forthcoming scholarship

* forthcoming scholarship

“Terrorism and Profiling: Shifting the Focus from Criteria to Effects”

Cardozo Law Review, Vol. 29, No. 1-9, 2007

DAPHNE BARAK-EREZ, Tel Aviv University – Buchmann Faculty of Law
Email: barakerz@post.tau.ac.il

The article evaluates the proposal made by Heymann and Kayyem in their book Protecting Liberty in an Age of Terror to replace the practice of ethnic profiling by nationality-based profiling. It argues that in many circumstances this proposed alternative is not less offensive than ethnic profiling, especially when there is high correlation between ethnicity and nationality, and that at the same time it is does not prove to be an effective alternative in many other circumstances, especially in the context of immigration countries. Ultimately, the article proposes a shift in the focus of the debate on profiling from the controversy around the legitimate criteria for profiling to the context in which profiling is used and the kind of decisions to which it applies. The argument in this regard is that profiling is criticized also because it was used in the context of decisions with long-lasting effects on people’s lives – for the purpose of completely denying people an entrance to a country or for detaining them (in the Korematsu example). Therefore, rather than focusing only on the question of the criteria used for profiling, it would be better also to ensure that profiling is used only with regard to enforcement decisions that do not have long-lasting effects on the lives of innocent people.

“The Institutional Logic of Preventive Crime”

Stanford Public Law Working Paper No. 1272235

MARIANO-FLORENTINO CUELLAR, Stanford Law School
Email: tcuellar@stanford.edu

Criminal justice plays a major role in regulating undesirable conduct. As part of that role, the system relies on deterrence, incapacitation, and the shaping of social norms and preferences in an effort to prevent conduct considered harmful. But that preventive role is routinely misunderstood. This paper rethinks preventive enforcement by training attention on the relationship between criminal law and the institutional realities affecting risk regulation in environmental, health, and national security regulation. First, while not denying a host of problems with the expansive reach of criminal enforcement, the article describes how the structure of criminal enforcement does not draw particularly stable or convincing lines excluding risk regulation from its domain. Distinctions between administrative regulation and criminal enforcement therefore blur on the issue of whether preventing harm and regulating risks are crucial goals, but remain important with respect to matters such as type of sanction available (a commonly appreciated distinction) and type of agency used for enforcement (a less-commonly appreciated distinction).

Second, the analysis trains attention on preventive enforcement in a world where social regulation faces a variety of institutional constraints and where multiple political dynamics drive expansive criminal liability. In such a world, a coercive and costly darker side of criminal justice coexists with the socially-valuable institutional characteristics of law enforcement organizations. As examples from food and drug regulation, environmental policy, and national security demonstrate, the mix of unique sanctions and procedural constraints associated with criminal enforcement have distinct institutional effects on public agencies. Specifically, the criminal justice system is capable of fostering a measure of autonomy that often eludes conventional regulatory agencies, provides incentives for investigative competence, and creates contextual effects in the choice of sanctioning regime, allowing politicians to signal the national state’s competence to a potentially skeptical public.

This perspective does not necessarily legitimize all preventive criminal enforcement. Instead, three major implications follow from the analysis. (1) Policymakers should rethink the unfavorable comparisons of law enforcement to intelligence agencies in the national security context. (2) Society should recognize that circumscribing preventive criminal liability has subtle and underappreciated costs for regulatory policy. (3) Scholars should better appreciate the interdependence between legal mandates and the evolution of organizations. By ignoring or minimizing the importance of criminal enforcement’s distinctive institutional structure, however, scholars and policymakers have often misconceived the central role of criminal enforcement agencies in advanced industrialized states, providing policy prescriptions that are at best incomplete and at worse perverse and highly problematic.

“Legitimacy of Insurgents in International Law”

Belgian Review of International Law, 2009

JEAN D’ASPREMONT, University of Leiden – Faculty of Law, University of Louvain
Email: j.daspremont@law.leidenuniv.nl

At first glance, the question of the legitimacy of rebels in international law may sound a bit awkward if not utterly absurd. Indeed, rebels are classically identified by opposition to the legitimate governments. This means that their illegitimacy is a constitute element of their status of insurgent. In other words, they are deemed rebels because they violently oppose the legitimate government. Moreover, it is not entirely certain the question of legitimacy, as a whole, is an issue to be taken up by international legal scholars. However, there still are a few hypotheses where a test of the legitimacy of the rebels is carried out in practice, the result of which impinges on the application of international law. It is the aim of this paper to grapple with these few exceptional situations where the legitimacy of the rebels is examined. To that end, a distinction is drawn between separatist rebellions, political rebellions and the situation of failed States.

“East Meets West in Anti-Money Laundering and Anti-Terrorist Finance: Policy Dialogue and Differentiation on Security, the Timber Trade and Alternative Banking”

Asian Journal of Criminology, Vol. 3, No. 1, pp. 91-110, November 2007

NICHOLAS DORN, Erasmus University Rotterdam – School of Law, School of Social Sciences, Cardiff University
Email: dorn@law.eur.nl
MICHAEL LEVI, University of Wales System – Cardiff University
Email: Levi@cardiff.ac.uk

This paper compares and contrasts South East Asian and European Union countries’ perceptions of the priorities for anti money laundering (AML) and anti terrorist finance (ATF) in relation to three industries: security goods and services; the timber trade; and ‘informal’ value transfer and banking services. It might be expected that all countries would equally support each of these aspects of AML/ATF policies, without differentiating between the industries generating the proceeds. As this paper will show, however, historical experiences, contemporary political relations and patterns of trade shape countries’ approaches, resulting in distinctive enthusiasms and reservations. In a nutshell, the EU points most strongly to products and services originating in Asia as posing AML/CTF risks, and locates primary responsibility for monitoring and control as falling within Asia – a projection of risk and responsibility that is reciprocated by Asian countries. Asian countries perceive a need for tighter control of dangerous products exported by the west, for example, small arms and light weapons, and of related money laundering circuits. Asian and European policy makers increasingly articulate concerns over illegal logging and related laundering, however European importers and their governments see responsibilities for this as falling primarily within Asia. Finally, the EU (like the US) perceives high levels of laundering risk in ‘informal’ value transfer/banking services, in which Asian-run businesses have a global competitive advantage. For the future, as the international balance of trade shifts, and as Asia increases its influence in international fora including those concerned with AML/CTF, so the region’s policy preferences may be expected to carry more weight.

“Power to the Edge? New Threats, New Responses”

2008 Global Strategic Assessment, Institute for National Strategic Studies, National Defense University

K. A. TAIPALE, Center for Advanced Studies in Science and Technology Policy
Email: ssrn@advancedstudies.org

Enabled by modern network technologies, power is “shifting to the edge”, allowing decentralized networked groups to compete with traditional hierarchical organization forms. The globalization of communications and computing infrastructure (together with new collaborative software) is allowing hostile non-state groups – including terrorists, criminal organizations, rogue corporations, anti-globalization movements, pernicious hackers, and proxy groups acting on behalf of or “encouraged” by other nation states or these other entities – to directly threaten national security and international stability. Increasingly, existing security arrangements and practices based on rigid geographic borders, exclusive sovereign control of physical territory, and unilateral response to global threats by individual nation states are inadequate to counter these groups effectively.

This essay provides a brief overview of these technology-enabled trends and their implications for current international and domestic security arrangements, and suggests how counter-forces might themselves adopt new strategies to meet these threats. In particular, this essay suggests that future national defense strategies should increasingly incorporate a decentralized, multilateral “public health model” for security against unknown threats based on local monitoring for emerging global threats, swarming global response resources to counter manifest threats, and developing robust resilience and shared recovery capabilities to withstand and recover from unexpected or spontaneous attacks.

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