The Role of Mercy in India

There has been such a sustained focus on the right to impose death that it sometimes eclipses its essential corollary, namely the sovereign right to spare life. In India’s modern political system, this power to spare life remains in the form of executive clemency. Executive clemency, enumerated in Article 72 of the Indian Constitution, represents an escape valve where officials unaffiliated with the judiciary can survey the landscape and make decisions on factors beyond the law. Thus, the most logical use of clemency powers is when an individual wrongly convicted, can demonstrate that the system failed or that they are innocent. Critics, however, have argued that this conflicts with the demands of justice and equality, demands a liberal state presumably must heed. Due to mercy’s arbitrary and capricious nature, the state, they argue, should be lawful, not merciful. A study of the mercy petitions rejected by various Presidents in recent history lends some merit to their argument since it reveals a trend of politicization of mercy.

For example, the rejection of Saibanna’s mercy petition came right after the December 16 gang rape; a time when the government needed a facile gesture to show that it was tough on crime against women. He had been sentenced to death for murdering his second wife and daughter after having been convicted for murdering his first wife, however his case was riddled with glaring judicial blunders from start to end. Both the trial court and the High Court convicted and sentenced Saibanna under s. 303 of the Indian Penal Code which provided for mandatory death sentence but had been struck down as unconstitutional some twenty years earlier. The Supreme Court took full notice of the s. 303 issue but then noted that the session’s court faulty finding did not prejudice the cause of the accused since there was no record of any mitigating circumstances.

However what the Court failed to consider was that in cases under s. 303 there is no sentencing hearing, and hence no opportunity to bring on record mitigating circumstances. Moreover, the Court squarely based its death sentence verdict on the erroneous view that Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment. Thus in effect, the Supreme Court revived mandatory death sentencing. So glaring were these errors that a campaign had been launched pursuant to which fourteen eminent retired judges of the High Court and the Supreme Court
wrote to the President asking him to commute these death sentences. They said that it would be unconscionable and a blot on the administration of justice to execute Saibanna whose petition had been pending for 25 years. These factors should have necessitated the commutation of the death sentence by a government with even an iota of respect for the rule of law. Continue reading

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Introducing Shubhangi Agarwalla

IMG_4783It is our great pleasure to introduce our new IntLawGrrls contributor Shubhangi Agarwalla!

Shubhangi is a third-year student of National Law University, Delhi (NLU-D). She has worked at Max Planck Institute of Comparative Public Law and International Law, clerked with a High Court judge in Delhi and interned under Advocate Yug Mohit Chaudhury. Shubhangi has also interned at premier law firms in India. She is an active member of the Legal Services Committee at NLU-D, and a member of the Gender Circle, a student group at NLU-D which is aimed at promoting discussions on intersectional feminism. Shubhangi is also an editor of the NLUD Student Law Journal and a visiting editor at the Bologna Law Review. She will be participating in the Willem C Vis Arbitration Moot, Vienna 2019. Shubhangi has written extensively and been published on several national and international journals. She has a diverse set of academic interests- from constitutional philosophy to international commercial arbitration.

Heartfelt welcome!

In passing: Caitlyn Antrim

Caitlyn Antrim (credit)

We mourn the loss of one of our earliest supporters and contributors, Caitlyn Antrim. An important expert on the law of the sea (see her posts), on which she lectured at American University Washington College of Law. She died while attending an international conference on that subject. An engineer by training, she named as her IntLawGrrls foremother Grace Murray Hopper, after whom a college at Yale recently was renamed.

Here’s the notice of Caitlyn’s passing:

It is with profound sadness that the Stimson Center announces the death of one of our own, Caitlyn Antrim. Caitlyn passed away on July 28th, in Kingston, Jamaica where she was attending the 24th session of the International Seabed Authority Assembly.

Caitlyn was a Nonresident Fellow of the Stimson Center and the Executive Director of the Rule of Law Committee on the Oceans, a group of scholars and practitioners in ocean law and diplomacy. Previously, Caitlyn represented the US Department of Commerce at the Third UN Conference on the Law of the Sea in 1982, served as Repair Officer and Damage Control Assistant on the USS Schofield (FFG-3), and earned the professional degree of Engineer from the Department of Ocean Engineering at the Massachusetts Institute of Technology.

Caitlyn was a fierce advocate of the United Nations Convention on the Law of the Sea, and she dedicated much of her life to encouraging the United States to become party to the Convention.

She will be missed by all of us at the Stimson Center.

“More than any one person, Caitlyn kept alive the essential discussion of the Law of the Sea issues that have lingered in limbo far too long. Her devotion to the vital mission embedded in the treaty and related matters was simply unparalleled, and her service to America’s national interest in a rules-based management of the oceans was distinguished in the highest degree.”

– Alton Frye, Presidential Senior Fellow Emeritus, Council on Foreign Relations

Women in International Law Interest Group Networking Breakfast

The Women in International Law Interest Group (WILIG) at the American Society of International Law Annual Networking Breakfast will take place on Thursday, August 9th, from 8:30 am – 9:30 am, at Tillar House (ASIL Headquarters), located at 2223 Massachusetts Ave NW in Washington, D.C.  For more information about the networking breakfast, as well as how to register, please see here.

This year’s speakers include:

Dawn Yamane Hewitt, Quinn Emanuel

Nneoma Veronica Nwogu, World Bank

Teresa McHenry, Human Rights and Special Prosecutions Section, Department of Justice

Melanie Nezer, Senior Vice President, Public Affairs, HIAS

Shana Tabak, WILIG Co-Chair, Tahirih Justice Center (moderator)

Write On! 11th Melbourne Doctoral Forum on Legal Theory

This installment of Write On!, our periodic compilation of calls for papers, includes calls to present at the 11th Melbourne Doctoral Forum on Legal Theory as follows:

The 11th Melbourne Doctoral Forum on Legal Theory is calling for papers for this year’s Forum, which will take place on 4 and 5 December 2018. The theme for this year’s Forum is ‘Facts, Law and Critique’ and this year’s Forum organisers are delighted to announce Anne Orford and Ben Golder as our keynote speakers for the Forum.

► To apply, abstracts of up to 500 words and biographies of up to 200 words should be emailed to law-mdflt@unimelb.edu.au by 5 September 2018. The full call for papers and further information can be found here.

 

 

 

‘Oslo Recommendations for Enhancing the Legitimacy of International Courts’: international judges take a stand on current challenges facing the international justice system

In collaboration with Andreas Føllesdal and Geir Ulfstein of PluriCourts

Fifteen judges from thirteen international courts recently drafted and finalized a set of recommendations aimed at reinforcing the legitimacy of institutions of international justice. These were the participants of the 2018 session of the Brandeis Institute for International Judges (BIIJ), organized collaboratively in June 2018 by the International Center for Ethics, Justice and Public Life, of Brandeis University, and the PluriCourts Center for the Study of the Legitimate Roles of the Judiciary in the Global Order, a center of excellence of the University of Oslo Faculty of Law.

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BIIJ 2018 participants

Over the course of the BIIJ, participants examined carefully how some international courts are currently experiencing ‘pushback’, be it from member states, civil society groups, or even their own parent bodies. The World Trade Organization (WTO) Appellate Body, for example, finds itself at a critical juncture. The United States has recently blocked all new appointments to its seven-member bench, which will soon bring its important trade dispute resolution work to a standstill. The International Criminal Court (ICC) has heard noise about withdrawal by some member states in response to action by its Prosecutor to examine crimes upon their territories.  More generally, international courts and tribunals feel a waning of the late 20th century enthusiasm and support for international justice institutions. BIIJ judges clearly realize that a proactive response on the part of institutions may help them to negotiate current conditions.

The Recommendations, which BIIJ participants drafted and endorsed in their personal capacities, articulate relevant policies and activities in five arenas: nomination and selection of international judges; ethics and judicial integrity; efficiency of proceedings; transparency of proceedings and access to judicial output; and role of judges in outreach and interactions with the public.

We find it first of all important that the fifteen international judges acknowledge the legitimacy challenges facing international courts. It is also significant that the judges believe that both courts and members of their benches have a responsibility to address these issues, and that such responsibility goes beyond what is the ‘primary work of international judges’, i.e. to ‘produce well-reasoned and timely judgments’.

In the section devoted to the nomination and selection of international judges, the Recommendations emphasize the importance of having multiple candidates for judicial vacancies and the need to consider diverse candidates. The document also broaches the question, perhaps publicly for the first time, of establishing age limits for judicial nominees to ensure the ongoing fitness of international judges over the length of their terms. A final provision in this section addresses the need for nomination and selection authorities to ensure that international judges may carry out their work with independence and in security.

The section on ethics and judicial integrity deals with judicial culture in the court as well as ethical issues. It is notable that the judges felt a need to emphasize that dissenting and separate opinions should ‘be delivered with restraint and formulated in respectful language so as not to undermine the authority of the court’.

The provision that ‘[e]ach international court should have a code of judicial ethics whose provisions are well known to judges’ would seem obvious and unnecessary to mention. Nevertheless, some BIIJ 2018 participants reported that while their institutions may have already formalized a set of ethical guidelines, new members of the bench may not be introduced to them nor even be aware of their existence. The guidelines then lose their positive potential.

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International judges drafting the Oslo Recommendations at BIIJ 2018

It is also unusual for international courts, faced with alleged ethical violations by a judge, to appoint ‘an external committee… composed of individuals with relevant knowledge and experience to conduct the investigation and make recommendations’. Some newer institutions have instituted such measures, and this inspired BIIJ 2018 participants to examine the benefits of such an approach. This provision of the Oslo Recommendations thus underscores the wisdom of not confining consideration of potentially serious ethical breaches to internal procedures behind closed doors.

Other provisions of the Recommendations address issues that not infrequently lead to public criticism of international courts. International judicial proceedings may be inefficient and overly lengthy; their judges may take on too much outside work to the detriment of their judicial responsibilities; proceedings cannot always be followed remotely by interested parties; judgments and other judicial output may not be posted or archived in such a manner as to be easily accessible by scholars, other courts, and the larger public; and messaging and outreach by international courts sometimes suffer from inaccuracy and inconsistency.

The Oslo Recommendations for Enhancing the Legitimacy of International Courts represent a first step toward initiating reforms in institutions of international justice that might help them to secure their standing on the world stage. Significantly, this first step has been made collectively by individuals whose positions serve as the fulcrum upon which the entire international justice system balances.

You may read the full text of the Oslo Recommendations here.

 

Introducing our new student editors: Tamiris Askarova, Miriam Azizi, and Khadija Foda

The IntLawGrrls editorial team is delighted to welcome three new student editors to the blog: Tamiris Askarova, Miriam Azizi, and Khadija Foda.

Picture1.pngTamiris Askarova is a second-year law student at the Benjamin N. Cardozo School of Law. She serves as student editor for the Cardozo Journal of Conflict Resolution. From a young age, Tamiris became involved in fundraising activities at the United Nations, which sparked her interest in international studies. Tamiris then studied political science and journalism at Fordham University, focusing on international relations and levels of democracy throughout the world, studying Latin American politics and gender relations in the political sphere. She speaks fluent Russian and intermediate Italian, is passionate about music and plays guitar.

This past summer, Tamiris interned with both an estate planning law firm helping families secure future interests and a record company to learn about the legal aspect of the entertainment industry. Tamiris enjoys traveling abroad and learning about various cultures and traditions. She is excited to continue studying international relations and human rights in efforts to promote equality.

Picture2Miriam Azizi is a Los Angeles native who recently became a New Yorker. Miriam is currently a second-year law student at the Benjamin N. Cardozo School of Law where she serves as Fellow for the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR). Prior to law school, she majored in sociology at UCLA. There, she developed a deep appreciation for the study of power and inequality in society. Through her legal studies, Miriam hopes to utilize her background in sociology and law to advance international human rights.

Picture3.pngKhadija Foda is a third-year law student at the Benjamin N. Cardozo School of Law. She is interested in human rights law, specifically, corporate accountability for human rights violations. Khadija served as a student intern in the Benjamin C. Ferencz Human Rights and Atrocity Prevention Clinic during her 2L year, working on a corporate accountability project with an indigenous community in Brazil. She also worked for Corporate Accountability Lab (“CAL”) – an organization based in Chicago. As part of her work with CAL, Khadija researched innovative ways to make U.S. statutes work to further human rights.

This past summer Khadija interned at Skadden, Arps, Slate, Meagher & Flom, LLP – a law firm based in New York. She has focused primarily on antitrust work. Her pro bono work during the summer has included an immigration self-petition under the Violence Against Women Act. The previous summer, Khadija worked for Judge Morgan in the Eastern District of Louisiana.

Heartfelt welcome!

We would also like to say farewell and thank you to student editors Osazenoriuwa Ebose and Maria Solomidou who worked with us over the past year. Best of luck in your future endeavors!