Moratorium on death penalty in Pennsylvania

The Governor of Pennsylvania has declared a moratorium on capital punishment in the state. Governor Wolf said: 'This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes. This decision is based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust, and expensive. Since the reinstatement of the death penalty, 150 people have been exonerated from death row nationwide, including six men in Pennsylvania.'
Slowly but surely the death penalty is in decline in the United States. This trend will provide the legal basis for the Supreme Court to declare that capital punishment is incompatible with 'evolving standards of decency' enshrined in the 8th amendment.
Thanks to Brian Farrell.

Dr Yingxi Bi

Yingxi Bi successfully defended her doctoral thesis this morning at the Irish Centre for Human Rights, National University of Ireland Galway. The title was 'Drug Control Policies and Human Rights'. The examiners were Prof. Elies van Sleidregt, dean of the law school of the Free University of Amsterdam, and Dr Shane Darcy. From left: Shane, Elies, Yingxi and myself. Congratulations, Dr Bi! And happy new year!

Georgia and the Issues of "Legal Transplants"

In December of last year, the OSCE's Office for Democratic Institutions and Human Rights released a fascinating report on its trial monitoring activities in Georgia. In 2009, following significant input from USAID and other international donors, Georgia adopted an amended Code of Criminal Procedure, described by the US Embassy in Georgia as introducing 'a full adversarial system to criminal courts.'

The OSCE's report reveals inadequate judicial intervention on key issues of case management - in one case, the prosecution proposed that it would call 4,000 witnesses, and the pre-trial judge granted this request, refusing 'to assess the relevance and necessity of the witnesses, or discuss the defendants’ right to a timely hearing'. The imposition of a party-led approach to replace Georgia's old inquisitorial system appears to have led to something of a non-interventionist judicial approach in the trials observed, where on a number of occasions, the prosecution was permitted to call defendants as witnesses for the prosecution, without those defendants being told by the judges of their right to remain silent. 

These elements, combined with a reluctance to halt inappropriate or irrelevant questioning of witnesses, permitting discussion of the accused's criminal record during trial, and a general passivity in courtroom management matters, present something of a caricatured view of the adversarial legal system. Georgia's experience illustrates some of the difficulties that can be faced when elements of one legal system are transplanted to another. In the words of Professor Damaška, 'In their natural habitat, each set of practices is part of a larger procedural whole, with its own internal coherence.... Creating a successful mixture is not like shopping in a boutique of detachable procedural forms, in which one is free to purchase some and reject others.'

Corporate liability for contempt at the Special Tribunal for Lebanon: the saga continues

I have blogged previously on decisions (see here and here) regarding the STL's evolving jurisprudence on the liability of corporations for offences against the administration of justice. As will be recalled, on 2 October last year, the Appeals Panel of the STL overturned Contempt Judge Lettieri's finding that the Tribunal could not have jurisdiction over legal persons, and affirmed the case against the New TV news corporation. A little over a month later, Judge Lettieri once again ruled that the Tribunal had no jurisdiction over legal persons, this time in relation to the Al-Akhbar Beirut newspaper. Perhaps unsurprisingly, the Appeals Panel also overturned this finding in its most recent (and presumably, final) decision on the matter. 

The decision is, to my mind, the most coherent on the issue of jurisdiction over corporations for contempt offences. In line with an argument I made in my last blog post on this matter, it finds the strongest justification for such jurisdiction in the fact that Lebanese law, which the STL applies, provides for jurisdiction over corporations. In the words of the Appeals Panel (para 59), 'It would be an oddity for a Lebanese company to face criminal sanction in Lebanon for interfering with the administration of justice with respect to cases before Lebanese Courts and at the same time enjoy impunity for similar acts before an internationalised Tribunal guided by Lebanese law in carrying out its judicial work.' This is much more convincing than earlier decisions that referred to the vague principle of ending impunity or strained textual analyses of the Statute and Rules in finding that such jurisdiction over legal persons existed.

The reference to the tribunal as being 'internationalised', as opposed to the more frequent line of it being a 'tribunal of international character', is noteworthy. Indeed, a factsheet on the STL's website conflates the concepts of 'international' and 'hybrid or internationalised' tribunals by calling the STL both at different parts of the document. So, which is it? Following Schabas's suggestion in Unimaginable Atrocities, I think the wisest approach to distinguishing between 'international' and 'hybrid' tribunals is not to look at the judicial composition or the crimes prosecuted, but rather to ask whether the tribunal could be closed down by means of passing a domestic law. This is not the case for the STL, nor was it for the SCSL, so they are international tribunals. The ECCC, War Crimes Chambers in BiH and the SPSC, by contrast, were all founded by domestic legislation, and thus they are classified as 'internationalised' or 'hybrid' tribunals.

It is unfortunate that the decision did not directly tackle the issue of stare decisis, or whether lower chambers of the STL are bound by earlier appeals decisions. Instead, it referred rather vaguely to the principles of 'consistency, certainty and predictability' and underscored the similarities between this case and the New TV case. It found that it would have been 'preferable and important for judicial certainty' for the Contempt Judge to have followed the earlier Appeals Panel decision on that basis. In his November 2014 decision, Judge Lettieri had expressly dismissed the 'consistency' argument by referring to the fragmentation that would be caused by finding that one international criminal tribunal had jurisdiction over legal persons, where other tribunals do not have such jurisdiction. Rather than overturning the decision on such malleable principles as consistency, the Appeals Panel might have been better served by more explicitly following the approach taken by other tribunals, that existing jurisprudence should be departed from only where careful consideration has been given as to whether there are 'cogent reasons in the interests of justice' for such a departure. Ironically, the Appeals Panels decision leaves us without the 'certainty and predictability' it values in this respect. 

URLs in footnotes - Don't!

Students often ask about putting a url in a footnote. For many years I have discouraged this practice. My view is that a url is not really a proper reference at all. Rather, it is an indication of a place where you may find a document. It is the electronic equivalent of putting, in the footnote, that the document can be found in the second floor of Barnes & Noble in the politics section or on the 43^rd shelf of a particular library.

In any event, I have question the real use of such references. If I want to find a document, I am unlikely to keyboard in a long url. Rather, I am going to google it using a key word or two.

I find some support for my attitude in a recent article in the New Yorker ‘The Cobweb. Can the Internet be archived?’ by Jill Lepore (26 January issue, p. 34. It includes the following:

In providing evidence, legal scholars, lawyers, and judges often cite Web pages in their footnotes; they expect that evidence to remain where they found it as their proof, the way that evidence on paper – in court records and books and law journals – remains where they found it, in libraries and courthouses. But a 2013 survey of law- and policy-related publications found that, at the end of six years, nearly fifty per cent of the URLs cited in those publications no longer worked. According to a 2014 study conducted at Harvard Law School, ‘more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs within United States Supreme Court opinions, do not link to the original cited information’…

The footnote, a landmark in the history of civilization, took centuries to invent and to spread. It has taken mere years to destroy. A footnote used to say, ‘Here is how I know this and where I found it’. A footnote that’s a link says, ‘Here is what I used to know and where I once found it, but chances are it’s not there anymore’. It doesn’t matter whether footnotes are your stock-in-trade. Everybody’s in a pinch. Citing a Web page as the source for something you know – using a URL as evidence – ubiquitous. Many people find themselves doing it three or four times before breakfast and five times more before lunch. What happens when you evidence vanishes by dinnertime?

Old-fashioned footnotes are the best, with proper citations to case law, treaties and secondary literature.

Letter of resignation

Here is my letter of resignation from the UN Commission of Inquiry on the Gaza Conflict.