Victims and Offenders

2019 ◽  
pp. 123-150
Author(s):  
George P. Fletcher
Keyword(s):  
International Criminal Court ◽  
The United States ◽  
Criminal Court ◽  
Private Life ◽  
European Convention ◽  
Criminal Cases ◽  
International Legal Order ◽  
Definition Of ◽  
The Right

This chapter assesses the role of victims and offenders in criminal cases. The victim is invisible in the definition of crime but omnipresent in the prosecution and sentencing of offenders. In the international legal order, in particular, the victim is front and center, both in the International Criminal Court (ICC) and in lawsuits under the Alien Torts Claim Act. Crime is typically defined by the actions of the offender, and the victim is an incidental consequence. There are many victimless crimes, such as those in the sexual and reproductive arena, which in the United States at least are no longer subject to prosecution on constitutional grounds. The argument for decriminalization is the privacy of the offender, but privacy of the victim can, paradoxically, become an argument for criminalization under the right to a private life codified in the European Convention on Human Rights. The chapter also looks at the duality of victimhood.

China, the Crime of Aggression, and the International Criminal Court

2014 ◽  
Vol 5 (1) ◽  
pp. 94-122 ◽  
Author(s):  
Dan ZHU
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Policy Preference ◽  
State Party ◽  
Legal Perspective ◽  
To Come ◽  
Definition Of

At the Kampala Review Conference in 2010, the adoption of the amendments to the Rome Statute laid the groundwork for the eventual prosecution of the crime of aggression. China, a non-State Party to the International Criminal Court, has articulated its concerns regarding the Court's jurisdiction over the crime of aggression in legal terms. This paper examines the Chinese concerns regarding the role of the Security Council in the determination of an act of aggression and the definition of aggression primarily from a legal perspective. It argues that China has hovered back and forth between two conflicting legal positions on these issues during different periods in history according to its policy preference. This paper also considers the concerns of China from a policy perspective before concluding that the crime of aggression should not be regarded as an insurmountable barrier preventing China's accession to the ICC in years to come.

Palestine in the ICC

2020 ◽  
Author(s):  
Yaël Ronen
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
The Other ◽  
Self Determination ◽  
Effective Control ◽  
Progressive Development ◽  
Territorial Jurisdiction ◽  
The Right

Abstract This article examines two propositions relating to the role of the right to self-determination with regard to statehood, as put forward by the Office of the Prosecutor of the International Criminal Court (ICC) in its a request pursuant to Article 19(3) of the ICC Statute, for a ruling on the Court’s territorial jurisdiction in Palestine. One proposition is that the right to self-determination can compensate for a shortfall in effective control that might otherwise bar recognition of the territory as a state. The other proposition is that when effective control is lacking because of illegal obstruction of the realization of the right to self-determination, recognition of statehood may be an appropriate response regardless of the facts. The article argues that these propositions are neither substantiated in existing law, nor can they be said to be matters of the progressive development of the law. For this, the article analyses instances where statehood was allegedly recognized prior to the consolidation of effective control and which are cited as reflecting the propositions. It shows that these instances do not support the propositions. With respect to the second proposition, the article argues that it is inadvisable as lex ferenda, nor applicable in the Palestine case.

26. Anti-terrorism law and human rights

2021 ◽  
pp. 500-522
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
Private Life ◽  
European Convention ◽  
Key Points ◽  
Definition Of ◽  
The Uk ◽  
The Right ◽  
Special Circumstances ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of la and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter considers the application of human rights in the special circumstances of the threat of terrorism and counter-terrorism measures taken in the UK. It considers the compatibility of the Terrorism Act 2000, and other subsequent measures, with human rights. This includes matters such as the definition of terrorism, police powers under the Act (such as random stop and search), and measures, such as TPIMs, to control terrorist suspects. The impact of these measures on the right to liberty and on private life are important themes. The chapter also considers the effect of such measures on the right to a fair hearing (in Articles 5 and 6). These special powers are often controversial giving rise, as they do, to important tensions between the rule of law and the duty on states to uphold the safety and security of the population.

6. Right to family and private life

2017 ◽  
Author(s):  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Private Life ◽  
European Convention ◽  
The Right To Privacy ◽  
European Court ◽  
Margin Of Appreciation ◽  
Human Rights Act ◽  
Definition Of ◽  
The Uk ◽  
The Right

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the right to family and private life, which is considered a qualified right. It discusses Article 8, which has been developed to expand protection of the European Convention on Human Rights (ECHR) through wide definitions and use of positive obligations. It also considers the European Court of Human Rights’ (ECtHR) definition of private life and application of the living instrument principle to include areas such as sexuality and the environment. In addition, the chapter explains the use of the proportionality and margin of appreciation doctrines when examining the justification of an interference with the right to family and private life, and finally, looks at the development of the right to privacy in the UK via the Human Rights Act 1998 (HRA).

scholarly journals A New Perspective on the International Criminal Court: Why the Right Should Embrace the ICC and How America Can Use It

2006 ◽  
Vol 68 (1) ◽  
Author(s):  
Ron Sievert
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Global Solutions ◽  
Romantic Attachment ◽  
The United States ◽  
Criminal Court ◽  
Left Wing ◽  
The Right

In examining the response of the U.S. to the development of international law and institutions, one observes that the proponents of an international approach are traditionally idealists and those representing the left wing of American politics. The opposition tends to be led by conservatives and nationalists. A review of public statements surrounding the creation of the ICC reveals that it is no exception. The Court was formed, in the words of Kofi Annan, to help “ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity . . . that those who violate those rights will be punished.” Organizations such as Human Rights First, Human Rights Watch, Amnesty International and Citizens for Global Solutions have heavily promoted the ICC, and many international lawyers have expressed a “romantic attachment” to the idea that the Court can efficiently judge and deter war criminals and those who abuse human rights. However, as early as 1998, members of America’s political right wing, such as Senators Jessee Helms and John Ashcroft, have made it clear that they viewed the ICC as a threat to U.S. national sovereignty and our preeminence in world affairs. Senator Ashcroft stated that the Court was a “continuing threat to the national interest,” while Senator Helms declared that “the United States will never—and I repeat, never—allow its national security decisions to be judged by any international criminal court.” AmbassadorJohn Bolton and the Cato Institute also took strong and early stands against the Court, with Ambassador Bolton declaring that the adoption of the ICC breaches “the American citadel . . . , advocates of binding international law will be well on the way toward ultimate elimination of the ‘nation state.’”

scholarly journals A Perspective on the Rome Statute’s Defence of Duress: The Role of Imminence

2018 ◽  
Vol 18 (1) ◽  
pp. 154-177 ◽  
Author(s):  
Clare Frances Moran
Keyword(s):  
Present State ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Definition Of ◽  
The Individual

The concept of duress encapsulated in Article 31(1)(d) of the Rome Statute of the International Criminal Court is a novel inclusion in a statute created to allow prosecution of serious crimes against the person in international criminal law. Despite being the topic of much debate, the present state of the discourse remains at a fairly superficial level: existing studies focus on a general analysis of the defence and its conditions. This has included the way in which the defences merges necessity and duress, with only a few authors examining the conditions of ‘proportionality’ and ‘necessity’. This study looks at an underexplored part of the defence: the condition of imminence. The purpose of this work is to explore the idea of imminence and to review whether a clearer definition of duress could have been used, replacing the idea of imminence with the concept of the individual selecting the lesser evil.

Prosecuting Misdemeanors

2021 ◽  
pp. 512-538
Author(s):  
Jenny Roberts
Keyword(s):  
United States ◽  
Plea Bargaining ◽  
The United States ◽  
Criminal Court ◽  
Discretionary Power ◽  
Criminal Cases ◽  
Prosecutorial Discretion ◽  
A Minor ◽  
Exercise Of Discretion

Although violent crime gets the most media, public, and legislative attention in the United States, misdemeanors make up approximately 75 percent of all criminal court cases, with more than 13 million new misdemeanor cases filed each year. This chapter discusses the role of prosecutors in the misdemeanor system. First, it addresses prosecutorial discretion and mass misdemeanor criminalization. Prosecutors, with near-unfettered discretionary power, are characterized as the most powerful actors in criminal cases. Yet often, prosecutors fail to properly exercise their discretion in low-level cases or are completely absent from the charging and sometimes even the adjudicatory processes. This is particularly problematic in misdemeanor cases, where informed prosecutorial decision-making is critical given the enormous volume of arrests and structural and institutional realities that weaken the role of other lower court actors. Proper exercise of discretion is also critical given well-documented racial disparities in the misdemeanor realm and the need to mitigate the myriad disproportionate effects of the ever-growing number of collateral consequences that flow from even a minor criminal record. Second, the chapter examines the misdemeanor prosecutor’s role at key stages: charging, bail, plea bargaining, sentencing, expungement, and post-conviction innocence claims. The chapter draws on examples of prosecutorial practice as well as theoretical and empirical research about prosecutorial discretion. Some recently elected so-called progressive prosecutors have already implemented significant promised changes. Although implementation of such reforms is nascent, time will tell whether a newly attentive electorate and a fresh prosecutorial approach will begin to roll back the extreme overuse and disproportionate impact of misdemeanor prosecutions in the United States.

The Powers and Role of the Prosecutor of the International Criminal Court in the Global Fight against Impunity

2004 ◽  
Vol 17 (1) ◽  
pp. 121-139 ◽  
Author(s):  
CHRISTOPHER KEITH HALL
Keyword(s):  
United States ◽  
United States Of America ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
The United States ◽  
Criminal Court ◽  
Short Term

On 16 June 2003, the first Prosecutor of the newly established International Criminal Court (Court), Luis Moreno Ocampo, was inaugurated. He faces enormous challenges ahead in the short term, including the need to increase the number of states ratifying and implementing the Rome Statute of the International Criminal Court and to demonstrate that criticisms of the Court and his powers made by the current administration of the United States of America in the course of its campaign to undermine the Court are unwarranted. This article describes the background to the establishment of a permanent independent Prosecutor within the Court, able to open, subject to extensive statutory and judicial constraints, investigations on the Prosecutor's own initiative. It then describes the statutory provisions establishing the post and defining the powers and duties of the Prosecutor. The article concludes with a discussion of the imaginative way in which he is setting up the Office of the Prosecutor and his innovative overall strategy as a leader in the global fight against impunity. As the Prosecutor demonstrates his independence, impartiality, fairness, and effectiveness in conducting trials, and his ability to inspire states to fulfil their obligations to complement his efforts by investigating and prosecuting these crimes themselves, the long-term prospects for the Court will become increasingly promising.

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