Marquette University Law School Faculty Blog

Today’s post is from Brendan Byrne on visiting the Yad Vashem Holocaust Memorial – a regular stop for visitors to Israel including the President this past month.

Yad Vashem is the official memorial to the victims and survivors of the Holocaust that took 6 million lives and left physical and emotional scars on millions more during World War II. The museum itself is located on a tranquil and peaceful mountaintop surrounded by walking paths that allow for reflection after the atrocities recounted within.

To enter the museum everyone must cross a wooden bridge. Once inside I immediately noticed that I was surrounded by 30 foot high concrete walls and instantly recognized that I was not entering the comforts of home; it was something far from home. Rounding the first turn I saw a single long hallway that seems to be brightly lit at the end, but I couldn’t just walk a straight path to that light; the path is blocked by numerous wired fences.

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In January of this year, the Huffington Post reported on a fire that killed six children and one young adult “at an illegally run orphanage in central China”:

“The deaths Friday in Henan province’s Lankao county have spotlighted China’s lack of government-run child services. They are often left to private citizens with few resources and no legal authority. The Lankao government earlier acknowledged that it had turned a blind eye to the illegal orphanage, which cared for abandoned children and young adults. … The deputy county governor said earlier that some departments had failed in supervision and should shoulder responsibility.” Read more »

I am pleased to be leading a very vibrant seminar this semester, during which we contemplate the judicial process as evident in constitutional/human rights decisions from jurisdictions as far-flung as Germany, Jamaica and India. Covering a range of substantive topics, from torture to religious freedom to socio-economic rights, our discussions and analysis can be distilled down to two underlying questions: what do judges say they are doing, and what are judges actually doing? A plethora of historical/social/contextual factors feed into the judicial process, and determine the scope and nature of the project of constitutional adjudication.

The upcoming SCOTUS decisions on the 1996 Defense of Marriage Act (denying federal benefits to same-sex couples that are legally married in their states) and California’s Proposition 8 (a voter-approved ban on same-sex marriage), in addition to their potentially profound personal significance to persons on all sides of the marriage debate, will no doubt provide rich fodder for human rights jurists.

So it is timely, I believe, to bring attention to the story of South Africa’s constitutional adjudication of this sensitive issue, and to consider the role the South African Constitutional Court sees itself playing when it deals with the complexities of constitutional rights. Read more »

Maggy Barankitse says she has made many mistakes. “I hope they will accept me in Heaven,” she said during an “On the Issues with Mike Gousha” program at Eckstein Hall on Thursday.

“If you’re not going, the rest of us are in trouble,” responded Gousha, Marquette Law School’s distinguished fellow in law and public policy.

Gousha’s logic was simple: Who among us measures up to people such as Barankitse? Who can say we’ve done anything in the way of service to people that is even a blip compared to what she has done for tens of thousands of children in Burundi?

You can say the same when comparing our accomplishments to those of Father Richard Frechette, C.P., who launched the St. Luke Foundation that has provided day to day help and education to thousands of children in Haiti. Frechette was the guest at an “On the Issues” session Tuesday.

But who among us can’t learn from the examples of Barankitse and Frechette, who both said during their visits to the Law School that the starting points for what they have accomplished were really quite simple: seeing need, having faith, and putting their hearts and souls into doing what is good and what God wants people to do for others?

What should we learn? What can we do? That we should keep our minds and hearts open to all the people of the world, Frechette said, and do what we can to keep “the banquet of life” open to all. “When you do the right thing, the next right thing will happen,” he said. 

Barankitse and Frechette are each past winners of the Opus Prize, a $1 million award recognizing great accomplishments in faith-based social entrepreneurship. They and six other winners of the prestigious award were on the Marquette campus for Mission Week. All eight, as well as representatives of two other Opus winners, were recognized at the keynote event for the week Thursday evening at the Varsity Theatre.

Barankitse – known as Maggy to the people of Burundi – lived through horrific violence between members of Hutu and Tutsi ethnic groups that left tens of thousands of people dead in recent decades, including a slaughter in her presence of dozens, including members of her family. But, she said, she refused to be broken by what she saw; rather, she became dedicated to a positive, optimistic approach to building lives of children in her African nation, regardless of their ethnic background. Maison Shalom, the organization she founded, now provides multiple services to about 30,000 children, with the goal of rebuilding healthy families. Its work includes a hospital complex serving mothers and children.

Frechette went to Haiti in 1987 to work in an orphanage. He was motivated to take on more and more services for children as he led the rise of the St. Luke Foundation. Its operations now include schools for 8,000 younger children and 1,200 high school age children. The foundation has also launched businesses employing Haitians and helps meet food needs of many. Its programs touch the lives of an estimated 150,000 Haitians each year.

Frechette described conditions in Haiti as terrible on almost every level, and, in general, not getting better. Yet, he pursues his work with love and confidence in the potential and future of the children who are involved. “I don’t see so much the bad part of it,” he said. “I see what’s possible.” Summarizing what St. Luke does, he said, “We raise children, that’s what we do.”

Two unpretentious people who have had so much impact in places on the globe where need can seem overwhelming, impact that started with determination to do what is right and good and helpful. “You go for one thing and you end doing a lot of other things,” Frechette said.

How do we make that resonate in our own lives? What more can we do to help meet the needs of people in our midst as well as those who seem remote from us? How can we use the examples of people such as Barankitse and Frechette to inspire and guide our own paths? If one goal of Mission Week is to put such questions in front of everyone involved at Marquette, consider the two sessions at the Law School successful parts of the campus-wide whole.

Video of the conversation with Father Frechette can be viewed by clicking here. Video of the session with Maggy Barankitse can be viewed by clicking here.

Last weekend, a Beijing court granted a divorce on grounds of domestic violence, in a case which has garnered widespread attention and debate in China for the past year. In 2011 an American woman, Kim Lee, went public on social media websites (including with graphic photographs) with allegations that her husband, an infamous English teacher by the name of Li Yang (founder of “Crazy English”), was abusive. Her battle for due legal protection and recognition of her plight culminated in the Beijing decision, which granted her a divorce, and issued a three-month protection order against Li Yang – apparently the first time such an order has been granted in Beijing. In addition to acknowledging the domestic violence, the court ordered Li Yang to pay 50,000 RMB [approximately $8000] in compensation, and a further $1.9 million as part of the divorce.

Kim Lee has become a symbolic hero for domestic violence victims in China, and her case has ignited interest and debate about the issue of domestic abuse. Read more »

In 1776, as the founders were meeting to form the new government for the nation that would become the United States of America, Abigail Adams wrote to her husband John Adams and asked him “to remember the ladies” while drafting the governing documents.  She continued,

[B]e more generous and favorable to them than your ancestors [have been].  Do not put such unlimited power into the hands of husbands. . . . [I]f particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.

Quoted in Susan Gluck Mezey, Elusive Equality:  Women’s Rights, Public Policy, and the Law 5 (2011) (internal citations omitted). 

John Adams responded, “I cannot but laugh . . . .” Id. To Mr. Adams, this was the first he’d heard of women’s possible discontent with the status quo.  “[Y]our letter was the first intimation that another tribe, more numerous and powerful than all the rest were grown discontented.” Id. For whatever “power” that Mr. Adams suggested that women had, it clearly wasn’t enough, for the new Declaration of Independence and Constitution failed to give any express (or even implied) rights to women. 

Mrs. Adams responded to her husband, “I cannot say that I think you are very generous to the ladies; for whilst you are proclaiming peace and good-will to men, emancipating all nations, you insist on retaining an absolute power over wives.” Id. Read more »

This picture is of a five-year-old. More specifically, my five-year-old. Energetic and friendly and excited for kindergarten. Now that boy is long past kindergarten. Still energetic and friendly, but now excited for college. In his twelve years of primary and secondary schooling, he never once had to endure a lock-down of his school; never once had to cower under a desk or huddle with other children because someone with a gun lurks nearby, maybe even right in front of him; never had to witness his classmates or his teacher shot and lying bloody in front of him; never had to close his eyes to walk past carnage to exit his school. Maybe he was just lucky.

But no child should have to endure such things. No child. Anywhere.

By the time my sons entered school, mass school shootings were already on the national radar, thanks to the Columbine school shooting in 1999.  And, sadly, mass shootings generally have made regular appearances in their lives since then:  the Westside Middle School shooting in Arkansas, the Beltway sniper attacks, the Amish school shooting, the shooting at a Brookfield hotel where church services were being held, the massacre at Virginia Tech, the shooting of Congresswoman Gabby Giffords and others, including a nine-year-old girl, in Tucson, and just this year alone, the Aurora theatre shootings, the shooting at Oak Creek’s Sikh Temple, the shootings at Texas A&M, the shooting at Azana Salon & Spa in Brookfield, the Portland, Oregon, mall shootings, and now the Sandy Hook School shootings in Connecticut. Read more »

Last month, the International Criminal Tribunal for the Former Yugoslavia (ICTY) heard oral arguments in the important case of Prosecutor v. Gotovina.  The case concerns the decisions of General Ante Gotovina, the commander of Croatian forces during Operation Storm in August of 1995.  The case’s outcome may have far reaching implications on the practical application of the law of armed conflict.

The Gotovina prosecution arose out of Operation Storm, a massive Croatian military effort to retake Serbian controlled areas of Croatia.  In brief, and painting with a broad brush, it came in the wake of the Srebrenica Massacre, which later the U.N. Secretary General called the worst crime in Europe since World War II.  At Srebrenica, Serbians under Ratko Mladic murdered over 8,000 Bosnian men and boys in an effort to drive Bosnians from the area.  Operation Storm came on the heels of the massacre, and was an overwhelming success.  The Serbian forces were devastated.  Their leaders were forced to the negotiating table, and the peace accords soon followed.

After the war, the ICTY’s Office of the Prosecutor indicted Gotovina for war crimes arising from the targeting decisions he oversaw while commanding his forces in Operation Storm.  Gotovina went into hiding, but he was apprehended on December 7th, 2005.  On April 15, 2011, the ICTY Trial Chamber convicted Gotovina, concluding that he deliberately executed indiscriminate attacks during Operation Storm resulting in civilian deaths.

The potential significance of the Trial Chamber’s judgment, and the pending appeal, cannot be overstated.  As an Emory panel of experts offered, “[T]he manner in which [the law] is enunciated and applied in the Gotovina judgment has extraordinary import for future operations and conflicts.  The case is apparently the first – and likely the only – case assessing complex targeting decisions involving the use of artillery against a range of military objectives in populated areas during a sustained assault.” Read more »

Thank you to Dean O’Hear for inviting me to write this month as the alumni blogger.

For the past few weeks, public attention has focused on the President’s decisions regarding the lethal targeting of known terrorists and other non-state hostile actors.  Although the issue may be relatively new to the public, it has long been a source of debate among legal experts in the area of international humanitarian law – also known as the Law of Armed Conflict or LOAC – and international human rights law (IHRL).  The debate largely centers on what is called “Targeted Killing.”  The intent of this post is not to discuss the legality of Targeted Killing itself, but to instead point readers to detailed sources to help readers start studying the Targeted Killing debate or the Law of Armed Conflict more generally.

Without exception, anyone interested in the subject must certainly start by reading the Targeted Killings case from Israel in 2005.  Beyond the Targeted Killings case, there is a growing body of treatment by scholars such as Kenneth Anderson, Laurie Blank, Amos Guiora, Nils Melzer, Mary Ellen O’Connell, and many, many more – far too many to list exhaustively.  One method may be to read one, and then follow up by reading the sources they cite or refute.  The United Nations released a study on the phenomenon as well, available here.

The question of Targeted Killing presents a number of pressing issues in the area of LOAC and IHRL, especially highlighting the tension between them.  Read more »

The definition of torture, as codified in Title 18 of the United States Code Section 2340, does little to prevent what we have come to see in the news.  Torture or harsh interrogation of detainees by Americans has made its way to the front pages of our papers over the past decade.  From the prisoner abuse and torture at Abu Ghraib Prison in Iraq, to Khalid Sheikh Mohammed being waterboarded 183 times, the War on Terror has led not only to the approval of harsh interrogation techniques, but also to some abuses.  While the abuse at Abu Ghraib was perpetrated by somewhat rogue soldiers who were punished for their crimes, the government has allowed harsh interrogation of terror suspects, and the definition of torture has allowed for these techniques to be used. Read more »

[Editor's Note: This month, faculty members have been posting on upcoming judicial decisions of particular interest. This is the third post in the series.]

The Alien Tort Statute (“ATS”) creates federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although enacted as part of the original Judiciary Act of 1789, the ATS has only recently become a subject of significant litigation and academic debate. The first published appellate opinion to interpret the statute came in 1980 in Filartiga v. Pena-Irala, with the Second Circuit holding that the ATS provides federal jurisdiction where an alien files a claim alleging official torture in violation of the “law of nations”—commonly known today as “customary international law.”

Since Filartiga, federal appellate courts have issued several dozen published opinions on the ATS. Many of these have elaborated on the types of tort claims for which the ATS provides jurisdiction. Courts have held, for example, that jurisdiction is present for claims of tortious conduct violating customary international prohibitions on extrajudicial killing, genocide, crimes against humanity, and medical experiments on unknowing human subjects. Courts have also held that the ATS does not provide jurisdiction over claims of international environmental harms, cultural genocide, breach of fiduciary duty, and child labor. The task of ascertaining whether the ATS encompasses any given tort can be a difficult one, for it hinges upon often-murky indicia of international state practice. In Sosa v. Alvarez-Machain, the Supreme Court’s only opinion on the ATS, the Court held that jurisdiction is present only where a claim based on customary international law invokes an international norm that is both “accepted by the civilized world” and defined with a fairly high degree of specificity. Read more »

On Friday, September 30, 2011, Anwar al-Awlaki (Aulaqi), a U.S. citizen and well-known al-Qaeda figure, was targeted and killed during a U.S. drone strike in Yemen. Samir Khan, also a U.S. citizen, was killed in the same attack. Khan was the editor of Inspire, an English-Language al-Qaeda magazine that, among other things, publishes how-to articles designed to help terrorists build bombs for jihadist attacks against Americans.  Awlaki was perhaps best known in the U.S. for planning the failed underwear bombing of a commercial airliner over Detroit in 2009 (the alleged bomber’s criminal jury trial is currently underway), and for helping plan the 2009 massacre at Fort Hood.

Al-Awlaki’s assassination continues to draw heavy criticism both in the U.S. and abroad because he is believed to be the first U.S. citizen targeted and killed by the executive branch of the federal government without regard for Fifth Amendment due process.  Ron Paul published an op-ed in the New York Daily News expressing his outrage at al-Awlaki’s execution.  Paul, in response to what he calls the illegal murder of a U.S. citizen, is calling for President Obama’s impeachment. Read more »