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Manchester Review of Law, Crime and Ethics Manchester Review of Law, Crime and Ethics The Student Journal of The University of Manchester, School of Law VOLUME VI OCTOBER 2017 The Manchester Review of Law, Crime and Ethics is an annual, student-led, peer-reviewed journal founded at The University of Manchester, School of Law. The journal exhibits the best academic work in law, criminology and ethics, at the undergraduate and postgraduate levels. MANCHESTER REVIEW OF LAW, CRIME AND ETHICS VOLUME VI OCTOBER 2017 Manchester Review of Law, Crime and Ethics © Manchester Review of Law, Crime and Ethics, 2017 All rights reserved. The Manchester Review of Law, Crime and Ethics, its editors, and The University of Manchester, School of Law are not responsible for the opinions expressed in this journal. No part of this journal may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior express written consent of the Manchester Review of Law, Crime and Ethics, The University of Manchester, School of Law or as expressly permitted by law. All enquiries should be addressed to: Manchester Review of Law, Crime and Ethics The University of Manchester Williamson Building, School of Law Oxford Road Manchester M13 9PL United Kingdom [email protected] Typeset in Times New Roman Printed in the United Kingdom ISSN 2399-4630 (Print) ISSN 2399-4649 (Online) 1 MANCHESTER REVIEW OF LAW, CRIME AND ETHICS This year’s volume was generously funded by The University of Manchester, School of Law. The Editorial Board is grateful for the School of Law’s continued support. 2 MANCHESTER REVIEW OF LAW, CRIME AND ETHICS Manchester Review of Law, Crime and Ethics Editorial Board Editor-in-Chief Rohan Shah Deputy Editor-in-Chief Dhruv Bhatia Editors Işil Aral Tanjia Bashor Claire Ceney Gan Ming Hui Marina Iskander Isabella Kirwan Fiona Long Abisola Odusanya Kevin Patel Honorary Advisory Board Lesley Anderson QC HH Judge Nigel Bird Dr. Nicholas Braslavsky QC Dinah Crystal OBE Paul Lowenstein QC Gerard McDermott QC Dr. Margaret Mountford Toby Seddon 3 MANCHESTER REVIEW OF LAW, CRIME AND ETHICS Preface from the Head of the School of Law It is my pleasure to welcome the sixth edition of this review. What started out several years ago as an idea from the student body has now become a feature of the Law School which is developing an increasing reputation in the field. It covers the full range of areas of our work and involves students on all programmes. The Law School is a community of scholars dedicated to the pursuit of higher learning about justice and rights in society, through research and education. The papers in this volume show the keen interest of our community in exploring cutting- edge issues and reflect the intellectual diversity and inter- disciplinarity that is a distinctive feature of the School. I hope all readers find something of interest and many in our community are encouraged to contribute in the future. The authors are to be congratulated, as is the editorial team who have put in many hours of work. As Head of School, I am very proud that this review is continuing to thrive. I look forward to reading many more future volumes. Professor Toby Seddon September 2017 4 MANCHESTER REVIEW OF LAW, CRIME AND ETHICS Preface from the Editor-in-Chief I am delighted to present the culmination of many months’ worth of hard work by our Editorial Board: Volume VI of the Manchester Review of Law, Crime and Ethics. What started in 2012 as a little-known, yet ambitious student publication, has quickly blossomed into a peer-reviewed and respected academic journal. This is attributable not only to the excellent work of students at the University of Manchester School of Law, but also the commitment of its many distinguished scholars. Over the past year, we have sought to expand the Review’s reach and strengthen its reputation. Firstly, we have continued to host free online versions of the Review on the School of Law’s website and continued our relationship with HeinOnline. Secondly, we have obtained an ISSN and made the Review available at The British Library. Finally, we have engaged in an aggressive social media campaign to promote our scholarship and brand across Facebook and Twitter, forging links with other law schools, journals, and lawyers across the world. Of course, none of this would be possible without the continued support of the School of Law. I would also like to thank the Editorial Board for their dedication, perseverance, and hard work. Finally, thank you – our readers – for continuing to engage with our work. 5 MANCHESTER REVIEW OF LAW, CRIME AND ETHICS Lastly, I would like to introduce my successor, Kevin Patel, who I am certain will continue the Review’s tradition of academic excellence. Rohan Shah August 2017 6 MANCHESTER REVIEW OF LAW, CRIME AND ETHICS Table of Contents Mass sexual violence in Darfur: An analysis of macro-, meso-, and micro-level variables…………………………………….…..8 Amy Cross Opting out of the CISG: is the law too complicated for such a popular choice?………………………………………………….23 Océane Girard Class action (not US-style): enhancing access to justice….…....49 Shinthean Ng Dworkin’s Hercules as a model for judges……………………..58 Arvindh Rai Pregnant women may have moral obligations to foetuses they have chosen to carry to term, but the law should never intervene in a woman’s choices during pregnancy……………………….69 Elizabeth Chloe Romanis Should the law recognise rights in all humans and only in humans?........................................................................................86 Aneela Samrai An exploration into the factors shaping victim reporting of partner abuse to the police……………………………………...95 Victoria Smith The regulation of the civilian and military realms of cyberspace……………………………………………….…..121 Jake Taylor A critical assessment of the separability doctrine, its impact and application……………………………………………………..148 Fiona Winnifred Lakareber 7 MANCHESTER REVIEW OF LAW, CRIME AND ETHICS Mass sexual violence in Darfur: an analysis of macro-, meso-, and micro-level variables Amy Cross1 Mass sexual violence is a common phenomenon during conflict, occurring across the world and historically over time. Many theories of why it occurs have been argued in the criminological literature, many focusing on group processes, and others on individual perpetrators. This paper analyses the incidence of mass sexual violence in Darfur, Sudan. It discusses the interplay of broad, macro-level variables with meso- and micro-level variables and finds that it is not one theory that explains mass sexual violence in this context, but an interaction and compounding of many different variables, all of which contribute to the occurrence of the phenomenon. It is recognised within the literature that mass sexual violence has consistently been a feature of conflict both temporally and geographically,2 and it has been a feature of the genocide in the Darfur region of Sudan since the onset of the conflict.3 While criminology has had relatively little engagement with sexual violence in conflict, there are some theories which explain sexual violence in conflict, and others which explain other forms of crime but can be applied to this type of offending. This essay will aim to distinguish some of these theories in terms of their level of analysis, to apply them to this context, and to analyse the interaction of macro, meso and micro factors that have influenced the problem. Macro levels of analysis will be discussed through the lens of Staub’s equation of difficult life conditions and cultural preconditions resulting in mass violence,4 including the concepts of patriarchy and 1 LL.M. Candidate, The University of Manchester, School of Law. 2 Susan Brownmiller, Against Our Will (Penguin 1975) 31-32; Eileen Zurbriggen, ‘Rape, War and the Socialisation of Masculinity: Why Our Refusal to Give Up War Ensures That Rape Cannot be Eradicated’ (2010) 34 Psychology of Women Quarterly 538. 3 John Hagan and Wenona Rymond-Richmond, Darfur and the Crime of Genocide (Cambridge University Press 2009). 4 Ervin Staub, Overcoming Evil: Genocide, Violent Conflict, and Terrorism (Oxford University Press 2011). 8 MANCHESTER REVIEW OF LAW, CRIME AND ETHICS hegemonic masculinities. Meso levels of analysis will focus primarily on ideology which is an important factor in joining the macro and micro together to create a multi-layered theoretical framework in which to explain sexual violence in conflict. Finally, this essay will analyse some of the micro level theoretical frameworks regarding individual and group explanations for the committal of such atrocities. This essay will posit that although all three levels individually are influential, it is the interplay of the three levels which creates conditions in which the problem of sexual violence can thrive. Firstly, though, as crime is a social construction, it is important to position sexual violence within conflict in a legal framework in order to identify it as a crime. Although widespread sexual violence has been recognised in Darfur, it has been difficult to quantify due to a lack of reporting, however, the United Nations documented 117 incidents in 2014.5 It is estimated that this figure is underestimated, owing to underreporting due to fear of further victimisation from the state, and the stigma attached to sexual violence in this setting.6 The Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as acts intended to cause the destruction of whole or part of a group.7 Although the definition does not specify sexual violence, it does include causing bodily or mental harm to members of the group or preventing births within the group, both of which can include sexual violence. Furthermore, the Akayesu case ruled that rape constitutes part of genocide and should be considered a war crime and a crime against humanity.8 Hagan and Richmond-Rymond suggest the extent of the problem in Darfur is sufficient enough to prosecute and this has been confirmed by the International Criminal Court (ICC) which has issued arrest warrants 5 UNSC Report of the Secretary General on Conflict-Related Sexual Violence (2015) UN Doc S/2015/203.
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