Search results for: international criminal proceedings

Authors: Elisabetta Baldassini

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Responses to atrocities are always unique and context-dependent. They cannot be foretold nor easily prompted. However, the events of the twentieth century had set the scene for the international community to explore new and more robust systems in response to war atrocities, with the ultimate goal being the restoration and maintenance of peace and security. The outlawry of war and the attribution of individual liability for international crimes were two major landmarks that set the roots for the development of international criminal law. From the London Conference (1945) for the establishment of the first international military tribunal in Nuremberg to Rome at the inauguration of the first permanent international criminal court, the development of international criminal law has shaped in itself a fluctuating degree of tensions between justice and maintenance of international peace and security, the cardinal dichotomy of this article. The adoption of judicial measures to achieve peace indeed set justice as an essential feature at the heart of the new international system. Blackhole of this dichotomy is the crime of aggression. Aggression was at first the key component of a wide body of peace projects prosecuted under the charges of crimes against peace. However, the wide array of controversies around aggression mostly related to its definition, determination and the involvement of the Security Council silenced, partly, a degree of efforts and agreements. Notwithstanding the establishment of the International Criminal Court (ICC), jurisdiction over the crime of aggression was suspended until an agreement over the definition and the conditions for the Court’s exercise of jurisdiction was reached. Compromised over the crime was achieved in Kampala in 2010 and the Court’s jurisdiction over the crime of aggression was eventually activated on 17 July 2018. China has steadily supported the advancement of international criminal justice together with the establishment of a permanent international judicial body to prosecute grave crimes and has proactively participated at the various stages of the codification and development of the crime of aggression. However, China has also expressed systematic reservations and setbacks. With the use of primary and secondary sources, including semi-structured interviews, this research aims at analyzing the role that China has played throughout the substantive historical development of the crime of aggression, demonstrating a sharp inclination in the maintenance of international peace and security. Such state behavior seems to reflect national and international political mechanisms that gravitate around a distinct rationale that involves a share of culture and tradition.

Keywords: maintenance of peace and security, cultural expression of justice, crime of aggression, China

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Authors: Dorota Habrat

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In Polish law, the idea of the introduction of corporate responsibility for crimes is becoming more popular and creates a lot of questions. The need to introduce into the Polish legal system liability of corporate (collective entities) has resulted, among others, from the Polish Republic's international commitments, in particular related to membership in the European Union. The Act of 28 October 2002 on the liability of collective entities for acts prohibited under penalty is one of the example of adaptation of Polish law to Community law. Introduction to Polish law a criminal nature liability of corporations (legal persons) has resulted in a lot of controversy and lack of acceptance from both the scientific community as well as the judiciary. The responsibility of collective entities under the Act has a criminal nature. The main question concerns the ability of the collective entity to be brought to guilt under criminal law sense. Polish criminal law knows only the responsibility of individual persons. So far, guilt as a personal feature of action, based on the ability of the offender to feel in his psyche, could be considered only in relation to the individual person, while the said Act destroyed this conviction. Guilt of collective entity must be proven under at least one of the three possible forms: the guilt in the selection or supervision and so called organizational guilt. The next question is how the principle of proportionality in relation to criminal measures in response of collective entities should be considered. It should be remembered that the legal subjectivity of collective entities, including their rights and freedoms, is an emanation of the rights and freedoms of individual persons which create collective entities and through these entities implement their rights and freedoms. The adopted Act largely reflects the international legal regulations but also contains the unknown and original legislative solutions.

Keywords: criminal corporate responsibility, Polish criminal law, legislative solutions, Act of 28 October 2002

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Authors: Natalia Selezneva

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The level of crime depends on a number of factors, such as political and economic instability, social inequality and ineffective legislation. A special place in the overall level of crime takes juvenile delinquency. United Nations Standard Minimum developed rules for the administration of juvenile justice (The Beijing Rules), in order to ensure the rights of juvenile offenders under the various legal systems. Most countries support these recommendations, and Russia is no exception. Russia's criminal code establishes the minimum age of criminal liability; types of crimes for which the possible involvement of minors to justice; punishment; sentencing and execution of punishment for minors. However, these provisions cause heated debates in the scientific literature. The high level of juvenile crime indicates the ineffectiveness of legal regulation of criminal liability of minors. In order to ensure compliance with international standards require new and modern approaches to improve national legislation and practice of its application. Achieving this goal will be achieved through the following tasks: 1. Create sub-branches of law regulating the legal status of minors; 2. Improving the types of penalties; 3. The possibility of using alternative measures; 4. The introduction of the procedure of extrajudicial settlement of the conflict. The criminal law of each country depends on the historical, national and cultural characteristics. The development of the Russian legislation taking into account international experience is extremely essential and will be a new stage in the formation of a legal state, especially in the sphere of protection of the rights of juvenile offenders.

Keywords: criminal law, juvenile offender, punishment, the age of criminal responsibility

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Authors: Tamas Bezsenyi, Noemi Katona

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Fighting Human Trafficking is a highly important issue worldwide that states need to deal with in international politics. In the EU combatting human trafficking is emphasized in international policy making and also in the work of international law enforcement, thus in the work of the EUROPOL. While the EU Directive against Human Trafficking prescribes how states should fight this transnational crime and also how victims should be assisted, the EUROPOL focuses on the effective cooperation between national law enforcement agencies. However, despite the aims of the common fight, human trafficking is regulated differently in the punitive law of various nation states. This deeply defines the work and possibilities of national law enforcement organizations. Among the manifold differences in this paper, we focus on the role of regulating asset recovery. We highlight that money, and the regulation and practice how the law enforcement deals with income gained from criminal activities, play essential role in combatting human trafficking. While doing research on the investigation of transnational human trafficking by the Hungarian Law Enforcement Agencies, we have found that the unfortunate regulation of asset recovery determines the lower effectiveness of eliminating criminal organizations. While i.e. in the Netherlands confiscation of property takes place in an early stage of the criminal procedure, in Hungary it can be conducted only if money laundering is also assumed. Our presentation builds on the comparison of criminal procedures which we analyse based on criminal files and interviews with coworkers of the National Bureau of Investigation.

Keywords: human trafficking, law enforcement, asset recovery, organized crime

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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: Girma Y. Iyassu Menelik

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The international community has gone through indescribable atrocities resulting from acts of war. These atrocities turned Europe and Africa into a wilderness of bloodshed and crime. In the period 1960- 1970s Africa witnessed unprecedented and well-documented assaults on life and property. This necessitated the adoption, signing and ratification of the International Criminal Court, establishment of the International Court of Justice which is a great achievement for the protection and fulfilling of human rights in the context of international political instability. The ICC came as an important opportunity to advance justice for serious crimes committed in violation of international law. Thus the Rome statute has become a formidable contribution to peace and security. There are concerns that the ICC is targeting African states. However, the ICC cannot preside over cases that are not parties to the Rome statute unless the UN Security council refers the situation or the relevant state asks the court to become involved. The instable international political situation thus deals with criminal prosecutions where amnesty is not permissible or is strongly repudiated. The court has become important justice instruments for states that are unable or unwilling to fulfill their obligation to address legacies of massive human rights violations. The ICJ as a court has a twofold role; to settle legal disputes submitted to it by states, and to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and specialized agencies. All members of the UN are ipso facto parties to the statute of the ICJ. The court gives advisory opinion on any legal question. These courts are the most appropriate fora to pronounce on international crimes and are in a better position to know and apply international law. Cases that have been brought to the courts include Rwanda’s genocide, Liberia’s Charles Taylor etc. The receptiveness and cooperation of the local populations are important to the courts and if the ICC and ICJ can provide appropriate protections for the physical and economic safety of victims then peace and human rights observance can be attained. This paper will look into the effectiveness and impediments of these courts in handling criminal and injustices in international politics as while as what needs to be done to strengthen the capacity of these courts.

Keywords: ICC, international politics, justice, UN security council, violence, protection, fulfilling

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Authors: László Schmidt

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In the context of artificial intelligence, we need to pay primary and particular attention to ethical principles not only in the design process but also during the application process. According to the European Commission's Ethical Guidelines, AI must have three main characteristics: it must be legal, ethical and stabil. We must never lose sight of the ethical principles because we risk that this new technology will not help democratic decision-making under the rule of law, but will, on the contrary, destroy it. The rapid spread and use of artificial intelligence poses an enormous challenge to both lawmaking and law enforcement. On legislation because AI permeates many areas of our daily lives that the legislator must regulate. We can see how challenging it is to regulate e.g., selfdriving cars/taxis/vans etc. Not to mention, more recently, cryptocurrencies and Chat GPT, the use of which also requires legislative intervention, from copyright to scientific use and even law of succession. Artificial intelligence also poses an extraordinary challenge to law enforcement. In criminal cases, police and prosecutors can make great use of AI in investigations, e.g. in forensics, DNA samples, reconstruction, identification, etc. But it can also be of great help in the detection of crimes committed in cyberspace. In criminal or civil court proceedings, AI can also play a major role in the evaluation of evidence and proof. For example, a photo or video or audio recording could be immediately revealed as genuine or fake. Likewise, the authenticity or falsification of a document could be determined much more quickly and cheaply than with current procedure (expert witnesses). Neither the current Hungarian Civil Procedure Act nor the Criminal Procedure Act allows the use of artificial intelligence in the evidentiary process. However, this should be changed. To use this technology in court proceedings would be very useful. The procedures would be faster, simpler, and therefore cheaper. Artificial intelligence could also replace much of the work of expert witnesses. Its introduction into judicial procedures would certainly be justified, but with due respect for human rights, the right to a fair trial and other democratic and rule of law guarantees.

Keywords: artificial intelligence, judiciary, Hungarian, court practice

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Authors: Narayani Sepaha

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In earlier days, the sufferer was burdened to prove the offence as well as to put the offender to punishment. The adversary system of legal procedure was characterized simply by two parties: the prosecution and the defence. With the onset of this system, firstly the judge started acting as a neutral arbitrator, and secondly, the state inadvertently started assuming the lead role and thereby relegated the victims to the position of oblivion. In this process, with the increasing role of police forces and the government, the victims got systematically excluded from the key stages of the case proceedings and were reduced to the stature of a prosecution witness. This paper tries to emphasise the increasing control over the various stages of the trial, by other stakeholders, leading to the marginalization of victims in the trial process. This monopolization has signalled the onset of an era of gross neglect of victims in the whole criminal justice system. This consciousness led some reformists to raise their concerns over the issue, during the early part of the 20th century. They started supporting the efforts which advocated giving prominence to the participation of victims in the trial process. This paved the way for the evolution of the science of victimology. Markedly the innovativeness to work out facts, seek opinions and statements of the victims and reassure that their voice is also heard has ensured the revival of their rightful roles in the justice delivery system. Many countries, like the US, have set an example by acknowledging the advantages of participation of victims in trials like in the proceedings of the Ariel Castro Kidnappings of Cleveland, Ohio and enacting laws for protecting their rights within the framework of the legal system to ensure speedy and righteous delivery of justice in some of the most complicated cases. An attempt has been made to flag that the accused have several rights in contrast to the near absence of separate laws for victims of crime, in India. It is sad to note that, even in the initial process of registering a crime the victims are subjected to the mercy of the officers in charge and thus begins the silent suffering of these victims, which continues throughout the process of their trial. The paper further contends, that the degree of victim participation in trials and its impact on the outcomes, can be debated and evaluated, but its potential to alter their position and make them regain their lost status cannot be ignored. Victim participation in trial proceedings will help the court in perceiving the facts of the case in a better manner and in arriving at a balanced view of the case. This will not only serve to protect the overall interest of the victims but will act to reinforce the faith in the criminal justice delivery system. It is pertinent to mention that there is an urgent need to review the accused centric prosecution system and introduce appropriate amendments so that the marginalization of victims comes to an end.

Keywords: victim participation, criminal justice, India, trial, marginalised

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Authors: Aleksandra Czubak

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The need to present evidence in civil proceedings is essential for getting the right result. It is for this reason that it is particularly important for the parties to present the most relevant and convincing evidence to the Court. Therefore, parties often try to gain evidence, even when the acquisition of such evidence is in breach of the law. Firstly, there will be discussed how evidence is applied in the Polish civil process and the Polish regulations of the evidence proceedings; with specific reference to evidence of major importance in the developing world. Further, it will be discussed the controversies connected with the admission of illegally gained evidence in civil proceedings. The credibility of the various measures is circumstantial and can only be determined by factors related to the recognized problem. For that reason, it is not the amount of evidence, but the value and relevance of this evidence that should be considered in determining the right result. This paper will also consider whether the end justifies the means? How far should parties go in order to achieve a favorable sentence or to create stronger evidence? Methods of persuasion of the court, as well as the acquisition of evidence, are not always fair and moral. It is on this area of controversy that this essay will focus. This paper concludes by considering the value of evidence and the possibility of using it to achieve a just sentence. Examples are based on Polish law; nevertheless, they encompass ideas common to most civil jurisdictions.

Keywords: civil proceedings, Europe (Poland), evidence, law

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Authors: Uche A. Nnawulezi

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The evolving global environment has as of late seen formative difficulties bordering on cyber crime and its attendant effects. This paper looks at what constitutes an offense of cyber crime under the tenets of International Law as no nation can lay bona-fide claim in managing cyber crime as a criminal phenomenon. Therefore, there has been a plethora of ideological, conceptual and mental propositions of policies aimed at domesticating cyber crimes – an international crime. These policies were as a result of parochial consideration and social foundations which negate the spirit of internationally accepted procedures. The study also noted that the non-domestication of cyber crime laws by most countries has led to an increase in cyber crimes and its attendant effects have remained unabated. The author has pointed out emerging international rules as a panacea for a sustainable cyber crime-free society. The paper relied on documentary evidence and hence scooped much of the data from secondary sources such as text books, journals, articles and periodicals and more so, opinion papers, emanating from international criminal court. It concludes that the necessary recommendations made in this paper, if fully adopted, shall go a long way in maintaining a cyber crime-free society. Ultimately, the domestic and international law mechanisms capable of dealing with cyber crime offenses should be expanded and be made proactive in order to deal with the demands of modern day challenges.

Keywords: criminology, cyber crime, domestic law, international law

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Authors: Miguel Manero De Lemos

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The ‘innovative and creative’ seminal decision of the Special Tribunal for Lebanon (STL) was not welcomed by academic opinion. The court recognized that terrorism is a crime under international law in times of peace. Scholars widely – and sometimes aggressively – criticize this conclusion. This article asserts that, while some aspects of the decision of the STL might be defective, the basic premise, that it is indeed such a crime, is sound. This article delves into the method that the court used to attain such an outcome and explains why the conclusion of the court is correct, albeit the use of a different method is to be preferred. It also argues that subsequent developments leave little room to keep arguing that there is no international crime of terrorism.

Keywords: terrorism, STL, crime, international criminal law

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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: Annabelle Onyefulu-Kingston

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One of the major purposes of AI today is to evaluate and analyze millions of micro and macro data in order to determine what is relevant in a particular case and proffer it in an adequate manner. Microdata, as far as it relates to AI in international arbitration, is the millions of key issues specifically mentioned by either one or both parties or by their counsels, arbitrators, or arbitral tribunals in arbitral proceedings. This can be qualifications of expert witness and admissibility of evidence, amongst others. Macro data, on the other hand, refers to data derived from the resolution of the dispute and, consequently, the final and binding award. A notable example of this includes the rationale of the award and specific and general damages awarded, amongst others. This paper aims to critically evaluate and analyze the possibility of technological inclusion in international arbitration. This research will be imploring the qualitative method by evaluating existing literature on the consequence of applying AI to both micro and macro data in international arbitration, and how this can be of assistance to parties, counsels, and arbitrators.

Keywords: AI-based technologies, algorithms, arbitrators, international arbitration

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Authors: Lucia Silveira Alda

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This research aims to analyze critically a set of studies published in the Proceedings of the International Conference on Mobile Learning of IADIS, from 2008 until 2012, which addresses the issue of foreign language learning mediated by mobile phones. The theoretical review of this study is based on the Vygotskian assumptions about tools and mediated learning and the concepts of mobile learning, CALL and MALL. In addition, the diffusion rates of the mobile phone and especially its potential are considered. Through systematic review and meta-analysis, this research intended to identify similarities and differences between the identified characteristics in the studies on the subject of language learning and mobile phone. From the analysis of the results, this study verifies that the mobile phone stands out for its mobility and portability. Furthermore, this device presented positive aspects towards student motivation in language learning. The studies were favorable to mobile phone use for learning. It was also found that the challenges in using this tool are not technical, but didactic and methodological, including the need to reflect on practical proposals. The findings of this study may direct further research in the area of language learning mediated by mobile phones.

Keywords: language learning, mobile learning, mobile phones, technology

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Authors: Á. L. Bendes

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By the end of the second decade of the 21st century, artificial intelligence (AI) has become an unavoidable part of everyday life and has necessarily aroused the interest of researchers in almost every field of science. This is no different in the case of jurisprudence, whose main task is not only to create its own theoretical paradigm related to AI. Perhaps the biggest impact on digital crime is artificial intelligence. In addition, the need to create legal frameworks suitable for the future application of the law has a similar importance. The prognosis according to which AI can reshape the practical application of law and, ultimately, the entire legal life is also of considerable importance. In the past, criminal law was basically created to sanction the criminal acts of a person, so the application of its concepts with original content to AI-related violations is not expected to be sufficient in the future. Taking this into account, it is necessary to rethink the basic elements of criminal law, such as the act and factuality, but also, in connection with criminality barriers and criminal sanctions, several new aspects have appeared that challenge both the criminal law researcher and the legislator. It is recommended to continuously monitor technological changes in the field of criminal law as well since it will be timely to re-create both the legal and scientific frameworks to correctly assess the events related to them, which may require a criminal law response. Artificial intelligence has completely reformed the world of digital crime. New crimes have appeared, which the legal systems of many countries do not or do not adequately regulate. It is considered important to investigate and sanction these digital crimes. The primary goal is prevention, for which we need a comprehensive picture of the intertwining of artificial intelligence and digital crimes. The goal is to explore these problems, present them, and create comprehensive proposals that support legal certainty.

Keywords: artificial intelligence, chat forums, defamation, international criminal cooperation, social networking, virtual sites

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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: Marcus Smith

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DNA profiling has made a valuable contribution to criminal investigations over the past thirty years. Direct matching DNA profiles from a crime scene and suspect, or between a suspect and a database remain of great importance to crimes such as murder, assault, and property theft. As scientific and technological advancement continues, a wide range of new DNA profiling applications has been developed. The application of new techniques involves an interesting balancing act between admitting probative evidence in a criminal trial, evaluating its degree of relevance and validity, and limiting its prejudicial impact. The impact of new DNA profiling applications that have significant implications for law enforcement and the legal system can be evaluated through a review of relevant case law, legislation and the latest empirical evidence from jurisdictions around the world including the United States, United Kingdom, and Australia. There are benefits in further examining the implications of these new developments, including how the criminal law can best be adapted to ensure that new technology is used to enhance criminal investigation and prosecution while ensuring it is applied in a measured way that respects individual rights and maintains principles of fairness enshrined in the legal system.

Keywords: criminal procedure, forensic evidence, DNA profiling, familial searching, phenotyping

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Authors: Thu Thuy Nguyen

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In recent years, mediation has gained a great attention from many jurisdictions thanks to its advantages. With respect to Asia, mediation has a long history of development in this region with various types to amicably settle disputes in civil and commercial issues. The modern mediation system in several Asian countries and territories comprises three main categories, namely court-annexed mediation, mediation within arbitral proceedings and institutional mediation. Court-annexed mediation (or in-court mediation) is mediation conducted by the court in the course of judicial procedures. In dealing with cross-border business disputes, in-court mediation exposes a number of advantages in comparison with two other types of mediation, especially in terms of enforcement of final result. However, the confidentiality of mediation process in subsequent judicial proceedings, qualifications of court judges and the issue of recognition and enforcement of foreign judgment are normally seen as drawbacks of court-annexed mediation as in court-annexed mediation judges will be casts as dual roles as both mediator and ultimate adjudicator in the same dispute. This paper will examine the strengths and weaknesses of in-court mediation in settling transnational business disputes in selected Asian countries, including China, Hong Kong, Japan, Singapore and Vietnam.

Keywords: court-annexed mediation, international commercial disputes, Asia, strengths and weaknesses

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Authors: Muthukuda Arachchige Dona Shiroma Jeeva Shirajanie Niriella

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Suppressing terrorism and ensuring peace and security of the people is one of the topics which have gained serious attention of the world community. Commissions of terrorist activities, locally and internationally lead to an uncertainty of peace and security, violations of human rights of the people. Thereby it demands stringent security laws and strong criminal justice systems, both at domestic and international levels. This paper intends to evaluate security laws in Sri Lanka through the criminal justice perspective, including their efficacy in relation to combat terrorism. The paper further intends to discuss the importance of such laws in upholding the peace and security at both local and universal levels. The paper argues that the term ‘efficacy’ does not stand for, sending people to jail at large-scale, but the ability to combat terrorism crime without violating the rights of the innocent people. The qualitative research method is followed to conduct this research which contains an extensive examination of security laws available as counter-terrorism laws in Sri Lanka with the relevant international standards adopted by the UN treaties. Primary sources which are relevant to the research, including judicial pronouncements are also discussed in this regard. Secondary sources such as reports, research articles and textbooks on this topic and information available on the internet are also reviewed in this analysis.

Keywords: terrorism, security laws, criminal justice system, Sri Lanka, international treaty law

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Authors: Celina Nowak

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The development of information and communication technologies (ICT) and a consequent growth of cyberspace have become a reality of modern societies. The newest addition to this complex structure has been Internet of Things which is due to the appearance of smart devices. IoT creates a new dimension of the network, as the communication is no longer the domain of just humans, but has also become possible between devices themselves. The possibility of communication between devices, devoid of human intervention and real-time supervision, generated new societal and legal challenges. Some of them may and certainly will eventually be connected to criminal law. Legislators both on national and international level have been struggling to cope with this technologically evolving environment in order to address new threats created by the ICT. There are legal instruments on cybercrime, however imperfect and not of universal scope, sometimes referring to specific types of prohibited behaviors undertaken by criminals, such as money laundering, sex offences. However, the criminal law seems largely not prepared to the challenges which may arise because of the development of IoT. This is largely due to the fact that criminal law, both on national and international level, is still based on the concept of perpetration of an offence by a human being. This is a traditional approach, historically and factually justified. Over time, some legal systems have developed or accepted the possibility of commission of an offence by a corporation, a legal person. This is in fact a legal fiction, as a legal person cannot commit an offence as such, it needs humans to actually behave in a certain way on its behalf. Yet, the legislators have come to understand that corporations have their own interests and may benefit from crime – and therefore need to be penalized. This realization however has not been welcome by all states and still give rise to doubts of ontological and theoretical nature in many legal systems. For this reason, in many legislations the liability of legal persons for commission of an offence has not been recognized as criminal responsibility. With the technological progress and the growing use of IoT the discussions referring to criminal responsibility of corporations seem rather inadequate. The world is now facing new challenges and new threats related to the ‘smart’ things. They will have to be eventually addressed by legislators if they want to, as they should, to keep up with the pace of technological and societal evolution. This will however require a reevaluation and possibly restructuring of the most fundamental notions of modern criminal law, such as perpetration, guilt, participation in crime. It remains unclear at this point what norms and legal concepts will be and may be established. The main goal of the research is to point out to the challenges ahead of the national and international legislators in the said context and to attempt to formulate some indications as to the directions of changes, having in mind serious threats related to privacy and security related to the use of IoT.

Keywords: criminal law, internet of things, privacy, security threats

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Authors: Muhammad Tanziel Aziezi

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In Indonesia, pre-trial (in Indonesia called ‘praperadilan’) is a mechanism that is regulated on Criminal Procedure Code as a form of oversight and check and balance on the process at the stage of inquiry, investigation, and prosecution, so that actions taken by the State (in this case, the police and prosecutor) is carried out in accordance with its authority and not violate human rights. Article 77 of the Criminal Procedure Code has been set that the object may be filed pretrial is just about the lawfulness of the arrest, the lawfulness of the detention, and the legitimacy of stopping investigation and prosecution. However, since the beginning of 2015, there was a further object which is then entered as a pre-trial object, namely the lawfulness of the determination of a criminal suspect. This is because the determination of the suspect is considered as one of the forceful measures that could restrict the rights of a person, so the implementation should have oversight and checks and balances by the courts. This paper will discuss the development of the pre-trial on the lawfulness of the determination of a criminal suspect as a new judicial mechanism as the protection of human rights in Indonesia.

Keywords: criminal procedure law, pre-trial, lawfulness of determination of a criminal suspect, check and balance by the court

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Authors: Nazia Yaqub

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Globally, the number of cases of international parental child abduction has remained consistent in the past decade despite the legal provision designed to prevent and deter abduction, and so it appears the current legal approach to prevent abduction is lacking. Reflecting on the findings of an empirical study conducted by the author between 2017-19 on parental abduction from the UK, the article considers a solution to the predicament of protecting children at risk of abduction through electronic monitoring. The electronic monitoring of children has negative connotations, particularly in its use in the criminal justice system, yet in the context of family law proceedings, the article considers whether electronic monitoring could serve a protective rather than a punitive purpose. The article reflects on the use of electronic monitoring in parental abduction cases by the Family Courts and examines the ethical considerations of the proposal, drawing on the rights found in the European Convention on Human Rights and the UN Convention on the Rights of the Child.

Keywords: law, parental child abduction, electronic monitoring, legal solutions

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Authors: Jeanne-Mari Retief

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As of November 2016, three African states have withdrawn from the International Criminal Court (ICC) and more are expected to follow. The alleged abuse of universal jurisdiction and targeting of African states by the ICC motivated the withdrawals. These historical exits raise many questions, especially in regard to the adequate investigation and prosecution of international crimes in a continent with a history of impunity. Even though African courts exist and one more is proposed, many issues remain i.e. adequate access to the courts, the extent of the courts’ jurisdiction, and proposed methods of effectively dealing with international crimes in Africa. This paper seeks to address the practical effects of the withdrawal from the ICC and the problems posed through utilizing regional courts. It will specifically look at the practical challenges existing courts face, the lack of access to the latter, issues concerning the proposed African Court for Justice and Human Rights, and the shocking promotion of impunity in Africa. These all have severe implications for African citizens and victims of the most heinous crimes. The mantra of African solutions to African problems places an important duty on states to ensure the actual provision of these solutions, which can only be achieved through a critical analysis of the questions above.

Keywords: ACJHR, Africa, impunity, justice, Malabo protocol

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Authors: M. Wangai

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Following the promulgation of a new Constitution of Kenya in 2010, wide-ranging proposals for reform of the criminal justice system have been made. Proposed measures include a clear and separate system of dealing with juvenile offenders with a greater focus on rehabilitation and reintegration. As part of a broader constitutional transition, this article considers the contribution of restorative justice to reforming the youth justice system. The paper analyses Kenya’s juvenile justice legal framework measured against current international trends in youth justice. It identifies the first post-independence juvenile justice system as a remnant of the colonial period and notes that the post-2001 system is a marked improvement. More recent legal and institutional efforts to incorporate restorative justice are also examined. The paper advocates further development of the juvenile justice system by mainstreaming of restorative justice principles through national level legislative amendments. International and comparative perspectives are used to inform a diversion centered model of restorative justice. In addition, a case is made for the use of existing forms of alternative dispute resolution. Conscious of a tense political climate, the paper also proposes strategies to address challenges posed by a punitive penal environment, chiefly the linking of restorative justice to wider democratic goals and community spirit. The article concludes that restorative justice led juvenile justice reform will contribute to better treatment of young offenders under the criminal justice system and has the potential to set a new precedent for fair, sustainable and effective justice. Further, as part of far-reaching criminal justice reform, the proposed efforts may strengthen democratic progress in Kenya’s ensuing phase of political transition.

Keywords: constitutional transition, criminal justice, restorative justice, young offenders

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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: Simphiwe Phungula

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In the past few years, the impact of Covid 19 in South Africa has given rise to the need for business rescue proceedings where businesses are financially distressed. Even more, the looting unrest and floods in certain parts of South Africa have also played an impact on businesses’ financial stress. To help financially distressed companies in South Africa, the Companies Act (“the Act”) has introduced a business rescue procedure aimed at helping those ailing companies. This mechanism is aimed at rehabilitating financially distressed companies so that they become solvent again and if it is not possible, results in a better return for the company’s creditors or shareholders than would result from the immediate liquidation of the company. Unfortunately, since the introduction of business rescue, evidence has shown that sometimes companies resort to business rescue proceedings to seek refuge from creditors even if the facts do not justify that the company should commence business rescue. In most cases, the abuse of business rescue is done by directors who pass a resolution that the company should embark on business rescue even if evidence shows that the company should not commence the proceedings. This is done notwithstanding the principles of King Code IV which requires ethics and good governance on the part of directors. This paper demonstrates how the abuse of business rescue can impact the principles of good governance and ethics of King Code IV. It argues that directors should rethink their corporate practices, and ethical standards when passing a resolution to commence business rescue proceedings.

Keywords: business rescue, king code, corporate governance, ethics

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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: 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: Samuel Holder

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Mass incarceration in the United States is a human rights issue, not merely a civil rights problem. It is a human rights problem not only because the United States has a high rate of incarceration, but more importantly because of who is jailed, for what purpose they are jailed and, ultimately, the manner in which they are jailed. To sustain the scale of the criminal justice system, one of the darker policies involves a multi-tiered strategy of fee- and fine-collection, targeting, usually, the most vulnerable and poor, many of whom run into the law via small offenses that do not rise to the level of felonies. This paper advances the notion that this debt collection-to-incarceration pipeline is tantamount to a modern-day debtors’ prison system. This article seeks to confront the thorny issue of incarceration via criminal justice debt from a human rights and cause-lawyering position. It will argue that a two-pronged cause-lawyering strategy: the first focused on traditional litigation along constitutional grounds, and the second, an advocacy approach rooted in grassroots campaigns, designed to shift the normative operation and understanding of the rights of marginalized and racialized offenders. Ultimately, the argument suggests that this approach will be effective in combatting the (often highly privatized) criminal justice debt system and bring the roles of 'incapacitation, rehabilitation, deterrence, and retribution' back into the criminal justice legal conversation. Part I contextualizes and historicizes the role of fees, penalties, and fines in American criminal justice. Part II examines the emergence of private industry in the criminal justice system, and its role in the acceleration of profit-driven criminal justice debt collection and incarceration. Part III addresses the failures of the federal and state law and legislation in combatting predatory incarceration and debt collection in the criminal justice system, particularly as waged against the indigent and/or ethnically or racially marginalized. Part IV examines the potential for traditional cause-lawyering litigation along constitutional grounds, using case studies across contexts for illustration. Finally, Part V will review the radical cause-lawyer’s role in the normative struggle in redefining prisoners’ rights and the rights of the marginalized (and racialized) as they intersect at the crossroads of criminal justice debt. This paper will conclude with recommendations for litigation and advocacy, drawing on hypotheses advanced, and informed by case studies from a variety of both national and international jurisdictions.

Keywords: cause-lawyering, criminal justice debt, human rights, judicial fees

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Authors: S. Tavuyanago

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Cartels within the international competition law framework have been dubbed the most egregious of competition law violations; this is because they entail a concerted effort by two or more competitor firms to knowingly ‘rob’ consumers of their welfare through their cooperation instead of competition. The net effect of cartel conduct is that the market is distorted as the colluding firms gain enough market power to constrain the supply of goods or services, ultimately driving up prices. As a result, consumers end up paying inflated prices for goods and services, which eventually affects their welfare. It is against this backdrop that competition authorities worldwide have mounted a robust fight against the proliferation of cartels. In South Africa, the fight against cartels saw an amendment to the Competition Act to allow for criminal prosecution of individuals who cause their firms to take part in cartels. The Competition Amendment Act 1 of 2009 introduced section 73A into the principal Competition Act, making it a criminal offence to engage in cartel conduct. This paper assesses the rationale for criminalisation of cartel conduct, discusses the challenges or potential challenges associated with criminalisation, and provides an evaluation of the efficacy of criminalisation of cartel conduct. It questions whether criminal sanctions for cartel conduct as a competition enforcement tool aimed at deterring such conduct are generally effective and whether they have been effective in South Africa specifically. It concludes by offering recommendations on how to effectively root out cartels.

Keywords: cartels, criminalisation, competition, deterrence, South Africa

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