The Regional Difference on Human Rights and Criminal Justice: Judicial Self-Determination Lost through the Suppression from Western States? Universal Jurisdiction and Prohibition of the Death Penalty

2013 ◽  
Vol 1 (2) ◽  
pp. 188-205
Author(s):  
Mitsue Inazumi
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Death Penalty ◽  
Fair Trial ◽  
Universal Jurisdiction ◽  
International Criminal Law ◽  
Human Rights Protection ◽  
National Jurisdiction ◽  
Western Values ◽  
Criminal Matters

Abstract States in different regions have different visions and interpretations of international law on how to achieve the goal of protecting human rights, and these differences are causing some conflicts between European states and non-European states. This article examines such conflicts in the field of criminal justice – in the exercise of extradition, universal jurisdiction, and the death penalty. In the field of international criminal law, there are new norms emerging, for example, a rule (referred in this article as ‘the Rule’) that in a situation of concurrent jurisdictions, the court that conducts a fair trial by providing sufficient human rights protection should proceed with the prosecution. In accordance with the Rule, European states decide to exercise their own jurisdiction over cases committed abroad by foreigners, and refuse to extradite a suspect when he or she is likely to face a death penalty or impartial trial. However, the practices of European states in applying new norms in accordance with their understandings of a fair trial and prohibition of the death penalty invited opposition from those states whose national jurisdiction is denied or defeated. They are criticised as an infringement of state sovereignty, or as an unreasonable compulsion of Western values. Such opposition can be observed in the aggressive response from African states asserting that the universal jurisdiction exercised by European states over African officials for crimes committed in Africa contradicts the sovereign equality and independence of African states, thus evoking memories of colonialism. Also, although the influence of the prohibition of death penalty by European states is reflected on the Japan-EU Agreement on the Mutual Legal Assistance in Criminal Matters, Japan continues to retain the death penalty.

The International Criminal Court’s Libya Case(s)—The Need for Consistency with International Human Rights as to Due Process and the Death Penalty

2017 ◽  
Vol 17 (5) ◽  
pp. 803-843 ◽  
Author(s):  
Jennifer Trahan
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Due Process ◽  
Fair Trial ◽  
International Human Rights ◽  
Level Regime ◽  
National Jurisdiction ◽  
Least Core ◽  
International Human ◽  
High Level

The icc’s Libya cases raise interesting questions about the icc’s interaction with national jurisdictions that retain the death penalty. In the case against Abdullah Al-Senussi, the icc ruled he could be tried in Libya—his case was ‘inadmissible’—despite Libya retaining the death penalty and despite fair trial concerns. Yet, Rome Statute Article 21.3 directs the Court to be consistent with international human rights. Is it consistent with international human rights to indirectly authorize trial in a country that retains the death penalty, under conditions that cannot guarantee at least core due process protections? This article argues that it is not. Furthermore, this article argues that the Appeals Chamber in Senussi was insufficiently concerned with due process violation in the national jurisdiction—in a situation one could well-anticipate a former high-level regime official would not receive a fair trial post-regime change.

scholarly journals IMPACT OF COVID-19 PANDEMIC ON CRIMINAL JUSTICE SYSTEMS ACCROSS EUROPE

2021 ◽  
Author(s):  
Marina Matić Bošković ◽  
Svetlana Nenadić
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Law ◽  
Fair Trial ◽  
Access To Justice ◽  
State Of Emergency ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Ict Tools ◽  
Restrictive Measures

Last year the Europe and world were facing with COVID-19 outbreak that put at the risk lives of the people and capability of healthcare systems to provide their services. To prevent spread of the COVID-19 governments have imposed restrictive measures, while some of them declared state of emergency. The response to the pandemic influenced on the functioning of the criminal justice system and daily operation of courts, but also on the substantive criminal law since some states are applying criminal law to violation of restrictive measures or to criminalizing disinformation on COVID-19 outbreak. Outbreak of COVID-19 revealed new trends in criminal law like accelerated introduction of new crimes during pandemic, extremely flexible interpretation and rapid changes of criminal laws, which tend to be threat for legal stability and human rights protection. In addition, populist governments tend to use that new trend as a tool in suppression of political dissidents. COVID-19 pandemic has posed unprecedent challenges to the functioning of judiciaries. Courts and prosecution services were working with limited capacities to ensure social distancing. Some countries introduced ICT tools and fast-track procedures to organize hearings, which raised question of procedural rights and protection of rights of defendant. In the article authors assessed whether derogation of fair trial rights was in the line with standards of international human rights law and if introduction of state of emergency and restrictions were proportionate, time limited and needed and whether they changed understanding of the fundamental rights protection, especially right to a fair trial. Furthermore, authors explore whether COVID 19 changed perception of criminal law and legal certainty. Authors assessed how restrictions in the organization of judiciary work influenced on human rights protection and citizens trust in judiciary. Consequently, authors assesses whether some of introduces changes, especially use of ICT tools made permanent changes in operation of courts and understanding of access to justice. Finally, authors are assessing whether these changes tend to erode judiciaries or put into the risk access to justice in the EU members states and candidate countries or whether they jeopardized EU principle of mutual trust.

Human rights and the rule of law in judicial cooperation in criminal matters under the EU–UK Trade and Cooperation Agreement

2021 ◽  
pp. 203228442199593
Author(s):  
Wolfgang Schomburg ◽  
Anna Oehmichen ◽  
Katrin Kayß
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Cooperation Agreement ◽  
Judicial Cooperation ◽  
Human Rights Protection ◽  
Criminal Matters ◽  
The Eu

As human rights have increasingly gained importance at the European Union level, this article examines the remaining scope of human rights protection under the EU–UK Trade and Cooperation Agreement. While some international human rights instruments remain applicable, the Charter of Fundamental Rights of the European Union did not become part of the Trade and Cooperation Agreement (TCA). The consequences, especially the inapplicability of the internationalised ne bis in idem principle, are analysed. Furthermore, the conditionality of the TCA in general as well as the specific conditionality for judicial cooperation in criminal matters are discussed. In this context, the risk that cooperation may cease at any moment if any Member State or the UK leave the European Convention of Human Rights is highlighted. Lastly, the authors raise the problem of the lack of judicial review, as the Court of Justice of the European Union is no longer competent.

scholarly journals Freedom of thought in Europe: do advances in ‘brain-reading’ technology call for revision?

2020 ◽  
Author(s):  
Sjors Ligthart
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Freedom Of Expression ◽  
Legal Protection ◽  
Mental States ◽  
Human Rights Protection ◽  
Legal Context ◽  
Reading Technology ◽  
Freedom Of Thought ◽  
The Right

Abstract Since advances in brain-reading technology are changing traditional epistemic boundaries of the mind, yielding information from the brain that enables to draw inferences about particular mental states of individuals, the sustainability of the present framework of European human rights has been called into question. More specifically, it has been argued that in order to provide adequate human rights protection from non-consensual brain-reading, the right to freedom of thought should be revised, making it ‘fit for the future’ again. From the perspective of criminal justice, the present paper examines whether such a revision is necessary within the European legal context. It argues that under its current understanding, the right to freedom of thought would probably not cover the employment of most brain-reading applications in criminal justice. By contrast, the right to freedom of (non-)expression will provide legal protection in this regard and, at the same time, will also allow for certain exceptions. Hence, instead of revising the absolute right to freedom of thought, a legal approach tailored to non-consensual brain-reading could be developed under the already existing right not to convey information, ideas, and opinions as guaranteed under the freedom of (non-)expression. This might need to re-interpret the right to freedom of expression, rather than the right to freedom of thought.

scholarly journals Forced Labour in Brazil: International Criminal Law as the Ultima Ratio Modality of Human Rights Protection

2006 ◽  
Vol 19 (1) ◽  
pp. 151-193
Author(s):  
JAMES L. BISCHOFF
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Human Rights Protection ◽  
Criminal Sanctions ◽  
Rights Protection ◽  
Brazilian Government ◽  
Forced Labour ◽  
The Individual

Notwithstanding estimates that 12.3 million persons today are subjected to conditions analogous to slavery, public international lawyers have almost completely ignored slavery and related institutions in recent decades. This article explores the phenomenon of forced labour in the Amazon, where anywhere between 25,000 and 100,000 people are compelled through trickery and coercion to work in subhuman conditions. After outlining the legal regime governing slavery-related practices, the author examines why the Brazilian government has failed in its efforts to secure compliance within its own borders of its obligations under anti-slavery and human rights conventions. The author then argues that holding the Brazilian state responsible and assessing monetary damages is not in fact the most effective and fair way to secure the human rights of the victims of forced labour, and that international criminal sanctions for the individual perpetrators – including prosecution in the ICC for crimes against humanity – is a viable and preferable alternative.

The Identity Crisis of International Criminal Law

2008 ◽  
Vol 21 (4) ◽  
pp. 925-963 ◽  
Author(s):  
DARRYL ROBINSON
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Law ◽  
International Criminal ◽  
Identity Crisis ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Crisis Theory ◽  
Criminal Justice Systems

AbstractThe general narrative of international criminal law (ICL) declares that the system adheres in an exemplary manner to the fundamental principles of a liberal criminal justice system. Recent scholarship has increasingly questioned the adherence of various ICL doctrines to such principles. This article scrutinizes the discourse of ICL – the assumptions and forms of argumentation that are regarded as sound reasoning with appropriate liberal aims. This article argues that ICL, in drawing on national criminal law and international human rights law, absorbed contradictory assumptions and methods of reasoning. The article explores three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires. These modes include interpretive approaches, substantive and structural conflation, and ideological assumptions. The identity crisis theory helps to explain how a system that strives to serve as a model for liberal criminal justice systems has come to embrace illiberal doctrines that contradict the system's fundamental principles.

Part V Fairness and Expeditiousness of ICC Proceedings, 43 Testifying behind Bars—Detained ICC Witnesses and Human Rights Protection

2015 ◽  
Author(s):  
Wijk Joris van ◽  
Cupido Marjolein
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
The Netherlands ◽  
International Criminal ◽  
International Criminal Justice ◽  
Protective Measures ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Video Link ◽  
Alternative Solutions

This Chapter discusses the competing responsibilities of the ICC and the host State in relation to detained witnesses, with a particular focus on asylum applications. As shown by the example of Congolese witnesses, testimony before the Court can lead to conflicting human rights obligations. The Court is obliged to return detained witnesses to the requested state after they have testified. The ICC and the Netherlands need to respect internationally recognized human rights and protect persons from persecution. Attempts to reconcile these competing obligations have resulted in lengthy proceedings before the ICC and Dutch courts. This Chapter examines the problems that arose in this context, and argues that the threat of more asylum applications could have serious implications for the future functioning of international criminal justice. It explores three possible alternative solutions: anticipatory protective measures, video-link testimony, and rogatory commissions, all of which come with their own complications.

For a Human Rights Approach to Reforming the American Penal State

2019 ◽  
Vol 11 (2) ◽  
pp. 346-356
Author(s):  
Jonathan Simon
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Death Penalty ◽  
Mass Incarceration ◽  
The Political ◽  
Reform Agenda ◽  
Criminal Justice Reform ◽  
Institutional Frameworks ◽  
Penal State ◽  
Promising Avenue

Abstract Economic arguments seem to be the most promising avenue for driving reform of America’s bloated penal state in the aftermath of mass incarceration. Raising human rights concerns has limited appeal beyond cultural elites and, on occasion, courts, but today reform is coming from elected branches. Talk of human rights for criminals, or human dignity for prisoners, can risk backlash as happened around the death penalty in the 1970s. This essay challenges this conventional account in three ways. First, I argue that historical conditions make the potential for backlash limited. Second, that economic arguments will always be limited by the political and institutional frameworks that define the current meanings of criminal justice; only a human rights approach can drive a truly abolitionist reform agenda, one aimed at rethinking the institutions themselves, not just their budgets. Third, human rights campaigns can, if properly conceived, expand the constituency for deep criminal justice reform.

Liberalism in International Trade, Illiberalism in Domestic Economic Governance and Human Rights Protection in the Context of the WTO

2016 ◽  
Vol 15 (1) ◽  
pp. 238-248
Author(s):  
Vladislav Mulyun
Keyword(s):  
Human Rights ◽  
International Trade ◽  
Fair Trial ◽  
Economic Governance ◽  
Human Right ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Private Actors

This analysis focuses on one aspect of liberalism – the fundamental human right to fair trial – and discovers the possibility for private actors to protect domestically their (human) rights violated by infringements of WTO commitments. In the course of the discussion of relations between the issues of human rights protection and WTO States obligations several dimensions can be revealed.

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