Tuesday, March 25, 2025

International Court of Justice Part II

 

Incidental jurisdiction

Until rendering a final judgment, the court has competence to order interim measures for the protection of the rights of a party to a dispute. One or both parties to a dispute may apply the ICJ for issuing interim measures. In the Frontier Dispute Case, both parties to the dispute, Burkina Faso and Mali, submitted an application to the court to indicate interim measures. Incidental jurisdiction of the court derives from the Article 41 of its Statute. Similar to the final judgment, the order for interim measures of the court are binding on state parties to the dispute. The ICJ has competence to indicate interim measures only if the prima facie jurisdiction is satisfied.

Advisory opinions

An advisory opinion is a function of the court open only to specified United Nations bodies and agencies. The UN Charter grants the General Assembly or the Security Council the power to request the court to issue an advisory opinion on any legal question. Organs of the UN other than the General Assembly or the Security Council require the General Assembly's authorization to request an advisory opinion of the ICJ. These organs of the UN only request an advisory opinion regarding the matters that fall within the scope of their activities. On receiving a request, the court decides which states and organizations might provide useful information and gives them an opportunity to present written or oral statements. Advisory opinions were intended as a means by which UN agencies could seek the court's help in deciding complex legal issues that might fall under their respective mandates.

In principle, the court's advisory opinions are only consultative in character but they are influential and widely respected. Certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, but inherently they are non-binding under the Statute of the court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the court's authoritative views on important issues of international law. In arriving at them, the court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states.

An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.

Advisory opinions have often been controversial because the questions asked are controversial or the case was pursued as an indirect way of bringing what is really a contentious case before the court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article. One such well-known advisory opinion is the Nuclear Weapons Case.

In December 2024, in the first time, the court began hearings about climate change. This is the biggest case in the history of the court: 99 countries and more than 12 intergovernmental organizations will be heard over two weeks. The General Assembly requested an advisory opinion addressing two questions: the obligations of States under international law to protect the climate system from anthropogenic emissions for States and for present and future generations, and the legal consequences arising where states, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment.

Examples of contentious cases

1980: A complaint by the United States that Iran was detaining American diplomats in Tehran in violation of international law.

1982: A dispute between Tunisia and Libya over the delimitation of the continental shelf between them.

1989: A complaint by Iran after the shooting down of Iran Air Flight 655 by a United States Navy guided missile cruiser.

1984: A dispute over the course of the maritime boundary dividing the U.S. and Canada in the Gulf of Maine area.

1999: A complaint by the Federal Republic of Yugoslavia against the member states of the North Atlantic Treaty Organization regarding their actions in the Kosovo War. This was denied on 15 December 2004 because of lack of jurisdiction, the FRY not being a party to the ICJ statute at the time it made the application.

2005: A complaint by the Democratic Republic of the Congo that its sovereignty had been violated by Uganda and that the DRC had lost billions of dollars’ worth of resources was decided in favour of the DRC.

2011: A complaint by the Republic of North Macedonia (Former Yugoslav Republic of Macedonia) that Greece's vetoing of its accession to NATO violates the Interim Accord of 13 September 1995 between the two countries. The complaint was decided in favour of North Macedonia on 5 December 2011.

2017: A complaint by the Republic of India regarding a death penalty verdict against an Indian citizen, Kulbhushan Jadhav, by a Pakistani military court (based on alleged espionage and subversive activities).

2022: A complaint by Ukraine against Russia for violating the 1948 Genocide Convention, to which both Ukraine and Russia are parties, by falsely claiming genocide as a pretext for invading Ukraine. The International Association of Genocide Scholars supported Ukraine, who asked for expedited provisional measures directing Russia to halt its offensive. Russian representatives refused to appear. On 16 March, the ICJ ordered Russia to "immediately suspend the military operations", on a 13–2 vote with the Russian and Chinese judges in opposition. The order is binding on Russia, but the ICJ cannot enforce it.

Relationship with UN Security Council

Article 94 establishes the duty of all UN members to comply with decisions of the court involving them. If parties do not comply, the issue may be taken before the Security Council for enforcement action. There are obvious problems with such a method of enforcement. If the judgment is against one of the five permanent members of the Security Council or its allies, any resolution on enforcement could then be vetoed by that member. That occurred, for example, after the Nicaragua case, when Nicaragua brought the issue of the United States' noncompliance with the court's decision before the Security Council. Furthermore, if the Security Council refuses to enforce a judgment against any other state, there is no method of forcing the state to comply. Furthermore, the most effective form to take action for the Security Council, coercive action under Chapter VII of the United Nations Charter, can be justified only if international peace and security are at stake. The Security Council has never done that so far.

The relationship between the ICJ and the Security Council, and the separation of their powers, was considered by the court in 1992 in the Pan Am case. The court had to consider an application from Libya for the order of provisional measures of protection to safeguard its rights, which, it alleged, were being infringed by the threat of economic sanctions by the United Kingdom and United States. The problem was that these sanctions had been authorized by the Security Council, which resulted in a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the court. The court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the 1971 Montreal Convention, could not be prima facie regarded as appropriate since the action was ordered by the Security Council. In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence over other treaty obligations. Nevertheless, the court declared the application admissible in 1998. A decision on the merits has not been given since the parties (United Kingdom, United States, and Libya) settled the case out of court in 2003.

There was a marked reluctance on the part of a majority of the court to become involved in a dispute in such a way as to bring it potentially into conflict with the council. The court stated in the Nicaragua case that there is no necessary inconsistency between action by the Security Council and adjudication by the ICJ. However, when there is room for conflict, the balance appears to be in favour of the Security Council.

Should either party fail "to perform the obligations incumbent upon it under a judgment rendered by the Court", the Security Council may be called upon to "make recommendations or decide upon measures" if the Security Council deems such actions necessary. In practice, the court's powers have been limited by the unwillingness of the losing party to abide by the court's ruling and by the Security Council's unwillingness to impose consequences. However, in theory, "so far as the parties to the case are concerned, a judgment of the Court is binding, final and without appeal", and "by signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the International Court of Justice in a case to which it is a party."

 

For example, the United States had previously accepted the court's compulsory jurisdiction upon its creation in 1946 but in 1984, after Nicaragua v. United States, withdrew its acceptance following the court's judgment that called on the US to "cease and to refrain" from the "unlawful use of force" against the government of Nicaragua. The court ruled (with only the American judge dissenting) that the United States was "in breach of its obligation under the Treaty of Friendship with Nicaragua not to use force against Nicaragua" and ordered the United States to pay war reparations.

Law applied

When deciding cases, the court applies international law as summarized in Article 38 of the ICJ Statute, which provides that in arriving at its decisions the court shall apply international conventions, international custom and the "general principles of law recognized by civilized nations." It may also refer to academic writing ("the teachings of the most highly qualified publicists of the various nations") and previous judicial decisions to help interpret the law although the court is not formally bound by its previous decisions under the doctrine of stare decisis. Article 59 makes clear that the common law notion of precedent or stare decisis does not apply to the decisions of the ICJ. The court's decision binds only the parties to that particular controversy. Under 38(1) (d), however, the court may consider its own previous decisions and frequently cites them.

If the parties agree, they may also grant the court the liberty to decide ex aequo et bono ("out of equality, and for the good"), granting the ICJ the freedom to make an equitable decision based on what is fair under the circumstances. That provision has not been used in the court's history So far, the International Court of Justice has dealt with about 180 cases.

Procedure

The ICJ is vested with the power to make its own rules. Court procedure is set out in the Rules of Court of the International Court of Justice 1978 (as amended on 29 September 2005).

Cases before the ICJ will follow a standard pattern. The case is lodged by the applicant, which files a written memorial setting out the basis of the court's jurisdiction and the merits of its claim. The respondent may accept the court's jurisdiction and file its own memorial on the merits of the case.

Preliminary objections

A respondent that does not wish to submit to the jurisdiction of the court may raise preliminary objections. Any such objections must be ruled upon before the court can address the merits of the applicant's claim. Often, a separate public hearing is held on the preliminary objections and the court will render a judgment. Respondents normally file preliminary objections to the jurisdiction of the court and/or the admissibility of the case. Inadmissibility refers to a range of arguments about factors the court should take into account in deciding jurisdiction, such as the fact that the issue is not justiciable or that it is not a "legal dispute".

In addition, objections may be made because all necessary parties are not before the court. If the case necessarily requires the court to rule on the rights and obligations of a state that has not consented to the court's jurisdiction, the court does not proceed to issue a judgment on the merits.

If the court decides it has jurisdiction and the case is admissible, the respondent then is required to file a Memorial addressing the merits of the applicant's claim. Once all written arguments are filed, the court holds a public hearing on the merits.

Once a case has been filed, any party (usually the applicant) may seek an order from the court to protect the status quo pending the hearing of the case. Such orders are known as Provisional (or Interim) Measures and are analogous to interlocutory injunctions in United States law. Article 41 of the statute allows the court to make such orders. The court must be satisfied to have prima facie jurisdiction to hear the merits of the case before it grants provisional measures.

Applications to intervene

In cases in which a third state's interests are affected, that state may be permitted to intervene in the case and participate as a full party. Under Article 62, a state "with an interest of a legal nature" may apply; however, it is within the court's discretion whether or not to allow the intervention. Intervention applications are rare, and the first successful application occurred only in 1991.

Judgment and remedies

Once deliberation has taken place, the court issues a majority opinion. Individual judges may issue concurring opinions (if they agree with the outcome reached in the judgment of the court but differ in their reasoning) or dissenting opinions (if they disagree with the majority). No appeal is possible, but any party may ask for the court to clarify if there is a dispute as to the meaning or scope of the court's judgment.

Criticisms

The International Court has been criticized with respect to its rulings, its procedures, and its authority. As with criticisms of the United Nations, many critics and opponents of the court refer to the general authority assigned to the body by member states through its Charter, rather than to specific problems with the composition of judges or their rulings. Major criticisms include the following:

"Compulsory" jurisdiction is limited to cases where both parties have agreed to submit to its decision, and so instances of aggression tend to be automatically escalated to and adjudicated by the Security Council. ICJ rulings are legally binding on states but not enforceable without their approval or compliance.

The International Court of Justice cannot hear the cases of organizations, private enterprises, and individuals. Furthermore, UN agencies are unable to raise a case except in the circumstance of a non-binding advisory opinion. The national states are the only ones who are able to bring cases for and act as defendants for these individuals. As a result, victims of war crimes, crimes against humanity and minority groups may not have the support of their national state.

Other existing international thematic courts, such as the ICC, are not under the umbrella of the International Court. Unlike ICJ, international thematic courts like ICC work independently from United Nations. Such dualistic structure between various international courts sometimes makes it hard for the courts to engage in effective and collective jurisdiction.

The International Court does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of cases, even those to which they consented to be bound. Because the jurisdiction does not have binding force itself, in many cases, the instances of aggression are adjudicated by Security Council by adopting a resolution, etc. There is, therefore, likelihood for the permanent member states of Security Council to avoid the legal responsibility brought up by International Court of Justice, as shown in the example of Nicaragua v. United States.

The court has been accused of judicial parsimony, with its rulings tending to dismiss submissions of parties on jurisdictional grounds and not resolving the underlying dispute between them.

The court has been accused of exhibiting a political bias, with past research finding "strong evidence" that judges at the ICJ "favor the state that appoints them", "favor states whose wealth level is close to that of the judges' own state", and "favor states whose political system is similar to that of the judges' own state."

https://en.wikipedia.org/wiki/International_Court_of_Justice

 

International Court of Justice Part I

 The International Court of Justice (ICJ; French: Cour internationale de justice, CIJ), or colloquially the World Court, is the only international court that adjudicates general disputes between nations, and gives advisory opinions on international legal issues. It is one of the six organs of the United Nations (UN), and is located in The Hague, Netherlands.

The ICJ is the successor of the Permanent Court of International Justice (PCIJ), which was established in 1920 by the League of Nations. After the Second World War, the League and the PCIJ were replaced by the United Nations and ICJ, respectively. The Statute of the ICJ, which sets forth its purpose and structure, draws heavily from that of its predecessor, whose decisions remain valid. All member states of the UN are party to the ICJ Statute and may initiate contentious legal cases; however, advisory proceedings may be submitted only by certain UN organs and agencies.

The ICJ consists of a panel of 15 judges elected by the UN General Assembly and Security Council for nine-year terms. No more than one judge of each nationality may be represented on court at the same time, and judges collectively must reflect the principal civilizations and legal systems of the world. Seated in the Peace Palace in The Hague, the ICJ is the only principal UN organ not located in New York City. Its official working languages are English and French.

Since the entry of its first case on 22 May 1947, the ICJ has entertained 191 cases through 13 November 2023. Pursuant to Article 59 of the Statute of the International Court of Justice, the court's rulings and opinions are binding on the parties with respect to the particular case ruled on by the court.

History

The first permanent institution established for the purpose of settling international disputes was the Permanent Court of Arbitration (PCA), which was created by The Hague Peace Conference of 1899. Initiated by the Russian Tsar Nicholas II, the conference involved all the world's major powers, as well as several smaller states, and resulted in the first multilateral treaties concerned with the conduct of warfare. Among these was the Convention for the Pacific Settlement of International Disputes, which set forth the institutional and procedural framework for arbitral proceedings, which would take place in The Hague, Netherlands. Although the proceedings would be supported by a permanent bureau—whose functions would be equivalent to that of a secretariat or court registry—the arbitrators would be appointed by the disputing states from a larger pool provided by each member of the convention. The PCA was established in 1900 and began proceedings in 1902.

A second Hague Peace Conference in 1907, which involved most of the world's sovereign states, revised the convention and enhanced the rules governing arbitral proceedings before the PCA. During this conference, the United States, Great Britain and Germany submitted a joint proposal for a permanent court whose judges would serve full-time. As the delegates could not agree how the judges would be selected, the matter was shelved pending an agreement to be adopted at a later convention.

The Hague Peace Conferences, and the ideas that emerged therefrom, influenced the creation of the Central American Court of Justice, which was established in 1908 as one of the earliest regional judicial bodies. Various plans and proposals were made between 1911 and 1919 for the establishment of an international judicial tribunal, which would not be realized in the formation of a new international system following the First World War.

The Permanent Court of International Justice

The unprecedented bloodshed of the First World War led to the creation of the League of Nations, established by the Paris Peace Conference of 1919 as the first worldwide intergovernmental organization aimed at maintaining peace and collective security. Article 14 League's Covenant called for the establishment of a Permanent Court of International Justice (PCIJ), which would be responsible for adjudicating any international dispute submitted to it by the contesting parties, as well as to provide an advisory opinion upon any dispute or question referred to it by the League of Nations.

In December 1920, following several drafts and debates, the Assembly of the league unanimously adopted the statute of the PCIJ, which was signed and ratified the following year by a majority of members. Among other things, the new Statute resolved the contentious issues of selecting judges by providing that the judges be elected by both the council and the Assembly of the league concurrently but independently. The makeup of the PCIJ would reflect the "main forms of civilization and the principal legal systems of the world". The PCIJ would be permanently placed at the Peace Palace in The Hague, alongside Permanent Court of Arbitration.

The PCIJ represented a major innovation in international jurisprudence in several ways:

Unlike previous international arbitral tribunals, it was a permanent body governed by its statutory provisions and rules of procedure

It had a permanent registry that served as a liaison with governments and international bodies

Its proceedings were largely public, including pleadings, oral arguments, and all documentary evidence

It was accessible to all states and could be declared by states to have compulsory jurisdiction over disputes

The PCIJ Statute was the first to list sources of law it would draw upon, which in turn became sources of international law

Judges were more representative of the world and its legal systems than any prior international judicial body

Unlike the ICJ, the PCIJ was not part of the league, nor were members of the league automatically a party to its Statute. The United States, which played a key role in both the second Hague Peace Conference and the Paris Peace Conference, was notably not a member of the league. However, several of its nationals served as judges of the court.

From its first session in 1922 until 1940, the PCIJ dealt with 29 interstate disputes and issued 27 advisory opinions. The court's widespread acceptance was reflected by the fact that several hundred international treaties and agreements conferred jurisdiction upon it over specified categories of disputes. In addition to helping resolve several serious international disputes, the PCIJ helped clarify several ambiguities in international law that contributed to its development.

The United States played a major role in setting up the PCIJ but never joined. Presidents Wilson, Harding, Coolidge, Hoover, and Roosevelt all supported membership, but did not get the two-thirds majority in the Senate required for a treaty.

Establishment of the International Court of Justice

Following a peak of activity in 1933, the PCIJ began to decline in its activities due to the growing international tension and isolationism that characterized the era. The Second World War effectively put an end to the court, which held its last public session in December 1939 and issued its last orders in February 1940. In 1942 the United States and United Kingdom jointly declared support for establishing or re-establishing an international court after the war, and in 1943, the U.K. chaired a panel of jurists from around the world, the "Inter-Allied Committee", to discuss the matter. Its 1944 report recommended that:

The statute of any new international court should be based on that of the PCIJ;

The new court should retain an advisory jurisdiction;

Acceptance of the new court's jurisdiction should be voluntary;

The court should deal only with judicial and not political matters

Several months later at the Moscow conference in 1943, the major Allied Powers—China, the USSR, the U.K., and the U.S.—issued a joint declaration recognizing the necessity "of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security".

The following Allied conference at Dumbarton Oaks, in the United States, published a proposal in October 1944 that called for the establishment of an intergovernmental organization that would include an international court. A meeting was subsequently convened in Washington, D.C., in April 1945, involving 44 jurists from around the world to draft a statute for the proposed court. The draft statute was substantially similar to that of the PCIJ, and it was questioned whether a new court should even be created. During the San Francisco Conference, which took place from 25 April to 26 June 1945 and involved 50 countries, it was decided that an entirely new court should be established as a principal organ of the new United Nations. The statute of this court would form an integral part of the United Nations Charter, which, to maintain continuity, expressly held that the Statute of the International Court of Justice (ICJ) was based upon that of the PCIJ.

Consequently, the PCIJ convened for the last time in October 1945 and resolved to transfer its archives to its successor, which would take its place at the Peace Palace. The judges of the PCIJ all resigned on 31 January 1946, with the election of the first members of the ICJ taking place the following February at the First Session of the United Nations General Assembly and Security Council. In April 1946, the PCIJ was formally dissolved, and the ICJ, in its first meeting, was elected President José Gustavo Guerrero of El Salvador, who had served as the last president of the PCIJ. The court also appointed members of its Registry, mainly drawn from that of the PCIJ, and held an inaugural public sitting later that month.

The first case was submitted in May 1947 by the United Kingdom against Albania concerning incidents in the Corfu Channel.

Activities

The Peace Palace in The Hague, Netherlands, seat of the ICJ

Established in 1945 by the UN Charter, the court began work in 1946 as the successor to the Permanent Court of International Justice. The Statute of the International Court of Justice, similar to that of its predecessor, is the main constitutional document constituting and regulating the court.

The court's workload covers a wide range of judicial activity. After the court ruled that the United States's covert war against Nicaragua was in violation of international law (Nicaragua v. United States), the United States withdrew from compulsory jurisdiction in 1986 to accept the court's jurisdiction only on a discretionary basis. Chapter XIV of the United Nations Charter authorizes the UN Security Council to enforce Court rulings. However, such enforcement is subject to the veto power of the five permanent members of the council, which the United States used in the Nicaragua case.

Composition

The ICJ is composed of fifteen judges elected to nine-year terms by the UN General Assembly and the UN Security Council from a list of people nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 4–19 of the ICJ Statute. Elections are staggered, with five judges elected every three years to ensure continuity within the court. Should a judge die in office, the practice has generally been to elect a judge in a special election to complete the term. Historically, deceased judges have been replaced by judges from the same region, though not —as often wrongly asserted— necessarily from the same nationality.

Article 3 states that no two judges may be nationals of the same country. According to Article 9, the membership of the court is supposed to represent the "main forms of civilization and of the principal legal systems of the world". This has been interpreted to include common law, civil law, socialist law, and Islamic law, while the precise meaning of "main forms of civilization" is contested.

There is an informal understanding that the seats will be distributed by geographic regions so that there are five seats for Western countries, three for African states (including one judge of Francophone civil law, one of Anglophone common law and one Arab), two for Eastern European states, three for Asian states and two for Latin American and Caribbean states. For most of the court's history, the five permanent members of the United Nations Security Council (France, USSR, China, the United Kingdom, and the United States) have always had a judge serving, thereby occupying three of the Western seats, one of the Asian seats and one of the Eastern European seats. Exceptions have been China not having a judge on the court from 1967 to 1985, during which time it did not put forward a candidate, and British judge Sir Christopher Greenwood being withdrawn as a candidate for election for a second nine-year term on the bench in 2017, leaving no judges from the United Kingdom on the court. Greenwood had been supported by the UN Security Council but failed to get a majority in the UN General Assembly. Indian judge Dalveer Bhandari took the seat instead.

Article 6 of the Statute provides that all judges should be "elected regardless of their nationality among persons of high moral character" who are either qualified for the highest judicial office in their home states or known as lawyers with sufficient competence in international law. Judicial independence is dealt with specifically in Articles 16–18.

To insure impartiality, Article 16 of the Charter requires independence from their national governments or other interested parties, stating, "No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature." In addition, Article 17 requires that judges do not show any prior biases on cases before them, specifically, "No member may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity."

Judges of the International Court of Justice are entitled to the style of His/Her Excellency. Judges are not able to hold any other post or act as counsel. In practice, members of the court have their own interpretation of these rules and many have chosen to remain involved in outside arbitration and hold professional posts as long as there is no conflict of interest. Former judge Bruno Simma and current judge Georg Nolte have acknowledged that moonlighting should be restricted.

A judge can be dismissed only by a unanimous vote of the other members of the court. Despite these provisions, the independence of ICJ judges has been questioned. For example, during the Nicaragua case, the United States issued a communiqué suggesting that it could not present sensitive material to the court because of the presence of judges from the Soviet bloc.

Judges may deliver joint judgments or give their own separate opinions. Decisions and advisory opinions are by majority, and, in the event of an equal division, the president's vote becomes decisive, which occurred in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Opinion requested by WHO), [1996] ICJ Reports 66. Judges may also deliver separate dissenting opinions.

In its 77 years of history, only five women have been elected to the Court, with former UN Special Rapporteur Philip Alston calling for states to take seriously questions of representation in the bench.

In 2023, judges elected to take office from 2024 did not include a Russian member, so for the first time, from 2024 there will be no member from the Commonwealth of Independent States. This is also the first time that Russia would not have a judge on the ICJ, even going back to its predecessor, the Soviet Union.

Ad hoc judges

Article 31 of the statute sets out a procedure whereby ad hoc judges sit on contentious cases before the court. The system allows any party to a contentious case (if it otherwise does not have one of that party's nationals sitting on the court) to select one additional person to sit as a judge on that case only. It is thus possible that as many as seventeen judges may sit on one case.

The system may seem strange when compared with domestic court processes, but its purpose is to encourage states to submit cases. For example, if a state knows that it will have a judicial officer who can participate in deliberation and offer other judges local knowledge and an understanding of the state's perspective, it may be more willing to submit to the jurisdiction of the court. Although this system does not sit well with the judicial nature of the body, it is usually of little practical consequence. Ad hoc judges usually (but not always) vote in favour of the state that appointed them and thus cancel each other out.

Chambers

Generally, the court sits as full bench, but in the last fifteen years, it has on occasion sat as a chamber. Articles 26–29 of the statute allow the court to form smaller chambers, usually 3 or 5 judges, to hear cases. Two types of chambers are contemplated by Article 26: firstly, chambers for special categories of cases, and second, the formation of ad hoc chambers to hear particular disputes. In 1993, a special chamber was established, under Article 26(1) of the ICJ statute, to deal specifically with environmental matters (although it has never been used).

Ad hoc chambers are more frequently convened. For example, chambers were used to hear the Gulf of Maine Case (Canada/US). In that case, the parties made clear they would withdraw the case unless the court appointed judges to the chamber acceptable to the parties. Judgments of chambers may have either less authority than full Court judgments or diminish the proper interpretation of universal international law informed by a variety of cultural and legal perspectives. On the other hand, the use of chambers might encourage greater recourse to the court and thus enhance international dispute resolution.

Jurisdiction

As stated in Article 93 of the UN Charter, all 193 UN members are automatically parties to the court's statute. Non-UN members may also become parties to the court's statute under the Article 93(2) procedure, which was used by Switzerland in 1948 and Nauru in 1988, prior to either joining the UN. Once a state is a party to the court's statute, it is entitled to participate in cases before the court. However, being a party to the statute does not automatically give the court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered in the three types of ICJ cases: contentious issues, incidental jurisdiction, and advisory opinions.

Contentious issues

In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases; individuals, corporations, component parts of a federal state, NGOs, UN organs, and self-determination groups are excluded from direct participation, although the court may receive information from public international organizations. However, this does not preclude non-state interests from being the subject of proceedings; for example, a state may bring a case on behalf of one of its nationals or corporations, such as in matters concerning diplomatic protection.

Jurisdiction is often a crucial question for the court in contentious cases. The key principle is that the ICJ has jurisdiction only on the basis of consent. Under Article 36, there are four foundations for the court's jurisdiction:

Compromis or "special agreement", in which parties provide explicit consent to the court's jurisdiction by referring cases to it. While not true compulsory jurisdiction, this is perhaps the most effective jurisdictional basis, because the parties concerned have a desire for the dispute to be resolved by the court, and are thus more likely to comply with the court's judgment.

Compromissory clauses in a binding treaty. Most modern treaties contain such clauses to provide for dispute resolution by the ICJ. Cases founded on compromissory clauses have not been as effective as cases founded on special agreement, since a state may have no interest in having the matter examined by the court and may refuse to comply with a judgment. For example, during the Iran hostage crisis, Iran refused to participate in a case brought by the US based on a compromissory clause contained in the Vienna Convention on Diplomatic Relations and did not comply with the judgment. Since the 1970s, the use of such clauses has declined; many modern treaties set out their own dispute resolution regime, often based on forms of arbitration.

Optional clause declarations accepting the court's jurisdiction. Also known as Article 36(2) jurisdiction, it is sometimes misleadingly labeled "compulsory", though such declarations are voluntary. Many such declarations contain reservations that exclude from jurisdiction certain types of disputes (ratione materia). The principle of reciprocity may further limit jurisdiction, as Article 36(2) holds that such declaration may be made "in relation to any other State accepting the same obligation...” As of January 2018, seventy-four states had a declaration in force, up from sixty-six in February 2011; of the permanent Security Council members, only the United Kingdom has a declaration. In the court's early years, most declarations were made by industrialized countries. Since the 1986 Nicaragua case, declarations made by developing countries have increased, reflecting a growing confidence in the court. However, even those industrialized countries that have invoked optional declarations have sometimes increased exclusions or rescinded them altogether. Notable examples include the United States in the Nicaragua case, and Australia, which modified its declaration in 2002 to exclude disputes on maritime boundaries, most likely to prevent an impending challenge from East Timor, which gained independence two months later.

Article 36(5) provides for jurisdiction on the basis of declarations made under the Statute of the Permanent Court of International Justice. Article 37 similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ.

Additionally, the court may have jurisdiction on the basis of tacit consent (forum prorogatum). In the absence of clear jurisdiction under Article 36, jurisdiction is established if the respondent accepts ICJ jurisdiction explicitly or simply pleads on the merits. This arose in the 1949 Corfu Channel Case (U.K. v. Albania), in which the court held that a letter from Albania stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction.

Medical Malpractice

 

Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury or death to a patient. The negligence might arise from errors in diagnosis, treatment, and aftercare or health management.

An act of medical malpractice usually has three characteristics. Firstly, it must be proven that the treatment has not been consistent with the standard of care, which is the standard medical treatment accepted and recognized by the profession. Secondly, it must be proven that the patient has suffered some kind of injury due to the negligence. In other words, an injury without negligence or an act of negligence without causing any injury cannot be considered malpractice. Thirdly, it must be proven that the injury resulted in significant damages such as disability, unusual pain, suffering, hardship, and loss of income or a significant burden of medical bills.

Medical malpractice law

In common law jurisdictions, medical malpractice liability are normally based on the tort of negligence.

Although the law of medical malpractice differs significantly between nations, as a broad general rule liability follows when a health care practitioner does not show a fair, reasonable and competent degree of skill when providing medical care to a patient. If a practitioner holds himself out as a specialist a higher degree of skill is required. Jurisdictions have also been increasingly receptive to claims based on informed consent, raised by patients who allege that they were not adequately informed of the risks of medical procedures before agreeing to treatment.

As law varies by jurisdiction, the specific professionals who may be targeted by a medical malpractice action will vary depending upon where the action is filed. Among professionals that may be potentially liable under medical malpractice laws are:

Physicians, surgeons, psychiatrists and dentists.

Nurses, midwives, nurse practitioners, and physician assistants.

Allied health professionals - including physiotherapists, osteopaths, chiropractors, podiatrists, occupational therapists, social workers, psychologists, pharmacists, optometrists and medical radiation practitioners.

Among the acts or omissions that may potentially support a medical malpractice claim are the failure to properly diagnose a disease or medical condition, the failure to provide appropriate treatment for a medical condition, and unreasonable delay in treating a diagnosed medical condition. In some jurisdictions a medical malpractice action may be allowed even without a mistake from the doctor, based upon principles of informed consent, where a patient was not informed of possible consequences of a course of treatment and would have declined the medical treatment had proper information been provided in advance.

United Kingdom

The Supreme Court of the United Kingdom decided in 2018 that the duty of care extended to information given to patients by clerical staff of a healthcare provider, such that a medical negligence case might be predicated upon an administrative mistake. A patient at Croydon Health Services NHS Trust's emergency department had severe brain damage having been given misleading information by staff at reception. He was told that he would be seen by a doctor in four or five hours and left the hospital, when actually he would be seen inside 30 minutes by a triage nurse.

£1.7 billion was spent on clinical negligence claims by the NHS in 2016/17. 36% of that was legal costs. In January 2018, NHS England announced that NHS hospitals in England would no longer provide office or advertising space for lawyers who encourage people to take the NHS to court.

In 2019/20 11,682 medical negligence claims and reported incidents were received by the NHS – an increase of 9.3% on 2018/19. In the same time, the total value of clinical negligence claims under the CNST scheme reduced from £8.8 billion, to £8.3 billion.

Litigation

In many jurisdictions, a medical malpractice lawsuit is initiated officially by the filing and service of a summons and complaint. The parties subsequently engage in discovery, a process through which documents such as medical records are exchanged, and depositions are taken by parties involved in the lawsuit. A deposition involves the taking of statements made under oath about the case. Certain conversations are not discoverable due to issues of privilege, a legal protection against discovery, but most conversations between the parties and witnesses are discoverable.

Consequences

Consequences for patients and doctors vary by country.

In Canada, all provinces except Quebec base medical malpractice liability on negligence, while Quebec follows a civil law system.

Germany permits patients injured by medical negligence to bring a private action against the provider in contract, tort, or both.

Sweden has implemented a no fault system for the compensation of people injured by medical treatment. Patients who want to bring malpractice claims may choose between bringing a traditional tort claim or a no fault claim.

In New Zealand, the Accident Compensation Corporation provides no-fault compensation for victims.

In the United States, tort lawsuits may be used to seek compensation for malpractice. Awards of compensation in the United States tend to be much larger than awards for similar injuries in other nations.

A no-fault system may provide compensation to people who have medical outcomes that are significantly worse than would be anticipated under the circumstances, or where there is proof of injury resulting from medical error, without regard to whether or not malpractice occurred. Some no fault systems are restricted to specific types of injury, such as a birth injury or vaccine injury.

Demography

Medico-legal action across multiple countries is more common against male than female doctors (odds ratio of 2.45). A 2016 survey of US physicians found that 8.2 percent of physicians under the age of forty reported having been sued for malpractice during their careers, with 49.2 percent of physicians over the age of 54 reporting having been sued.

https://en.wikipedia.org/wiki/Medical_malpractice

Double Jeopardy Clause

 

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..." The four essential protections included are prohibitions against, for the same offense:

retrial after an acquittal;

retrial after a conviction;

retrial after certain mistrials; and

multiple punishments

Jeopardy attaches in jury trial when the jury is empaneled and sworn in, in a bench trial when the court begins to hear evidence after the first witness is sworn in, or when a court accepts a defendant's plea unconditionally. Jeopardy does not attach in a retrial of a conviction that was reversed on appeal on procedural grounds (as opposed to evidentiary insufficiency grounds), in a retrial for which "manifest necessity" has been shown following a mistrial, and in the seating of another grand jury if the prior one refuses to return an indictment

"Same offense"

In United States v. Felix, the U.S. Supreme Court ruled: "a[n]...offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes."

Sometimes the same conduct may violate different statutes. If all elements of a lesser offense are relied on to prove a greater offense, the two crimes are the "same offense" for double jeopardy purposes, and the doctrine will bar the second prosecution. This ruling in Felix distinguished between the test in Blockburger and the ruling in Grady v. Corbin regarding the "same conduct" vs "same offense" test, which was later overruled and reverted to Blockburger in United States v. Dixon. In Blockburger v. United States, the Supreme Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not". The test was applied in Brown v. Ohio, where the defendant had first been convicted of operating an automobile without the owner's consent, and later of stealing the same automobile. The Supreme Court concluded that the same evidence was necessary to prove both offenses, and that in effect there was only one offense. Therefore, it overturned the second conviction.

In other cases, the same conduct may constitute multiple offenses under the same statute, for instance where one robs many individuals at the same time. There is no explicit bar to separate prosecutions for different offenses arising under the same "criminal transaction", but it is not permissible for the prosecution to re-litigate facts already determined by a jury. In Ashe v. Swenson, the defendant was accused of robbing seven poker players during a game. John Ashe was first tried for, and acquitted of, robbing only one of the players; the defense did not contest that a robbery actually took place. The state then tried the defendant for robbing the second player; stronger identification evidence led to a conviction. The Supreme Court, however, overturned the conviction. It was held that in the first trial, since the defense had not presented any evidence that there was no robbery, the jury's acquittal had to be based on the conclusion that the defendant's alibi was valid. Since one jury had held that the defendant was not present at the crime scene, the State could not re-litigate the issue.

"Twice put in jeopardy"

Retrial after acquittal

Once acquitted, a defendant may not be retried for the same offense: "A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense." This applies in all cases where a verdict of not guilty is entered by the Court against a defendant. Be it an acquittal returned by the finder of fact (jury during a trial by jury, the judge during a bench trial), a direct acquittal by a judge on motion from the defense, or a ruling that the evidence is insufficient for conviction.

Implied acquittals

Every charge has specific facts that must be proven beyond reasonable doubt to secure a conviction. And it is not unusual for a prosecutor to charge a person with "lesser included offenses". An oft-mentioned combination is first- and second-degree murder, with second-degree murder being the lesser offense. A person convicted on the lesser charge can never again be tried on the greater charge. If the conviction on the lesser charge is overturned, the greater charge does not then come back into play.

The Supreme Court ruled as such in Green v. United States, establishing the doctrine of "implied acquittal". Everett Green had been tried on charges of arson and first and second degree murder in the U.S. District Court for the District of Columbia. He was convicted on arson and the lesser offense of second degree murder. The verdict was silent on the greater offense. His conviction was overturned due to the appellate court deciding there wasn't enough evidence, remanding for a new trial. At the second trial, he was tried again with arson, first and second degree murder, convicted on the greater offense and sentenced to death.

He appealed, claiming the second trial should not have included the greater offense under the Double Jeopardy Clause. The D.C. Circuit Court rejected the claim. The Supreme Court of the United States overruled, stating that Green was acquitted of first degree murder and, under the Fifth Amendment, could not be retried on that charge.

At Green's first trial, the jury was authorized to find him guilty of either first degree murder (killing while perpetrating a felony) or, alternatively, of second degree murder (killing with malice aforethought). The jury found him guilty of second degree murder, but, on his appeal, that conviction was reversed and the case remanded for a new trial. At this new trial, Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge and it was in no way involved in his appeal. For the reasons stated hereafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.

That the jury did not explicitly return an acquittal on first degree murder in its verdict is immaterial:

In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: "We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree."

This case did, in effect, overrule a proceeding per curiam decision, that of Brantley v. Georgia. In that case, the lesser charge was voluntary manslaughter and the greater charge was murder. Brantley was convicted on the lesser charge, but was convicted on the greater charge at retrial after the conviction was overturned. He appealed; arguing the inclusion of the greater charge at retrial violated the Double Jeopardy Clause. The Supreme Court rejected that argument: "It was not a case of twice in jeopardy under any view of the Constitution of the United States."

The Supreme Court explicitly overruled Brantley in another, near-identical case, Price v. Georgia:

While the Brantley holding may have had some vitality at the time the Georgia courts rendered their decisions in this case, it is no longer a viable authority and must now be deemed to have been overruled by subsequent decisions of this Court.

The lesser and greater offenses in Price are identical to Brantley, with both being convicted on the lesser offense, and retried on the same charges as in the original trial after the conviction is overturned. Unlike Brantley, Price was convicted again on the lesser offense of voluntary manslaughter and given a similar sentence. Price appealed that conviction. The State of Georgia contended that since Price was not convicted on the greater offense at retrial, which was the case in Brantley, the second indictment constituted "harmless error". The Supreme Court rejected that idea:

The Double Jeopardy Clause, as we have noted, is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.

Noting that the murder charge may have poisoned the jury against Price, the Supreme Court vacated the voluntary manslaughter conviction and remanded the case.

Non-final judgments

As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply, despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause because a mistrial ends a trial prematurely without a judgment of guilty or not, as was decided by the Supreme Court in United States v. Perez. Cases involuntarily dismissed because of insufficient evidence may constitute a final judgment for these purposes, though many state and federal laws allow for substantially limited prosecutorial appeals from these orders. Also, a retrial after a conviction that had been set aside upon a motion for new trial, and that subsequently has been reversed on appeal or vacated in a collateral proceeding (such as habeas corpus) would not violate double jeopardy, for the judgment in the first trial had been invalidated. In all of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials, such as to impeach contradictory testimony given at any subsequent proceeding.

Prosecutors may appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding verdict for the defendant. A successful appeal by the prosecution would simply reinstate the jury verdict and so would not place the defendant at risk of another trial.

Reversal for procedural error

If a defendant appeals a conviction and is successful in having it overturned, the defendant may be subject to retrial.

Insufficiency

Retrial is not possible if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults. As noted above, if the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal; in Burks v. United States, the Court held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient."

Fraud

If the earlier trial is a fraud, double jeopardy will not prohibit a new trial because the party acquitted has prevented themselves from being placed into jeopardy to begin with. One such case is the trial of Harry Aleman, who was tried and acquitted in 1977 in Cook County, Illinois for the September 1972 death of William Logan. Nearly 20 years later, two persons under Federal Witness Protection came forward to state that Aleman murdered Logan and another individual, and had also bribed the trial judge to return an acquittal.

Following on the new evidence, the Cook County State's Attorney in December 1993 filed new charges alleging Aleman killed William Logan, an identical allegation for which Aleman had been previously acquitted. He was convicted on that charge and sentenced to 100 to 300 years in prison. He appealed that conviction and the indictment, challenging that the second prosecution was barred under the Double Jeopardy Clause. The Seventh Circuit disagreed, stating first that "jeopardy denotes risk", citing Breed v. Jones:

In the constitutional sense, jeopardy describes the risk that is traditionally associated with criminal prosecution.

And also citing Serfass:

Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy․ In particular, it has no significance in this context unless jeopardy has once attached and an accused has been subjected to the risk of conviction.

The Seventh Circuit declared that, in rejecting the Double Jeopardy claim, even with the slight risk of conviction following the bribe, Aleman still nullified any legitimate risk:

Aleman may be correct that some risk of conviction still existed after Judge Wilson agreed to fix the case, but it cannot be said that the risk was the sort "traditionally associated" with an impartial criminal justice system.

Grand juries and double jeopardy

The Double Jeopardy Clause of the Fifth Amendment does not attach in a grand jury proceeding or bar a grand jury from returning an indictment when a prior grand jury has refused to do so.

Retrial after conviction

A person who is convicted of one set of charges cannot in general be tried on additional charges related to the crime unless said additional charges cover new facts against which the person in question has not yet been acquitted or convicted. The test that determines whether this can occur is the Blockburger test.

An example of this is the charges of "conspiring to commit murder" and "murder". Both charges typically have facts distinct from each other. A person can be charged with "conspiring to commit murder" even if the murder never actually takes place if all facts necessary to support the charge can be demonstrated through evidence. Further, a person convicted or acquitted of murder can, additionally, be tried on conspiracy as well if it has been determined after the conviction or acquittal that a conspiracy did, in fact, take place.

Retrial after mistrial

Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in Perez. When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."

Multiple punishments

The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same "finality" as acquittals, and may therefore be reviewed by the courts.

The prosecution may not seek capital punishment in the retrial if the jury did not impose it in the original trial. The reason for this exception is that before imposing the death penalty the jury has to make several factual determinations and if the jury does not make these it is seen as the equivalent of an acquittal of a more serious offense.

In Arizona v. Rumsey, a judge had held a separate hearing after the jury trial to decide if the sentence should be death or life imprisonment, in which he decided that the circumstances of the case did not permit death to be imposed. On appeal, the judge's ruling was found to be erroneous. However, even though the decision to impose life instead of death was based on an erroneous interpretation of the law by the judge, the conclusion of life imprisonment in the original case constituted an acquittal of the death penalty and thus death could not be imposed upon a subsequent trial. Even though the acquittal of the death penalty was erroneous in that case, the acquittal must stand.

Double jeopardy also does not apply if the later charge is civil rather than criminal in nature, which involves a different legal standard (crimes must be proven beyond a reasonable doubt, whereas civil wrongs need only be proven by preponderance of evidence or in some matters, clear and convincing evidence). Acquittal in a criminal case does not prevent the defendant from being the defendant in a civil suit relating to the same incident (though res judicata operates within the civil court system). For example, O. J. Simpson was acquitted of a double homicide in a California criminal prosecution, but lost a civil wrongful death claim brought over the same victims.

Defendants happening to be on parole from an earlier offense at the time may also be the subject of a parole violation hearing, which is not considered to be a criminal trial. Since parolees are usually subject to restrictions not imposed on other citizens, evidence of actions that were not deemed to be criminal by the court may be re-considered by the parole board. This legal board could deem the same evidence to be proof of a parole violation. Most states' parole boards have looser rules of evidence than is found in the courts – for example, hearsay that had been disallowed in court might be considered by a parole board. Finally, like civil trials parole violation hearings are also subject to a lower standard of proof so it is possible for a parolee to be punished by the parole board for criminal actions that they were acquitted of in court.

In the American military, courts-martial are subject to the same law of double jeopardy, since the Uniform Code of Military Justice has incorporated all of the protections of the U.S. Constitution. The non-criminal proceeding non-judicial punishment (or NJP) is considered to be akin to a civil case and is subject to lower standards than a court-martial, which is the same as a civilian court of law. NJP proceedings are commonly used to correct or punish minor breaches of military discipline. If a NJP proceeding fails to produce conclusive evidence, however, the commanding officer (or ranking official presiding over the NJP) is not allowed to prepare the same charge against the military member in question. In a court-martial, acquittal of the defendant means he is protected permanently from having those charges reinstated.

One notable exception to double jeopardy rules for military service members is if the service member was being tried for the same offense in civilian court. If a civilian court acquits an active duty service member of an offense, a court-martial can still be convened against the service member for the same offense under the provisions of the UCMJ. This is based on the "dual sovereigns" doctrine that holds that the civilian and military justice systems are completely distinct from each other and therefore are treated the same way as the distinction between state and federal courts or US and foreign courts would be for double jeopardy purposes.

The most famous American court case invoking the claim of double jeopardy is probably the second murder trial in 1876 of Jack McCall, killer of Wild Bill Hickok. McCall was acquitted in his first trial, which Federal authorities later ruled to be illegal because it took place in an illegal town, Deadwood, and then located in South Dakota Indian Territory. At the time, Federal law prohibited all except Native Americans from settling in the Indian Territory. McCall was retried in Federal Indian Territorial court, convicted, and hanged in 1877. He was the first person executed by Federal authorities in the Dakota Territory.

Double jeopardy also does not apply if the defendant was never tried from the start. Charges that were dropped or put on hold for any reason can always be reinstated in the future—if not barred by some statute of limitations.

Insanity defense

The "insanity defense" allows a defendant to be acquitted by reason of mental illness. In 2012 in the State of Georgia, Damien McElrath killed his mother and was charged with several offenses under Georgia law: malice murder, felony murder, and aggravated assault. On the malice murder charge, the jury returned a verdict of "not guilty by reason of insanity", but returned "guilty but mentally ill" on the felony murder and aggravated assault charges. The Supreme Court of Georgia vacated all verdicts as repugnant and authorized retrial.

McElrath argued the "not guilty by reason of insanity" verdict is an acquittal that prohibited Georgia from retrying McElrath on the malice murder charge. The Supreme Court of the United States agreed, ruling that "not guilty by reason of insanity" is an acquittal:

For double jeopardy purposes, a jury's determination that a defendant is not guilty by reason of insanity is a conclusion that "criminal culpability had not been established," just as much as any other form of acquittal. Burks v. United States, 437 U. S. 1, 10 (1978). Such a verdict reflects "that the Government ha[s] failed to come forward with sufficient proof of [a defendant's] capacity to be responsible for criminal acts."

That all verdicts returned by the jury were ruled "repugnant" by the Supreme Court of Georgia was immaterial. The Supreme Court reiterated its long-standing precedent that an acquittal cannot be second-guessed by any Court, so the Supreme Court of Georgia's ruling to vacate the acquittal was void. The Court did not rule on the status of the "guilty but mentally ill" charges, leaving that up to the Georgia courts to ultimately decide.

Incorporation

Although the Fifth Amendment initially applied only to the federal government, the U.S. Supreme Court has ruled that the double jeopardy clause applies to the states as well through incorporation by the Fourteenth Amendment.

Dual sovereignty doctrine

The double jeopardy clause does not generally protect a person from being prosecuted by both a state government and the United States federal government for the same act, nor does it protect a person from being prosecuted by multiple states for the same act. Because American law considers each of the state governments to be distinct from the federal government of the United States as a whole, with its own laws, court systems, and sovereignty, these parallel prosecutions are considered to be different "offenses" under the double jeopardy clause, and the decisions of one government on what to prosecute or not prosecute are not considered to be binding upon the other. This is known as the "dual sovereignty" or "separate sovereigns" doctrine.

The earliest case at the Supreme Court of the United States to address the matter is Fox v. Ohio in 1847, in which the petitioner, Malinda Fox, was appealing a conviction of a state crime of passing a counterfeit silver dollar. The power to coin money is granted exclusively to Congress, and it was argued that Congress's power precludes the power of any state from prosecuting any crimes pertaining to the money, an argument the Supreme Court rejected in upholding Fox's conviction.

A case that followed on Fox is United States v. Cruikshank, in which the Supreme Court stated that the government of the United States is a separate sovereign from any state:

This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

In 1920 the United States was fresh into the Prohibition Era. In one prosecution that occurred in Washington State, a defendant named Lanza was charged under a Washington statute and simultaneously under a United States statute, with the federal indictment stating several facts also stated in the Washington indictment. The Supreme Court addressed the question of the federal government and a state government having separate prosecutions on the same facts in United States v. Lanza:

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government (Barron v. City of Baltimore, 7 Pet. 243), and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority. (The Barron precedent was superseded 35 years later by the 14th Amendment)

This separation of sovereignty is seen with the separate federal and state trials of convicted Oklahoma City bombing co-conspirator Terry Nichols. Terry Nichols and Timothy McVeigh were tried and convicted in federal court, with Nichols sentenced to life in prison with no possibility of parole, and McVeigh sentenced to death and later executed. While the building was owned by the federal government, serving as branch locations for multiple federal agencies, the federal government had criminal jurisdiction only over 8 of the 168 confirmed deaths. With the express intent of seeing Nichols also sentenced to death, while contemplating the same for McVeigh if his death sentence was overturned on appeal, the State of Oklahoma filed charges against Terry Nichols.

There may also be federal laws that call other facts into question beyond the scope of any state law. A state may try a defendant for murder, after which the federal government might try the same defendant for a federal crime (perhaps a civil rights violation or a kidnapping) connected to the same act. The officers of the Los Angeles Police Department who were charged with assaulting Rodney King in 1991 were acquitted by a jury of the Superior Courts of California, but some were later convicted and sentenced in federal court for violating King's civil rights. Similar legal processes were used for prosecuting racially motivated crimes in the Southern United States in the 1960s during the time of the Civil Rights Movement, when those crimes had not been actively prosecuted, or had resulted in acquittals by juries that were thought to be racist or overly sympathetic with the accused in local courts.

Federal jurisdiction may apply because the defendant is a member of the armed forces or the victim(s) are armed forces members or dependents. U.S. Army Master Sergeant Timothy B. Hennis was acquitted on retrial in North Carolina for the 1985 murders of Kathryn Eastburn (31 years old) and her daughters, Kara (5 years old) and Erin (3 years old), stabbed to death in their home near Fort Bragg, North Carolina. Two decades later, Hennis was recalled to active duty, court-martialed by the Army for the crime, convicted, and sentenced again to death Richard Dieter, executive director of the Death Penalty Information Center, observed of this case, "Certainly, no one [in the US] has been exonerated and then returned to death row for the same crime except Hennis." Hennis challenged jurisdiction under the Double Jeopardy Clause on appeal to the United States Army Court of Criminal Appeals, which rejected the challenge.

Furthermore, as ruled in Heath v. Alabama, the "separate sovereigns" rule allows two states to prosecute for the same criminal act. For example, if a man stood in New York and shot and killed a man standing over the border in Connecticut, both New York and Connecticut could charge the shooter with murder.

In order for a state to have jurisdiction to prosecute a criminal act, either the action directly resulting in consequences such as death or injury must occur while the perpetrator is in the state and/or the consequences must occur in the state. For example, if a man piloting an airplane took off from New York, flew to Connecticut and while flying over Connecticut committed a murder by dropping something from the aircraft, the only two sovereigns able to prosecute would be Connecticut and the federal government (due to the murder taking place from an aircraft) – New York would lack jurisdiction since no criminal act would have been perpetrated from there. But if the same man while still in New York remotely piloted a drone using the cellular network and used that vehicle to commit the murder in Connecticut, then three separate sovereigns could prosecute the murder (New York, Connecticut and the federal government due to the use of the unmanned aircraft as well as interstate telecommunications).

Only the states and tribal jurisdictions are recognized as possessing a separate sovereignty, whereas territories of the United States, the military and naval forces, and the capital city of Washington, D.C., are exclusively under federal sovereignty. Acquittal in the court system of any of these entities would therefore preclude a re-trial (or a court-martial) in any court system under federal jurisdiction.

The dual sovereignty nature of the Double Jeopardy Clause was reheard as part of Gamble v. United States, decided in June 2019. The Supreme Court upheld the nature of dual sovereignty between federal and state charges in a 7–2 decision.

Petite policy

Though the Supreme Court of the United States has recognized the dual sovereignty doctrine as an exception to double jeopardy, the United States will not exercise its dual sovereignty power on everyone who becomes subject to it. As a self-imposed limitation on its dual sovereignty power, the United States Department of Justice has a policy called the Petite policy, named after Petite v. United States. The formal name of the policy is "Dual and Successive Prosecution Policy" and it "establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding."

Under this policy, the Department of Justice presumes that any prosecution at the state level for any fact applicable to any federal charge vindicates any federal interest in those facts, even if the outcome is an acquittal. As an example, a person who commits murder within the jurisdiction of a state is subject to that state's murder statute and the United States murder statute (18 U.S.C. § 1111). The federal government will defer to the state to prosecute under their statute. Whatever the outcome of the trial, acquittal or conviction, the Department of Justice will presume that prosecution to vindicate any federal interest and will not initiate prosecution under the United States Code.

 

However that presumption can be overcome. The policy stipulates five criteria that may overcome that presumption (particularly for an acquittal at the state level):

incompetence, corruption, intimidation, or undue influence

court or jury nullification in clear disregard of the evidence or the law

the unavailability of significant evidence, either because it was not timely discovered or known by the prosecution, or because it was kept from the trier of fact's consideration because of an erroneous interpretation of the law

the failure in a prior state prosecution to prove an element of a state offense that is not an element of the contemplated federal offense

the exclusion of charges in a prior federal prosecution out of concern for fairness to other defendants, or for significant resource considerations that favored separate federal prosecutions

The presumption may be overcome even when a conviction was achieved in the prior prosecution in the following circumstances:

If the prior sentence was manifestly inadequate in light of the federal interest involved and a substantially enhanced sentence—including forfeiture and restitution as well as imprisonment and fines—is available through the contemplated federal prosecution, or

If the choice of charges, or the determination of guilt, or the severity of sentence in the prior prosecution was affected by the sorts of factors listed in the previous list. An example might be a case in which the charges in the initial prosecution trivialized the seriousness of the contemplated federal offense, for example, a state prosecution for assault and battery in a case involving the murder of a federal official.

The presumption also may be overcome, irrespective of the result in a prior state prosecution, in those rare cases where the following three conditions are met:

The alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority.

The alleged violation involves egregious conduct, including that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the functioning of an agency of the federal government or the due administration of justice, and

The result in the prior prosecution was manifestly inadequate in light of the federal interest involved.

The existence of any of these criteria is to be determined by an Assistant Attorney General of the United States. If a prosecution is determined to have proceeded without authorization, the federal government may and has requested the Court vacate an indictment. Such a move is in line with the Courts vacating indictments wherein prosecutions were discovered to have violated Department of Justice policy. Indictments have also been vacated when the federal government first represents to the Court the prosecution was authorized but later determines that authorization to have been mistaken.

https://en.wikipedia.org/wiki/Double_Jeopardy_Clause


The Hillside Strangler(s)



 

The Hillside Strangler (later the Hillside Stranglers) is the media epithet for an American serial killer—later discovered to be a duo, Kenneth Bianchi and Angelo Buono—who terrorized the women of Los Angeles between October 1977 and February 1978, during a time when Southern California was plagued by several active serial killers. The nickname originates from the pattern of many of the victims' bodies being discovered in the hills surrounding the city, typically victims of strangulation.

An unusual twist in the investigation was the arrival in California of a psychic from Berlin; Detective Bob Grogan was politely unenthusiastic when the medium wrote, in German, that the police should be looking for two male Italians who were (possibly) brothers, aged about 35. This assessment proved to be—at least partially—correct, when the Hillside Stranglers were eventually found to be New York state natives Angelo Buono, Jr. (b. 1934; aged 43 in 1977), and his adoptive nephew Kenneth Bianchi (b. 1951; aged 26 in 1977), with the former being of Italian American ancestry.

Initially, it was believed that only one person was responsible for the killings, as investigators had no reason to believe otherwise. However, judging from the positions of some of the victims' bodies, it was deduced that two criminals were working together, though police withheld that information from the press. After an elderly neighbor of one of the victims witnessed and reported her kidnapping (having heard the words "You won't get away with this"), police had their confirmation that two individuals were involved. The uncle-nephew duo were eventually apprehended and convicted of kidnapping, raping, torturing and murdering 10 females together, plus two by Bianchi alone, ranging in age from 12 to 28.

The Hillside Strangler murders began with the deaths of two prostitutes, who were found strangled and dumped naked on hillsides northeast of Los Angeles in October and early November 1977. It was not until the deaths of five more young women—who were not sex workers—, from middle-class neighborhoods, which the media attention and subsequent "Hillside Strangler" moniker came to prominence.

There were two more deaths in December and February before the murders abruptly stopped. An extensive investigation proved fruitless, until the arrest of Bianchi in January 1979 for the murder of two young women in Washington State, and the subsequent linking of his past to the Strangler case. Ironically, Bianchi had tried, and failed, several times to become a police officer himself, but was denied each time. Nevertheless, he remained cordial and even developed a brief "friendship" with some of the officers at the Los Angeles Police Department, being invited to several social gatherings and going on patrols with some of them. It was reported that during these patrol drives, Bianchi, allegedly, would discuss and inquire about the killings, likely to see what the LAPD knew. It was this history of applying to the LAPD, and his California state ID, that clued-in law enforcement to Bianchi, who had been attempting to hide-out in Washington.

The most expensive trial in the history of the California legal system at that time followed, with Bianchi and Buono eventually being found guilty of those crimes and sentenced to life imprisonment.

Background

In January 1976, Kenneth Bianchi left Rochester, New York, and moved to Los Angeles, California, to live with his adoptive cousin Angelo Buono Jr. Buono provided a seemingly strong role model for the docile Bianchi, who was impressed by the older man's ability to "sweet-talk" the women he met. When Bianchi was short on money, Buono came up with the idea of getting some girls to work for them as prostitutes. Two teenage runaways, Sabra Hannan and Becky Spears, met Bianchi and Buono, and, once under their control, were forced to prostitute themselves. When the girls were not with clients, they were sexually and physically assaulted and mentally manipulated by Bianchi and Buono themselves. One day, Spears went to go see a client at his home, who happened to be a prominent LA lawyer, David Wood. She eventually would tell him all the details of their harrowing situation, leaving the man appalled and arranging for her to escape to a safe house.

Encouraged by Spears' escape, Hannan ran away from Bianchi and Buono a short time later, but was soon brought back and assaulted again, being forced to "pay" twice as intensely for her own "wrongdoings", and for Spears' disappearance. Eventually, however, Hannah escaped. With their pimping income gone, the duo decided to find more teenage girls. Impersonating police officers, using fake police badges, they eventually found another young woman and installed her in the previous girl's bedroom. Additionally, they purchased a supposed "trick-list" from a prostitute named Deborah Noble containing the names and contacts of men who frequently sought prostitutes. Figuring that these men could be potential new clients, Noble and a friend, Yolanda Washington, delivered the list to Buono in October 1977.

Murders

Yolanda Washington

Yolanda Washington was a 19 year old prostitute. She always worked on a certain stretch of Sunset Boulevard; her naked body was found on October 18, 1977, on a hillside near the Ventura Freeway. Detectives determined that the corpse was cleaned before being dumped, while faint marks were also visible around the neck, wrists and ankles, signs of a rope being used. The victim had been assaulted, raped and strangled.

Judith Miller

On November 1, 1977, police were called to Alta Terrace Drive in La Crescenta, a neighborhood 12 miles north of downtown Los Angeles, where the body of a teenage girl was found naked, face up on a parkway in a middle-class residential area. The homeowner had covered her with a tarp in the early morning hours to prevent the neighborhood children from viewing her on their way to school. Ligature marks were on her neck, wrists and ankles, indicating to police she was bound and strangled. The body had been dumped, indicating she was killed elsewhere.

Detective Salerno also found a small piece of light-colored fluff on her eyelid and saved it for the forensic experts. A coroner's report further detailed that she had been raped and sodomized. The girl, who was described as being "small and thin, weighing about 90 pounds and appearing to be about 16 years old", was eventually identified as 15-year-old Judith Lynn Miller, a former student of Hollywood High School. After dropping out, Miller was a runaway and small-time sex worker.

Miller was last seen alive on Halloween, October 31, 1977, talking to a man driving a large, two-toned sedan on Sunset Boulevard next to Carney's. The stranglers had told her they were ‘undercover’ police officers, handcuffed her, and took her to Buono's Auto Upholstery Shop at 703 E. Colorado St. in Glendale, where she was murdered.

Lissa Kastin

Five days later, on November 6, 1977, the nude body of another woman was discovered near the Chevy Chase Country Club in Glendale. Like Miller before, her body bore five-point (neck, wrists, and ankles) ligature marks and showed signs of having been strangled and brutally raped—but not sodomized, allegedly due to her having hair present on her legs. The woman was then identified as 21-year-old waitress Elissa Teresa "Lissa" Kastin, who was last seen leaving the restaurant where she worked the night before her body was discovered.

In addition to working full-time, Kastin was also a professional dancer in an all-female dance and cabaret troupe, The L.A. Knockers. Unlike the previous two victims, Kastin was not a sex worker, drug-user or runaway. The stranglers followed Kastin after she was seen driving home from work, pulled her over on the street she lived on, presented a "police badge", and told her that they were "detectives". They then handcuffed her and told her they needed to take her in for "questioning".

Aborted abduction of Catharine Lorre Baker

At some point in early November 1977, the two men approached 24-year-old Catharine Lorre Baker, the daughter of actor Peter Lorre—famous for his role as a serial killer in Fritz Lang's film M—with the intent of abducting and killing her. However, when Lorre produced not only her driver's license when requested, but also a picture of her sitting on her father's lap as a child, the two let her go without incident, fearing the murder of a celebrity's child would attract an unusually high amount of police and press attention.

Lorre did not realize who the men were until they were arrested, at which point she recalled that two men flashing L.A. police badges had approached her in the past.

Dolores Cepeda and Sonja Johnson

On Sunday, November 13, 1977, two girls, 12-year-old Dolores Ann "Dolly" Cepeda and 14-year-old Sonja Marie Johnson, boarded an RTD bus in front of the Eagle Rock Plaza on Colorado Boulevard and headed home. The last time they were seen was getting off the bus on York Boulevard and North Avenue 46, and approaching a two-tone sedan that reportedly had two men inside. Their two corpses were discovered by a 9-year-old boy who was treasure-hunting in a trash heap on a hillside near Dodger Stadium on November 20, 1977. Both of the girls' bodies had already begun to decompose. It was determined that they had been strangled and raped.

Kristina Weckler

Earlier that same day, November 20, 1977, hikers found the naked body of 20-year-old Kristina Weckler, a quiet, unassuming honors student at the Art Center College of Design, described by Detective Bob Grogan of the Los Angeles Police Department as a "…loving and serious young woman who should have had a bright future ahead of her". Weckler was discovered on a hillside between Glendale and Eagle Rock. When found by Detective Grogan, the typical ligature marks were on her wrists, ankles, and neck, and when he turned her over, bruises were observed on her breasts and blood oozed from her rectum. Unlike the first three victims, there were two puncture marks on her arm, but no signs of the needle tracks that indicated a drug addict; it was later determined that Weckler had been injected with Windex, a common ammonia-based window, glass and hard-surface cleaner.

Evelyn Jane King

On November 23, 1977, the badly decomposed body of 28-year-old Evelyn Jane King, an aspiring actress who had gone missing on November 9, was discovered in bushes near the Los Feliz Boulevard off-ramp of the Golden State Freeway. The severity of decomposition prevented determination as to whether she had been raped or tortured, but she had been strangled like the others. In response authorities created a task force—initially composed of 30 officers from the LAPD, the Sheriff's Department and the Glendale Police Department—to catch the predator now dubbed the "Hillside Strangler".

Lauren Rae Wagner

On November 29, 1977, police found the body of 18-year-old Lauren Rae Wagner, a business student who lived with her parents in the San Fernando Valley, in the hills around Los Angeles's Mount Washington. She had ligature marks on her neck, ankles, and wrists. There were also burn marks on her hands indicating she was tortured. Lauren's parents had expected her to come home before midnight, and the next morning, when they found her car parked across the street with the door ajar, her father questioned the neighbors.

He found that the woman who lived in the house where Lauren's car had been parked saw her abduction. This woman stated that she saw two men: one was tall and young; the other one was older and shorter with bushy hair. She also stated that she heard Wagner cry out "You won't get away with this!" during her abduction.

Kimberly Martin

On December 14, 1977, the naked body of 17-year-old prostitute Kimberly Diane Martin, which also showed signs of torture, was found on a deserted lot near Los Angeles City Hall. Martin had previously joined a call girl agency because she feared exposing herself on the streets with the Strangler on the loose. The killers happened to place a call to her agency from a Hollywood Public Library pay phone, and she was the call girl who was dispatched. When the police investigated the apartment she had been dispatched to, they found it vacant and broken into.

Cindy Hudspeth

The body of the final Hillside Strangler victim was discovered in Los Angeles on February 17, 1978, when a helicopter pilot spotted an orange Datsun abandoned midway down a cliff on the Angeles Crest Highway. Police responded to the scene and discovered the nude body of the car's owner, 20-year-old Cindy Lee Hudspeth—a student and part-time waitress—in the trunk. Her corpse again showed ligature marks, and she had been raped and tortured. She had been strangled and her body placed in the trunk of her car, which was then pushed off the cliff.

Hudspeth's murder had initially been unplanned. Bianchi had arrived at Buono's upholstery shop at closing time on February 16 to discover Hudspeth in the company of Buono, discussing upholstery work she wished him to perform on her car. The two men had a private discussion, opting to make her their next victim.

Investigation and trial

In January 1979, after an intense investigation, police charged Bianchi and Buono with the crimes. Bianchi had fled to Bellingham, Washington, where he was soon arrested by the Bellingham Police Department for raping and murdering two women he had lured to a home for a house-sitting job. Bianchi attempted to set up an insanity defense, claiming that he had dissociative identity disorder and that a personality separate from himself committed the murders. Court psychologists, notably Dr. Martin Orne, observed Bianchi and found that he was faking. Ultimately, Bianchi agreed to plead guilty and testify against Buono in exchange for leniency.

At the conclusion of Buono's trial in 1983, Presiding Judge Ronald M. George, who later became Chief Justice of the California Supreme Court, stated during sentencing, "I would not have the slightest reluctance to impose the death penalty in this case were it within my power to do so. Ironically, although these two defendants utilized almost every form of legalized execution against their victims, the defendants have escaped any form of capital punishment." Bianchi is serving a life sentence at the Washington State Penitentiary in Walla Walla. Buono died of a heart attack on September 21, 2002, at Calipatria State Prison in California, where he was serving a life sentence.

Veronica Compton

In 1980, Bianchi began a relationship with Veronica Compton. During his trial, she testified for the defense. While incarcerated, Bianchi had smuggled a semen filled condom to her in the spine of a book, so she could use it to stage a rape/murder committed by the Hillside Strangler. She was later convicted and imprisoned for attempting to strangle a woman she had lured to a motel in an attempt to have authorities believe that the Hillside Strangler was still on the loose and the wrong man was imprisoned. She was released in 2003.

Media

Film adaptations

1989 The Case of the Hillside Stranglers Dennis Farina Billy Zane Richard Crenna as Police Sergeant Bob Grogan Made for television; based on Two of a Kind: The Hillside Stranglers by Darcy O'Brien

2001 The Hillside Stranglers Ron Gilbert Jeff Marchelletta Made for television; also known as Supersleuth

2004 The Hillside Strangler Nicholas Turturro C. Thomas Howell Marisol Padilla Sánchez as Christina Chavez (based on Veronica Compton)

2006 Rampage: The Hillside Strangler Murders Tomas Arana Clifton Collins Jr. Brittany Daniel as Dr. Samantha Stone, Psychiatrist Direct-to-video

https://en.wikipedia.org/wiki/Hillside_Strangler