Causation vs. Background Events

2019 ◽  
pp. 103-122
Author(s):  
George P. Fletcher
Keyword(s):  
Rome Statute ◽  
Tort Law ◽  
Human Action ◽  
Criminal Code ◽  
Background Events ◽  
Intelligent Approach ◽  
Comparative Negligence

This chapter examines the problem of causation. An intelligent approach to drafting a criminal code deliberately avoids certain problematic philosophical issues. Among these are the nature of human action; the purposes of punishment; and, most importantly, the problem of causation. The problem of causation runs through the crimes defined by the Rome Statute. The issue is implicit, even if the drafter wisely declined to define the concept. It is obvious that a concern for impunidad and the fate of victims presuppose the harm that has occurred to a defined victim, which implies that the harm must have been caused by the crimes defined by the Rome Statute. The chapter then considers the notion of causal energy, which explains the rise of comparative negligence in tort law.

scholarly journals Encroachment on Cultural Values in the Occupied Territories of Ukraine in the Context of International Crimes

2020 ◽  
pp. 313-319
Author(s):  
Nataliia PLYSIUK ◽  
Anna GOLUB
Keyword(s):  
Cultural Values ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Code ◽  
Criminal Court ◽  
Cultural Property ◽  
Crimean Peninsula ◽  
Occupied Territories

The article examines the essence and nature of war crimes through the prism of encroachments on cultural property in the context of the conflict in eastern Ukraine and illegal actions on the Crimean peninsula. The state of protection of cultural property in the occupied territories, the main problems of prosecution for export, damage, destruction of cultural property in the conditions of military conflict are considered. It is analyzed that the issue of protection of cultural values is currently on the table, but Ukrainian domestic science does not contain research on the process of bringing perpetrators to justice. The article highlights the main decisions of the International Criminal Court in cases of encroachment on cultural property during the armed conflict, the decisions of tribunals, analyzes their main aspects that may be useful for Ukraine. It is established that the case law of tribunals and the International Criminal Court is heterogeneous; there is no established and clearly defined list of criteria for determining the grounds for bringing perpetrators to justice, the degree and form of their guilt. There is a heterogeneous understanding of the object of the encroachment and the form of guilt, which can lead to the impossibility of bringing the perpetrators to justice. From the analysis of the essence of war crimes, it was concluded that the relevant acts may be qualified under Article 438 of the Criminal Code of Ukraine, as well as Article 8 of the Rome Statute of the International Criminal Court as war crimes. The composition of a war crime under the Rome Statute has also been studied, and possible obstacles to Ukraine’s future trials within the framework of the International Criminal Court have been outlined. The situation with the Bakhchisaray Palace in Crimea is highlighted as an object on which trilateral negotiations have already been initiated, which has the prospect of filing lawsuits in international courts. At present, Ukraine’s actions are aimed only at condemning the international community against the enemy for his illegal actions with cultural property, but the issue of initiating legal proceedings remains open.

scholarly journals ON THE QUESTION OF THE RELATIONSHIP OF WAR AND MILITARY CRIMES IN INTERNATIONAL AND NATIONAL LAW

2021 ◽  
pp. 220-228
Author(s):  
T. S. Sadova
Keyword(s):  
International Criminal Court ◽  
Military Service ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Code ◽  
Criminal Court ◽  
Humanitarian Law ◽  
Relationship Of ◽  
The Relationship

The article is devoted to the study of military (crimes against the established order of military service) and war crimes. Particular attention is paid to the concept and features of these phenomena. The sources of both international and national law were also considered for the comparative characteristics of military and war crimes in order to understand their meaning and avoid the shift of these concepts. We have explored various aspects of the concept of war crimes. They are violations of the laws and customs of war. War crimes are serious violations of international law. They are violations of the Geneva Conventions of August 12, 1949. There is a list of war crimes in the Rome Statute of the International Criminal Court. This list is contained in Аrt. 8. The list of war crimes is contained in Art. 18 of the Draft Code of Crimes against the Peace and Security of Humanity too. International jurisprudence shows that there is a special subject of war crimes. The author of the article studied the draft Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on the Application of International Criminal and Humanitarian Law”. This bill proposes to exclude certain articles on military crimes and to introduce new articles on war crimes into the Criminal Code of Ukraine. The new war crimes articles contain a list of war crimes. This list is substantially similar to the list of war crimes contained in the Rome Statute of the International Criminal Court. The concept of war and military crimes is given. The main differences between military and military crimes are revealed. Identical signs of war and military crimes have been studied. As a result, the author of the article has made a conclusion about the relationship between war and military crimes under international and national law.

Immunities of State Officials and the Responsibility for the International Crimes: International and National Law

2016 ◽  
Vol 4 (2) ◽  
pp. 0-0
Author(s):  
Светлана Глотова ◽  
Svetlana Glotova
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Rome Statute ◽  
Criminal Code ◽  
International Crimes ◽  
State Practice ◽  
The Russian Federation ◽  
Jus Cogens ◽  
International Law Commission ◽  
Law Commission

The immunities of high-rank officials regarding to the responsibility of serious crimes of international community concern are analysed in the present paper. Relevance of the topic is maintained in its consideration of the International Law Commission. Principle of the irrelevance of official capacity (Art. 7 IMT, Principle III of the Nuremberg principles, art. 27 Rome Statute of ICC) is universally recognized and has the character of jus cogens. We critically examine the state practice (Pinochet case, Georgia case). The international documents, Criminal Code of the Russian Federation and doctrine are analyzed. By virtue of the constitutional priority of universally recognized principles and norms of International law (Art. 15.4 Constitution), the provisions of the Criminal Code must be fixed in accordance with the Nuremberg principles. This concerns especially principle of irrelevance of official capacity. In case of conflict, the principle of interpretation in accordance with international law should be applied.

scholarly journals Protection of environment in armed conflicts: From progress to regress

2017 ◽  
Vol 69 (1) ◽  
pp. 103-125
Author(s):  
Nikola Paunovic
Keyword(s):  
Environmental Protection ◽  
Rome Statute ◽  
War Crimes ◽  
Criminal Code ◽  
Armed Conflicts ◽  
Environmental Modification ◽  
Geneva Conventions ◽  
First Time ◽  
Critical Consideration

The paper deals with the issue of environmental protection in armed conflicts. The article starts from the solutions contained in the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention) and the Protocol I to the Geneva Conventions, which, for the first time, explicitly contained provisions on the protection of environment in armed conflicts. Then the author focuses on the content of Article 8 of the Rome Statute and gives a brief overview of theoretical statements of prominent authors. Comparing the solutions of Protocol I and Rome Statute, the author starts from the hypothesis that the solution of the Rome Statute represent a step backwards in the protection of the environment in armed conflicts in relation to the solutions of Protocol I. In addition to critical consideration of the aforementioned provisions of the Rome Statute, the author points out the differences in the standardization of ecological war crimes in the Rome Statute and the Serbian Criminal Code. After reviewing the normative solutions, the author presents the selected examples of environmental protection in armed conflicts in practice. The results of the research, by application of the legal dogmatic method, shows that there are many problems that hinder the implementation of relevant provisions of the instruments of environmental protection in armed conflicts in practice. Therefore, the aim of the author is, starting from the problems in this area, to offer de lege ferenda proposals for the amendment of existing solutions.

La prisión permanente revisable. Un análisis del argumento internacional

2019 ◽  
pp. 83
Author(s):  
Amparo Martínez Guerra
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Code ◽  
International Criminal Law ◽  
Security Measures ◽  
Life Imprisonment ◽  
Spanish Constitution ◽  
Social Rehabilitation ◽  
The Individual

La Ley Orgánica 1/2015, 30 de marzo de modificación del Código Penal introdujo como nueva pena la prisión permanente revisable tras 25 años. De acuerdo con el art. 25.2 CE, las penas privativas de libertad y las medidas de seguridad estarán orientadas hacia la reinserción y la reducación social. Para defender la constitucionalidad de la nueva pena, el Legislador español acudió a la firma y ratificación del Estatuto de Roma para el establecimiento de la Corte Penal Internacional. Su art. 77.1 b) prevé la imposición de una pena de prisión de por vida cuando así lo justifiquen la extrema gravedad del delito y las circunstancias personales del condenado.The Organic Law 1/2015, 30 march for the amendment of the Spanish Criminal Code introduced as a new penalty the permanent prison with possibility of parole after 25 years. Pursuant to art. 25.2 of the Spanish Constitution, punishments entailing imprisonment and security measures shall be aimed reeducation and social rehabilitation.  In order to support the constitutionality of the penalty, the Legislator argued that Spain signed and ratified the Rome Statute for the establishment of the International Criminal Law. According to art. 77. 1 b)      the Court may imposed a term of life imprisonment when justifed by the extreme gravity of the crime and the individual circumstances of the convicted person.

Her Pain Prevails and her Judgment Respected—Abortion in Judaism

2009 ◽  
Vol 25 (1) ◽  
pp. 97-186 ◽  
Author(s):  
Y. Michael Barilan
Keyword(s):  
Oral Tradition ◽  
Human Life ◽  
Developed Countries ◽  
Human Action ◽  
Criminal Code ◽  
Jewish Law ◽  
Religious Law ◽  
The Status ◽  
The Law ◽  
Symbolic World

In 1977, the Israeli parliament (Knesset) changed the section on abortion in the colonial criminal code which Israel inherited from the British mandate in Palestine. Like most other Western countries who relaxed their laws on abortion in the 1960s-80s, Israel made abortion legal for almost all women who seek it. Nonetheless, the Israeli law on abortion differs substantially from other nations' laws. In no stage of pregnancy does the woman have an absolute right to abort—she always needs an approval from a special committee; yet, the woman's stage of pregnancy is nowhere a relevant legal criterion for permitting or forbidding abortion. The law does not explicitly grant the fetus any value either, as the law speaks only of “termination of pregnancy.” Indeed, Israel has one of the highest rates of late abortions among the developed countries and one of the most liberal laws on the regulation of infertility treatments and research on extra-corporeal embryos.Jewish religious law (Halakhah) ignores both questions central to the modern ethical, political and legal debate on abortion: the status of the fetus and the autonomy of women. Furthermore,Halakhahis not expressed in the language of rights, such as the rights to life and privacy, but rather in the language of obligations and limitations on action. A rich symbolic world of values and virtues complementshalakhicpositivist formalism by inspiring and demonstrating desirable ways of life and modes of valuing human action. Regarding abortion, the dialectics between Jewish law (the formal law, which delineates right from wrong) and morality (which inspires and portrays ideal modes of action as part of a largely oral tradition of private counseling and synagogue preaching) reach a powerful climax. The religious law prohibiting abortion is one of the most liberal among human legal systems, but the values of procreation and preservation of human life that inform the moral discussion are fundamental.

scholarly journals Problematic Issues of the Development and Implementation of the Code of Ukraine on Administrative Offenses

2020 ◽  
Vol 90 (3) ◽  
pp. 127-134
Author(s):  
О. Ю. Кириченко
Keyword(s):  
Public Administration ◽  
Tort Law ◽  
Criminal Code ◽  
Significant Part ◽  
Legal Entity ◽  
Legal Norms ◽  
General Part ◽  
Main Shortcoming ◽  
Current Code ◽  
Legal Entities

The most problematic aspects in the process of developing a new version of the Code of Ukraine on Administrative Offenses have been formulated and characterized; and the perspectives for the adoption of the Code of Ukraine on Administrative Offenses have been outlined. The main shortcoming is the obsolescence of the legal norms enshrined in the Code of Ukraine on Administrative Offenses. It has been noted that it is the reason for the massive disintegration of legislation in the specified area. Other shortcomings are the fragmentation and obsolescence of corpus delicti of administrative offenses (in this regard, it has been emphasized that currently administrative and tort law does not need to be expanded); eclecticism (combination of heterogeneous elements) of the content of substantive administrative tort legislation; inconsistency of a significant part of the misdemeanors in the field of public administration provided by the Code of Ukraine on Administrative Offenses; duplication of certain provisions of the Criminal Code of Ukraine, etc. The author has provided propositions for updating the sections of the current Code of Ukraine on Administrative Offenses, in particular, the inclusion into General Part of the Code of Ukraine on Administrative Offenses of the norms consolidating its tasks, determining the concept of administrative liability, detailing the understanding of legislation on administrative liability, establishing rules for the formation of the Code, as well as the scope of its action in time, in space and by the range of persons; special attention has been paid to the revision of the system of administrative penalties. The author has suggested own vision of the structure of the new Code and its content, has emphasized the necessity of determining the legal entity as a subject of administrative liability, as well as the introduction of the algorithm of bringing MPs, deputies of local councils and judges to administrative liability. It has been concluded that a separate chapter in the new Code of Ukraine on Administrative Offenses is expedient to be focused on the peculiarities of prosecuting legal entities, as well as to provide a section, which is going to be focused on the corpus delicti of torts and sanctions for their commission.

Defining The Known Risk: Context-Sensitivity In Tort Law Defenses

2019 ◽  
Vol 12 (1) ◽  
pp. 9-31
Author(s):  
Nadia N. Sawicki
Keyword(s):  
Health Care ◽  
Medical Malpractice ◽  
Tort Law ◽  
Physical Injury ◽  
Legal Doctrine ◽  
Health Care Context ◽  
Unique Nature ◽  
Context Specific ◽  
Car Accident ◽  
Comparative Negligence

Abstract The law of negligence is designed to apply uniformly across contexts. Whether dealing with a car accident, medical malpractice, or a slip-and-fall case, tort law consistently asks whether a defendant owed a duty of care to the plaintiff and whether he exercised reasonable care in fulfilling that duty. Tort law defenses, too, are generally understood to be context-neutral. The doctrines of comparative negligence and assumption of risk should not vary depending on the precise circumstances surrounding an injury. And yet, there is a peculiar inconsistency in how some defenses are applied in cases of medical malpractice as compared to cases outside the health care context. Specifically, reliance on secondary implied assumption of risk seems to require greater knowledge on the part of the plaintiff in malpractice cases than in other contexts. In recreational sport cases, for example, a plaintiff will be denied recovery if he voluntarily encountered a known risk of physical injury – regardless of whether he understood that the risk was the result of a defendant’s negligence. In contrast, in medical malpractice cases, most people’s intuition is that the plaintiff’s recovery should be denied or limited only if he had knowledge of the risk of physical injury as well as the fact that this risk was created by a negligent defendant. There is no clear doctrinal explanation for this distinction. This article describes this conundrum and poses the question of whether and when such context-specific adjustments might be doctrinally justified. Ultimately, the most likely explanation is grounded in medical exceptionalist claims that the unique nature of health care justifies a more flexible and nuanced application of legal doctrine. While this conclusion may be unsatisfying to some, it presents a valuable opportunity to revisit debates about the supposed context-neutrality of tort law.

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