Arzoo Osanloo
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9780691172040
- eISBN:
- 9780691201535
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691172040.003.0003
- Subject:
- Society and Culture, Middle Eastern Studies
This chapter examines the final version of the penal code, passed only in 2013. Since just after the Iranian Revolution, this is the first set of transformative revisions in substantive criminal law. ...
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This chapter examines the final version of the penal code, passed only in 2013. Since just after the Iranian Revolution, this is the first set of transformative revisions in substantive criminal law. The chapter outlines how the “coloring in” of the code compels judicial officials to consider alternative approaches to sanctioning. The courtroom serves as a space in which the state, through its judicial officials, corrals victims' instincts for revenge. As an affective space, the courtroom also conditions how judges reason and inflects subjectivities of all the parties in the courtroom. By serving in the role of arbiter in the ultimate settling of accounts, the state's aim is to contain extrajudicial violence. It does this, in part, by attending to the victim's need for justice, or rather, through providing an outlet for a “healthy” emotional response to an injury—the desire for retaliation. Judges attempt to make victims whole and reestablish their sense of lost dignity. However, members of the judiciary are aware of the risk to the foundational impartiality of the system and the stature of the judges should they press victims' families too hard, particularly during the merits phase of the case.Less
This chapter examines the final version of the penal code, passed only in 2013. Since just after the Iranian Revolution, this is the first set of transformative revisions in substantive criminal law. The chapter outlines how the “coloring in” of the code compels judicial officials to consider alternative approaches to sanctioning. The courtroom serves as a space in which the state, through its judicial officials, corrals victims' instincts for revenge. As an affective space, the courtroom also conditions how judges reason and inflects subjectivities of all the parties in the courtroom. By serving in the role of arbiter in the ultimate settling of accounts, the state's aim is to contain extrajudicial violence. It does this, in part, by attending to the victim's need for justice, or rather, through providing an outlet for a “healthy” emotional response to an injury—the desire for retaliation. Judges attempt to make victims whole and reestablish their sense of lost dignity. However, members of the judiciary are aware of the risk to the foundational impartiality of the system and the stature of the judges should they press victims' families too hard, particularly during the merits phase of the case.
Arzoo Osanloo
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9780691172040
- eISBN:
- 9780691201535
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691172040.003.0004
- Subject:
- Society and Culture, Middle Eastern Studies
This chapter studies the operations of the Iranian criminal law and analyzes how the procedural administration of the law animates the shariʻa. Iranian criminal laws provide many avenues for victims ...
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This chapter studies the operations of the Iranian criminal law and analyzes how the procedural administration of the law animates the shariʻa. Iranian criminal laws provide many avenues for victims to forgo retributive sanctioning. But preserving the right of retribution serves several purposes: maintaining the sovereign's monopoly on legitimate violence, giving victims a sense of power, and halting the cycle of violence. The way Iran achieves this comprises an interesting balancing act between maintaining the monopoly over legitimate violence and granting individual victims the right of retribution, which its leaders believe, through their interpretation of the shariʻa, cannot be appropriated by the sovereign. Since the law categorizes intentional murder as qisas and leaves judges with no discretion in sentencing, the judges may use their considerable influence to pressure the family to forgo retribution. The chapter then considers the role of judges and examines how the laws (substantive and procedural) shape their reasoning and discretion in both sentencing and encouraging forbearance.Less
This chapter studies the operations of the Iranian criminal law and analyzes how the procedural administration of the law animates the shariʻa. Iranian criminal laws provide many avenues for victims to forgo retributive sanctioning. But preserving the right of retribution serves several purposes: maintaining the sovereign's monopoly on legitimate violence, giving victims a sense of power, and halting the cycle of violence. The way Iran achieves this comprises an interesting balancing act between maintaining the monopoly over legitimate violence and granting individual victims the right of retribution, which its leaders believe, through their interpretation of the shariʻa, cannot be appropriated by the sovereign. Since the law categorizes intentional murder as qisas and leaves judges with no discretion in sentencing, the judges may use their considerable influence to pressure the family to forgo retribution. The chapter then considers the role of judges and examines how the laws (substantive and procedural) shape their reasoning and discretion in both sentencing and encouraging forbearance.
Arzoo Osanloo
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9780691172040
- eISBN:
- 9780691201535
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691172040.003.0001
- Subject:
- Society and Culture, Middle Eastern Studies
This introductory chapter provides an overview of the work of forbearance in Iran's criminal justice system. In Iran, the codification of forbearance emerges from a hybrid crimtort justice system, ...
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This introductory chapter provides an overview of the work of forbearance in Iran's criminal justice system. In Iran, the codification of forbearance emerges from a hybrid crimtort justice system, complete with its own conditions of possibility. Iran's criminal laws are clear in defining certain categories of punishment as a consequence of specific injuries. The laws also stipulate the conditions for forbearance. However, the penal code is silent with respect to how parties should arrive at reconciliation. That is, the state encourages settlement, but for all intents and purposes, leaves to the parties themselves to determine what the substance and process of that settlement might be. The conjuncture of a clear legal and moral duty to seek reconciliation alongside the absence of specific guidelines on how to do so has a generative quality and produces an arena outside of the state's judicial apparatus, yet still of it, for bringing about a settlement short of retribution or for forgiveness work. Thus, the manifest moral and legal compulsion to forgive without meaningful guidelines on how to do so has produced an informal cottage industry of advocacy, one that is populated by diverse actors and which produces numerous avenues for negotiating forbearance by forging reconciliation and settlement.Less
This introductory chapter provides an overview of the work of forbearance in Iran's criminal justice system. In Iran, the codification of forbearance emerges from a hybrid crimtort justice system, complete with its own conditions of possibility. Iran's criminal laws are clear in defining certain categories of punishment as a consequence of specific injuries. The laws also stipulate the conditions for forbearance. However, the penal code is silent with respect to how parties should arrive at reconciliation. That is, the state encourages settlement, but for all intents and purposes, leaves to the parties themselves to determine what the substance and process of that settlement might be. The conjuncture of a clear legal and moral duty to seek reconciliation alongside the absence of specific guidelines on how to do so has a generative quality and produces an arena outside of the state's judicial apparatus, yet still of it, for bringing about a settlement short of retribution or for forgiveness work. Thus, the manifest moral and legal compulsion to forgive without meaningful guidelines on how to do so has produced an informal cottage industry of advocacy, one that is populated by diverse actors and which produces numerous avenues for negotiating forbearance by forging reconciliation and settlement.
Gregory Ablavsky
- Published in print:
- 2021
- Published Online:
- February 2021
- ISBN:
- 9780190905699
- eISBN:
- 9780190905729
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190905699.003.0005
- Subject:
- Law, Constitutional and Administrative Law
In the territories, the federal government confronted what it regarded as endemic violence between Natives and U.S. citizens based on long-standing racial animosity. At the urging of Secretary of War ...
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In the territories, the federal government confronted what it regarded as endemic violence between Natives and U.S. citizens based on long-standing racial animosity. At the urging of Secretary of War Henry Knox, the federal government sought to establish itself as a neutral arbiter between both sides, a vision of what the chapter calls federal sovereignty expressed in the Trade and Intercourse Acts. These laws sought to distinguish and separate “Indian country” from “ordinary jurisdiction,” and they established a federal criminal regime to punish both Natives and U.S. citizens who committed crimes against the other, in an effort to replace practices of retaliation. Yet this effort to establish federal sovereignty largely failed. In part, federal officials misunderstood territorial realities, where Natives and whites were entangled by economic and social relationships that could not be easily divided. But they also misunderstood the jurisdictional and institutional limitations within federal law. In particular, their approach converted the question of justice for Natives into a debate over the scope of federal authority in the territories, in which territorial citizens strongly resisted what they regarded as heavy-handed federal control.Less
In the territories, the federal government confronted what it regarded as endemic violence between Natives and U.S. citizens based on long-standing racial animosity. At the urging of Secretary of War Henry Knox, the federal government sought to establish itself as a neutral arbiter between both sides, a vision of what the chapter calls federal sovereignty expressed in the Trade and Intercourse Acts. These laws sought to distinguish and separate “Indian country” from “ordinary jurisdiction,” and they established a federal criminal regime to punish both Natives and U.S. citizens who committed crimes against the other, in an effort to replace practices of retaliation. Yet this effort to establish federal sovereignty largely failed. In part, federal officials misunderstood territorial realities, where Natives and whites were entangled by economic and social relationships that could not be easily divided. But they also misunderstood the jurisdictional and institutional limitations within federal law. In particular, their approach converted the question of justice for Natives into a debate over the scope of federal authority in the territories, in which territorial citizens strongly resisted what they regarded as heavy-handed federal control.
Ernst-Wolfgang Böckenförde, Mirjam Künkler, and Tine Stein
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9780198818632
- eISBN:
- 9780191859588
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198818632.003.0018
- Subject:
- Law, Constitutional and Administrative Law
In this 1971 article, Böckenförde investigates German abortion law in the light of contemporaneous public debates about the reform of the at this time almost 100-year-old Section 218 of the German ...
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In this 1971 article, Böckenförde investigates German abortion law in the light of contemporaneous public debates about the reform of the at this time almost 100-year-old Section 218 of the German Criminal Code banning abortion. In his view, the constitutional recognition of a right to life must also include unborn human life, since there is otherwise no non-arbitrary criterion for determining the period at which human life begins to be worthy of legal protection. As a consequence, Böckenförde sees all unborn life as protected by Article 2 Basic Law, an interpretation that would render the legalization of abortion unconstitutional. At the same time, Böckenförde also acknowledges that a great number of abortions are undertaken clandestinely despite the ban, with often disastrous social and medical consequences. Besides, the evident lack of social respect for legal norms has a negative effect on the legal system as a whole. Böckenförde concludes that there can be no good solution to the issue of abortion, only a least unsatisfactory one. While he rejects the term-solution, he proposes to combine the prohibition of abortion with an exemption for punishment for both doctor and mother if certain indications apply (rape, medical risks to the life of mother or child, and situations of ‘extreme helplessness’ such as severe existential insecurity).Less
In this 1971 article, Böckenförde investigates German abortion law in the light of contemporaneous public debates about the reform of the at this time almost 100-year-old Section 218 of the German Criminal Code banning abortion. In his view, the constitutional recognition of a right to life must also include unborn human life, since there is otherwise no non-arbitrary criterion for determining the period at which human life begins to be worthy of legal protection. As a consequence, Böckenförde sees all unborn life as protected by Article 2 Basic Law, an interpretation that would render the legalization of abortion unconstitutional. At the same time, Böckenförde also acknowledges that a great number of abortions are undertaken clandestinely despite the ban, with often disastrous social and medical consequences. Besides, the evident lack of social respect for legal norms has a negative effect on the legal system as a whole. Böckenförde concludes that there can be no good solution to the issue of abortion, only a least unsatisfactory one. While he rejects the term-solution, he proposes to combine the prohibition of abortion with an exemption for punishment for both doctor and mother if certain indications apply (rape, medical risks to the life of mother or child, and situations of ‘extreme helplessness’ such as severe existential insecurity).
Mikaela Heikkilä and Elina Pirjatanniemi
- Published in print:
- 2020
- Published Online:
- February 2021
- ISBN:
- 9780198814191
- eISBN:
- 9780191904240
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198814191.003.0021
- Subject:
- Law, EU Law
Numerous terrorist attacks both within and outside the European Union (EU or the Union) have prompted the Union to increasingly act in the field of counter-terrorism. Since the adoption of the ...
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Numerous terrorist attacks both within and outside the European Union (EU or the Union) have prompted the Union to increasingly act in the field of counter-terrorism. Since the adoption of the Union’s counter-terrorism strategy in 2005, the Union’s action in relation to counter-terrorism has been based on four connected pillars: to prevent, to protect, to pursue, and to respond. A general trend in the Union’s counter-terrorism action has been a move towards a pre-emptive approach, where the focus lies on countering terrorism threats in advance. The aim of this chapter is to discuss whether the adoption of these pre-emptive measures strengthen the security landscape of the Union. The chapter thus takes a closer look at how the Union strives to detect persons planning or preparing terrorist offences, and to hinder actual attacks from taking place. In particular, attention is paid to the EU’s police and judicial cooperation, general surveillance, the criminalisation of preparatory terrorist offences, and cooperation with third states and international organisations. A central objective is also to assess how the various counter-terrorism measures concur with international human rights law, including the Union’s legal framework on data protection.Less
Numerous terrorist attacks both within and outside the European Union (EU or the Union) have prompted the Union to increasingly act in the field of counter-terrorism. Since the adoption of the Union’s counter-terrorism strategy in 2005, the Union’s action in relation to counter-terrorism has been based on four connected pillars: to prevent, to protect, to pursue, and to respond. A general trend in the Union’s counter-terrorism action has been a move towards a pre-emptive approach, where the focus lies on countering terrorism threats in advance. The aim of this chapter is to discuss whether the adoption of these pre-emptive measures strengthen the security landscape of the Union. The chapter thus takes a closer look at how the Union strives to detect persons planning or preparing terrorist offences, and to hinder actual attacks from taking place. In particular, attention is paid to the EU’s police and judicial cooperation, general surveillance, the criminalisation of preparatory terrorist offences, and cooperation with third states and international organisations. A central objective is also to assess how the various counter-terrorism measures concur with international human rights law, including the Union’s legal framework on data protection.
David Petruccelli
- Published in print:
- 2020
- Published Online:
- February 2021
- ISBN:
- 9780198854685
- eISBN:
- 9780191888885
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198854685.003.0011
- Subject:
- Law, Public International Law
This chapter examines initiatives to organize the global fight against international crime, which emerged in Central and Eastern Europe in the 1920s and which by the 1930s posed an alternative to the ...
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This chapter examines initiatives to organize the global fight against international crime, which emerged in Central and Eastern Europe in the 1920s and which by the 1930s posed an alternative to the imperial and liberal internationalist programmes pursued by many Western Europeans and Americans. Police, especially from Austria, sought to internationalize policing through the International Criminal Police Commission (today Interpol). At the same time, jurists from the region sought to unify norms for fighting international crimes as a first step towards a broader project of founding a body of international criminal law. Both programmes responded to the particular social and demographic problems engulfing the region after the collapse of Europe’s great land empires. By the 1930s, these post-imperial and often illiberal programmes increasingly set the agenda at the League of Nations on a range of international offences, notably the drug trade and sex trafficking.Less
This chapter examines initiatives to organize the global fight against international crime, which emerged in Central and Eastern Europe in the 1920s and which by the 1930s posed an alternative to the imperial and liberal internationalist programmes pursued by many Western Europeans and Americans. Police, especially from Austria, sought to internationalize policing through the International Criminal Police Commission (today Interpol). At the same time, jurists from the region sought to unify norms for fighting international crimes as a first step towards a broader project of founding a body of international criminal law. Both programmes responded to the particular social and demographic problems engulfing the region after the collapse of Europe’s great land empires. By the 1930s, these post-imperial and often illiberal programmes increasingly set the agenda at the League of Nations on a range of international offences, notably the drug trade and sex trafficking.
Janet M Nosworthy
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9780198870753
- eISBN:
- 9780191913365
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198870753.003.0027
- Subject:
- Law, Public International Law, Comparative Law
Starting from the author’s own experience, this chapter discusses identity and legitimacy with reference to international judges from minority groups, asking whether the composition of international ...
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Starting from the author’s own experience, this chapter discusses identity and legitimacy with reference to international judges from minority groups, asking whether the composition of international benches adequately reflects the essential components of diversity. Could international courts be said to engender feelings of inclusion in specific minority individuals, groups, or States? Does the make-up of the international bench ultimately reinforce or undermine the legitimacy of the courts themselves? The chapter views identity issues specifically through the lens of gender, ethnicity (including race), geography, and judicial culture as tools to validate and strengthen the judicial process, as well as a way of verifying the legitimacy of international courts as institutions capable of providing world class justice with optimal global reach. Diversity and meritocracy are not mutually exclusive: more diverse international benches need not result in any dilution of the quality of the judgments rendered. Concerted and intensified efforts have to be made to ensure that more members of minority groups are appointed as international judges, including steps to ensure that they are not marginalized or excluded from the selection process.Less
Starting from the author’s own experience, this chapter discusses identity and legitimacy with reference to international judges from minority groups, asking whether the composition of international benches adequately reflects the essential components of diversity. Could international courts be said to engender feelings of inclusion in specific minority individuals, groups, or States? Does the make-up of the international bench ultimately reinforce or undermine the legitimacy of the courts themselves? The chapter views identity issues specifically through the lens of gender, ethnicity (including race), geography, and judicial culture as tools to validate and strengthen the judicial process, as well as a way of verifying the legitimacy of international courts as institutions capable of providing world class justice with optimal global reach. Diversity and meritocracy are not mutually exclusive: more diverse international benches need not result in any dilution of the quality of the judgments rendered. Concerted and intensified efforts have to be made to ensure that more members of minority groups are appointed as international judges, including steps to ensure that they are not marginalized or excluded from the selection process.
Peter H. Reid
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9780813179988
- eISBN:
- 9780813179995
- Item type:
- chapter
- Publisher:
- University Press of Kentucky
- DOI:
- 10.5810/kentucky/9780813179988.003.0016
- Subject:
- History, World Modern History
“If a Person is convicted of murder, the death penalty is obligatory.” Although Tanzanian criminal law is derived from the British colonial legal system, by the time of trial changes had been made. ...
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“If a Person is convicted of murder, the death penalty is obligatory.” Although Tanzanian criminal law is derived from the British colonial legal system, by the time of trial changes had been made. The Indian Codes—that is, Penal Code, Evidence Code, and certain civil codes—had been developed starting in the mid-1820s by legal scholars in England. These scholar took the unwritten common law of England and produced coherent, consistent codes to be used in the British colony of India. The Indian Codes were adopted in East Africa, including Tanganyika, in the early 1920s. This chapter describes the criminal law applicable to the Bill Kinsey case, including the interplay of customary law with the colonial-based evidence, criminal, and criminal procedure codes.Less
“If a Person is convicted of murder, the death penalty is obligatory.” Although Tanzanian criminal law is derived from the British colonial legal system, by the time of trial changes had been made. The Indian Codes—that is, Penal Code, Evidence Code, and certain civil codes—had been developed starting in the mid-1820s by legal scholars in England. These scholar took the unwritten common law of England and produced coherent, consistent codes to be used in the British colony of India. The Indian Codes were adopted in East Africa, including Tanganyika, in the early 1920s. This chapter describes the criminal law applicable to the Bill Kinsey case, including the interplay of customary law with the colonial-based evidence, criminal, and criminal procedure codes.
Teresa Doherty
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9780198870753
- eISBN:
- 9780191913365
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198870753.003.0017
- Subject:
- Law, Public International Law, Comparative Law
Few female judges were appointed to the benches of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and Special Court for ...
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Few female judges were appointed to the benches of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and Special Court for Sierra Leone. Nevertheless, those appointments resulted in an active contribution of these women judges to the development of international criminal law, as is shown in the jurisprudence. Judges give judgement on the evidence, facts, and law before them, but women judges have been noted for advancing the existing law through broad interpretation. With the appointment of women investigators and prosecutors, more prosecutions for crimes of sexual violence followed. This is important as it progressively developed a field of law that had until then not, or only in a more limited manner, been adjudicated upon before international courts.Less
Few female judges were appointed to the benches of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and Special Court for Sierra Leone. Nevertheless, those appointments resulted in an active contribution of these women judges to the development of international criminal law, as is shown in the jurisprudence. Judges give judgement on the evidence, facts, and law before them, but women judges have been noted for advancing the existing law through broad interpretation. With the appointment of women investigators and prosecutors, more prosecutions for crimes of sexual violence followed. This is important as it progressively developed a field of law that had until then not, or only in a more limited manner, been adjudicated upon before international courts.
Beth Van Schaack
- Published in print:
- 2020
- Published Online:
- December 2020
- ISBN:
- 9780190055967
- eISBN:
- 9780190055974
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190055967.001.0001
- Subject:
- Law, Public International Law
This book situates the war in Syria within the actual and imagined system of international criminal justice. It explores the legal impediments and diplomatic challenges that have led to the fatal ...
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This book situates the war in Syria within the actual and imagined system of international criminal justice. It explores the legal impediments and diplomatic challenges that have led to the fatal trinity that is Syria: the massive commission of international crimes that are subject to detailed investigations and documentation but whose perpetrators have enjoyed virtually complete impunity. The book tracks a number of accountability solutions to this tragic state of affairs that are being explored within multilateral gatherings, by states, and by civil society actors, including innovations of institutional design; the reactivation of a range of domestic jurisdictional principles (including universal jurisdiction in Europe); the emergence of creative investigative and documentation techniques, technologies, and organizations; and the rejection of state consent as a precondition for the exercise of jurisdiction. Engaging both law and policy around international justice, the text offers a set of justice blueprints, within and without the International Criminal Court. It also considers the utility, propriety, and practicality of establishing an ad hoc tribunal and pursuing a transitional justice program without a genuine political transition. All told, the book attempts to capture the creative energy radiating from members of the international community intent on advancing the accountability norm in Syria even in the face of geopolitical blockages within the U.N. Security Council. In so doing, it presents the range of juridical measures—both criminal and civil—that are available to the international community to respond to the crisis, if only the political will existed.Less
This book situates the war in Syria within the actual and imagined system of international criminal justice. It explores the legal impediments and diplomatic challenges that have led to the fatal trinity that is Syria: the massive commission of international crimes that are subject to detailed investigations and documentation but whose perpetrators have enjoyed virtually complete impunity. The book tracks a number of accountability solutions to this tragic state of affairs that are being explored within multilateral gatherings, by states, and by civil society actors, including innovations of institutional design; the reactivation of a range of domestic jurisdictional principles (including universal jurisdiction in Europe); the emergence of creative investigative and documentation techniques, technologies, and organizations; and the rejection of state consent as a precondition for the exercise of jurisdiction. Engaging both law and policy around international justice, the text offers a set of justice blueprints, within and without the International Criminal Court. It also considers the utility, propriety, and practicality of establishing an ad hoc tribunal and pursuing a transitional justice program without a genuine political transition. All told, the book attempts to capture the creative energy radiating from members of the international community intent on advancing the accountability norm in Syria even in the face of geopolitical blockages within the U.N. Security Council. In so doing, it presents the range of juridical measures—both criminal and civil—that are available to the international community to respond to the crisis, if only the political will existed.
Stefan Oeter
- Published in print:
- 2020
- Published Online:
- November 2020
- ISBN:
- 9780197537374
- eISBN:
- 9780197537404
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780197537374.003.0012
- Subject:
- Law, Public International Law
This chapter addresses the challenging legal and operational issues raised by the proportionality requirement to assess the legality of collateral damage. Specifically, the chapter engages closely ...
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This chapter addresses the challenging legal and operational issues raised by the proportionality requirement to assess the legality of collateral damage. Specifically, the chapter engages closely with the relevant text of Articles 51(5)(b) and 57(2)(b) of the First Additional Protocol to the Geneva Conventions. The chapter first asks what makes an attack that unavoidably includes incidental loss of civilian lives or civilian property an “indiscriminate attack” under Article 51(5)(b). In more concrete terms, it asks how the formula for collateral damage—“excessive in relation to the concrete and direct military advantage anticipated”—may be operationalized. The chapter then moves to an analysis of the rule of precautions in Article 57(2)(b), with special emphasis on understanding how the military operator should navigate this rule in light of battlefield realities. The chapter then poses how these rules may be best understood under the regime of international criminal law.Less
This chapter addresses the challenging legal and operational issues raised by the proportionality requirement to assess the legality of collateral damage. Specifically, the chapter engages closely with the relevant text of Articles 51(5)(b) and 57(2)(b) of the First Additional Protocol to the Geneva Conventions. The chapter first asks what makes an attack that unavoidably includes incidental loss of civilian lives or civilian property an “indiscriminate attack” under Article 51(5)(b). In more concrete terms, it asks how the formula for collateral damage—“excessive in relation to the concrete and direct military advantage anticipated”—may be operationalized. The chapter then moves to an analysis of the rule of precautions in Article 57(2)(b), with special emphasis on understanding how the military operator should navigate this rule in light of battlefield realities. The chapter then poses how these rules may be best understood under the regime of international criminal law.
Beth Van Schaack
Michael N. Schmitt, Shane R. Reeves, Winston S. Williams, and Sasha Radin (eds)
- Published in print:
- 2020
- Published Online:
- December 2020
- ISBN:
- 9780190055967
- eISBN:
- 9780190055974
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190055967.003.0001
- Subject:
- Law, Public International Law
This chapter introduces the conflict in Syria, the various impediments to justice, and the book’s broad themes, including the observation that the paralysis in the U.N. Security Council has spurred a ...
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This chapter introduces the conflict in Syria, the various impediments to justice, and the book’s broad themes, including the observation that the paralysis in the U.N. Security Council has spurred a form of forced creativity that has generated a number of novel proposals for how to bring justice to Syria. In addition to providing an overview of the text, this introduction also presents the matrix of accountability that will structure the core of the book. This matrix is organized along two axes: the first (x) is premised on the distinction between criminal and civil liability; the second (y) compares the types of justice institutions and legal authorities that are available to bring individual perpetrators and even Syria as a sovereign state to justice. The remainder of the book explores different routes to accountability through this matrix and the various advantages presented by, and the challenges encumbering, the various justice options when it comes to the situation in Syria.Less
This chapter introduces the conflict in Syria, the various impediments to justice, and the book’s broad themes, including the observation that the paralysis in the U.N. Security Council has spurred a form of forced creativity that has generated a number of novel proposals for how to bring justice to Syria. In addition to providing an overview of the text, this introduction also presents the matrix of accountability that will structure the core of the book. This matrix is organized along two axes: the first (x) is premised on the distinction between criminal and civil liability; the second (y) compares the types of justice institutions and legal authorities that are available to bring individual perpetrators and even Syria as a sovereign state to justice. The remainder of the book explores different routes to accountability through this matrix and the various advantages presented by, and the challenges encumbering, the various justice options when it comes to the situation in Syria.
Jessica W. Berg, Paul S. Appelbaum, Charles W. Lidz, and Lisa S. Parker
- Published in print:
- 2001
- Published Online:
- November 2020
- ISBN:
- 9780195126778
- eISBN:
- 9780197561386
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780195126778.003.0009
- Subject:
- Clinical Medicine and Allied Health, Medical Ethics
The translation of ethical principles into concrete requirements for physicians’ behavior has been largely a function of the courts (usually state, ...
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The translation of ethical principles into concrete requirements for physicians’ behavior has been largely a function of the courts (usually state, occasionally federal) as they consider patients’ allegations that their physicians improperly obtained their consent to treatment. To a lesser extent, state legislatures have been involved in making law in this area. The combined efforts of courts and legislatures have resulted in the creation of two legal requirements: the historical requirement that physicians obtain patients’ consent before proceeding with treatment, and the more recent requirement that physicians disclose such information to patients as will enable them to participate knowledgeably in making decisions about treatment. (Chapters 4 and 5 describe the exceptional circumstances in which some or all of the basic legal requirements do not apply.) Despite some uncertainty about the origins of legal actions for lack of consent to medical treatment, in theory, non-consensual medical treatment has always been remediable at common law (i.e., judge-made as opposed to statutory law). The law’s concern for the bodily integrity of the individual can be traced to the writ of trespass for assault and battery and to the criminal law’s proscription of homicide, battery, and mayhem (1). A similar, though less intense, concern for psychic integrity has existed for almost as long and has received increasing support in this century as evidenced by the cases recognizing causes of action in tort law for intentional and, more recently, negligent infliction of emotional distress (2, §§12, 54). Similarly, the development of the constitutional and tort law of privacy reflects the continued vitality of society’s concern for the individual’s right to be let alone, both by agents of the state and by private parties (2, §117; 3). Early medical practice codes did not speak of consent—it was more likely that a physician would conceal his actions from the patient than seek his or her consent to treatment. However, patient consent is not completely a modern legal creation. Historically, the notion that physicians must inform patients about what will be done to them has its origins in eighteenth-century English law (4).
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The translation of ethical principles into concrete requirements for physicians’ behavior has been largely a function of the courts (usually state, occasionally federal) as they consider patients’ allegations that their physicians improperly obtained their consent to treatment. To a lesser extent, state legislatures have been involved in making law in this area. The combined efforts of courts and legislatures have resulted in the creation of two legal requirements: the historical requirement that physicians obtain patients’ consent before proceeding with treatment, and the more recent requirement that physicians disclose such information to patients as will enable them to participate knowledgeably in making decisions about treatment. (Chapters 4 and 5 describe the exceptional circumstances in which some or all of the basic legal requirements do not apply.) Despite some uncertainty about the origins of legal actions for lack of consent to medical treatment, in theory, non-consensual medical treatment has always been remediable at common law (i.e., judge-made as opposed to statutory law). The law’s concern for the bodily integrity of the individual can be traced to the writ of trespass for assault and battery and to the criminal law’s proscription of homicide, battery, and mayhem (1). A similar, though less intense, concern for psychic integrity has existed for almost as long and has received increasing support in this century as evidenced by the cases recognizing causes of action in tort law for intentional and, more recently, negligent infliction of emotional distress (2, §§12, 54). Similarly, the development of the constitutional and tort law of privacy reflects the continued vitality of society’s concern for the individual’s right to be let alone, both by agents of the state and by private parties (2, §117; 3). Early medical practice codes did not speak of consent—it was more likely that a physician would conceal his actions from the patient than seek his or her consent to treatment. However, patient consent is not completely a modern legal creation. Historically, the notion that physicians must inform patients about what will be done to them has its origins in eighteenth-century English law (4).
Leigh Goodmark
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9781479830428
- eISBN:
- 9781479829095
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9781479830428.003.0010
- Subject:
- Sociology, Law, Crime and Deviance
Historically, intimate partner violence (IPV) laws were limited, gendered, and cisnormative. While legal recourse for transgender people has evolved over recent decades, there is room for the legal ...
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Historically, intimate partner violence (IPV) laws were limited, gendered, and cisnormative. While legal recourse for transgender people has evolved over recent decades, there is room for the legal system to improve its response to IPV against transgender people. Legal system actors, including police, judges, lawyers, and court staff, often harbor conscious and unconscious biases against transgender people. The law also can limit the relief available to transgender people. To address these problems, the substantive law—the statutes and cases that govern legal practice—should include various relationship structures and utilize gender-neutral language. Equally important, police, judges, lawyers, and court staff must be attentive to the unique issues raised when transgender people seek protection (e.g., civil protection orders), including proper name usage, properly gendering litigants, and understanding how using misgendered documentation can further complicate cases of IPV. This chapter discusses these issues and suggests how the courts and legal system can better respond to transgender survivors of IPV.Less
Historically, intimate partner violence (IPV) laws were limited, gendered, and cisnormative. While legal recourse for transgender people has evolved over recent decades, there is room for the legal system to improve its response to IPV against transgender people. Legal system actors, including police, judges, lawyers, and court staff, often harbor conscious and unconscious biases against transgender people. The law also can limit the relief available to transgender people. To address these problems, the substantive law—the statutes and cases that govern legal practice—should include various relationship structures and utilize gender-neutral language. Equally important, police, judges, lawyers, and court staff must be attentive to the unique issues raised when transgender people seek protection (e.g., civil protection orders), including proper name usage, properly gendering litigants, and understanding how using misgendered documentation can further complicate cases of IPV. This chapter discusses these issues and suggests how the courts and legal system can better respond to transgender survivors of IPV.
Beth Van Schaack
Michael N. Schmitt, Shane R. Reeves, Winston S. Williams, and Sasha Radin (eds)
- Published in print:
- 2020
- Published Online:
- December 2020
- ISBN:
- 9780190055967
- eISBN:
- 9780190055974
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190055967.003.0011
- Subject:
- Law, Public International Law
The book’s conclusion offers a number of overarching observations about the prospects of justice for Syria and highlights a few bright spots on an otherwise rather bleak landscape. These grounds for ...
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The book’s conclusion offers a number of overarching observations about the prospects of justice for Syria and highlights a few bright spots on an otherwise rather bleak landscape. These grounds for cautious optimism include the fact that we now have a robust and comprehensive international jus puniendi of international crimes, even if we lack sufficient institutions in which to apply it. Although the repeat failures of the U.N. Security Council have eroded our faith in the post–World War II system of collective security, other multilateral, regional, and domestic institutions have—to a certain extent—stepped in to fill the breach. This multilateral paralysis has thus spurred creative thinking about new jurisdictional theories, generated multiple and varied institutional proposals, and re-enlivened the principle of universal jurisdiction after a period of decline. The enhanced sophistication of international crimes documentation ensures that future transitional justice efforts will have the evidence needed to hold those most responsible for abuses to account. While the many accountability proposals have yet to bear fruit, it is now clear that they suffer from no legal impediments; all that is needed is the political will and resources to bring them to fruition. All of these developments are the work of an epistemic community of justice entrepreneurs—representing multilateral institutions, sovereign nations, and global civil society—who refuse to take “no” for an answer.Less
The book’s conclusion offers a number of overarching observations about the prospects of justice for Syria and highlights a few bright spots on an otherwise rather bleak landscape. These grounds for cautious optimism include the fact that we now have a robust and comprehensive international jus puniendi of international crimes, even if we lack sufficient institutions in which to apply it. Although the repeat failures of the U.N. Security Council have eroded our faith in the post–World War II system of collective security, other multilateral, regional, and domestic institutions have—to a certain extent—stepped in to fill the breach. This multilateral paralysis has thus spurred creative thinking about new jurisdictional theories, generated multiple and varied institutional proposals, and re-enlivened the principle of universal jurisdiction after a period of decline. The enhanced sophistication of international crimes documentation ensures that future transitional justice efforts will have the evidence needed to hold those most responsible for abuses to account. While the many accountability proposals have yet to bear fruit, it is now clear that they suffer from no legal impediments; all that is needed is the political will and resources to bring them to fruition. All of these developments are the work of an epistemic community of justice entrepreneurs—representing multilateral institutions, sovereign nations, and global civil society—who refuse to take “no” for an answer.
Arzoo Osanloo
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9780691172040
- eISBN:
- 9780691201535
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691172040.003.0006
- Subject:
- Society and Culture, Middle Eastern Studies
This chapter evaluates the heavy burden of the decision that is placed on victims' families. While such decisions might appear as sudden moments, they emerge, rather, from a charged atmosphere ...
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This chapter evaluates the heavy burden of the decision that is placed on victims' families. While such decisions might appear as sudden moments, they emerge, rather, from a charged atmosphere saturated with the intensities, sensations, and emotions born of the burden of that decision. Few regulations guide how forbearance happens. However, this is no oversight on the part of the state. This is a purposeful ambiguity in a system that grows out of a need and desire not only to involve victims' families, but also to make the process emotional and sentimental because it is an important component of the faith, of healing, and of reconstituting a virtuous self-identity—both for victim and offender. Interestingly, the gendered affectations the system produces place the sincere forbearance of the victim's mother in concordance with the authentic grief coming from that of the perpetrator. The ambiguity in the law, moreover, permits tailoring the world of possibilities to the various situations that individuals encounter.Less
This chapter evaluates the heavy burden of the decision that is placed on victims' families. While such decisions might appear as sudden moments, they emerge, rather, from a charged atmosphere saturated with the intensities, sensations, and emotions born of the burden of that decision. Few regulations guide how forbearance happens. However, this is no oversight on the part of the state. This is a purposeful ambiguity in a system that grows out of a need and desire not only to involve victims' families, but also to make the process emotional and sentimental because it is an important component of the faith, of healing, and of reconstituting a virtuous self-identity—both for victim and offender. Interestingly, the gendered affectations the system produces place the sincere forbearance of the victim's mother in concordance with the authentic grief coming from that of the perpetrator. The ambiguity in the law, moreover, permits tailoring the world of possibilities to the various situations that individuals encounter.
Mary S. Barton
- Published in print:
- 2020
- Published Online:
- November 2020
- ISBN:
- 9780198864042
- eISBN:
- 9780191896330
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198864042.003.0003
- Subject:
- History, European Modern History, Political History
The passage to India of small arms, which often accompanied revolutionary ideas, was central to London’s concerns about the proliferation of arms prior to and after the 1919 Arms Traffic Convention. ...
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The passage to India of small arms, which often accompanied revolutionary ideas, was central to London’s concerns about the proliferation of arms prior to and after the 1919 Arms Traffic Convention. The British government attempted to combat political violence using tools developed during the Great War. Officials in London identified the province of Bengal in British India as the center of several terrorist networks. British counterterrorism strategy in India relied on three parts: arms controls, passport restrictions, and domestic anti-terrorism legislation. Intelligence memoranda warned of danger from the Communist International’s efforts to move funds, weapons, and foreign fighters into Azerbaijan, Afghanistan, Persia, and Iraq, with an eye toward the penetration of India. Reports shaped the policy recommendations of the newly-established Inter-Departmental Committee on Eastern Unrest (IDCEU). However, as colonial administrators learned following the Rowlatt Act, domestic anti-terrorism legislation would be revoked were Indian and London politicians to find it oppressive.Less
The passage to India of small arms, which often accompanied revolutionary ideas, was central to London’s concerns about the proliferation of arms prior to and after the 1919 Arms Traffic Convention. The British government attempted to combat political violence using tools developed during the Great War. Officials in London identified the province of Bengal in British India as the center of several terrorist networks. British counterterrorism strategy in India relied on three parts: arms controls, passport restrictions, and domestic anti-terrorism legislation. Intelligence memoranda warned of danger from the Communist International’s efforts to move funds, weapons, and foreign fighters into Azerbaijan, Afghanistan, Persia, and Iraq, with an eye toward the penetration of India. Reports shaped the policy recommendations of the newly-established Inter-Departmental Committee on Eastern Unrest (IDCEU). However, as colonial administrators learned following the Rowlatt Act, domestic anti-terrorism legislation would be revoked were Indian and London politicians to find it oppressive.