Pace Professor Bennett Gershman makes a case for the establishing a prosecutorial misconduct commission, as New York considers doing just that. Read the article in The Daily Beast titled How to Hold Bad Prosecutors Accountable: The Case for a Commission on Prosecutorial Conduct.
Category: Articles of Interest
Has the Culture of Adversarialness Gone Too Far?
The adversarial system may be the best way for a society to adjudicate criminal charges to a result that will warrant public trust. But sometimes it feels like the US culture of adversarialness is just that – a pervasive method of dealing with everything that comes our way, and not simply in the courtroom. Our current political scene is certainly a reflection of that, as is the political gridlock.
A recent op-ed in the New York Times, titled President Obama’s Department of Injustice by Alec Karakatsanis, raises the question of whether our historical reliance on adversarialness – its intentional use for a good societal purpose – may have become reflexive, or unthinking, or may have simply gone too far.
On a similar topic, another example of cultural over-reaction, take a moment to view the July 26th episode of Last Week Tonight with John Oliver, in which Mr. Oliver addresses the phenomenon of mandatory minimum sentencing and President Obama’s recent grants (and denials) of clemency to some low level offenders serving mandatory minimums. In doing so, he “explains why we treat some turkeys better than most low-level offenders.”
Yet Another Death in Police Custody
In case you didn’t have a chance to read this when it first came out, we bring to you another post by Professor Bennett L. Gershman, titled On the Death of Raynette Turner.
Prof. Gershman introduces his piece by saying,
The fifth death of a woman of color in US police custody in July. An unspeakable tragedy by itself, but arguably symbolic of the legal profession’s failure to examine the factual and logical foundation for our system of modern policing and mass incarceration.
Can Killing of Innocent Civilians at War be Justified?
POST WRITTEN BY: Syed Alam (’17), J.D. Pace Law School
According to the ICRC Principles of Distinction between Civilians and Combatants Rule 1, one of the pillars of international humanitarian law permits military commanders to direct operations against military objectives. At the same time, however, Rule 1 also requires that military commanders distinguish between civilian and military object. This concept was already codified in St. Petersburg Declaration of 1868, which states that States engaging in a war should only commit acts that will help them to weaken the military forces of the enemy party.
It is the duty of the military commander to determine who civilians are and who military opponents are. At time of war, every military force faces a threat from their opponent; however, it hardly faces threats from civilians. Thus, civilians should not be harmed during any war. It is the duty of the military commander to take such steps and measures as to prevent harm to civilians.
How do we define civilians? According to article 50(1) of the Additional Protocol 1 of the Geneva Conventions, 1949, civilians are the persons who do not belong to one of the categories mentioned in articles 4(A)(1)-(3) and 4(A)(6) of the Third Geneva Convention 1949. The categories listed are member of armed forces, member of militias or member of volunteer corps. A person who by any act is not facilitating or acting as part of the armed conflict is a civilian. Additionally, as held by the criminal tribunal in Blaskić, “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement, ¶ 111 (Int’l Crim. Trib. for the Former Yugoslavia Jul 29, 2004).
According to article 50(3) of the Protocol 1 of the Geneva Conventions 1949, even if a civilian population includes some armed people, still they do not lose their civilian status. For example, if militants enter a park filled with civilians – an attack cannot be launched in the park even if intended to only target the militants because under the principle of distinction the civilians ought to be protected. The criminal tribunal in Prosecutor v. Stanislav Galić further confirmed this principle and held that “[a] population may qualify as ‘civilian’ even if non-civilians are among it, as long as the population is predominantly civilian.” Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, ¶ 143 (Int’l Crim. Trib. for Former Yugoslavia Nov. 30, 2006).
According to article 51 of the Protocol 1 of the Geneva Conventions 1949, the protections civilian enjoy during wartime include:
- Protection against any danger arising out of military operations.
- Civilians should never be the objects of attack. Any act to spread terror among the civilian people is prohibited.
- Unless and until civilians take direct part in hostilities, civilians enjoy all the protections mentioned in this article.
- Indiscriminate attacks such as attacks not directed against a specific military object, methods or means of combat that are not specifically applied to a military object, attacks which do not distinguish between civilian object and military object.
- Any attack done to several military objects, situated within a civilian locality, bombardment upon such area in prohibited. Any act, which might result into suffering of civilians, is prohibited.
- Attack towards the civilians by the way of reprisal is prohibited.
- Civilians should never be used to shield any military object, to immune it from military operations, by any of the parties.
Under article 8 of the Rome Statute, war crime includes grave breaches of Geneva Conventions of 1949 and also violation of any laws and customs of international laws regarding international armed conflict. As discussed above, Geneva Convention of 1949 made it a crime to kill civilians during war. Article 8 of the Rome Statute re-affirms that position. Thus, killing civilians during war is a war crime.
Although international authorities put forth effort to protect civilians, the history speaks for itself – civilians are often not spared. Although, adequate international laws are in place, States engaged in war often overlook this principle of distinction. The law appears clear – civilian killing in war is a crime. The question then is why these international laws are ignored? States have often used the term ‘collateral damage’ to justify the killing of civilians. However, human life is priceless and no cause is big enough to spare innocent human life. The United Nations should find a way to enforce the international laws addressing civilian killing in war for the sake of humanity.
Prof. Gershman Questions Rosenberg Prosecutors
In his most recent Huffington Post blog post titled Did the Rosenberg Prosecutors Suborn Perjury?, Prof. Gershman raises a question about prosecutors suborning perjury based on the recently released grand jury testimony of David Greenglas, Ethel Rosenberg’s brother and prosecution’s witness. It is a fascinating read – check it out!