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Showing papers in "New Criminal Law Review in 2009"


Journal ArticleDOI
TL;DR: Governing through crime: How the War on Crime Transformed American Democracy and Created a Culture of FearCriminal Justice Theory, Volume 26, 2019 as mentioned in this paper, Section 5.1.
Abstract: Governing through Crime in South AfricaWarum Nationen scheiternGoverning Immigration Through CrimeMafia-LebenScaleDer VorsorgestaatHandbuch JugendkriminalitätThe Crime ConundrumDie SicherheitsgesellschaftDurchbrüche ins Soziale eine Festschrift für Rudolph BauerKriminalitätskontrolle als IndustrieStrafanstalt als BesserungsmaschineDie Vielfalt des RegierensThe Social Sustainability of CitiesGoverning through Crime in South AfricaSurveillance and GovernanceGoverning Through CrimeOrganized crimeDemocratic Theory and Mass IncarcerationCheliax Imperium der Teufel11-SepDefinition und Grenzen der Vorverlagerung von StrafbarkeitMass Incarceration on TrialAlternative CriminologiesGoverning Through Crime : How the War on Crime Transformed American Democracy and Created a Culture of FearCriminal Justice Theory, Volume 26Governing through crime?Laws against strikes. The South African Experience in an international and Comparative PerspectiveIntroduction to critical criminologyGoverning Through Crime in the Northern Territory: Are Criminal Justice System Changes Contributing to Rising Indigenous Imprisonment?After the War on CrimeGoverning Through CrimeInterdisziplinäre RechtsforschungDer CSI-Effekt in DeutschlandThe Contested Politics of MobilityGoverning through Globalised CrimeNeue Theorien des RechtsGoverning Through Globalised CrimeCriminological PerspectivesThe Legal Process and the Promise of Justice

732 citations





Journal ArticleDOI
TL;DR: The authors argues that the drafters of the Rome Statute, in their desire to hem in the interpretative mandate granted to the judges of the ICC, have created an unfortunate relationship between the sources of international law in the Court.
Abstract: This article argues that the drafters of the Rome Statute, in their desire to hem in the interpretative mandate granted to the judges of the ICC, have created an unfortunate relationship between the sources of international law in the Court. This has come about because of the creation of a hierarchy of sources in Article 21 of the Statute, which does not comport with general international law or the rules of treaty interpretation. Through an analysis of the use of the various sources of international law in the Al-Bashir case, the article shows how this can distort the definitions of international crimes. It also raises the specter of fragmentation within international criminal law, where crimes such as genocide are interpreted differently in the ICC than elsewhere.

31 citations


Journal ArticleDOI
TL;DR: In this article, the authors propose to repair Article 25 with an amendment that replaces Article 25(3)(d) with a clear provision specifically incorporating some joint liability doctrine, albeit a version that excludes the worst excesses of the doctrine known as joint criminal enterprise.
Abstract: Article 25 on individual criminal responsibility has generated more conflicting interpretations than any other provision in the Rome Statute. Part of the problem is that it is impossible to construct a coherent and nonredundant interpretation of Article 25(3)(d) on group complicity. Because of unfortunate drafting, both the required contribution and the required mental element are impossible to discern from the inscrutable language. As a result, it is nearly impossible to devise a holistic interpretation of Article 25(3)(d) that fits together with the rest of Article 25 and Article 30 on mental elements. One possible solution is to repair Article 25 with an amendment that replaces Article 25(3)(d) with a clear provision specifically incorporating some joint liability doctrine, albeit a version that excludes the worst excesses of the doctrine known as joint criminal enterprise.

20 citations


Journal ArticleDOI
TL;DR: In this article, the authors argue in favor of extending the spirit of Article 88 to include provisions of substantive law, which would strengthen national legal orders and assist in materializing the positive approach to complementarity.
Abstract: The essay argues in favor of extending the spirit of Article 88 to include provisions of substantive law. Such an amendment at the forthcoming Review Conference would strengthen national legal orders and would assist in materializing the positive approach to complementarity.

12 citations


Journal ArticleDOI
TL;DR: In this article, the distinction between regulatory and criminal offenses is discussed, and the authors suggest that differential procedural constraints should be based on pragmatic arguments, which do not equate with utilitarian arguments in line with philosophical pragmatism.
Abstract: This contribution stems from a workshop on foundational issues in the philosophy of criminal law This may raise expectations for a discussion of the core business of what is called substantive criminal law: the structure of crime, the concept of intention, complicity and participation, attempt and preparation; acts and omissions; or causation However, most punitive sanctions——especially fines——concern regulatory offenses that are structured to a much lesser extent by such moral notions as culpability and wrongfulness, while the applicable burden of proof does not even come close to the presumption of innocence in the case of criminal offenses This raises the questions of how the difference between regulatory and criminal offenses is to be understood and of the extent to which regulatory offenses (should) fall within the scope of the criminal law The answers to these questions will be derived from an exploration of the historicity of crimes and regulatory offenses, and their relationship to the (modern) state I will start off with tracing the emergence of contraventions and crimina in the course of the early and late Middle Ages and the subsequent advent of a domain of "police" at the threshold of modernity next to the already existing domain of "justice" After this the strict separation of the domains of "police" (covering Polizeidelikten ) and "justice" (covering Verbrechen and Vergehen ) in nineteenth-century Germany will be discussed as well as the relationship of both domains to different conceptions of the Rechtsstaat and the EEtat de droit The main argument will be that understanding the difference between criminal and regulatory offenses in essentialist terms, such as the medieval malum in se and malum prohibitum , does not make sense Building on a nonessentialist difference I will suggest that differential procedural constraints should be based on pragmatic arguments, which, however, do not equate with utilitarian arguments In line with philosophical pragmatism the separation of means and end that characterizes utilitarianism is rejected and replaced by a pragmatic approach grounded in the normative position of a constitutional democracy in the sense of an EEtat de droit or a substantive conception of the Rechtsstaat This implies that the aim of punishing regulatory offenses is to sustain an effective domain of "police" under the rule of law, meaning that the punishment of regulatory offenses will have to be regulated by the same principles that inform the "fair trial" This will allow the state to impose punitive sanctions to prevent and retaliate violations of specific legal norms, while enabling citizens to contest the incriminated violation as well as the lawfulness of the violated legal rule

11 citations


Journal ArticleDOI
TL;DR: In this paper, the authors discuss how affording a partial excuse for emotional but not cognitive dysfunction poses both a logical inconsistency and a moral dilemma for American provocation law, and make recommendations for reframing the heat of passion doctrine and resolving these issues.
Abstract: In U.S. criminal law, a defendant charged with murder can invoke the heat of passion defense, an affirmative, partial-excuse defense so that he may be instead found guilty of the lesser crime of manslaughter. This defense requires the defendant to demonstrate that he was significantly provoked and, as a direct result of the provocation, became extremely emotionally disturbed and committed the killing while in this uncontrolled emotional state. In this way, the law makes a partial allowance for emotional dysfunction——the wrongfulness of the homicide is mitigated when the emotionally charged reactivity restricts the actor9s capacity for rational thought and reasoned behavior. However, the defense makes no such allowance for cognitive dysfunction, despite the widely replicated finding in psychology that violent reactivity is associated with distorted cognitive processing. In particular, reactive violence is often attributed, in part, to provocation interpretational bias——a set of cognitive difficulties by which certain ambiguous-provocation situations are interpreted as intentional, hostile, and wrongful by the reacting aggressor. The present paper discusses how affording a partial excuse for emotional——but not cognitive——dysfunction poses both a logical inconsistency and a moral dilemma for American provocation law. Recommendations for reframing the heat of passion doctrine and resolving these issues are made. Provocation law is all about emotions, most notably anger.

11 citations


Journal ArticleDOI
TL;DR: In this article, the authors consider the absence of subpoena powers in respect of witnesses as one of the biggest threats to an effective functioning of the ICC and propose as a solution a number of recommendations to the ICC Statute.
Abstract: The Review Conference on the ICC Statute, which takes place in 2010, offers the first opportunity to repair some of the defects in that instrument. This paper considers the absence of subpoena powers in respect of witnesses as one of the biggest threats to an effective functioning of the ICC. It is demonstrated that the absence of such subpoena powers follows clearly from the ICC Statute and was a deliberate choice during the negotiations, representing a compromise between states against and in favor of a powerful Court. It is submitted that the absence of subpoena powers even entails under the Statute a nonderogable right for witnesses not to appear at the Court. As a result of this, both the quality of fact-finding and the accused9s right to a fair trial are seriously jeopardized. The paper proposes as a solution a number of recommendations to the Statute.

10 citations


Journal ArticleDOI
TL;DR: In this article, the authors argue that dolus eventualis is one of the genuine and independent pillars of criminal responsibility that forms, on its own, the basis of intentional crimes, and suggests its inclusion in the legal standard of Article 30 of the ICC Statute.
Abstract: Article 30 of the Rome Statute of the International Criminal Court provides a general definition for the mental element required to trigger the criminal responsibility of individuals for serious violations of international humanitarian law. At first sight, it appears that the explicit words of Article 30 are sufficient to put an end to a long-lasting debate regarding the mens rea enigma that has confronted the jurisprudence of the two ad hoc Tribunals for the last decade, but this is not true. Recent decisions rendered by the International Criminal Court evidence the discrepancy among the ICC Pre-Trial Chambers in interpreting the exact meaning of Article 30 of the ICC Statute. The paper challenges that dolus eventualis is one of the genuine and independent pillars of criminal responsibility that forms, on its own, the basis of intentional crimes, and suggests its inclusion in the legal standard of Article 30 of the ICC Statute.


Journal ArticleDOI
TL;DR: In this article, the authors examine the objective limitations of consent as a defense to criminal harm and conclude that certain grave harms violate a person's human dignity as a human being and therefore are wrongful and criminalizable.
Abstract: In this paper I aim to examine the objective limitations of consent as a defense to criminal harmdoing. This paper starts by briefly outlining the idea of objective morality (critical morality) as the proper basis for criminalization decisions and argues that there are also objective rather than mere conventional reasons (positive morality) for limiting the scope of consent as a defense in the criminal law. The idea of consent is in itself an objective reason for excusing wrongful harmdoing to others. However, it can be overridden by other objective considerations of greater importance. In this paper, I argue that it is only wrongful harmdoing that is criminalizable, as we do not criminalize mere accidents. Furthermore, I argue that a person can as an exercise of her personal autonomy consent to certain harms. But I note that there is a crucial difference between waiving rights that are grounded in an exercise of personal autonomy and waiving rights that violate a person9s human dignity: rational autonomy. I conclude that regardless of consent, certain grave harms violate a person9s dignity as a human being and therefore are wrongful and criminalizable.

Journal ArticleDOI
TL;DR: The distinction between military and non-military superiors in the ICC Statute is discussed in this article, where it is argued that the distinction should be removed and replaced by a conceptual distinction.
Abstract: Article 28 of the ICC Statute encapsulates the concept of command or superior responsibility. This is a complex and multilayered concept of liability. It is, on the one hand, a mode of liability, and, on the other hand, a separate offense. It is noteworthy that certain national laws recognize the various "layers" of superior responsibility in that they criminalize these different concepts of superior responsibility in separate provisions. In that sense a "conceptual distinction" is made. Article 28 of the ICC Statute does not provide for such a distinction. The distinction the provision does make, however, is that between military and nonmilitary superiors. To this author9s opinion that distinction should be removed and replaced by a conceptual distinction.

Journal ArticleDOI
TL;DR: The ICC9s principle of complementarity as mentioned in this paper requires that the ICC defer to any state that might have jurisdiction, including a state having universal jurisdiction over serious crimes, at least if the territorial state or the state of nationality, proves unable and unwilling to do so.
Abstract: This article deals with the relationship between the principle of universal jurisdiction and the jurisdiction of the ICC. Voices have been raised to expand the jurisdictional basis of the ICC9s Rome Statute to include the universality principle. The author does not support this expansion, however, mainly on practical grounds. At the same time, however, he does support, albeit cautiously, taking into account the universality principle for purposes of the admissibility analysis under Article 17 of the Statute. The ICC9s principle of complementarity indeed requires that the ICC defer to any state that might have jurisdiction, including a state having universal jurisdiction over serious crimes. It is proposed that the ICC Prosecutor encourage certain "bystander" states that can provide an effective forum to investigate and prosecute atrocity cases, at least if the territorial state, or the state of nationality, proves unable and unwilling to do so.

Journal ArticleDOI
TL;DR: The authors examines the arguments for and against the potential expansion of the International Criminal Court's substantive jurisdiction over treaty crimes at the 2010 Review Conference, and suggests alternative venues outside of national jurisdiction that could be developed for adjudication of these crimes.
Abstract: This article examines the arguments for and against the potential expansion of the International Criminal Court9s substantive jurisdiction over treaty crimes at the 2010 Review Conference, and suggests alternative venues outside of national jurisdiction that could be developed for adjudication of these crimes.

Journal ArticleDOI
TL;DR: In this paper, an interpretation of Article 54(3)(e) of the ICC Statute that pretends to be compatible with the Prosecutor's disclosure obligations (Article 67(2)) is offered.
Abstract: After a short introduction to the procedural history of the Lubanga case (infra I.) the paper analyzes, in its first substantive part (II.), the disclosure regime of the ICC with particular regard to the tension between disclosure and confidentiality as displayed in Lubanga . An interpretation of Article 54(3)(e) of the ICC Statute that pretends to be compatible with the Prosecutor's disclosure obligations (Article 67(2)) is offered. In the second part (III.), the law on disclosure/discovery in England and Wales and the United States is examined with a view to its possible contribution to an improvement of the ICC disclosure regime. This analysis confirms that the law of disclosure is of great complexity, not least because of the underlying tension between defense rights and opposing interests of public or private security. This tension cannot be solved by blanket rules but only on a case-by-case basis that strives for an appropriate balance between the public interest of an efficient prosecution of (international) crimes and the (disclosure) rights of the accused.

Journal ArticleDOI
TL;DR: The authors examines how mitigation discourse fails to address the racial implications of presenting to white jurors a narrative of a black capital defendant9s dysfunctional family life, which reinforces what white jurors "already know" about black families.
Abstract: This article examines how mitigation discourse fails to address the racial implications of presenting to white jurors a narrative of a black capital defendant9s dysfunctional family life. Given the plethora of racist configurations in the public sphere of "the black family"——signified most perniciously through the figure of the "welfare queen"——the telling of a black defendant9s dysfunctional family life may in fact reinforce what white jurors "already know" about black families. Indeed, since "the black family" figures not as an object of sympathy but of contempt, presenting uncritically mitigating evidence of a black capital defendant9s family story may, in the end, provide to a white-dominated capital jury an opportunity to punish not only the black defendant but also "the black family" writ large.

Journal ArticleDOI
TL;DR: In this article, the authors examine the history of the negotiations culminating in the Rome Statute and turn to possibilities for building on the Rome provisions both by expanding the prohibitions to non-international conflict and by adding to the list of prohibited weapons.
Abstract: Article 8(2)(b) of the Rome Statute treats as a war crime in international armed conflict the use of poison or poisoned weapons, of asphyxiating, poisonous or other gases, and of expanding bullets. Early drafts of the Statute included the use of these forbidden weapons in non-international as well as in international armed conflict. They also included as crimes the use of chemical, biological, and nuclear weapons (weapons of mass destruction). Proposals are circulating about revisiting these and other weapons issues at the Review Conference to be held in 2010, or in later reviews. This article examines the history of the negotiations culminating in Rome. It then turns to possibilities for building on the Rome provisions both by expanding the prohibitions to non-international conflict and by adding to the list of prohibited weapons. As well as reconsidering weapons of mass destruction, the author suggests that attention should be given to such items as nondetectable fragments, blinding laser weapons, antipersonnel land mines, and cluster munitions. Ambiguities in the Rome Statute9s amendment provisions that affect whether such additions can be made applicable to all parties to the Statute, or only to those who agree specifically to them, are also addressed.


Journal ArticleDOI
TL;DR: In this paper, the selection and recruitment of judges at the international criminal courts may not always conform with the criteria set out in the courts' statutes, and the requirements can differ from court to court.
Abstract: Empirical research has shown that the selection and recruitment of judges at the international criminal courts may not always conform with the criteria set out in the courts' statutes, and that the requirements can differ from court to court. There is concern that judicial positions are handed out on the basis of membership in informal political networks, also called nepotism. This paper summarizes the previous findings and looks at the question of how an adequate standard of judicial candidates can be maintained across the entire system.

Journal ArticleDOI
TL;DR: In this article, a taxonomy of the main types of exculpatory defenses is presented, and a restorative signaling theory of punitive desert best explains why such defenses have their mitigating effects.
Abstract: When someone performs a criminal act, there is a rebuttable presumption that she is particularly blameworthy and liable to a particularly severe punishment for the act. The presumption is rebutted when the criminal actor has an exculpatory defense. Such defenses mitigate how much a criminal actor is blameworthy and liable to be punished for her act. In this paper, I begin by spelling out a taxonomy of the main types of exculpatory defenses. Then I argue that a restorative signaling theory of punitive desert best explains why such defenses have their mitigating effects. According to the theory, how much someone is blameworthy and deserves to be punished for performing a criminal act corresponds to the severity of the burdens she is obligated to undertake to restore the conditions of trust she undermined by performing the act. The theory explains the mitigating effects of exculpatory defenses by explaining why they mitigate the severity of burdens that a criminal actor must undertake to fulfill the obligation of restoration she incurs from performing her act.

Journal ArticleDOI
Shawn Bayern1
Abstract: This article considers the relevance of several kinds of post-offense events for the justice of punishment under a fair-play account of retributivism. If the justice of punishment depends on something like an offender-centered tally of benefits and burdens, it may be difficult to explain why offenders should be punished by a criminal justice system in situations where they have been punished privately or have lost the relevant benefits they may have received from their offenses.

Journal ArticleDOI
TL;DR: In this paper, the authors argue that the operations of the International Criminal Court will inevitably have a direct and significant impact on the treatment of individuals in countries that are not able or willing to stand up for their citizens' rights and interests under state laws or international law.
Abstract: The protection of individuals' rights, often necessary against their own states, may sometimes also be necessary against international organizations. This is a particularly delicate matter where the international organization is meant to represent international law and justice. Drawing on the experience of the International Criminal Tribunal for the former Yugoslavia, the author argues that the operations of the International Criminal Court will inevitably have a direct and significant impact on the treatment of individuals in countries that are not able or willing to stand up for their citizens' rights and interests under state laws or international law. The interface of the ICC with the ordinary state national is generally not regulated by the ICC's statute and rules (just as it is not by the ICTY's) and, in the absence of regular and effective state protections, constitutes a lawless frontier at which the court is potentially all-powerful and the individual is at its mercy. The strong state/weak state divide (along with that of citizens enjoying correspondingly strong/weak legal protections) offers the ICC opportunities for evidence-gathering, but also risks damage to the Court's moral standing and reputation for justice. The author concludes that the ICC needs to institute, at the very least, a policy that foresees such situations and aims to maintain a balance of rights and interests in the relationship of international court and private citizen.


Journal ArticleDOI
TL;DR: In this paper, the authors examined the narrative of verdicts in violent crimes of men against their female spouses in Israel, and compared them with vehicle-related crimes through an examination of human rights discourse.
Abstract: The study examines, through textual analysis, the narrative of verdicts in violent crimes of men against their female spouses in Israel, and compares them with vehicle-related crimes through an examination of human rights discourse. The comparison with vehicle-related crimes, taken from other legal discourse of property crimes, was selected in order to examine whether the rights to life and dignity include women, or whether women are perceived as property akin to a vehicle. Moreover, the article clarifies whether the position of women in legal discourse in Israel has changed from subject to object, whereas vehicles have changed from object to subject.

Journal ArticleDOI
TL;DR: The role of victims at the investigation stage of a situation and throughout case-related proceedings is one of the critical issues before the ICC The key provision on this matter is Article 68(3) of the Rome Statute This provision entrusts the ICC Chambers with the discretion to determine when victims can participate in ICC proceedings and the specific manner in which such participation can take place as discussed by the authors.
Abstract: The scope of victims9 participation at the investigation stage of a situation and throughout case-related proceedings is today one of the critical issues before the ICC The key provision on this matter is Article 68(3) of the Rome Statute This provision entrusts the ICC Chambers with the discretion to determine (i) when victims can participate in ICC proceedings and (ii) the specific manner in which such participation can take place The present article, which is written against the backdrop of the first Review Conference scheduled for next year pursuant to Article 121(1) of the Rome Statute, focuses on the systematic and casuistic approaches adopted so far by different ICC chambers in shaping, pursuant to Article 68(3) of the Statute, the role of victims at the investigation stage of a situation and in case-related proceedings