Dissertations / Theses on the topic 'Criminal law'

First, this work proposes a study of the origin, elements and application of the Compliance Program or, also named, Regulatory Compliance Program. The aforementioned program is understood as an internal device that corporations use not only to comply with the current legislation but also to prevent and detect legal violations they could be found in or as part of the activities they carry out.Second, it tries to explain and develop the connection between, on one hand, the new risks in the financial and technological development and, on the other hand, Criminal Law as a protective body of important legal assets for society. The aim is to analyze Criminal Compliance to get the corporationto manage its activities under current legislation, especially Criminal Law.In this regard, it enlarges the sectoral developments based on the Peruvian Government’s implementation of the the Compliance Program in the legal framework.Finally, it analyzes the impact of Criminal Compliance in the criminal legal framework. For that end, it refers to the criminal liability system in Peru and in what way it impacts on the application of Criminal Compliance.
El trabajo propone, en primer lugar, un estudio del origen, los elementos y la aplicación del Compliance Program o, también llamado, Programa de Cumplimiento Normativo, entendido como un dispositivo interno que las empresas implementan para cumplir con la normatividad vigente, así como para prevenir y detectar las infracciones legales que se produzcan dentro de las mismas o como parte de las actividades que estas realizan. Asimismo, se intenta explicar y desarrollar la relación entre los nuevos riesgos, debido al desarrollo económico y tecnológico, y el derecho penal como ente protector de bienes jurídicos de importancia para la sociedad. Esto último tiene como finalidad analizar el Criminal Compliance, destinado a que la empresa ordene su actividad conforme a la normativa aplicable, en especial la ley penal. En tal sentido, se desarrolla la aplicación que el Estado peruano ha realizado del referido Programa de Cumplimiento Normativo en el ordenamiento jurídico, en concreto los avances sectoriales. Finalmente, se analiza el impacto del Criminal Compliance en el ordenamiento jurídico penal. Para ello, se hace una referencia al sistema de responsabilidad penal adoptado en el Perú y de qué manera esto impacta en la aplicación del Criminal Compliance.

PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO
O trabalho consiste na análise do processo de internacionalização dos Direitos Humanos com base no Direito Internacional Penal. Partindo de abordagens interdisciplinares na criação do Tribunal Penal Internacional, é feita uma leitura jurídico-penal do Estatuto de Roma a partir da aproximação dos conceitos oriundos do Common Law e do Civil Law em busca de um maior aprimoramento na construção de uma Parte Geral do Direito Internacional Penal. Assim, pretende-se contribuir para uma maior preocupação no tocante à responsabilização penal no plano internacional, sempre com o foco voltado para o incremento da proteção internacional dos Direitos Humanos.
The work analyses the process of internationalization of the Human Rights based upon International criminal law. Beginning with an interdisciplinary approach on the creation of the International Criminal Court, the Roman Statute is analyzed through a criminal law reading, that acknowledges an approach between Common Law and Civil Law traditional concepts. Therefore, the work seeks to contribute to an improvement on criminal law enforcement on the international level, always focusing on assuring the international protection of the Human Rights.

This thesis critically examines the origins and development of international criminal lave to identify the defining features of this emerging legal tradition. It critically evaluates the experimental approach taken in Article 21 of the Rome Statute of the International Criminal Court, which attempts to codify an untested normative super-structure to guide this legal tradition.
International criminal law is a hybrid tradition which seeks legitimacy and answers to difficult questions by drawing on other established legal traditions. Its development at the confluence of public international law, international humanitarian law, international human rights law and national criminal laws has resulted in gaps in difficult cases with no clear answers. These lacunae have been filled by recourse to judicial discretion, exercised consistent with Patrick Glenn's theory of transnational common laws, and by privileging one of the competing aims of international criminal law: enhancing humanitarian protection versus maximizing fairness to the accused.

So far, science does not have a unified approach to what is the field (branches/areas) of law, what is their classification and relationship. The European, more exactly the continental law, philosophers and thinkers want(ed) to put each branch of law into this dichotomy: Public and Private Law. In continental law, such areas of law are generally distinguished as constitutional, administrative, criminal, civil, etc. Other researchers offer a much broader classification that separately includes computer, competition, aviation, space, and other areas of law that are classically distinguished as sub-sectors.
So far, science does not have a unified approach to what is the field (branches/areas) of law, what is their classification and relationship. The European, more exactly the continental law, philosophers and thinkers want(ed) to put each branch of law into this dichotomy: Public and Private Law. In continental law, such areas of law are generally distinguished as constitutional, administrative, criminal, civil, etc. Other researchers offer a much broader classification that separately includes computer, competition, aviation, space, and other areas of law that are classically distinguished as sub-sectors.

Criminal law (known as penal law) is the branch of law that deals with crime, criminals and the legal punishment of criminal offenses. Penal law is intended to protect the public from harm by inflicting punishment upon those who have already done harm and by threatening with punishment those who can to do harm. Criminal law also often tries to avoid harm by forbidding conduct that may lead to harmful results. It involves prosecution by the government of a person for a crime. When you are citing the document, use the following link http://essuir.sumdu.edu.ua/handle/123456789/33629

This thesis develops a theoretical account of the basis and justification for the doctrine of Joint Criminal Enterptise in international criminal law by examining principles governing the ascription of criminal responsibility in English and German criminal law. The first part consists of a comprehensive review of the development of the JCE doctrine, including its historical antecedents, its initial formulation by the ICTY, its subsequent explication by tribunals and academics, and recent alternatives doctrines proposed by the ICC and by commentators. It identifies the main loopholes and contradictions in the construction of these theories, and presents factual scenarios for which these theories, particularly JCE, either have no answers, or problematic ones. The second part examines whether any of the variants of JCE can be justified as principal responsibility. It first identifies elements that distinguish international crimes from their domestic counterparts, and which are pertinent in developing an account of criminal responsibility for international crimes. It also examines the concept of perpetration responsibility in English and German criminal law and theory. It then combines the insights gleaned from these analyses to conclude that only JCE I can be appropriately considered as perpetrator responsibility and proposes a modified version of the doctrine of Organisationsherrschaft in German criminal law as a more accurate characterisation of the role and function of high level participants in mass atrocity. The final part focuses on the concept of accomplice responsibility in German and English criminal law and doctrine to address whether JCE II and JCE III can be justified as modes of secondary criminal responsibility. It concludes that JCE II and JCE III can be retained as distinct modes of accomplice liability using expressive and risk justifications, provided their operation is limited in ways that correspond to principles of secondary responsibility in domestic jurisdictions.

The objective of this study is to offer a different way of seeing and understanding defences in international criminal law. By contrast to the standard texts on defences which identify what the law is - and in some few cases to suggest what it should be - this work seeks to understand why the law is the way it is, and in doing so, reveal the gender biases that international criminal law defences conceal. International criminal law evolved out of a need to respond to gross wrongdoings that amounted to international offences perpetrated during conflict. The paradox is that conflict is about the 'legalised' use of violence by men and it is through this process that all too often women, subsumed within the category of civilians, become the direct and indirect victims of that violence. From its inception international criminal law has primarily addressed wrongs committed in conflict - but as perceived and defined by men. Moreover, because war crimes trials have always been about selective narratives that are controlled by the most powerful, women's voices have consistently been excluded. This study questions whether, as with offences, defences have evolved in such a way as to prefer the interests of the male soldier over the civilian and thereby foster a gendered view of defences in international criminal law. This work has been guided by some of the more recent theoretical debates that have engaged the scholarly community on the domestic level that challenges the traditional explanations of defences and that exposes the law to be fundamentally incoherent and characterised by bias. It offers an alternative perspective on defences in international criminal law that seeks to understand the interests that legal defences serve to protect. This thesis concludes that defences play a vital function in regulating relations between individuals and between the state and citizens by articulating the responsibilities of the different participants in a social grouping. Defences provide a powerful means through which the law delineates a society's moral boundaries and an effective mechanism through which specific normative values of liberal states are conveyed. The overriding objective of this study is to emphasise the need to take greater account of the inherent gender bias that continues to characterise the law in the process of judging the defendant who is charged with serious violations of international law perpetrated in a conflict.

The purpose of this thesis is to provide a study of a much neglected concept in international law, namely the criminal offence. The work consists of four parts which incorporate ten chapters. Part I introduces the study by examining the way in which the concept of criminal offence has developed through the various recognised sources of international law. The difficulties involved in distinguishing the criminal offence from other unlawful acts in international law, as well as the problem of defining the concept, are issues which are addressed in Part II, Part III examines seventeen classified criminal offences and practices in international law in order to determine the juridical indicia of the concept. Finally, Part IV addresses the legal consequences engendered by the concept of criminal offence, namely international criminal responsibility. Individual as well as State criminal responsibility in international law are discussed, particularly, in the light of the substantial contributions made by the International Law Commission in this field.

The purpose of the thesis is to critically analyse the current legal forms of mens rea which are shared by common law and statute, namely intention, recklessness, malice, negligence and strict liability. I shall argue that the current concepts are (i) inadequate since they lack conceptual clarity, consistency and cohesion; (ii) that the concepts of intention and recklessness lack terminological consistency since their parameters extend to states of mind which properly belong elsewhere and (iii) that they are unable to draw out significant moral distinctions in moral culpability with which agents perpetrate criminal offences. The major cause for the inadequacies of the present structure lies in the number of mental states which constitute mens rea at current law. They are so few that judges have seen fit to manipulate the contours to serve the needs of justice in the cases. This has led to considerable conceptual and terminological confusion both within and between the concepts. But the major failing of the current structure of mens rea, rooted in the same cause, is that it does not sufficiently draw out significant differences in moral status between agents who perpetrate harm. It fails to do this in two ways. First, the concepts of intention, recklesness and negligence are broad in their scope so that each includes a fairly wide area of moral turpitude. Second, where a particular offence admits more than one form of mens rea the conviction does not discriminate between the various requisite mental states and thus denies accurate ascriptions of moral culpability over a large area of mental attitude toward proscribed harm. I shall offer a new structure of wens rea which would be constituted by (i) direct intention, (ii) comcomitant intention, (iii) purpose, (iv) objective, (v) gross recklessness, (vi) simple recklessness, (vii) gross negligence and (viii) simple negligence. I shall argue that the proposed structure is preferable since the more sophisticated set of fault terms would be (1) conceptually clear, consistent and coherent, (ii) would be more terminologically consistent and (iii) would more clearly express the moral status of the agent in each case concerning the harm brought about by him. I shall demonstrate that the proposed structure is more able to express differences in moral culpability because (i) the more sophisticated set of mens rea terms would provide a better gradation in moral fault and (ii) it would be a requirement of the proposed structure of mens rea that the court or jury determine the precise mental state with which the agent perpetrates a criminal offence and that mental state would be recorded with the conviction.

Thesis advisor: David M. Rasmussen
This dissertation defines and defends the concept of ‘criminal oppression.’ Criminal oppression occurs when people are excluded from full participation in important social and political institutions because they are perceived to have violated certain community norms. Oppression is primarily a structural phenomenon, in which practices of formal and informal institutions unjustly harm people based on group membership. In structural oppression, there is rarely an individual who can be said to be responsible for the oppression, but I argue that at times, individuals may also be agents of oppression when they create, perpetuate, or exacerbate structural oppression. Applying this theory of oppression, the criminal justice system in the United States is an oppressive structure that unjustly harms those considered to be ‘criminals’ through a variety of practices. There are three categories of unjust practices: policing, adjudication and punishment, and collateral effects of arrest and conviction. These three categories of practices create the social group ‘criminals’ by subjecting certain people to these kinds of treatments. I use the word ‘criminal’ to describe those who are treated as criminals by police, the courts, and even private individuals like employers. To be a ‘criminal,’ it is not necessary that one has committed a crime or been convicted of a crime. Racial and criminal oppression deeply related historically and conceptually. Nevertheless, they are distinct kinds of oppression. In the United States, those who are not racially oppressed but are ‘criminals’ face many of the same unjust obstacles as those who are racially oppressed in addition to being ‘criminals.’ Some may argue that ‘criminals’ duly convicted of crimes deserve to be socially and politically excluded. But, I argue that the criminal justice system is not properly conceived of as an apolitical institution that can assess moral blameworthiness. Nor should it be able to offer punishments that amount to social and political exclusion. Instead, the criminal justice system is one political institution amongst many, and it ought to be governed by the same principles of liberty and equality that govern other political institutions. Criminal law’s proper function is to facilitate government as a system social cooperation. Therefore, it ought to respond to criminal acts with actions designed to promote inclusion rather than exclusion. Moreover, even if someone has committed a crime, that does not mean that they ought to be subject to violence or permanent second-class status. Finally, I address specific, feminism-driven arguments for using the criminal justice system to fight violence against women. Some feminists argue that the expressivist function of punishment—the ability of punishment to express disapproval and disavowal—makes it a perfect tool for fighting the normalization of violence against women. The problem, they contend, is that this violence is under-punished in the United States, and the solution to ending violence against women is to increase prosecutions and advocate for harsher punishments because punishment will change the social norms and make violence against women rarer. To this, I argue that those who create laws or mete out punishments do not have control over the social meaning of punishment with precision. The historical and present-day oppressive features of criminal law and punishment interfere with the ability of prosecution and punishment to condemn certain types of acts without also condemning people. Thus, feminists who try to use the criminal justice system to fight gender-based violence will find it to be ineffective and potentially harmful to the already oppressed group of ‘criminals.” Chapter 1argues that ‘criminals’ are oppressed using a structural model of oppression that focuses on how collections of institutional policies and practices can create and maintain unjust power relations between groups of people. I will also use an externalist theory of group identity to argue that being arrested or convicted of a crime is not necessary or sufficient for membership in the social group ‘criminal.’ Chapter 2 explains the relationship between racial oppression and the oppression of ‘criminals,’ noting the historical development of the modern prison system. Chapter 3 argues that the proper role of criminal law is to support systems of social cooperation, not to punish pre-political wrongs. I will suggest that criminal law is in essence part of the social contract, not a separate sphere of justice to which distinctive, retributive principles apply. Instead, the criminal law cannot determine moral blameworthiness and is only justified in sanctioning rule violations for the sake of supporting social cooperation in a society whose institutions are worth supporting. In Chapter 4, I propose a feminist, expressivist defense of the use of prosecution and harsh punishment as a response to rape and domestic violence that takes the structural nature of violence against women into account. Chapter 5, however, demonstrates why even this theory cannot justify incarceration in the non-ideal sphere because of the oppressive history and practice of the American criminal justice system
Thesis (PhD) — Boston College, 2020
Submitted to: Boston College. Graduate School of Arts and Sciences
Discipline: Philosophy

This thesis investigates three exemplars of uxorial substantive privileges in the criminal law: the marital coercion doctrine, the intraspousal conspiracy exemption, and the uxorial post-offence accessorial immunity. Their history, choreography and variations are comparatively investigated across the common law jurisdictions including the impact of statutory interventions. The principal argument is that the judicial and legislative treatment of these uxorial privileges has been inconsistent or erratic so that they are not the products of any systematic, modern development in the criminal law. This thesis proposes that there is no justification for their continued retention in common law legal systems. Archival, Parliamentary, and other sources have been used to identify the factors impinging upon the creation of specific statutory uxorial privileges. The diaspora of these laws throughout the other common law jurisdictions is investigated. The discussion is illustrated by examination of the particular issues raised by polygamy, customary law concubinage as well as by gender-reassignment. This thesis examines whether both gender-specific and marriage-specific criteria are valid constituents within the parameters of substantive criminal law. It traces the genesis of these special defences within the criminal law available exclusively to women, from the time of King Ine of the West Saxons c712, to examine the current status of such laws throughout common law jurisdictions. The investigation explores factors shaping the creation of a statutory defence of marital coercion by the British Parliament in 1925 and outlines the challenges generated by that law and its extraordinary resilience. This thesis demonstrates the failure of the criminal law to provide an overarching construct to implement emergent gender equality.

European Criminal Law has been one of the most rapid, remarkable, but at the same time controversial developments in the European Union having a significant impact on domestic criminal justice systems. Judicial and police cooperation in criminal matters soon became a fully-fledged policy of the European Union affecting the national sovereignty of Member States, the relationship between individuals and the States as well as the protection of fundamental rights. My thesis examines the development of EU criminal law towards the creation of a European "Area of Freedom, Security and Justice" (via mutual recognition and the harmonization of substantive criminal law) and its impact on the Greek criminal justice system. In assessing the overall above mentioned question, I examine how EU criminal law has developed; what have been the main political and legal challenges for the implementation in Greece; to what extent, and how, the Greek Legislator has implemented EU law in the field of mutual recognition and harmonization, and, last, but not least, what has been the judges', practitioners' and academics' reaction to this development. The thesis has two parts: one on mutual recognition and one on the harmonization of substantive criminal law. Chapter one explores the main issues regarding the scope, extent, and nature of the principle of mutual recognition at EU level. Chapter two explores the main issues related to the impact as well as the practical operation of the principle of mutual recognition in the Greek Jurisdiction. Chapter three, then, turns its interest on harmonization of substantive criminal laws from the EU point of view. Finally, Chapter four focuses on the impact of the implementation of the EU harmonization system on the Greek Jurisdiction with regard to the same areas of substantive criminal laws, as discussed in chapter three. These chapters are then followed by a conclusion aiming to synthesize and highlight the main issues that have arisen during the analysis of this thesis and answer the main question: "What has been the impact of EU Criminal Law on the Greek Criminal Justice System?"

This thesis places malice at the centre of an account of criminal law jurisprudence. Malice is a well-known subject and object of criminal law. In legal materials, the concept of malice has had a consistent relationship with that which is bad, blameworthy, culpable and/or undesirable. An exploration of how malice has been organised and expressed is one way of analysing legal ideas of wickedness. Legal constructions of malice have varied across time, place and offence category. I analyse legal constructions of malice in homicide legal doctrine from the 13th century onwards. The thesis makes two gestures. The first is reconstructive. In contemporary jurisprudence malice is disregarded, ignored and trivialised. I reconstruct malice both historically and in contemporary criminal law. This also resuscitates the relationship of criminal law with morality. I reconstruct (part of) the substance of what it means to be bad or wicked in jurisprudence. My intervention is thus therapeutic — through care, I restore malice and its history to the law.
Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
Griffith Law School
Arts, Education and Law
Full Text

Only two Association of Southeast Asian Nations (ASEAN) countries have ratified the International Criminal Court (ICC) Statute, and this number is unlikely to change dramatically in the near future. This research thus considers how international criminal justice (ICrimJ) can be advanced through the regionalisation of international criminal law (ICL), whilst also serving the interests of ASEAN Member States. The theoretical appeal, practical viability, and political acceptability of regional ICrimJ mechanisms are accordingly examined. Given that the establishment of the ICC has challenged the absolute sovereignty of States over the prosecution of international crimes, regional initiatives have added political allure as they not only better reflect local legal norms and political considerations, but also place the selection of ‘regional crimes’ and enforcement measures primarily in the hands of regional countries. In recognition of the 'ASEAN way' of making decisions, regional initiatives to further ICrimJ in Southeast Asia should be implemented gradually and driven internally through consultation and consensus. Moreover, to achieve the overarching ASEAN goal of maintaining regional peace and security, the modalities and practical effects of ICrimJ may require greater emphasis on deterrence and reconciliation, instead of punishment. The prospect and efficacy of a regional ICrimJ mechanism however also depends, inter alia, on the availability of institutional infrastructure and resources, and will understandably differ between regions. Nevertheless, some general conclusions about the value and attractiveness of a regional approach to ICrimJ can be drawn. Despite variations on what may constitute justice in different geographic areas, these generalisations are useful because they reveal the incentives and favourable conditions for efforts at the regional level. The research therefore proffers a basic framework to assess the costs and benefits of regional solutions against domestic or international methods of enforcing ICL, and determine which may best serve ICrimJ in each unique situation and circumstance.

Thesis advisor: Hideo Konishi
Becker (1968) provides a formal framework for analyzing various policies in criminal law. Within this framework there are potential criminals, who have varying benefits from committing an illegal act. They are subject to sanctions when they are caught and are found guilty for committing such acts. Accordingly, increased expected sanctions lead to greater deterrence. There are also costs associated with achieving such deterrence. Hence, there are optimal policy variables which balance costs and gains associated with increased deterrence. In my dissertation, in five independent but closely related essays, I address various issues related to criminal law by making use of optimal crime and deterrence models, which are similar to Becker (1968). First, I analyze the standard of proof in criminal trials and extend a justification as to why there are higher standards of proof in criminal trials versus civil trials. Next, I introduce the concept of mixed warning strategies, and justify the use of mixed as well as pure warning strategies in law enforcement. In a related essay, I show that it is optimal to punish repeat offenders more severely than first time offenders, provided that offenders gain experience in evading detection by committing offenses. In my fourth essay, I identify reasons as to why it is welfare improving to allow individuals to self-report conduct crimes. Finally, I propose a simple framework to incorporate the concept of remorse in the economic analysis of criminal law, and show that the Beckerian maximal fine result need not hold when some individuals feel remorse
Thesis (PhD) — Boston College, 2010
Submitted to: Boston College. Graduate School of Arts and Sciences
Discipline: Economics

Thesis (LLD)--Stellenbosch University, 2012.
Includes bibliography
ENGLISH ABSTRACT: The existential crisis of the international regime of criminal law is arguably a thing of the past. This is confirmed through a growing body of positive law and the existence of various international criminal courts, notably the permanent International Criminal Court which has been in operation since 2002. Moreover, it is significant that international criminal law (“ICL”) is developing towards increased domestic enforcement, in particular as a result of the complementarity regime envisioned by the Rome Statute of the International Criminal Court. States have generally been receptive and cooperative towards international criminal norms as well as the structures of international criminal justice. As a result international criminal laws are increasingly being transformed into national law and enforced by states on the domestic level. Chapter 2 provides an overview of the abovementioned developments, the characteristics of ICL and certain key concepts. In lieu of the upward trajectory of ICL’s development, the thesis aims to determine whether ICL exerts an influence which holds ‘transformative value’. Chapter 3 unpacks this concept by delineating the different meanings afforded to transformation and identifying the reticent characteristics of transformative change, especially the underlying importance of values during processes of transformation. Transformative value is conceptualised broadly as the product and potential of the type of change that holds some utility for the civitas maxima (or the community of mankind). In Part II, ICL’s transformative value is investigated from a historical and global perspective with emphasis on the purposes, values and politics of international criminal justice. Chapter 4 focuses on the Nuremberg IMT and the trial of Adolf Eichmann. It is submitted that these trials produced a paradigm shift that represents the transformative foundation of modern ICL. Chapter 5 investigates the purposes and aspirations of modern ICL with reference to its underlying assumptions as well as its objectives, the latter which may be found in positive law and the jurisprudence of international criminal courts. The research suggests that ICL is disposed towards objectives which are unique in comparison to those of domestic criminal law. While it cannot be denied that punishment under ICL is predominantly a backward-looking exercise in the tradition of domestic criminal law retributivism, ICL is somewhat removed from this paradigm due to its purpose- and value-driven nature. ICL is also expressive, normative and forward-looking in various respects. Individual criminal liability is however not universally accepted as an appropriate response to collective violence. This is partly a result of ICL’s endemic political dependency. Chapter 6 addresses the impact of politics on ICL’s transformative value. ICL is closely associated with liberal-legalist ideals which essentially promote the interests of individuals. Although it constitutes an important element of ICL’s transformative value, this political influence exposes ICL to criticism and may exert a disruptive influence on its transformative mandate. In this latter respect it is noted that ICL remains somewhat controversial and subject to the general limitations of the decentralised and state-dominated international legal system. In Part III, ICL’s transformative value is investigated using South Africa as a case study, with particular reference to its transitional- and post-transitional periods. Chapter 7 provides a domestic perspective of ICL’s transformative value by investigating the interactions of ICL and the South African legal system, particularly the value of the transformation of ICL into national law. In this regard the impact of Constitutional provisions and national legislation pertaining to ICL are considered, as well as a number of cases related to matters of international criminal justice. It is argued that international criminal norms may promote human values over state authority and political interests in the domestic context. Domestic courts may serve as ‘engine rooms’ for transformative change through more effective enforcement of those international criminal norms that have been ‘transformed’ into national law through implementation legislation. The permeation of international criminal norms into the domestic sphere represents a foray of universal values into an area traditionally dominated by sovereign might and holds potential for promoting the interests of individuals as well as for the institutionalisation of human rights. Yet, as illustrated by the current rift between the ICC and the African Union, international and regional political affiliations may influence the ability of a state to meet its obligations towards international criminal justice. In Part IV (Chapter 8), it is submitted that ICL is historically and ontologically aimed at change that is both backward-looking (repressive) and forward-looking (normative) as well as beneficial in a communitarian sense. ICL’s transformative value derives from the value-and purpose-driven nature of international criminal norms, the political nature of international criminal justice and also from the interaction between international law and domestic legal systems. ICL may be viewed as an authoritative expression of the norms and values of the international community. As such, ICL and its institutions may be viewed not only as a means of punishing the perpetrators of international crime, but also as part of the spearhead towards a desired alternative to the historical and present reality characterised by injustices which have gone unabated under the system of traditional Westphalian sovereignty. As egregious forms of the aforementioned injustices, macro criminality and impunity undermine the protection of internationally recognised individual rights. ICL seeks to remedy this through impacting on those individuals that have not yet acceded to the emergent universal consciousness of the majority in the international community. It is further argued that ICL’s transformative impact is not confined to the “hard” impact of the application of substantive ICL in international and domestic courts. The international criminal justice system as a whole also produces a normative impact through a purpose-driven association with international values and certain political preferences. This thesis offers a new way of thinking about the value, potential and limitations of the ICL regime, as well as the role of politics in international criminal justice.
AFRIKAANSE OPSOMMING: Die eksistensiële krisis van die internasionale strafregbestel is stellig iets van die verlede. Dít word bevestig deur die toenemende hoeveelheid positieweregsmateriaal en die bestaan van verskeie internasionale strafhowe, in die besonder die permanente Internasionale Strafhof wat sedert 2002 in werking is. Daarbenewens is dit beduidend dat internasionale strafreg (hierna ‘ISR’) na binnelandse toepassing begin verskuif, bepaald as gevolg van die komplementariteitsregime wat die Rome Statuut van die Internasionale Strafhof beoog. State is oor die algemeen ontvanklik vir, en tegemoetkomend jeens, internasionale strafnorme sowel as die strukture van internasionale strafregspleging. Gevolglik word internasionale strafwette al hoe meer tot in nasionale wette getransformeer en binnelands deur state toegepas. Hoofstuk 2 bied ’n oorsig van bogenoemde ontwikkelings, die kenmerke van ISR en bepaalde kernbegrippe. In die lig van die opwaartse ontwikkelingstrajek van ISR, het dié tesis ten doel om te bepaal of die invloed wat ISR uitoefen, oor ‘transformasiewaarde’ beskik. Hoofstuk 3 ondersoek hierdie begrip deur die verskillende betekenisse van transformasie uiteen te sit en die versweë kenmerke van transformerende verandering, veral die onderliggende belang van waardes in die transformasieproses, te bepaal. Transformasiewaarde word in die breë verstaan as die produk en potensiaal van die soort verandering wat een of ander nut het vir die civitas maxima (of die gemeenskap van die mensdom). In deel II word die transformasiewaarde van ISR uit ’n historiese en internasionale hoek ondersoek, met die klem op die doel, waardes en politiek van internasionale strafregspleging. Hoofstuk 4 konsentreer op die Neurenberg- internasionale militêre tribunaal en die verhoor van Adolf Eichmann. Daar word aangevoer dat hierdie verhore ’n paradigmaverskuiwing teweeggebring het wat die transformerende grondslag van moderne ISR gelê het. Hoofstuk 5 verken die doelwitte en aspirasies van moderne ISR aan die hand van die onderliggende aannames en oogmerke daarvan. Laasgenoemde is te vinde in die positiewe reg en regsleer van internasionale strafhowe. Die navorsing doen aan die hand dat die oogmerke van ISR uniek is in vergelyking met dié van binnelandse strafreg. Hoewel straf ingevolge ISR onteenseglik ’n hoofsaaklik terugblikkende oefening in die vergeldingstradisie van nasionale strafreg is, is ISR tog ietwat verwyderd van hierdie paradigma vanweë die doel- en waardegedrewe aard daarvan. ISR is in baie opsigte ook ekspressief, normatief en toekomsgerig. Individuele strafregtelike aanspreeklikheid word egter nie allerweë as ’n toepaslike reaksie op kollektiewe geweld aanvaar nie. Dít is deels ’n gevolg van die endemiese politieke afhanklikheid van ISR. Hoofstuk 6 handel derhalwe oor die impak van politiek op die transformasiewaarde van ISR. ISR hou ten nouste verband met liberaal-legalistiese ideale wat in wese individue se belange bevorder. Hoewel dit ’n belangrike element van die ISR-transformasiewaarde uitmaak, stel hierdie politieke invloed ISR ook bloot aan kritiek, en kan dit ’n ontwrigtende uitwerking op die transformasiemandaat daarvan hê. In dié verband word daarop gelet dat ISR ietwat omstrede bly, sowel as onderworpe aan die algemene beperkinge van die gedesentraliseerde en staatsoorheerste internasionale regstelsel. In deel III word die transformasiewaarde van ISR aan die hand van Suid-Afrika as gevallestudie ondersoek, met bepaalde verwysing na die oorgangs- en na-oorgangstydperke van die land. Hoofstuk 7 bied ’n binnelandse beskouing van die transformasiewaarde van ISR deur ondersoek in te stel na die wisselwerking tussen ISR en die Suid-Afrikaanse regstelsel, veral die waarde van die transformasie van ISR tot in die nasionale reg. In hierdie verband word daar besin oor die impak van grondwetlike bepalings en nasionale wetgewing met betrekking tot ISR, sowel as ’n aantal hofsake in verband met aangeleenthede van internasionale strafregspleging. Daar word aangevoer dat internasionale strafnorme in binnelandse verband straks mensewaardes bo staatsgesag en politieke belange bevorder. Binnelandse howe dien moontlik as ‘enjinkamers’ vir transformerende verandering, deur daardie internasionale strafnorme wat deur inwerkingstellingswetgewing tot in die nasionale reg ‘getransformeer’ is, doeltreffender toe te pas. Die deurdringing van internasionale strafnorme tot in die binnelandse sfeer stel ’n verskeidenheid universele waardes bekend op ’n gebied wat tradisioneel deur soewereine mag oorheers is, en hou potensiaal in vir die bevordering van individuele belange sowel as vir die institusionalisering van menseregte. Soos die huidige skeuring tussen die Internasionale Strafhof en die Afrika-unie egter toon, kan internasionale en streek- politieke bande ’n invloed hê op ’n staat se vermoë om sy verpligtinge teenoor internasionale strafregspleging na te kom. In deel IV (hoofstuk 8) word aangevoer dat ISR histories en ontologies afgestem is op terugblikkende (onderdrukkende) én toekomsgerigte (normatiewe) verandering, sowel as verandering wat een of ander gemeenskapsvoordeel inhou. Die transformasiewaarde van ISR spruit uit die waarde- en doelgedrewe aard van internasionale strafnorme, die politieke aard van internasionale strafregspleging, sowel as die wisselwerking tussen internasionale reg en binnelandse regstelsels. ISR kan as ’n gesaghebbende openbaring van die internasionale gemeenskap se norme en waardes beskou word. As sodanig, is ISR en die instellings daarvan nie net ’n middel om die plegers van internasionale misdaad te straf nie, maar ook deel van die strewe na ’n wenslike alternatief vir die historiese én huidige realiteit, wat gekenmerk word deur onregte wat ongebreideld onder die stelsel van tradisionele Wesfaalse soewereiniteit voortduur. Makrokriminaliteit en strafloosheid, synde uiterste vorme van voormelde onregte, ondermyn die beskerming van internasionaal erkende individuele regte. ISR beoog om dít reg te stel deur ’n invloed uit te oefen op daardie individue wat nóg nie die ontluikende universele bewustheid van die meerderheid in die internasionale gemeenskap openbaar nie. Daar word voorts betoog dat die transformerende impak van ISR nie tot die ‘harde’ impak van die toepassing van substantiewe ISR in internasionale en binnelandse howe beperk is nie. Die stelsel van internasionale strafregspleging in die geheel het ook ’n normatiewe impak deur middel van ’n doelgedrewe verbondenheid aan internasionale waardes en bepaalde politieke voorkeure. Hierdie tesis bied ’n nuwe denkwyse oor die waarde, potensiaal en beperkings van die ISR-bestel, sowel as die rol van politiek in internasionale strafregspleging.
Humboldt-Universität zu Berlin for financial support
Stellenbosch University for financial support

This thesis presents an account of the development of Scots criminal law which concentrates on the influence of the Scottish moral tradition, as epitomised by Calvinist theological doctrine and Scottish Enlightenment moral philosophy. It argues that there are several crucial but seldom-acknowledged points of similarity between the Calvinist aim of creating a holy community and key tenets of eighteenth century Scottish moral thought, which rest upon community-oriented conceptions of the nature of morality and society. Both these shared conceptions and the particular ways they are expressed in Calvinist creed and Enlightenment philosophy are shown to have had a bearing on the way that Scots criminal law changed over time. The areas in which this influence is demonstrated are: the scope and principles of the law, i.e. the type of conduct that was punishable and the arguments that were put forward to justify its prohibition; the attribution of criminal responsibility (and non-responsibility); and the importance of mental state. It is argued that in each of these discrete areas changing perspectives on the nature of morality and human agency had a palpable impact on both legal doctrine and practice. When these different areas of the law are viewed as a whole and in historical perspective, the formative force of the Scottish moral tradition becomes clear and its influence can be seen to have extended into the contemporary law. The thesis therefore provides an original interpretation of the history of Scots criminal law by considering its sources and institutions from hitherto unexplored theological and moral perspectives, whilst simultaneously enhancing scholarly appreciation of certain aspects of the contemporary law that appear unusually moralistic. It also makes a broader contribution to socio-historic scholarship and strengthens its position as a recognised and worthwhile discipline by illustrating, using a concrete legal system, how legal history can enhance debates within criminal law theory and vice versa.

In the traditional paradigm of criminal law and punishment, which is based on retribution and desert, mercy is seen as the whim of a sympathetic judge. Forgiveness is the private, emotional response of a victim, and, as such, has no place in the law. Justice requires that criminal law is fair, rationally objective and proportionate. Compassionate judges who show mercy to an offender fail to make a ‘just’ decision, as mercy does not treat like cases alike. A victim who wishes to forgive may do so privately, but compassion or revenge alike will be excluded from any sentencing decision. Despite this, there is evidence of forgiveness and mercy at work, albeit in limited ways. Restorative justice practices, sympathetic to forgiveness, are incorporated into recent sentencing guidelines. Victim personal statements are now a right, not a rarity, and they are sometimes used to express forgiveness. Some criminal defences closely resemble forgiveness by any other name. Judges engage in merciful sentencing, and the compassionate emotions have been recognised in guidelines for prosecutors on ’mercy killing’. These concepts are frequently confused with mitigation and lenient sentencing. This thesis will argue that there is a role for forgiveness in the criminal justice system, and that the gap between the private ethics of forgiveness and public mercy is narrowing. The traditional approach is to argue that Kantian retributivism must be redrawn. Forgiveness needs better definition if it is to be acknowledged in the criminal justice system at all. A total paradigm shift is unnecessary, but we can draw inspiration from alternative theoretical bases for criminal punishment, which view the subject differently. Forgiveness does not take place through a ‘one-off’ act but is rather through a process. The criminal justice system must accommodate those who wish to express it. This idea is not founded on reason alone, but recognises the offender as an interdependent subject. If the offender is regarded as responsible to others, and reasoned objectivity is not the only basis on which we can assess his guilt, or contemplate punishment, then forgiveness is possible and compatible with the demands of justice. This justice can accommodate the spirit of forgiveness, rather than automatically excluding it.

The criminal law is the most coercive institution of social control in the modern liberal state. It criminalizes conduct, prosecutes individuals, and treats offenders in ways that under other circumstance we would consider as serious violations of individuals’ rights. At a time when this institution has been described as a lost cause serving immoral ends, it is all the more urgent to provide a normative account of the criminal law’s limits and scope of action (ch.1). A starting point of this thesis is that any successful normative account of the criminal law must ground penal principles and practices in an explicit, and sufficiently delimited, political philosophy. This thesis does just that: it advances an account of the criminal law and criminalization that derive from central premises of classical liberalism. I contend that an account shaped by such liberal values and premises is capable of responding successfully to one of the most urgent predicaments of the criminal law today; that is, the abuse of coercive power by the state through the enactment of criminal statutes. This is the problem of overcriminalization (ch.2). The argument for such a liberal model of the criminal law proceeds in two general steps. First, I offer a general account of the state institutions of a free society; a free association of individuals committed to basic principles of equal liberty for all. I argue that, insofar as they are genuinely liberal, these institutions should serve the purposive nature of individuals and their basic interest in living their lives as they think fit (chs.3-4). This ‘service conception’ of the function of state institutions is specified further in terms of the principle of freedom of association – a sine qua non of free social coexistence. This is a general principle of political morality that holds that purposive individuals have a liberty-right to enter into associations with others for any purpose and duration in time, compatible with the same liberty for all, and with no constraints whatsoever on the voluntary benefits and obligations that may emerge from this association. Second, I argue that, within the sphere of the criminal law, our commitment to this general principle of political morality means using the coercive power of the state only to regulate conduct that violates at least one of two basic preconditions of free association. These preconditions are the claim-right to bodily ownership, and – derivatively – the claim-right to ownership in external things (ch.5). These two claim-rights represent the two juridical goods that the criminal law in a free society is to honour and protect and, thus, they constitute the limits of legitimate penal coercion in a free society. Finally, and in order to show the capacity that this abstract model has to respond to the concrete problem of overcriminalization, the thesis presents the two principles of criminalization that derive from the basic preconditions of free association: the principle of direct violation of bodily ownership and ownership in external things, and the principle of effective reduction of violations. Unlike other influential liberal principles of legitimate penal coercion considered in this work – namely, the harm principle, penal paternalism, penal moralism, and penal consequentialism – I argue that this two-principle model has the capacity to respond successfully to different forms of overcriminalization (chs.6-7).

Thesis (S.J.D.)--University of Sydney, 2004.
Title from title screen (viewed 8 May 2008). Submitted in fulfilment of the requirements for the degree of Doctor of Juridical Studies to the Faculty of Law. Includes bibliographical references. Also available in print form.

International criminal courts do not operate to the exclusion of national legal orders, but co-exist with them. The present thesis provides an in-depth analysis of the above relationship. By examining the concepts of primacy and complementarity on the basis of which the ad hoc international criminal Tribunals and the permanent International Criminal Court seize jurisdiction, the foundations of the interface are explored. As effectiveness is a key concept to international criminal justice, the relationship between international criminal courts and national legal systems is tested, by examining the co-operation regimes envisaged in the Statutes of both the Tribunals and the ICC, as well as the problems that arise in practice. Moreover, the way the UN Security Council affects State interplay with international criminal justice institutions is crucial for a holistic understanding of the limitations of the interaction. The final part of the thesis focuses on national incorporation efforts and provides a detailed analysis of implementing legislation of a number of key States with a view to discerning some common approaches and highlighting problem areas. The present thesis argues that despite the different constitutional bases of the Tribunals and the ICC, similar questions of interface with national courts arise and the challenges presented could be better tackled by aiming for a "functional or workable interaction". Overall, the originality of this thesis lies in its analytical approach. By scrutinising a number of crucial aspects of the relationship between international criminal courts and national legal orders an overview of the research question posed is achieved. Moreover, the examination of the legal principles and their practical application is complemented by a comprehensive discussion of national implementing legislation which has not previously been attempted in a similar manner. [Files associated with the accompanying CD-ROM (print version) are available on request to subject librarian.]

In the late 1980s, a series of disasters was witness in the United Kingdom, such as the King's Cross Underground fire, the Piper Alpha disaster, the Clapham Junction Railway accident and the capsize of the ferry "Herald of Free Enterprise" at Zeebrugge. Although the following inquiries and reports highly criticised corporations for their poor management and organisation relevant to the risk of harm inherent in their activities, very few prosecutions for manslaughter have followed. Since the occurrence of these disasters, however, an increasing perception that deaths caused through corporate operations should comprise a category of corporate manslaughter has gradually become embedded in the public mind, and the publication on March 1996 of the Law Commission Paper dealing with corporate killing has brought about legal debates concerning how to hold corporations criminally liable for manslaughter. In addressing these legal issues, this thesis first traces the historical development of corporate criminal liability in English law and examines the current status of corporate liability for manslaughter. Then, it indicates practical and theoretical flaws from which most existing theories for corporate manslaughter suffer, and propounds a new theory of corporate liability for manslaughter by which both corporate and individual offenders can be held liable under the same conditions. Finally, it considers corporate defences and sentencing factors in the context of corporate manslaughter

The research question central to the thesis is stated as follows: what are the implications of new technological phenomena in South African law to the existing legal frameworks in relation to (i) investigatory powers of law enforcement and security and intelligence agencies to obtain electronic evidence, and (ii) its subsequent admissibility in criminal proceedings? Written with an emphasis on South African law, but also taking into account aspects of foreign and international law, the thesis seeks to investigate how our existing legal frameworks which regulate the use of and access to electronic evidence in criminal proceedings, including its admissibility, integrate and adapt to challenges raised by new and rapidly changing technological developments. The thesis provides a critical analysis of the existing legal framework regulating certain key investigative powers of law enforcement and security and intelligence agencies in the current modern environment of the information age in which they operate. Key among them is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002. New technology has not only increased opportunities for criminal activity, it has also created opportunities for law enforcement and security and intelligence agencies to have access to more sophisticated and new capabilities. The range of intrusive capabilities now available to law enforcement and security and intelligence agencies triggers a range of issues and challenges for individual rights, including how those capabilities are used in investigation activities, the scale of their use, the extent to which such capabilities intrude on privacy rights, legislative authority for their use and safeguards that constrain and regulate such new technological capabilities. The challenges of regulating investigative powers in an era of new and fastpaced technological developments is explored in relation to (i) interception of communications (ii) acquisition and retention of communications data, and (iii) access to encrypted information. The introduction of electronic evidence in criminal legal proceedings raises unique challenges in the South African law on evidence. The most interesting perhaps is the extent to which the nature of the evidence presented, in this instance electronic evidence, impacts on admissibility in criminal proceedings. Potential anomalies arise as the relevant legislation, the Electronic Communications and Transactions Act 25 of 2002, is based on an electronic commerce model law concerned with commercial activities. In this regard, two separate issues are the focus of research interest. The thesis offers a rethinking of (a) admissibility of electronic evidence and (b) its weight. The meaning and application of certain statutory provisions, insofar as it applies to electronic evidence as hearsay or real evidence, or both, are key and controversial issues. Another relates to the business records exceptions, which directly translated for electronic records appears to have created a problematic presumption. On matters of evidential weight, there is no ‘one-size-fits-all' approach that will work. While a robust consideration of authentication is required in the court's assessment of evidential weight of electronic evidence, it should not be subject to inflexible tests that make it difficult for authentic electronic evidence to be admitted into evidence. A central premise of the thesis is that evolving technological phenomena can and do present challenges to existing legal concepts on evidence and the investigatory powers of law enforcement and the security and intelligence agencies to obtain electronic evidence and for its admissibility in criminal proceedings. This is done in the context of understanding whether South African law has developed appropriately in response to advancements in technology. In the final analysis, the thesis considers appropriate and meaningful reform towards a modern and transparent legal framework in South African law.

In the last four decades, there has been a dramatic increase in the number of fresh evidence cases before Canadian criminal law appellate courts. Yet when it was first introduced at the turn of the last century, this rule of evidence was meant to be an exception to the principle of the finality of judgments, to be used only on those rare occasions when a miscarriage of justice had occurred. It was intended to prevent the innocent from going to jailor worse, from perishing on the gallows. Historically, fresh evidence was used but rarely prior to 1970. However, starting in the mid 1970s these applications have grown significantly, exploding after the early 1980s. Based on an analysis of an initial database of 2116 fresh evidence matters, the thesis examines the possible reasons for this phenomenon and concludes that there is a direct correlation between the rise in the number of fresh evidence cases after 1970 and the advances in science, including the use of new evidence, such as DNA and expert forensic evidence in criminal law cases. But if the advances in science have made a significant contribution to the growth of fresh evidence applications, it was the advent of the Canadian Charter of Rights and Freedoms that brought a sea change to Canadian criminal law fresh evidence jurisprudence. Through a theoretical framework constructed around the search for truth, rights and theories of fairness, the thesis traces the evolution of appellate adjudication in this area of law that from its origins was meant to be used but rarely in the interests of the administration of justice to prevent miscarriages of justice.

The thesis is a historical study from a socio-legal perspective of debates about, and developments in, criminal investigation law in NSW since 1945. In that period, the NSW parliament has enacted extensive criminal investigation powers and safeguards. This can be seen as the result of the increasing political sensitivity of 'law and order'. Politicians have sought to exercise (and demonstrate) greater control over the criminal justice system. Legislation has been employed to provide a framework for police actions, and to define a role for others, including judges, magistrates and the Ombudsman. Political focus on law and order has also reversed the incentive structure for the police hierarchy. In the 1950s, there were strong incentives not to push for extra powers, lest policing practices and effectiveness receive unwanted scrutiny. In the 1970s, police were dragged into debate about their powers, in the face of the 'authorise and regulated' model suggested by numerous inquiries. More recently, police organisations have often initiated calls for new powers, in part to explain past failings. Another important factor driving debate and reform in recent decades has been the proliferation of oversight agencies, and academic insights that have debunked the 'rotten apple' paradigm. The Federal Government and Parliament have also been increasingly active in what would once have been considered purely State/Territory realms of criminal justice law and politics. These major influences have been coupled with a host of others, including the impact of a series of Royal Commission and law reform reports, the ongoing war on drugs, and the campaign against police verbals in the 1970s and 1980s. The examination of the forces that have influenced debate and reform yields other insights. For example, the complexity of the phenomenon of 'non-reform' is apparent from an examination of debates about policing in the 1950s. Prevailing trends in law and order politics (eg, that populist politics supports additional powers) can be seen to be anchored in the contemporary political context rather than being timeless truths. The multiple roles of law, in governing relationships between state agencies and actors, not just between police and suspects, are also highlighted.

On 17 July 1998, a total of 120 States, including Malawi, voted for the adoption of the Rome Statute of the International Criminal Court. The ermanent ICC became operational on 1 July 2002. The ICC has jurisdiction over the crime of genocide, crimes against humanity, and war crimes. These crimes are the most serious crimes of international concern. The 
ICC operates under the principle of complementarity, which entails that the ICC will only assume jurisdiction over these core crimes in the event that a State Party is unwilling and unable genuinely to carry out the investigation and prosecution. States Parties have, therefore, the primary responsibility to investigate and prosecute these crimes. The States 
Parties must therefore establish jurisdiction to conduct investigations and prosecution of these core crimes. It is from that background, coupled with the historical evolution and development of international criminal law, with regard to individual criminal responsibility, that this paper argues for the implementation of the Rome Statute in Malawi, through 
domestic legislation.The paper thus argues that only through domestic legislation can the purports of the Rome Statute be achieved and fulfilled by Malawi.

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The goal of this thesis is to present how Brazilian law treats terrorism. In particular, it seeks to develop a model bearing the core characteristics that an effective criminal law must have to fit the country’s reality. We intend to conduct a thorough critical analysis of the current law, and present the requirements to design an adequate one. Therefore, the study path starts with an overview of Law 7170/83, which allegedly criminalizes terrorism in Brazil. Next, we will show how international laws and agreements signed by Brazil obligate the country to have a law against terrorism. Finally, the text will show that adoption of a criminal law is one of the several approaches to dealing with terrorism and how civil liberties can be affected by the decision to criminalize such acts. In this context, and to show foreign experiences, we will use the comparative method to study the experience of six countries regarding criminal law dealing with terrorism: Argentina, Chile, Colombia, Peru, the United States of America, the United Kingdom of Great Britain, and Northern Ireland.

Gender justice is an important component of contemporary international criminal law. Feminist scholars and practitioners have been instrumental in advancing gender law reform within international criminal law and a key outcome has been the prosecution of conflict related sexual violence, in particular through the work of the Ad Hoc Tribunals for Rwanda and the Former Yugoslavia, as well as analysis of the Extraordinary Chambers in the Courts of Cambodia. This thesis argues that, despite these important gains with respect to gender justice in international criminal law, there has been inadequate attention to women as potential perpetrators, defendants, and suspects of international crimes. In addressing the absence of female defendants from prosecution under international criminal law, I argue that expectations with regard to gender are reproduced in international criminal law without sufficient understanding of the diversity of gender as a power relation reproduced intersectionally with other power relations. Following Engle's work on the hypervisibility of women as victims of sexual violence, the thesis analyses female defendants in legal and cultural contexts to examine female violence in armed conflict, beyond gendered meanings. Furthermore, through drawing on feminist approaches from MacKinnon to Kapur, to examine constructions of gender, sexuality, race and class, within law, the thesis challenges narrow assumptions with respect to gender in armed conflict that collapse into stereotypes of raced victimhood and sexual vulnerability. Gender is understood, not as a form of identity, but as a power arrangement that is implicated in racial, ethnic, classist, and socio-economic understandings of conflict and of culture. Thus, enhanced understanding of the complexity of gender in armed conflict is advocated through the study of female defendants. The thesis highlights representations of women accused of international crimes in the ICTY, ICTR, and the ECCC, and identifies tensions between international and domestic dialogues as a result. The study of the ICTY demonstrates the friction between the pursuit of gender justice and the limited gendered narratives women are represented through in depictions of the conflict in the Former Yugoslavia. Similarly, in the ICTR the thesis demonstrates a racialised preoccupation with violence that further reproduces gender, minus its complex relation with race stereotypes. In the study of the ECCC the absence of female defendants is analysed via tensions between local and international perceptions of political leadership, law, and gender. This is not a study of the stories of individual female defendants; rather the research explores how understandings of gender, international law, and armed conflict shift when female defendants are positioned as the focus of analysis.

What is the state's duty to penalize serious interpersonal exploitation using the criminal law? Does the state discharge this duty appropriately? These are large questions and this thesis sets out to reassess one part of the puzzle of exploitation. The focus is upon interpersonal exploitation and property offences in England and Wales. Criminal law commentators frequently state that several property offences are justified on the basis that they penalize exploitation. For example, the tendency has been to assume that section 1 of the Fraud Act 2006 performs this function, together with its accompanying sentencing guidelines. One of the objectives of this thesis is to expose the precarious foundations of relying upon existing property offences to censure exploitation. For example, it is not clear what the scope of the wrong of exploitation under discussion actually is. This thesis argues that analysis of the relationship between wrongful interpersonal exploitation and property offences has been woefully superficial in English law and is ripe for reappraisal. The second objective is to identify and to elucidate a hitherto neglected wrong of acquisitive exploitation. An analytical account of the wrong is presented which will be of interest to criminal law theorists. Acquisitive exploitation represents a distinctive method of using vulnerable persons, under the cover of dishonesty. With a careful account of wrongful acquisitive exploitation in hand, the third objective is to raise questions about criminal liability for acquisitive exploitation. Ought the criminal law to penalize acquisitive exploitation, and, if so, how? Are there grounds for penalizing acquisitive exploitation more consistently and with improved labelling? These questions must be thoroughly debated. A credible opening bid is presented in relation to them - first, by considering whether acquisitive exploitation might be used to more fairly label property offences; and second, by assessing justifications for a substantive acquisitive exploitation offence.

This thesis explores the English doctrine of joint criminal enterprise by way of a comparative study. Joint enterprise allows for the conviction of an accomplice (S) of an offence (crime B) committed by his associate-in-crime (P) on the basis of S's foresight of its commission by P as a possible incident to their joint criminal venture (crime A). While it is generally accepted that this common law principle needs reforming, successive governments have declined to take on the task. Against this backdrop, this thesis explores whether the contentious features of joint enterprise liability might be reformed by way of common law development. To this end, the thesis examines the doctrine's constituent elements, its function, underlying rationale and place within the structure of primary and secondary liability. Particular emphasis is put on the specific problems associated with the application of joint enterprise liability in the context of murder. Looking at the functional equivalents of joint enterprise in German law, the thesis challenges the orthodox view that joint enterprise is a head of liability available to the prosecution alongside co-perpetration and aiding and abetting. Indeed, it argues that an inculpatory function of the principle is difficult to justify and suggests that, both historically and as a matter of principle, it is better seen as an exculpatory device aimed at delineating the scope of co-perpetration and aiding and abetting. The thesis concludes that the current law does not serve this function very well, as its mens rea threshold (some form of recklessness, when proof of intention is needed to convict the principal offender) sets the hurdle for conviction of secondary parties indefensibly low. Informed by ideas taken from German law - especially an extended concept of intention known as dolus eventualis - the thesis's principal contention is that English law would do better defining joint enterprise liability in terms of foresight plus endorsement. Indeed, the thesis aims to show that English law was very close to such a conception, and that the common law took a wrong turn in Powell. It concludes that it is still open to the Supreme Court to adopt an endorsement-focussed approach to joint enterprise liability, thereby alleviating concerns that the law in this area is too harsh and over-inclusive, and bringing it closer to the threshold of liability for principal offenders which requires proof of intention. Such an approach would also make the law of complicity more principled and coherent.

The Austrian Act of Corporate Criminal Liability came into force on January 1, 2006. Since then, associations can be penalized for judicially criminal acts of their decisionmakers and / or employees. A criminal liability of the association presupposes that the offense was committed in favor of the association and, that the criminal offense violates the duties determined by the association (association duties). In the case of a violation against the VbVG, the court will impose an association fine, which depends on the annual yield of the association. In addition, an instruction can be issued for compensation for damage. In 2018 there were counted 341 preliminary investigations against associations, of which only 28 resulted in an indictment. Only in five cases, there was a conviction, and an association fine was imposed.

As soon as Gaddafi, through a military coup d’etat, had seized power in 1969, he made it clear that Islam would be an important source of inspiration for him. He almost immediately banned alcoholic beverages and, from 1971, he introduced legislation laying down that stipulations of interest were null and void. In the same year a committee was set up to prepare the Islamisation of the Libyan legal system. The committee’s activities resulted in four laws with regard to the hard crimes and related offences, enacted between 1972 and 1974. When you are citing the document, use the following link http://essuir.sumdu.edu.ua/handle/123456789/33868

Doctor Legum - LLD
This contribution looks at the relevance of conspiracy in international criminal law. It establishes that conspiracy was introduced into international criminal law for purposes of prevention and to combat the collective nature of participation in commission of international crimes. Its use as a tool of accountability has, however, been affected by conflicting conceptual perceptions of conspiracy from common law and civil law countries. This conflict is displayed in the decisions on conspiracy by the international criminal tribunals, and finally culminates into the exclusion of punishment of conspiracy in the Rome Statute. It is questionable whether this latest development on the law of conspiracy was a prudent decision. While the function of conspiracy as a mode of liability is satisfactorily covered by the modes of participation in the Rome Statute, its function as a purely inchoate crime used to punish incomplete crimes is missing. This study creates a case for inclusion in the Rome Statute, punishment of conspiracies involving international crimes that do not extend beyond the conceptual stage, to reinforce the Statute’s purpose of prevention. This conspiracy should reflect the characteristics of conspiracy acceptable under both common law and civil law systems. This means excluding the far reaching and often problematic characteristics exemplified in the common law conspiracy.

The goal of the thesis is to explore how a concept of fair criminal evidence in Europe can be utilised by the EU in its further steps of integration in the area of European Criminal Law. The answer to this question presupposes that there is indeed such a concept and the exploration can be further split in two questions. Which are the characteristics of a concept on evidential fairness in Europe? Which are the applications of this concept in EU Criminal Law? As far as the characteristics of such a concept are concerned, it is argued that fairness in evidential matters in a European level comes into existence in the realm of the Council of Europe. Article 6 of the European Convention on Human Rights is presented as evidence-­‐relevant, while the context of Strasbourg’s case law is proposed as the right platform for finding the material needed for the distillation of the principles of evidential fairness. In relation to the second question, the interest moves into the European Union and the evidential matters in the context of judicial cooperation in criminal matters. More specifically, it is discussed how the findings about a fair criminal evidence concept apply to the judicial cooperation in criminal evidence in EU level. By the term ‘applying’ it is meant the testing of two different conditions; firstly, if the principles adopted are already followed in practice, and to what extent, and secondly, how they can improve and adjust the existing system. In this process the key role of mutual recognition’s character is demonstrated and particular amendments to existing and future legislative instruments such as the European Evidence Warrant and the European Investigation Order are proposed.