Nancy Combs | College of William and Mary (original) (raw)

Papers by Nancy Combs

the Arizona Law Review, 2018

It is a central tenet of the laws of war that they apply equally to all parties to a conflict. Fo... more It is a central tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party that illegally launches a war benefits from all the same rights as a party that must defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible and that defenders should have more rights and fewer responsibilities than aggressors. The equal application doctrine retains the support of legal scholars, however, because they reasonably fear that applying different rules to different warring parties will substantially reduce overall compliance with the international humanitarian law system as a whole. My article seeks to bridge these divides. It does so by shifting focus from the application of international humanitarian law rules to the enforcement of these rules. Although a vast body of scholarship has centered on the equal application doctrine, none of it considers the way in which t...

Although the inherent pluralism of international criminal law has gained increasing scholarly acc... more Although the inherent pluralism of international criminal law has gained increasing scholarly acceptance in recent years, the scholarship pertaining to sentencing remains surprisingly universalist. Scholars reflexively expect international courts to sentence their defendants consistently with other international courts, and they advance sentencing principles that are intended to apply to international crimes, no matter where they are prosecuted. This article challenges that universalist viewpoint, both empirically and normatively. This article demonstrates that scholarly expectations of sentencing consistency across international courts are premised on the misguided and factually unsupported notion that international courts constitute components of a unified criminal justice system. This article goes on to maintain that sentencing disparities across international courts not only can be justified but are normatively desirable because they respond to a host of crucial differences in i...

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They ar... more Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This article deconstructs those obstacles. Isolating fact-finding challenges and ascertaining their impact is no mean feat because mass atrocity prosecutions are a heterogeneous combination of a variety of different kinds of crimes and different kinds of proceedings. Mass atrocity prosecutions take place in internat...

Michigan journal of international law, 2012

International criminal tribunals that prosecute genocide, crimes against humanity, and war crimes... more International criminal tribunals that prosecute genocide, crimes against humanity, and war crimes have recently undergone two important evolutions: a procedural evolution and an evolution in the regulation of defense counsel. These two evolutions appear largely unrelated, and they appear to have stemmed from two very different motivations: the procedural evolution from a desire to reduce the length and cost of international criminal proceedings, while the defense regulation evolution from a desire to improve the quality of defense representation. This article argues that, although those motivations do explain the respective evolutions at a superficial level, a far more profound and far-reaching evolution stands at the heart of both of them. This article shows that the early international tribunals had little choice but to adopt party-driven adversarial procedures and to permit defendants maximum discretion in selecting the counsel to represent them. More importantly, by invoking dec...

American Journal of International Law

AJIL Unbound

When a Trial Chamber of the International Criminal Court (ICC) dismissed the court's very fir... more When a Trial Chamber of the International Criminal Court (ICC) dismissed the court's very first case before trial, it made headlines worldwide. The Trial Chamber dismissed the case because the prosecutor repeatedly failed to disclose exculpatory evidence. He did so because he had obtained the evidence from the UN and NGOs pursuant to confidentiality agreements that prevented disclosure without permission, which the UN and NGOs had not granted. The prosecutor, stuck between two competing obligations—the disclosure obligation that he owed the accused and the confidentiality obligation that he owed the UN—adhered to the latter, a decision that the Trial Chamber deemed to “rupture” the trial process to such a degree that a fair trial was impossible.

33 Michigan Journal of International Law 321 381, Mar 6, 2012

52 Hastings Law Journal 303 439, 2001

14 Ucla Journal of International Law and Foreign Affairs 235 273, 2009

7 International Law Forum Du Droit International 47 53, 2005

Harvard International Law Journal, 2001

California Law Review, 1994

The Uncertain Evidentiary Foundations of International Criminal Convictions, 2009