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Part 4 focuses on the criminal prosecution of alleged pirates and armed robbers at sea. It discusses what substantive criminal norms the prosecution of acts of piracy and armed robbery at sea could be based. It attempts to distil the applicable jurisdictional basis from the complex mesh of international treaties potentially applicable to the various offenses typically committed in the context of piracy and armed robbery at sea. Thereby, it analyses whether the various counter-piracy Security Council Resolutions had an impact on the criminal prosecution of pirates and armed robbers at sea. In a next step, the different propositions and arguments as to the most suitable venue for the criminal prosecution of pirates and armed robbers at sea are then examined. For the time being, the majority of persons suspected of having committed acts of piracy or armed robbery at sea are prosecuted in regional States. The transfer of alleged offenders from States carrying out maritime enforcement operations in the Gulf of Aden and apprehending persons suspected for piracy or armed robbery at sea to regional States willing to prosecute them is a prerequisite for the commencement of any criminal proceedings. Thus, the legality of transfers of alleged pirates and armed robbers to regional States, especially in the light of the principle of non-refoulement, is a highly topical issue in the present context.

This chapter considers the growing relevance of prosecution in international law and outlines this historical development. With the increased emphasis on criminal matters, a critical question of contemporary international law concerns to which extend criminal prosecution is a necessary element of human rights protection. This issue is of high practical relevance considering the proclamation of amnesties, large scale impunity, and frequent flaws in criminal proceedings worldwide. The chapter looks at these phenomena and specifies the relevant legal issues. It also describes the methodology and course of analysis of the book.

In 1867, the Jamaica Committee finally mounted private criminal prosecutions for the alleged murder of George Gordon. The first was commenced in London against two of the military officers, Nelson and Brand, who had presided over the court martial of Gordon. The second prosecution was initiated in the Shropshire town of Market Drayton and against the former governor of Jamaica, Edward Eyre. Although both initiatives were frustrated by hostile grand juries and magistrates respectively before they went to trial, the litigation underscored the intersection of English law and English politics. The chapter traces how the prosecution and defence organized and strategized their cases to maximum political and legal effect.

In the spring of 1866, the Jamaica controversy returned as a focal point of English political debate, if now as part of a broader conflict over British democracy, the franchise, and the accountability of military and political officials to law. Under the unyielding leadership of John Stuart Mill M.P., the Jamaica Committee sought to use the Jamaica suppression to galvanize public support in England for the Second Reform bill and liberal constitutionalism. Mill and his allies promoted an alarmist view of the Jamaica affair: If George Gordon could be summarily executed under a declaration of martial law, did the same fate await John Bright and other radical reformers? Dissatisfied by the tepid response of Parliament to abuses of power at Morant Bay, the Jamaica Committee prepared to initiate, in England, a private criminal prosecution against Edward Eyre for the murder of George Gordon.

In some instances, state officials offer defendants substantial waiver rewards because they recognize that the evidence which they have is short of conclusive. It is thought better to secure some punishment of defendants than to risk trials at which they might be acquitted. This “half-loaf” defense of plea bargaining is the subject of Chapter 8. It is argued that principled prosecutors and judges would not seek to bypass fair procedures designed to protect the innocent. Principled state officials will thus eschew half-loaf plea bargaining. They will offer modest waiver rewards, proceed to trial if defendants refuse such offers, or drop charges for which there is insufficient evidence. The hard cases will be those in which state officials have inadmissible evidence which they are certain confirms the guilt of individuals with respect to serious crimes. These cases are examined at length.

This chapter examines the appropriate limit of deferred prosecution agreements (DPAs) in light of the serious dangers in using any principle of corporate criminal liability. It begins with an overview of the so-called “grand inversion” and the role that the Holder, Thompson, and McNulty memos played in exploiting this grand inversion against corporations. It then considers how the unconstitutional conditions doctrine should inform the question of what types of terms should be included in DPAs. It also discusses vicarious criminal liability and the corporate criminal prosecution against the now defunct Arthur Andersen and Co. It argues that the existing standard for corporate crime is too broad and that prosecutors exercise too much power over companies. The chapter concludes with a discussion of terms requiring corporations to take certain positions in political debates over questions of social policy.

This chapter traces the history of the shift from the popular ideal of criminal justice as a morality play to a speedy plea-bargaining machine, hidden and insulated from the public. Three major structural changes define this shift. First, while laymen used to investigate and control prosecution of crime, the professional criminal-justice bureaucracy has squeezed laymen out. Second, speedy, hidden plea bargaining has supplanted public trials and juries' common sense and moral judgment. Third, hidden imprisonment has displaced public punishment, keeping the public from seeing justice done.

The legal restraints on public power during the colonial and early national periods included criminal prosecutions of officeholders, which could be pursued by both by private citizens and public prosecutors. We have only episodic knowledge of American private criminal prosecutions and thus cannot confidently generalize about their characteristics, as the Supreme Court seems to have recognized in Robertson v. United States ex rel. Watson (2010). Even today, the law on both the state and federal levels is continuing to evolve. In contrast, ample data shows that public criminal prosecution of officeholders has long been common and well-accepted. This chapter provides some examples from both sides of the Atlantic from the sixteenth through eighteenth century (e.g. prosecution of: London sheriffs Skynner and Catcher for gross abuse of female prisoners; General Thomas Picton, former Governor of Barbados, for ordering torture of native female prisoner to secure confession; North Carolina Secretary of State James Glasgow for issuing fraudulent land warrant; New Hampshire officials for failure to perform statutory duties).

This chapter considers the legal relationship between the nation-state and a globalized world in two areas classically associated with the core performance of sovereign prerogatives: the punishment of crime and the waging of war. It uses the Pinochet affair to illustrate the projection of a paradigmatically internal legal power—the mounting of a criminal prosecution—across national borders into the world of foreign affairs. It also considers the Bush administration's “war on terror”, which represents the introversion of a classically external sovereign act—the waging of war—into domestic practice.

This chapter explores universal jurisdiction (UJ) as an avenue for prosecuting Bush administration officials. It begins with an overview of the nineteenth-century origins of the doctrine of UJ and its relationship to emergent norms of universal humanity and humane treatment. It then considers the right not to be tortured and how the practice of torture, a gross crime under international law, is linked to UJ and goes on to discuss the current state of investigations in Europe of alleged U.S. torturers. It also examines the politics of legal accountability, with particular emphasis on the political implications of either prosecuting or not prosecuting the authors of the United States' torture policy at home as well as the international ramifications if there is de facto impunity domestically as a result of no criminal prosecutions. The chapter concludes by stressing the superiority of UJ over either domestic or international jurisdiction as a basis for prosecutions of torture.

This book examines the contemporary debate over whether senior Bush administration officials should be investigated and prosecuted for authorizing domestic surveillance and the use of torture against “enemy combatants” during the war on terrorism. More specifically, it considers what the commitment to a rule of law demands when governments break the law, focusing in particular on the procedural, legal, political, and cultural issues of what it would mean either to pursue criminal prosecutions or to refuse to do so. The question, it argues, is not whether officials could be prosecuted but whether they should be prosecuted. In this introduction, the principal charges against the Bush administration and the factors that illuminate the question of how we should respond when governments break the law are discussed, along with the meaning of a rule of law, the role of emergency, the relation of a rule of law to international law, and the lessons of transitional justice.

This chapter outlines seven institutional challenges the International Criminal Tribunal for the former Yugoslavia (ICTY) has confronted and the solutions worked out so far. The first concerns the very method by which the Tribunal's procedures are established. A second major institutional challenge, or set of challenges, for the Tribunal has arisen from the length and complexity of its trials. A third important cluster of differences between ICTY cases and typical domestic criminal prosecutions arises from the difficulties of gathering evidence from distant countries that have only recently emerged from armed conflict — without the assistance of an effective police force, and frequently without the full cooperation of the governments in the region. A fourth institutional challenge faced by the ICTY has been the need to find a sensible combination of elements from different legal traditions. A fifth challenge facing the Tribunal is the task of construing the contours of a defendant's right to self-representation. A sixth live concern for our Tribunal is the problem of creating a coherent sentencing scheme, with sentences that reflect the gravity of the crimes committed without foreclosing the chance of rehabilitation. The last institutional challenge concerns the Tribunal's eventual demise.

Chapter Six asks whether we have done everything possible to keep Americans safe at work. The answers to that question are a discussion of common sense reforms that if implemented will make Americans safer at work. But, anticipating the anti-regulatory arguments from self-described free marketers, Chapter Six first rebuts these arguments championed by conservative think tanks like the Cato Institute and the Mercatus Center, and funded by Charles and David Koch, among others.Thereafter, Chapter Six discusses how reforming the workers compensation system, enhancing the penalties and criminal provisions in the OSHAct, criminally prosecuting employers like Don Blankenship, regulatory reform and more local worker safety laws will help keep Americans safer at work.

This chapter reviews the due process protections afforded to noncitizens in criminal proceedings and the impact of current practices on immigrant communities. It discusses two examples: the federal criminal prosecutions of undocumented workers in Postville, Iowa, and the related experiences of criminal defense attorneys in Arizona helping noncitizen defendants. It shows that noncitizens without immigration status often carry a sense of guilt arising from their unlawful status, which affects their choices and interactions with criminal courts. This sense of guilt is amplified by inequalities in charges, punishment, and redemption in criminal proceedings. Noncitizen criminal defendants are not the only ones suspicious of the criminal justice system; the recent upsurge of immigration enforcement has led to an increased distrust of the U.S. justice system by immigrant communities in general. Latino confidence in the criminal justice system has declined as policies that fuse criminal and immigration laws grow. For these reasons, both attorneys and the courts must be sensitive to preserving the due process rights of vulnerable populations including noncitizens. The recent Padilla v. Kentucky decision supporting noncitizens' right to meaningful representation will bolster the trust of noncitizens in legal institutions by requiring attorneys to acknowledge the primacy immigration status plays in the decision making of noncitizen criminal defendants.

This chapter argues that the rule of law can only be vindicated by a criminal prosecution of Bush administration officials. It first considers how we should understand the relationship among the Bush administration's public rhetoric condemning torture, its private internal efforts to justify its own use of harsh interrogation methods to itself, and its actual practices. It then examines what bearing this relationship would have on whether officials who authorized such techniques should be subject to prosecution. It also articulates the basic argument in favor of a societal “publicity condition” with respect to legal rules and goes on to discuss the gap between the publicly announced commitment to democracy and human rights, on the one hand, and the actual policies used to govern, on the other. Finally, it assesses the implications of President Barack Obama's refusal to prosecute Bush administration officials for the rule of law and the United States's attempt to secure international cooperation in the war on terror.

This chapter explores how the rule of law confers immunity to government officials who violate the law. It considers the ways in which Bush administration lawbreakers have been using, and will continue to use, resources furnished by the law itself to reduce their criminal and civil liability. It argues that the rule of law is not an effective constraint on official misconduct such as torture and that pursuing a criminal prosecution would have the perverse effect of allowing Bush administration officials to claim that they have been legally exonerated. It also discusses the misuse of law by inveterate lawbreakers as a domestic version of “lawfare” and concludes with an analysis of the role of organizing complicity or “risk spreading” in obstructing criminal prosecution of former Bush officials.