The Honorable Lewis A. Kaplan draws on his voluminous experience on the federal bench to illuminate some of the special concerns that attend terrorism and national security cases. Kaplan reviews several judicial challenges unique to terrorism cases, including classified information issues and the use of defendants’ statements in the course of prosecution. He concludes that Article III courts not only are capable of trying such cases, but they are the forum most consistent with our American values of fairness and transparency.
On Tuesday, November 4, 2008, Paula Loyd, assigned to U.S. Army team AF-4 Blue, was conducting interviews among the local population in the small village of Chehel Gazi in southern Afghanistan. According to witnesses, she approached a man carrying a fuel jug, and they began discussing the price of gasoline. Suddenly the man, Abdul Salam, doused her with the fuel in his jug and set her on fire. She suffered second- and third-degree burns over sixty percent of her body. Tragically, Paula Loyd died of her injuries a few weeks later, in early January 2009.
This article attempts to explore the origin and evolution of the concept of persecution as a crime against humanity in international law. In particular, I will focus on the latest jurisprudence on this matter and will try to highlight the major challenges ahead for tribunals – both domestic and international – when faced with charges of this kind.