challenges that consensus. Based on the English historical background, constitutional structure, and the early practice of federal law enforcement on the high seas, this Article argues that the founding generation understood due process to apply to any exercise of federal law enforcement, criminal or civil, against any person, anywhere in the world. Outside the context of war, no one believed that a federal officer could deprive a suspect of life, liberty, or property without due process of law — even if the capture occurred abroad or the suspect was a non-citizen.

This history has important implications. It strongly supports the extension of due process to federal criminal and civil law enforcement, regardless the suspect’s location or citizenship. This principle has immediate implications for cross-border shootings, officially sponsored kidnappings and detentions abroad, the suspension of immigration benefits, and the acquisition of foreign evidence for criminal defendants.

Georgia Law alumnus, Professor Javier Dondé, returns as Visiting Scholar

We at the Dean Rusk International Law Center are delighted this week to host a distinguished Visiting Scholar: University of Georgia School of Law alumnus, Dr. Javier Dondé Matute.

He earned his LL.M. degree from Georgia Law in 1998, and is now a Professor of International Criminal Law at Instituto Nacionale de Ciencias Penales (National Institute of Criminal Sciences – INACIPE, for short) in Mexico City, Mexico.

He’ll be resident at our Center all week, pursuing his sabbatical research on the post-World War II trials at Nuremberg. Additionally, he’ll present a work in progress, entitled “Criminal Responsibility as a Founding Principle of International Criminal Law,” this Wednesday, March 15, as part of our International Law Colloquium Series led by Georgia Law Professor Harlan G. Cohen.

Professor Dondé has written and published widely on issues such as international criminal law, comparative criminal law, human rights, and extradition; his books include Derecho penal internacional (Oxford University Press 2008). He also has served as an adviser to Mexico’s Supreme Court and to various other judicial, prosecutorial, law enforcement, and human rights agencies. He is a member of the editorial boards of two leading Latin American law reviews, the Revista Iberoamericana de Derechos Humanos and the Anuario Mexicano de Derecho Internacional.

In addition to his Georgia Law LL.M., Professor Dondé holds a Ph.D. in international and comparative criminal law from the University of Aberdeen, Scotland, and completed his undergraduate studies at Instituto Tecnológico Autónomo de México (ITAM).

¡Bienvenidos!

Distinguished jurist Pillay discusses state sovereignty, human rights

duo“The biggest violators of human rights are states themselves, by commission or omission.”

This quote by Navi Pillay aptly summarized her talk on “National Sovereignty vs. International Human Rights.” Pillay, whose renowned legal career has included posts as U.N. High Commissioner for Human Rights and as a judge on the International Criminal Court and the International Criminal Tribunal for Rwanda, spoke this morning at the University of Georgia School of Law Atlanta campus.

Elaborating on the quote above, Pillay decried national legislation aimed at restricting the activities – and with it the effectiveness – of local nongovernmental organizations. Such anti-NGO laws already have passed in Russia and are pending in Pillay’s home state of South Africa, among other countries. That said, she welcomed new means of speaking law to power; in particular, social media that permit human rights advocates to reach millions. Also welcomed were accountability mechanisms that the United Nations has developed in recent decades, such as Universal Periodic Review by the Human Rights Council, reporting processes of treaty bodies, and reports by special rapporteurs.

amann_pillayI was honored to give welcoming remarks at the breakfast. Georgia Law’s Dean Rusk International Law Center, which I lead, cosponsored this Georgia WILL event with the World Affairs Council of Atlanta and Georgia State University’s Global Studies Institute. (We owe special thanks to Judge Dorothy Toth Beasley for her hospitality this week.)

Conversing with Pillay was World Affairs Council President Charles Shapiro. They began by speaking of Pillay’s childhood in Durban, where she grew up the daughter of a bus driver. She spoke of how testifying as a 6-year-old in the trial of a man who’d stolen money from her helped spark her desire to become a lawyer – and how donations from her community helped make that dream a reality.

Shapiro then asked about capital punishment, noting a scheduled execution. Pillay acknowledged the absence of any universal treaty outlawing the death penalty, but found evidence of U.N. opposition both in the decision not to permit the penalty in U.N. ad hoc international criminal tribunals and in the growing support for the oft-repeated U.N. General Assembly resolution calling for a moratorium on capital punishment.

“It started with just 14 states against the death penalty, and is now more than 160,” said Pillay, who currently serves on the International Commission against the Death Penalty.

img_0335On this and other issues, she said, advocates endeavor to encourage states first to obligate themselves to respect and ensure human rights, and then to implement the undertakings they have made in this regard:

“The United Nations was formed by states. It is a club of governments. Look how steadily they have adopted treaties and agreed to be bound by them. That doesn’t mean we are transgressing sovereignty.”

70 years ago, landmark international criminal law judgment at Nuremberg

This weekend marks the 70th anniversary of the Judgment of the International Military Tribunal at Nuremberg, a moment recorded in this New York Times front page:

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The judgment established that humans, and not only states, may be held responsible for violations of international law – a principle that the General Assembly endorsed in 1950. Recognition that individual acts mattered in the international law soon opened the way for recognition that acts committed against individuals also mattered. The Nuremberg Judgment thus stands as a foundational moment in the international human rights movement, as was recognized inter alia in a 1982 article by Georgia Law Professor Louis B. Sohn, when he was Emily & Ernest Woodruff Chair in International Law, a position I am now honored to hold.

Another Georgia Law professor who’s written about Nuremberg is my colleague Harlan Grant Cohen; these works include: ‘Undead’ Wartime Cases: Stare Decisis and the Lessons of History (2010); Historical American Perspectives on International Law (2009); The American Challenge to International Law: A Tentative Framework for Debate (2003).

My own writings, available here, include studies of the meaning of genocide and essays on women who worked as prosecutors, defense lawyers, and staff (no judges) at postwar trials in Nuremberg and Tokyo. “Women at Nuremberg” is a subject that many IntLawGrrls have addressed, not to mention many more posts on all aspects of international criminal law and international human rights law.

Antiquities trafficking said to fuel transnational mayhem by Daesh et al.

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Alumna Tess Davis, 2d from left, met with Georgia Law 1Ls after her lecture; from left, Hannah Williams, Ava Goble & Karen Hays. Hannah will work on cultural heritage issues this summer through a Global Externship Overseas (GEO) at the Cambodia Ministry of Culture & Fine Arts, Department of Intangible Cultural Heritage.

“As long as there have been tombs, there have been tomb raiders.”

So began the terrific talk on trafficking that Tess Davis, Executive Director of the D.C.-based Antiquities Coalition, delivered to a rapt University of Georgia audience this week.

Having conceded the point quoted at top, Davis stressed that today the problem is much different and much greater. On the list of lucrative transnational organized crime, she asserted, antiquities trafficking places 3d, right behind arms trafficking and drug trafficking.

The threat is not simply one of criminal behavior, she continued. Rather, Davis stressed that profits from antiquities trafficking – profits believed to be in the millions of dollars – provide revenue vital for the nonstate actor waging armed conflict in Syria and Iraq. That entity calls itself “Islamic State” and is often labeled “ISIS” or “ISIL” in the media; taking a lead from diplomats in France and, recently, the United States, Davis preferred “Daesh,” the group’s Arabic acronym, for the simple reason that “they hate to be called that.”

Initially trained as an archeologist, Davis began to focus on legal means to combat antiquities trafficking while still a student at Georgia Law. Since earning her J.D. in 2009, she’s been a leader at the Lawyers’ Committee for Cultural Heritage and in the American Society of International Law Cultural Heritage & the Arts Interest Group, a researcher at Scotland’s University of Glasgow, a member of Georgia Law’s Dean Rusk International Law Center Council, and, as the photo above demonstrates, a mentor to Georgia Law students and other young lawyers interested in working in the field. Her efforts to help repatriate antiquities stolen from Cambodia earned multiple mentions in The New York Times.

Her talk drew links between the looting of cultural heritage during and after the 1970s Khmer Rouge reign of terror and current looting in the Middle East today. In both instances, she said, “cultural cleansing” – in the contemporary case, the destruction and thievery of monuments sacred to moderate Muslims and others – precedes and parallels efforts to erase and subjugate the humans who venerate those monuments. It’s a state of affairs documented in her Coalition’s new report, “Culture Under Threat.”

“The world failed Cambodia,”

Davis said, then expressed optimism at growing political will to do something about the Middle East. She advocated enactment of S. 1887, the Protect and Preserve International Cultural Property Act now working its way through Congress. The legislation, whose cosponsors include a Georgia U.S. Senator, David Perdue, is urgent: Davis estimated that U.S. buyers represent 43% of the current demand for looted Syrian antiquities.