Forensic science expertise for international criminal proceedings: an old problem, a new context and a pragmatic resolution

Expert witness testimony provides an important source of information for international criminal proceedings, and forensic science expertise from mass graves is no exception: findings from exhumations and examinations have featured in the ad hoc tribunals’ trials and judgments. Whilst the issues surrounding the law-science relationship have been explored within the realm of national legal systems, the mixed system adopted by these tribunals presents an established discussion with a new context. Using forensic archaeology as an example, this article explores some theoretical underpinnings and practical realities surrounding the use of forensic science during international criminal investigations into mass graves before looking at how Trial Chambers aim to establish the relevance and credibility of forensic science evidence. As little guidance regarding admissibility of expert evidence is provided, it is through the case-specific legal process of cross-examination and presentation of counter-expertise that methodological issues are resolved. This, together with reliance on normative principles, is the pragmatic approach adopted to discern reliability of expert opinion

Procedural Choices in Regulatory Science

This paper compares four approaches to using science in regulatory decision making - one very similar to the Science Court proposal. Professor Jasanoff argues generally that that proposal would be less useful than procedures more sensitive to the distinctive characteristics of regulatory science

Rational Choice or Deliberation? – Customary International Law between Coordination and Constitutionalization

Rational choice approaches to customary international law have gained in prominence in recent years. Although becoming increasingly sophisticated, they are not able to explain all phenomena of customary international law. This contribution claims that there are two different types of unwritten law in the international order. On the one hand, we have the traditional customary norms, which are identified by observing patterns of state conduct and a related opinio iuris. These norms may very well be described by rational choice approaches, which primarily observe under which conditions we may find stable patterns of behavior. However, there is, on the other hand, a different category of norms that functions in a different manner. These norms concern either human rights or public goods and can be considered as the principles of the international legal order. Their function is not to stabilize already existing behavioral equilibria, but to shape international relations in a positive way. They are not past-oriented, but future-directed. Therefore, it is the thesis of this contribution that a deliberative approach is more suitable to explain the role of these principles in the international community.-

The Developmental Path of the Lawyer

My mother does not drive, and I own a towel that I cannot use-these are my reasons for studying law. I am an integrated tapestry of elation and disappointment, risk and reward, ambiguity and conviction .. .. I discovered [through adversity] that transitional challenges were not permanent impediments to my progress, but were instead emboldening catalysts to my personal evolution and professional development. These two stories come from admissions essays submitted by members of Georgetown University Law Center\u27s class of 2014, recently published in the Law Center\u27s alumni magazine. The published essays provide fascinating views into the personal experiences and deep reflection that lead people to pursue legal studies

Something Judicious This Way Comes...The Use of Foreshadowing as a Persuasive Device in Judicial Narrative

With the recent publication of Judge Richard Posner’s book “How Judges Think” and the nomination of Judge Sonia Sotomayer to the United States Supreme Court, there has been much discussion about the way in which judges decide cases. Although certainly an interesting (and important) discussion, what has so far gone largely ignored is the question of how judges, once they reach a decision, convince the legal audience that the decision is in fact correct. Thus, in my article, entitled Something Judicious This Way Comes . . ., I focus not on how judges think, but how they write. More specifically, I analyze the way in which judges craft their opinions so as to make them more palatable to a wide range of audience members: the litigants and attorneys involved in the case, higher appellate courts who might ultimately review the opinion, and, finally, the public in general. To do this, I focus specifically on the use of foreshadowing in legal opinions. Foreshadowing, as explained in my article, is not simply a literary device, but is an extremely persuasive technique given the way in which it appeals to how human beings think and process information. Indeed, foreshadowing implicates a number of psychological theories (priming theory, schema theory, and inoculation theory), each of which has a strong impact on persuasion. Furthermore, when we look at the general psychology behind human cognition as well as the role that subtlety (a hallmark of foreshadowing) plays in persuasion, it becomes clear why judges frequently employ foreshadowing when crafting their opinions. After discussing the above psychological theories, my article then talks specifically about judicial narrative, offering discrete examples of different kinds of foreshadowing that judges have employed in notable judicial opinions. From the way in which judges phrase rules, to how they describe precedent cases, to how they even prepare us for a departure from existing law, judicial opinions offer rich examples of the intersection between psychology, narrative and persuasion

Taking Sides In Peacekeeping: Impartiality And The Future Of The United Nations

United Nations peacekeeping has undergone radical transformation in the new millennium. \u27Taking Sides in Peacekeeping\u27 explores this transformation and its implications, in what is the first conceptual and empirical study of impartiality in UN peacekeeping. The book challenges dominant scholarly approaches that conceive of norms as linear and static, conceptualizing impartiality as a \u27composite\u27 norm, one that is not free-standing but an aggregate of other principles-each of which can change and is open to contestation. Drawing on a large body of primary evidence, it uses the composite norm to trace the evolution of impartiality, and to illuminate the macro-level politics surrounding its institutionalization at the UN, as well as the micro-level politics surrounding its implementation in the Democratic Republic of the Congo, site of the largest and costliest peacekeeping mission in UN history. This book reveals that, despite a veneer of consensus, impartiality is in fact highly contested. As the collection of principles it refers to has expanded to include human rights and civilian protection, deep disagreements have arisen over what keeping peace impartially actually means. Beyond the semantics, the book shows how this contestation, together with the varying expectations and incentives created by the norm, has resulted in perverse and unintended consequences that have politicized peacekeeping and, in some cases, effectively converted UN forces into one warring party among many. The author assesses the implications of this radical transformation for the future of peacekeeping and for the UN\u27s role as guarantor of international peace and security

How Do The Courts See Sexual And Gender-Based Violence In The U.s. Asylum Context: Issues Of Judicial Ethics In The Fact-Finding And Decision-Making Process

Background: There are many concerns regarding the U.S. asylum system, especially regarding how it views cases based on claims of sexual and gender-based violence. Wide discrepancies in decision-making in the various courts throughout the U.S. not solely attributed to the strength of the asylum case or the evidence presented leads to injustice for people seeking asylum.Methods: Precedential cases were selected and read in their entirety, grouped together by topic or executive branch era in which it occurred, and the types of evidence extracted and tallied. Categories for evidence were expert testimony, DOS reports, US agency reports, UN agency reports, and scholarly works. In each group of cases, I analyzed: (1) The state of precedent and decisions of each case, and the disparities in outcomes within each group of cases (2) Potential contributing factors to the disparities in outcomes (primarily the type and usage of evidence, gender of the judge, experience in immigration work) (3) The relationship of these factors to the ethical principles governing judicial practice as they relate to bias and competence Law/case review – discussion and analysis: The three case categories were: (1) Decisions regarding female genital mutilation (2) Decisions regarding domestic violence-based asylum claims, and (3) Domestic violence asylum claims under the shifting policies of the Trump and Biden administrations. In terms of gender bias, it was found that for all three case categories, a majority of the decisions were written by male judges. Bias based on political affiliation was considered primarily for the third case group, as it was found that shifting executive administrations likely influenced the decision-making. Competence had the most significant connection to the evidence presented in these claims. Based on a decision-maker’s previous experience and the types of evidence analyzed and incorporated into the decision, a relationship was found between these factors to the ethical principles governing judicial practice as they relate to bias and competence. Conclusion: To hold the U.S. asylum system and system of judicial reasoning accountable to ethics and to the promises of the international human rights law the U.S. has undertaken, it needs to be aligned with contemporary, evidence-based understandings of what bias and competence are. Whatever bias judges have that come with gender, political affiliation, or any other biases, and any lack of competence that is seen through incorporations or lack thereof of evidence, it is best overcome not by restricting the gender of decision-makers, but rather training them to overcome bias and increase competence