Nuremberg: Procedural due process at the International Military Tribunal

<p>For over sixty years, lawyers and historians have discussed the credibility and repercussions of the Nuremberg Trial (1945–1946). This paper argues that the defendants’ procedural due process rights were partially protected at Nuremberg, although there were gross breaches of particular fundamental due process rights. The Nuremberg Trial at the International Military Tribunal was conducted by the four Allied Powers to try the upper echelon Nazi war criminals following the Second World War. The London Charter, drafted by the Allies, outlined the trial procedure to be adopted, and provided certain guarantees in attempt to secure a fair trial for the twenty-two defendants. This paper examines the history of fundamental due process rights (recognised in both continental Europe and common law jurisdictions) and analyses the extent to which these rights were breached at Nuremberg. This paper further argues that despite the defendants being afforded more rights than they could have expected given the circumstances, such breaches significantly compromised the integrity of the trial.</p>

Nuremberg: Procedural due process at the International Military Tribunal

<p>For over sixty years, lawyers and historians have discussed the credibility and repercussions of the Nuremberg Trial (1945–1946). This paper argues that the defendants’ procedural due process rights were partially protected at Nuremberg, although there were gross breaches of particular fundamental due process rights. The Nuremberg Trial at the International Military Tribunal was conducted by the four Allied Powers to try the upper echelon Nazi war criminals following the Second World War. The London Charter, drafted by the Allies, outlined the trial procedure to be adopted, and provided certain guarantees in attempt to secure a fair trial for the twenty-two defendants. This paper examines the history of fundamental due process rights (recognised in both continental Europe and common law jurisdictions) and analyses the extent to which these rights were breached at Nuremberg. This paper further argues that despite the defendants being afforded more rights than they could have expected given the circumstances, such breaches significantly compromised the integrity of the trial.</p>

Meeting the Challenge of the Preventive State: Due Process Rights and the Terrorism Suppression (Control Orders) Act 2019

This article focuses on the control order regime introduced by the Terrorism Suppression (Control Orders) Act 2019 and its implications for due process rights. Control orders are formally civil, and so the heightened criminal procedural protections in the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights) ostensibly do not apply. But the simplicity of the criminal–civil binary belies the hybridity of control orders. In this respect, control orders capture in microcosm the larger policy shift towards a "preventive state" which, rather than relying on ex post facto denunciation, pre-emptively incapacitates threatening individuals before they commit harm. This article assesses how we should deal with control orders' hybridity. It suggests that on the basis of current authority, control orders would not attract the criminal procedural protection in s 25 of the NZ Bill of Rights. Instead, they will be governed by s 27(1), which secures a right to natural justice. It then critically assesses this result. Drawing on the work of Andrew Ashworth and Lucia Zedner, it canvasses four possible approaches to control orders. It argues that, in order to facilitate engagement with their distinctive and problematic features, control orders ought to be distinguished from punishment and dealt with under other provisions of the NZ Bill of Rights. This should stimulate discussion about the kind of procedural protections that are appropriate to safely balance the liberty interests of the subject against legitimate security concerns.

Part VII The Future of Emergency Arbitration, 12 The Future of Emergency Arbitration

This chapter explores the future of emergency arbitration. Emergency arbitration has been a welcome and beneficial addition to international arbitration, and achieved a great deal in a relatively short time. Yet the relative infancy of emergency arbitration is not a justification to delay consideration of needed reforms. The procedure has been tried and tested, and there are some identifiable shortcomings. Amidst the rapid proliferation in Emergency Arbitration Rules, and the striking similarities in the approaches adopted across Emergency Arbitration Rules, there is a risk that certain shortfalls in the procedure have been overlooked. The chapter then considers reforms which may be needed, both to arbitration rules and to arbitration laws, to improve the utility of the procedure. Such reforms have the potential to increase efficiency, reduce the scope for abuse of the procedure, protect and balance parties' due process rights against the demands of urgency, and safeguard the enforceability of emergency arbitrator decisions. Such reforms will also ensure the longevity of emergency arbitration by providing greater certainty and predictability for international arbitration users.

The Missing Algorithm: Safeguarding Brady Against the Rise of Trade Secrecy in Policing

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck. This Note offers three contributions. First, it explains the use of algorithms in law enforcement and the intertwined role of trade secrecy protections. Second, it shows how trade secrecy clashes with the Due Process Clause—the Constitution’s mechanism for correcting the power asymmetry between the state and the defendant—and argues that due process should not waver simply because a source of evidence is digital, not human. Third, it proposes a solution that better balances a defendant’s due process rights with intellectual property protections.

The European Court of Human Rights on the ‘Access to a Lawyer’ Directive 2013/48/EU: the Quest for a Coherent Application of the Right to a Legal Assistance in Europe?

The right to a custodial legal assistance has always been considered a key procedural guarantee in criminal proceedings, which allowed for the effective realisation of other ‘due process’ rights of the suspected or accused person. The ‘Access to a lawyer’ Directive 2013/48/EU is one of the outcomes of the massive legal reform which followed the famous Salduz ruling (2008), where the European Court of Human Rights (ECtHR) prominently stated that the accused shall be provided with assistance of counsel since the initial stages of police interrogation. At the same time, scholars have not paid attention to the possible effects of Directive 2013/48/EU on the practice of the Strasbourg Court. The aim of this paper is to shed light on the way the ‘Access to a lawyer’ Directive is perceived by the ECtHR, given the incredible uncertainty surrounding this issue. The author argues that - paradoxically - the Directive text seems to have had significant impact on the Ibrahim, Simeonovi, Beuze lines of reasoning, framing possible derogations from maximum guarantees of access to a lawyer stemming from the earlier Salduz judgement. Even though the ECtHR tends to avoid direct analysis of the Directive 2013/48/EU provisions, it seems to have accepted the lowest level of protection provided by this EU Law act. This could be rather problematic for the non-EU Convention signatories’ criminal justice systems, being encouraged to follow the standard of procedural guarantees stemming from the EU legal order - which these states preferred not to join (or were not allowed to join).

Denying Due Process While Promoting Democracy: The Iraqi Detention Story

During times of military occupation following an armed conflict it is not uncommon for the victors to implement mass detention programmes aimed both at providing security and bringing criminals to justice. International human rights regimes serve as overarching guidance for these programmes but are subject to broad interpretations, so it is often unclear what regulations or laws should inform day-to-day operations. Military and civilian lawyers may find themselves practising in a foreign jurisdiction for which they have no training or experience, let alone licensure. Law enforcement officers and military police are forced to adapt long-held practices to a new environment. Questions arise as to the rights that detained individuals possess, as these programmes frequently combine rules from different legal systems with no clear authoritative hierarchy. Attention is focused on the treatment of detained individuals with far less emphasis placed on their due process rights or other fundamental legal freedoms. This article examines one such instance, the US detention programme in Iraq, and highlights the numerous ethical and professional conflicts presented when members of one justice system are transplanted into another without proper preparation and background.

Coerced Removal from the Great Depression through Operation Wetback

This chapter analyzes how and why voluntary departure and anti-immigrant fear campaigns became the dominant mechanisms of expulsion during the middle decades of the twentieth century. It also reviews how and why immigration officials came to target Mexicans through a fine-grained analysis of the repatriations of the 1930s and Operation Wetback of the mid-1950s. It looks into the voluntary departures between 1927 and 1964 that outnumbered formal deportations nearly nine to one, representing more than 90 percent of the nearly 6.4 million expulsions the federal government recorded. The chapter discusses the coercive mechanisms that enabled authorities to unilaterally execute mass expulsions on an unprecedented scale and on a shoestring budget, bolstering institutional legitimacy within the growing federal bureaucracy. It also describes the effective denial of due process rights to citizens and noncitizens and infliction of trauma on individuals, families, and communities.