Prosecution Of Crimes Research Articles

And then Two Came Along at Once: Inter-State Cooperation on Core Crimes, the ilc and the Group of Core States

Despite their fundamental importance in the effective prosecution of international crimes, inter-state judicial cooperation regimes have long been overlooked. However, two new initiatives have recently emerged. The first is the International Law Commission’s Draft Articles on Crimes against Humanity (Draft Articles), which aims to create a global convention on prevention, punishment and inter-State cooperation with respect to crimes against humanity. The second initiative, the Mutual Legal Assistance Treaty for core crimes (mla Treaty), is wider in scope. It encompasses genocide, war crimes and crimes against humanity and seeks the conclusion of a multilateral cooperation treaty to enable the effective provision of mutual legal assistance and extradition of suspects in relation to these crimes. The aim of this article is to critically assess the merits and shortcomings of these two initiatives in the effort to enhance inter-state cooperation in the prosecution of international crimes and their abilities to remedy current problems.

Limitations of the Ordinary-Crimes Approach to the International Crime of Rape: the Case of Uganda

Abstract Not many states have effective national laws on prosecution of international crimes. Presently, of the 124 states parties to the Rome Statute of the International Criminal Court (Rome Statute), less than half have specific national legislation incorporating international crimes. Some faith has been placed in the ordinary-crimes approach; the assumption being that states without effective laws on international crimes can prosecute on the basis of ordinary crimes. This article assesses the practicality of this approach with regard to the crime of rape in Uganda. Based on this assessment, the author draws a number of conclusions. First, that there are glaring gaps in the Ugandan definition of rape, making it impossible for it to be relied on. Secondly, although national courts have the option to interpret national laws with a view to aligning them with international law, the gaps salient in the definition of ordinary rape are too glaring; they cannot be remedied by way of interpretation without undermining the principle of legality. Thirdly, prosecuting the international crime of rape as an ordinary crime suggests that approaches applicable to the prosecution of ordinary rape will be invoked. Because these approaches were never intended to capture the reality of the international crime of rape, the ordinary-crimes approach remains illusory.

Assessment of Efforts to Hold Perpetrators of Conflict-related Sexual Violence Accountable in Central African Republic

Abstract Sexual violence is commonly described as an epidemic in the Central African Republic (CAR) and other conflict settings. In response, the government and the international community have launched major efforts to combat sexual violence, including the investigation and prosecution of sexual crimes and offences by the ordinary justice system, the Special Criminal Court in the Central African Republic, and the International Criminal Court. Yet, little is known about how these efforts are perceived among the population and about their effectiveness at reducing exposure in a context of ongoing violence. This article builds on a unique series of four surveys conducted at six-month intervals between 2017 and 2018 with a total of 25,143 randomly selected adults. It assesses the magnitude of sexual violence and shows that respondents positively perceive efforts to combat sexual violence and increasingly understand and trust the justice system. Disclosure of sexual violence is increasing, but only one in five victims files a formal complaint with security and justice actors. Factors undermining disclosing or filing of complaints about these widespread events include fear of retaliation, re-traumatization, and stigmatization. Investigating sexual crimes in a context of insecurity is extremely challenging and the work of the various courts is hindered by practical, procedural, and social challenges detailed in this article, as well as the need to coordinate prosecutorial strategies. There is an urgent need to build capacity and to ensure appropriate and compassionate treatment towards those who have been assaulted. Monitoring perception of criminal justice efforts is an important step towards understanding their contribution to ending sexual violence and to peace.

A Sustainable Psychosocial Model to Support the National Investigation and Prosecution of Conflict-related Sexual Violence Crimes

Abstract This article presents a psychosocial model that can be used by national jurisdictions to cope with the multiple challenges in prosecuting conflict-related sexual violence crimes. Best practices developed over years of professional experience with victims of crime and trauma survivors guided the authors in developing a trauma-centred approach. In the proposed model, the judiciary plays a central role in empowering survivors of heinous crimes to become active agents of their lives by positively contributing to the quest for justice. The authors aim at offering specific and practical recommendations to investigative and judicial staff dealing with the multifaceted issues arising out of conflict-related sexual violence prosecutions. The hope is to offer a flexible model that can be adapted to different national jurisdictions’ needs, can produce sustainable long-term interventions for survivors’ well-being, and improve the quality of the evidence collected.

Achieving Justice for Child Survivors of Conflict-related Sexual Violence in the Democratic Republic of the Congo

Abstract In March 2015, the first major conference, or États Généraux, of the Congolese justice system was held in Kinshasa, Democratic Republic of the Congo. The conference, the mandate of which was to evaluate the functioning of the judicial system and formulate recommendations about reforms and actions to be implemented, pledged to strengthen national investigations and prosecutions of international crimes as a matter of priority. This development was significant in a country where widespread impunity for perpetrators of mass crimes, in particular conflict-related sexual violence, is rampant and exacerbates the trauma suffered by survivors. Among the cases deemed a ‘priority’, the Kavumu case was especially important. In that case, the Military Court of South Kivu found that the accused were part of an armed group, controlled by provincial lawmaker Frédéric Batumike, and together they were responsible for the rape of over 40 young girls over a three-year period. After a long and complex process, in December 2017, a mobile military court convicted 11 militia members, including the parliamentarian, of rape as a crime against humanity and sentenced them to life. In July 2018, the High Military Court confirmed the verdict. This article will provide an overview of the Kavumu case as well as the main milestones of the proceedings. The article will then discuss three features of the case that exemplify innovations and best practices — as well as pending challenges — in the prosecution of conflict-related sexual violence, including the issue of domestic immunities for international crimes; the unique, interdisciplinary protections undertaken for child victims of sexual violence in legal proceedings; and the effective collaborations among the network of medical, legal, and civil society actors supporting national efforts to combat impunity. The Kavumu case aptly illustrates how national justice institutions, working alongside international and local partners, can lead the way in achieving progress and overcoming complex challenges to advance accountability and set important precedents in the fight against impunity for conflict-related sexual violence.

CRIMINOLOGICAL AND PENAL ASPECTS OF ISSUING A FALSE OPINION BY AN EXPERT WITNESS - DRAFT REPORT ON RESEARCH PROJECT WITH PROPOSALS FOR CHANGES IN THE LAW DETERMINING THE LEGAL STATUS OF EXPERT WITNESSES

Evidence in the form of an expert opinion is usually of key importance for settling a pending case in any type of proceedings. In some cases, the role of the expert witness is closer to that of a judge rather than that of a witness, since a judge who does not have special knowledge often has to use evidence given by an expert to render a judgement. For this reason, issuing a false expert opinion results in a very high risk of delivering a wrong and unfair decision in a given case, which in turn has a negative impact on the social perception of the functioning of the justice system. In the Polish Criminal Code, criminal responsibility for issuing a false opinion is stipulated in Article 233 (4) and (4a) of the Penal Code. At the same time, despite a very large number of reports of suspicion that a crime has been committed by an expert witness, only a negligible number of investigations result in a bill of indictment and a conviction, which causes virtual impunity of perpetrators and has a negative impact on the functioning of criminal justice. Due to the diagnosed research gap in this area, the need to investigate and describe the phenomenon of issuing false opinions by expert witnesses, both in normative and criminological terms, on the basis of empirical research, has been clearly seen. The main objective of the research has been to characterise the phenomenon in question on many levels and to determine its real extent, its etiology and symptomatology. An additional aim of the research has been the verifi cation of research hypotheses and recognition of the normative sphere of the expert witness’s status, expert evidence, and principles of responsibility for issuing false opinions. The research fi ndings have resulted in proposals of solutions aimed both at limiting the phenomenon of issuing false opinions and more effective prosecution of perpetrators of crimes under Article 233 (4) of the Penal Code, which in turn may translate into more effi cient functioning of the entire justice system, as expert witnesses and their work are an extremely important aspect of thereof. The conducted research has fully confi rmed the research hypotheses and precisely indicated defective areas of expert evidence, and consequently the need to introduce immediate legislative changes. Some of the research conclusions and de lege ferenda postulates were implemented into the amended provisions of the Penal Code in 2016, which fully confi rms their legitimacy. Unfortunately, there is still no legal act of statutory rank which would comprehensively regulate the status of expert witnesses and expert evidence.

„Twórczość obca nam klasowo” – analiza komunikacyjno-językowa doniesień agenturalnych, informacji, notatek i uwag osobowych źródeł informacji (OZI) o środowisku literackim w latach 1956–1990

The purpose of the article is to present a communication and language analysis of agent texts on the Polish literary environment prepared by personal sources of information in the years 1956–1990. Their selection was made by employees of the Institute of National Remembrance from the Warsaw branch of the Commission for the Prosecution of Crimes against the Polish Nation in a monograph entitled „Twórczość obca nam klasowo”. Aparat represji wobec środowiska literackiego 1956–1990 [“Creativity foreign to our class.” Apparatus of repression against the literary environment from 1956 to 1990]. The analysis applies only to materials that are a direct record or development of a specific denunciation filed by a person registered as a source of information, but does not apply to reports, analysis of situations, statements and other texts authored by the officers of the Security Service. These are sixty-three formally diverse texts consisting of reports, information, notes and remarks from secret collaborators (TW – Tajny Współpracownik), operational contacts (KO – Kontakt Operacyjny), confidential contacts (KP – Kontakt Poufny) and consultants (K – Konsultant). Primarily, the analysis takes into account all description elements of the act of communication and makes an introduction into discourse analysis of secret agent materials originating from the three stages of the Polish People’s Republic. Denunciation resulting in those texts fulfils a social function as a tool for political fight against the opposition and a political function as well, allowing for spreading the belief in the omnipotence of the state and destroying the existing systems of values. The texts are mainly informative, although they are not devoid of emotion expressed linguistically in a variety of ways. The authors are aware of the value of the knowledge conveyed in the texts and of the consequences of denunciation for the people they concerned.

“He Should Learn That He Cannot Get a Woman for free”: Male Elopers and Constructions of Masculinity in the Afghan Justice System

This article explores constructions of gender, masculinity, and class in moral crimes prosecutions, and their legal aftermaths in Afghanistan. It argues that the lack of attention to men in advocacy and research about moral crimes, while reflecting a (geo-) politicized conflation of gender with women, constitute both an empirical and an analytical oversight. The first part of the article discusses the legal grounds for the prosecution of men for “moral crimes” in Afghanistan and presents statistical data that reveals large-scale incarceration of men for pursuing consensual, heterosexual relations, including the non-codified crime of elopement. In the second part, we use ethnographic data to probe into the ways in which the treatment of male elopers are based on specific notions of gender, sexuality, and masculinity. We suggest that the interrelated, yet differentiated, prosecution of male and female elopers in Afghanistan can be usefully understood in terms of a gender regime that places different expectations on men and women. Women’s gender performance is ranked according to (verifiable) chastity, men’s gender performance according to the (legitimate, i.e., honorable) command of resources.

A generic investigation process for South African commercial forensic practitioners

PurposeThe purpose of this paper is to critically analyse and discuss the identification of a generic investigation process to be followed by the commercial forensic practitioner in South Africa.Design/methodology/approachThis paper is a cross-sectional design that commenced with a review of the current available literature, highlighting the different approaches, processes and best practices used in local and international forensic practices. The methodology includes primary data collected with questionnaires from commercial forensic practitioner (N = 75) process users.FindingsThis paper identifies the following five distinct categories in the forensic investigation process, with sub-processes, namely, initiation, planning, execution, reporting and reflection.Research limitations/implicationsThe study focuses only on the South African members of the Institute of Commercial Forensic Practitioners (ICFP) fraternity in South Africa as the ICFP is a leading body that, through membership, offers a recognised professional qualification in commercial forensics.Practical implicationsAn investigation process for commercial forensic practitioners in South Africa could be used by the ICFP that would provide a governance structure for the ICFP.Originality/valueThe originality of this paper lies in setting out of an account of forensic accounting processes and best practices nationally and internationally. The missing knowledge is that no such research is known to have been conducted in South Africa. Currently, to the authors’ knowledge, no formalised investigation process exists. The contribution of the study is that by using an investigation process, it may enhance the quality of forensic investigations and contribute to the successful investigation and prosecution of commercial crime in South Africa that will be beneficial to all stakeholders.

Legal reform or erasure of history? The politics of moral crimes in Afghanistan

ABSTRACT In this article we reflect on our efforts to study the prosecution of moral crimes in Afghanistan. In the process of collating information about men and women imprisoned for moral crimes such as adultery, we found evidence that pointed to large-scale incarceration of men for the uncodified crime of elopement. After establishing this fact through a careful review of official data, the article considers two interrelated themes. First, we argue that government attempts to conceal its extralegal practices cannot be reduced to the question of a corrupt bureaucracy or weak governance. Rather, they reflect a fundamental tension between a modern state’s interest in projecting the rule of (codified) law and societal expectations arising from both Islamic and customary law. Second, we suggest that officials seek to address this conceptual tension between the different bodies of law through a complex process involving both accommodation and concealment. In day-to-day judicial practice, ‘assimilation’ refers to attempts to rely on sharia provisions to accommodate customary practices which have no counterpart in statutory law. ‘Dissimulation’ refers to bureaucratic actions aimed at concealing the actual practices which make such extralegal accommodations possible.

Projekt Musterpolizeigesetz - eine Stellungnahme

In Germany, the competence to legislate on the powers of the police, as far as the prevention of threats to the public security and not the investigation and prosecution of criminal offences is concerned, lies with the Länder. A working group of representatives of the Länder and the federal state is currently drafting a new model Police Act for Germany, i. e. template legislation that will become an important point of reference for the legislative activities of the Länder. This article examines the merits of this project and comments on some decisions the working group has already taken. It argues that it cannot be the aim of the project to try to achieve full uniformity of police law in Germany. The decision of the German consitution to entrust the Länder (and not the federal state) with police powers should not be undermined. The real purpose of the project should be to reach a consensus on some basic dogmatic notions of police law. It shows that there is currently a great amount of dogmatic uncertainty which could be clarified by the project. The aim of the working group, which is to set out police powers within and at the limits of the constitution, raises the question whether the constitutional limits of police law have been drawn too tightly by the constitutional court and by academic debate. It is highly unusual that an area of the law is so heavily determinded by constitutional law as is the case with police law in Germany. A main focus of the article deals with the question of whether the new Act should embrace the notion of “drohende Gefahr” (impending danger), which was considered by the constitutional court and recently introduced by the Bavarian legislator. Normally preventive police powers are linked to the precondition that the police can demonstrate a “konkrete Gefahr” (a concrete danger, i. e. a sufficient likelihood) of a threat to public security. “Drohende Gefahr” (impending danger) means, that there is indeed a sufficient likelihood of such a threat but one cannot foresee yet when, where and how exactly the threat will materialise. The article shows that “drohende Gefahr” is nothing new in essence, but just a borderline case of “konkrete Gefahr” which is now defined in a more precise manner. Finally the suggestions for detention powers of the police are analysed.

Schlussstrich unter die NS‐Verbrechen? Die verdeckte Lösung der Verjährungsfrage in Österreich

The timeframe for the prosecution of Nazi crimes was limited in Austria by extinctive prescription. Shortly before the last and most severe crimes became unpunishable in the early 1960s, the Austrian government faced heavy pressure from foreign governments and international organisations as well as groups of former victims and resistance fighters to extend or even abolish the limitation period for the most severe crimes. The measures considered for extending the timeframe for the prosecution of Nazi crimes raised legal questions, especially concerning the principle of non-retroactivity. However, the public, political and even academic debates were closely connected to the popular aim of finally putting an end to the preoccupation with the Austrian population’s participation in the atrocities committed. In the following paper, the Austrian discourse concerning an extension of the limitation period for Nazi crimes, the problem’s solution and its consequences will for the first time be examined from a legal as well as a historical perspective based on primary sources.

Consolidation of Prosecutor Offices

AbstractWe investigate the impact of the consolidation of local agencies publicly providing services, focusing on the prosecution of crime. In many states in the United States, prosecution is a county office with a head prosecutor directing decisions. Other states merge counties into prosecutorial districts. We show that, along with the cost savings that arises, the evidence suggests that prosecutorial services benefit from increasing returns to scale. The efficiency of prosecutorial output is higher in consolidated districts. Further, we show that it is not owing to differing outcomes of the criminal justice system but to fewer inputs used.

The Possibility of Prosecuting Corporations for Climate Crimes Before the International Criminal Court: All Roads Lead to the Rome Statute?

Due to rapid developments in climate science, scientists are now able to quantifiably link significant greenhouse gas emissions caused by major oil and gas corporations to specific climate impacts. These scientific advances have been accompanied by the publication of documents and studies suggesting that the oil and gas industry allegedly had knowledge of climate change as early as sixty years ago, and yet it actively worked to promote climate change denial and to delay governmental regulation on this matter. Though climate-related litigation is proceeding against the industry in different jurisdictions, proceedings brought against oil and gas corporations mainly focus on actions at the national level, seeking damages for climate change impacts and on lawsuits brought by state Attorneys General in the United States. There has not been any attempt to hold these companies criminally accountable in the international sphere for the widespread and irreversible global consequences of their alleged conduct. This article examines whether fossil fuel corporations––or their officials––should be held accountable for their alleged conduct at the international level, and, in particular, whether these corporations (or corporate officials) could be investigated and prosecuted for the crimes listed in the Rome Statute of the International Criminal Court. Through this prism, this article aims to evaluate a broader question: whether the Rome Statute is applicable for the prosecution of corporate environmental crimes. In this sense, the article engages with the most recent policy paper by the ICC’s Office of the Prosecutor—which set forth, inter alia, the goal of prosecuting Rome Statute crimes that result in the destruction of the environment—and further explores the suitability of such proceedings for corporate actions.

Addressing a selection of challenges faced at international courts and tribunals with jurisdiction over international crimes

One of the core characteristics of international crimes is that they are committed on a great scale; therefore, the sheer volume and complexity of evidence required to justify investigation and ultimately prosecution inevitably leads to several challenges. Since the first time that persons were held individually criminally responsible at an international level at Nuremberg and in the Far East, to the way in which the permanent International Criminal Court fulfils its mandate, investigating and prosecuting international crimes have involved manifold challenges. This article identifies three challenges faced by international criminal courts and tribunals in investigating and prosecuting international crimes. The first challenge is the investigation phase of international criminal proceedings, specifically the difficulty of selecting cases and identifying persons with the greatest responsibility for the crimes. The second challenge flows from the first, specifically in light of the magnitude of evidence indicating the required gravity to pursue further investigation and eventually prosecution. This raises the difficult question whether investigators, prosecutors, and judges are able to consistently comply with their duty to respect and protect the various fair trial rights to which suspected and accused persons are entitled. The third and final challenge that will be engaged with in this article relates to the formidable impact of international and political relations at all stages of investigation and prosecution of international crimes, which may ultimately thwart compliance with the obligation to prosecute international crimes.

The Place of the African Court of Justice and Human and Peoples’ Rights in the Prosecution of Serious Crimes in Africa

The Place of the African Court of Justice and Human and Peoples’ Rights in the Prosecution of Serious Crimes in Africa

Normative and legal regulation of the military sphere in Ukraine

This article is devoted to the study of the current state and trends in the legal regulation of the military sphere in Ukraine. In the process of studying the legal regulation of the military sphere in Ukraine, the authors revealed the concept, essence, legal regulation and areas for improvement of this area. The authors divided the legal regulation of the military sphere in Ukraine into 5 different groups, to which they referred: constitutional regulation (Constitution of Ukraine); codes of Ukraine (Water Code of Ukraine, Forest Code of Ukraine, Air Code of Ukraine and others); other special laws that regulate certain areas of military activity (Law of Ukraine "On Military Duty and Military Service"); bylaws: orders, resolutions, orders of central and local authorities (President of Ukraine, Cabinet of Ministers of Ukraine (CMU - hereinafter), Ministry of Defense of Ukraine, Security Service of Ukraine (SBU - hereinafter), etc.); international regulations in the military sphere, which were ratified by Ukraine. The authors also mentioned criminal and administrative liability in the military sphere and supported it by the norms of the Criminal Code of Ukraine and the Code of Ukraine on Administrative Offenses. Yes, they attributed to criminal offenses: disobedience, non-compliance with the order; resistance to the chief or forcing him to breach official duties; threat or violence against the boss; desertion, etc. To administrative offenses: refusal to comply with the lawful requirements of the commander; unauthorized leaving of a military unit or place of service; abuse of power or official position by a military official; careless attitude to military service and more. According to the study, an analysis of court decisions regarding prosecution for war crimes was conducted. A number of scientific researches in the field of administrative law were analyzed. Directions for improving the current legislation in the field of legal regulation of the military sphere were adopted and developed on the basis of a careful analysis of the legislation of the European Union.

Remarks by Catherine Marchi-Uhel

The IIIM is different in that it is not a judicial entity. It cannot adjudicate crimes. It is not a court or tribunal. The IIIM has been referred to as having a “quasi-prosecutorial” function. It has been mandated by the General Assembly in 2016 to assist in the investigation and prosecution of core international crimes committed in the Syrian Arab Republic since March 2011.

Legal framework for wildlife farming benefits species conservation and preventing wildlife crimes in Vietnam

Animal husbandry plays a certain role in economic growth of the agricultural sector. Compared with conventional husbandry, wildlife farming brings important, even many times greater economic benefits with certain species. At present, however, due to different objective and subjective factors, the raising of wild animals in Vietnam has not been adequately taken care of and faced several difficulties. The inadequate legal structure for wildlife farming has caused difficulties to farmers when finding breeding supplies and product output. In addition, wildlife criminals take advantage of agricultural operations to cover up their crimes, evade the detection and handle from the authorities. In order to contribute to promoting the development of agricultural economy in general, the economy of organizations and individuals participating in animal husbandry activities in particular, we aims at recognizing, examining and reviewing the existing legal system for wildlife-farming practices, crime situation and crime handling in Vietnam in recent years in this research. We will detect the difficulties, obstacles and inadequacies of the legal framework on wildlife farming, as well as the prevention and prosecution of wildlife crimes, propose strategies and guidelines for perfecting the law and appropriately implementing law provisions.

Procesuiranje zločina iz mržnje u Republici Srbiji i Bosni i Hercegovini

The author deals with the issue of prosecution of hate crimes in Serbia and Bosnia and Herzegovina. In this regard, the author tries to elaborate on the most important concepts related to the legal regulation and the fight against this type of crime, to point out their differences and relationships. The paper pays special attention to the problems that judicial authorities face when they prosecute hate crimes. The current criminal policy is extremely mild; the existence of hatred as a special motive has not been taken into account and the goal is only to determine whether there is a criminal offense. The author tries to point out how important it is for a country to demonstrate determination in combating violence, which means not only the protection of individuals by the authorities and not only a contribution to social equality, but also implies state measures to promote rights and freedoms of all citizens that are guaranteed by the highest legal act - the Constitution. The paper emphasizes that one of the ways to combat this behavior is the introduction of the provisions on hate as an aggravating circumstance in the Criminal Code. Of course, it should be noted that the situation in the society cannot automatically be improved by introducing the aforementioned provisions. This is a long-term process, so it is of utmost importance the successfully implement the law as the prevention of future crimes depends on it. Therefore, the introduction of hate crimes into law is the first step towards a society in which hatred will not be tolerated. The paper aims to point out the basic shortcomings in the legal framework and practice in Bosnia and Herzegovina in this domain by observing it through the prism of criminal acts committed out of hatred as the primary focus of analysis, adopting the proposition according to which the specific social context in Bosnia and Herzegovina dictates greater intervention in the domain of criminal regulation of expression of hatred and prejudice.