DOCSLIB.ORG

Terrorism, Criminal Law and Politics

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

Terrorism, Criminal Law and Politics Recent atrocities have ensured that terrorism and how to deal with terrorists legally and politically has been the subject of much discussion and debate on the international stage. This book presents a study of changes in the legal treatment of those perpetrating crimes of a political character over several decades. It most centrally deals with the political offence exception and how it has changed. The book looks at this change from an international perspective with a particular focus on the United States. Interdisciplinary in approach, it examines the fields of ter- rorism and political crime from legal, political science and criminological perspec- tives. It will be of interest to a broad range of academics and researchers, as well as to policymakers involved in creating new anti-terrorist policies. Julia Jansson holds a Doctor of Laws degree from the University of Helsinki, Finland. Transnational Criminal Justice The concept of ‘transnational criminal justice’ has frequently been interpreted in the academic literature as ‘international criminal justice’ or ‘global criminal justice.’ Many publications that use the term ‘transnational’ therefore discuss international criminal justice and international legal frameworks. Another form of study that has developed under the umbrella of transnationality in the field of criminal law is comparative. There has hence been a move from the terminology of ‘international,’ ‘global’ and ‘comparative’ criminal justice towards ‘transnational’ criminal justice. This series considers these developments, but focuses primarily on publica- tions that adhere to a more literal interpretation of the term ‘transnational.’ The aim of the series is to provide a forum for discussion of bilateral and multilat- eral relationships between nations in the field of criminal justice. International law influences these relationships but is not the focus here. Equally, to explain transnational relationships, comparative analyses are required. While incorporat- ing comparative studies in this series, the aim is the explanation of challenges to criminal justice cooperation in bilateral or multilateral relationships. Series Editor Saskia Hufnagel, Queen Mary University of London, UK Titles in this series: Police Cooperation and Sovereignty in the EU Norway’s Lessons for Europe Synnøve Ugelvik Criminal Networks and Law Enforcement Global Perspectives on Illegal Enterprise Saskia Hufnagel and Anton Moiseienko Terrorism, Criminal Law and Politics The Decline of the Political Offence Exception to Extradition Julia Jansson For more information about this series, please visit: https://www.routledge.com/Transnational-Criminal-Justice/book-series/ TRANSCJ Terrorism, Criminal Law and Politics The Decline of the Political Offence Exception to Extradition Julia Jansson First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 Julia Jansson The right of Julia Jansson to be identified as author of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. The Open Access version of this book, available at www.taylorfrancis. com, has been made available under a Creative Commons Attribution- Non Commercial-No Derivatives 4.0 license. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Jansson, Julia, author. Title: Terrorism, criminal law and politics / Julia Jansson. Description: Abingdon, Oxon; New York, NY: Routledge, 2019. | Series: Transnational criminal justice | Based on author’s thesis (doctoral - Helsingin yliopisto, 2018) issued under title: The death of the freedom fighter: how the threat of terrorism is suffocating the protection of political criminals. | Includes bibliographical references. Identifiers: LCCN 2019013170 | ISBN 9780367189044 (hb) | ISBN 9780429199110 (eb) Subjects: LCSH: Terrorism (International law)–Political aspects. | Terrorism–Prevention–Law and legislation. | Political crimes and offenses. | Extradition. Classification: LCC KZ7220 .J36 2019 | DDC 345/.02317–dc23 LC record available at https://lccn.loc.gov/2019013170 ISBN: 978-0-367-18904-4 (hbk) ISBN: 978-0-429-19911-0 (ebk) Typeset in Galliard by Deanta Global Publishing Services, Chennai, India Contents Abbreviations viii Key concepts ix Acknowledgements x 1 Introduction 1 1.1 A historico-legal approach 2 1.2 Structure of the book 7 2 Concepts employed 9 2.1 Political crime and terrorism 9 2.1.1 Defining political crime 9 2.1.2 Classifying political crime 15 2.1.3 Terrorism: the problem of definition 16 2.1.4 Ideologically motivated acts 20 2.1.5 Terrorism as uncivil disobedience 29 2.1.6 Terrorism as an international crime 34 2.1.7 The de- and repoliticisation of terrorism 36 2.2 Extradition: legal and diplomatic function 40 2.2.1 Reciprocal legal assistance 40 2.2.2 Extradition and human rights protections 44 2.2.3 POE versus political refuge: different legal constructions 50 2.2.4 History of the extradition of political criminals 54 2.2.5 Who is a political offender? Four tests 56 2.2.5.1 The UK: the political incidence test 57 2.2.5.2 The US application of the incidence test: In re Ezeta 1894 59 2.2.5.3 Evaluating the incidence test 62 2.2.5.4 The French injured rights theory 65 2.2.5.5 The predominance test 66 2.3 Conclusion 69 vi Contents 3 The rise and decline of romantic liberalism: From the 1800s to the 1960s 71 3.1 The emergence of the political offence exception in the 1830s 71 3.1.1 Revolution as evolution 71 3.1.2 POE becomes widely accepted 77 3.1.3 Exception to the exception: the attentat clause of 1856 85 3.1.4 Four reasons behind the political offence exception 91 3.2 The anarchist threat at the turn of the 20th century 95 3.2.1 Crime against the whole humankind 95 3.2.2 A world without rules: a political goal 96 3.2.3 The depoliticisation of anarchism in 1898 98 3.2.4 Why was anarchism depoliticised? 104 3.2.5 The 1937 convention 105 3.3 Conclusion 108 4 Taking the political out of the political: 1960s–1980s 110 4.1 Terrorism challenges the political offence exception 110 4.1.1 Gradual changes in US extradition treaties 1960s–1970s 110 4.1.2 The new revolutionary wave and the US draft convention of 1972 113 4.1.3 Politics overrule legal concerns 1970s–1980s 117 4.1.4 Interpol’s incapability towards terrorism 121 4.1.5 Terrorism alerts Europe in the 1970s 123 4.1.6 The Iranian hostage crisis provokes a global reaction in 1979 131 4.2 Reagan, Thatcher and the narrowing of the exception in the 1980s 133 4.2.1 Legislative war against terrorists 133 4.2.2 Eain v. Wilkes of 1980 as a departure from the incidence test 133 4.2.3 Terrorism starts to affect the US in the 1980s 137 4.2.4 The POE loses its justification 142 4.2.5 US–UK controversies with regard to terrorism in the 1980s 146 4.2.6 Creation of the Supplementary Treaty of 1985 151 4.2.7 Evaluating the 1985 treaty 154 4.3 Conclusion 159 Contents vii 5 Dedication to the fight against terrorism since the 1990s 161 5.1 Changes in global views on terrorism 161 5.1.1 A new understanding of terrorism in the United States 161 5.1.2 Interpol adopts a new take on terrorism since the 1980s 168 5.1.3 The UN and terrorism as unacceptable violence 172 5.1.4 Why was terrorism depoliticised? 181 5.2 Dismantling the political offence exemption 186 5.2.1 Terrorism as an ‘evil ideology’ since 2001 186 5.2.2 The EAW of 2004 and the annihilation of the POE 188 5.2.3 The POE in modern days 194 5.2.4 Applying the POE in the 2000s 198 5.2.5 “Ballot rather than the bomb”: fixing the POE 201 5.3 The repoliticisation of terrorism 211 5.3.1 Do bad motives make worse criminals? 211 5.3.2 Do terrorists have human rights? 214 5.3.3 A threat to democracy 221 5.4 Conclusion 223 6 Conclusion: Protecting political offenders: pipe dream of romantic liberalism? 225 6.1 The demise of the political offence exception 225 6.2 The delegitimisation of terrorism 228 6.3 Final questions 230 7 Summary 233 8 Sources and bibliography 235 Appendix 263 Index 279 Abbreviations BIA Board of Immigration Appeals (USA) CAT UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CPT European Committee for the Prevention of Torture and Inhuman Treatment or Punishment of the Council of Europe ECHR European Convention of Human Rights ECST European Convention on the Suppression of Terrorism EEC European Economic Community ETA Euskadi Ta Askatasuna (Basque separatist and nationalist organisation) ETS European Treaty Series EU European Union FLN Front de Libération Nationale (France) FLNC Fronte di Liberazione Nazionalu Corsu (Corsica) FRG Federal Republic of Germany GMT Multidisciplinary Group on International Action against Terrorism (EU) ICCPR International Covenant for Civil and Political Rights IHL International Humanitarian Law IHRL International Human Rights Law Interpol International Criminal Police Organisation NSA National Security Agency (USA) PIRA Provisional Irish Republican Army PLF Palestinian Liberation Front PLO Palestinian Liberation Organisation POE political offence exception UDHR Universal Declaration of Human Rights UN United Nations UNHCR United Nations High Commissioner for Refugees UN GA United Nations General Assembly UN GA RES United Nations General Assembly Resolution UN SC United Nations Security Council UNTS United Nations Treaty Series Key concepts Attentat clause – A clause in extradition treaties limiting the application of the political offence exception (POE) so that it does not cover attacks against the lives of heads of state.
Recommended publications
  • Buenos Aires, 26 February 2015. in This Court Case No. 777/2015, Styled

    Buenos Aires, 26 February 2015. in This Court Case No. 777/2015, Styled

    Buenos Aires, 26 February 2015. In this Court Case No. 777/2015, styled: “Fernández de Kirchner Cristina y otros s/encubrimiento” [on cover-up] registered with Clerk’s Office No. 5 of this Court; Background These proceedings were initiated as a result of the accusation made on 14 January 2015, within the framework of Case No. 3446/2012, entitled “Velazco, Carlos Alfredo y otros por abuso de autoridad y violación de los deberes de funcionario público” [on abuse of authority and breach of the duties of public officials] —Court No. 4 in Federal Criminal and Correctional Matters for the City of Buenos Aires, Clerk’s Office No. 8— by Alberto Nisman, General Prosecutor in charge of the Prosecutorial Investigation Unit dealing with the bombings of 18 July 1994 against the AMIA building. In his accusation, said Prosecutor informed about the existence of an alleged “criminal plan” purportedly intended to give impunity to the Iranian nationals accused in that case —who are fugitives since 2007— in order for them to be able to escape the investigation and be released from any measures taken by the Argentine courts with jurisdiction over the case. As stated in such accusation, the scheme was allegedly carried out by “high authorities of the Argentine federal government, with the cooperation of third parties, which entails a criminal action that constitutes, a priori, the following offences: aggravated cover-up, prevention or hindrance of the performance of official duties, and breach of the duties incumbent upon public officials (Sections 277 (1) and (3), 241 (2) and 248 of the Criminal Code).” Preliminary Considerations First, it bears noting that this Court is fully aware of the widespread and major — domestic and international— public and institutional repercussion of the accusation made by Alberto Nisman, in his capacity as General Prosecutor in charge of the Prosecutorial Investigation Unit dealing with the bombings of 18 July 1994 against the AMIA bombings, which has been the starting point of these proceedings.
  • 'Transnational Criminal Law'?

    'Transnational Criminal Law'?

    MFK-Mendip Job ID: 9924BK--0085-3 3 - 953 Rev: 27-11-2003 PAGE: 1 TIME: 11:20 SIZE: 61,11 Area: JNLS OP: PB ᭧ EJIL 2003 ............................................................................................. ‘Transnational Criminal Law’? Neil Boister* Abstract International criminal law is currently subdivided into international criminal law stricto sensu — the so-called core crimes — and crimes of international concern — the so-called treaty crimes. This article suggests that the latter category can be appropriately relabelled transnational criminal law to find a doctrinal match for the criminological term transnational crime. The article argues that such a relabelling is justified because of the need to focus attention on this relatively neglected system, because of concerns about the process of criminalization of transnational conduct, legitimacy in the development of the system, doctrinal weaknesses, human rights considerations, legitimacy in the control of the system, and enforcement issues. The article argues that the distinction between international criminal law and transnational criminal law is sustainable on four grounds: the direct as opposed to indirect nature of the two systems, the application of absolute universality as opposed to more limited forms of extraterritorial jurisdiction, the protection of international interests and values as opposed to more limited transnational values and interests, and the differently constituted international societies that project these penal norms. Finally, the article argues that the term transnational criminal law is apposite because it is functional and because it points to a legal order that attenuates the distinction between national and international. 1 Introduction The term ‘transnational crime’ is commonly used by criminologists, criminal justice officials and policymakers,1 but its complementary term, ‘transnational criminal law’ (TCL), is unknown to international lawyers.
  • Spaziergang in Genf, Lausanne, Vevey Und St

    Spaziergang in Genf, Lausanne, Vevey Und St

    Dr. Elemér Hantos-Stiftung www.swissworld.org Your Gateway to Switzerland Studienreise Schweiz 18. – 25. Juni 2011 Reiseberichte Inhaltsverzeichnis Vorwort . 1 Sonntag . 4 Genf, Genfersee, Vevey, Rivaz Montag . 8 Genf Dienstag . 11 Solothurn, Pfäffikon SZ Mittwoch . 17 Zürich, Schlieren Donnerstag . 27 Sankt Gallen Freitag . 32 Bern, Muri, der Niesen Samstag . 41 Bern, Genf Bildernachweis . 42 Abschlussredaktion: PhilipP Siegert Vorwort Die Andrássy Universität Budapest (AUB) ist die einzige deutschsprachige Universität Ungarns. Sie wird von Ungarn gemeinsam mit Österreich und Deutschland, insbesondere den Bundesländern Bayern und Baden-Württemberg getragen und auch von der Schweiz tatkräftig unterstützt. Die Gründungsidee der AUB ist es, eine Institution zur Postgradualen Ausbildung von Führungskräften für nationale, euroPäische und internationale Institutionen sowie Unternehmen zu schaffen. Neben der starken euroPäischen Orientierung weist die AUB auch einen ausgeprägten regionalen Bezug auf. Forschung und Lehre an der AUB zeichnen sich durch einen interdisziPlinären Ansatz aus. Auch hinsichtlich der Studierenden und Dozierenden ist die Universität multinational ausgerichtet. Die fruchtbare Auseinandersetzung mit kultureller Diversität bildet einen integrierenden Bestandteil des Ausbildungskonzepts. Die Schweiz leistet einen bedeutenden Beitrag zu den Zielen der AUB. Zur Zeit sind vier Dozierende aus der Schweiz mit unterschiedlich hohen Pensen an der Universität tätig. Es ist ihnen ein großes Anliegen, bei den Studierenden der AUB, die die zukünftigen Führungskräfte in den Bereichen Wirtschaft, Verwaltung, DiPlomatie und Kulturmanagement in Ost- und MitteleuroPa – aber auch der EU – repräsentieren, ein wohlwollendes Verständnis für die Schweiz zu schaffen. Verständnis setzt Wissen voraus. Aus diesem Grunde werden im Rahmen der regulären Lehrveranstaltungen an der AUB regelmäßig Fächer mit einem Schweizbezug angeboten oder wichtige Fragen der internationalen Politik und des Völkerrechts aus einer spezifisch schweizerischen Perspektive erörtert.
  • Ben Emmerson Qc Cv2011.Qxp

    Ben Emmerson Qc Cv2011.Qxp

    Ben Emmerson QC T. 020 7404 3447 (Practice Manager, Paul Venables 020 7611 7405) E. [email protected] Year of Call: 1986 Silk: 2000 Main Areas of Practice Commercial law Media and Information law Crime, criminal due process and financial Public law regulatory law International law Human Rights law Arbitration In his private practice, Ben Emmerson QC has specialised in international and domestic human rights law, international humanitarian law and international criminal law (as well as constitutional, public and public international law). He has more than 15 years experience of litigating before the European Court of Human Rights and is now independently ranked as one of the United Kingdom's top three leading practitioners at the Bar in the law of human rights and civil liberties, and as one of the United Kingdom's top five leading practitioners at the Bar in criminal law (Chambers & Partners 2011). He has extensive experience in litigation involving the law of armed conflict before international courts and tribunals. Ben is currently Special Adviser to the Prosecutor of the International Criminal Court; Special Adviser to the Appeals Chamber at the UN Khmer Rouge tribunal in Cambodia; and appointed expert adviser to the UN Counter Terrorism Task Force (CTITF) working party on Protecting Human rights while Countering Terrorism. He has appeared as lead counsel in cases involving the law of armed conflict before a number of international courts tribunals, including international criminal tribunals: Prosecutor v Ramush Haradinaj, Case No. IT-04-84-T, Judgment 3 April 2008; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (International Court of Justice) (extant); Abdelbaset Ali Mohamed Al Megrahi v HM Advocate; Georgia v Russia (ECHR inter-state application) (extant).
  • Internal Communication Clearance Form

    Internal Communication Clearance Form

    NATIONS UNIES UNITED NATIONS HAUT COMMISSARIAT DES NATIONS UNIES OFFICE OF THE UNITED NATIONS AUX DROITS DE L’HOMME HIGH COMMISSIONER FOR HUMAN RIGHTS PROCEDURES SPECIALES DU SPECIAL PROCEDURES OF THE CONSEIL DES DROITS DE L’HOMME HUMAN RIGHTS COUNCIL Mandates of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. REFERENCE: AL G/SO 214 (67-17) Terrorism (2005-4) GBR 4/2013 2 September 2013 Excellency, We have the honour to address you in our capacities as Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism pursuant to Human Rights Council resolutions 16/4 and 22/8. In this connection, we would like to bring to your Excellency’s Government’s attention information we have received concerning the detention of Mr. David Miranda, a Brazilian national transiting through London International Airport and the destruction of hard drives at the Guardian newspaper in London. According to information received: On Sunday 18 August 2013, Mr. David Miranda, a Brazilian national, was detained and questioned by United Kingdom officials for nine hours under Schedule 7 of the Terrorism Act 2000. He was travelling from Berlin to Rio de Janeiro, transiting through London. British authorities later justified Miranda’s detention on the “suspicion of the possession of highly sensitive stolen information that would help terrorism”.
  • Recommendations of Experts for Improvements in Federal Law Enforcement After Waco

    Recommendations of Experts for Improvements in Federal Law Enforcement After Waco

    If you have issues viewing or accessing this file contact us at NCJRS.gov. U.S. Department of Justice Washington,D.C. 20530 Recommendations of Experts for Improvements in Federal Law Enforcement After Waco 145688 U.S. Department of Justice National Institute of Justice This document has been reproduced exactly as received from the person or organization originating it. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the National Institute of Justice. Permission to reproduce thisllll~ material has been granted by Publ:Cc Domain U.S. Dep~nt of Justice ustice Re .......... of the N£ Recommendations of Experts for improvements in Federal Law Enforcement After Waco TABLE OF CONTENTS Mandate to the Experts Handling Hostage/Barricade Situations Robert J, Louden Ronald McCarthy Ariel Merari Dealing with Persons whose Motivations and Thought Processes are Unconventional \, Nancy T. Ammerman Robert Canero Lawrence E. Sullivan Coordinating Law Enforcement Efforts in Hostage/Barricade Situations Colin E. Birt Richard J. Davis William H. Webster O @ @ UNITED STATES GOVERNMENT MEMORANDUM J~e ~,1~3 TO: Dr. Nancy Ammerman Mr. Colin B/rt Dr. Robert Cancro Mr. Richard J. Davis Mr. Robert J. Louden Mr. Ronald M. McCarthy Dr. Ariel Merafi @ Dr. Alan A. Stone Dr. Lawrence E. Sull/van Mr..William H. Webster FROM: Philip B. Heymann ~.~. Deputy Attorney General Department of Justice Ronald IC Noble Assistant Secretary (Enforcement) Department of the Treasury Q SUBJECT: your R01e in M~g Recommendations Concerning the Handling of Incidents Such asthe Branch Davidian Standoff in Waco, Texas @ L MANDATE We would like you to assist us in addressing issues that federal law enforcement confi'0n~ ~ bani'cade/hos~g e situatiom such as the stand-off that occurred near Waco, Texas, ~tween February 28, 1993 and April 19, 1993.
  • Transnational Criminal Law

    Transnational Criminal Law

    Introduction to the Laws of Kurdistan, Iraq Working Paper Series Transnational Criminal Law Pub. 2016 Iraq Legal Education Initiative (ILEI) American University of Iraq, Sulaimani Stanford Law School Kirkuk Main Road Crown Quadrangle Raparin 559 Nathan Abbott Way Sulaimani, Iraq Stanford, CA 94305-8610 www.auis.ed.iq www.law.stanford.edu 1 Preface to the Series: Introduction to the Laws of Iraq and Iraqi Kurdistan Iraq and Iraq's Kurdistan Region is at a compelling juncture in their histories. In the wake of the transition to a democratic state, the country and region economy has prospered and its institutions have grown more complex. As institutional capacity has grown, so too has the need for a robust rule of law. An established rule of law can provide assurances to investors and businesses, while keeping checks on government and private powers and protecting citizens’ fundamental rights. Institutions of higher learning, such as universities and professional training centers, can and should play a key role in stimulating and sustaining this dynamic. Indeed, education is foundational. This paper is part of the Introduction to the Laws of Iraq and Iraqi Kurdistan, a series of working papers produced by the Iraqi Legal Education Initiative (ILEI) of Stanford Law School. This series seeks to engage Iraqi students and practitioners in thinking critically about the laws and legal institutions of Iraq and Iraqi Kurdistan. Founded in 2012, ILEI is a partnership between the American University of Iraq in Sulaimani (AUIS) and Stanford Law School (SLS). The project’ seeks to positively contribute to the development of legal education and training in Iraq.
  • REPORT No. 187/20 CASE 12.204 ADMISSIBILITY and MERITS ACTIVE MEMORY CIVIL ASSOCIATION ARGENTINA July 14, 2020

    REPORT No. 187/20 CASE 12.204 ADMISSIBILITY and MERITS ACTIVE MEMORY CIVIL ASSOCIATION ARGENTINA July 14, 2020

    OEA/Ser.L/V/II.176 REPORT No. 187/20 Doc. 200 CASE 12.204 July 14, 2020 Original: Spanish ADMISIBILITY AND MERITS ACTIVE MEMORY CIVIL ASSOCIATION (VICTIMS AND FAMILY MEMBERS OF THE VICTIMS THE TERRORIST ATTACK OF JULY 18, 1994 ON THE HEADQUARTERS OF THE ISRAELI-ARGENTIAN MUTUAL ASSOCIATION) ARGENTINA Approved by the Commission at its session No. 2179 held on July 14, 2020 176 Regular Period of Sessions Cite as: IACHR, Report No. No. 187/20. Case 12.204. Admissibility and Merits. Active Memory Civil Association. Argentina. July 14, 2020 www.cidh.org INDEX I. INTRODUCTION .......................................................................................................................................................................................................................... 3 II. PROCEDURE OF THE PETITION BEFORE THE IACHR ................................................................................................................................................ 3 III. POSITION OF THE PARTIES ................................................................................................................................................................................................... 4 A. The petitioners ......................................................................................................................................................................................................... 4 B. The Argentine State ...............................................................................................................................................................................................
  • Political Crimes Defined

    Political Crimes Defined

    Michigan Law Review Volume 18 Issue 1 1919 Political Crimes Defined Theodore Schroeder Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Criminal Law Commons, European Law Commons, Law and Politics Commons, and the Rule of Law Commons Recommended Citation Theodore Schroeder, Political Crimes Defined, 18 MICH. L. REV. 30 (1919). Available at: https://repository.law.umich.edu/mlr/vol18/iss1/4 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. POLITICAL CRIMES DEFINED C ONTINENTAL Europe is in the midst of revolutions. The immediate antecedents are such as to suggest the probable ac- companiment of more widespread and perhaps even more in- tense passions of various sort, than have ever before been brought into being with a revolution. This in turn suggests the likelihood that there will follow more political plots and counter-revolutions than is usual in such cases. From such causes it is highly probable that the juridical meaning of the statutory words "an offense of a political character" will be a matter of frequent controversy, as suc- cessive crops of exiles claim the right of asylum in America. The character of the present revolutions is such that, more than usual the exiles will be from the more fortunate and educated class which has become disprivileged by the democratizing process.
  • Reassessing Packer in the Light of International Human Rights Norms

    Reassessing Packer in the Light of International Human Rights Norms

    Reassessing Packer in the Light of International Human Rights Norms † FARKHANDA ZIA MANSOOR I. INTRODUCTION This article analyzes different aspects of Herbert L. Packer’s crime control and due process models in the light of different components of an individual’s right to a fair trial, which is a fundamental individual human right. Packer developed his models to illuminate what he saw as two conflicting value systems that competed for priority in the operation of the criminal justice process. The utilitarian approach dominated the classical period in criminology, where deterrence theory prevailed. However, when the scales tilt too far in the direction of deterrence and crime control, due process rights suffer. Similarly, when the right to a fair trial is violated, it results in questionable convictions, imprisonment, and even execution. When the public learns that innocent persons have been convicted and imprisoned, the justice system itself loses credibility. The risk of human rights violations starts from the moment officials become suspicious of a person and continues through arrest, pre-trial detention, during the trial and appeals, and at the time of imposition of punishment. To avoid wrongful convictions and to protect the individual’s right to a fair trial through all of these stages, international fair-trial standards have been designed. According to Packer’s crime control model, repression of criminal conduct is viewed as the most important function of the criminal process. In the absence of such a repression, a general disregard for the criminal law would develop and citizens would live in constant fear. Crime control and due process (which is analogous to the right to a fair trial) approaches represent the extremes.
  • Mohamed Nasheed, Citizen of the Republic of Maldives

    Mohamed Nasheed, Citizen of the Republic of Maldives

    PETITION TO: UNITED NATIONS WORKING GROUP ON ARBITRARY DETENTION Chairman/Rapporteur: Mads Andenas (Norway) Vice-Chairperson: Vladimir Tochilovsky (Ukraine) Sètondji Roland Adjovi (Benin) José Guevara (Mexico) Seong-Phil Hong (Republic of Korea) HUMAN RIGHTS COUNCIL UNITED NATIONS GENERAL ASSEMBLY In the Matter of Mohamed Nasheed, Citizen of the Republic of Maldives v. Government of the Republic of Maldives URGENT ACTION REQUESTED And Petition for Relief Pursuant to Resolutions 1997/50, 2000/36, 2003/31, 6/4, 15/18, 20/16, 24/71 Submitted By: Jared Genser & Maran Turner Ben Emmerson QC Amal Clooney Freedom Now Matrix Chambers Doughty Street Chambers 1776 K Street, NW, 8th Floor Griffin Building 54 Doughty Street Washington, DC 20006 Gray’s Inn, London London W1CN 2LS United States United Kingdom United Kingdom +1.202.466.3069 (phone) +44.207.404.3447 (phone) +44.207.404.1313 (phone) +1 202.478.5162 (fax) [email protected] [email protected] [email protected] @jaredgenser April 30, 2015 1 Resolutions 1997/50, 2000/36, and 2003/31 were adopted by the UN Commission on Human Rights extending the mandate of the Working Group on Arbitrary Detention. The Human Rights Council, which “assume[d]… all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights…” pursuant to UN General Assembly Resolution 60/251, GA Res. 60/251, Mar. 15, 2006, at ¶ 6, has further extended the mandate through Resolutions 6/4, 15/18, 20/16, and 24/7. 1 Table of Contents Basis for “Urgent Action” Request ................................................................................................. 3 Questionnaire To Be Completed by Persons Alleging Arbitrary Arrest or Detention ...................
  • 30 POLITICAL CORRUPTION AS a FORM of STATE CRIME a Case Study on Electoral Donations

    30 POLITICAL CORRUPTION AS a FORM of STATE CRIME a Case Study on Electoral Donations

    30 POLITICAL CORRUPTION AS A FORM OF STATE CRIME A case study on electoral donations Nubia Evertsson Source: 2013: previously unpublished Abstract In this chapter, I analyze how state crimes emerge when incumbents utilize their offices to reciprocate electoral donors with undue benefits, favorable regulations, contracts, and job appointments. The problem, as it is seen here, is that (a) while electoral donations are cloaked with legality, they facilitate corruption, and (b) the delivery of undue ben- efits creates social harm, because it diverts the allocation of public resources and destroys confidence in the political system. Thus, I argue and demonstrate how the money delivered as electoral dona- tions constitutes a corrupt incentive that should be classified as illegal. Introduction In democracies money is needed to run elections and there is a parallel belief that money should not buy the decisions of incumbents, though this does occur in practice (Green and Ward 2004; Friedrichs 2004; Nelken and Levi 1996; Shichor and Geis 2007). Studies report that electoral donors have obtained favorable legislation, unjustified contracts and subsidies, and unmerited job appointments. Electoral donations certainly seem to exert undue influence on policy outcomes.1 To deal with this problem, regulatory frameworks have been introduced worldwide to mitigate the influence of campaign contributions on incumbent decision making. Electoral regulations focus on demanding the disclosure of electoral donations and donors’ identi- ties, and limiting the ceilings of donations and campaign expenditures. However, serious concerns regarding the scope of these regulations make them appear futile, because it is believed that some countries have left certain issues unattended to facilitate the delivery of undue benefits to donors.