Vincent G. Rinn Law Library

Professor Bassiouni Quoted Regarding Goldstone Gaza Conflict Report

This past Friday The U.N. Human Rights Council voted  to endorse a Gaza war crimes report that calls on Israel and Hamas to carry out credible investigations into alleged abuses. If viable domestic investigations do not eventually take place, the U.N. Security Council could refer both matters to the International Criminal Court (ICC) for possible prosecutions. ( See : Resolution - Human Rights Council ,The human rights situation in the Occupied Palestinian,Territory, including East Jerusalem .   Human Rights In Palestine And Other, Occupied Arab Territories, Report of the United Nations Fact Finding Mission on the Gaza Conflict, Executive Summary.)

"The United Nations Fact Finding Mission on the Gaza Conflict, led by Justice Richard Goldstone, was tasked by the Council “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.”

"The report of the Mission, presented to the Council’s twelfth session, concluded that, while the Israeli Government sought to portray its operations as a response to rocket attacks in the exercise of its right to self defense, the Israeli plan had been directed, at least in part, at the people of Gaza as a whole. The report also found that Palestinian armed groups had succeeded in causing terror within Israel’s civilian population through the launch of thousands of rockets and mortars into Israel since April 2001."

"It recommended that the Security Council require the Government of Israel to take all appropriate steps, within a period of three months, to launch appropriate investigations that were independent and in conformity with international standards; and with regard to the relevant Palestinian authorities, that it require the independent committee of experts to monitor and report on any domestic legal or other proceedings undertaken by the relevant authorities in the Gaza Strip."

( Source : Human Rights Council Endorses Recommendations, Of Fact-finding Mission  Led By Justice Goldstone  And  Calls  For Their Implementation ) 16 October 2009 )

In an AP story today,Professor Bassiouni of the DePaull University Law School and a driving forces behind the creation of the International Criminal Court, stated that"If it sends the report to the Security Council, to the Secretary-General and to the General Assembly, it is sending it not for general informational purposes but for action,". The author further describes Bassiouni's observation that, "Arab and African countries will likely point to any U.S. efforts to block referral to the international court as an example of double standards, since it was Western countries that referred Sudan's President Omar al-Bashir to the International Criminal Court in March for alleged crimes against humanity and war crimes".

( Source : UN rights council endorses Gaza war crimes report, By Frank Jordans )

It is very uncertain whether the national parties involved will undertake internal proceedings to investigate and possibly prosecute the war crimes alleged in the Goldstone Report. Even more uncertain, is whether these cases would ever be referred to the ICC by the UN Security Council, given some members of the Council would likely exercise their veto over such a decision.

Mr. Goldstone at a recent press conference, puts forward a slightly more hopeful expectation. "In the end, the mission had decided to give full recognition to the concept of complementarity. It had been recognized by the Rome Statute that the first choice in an incident was domestic investigation.  It was only where such domestic activity was not possible that the International Criminal Court could accept jurisdiction. While the mission was critical of both sides for having done far too little in that regard, it had concluded that, although there might be unwillingness, there was ability.   Israel was clearly able to hold open, transparent investigations.  In Gaza, courts and lawyers were operating, and if there was a will, investigations could be held."

(Source :  Press Conference On Report Of United Nations Fact-finding Mission On Gaza Conflict )

Remembering The Murdered & Missing Women of Juarez, Mexico

Professor Ottley Speaks on Post-Conflict Justice & Alien Torts Claims Act

Professor Tuerkheimer's Article Argues "Shaken Baby Syndrome" Based on Shaky Science

A congressionally mandated report to investigate forensic techniques and personnel, released in February 2009, unexpectedly questioned the presumption  of scientific validity for most of the traditional techniques used as evidence in the criminal courtroom. The report entitled "Strengthening Forensic Science in the United States: A Path Forward", found that, "The simple reality is that the interpretation of  forensic evidence is not always based on scientific studies to determine its validity." "...there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods."

The treatment of this kind of evidence in the courts has not provided a check on the introduction of the results of such questionable techniques.As the report states, "Federal appellate courts have not with any consistency or clarity imposed standards ensuring the application of scientifically valid reasoning and reliable methodology in criminal cases involving Daubert questions."

The report examined and commented on a variety of forensic criminal techniques but not on the medically related forensic evaluation called "Shaken baby syndrome" (SBS). As reported in the article "A Shake to the System" by Radley Balko,  DePaul Professor Tuerkenheimer's recent law review article,"The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts", extends this critical re-evaluation to SBS as a medical diagnosis and criminal evidence.

The first part of the article looks at the changing medical opinion regarding SBS, stating  that "Despite its lingering presence in the popular imagination, the scientific underpinnings of SBS have crumbled over the past decade [FN 65] as the medical establishment has deliberately discarded a diagnosis defined by shaking."[FN 66] The second half of the article,examines several facets of SBS in the legal system from investigation to post-conviction.

In her conclusion she asks how well our legal system will deal with the apparent deficiencies and their impact on the question of the innocence of many convicted under the previous paradigm."To date, our system has failed. In place of adaptation, we have seen massive institutional inertia. Once the SBS prosecution paradigm became entrenched, the crime became reified. Deferential review standards and a quest for finality perpetuated the system‘s course. How expeditiously, and how deliberately, this course is righted will inform the meaning of justice"

DePaul "Rule of Law" Journal Launched by Students

DePaul law students with a particular interest in international law have created a new Online journal focused on the concept of “The Rule of Law”. It will be a student-run publication with faculty advisors from DePaul’s International Human Rights Law Institute ( IHRLI).

Just as “The Golden Rule” is sometimes facetiously defined as “He who has the gold, rules”. So too “The Rule of Law” can be a very different creature depending on who rules and claims authority of the law. From country to country and over time the idea of the rule of law can take on varying meanings for the participants.

According to the mission statement the new journal will work to “…define “rule of law,” propose new rule-of-law initiatives and critique existing ones, and discuss how rule of law can be established or strengthened in different nations and at different times.” So the journal will delve into the conceptual issues and also the pragmatic endeavors to establish a just rule of law.

The Journal will contain articles and what are called “Rule of Law Briefs”. Suggested topics for the articles include case studies of successful and unsuccessful rule of law initiatives, the role of human rights in reforming governmental institutions, proposed solutions to problems encountered in rule of law initiatives.

Rule of Law Briefs are short, fact-based, research-driven, student-written piece that cover a narrow rule of law topic, such as a particular rule-of-law building project, or a particular problem somewhere in the world.

The journal hopes to encourage broad participation from various constituencies and to become “…a freely-accessible resource for rule-of-law data and policy discussion...”

Law Professor Havel's New Book on the Future of International Aviation

"Ongoing deregulation of the international air transport industry has revealed a compelling need for entirely new forms of governance. In his new book, “Beyond Open Skies: A New Regime for International Aviation” ( Kluwer 2009 ), DePaul University College of Law professor and associate dean Brian Havel explores the legal and policy structure needed to effectively govern international civil aviation in the future. Havel, who also directs the university’s International Aviation Law Institute,  provides a critical analysis of aviation’s regulatory framework and addresses how it may obstruct the industry from serving the public and delivering benefits to employees and investors alike."
( From Media-Newswire.com  here)

[ Note to Editors: To obtain a review copy of “Beyond the Open Skies,” visit Kluwer’s Web site at www.kluwerlaw.com/CustomerServ/.  Brian Havel can be reached at 312/362-5222 or bhavel@depaul.edu. ]

Keep Up With ABA Meeting On NLJ Blog

The American Bar Association Annual Meeting begins today in Chicago. See previous blog posting, here. Various news media will be covering it. But to get some of the inside developments including some that may not make the morning paper or the evening news, check out the national Law Journal's blog of the ABA meeting,  "ABA 2009/Chicago"  by Lynne Marek. Lynne has been news reporter since 1992, working for the Chicago Tribune,Bloomberg News, The National Law Journal and is now blogging for the first time to bring you coverage of the ABA meeting.

Screening and discussion of “The Reckoning: The Battle for the International Criminal Court”

On Friday July 17 2009 from 5:30-8:00pm, at Chicago_Kent Law School,in the 10th floor Event room ( 565 West Adams Street   Chicago, IL 60661 ), there will be a showing of the film The Reckoning: The Battle for the International Criminal Court in honor of International Justice Day and in commemoration of the adoption of the Rome Statute, the treaty that established and now governs the International Criminal Court.

After the film there will be a panel discussion featuring Chicago-Kent College of Law Professor Bart Brown, Daniel Rothenberg, the Managing Director of International Projects for the DePaul University International Human Rights Law Institute. Attorney Dan Thomann will serve as moderator for the panel and Q&A.

The event is free however advance registration is required: please rsvp to Ms. Violeta Jimenez vjimenez@kentlaw.edu

I f you cannot attend the film showing at Chicago_Kent today, there is an opportunity to view the film online from July 15 - August 15, 2009, on the web site of the American Documentary (AMDOC), [ Click on "watch the entire film" ] . There is also additional information regarding the content of the film and a statement by the filmmaker.

American Bar Association Units Re-examine Law School Accreditation

While the American Bar Association annual meeting in Chicago is about a month away, the ABA Center for Professional Responsibility just recently finished its 35th National Conference on Professional Responsibility (May 27-30) in our town. While several issues were on the agenda, one may be of particular interest to our readers.

The ABA Section of Legal Education has begun a comprehensive review of the ABA law school accreditation standards. Members of the Accreditation Standards Review Committee  discussed the committee’s approach and some of the hot button issues and sought input from the attendees, as to possible improvements in the standards.

A recent article in the ABA Journal, "Sweeping Accreditation Review May Prompt ‘Sea Change’ in Law School Evals", By James Podgers, Jun 3, 2009,  reports on some of the discussion that took place at the meeting :

“The most significant change in the Standards for Approval of Law Schools is likely to be a move away from evaluating law schools on the basis of criteria that measure “input”—such things as faculty size, budget and physical plant. Instead, the Legal Education Section would evaluate law schools more heavily on the basis of “outcome” measures.”

“Other key issues the Standards Review Committee will look at include “security of position” for law school professors and other teachers, which will encompass the tenure structure. The committee also will consider ways to make the law school accreditation and review process more transparent.”

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The Section of Legal Education & Admission to the Bar of the ABA which has the responsibility for the accreditation of law schools has relevant reports that have been produced within the last few years that present different positions on some of these “hot button” issues. Here are three that may be of interest to our readers:

REPORT OF SPECIAL COMMITTEE ON SECURITY OF POSITION, 5/5/08

ALDA - American Law Deans Association Security of Position comment, July 21, 2008

Special Committee on Security of Position, July 21, 2008

DePaul Invites Law School Deans to Address Impact of "Vanishing Trials"

Dean Weissenberger  and the DePaul University Law School are inviting law school deans to a symposium entitled " Vanishing Act: Legal Education in a World Without Trials" on July 31-Aug. 1, to coincide with the annual American Bar Association meeting in Chicago. The symposium is being sponsored by Clifford Law offices, a Chicago personal injury firm which has made contributions to the  DePaul Law School for an endowed  faculty chair in tort law and social policy that makes possible an annual symposium addressing a timely issue in the tort law area.

A June 10, 2009 story in The National Law Journal story about the symposium, cites the statistic that federal civil trials dropped to 3,500 in 2006 from about 12,000 in 1984. Attorney Robert A. Clifford finds this reduction to be a serious concern because "The rise in alternative dispute resolution and the corresponding increase in confidential settlement agreements is problematic because the lack of transparency will make it difficult for the government and taxpayers to determine how the court system is performing and to what it extent it should be funded." Dean Wiseenberger says "This is an issue of huge concern," that may affect the value of the case law method that is used in most law schools.

"University of Chicago Law School Professor Craig Futterman, Yale Law School Professor Judith Resnik and Duke Law School Dean David Levi are among the panelists who will speak at the symposium. The keynote speaker for the event will be Kenneth Feinberg, a Washington attorney and law school lecturer who was appointed to oversee the federal government's September 11th Victim Compensation Fund."

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Book and essay on the issue :

From The University of Chicago Press release :

In The Death of the American Trial, Robert Burns warns that this decline could lead not only to the loss of a vaunted institution, but also to the dangerous erosion of American democracy."..."As one federal judge put it, the jury is the ”canary in the mineshaft; if it goes, if our people lose their inherited right to do justice in court, other democratic institutions will lose breath too.“

SSRN( Social Science Research Network) essay on "The Death of the American Trial" by Robert P. Burns,  Northwestern University - School of Law