The ICC commenced the public hearing for the confirmation of charges against Thomas Lubanga Dyilo on November 9, scheduled to end on November 28. If the Pre-Trial Chamber confirms the charges brought against Dyilo, then there will be subsequent proceedings. Dyilo is being charged for war crimes in the Democratic Republic of Congo, including the conscription of children under the age of fifteen. Legal representatives of the victims will make opening statements at the hearing, which notably marks the â€œfirst time in international criminal law that victims have been able to participate in the proceedings.â€
On Tuesday, November 14, Radovan StankoviÄ‡ was sentenced by the Court of Bosnia Herzegovina to 16 years’ imprisonment for rapes and other crimes against humanity. The Court found that StankoviÄ‡ held a number of Bosnian women and girls captive so that Serb soldiers and other Serb men could sexually assault them. This case was the first to have been transferred to a national court from the International Criminal Tribunal of Yugoslavia as part of the Tribunalâ€™s completion strategy where cases and expertise are transferred to the judiciaries in the region.
On November 15, the European Court of Human Rights began hearings in the case of Saramati v. France, Germany and Norway. Between April 2001 and October 2002, Mr. Saramati, a Kosovar of Albanian origin, was detained by orders of UNMIK and KFOR officers who were of French, German or Norwegian nationality. He was convicted of attempted murder but his conviction was later quashed by the Supreme Court of Kosovo and a re-trial was ordered. Mr. Saramati claims that France, Germany and Norway violated several provisions of the European Convention of Human Rights related to life and security on one hand and to fair trial on the other. More information is available here.
On November 15, the European Court of Human Rights began hearings in the case of Behrami v. France. Mr. Behrami, a Kosovar, alleges Franceâ€™s responsibility for the death of one of his sons and for serious injuries suffered by his second son. Both events occurred in 2000 while the two children were playing with unexploded cluster bombs, dropped during the NATO bombing raids of 1999. During the operation France was in command of multinational forces operating in the sector. More information about the case is available here.
One of the most noteworthy developments in transnational copyright law over the past twenty years has been the adoption of statutory moral rights regimes in a number of countries that had previously ardently rejected the civil law concept of moral rights as completely alien to their legal tradition, including the United States, the United Kingdom, Australia, Ireland, and New Zealand. The standard scholarly reaction to these developments is to ask what they mean for the two classic questions of comparative moral rights law, namely whether the common law countries fulfill the requirements for moral rights protection under international law and whether the common law countries provide a degree of protection comparable to that available in civil law countries. In this context, the enactment of statutory moral rights appears to be simply another factor to be considered when measuring the substantive level of moral rights protection in the United States, just as the Supreme Court’s recent Dastar decision, the copyright management information provisions of the Digital Millennium Copyright Act of 1998, or the Family Movie Act of 2005 are factors in this type of analysis. However, among these factors, the recognition of specific moral rights as part of copyright law is particularly significant, because it symbolizes a fundamental break with the traditional conception of moral rights in common law countries.
After all, it had been a canon of comparative copyright scholarship that the most significant difference between Anglo-American and Continental European copyright law was their respective attitudes toward moral rights. The inclusion of moral rights in statutory copyright law was generally understood to be the defining feature of the Continental copyright tradition, while the lack of statutory moral rights protection was considered to be a crucial component of the Anglo-American copyright tradition. This dichotomy had been celebrated and cultivated since World War II on both sides of the Atlantic to the point where the statutory protection of moral rights or the lack thereof had become an integral part of each legal system’s identity, essentially dividing the world of copyright into two fundamentally different ideal types, one that includes moral rights, and another that excludes moral rights. The common law courts were fully aware of this dichotomy, and while they recognized the existence of the concept of moral rights in civil law countries, they uniformly rejected its applicability in their own jurisdictions. Against this background, the adoption of civil-law-style moral rights legislation is a major shift in terms of copyright theory, because it eliminates the key feature that distinguished common law from civil law copyright systems. The fact that the law of moral rights is a field in which the United States is an importer rather than an exporter of legal concepts makes this shift all the more noteworthy in times in which it is typically the law of the United States that is received in other countries, especially in intellectual property law.
This Article is a study of the now dominant mode of conceptualizing moral rights as inalienable rights of authors in their works. My purpose is to use comparative law to enhance our understanding of this particular concept of moral rights and to assess the effects of the recent wave of moral rights legislation in the United States and other common law jurisdictions on the substantive level of protection available to authors. More specifically, my claim is that, if the goal was to increase the overall protection of authors, it was a step in the wrong direction for the common law countries to adopt the civil law concept of moral rights, because the statutory moral rights regimes that were enacted in the United States and the United Kingdom have likely reduced rather than increased the aggregate level of authorial protection.
My analysis will proceed in four steps. Part I presents and illustrates the orthodox theory of moral rights by drawing upon the statutory moral rights regimes of France, Germany, and Italy, the strongholds of the Continental moral rights tradition. Part II disaggregates the civil law concept of moral rights into the concrete decisional rules of which it consists in order to create a reliable basis for comparison across different moral rights systems. Part III compares the moral rights orthodoxy to the conceptual alternatives traditionally used in countries which did not subscribe to the standard concept of moral rights until recently. My analysis will focus on the United States and the United Kingdom as two major representatives of the common law tradition and on Switzerland as an example of a civil law country that resisted the adoption of the Continental moral rights doctrine for decades. Part IV evaluates the effects of the newly enacted statutory moral rights regimes on the overall protection of authors in the United States and the United Kingdom.
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Review of The Dark Sides of Virtue: Reassessing International Humanitarianism. David Kennedy. Princeton University Press: Princeton, N.J., 2004. Pp. 400. $29.95 (cloth).
In The Dark Sides of Virtue: Reassessing International Humanitarianism, Professor David Kennedy asks how the many devoted, resourceful, and well-intentioned individuals who make up the international humanitarian community can so often fail in their most basic goals. According to Kennedy, humanitarianism has many unintended costs stemming from the failure of humanitarians to acknowledge their increasing influence on international policymaking. Government officials and political actors recognize that they ultimately bear responsibility for the consequences of their policies, and, therefore, they pragmatically consider the risks and potential costs of their actions as well as the benefits. Humanitarians have traditionally seen themselves as outsiders with respect to global “rulership” and thus do not feel the same accountability for their actions. In addition, humanitarians often mistakenly assume that because their actions are well-intentioned, they will have only benefits. Kennedy argues that if humanitarians identified with their power in global governance, they would engage in pragmatic cost-benefit analysis more often and avoid many of the dark sides of humanitarianism. Although Kennedy offers few concrete solutions, his broad exploration of the problem through his own experiences is thought provoking and compelling. Kennedy’s goal is to provoke the human rights community to engage in the type of self-critical, pragmatic thinking that might reduce, if not eliminate, the costs of humanitarian action. The result is a challenging, engaging, and complicated book that may well have the desired effect.