Patterns emerge from death row. While racism plays a driving force on both sides of the aisle and from the bench, and inept defense lawyering often goes hand in hand with prosecutorial misconduct, there is another impelling cause of death sentences – severe mental illness. … Finally, there is the capriciousness of the capital punishment system, and what public policy operates on the basis of capriciousness? pp. 216-7
Last Friday night, while blissfully indulging in discretionary reading, I came across Lendel Lee’s story. DNA evidence proved that four years earlier, in April 2017, he was wrongly executed by the state of Arkansas. For more than a decade and up until he was lethally injected, he insisted that he did not commit the crime. As expected, or I should say, as usual, the Arkansas Gov. Asa Hutchinson, who at the time was ramping up lethal injections, defended the execution by claiming he was merely following the law. Others in the criminal justice system who might have had a hand in Lee’s conviction and death sentence remained unmoved and would resort to alternative theories justifying the righteousness of the execution, such as the old standby that whoever left that DNA was Lee’s accomplice, or the DNA does not prove anything.
A few days earlier, I received a pre-publication copy of a book from my good friend Alan Yatvin, suggesting that I might want to review it. The title was intriguing, but it was the subtitle that caught my attention. Sighing, I thought to myself, not another death penalty book! It would have to wait its turn. So, I put it at the bottom of the pile of books waiting their turn to be read. However, as I stared at Lee’s photograph, with his last words echoing in my ears, I set aside the book I was reading and reached for the one at the bottom of the pile, A DESCENDING SPIRAL – Exposing the Death Penalty in 12 Essays. I am glad I did. Continue reading “Book Review: A DESCENDING SPIRAL – Exposing the Death Penalty in 12 Essays”
Global adjudicative authority is the authority that national and supranational institutions exercise when they adjudicate crimes on behalf of the global community…. [T]he moral justification for global prescription is the global community’s interest in preventing harm to human dignity. Global prescription is thus justified for all non-minimal harms to human dignity, and is most strongly legitimate for those in which the global community has the greatest interest. In contrast, the legitimacy of global adjudication depends not only on the strength of the global community’s interest in adjudication, but also on whether that interest outweighs any countervailing interests. (p. 98)
Prosecutors in national jurisdictions exercise their authority on what to charge or not charge, based on several variables, with gravity not playing much of a role – at least not in the context understood and applied in charging international crimes. Gravity is more likely to come to the fore at sentencing. It makes sense. The legislature criminalizes conduct based on societal/community norms. Thus, whether a particular set of circumstances should be prosecuted generally does not factor gravity into the mix, as such, when the evidence supports a reasonable assessment that the requisite elements in establishing the commission of a crime are met. Put differently, if in the prosecutor’s opinion, the evidence is qualitatively sufficient to meet his or her burden of proof in establishing that a particular individual committed crimes, save for ancillary factors that militate against prosecution, the prosecutor is expected to charge and prosecute that individual. I am oversimplifying for the sake of brevity, but the point is that in national prosecutions, “gravity” plays a lesser role on whether to charge or not. Even then, usually, there are criteria that guide prosecutors and judges – as readily apparent when fashioning sentences. Continue reading “Book Review: SHOCKING THE CONSCIENCE OF HUMANITY”
In my view, the rights of these 700 plus victims to express their views and concerns, as well as their rights to truth, justice and reparations, and to have an effective remedy, were at stake in this case. Having placed emphasis only on the rights of the accused, Judges Henderson and Tarfusser prematurely terminated the proceedings, without providing reasons. In doing so, they did not seem to have considered the rights of the victims. I recall the human rights are interconnected and indivisible, and there is no one human right that is more important than another. In my view, in no case can the rights of two accused be preferred over the rights of more than 700 victims without more, especially through a procedure that is not envisioned in the Statute, while the rights of the victims are duly established under the Statute.… [E]ven if Judges Henderson and Tarfusser, being minded to acquit, had concerns as to the liberty of the accused, there was no need to terminate the trial prematurely as the Trial Chamber had been seized of submissions on the continued detention of the accused and the judges could have granted provisional release. Instead, Judges Henderson and Tarfusser decided not to entertain such submissions and rather acquit the accused, halfway through the trial, under the no case to answer motions.
Occasionally a circumstance comes along when not correcting the record, when not speaking truth to power, when remaining silent out of fear of ruffling powerful feathers, is as uncomfortable as trekking in shoes a half-size too small, with a stone, or worse yet, a sharp thorn, in them. Here is one of those occasions. Aside from finding Judge Luz del Carmen Ibáñez Carranza’s understanding of no case to answer procedure at the ICC flawed and ill-conceived, as a defence lawyer I find her above quoted dissenting remarks shocking, even scandalous. So, let me bring some clarity on the seemingly pesky no case to answer procedure by discussing its purpose and why under the adopted ICC regime it is not only appropriate, but indispensable. I will then deal with Judge Ibáñez Carranza’s comments which seemingly suggest that judges should, in some instances, apply a utilitarianism test when deciding to what extent they should afford an accused their right to the presumption of innocence and whether, for the sake of the victims, the prosecution should be given a pass when unable to meet its burden of proof. Continue reading “MISAPPREHENDING THE ESSENCE OF NO CASE TO ANSWER & WHY IT IS INTRINSIC TO ICC TRIAL PROCEEDINGS: interpreting an accused’s fair trial rights through an inquisitorial victim-oriented humanitarian-centered prism “
You wasted $150,000 on an education you coulda got for $1.50 in late fees at the public library.
Matt Damon from Good Will Hunting
One of the most memorable scenes in the film Good Will Hunting is when Matt Damon – playing the exceptionally brilliant, success-shunning Will Hunting, who does construction day labor when not moonlighting as a janitor at the Massachusetts Institute of Technology, irreverently solving mind-twisting mathematical problems left on the blackboards by the professors for the students to solve – takes down an elitist, arrogant, and pretentious Harvard student who is toying with one of Will’s friends. I particularly liked the quote in this scene because of the truism of Will’s putdown: you can learn just as much by going to the books as you can by attending a top-flight university – and for a fraction of the cost.
Whenever I think of this scene, I am reminded of my torts professor who, upon entering the classroom the first day, dispensed with all expected formalities, and disabused many of us from thinking that we were in law school to stuff as much law into our heads as possible, saying: Those of you who want to learn the law go to the library, you will find it in the books. Those of you who wish to learn to think like lawyers and know what to do with the law once you find it in the library, stay.Continue reading “Book Review: THE OXFORD GUIDE TO INTERNATIONAL HUMANITARIAN LAW”
The election of two highly qualified UK nationals, Judge Joanna Korner QC and Karim Khan QC, to the roles of Judge and Prosecutor to the ICC respectively, will help serve reform. … As a founder member of the ICC, we have been one of its strongest supporters and continue to respect the independence of the institutions. We oppose the ICC’s investigation into war crimes in Palestine. We do not accept that the ICC has jurisdiction in this instance, given that Israel is not a party to the Statute of Rome and Palestine is not a sovereign state.
Beneath his frat-boy antics, disheveled looks, and bumbling affectations, lies a cunning, calculating, consummate political operator par excellence – even if many of his policies and positions reflect short-term, myopic, tactical jockeying and half-baked ideas. Boris Johnson may have written a (mediocre at best) biography of Winston Churchill, but Winston Churchill he is not. He also seems without a clue as to the concepts of judicial and prosecutorial independence, and that words coming from a Head of State, when imprudent, ill-conceived, and injudicious, create perceptions. Negative ones.
On 9 April 2021, the UK Prime Minister sent a letter to the Conservative Friends of Israel, noting its concerns about the International Criminal Court’s (ICC) recent ruling on the Palestine situation where the Pre-Trial Chamber found that the ICC has jurisdiction to investigate crimes committed in Palestine (see my recent review here). Understandably, the ruling on the Palestine situation has caused a fair amount of consternation or euphoria, depending on where one lines up on the issues involved. The UK had its chance to make amici submissions before the Pre-Trial Chamber. A ruling was issued. To now publicly pressurize the ICC to reverse course (no other way to view Johnson’s remarks), is pure, naked, crude political interference. Continue reading “BORIS JOHNSON’S IMPRUDENT LETTER: irresponsibly fostering misperceptions”
It is tempting to conclude that our multilateral institutions do not have the capacity to address tragedies like Syria. However, the fault is not necessarily in the institutions themselves but with those who have the power to act. The law exists, as does a cadre of professionals with the necessary skills and a ready set of justice models; what is lacking is the ability to achieve a political consensus on a path forward, or a willingness to proceed without such a consensus, with respect to situations like Syria, where there has been no regime change, where atrocities are ongoing, and – most importantly – where the great powers find themselves at odds with each other. The long-standing weakness in our system of international justice is made all more pronounced by the situation in Syria.
It has been over a decade since we last went about our daily lives without having to hear about, or see on the news or social media, atrocities being committed in Syria. Just reflect on all that has happened to you since 2011 (what you accomplished at university or work, the events in your personal life, your travels, your joys and your losses), and just imagine what your life would have been like were you to trade all of those memories and experiences for a decade of living in Syria, under or in flight from the Assad Regime, gassed and poisoned, terrorized by the Islamic State of Iraq and the Levant (ISIL), deprived of virtually every human right and human dignity, constantly under fear or on the run, watching loved ones and friends being tortured, maimed, killed, living in refugee camps, crossing dangerous lands and waters in search for safety only to find closed border-crossings by hostile governments, and so on. Continue reading “Book Review: Imagining Justice for Syria”
The Prosecutor should exercise particular caution before agreeing to seek the withdrawal or amendment of charges which have been traditionally under-prosecuted, such as crimes against or affecting children, sexual and gender-based crimes, attacks against cultural, religious, historical and other protected objects, as well as attacks against humanitarian and peacekeeping personnel.
Some four years after Al Mahdi’s guilty plea was accepted based on an agreement reached with the Prosecutor for a nine-year sentence for one count of destruction of cultural heritage (mausoleums and mosques in Timbuktu) – and no other charges such as killings for which there seemed to be sufficient evidence to charge (see my prior posts here and here) – the Office of the Prosecutor (OTP) issued its Guidelines for Agreements Regarding Admission of Guilt (Guidelines) on 12 November 2020. Why now? It is not as if plea agreements have been a much sought-after commodity by the OTP. Lamentably.
The Guidelines are somewhat wanting. More of a basic policy paper for internal use and a PR piece for external purposes, the Guidelines provide vague “guidance” on whether, when, under what circumstances and subject to which terms the OTP will enter into plea agreements. Rather than drilling down on the specifics of the Guidelines (a pithy seven-pages), I will be providing some practical considerations and guidance for a more robust practice in negotiating plea agreements. But first, some prefatory remarks on why “plea bargaining” is misunderstood and gets a bad rap at the international(ized) criminal tribunals and courts. Continue reading “THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal “
But since rhetoric exists to affect the giving of decisions – the hearers decide between one political speaker and another, and the legal verdict is a decision – the orator must not only try to make the argument of his speech demonstrative and worthy of belief: he must also make his own character look right and put his hearers, who are, to decide, into the right frame of mind.
Aristotle, The Art of Rhetoric
Sitting at a sushi bar nearly forty years ago as a newly minted lawyer being introduced to the culinary delight of raw fish delicately sliced with artistic flare, I artlessly asked the middle-aged chef how long it had taken him to learn his skills. Taciturnly, he said still learning. It would take years to figure out what he meant – perfection is a process, not a destination. Zen.
Perfecting one’s skills in rhetoric and advocacy is the same – a never-ending journey of striving and evolving, of emulating and improvising, of observing and learning. What may have worked seven, five, or even two years ago may now seem passé and less effective. The audience’s tastes, sophistication, tolerance, attention span, thought processes, etc., have likely changed. As have their socio-economic status, political views, and day-to-day existence. The advocate must adjust to the times and to the occasion. Continue reading “The Trump impeachment trial: observations on rhetoric & advocacy “
The Chamber notes that Palestine acceded to the Statute in accordance with the procedure defined in article 125(3) of the Statute. On 2 January 2015, Palestine submitted its instrument of accession to the Statute, and became a State Party to the ICC on 1 April 2015, following the entry into force of the Statute in its territory. The United Nations Secretary-General circulated Palestine’s instrument of accession among the States Parties before accepting it and no State Party, except for Canada, manifested any opposition at the time. Palestine’s accession was subsequently accepted by the United Nations Secretary-General on 6 January 2015 and, on 1 April 2015, the then President of the Assembly of States Parties to the Rome Statute (the ‘Assembly of State Parties’) greeted Palestine in a welcoming ceremony, which ‘marked the entry into force of the Rome Statute for the State of Palestine […] thereby becoming the 123rd State Party’…. Moreover, since its accession, Palestine has contributed to the Court’s budget and has participated in the adoption of resolutions by the Assembly of State Parties.1 Situation in the State of Palestine, ICC-01/18-143, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine,’ 5 February 2021, para. 100 (footnotes omitted).
Stripped from the politics, the lobbying, the bellicose threats, and the doomsday rhetoric surrounding the Prosecutor’s request pursuant to Article 19(3) of the Rome Statute for a ruling on the Court’s territorial jurisdiction in Palestine, the ruling by Pre-Trial Chamber I should not have come as a surprise. If considered pragmatically.
Situation in the State of Palestine, ICC-01/18-143, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine,’ 5 February 2021, para. 100 (footnotes omitted).
This weekend I found myself shoveling more snow than I have since my public defender days in Alaska. As I put my feet up and warmed my weary bones, I re-read a piece my friend Alan Yatvin wrote after getting caught in the snow here in The Hague three years ago. I was reminded of the vivid picture he painted of that experience, and his ruminations on the legacy of the ICTY. I also longingly recalled that which Alan kindly omitted — that I had abandoned him and was then enjoying much more salubrious weather in Phnom Penh. So for those of you, like me, trudging through the snow this weekend, here is a taste of an earlier storm, with a link to the whole essay. Stay warm.
A snowy December night in The Hague
I was in The Hague for a meeting of the Association of Defense Counsel at the International Courts (ADC-ICT). This was my last day in The Netherlands before heading home and it was snowing.
With images of Hendrick Avercamp’s impish 17th century paintings and childhood memories of Hans Brinker, or the Silver Skates (book and movie) dancing in my head, I set out for the “centrum” to fill the last afternoon of my vacation. However, that snowy, frozen canal climate is long gone from this country. Unused to so much snow in a short period of time the Dutch city was, if not paralyzed, substantially slowed down.
After wandering around mostly deserted streets, I headed for the oh-so-convenient bus whose route dropped me practically at the door of the home of my friend Michael Karnavas, where I was staying. Over the next hour, it finally dawned on me that despite the illuminated boards assuring that the bus was 9 minutes, then 4 minutes, then 1 minute away, before disappearing from the board altogether, the buses had ceased running. So, I caught the tram to the beach, which I knew stopped behind the building housing the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) a 10 minute walk from my lodgings.
As I walked back, I stopped by the Churchillplein fountain, in front of the Tribunal, to reminisce and contemplate its impending closing.