The Problem with Entrapment

In R v Looseley; Attorney General’s Reference (No. 3 of2000) the House of Lords articulated a legal framework to govern‘entrapment’ in criminal cases. Their Lordshipsregarded the need for judicial intervention to assist entrappeddefendants as uncontroversial. This article argues that thedoctrine they set out, in fact, necessitates substantial, andlargely unarticulated, departures from principles the courtsordinarily stress as fundamental to the criminal law. In particular,entrapment doctrine determines liability for criminal acts byreference to the kind of environment inhabited by their perpetrators,a perspective the law ordinarily attempts to exclude. This articlesuggests that the anomalous treatment of entrapment can be understoodas a device to prevent the police from relocating the temptationto commit crime to environments in which they are not ordinarilyconfronted and to ensure that those from backgrounds in whichserious criminality is not usually a plausible option will escapepunishment if tempted to commit crime by the police.     

Joint Criminal Enterprise and Command Responsibility

The joint criminal enterprise doctrine appears more and moreas the ‘magic weapon’ in the prosecution of internationalcrimes. Yet, the doctrine not only gives rise to conceptualconfusion and conflicts with some fundamental principles of(international) criminal law but also invades the traditionalambit of command responsibility liability. This becomes obviousif both doctrines are applied simultaneously in cases againstaccused with some kind of superior position. After a short introductionon both doctrines, as interpreted in modern case law, the articlegives some examples of their simultaneous application and triesto develop distinguishing criteria in light of the case lawand a ‘dogmatic’ analysis of both the doctrines.A reference to the theory of ‘Organisationsherrschaft’shows that there is yet another option to impute internationalcrimes to top perpetrators.     

Is Terrorism a Crime or an Aggravating Factor in Sentencing?

Common law systems, in criminal cases, distinguish between theguilt/innocence proceedings and the sentencing stage. This isnot the case in civil law systems where criminal trial consistsof a single phase, combining the inquiry into guilt with sentencing.Under common law practice many facts relevant for sentencingare considered irrelevant at the stage of finding guilt forthe commission of the crime. Aggravating elements, therefore,address a fundamental distinction of substantive criminal lawbetween guilt and dangerousness: guilt is a determination ofresponsibility for a prior wrongdoing; dangerousness is a speculativefuture determination. The intensification of terrorist activityin the past few years has made terrorism one of today's mostpressing problems. But is terrorism a crime or an aggravatingfactor in sentencing? In this article, the author challengesconventional wisdom regarding the meaning of ‘terroristcrimes’, by providing a conceptual understanding of ‘terrorism’,as well as articulating a theory of guilt. Terrorists seldomexpress ‘guilt’. The word ‘terrorism’describes, instead, an overriding motivation, a way of acting,rather than the objective circumstances of acting. Terrorismis nothing but common crimes although committed with an overridingmotivation of imposing extreme fear on the nation as such. Theauthor presents the conceptual grounds of the phenomenon ofterrorism as it has evolved through history, before enquiringinto the meaning of ‘terrorist crimes’: the overridingmotivation associated with the concept of terrorism constitutesthe degree of cognate dangerousness of terrorist crimes.     

Violence and Massacres -- Towards a Criminal Law of Inhumanity?

The law's responses to massacres seem to vacillate between twomodels: (i) the model of the ‘criminal law of the enemy’inspired by the national criminal law and rendered topical againby the attacks of September 11; (ii) the model of the ‘criminallaw of inhumanity’ symbolized by the paradigm of crimesagainst humanity. The latter model is better suited to takeaccount of the qualitative dimension of massacres, i.e. thefact that they, besides being mass offences (quantitative criterion),also offend against humanity. To establish a ‘criminallaw of inhumanity’ as a model with a universal, or universalizable,dimension, three conditions are necessary, which concern (i)the definition of the crimes, (ii) the assignment of responsibilityand (iii) the nature of the punishment. As for the definitionof the crime, one could implicitly deduce from the list of actsconstituting crimes against humanity (Article 7 of the InternationalCriminal Court Statute) that humanity so protected has two inseparablecomponents: the individuality of each human being, not reducibleto membership in a group, and the equal membership of each inthe human community as a whole. With regard to the second condition,it is not sufficient to hold responsible the de jure or de factoleaders; intermediaries and perpetrators, at all levels of hierarchy,must also be held accountable. As for the third condition, itis not sufficient to content oneself with the watchword of thefight against impunity without bringing up the nature and functionsof the punishment; hence the necessity not only to rethink therole ‘criminal’ law can play in a policy of punishment,but also to focus on prevention, reparation and reconciliation.Finally, the author suggests that the proposed model of a ‘criminallaw of inhumanity’ must be built through the interplaybetween municipal law and international law. On the one hand,the wealth of national legal systems — also with regardto penalties and responsibility — should be better integratedinto international criminal justice; on the other, nationalcriminal systems should be better adapted to conditions of internationallaw, through the introduction into domestic law of the definitionsof the crimes and also the rules for assigning criminal responsibility.     

The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise

Joint criminal enterprise (JCE) as a mode of liability in internationalcriminal law is a concept widely upheld by international caselaw. It has, however, been harshly attacked by commentators,particularly with regard to what has come to be known as the‘third category’ of the notion, that of liabilitybased on foreseeability and the voluntary taking of the riskthat a crime outside the common plan or enterprise be perpetrated.This author considers that while most criticisms are off themark, at least two are pertinent: (i) that the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamberin Tadi (1999) was wrong in indiscriminately using terminologytypical of both the civil law and common law tradition, and(ii) that the foreseeability standard, being somewhat looseas a penal law category of culpability and causation, needssome qualification or precision. Generally speaking, the notionof JCE needs some tightening up. For instance, in Kvoka, anICTY Trial Chamber rightly stressed that the contribution ofa participant in a common criminal plan must be ‘substantial’(the Appeals Chamber, however, disagreed to some extent in thesame case). Furthermore, with specific regard to the third categoryof JCE, the author, after setting out the social and legal foundationsof the foreseeability standard and the motivations behind itsacceptance in international criminal law, suggests various waysof qualifying and straightening it out. One of them could liein assigning to the ‘primary offender’ (i.e. theperson who, in addition to committing the concerted crimes,also perpetrates a crime not part of the common plan or purpose)liability for all the crimes involved, while charging the ‘secondaryoffender’ with liability for a lesser crime, wheneverthis is legally possible. The author then suggests, contraryto a 2004 decision of the ICTY Appeals Chamber in Branin, thatthe third category of JCE may not be admissible when the crimeother than that agreed upon requires special intent (this appliesto genocide, persecution as a crime against humanity, and aggression).In such cases, the other participants in JCE could only be chargedwith aiding and abetting the crimes committed by the ‘primaryoffender’ if the requisite conditions for aiding and abettingdo exist. The author then suggests that the view propoundedin 2004 by an ICTY Trial Chamber in Branin is sound, namelythat the general notion of JCE may not be resorted to when thephysical perpetrators of the crimes charged were not part ofthe criminal plan or agreement, but rather committed the crimesunaware that a plan or agreement had been entered into by anothergroup of persons. In conclusion, he contends that this qualifiednotion of JCE, in addition to being provided for in customaryinternational law, does not appear to be inconsistent with abroad interpretation of the provision of the ICC Statute governingindividual criminal responsibility, that is, Article 25, inparticular 25(3)(d).     

The Nuremberg Trial and its Impact on Germany

The impact of the Nuremberg trial on Germany has changed overtime. It is not only a question of evolving legal debate, butalso a correlation of historical, political and moral developments.The author considers the reception of the International MilitaryTribunal (IMT) trial during the Cold War. West Germany rejectedNuremberg's historic precedent, principally on the grounds thatthe Allies had enforced victors’ justice, and that theTribunal had applied ex post facto law by violating the nullumcrimen principle. Meanwhile, East Germany seemingly took upthe cause of Nuremberg by prosecuting minor Nazi perpetrators.However, this affirmation was politically motivated, and itled to inhumane abuses of power, exemplified by the Waldheimtrials. The reunification of Germany marked the beginning ofa positive approach to the Nuremberg legacy: the new generationof judges, politicians and academics was increasingly sympatheticto international criminal justice, and adopted the Nurembergprecedent by dealing judicially with crimes committed in theEast during the Cold War. The study goes on to deal with therelevance of West German legal critique for modern internationalcriminal law. The author suggests that a distinction shouldbe made between true victims of international crimes and thosewho wish to revise history by portraying themselves as such,as many West Germans did after World War II. Moreover, the ‘victors’justice’ argument must not be used to conceal the factthat justice has indeed been administered. However, the criticismof the IMT's violation of the nullum crimen principle is firmlygrounded in the German, as opposed to Anglo-American, legaltradition.     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

A lively and engaging series of essays

Intellectual Property Stories is the latest title in the ‘LawStories Series’ from Foundation Press (a Thomson/Westimprint), which sets out to explore the stories behind variousnoteworthy US Supreme Court decisions in different areas oflaw, including tax, torts, constitutional law, civil procedureand property. The series was launched in 2003 when ProfessorCaron P (the series editor) published Tax Stories, which workis complemented by an excellent companion website providinga complete record of each of the ten cases discussed in thebook, including lower court opinions, briefs of the partiesand amicus curiae, oral arguments (where available), and theSupreme Court's opinions (www.law.uc.edu/TaxStories). IntellectualProperty     

英国证据法中禁止反言的起源与主要形态

禁止反言是英国证据法的一个重要组成部分,也是诉讼中被作为抗辩理由提出的常用规则。禁止反言的形态从产生到发展已得到不断扩展,而证据法上的禁止反言主要表现为记录禁止反言或者现在更常提及的以先前司法程序禁止反言。民事诉讼中的禁止反言主要包括诉因禁止反言和争点禁止反言,并且通过判例发展出一些例外;刑事程序中的禁止反言只要表现为禁止双重危险（包括先前无罪开释和有罪判决的抗辩）与程序滥用,并通过《2003年刑事审判法》以成文法的形式作了例外规定。     

Assisting an Accused to Represent Himself: Appointment of Amici Curiae as the Most Appropriate Option

Given the proportion and complexity of international criminalproceedings, allowing an accused to represent himself beforean international criminal court might render his defence ineffective,even if the accused is a lawyer himself. If international criminalcourts are not willing to have the accused bear the consequencesof his choice of self-representation, the measure of appointingexperienced Defence Counsel as amici curiae to make legal contributionsto add to the Judges’ informed decisions seems to entailfewer undesirable ethical consequences for counsel than beingadded as ‘standby counsel’ or ‘court assignedcounsel’. Through occupying a neutral position and notbeing required to represent the accused, the amici's input maybalance the flow of defence and prosecution arguments and thuscontribute to the fairness of international criminal trials.The measure of appointing standby counsel or court assignedcounsel to an accused who wishes to represent himself appearsless appropriate, especially from a legal professional perspective.     

Treaty Interpretation and the WTO Appellate Body Report in US - Gambling: A Critique

‘Before the game begins players should agree on a dictionaryto use in case of a challenge.’ (from the Official Rulesof SCRABBLE®)

Treaty interpretation in WTO law continues to represent a topicof highly theoretical and practical importance. The Panel’sand the Appellate Body’s reports in the recent US –Gambling dispute have critically turned on ascertaining themeaning of the United States’ GATS Schedule and ArticleXVI GATS on the basis of the public international law rulesof treaty interpretation as codified in the Vienna Conventionon the Law of Treaties. The paper’s principal aim is toreview the interpretative approach followed in particular bythe Appellate Body in reaching its decision in US – Gambling.Its main argument is that, although the Appellate Body appearsto be trying to emancipate itself from a rigorous textual approach,it has not yet embraced a holistic approach to treaty interpretation,one in which the treaty interpreter looks thoroughly at allthe relevant elements of the general rule on treaty interpretationpursuant to Article 31(1) of the Vienna Convention.     

Duress, International Criminal Law and Literature

This paper uses parallels between Sophocles’ Theban Playsand the House of Lords decision in Dudley and Stephens, to questionthe decision in the Erdemovi case before the International CriminalTribunal for the former Yugoslavia. One should distinguish betweencausal, moral and criminal responsibility. If a man who commitsa crime, not by the action of his free will, is to be foundguilty, we are essentially equating causal responsibility withcriminal guilt. This logic clearly does not correspond withthat of the rest of international criminal law. The storiesof Erdemovi, Oedipus, Dudley and Stephens are tragedies. Eachof the victims/perpetrators felt an overwhelming sense of remorse.Whether they should be considered morally guilty of murder isa matter of individual conscience. The International CriminalTribunal for the Former Yugoslavia majority erred in using anabsolute moral position in Erdemovi. The majority's moral condemnationof the killing of innocents was confused with the question ofwhether Erdemovi should have been criminally punished. The contentof the majority opinion is largely of an irreproachably moralisticnature, though shrouded and mystified by the discussion of precedent.More generally, the decision to try Erdemovi at the InternationalCriminal Tribunal for the Former Yugoslavia was itself self-defeating.Erdemovi should never have stood trial at The Hague. The internationalcommunity should not aid in self-flagellation. While his actionscannot be approved of, they should not be punished internationally.He could have been helped, supported and reintegrated with fargreater benefit to all.         ‘Heroesare hard to find in an atmosphere of total terror.’¹     

The Alien Tort Statute: Blackstone and Criminal/Tort Law Hybridities

The importation of criminal law concepts into the area of civillaw is attracting increasing interest. The United States’Alien Tort Statute (ATS), though principally known for enablinginternational human rights suits to be filed in the domesticcourts of the United States, also imports criminal law notionsinto civil litigation. This article explores the hybrid natureof the ATS in the context of the development of internationallaw, and raises the question of whether ‘grandeur’is a principal reason for the ATS’ existence.     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

Civilized Squatting

This article seeks to trace the origins of the requirement thata squatter must have an intention to possess (animus possidendi)in order to establish title by adverse possession. The requirementhas been confirmed by the House of Lords in the recent caseof Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Its origins canreadily be traced back to the decision of the Court of Appealin Littledale v Liverpool College [1900] 1 Ch 19, but thereis little evidence of any need for intention before that case,and no convincing authority is cited for it. Possible explanationsfor the source of this requirement are considered by the article(for instance cases on re-entry by landlords and the so-called‘found chattel’ cases), but these are ultimatelyrejected. The article goes on to suggest that the reason forthis is that the intention requirement was ‘imported’into English law from German Pandectist writers of the nineteenthcentury. It suggests that Littledale was the case in which thishappened. It seeks to support this hypothesis by reference tobiographical details of Lindley MR, who gave the leading judgmentin Littledale, and who not only trained in part in Germany butalso took an active interest in German scholarship of the time.A brief survey of the relevant German sources is undertaken,focusing primarily on the work of Savigny, but also consideringthe rival theory of Jhering. Finally, it tracks the developmentand refinement of the content of animus possidendi, first by19th century legal scholars and then by 20th century judges,to make it ‘fit’ with English property law. It seeksto address the question of whether the animus possidendi requirementis a free-standing element (the ‘strong’ will theory),or whether it is simply implied from the acts of the squatter(the ‘weak’ will theory), and suggests a solutionby reference to the German sources and later English cases.Finally, it considers how the House of Lords decision in Pyereflects the logical culmination of the acceptance of this ‘legaltransplant’ into the common law.     

An Odd Couple: Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon

This article examines one of the most serious flaws of the Statuteof the Special Tribunal for Lebanon (‘STL’): whileit provides that Lebanese domestic law is the sole source ofcrimes over which the STL will have jurisdiction, it at thesame time applies to these domestic crimes uniquely internationalforms of criminal responsibility, namely joint criminal enterpriseand command responsibility. By doing so, the Statute is in violationof the nullum crime sine lege principle, since it would allowfor the conviction of persons who could not be held responsibleunder Lebanese law. The purpose of this article is to highlightsome ways out of this problem.     

Markem v Zipher--the Court of Appeal provides guidance on entitlement proceedings

Legal and practical context. The Markem v Zipher Court of Appealjudgment provides useful guidance on patent entitlement proceedingsand, more generally, on the conduct of litigation. Key points. (i) Patent entitlement. To bring an entitlementaction under sections 8, 12, and 37 a party must invoke a breachof some rule of law. Validity is only relevant in entitlementproceedings where a patent or part of it is clearly and unarguablyinvalid. A claim-by-claim approach is not appropriate in proceedingsunder sections 8, 12, and 37 and ‘invention’ inthese sections refers to information in the specification. Theproper approach to entitlement should be to identify who contributedto the invention and determine whether he has any rights tothe invention. (ii) Litigation generally. A witness should be cross-examinedas to the truthfulness of his evidence whenever a party wishesto challenge that evidence. Where a party has more than onecause of action relating to the same factual background, considerationshould be given to bringing all causes of action in the sameproceedings to avoid a future claim being struck out for abuseof process. Practical significance. This case highlights the importanceof a properly pleaded case and of the ongoing need to reviewthe case strategy throughout proceedings.     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

State Immunity for Torture

The House of Lords’ ruling in Jones v Ministry of InteriorAl-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia)and others sets an important precedent in the field of internationalcivil claims for torture. It was also the first to address indetail the ratio of the seminal judgment in Pinochet No. 3,a ruling that has given rise to much speculation as to the relationshipbetween State immunity, jus cogens norms and human rights. Thisarticle explores the significance of the Jones case, and, inthe light of that ruling, comments more generally upon the widerissue of the extent to which State immunity acts as a barrierto international legal actions for torture brought in domesticcourts in both the civil and criminal spheres.     

Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

Legal context: Dual use technology, or technology which can be used for bothinfringing and non-infringing uses, raises interesting issuesin the area of copyright law. This note analyses inter aliathe two US Supreme Court decisions on dual use technology, separatedby a gap of over 20 years—Sony v Universal Studios (1984)and MGM v Grokster (2005). Key points: Sony lays down the famous ‘Betamax’ defence—ifthe technology is ‘capable of substantial non-infringinguses’, then it cannot be challenged as infringing. Thistest had stood the test of time, and it is only recently inGrokster that there arose an occasion to reconsider its application.The Court in Grokster, borrowing from the jurisprudence developedin Patent law, recognized a novel test of liability—basedon the active ‘inducement’ to infringe. The flawin Grokster is that despite its attempt to develop new standardsfor a digital age, the ruling leaves areas of uncertainty. Practical significance: Dual use technology has become ubiquitous in this age—fromthe iPod to YouTube to P2P software, all are capable of beingused in lawful as well as unlawful ways. Legal pronouncementshave the potential to impact not just the development of law,but also innovation in technology. Some believe that the ‘brightline’ of Sony has been muddled thereby threatening technologicalinnovation. Others, me included, believe that Sony is inapplicablein the face of new technology, and hail the decision in Groksteras a positive step forward in what it actually decides. However,in what it does not decide, Grokster still represents a lostopportunity by the Court to clear up the muddled waters.