by Michael Scharf

by Michael Scharf

“U.S. Lets Whistle-Blowers Lose Jobs,” read the front page headline in this morning’s newspapers (USA Today, March 14, 2007). Should we be concerned?

Without government whistle-blowers who had the courage to go to the press, we wouldn’t know about the Watergate scandal in the 1970s or the Iran-Contra scandal in the 1980s. We wouldn’t know that the government tried to mislead the public by denying the existence of genocide in Bosnia and Rwanda in the 1990s. We wouldn’t know that the FBI ignored information about the 9/11 hijackers in 2001. We wouldn’t know that United States personnel engaged in inhumane practices at Abu Ghraib prison in Iraq. We wouldn’t know that the United States runs secret torture prisons in Eastern Europe. We wouldn’t know that the National Security Agency routinely engages in domestic wiretapping without warrants. We wouldn’t know that the levees supposed to protect New Orleans were inadequate. And we wouldn’t know that U.S. forces recently massacred innocent civilians at Haditha, Iraq. These disclosures initiated vital public debate and prompted important corrective actions and reforms.

Despite the federal and state laws that purport to facilitate such whistle-blowing for the public good, government whistleblowers routinely have faced loss of promotion, harassment, firing, and in some instances criminal prosecution when they have gone public with their important information. The Supreme Court has recently opined that the First Amendment does not apply to government whistleblowers; lower courts have required “irrefutable proof” of wrongdoing before the protections of the federal and state whistle-blowing statutes will apply; and none of the federal and State whistle-blowing protection laws consider journalists an appropriate whistle-blowing outlet, despite the power of the media to bring about change.

To remedy this situation, Federal and State whistle-blowing laws should be amended to protect government officials from retaliation who disclose information to the media if the whistleblower (1) reasonably believes that her allegations are accurate and that disclosure is necessary to avoid serious harm; and (2) has exhausted internal procedures unless she reasonably believes that disclosure would subject her to retaliation, or that the employer would conceal or destroy the evidence if alerted. This amendment will send a signal to government insiders that they are encouraged to report government wrongdoing to the press when necessary (evaluated under an objective standard) to prevent serious harm to the public. The harm in question can be physical (such as death, disease, or physical abuse), financial (such as loss of or damage to property), or psychological (such as invasion of privacy, or inducing terror). Lower level harms, such as injustice, deception, and waste, would under most circumstances not be sufficient to meet this standard. The requirement of reasonable belief about the accuracy of the claim will ensure that reckless whistleblowers are not protected. Finally, the requirement that the whistle-blower must first attempt to go through established channels before publicly revealing the information in question will preclude precipitous whistle-blowing or unnecessarily undermining the employer-employee relationship.

In sum, the government whistleblower who discloses information to the press should no longer be treated as an enemy of the state, but rather such a person is like the knock at the door that wakes one in a house on fire—unwelcome, but better than sleeping until the fire reaches the bed. For more on this issue, see my forthcoming article, “On Terrorism and Whistle-blowing,” to be published in the Case Journal of International Law (2007), available now at my SSRN site at: http://ssrn.com/author=372618

Michael P. Scharf Professor of Law and Director Frederick K. Cox Internaitonal Law Center

Case Western Reserve University School of Law

Thursday, March 15th, 2007 3:33 pm | Posted in: Law Blog | Trackback | 0 Comments
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“The Lucifer Effect”

by Michael Scharf

As President of the American National Section of the AIDP (International Association of Penal Law), it is my great pleasure to launch this new outlet for scholarly discourse with an essay that examines an issue at the very core of international criminal law.

This morning’s headline in the country’s most-read newspaper (USA Today, March 14, at 7D) asked “Do we all have a dark side?” Discussing psychologist Philip Zimbardo’s new bestseller, “The Lucifer Effect: Understanding How Good people Turn Evil” (Random House $27.95), the newspaper quoted a number of experts who agreed that “nearly everyone would treat others viciously or look the other way at abuse under certain conditions.”

A decade ago, this conclusion would not have seemed so self-evident. In 1996, the bestseller on point was Daniel Jona Goldhagen’s “Hitler’s Willing Executioners” (Knopf, $27.00), which hypothesized that the Holocaust was a product of the German people’s unique cultural predisposition to “eliminationist anti-Semitism.” Shortly after the publication of Goldhagen’s book, however, the modern war crimes tribunals for the former Yugoslavia, Rwanda, Sierra Leone, and Iraq, began to prove that the Holocaust was far from unique; rather human beings are universally capable of doing the things the Germans did.

What are the circumstances that can lure out the dark side of human nature and push us across the thin line between civilized conduct and barbarism? What transforms ordinary people into savages? Thirty years ago, Stanley Milgram and Philip Zimbardo each explored this question under laboratory-like conditions. Milgram’s famous experiment proved ordinary college students would subject other college students to painful shocks if encouraged by an authority figure and told the victims deserved it. Zimbardo’s experiment proved college students assigned to play the role of guards would, if unsupervised and undisciplined, begin to abuse other college students assigned to play the role of prisoners, resulting in Abu Ghraib-like misconduct.

The importance of the modern war crimes trials is that they have confirmed Milgram and Zimbardo’s findings in the real world. Through documents and witness testimony, the war crimes trials have shown us how provocation, incitement, and propaganda can raise hatred and fear to such an extent that ordinary people can turn on their neighbors in a bloodthirsty way. Throw in official sanction, coercion by persons in authority, pressure from assenting comrades, and opportunities for personal gain. Then add a long history of ethnic tension, and you have the ingredients for massive crimes against humanity.

Unfortunately, those ingredients exist in numerous countries. Consequently the questions raised by the savagery in the Balkans, Rwanda, Sierra Leone, and Iraq – how to preserve minority rights, when to recognize claims to self-determination, how to apply preventive strategies, and when to use force – are likely to confront us again and again in the coming years.

Michael P. Scharf Professor of Law and Director Frederick K. Cox International Law Center

Case Western Reserve University School of Law

Thursday, March 15th, 2007 3:29 pm | Posted in: Law Blog, International Criminal Law, International Humanitarian Law | Trackback | 3 Comments
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Italian Court Steps up to Convict Agrentine “Dirty War” Culprits

by Michael Kelly

A.P. is reporting today that five former members of Argentina’s military were convicted of murdering three Italians during what is known as the “dirty war” that occurred in Argentina in the 1970’s. Under the dictatorship of the junta, about 9,000 Argentines vanished, or “were disappeared” as the government undertook a brutal campaign of repression against leftist and other anti-government activists. International human rights groups put that figure at 30,000.

The Italian court ruled in the case against Jorge Eduardo Acosta, Alfredo Ignacio Astiz, Hector Antonio Febres, Antonio Vanek, and Jorge Raul Vildoza. The convictions for kidnapping, torture and murder garned them sentences of life imprisonment. All were tried in absentia according to Italian law. The first four are under arrest for related crimes during that period in Argentina, however, it remains unclear whether Buenos Aires will hand them over to Italian authorities. The fifth man, Mr. Vidoza, remains at large.

Although the validity of trials in absentia have been long debated, they are sometimes useful undertakings, as in this case, when the stories of the victims can be told with reasonable accuracy and the world’s attention can be brought to bear on the most heinous of crimes. The trial in absentia of Pol Pot for the unfathomable cimes of the the “killing fields” in Cambodia is another example. He later died, making a live trial impossible. This is the second time that Italian courts have ruled on the Argentine dirty war. Perhaps if more national courts conducted trials in this vein against the atrocities of tyrants and their lieutenants, fewer such crimes would be committed.

Thursday, March 15th, 2007 2:57 pm | Posted in: Law Blog, International Criminal Law | Trackback | 0 Comments
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David Scheffer

by David Scheffer

Mayer, Brown, Rowe & Maw/Robert A. Helman Professor of Law Director, Center for International Human Rights

Northwestern University School of Law

David Scheffer has joined Northwestern Law as a faculty member holding an endowed professorship and serving as the new Director of the Center for International Human Rights. He teaches International Human Rights Law and International Criminal Law. He was previously the U.S. Ambassador at Large for War Crimes Issues (1997-2001) and led the U.S. delegation in U.N. talks establishing the International Criminal Court.
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During his ambassadorship, Scheffer negotiated and coordinated U.S. support for the establishment and operation of international and hybrid criminal tribunals and U.S. responses to atrocities anywhere in the world. He also headed the Atrocities Prevention Inter-Agency Working Group. During the first term of the Clinton Administration, Scheffer served as senior adviser and counsel to the U.S. Representative to the United Nations, Dr. Madeleine Albright, and served from 1993 through 1996 on the Deputies Committee of the National Security Council.

Scheffer recently held visiting professorships at Northwestern Law, Georgetown University Law Center, and George Washington University Law School and taught earlier at Duke University School of Law and Columbia University School of International and Public Affairs. He has published extensively on international legal and political issues and appears regularly in the national and international media. He is a CNN Legal Analyst.

Scheffer is a member of the New York and District of Columbia Bars, the American Society of International Law (formerly serving on the Executive Council), and the Council on Foreign Relations, and is Chairman of the Board of Directors of the International Law Students Association.

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Sunday, March 11th, 2007 2:34 pm | Posted in: Law Blog | Trackback | 0 Comments
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David Crane

by David Crane

B.G.S., Ohio University M.A., Ohio University

J.D., Syracuse University

Distinguished Professor of Practice
Syracuse University College of Law

David M. Crane was appointed a distinguished professor of practice at Syracuse University College of Law in the summer 2006. He teaches international criminal law, international law, and national security law as well as the law of armed conflict. Additionally, he is a member of the faculty of the Institute for National Security and Counterterrorism, a joint venture with the Maxwell School of Public Citizenship at Syracuse University.

Prior to joining the College of Law, he was the Chief Prosecutor of the Special Court for Sierra Leone, an international war crimes tribunal, appointed to that position by the Secretary General of the United Nations, Kofi Annan, on 19 April 2002. With the rank of Undersecretary General, Professor Crane’s mandate was to prosecute those who bear the greatest responsibility for war crimes, crimes against humanity, and other serious violations of international human rights committed during the civil war in Sierra Leone during the 1990’s. Professor Crane was the first American since Justice Robert Jackson and Telford Taylor at Nuremberg, in 1945, to be the Chief Prosecutor of an international war crimes tribunal. The Office of the Prosecutor is located with the Special Court in Freetown, Sierra Leone.

Professor Crane served over 30 years in the federal government of the United States. Appointed to the Senior Executive Service of the United States in 1997, Mr. Crane has held numerous key managerial positions during his three decades of public service, to include a Senior Inspector General, Department of Defense, Assistant General Counsel of the Defense Intelligence Agency, and Waldemar A. Solf Professor of International Law at the United States Army Judge Advocate General’s School.

Professor Crane holds a Doctor of Law degree from Syracuse University, a Masters of Arts Degree in African Studies and a Bachelor of General Studies in History, summa cum laude, from Ohio University.

His numerous awards include the Intelligence Community Gold Seal Medallion, the Department of Defense/DoDIG Distinguished Civilian Service Medal, and the Legion of Merit. Professon Crane received a George Arents Pioneer Medal in June 2006 from Syracuse University. In 2005, he was awarded the Medal of Merit from Ohio University and the Distinguished Service Award from Syracuse University College of Law for his work in West Africa. Prior to his departure from West Africa, Professor Crane was made a Paramount Chief by the Civil Society Organizations of Sierra Leone.

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Wednesday, March 7th, 2007 9:59 pm | Posted in: Law Blog | Trackback | 0 Comments
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Linda Malone

by Linda Malone

Marshall-Wythe Foundation Professor of Law and Director, Human Rights and National Security Law Program
William & Mary, Marshall-Wythe School of Law

Degrees LL.M., Illinois J.D., Duke B.A., Vassar Areas of Specialization

Comparative Law–Middle Eastern and European; Comparative and Foreign Law; Criminal Law; Environmental Law; International Criminal Law; International Law; National Security Law; Property Law–Land Use and Zoning; Transitional Justice; Women and the Law.

Representative Professional Activities & Achievements
Linda A. Malone is the Marshall-Wythe Foundation Professor of Law and Director of the Human Rights and National Security Law Program at the College of William and Mary School of Law. She has been a Visiting Professor at the University of Virginia Law School, Washington and Lee Law School, Duke University, the University of Arizona, and University of Denver law schools, and has taught at the University of Illinois Law School and University of Arkansas Law School in Fayetteville. She is a member of the American Law Institute and the Environmental Commission of the World Conservation Union (IUCN), and serves on the Board of Directors for the International Society for the Reform of Criminal Law.

She is the author of numerous articles in a wide range of publications and has authored and co-authored twelve books on international law, human rights, and environmental law, most recently including Defending the Environment: Civil Society Strategies to Enforce International Environmental Law, published by Island Press. She has written law review articles, casebooks, treatises, study aids, university press books, mass-market publications, magazine and journal articles, and on-line publications. Her book, Environmental Regulation of Land Use, is the preeminent book in that field. She was also the Associate Editor of the Yearbook of International Environmental Law and has served on the Advisory Council to the National Enforcement Training Institute of the U.S. Environmental Protection Agency,Board of Visitors of Duke Law School, the Board of Directors of the American Agricultural Law Association, the Review Board of the Land Use and Environmental Law Review, and as chair of the agricultural law section of the American Association of Law Schools. She was a delegate to the United Nations Conference on the Environment and Development in Rio in 1992, co-counsel to Bosnia-Herzegovina in its genocide case against Serbia and Montenegro before the World Court, co-counsel to Paraguay in its challenge to the death penalty in Paraguay v. Virginia, and co-counsel for amicus in the Supreme Court in Padilla v. Rumsfeld and Hamdan v. Rumsfeld.

In 1998 she received the Fulbright/OSCE Regional Research Award for her work on women’s and children’s rights in Eastern Europe and in 2002 received a grant from the National Endowment for Humanities, State Department, and International Research and Exchange Board in continuance of her work. She received the Millenium Award of the Virginia Women’s Bar Association in 2000, presented to a professor, judge, and a practitioner for their contributions to women’s rights.

Professor Malone received her B.A. from Vassar, her J.D. from Duke, where she was Research and Managing Editor of the Duke Law Journal, and her LL.M. from the University of Illinois. Prior to joining the William and Mary faculty in 1988, she served as a law clerk for the Honorable Wilbur F. Pell, United States Court of Appeals for the Seventh Circuit, and practiced law in Chicago and Atlanta.

She recently served on the ABA’s Special Subcommittee on the Rights of the Child, which is working on passage of the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Child, on two committees of the National Academy of Sciences, and is the author of the water quality chapter of the 2005 report of the Congressionally created U.S. Ocean Commission. She is also on the Board of Advisors of Karamah, a non-profit organization of Muslim woman lawyers for human rights. She is a frequent speaker locally, nationally, and internationally, and a frequent commentator for newspapers and other media outlets.

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Wednesday, March 7th, 2007 9:58 pm | Posted in: Law Blog | Trackback | 0 Comments
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Mark Drumbl

by Mark Drumbl

Class of 1975 Alumni Professor of Law; Director, Transnational Law Institute
Washington and Lee University School of Law


B.A. 1989, McGill University; M.A. 1991, Institut d’études politiques de Paris/McGill University; J.D. 1994, University of Toronto, summa cum laude; LL.M. 1998, J.S.D. 2002, Columbia University.

Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington & Lee University, 2007– ; Visiting Professor, University of Ottawa, Faculty of Law (January 2007); Professor of Law and Director, Transnational Law Institute, Washington & Lee University, 2006-2007; Associate Professor of Law (with tenure), Washington & Lee University, 2004-2006; Visiting Fellow, University College, Oxford University (Michaelmas Term 2005); Visiting Associate Professor, Vanderbilt University, School of Law (September 2005); Visiting Scholar, Trinity College, University of Dublin (May 2006); Assistant Professor of Law, Washington & Lee University, 2002-2004; Ethan Allen Faculty Fellow, 2003-2007.

Research and teaching interests include international law, global environmental governance, contracts, international criminal law, transitional justice, transnational legal process, and comparative law. Professor Drumbl’s book, Atrocity, Punishment, and International Law (Cambridge University Press, 2007) examines theories of punishment and applied sentencing practices for perpetrators of mass atrocity. His articles have appeared in the NYU, Michigan, Northwestern, George Washington, Tulane, and North Carolina law reviews, a number of peer-review journals, including Human Rights Quarterly, with shorter review pieces in the American Journal of International Law and Columbia Journal of Transnational Law. He also has authored chapters in edited volumes and participated in numerous symposia. In 2005 his work received the AALS Scholarly Papers Prize and in 2003 the International Association of Penal Law (U.S. Section) Best Article Prize.

Prior to entering law teaching, Professor Drumbl was judicial clerk to Justice Frank Iacobucci of the Supreme Court of Canada. His practice experience includes international arbitration, commercial litigation, and he was appointed co-counsel for the Canadian Chief-of-Defense-Staff before the Royal Commission investigating military wrongdoing in the UN Somalia Mission. Professor Drumbl has served as an expert in ATCA litigation in the U.S. federal courts (expert for the plaintiffs in Almog v. Arab Bank, 2007 WL 214433 (E.D.N.Y., 2007)), as defense counsel in the Rwandan genocide trials, and has taught international law in Pakistan and Brazil. He also has taught at Columbia University, School of Law, as Associate-in-Law and at the University of Arkansas-Little Rock.

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Wednesday, March 7th, 2007 9:55 pm | Posted in: Law Blog | Trackback | 0 Comments
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Christopher Blakesley

by Christopher Blakesley

The Cobeaga Law Firm Professor of Law
William S. Boyd School of Law, UNLV

Professor Blakesley joined the Boyd School of Law faculty in 2002. Prior to his arrival here, he held the J.Y. Sanders Chair of International & Comparative Law at the Lousiana State University Law Center. He also has taught in Budapest, Hungary, Salzburg and Innsbruck, Austria, Amsterdam, Netherlands, Paris and Aix-en-Provence, France, and was tenured at the University of Pacific, McGeorge School of Law, where he taught from 1981-1986. Professor Blakesley received his B.A. and J.D. (Order of the Coif) from the University of Utah and his Doctorate from Columbia University (Dissertation: International Criminal Law). He received an M.A. in International Law and Diplomacy at the Fletcher School of International Law and Diplomacy. His books include The International Legal System: Cases and Materials (co-authored, Foundation Press 5th Ed. 2001 and earlier editions); Terrorism, Drugs, International Law and the Protection of Human Liberty; Terrorism and Anti-Terrorism: A Normative and Practical Assessment (2006); and Global Perspectives: Criminal Law (co-authored, Thomson West, 2006). Professor Blakesley teaches Public International Law, International Criminal Law, Criminal Law, Criminal Procedure, Comparative Criminal Law and Procedure, Comparative Law, Family Law, and Comparative Family Law.

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Monday, March 5th, 2007 8:56 pm | Posted in: Law Blog | Trackback | 0 Comments
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