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"Major flaw" in reasoning

[TamilNet, Monday, 9 May 2011 08:00 No Comment]

Law students learn during the grueling first year of law-school the important art of "issue spotting." Applying laws to facts cannot be carried out and arguments supporting one side or the other cannot be advanced in an exam or in trial/appellate setting if students or attorneys misidentify or miss legal "issues" relevant to the fact pattern or a case. An Emeritus professor of law, Prof. Marasinghe, errs in misidentifying an issue, likely deliberately, conflates evidentiary standards for guilt against trigger for investigations, and proceeds to declare UN war-crimes report as "fatally flawed."

pdf: Major flaw in Ban Ki Moon Report by Prof. Marasinghe

The defective reasoning arises from the professor’s attempt to manufacture a non-existent issue by mischievous conflation of "State to respond" (para 2) to the "basis upon which the guilt of a party is found," (para 3). Equating "to respond" to mean "presumptive guilt," is Prof. Marasinghe’s own creation.

Prof.Marasinghe

Prof. Marasinghe, Emeritus Professor of Law, University of Windsor

The rest of Prof. Marasinghe’s argument is a red-herring, as the standard articulated by the UN war-crime panel is only for triggering an investigation. The panel appears to have used the standards articulated in the Rome Statue of the International Criminal Court (ICC).

Rome Statute Article 15(3) requires a reasonable basis to proceed in order to open an investigation. UN war-crimes report has clearly created a reasonable basis to proceed in order to open an investigation, which is what they called for.

    Rome Statute: Article 15(3):
    If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

Methodologically the UN report only articulated that evidentiary standards have been met to "open an investigation" which is what the panel has recommended. The panel did not advocate convicting anyone, where the proof remains "beyond reasonable doubt."

Different evidentiary thresholds attach to different stages of any criminal proceedings, from investigations to trial, to judgement.

pdf: ICC Appeals chamber judgment on Al Bashir

ICC confronted an evidentiary threshold issue in Al Bashir genocide case. In the pre-Trial chamber proceedings, the Court determined that the prosecutor "failed to provide reasonable grounds to believe Bashir acted with specific intent to destroy…" Judge Usacka dissented arguing "it is sufficient that the inference of genocidal intent be a reasonable one…." The Appeals chamber agreed and issued an arrest warrant.

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