Managing a New ‘Partnership’

Defence allegations about the malpractice of intermediaries in the Lubanga Case have revealed the ICC’s dependence upon intermediaries. Yet, surprisingly, the role of intermediaries has received relatively little attention in the academic literature. Since 2009, the Registry has been developing a court-wide set of guidelines to manage the Court’s relationship with intermediaries, which, if adopted, will substitute a large measure of standardisation over the disparate policies and practices currently in place across the various ICC organs and units. The Victims Rights Working Group and the Open Society Justice Initiative in conjunction with the International Refugee Rights Initiative are prominent amongst civil society actors that are playing a key role in advocating for the protection of, and support for, intermediaries through guidelines. This article examines the emerging position of intermediaries in international criminal law. It argues that adopting guidelines will inculcate a semi-institutionalised status for intermediaries, which both reflects, and contributes to, ‘professionalization’ in international criminal law. However, ‘professionalization’ is problematic to the extent to which it creates obstacles for the involvement of counter-hegemonic voices in international criminal law. Moreover, whatever gains guidelines may bestow on the Court and intermediaries, it is unclear how they can or will mesh with the emerging judicial response to intermediaries at the ICC. Ultimately, the increased regulation of intermediaries is likely to have a profound impact on relations between the different ICC organs; and it is set to be a touchstone for civil society–ICC relations more generally.     

When a ‘Like’ Is Not a ‘Like’: A New Fragmented Approach to Data Controllership

In Fashion ID, the Court of Justice of the European Union (‘CJEU’) held that an operator of a website featuring a Facebook ‘Like’ button is a data controller under EU Directive 95/46 (‘Directive’) jointly with Facebook in respect of the collection and transmission of the personal data of website visitors to Facebook, but Facebook alone is a data controller for any subsequent data processing. While the CJEUs expansive interpretation of joint controllership aims to leave ‘no gaps’ in the protection of individuals, we question whether the proposed solution to ‘fragment’ controllership into different stages of processing helps to achieve that goal. We argue that CJEUs ‘fragmented’ approach is incompatible with the GDPR, as it does not reveal the intended purposes of data processing, and thus negates informed and specific consent. We suggest that such ‘fragmentation’ undermines the consistency, predictability and transparency of EU data protection law by obscuring the pervasiveness of data commodification in the digital economy.     

‘Becoming a waste land where nothing can survive’: resisting state-corporate environmental crime in a ‘forgotten’ place

Environmental justice advocates have made visible the practice of disproportionately siting hazardous waste facilities in low-income communities of color throughout the USA. Typically, state-corporate actors decide where to place these environmentally undesirable projects, with an eye toward the bottom line rather than the health and safety of particular community members. Through an analysis of secondary data and archival materials, ranging from public hearings to court documents and newspaper accounts, a case study of state-corporate environmental crime and how one rural, historically African American town in Arizona organized to resist the siting of a fourth landfill in their community is explored. Theoretical concepts advanced by Ruth Wilson Gilmore, such as ‘forgotten places’, are put into conversation with the literature on state-corporate crime. An examination of the relationship between environmental inequality, state-corporate crime, and people’s capacity for resistance is presented.     

‘Legal Critique’: Elements for a Genealogy

While teachers and students of law tend to take for granted that critical legal campaigning originates in the late 20th century, many historians suggest that the summons of law and its state of accusation before the tribunal of critique dates back to the days of the Enlightenment. I am arguing, in contrast, that, in the West, the history of legal critique is by no means shorter than the history of law; that Western legal evolution embraces and supposes anti-legalism or ‘antinomianism’ since the days of early Christianity and throughout; that, conversely, an adequate assessment of Christianity must stress its character as an anti-institutional, anti-legal, and anti-religious campaign; that the standard view of Humanism, Enlightenment, and Modernity, which tends to foreground their antagonism to Christian institutions and to deny their nature as instantiations of the Christian campaign, misses the crucial point both about them and about Christianity (and, implicitly at least, about geopolitics); that key concepts of political modernity thrust their roots, not only and not most importantly into Political Theology, but rather into Saint Paul’s legal ‘new deal’; that, far from giving rise, as intended, to a deactivation of law, Paul’s action has resulted, instead, in the interlinking build-up of a militant denial of law on the one hand, and an emerging intensification of law on the other hand. Let the reader be warned that the article strings together a bouquet of snap-shots from a work in progress.     

From a ‘peasant parliament’ to a ‘professional parliament'? Change in the Icelandic Althingi

The present article seeks to describe and analyse parliamentary change in the Icelandic Althingi, probably one of the least known of the west European legislatures. The first question asked is ‘Has there been a professionalisation of the Icelandic parliament?’ and, secondly, ‘Has there been a professionalisation of Icelandic legislators?’ The article is in three sections. The first gives a very brief overview of the main institutional features of the Althingi before 1991. The second focuses on changes in the legislative capacity of the Althingi, whilst the third explores possible changes in the legislative culture of the assembly. The study draws on three sources: official statistical material and other parliamentary documentation; discussions with senior parliamentary staff; and hour‐long interviews with three veteran Atlhingi members boasting a total of 80 years parliamentary experience between them.     

MEPs and the building of a ‘parliamentary Europe’

The European Parliament (EP) has become significantly more important in the last ten to 15 years. Little attention has thus far been paid, however, to one crucial element in this story: the consistent support of the majority of EP members (MEPs) for a strategy of parliamentary assertiveness. This note investigates the factors influencing MEPs’ behaviour in a series of key parliamentary divisions, where issues concerning the assertiveness of the parliament were at question. Contrary to much speculation, more experienced MEPs do not appear to become socialised into more hard‐line attitudes. Rather, factors relating to members’ partisan status and nationality are the major determinants of support for enhancing the status of the EP. The findings are argued to suggest important implications for both the EP and the European Union as a whole.     

Making sense of ‘consent’ in a constrained environment

BackgroundThis project investigates patients' and practitioners' experiences and understandings of the consent process, as it is governed by the Mental Health Act in Great Britain.AimsWe aim to illuminate our respondents' experiences of the consent process, and to explore their attempts to make sense of that process.MethodSemi-structured interviews with 5 Responsible Medical Officers, and 7 of their consenting adult patients, were conducted at a medium-secure psychiatric hospital. We approached the analysis from the perspective of Interpretative Phenomenological Analysis.ResultsOur analysis begins with an account of some of the common phenomenological consequences of the consent process as our participants understand them, but then moves on to discuss some of the contextual constraints which are evident from their negotiation of these understandings.ConclusionsWe conclude by outlining a number of emergent issues relevant to the current development of new Mental Health legislation. These include: mechanisms to allow collaboration with user groups; a more consultative role for users in their own treatment decisions; formal training and support for those conducting competency assessments; and more flexible and transparent legislative frameworks.     

Towards a global ‘child friendly’ juvenile justice?

The impact of globalisation on juvenile justice is increasingly conceptualised with reference to neo-liberal governance and the intensification of ‘new punitiveness’. Whatever the merits of such analyses, they have the effect of marginalising, if not completely overlooking, the extent to which international human rights instruments might serve to neutralise and/or mediate punitive currents. Indeed, it might be argued that the commitment – repeatedly expressed in official discourse – to both protect and promote the human rights of children in conflict with the law has itself come to comprise a discursive and tangible dimension of global child governance. Key signifiers of this phenomenon – at the global level – include a corpus of interrelated human rights conventions, standards, treaties and rules, formally adopted by the United Nations General Assembly, whilst at the European level authoritative rights-informed guidelines on ‘child friendly justice’, ratified by the Council of Europe, are similarly representative. Against this backdrop, this article seeks to investigate the degree to which individual nation states receive and respond to their human rights and ‘child friendly justice’ obligations. Whilst recognising the mediating capacities of formal human rights instruments, we aim to critically interrogate the relations between globalised rhetoric and localised reality; between the promise of international rights discourse on the one hand and the limitations of territorial jurisdictional implementation on the other.     

The ‘unwanteds’ and ‘non-compliants’: ‘unsupported mothers’ as ‘failures’ and agents in Australia’s migrant Holding Centres*

Abstract

Ideas of assimilated citizenship are inherently gendered and during Australia’s post-World War Two migration boom they were deeply and explicitly invested in marriage, children and domesticity. In this period of social conservatism and economic boom, assimilation rhetoric functioned as a reassuring mirror for the host population, promoting the dream of prosperous family life as the ultimate aspiration for refugees and migrants. The role of immigration Holding Centres within this vision was to provide a context in which migrants and refugees could take their first steps towards accomplishing this dream. These Centres of necessary temporary residence were designed as sites of transition towards autonomous, assimilated family life. However, those families headed by single mothers, often referred to in government records as ‘unsupported mothers’, had limited opportunities to live up to such images of assimilation, or even to comply with the economic imperatives of the migration scheme that had brought them to Australia. Based mainly on Department of Immigration records, this article demonstrates that despite recognising the long-term economic and social prospects their children represented, government agencies viewed many unsupported mothers as system failures. They attempted to remedy the situation by turning these women into live-in domestic workers, at times placing pressure on them to institutionalise their children in order to facilitate this, thereby prioritising their compliance with economic imperatives over support for their parenting. Within the limited scope of their agency, unsupported mothers responded by attempting to negotiate the terms of their compliance or simply refusing to comply. For the latter group, Holding Centres became a more permanent home. This permanence is read here as a gendered form of resistance to a system that struggled to foster their economic self-reliance without compromising their capacity to be mothers.     

The NHS Information Revolution: ‘Choice of Control’ to ‘Choice’ and ‘Control’

This paper provides a novel and critical analysis of the necessary and important balance between ‘individual privacy’ and ‘collective transparency’. We suggest that the onset of the Information Revolution has created a dilemma for the National Health Service (NHS) in terms of how it addresses its obligation to use information to improve best practice in healthcare for society (‘collective transparency’) whilst also keeping sensitive personal information confidential (‘individual privacy’). There is clearly a need to consider both whether the NHS is balancing this critically important informational relationship and whether its approach is fit for purpose. We argue that the NHS's ‘proxy-individual’ information guardian role could inadvertently mask individuals' intended roles, effectively circumventing autonomy-based laws by limiting the power of individuals to be autonomous. In this article we have identified three issues – first the prevailing ‘Mindset’ (the ‘M’) of ‘privacy’, which is viewed as individualistic, resulting in an overpowering concept of confidentiality; second, the quality and control of Information (the first ‘I’); and third, the concept of innovation (the second ‘i’), which is being used as a ‘solution’ rather than a vehicle for transparency. Indeed, transparency is our target of ‘best practice,’ and we suggest that individual privacy and collective transparency are best embedded within a complementary privacy framework that offers a better fit than the current split of control between the roles of the NHS and the roles of the individual. It is suggested that when facilitated by transparency, ‘control’ and ‘privacy’ form a continuum, aligning through the desire for choice. Therefore, the choice of control could facilitate control and choice. Together, they could replace the concept of privacy by empowering ‘informed patients’ to support the NHS's ‘No decision about me, without me’ pledge.     

Operation ‘Cerberus Action’ and the ‘Four Corners’ Prosecution

There is a generally accepted belief that a well publicised prosecution, which results in the conviction of the offenders will deter crime by sending out a ‘clear message’ to those intending to offend. Those who seek to enforce the legal protection of antiquities and archaeological sites will often decry the number of prosecutions brought, and urge a more aggressive prosecution policy against looters and traffickers in antiquities. However a prosecution may not always produce the anticipated outcome of deterrence. In this article a lawyer examines a recent high profile operation undertaken by the Federal Bureau of Investigation and the Bureau of Land Management against looters and traffickers in the south west of the United States for breaches of the Archaeological Resources Protection Act of 1979 and its outcome. It will begin with a short consideration of the context in which the prosecutions were brought: the scale of looting in the area; the difficulties facing those who have to enforce the law; the legal and historical background, and the belief of many in the area that they have a right to dig for artefacts and to collect or sell them. It will then consider ‘Operation Cerberus Action’ and its consequences in some detail, drawing on contemporaneous newspaper accounts and blog comments to illustrate that a prosecution, even where it results in conviction of all the defendants, may be counterproductive, serving only to entrench existing attitudes rather than encouraging behavioural change in intending looters and traffickers.     

Judicial approaches to combating ‘revenge porn’: a multi-jurisdictional perspective

This article aims to provide a nuanced articulation of the challenges and complexities associated with the various judicial approaches countenanced across multiple jurisdictions to date toward combating the phenomenon colloquially referred to as ‘revenge porn’. The article’s central argument is that although the scope of several civil causes of action, such as breach of confidence, defamation, copyright and invasion of privacy, have been expanded in recent years to accommodate the evolving dynamics of revenge porn, a number of theoretical and practical issues nonetheless arise, which courts across various jurisdictions, including Australia, Canada, the UK, the USA, New Zealand and the Commonwealth Caribbean, have struggled to treat with. The article concludes by asserting that notwithstanding the important role played by civil causes of action in vindicating the rights of victims of revenge porn, legislative intervention remains invaluable.     

“‘打虎’‘拍蝇’都是为咱老百姓”

乡镇纪检力量统一使用、交叉查办,让"以前那些老关系都不灵了";群众轻松一点手机客户端,举报就出去了。基层纪委深化"三转"带来了群众满意的结果——今年春节,我和妻子到江西省宁都县岳父家过年。大年初二,在去外婆家拜年的路上,我和开车的表姐夫聊了起来。"这两年在外面做生意好多了,赶上逢年过节再也不用去‘表示’了,这可省下了不少钱呢。关键是心里舒坦,不用再看别人脸色了。"表姐夫在外地开了一家西式快餐店,他告诉     

‘It’s a dead place’: A qualitative exploration of violence survivors’ perceptions of justice architecture

Each year, thousands of victims of violence enter the Canadian criminal justice system and, by extension, justice buildings, such as police stations and courthouses. The architecture and design of these buildings communicate symbolic messages about justice and may influence the emotions, behaviors, and well-being of survivors. This qualitative study explored survivors’ emotional experiences with justice architecture. Findings reveal that survivors experience justice architecture as cold and hard; a facilitator of feelings of insignificance; lacking in privacy and; representative of their raw emotional state. The author discusses implications of these findings for victim engagement in the context of justice spaces.     

中关村的 ‘影子’

高科技成就了中关村,也成就了中关村的“影子”——题记     

The ‘Usual Suspects’

Abstract

A key issue in contemporary criminology is the role that social status, and particularly race, plays in legal processes. Previous research suggests that criminal justice proceedings-including arrest, conviction, and sentencing rates-are influenced by victim and offender race, but rarely examines the role of race in reporting events to the police. The following research uses data from the rape sub-sample of the National Crime Victimization Survey of households 1992-2001; logistic regression analyses are conducted to determine how victim and offender race influence reporting of rape to the police, controlling for other incident characteristics. The findings suggest that rapes with a Black perpetrator are much more likely to be reported to police, regardless of whether the victim is white or Black.     

管管‘洋老板’

报载,珠海瑞进电子有限公司韩国老板金珍仙以“违纪”为借口大发淫威,逼迫100多名中国打工者下跪,这中间只有来自河南南阳的打工仔孙天帅未跪。他质问金珍仙:“我们为什么要跪下?”并愤然离去……笔者在敬佩孙天帅不屈的人格和气节之余,不禁想到:金珍仙只是一个普通的“洋老板”,凭什么能让100多个中国工人给她下跪?她有这样的权力吗?     

Realizing ‘Political’ Neutrality

Political liberalism is supposed to be neutral among reasonable comprehensive doctrines, including comprehensive liberalism. Some critics think that it implicitly assumes comprehensive liberalism. I argue that political liberalism has the resources to avoid this charge and chart a path between sectarianism and unprincipled accommodation that allows a range of policy justifications onto the political agenda of a scope that honors the ideal of neutrality.