Panaetius argues that if we are to live an ethical life and chose appropriate actions, we must find a way to balance:
1) the roles and duties common to us all as human beings;
2) the roles and duties unique to our individual daimon, or personal genius/calling;
3) the roles and duties assigned to us by the chance of our social station (family and profession);
4) the roles and duties that arise from decisions and commitments we have made.
Lives of the Stoics, p. 81
It has been a trying and challenging year. Although there is light at the end of this dark COVID-19 tunnel in which we find ourselves, this light – promised by miracle vaccines discovered in record time – sadly, may not come soon enough for many. The winter holiday season is supposed to make us jolly and joyful. But let’s be honest. For some, even under normal circumstances, it is not the best of times.
Marcus Aurelius wrote in Meditations, “[t]here is no role so well suited to philosophy as the one you happen to be in right now.” Words that were as relevant for his days as they are for ours. Some of us, our friends, our family members, may be or believe themselves to be in a difficult, dispirited, disconnected place with no relief on the horizon. Some of us may be blessed with unusual success, feeling euphoric. Some of us may simply be doing okay, grateful to have survived 2020 and happy to be where we are – physically, mentally, and professionally. Continue reading “Book Review: Lives of the Stoics – The Art of Living from Zeno to Marcus Aurelius”
Just Mercy: A story of Justice and Redemption, by Bryan Stevenson, One World (Reprint edition), 2015, 368 pages, €9.79
The Guardians, by John Grisham, Hodder & Stoughton Ltd, 2020, 384 pages, €10.75
If you think you’re too small to make a difference, try sleeping with a mosquito.
Tenzin Gyatso, the 14th Dalai Lama
On 10 December 2020, Brandon Bernard was put to death after spending 20 years on death row for his involvement in a double homicide when he was 18 years old. By all accounts, he was a model prisoner, genuinely remorseful, and rehabilitated. His dying words to the victims’ families were:
Comparative Reasoning in International Courts and Tribunals, by Daniel Peat, Cambridge University Press, 2019, 258 pages, € 29 (paperback). Winner of the 2020 European Society of International Law Book Prize.
A word is not a crystal, transparent, and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.
Oliver Wendall Holmes, Towne v. Eisner, 245 US 418, 425 (1918)
This is a political trial that was already decided for us. Ignoring that reality is just weird to me.
William M. Kunstler:
There are civil trials and there are criminal trials. There is no such thing as a political trial.
In Aaron Sorkin’s The Trial of the Chicago 7, we see legendary civil rights lawyer William M. Kunstler slowly come to the realization that he is in a political trial, requiring a whole different approach to defending the eight (later seven) defendants in one of the most colorful, if not significant, trials in modern American history.
Book Review – Judges and The Making Of International Criminal Law, by Joseph Powderly. Brill-Nijhoff, 2020, € 215.
Wherever our theoretical refuge lies, be it abstract or pragmatic, we can say with relative certainty that to embrace a formalist conception of the judicial function (based inextricably on a pious belief in the sanctity of positive rules) is to embrace an intellectual conceit which lacks any basis in the practical reality of contemporary international adjudication, irrespective of the diversity of jurisdictional mandates. (p. 237-38)
I’m no fan of judicial creativity. It’s a slippery slope. What does ‘creativity’ mean? Where are the limits, if any? And if there are limits, how confident can we be that ‘creativity’ is not used as a means of inventing norms, of advancing lex ferenda (what the law should be) agenda, as Professor Antonio Cassese, President and Judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), along with his accommodating fellow judges, exuberantly and uninhibitedly did?
According to the Oxford Dictionary, creativity is defined as the use of imagination or original ideas to create something; inventiveness.
Do we really want judges to be creative in developing the law?
[T]he introductions and executive summaries of our two-volume report accurately summarize this [Special Counsel] Office’s work and conclusions. The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions. … There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure the full public confidence in the outcome of the investigations.
My aim is not to make a case one way or another (even if I express my views) on whether Trump and/or his campaign aides and family members conspired with the Russians to influence the results of the elections or whether Trump obstructed justice in trying to influence the integrity and results of the Mueller investigation. I am merely pointing out some reasons why the Report is worth the time to read – even if you could care less about US politics. But first, some general observations. Continue reading “The Mueller Report: some takeaway observations”
With the benefit of hindsight, would the Cambodian government and the international community have joined hands and built the Extraordinary Chambers in the Courts of Cambodia (ECCC)? Possibly not. The Court has received more criticism than acclaim and is generally touted as a model not to be followed.
Nina H.B. Jørgensen, p. 359
Anyone interested in the trials, tribulations, and contributions of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to the development of international criminal law and justice, look no further than Professor Nina H.B. Jørgensen’s outstanding primer, The Elgar Companion TO THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA (TheCompanion to the ECCC). If there are any doubts about the ECCC’s legacy, particularly its positive contribution to international criminal jurisprudence, Professor Jørgensen has put them to rest. Thanks to her critical analysis of the ECCC’s procedures, of the cases tried and currently under investigation, and of the jurisprudence the ECCC has produced over the past decade – especially considering the general environment and context in which the ECCC operates – it is hard not to be impressed with the accomplishments of the ECCC, despite its numerous shortcomings and disappointing failures. Continue reading “Book Review – The Elgar Companion to THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA”
Classic understandings about the demarcation between war and peace are not just quixotic remnants of a bygone era, but core underpinnings of the international legal system that are eroded at the peril of the entire world.
Leila Nadya Sadat, p. 556
Had it been up to me I would have retitled Seeking Accountability for the Unlawful Use of Force (Seeking Accountability) to something like: The International Crime of Aggression: past failures, present shortcomings, and future possibilities. Even if you think you know all there is to know about criminalizing aggression as an international crime, you are bound to find this collection of articles exceptionally rewarding. And if you really want to treat yourself, read it cover to cover as it has been smartly organized and edited by Washington University Law School Professor Leila Nadya Sadat. Spoiler alert: Seeking Accountability is dense, packed with information and source material that provokes and stimulates – not a quick or effortless read. Continue reading “Book Review: Seeking Accountability for the Unlawful Use of Force”
In short, the Peace Pact formed the background of rules and assumptions against which the rest of the new system operated. As states adapted to the transformed legal order, their adaptations helped reinforce those new rules and become reasons of their own for playing by them. The Pact did not bring about the end of conquest and interstate war on its own; no treaty, no law could have. But it was a necessary start, the beginning of the end of the Old World Order.
The Internationalists, p. 335
Tensions around the world seemed to have heightened with the election of U.S. President Donald J. Trump. Maybe it has nothing to do with him; maybe it is just his in-your-face style that tends to make us more aware of how dangerous and volatile the world has become. It is hard to point to a region on the global map and not find a conflict that has just ended, is raging on, or about to start. The most eye-popping conflict started as a civil war in Syria in 2011. The end is not in sight despite the use of an inordinate amount of hard and soft power by regional state players and their proxies, permanent members of the United Nations Security Council, the United Nations (UN), the European Union, and so on. Red lines have been drawn and crossed, chemical weapons used against combatants and non-combatants, indiscriminate bombings of civilian-populated areas, acts of terror committed with an aim to make life so unbearable so as to bring about death or forced dislocation. All of this and much more in the name of sovereign rights, self-defense, security (national, regional, international), reprisals, deterrence (sending messages), and, of course, peace. Continue reading “Book Review – The Internationalists: How a Radical Plan to Outlaw War Remade the World”
You must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proved guilty…the world yields no respect to courts that are merely organized to convict.
Justice Robert H. Jackson, Speech to American Society of International Law cited in Henry T. King, Jr’s The Legacy of Nuremberg, Case Western Journal of International Law 34 (2002), 335, 336
If asked to recommend three books to a newly-minted judge at any of the international(ized) criminal tribunals or courts, but especially at the International Criminal Court (ICC), Jonathan Hafetz’s Punishing Atrocities Through a Fair Trial – International Criminal Law from Nuremberg to the Age of Global Terrorism (Punishing Atrocities) would be one of them. Indeed, I would suggest it as essential reading for judges, prosecutors, defense lawyers, and any judicial staff. I would also recommend Punishing Atrocities as obligatory reading for any introductory courses on International Criminal Law (ICL).
Jonathan Hafetz, a professor of law at Seton Hall University School of Law, admirably shows the tension between the need for establishing individual accountability for suspects and accused alleged to have committed or contributed to mass atrocities and the need to accord them fair trials based on recognized international principles and standards. Reconciling these two aims has been an ongoing process since the creation of the post-World War II International Military Tribunals at Nuremberg and for the Far East in Tokyo. While the divide remains, much progress has been made in affording greater due process to suspects and accused, in part, because of a higher recognition that acceptance of judicial results at the international(ized) criminal tribunals and courts is enhanced and fostered through fair trials and ensuing perceptions. Meanwhile, the experimentation of cobbling together procedural modalities from different legal systems for fairer procedural justice continues. Continue reading “Book Review – Punishing Atrocities Through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism”