The Situation in Libya and the ICC’s Understanding of Complementarity in the Context of UNSC-Referred Cases

The PTCI’s decision on the admissibility of the case against Saif Al-Islam Gaddafi and the subsequent AC Judgement are the first expressions of the ICC’s understanding of complementarity in Article 13(b) cases. Admissibility decisions display how the ICC attempts to strike the balance between international justice and states’ right to exercise their territorial criminal jurisdiction. In relation to cases triggered by UNSC referrals, these decisions also mark the delicate moment in which the ICC’s interaction with the politics UNSC is unveiled. In the case against Saif Al-Islam Gaddafi the ICC seems to have taken deferent approach toward the highly authoritative mechanism that triggered the case. Legally speaking, these decisions might appear as a missed opportunity. They fail to provide a conclusive clarification of the parameters of the ‘same case’ test. First, the AC did not subscribe to the offence-specific interpretation of the ‘same conduct’ test embraced previously by PTCI and, in the name of consistency with the Court’s previous case law, reverted to the incident-specific approach adopted in Lubanga. However, the case-by-case approach adopted by the AC undermines the legal certainty that the AC meant to achieve in the definition of the admissibility test. Moreover, the AC has failed to appraise the PTCI’s conclusion that domestic implementation of international crimes is not necessary for the purposes of successfully challenging the admissibility of a case. Finally, in light of the constraints imposed by Article 17(2) on the relevance of due process violations, the PTCI’s decision to reject on the grounds of ‘inability’ as opposed to ‘unwillingness’, which again the AC did not consider, could be seen as evidence of a deferent stance toward the UNSC.     

On the Buddha’s Cognition of Other Minds in the Bahirarthaparīkṣā of the Tattvasaṅgraha

This paper aims at examining the arguments between ?ubhagupta (c.720–780) and ?āntarak?ita (c.725–788) over the Buddha’s cognition of other minds and shows how the question of the Buddha’s cognition of other mindsis incorporated into the proof of vijñaptimātratā or “consciousness-only” by ?āntarak?ita. According to ?āntarak?ita, ?ubhagupta assumes that the Buddha’s cognition, which is characterized as “the cognition [of the Blessed One] which follows the path of cognition” (aupalambhikadar?ana), grasps other minds when the Buddha’s cognition is similar (sārūpya) to other minds. For ?āntarak?ita, the Buddha’s cognition cannot be aupalambhika. If the Buddha’s cognition were similar to the other minds, it would follow that the Buddha, whose cognition erroneously grasps other minds as something distinct from it, has not yet removed the hindrance constituted by objects of knowledge (jñeyāvara?a). But if it is accepted that the Buddha’s cognition is beyond the grasped-grasper duality, can the Buddha, who does not know other minds, be called sarvajña “omniscient”? According to ?āntarak?ita, even though the Buddha has no seeing (adar?ana), the Buddha causes all sentient beings to gain benefits by virtue of seeing other minds and hence deserves to be called sarvajña. What underlies this argument is that the Buddha knows other minds without making a distinction between his own mind and other minds, which is possible only on the basis of self-cognition (ātmasa?vedana).     

The Evolution of the CPC’s Conception of Association and Regulation of Social Organizations in China

Freedom of association and all institutions coming with it have not been accepted by the Chinese government. Instead, Chinese social organization administration is based upon the concept of association held by the Communist Party of China (CPC). The Chinese government had adopted a “total control” model of social organization administration in the era of totalitarianism before the “Opening-up and Reform”, leaving almost no room for social organizations to survive, because the CPC had regarded social organizations as “revolutionary” and “deconstructive”. The Chinese has adopted a graduated control system to administrate social organizations in the era of authoritarianism after the “Opening-up and Reform”, treating social organizations differently according to their threats to the ruling order and their utilities for economic development, because the CPC has viewed social organizations as a “challenging” but “auxiliary” power. The on-going “innovation of registration and administration of social organizations” is not a return to international standard regarding social organization administration in China, but only partial reform of the graduate control system still based upon the CPC’s conception of association as “challenging” but “auxiliary”. Social organizations capable of providing public goods in areas of economic development and social services are given more favorable treatment by the government while political and religious organizations are still tightly controlled by the government.     

The Siren’s Song: Federalism and the Cops grants

The federalization of crime control has become a focal point for criminal justice researchers. Because the federal government is limited in how it can affect crime, it often assumes the role of funding agent to state or local governments and places restrictions on the use of these monies. Generally, no consideration is given to state or local concerns. As a result, national crime control policy often becomes mired in issues of federalism. One unintended consequence is the creation of a Siren’s Song, where state and local agencies simply pursue funding dollars to expand their budgets rather than to adopt beneficial policies or make meaningful changes. This paper illustrates this point by examining the federal “100,000 Cops” initiative in one rural West Virginia jurisdiction.     

The negligence of prison authorities and the protection of prisoner’s rights

This article looks at the potential for legal action brought by prisoners (and their dependants) who have suffered from the alleged neglect of the prison authorities. The article will examine the case law in this area to assess the success of prisoners’ negligence claims and whether such claims are unduly fettered by judicial attitudes and other more practical issues such as the difficulty in establishing a breach of duty. In particular the article will consider whether the law and its application has been, or should be, modified in the light of new obligations imposed on public authorities, including the courts, by the Human Rights Act 1998 and by the developing case law of the European Court of Human Rights in respect of Convention rights such as the right to life and freedom from inhuman and degrading treatment.     

The Role of the People’s Armed Police in Chinese Policing

This study examines the role of the People’s Armed Police (PAP) in Chinese policing. While the PAP has been in existence for over five decades, very little research has paid attention to the critical position that the PAP occupies in Chinese policing. The history of the PAP between 1949 and 1982 was highlighted by a number of changes in name and a constant change of direct control between the military and the public security. The PAP experienced a great expansion and became more stabilized in organizational structure and missions after 1983. While it is part of China’s military forces, the PAP is currently involved in a wide variety of law enforcement, order maintenance, and service activities. Its law enforcement function is carried out chiefly through preventive patrol in urban areas. The most important order maintenance function shouldered by the PAP is the disposition of mass incidents, which have increased dramatically in number and size and have become better organized over the past two decades. The Chinese government also often mobilizes the PAP to undertake emergency rescue and disaster relief tasks. The PAP will continue to be a critical force in the Chinese police system. Its leaders as well as the government should seek ways to improve the legitimacy of the force.     

Cracking Pandora’s box: The Soviet breakup and the onset of Buccaneer Capitalism

With the breakup of the Soviet Union and the advent of globalization, an international buccaneer capitalism has developed. Criminal enterprises that were previously intra-border have expanded across borders and provided for the willing buyers services and products not legally obtainable. This paper explains how buccaneer capitalism (the development of criminal enterprises conducted in emerging markets into legitimate businesses) has evolved. Examples of American buccaneer capitalism are presented as is a chart showing the Historiography of Russian/Soviet Crime.     

The magic kingdom syndrome: trials and tribulations of life in Disney’s celebration

This paper critically analyzes the political elements of the new town planning trend, New Urbanism, through a study of the Disney Company’s development of Celebration, Florida. Celebration, as both a high‐profile example of the New Urbanism and as a product of Disney’s skill at “Imagineering,” provides an important example of utopian thinking and planning within the context of the political economy of consumption. Through interviews and archival research, this paper looks at the political and social implications of commodity utopianism as planned communities and the ethic of consumption continue to occupy prominent places within the popular American psyche.     

Hadar Aviram: Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole

Critical Criminology -     

The ‘good’, the ‘bad’ and the ‘Charlie’: the business of cocaine smuggling in Greece

This article examines the social organisation of cocaine smuggling in Greece. Emphasis is placed on the involvement of professionals from the shipping industry and actors from the ‘upper society echelons’ who play a pivotal role in the transportation and importation of cocaine to Western Europe and Greece. After considering empirical evidence from a variety of sources, our findings indicate that the cocaine market in Greece is ‘organised’ by a system of collaborative relationships between state, business and civil society actors. It is suggested that to better understand the nature of this illegal market, further research is required to take a closer look into the economic, socio-cultural and political incentives of these actors.     

Islamo-Arabic Culture and Women’s Law: An Introduction to the Sociology of Women’s Law in Islam

The present paper addresses the mutual relationship between society and law in shaping women’s law in Islam from the perspective of the sociology of law. It analyzes the role of pre-Islamic social, political, and economic structures in the Arabian Peninsula in modeling women’s law and highlights some customary laws which were rejected or revived and integrated in Islamic jurisprudence. In this regard, the paper reviews issues such as polygyny, rights to inheritance, marriage, the process of testimony and acceptable forms of evidence in legal matters, diyya (blood money), the exclusion of women from the judiciary and the system of issuing fatwa (legal opinion), natural right of guardianship (wilāya) of underage children after divorce, and regulations related to the veil. Finally, referring to the manner of the Prophet of Islam, the paper suggests that ?urf (custom) can be considered as a source of Islamic legislation alongside other commonly known sources of fiqh (Islamic jurisprudence).     

Suburbia’s “Crime Experts”: The Neo-Conservatism of Control Theory and the Ethos of Crime

This essay tackles the relationship between morality and crime by way of the debate surrounding Travis Hirschi’s double contribution to so-called “control theory,” first as “social bonding theory,” and subsequently as a “general theory” of crime. The assessment conducted herein construes the first version of “control” as an expression of patriotism, and its late formulation, on account of its emphasis on varying individual levels of self-mastery, as an implicit reaffirmation of the inevitability of class division. Over the years, the fixation with “self-control” has become a rubric for the suburban anxieties of an upper-middle class surrounded by expanding (ghetto) poverty and plagued by familial dysfunction and the alienation of its own offspring. In the final analysis, these reflections form the basis for a general reformulation, inspired by the sociology of Thorstein Veblen, of the relationship between class and crime and condign punishment by leveraging the notion of ethos (a common mindset peculiar to each class), and proving thereby that crime is systematically determined by this very mindset, which is the spiritual complement to class formation, rather than by the conventionally classless categories of rational self-interest or idiosyncratic proneness to violence.     

The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara

In this article I discuss the legality of Israel’s interception of the Mavi Marmara on 31 May 2010. Although Israel’s stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justified on the basis of international humanitarian law. Specifically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conflict. I argue that on 31 May 2010 Israel was not engaged in an international armed conflict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material from being delivered to Hamas fighters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on 31 May 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israel’s use of force to capture the vessel went beyond what was necessary in the circumstances.

     

The Role of Denial in the ‘Theft of Nature’: Comparing Biopiracy and Climate Change

Since its inception, green criminology has highlighted, examined and analysed environmental degradation and destruction. The ‘theft of nature’ is both an example and a driver of illegal and ‘lawful but awful’ acts and omissions that degrade the environment. Even though this theft is widespread and sometimes well known, it persists because powerful actors put forward an influential narrative of denial that obstructs interventions. This paper explores the role of denial in two thefts of nature—biopiracy and climate change—and compares and contrasts the manifestations of denial that contribute to their continuation. We consider the ‘appeal to higher loyalties’ (economic interests over environmental concerns), and discuss the implications if such denial goes unchallenged and remains the central narrative.     

Who’s afraid of penal populism? Technocracy and ‘the people’ in the sociology of punishment

Contemporary sociologists of punishment have criticized the rising incidence of incarceration and punitiveness across the Western world in recent decades. The concepts of populist punitiveness and penal populism have played a central role in their critiques of the burgeoning penal state. These concepts are frequently sustained by a doctrine of penal elitism, which delegates a limited right to politicians and ‘the people’ to shape institutions of punishment, favoring in their place the dominance of bureaucratic and professional elites. I argue that the technocratic inclinations of penal elitism are misguided on empirical, theoretical, and normative grounds. A commitment to democratic politics should make us wary of sidelining the public and their elected representatives in the politics of punishment. A brief discussion of Norway’s legal proceedings against Nazi collaborators in the mid-1940s and the introduction sentencing guidelines commissions in Minnesota in the 1980s shows – pace penal elitism – that professional elites may variously raise the banner of rehabilitationism or retributivism. While penal elitism may yield a few victorious battles against punitiveness, it will not win the war.