Dec. 3
LOUISIANA:
Are Baton Rouge prosecutors tougher on men than women in child death cases?
Lawyers representing a Baton Rouge man who is charged with 1st-degree murder in
the 2012 beating death of his 8-year-old son are claiming the East Baton Rouge
Parish District Attorney's Office prosecutes men more harshly than women in
child homicide cases.
Michael Robertson's attorneys, who maintain his innocence in the death of
Xzayvion Riley, accuse the office of "prosecution by stereotype, not be
evidence."
District Attorney Hillar Moore III disputes that characterization.
State District Judge Don Johnson, who is presiding over the murder case, on
Thursday denied a defense motion that asked him to order the District
Attorney's Office to turn over information on the office's charging and plea
negotiation history and practices in child homicide cases.
"The motion filed by the defense is meritless and was promptly and properly
denied by the court as meritless," Moore said Friday.
Robertson, 51, and Xzayvion's mother, Lavaughn Riley, 37, both are charged with
first-degree murder in the boy's death. Moore's office announced in July it
would not seek the death penalty in the case.
Prosecutors have alleged that Xzayvion's June 2012 death was the result of an
"escalating pattern" of physical abuse at the hands of Robertson, who was
Lavaughn Riley's boyfriend at the time of the boy's death.
Lavaughn Riley's attorney, Margaret Lagattuta, has said her client does not
have a deal with prosecutors but intends to testify against Robertson in hopes
of receiving a prison term of "something less than life." Riley has admitted in
court testimony that she beat her son on a previous occasion.
A Baton Rouge woman charged with st-degree murder in the 2012 beating death of
her 8-year-old son does not have a plea deal with prosecutor
Robertson's attorneys looked at local media coverage of 14 child homicide cases
in the 19th Judicial District Court from 2010 to 2016 and concluded that 4
times as many men as women have been charged with 1st-degree murder, a crime
that carries a possible death sentence.
The lawyers also said 4 times as many women as men have been charged with
negligent homicide, which carries a maximum sentence of 5 years in prison.
In the defense motion that Johnson denied, Robertson's attorneys alleged he is
being prosecuted "particularly severely in this case at least in part because
of his gender" and added that Robertson "is being denied a reasonable plea
offer due to his gender."
Robertson's lead attorney, Jim Craig, who is the New Orleans director of the
Roderick and Solange MacArthur Justice Center, said in a statement that the
East Baton Rouge Parish District Attorney's Office - since 2010 - has made
"wildly different decisions" in how to charge men and women accused in child
homicide cases.
"Prosecutors in this district consistently assume that a deceased child's
father (or the mother's husband or boyfriend), not the mother, was responsible
for the death," Craig wrote in his statement. "That is prosecution by
stereotype, not by evidence."
Even in similar cases, he added, women are routinely charged with less serious
crimes than men.
Moore explained that prosecution of all criminal cases involves an
"individualized assessment of the unique facts and circumstances of each
particular case, including child death cases."
"The facts and the law dictate the prosecutorial decisions of my office," he
said.
Robertson's attorneys pointed in their motion to the case of Jacqueline
Cheatham and her partner, Tiara Dunmars, who were booked in 2013 on 1st-degree
murder charges in the death of Cheatham's 23-month-old son, Justyce.
Cheatham and Dunmars were indicted on 2nd-degree murder charges and pleaded
guilty in January to manslaughter. Both received 15-year prison terms.
"While both women originally told investigators that the child choked on
cereal, the autopsy revealed that the child died from blunt force trauma to his
head and had skull fractures and brain swelling, in addition to old fractures
to the ribs and multiple impact points, bruises, and fractures to the ankle,"
Robertson's attorneys stated in their motion.
"Despite this evidence, the District Attorney charged neither woman with
comparable severity to the charges against Mr. Robertson," they argued.
Will Morris, the lead prosecutor in the Xzayvion Riley case, stated in court
documents that Robertson's attorneys have failed to show "prosecutorial
vindictiveness."
"The standard to prevail on a selective prosecution claim is not an analysis of
other cases that had the same result, i.e. the death of a child," he wrote. "In
all of the cases the defense highlights, everyone was prosecuted. In order to
prevail, the defendant must demonstrate that others similarly situated have not
been prosecuted."
The bottom line, Morris argued, is that Robertson has not shown he has been
"singled out" for prosecution.
"His allegations suggest that cases involving the death of a child have had
various outcomes based on various facts and circumstances," he said.
Coroner's officials found Xzayvion died of overwhelming infection caused by a
ruptured bowel from blunt force trauma to his abdomen. An autopsy revealed
dozens of external signs of recent and past trauma, including a human bite mark
on his stomach.
Xzayvion's oldest sister reported seeing Robertson bite her brother on a
regular basis as a form of discipline, sheriff's officials have said.
Robertson's attorneys have called the bite mark evidence "junk science" and are
fighting to keep it out of the hands of a jury.
(source: The Advocate)
OHIO:
Ohio Supreme Court to hear local man's death penalty appeal
On Tuesday, the Ohio Supreme Court is to preside over a legal debate over
whether the death penalty should be executed on a young Clayton man - the 2nd
youngest on Ohio's death row - for the murder of an even younger Warren County
man at his home outside Waynesville in January 2014.
Warren County Prosecutor David Fornshell will personally argue for the state to
continue forward toward the execution of Austin Myers, now 22, of Clayton,
although another Clayton man, Timothy Mosley - like Myers 19 years old at the
time - actually stabbed to death Justin Back, 18, a 2013 Waynesville High
School graduate about to enter the U.S. Navy.
"Austin Myers killed Justin. Tim was his weapon of choice," Fornshell said last
week, quoting Back's stepfather, Mark Cates, a local prison guard.
It will be Fornshell's 1st appearance before the high court on behalf of Warren
County.
Lawyers appointed to appeal Myers' death sentence have identified 18 violations
of law they claim should convince the state's high court to set aside his death
sentence, including his age and the lesser sentence - life in prison without
parole - Mosley received in exchange for his testimony.
3 years later, Myers is still the 2nd youngest of 140 Ohio prisoners facing the
death penalty. Damantae Graham, 20, convicted of killing a Kent State
University student, is the only one younger.
Myers' lawyers also claim errors or misconduct by the judge, prosecutors and
defense lawyers in the case, decided more than 3 years ago in Warren County
Common Pleas Court, should convince the high court, including appointed Judge
Cynthia Westcott Rice of Ohio's 11th District Court of Appeals, to spare his
life.
"Mr. Myers's rights under the Constitution of the United States and the Ohio
Constitution were violated and he was denied a fair trial and sentencing
proceeding. Accordingly, this Court should reverse and discharge the defendant
or grant a new trial. In the alternative, this Court should vacate the death
sentence, remand for a resentencing hearing, and order the life sentence
imposed," lawyer Timothy McKenna said in his brief to the high court.
The appeal, pending since Oct. 27, 2014, was set for oral arguments on Oct. 20,
after a 2nd Ohio death row inmate was executed. These came after the
postponement of scheduled executions starting in January 2014 following
problems during the execution of Dennis McGuire, a Preble County man.
Rice was appointed to the high court on Nov. 6, replacing Justice Bill O'Neill,
who recused himself after announcing he was running for governor.
The case
Myers and Mosley were arrested in July 2014 after Back's mutilated body was
found in Preble County, in a wooded area outside Versailles known as Crybaby
Bridge. They both gave statements during interrogation at the Clayton Police
Department used by investigators in reconstructing the crime, according to
police and court records.
According to their statements, Mosely's testimony and other evidence, after a
day of preparation and planning, Myers and Mosley went to Back's home in a
small neighborhood along the Little Miami River, east of Waynesvile. With a
garrote - fashioned by a friend who was not charged - Mosley came up behind
Back and began choking him, while Myers restrained Back. When the garrote
caught on Back's chin, Mosley pulled out a knife and stabbed Back to death.
After cleaning the home and stealing Back's iPod and wallet, as well as a gun
and safe belonging to Cates, Mosley and Myers removed Back's body, dumping it
in Preble County after dousing it with chemicals to quicken decomposition.
Before leaving the body, Myers shot it twice with Cates' gun.
At trial, prosecutors convinced the jury that Myers was the mastermind of the
crime and he was sentenced to die. Mosley, in exchange for his testimony, was
sentenced in a plea bargain to life without parole.
The issues
Mosley was represented by Dennis Lieberman, a lawyer hired by Mosley's family.
Myers was represented by Greg Howard and John Kaspar, appointed by the court.
But Fornshell said Mosley got the deal because - unlike Myers- he offered to
cooperate. Prosecutors needed one or the other to "put in the back story,"
Fornshell said.
In addition, Fornshell said Mosley accepted responsibility and Myers was
"exponentially more dangerous," pointing to evidence indicating Myers handled
the bulk of the planning and wanted to go back and kill Cates.
"He's a serial killer who got caught the 1st time," Fornshell added."There is
absolutely no doubt in my mind."
McKenna and co-counsel Roger Kirk did not respond to requests for interviews.
But their 110-page brief indicates they will emphasize Myers "was a 19 year-old
immature adolescent with behavioral issues" who should be spared the death
penalty, in part because Mosley's sentence spared his life, although he wielded
the murder weapon.
In addition, they claim prosecutors rendered Myers' lawyers "admittedly
ineffective" by withholding evidence until "on the Friday eve before the Monday
trial,"as well as the fact that Mosley was to be a witness.
The appeal
The appeal is to be the 1st of a series of cases heard on Tuesday and
Wednesday.
All arguments are streamed live online at sc.ohio.gov and broadcast live and
archived on the Ohio Channel, according a release from the high court.
The court typically issues opinions within 6 months, but it was unclear when a
decision would be issued in this case.
(source: mydaytondailynews.com)
IOWA:
Iowa death penalty debate could ignite in 2018 Legislature
It's been 54 years since gallows were last used to hang a convicted murderer at
the Iowa State Penitentiary in Fort Madison, but a debate over capital
punishment could be revived in the Iowa Legislature's 2018 session.
State Sen. Jerry Behn, R-Boone, says he will seek Senate debate on Senate File
335, which would reinstate the death penalty for multiple offenses in which a
minor is kidnapped, raped and murdered. The session convenes Jan. 8. The death
of 10-year-old Jetseta Gage, who was abducted.
Behn told the Des Moines Register he wants to prevent deaths like that of
Jetseta Gage, who was abducted from her grandmother's residence in March 2005
and found slain the next day in a mobile home southwest of Iowa City. The girl
had been sexually abused, and two men remain in prison for crimes against her.
Behn's bill has 5 co-sponsors, including Sen. Brad Zaun, R-Urbandale, chairman
of the Senate Judiciary Committee, which has been assigned the measure. Iowa's
last execution was in 1963 and the state outlawed the death penalty in 1965.
"The Iowa Code has kind of a perverse sense of having you come out better off
by murdering your victim," Behn said. "That's because if you kidnap somebody,
you can get life in prison. If you rape somebody, you can get life in prison.
And if you murder somebody, you can get life in prison. Well, if you kidnap,
rape and murder someone, you are no worse off if you just murder them so there
is no evidence. It kind of encourages you to get rid of anybody involved in
it."
But death penalty opponents are vowing a fight if there is a serious push to
reinstate capital punishment.
"There is no such thing as a limited death penalty. You either have it or you
don't," said Marty Ryan, president of Iowans Against the Death Penalty.
Ryan called Behn's bill "extremely flawed" and notes that Iowa has one of the
lowest murder rates in the nation. In 2016, Iowa's murder rate was 2.3 per
100,000 people, less than half the national average of 5.3 %.
Last inmate killed in Iowa
Iowa law currently allows life sentences for convictions of 1st-degree murder
and the most serious cases of rape and kidnapping. Iowa's last execution was on
March 15, 1963, when Victor Harry Feguer, a federal inmate, was hanged for
kidnapping and killing Edward Bartels, a Dubuque physician. President John F.
Kennedy denied an 11th-hour bid for clemency made by Gov. Harold Hughes.
31 states permit the death penalty and 1,465 executions have been carried out
in the United States since 1976, according to the Death Penalty Information
Center.
During the 2017 Legislature's session, Zaun supported Behn's bill and scheduled
a subcommittee hearing on it, but there wasn't time to consider the proposal
before a key legislative deadline. Behn said he now wants to revive his request
for a subcommittee hearing to consider advancing the measure, although Zaun
said the Senate Judiciary Committee's goals for the upcoming session haven't
been set yet.
"No decisions will be made until I get an opportunity to discuss with my fellow
Republican colleagues at our upcoming caucus in a couple of weeks," Zaun said.
However, several lawmakers in the Senate's majority Republican caucus expressed
support for Behn's proposal and want it signed into law by Gov. Kim Reynolds.
There is also talk at the Iowa Capitol of adding the slaying of a law
enforcement officer to the death penalty bill - which has been spurred by the
November 2016 ambush-style shooting deaths of Des Moines Police Sgt. Anthony
Beminio and Urbandale Officer Justin Martin.
There is talk at the Iowa Capitol of adding the slaying
"There are just some crimes that are so serious that justice requires the death
penalty," said Sen. Jake Chapman, R-Adel, a co-sponsor of Behn's bill.
Sen. Mark Chelgren, R-Ottumwa, said opponents of the death penalty have told
him they are "pro-life," but he calls himself "pro-innocent life."
"I believe in protecting children and I believe in dealing harshly with people
who have actually demonstrated themselves to be evil," Chelgren said. "The
Constitution says we can have no cruel and unusual punishment. But it did allow
for the death penalty."
Former Gov. Terry Branstad had favored the death penalty in limited
circumstances; for instance, if a victim was kidnapped or raped and then killed
- 2 Class A felonies. His successor, Gov. Kim Reynolds, became the state's
chief executive in May. Reynolds doesn't comment on legislation until she sees
it in final form, "but would be willing to consider such a bill," said Brenna
Smith, Reynolds' press secretary.
Behn, who has served in the Legislature for 2 decades, said it's too early to
predict whether his death penalty bill can pass the Senate in the 2018 session.
"This is one of those bills that is not necessarily Republican or Democrat,"
Behn said. "I think we will just talk about it and see what kind of support you
can get. If we get enough to bring it up, fine. But it has to get out of
committee first."
A host of groups lined up last session to oppose Behn's proposal. They included
the Iowa Attorney General's Office, the Iowa Academy of Trial Lawyers, National
Association for the Advancement of Colored People-Iowa and Nebraska; Iowans
Against the Death Penalty, American Civil Liberties Union of Iowa, the Iowa
Catholic Conference, Iowa Annual Conference of the United Methodist Church,
Episcopal Diocese of Iowa, and Interfaith Alliance of Iowa.
Daniel Zeno, policy counsel for the American Civil Liberties Union of Iowa,
said opposition to the death penalty has been a cornerstone of the ACLU since
the organization's founding in 1920.
"We believe it is inherently unconstitutional. It is cruel and unusual
punishment and a violation of fair treatment under the law," Zeno said.
Furthermore, data show the death penalty is racially discriminatory and there
are often errors in the justice system, Zeno added. "The decision about life
and death too often depends upon race or geography or the quality of the lawyer
that the person got, and we also think it fails to protect innocent people. So
far, we know that there have been over 150 people who have been exonerated from
the death penalty."
Zeno said the ACLU supports making sure there are serious consequences for
"horrible, horrible" crimes. But a mistake in a death penalty case could result
in an innocent person being killed, he added. "So our position is that even
though these are hard, tragic cases, the state shouldn't be using the death
penalty."
Previous debate in the Legislature
The last major debate in the Iowa Legislature over capital punishment occurred
in 1995, when it was rejected by the Senate. Since then, lawmakers have
generally accepted the idea that Iowa will not execute murderers, and people
convicted of 1st-degree murder and given life sentences in recent years have
rarely been granted clemency by the state's governors.
However, similar legislation was unsuccessfully proposed by Senate Republicans
4 years ago after the abductions and slayings of Iowa cousins Elizabeth
Collins, 8, and Lyric Cook-Morrissey, 10. The girls disappeared from Evansdale
in July 2012 and their bodies were discovered months later by hunters in Bremer
County. No one has been charged in connection with their deaths.
In the House, Judiciary Chairman Chip Baltimore, R-Boone, said he doesn't plan
to introduce a death penalty bill in the 2018 session, but it would be
considered if the Senate approves such legislation. He added that the death
penalty was briefly discussed among some House members last session to
determine if there was any interest in pursuing the issue "and there didn't
seem to be any momentum behind it."
The Des Moines Register last polled on the issue of capital punishment in 2006.
At that time, 66 % of Iowa adults favored reviving the death penalty for
certain crimes, and 29 % opposed it.
(source: Des Moines Register)
NEBRASKA:
Jose Sandoval to challenge state's plans to execute him
The man now in line to be the 1st Nebraska death row inmate executed by lethal
injection says he will fight the state's efforts to put him to death.
Jose Sandoval said in letters mailed to The World-Herald that defense lawyers
"sought me out" shortly after prison officials formally notified Sandoval on
Nov. 9 that they had obtained 4 lethal injection drugs to carry out his
execution. After a 60-day notice period, the Attorney General???s Office can
ask the Nebraska Supreme Court to issue a death warrant for Sandoval.
Because the ringleader of a 2002 bank robbery attempt that left 5 people dead
has no appeals or other legal actions pending in state or federal courts, it
had not been clear whether he intends to resist his death sentence. But his
letters indicate that he does.
"Everything happens for a reason," he wrote when asked to explain his motive to
challenge Nebraska's plans to use an untried 4-drug combination to carry out
the state's 1st execution in 20 years.
Sandoval said an attorney for the ACLU will represent him in some manner. But
he did not identify any other lawyers, including the small number of defense
attorneys in Nebraska who have experience litigating death penalty cases.
That seems to hint that out-of-state federal public defenders with expertise in
death penalty issues could petition the courts to represent Sandoval.
Such an arrangement would not be a first in Nebraska or other states when it
comes to capital cases. Recently a federal judge appointed the Federal Public
Defender's Office in Arkansas to assist with a habeas corpus filing by Nebraska
death row inmate Jeffrey Hessler. Marco Torres Jr., also on death row, has been
assigned staff with Federal Defender Services of Eastern Tennessee.
Such out-of-state lawyers would potentially be able to represent Sandoval in
federal court, and they could also ask to represent or advise him in state
court. But they would have to petition a federal judge to allow their
appointments.
James Smith, the top civil lawyer for the Nebraska Attorney General's Office,
recently filed paperwork in Madison County District Court to represent the
state against Sandoval. But a similar filing has not yet been made on behalf of
Sandoval, according to court records.
David Stickman, the federal public defender for U.S. District Court in
Nebraska, did not return a phone message last week seeking comment for this
story. Norfolk defense lawyer Ronald Temple, who represented Sandoval in his
direct appeal, also has not returned repeated messages.
Danielle Conrad, director of ACLU of Nebraska, said Saturday: "I can confirm
ACLU of Nebraska's legal director, Amy Miller, has been in contact with Jose
Sandoval. We are preparing to announce the scope of our representation of Mr.
Sandoval early next week."
Sandoval was sentenced to death for the 2002 murders of 5 people in the U.S.
Bank branch in Norfolk. He and 2 accomplices - also on death row - gunned down
bank employees Samuel Sun, Jo Mausbach, Lola Elwood and Lisa Bryant and
customer Evonne Tuttle. Sandoval later pleaded guilty to the deaths of Travis
Lundell and Robert Pearson in the months before the bank slayings.
His convictions were upheld by the Nebraska Supreme Court, and in 2011 the U.S.
Supreme Court rejected his petition for review.
Since then, Sandoval has not taken the common path followed by most death row
inmates and filed a writ for habeas corpus to challenge his sentence in federal
court. Nor has he filed any new motions for post-conviction relief in state
court.
The federal court system sets a 1-year deadline on filing habeas challenges. In
his letter, Sandoval said he knows he allowed the deadline to pass.
He said he was not surprised that state officials decided to select him from
among the 11 men on death row. He said he had been expecting it in the year
since a majority of voters reversed the 2015 repeal of the death penalty by the
Nebraska Legislature.
When asked to describe his response to the state's execution plans, Sandoval
said, "Don't have a plan, don't need a plan. Everything happens for a reason.
Besides, I got the greatest attorney in the world."
To a follow-up question asking whether he fears the possibility of being
executed, he replied, "I'm not worried or fearful. The only people who are, are
those who have no hope. Those who have no faith and don't believe in nothing."
(soruce: Omaha World-Herald)
USA:
US executions increase slightly in 2017
A court reprieve that halted the scheduled December lethal injection of a Texas
prisoner means 2017 will end with 23 inmates executed in the U.S., a figure
that although up slightly from the previous year is 1/2 of what it was a decade
ago.
The year-end numbers also show that Texas will regain its standing as the
nation's most active state in carrying out capital punishment.
Texas inmate Juan Castillo, who had an August death date postponed because of
Hurricane Harvey, was set for lethal injection Dec. 14 for a December 2003
robbery and fatal shooting in San Antonio. However, the Texas Court of Criminal
Appeals, the state's highest criminal court, this past week sent the
36-year-old Castillo's appeal back to his trial court to review arguments from
defense attorneys that a witness presented false testimony at Castillo's 2005
trial.
Castillo's was the last execution scheduled for 2017 in the 31 states that
impose the death penalty, according to statistics kept by the Death Penalty
Information Center, a Washington-based group that opposes capital punishment.
Texas put to death 7 prisoners this year, matching the state total from 2016.
They were among the 23 inmates - up from 20 last year - put to death in 8
states in 2017. Arkansas carried out four executions, followed by Alabama and
Florida with 3 each, and Ohio and Virginia with 2 each. Georgia, which topped
the nation in 2016 with 9, executed 1 prisoner this year, as did Missouri.
Oklahoma, which typically has one of the busiest execution chambers in the
country, went another year without putting any inmates to death as the state
struggles with implementing a new execution protocol. Oklahoma put all
executions on hold 2 years ago after several mishaps, including a botched
lethal injection in 2014 and drug mix-ups in 2015, and the state's attorney
general's office has said it won't request any execution dates until at least
150 days after new protocols are released.
Among the more than 3 dozen condemned prisoners in the U.S. who won court
reprieves from scheduled executions this year was Texas death row inmate
Clinton Young, whose friend Robert Pruett was executed in October.
"We understand the reality of what we're facing," Young said in an interview
before his October scheduled execution, which was stopped by the Texas Court of
Criminal Appeals. "Nobody sits here and cries over it. You've got a limited
time. You try to make the best of it.
"But it's like, you don't want to see your friends go."
Governors also halted executions. In one dramatic case, Ohio Gov. John Kasich
stopped the November execution of Alva Campbell Jr. when state corrections
officials failed after multiple attempts to find a vein on Campbell suitable
for the needle carrying the lethal drug.
Executions in the U.S. peaked in 1999, when 98 inmates were put to death. The
following year, Texas alone carried out a record 40 executions. As recently as
2010, the national total was 46, but it has been declining steadily.
"Partly it's because of impediments to execution, like the embargo of the
optimum drugs," said Kent Scheidegger, legal director of the California-based
Criminal Justice Legal Foundation, which advocates for capital punishment.
"Although Texas seems to have found ways to get them, many states have not."
Scheidegger also attributed the decline to a "dramatically lower" homicide rate
compared with the 1990s and "greater selectivity in which defendants are
sentenced to death, by both prosecutors and juries."
A significant impact in Texas was approval of life without parole as a
sentencing option in capital murder cases starting in September 2005. Before
that, juries could choose between a death sentence and a prison sentence that
offered the possibility of parole.
At least 8 inmates - 5 from Texas and 1 each from Missouri, Alabama and Ohio -
are set to die in the 1st quarter of 2018. The first, scheduled for Jan. 18 in
Texas, is Anthony Allen Shore, who confessed to killing multiple people and is
known in the Houston area as the "Tourniquet Killer."
(source: Associated Press)
**************************
United States and International Criminal Law: Perpetual tale of opposite poles
The changing face of global adversity in the arena of international law has had
a monumental impact on international legal jurisprudence. One of the branches
that have predominantly developed is international criminal law albeit the
involvement of global super powers has eluded the system.
The classical case of The 'United States' (hereinafter referred to as 'U.S')
being reluctant to partake on international criminal law journey is highly
deplorable. It is quiet ironical that the U.S seems to be hostile towards
international criminal court on the one hand and on the other hand had played a
pivotal role in drafting Rome Statute, what exactly is it about the
international criminal court that seems to twist the tail of the State
Department in U.S. whether its pentagon NSC senators or congressmen. The
hostility of U.S is manifested through the perverse use of 'Veto'. The idea of
accountability for serious violations of international humanitarian law lies at
the very heart of the U.S foreign policy which is why the nullification of
criminal law jurisprudence by U.S seems perplexing. The bilateral treaties
which the U.S assigned to shelter U.S nationals have taken precedence over
threat of transfer to the court. The U.S was represented by Mr.David scheffer
(U.S. Ambassador) in the course of drafting the ICC. The policy makers believed
that U.S being a signatory wouldn't hamper the independence of the prosecutor
and the 'principle of complementarity' will ensure that American war criminals
are adequately prosecuted by the domestic tribunals. Another aspect that seems
paradoxical is the vociferous support of U.S for the adhoc criminal tribunal
and its opposition to ICC.
Reflection of History towards ICC
Post World War I, U.S submitted a memorandum of reservations which urged a
cautious approach to forge ahead with post war prosecution. This is the primary
reason why a tribunal like Nuremberg did not exist after atrocities of World
War I. A quarter century later, international criminal law resurfaced with
extra vigor, the U.S being in the consortium of allied forces displayed keen
support to hold the access enemies responsible for violation of laws and
customs of war. The Nuremberg trials is widely regarded as a flash point in the
growth of international criminal law jurisprudence for the 1st time individual
where held liable for war crimes, crimes against humanity, crimes of aggression
etc., the Nuremberg principle is regarded as the golden thread in the annals of
international legal discourse, the poignant episode of world wars had brought
international community to a brink of extinction. The lessons of war era had
established The Unite Nation whose primary object was to save the succeeding
the generations from the scourge of war. The initial phase of U.N was littered
with many debates; the 6th committee of U.N which is the legal committee came
to the forefront in development of various branches of International Law. In
the same period the International Law Commission played a proactive role in
developing of the subject to a new horizon. The period was ripe and it
witnessed a tangential growth of criminal law jurisprudence, one such
development was the drafting of the 'Genocide Convention, 1948.' The United
States which actively participated the drafting of the convention denounced the
convention citing domestic reasons. Genocide as a crime developed as a
full-fledged crime post 1950???s and other developments the global relations
had is repercussions in molding the jurisprudence of international criminal
law. The U.S prosecutor in the Nuremberg trial Mr. Robert H. Jackson statement
is a clear indicative of the stance advanced by the U.S "unless it's a war the
U.S won't interfere with the domestic affairs of some other Government" this
was translated into crimes against humanity which apparently could occur only
during war time.
One of the challengers that remained unresolved during the drafting of the
Genocide convention was the question of universal jurisdiction. The U.S was
opposed to the very idea of universal jurisdiction this is quiet palpable in
Art. 6 of the Genocide Convention, 1948. By the early 1980's the law on
universal jurisdiction had evolved considerably this is primarily because of
certain milestone cases like Adolf Eichmann, Pinochet but in U.S with the
verdict in the case of Demjanjuk vs. Petrovsky (6th cir 1985) Universal
Jurisdiction was adopted in substance. In the early half of 1990's George Bush
and Margret Thatcher took a page from the book of Nuremberg trial and broached
the idea of an international tribunal with jurisdiction over aggression and
hostage taking, this was in the backdrop of the infamous hostage crisis in Iran
and 1972 Munich disaster. In 1992, international prosecution reemerged with
outbreak of the war in Bosnia and Herzegovina, U.S sponsored an resolution
(Res.780) which enquired into violation of international humanitarian law and
ethnic cleansing.
United States and Drafting of ICC
The United States actively participated the drafting of ICC, one instance is
the debate on death penalty. The Arab and Islamic states, Caribbean states
where staunchly for death penalty while certain other countries in favor of
this. The question remained a stumbling block for the survival of ICC. The
debate was put to rest by the U.S Ambassador David Scheffer whose argument on
'Complimentarity Principle' insisting on a national judicial system to
prosecute and punish crimes within its jurisdiction including death penalty
played a significant role. This is projected under Art.80 of the Rome Statute.
The arguments against the Rome Statute by the United States, is riddled with
controversy, the Rome Statute didn't have Jurisdiction over the right of the
citizen of the 3rd state, and this is because question involves State
Sovereignty. Another, angle which the U.S put to the forefront in not signing
the ICC was the penchant of the U.S for reservation, declarations, proviso,
ratification etc, which is proscribed under the Rome Statute courtesy Article.
120, which the United States affirmately believes would transgress the
Constitution of U.S.
(source: moderndiplomacy.eu)
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