Rape Claimant and the Veil: A Case for the Supreme Court of Canada

(Delighted to welcome back alumna Doris Buss, who contributes this guest post)

The Supreme Court of Canada recently agreed to hear the appeal in a case involving a niqab-wearing woman who is the sexual assault claimant in a criminal case against two male defendants.
N.S., the claimant, wears a niqab, a veil covering the face but not eyes. Now an adult, N.S. claims the two defendants, one a family member, the other a family friend, sexual assaulted her as a child. At the preliminary inquiry, the defendants insisted the claimant remove her niqab while testifying so they could assess her demeanor as part of their defence.
The preliminary inquiry judge agreed, and ordered N.S. to remove her niqab while testifying. She refused and the matter was brought to the Ontario Court of Appeal, which overruled the preliminary trial order that she remove her niqab, but sent the matter back to the preliminary judge for a reconsideration. N.S. requested and has now been granted leave to appeal to the Supreme Court of Canada.
The case of N.S. is generally depicted as pitting freedom of religion against the rights of defendants in criminal trials. At least one of the interveners – Women’s Legal Education and Action Fund – has argued otherwise. LEAF, which intervened at the Ontario Court of Appeal and will likely apply to intervene at the Supreme Court, has argued this case raises issues about access to justice for religiously observant women, and should be seen in the context of tactics that revictimize sexual assault complainants. Ordering a woman to remove her veil, LEAF suggests, is an attempt to “humiliate and intimidate” and “diminish and beat down” the complainant at trial.

On March 19

On this day in ...
... 1891 (120 years ago today), a son was born in Los Angeles, California, to an immigrant couple -- a mother born in Sweden and a Norway-born father who worked as a railroad car repairer and inspector. They would move to the Central Valley town of Bakersfield, where the father "slipped into the way of an eccentric who did not live with his family," and the son worked odd jobs while attending public schools. The son, Earl Warren (left), earned law degrees from the University of California, Berkeley, served in World War I, and then began a career in law and Republican politics that culminated in his 1953 appointment to be the 14th Chief Justice of the United States. Though he'd served as a prosecutor and also supported the World War II internment of Californians of Japanese ancestry, the Supreme Court over which Warren presided is known to this day for its pathbreaking recognitions of the rights of the accused and its condemnations of racial segregation. (image credit) Most noted among the latter is Brown v. Board of Education (1954), an opinion that Warren wrote after securing a unanimous holding that the segregation of schools by race is, in his words, "inherently unequal." Warren died at age 83 in 1974, 5 years after his retirement from the bench.


(Prior March 19 posts are here, here, here, and here.)

Terrorism said to be defined

Terrorism law is the central concern of the Netherlands-based Special Tribunal for Lebanon, an internationalized tribunal about which we've posted in the past. Established in 2007, it is charged with investigation and adjudication stemming from the 2005 assassination in Beirut of Prime Minister Rafik Hariri.

An ASIL Insight by our colleague Michael P. Scharf reports that last month the tribunal's "Appeals Chamber handed down a landmark ruling"; to be precise, it sets forth what its judges consider to be "the customary international law definition of terrorism." Entitled Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (available in Arabic, English, and French here), the 154-page decision was written by President Antonio Cassese (below right) (prior IntLawGrrls posts) on behalf of a five-man panel (men make up all the judges of this tribunal; a couple of the prosecution and defense officers listed are women).
Scharf quoted paragraph 85 of the decision -- issued in answer to request of the pre-trial chamber considering whether to confirm a pending indictment -- which sets forth the elements of the definition of terrorism at customary international law as follows:

► '[P]erpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act';
► '[I]ntent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it'; and
► '[T]he act involves a transnational element.'

Scharf predicted that the definition will have ramifications that extend past the work of this tribunal -- into the work of the U.N. Security Council Counter-Terrorism Committee established pursuant to Resolution 1373 (2001), and even into national legal systems.
That is not an entirely comforting thought.

The definition, at least as stated above, would appear to know few bounds:

► The definition would seem to sweep in state as well as nonstate actors. That should make more than a few countries uncomfortable.
► What's more, the definition would seem potentially applicable to many transnational offenses not colloquially understood to be terrorism. To name one example, much violence committed in the course of cross-border smuggling enterprises would seem to fit the bill.
Those concerns are reflected in definitions set forth elsewhere on the subject.
► For instance, 22 U.S.C. § 2656f(d)(2), which requires annual country reports on terrorism, withdraws many state actors from the net by stating:

the term 'terrorism' means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents ...

► The catchall definition set forth in Article 2(1)(b) of the 1999 International Convention for Suppression of Financing of Terrorism also is narrower, for it applies only to acts

intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict.

Arson of a structure known to be unoccupied -- or of a building occupied by combatants -- would be excluded from the Convention's definition, but not, it would seem, from the definition advanced in the new judgment from the Special Tribunal for Lebanon.
These 2 counterexamples of state practice stand in tension with the tribunal's contention that its definition constitutes customary international law.
The tribunal's decision, Scharf reports, further endorsed at least some aspects of the encompassing accomplice-liability doctrine of "joint criminal enterprise," about which we've frequently posted. That embrace of expansive culpability, coupled with the breadth of the definition stated above, creates a risk that the stigma of "international terrorist" could be applied well beyond advisable limits.

Go On! Global criminal justice

(Go On! is an occasional item on symposia and other events of interest)

The 24th International Conference of the International Society for the Reform of Criminal Law will be held August 7-11, 2011, at the National Arts Centre in Ottawa, Canada. The theme is "Globalization of Crime - Criminal Justice Responses."

The interdisciplinary gathering will bring together judges, legal practitioners, senior law enforcement personnel, corrections officers, academics, and non-governmental representatives from around the world. The leadership of its sponsor, the Society, includes colleagues of ours like (below right) Sara Sun Beale (Duke), Linda Malone (William & Mary), and Ellen S. Podgor (Stetson). Cosponsoring the conference with the Society is the Vancouver-based, U.N. affiliated nonprofit International Centre for Criminal Law Reform and Criminal Justice Policy, which this year celebrates its 20th anniversary.
The aim is "a forward-looking conference focusing on emerging crimes and new approaches to combat crime." Organizers write:

Domestic criminal justice systems are facing the globalization of crime. Transnational organized criminal groups are trafficking increasing quantities of drugs, firearms, counterfeit products, stolen natural resources and people, as well as smuggling more migrants across borders and engaging in maritime piracy and cybercrime. The response in many nations has been to expand the extraterritorial application and enforcement of domestic criminal laws and to increase mechanisms of international cooperation in the areas of extradition, mutual legal assistance and information-sharing. At the multi-lateral level, a permanent international criminal court has been established and there are renewed calls for various internationalized tribunals to address piracy. Countries continue to seek guidance on when and how domestic courts should exercise universal jurisdiction.

How do judges, prosecutors, policy-makers, representatives of law enforcement agencies and concerned citizens make sense of this shifting reality? How can we best formulate the criminal law and policy response to these challenges moving forward?

Program, fees, and other information are here.

News flash: Ghailani gets life

A federal trial judge in New York just gave a former Guantánamo detainee the maximum sentence of life imprisonment following his November conviction for an offense related to the 1998 U.S. embassy bombings in Kenya and Tanzania. (photo credit) As this 'Grrl wrote last November respecting the conviction (here and here), this no-surprise sentence

confirmed the capacity of federal criminal courts to protect both individual rights and public safety.

Food for thought amid rumors that trials before GTMO military commissions soon may resume.

Criminal law & cyberfantasy

(Delighted to welcome back alumna Audrey Guinchard, who contributes this guest post)

Is virtual reality a fantasy outside the reach of criminal law?
This provocative question about the potential regulation of virtual worlds such as Second Life attracts divergent answers:
► Some consider it an anathema for law to regulate virtual worlds. Their regulation belongs to their creators and owners, not to Governments.
► Others argue that the arm of the law could well extend to virtual words, at least to those that are not games, where participants do not have to fulfil specific and pre-established objectives.

Indeed, some problematic behaviours do sometimes fit in the definition of offences. Fraud is an easy example, and some incidents are reported about people abusing the trust or misrepresenting facts in order to appropriate property or currency that can be exchanged into real-life money, mainly US dollars.

Nonetheless, other offences, like theft, remain difficult to apply to virtual worlds.
Should we then reform the law? Are we putting too much emphasis on something that is hardly relevant for the ordinary citizen?
Given the development of a strong economy in virtual worlds, with, for example, owners and users earning a living out of Second Life, we may want to consider these questions a bit more seriously rather than dismiss it per se -- as I do in my most recent article, "Crime in Virtual Worlds: The Limits of Criminal Law", published last year in the International Review of Law, Computers, and Technology.
Regarding offences against the person and public order, the outlook is different. Unless behaviours spill into the physical world, problems will consist of words and images exchanged and produced in the virtual world between avatars that may never reveal any details of a real-life person. As such, it is difficult to link the images, still or moving, to the physical world, whereas criminal law tends to assume a link between the representation of the person in words and images and the physicality of the world.
And yet, there are evolutions in the law that show an increasing awareness and desire to tackle those issues.

The United Kingdom, for example, decided in the Coroners and Justice Act 2009 to create an offence for possessing non-photographic images of child pornography. Could the offence define as including “the image of an imaginary child” (section 65 (8)) reach the fantasy world of Second Life?

It is difficult to predict how the law enforcement will view the suitability (or not) of the new offence to behaviours in virtual worlds. Moreover, the offence raises important questions of boundaries between fantasy and the real world, questions hardly touched upon in the course of the parliamentary debates. Actually, the debates were non-existent, had it not been for the concerns raised by Parliament's Joint Committee for Human Rights -- concerns that remained unanswered by Government.
Hence, the need for further studies to understand the power of images on oneself, so as to articulate possible responses by criminal law, if responses are needed.

Detention, trials & American values

(Delighted to welcome back alumna Laurie Blank, who contributes this guest post)

As Professor Amos Guiora and I argue in "Don’t Deny Detainees Their Day in Court," an op-ed published a few days ago in the Los Angeles Times, the idea that every person deserves his or her "day in court" is a fundamental principle in the United States and many countries worldwide. Yet more than nine years after 9/11, the United States remains paralyzed not just about how to give the thousands of detainees in U.S. custody around the world their day in court but about whether to give them that day in court.
Multiple judicial forums have been created to try nonstate actors who have perpetrated war crimes from Rwanda to Sierra Leone to Cambodia to the former Yugoslavia — to give them their day in court. That makes the failure to answer this question for post-9/11 detainees particularly perplexing and deeply troubling.
Two successive administrations have been incapable of answering what should be the most basic questions: if, how and where to try terrorists. In the meantime, post-9/11 detainees languish in indefinite detention. The result is a fundamental and overwhelming violation of the rights of individuals who are no more than suspects, in either past or (more problematic) future acts.
The Obama administration reportedly now intends to issue an executive order establishing indefinite detention without trial for detainees at Guantánamo Bay. Such a decision would formalize this violation of basic rights. Denying individual accountability would now be official U.S. policy and law.
The claim that granting prisoners the right to file petitions for habeas corpus and receive regular reviews is sufficient is disingenuous. At best, that only addresses detention status, without doubt an important question. But it does not facilitate the resolution of individual accountability, the principle that requires that an individual have the opportunity for adjudication of his or her guilt or innocence. It is wrong morally, not to mention legally.
The first step, therefore, is to determine that individuals detained post 9/11 deserve their day in court, just like domestic criminals and perpetrators of war crimes. The next step is to implement a mechanism that can do so fairly and effectively. Speedy resolution is, by now, wishful thinking at best.
Unfortunately, for the last nine years, the U.S. has skipped the first step, and has let narrow political considerations devoid of morality, legality and decency determine the nature of the second step. Decision-makers talk of constitutional law and a "beacon on the hill," but acting on that talk seems to present overwhelming challenges. Principles have been discarded in the name of expediency.
Just as crimes grant the state the power to punish, so the state owes the detainees a duty of resolution, a duty to give them their day in court and either prosecute or release, convict or acquit. In the absence of an effective framework to do so, the state is engaging in unconscionable behavior - with an immunity largely granted by Congress and courts alike. Supreme Court and congressional acquiescence in the face of executive power has historically ill-served the American people.
Those who argue that indefinite detention accords with the treatment of prisoners of war gloss over two key distinctions: POWs are held in protective custody and released at the end of hostilities, whereas post-9/11 detainees are held in de facto punitive detention and terrorism has no end to trigger release. Those who want to argue that we are at war with al-Qaeda and other terrorists fail to consider that the law of war and principles of morality in armed conflict do not countenance such an approach, where detainees face the prospect of generational, even lifetime, detention without charge or trial.
Under the law of war, detention is a fundamental aspect of the authority to wage war and has the critical purpose of removing enemy fighters from the battlefield.
Within this framework, POWs are held as a preventive measure – states cannot prosecute POWs for engaging in lawful belligerent acts, i.e., for simply being enemy soldiers fighting on the battlefield. Battlefield detention is lawful and appropriate within this framework and there is no obligation to prosecute or release in this paradigm. The similarity to the indefinite detention we talk about today for detainees at Guantanamo thus lies in the fact that POWs are held without charge and for an unknown (but, critically, not undefined) period of time.
It is the differences that are critical here, though. The differences stretch traditional law of war detention to the extreme and create the effect of forcing a square peg into a round hole. Geography, lawful belligerency, suspected criminality, time parameters – each of these creates another stretch, another tear in the fabric.
► First, battlefield detention is just that – detention of those picked up on the battlefield.
As I’ve noted in an earlier blog post, defining the battlefield in the current conflict against Al Qaeda and other terrorist groups is a critical task, albeit one not yet undertaken or accomplished. We therefore face a situation in which detainees may be held indefinitely under this new framework even if they were picked up either far from a battlefield or – perhaps – in an area where we are uncertain if it is the battlefield. If we cannot identify the battlefield, how can we identify battlefield detainees?
► Second, law of war detention is designed to hold enemy fighters until the “cessation of active hostilities.” In World War II, we held German soldiers for several years, until the end of the war. Several years – not a lifetime. The nature of terrorism and counterterrorism is that we are not going to defeat terrorism; rather, terrorism is something to be managed, minimized, defended against. Not only can we not envision an end to the hostilities, but more problematic, we have absolutely no way of identifying what that end might look like. Sure, we might defeat Al Qaeda in some meaningful way, ending their ability to launch any effective attacks against the U.S. or its allies, but some other terrorist group will take up, or have already taken up, the same fight and we will still be engaged in a conflict with terrorist groups. The consequence of this uncertainty and this very nature of terrorism is that indefinite detention effectively means generational, if not lifetime, detention. Such detention is on another scale entirely from law of war detention as we know it.
► Finally, belligerency and criminality also raise questions here. Law of war detention is primarily designed for lawful belligerents, prisoners of war. The U.S. has gone to great pains – and rightly so in most cases – to argue and demonstrate that the folks at Guantanamo are not lawful belligerents. Rather, they are persons not entitled to any form of privileged combatancy under traditional principles of international law. Still more, they are generally persons we suspect (or could likely prove depending on the evidence available) have committed violent crimes against Americans, American interests and our allies. Unlike law of war detention, therefore, where individuals held in protective custody are specifically not suspected of or charged with any crime, the detainees to be held in indefinite detention are effectively held in punitive custody, suspected of culpability in violent, criminal terrorist attacks but neither charged nor prosecuted.
Indefinite detention in these circumstances is a square peg in a round hole and completely undermines the basic notion of individual accountability, thus constituting a fundamental miscarriage of justice. The United States, uncertain whether the detainees are criminals or more akin to fighters in an armed conflict, must still grant them the basic right to a day in court. Without that, individual accountability is simply eliminated, effectively saying that the adjudication of individual liability is burdensome, perhaps even irrelevant.
This is not the American way; rather, it is a repudiation of American values. Whatever method of trial one prefers – civilian courts, national security courts, or military commissions, the time has come to decide and adjudicate.

2 tacks to combat piracy

Year's end finds 2 countries setting different courses to combat the recent spate of pirate attacks in the Gulf of Aden off the coast of Somalia.
In the United States, just before Thanksgiving, a federal jury in Virginia returned convictions for piracy and other offenses against 4 Somali defendants. (credit for detail from 2010 courtroom sketch by Alba Bragoli/AP) The verdict came one month after the judge in the case, United States v. Hasan, sustained a charge brought under 18 U.S.C. § 1651. The statute provides, in language dating to 1819:

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

Yet in the same courthouse a few months earlier, a different federal judge, in the case of United States v. Said, had dismissed a piracy charge brought against 6 other Somali men. Tripping the latter judge up was Congress' reference in § 1651 to "the law of nations."

The opposite rulings reflect uncertainties about whether an old legal framework presents the proper way to proceed against 21st C. pirates. It's a puzzle addressed in this discussion by our OJ colleagues, and in many IntLawGrrls posts available here.

In the United States, the discrepancy next awaits consideration by the Virginia-based Court of Appeals for the 4th Circuit.

France, meanwhile, has taken another tack.

France also has been involved in policing piracy in the Gulf of Aden. (credit for March 2010 of French naval vessel, with "Somali pirate skiffs" in foreground) France also has found that its old laws fell short -- and so it's opted for a legislative fix.

Shortly before Christmas, the Sénat voted unanimously in favor of the Loi de lutte contre la piraterie et d'exercice des pouvoirs de police de l'Etat en mer -- a bill to ease the pursuit and punishment of pirates that the legislature's lower house already had approved.

Key components:

► An 1825 French antipiracy law having been abrogated in 2007, the newly adopted law reintroduces into the penal code the crime of piracy -- a crime may be pursued via universal jurisdiction. The new law applies to acts of piracy "within the meaning of" the 1982 U.N. Convention on the Law of the Sea, "committed ... on the high seas," "in maritime spaces outside any state's jurisdiction," and "when international law permits, in a state's territorial waters." That Convention is an artifact of the law of nations to which France has been a state party since 1996, but to which, as posted, the United States does not belong.

► The new statute further establishes a legal regime for detaining suspects onboard French naval vessels while they are being transported to judicial authorities. These Mesures prises à l'encontre des personnes à bord des navires respond to a March 2010 judgment, Affaire Medvedyev et Autres c. France, in which the European Court of Human Rights held that France had violated the guarantee of liberty and security of person in Article 5 of Europe's human rights convention by its high-seas detention in 2002 of members of a ship's crew who were suspected of trafficking in drugs.

(Deep thanks for invaluable assistance with this post to University of California-Davis LL.M. student Johann Morri, on leave this year from his post as a French administrative law judge.)

On November 1

On this day in ...

... 1887, U.S. Secretary of State Thomas F. Bayard (left) wrote a letter to the U.S. Ambassador to Mexico, regarding the case of one A.K. Cutting, an American who had been jailed in Mexico on charges that he had libelled a Mexican citizen in a paper published in Texas. (The letter's reprinted in full on pp. 751-57 here.) Bayard argued that U.S. citizens could not

be held under the rules of international law to answer in Mexico for an offense committed in the United States, simply because the object of that offense happens to be a citizen of Mexico.

Contending that "the penal laws of a country have no extraterritorial force," Bayard demanded indemnity for the jailed citizen and repeal of the Mexican law that had permitted his arrest. Mexico's contrary position in this Cutting Case (a controversy that gave rise to concerns that the United States might invade Mexico) amounted to an assertion of what is now known as the passive personality principle of extraterritorial jurisdiction.

(Prior November 1 posts are here, here, and here.)

Kudos to Colette Rausch

Happy to report that our colleague, Colette Rausch (left), has just been named Director of the Rule of Law Center of Innovation at the U.S. Institute of Peace in Washington, D.C.
I had the pleasure of working with Colette early in her 8-year career at the Institute -- I was among the hundreds of experts on the Model Codes for Post-Conflict Criminal Justice project for which she was a principal coordinator. Undertaken by the Institute of Peace undertook in tandem with the Irish Centre for Human Rights, National University of Ireland Galway, the project involved meetings across the globe. The aim, as posted, was to draft a Model Criminal Code, Model Code of Criminal Procedure, Model Detention Act, and a Model Police Powers Act. They're intended to be made available for use in postconflict and peacekeeping settings. Consequently Colette, along with Vivienne O'Connor, has coedited Model Codes vol. I, published in 2007, and Model Codes vol. II, published in 2008. Additional volumes are contemplated.
These are just 2 of the many and varied publications that Colette's produced; another is her book Combating Serious Crimes in Post-Conflict Societies (2006).
Focusing on criminal justice and police reform, Colette also has worked at the Institute on projects to foster discussion between civil society and security forces in countries like Nepal, Iraq, Haiti, and Afghanistan.
Before joining the Institute she was, inter alia: Director of the Department of Human Rights and Rule of Law at the Kosovo mission of the Organization for Security and Cooperation in Europe; resident legal adviser for the U.S. Department of Justice in Hungary and Bosnia; and an attorney in offices of the state attorney general, federal prosecutor, and federal public defender in Nevada.
Colette earned her B.A. degree from the University of Nevada, Reno, and her J.D. degree from Santa Clara University School of Law in California.

Heartfelt congratulations!

French "constitutional thunderbolt"

In a last bit of business before summer vacation, the French Conseil constitutionnel issued a landmark decision holding that the "ordinary" regime of garde-à-vue (pre-arraignment police custody, known as GAV) is unconstitutional. The decision is not the resounding civil rights victory we might like, but it is remarkable in at least a few respects.
It is one of the first decisions based on post-hoc review, unheard of in France until President Nicolas Sarkozy's constitutional law reform package came into effect last summer. Many thought the reform would be ineffectual with respect to citizen-initiated post-hoc constitutional review because the "right" was subject to too many filters. And I doubt Sarkozy suspected his reform would result in one of the primary tools of law and order being held unconstitutional.
But voilà! 36 people subjected to garde-à-vue claimed the regime was unconstitutional, got through the filters, and and won. (See too this paper by IntLawGrrls guest/alumna Jacqueline Hodgson.)
While the Conseil didn't agree with all of the petitioners' arguments, to the French legal community's general astonishment, it declared not just 1 or 2 code provisions unconstitutional, but the entire "ordinary" regime of garde-à-vue. In so doing, the Conseil overturned its own 1993 decision, issued prior to the offending provisions' enactment, that GAV was constitutional.
In what may be considered a slap at Sarkozy's law-and-order policies (put into effect both while he was Interior Minister--top cop--under President Jacques Chirac, as well as under his own presidency), the Conseil:
► Laments the banalization of GAV: in 2009, GAV was ordered 790,000 times, an increase of more than 140% above the 320,000 GAV orders in 1993, when François Mitterand was still president.
► Notes, as controversy swirls around the proposed elimination of the juge d'instruction (prior IntLawGrrls posts here, here, and here), that fewer than 3% of criminal cases are handled by these investigating judges, such that persons are generally tried solely on the basis of the evidence gathered while they are in custody (24-48 hours under the "ordinary" regime). In addition, while the number of polices judiciaires has doubled since 1993, the requirements for becoming one of these detectives have been reduced.
After these general considerations, the Conseil addressed the more specific issues of:
► Whether GAV is incompatible with human dignity (no);
► Whether persons subject to GAV (GAVees) have effective assistance of counsel (no); and
► Whether GAVees' right to silence is sufficiently protected (no).
While GAV is necessary and not an affront to one's dignity (but see my post on the UN Torture Committee's assessment of the French penal system), the "ordinary: regime does not strike an appropriate balance between crime prevention/punishment and the exercise of constitutional rights. In particular:
► GAV may be extended from 24 to 48 hours in all cases, not just those involving offenses meeting a particular level of gravity;
► GAVees may consult with counsel for 30 minutes at the beginning of their GAV, but may not have counsel present during questioning; and
► GAVees are not notified of their right to remain silent.
While the right to remain silent seems like a fairly logical consequence of the right not to incriminate oneself, French law did not require arrestees to be notified of this right until 2000 (in the law on the presumption of innocence), and that requirement was eliminated in 2003. In this just-issued decision, therefore, the Conseil has just effectively told the government that it must reestablish the right to such notification, without which the ineffective assistance of counsel is exacerbated. The Conseil does not say that counsel must always be present during questioning, however; it merely says that a blanket prohibition, like the ability to extend GAV, is too broad.
Unfortunately, the Conseil did not agree with petitioners that allowing the prosecutor to prolong garde-à-vue violates the European Convention on Human Rights, which requires such decisions to be made by an independent, impartial judge (cases on this issue are pending in other French courts and before the European Court of Human Rights, which has so far stopped short of saying the French rule violates the Convention).
The Conseil also refrained from finding the "special" GAV regime -- established to handle terrorism, drug trafficking, and organized crime -- unconstitutional. It declined even though that regime allows for up to 6 days of garde-à-vue, in the very conditions the Conseil deemed unconstitutional under the "ordinary" regime; that is, lack of effective representation, presumption of innocence not sufficiently protected.
Moreover, the Conseil gave the Sarkozy administration 11 months (!) to rewrite the GAV laws in accordance with this decision. As a result, no GAV measures ordered before July 1, 2011, may be challenged on the basis of this decision.

On August 26

On this day in ...
... 1969, C-150, an Omnibus Bill that revised Canada's Criminal Code to decriminalize sodomy, went into effect. The entry into force marked the end of a campaign touched off by the 3-2 Canadian Supreme Court judgment in Klippert v. The Queen (1967), which dismissed an appeal lodged by a gay man sentenced to an indefinite period of preventive detention on as "a dangerous sexual offender." Soon after the bill was introduced, and it became law after its parliamentary sponsor, Pierre Trudeau -- who'd defended the bill in a televised interview by saying: "There's no place for the state in the bedrooms of the nation." -- became Prime Minister. The legislation Canada's laws with regard to not only to this aspect of sexual conduct, but also to abortion, contraception, and other matters.


(Prior August 26 posts are here, here, and here.)

Fact-finding Without Facts

(Tremendous thanks to IntLawGrrls for inviting me to contribute this guest post)

The international criminal tribunals confront severe impediments to accurate fact-finding.
The challenge of that fact-finding process is the subject of my book, Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, published just days ago by Cambridge University Press. The book is summarized in an article I contributed to a 2009 symposium edition.

The basis for my study is a large-scale review of transcripts from the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the Special Panels for East Timor (below left). (photo credit) This review demonstrates that many international witnesses are unable to convey the information that court personnel expect – and need – to receive if they are to make reasoned factual assessments in which we can have confidence.
Moreover, what clear information witnesses do provide in court often conflicts with the information that the witnesses previously provided in their pre-trial statements. I find that:

► Such inconsistencies pervade international criminal testimony; and

► They frequently pertain to core features of that testimony.

In particular, my review of all of the completed Sierra Leone Special Court cases and a handful of the Rwanda Tribunal cases shows that more than 50 percent of the prosecution witnesses appearing in these trials testified in a way that was seriously inconsistent with their pre-trial statements. Sometimes the inconsistencies related to such details as the date, time, or place of the crime, but as frequently they related to such fundamental matters as the nature of the crime and the nature of the defendant’s involvement in the crime.
After delineating these testimonial deficiencies, I consider some of their causes:

► Limitations on witness capacity: Many witnesses lack the education and life experiences to be able to read maps, tell time, or answer questions concerning distances and dates. Cultural norms and taboos create additional communication difficulties, as some witnesses are reluctant to speak directly or at all about certain events and as international judges inappropriately assess witnesses’ demeanor and willingness to answer questions by Western norms. The need for language interpretation for virtually every fact witness and the unfamiliarity of most witnesses with the predominantly adversarial trial procedures used at the international tribunals only compound these problems.
► Witness mendacity: Educational, cultural, and linguistic factors likely cause many of the inconsistencies and other testimonial deficiencies that pervade international trials, but witness mendacity provides an equally plausible explanation. Indeed, my review of ICTR cases shows that more than 90 percent of cases that went to trial featured an alibi or another example of diametrically opposing testimony from defense and prosecution witnesses. Although some of these witnesses may be honestly mistaken, the use of alibis and the incidence of contradictory testimony so vastly exceeds that which is common to domestic trials that it would be naïve to dismiss a substantial portion of it as arising from honest mistakes.
These empirical findings lead me to conclude that international criminal trials are less reliable adjudicatory mechanisms than they appear.

But, the fact that international tribunals have considerable difficulty determining who did what to whom does not necessarily call into question the legal accuracy of international criminal judgments. What matters for that question is the way in which the Trial Chambers respond to the testimonial deficiencies that pervade their trials.

Comparison between witness testimony and the Trial Chambers’ description and treatment of that testimony led to the discovery that, as a general matter, the tribunals take something of a cavalier approach to fact-finding impediments. Many testimonial deficiencies are never mentioned in the Trial Chambers’ judgments, and most of those that are, are reflexively attributed to innocent causes that do not impact the witnesses’ credibility.
So, why do the Trial Chambers seem so unconcerned about testimonial deficiencies?

In my view, the Trial Chambers’ cavalier attitude derives most directly from principles of organizational liability that appeared in Article 9 of the 1945 Charter of the International Military Tribunal at Nuremberg. These organizational liability principles were ostensibly discredited during the Nuremberg Trial (right), but they continue to exert a powerful influence over fact-finding at today’s international tribunals.

Indeed, if the Trial Chambers appear largely unconcerned about testimonial deficiencies, it may be because the testimony itself is not the exclusive basis for the Trial Chambers’ factual determinations.

The Trial Chambers appear to be convicting defendants on the basis of the acts charged in the indictments and basing their factual findings about those acts solely on the testimony that has been presented to them. In fact, however, the Trial Chambers supplement that testimony with inferences that they draw from the defendants’ official position or institutional affiliation in the context of the international crimes that have been committed.

Careful examination shows:

► Why the inferences drawn from the position or affiliation of the accused can prove particularly compelling; and

► How such inferences can explain and justify both:

►► The Trial Chambers’ casual treatment of most fact-finding impediments; and

►► Certain otherwise inexplicable acquittals.

In short, because objective or reliable evidence is so difficult to come by in the international realm, Trial Chambers rely on official position or institutional affiliation as a proxy of sorts for the defendant’s involvement in the crimes.

Prosecutors must still present some evidence to support the specific allegations appearing in the indictment. The stronger the inferences that can reasonably be drawn from official position, however, the more that Trial Chambers are willing to overlook problematic features of prosecution witness testimony or attribute those problems to innocent causes.
After proposing methods for improving the quality of international tribunal testimony, in my book’s final chapter I consider the broadest and most pressing normative question:

Will the fact-finding impediments, if they persist, fatally undermine the work of the international tribunals?

Various ways of justifying international criminal fact-finding are addressed. The primary focus, though, is on how the evidence presented at the international tribunals interacts with the applicable standard of proof. Particularly explored are modern scholars who view beyond a reasonable doubt as variable standard that signifies -- and should signify-- different levels of certainty in different cases. I conclude that this understanding of the standard of proof not only affords an alternative explanation for international criminal fact-finding, but also provides a solid and satisfying justification for it.

Gender & the death penalty in India

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

The Indian Supreme Court has had to grapple time and again with the constitutionality of the death penalty.

The leading decision on the issue is Bachan Singh v. State of Punjab (1980). Here the Court (below right) recognized that there was scope for arbitrariness in the award of the death penalty due to unguided judicial discretion in determining sentences. To rectify this, the Court established a paradigm for guided discretion, and restricted the award of death penalty to the “rarest of rare” cases, where the convict is beyond reform and the option of life is “unquestionably foreclosed”. This conclusion has to be based on an analysis of aggravating and mitigating circumstances pertaining to each individual case.

However, as I have argued in my paper, Gender Dimensions of the Death Penalty in India, the principles by which the “rarest of rare” determination is governed are applied in a manner that devalues the forms and sites of violence commonly experienced by women, as compared to those that are more familiar to the male worldview. Thus is retained the arbitrariness of the death penalty regime.
The principles by which the “rarest of rare” determination is governed are morally contingent, and operate against a backdrop of social norms that justify and legitimate (and sometimes even mandate) violence against certain segments of the society (including women).

For example, courts are required to examine:

► Whether the crime is one of extreme depravity;

► Whether there is any continuing threat to society from the perpetrator; and

► Whether there is any scope for the reform and rehabilitation of the offender.

Mental and emotional disturbance or feelings of moral justification are significant mitigating circumstances.

As I show in my paper, courts do not consider women’s common experiences of violence to be particularly “depraved,” because there are often underlying social justifications that provide a veneer of legitimacy to the infliction of such violence. Killings for honour, shame, love, and lust fall into this category, as do the killings of nagging wives, resisting rape victims, and disappointing lovers. In these instances, courts regularly find that the crimes are not heinous enough to fall within the rarest of rate category -- and thus that the perpetrator does not constitute a continuing menace to society. His actions are seen as an aberration rather than an indication of a “criminal tendency.” In all these cases, the Court is therefore able to determine that the perpetrators would be able to reform and get rehabilitated. Such men are seen as “unlikely recidivists,” because the blame for the offence is shifted to the woman who provided unusual provocation, and therefore “called the crime upon herself,” a common social justification for the infliction of violence in the first place.

It is unfortunate that social justifications translate into legal devices for the perpetuation of violence.

Courts also privilege crimes committed for power, for property, and in the public sphere, over crimes within the family. The distinction drawn by courts creates a form of public/private divide, with the law privileging violence within the former sphere. This is discriminatory, since the most common form of violence faced by women around the world is within the family and by acquaintances. Women have unequal access to property, power, and public spaces. It is therefore much less likely that women will face violence in these contexts than within the home or in intimate settings.
The implication of these findings is not that the death penalty should extend to all crimes. Rather, it is that arbitrariness in the award of the death penalty will not disappear merely by providing a set of principles for determining the award of the death penalty.

At the same time, even if the death penalty were to be removed (as I believe it should be), it has to be remembered that law and punishment serve expressive ends. Patriarchal law reaffirms society’s entrenched views about women’s role and their worth.

By consistently discounting women’s experiences of violence in determining the norms by which a society is to be governed, law threatens to continue and further legitimate the already entrenched notions of hierarchy, discrimination, and violence in society.

"state authorisation of institutionalised child abuse"

Oliver Twist (image credit) is alive and well and living in juvenile justice centers in the UK! The title of my post is taken from this morning's Guardian article announcing what might be called more torture revelations in the UK: a "brutal guide to punishing jailed youths" has just been disclosed after the parents of two boys who died in a secure training center in 2004 won a freedom of information fight.
Way back in 1982, in a case called Campbell and Cosans, corporal punishment in its schools resulted in the UK's being found guilty of violating the European Convention on Human Right's prohibition on torture and article 2 of Protocol 1. In 1991, the UK ratified the Convention on the Rights of the Child, which the government announces on a dedicated website means the UK must respect the rights listed in the convention of all children in the UK. This includes, among other things, providing "special protection for . . . children in the juvenile justice system." But the training and self-defense manual that tells staff how to deal with unruly children as young as 12 tells them to:

■ "Use an inverted knuckle into the trainee's sternum and drive inward and upward."

■ "Continue to carry alternate elbow strikes to the young person's ribs until a release is achieved."

■ "Drive straight fingers into the young person's face, and then quickly drive the straightened fingers of the same hand downwards into the young person's groin area."

Such instructions do come with at least a couple of warnings, such as:

... the techniques risk giving children a "fracture to the skull" and "temporary or permanent blindness caused by rupture to eyeball or detached retina"; or

... the measures could cause asphyxia. One passage, explaining how to administer a head-hold on children, adds that "if breathing is compromised the situation ceases to be a restraint and becomes a medical emergency".

Suddenly, the torture files released a few days ago aren't such a scoop.

On July 9

On this day in ...
... 1986, the Parliament of New Zealand passed the Homosexual Law Reform Act, which "removed criminal sanctions against consensual male homosexual practices." The law applied to males aged 16 and over. Although sex between women never had been against the law, "many lesbians suffered the same social discrimination as gay men and were staunch supporters of the reform movement." The Parliamentary sponsor of the bill was Fran Wilde (right), who'd been elected on a Labour ticket 5 years earlier. Later she would serve as Mayor of the City of Wellington.

(Prior July 9 posts are here, here, and here.)

Guest Blogger: Jane B. Sprott

It's IntLawGrrls' great pleasure to welcome Dr. Jane B. Sprott (left) as today's guest blogger.
Jane's an Associate Professor in the Department of Criminal Justice and Criminology at Ryerson University, Toronto, Canada, where she teaches courses in corrections, youth justice, introduction to the criminal justice system, and research methods. Her own research interests include the operation of the youth and adult criminal justice systems, issues related to pretrial release, sentencing in Canada, and perceptions of crime and criminal justice policies. Her current research, supported by funding from Canada's Social Sciences and Humanities Research Council, investigates bail conditions placed on youths.
In her guest post below, Jane discusses her book, a comparative study entitled Justice for Girls? Stability and Change in the Youth Justice Systems of the United States and Canada, coauthored with Dr. Anthony N. Doob of the University of Toronto, and published last year by the University of Chicago Press. Jane's other publications likewise concern gender, youth, and criminal justice.
Heartfelt welcome!

Justice for Girls?

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

For over a century, concerns have been expressed about a ‘crime wave’ involving women and girls. Freedoms and greater equality for women were thought to be a cause. Recent concerns in the United States and Canada have, similarly, blamed perceived increases in crimes by girls on equality and equal opportunity. The only problem is that credible evidence of a ‘crime wave’ involving young girls does not exist.
More important than this phantom crime wave are credible data demonstrating that girls are being treated differently from boys by the youth justice systems of both Canada and the United States. Because the justice system’s response to girls is an understudied topic in most developed nations and it has never been the subject of transnational comparative assessment, the aim of Justice for Girls?, the 2009 monograph that I coauthored with Dr. Anthony N. Doob, was to review the social and legal developments in two countries, the United States and Canada, on the assumption that a comparative approach would help unravel the puzzles of girl crime and justice.
The separate justice systems for youths that were developed in the early 1900s in each country initially had very broad mandates and aimed simultaneously to divert youths from the adult system and to provide services to help ‘reform’ or ‘rehabilitate’ them. In both countries a disproportionate number of girls were brought into the system and sentenced to custody for non-criminal or ‘status’ offences. The stated goal, however, was not punishment: each country justified the inclusion of status offences as being a mechanism to accomplish rehabilitation. Although boys were much more likely to cause trouble in the community, girls, for most of the first two-thirds of a century of juvenile justice, appeared to be the special targets of rehabilitative interventions in both the United States and Canada.
In the 1960s the acceptability of placing status offenders in custody declined. In Canada, a 1965 federal report explicitly recommended removing status offences from the jurisdiction of the Act. But this was not accomplished until 19 years later. Although certain rights were addressed by the U.S. Supreme Court in the 1960s, federal legislative change related to status offences first occurred in the United States in the mid-1970s, with the enactment of the Juvenile Justice and Delinquency Prevention Act. Unlike in Canada, one of the key goals in the American 1974 Act was only to reduce the use of custody for status offences.
Avoiding intervention into the lives of troubled and troublesome children was difficult to accomplish in both countries. During the final quarter of the 20th century, both countries had developed mechanisms to ensure that youths could be placed in custody if they violated orders of the court. Offences were created:
► In the United States, the offence of ‘violating a valid court order’ (which could have been originally imposed for non-criminal behavior), and
► In Canada, the offence of ‘failing to comply with a disposition’ (in which a youth originally had to have been found guilty of an actual offence for which a normal sentence was imposed).
Each of these had the effect of allowing youths to be incarcerated for ‘normal’ youthful behavior – violating the edicts of their elders (in this case judges). Thus, both countries maintained what are, in effect, status offences, and used them somewhat disproportionately with girls. Minor offences and status offences continued to push girls into the justice system.
The constitutional differences between the United States and Canada make the comparison between the two countries more complex, yet also more interesting:
► The U.S. federal government obviously plays a limited role in juvenile justice legislation since the legislation is a state responsibility.
► In contrast, Canada’s youth justice legislation is a federal responsibility. With only one government responsible for youth justice legislation, it is not surprising that changes were more dramatic in Canada than in the United States.
During the latter half of the 20th century, the incarceration of girls in Canada and the United States declined slightly. However, since the 1970s the United States experienced an explosion in the use of imprisonment, while Canada experienced relative stability. In that context, it is remarkable that the United States saw a decline in the imprisonment of girls that was comparable to the best estimate of what was happening in Canada. What sets Canada apart from the United States is what happened after 1 April 2003, when Canada’s new youth justice legislation was enacted: a dramatic reduction, for both girls and boys, in the use of custody.
There are, however, still concerns that girls are more likely than boys to be incarcerated for very minor offending. In Canada the best existing data suggest that there are still more girls relative to women in custody, while in the United States there are slightly fewer girls relative to women in custody. Given that in both countries there are substantially fewer boys relative to men in custody, and that girls commit less serious offences and have less extensive criminal histories than boys, girls should not be seen in custody as much as they are – if the reason for incarcerating them is their offence and criminal record.
This two-nation comparison shows that the persistence of protectionist incarceration over time is a strong element in both nations despite the policy efforts to reduce it and the obvious progress that has been made. Until quite recently, the two nations did not differ substantially in their success in eliminating protective incarceration. However, in 2003 Canada’s new youth justice legislation had a dramatic effect in reducing the incarceration of girls. The allocation of political responsibility for juvenile justice in the United States does not allow federal legislation to have the same impact as the Canadian reforms of 2003. Nevertheless, changes in U.S. state systems could produce similar changes with similar impacts. The Canadian trends suggest that U.S. systems could reduce dramatically the incarceration of girls (and boys) – if there were a will to do so.