Search results for: international criminal justice

Authors: Mahdi Karimi

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One of the most basic standards of fair trial is the right to defense, hire an attorney and its presence in the hearing stages. On the one hand, based on the reason and justice, as the legal issues, particularly criminal affairs, become complicated, the accused must benefit from an attorney in the court in order to defend itself which requires legal knowledge. On the other hand, as the judicial system has jurists such as investigation judges at its disposal, the accused must enjoy the same right to defend itself and reject allegations so that the balance is maintained between the litigating parties based on the principle of "equality of arms". The right to adequate time and facilities for defense is cited among the principles and rights relevant to the proceedings in international regulations such as the International Covenant on Civil and Political Rights. The innovations made in the Code of Criminal Procedure in 2013 guaranteed the presence of the accused’s attorney in the proceedings. The present study aims at assessing the result of the aforementioned guarantee in practice and made attempts to investigate the effect of the presence of accused’s attorney on reducing the punishment by asking the question and addressing the statistical population of this study including 48 judges of lower courts and courts of appeal. It seems that in despite of guarantees provided in the new Code of Criminal Procedure, Iran's penal system, does not tolerate the presence of an attorney in practice.

Keywords: defense attorney, equality of arms, fair trial, reducing the penalty, right to defense

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Authors: Lucy Tsado

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As cybercrime and cyberattacks continue to increase, the need to respond will follow suit. When cybercrimes occur, the duty to respond sometimes falls on law enforcement. However, criminal justice students are not taught concepts in cybersecurity and digital forensics. There is, therefore, an urgent need for many more institutions to begin teaching cybersecurity and related courses to social science students especially criminal justice students. However, many faculty in universities, colleges, and high schools are not equipped to teach these courses or do not have the knowledge and resources to teach important concepts in cybersecurity or digital forensics to criminal justice students. This research intends to develop curricula and training programs to equip faculty with the skills to meet this need. There is a current call to involve non-technical fields to fill the cybersecurity skills gap, according to experts. There is a general belief among non-technical fields that cybersecurity education is only attainable within computer science and technologically oriented fields. As seen from current calls, this is not entirely the case. Transitioning into the field is possible through curriculum development, training, certifications, internships and apprenticeships, and competitions. There is a need to identify how a cybersecurity eco-system can be created at a university to encourage/start programs that will lead to an interest in cybersecurity education as well as attract potential students. A short-term strategy can address this problem through curricula development, while a long-term strategy will address developing training faculty to teach cybersecurity and digital forensics. Therefore this research project addresses this overall problem in two parts, through curricula development for the criminal justice discipline; and training of faculty in criminal justice to teaching the important concepts of cybersecurity and digital forensics.

Keywords: cybersecurity education, criminal justice, curricula development, nontechnical cybersecurity, cybersecurity, digital forensics

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Authors: Nour Mohammad

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The concept of International Criminal Court is not a new idea.It goes back to the late 19th century and was first mooted in 1872 by Gustave Moynier of the International Commitee of the Red Cross(ICRC). This paper attempts to focus on jurisdictional problem of the international criminal court (ICC) over national of states of non parties to the Rome statute. Mor than 120 countries are state parties to the Rome Statute representing all regions, Afria, the Asia-pacofoc Eastern Europe, Latin America and the Caribben as well as Western Europe and North America.The Statute is the core document of internationa criminal law todaycontaining 128 Articles and divided in 13 parts.The Rome Statute provides that the court may sit elsewhere the judge consider it desirable.The International Criminal Court is not in a position to adjudicate all international crimes but its jurisdiction is limited to the four categories of crime viz. genocide, crimes against humanity, war crimes and crime of aggression as stipulated in Article 5 of the ICC Statute. It also mention here that the Court will be able to exercise its jurisdiction over the crime of aggression only when this crime is defined. Due to the highly political nature of this crime, it is unlikely that a consensus in this regard would be arrived at in the near future.The main point of this article is to discuss the mandate of international criminal court to prosecute and punish persons responsible for the henious crimes of concern to the international community.The author highlighted the principles which support the delegation of criminal jurisdiction by state to international tribunals and discuss the precedents of such delegation.It also argued that the exercise of ICC jurisdiction over acts done pursuant to the officially policy of non-party state would not be contrary to the principles requiring consent for the exercise of jurisdiction by international tribunals. The article explore the limit to jurisdiction of ICC over non-party nationals.

Keywords: jurisdiction, international, criminal, court, non-parties

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Authors: Sarah Kinyanjui, Mahnaaz Mohamed

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The child justice system in Kenya is organically departing from a managerial and retributive model to one that espouses restorative justice. Notably, the Children Act 2001, and the most recent, Children Act 2022, signalled an aspiration to facilitate meaningful interventions as opposed to ‘processing’ children through the justice system. In this vein, the Children Act 2022 formally recognises diversion and provides modalities for its implementation. This paper interrogates the diversion promise and reflects on the implementation of diversion as envisaged by the 2022 Act. Using restorative justice, labelling and differential association theories as well as the value of care lenses, the paper discusses diversion as a meaningful response to child offending. It further argues that while diversion presents a strong platform for the realisation of the restorative and rehabilitative ideals, in the absence of a well-planned, coordinated, and resourced framework, diversion may remain a mere alternative ‘conveyor belt’. Strategic multi-agency planning, capacity building and cooperation are highlighted as essential minimums for the realisation of the goals of diversion.

Keywords: diversion for child offenders, restorative justice, responsive criminal justice system, children act 2022 kenya

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Authors: Genevieve Zingg

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Modern technology and social media platforms have fundamentally altered the nature of war crimes investigations by providing new forms of data, evidence, and documentation, and pose a unique opportunity to expand the efficacy of international law. However, much of the open source information available is deemed inadmissible in subsequent legal proceedings and fails to function as evidence largely due to issues of reliability and verifiability. Focusing on current judicial investigations related to ongoing conflicts in Syria and Iraq, this paper will examine key challenges and opportunities for the effective use of open source information in securing justice. This paper will consider strategies and approaches that can be used to ensure that information collected by affected populations meets basic admissibility standards. This paper argues that the critical failure to equip civilian populations in conflict zones with knowledge and information regarding established admissibility standards and guidelines both jeopardizes the potential of open source information and compromises the ability of victims to participate effectively in justice and accountability processes. The ultimate purpose of this paper is, therefore, to examine how to maximize the value of open source information based on the rules of evidence in international, regional, and national courts, and how to maximize the participation of affected populations in holding their abusers to account.

Keywords: human rights, international criminal law, international justice, international law, Iraq, open source information, social media, Syria, transitional justice, war crimes

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Authors: Mariam Shah

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Stereotypes are not generally considered to be an acceptable influence upon any decision making process, particularly those involving judicial decision making outcomes. Yet, we are confronted with an uncomfortable truth that stereotypes may be operating to influence judicial outcomes. Variances in sentencing outcomes are not easily explained away by criminological, psychological, or sociological theorem, but may be answered via qualitative research produced within the field of phenomenology. This paper will examine the current literature pertaining to the effect of stereotypes on the criminal justice system within the UK, and will also discuss what the implications are for stereotypical influences upon decision making in the criminal justice system. This paper will give particular focus to shoplifting offences dealt with in UK criminal courts, but this research has long reaching implications for the criminal process more generally.

Keywords: decision making, judicial decision making, phenomenology, shoplifting, stereotypes

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Authors: Dini Dewi Heniarti

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This One of criminal sanctions that are often imposed by the judge is imprisonment. The issue on the imposition of imprisonment has been subject of contentious debate and criticism among various groups for a long time. In practice, the problematics of imprisonment lead to complicated problems. The impact of the reckless imposition of the imprisonment includes among others overcapacity of the correctional institution and increasing crimes within the correctional facilities. Therefore, there is a need for renewal of the existing condemnation paradigm, considering the developing phenomena associated with the penal imposition. Imprisonment as one element of the Indonesian penal system is an important and integral part of the other elements. The philosophy of the current penal system, which still refers to the Criminal Code, still carries the values of retaliation and fault-finding toward the offender. Therefore, it is important to reconstruct a new thought in order to realize a penal system that is represented in the formulation of a more humanistic criminal sanction

Keywords: criminal code, criminal sanction, Indonesian legal system, reconstruction of thought

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Authors: Roger-Claude Liwanga

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Over the last seven decades, there has been a proliferation of international tribunals. Yet, they have not received unanimous approval, raising a question about their legitimacy. A legitimate international tribunal is one whose authority to adjudicate international disputes is perceived as justified. Using the case study of the International Court of Justice (ICJ), this article highlights the three criteria that should be considered in assessing the legitimacy of an international tribunal, which include legal, sociological, and moral elements. It also contends that the ICJ cannot claim 'full' legitimacy if any of these components of legitimacy is missing in its decisions. The article further suggests that the legitimacy of the ICJ has a dynamic nature, as litigating parties may constantly change their perception of the court’s authority at any time before, during, or after the judicial process. The article equally describes other factors that can contribute to maintaining the international court’s legitimacy, including fairness and unbiasedness, sound interpretation of international legal norms, and transparency.

Keywords: international tribunals, legitimacy, human rights, international law

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Authors: Aadita Chaudhury

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Since at least the early 2000s, DNA profiling has achieved a preeminent status in forensic investigations into criminal acts. While the criminal justice system has a long history of using forensic evidence and testing them through establish technoscientific means, the primacy of DNA in establishing 'truth' or reconstructing a series of events is unparalleled in the history of forensic science. This paper seeks to elucidate the ways in which DNA profiling has become the most authoritative instrument of 'truth' in criminal investigations, and how it is used in the legal process to ascertain culpability, create the notion of infallible evidence, and advance the search for justice. It is argued that DNA profiling has created a paradigm shift in how the legal system and the general public understands crime and culpability, but not without limitations. There are indications that even trace amounts of DNA evidence can point to causal links in a criminal investigation, however, there still remains many rooms to create confusion and doubt from empirical evidence within the narrative of crimes. Many of the shortcomings of DNA-based forensic investigations are explored and evaluated with regards to claims of the authority of biological evidence and implications for the public understanding of the elusive concepts of truth and justice in the present era. Public misinformation about the forensic analysis processes could produce doubt or faith in the judgements rooted in them, depending on other variables presented at the trial. A positivist understanding of forensic science that is shared by the majority of the population does not take into consideration that DNA evidence is far from definitive, and can be used to support any theories of culpability, to create doubt and to deflect blame.

Keywords: DNA profiling, epistemology of forensic science, philosophy of forensic science, sociology of scientific knowledge

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Authors: Seane Mabitsela

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The Territory of Namibia was entrusted to South Africa as a Mandate under the League of Nations Covenant. After the dissolution of the League of Nations and the commencement of United Nations operations, South Africa's conception of its legal obligations under the mandate varied from those of other members of the United Nations. Because of that, the General Assembly requested the International Court of Justice for an Advisory Opinion on the international obligations of South Africa arising therefrom. The International Court of Justice declared that South West Africa was still a mandatory territory under the Covenant of the League of Nations. It also held that South Africa continued to transmit petitions from inhabitants of the territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions were to be submitted. Subject to this judgement, the question of South West Africa remained a dispute relating to the mandate brought before the International Court of Justice against South Africa. The International Court of Justice and South Africa dispute reflected the nature of the Namibian inhabitants’ appeal for recognition at the United Nations.

Keywords: International Court of Justice, Namibia, petitions, United Nations

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Authors: Filip Ščerba, Veronika Pochylá

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Performing of the acts within criminal proceedings usually takes too long and thus this phenomenon can be regarded as one of the most burning problems which have plagued the criminal justice not only in the Czech Republic but at least all over Europe for the last few decades. This problem obviously has to be dealt with and thus the need to tackle this issue has resulted in the trend which is sometimes called Criminal Justice Rationalization, i.e. introducing and enforcing methods supporting the increase in efficiency of the criminal justice in order to make the criminal proceedings shorter and administrative procedure easier. This resulted in the introduction of institutes such as e.g. diversions in criminal proceedings or other forms of shortened pre-trial proceedings, which may be used primarily for dealing with less serious crimes. But also the institute, which was originally mentioned in connection with the system of criminal law in the countries belonging to the Anglo-Saxon legal order where it is frequently called of plea bargaining, has been introduced into the criminal law of many European countries, and it may be applied also in cases of serious crimes. All these special and shortened forms of criminal proceedings are connected with limited extent of process of evidence; in fact, some of these specific forms of criminal proceedings are designed for the purpose to simplify the process of evidence. That is also the reason, why some of these procedures are conditioned with the defendant’s confession. Main hypothesis: Limited process of evidence represents also a potential conflict with certain fundamental principles upon which the criminal proceeding in the Continental legal system is based. (A conflict with principle of material truth may be considered as the most important problem. This principle states that the bodies in criminal proceedings must clarify the facts of the case beyond reasonable doubt to such extent that a decision can be made; the defendant’s confession does not mean that these bodies are freed from the duty to review all the circumstances and facts of the case. Such principle is typical for criminal law in Central European region.) Basic methodologies: The paper is going to analyze such a problem of weakening of the principle of material truth in modern criminal law. Such analysis will be provided primarily on the base of the Czech criminal law, but also other legal regulations will be taken into consideration, and its result may have some relevance for all legal regulations belonging to the Continental legal system, so the paper offers also a comparison with legal systems of other Central European countries.

Keywords: burden of proof, central European countries, criminal justice rationalization, criminal proceeding, Czech legislation, Czech republic, defendant, diversions, evidence, fundamental principles, plea bargaining, pre-trial proceedings, principle of material truth, process of evidence, process of evidence

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Authors: Herke Csongor

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The artificial intelligence (AI) has been used in the United States of America in the decisionmaking process of the criminal justice system for decades. In the field of law, including criminal law, AI can provide serious assistance in decision-making in many places. The paper reviews four main areas where AI still plays a role in the criminal justice system and where it is expected to play an increasingly important role. The first area is the predictive policing: a number of algorithms are used to prevent the commission of crimes (by predicting potential crime locations or perpetrators). This may include the so-called linking hot-spot analysis, crime linking and the predictive coding. The second area is the Big Data analysis: huge amounts of data sets are already opaque to human activity and therefore unprocessable. Law is one of the largest producers of digital documents (because not only decisions, but nowadays the entire document material is available digitally), and this volume can only and exclusively be handled with the help of computer programs, which the development of AI systems can have an increasing impact on. The third area is the criminal statistical data analysis. The collection of statistical data using traditional methods required enormous human resources. The AI is a huge step forward in that it can analyze the database itself, based on the requested aspects, a collection according to any aspect can be available in a few seconds, and the AI itself can analyze the database and indicate if it finds an important connection either from the point of view of crime prevention or crime detection. Finally, the use of AI during decision-making in both investigative and judicial fields is analyzed in detail. While some are skeptical about the future role of AI in decision-making, many believe that the question is not whether AI will participate in decision-making, but only when and to what extent it will transform the current decision-making system.

Keywords: artificial intelligence, international criminal cooperation, planning and organizing of the investigation, risk assessment

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Authors: Eiman Alqattan

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Kuwaiti criminal justice system’s responses to allegations of sexual violence against women during the pre-trial process, suggesting that the system in Kuwait is affected by an ethos that is male dominated and patriarchal, and which results in prejudicial, unfair, and unequal treatment of female victims of serious sexual offenses. Data derived from qualitative semi-structured face-to-face interviews with four main groups of criminal justice system personnel in Kuwait (prosecutors, police investigators, police officers, and investigators) reveal the characteristics of a complaint of sexual violence that contribute to cases being either sent to court or dismissed. This proposed paper will suggest that Arab cultural views of women appear to influence and even shape the views, perceptions, and conduct of the interviewed Kuwaiti criminal justice system personnel regarding complaints of sexual violence made by citizens. Data from the interviews show how the image of the ‘modest woman’ that exists within Arabic cultural views and norms greatly contributes to shaping the characteristics of what the majority of the interviewed officials considered to be a ‘credible’ allegation of sexual violence. In addition, it is clear that the interviewees’ definitions of ‘modesty’ varied. Yet the problem is not only about the stereotypical perceptions of complainants or the consequences of those perceptions on the decision to send the case to court. These perceptions also affected the behaviours of criminal justice system personnel towards citizen complainants. When complainants’ allegations were questioned, investigators went as far as abusing the women verbally or physically, often in order to force them to withdraw the so-called ‘false’ complaint in order to protect the ‘real’ victim: the ‘innocent defendant’. The proposed presentation will discuss these police approaches to women and the techniques used in assessing the credibility of their accusations, including how they differ depending on whether the complainant was under or over 21 years old.

Keywords: criminal justice system, law and Arab culture, modest woman, sexual violence

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Authors: Sandhra M. Pillai

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This article examines the relevance, difficulties, and potential applications of DNA analysis in the criminal justice system. A potent tool for connecting suspects to crime sites, clearing the innocent of wrongdoing, and resolving cold cases, DNA analysis has transformed forensic investigations. The scientific foundations of DNA analysis, including DNA extraction, sequencing, and statistical analysis, are covered in the article. To guarantee accurate and trustworthy findings, it also discusses the significance of quality assurance procedures, chain of custody, and DNA sample storage. DNA analysis has significantly advanced science, but it also brings up substantial moral and legal issues. To safeguard individual rights and uphold public confidence, privacy concerns, possible discrimination, and abuse of DNA information must be properly addressed. The paper also emphasises the effects of the criminal justice system on people and communities while highlighting the necessity of equity, openness, and fair access to DNA testing. The essay describes the obstacles and future directions for DNA analysis. It looks at cutting-edge technology like next-generation sequencing, which promises to make DNA analysis quicker and more affordable. To secure the appropriate and informed use of DNA evidence, it also emphasises the significance of multidisciplinary collaboration among scientists, law enforcement organisations, legal experts, and policymakers. In conclusion, DNA analysis has enormous potential for improving the course of criminal justice. We can exploit the potential of DNA technology while respecting the ideals of justice, fairness, and individual rights by navigating the ethical, legal, and societal issues and encouraging discussion and collaboration.

Keywords: DNA analysis, DNA evidence, reliability, validity, legal frame, admissibility, ethical considerations, impact, future direction, challenges

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Authors: Tapiwa Shumba

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The right to fairness and access to appeals and reviews enshrined under the South African Constitution seeks to ensure that justice is served. In essence, the constitution and the law have put in place mechanisms to ensure that a miscarriage of justice through wrongful convictions does not occur. However, once convicted and sentenced on appeal the procedural safeguards seem to resign as if to say, the accused has met his fate. The challenge with this construction is that even within an ideally perfect legal system wrongful convictions would still occur. Therefore, it is not so much of the failings of a legal system that demand attention but mechanisms to redress the results of such failings where evidence becomes available that a wrongful conviction occurred. In this context, this paper looks at the South African criminal procedural mechanisms for litigating innocence post-conviction. The discussion focuses on the role of section 327 of the South African Criminal Procedure Act and its apparent shortcomings in providing an avenue for victims of miscarriages to litigate their innocence by adducing new evidence at any stage during their wrongful incarceration. By looking at developments in other jurisdiction such as the United Kingdom, where South African criminal procedure draws much of its history, and the North Carolina example which in itself was inspired by the UK Criminal Cases Review Commission, this paper is able to make comparisons and draw invaluable lessons for the South African criminal justice system. Lessons from these foreign jurisdictions show that South African post-conviction criminal procedures need reform in line with constitutional values of human dignity, equality before the law, openness and transparency. The paper proposes an independent review of the current processes to assess the current post-conviction procedures under section 327. The review must look into the effectiveness of the current system and how it can be improved in line with new substantive legal provisions creating access to DNA evidence for post-conviction exonerations. Although the UK CCRC body should not be slavishly followed, its operations and the process leading to its establishment certainly provide a good point of reference and invaluable lessons for the South African criminal justice system seeing that South African law on this aspect has generally followed the English approach except that current provisions under section 327 are a mirror of the discredited system of the UK’s previous dispensation. A new independent mechanism that treats innocent victims of the criminal justice system with dignity away from the current political process is proposed to enable the South African criminal justice to benefit fully from recent and upcoming advances in science and technology.

Keywords: innocence, forensic law, post-conviction remedies, South African criminal justice system, wrongful conviction

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Authors: Magda Olesiuk-Okomska

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The degree of international interdependence has grown significantly. Poland is a party to nearly 1000 binding multilateral treaties, including international legal instruments devoted to criminal matters and obliging the state to penalize certain crimes. The paper presents results of a theoretical research conducted as a part of doctoral research. The main hypothesis assumed that there was a separate category of crimes to penalization of which Poland was obliged under international legal instruments; that a catalogue of such crimes and a catalogue of international legal instruments providing for Poland’s international obligations had never been compiled in the domestic doctrine, thus there was no mechanism for monitoring implementation of such obligations. In the course of the research, a definition of transnational crimes was discussed and confronted with notions of international crimes, treaty crimes, as well as cross-border crimes. A list of transnational crimes penalized in the Polish Penal Code as well as in non-code criminal law regulations was compiled; international legal instruments, obliging Poland to criminalize and penalize specific conduct, were enumerated and catalogued. It enabled the determination whether Poland’s international obligations were implemented in domestic legislation, as well as the formulation of de lege lata and de lege ferenda postulates. Implemented research methods included inter alia a dogmatic and legal method, an analytical method and desk research.

Keywords: international criminal law, transnational crimes, transnational criminal law, treaty crimes

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Authors: Isaac Kfir

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In thinking about the role of the law and its impact on socially constructed norms and identities, scholars have come to explore a multitude of issues to do with equality, empowerment, and views. The aim of this contribution is threefold. Firstly, offer a descriptive framework of feminist legal studies (FLS) through a review of the evolution of the field in the context of equality, rights, and justice. Secondly, encourage those working on equality, rights, and justice in respect to ‘women’s issues’ to engage in international comparative legal studies. Third, to highlight that those seeking solutions to disempowerment and discrimination must recognize that they need to contend with claims that one is seeking to undermine cultural norms. Therefore, one effective way for feminists to address this situation is by relying more on the international legal mechanism, which reflects basic legal tenets as to the universality of equality, rights, and justice, that can then help shape the domestic setting.

Keywords: international comparative law, feminist legal studies, equality, rights, justice

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Authors: Laura Mendez

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Tribunals for the prosecution of crimes against humanity have been implemented in recent history via international intervention or imposed by one side of the conflict, as in the cases of Rwanda, Iraq, Argentina, and Chile. However, the creation of a criminal tribunal as the result of a peace agreement between formerly warring parties has been unique to the Colombian peace process. As such, the Colombian Jurisdiction for Peace (SJP), or JEP for its Spanish acronym, is viewed as a site of social contestation where actors shape its design and implementation. This study contributes to the literature of transitional justice by analyzing how the framing of the creation of the Colombian tribunal reveals the parties' interests. The analysis frames the interests of the power-brokers, i.e., the government and the Revolutionary Armed Forces of Colombia (FARC), and the victims in light of the tribunal’s functions. The purpose of this analysis is to understand how the interests of the parties are embedded in the designing of the SJP. This paper argues that the creation of the SJP rests on restorative justice, for which the victim, not the perpetrator, is at the center of prosecution. The SJP’s approach to justice moves from prosecution as punishment to prosecution as sanctions. SJP’s alternative sanctions focused on truth, reparation, and restoration are designed to humanize both the victim and the perpetrator in order to achieve reconciliation. The findings also show that requiring the perpetrator to perform labor to repair the victim as an alternative form of sanction aims to foster relations of reintegration and social learning between victims and perpetrators.

Keywords: transitional justice mechanisms, criminal tribunals, Colombia, Colombian Jurisdiction for Peace, JEP

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Authors: Sadiya S. Silvee

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Generally, the decision of the higher court is binding on its subordinate courts. As provided in Article 111 of the Constitution, 'the law declared by the Appellate Division (AD) shall be binding on the High Court Division (HCD) and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.' This means the judicial discipline requires the HCD to follow the decision of the AD and that it is necessary for the lower tiers of courts to accept the decision of the higher tiers as a binding precedent. Analyzing the application of Article 111 of the Constitution in the criminal justice system as a sentencing guideline, the paper, by examining whether there is any consistency in decision between one HC Bench and another HC Bench, explores whether HCD can per incuriam its previous decision. In doing so, the Death Reference (DR) Cases are contemplated. Furthermore, the paper shall examine whether the Court of Session follows the decision of the HCD while using their discretion to make the choice between death and imprisonment for life under section 302 of PC. The paper argues due to the absence of any specific direction for sentencing and inconsistency in jurisprudence among the HCD; the subordinate courts are in a dilemma.

Keywords: death reference, sentencing factor, sentencing guideline, criminal justice system and constitution

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Authors: Pujiyono, Reda Manthovani, Deny Tri Ardianto, Rabani Halawa, Isharyanto

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This research has background that the taxpayer (defendant) who has paid off the tax payable and the tax penalty payable after the tax case file has been transferred to the court, while the legality of stopping the prosecution of tax cases on the grounds that in the interest of state revenue is not regulated in the provisions of Law Number 8 of 1981 concerning The Criminal Procedure Code and Law Number 28 of 2007 concerning the Third Amendment to Law Number 6 of 1983 concerning General Provisions and Tax Procedures as amended several times, most recently by Law Number 16 of 2009 concerning Stipulation of Government Regulation in Lieu of Law Number 5 of 2008 concerning Fourth Amendment to Law Number 6 0f 1983 concerning General Provisions and Tax Procedures to become Law, even though at the investigation stage it regulates the mechanism for stopping the investigation for the sake of the interest of acceptance ne this is because before the case file is transferred to the court where at the request of the Minister of Finance of The Republic of Indonesia can stop the investigation in the interest of state revenue so that based on this phenomenon a legal vacuum is found. Therefore, a non-penal policy is needed from the public prosecutor to resolve tax crime cases without going through litigation in court through the penal mediation method using the Plea Bargaining System which adheres to the principles of restorative justice and obligative justice based on the ultimum remedium principle and the principle of opportunity in order to realize the principle of fast, simple and low cost justice (content principle). This research is a normative legal research, using a statutory approach, conceptual approach, and comparative law approach. Regulations that is used in many countries, include America, The Netherlands and Singapore. The results of this study indicate that there is a reformulation of the tax criminal justice system which regulates the mechanism, qualifications and authority to terminate the prosecution of tax cases in the interest of state revenues in order to achieve legal goals which are not only for legal certainty but more that, namely providing benefits and legal justice for people seeking justice.

Keywords: obligative justice, regulation, state reveneus, tax criminal

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Authors: Bharathadas Sandhya

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Janamaithri Suraksha Project is the community policing project of Kerala police, fully sponsored by the Government of Kerala and in vogue in Kerala for the last ten years. The socio-economically weaker areas in the hilly terrains consisting of tribal hamlets are given special importance under the project. These hamlets are visited by the beat police officers, and they intervene in various issues in the hamlets. This study is based on data collected from 350 respondents living in the tribal hamlets of the Nilambur area in the District of Malappuram. The respondents were personally interviewed by the research team using a questionnaire consisting of 183 questions, seeking the details regarding their interaction with beat police officers, their ability to prevent or detect crimes, the menace of Maoists (extremist) presence, their interventions in other socio-economic problems like alcoholism, school dropout issues, lack of facilities for preparation for competitive examinations for educated youth, etc. The perception of the tribal population regarding the effectiveness of police intervention in their criminal justice complaints, the attitude of the police officers towards the tribal population when they approach the police station with a criminal complaint, are also studied. The general socio-economic problems of the tribal population as perceived by them are also brought out. Being the visible agency of the government, the police person coming on beat duty to the hamlet is generally seen by the tribal population as a representative to whom they can communicate the issues, even if it’s solution rests with another department like the forest or agriculture. The analysis of the primary data is carried out using computer applications. The amount of social justice benefits the tribal hamlets received through various government schemes, and their deficiencies are brought out in the study. From the conclusions of the study, certain suggestions for positive criminal justice and social justice intervention strategies are made out. The need for various government departments to work in tandem with each other so as to bring out more effectiveness in the socio-economic projects is evident from the study. Whether it is the need to obtain a transport to go to school or problem of drinking water or even opening a bank account, at least occasionally, the visiting beat police officer is of help to the tribal population. Mostly the tribal population feels free to approach the police with a criminal complaint without any inhibitions.

Keywords: community policing, beat police officer, criminal justice, social justice

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Authors: David Abrahams

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In October 2016 South Africa deposited its ‘instrument of withdrawal’ from the Rome Statute of the International Criminal Court, with the Secretary-General of the United Nations. The Rome Statute is the founding document of the treaty-based International Criminal Court (ICC). The ICC has jurisdiction to hear cases where crimes against humanity, war crimes and genocide have been committed, on the basis of individual criminal responsibility. It is therefore not surprising that one of the ICCs mandates is to ensure that the sufferings, due to gross human rights violations towards the civilian population is, in principle, brought to an end by punishing those individuals responsible, thus providing justice to the victims. The ICC is unable to effectively fulfill its mandate and thus depends, in part on the willingness of states to assist the Court in its functions. This requires states to ratify the Statute and to domesticate its provisions, depending on whether it is a monist or dualist state. South Africa ratified the Statute in November 2000, and domesticated the Statute in 2002 by virtue of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. South Africa thus remains under an obligation to cooperate with the ICC until the final date of withdrawal, which is October 2017. An AU Summit was hosted by South Africa during June 2015. Omar Al-Bashir, whom the prosecutor of the ICC has indicted on two separate occasions, was invited to the summit. South Africa made an agreement with the AU that it will honour its obligations in terms of its Diplomatic and Immunities Privileges Act of 2001, by granting immunity to all heads of state, including that of Sudan. This decision by South Africa has raised a plethora of questions regarding the status and hierarchy of international laws versus regional laws versus domestic laws. In particular, this paper explores whether a state’s international law treaty obligations may be suspended in favour of, firstly, regional peace (thus safeguarding the security of the civilian population against further atrocities and other gross violations of human rights), and secondly, head of state immunity. This paper also reflects on the effectiveness of the trias politca in South Africa in relation the manner in which South African courts have confirmed South Africa’s failure in fulfilling its obligations in terms of the Rome Statute. A secondary question which will also be explored, is whether the Rome Statute is currently an effective tool in dealing with gross violations of human rights, particularly in a regional African context, given the desire by a number of African states currently party to the Statute, to engage in a mass exodus from the Statute. Finally, the paper concludes with a proposal that there can be no justice for victims of gross human rights violations unless states are serious in playing an instrumental role in bringing an end to impunity in Africa, and that withdrawing from the ICC without an alternative, effective system in place, will simply perpetuate impunity.

Keywords: African Union, diplomatic immunity, impunity, international criminal court, South Africa

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Authors: Theresia Simatupang dan Rahmayanti

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Tax Law is a legal product and therefore should be subject to the legal norms, both about this actions, implementation, and about the material. Law has always aimed at providing justice, and besides that the law as a tool used to organize the order or rule of law. tax classification of a crime in this is very necessary, because the crime of taxation is very detrimental to the country and is still very high in society and socialization associated with punishment in sentencing that would have to provide a deterrent for the perpetrators, so refer to the this, these criminal offenses can endanger the stability of the nation's economy and the country that require special snacks. The application of legal sanctions against the perpetrators of the crime of taxation already has a strong legal basis, namely UU KUP. UU KUP have loaded threat (sanctions) severe punishment for tax payers who commit offenses and crimes in the field of taxation, which is contained in Article 38, and Article 39, Article 41, Article 41 A, and 41 B as well as Article 43 of Law and Law No. 12 KUP about 1985 Land Tax and Building. Criminal sanctions against violators of the tax provision are important because tax payers sanctions for violating tax laws.

Keywords: accountability, tax crime, criminal liability, taxation

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Authors: Leah Gwatimba, Nanga Raymond Raselekoane

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The incidences of youth who engage in unlawful or criminal activities are of great concern for the criminal justice system and government in South Africa. In terms of the juvenile justice system in South Africa, under-age youth who have been found guilty and sentenced to serve a jail term cannot be sent to the same detention facility as adults. The juvenile justice system is meant to protect young offenders from physical, emotional and mental exploitation by adult prisoners. Under-age young offenders should be assisted and exposed to educational, entrepreneurial and behavioral programmes that can equip them with the much needed skills that will turn them into law-abiding and economically productive citizens. The aim of this study was to evaluate the effectiveness of the justice system in South Africa in the rehabilitation young offenders. A qualitative method was used. The study used the non-probability purposive sampling to select the respondents. In-depth interviews, focus groups, observation and thematic coding were used to collect and analyse the data respectively. The study population consisted of social workers and offending youth. The sample comprised of 16 respondents (i.e. 4 social workers and twelve offending youth (6 males and 6 females). The study indicated that there is worrying recurrence of the anti-social behavior by some of the young offenders. According to this study, the effectiveness of the juvenile justice system in the rehabilitation of the offending youth can be achieved by paying serious attention to follow-up services, participation of families of the offending youth in the diversion programmes and by improving the socio-economic conditions in the homes and communities of the offending youth.

Keywords: juvenile delinquent, juvenile justice system, diversion programmes, rehabilitation, restorative justice

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Authors: Shivam Dwivedi, Saumya Kapoor

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The Israeli Supreme Court in Public Committee against Torture in Israel v. Government of Israel observed the presence of non-state actors in cross-border terrorist activities thereby making the role of non-state actors in terrorism the center of discussion under the scope of International Humanitarian Law. Non-state actors and their role in a conflict have also been traversed upon by the Tadic case decided by the International Criminal Tribunal for the former Yugoslavia. However, there still are lacunae in International Humanitarian Law when it comes to determining the nature of a conflict, especially when non-state groups act within the ambit of various states, for example, Taliban in Afghanistan or the groups operating in Ukraine and Georgia. Thus, the objective of writing this paper would be to observe the ways by which non-state actors particularly terrorist organizations could be brought under the ambit of Additional Protocol I. Additional Protocol I is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international conflicts which basically outlaws indiscriminate attacks on civilian populations, forbids conscription of children and preserves various other human rights during the war. In general, the Additional Protocol I reaffirms the provisions of the original four Geneva Conventions. Since provisions of Additional Protocol I apply only to cases pertaining to International Armed Conflicts, the answer to the problem should lie in including the scope for ‘transnational armed conflict’ in the already existing definition of ‘International Armed Conflict’ within Common Article 2 of the Geneva Conventions. This would broaden the applicability of the provisions in cases of non-state groups and render an international character to the conflict. Also, the non-state groups operating or appearing to operate should be determined by the test laid down in the Nicaragua case by the International Court of Justice and not under the Tadic case decided by the International Criminal Tribunal for Former Yugoslavia in order to provide a comprehensive system to deal with such groups. The result of the above proposal, therefore, would enhance the scope of the application of International Humanitarian Law to non-state groups and individuals.

Keywords: Geneva Conventions, International Armed Conflict, International Humanitarian Law, non-state actors

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Authors: Md. Tawohidul Haque

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The main objective of this study is to explore the nature, types and, causes of the involvement of criminal activities of the university students using social media namely Social Networking Sites (SNS). The evidence shows that the students have greater chance to involve such criminal activities during sharing their personal messages, photos, and even sharing their academic works. Used qualitative case studies with six students from two universities, this study provides a detail information about the processes how this media provokes the students to commit to the criminal activities such as unethical pose, naked picture, post against persona’s prestige and dignity as well as social position, phone call at midnight, personal threats, sexual offer, kidnapping attitude, and so on. This finding would be an important guideline for the media persons, policy makers, restorative justice, and human rights workers.

Keywords: social media, criminal victimization, human gathering scheme, social code of ethics

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Authors: Erinda Male

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Participation of a lawyer in any criminal proceedings on behalf of an accused person or a victim is essential to a fair trial. Legal representation is particularly crucial in proceedings before international tribunals, especially in the International Criminal Court. The paper thus focuses on the importance of the legal representation of victims and defendants before the ICC, as well as on the role of the legal representative in the proceedings before the court and the principle of freedom of choice of legal representatives. Also, the paper presents a short overview of the significance of legal representatives for victims and the necessity to protect their primary role in the ICC system, and ensure that it is coherent and respectful of victims’ rights. Victim participation is an important part of the ICC Statute and it is designed to help ensure that those most affected by the crimes are able to engage with the Court. Proper and quality legal representation ensures meaningful participation of victims at stages of the proceedings before ICC. Finally, the paper acknowledges the role of legal representatives during the pre-trial, trial and post-trial phase, the different modalities in selecting the legal representatives as well as balancing victims’ participation with the right of the accused to a fair trial.

Keywords: fair trial, freedom of choice principle, international criminal court, legal representatives, victims

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Authors: Irina Belozerova

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In the recent years, the number of crimes against peace and humanity has constantly been increasing. The development of the international community is inseparably connected to the compliance with the law which protects the rights and interests of citizens in all of their manifestations. The provisions of the law of criminal procedure are no exception. The rights of the victims of genocide, of the war crimes and the crimes against humanity, require particular attention. These crimes fall within the jurisdiction of the International Criminal Court governed by the Rome Statute of the International Criminal Court. These crimes have the following features. First, any such crime has a mass character and therefore requires specific regulation in the international criminal law and procedure and the national criminal law and procedure of different countries. Second, the victims of such crimes are usually children, women and old people; the entire national, ethnic, racial or religious groups are destroyed. These features influence the classification of victims by the age criterion. Article 68 of the Rome Statute provides for protection of the safety, physical and psychological well-being, dignity and privacy of victims and witnesses and thus determines the procedural status of these persons. However, not all the persons whose rights have been violated by the commission of these crimes acquire the status of victims. This is due to the fact that such crimes affect a huge number of persons and it is impossible to mention them all by name. It is also difficult to assess the entire damage suffered by the victims. While assessing the amount of damages it is essential to take into account physical and moral harm, as well as property damage. The procedural status of victims thus gains an exclusive character. In order to determine the full extent of the damage suffered by the victims it is necessary to collect sufficient evidence. However, it is extremely difficult to collect the evidence that would ensure the full and objective protection of the victims’ rights. While making requests for the collection of evidence, the International Criminal Court faces the problem of protection of national security information. Religious beliefs and the family life of victims are of great importance. In some Islamic countries, it is impossible to question a woman without her husband’s consent which affects the objectivity of her testimony. Finally, the number of victims is quantified by hundreds and thousands. The assessment of these elements demands time and highly qualified work. These factors justify the creation of a mechanism that would help to collect the evidence and establish the truth in the international criminal proceedings. This mechanism will help to impose a just and appropriate punishment for the persons accused of having committed a crime, since, committing the crime, criminals could not misunderstand the outcome of their criminal intent.

Keywords: crimes against humanity, evidence in international criminal proceedings, international criminal proceedings, protection of victims

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Authors: Kolawole Oyekan Jamiu

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In Nigerian criminal law, a victim of an offence plays little or no role in the prosecution of an offender. The state concentrates only on imposing punishment on the offender while the victims of crime and abuse of power by security agencies are abandoned without any compensation either from the State or the offender. It has been stated that the victim of crime is the forgotten man in our criminal justice system. He sets the criminal law in motion but then goes into oblivion. Our present criminal law does not recognise the right of the victim to take part in the prosecution of the case or his right to compensation. The victim is merely a witness in a state versus case. This paper examines the meaning of the phrase ‘the victims of crime and abuse of power’. It needs to be noted that there is no definition of these two categories of victims in any statute in Nigeria. The paper also considers the United Nations General Assembly Declaration of Basic Principle of Justice for Victims and abuse of power. This declaration was adopted by the United Nations General Assembly on the 25th of November 1985. The declaration contains copious provisions on compensation for the victims of crime and abuse of power. Unfortunately, the declaration is not, in itself a legally binding instrument and has been given little or no attention since the coming into effect in1985. This paper examines the role of the judiciary in ensuring that victims of crime and abuse of power in Nigeria are compensated. While some Judges found it difficult to award damages to victims of abuse of power others have given some landmark rulings and awarded substantial damages. The criminal justice ( victim’s remedies) Bill shall also be examined. The Bill comprises of 74 sections and it spelt out the procedures for compensating the victims of crime and abuse of power in Nigeria. Finally, the paper also examines the practicability of awarding damages to victims of crime whether the offender is convicted or not and in addition, the possibility of granting all equitable remedies available in civil cases to victims of crime and abuse of power so that the victims will be restored to the earlier position before the crime.

Keywords: compensation, damages, restitution, victims

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Authors: A. Gün Güneş

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This study aims to explicate the functionality of the responsibility to protect (R2P) in terms of order and justice within the context of the main traditions of the English School theory. The conflicts in Libya and Syria and the response of the international society to these crises are analyzed in the pluralism-solidarism dichotomy of the English School. In this regard, the intervention under R2P in Libya exemplifies the solidaristic side emphasizing justice, while the non-intervention in Syria exemplifies the pluralistic side emphasizing order. This study discusses the cases of Libya and Syria on the basis of Great Powers.

Keywords: English school theory, international society, order, justice, responsibility to protect

Procedia PDF Downloads 402