Category: Int’l and Comparative Criminal Law

Interview with Benjamin Ferencz Sends a Powerful Message

The last Nuremberg prosecutor alive, Ben Ferencz now 97 years young, has recently been interviewed by Lesley Stahl on 60 Minutes. He was an adjunct professor for many years here at Pace Law School. He was only 27 when he was tasked with the impossible – to try the WWII war criminals for the crimes of genocide and crimes against humanity in Nuremberg – and it was his first trial. He visited the camps and collected evidence that beyond any reasonable doubt showed guilt for perpetrating unimaginable atrocities during the war against populations of Gypsies, Communists, and Jews.

He shares his powerful memories as if it all happened yesterday, warns, and sends a powerful message.

War makes murderers out of otherwise decent people. All wars, and all decent people.

And he adds:

If it’s naive to want peace instead of war, let ’em make sure they say I’m naive. Because I want peace instead of war. If they tell me they want war instead of peace, I don’t say they’re naive, I say they’re stupid.

Related Readings:

Shaken Baby Syndrome Science and the Judicial Response: Limits and Obligations of the Law

WRITTEN BY: Sally Phillips, Ph.D. Candidate at School of Law, Birmingham City University, United Kingdom.

Sally Phillips is a second-year Ph.D. student with the law school at Birmingham City University, UK. Her research focus is on the intersection of science and law, particularly in cases concerning Shaken Baby Syndrome/Abusive Head Trauma. Coming from a background in Criminology and Forensic Studies with a firm foundation in the natural sciences, she has a great interest in the use of science in criminal prosecutions and the judicial response to this complex juncture of disciplines.

The Controversy
The ‘traditional hypothesis’ of “Shaken Baby Syndrome” (SBS) surmises that if a child were to present with a brain bleed and bleeding behind the eyes, but was absent a history of accidental trauma, then that child had likely been violently shaken. Despite extensive scientific research, this hypothesis remains subject to significant criticism which suggests the underpinning science is uncertain and that some SBS diagnoses may be inaccurate. This debate has generated tensions amongst medical professionals and in criminal proceedings involving medical evidence of the diagnosis. In the UK, in 2016, neuropathologist Dr. Waney Squier had her medical licence revoked (and subsequently reinstated on appeal, with a 3-year ban on testifying), for her part as a defense expert in SBS cases. Additionally, convictions have been overturned and charges dropped in prosecutions in both the US and England and Wales, due to perceived uncertainty in SBS. Despite similarities in criminal justice processes in these two jurisdictions, their response to this alleged uncertainty has differed. To put these responses into context, a closer look at the science is warranted.

The Science
A review of relevant scientific literature highlights five areas of significant debate. These areas are reflected in US and English case law, as key points of contention between defense and prosecution. First, is the important question of what level of force is sufficient to produce the SBS-associated injuries. Although, some argue that an individual cannot shake a baby hard enough to harm it, most accept that shaking is a dangerous practice. Experiments using animals, dummies and computational models continue to better simulate a live infant, but so far no certain answer can be given about exact levels of force needed to cause SBS (Nadarasa et al., 2014).

Second, the possibility of a period where the child appears ‘fine’ after shaking, has been discussed. The defendant in SBS cases will almost always be the individual with the child when they became symptomatic (known as collapse), so the possibility of this ‘lucid interval’ raises the question of potential alternative perpetrators who have cared for the child in the days or hours leading up to collapse. However, the evidence suggests lengthy, non-symptomatic, lucid intervals are extremely rare (Arbogast et al, 2005).

Third are theories that suggest an innocent explanation for just one SBS symptom, of which there are many. Although a child is unlikely to have three innocent explanations for the three individual symptoms, this is a possibility which needs to be ruled out in each case. Many natural diseases and accidental injuries have potential to cause injuries that appear to mimic those seen in SBS. However, these are often testable and distinguishable if investigated thoroughly (Jenny, 2014).

The fourth category of uncertainty is closely related to the third – the possibility that a single innocent explanation triggered all three symptoms. Events such as severe coughing, seizures or forceful vomiting have been considered in the literature. Aside from a few case reports, these theories are presently unsubstantiated. It is for this reason that the fifth category of debate is key. This is whether diagnostic procedures are adhered to closely enough to effectively apply current scientific knowledge clinically, preventing misdiagnoses. The standardisation and efficacy of proper diagnostics cannot be underestimated when cases of potential SBS are brought to physicians.

The Tension
This evolving and uncertain science does not fit harmoniously with the rigid, process-driven attitude of criminal justice. More technologically-aware juries expect scientific evidence in criminal trials, and lawyers perceive a need for increasingly captivating and certain science in order to obtain convictions. These expectations and perceptions may stem from knowledge of examples where science, such as DNA technology, has been invaluable in prosecutions. However, often science and law are not congruent. This has been attributed to differing approaches of law and science to finding ‘truth’ (Jasanoff, 2005). While science builds corroboratively to generate evidence that can be generalized and expanded upon, law is concerned with conclusive end-points in the narrow context of a particular case. In science, an inconclusive result is unsatisfactory, but does not carry the same consequences as in criminal proceedings, where a conviction must be conclusive “beyond reasonable doubt.”

The practical consequences of this tension, is that when experts testify in criminal cases, their language and reasoning may not be translating accurately to judges, lawyers and juries. For example, the phrase, “reasonable degree of medical certainty” is a common one in expert medical testimony, but is not used in normal clinical practice. There is evidence to suggest that experts understand and use this phrase to describe a different level of certainty, with some believing it to be close to 100%, while others see it as 50% or more (Gena, 2007). Faulty translations like this, can be misleading for a jury and only exacerbate the areas of uncertainty in SBS.

The Case Law
In the US, the judiciary has employed avoidance techniques in response to much scientific debate. A strict adherence to finality interests and legal process often trumps any substantive examination of contentious scientific evidence. Trial judges are charged with assessing reliability of expert testimony under Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). Daubert’s criteria was carefully considered by the Law Commission in England and Wales (Law Commission, 2011). However, as the Law Commission noted, there is still significant confusion and inconsistency if and/or when Daubert is applied. Daubert urges courts to take a more active role in dealing with science, but there is clear discomfort when it comes to applying the guidelines in a way which involves a thorough examination of scientific concepts.

Review of the US appellate opinions reveals increased awareness of scientific issues in SBS cases. However, when it comes to a critical examination, judges will focus on legal frameworks, but pay little attention to the application of them to SBS. A range of arguments are used to dis-apply reliability frameworks, such as Daubert, leaving SBS testimony to enter court un-examined. Judgement of reliability is often left to the jury, as judges will conclude that flaws in expert testimony go to the weight, not admissibility of the evidence. Appeals will often focus on procedural claims, allowing the judiciary to bypass critical scientific examination in favour of procedural analysis. Cases which confront the science head-on are few and far between, and often overruled.

In England and Wales, courts have made more concerted attempts to address the problem. Extensive opinions, such as R v Harris and Others [2005] EWCA Crim 1980 and R v Henderson and Others [2010] EWCA Crim 1269, probe deeper into SBS and this has resulted in specific CPS guidelines being issued for cases of Non-Accidental Head Injury (a broader term for SBS). These guidelines caution against the bringing of prosecutions solely based upon SBS injuries, and advise that other supporting evidence such as broken bones, bruises or confessions be present before a case is prosecuted. There is also guidance in place by way of the Criminal Procedure Rules and Practice Directions, which list factors that may render expert testimony reliable.

Forward Thinking
The courts should not be expected to ultimately resolve the current scientific debate in SBS; however, they cannot ignore the issue altogether. Stakeholders across the scientific and legal communities must develop and apply guidelines that keep unreliable science from entering the courtroom. A failure to do so will continue to result in wrongful convictions.

References and Further Reading:

  • Arbogast, K., Margulies, S. & Christian, C., Initial Neurologic Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries, 116 Pediatrics 180 (2005).
  • Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
  • Gena, M., Shaken Baby Syndrome: Medical Uncertainty Casts Doubt on Convictions, 2007 Wisconsin Law Review 701.
  • Jasanoff, S., Law’s Knowledge: Science for Justice in Legal Settings, 95 American Journal of Public Health s49 (2005).
  • Jenny, C., Alternate Theories of Causation in Abusive Head Trauma: What the Science Tells Us, 44 Pediatric Radiology 543 (2014).
  • Law Commission, Expert Evidence in Criminal Proceedings in England and Wales (Law Com. No. 325) (2011).
  • Nadarasa, J., Deck, C., Meyer, F., Willinger, R. & Raul, J., Update on Injury Mechanisms in Abusive Head Trauma – Shaken Baby Syndrome, 44 Pediatric Radiology 565 (2014).
  • R v Harris and Others, [2005] EWCA Crim 1980.
  • R v Henderson and Others [2010] EWCA Crim 1269.

More States To Withdraw from the ICC?

Shortly after three African States (Burundi, Gambia, and the Republic of South Africa) announced their intention to leave the International Criminal Court (each citing their own specific reasons), on November 16, the Russian Foreign Ministry issued a statement announcing its intention not to ratify the Rome Statute stating that

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions. Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal.

The Russian President issued a Decree on the intention not to become party to the Rome Statue, becoming a fourth state to openly point out its disappointment with the institution.

On the same day,the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in a press release called on the international community to not give up on the Court and to “stand by the Rome Statute and the Court.” He emphasized the need to stand with this institution and continue to support it.

To make matters worse, just one day after the Russian announcement, Philippine President Rodrigo Duterte, speaking from his home, also threatened to withdraw from the International Criminal Court by stating

They [Russians] may have thought the International Criminal Court is [useless], so they withdrew their membership … I might follow. Why? Because these shameless bullies only picked on small countries like us.

Some speculated that Duterte’s statement was nothing more than just a well-timed response to Prosecutor Bensouda’s statement on the situation in the Philippines, in which Bensouda made it very clear that anyone engaging in any form of acts of mass violence could potentially be prosecuted by the Court.

Whether in response to OTP’s statement or just in light of the exodus of State Parties from the ICC, Philippines is the fifth state, in a span of less than a month, to publicly disavow its loyalties to and faith in the Court and its effectiveness.  It will be interesting to see how the rest of the international community and the Court itself tackles these, hopefully, temporary setbacks.

More States Announce Intention to Withdraw from the ICC

Following Burundi’s example, two more African States announced their intention to leave the International Criminal Court: South Africa and Gambia.

South Africa has had a controversial relationship with the ICC since last year when it disregarded its responsibility to cooperate with the Court by refusing to arrest the then-visiting Sudanese President Omar al-Bashir. South Africa argued that such an obligation was in direct conflict with its domestic laws governing diplomatic immunity. Although the South African Court later ruled that letting President al-Bashir leave South Africa in 2015 was ‘disgraceful’, the South African Government has continued to state that the Rome Statute (namely Art. 27 addressing non-recognition of any form of immunity) is in direct conflict with South Africa’s Diplomatic Immunities and Privileges Act. The decision to withdraw from the ICC will become effective one year from the day the document withdrawing from the ICC was signed, October 19, 2016.

Following South Africa, Gambia this week also announced its intention to leave the ICC. In the televised announcement, Information Minister Sheriff Bojang said that

[t]his action is warranted by the fact that the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.

Gambia cites reasons that are similar to those given by Burundi – that the ICC targets African States. In fact, the Court’s mandate, as stated in the Preamble of the Rome Statute, is to fight impunity by ensuring that “the most serious crimes of concern to the international community as a whole must not go unpunished.” The Court is tasked with focusing on the international community, yet it has predominantly focused on number of African States. So far, the Court has officially investigated the Democratic Republic of Congo, Uganda, Central African Republic, Sudan, Kenya, Libya, Mali, Côte d’Ivoire, and Georgia; and the Court has conducted preliminary examinations (not always leading to opening an official investigation), among others, in Palestine, Afghanistan, Honduras, Republic of Korea, Nigeria, Colombia, Georgia, Guinea, Libya, Ukraine, Iraq, Venezuela, and Burundi.

This recent development by three African states – Burundi, Gambia, and South Africa – based on the allegation that the Court targets Africa presents a major blow to the already unstable reputation of the International Criminal Court, the first permanent criminal court of its kind.

Related Readings:

Burundi: The First State to Withdraw from the ICC

The Rome Statute, the founding treaty of the ICC, has 119 State Parties and 32 signatories. Burundi became a State Party on September 24, 2004 when it deposited its instrument of ratification. In 2016, the ICC announced that it was opening a preliminary examination into Burundi based on the Court’s having been monitoring Burundi’s internal situation since early 2015. The focus of the examination is to look into allegations that 430 persons have been killed, at least 3,400 have been arrested and over 230,000 have been forced to seek refuge due to government action. The forthcoming 2016 Report on Preliminary Examination Activities of the Court will bring more detailed summary and overview of the Court’s inquiry.

However, recently, and in line with one of the more frequent criticisms of the Court that it only prosecutes African nationals, Burundi voted overwhelmingly (94 for, 14 abstained, and 2 against) to withdraw from the ICC. The law now needs to be signed by the Burundi President to become effective, potentially making Burundi the first State to leave the ICC.

In response to this development, the President of the Assembly of States Parties issued a statement expressing his concern, as follows:

[t]he withdrawal from the Statue by a State Party would represent a setback in the fight against impunity and the efforts towards the objective of universality of the Statute. I remind that all States Parties have the opportunity to share their concern before the Assembly of States Parties in accordance with the Statute and invite the Burundian authorities to engage in a dialogue.

As discussed in our previous posts, preliminary examination is a stage prior to official investigation. The ICC does not authorize official investigation at the end of every preliminary examination. During the preliminary examination stage, the Court identifies whether the situation meets the Court’s selection and prioritization criteria for opening an official investigation. The Court may decline to proceed to an official investigation for a variety of reasons, such as: a finding that the situation is not grave enough to proceed; a finding that its complimentary jurisdiction should not be invoked because a genuine investigation and prosecution is being carried out by national representatives; or a lack of evidence to support subject matter jurisdiction.

In any case, the preliminary examination in Burundi is likely to continue even if Burundi withdraws from the Court’s jurisdiction, because the withdrawal is not likely to be applied retroactively. However, if Burundi does withdraw, and the investigation moves forward, that withdrawal is likely to make difference during the enforcement and cooperation stages.

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