Closing International Law’s Innocence Gap

Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a gap in national criminal legal systems: the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations facilitated by the growth of national innocence organizations that increasingly collaborate across borders. It is striking that these developments have occurred with little direct help from international law. Although many treaties recognize extensive fair trial and appeal rights, no international human rights instrument—in its text, existing interpretation, or implementation—explicitly and fully recognizes the right to assert a claim of factual innocence. We label this omission international law’s innocence gap. The gap appears increasingly anomalous given how foundational innocence protection has become at the national level, as well as international law’s longstanding commitment to the presumption of innocence, fair trial, and other criminal process guarantees. We argue the time has come to close this innocence gap by recognizing a new international human right to assert post-trial claims of factual innocence.

* L. Neil Williams, Jr., Professor of Law, Duke University School of Law and Director, Wilson Center for Science and Justice, Duke University School of Law.                 

† Harry R. Chadwick, Sr. Professor of Law, Duke University School of Law and Permanent Visiting Professor, iCourts: Centre of Excellence for International Courts, University of Copenhagen.                            

‡ Clinical Professor of Law, Director, International Human Rights Clinic, Duke University School of Law.   


“Trade in Force”: The Need for Effective Regulation of Private Military and Security Companies – Note by Stephanie M. Hurst

From Volume 84, Number 2 (January 2011)

On September 16, 2007, allegedly without any provocation or justification, personnel from the security firm formerly known as Blackwater Worldwide1 fired into Baghdad’s crowded Nisoor Square and killed seventeen Iraqi civilians. To date, neither the firm nor its employees have been held accountable for this incident. Moreover, a report issued by a U.S. House of Representatives oversight panel in October 2007 indicated that “Blackwater employees had been involved in at least 196 firefights in Iraq since 2005, an average of 1.4 shootings per week.” The report also stated that in 84 percent of these incidents, Blackwater personnel were the first to fire even though, by contract, they were allowed to fire only in self-defense.

Unfortunately, Blackwater is neither the first nor the only security firm to commit human rights abuses. In the late 1990s, personnel from another security firm, DynCorp International, allegedly bought women and girls as sex slaves while deployed in Bosnia. The only punishment rendered on the personnel responsible for these human rights abuses was the termination of their employment contracts. Moreover, despite these allegations, the firm later received a contract in Iraq worth $250 million.



Fighting for Asylum: A Statutory Exception to Relevant Bars for Former Child Soldiers – Note by Dani Cepernich

From Volume 83, Number 5 (July 2010)

Over the past decade, the tragedy of child soldiers has attracted increased attention. Much of the world, including the United States, has recognized the toll that this practice takes on the youth of our time and has dedicated itself to preventing the further use of child soldiers. In December of 2002, the United States became a party to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (“Optional Protocol”) and joined forty-four other states in the fight against the use of child soldiers. As a party to this protocol, the United States has committed itself to taking “all feasible measures to . . . accord to [persons within its jurisdiction recruited or used contrary to the protocol] all appropriate assistance for their physical and psychological recovery and their social reintegration.” 

Despite this commitment, child soldiers are often denied asylum in the United States because of acts they were forced to commit while serving in foreign armed forces. The United Nations’ Committee on the Rights of the Child addressed this issue in its first review of the United States’ compliance with the Optional Protocol, in which it criticized the United States’ asylum law as applied to former child soldiers. The United States’ asylum law currently includes several potential obstacles for former child soldiers seeking asylum, two of the most prevalent of which are the “persecution of others” bar and the “material support” bar. If the United States is to come into compliance with the Optional Protocol, something must be done to provide greater protection under asylum law to former child soldiers.



“[J]udicial [I]mperialism”? The South African Litigation, The Political Question Doctrine, and Whether the Courts Should Refuse to Yield to Executive Difference in Alien Tort Claims Act Cases – Note by Marissa Renée Geannette

From Volume 82, Number 5 (July 2009)

For decades, foreign nationals alleging human rights abuses were frustrated by their inability to receive their idea of adequate redress in the courts of their own countries. Beset by ills such as environmental pollution triggered by aerial drug eradication programs, the murder of union leaders by right-wing paramilitary groups allegedly financed by multinational corporations (“MNCs”), and torture and deprivation in countries like South Africa, these plaintiffs were offered a glimmer of hope by a series of rulings in U.S. courts, which had purportedly opened up to them relief through a statute passed by the American Founding Fathers themselves. But that relief has often proven elusive, as courts have hesitated to grant redress for claims brought under what they see as an outdated statute.