Tag Archive for jurisdiction

How well do the thoughts and intentions of the Framers of the Constitution on responsibility for national security still hold up today?

(C) Kapok Tree Diplomacy. Apr 2012. All rights reserved. Jeff Dwiggins

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The Framers for their part did have a lot to say about the delineation of powers in these areas. The Constitution is a good place to start in determining how those powers are enumerated and what limits if any apply to them. Madison

The Fourth Amendment to the Constitution says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Passed 12/15/1791).

The Fourteenth Amendment to the Constitution says:

“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Passed 7/9/1868)

These amendments lay out the case for citizens’ right to privacy and limits on government instrusion in this matter without spelling out what constitutes “unreasonable.” Thus, if the President can save millions of lives by wiretapping a suspected terrorist under FISA, is this “reasonable?” Read more

The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy

“The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy” by Kapok Tree Diplomacy

PREVIEW      Written in August 2010

Section One – History, Structure and Mandate of the ICC

Background.  The United States has supported bringing human rights violators to justice for many decades. After World War I, the Allies charged Kaiser Wilhelm II of Germany in the Versailles Treaty with “a supreme offense against international morality and the sanctity of treaties,” a first in holding a head of state accountable for his actions (Feinstein & Lindberg 23). The Nuremberg and Far East tribunals affirmed “individual culpability for crimes against peace” following World War II by indicting several senior officials in a multinational setting (Fletcher 235).  The UN General Assembly subsequently charged the International Law Commission (ILC) in 1948 with drafting a statute for an international criminal court (Murphy 4). Read more

International Law’s Expansion into Individual Affairs: A Tug of War over Tradition, Jurisdiction and Universal Human Rights

Introduction – (C) Kapok Tree Diplomacy, July 2010, All rights reserved. Jeff Dwiggins, author.

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As international law extends beyond traditional state-to-state interactions into matters directly involving the rights and wrongs of individuals, its pervasive encroachment directly collides with domestic law on important issues of supremacy, customary norms, jurisdiction, human rights and sovereign immunity. Courts often struggle to navigate the chasm between the two realms of international and domestic law and produce cogent, universally accepted decisions that fall within uncontested limitations and clear jurisdictions.

This paper will explore the challenges, benefits and trade-offs of a non-traditional application of international law in cases involving individuals where the dynamics of tradition, jurisdiction and human rights interact in overlapping spheres of domestic and international law, producing a compelling tug of war between competing interests.  I’ll begin by examining the issue of international and universal human rights.

The posts, views and opinions expressed on this site are completely my own and do not represent the views or opinions of the Department of Defense (DoD), the Department of the Navy (DON) or any of the Armed Forces.

Section One – International Human Rights v. The Interests of States

The Preamble of the United Nations (UN) Charter calls upon member states to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,” while Articles 55 encourages member states to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (“Preamble” and “Chapter IX”). A thorough reading of the Charter, however, doesn’t uncover any definition or mandate for human rights which has complicated a universal embrace of uniform standards for human rights. Read more