Michael Scharf

• Juris Doctor
• Head of Faculty at Case Western Reserve University

During times of fundamental change, customary international law can form quite abruptly. Scholars have begun to call the paradigm shifts and tipping points that lead to rapid formation of new rules of customary international law ‘Grotian Moments.’ This chapter introduces the concept, explains its appellation, provides historic examples of its appli...

The Legacy of Ad Hoc Tribunals in International Criminal Law - edited by Milena Sterio February 2019

Cambridge Core - Public International Law - The Founders - edited by David M. Crane

International criminal justice indeed is a crowded field. But this edited collection stands well above the crowd. And it does so with dignity. Through interdisciplinary analysis, the editors skillfully turn shibboleths into intrigues. Theirs is a kaleidoscopic project that scales a gamut of issues: from courtroom discipline, to gender, to the defen...

In June 2010 in Kampala, Uganda, the states that are party to the Statute of the International Criminal Court agreed to amend the ICC Statute to add the crime of aggression to the Court's jurisdiction. One of the key compromises that made this possible was the adoption of a U.S.-proposed " understanding" which provided that the aggression amendment...

Introduction International law currently embodies universal and strongly articulated support for the positivist premise that “any acts of terrorism are criminal and unjustifiable, regardless of their motivation, whenever and by whomsoever committed and are to be unequivocally condemned.” The UN General Assembly reaffirms that “no terrorist act can...

This is the first book to explore the concept of ‘Grotian Moments’. Named for Hugo Grotius, whose masterpiece De jure belli ac pacis helped marshal in the modern system of international law, Grotian Moments are transformative developments that generate the unique conditions for accelerated formation of customary international law. In periods of fun...

Growing out of the author's experience as Special Assistant to the International Prosecutor of the Cambodia Genocide Tribunal in 2008, this article examines the concept of "Grotian moment," a term the author uses to denote a paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity an...

In the aftermath of the terrorist attacks of September 11, 2001, Professors Jack Goldsmith and Eric Posner published The Limits of International Law, a potentially revolutionary book that employs rational choice theory to argue that international law is really just “politics” and does not render a “compliance pull” on State decisionmakers. Critics...

Growing out of the authors' work for the International Criminal Court, which was sponsored by a grant from the Open Society Institute, No Way Out examines one of the most vexing legal questions facing the International Criminal Court - whether a State that has referred a case to the Court can subsequently withdraw its referral as part of a domestic...

The negotiations between the members of Security Council leading to the adoption of Resolution 780 were particularly acrimonious. First, they insisted that the resolution expressly refer to the new body as a ?Commission,? rather than a ?Committee? as the United Kingdom, France, and Russia desired. Its second goal was that the Commission be given au...

During the trial of Saddam Hussein evidence was largely ignored by media coverage. The media's focus on controversial judicial rulings, assassinations of defense counsel, resignation of judges, scathing outbursts, allegations of mistreatment, hunger strikes, and even underwear appearances ignored the fact that the Prosecution meticulously built a c...

Saddam Hussein. Derided as the Butcher of Baghdad, the Iraqi leader was toppled from power by a U.S. military invasion in 2003, charged with the most serious crimes known to mankind, and then brought to justice before a novel war crimes court known as the Iraqi High Tribunal (IHT). From October 2005 through July 2006, Saddam and seven of his henchm...

An Introduction: The Politics of International Law - Volume 102 - Andrea K. Bjorklund, Marinn Carlson, Michael P. Scharf

Proceedings of the American Society of International Law - Volume 102 - Andrea K. Bjorklund, Marinn F. Carlson, Michael P. Scharf, Sivan Yosef

Written by a consultant to the United Nation's newly established Cambodia Genocide Tribunal, "Tainted Provenance" examines one of the most important legal questions that will face the Tribunal as it begins its trials next year -- whether evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng t...

This piece, which will be published as a chapter in M. Cherif Bassiouni's three volume work, INTERNATIONAL CRIMINAL LAW (3rd edition, 2007), examines the creation and operation of the unique Scottish Tribunal in the Netherlands that prosecuted the Libyan intelligence officials accused of blowing up Pan American Flight 103 over Lockerbie in 1988. It...

At a Bio-Terrorism Conference at Case Western Reserve University School of Law on March 31, 2006, the government participants were asked what they would do if a superior instructed them not to disclose information to the public about the likely grave health affects of an ongoing bio-terrorist attack. In response, they indicated that they would be r...

During the eight month-long Dujail trial (October 2005-August 2006), Saddam Hussein, his seven co-defendants, and their dozen lawyers regularly disparaged the judges, interrupted witness testimony with outbursts, turned cross examination into political diatribes, and staged frequent walk-outs and boycotts. Drawn from the author's September 2006 lec...

After examining the drafting history of Article 14 of the UN Covenant on Civil and Political Rights, which lays down a defendant's right ‘to defend himself in person or through legal assistance of his own choosing’ — the relevant national and international case law and scholarly commentary — the author argues that the underlying purpose of the righ...

This is the transcript of a Mock Congressional Hearing regarding the NSA wiretapping controversy. The panel featured Ruth Wedgewood and David Cole testifying before a Senate Committee. The debate and discussion highlighted concerns touching on privacy, FISA, and the Fourth Amendment.

During the conflict in Sierra Leone thousands of women were abducted by rebel forces and forced to marry their captors. The Special Court for Sierra Leone responded to the victimization of these women by creating a new crime against humanity - the crime of forced marriage - under the statutory category other inhumane acts and issued the first ever...

In the spring and summer of 2003, the United States offered exile in lieu of invasion and prosecution to two rogue leaders accused of committing international crimes - Iraqi President Saddam Hussein (who declined) and Liberian President Charles Taylor (who accepted). In this essay, the author argues that the offer to Hussein was inappropriate, as i...

In a few months, the trial of Saddam Hussein and other former Iraqi regime leaders will begin before the Iraqi Special Tribunal (IST). The IST is a unique "internationalized-domestic tribunal" whose Statute and Rules of Procedure are modeled upon the UN-created Yugoslavia War Crimes Tribunal (ICTY), Rwanda Genocide Tribunal (ICTR), and the Special...

The destruction of the Taliban and Al Qaeda grip on power in Afghanistan has unleashed a torrid debate as to the proper means for bringing members of these organizations to justice for their terrorist crimes.

Scharf analyzes the validity of the US argument against the International Criminal Court's jurisdiction over the national of non-party states in the context of historic precedent and the principles underlying international criminal jurisdiction, and demonstrates that it is not the jurisdiction of the ICC over the nationals of nonparty states, but t...

The United States and its NATO allies have defended the air strikes against Yugoslavia on moral grounds (to stop atrocities) and security grounds (to prevent the conflict from spilling over to neighboring European countries), but curiously they have never articulated a legal justification for the intervention. The nearest the NATO countries have co...

In the summer of 1997, a member of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia met with Slavko Dokmanovic in Serbia in order to lure him into Croatia, where he was ultimately arrested by UN peacekeeping personnel, Dokmanovic was the subject of a sealed indictment for his role in the execution of 261...

While international criminal conventions are limited in their application, there is growing recognition of a duty for states to do something to give meaning to human rights.

Speakers:Leila Nadya Sadat, Henry H. Oberschlep Professor of Law and Director, Harris World Law Institute, Washington University St. Louis William Schabas, Director, Irish Centre for Human Rights, National University of Ireland Galway; Associate Professor, Middlesex University Michael P. Scharf, Professor of Law and Director, Frederick K. Cox Inter...

On January 31, 2001, the Scottish Court in the Netherlands rendered its verdict in the Pan Am 103 bombing trial. The court found one of the two Libyan defendants, Al Amin Fhima, not guilty and he was immediately returned to Libya where he received a hero's welcome. It found the other defendant, Abdelbaset al-Megrahi, guilty of murder and sentenced...

This article examines a vexing evidentiary question that the International Court of Justice has struggled with in several cases over the years, namely: what should the Court do when one of the parties has exclusive access to critical evidence and refuses to produce it for security or other reasons? In its first case, Corfu Channel, the Court decide...