‘Endemic to the species’: ordering the ‘other’ via organised crime

The United States has been the prime mover in the establishment of both the concept of organised crime and the use of the concept in its attempt to establish global hegemony, in which law enforcement became a little more than a front for a government-backed central casting agency, stereotyping both heroes and villains. This article offers an account of how the ‘Other’ has been used as prism for the construction of organised crime primarily in the United States and how this construction, as a franchise, has been exported on the international level and on heterogeneous criminal landscapes.     

The Politics of Punishment and Protection: A Comparative Historical Analysis of American Immigration Control, 1990–2017

This article examines the construction of immigration control in two US states with contrasting approaches to immigration: the rise of crimmigration and governing through crime in Arizona, and the development of immigrant protection and governing through support in Illinois. Analysis of state-level immigration control practices reveals that three interrelated processes play a critical role in formulating these divergent approaches to managing immigrants: the state's cultural orientation, structural relations, and institutional dynamics. These factors interact with each other in complex, multidirectional ways that condition and shape the respective states’ political choices and administrative decisions. I highlight the significance of coalitions of local organizations who work in collaboration with state actors and mobilize state institutions in order to shape state legal regimes of immigration control. In illuminating the variegated trajectories of the construction of immigration control fields, and their use (or nonuse) of penal power as a response, this article provides a more nuanced understanding of the hybrid, dynamic, and contingent nature of immigration control in contemporary America.     

论国际刑法中的 “大国一致” 原则

在国内学术界,关于国际刑法基本原则的研究,一般以传统国内刑法的基本原则为基本框架展开,很少有学者论及＂大国一致＂原则。在国际政治及联合国机制的共同作用下,国际刑法中罪名的形成可以不受国内刑法中罪刑法定主义、罪刑等价主义、法律不溯及既往、一事不二理等原则的限制,某行为是否入罪、是否审判、管辖权如何分配的依据只是国际社会尤其大国对特定行为的态度表示。本文分析并论述了＂大国一致＂这一特有原则作为国际刑法基本原则的基本依据、演进脉络及具体作用。     

Stateless Crimes,Legitimacy, and International Criminal Law: The Case of Organ Trafficking

Organ trafficking and trafficking in persons for the purpose of organ transplantation are recognized as significant international problems. Yet these forms of trafficking are largely left out of international criminal law regimes and to some extent of domestic criminal law regimes as well. Trafficking of organs or persons for their organs does not come within the jurisdiction of the ICC, except in very special cases such as when conducted in a manner that conforms to the definitions of genocide or crimes against humanity. Although the United States Code characterizes trafficking as “a transnational crime with national implications,” (22 U.S.C. § 7101(b)(24) (2010)), trafficking is rarely prosecuted in domestic courts. It has thus functioned in practice largely as what might be judged a “stateless” offense, out of the purview of both international and national courts. Yet these forms of organ trafficking remain widespread—and devastating to those who are its victims. In this article, we begin by describing what is known about the extent of organ trafficking and trafficking in persons for the purpose of removal of organs. We then critically evaluate how and why such trafficking has remained largely unaddressed by both international and domestic criminal law regimes. This state of affairs, we argue, presents a missed chance for developing the legitimacy of international criminal law and an illustration of how far current international legal institutions remain from ideal justice.     

Redefining Apartheid in International Criminal Law

This article asks: to what extent is Article 7(1)(j) of the Rome Statute—the crime of apartheid—a tenable crime in international criminal law? It will be argued that despite the obligations incumbent on states not to intentionally discriminate against social groups, there is no customary legal norm of apartheid as a distinct crime against humanity. This is premised on the distinction between state obligations as different from norms demanding individual liability in international criminal law, as well as inadequacies of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) and the absence of case law relying on apartheid as a crime against humanity. Further, the weaknesses hindering the formation of a customary norm of apartheid as a distinct crime against humanity will be assessed with regard to the Rome Statute. Also it will be shown that the lack of coherence of Article 7(1)(j) demonstrates that the crime of apartheid is subsumed by the crime of persecution. Finally, two suggestions are offered on how the crime of apartheid could be established as a distinct offence in international criminal law. The central thesis of this paper is that the crime of apartheid is ambiguous and inoperable. In order for Article 7(1)(j) to be relevant in international criminal law, the offence must be reworked and clearly articulated.     

Punishment and Rights in European Union Citizenship: Persons or Criminals?

While European Union (EU) citizenship has traditionally been key to limiting criminalisation at national level, over recent years crime has become a criterion to distinguish between the good and the bad citizen, and to allocate rights according to that distinction. This approach has been upheld by the EU Court of Justice (CJEU) in its case‐law, where crimes show the offender's disregard for the societal values of the host Member States, and deny his/her integration therein. This article argues that citizenship serves to legitimate criminal law. The Court outlines two—counterposing—types of human being: the law‐abiding citizen and the criminal. The article shows the legal unsoundness of the Court's approach. It does so by analysing and locating the case‐law over a crime–citizenship spectrum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one hand, and Jakobs' criminal law of the enemy, on the other.     

Complicity in International Criminal Law and Canadian Refugee Law: A Comparison

International criminal law is normally seen as the purview ofcriminal prosecutions, either internationally or domestically.However, international criminal law is also increasingly beingapplied in refugee law. This is because the 1951 Refugee Conventioncontains an exclusion clause prohibiting asylum seekers fromobtaining refugee status if they have committed a crime againstpeace, a war crime or a crime against humanity. Thus, refugeelaw refers back to international criminal law; however, whileinternational criminal tribunals deal with persons who bearthe greatest responsibility, in actual practice persons whohave been excluded from refugee protection have been mostlyfrom the lower echelons of organizations involved in atrocities.This article, based on Canadian case law, examines the conceptsof complicity, aiding and abetting and joint criminal enterprisefrom both an international criminal law point of view and froma Canadian refugee law angle, in order to determine whetherthese notions have similar contents in the two jurisdictions.     

论我国贿赂犯罪的立法对《联合国反腐败公约》的应对--以国际刑法的国内化为视角

在我国缔约的<联合国反腐败公约>中,贿赂犯罪的规定与我国现行刑法的规定是不同的.现行刑法与<联合国反腐败公约>的相关规定的差异主要表现在贿赂的范围、贿赂外国公职人员或者国际公共组织官员犯罪与受贿罪、行贿罪的构成要件三个方面.完善相应的现行刑法的规定,是我国必须履行的国际法义务,也是司法实践的需要.     

To protect and collect: a nationwide study of profit-motivated police crime

This study is part of a larger research project on police crime in the United States. Police crimes are those criminal offenses committed by sworn law enforcement officers who have the general powers of arrest. Profit-motivated police crime involves officers who use their authority of position to engage in crime for personal gain. This study reports the findings on 1,591 cases where a law enforcement officer was arrested for one or more profit-motivated crimes during the seven-year period 2005–2011. The profit-motivated arrest cases involved 1,396 individual officers employed by 782 state, local, special, constable, and tribal law enforcement agencies located in 531 counties and independent cities in 47 states and the District of Columbia. Our data is the first systematic study of profit-motivated police crime. The study describes the nature of this form of police misconduct in terms of several dimensions, including the characteristics of police who perpetrate these crimes, where it occurs, the specific criminal charges, and the contexts within which profit-motivated police crime is punished through police agencies and the criminal courts.     

"For the Protection of the Reputation or Rights of Others ": The European Court of Human Rights' Interpretation of the Defamation Exception in Article 10(2)

Legal observers have praised the European Court of Human Rights' defamation case law as an example to be emulated in international law. Yet scholars who have studied the court's defamation jurisprudence have focused primarily on a handful of the court's noteworthy cases. A broader examination of the court's entire body of defamation case law provides a complete picture of the court's defamation jurisprudence. The ECHR's defamation case law has come increasingly to mirror principles of common law and United States First Amendment law. Although the ECHR has produced some commendable judgments protecting speech critical of governments and politicians, it has developed a hierarchy of protected expression that leaves other expression vulnerable to restriction. Further, even though the court has condemned several specific criminal defamation prosecutions, it has failed to strike down, and has expressly condoned, criminal defamation in general.     

Reductio Ad Absurdum: The Kapo Trial Judgements’ Contribution To International Criminal Law Jurisprudence And Customary International Law

Several Jewish persons designated as concentration camp guards (Kapos) during the Holocaust were subsequently tried in Israel in the 1950s and 1960s for allegedly committing grave crimes. This article examines these trial judgements and considers their significance to international criminal law jurisprudence and customary international law. First, this article will delineate the trial judgements’ purpose, relevance and previous contribution to customary international law. Secondly, a comparative narrative of the judgements with recent case law from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court will illuminate their potential contribution, specifically to the principles of modes of liability, criminal intent, and the defence of duress. The Kapo trial judgements may therefore continue to offer an extreme case example and a worthy source of common law for international criminal law jurisprudence and customary international law.     

Constructing International Crime: Lawyers,States, and the Origin of International Criminal Prosecution in the Interwar Period

This article explains the development of international crime as a legal category. I argue that states’ pursuit of political rights claims empowers international lawyers to develop new legal categories to grant states new tools to pursue their interests. At the same time, lawyers have a stake in defending the autonomy of law from politics, thus pushing for the development of legal norms and institutions that go beyond the original state intent. States’ turn to law thus begets more law, expanding the legal and institutional tools to solve international problems while simultaneously enforcing a commitment to principles of legality. To demonstrate the plausibility of the theory, the article studies the construction of the concept of an international crime in the interwar period (1919–1939). In response to the Allies’ attempt to prosecute the German Emperor, international lawyers sought the codification of international criminal law and drafted enforcement mechanisms. The interwar legal debate not only introduced international crime into the legal and political vocabulary, it also legitimized a new set of institutional responses to violations of international law, namely, international criminal prosecution.     

Paradoxes of Family Immigration Policy: Separation,Reorganization, and Reunification of Families under Current Immigration Laws

It is increasingly recognized that immigration laws affect immigrants' integration. Most recently there has been growing attention to how immigration enforcement affects families through forced separations caused by deportations and long‐term family separations across national borders stemming from unauthorized entry to the United States. However, beyond enforcement, there has been little systematic account of how other provisions of immigration law contribute to family separations. In this article we examine how four key provisions in immigration law, far from creating conditions for immigrant families to reunite, contribute to keeping families apart. As such, these provisions shape, in fundamental ways, the structure and composition of immigrant families. Relying on data from the American Community Survey and ethnographic interviews in Phoenix, Arizona, we find evidence consistent with the premise that immigration laws affect the formation, composition, and structure of immigrant families with potential long‐term consequences.     

Smoking Guns: European Cigarette Smuggling in the 1990’s

This article concerns European cigarette smuggling over the past decade and examines the actors, structures and relationships which facilitated the illicit trade. It discusses the central role played by actors not traditionally associated with organised crime, such as multi-national tobacco companies, Swiss banks and the state security agencies of various Balkan states. It demonstrates how domestic legislation in Switzerland and instability in the Balkans prevented national law enforcement agencies from effectively dealing with this international network at an earlier stage. The article also focuses on the history of local and national law enforcement investigations as well as the integrated multi-national investigation project later initiated by the EU and member states. The article's conclusions suggest that while smuggling actors have successfully adapted to the process of globalisation – financial and state deregulation – law enforcement agencies remain at a disadvantage as they are hampered by the domestic legislation in nation states such as Switzerland and the United States. While cigarette smuggling was and is a major illicit industry, it has not been the subject of much academic scrutiny. This article, based on field research in the Balkans and EU member states aims to contribute to a broader understanding of a problem involving a multiplicity of criminal actors, states and law enforcement agencies.     

Crimmigration at the Local Level: Criminal Justice Processes in the Shadow of Deportation

In recent decades, authorities have adopted a number of programs that tether the criminal and immigration enforcement apparatuses in novel ways. This mixed methods case study assesses the impact of such programs on local criminal justice processes and outcomes in King County, Washington. Although the empirical research on the effects of such programs is scant, the emerging literature on legal hybridity suggests that the enmeshment of the criminal and immigration systems is likely to enhance the state's power to detain and punish. The quantitative results support this hypothesis: non‐citizens flagged by immigration authorities stay in jail significantly longer than their similarly situated counterparts. Qualitative focus group interviews with prosecuting and defense attorneys identify four key mechanisms by which Immigration Customs and Enforcement detainers alter the incentive structure, impact decisionmaking, and extend jail stays for non‐citizens. Together, these findings suggest that immigration law and the threat of deportation now cast a long shadow over local as well as federal criminal proceedings, and enhance penal pain for non‐citizens. Implications of these findings for the “crimmigration” literature and research on the effect of citizenship status on criminal justice outcomes are discussed.     

Virtue and the Law: The Good Moral Character Requirement in Occupational Licensing,Bar Regulation,and Immigration Proceedings

Character plays a crucial role in US law. This article explores flaws in how moral character requirements determine who can work in licensed occupations, who can practice law, and who can immigrate to the United States or become a citizen. Section I summarizes psychological research on character, which raises questions about a central legal premise that individuals have a settled disposition capable of accurately predicting their behavior independent of situational influences. Section II examines the role of moral character as an employment credential. Almost a third of the workforce is covered by licensing laws that typically require proof of good character and often unjustly penalize the seventy million Americans with criminal records. Section III examines the idiosyncratic and inconsistent application of moral character requirements for lawyers. Section IV focuses on similar flaws in immigration contexts. Section V identifies reform strategies to improve the fairness of character‐related decisions in the law.     

Farmers,factories and funds: organised crime and illicit drugs cultivation within the British Vietnamese community

This article explores the growth of organised crime within the Vietnamese community with particular reference to the cultivation of cannabis, money laundering and the smuggling or trafficking of children. The article begins by exploring the history and diversity of the ‘Vietnamese community’ in the United Kingdom and the role of Vietnamese culture in shaping their criminal enterprises. It then draws on research involving two sets of qualitative data: one set is based on 45 interviews with law enforcement personnel based in Vietnam and the United Kingdom as well as with key stakeholders in the Vietnamese community; the other set is based on structured questionnaires issued to 34 Vietnamese residents in Britain, 24 of whom are here illegally. It examines the relationship between illegal immigration of Vietnamese citizens to Britain and the urban cultivation of cannabis, in what has become known as ‘cannabis factories’, and the laundering of the profits abroad to Vietnam. After exposing the logistics of Vietnamese illegal immigration into Britain, the article concludes that those involved in cannabis cultivation, money laundering and people smuggling are primarily motivated by profit rather than ‘lifestyle’ concerns, and operate within what theorists of organised crime refer to as the ‘mono-ethnic criminal network’.     

Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and Their Children

Parents without immigration status in the United States regularly face the threat of deportation and separation from their children. When an undocumented parent is brought to the attention of law enforcement through the child welfare system, they also face the potential of the loss of legal custodial rights to their children. The child welfare system and immigration enforcement mechanisms operate independent of one another with little regard for how actions in one can impact a parent's legal rights in the other, often permanently separating children from their parents. This article examines the particular issue of undocumented parents who are charged with the failure to protect their children from witnessing or otherwise experiencing abuse committed by a third party. It explores how such a charge, whether founded or unfounded, can result in loss of eligibility for immigration relief to which the undocumented parent would otherwise be entitled, as well as deportation of the parent and permanent separation of parent and child. These issues are situated within the larger context of the normative guideposts of both family and immigration law, namely, the best interests of the child and family unity. It identifies issues for further academic inquiry as well as tips for practitioners who may represent undocumented parents in either the family or immigration systems.

Key Points for the Family Court Community:
• Learn about the potential consequences under family law and immigration law when an undocumented parent's child is abused by a third party
• Gain strategies for planning with undocumented parents to avoid the loss of the custody of their children in the event of a sudden deportation
• Be able to identify and address particular concerns for clients who are undocumented victims of domestic violence

     

Prosecuting and Defending Diplomats as War Criminals: Ribbentrop at the Nuremberg Trials

This article considers the question of holding foreign ministers responsible for war crimes. A recent decision by the International Court of Justice, the Arrest Warrant case, Congo v Belgium, appears to have diluted the developing international customary rule that suspends immunity when a grave international crime has been committed. This article suggests that the Nuremberg International Military Tribunal decision in the Ribbentrop Case constitutes a precedent for how international criminal law should interpret the nature and scope of the immunity for foreign ministers. As a successful prosecution of Hitler’s former foreign minister, it is remarkable how little attention has been paid to this aspect of the Ribbentrop Case given that it was a path-breaking decision. For that reason, the present article is a case study of this example where prosecutors at an international criminal tribunal were able to successfully prosecute a foreign minister in a manner that may, therefore, still prove instructive given the existing legal position following the Arrest Warrant Case. The article considers in detail how Ribbentrop’s defence lawyers constructed a series of arguments that the prosecution were, however, largely able to demolish through resort to a variety of strategies. Dr Michael Salter is Professor of Law at the Lancashire Law School, University of Central Lancashire, United Kingdom; Dr Lorie Charlesworth is Senior Lecturer at the Law School, Liverpool John Moores University, United Kingdom.