The International Crimes Tribunal in Bangladesh and International Law

The International Crimes Tribunal in Bangladesh was re-established in 2010 in order to hold the perpetrators of the 1971 War accountable for international crimes; namely, war crimes, crimes against humanity and genocide. The Trial has already begum to operate and has been dealing with various challenges. The basis of the trial proceedings is the International Crimes (Tribunal) Act 1973. The Parliament of Bangladesh enacted the Act in accordance with international law shortly after the War. This paper assesses the key legal issues that arise from the context of the 1973 Act, and will provide a reflection on trial proceedings in light of international law. It concludes that any initiatives to address the impunity of perpetrators and offer redress to the victims of gross human rights violations should be applauded, while any trial proceedings that do not follow appropriate standards for a fair trial and offer the right of due process should be deprecated.     

United Nations Mission to Kosovo: in Violation of the Right to Life?

International organisations are expected to abide to human rights standards in the course of their operations. However, to what standards are transitional regimes held accountable? Should the UN exercising executive powers be held accountable to the same or higher standard than a national government? In this article, the author discusses the legal basis relied upon by a UN internal human rights mechanism, the Human Rights Advisory Panel (HRAP), that declared the UNMIK in violation of its positive obligation to investigate enshrined in Article 2 of the EHRC. A closer look at the opinions issued by the HRAP reveals that it might have misapplied the standard set forth in the relevant jurisprudence of the European Court for Human Rights, and thereby held UNMIK accountable under stricter requirements.     

Asian Criminology’s Expansion and Advancement of Research and Crime Control Practices

Inspired by Professor Jianhong Liu’s article entitled “Asian Criminology—Challenges, Opportunities, and Directions,” published in 2009 in the Asian Journal of Criminology, I attempt to document the expansion of Asian criminology in terms of the numbers of journal articles published, but also to encapsulate some of the unique contributions of original articles published in the Asian Journal of Criminology. To document the expansion of Asian criminology in terms of journal articles, I used the academic search engine, the ISI Web of Science, to identify criminology articles across a variety of Asian countries and time. This led to distinguishing between more traditional criminology and crime control (TCCC) articles and articles focusing on violence against women/children and on trafficking (VAWCT). Second, because it is not yet part of the ISI Web of Science, I read all of the original articles in the Asian Journal of Criminology to account for how Asian criminology is advancing the larger discipline of criminology. The ISI Web of Science data document the rapid expansion of Asian criminology. Some of the specific Asian Journal of Criminology articles are used to exemplify specific examples of how Asian criminology is advancing the field of criminology worldwide through theoretical, methodological and framing designs, and crime control practices.     

Negative Life Events and Maladaptive Behaviors Among Filipino Adolescents: an Empirical Test of the General Strain Theory

Agnew’s general strain theory has been widely tested in other countries and has received general support from most studies. To date, however, there has been limited empirical test of the theory in the Philippines. Thus, this study aims to test the core theoretical propositions of the theory that link negative life events (strains) to negative emotions that in turn encourage maladaptive behaviors or criminal coping. The study uses the Global School-based Student Health Survey (2011) data on a nationally representative sample of 5920 secondary Filipino students. In general, the results support the general strain theory: negative life events (e.g., violent experiences, discrimination, sexual harassment victimization) encourage maladaptive behaviors (i.e., suicidality, substance use, and truancy), and this link is somewhat mediated or attenuated by depression. Further, conditioning factors such as parental care and supervision, social support, and engagement in physical activities moderate the effects of negative life events and depression on maladaptive behaviors. Contrary to the theory, however, some conditioning factors intensify the effects of strain on truancy. Overall, the current findings support the theory but call for further research and theory building—delinquent acts are diverse behaviors, and thus, each may require a crime-specific model of the general strain theory.     

Principal-Agency Theory in Illegal Markets: Cooperation and Conflict Among Chinese Loansharks

There are management and organizational problems common to both legal and illegal businesses, such as moving one party to act in the interest of another rather than his own. In principal-agency theory, the party that wants someone else to do a job on his behalf is called the “principal” and the other party is called the “agent”. Principal-agency theory tries to find solutions to real and potential conflicts that arise from such transactional arrangements. We believe principal-agency theory has great potentials for understanding the operation and interpersonal relationships of criminal enterprises, in addition to the structural arrangements (e.g., a disorganized crime market) and the social network perspectives. Using a case study of Chinese loan sharking and cannabis cultivation in the Netherlands, we seek to make a theoretical contribution to existing literature on organized crime by focusing on how different individuals within a criminal enterprise negotiate the most efficient transactional arrangement in a principal-agent relationship amidst the uncertainties of an illicit market environment. We specifically look at four phases of the criminal enterprise studied: the selection of agents by the principal, attempts to bind these agents to the principal, potential conflicts and finally the solution of any problems. Incidentally, our study also gives insight in the less well-researched topic of loansharking.     

Ambiguity and Conflict in the Implementation of Evidence Law in Criminal Matters: a Study of the United Arab Emirates Jurisprudence

Due the lack of the law of evidence in criminal matters in the United Arab Emirates (UAE), it is important to address the issue of the rules of evidence in the UAE where Sharia criminal law is applied along with enacted law of Criminal Procedural Law. The courts’ decisions contradicted each other because of the differences of opinions among the law schools exist in Islamic law in one hand and between the Sharia criminal law and enacted law in the other hand. Further, the Criminal Procedural Law does not state the rules of evidence in clear manner to judges and individuals. The lack of stated rules and procedures and what evidence could be accepted and what cannot are not definite in the UAE legal system. The article will argue that because of the differences in the opinions related to the admission and acceptance of the evidences exist among the Islamic law schools and between the Sharia law and enacted law, the court decisions have contradicted each other and create ambiguities in the field of the evidence in criminal law. The Islamic jurists have different opinions about evidence in fornication crimes, Qasama evidence in qisas, and women and non-Muslim testimonies. Such differences affect the Union Supreme Court decisions. Therefore, the UAE legislator must enact the law of evidence in criminal matters in order to reduce the contradiction between judges’ opinions, clear ambiguities, and protect individual rights as it did with civil and commercial matter.     

Transplanting Jury Trials in South Korean Legal Soils: Comparative Analysis with Jury Trials in the United States

Jury trials, known as common-law institution centering on the UK and the USA, for the first time in Korean adjudicatory history, have been transplanted into Korean legal soils under cultural and political climate with legal roots of the “Civil Participation in Criminal Trial Act (CPCTA) of 2007” since 2008. This research examines legal and operational issues of jury trials through comparative analysis between the United States and South Korea. Several legal characteristics of 2013 revision bill of CPCTA, proposed by the Committee of Civil Participation in the Judiciary (CCPJ), are to be pointed out: so-called “civil participation” approach, de facto binding power of jury verdict and sentencing, and a stricter standard for a jury verdict or decision (3/4 majority). Statistical results from planting jury trials in both American and Korean legal system proved to be very similar. Meanwhile, a 2013 revision bill has to overcome several practical and legal obstacles, such as low usage of jury trials, the high rate of judicial dismissal of defendants’ petitions, and violation of Article 27 of the Korean Constitution. Under the current legislative scheme, judges in Korean courts need to operate jury trials in such a careful and respectful way that the revision may neglect neither a defendant’s right to jury trial nor jury’s verdict. Legal scholars, experts, and legislators with interests in implementing jury trials in Korea should research on ways to expand the system to other judicial procedures such as juvenile, civil, family, and administrative cases.     

Equality as a Basis for Religious Toleration: A Response to Leiter

In this short essay, I respond to Brian Leiter’s Why Tolerate Religion. I focus on two criticisms. First, I argue that Leiter’s own theory depends on an unacknowledged ideal of equality, and that equality is central to the utilitarian and Rawlsian bases for religious toleration that he draws upon in his book. Second, I argue against Leiter’s allowing, in certain circumstances, the state to establish religion and to promote religious conceptions of the good.     

Reply to Critics

This article responds to the four contributors to the book symposium on Conscience and Conviction: The Case for Civil Disobedience. Those four contributors are Thomas Hill Jr, David Lefkowitz, William Smith, and Daniel Weinstock. Hill examines the concepts of conviction and conscience (Chapters 1 and 2); Smith discusses conviction and then analyses the right to civil disobedience and my humanistic arguments for it (Chapter 4); Weinstock explores democratic challenges for civil disobedience (Chapter 5); and Lefkowitz assesses the merits of a legal demands-of-conviction excuse for civil disobedience (Chapter 5). This ‘Reply to Critics’ addresses them in turn.     

The Priority of Participation: A Friendly Response to Professor Gargarella

A response to Roberto Gargarella’s review of Punishment, Participatory Democracy, and the Jury, by Albert W. Dzur.