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Post written by Kendra Medina, LLM candidate 2015, Pace Law School.

As the technology evolves, different techniques for assisted reproduction have developed. The possibility of preserving embryos is now a reality that allows infertile or same sex couples, as well as single or ill individuals, to preserve their gametes for years in order to plan for their reproductive needs. In-vitro fertilization (IVF) and cryopreservation (to freeze embryos) have become the most popular techniques for this purpose all over the world, including Mexico.

The average number of viable embryos transferred into a woman’s uterus on an IVF procedure or cycle is generally not more than three. However, usually there are more embryos produced, which, if not used, are frozen (or cryopreserved). There are no data as to the average number of cryopreserved embryos in Mexico, but the increasing infertility (according to the INEGI – National Institute of Statistics and Geography), has caused more couples and individuals to seek this type of assistance. Therefore, the number of embryos that are cryopreserved has increased.

Consequently, the development in Mexico of specific regulations and guidelines for assisted reproduction providers to follow with respect to the treatment of cryopreserved embryos is of great importance. Most important is the development of rules and principles that the courts can apply when resolving a dispute on the use of cryopreserved embryos between the parties involved when circumstances change (usually due to divorce).

The primary source of law in Mexico, as a civil law jurisdiction, is statutes. Judicial resolutions are also a source of law, since they can constitute case law (known in Mexico as jurisprudencia, which is binding only if it comes from certain courts and in accordance with certain rules), as are the international treaties to which Mexico is a party. However, with respect to cryopreserved embryos and any legal rights over them or any legal protection to which they may be entitled; there is no specific legislation; no case law has been developed in Mexico so far; and, no international treaties on this topic have been ratified. Consequently, it could be useful for Mexico to learn from the experience of other jurisdictions, such as the United States of America (“U.S.”), where the practice of IVF and use of embryo cryopreservation is very common and generalized; and, although there is no consensus among state legislation, robust case law has developed on this topic.

In Mexico, as in the U.S., when a dispute over the use and/or disposition of cryopreserved embryos arises it is mostly within the context of family law (marriage dissolution) or contract law (breach of contract), and usually confined within the limits of state or local law. Therefore, it is necessary to understand how the law has developed in each particular state within the U.S. Likewise, in order to explore the most suitable approach for Mexico —should it develop new legislation on this matter?— it is necessary to ask some basic questions. Is a cryopreserved embryo a person even though it has not developed into a born and alive child? Is it a thing that can be treated as property? Or is it a hybrid of these two concepts?

For purposes of this short essay, I will just summarize the different approaches that the U.S. courts have taken to resolve these disputes. Meagan R. Marolda summarizes these approaches in her article “Ice, Ice, Baby! The Division Of Frozen Embryos At The Time Of Divorce,” 25 Hastings Women’s L.J. 179 (2014):

  1. the state statutes (state legislation provides for guidance on how any dispute over frozen embryos should be solved). Just a few jurisdictions have enacted laws on this topic: California, Massachusetts, North Dakota and Louisiana;
  2. the contractual approach (agreements to which the infertile couples/individuals must sign at the time of the in-vitro fertilization procedure with respect to the disposition of embryos that are not transferred);
  3. the contemporaneous mutual consent approach (all parties involved must reach an agreement at the time that the embryos want to be disposed of, either destroyed or implanted, provided that changes in circumstances may have occurred after the in-vitro fertilization procedure took place, holding any agreements dated thereof not binding), and;
  4. the balancing approach (where both, the wishes and the rights of the parties involved are taken into consideration, either to procreate or to not procreate).

Under Mexican law, an individual is recognized to have rights as of the moment of its “conception”. The Mexican Federal Civil Code does not provide more information as to what “conception” should mean and it does not make reference to which specific rights any such individual may be entitled. Moreover, the term “conception” is usually utilized from a religious perspective, but from a mere physiological stand point, it would be as of the moment of “fertilization of an oocyte by a sperm”, that is, the formation of a viable zygote by the union of the male sperm and female ovum. However, the Article 22 of the Mexican Federal Civil Code does provide that an individual is protected under the law, even if unborn, in which case such unborn shall be deemed to have been born for all purposes under the Mexican Federal Civil Code. Although this provision in itself is confusing, it does not make a distinction between a naturally or artificially created embryo for purposes of its entitlement to have rights protected by the law. Furthermore, Article 314 of the Mexican General Health Law, which includes a definition of embryo, does not help making any distinction either. According to this law, an embryo is “the product of the conception as of the time of conception and until the twelfth week”.

The rights to which an embryo may be entitled may vary in the course of time depending on the stage of its development, whether it becomes a viable fetus, a viable born child, a minor, a minor with disabilities, an adult or an adult with disabilities (each of which legal capacities are detailed throughout different provisions of the Mexican Federal Civil Code). The difference among these rights would depend on the legal capacity that such individual may have at any given moment to exercise those rights and, such rights can be identified only on a case by case basis depending on the circumstances, the jurisdiction and the applicable specific legislation.

For example, in half of the States within the Mexican Republic, abortion is not penalized by the local penal codes, regardless of the reason, so long as it is practiced within the first trimester of the pregnancy (which means either the right to live of an embryo outside nor inside the womb and implanted into the uterus, is protected prior such period). Nevertheless, according to Article 1314 of the Mexican Federal Civil Code, any “conceived” individual, even if unborn, has the sufficient capacity to inherit property, so long as it has been conceived (that is, to be an embryo or zygote) at the time of death of the deceased. The contrast of these provisions highlights the potential contradictions that may arise under Mexican law if no specific legislation is available. Additionally, as if the federal law was not confusing enough, Article 337 of the Mexican Federal Civil Code provides that

for legal purposes, a fetus can only be considered to be born if, completely separated from the mother’s womb and if it lives for 24 hours or is presented alive before the Civil Registry. If any of those circumstances are missing, then no one can never claim to have paternity over it.

Does this mean that the provider of the male gamete cannot claim to have any right based on its relationship over a frozen viable embryo because it is not yet a fetus?

In contrast, in the U.S., although there is no federal legislation, there are some relevant state statutes in this regard that have helped the courts to develop case law on this topic. Nevada, for example, provides a definition of an embryo as a

cell or group of cells containing a diploid complement of chromosomes or a group of such cells, not including a gamete, that has the potential to develop into a live born human being if transferred into the body of a woman under conditions in which gestation may be reasonably expected to occur.

That is, there are two kind of embryos: the pre-embryo (the embryo that has not been transferred into a uterus and, therefore, does not yet have the potential to develop into a human being); and, the embryo, which has been transferred and implanted into the uterus of a woman (which has such potential). Interestingly, the State of Louisiana goes further and defines what an in vitro fertilized human ovum is:

A viable in vitro fertilized human ovum is a juridical person which shall not be intentionally destroyed by any natural or other juridical person or through the actions of any other such person. An in vitro fertilized human ovum that fails to develop further over a thirty-six hour period except when the embryo is in a state of cryopreservation, is considered non-viable and is not considered a juridical person.

I look forward to going into more detail on each of the possible approaches that Mexico should take into consideration when regulating in general the rights over frozen embryos and, in particular, to solve any disputes over them, based on the experience that the U.S. has had so far, which amounts at least forty cases (all of them solved using the different approaches mentioned above) in my academic research paper to be completed in 2015.

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POST WRITTEN BY: Bani Kohar Harahap (LL.M Candidate at Pace Law School, May 2015).

Indonesia, which is based on Civil Law, does not use a jury system to decide criminal cases or civil cases. In Indonesia, religion is a major principal in the nation, and the spirit of Pancasila (the symbol of Indonesia) is the belief in God Almighty. The Muslim religion makes up over 90% of the population in Indonesia. The Constitution of Indonesia, UUD 1945, is the basis for the government in Indonesia. It is explicitly stated in the Constitution of the UUD 1945, at § 29(1), that “the State is based upon belief in one God.” § 29(2) reads: “The State guarantees freedom each citizen to profess their own religion and to worship according to his religion and belief.” Thus, freedom of religion is one of the most fundamental human rights, because freedom of religion is directly sourced to the dignity of human beings as God’s creation. Thus, the state must guarantee the freedom for everyone to embrace each religion and to worship according to the religion or their belief.

Guarantees of Freedom of Religion are stated in UU no. 39 Year 1999 on Human Rights, which in § 22(1) states that: “everyone is free to adhere to their religion and to worship according to their religion and belief.” The right to freely embrace religion or belief means any person is entitled to religion according to his own faith, without any coercion from anyone. Section 22(2) states: “The State guarantees freedom of every person to embrace their own religion and to worship according to their religion and belief.” It is obvious that religious freedom is a human right that contains the right to be respected as well as the obligation to respect others. For example, once a year, Ramadhan is the month where Muslim people get many blessings for the Alloh S.W.T (The GOD). The bars and nightclubs must be closed during Ramadhan. If the owner of the bars and night clubs try to stay open, the government can ban them.  Additionally, although it is illegal, people may get angry and try to destroy the bars or nightclubs. This is their way of showing that the owner of the bar is not showing respect to the Ramadhan.

Netherlands was Indonesia’s colonist. Indonesia suffered for more than 200 years before we became independent country. Our Independence Day is August, 17, 1945. For that reason, the Indonesian criminal legal system adopts the laws of the Netherlands, establishing a criminal act or a deplorable act in § 1(1) of the KUHP. The KUHP are the fundamental laws in criminal cases in Indonesia. KUHP is also a tool used by the judges to decide criminal cases. The KUHP § 1(1) is known as the principle of legality, which has prohibited acts and criminal sanctions.

A criminal offense exists when an action is in conformity with the contents of the formulation of the legislation. Religious offenses in the KUHP appear after rising UU No.1/PNPS/1965. Section 4 of the UU states that the provisions of the law governing religious offenses are included in the Section 156 of the KUHP. Section 156 of the KUHP includes the policy measures to provide protection against the legal interests of private religion. The provisions of Section 156 of the KUHP is read as follows:

Whoever publicly expressed hostility, hatred or contempt toward one or several layers of Indonesia may be punishable by a maximum four years imprisonment or a maximum fine of three hundred rupiah.

The severity of the punishment depends on who committed the crime. For instance, if you are a leader in one specific religious community and provoke another religious community, you shall go to prison maximum four years without trial, unless you can provide evidence that you are not a being provocateur. If you can prove that, you can get a trial. Furthermore, the implementation of Section 156 of the KUHP requires the protection of “population group,” or in other words, the protection of “persons.” This concerns people that are included in a “group” that is recognized as valid under the laws of their state, as well as groups according to the “religion.” Protected objects are a “person,” which protects not the physical, but the self-respect of that person. The attack on the self-esteem of people who are included in a group leads to “disruption” to that person, which then leads to the disruption of “public order.”

Thus, a statement that is hostile, hateful or condescending towards religious groups can be criminalized under Section 156 of the KUHP. Therefore, this section is not clear and is confusing as to whether “religion” or “religious people” are protected. Then it becomes deficient in the policy formulation of the provisions.

Indonesia is still working to improve the legal system. Because Indonesia inherited most of its law from the Netherlands, the language is one of the major problems. All criminal cases, civil cases and other cases are only decided by the judges in every province in Indonesia.

POST WRITTEN BY: Mai Kemmochi, LLM Pace Law School (’15) and Doctoral Program of Sophia University (’17).

“Saiban-in” is a special position introduced in 2009 in the Japanese judicial system. It corresponds to the jury in the U.S. For every case, six persons are randomly chosen from citizens who are 20 years of age or more, and they take part in a trial and decide a judgment with three professional judges. Cases which may involve saiban-in are limited to several kinds of criminal cases: for example, murder, manslaughter, arson, abduction, and stimulant smuggling.

This system is expected to encourage citizens to feel familiar with the court, thereby enhancing their reliance on the judicial system. Before the introduction of this system, the court was deemed another world for citizens because trials were too technical and lengthy for them to access and understand. In response to these difficulties, there were many attempts to make trials easy for lay persons to understand, and to shorten the period of trials, such as pretrial conference procedure among the judge, prosecutor and lawyer in order to clarify and narrow the point in dispute. Furthermore, the most important point of the saiban-in system is that general citizens’ “common sense” can be reflected in judgments, because the court had been sometimes criticized that judgments rendered by professional judges differed from citizens’ view on the seriousness of crimes.

There are three major differences between the Japanese saiban-in system and the American jury system. First, the saiban-in system is not applied to civil cases, while in the United States the jury takes part in both criminal and civil cases. When the saiban-in system was developed, some people said that citizens’ common sense was more needed in civil cases. However, the system was introduced only in criminal cases because the application to both cases would have laid a heavy burden on citizens, and criminal cases have larger effects on our society.

Second, the saiban-in should decide not only whether a defendant is guilty or not, but also what the appropriate sentence for the defendant, including the death penalty. A person who is convicted of murder, for instance, “shall be punished by the death penalty or imprisonment with work for life or for a definite term of not less than 5 years” under Article 199 of the Penal Code. In this instance, the saiban-in should select appropriate penalty from a range of possibilities, considering many factors like the situation, motive and result of the criminal act.

Third, in principal, the sentence is unanimously decided by six saiban-in and three professional judges together. If they don’t reach consensus after sufficient discussion, they then take a vote, but at least one professional judge must agree with the majority when the result is disadvantageous to the defendant. Under the saiban-in system, it seems that professional judges play an indispensable part in explaining law to the saiban-in, who have no legal expertise, as well as keeping general balance with other similar cases, thereby sustaining legal stability.

Five years have passed since the saiban-in system was adopted, and the number of cases which the saiban-in joined amounts to around 7,000. This inexperienced system has not been without some problems. Among these, I briefly present (1) constitutionality of this system, (2) the burden on the saiban-in and (3) a tendency toward a more severe penalty.

The Japanese Constitution has no provision regarding jury, unlike the U.S., so the constitutionality of the saiban-in system had been disputed. However, in 2011, the Supreme Court upheld its constitutionality, thereby settling this argument.

When the saiban-in system was introduced, a matter of public concern was the burden caused by a long-term trial or fear of danger. Relating to the fear of danger, if the life, body or property of the saiban-in could be harmed, such a case may be excluded from those in which the saiban-in take part. However, this exemption clause appears to be construed very strictly, and has been applied to only one case which involved two members of the Japanese mafia. As for the long-term trial, most cases are finished in three or four days. The average length is 5.7 days, but the longest trial reached 95 days. Though the current exemption clause isn’t applied to the long-term trials, there is discussion that this clause should be expanded to cases where the saiban-in would attend a trial for a significantly long term.

In addition, some people have voiced concerns that the saiban-in might feel sympathy for victims, thereby punishing more severely than professional judges. According to statistics, the tendency toward more severe penalties is certainly recognized, but the number of sentences to death is slightly decreasing and the proportion of deferred adjudication probation is increasing. If judgments to which saiban-in related are appealed, higher courts should not reverse them unless they are logically or empirically unreasonable, and the actual number of reversals is very small.

The adoption of the saiban-in system is successful in that it has no remarkable harmful effects, and it narrows the gap between the court and our daily life. In particular, regarding the latter, the saiban-in seems to feel sympathy not only for victims but also defendants, and have the opportunity to consider punishments for crimes and the death penalty itself. This system will be indispensable to provide a forum for discussion of our society’s legal system between citizens and judiciary and among citizens.

 Sources:

POST WRITTEN BY: Simon K. Kieser, Pace Law School, LLM Candidate in Global Environmental Law, 2015; Awardee of the Richard L. Ottinger Environmental Scholarship; Graduate Studies Liaison, Student Bar Association; LLM Representative, Environmental Law Society.

montaraThanks to today’s international media network, information is shared more easily than ever, putting increasing pressure on companies to do the right thing. Unfortunately, this has not always been the case and for centuries entire industries, such as the Petroleum industry, did their part to severely damage our planet, with few consequences.

Although it is refreshing to see that the media and the public at large now keep a closer eye on events, such as Deepwater Horizon, holding companies accountable for their actions, similar events outside the USA still go unnoticed and unpunished.

Focusing on inadequate oil spill litigation, this article provides an outline of Australia’s worst oil spill disaster in history, where Mother Earth had to “take one more for the team”.

On 21 August 2009 Australia faced the worst offshore oil spill in history, the Montara oil spill, lasting 74 days and releasing approximately 4.74 million liters of oil during that period. The Montara oil spill started with an uncontrolled release of oil and gas and occurred on an oil rig, operated by PTTEP Australasia (PTTEP AA), 690km west of Darwin, in the Timor Sea.

The Montara incident occurred after several uncontrolled releases of petroleum, containing oil and gas, leaked and the gas suddenly ignited due to metal sparks. Seawater then entered the casing of the well, creating a difficult situation to cap the well with a relief well.  Although PTTEP AA was the operator of the oil rig and thus, was the designated Combat Agency to stop the oil spill, PTTEP AA was incapable to handle the situation and severely prolonged disaster mitigation operations. Although Australia was lucky that no lives were lost and no oil reached the Australian coastline, Montara did have a disturbing impact on the environment, marine life and the Timor Costal area.

Both Australian and Indonesian fishermen have reported that the water around the Timor Sea area became cloudy and itchy after the Montara incident, due to the chemical dispersant sprayed on the oil slick. In addition, sightings of a dead blue whale, dead dolphins and dead fish have been reported and locals state that fish colonies and the vegetation (seaweed farms) has severely suffered.

As stated under the Commission of Inquiry Report, the root causes for Montara were a series of negligent actions and carelessness which included the failure to maintain two well barriers, the failure to verify barriers and the lack of employees’ competence, leading to deficient decision making and poor management of change control.

Adding to the unsatisfied operation standard, PTTEP AA neglected to install a blow-out preventer and ignored to change the 244mm Pressure Containing Cap (PCC) to a 320mm PCC. Once the 244mm PCC had been removed, no new PCC had been re-installed, leaving the well open to the atmosphere.

As if these inexcusable mistakes would not have been enough, incompetent operators and negligent cement workers built ineffective barriers in the shoe track, creating a “wet shoe”. As there was no isolating cement plug in the upper wellbore and no completion Brine, the casing filled with seawater, worsening the situation and triggering the well-blow-out and its associated struggles to stop oil leaking from the well.

The evidence that Montara could have been easily avoided and the fact that the root causes of Montara lead back to PTTEP AA’s ignorance and incompetence are undisputed and thus, one would assume that PTTEP AA would be held accountable, right? Unfortunately, this is not the case.

Although PTT Exploration and Production (PTTEP), the holding company of PTTEP AA, found itself in the Darwin Magistrates Court (Australia’s lowest court) three years after the oil spill, PTTEP only faced fines of up to AUD $1.7 million. Even though these fines seem shockingly low for Australia’s worst oil spill disaster in history, after PPTEP pleaded guilty to the charges, the court handed down a judgment, fining PTTEP in the amount of ONLY AUD $510, 000.

For any person with decent respect for Mother Earth, this judgment is certainly hard to swallow. As Australia has some of the most fragile ecosystems in the world, why would any Australian court make such a poor decision?

The magistrate was of the opinion that PTTEP had made every effort to transform the company’s operation practices and culture to ensure that similar incidents will not occur in the future. Furthermore, the magistrate took into consideration that PTTEP had no prior incident record and that PTTEP pleaded guilty.

One might start to wonder whether these “considerations” are appropriate and adequate for an oil spill that spewed out into the Timor Sea for 74 days at a rate of up to 500,000 liters per day and covering an area of 90,000 square kilometers. I think not!

Unfortunately, the actual environmental harm and long lasting impacts were not considered nor were impacts beyond Australia’s border considered. Yet, the argument that the long lasting environmental harm is of huge magnitude is a difficult one to make.

Unfortunately, no baseline studies had been done before in this area and thus, we know little of how effective the “clean-up” was and how badly the environment is suffering. Furthermore, due to the strong current and isolated location, it is hard to physically see the impacts from the distance and thus, studies and care have been neglected. After all, out of sight, out of mind.

Over the past weeks (five years after the oil spill), new reports have emerged that the Indonesia government is still trying to seek justice for the environment and for the 100,000 Indonesian people that live in the Timor Sea area. According to the reports, the Indonesian government has asked the Australian government to help make PTTEP AA launch an investigation and proper scientific study to determine the effects of the oil spill.

Unfortunately, up until now, the Indonesian government was powerless to seek merited justice. The reason for this ongoing battle against PTTEP AA and the Australian government is that the Montara incident occurred inside Australian territory and Australia has not yet demonstrated any interest in helping.

A statement from the Australian Department of Foreign Affairs and Trade stated: “Scientific studies were conducted in Australian territory following the oil spill. We understand that remote sensing indicated that oil did not reach the Indonesian coastline.”

In addition, a statement from PTTEP AA concluded that “PTTEP Australasia is aware of the claims that the 2009 Montara incident negatively impacted West Timorese fishing and seaweed farming communities. To date, we have not received any credible evidence that oil from Montara caused damage to the environment in West Timor.”

However, the environmental harm that Indonesia witnesses on a daily basis clearly proves otherwise – one only has to take a closer look.

Has mankind really become so arrogant and ignorant that we happily sacrifice our planet at the expense of our future generations only because….we are too lazy to care?

Perhaps one reason why the environment had to “take one more for the team” is because Australia is very easily persuaded to have its natural resources extracted, offering its extraction operations to virtually anyone who is interested, with very little government control and extraction operation regulations.

Another reason could be that, unlike the USA, Australia did not have a much needed “polluter pays principle” at the time the Montara incident occurred. Consequently, PTTEP AA did no face any severe penalties and got away easily.

A third reason might be that people just don’t care.

Whatsoever, in today’s world, with an overflow of international media networks, we do no longer have an excuse to be ignorant. For the sake of Mother Earth, it is time that we hold companies accountable for their negligent and ignorant actions that harm our planet.

Related Reading:

Veterans’ Day

As we celebrate Veterans’ Day on November 11, take a look at the Library of Congress’s Veterans’ History Project, a collection of audio- and video-taped interviews, written memoirs, correspondence, photographs, drawings and scrapbooks of American war veterans and civilians who were actively involved in supporting war efforts (such as war industry workers, USO workers, flight instructors, and medical volunteers. The collections cover the following wars:

  • World War I (1914-1920)
  • World War II (1939-1946)
  • Korean War (1950-1955)
  • Vietnam War (1961-1975)
  • Persian Gulf War (1990-1995)
  • Afghanistan and Iraq conflicts (2001-present).

Created in 2000 by Public Law 106-380 with unanimous support in Congress, the Project contains an individual web page for each veteran who has contributed. The significance of these collected materials is expressed by Teresa Fazio, an Operation Iraqi Freedom Veteran:

It’s important to get every veteran’s story, so future generations can learn about military life from firsthand accounts. Our individual experiences may have been different, but when compiled they form a powerful snapshot of history.

From the ABA Journal. Do you have the skills, traits and values of a good lawyer? Take this quiz to find out. The quiz will let you know what skills are needed to be a great trial lawyer. If you have them, wonderful, if not, you need to work on them.

Court Listener, founded in 2010 by Brian W. Carver and Michael Lissner, is a free legal research platform – an alternative to fee-based research databases. This project is sponsored by the Non-Profit Free Law Project and offers coverage of millions of legal opinions from federal and state courts, and most recently even oral arguments from the US Supreme Court, First, Third, Fourth, Fifth, Seventh, Eighth, Ninth, D.C., and Federal Circuit Court. We previously blogged about the availability of the recordings of Circuit Court’s oral arguments online. Court Listener currently covers 360 jurisdictions. The data available at Court Listener was provided by:

courtlistener

Court Listener offers basic and advanced searches. Advanced search option includes search by citation or docket number, search by case name or judge, ability to pre-filter by jurisdiction or date, ability to filter results by date (newest or oldest first), relevance, or by frequency of citation (least or most cited), option to set a precedential status of a case (precedential, non-precedential, errata, separate opinion, in-chambers, relating-to orders, or unknown), and the search algorithm accepts an impressive list of operators, including for example: AND, OR, NOT (where NOT may also be indicated by a dash – or exclamation point !; ”" Phrase; () Grouped Queries; *, ? Wildcard, and more.

Users may also sign up to receive daily alerts for oral arguments or opinions. Users do not have to be signed in (or create an account) to run a search. Search results can be further refined by date, case name, judge, precedential status, or citation count. A displayed opinion preserves original pagination and includes a full table of authorities, full list of subsequent citations, a link to the original opinion available from the court, and ability to share the URL of the retrieved opinion via email or social media (including FB and Twitter).

The ICTY in its weekly press briefing reported that the trial of Radovan Karadžić concluded on October 7, 2014, after 497 trial days, and according to the most recent estimate, the judgment is expected to be delivered by the Trial Chamber in October 2015.

The Office of the Prosecutor presented evidence from 336 witnesses of which 195 testified during the trial. The Defence presented evidence from 243 witnesses of which 238 testified during the trial. 6669 exhibits were tendered by OTP, whilst the Defence tendered 4806 exhibits . The Trial Chamber presented 3 exhibits.

Mr. Radovan Karadžić, a founding member of the Serbian Democratic Party (SDS), former President of SDS, Chairman of the National Security Council of Republika Srpska (RS), President of the three-member Presidency of RS and later the sole President of RS and the Supreme Commander of its armed forces, was first indicted on July 24, 1995 (IT-95-5). In this indictment, confirmed on July 25, 1995, he was charged with genocide and other crimes committed against civilians throughout the territory of Bosnia and Herzegovina. Later that year, on November 14, 1995, the OTP filed a separate indictment (IT-95-18) charging Karadžić with crimes committed during the Srebrenica events in July 1995. This separate indictment was confirmed two days later.

Thirteen years later, in September of 2008, the OTP amended the first indictment, and, among other things, removed the  original charge of complicity in genocide and lowered the number of municipalities in which the accused allegedly committed the crimes. The ICTY confirmed these amendments stating that the removed crimes “were not supported by the evidence.” Lastly, a third amended indictment was filed in February 2009 adding a previously removed incident in the Sušica camp. The third indictment was in October 2009 re-visited and marked-up removing seven additional municipalities and seven out of eight incidents in the eighth municipality. Radovan Karadžić was charged “on the basis of individual criminal responsibility under Art. 7(1) and superior criminal responsibility under Art. 7(3) with genocide, persecutions extermination, murder, deportation, inhuman acts, …, unlawful attacks on civilians, acts of violence the primary purpose of which is to spread terror among the civilian population, taking hostages….”

The accused was arrested on July 21, 2008 by the Serbian authorities and 9 days later (on July 30, 2008) transferred to the custody of ICTY in the Hague. It took eight months before a plea of not guilty was entered on the accused’s behalf. The trial commenced on October 26, 2009 and concluded nearly 5 years later, on October 7, 2014. Although trials at the international tribunals take longer, this one was prolonged by the non-compliance of the accused who failed to appear on multiple occasions, claimed inadequate time to prepare, and continued to disrupt the proceedings. The Court therefore held a hearing and on November 5, 2009 issued a decision in which the Court found that the accused had “substantially and persistently obstructed the proper and expeditious conduct of his trial,” thereby meeting the test for appointment of counsel set out by the Appeals Chamber. The Registrar was ordered to appoint a counsel for the defendant, prepare the case to represent the defendant’s interest, and the trial was ordered to resume on March 1, 2010.

A full documentation of the case can be found on the official website of the ICTY, including the case information sheet and all other related documentation (indictments, transcripts, trial chamber decisions and orders, appeals chamber decisions, orders, and judgments, and any other documents) are available on the official case website: IT-95-5/18-I.

The ICC Legal Tools Database is another platform providing access to the leading information on international criminal law, including international criminal decisions of, among others, the International Criminal Tribunal for former Yugoslavia (ICTY).

And lastly, the International Crimes Database (first premiered a year ago in November 2013), offers access to information and decisions on “international crimes adjudicated by national, as well as international and internationalised courts.” Cases can be browsed by a name, a category including the category of genocide, war crimes, crimes against humanity, crime of aggression, torture, piracy, and terrorism, or it can be searched.

In a October 13, 2014 appearance on Bob Herbert’s Op-Ed. TV program, Prof. Thomas M. McDonnell addressed the challenge posed by the rise of ISIS. He explained “what led to the situation we now face in the war torn countries, and discusse[d] how our involvement should be open to a national debate.” In the interview, he summarizes the major immediate and historical causes that gave rise to the ISIS terrorist group, outlines the role of U.S. Senate and its authority in declaring war, and addresses the use and the effectiveness of the use of drones by the U.S. military.


 

Thomas M. McDonnell is a Professor of International Law at Pace Law School where along International Law, he also teaches International Human Rights, Constitutional Law, and Criminal Law. His work related to the struggle against terrorism also includes the following:

2010 Orientation 40The following are the most recent additions to our Law in Film collection. This collection is housed on the library’s main level in the student lounge. All Pace Law Library patrons with borrowing privileges may check any of these films out at no charge for up to five days. Come by and check it out!

Environmental Law

Damnation (Patagonia’s Stoecker Ecological + Felt Soul Media production; executive producer, Yvon Chouinard; produced by Matt Stoecker and Travis Rummel; directed by Ben Knight and Travis Rummel; narration written by Ben Knight) [PN1997.2 .D36 2014 DVD] – “This film odyssey across America explores the sea change in national attitude from pride in big dams as engineering wonders to the growing awareness that our own future is bound to the life and health of our rivers.”

Pandora’s Promise (Impact Partners present in association with Robert Stone Productions, Vulcan Productions and CNN Films a Robert Stone film) [TK9145 .P36 2014 DVD] – Favorite at the Sundance Film Festival, Pandora’s Promise “asks whether the one technology we fear most could save our planet from a climate catastrophe, while providing the energy needed to lift billions of people in the developing world out of poverty.”

Criminal Law

The Wire: The Complete Series (presented by HBO Original Programming; producer, Nina Kostroff Noble et al.; directed by Clark Johnson et al.; written and created by David Simon et al.) [PN1992.77.W57 W57 2011 DVD] – All five seasons of an urban epic set in Baltimore, where police detectives investigate cases involving the illegal drug trade, the seaport system, the city government and its bureaucracy, the school system, and the print news media.

Mental Health Law

I am Sam (by New Line Cinema presents; directed by Jessie Nelson; written by Kristine Johnson & Jessie Nelson; produced by Jessie Nelson et al.; Richard Solomon, Marshall Herskovitz, Edward Zwick; in association with “Sam” productions GMBH & Co. Kg; a Bedford Falls company, Red Fish Blue Fish films production) [PN1997.2 .I165 2002 DVD] - Sam Dawson has the mental capacity of a 7-year-old. He works at a Starbucks, is obsessed with the Beatles and has a daughter with a homeless woman who abandons them. As the daughter reaches age 7, Sam’s limitations start to become a problem. When the authorities take his daughter away, Sam shames a high-priced lawyer into taking his case pro bono.

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