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Despite recent and increasing attention to the wrong of apartheid in international politics, some basic definitional questions remain uncertain. This article seeks to delineate the definition of apartheid in international law. Its focus is on the prohibition of apartheid binding States in custom and the obligation in Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination. In both cases, the article shows that the Apartheid Convention of 1973 supplies the wrong's definition. Thereafter, the article addresses three key elements that will be central to determining an allegation of apartheid: its wrongful acts, its distinctive purpose requirement, and the issue of what constitutes a ‘racial group’. Finally, the article also draws attention to the wider importance of the prohibition of apartheid in the international legal system. International law marks with particular normative significance a set of practices entailing systematic and structural harms that need not involve violations of life or bodily integrity.

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes's formulation, a \"clear and present danger.\" If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker's intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker's intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker's intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker's intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.

Laws, like gardens, need occasional pruning to remove doctrinal clutter and costly weeds. The attempt to monopolize provision of Section 2 of the Sherman Act is a prime candidate for pruning and should be repealed. The decriminalization of Section 2 makes the attempt to monopolize provision no longer appropriate. The attempt provision fills no important gap in antitrust enforcement and generates unnecessary and significant costs and doctrinal complexities that burden litigation. So long as the attempt to monopolize provision remains in place, courts should discard specific intent as an element of the claim. “Specific intent” is incoherent, confusing, potentially prejudicial, and an unnecessary legal fiction. It erroneously suggests to the factfinder that an intention to gain monopoly power itself makes the challenged conduct an unlawful attempt to monopolize. Evidence of subjective intention (state of mind) should be admissible only as relevant to a specific material issue such as the legitimacy of asserted business justifications or competitive effects. The probative weight of evidence of intent or state of mind should be limited to the issue for which it was admitted.

Recent case law of the international criminal tribunals has tended to focus on the individual mental element of offenders, and dismissed any relevance for State policy as a component of the analysis. It is posited that an individual deviant, acting alone, can commit genocide or crimes against humanity, to the extent that he or she aspires to destroy an ethnic group or to persecute civilians in a widespread or systematic manner. This has led to a distortion in the law, partially explained by a focus on low-level perpetrators in early trials of the International Criminal Tribunal for the former Yugoslavia, but also by mistaken analysis of previous authority. This Article argues for revival of state policy as an element of such crimes.

In Holder v. Humanitarian Law Project, the Project and some other organizations and individuals working in international human rights asked for guidance about whether they could continue their work without violating 18 USC § 2339B(a)(I) (2012), which makes it a crime to \"knowingly provide material support or resources to a foreign terrorist organization.\" The penalty for conviction extends to fifteen years imprisonment and fines. The plaintiffs sought an injunction to prevent the Government from enforcing the ban against their speech-related activities. Usually, the federal courts discourage pre-violation challenges to criminal statutes, preferring to rule upon their meaning and constitutionality only after specific facts are at issue and a prosecution has taken place. In this case, however, the Court ruled in the abstract concerning the legality of the plaintiffs' proposed actions. It proceeded to uphold the prohibition of material support as applied even to the plaintiffs' speech activities. Justice Breyer wrote the sole dissenting opinion, which was joined by Justices Ginsburg and Sotomayor.

From its initial codification in the 1948 Convention on the Prevention and Punishment of Genocide to its most recent inclusion in the Rome Statue of the International Criminal Court, the international crime of genocide has been defined as involving an \"intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.\" The predominant interpretation of this language views genocide as a crime of \"specific\" or \"special\" intent, in which the perpetrator deliberately seeks the whole or partial destruction of a protected group. This Note pursues an alternate approach. Relying on both the history of the Genocide Convention and on a substantive critique of the specific intent interpretation, it argues that, in defined situations, principal culpability for genocide should extend to those who may personally lack a specific genocidal purpose, but who commit genocidal acts while understanding the destructive consequences of their actions.

Some Supreme Court decisions clarify a murky area of the law. Others further muddy an area in need of clarification. Unfortunately, the Court's decision in Virginia v Black has proven to be another instance of the latter. For the first time, the Court in Black defined the term \"true threat\"; however, in providing a definition, the Court created more confusion than elucidation. One critical question the Court's ambiguous language failed to answer is what intent, if any, the government must prove a speaker had in order for his communication to qualify as a \"true threat\" and, thus, unprotected speech. A main purpose of this note is to explain why (and how) lower courts have taken various approaches - based on their interpretations of Black - to the intent standard of the \"true threats\" doctrine. Consequently, the impact of Black on the true threats jurisprudence is explored. More generally, the note focuses on the role of intent in defining \"true threats.\"

Jurists at the International Criminal Tribunals for Yugoslavia and Rwanda have erroneously determined that \"complicity in genocide\" is identical to \"aiding and abetting\" genocide. Accordingly, they theorize that complicity in genocide is not a crime itself, but merely a misplaced and superfluous liability provision for the crime of genocide. In reality, the two crimes are distinct and designed to capture very different perpetrators. One guilty of aiding and abetting genocide had as his very purpose the facilitation of the commission of genocide. A perpetrator of the crime of complicity in genocide, in contrast, may not have had genocide as his purpose. Instead, genocide may merely have been the foreseeable result of his actions. As such, one found guilty of aiding and abetting genocide must have the heightened, and difficult to establish, mens rea of the genocidaire--what I term the \"specific intent specific motive nexus.\" By comparison, one guilty of complicity in genocide need not have this heightened mens rea. Instead, a lesser mens rea such as malice or what I term the \"specific intent without specific motive,\" should suffice to attach guilt. Failure to appreciate this difference creates a gaping loophole in international criminal law, providing unwarranted sanctuary to those who enable genocide.