Principles of sovereignty, related fears of international interference or selective prosecutions, a preference for domestic proceedings, the influence of other states such as the United States, and the existence of other priorities – including development and threats to stability arising from armed conflict – are all features of the debate about international criminal justice in Southeast Asia, although they may also be relevant beyond the region. (p. 237)
When I first arrived in Cambodia in 1994 to train human rights advocates to act as public defenders for the Cambodia Defenders Project, followed by a year of training judges and prosecutors (1995-1996), foreigners working at NGOs and international organizations were beating the drums of accountability – raising the prospect of bringing to trial those responsible for the atrocities that had occurred before, during, and after the Democratic Kampuchea (DK) period. The NGO industry was flourishing. It was like the wild West with experts, much like out-of-town hired guns, offering their services – much of which I would say was half-baked at best. I rarely heard local Cambodians calling for trials or justice; the primary, if not exclusive, preoccupation was having a roof over one’s head, food on the table, and schooling for the children.
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”
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”
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”
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)
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”