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Codifying Mercy: Judicial Reform, Affective Process, and Judge’s Knowledge

Arzoo Osanloo

in Forgiveness Work: Mercy, Law, and Victims' Rights in Iran

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. ... More

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

Seeking Reconciliation: Sentimental Reasoning and Reconciled Duties

Arzoo Osanloo

in Forgiveness Work: Mercy, Law, and Victims' Rights in Iran

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 ... More

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

Introduction: Crimtorts and Lifeworlds

Arzoo Osanloo

in Forgiveness Work: Mercy, Law, and Victims' Rights in Iran

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, ... More

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

Federal Sovereignty

Gregory Ablavsky

in Federal Ground: Governing Property and Violence in the First U.S. Territories

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 ... More

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

Abolition of Section 218 of the Criminal Code?: Reflections on the Current Debate about the Prohibition of Abortion in German Criminal Law [1971]

Ernst-Wolfgang Böckenförde, Mirjam Künkler, and Tine Stein

in Religion, Law, and Democracy: Selected Writings

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 ... More

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

EU security and counter-terrorism policies and human rights

Mikaela Heikkilä and Elina Pirjatanniemi

in The European Union and Human Rights: Law and Policy

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 ... More

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

Fighting the Scourge of International Crime: The Internationalization of Policing and Criminal Law in Interwar Europe

David Petruccelli

in Remaking Central Europe: The League of Nations and the Former Habsburg Lands

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 ... More

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

Epilogue: Diversity, Inclusion, and Legitimacy in International Courts and Tribunals: Insights from Within, Perspectives from the Periphery—An Island Girl Speaks

Janet M Nosworthy

in Identity and Diversity on the International Bench: Who is the Judge?

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 ... More

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

Tanzanian Criminal Law

Peter H. Reid

in Every Hill a Burial Place: The Peace Corps Murder Trial in East Africa

“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. ... More

“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

The Contribution of Women Judges and Prosecutors to the Development of International Criminal Law

Teresa Doherty

in Identity and Diversity on the International Bench: Who is the Judge?

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 ... More

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

Specifying the Proportionality Test and the Standard of Due Precaution: Problems of Prognostic Assessment in Determining the Meaning of “May Be Expected” and “Anticipated”

Stefan Oeter

in Necessity and Proportionality in International Peace and Security 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 ... More

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

Introduction: Syria’s Challenge to the Promise of International Justice

Beth Van Schaack

Michael N. Schmitt, Shane R. Reeves, Winston S. Williams, and Sasha Radin (eds)

in Imagining Justice for Syria

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 ... More

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

Legal System Reform

Leigh Goodmark

in Transgender Intimate Partner Violence: A Comprehensive Introduction

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 ... More

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

Conclusion

Beth Van Schaack

Michael N. Schmitt, Shane R. Reeves, Winston S. Williams, and Sasha Radin (eds)

in Imagining Justice for Syria

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 ... More

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

Forgiveness Sanctioned: Affective Faith in Healing

Arzoo Osanloo

in Forgiveness Work: Mercy, Law, and Victims' Rights in Iran

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 ... More

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

Intelligence, Empire, and Terror: The British Experience

Mary S. Barton

in Counterterrorism Between the Wars: An International History, 1919-1937

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. ... More

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