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4622 results in Criminal Law

Page 101 of 232

Modern Criminal Law of Australia
  • 2nd edition
  • Jeremy Gans
  • Published online:
    06 August 2018
    Print publication:
    05 December 2016
  • Modern Criminal Law of Australia, 2nd edition is a comprehensive guide to interpreting and understanding every statutory offence provision in every Australian jurisdiction. The text takes a unique approach to explaining Australian criminal law, emphasising the importance of statutory interpretation, official discretion, element analysis and sentencing, in order to appreciate the meaning and effect of any offence provision. This book sets out the rules and skills needed to advise clients on the potential application of criminal law throughout Australia. Its scope extends to both serious and minor regulatory regimes, as well as the entire contemporary breadth of criminal law, ranging from pollution to public order, traffic to trafficking, and domestic violence to work safety. It covers the common law, traditional code and model code systems, and includes detailed examples from all states. As such, this unique book provides students with the skills to practice law anywhere in Australia.

  • 12 - States

  • Jeremy Gans, University of Melbourne
  • Book:
    Modern Criminal Law of Australia
    Published online:
    06 August 2018
    Print publication:
    05 December 2016, pp 442-478

  • Summary

    Introduction

    States are the dominant players in Australian criminal justice. Not only are state agents – police, prosecutors, regulators and courts – the key decision-makers in criminal process (see Chapter 2: Choices) but state institutions – the executive, parliament and courts – are also the source or interpreters of all statutory offence provisions (see Chapter 1: Words). It is less widely recognised that states can also play other roles: as victims of some crimes and as complicit in (or even perpetrators of) others.

    This final chapter examines the role of government as the subject, object and context of many breaches of the criminal law. Section 12.2 considers the conflicting roles of states in the criminal law. Section 12.3 sets out the role of states in offence definitions and exceptions. The final section, 12.4, examines the potential impact of state behaviour on others’ criminal responsibility.

    As in the previous two chapters, there is no single criminal law of statehood and the role of states varies from offence to offence. The topic will be introduced through the example of land crimes, including conservation laws, planning laws and trespass. Land has long been both a focus and a venue for political activism, and is a context where the state plays multiple roles as source, regulator and protector of land rights and as the principal owner and user of land.

    The problem of states

    The old brewery site on Perth's Swan River foreshore is a locus for almost every controversy in Australian urban land policy. Until a century and a half ago, the land was a regular campsite for south-west Australia's Nyungar people, who believed that Waugal, the rainbow serpent known to Aboriginals across Australia, had a presence there. The European founders of Perth initially set up a station there in an attempt to contain the indigenous community, but later banned them from the area as it became part of the city's Kings Park. The site's proximity to the water facilitated a variety of commercial uses, including as the iconic Swan Brewery. Eventually, Perth's residents came to appreciate its beauty, in part because a four-lane highway built straight through it gave them regular access.

  • 1 - Words

  • Jeremy Gans, University of Melbourne
  • Book:
    Modern Criminal Law of Australia
    Published online:
    06 August 2018
    Print publication:
    05 December 2016, pp 20-54

  • Summary

    Introduction

    This chapter is about how to read the words in statutory provisions that set out criminal offences. Section 1.2 explains why reading such provisions can be hard. The remaining sections describe the law on how to read them, in two stages:

  • • the general law on reading statutes, which requires readers to consider the language, context and purpose of every provision (1.3)

  • • special rules for reading criminal statutes, which require readers to look at their penal nature, their effect on human rights and general doctrines about the criminal law (1.4).

    • Understanding these regimes, as well as their interaction and limitations, is essential to understanding contemporary Australian criminal law.

    While words are common to every offence provision, this chapter will focus on the variety of offences that regulate anti-social behaviour. Not only is the law of disorder the broadest part of the criminal law in terms of potential application and one of the most fraught routine interactions between the state and its citizens, but it is also a particular challenge in terms of both drafting and interpreting offence provisions, whether old or modern.

    The problem of words

    The foundational principle of criminal law is typically expressed in Latin: nullum crimen sine lege, which translates to ‘no crime without law’. While this principle is universally lauded, it has at least one significant downside. With the exception of a handful of common law offences, the principle is really ‘no crime without words’ – that is, legislative words – and such words are often problematic.

    To introduce the difficulties of reading statutory words consider the following offence:

    Summary Offences Act 1966 (Vic)

    41DA Distribution of intimate image

    (1) A person (A) commits an offence if –

    (a) A intentionally distributes an intimate image of another person (B) to a person other than B; and

    (b) the distribution of the image is contrary to community standards of acceptable conduct.

    Example

    A person (A) posts a photograph of another person (B) on a social media website without B's express or implied consent and the photograph depicts B engaged in sexual activity.

  • 2 - Choices

  • Jeremy Gans, University of Melbourne
  • Book:
    Modern Criminal Law of Australia
    Published online:
    06 August 2018
    Print publication:
    05 December 2016, pp 55-86

  • Summary

    Introduction

    Statutory words define crimes and available punishments, but they cannot determine whether a particular person is a criminal or what should happen to her. Instead, various people decide each of these things. This chapter is about the role of people's choices in shaping Australian criminal law.

    Section 2.2 explains why people's choices play both an essential and a conflicted role in Australian criminal justice. Understanding the Australian criminal justice system involves reading both the words of statutes and the minds of people whose choices can greatly alter the impact of those statutes. The latter task is difficult indeed, but it is somewhat eased by laws that partially regulate criminal justice decision-making. The remainder of the chapter addresses three categories of choices and the law that regulates them:

  • • policing, or choices about how to deal with a possible criminal

  • • prosecuting, or choices about whether to seek an official finding on whether or not someone is a criminal

  • • regulating, or choices that can alter the applicability of an offence provision.

    • The law on a fourth set of choices – what to do with a proven offender – will be addressed in Chapter 6 (Sentences). Chapters 11 (Victims) and 12 (States) will discuss the significance of choices made by victims of crime and executive bodies.

    The above choices, in combination with trial practices, comprise the law of criminal procedure. Dealing comprehensively with that subject – including the boundaries of police investigative powers and court processes for determining criminality – would require a separate book or two. This chapter's focus is narrower. It examines how people's choices can effectively alter the scope and impact of statutory offence provisions.

    This chapter will continue to use the previous chapter's running example of anti-social conduct. In this chapter, the focus will be on the regulation of particular public places, which often involves not only traditional policing but a range of other regulatory officials and associated legal and administrative regimes. As will be seen below, one such instance of regulation led to an exchange between the United Nations and the Australian Government on the law of choices.

  • Chapter 5 - The Interaction between States and Heads of State: the Role of Rationality

  • from Part I - The Theory
  • Maartje Weerdesteijn
  • Book:
    The Rationality of Dictators
    Published by:
    Intersentia
    Published online:
    28 September 2018
    Print publication:
    24 November 2016, pp 115-144

  • Summary

    INTRODUCTION

    In previous chapters the characteristics of dictators and dictatorial regimes have been discussed as well as the responsibility of the international community to stop the worst atrocities that are perpetrated by them. When a dictator manifestly fails to protect his population from atrocity crimes or is even complicit in their perpetration, the international community may intervene through the UN Security Council to implement the third pillar of the responsibility to protect. Foreign policy mechanisms that may be used to persuade a dictatorial leader to stop the perpetration of crimes are diverse, and range from diplomacy to sanctions and sometimes even military intervention. These mechanisms are not only intended to emphasize the importance of respect for human rights but also aimed at changing the policies of perpetrating countries (Luard, 1980, p. 579). As Tetlock specifies ‘foreign policy is fundamentally social influence: The ultimate objective is to persuade other nations to act in desired ways’ (Tetlock, 1983, p. 69). Although often the international community fails to stop the crimes (LeBor, 2006), the domestic policies of dictators might be impacted by the actions of the international community or other states depending on whether the leader will be responsive to the foreign policy mechanisms and modify his tactics that bring about the suffering. In some instances, this means coercing the target state to change its behaviour by threatening the adversary with enough pain that this would outweigh the benefits of resisting the demands for change (Byman & Waxman, 1999, p. 107). That the decision-making process would be done in such a rational manner, however, has been challenged by scholars who pointed to the inability of human beings to live up to the assumptions underlying perfect rationality and has raised issues relating to the level of analysis that is being investigated (a.o. Stein, 2012). The question becomes whether rationality is attributed to the state or to the individual and what the implications of choosing a particular level of analysis are for examining a state's foreign policy (Carlsnaes, 2012). What determines the reaction of a state to foreign policy measures directed at it, and what is the role of the individual therein?

  • Chapter 6 - Different Kinds of Rationality: The Work of Max Weber

  • from Part I - The Theory
  • Maartje Weerdesteijn
  • Book:
    The Rationality of Dictators
    Published by:
    Intersentia
    Published online:
    28 September 2018
    Print publication:
    24 November 2016, pp 145-170

  • Summary

    INTRODUCTION

    In line with the argument that the state should not be viewed as a black box, Max Weber likewise argued that collective entities need to be opened up to analyse the individuals who constitute them. On the one hand, he noted in his seminal work Economy and Society that sometimes it may be necessary for practical reasons to treat social collectivities as if they were individuals (Weber, 1964, p. 101). On the other hand, he argued that ‘for the subjective interpretation of action in sociological work [social collectivities such as states, associations and business corporations] must be treated as solely the resultants and modes of particular acts of individual persons’, adding that ‘for sociological purposes there is no such thing as a collective personality which “acts”’ (Weber, 1964, pp. 101- 102). Although most sociologists tend to view the task of the sociologist as lying with the analysis of what Levine calls ‘supraindividual’ formations, according to Weber sociology should seek to understand and interpret individual social action (emphasis in original 2005, p. 101). His types of social action have usually been discussed in relation to his work on rationality which has been highly influential (Levine, 2005, p. 102). Some scholars go as far as to designate Weber as an early forbearer of the rational choice approach (Norkus, 2000, p. 259), yet despite the influence he may have had on the development of rational choice, there is much to be gained by incorporating more of Weber's ideas into the contemporary debate on individual rationality.

    Rational choice is sometimes said to be a multilevel enterprise with an important focus on macro level outcomes, leaving the analysis of individuals to decision-making theory which highlights the cognitive and psychological factors which influence human action (Hechter & Kanazawa, 1997, p. 192; Kiser & Hechter, 1998, pp. 802-803; Mintz & DeRouen, 2010, pp. 3-6). However, this dichotomy between rational choice and decision-making analysis as mutually exclusive paradigms is unnecessary. It is important to acknowledge that the perfectly rational decision maker is an ideal type.

  • Chapter 2 - The World of the Dictator

  • from Part I - The Theory
  • Maartje Weerdesteijn
  • Book:
    The Rationality of Dictators
    Published by:
    Intersentia
    Published online:
    28 September 2018
    Print publication:
    24 November 2016, pp 17-54

  • Summary

    INTRODUCTION

    Dictatorships and dictators are shrouded in secrecy, making them difficult to study. Government sources are usually unreliable and independent media is usually hampered or censured. Studying dictatorial regimes, and how they function, is therefore an extremely difficult task. Unsurprisingly political science has traditionally paid much more attention to democratic countries than their dictatorial counterparts (Ezrow & Frantz, 2011, p. xiv). Interest in the topic, however, has increased and, an impressive body of work has emerged in which dictatorship and democracy are usually treated as each other's counterpart. In the literature, dictatorships are commonly defined negatively as non-democratic regimes (Lidén, 2014, pp. 50-51), but how clearly can we delineate one from the other, and to what extent do dictatorships actually function differently than democracies? Scholars increasingly see the distinction between dictatorships and democracies as a rather fluid one. Democracy and dictatorial rule are now regarded in this approach as either ends of a spectrum, with some regimes being more or less democratic. The distinction is no longer seen as being either black or white, but many regimes are now conceptualised as semi-authoritarian, the so-called ‘hybrid regime’, to denote the different shades of grey (Bogaards, 2009). While this adds to the sophistication of contemporary research, it is important to gain more understanding of what characterizes a dictatorial regime, and how it works. What does the concept ‘dictatorship’ entail and how does it function? To what extent can the dictator actually determine the policies of a country, how influential is he and how does he obtain and maintain such power? These are some of the questions the present chapter seeks to answer in order to explain the dictator's role in determining the policies of his regime, both within his country, as well as the foreign policy of his country.

    A factor that complicates answering these questions is the extent to which dictatorships may differ from one another. They may differ, for instance, in the extent to which power is concentrated in the hands of one individual or a small clique, the role the military plays, and the extent to which the regime tries to infiltrate every aspect of people's lives. The leaders of these regimes likewise differ enormously from one another.

  • Chapter 4 - Preventing and Stopping Mass Atrocities: the Responsibility to Protect

  • from Part I - The Theory
  • Maartje Weerdesteijn
  • Book:
    The Rationality of Dictators
    Published by:
    Intersentia
    Published online:
    28 September 2018
    Print publication:
    24 November 2016, pp 75-114

  • Summary

    INTRODUCTION

    After WWII, states were determined to prevent similar horrors in the future. In order to realize this, the prevention of interstate conflict, as well as the promotion of human rights and fundamental freedoms, became important goals of the United Nations. Tension, however, emerged between the promotion of human rights through the adoption of the Universal Declaration of Human Rights, which later led to the adoption of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Prevention and Punishment of the Crime of Genocide, for instance, and a strict respect for state sovereignty that meant to ensure international peace and security. State sovereignty, as the foundation for the modern system of states, came to mean they were ‘legally equal to each other, not subject to the imposition of supranational authority, and, above all, not intervening in each other's internal affairs’ (Evans, 2008, p. 16). The manner in which countries have used sovereignty as an excuse not to intervene when horrendous crimes have been perpetrated or to hide behind it when they have perpetrated the crimes, has increasingly come to be seen as problematic (Cronin, 2007, p. 298).

    Although Chapter VII of the UN Charter, authorizes the UN Security Council to intervene in order to ‘maintain or restore international peace and security’, for a long time this was defined restrictively and the Security Council was hesitant to interfere with state sovereignty. This frequently severely limited the possibilities to protect populations from human rights violations (Askin, 2005, p. 1723; Grünfeld, 1998). Furthermore, during the Cold War, the Security Council was largely deadlocked. The United States and the Soviet Union vetoed an astounding 279 resolutions, and dictators were largely able to act as they pleased within the confines of their own borders for years, often even while being backed by one of the two superpowers (Ayittey, 2011, pp. 107- 108; Boutros-Ghali, 1992). While the Security Council became much more proactive after the end of the Cold War, and increasingly came to see human rights violations as a genuine concern, there was a continuous failure to prevent genocides from happening (Grünfeld, 1998; Österdahl, 2005). The genocides that occurred in Rwanda and Srebrenica in particular, where UN peacekeepers were present but failed to intervene in an effective manner, caused international outcry (LeBor, 2006).

  • Chapter 11 - Military Intervention: Lessons Learned from the Wars with NATO and Vietnam

  • from Part II - The Comparative Case Study
  • Maartje Weerdesteijn
  • Book:
    The Rationality of Dictators
    Published by:
    Intersentia
    Published online:
    28 September 2018
    Print publication:
    24 November 2016, pp 303-348

  • Summary

    INTRODUCTION

    In 1979, Pol Pot was confronted with the threat of military intervention when its border conflict with Vietnam spiralled out of control. Twenty years later Milosevic's survival in power was also at stake when NATO was prepared to bomb Milosevic back to the negotiating table. Each of the leaders had to consider whether they were willing to halt their violent policies in the contested areas and whether they were willing to negotiate a more peaceful resolution to the conflicts. Both of the interventions are likely to have saved the lives of numerous individuals but were highly controversial. To a certain extent, both episodes reflected the time in which they were fought; while Vietnam became an international outcast, NATO's intervention was seen as ‘illegal but legitimate’ by the Independent International Commission on Kosovo. The Commission argued: ‘the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule’ (The Independent International Commission on Kosovo, 2000, p. 4). In the 1970s, the perpetration of atrocities was never a good reason to infringe upon the sovereign rights of any country, but by the end of the 1990s the international community was torn between the injustice of intervening and the injustice of standing by while innocent civilians are slaughtered. The intervention in Kosovo therefore raised questions about the rightfulness of military intervention for humanitarian purposes and eventually led to the report of the International Commission on Intervention and State Sovereignty in which the responsibility to protect was conceptualised.

    Many problems plague military intervention by foreign powers when a regime perpetrates unimaginable atrocities. The dilemma of whether there is a will to intervene, as well as the question whether military intervention should even be considered an option, is discussed extensively elsewhere (e.g. Chomsky, 2012; Power, 2013; Wheeler, 2000). The intention of this chapter is merely to provide an assessment of the possible ways in which different leaders may respond to the threat of, and the actual use of, military force. Scholars have debated the extent to which the decisions of both Milosevic and Pol Pot can be considered rational, considering the military might of the intervening powers and the balance of powers in the international arena.

The Rationality of Dictators
  • Towards a more effective implementation of the responsibility to protect
  • Volume 22
  • Maartje Weerdesteijn
  • Published by:
    Intersentia
    Published online:
    28 September 2018
    Print publication:
    24 November 2016
  • A non-democratic system of government is an important risk factor for the perpetration of atrocity crimes, meaning genocide, crimes against humanity, war crimes and ethnic cleansing. At the 2005 World Summit the international community accepted the responsibility to protect populations from these crimes when the domestic state is failing to do so. The implementation of the responsibility to protect, however, leaves much to be desired. This book studies the role dictators play in orchestrating mass atrocities and analyses their decision-making process when the international community tries to stop or mitigate the perpetration of these crimes. Through a comparative case study of Pol Pot and Slobodan Milosevic it argues that the role ideology plays in the decision-making process of the dictator is an important determinant of their responsiveness. In doing so, it challenges the common notion that all dictators are primarily motivated by retaining their position of power and argues that while dictators are frequently characterised as raging mad men, this is not necessarily always the case. It rather argues in favour of a more nuanced approach to rationality, that uses the work of Max Weber to acknowledge that different types of rationality exist, when analysing the decision-making process of dictators. The book is therefore an indispensable resource for scholars who are interested in the role of dictators in bringing forth and stopping mass atrocities and for anyone who wants more insight into the rationality of dictators.Maartje Weerdesteijn is an interdisciplinary scholar and lecturer at Utrecht University. She holds a bachelor from Maastricht University and a master from VU University Amsterdam where she worked for several years as a lecturer. She conducted her PhD research at Tilburg University and published in renowned international journals, including Politics and Governance, International Criminal Law Review and Genocide Studies and Prevention.

  • Chapter 9 - The Rationality of Pol Pot

  • from Part II - The Comparative Case Study
  • Maartje Weerdesteijn
  • Book:
    The Rationality of Dictators
    Published by:
    Intersentia
    Published online:
    28 September 2018
    Print publication:
    24 November 2016, pp 241-274

  • Summary

    INTRODUCTION

    That ideology played an important role in shaping the events in Cambodia seems beyond doubt. Many people suffered a horrendous death because of the imposition of policies that were meant to bring forth a communist utopian society. The real question is whether Pol Pot used this ideology instrumentally because it suited his personal goals and ambitions, or whether there was a genuine belief in the righteousness of the revolution that propelled these developments. Scholars differ somewhat of opinion on this manner. Some scholars are convinced a lust for power lay at the root of these atrocities while others belief it was the uncompromising commitment to the ideology that is to blame. Chindawongse, for instance, believes that power was Pol Pot's predominant overarching goal and that the desire to change society was only necessary and desirable to obtain and maintain control over the country (Chindawongse, 1991, p. 127). According to Chindawongse,

    ‘the Pol Pot leadership regarded ideology as an instrument of policy rather than an idealized blueprint of objective to be achieved. Its ultimate objective was to create conditions within the CPK and to restructure social and economic relationships in Cambodia to foster the achievement and perpetuation of a political power monopoly’ (1991, p. 132).

    Jackson, on the other hand found that the most important motive for the elite was the desire to create an egalitarian society in combination with utter disgust for the old regime (K. D. Jackson, 1989, pp. 54-56). Chandler does not see how one option should negate the others and is convinced that it was a ‘courageous, doomed attempt by a group of utopian thinkers’, while at the same time it was also the result of an extreme ‘thirst for power’ (Chandler, 1999, p. 3).

    Other scholars are not convinced a rational explanation for the violence can be found because, they argue, Pol Pot was crazy. Polin described Pol Pot as ‘a madman who takes himself for an avenging deity’ (Polin, 1980, p. 45). Valentino, on the other hand, sees Pol Pot's paranoid psychological mindset as being intimately linked to his ideological outlook. According to Valentino, the paranoia communist leaders often suffer from is attached to the extreme Marxist outlook that they have and should not be seen as solely something which stems from ‘their personal psychological aberrations’ (Valentino, 2004, p. 100).

  • Chapter 8 - Milosevic and the Dissolution of Yugoslavia

  • from Part II - The Comparative Case Study
  • Maartje Weerdesteijn
  • Book:
    The Rationality of Dictators
    Published by:
    Intersentia
    Published online:
    28 September 2018
    Print publication:
    24 November 2016, pp 207-240

  • Summary

    INTRODUCTION

    In the 1990s, the horrible violence that took hold over the Balkans shocked the world. The communist dictator Josip Broz Tito had promoted ‘brotherhood and unity’ among the peoples living in Yugoslavia since he came to power after World War II, but after he died in 1980, the federation would soon unravel (Fine, 2006, p. 277; Kollander, 2004, pp. 7-8). In the years that followed, Yugoslavia's economy started to falter. These problems were exacerbated by the end of the Cold War, which caused the country to lose some of its strategic importance and international prestige (Woodward, 1995, pp. 15-16). The rising nationalism that subsequently swept through the region would soon lead to the dissolution of the country. After Slovenia declared independence in the summer of 1991, a ten-day war followed in which 50 people lost their lives. Slovenia was relatively homogeneous in its ethnic composition, and it was apparent that it had a strong national guard ready to protect the country (Kollander, 2004, p. 7; 10). In Croatia, on the other hand, about 12 % of the population was Serb (Kollander, 2004, p. 10), and in Bosnia, matters were even more complicated. About 40 % of the population were Bosnian Muslims, or Bosniaks, and the country furthermore was home to large Serbian and Croatian minorities (Kollander, 2004, p. 11). With their declarations of independence, war between these parties was imminent as the Croat and Serb minorities had been seeking to unite with their ‘mother country’ and the Bosnian Muslims also feared remaining in a Serb dominated Yugoslavia (Kollander, 2004, p. 11; LeBor, 2006, p. 26).

    A long and brutal war followed, especially in Bosnia, where towns were cleansed of their minority populations. It entailed brutal campaigns of killings, intimidation, rape and other brutal acts (Kollander, 2004, p. 12). After peace was established between the former republics of Yugoslavia, violence also erupted in Kosovo. As will be more extensively covered in Chapter 11, the violence caused NATO to take collective action, hoping to force Milosevic to refrain from using further violence. An 11 week bombing campaign ensued, during which NATO demanded that Serbia withdrew its forces and commit to a ceasefire while agreeing to the deployment of an international force to the region, allowed refugees to return, and grand humanitarian agencies unimpeded access (Roberts, 1999, pp. 102-103).

Page 101 of 232