Pub Date : 2020-11-16DOI: 10.1163/9789004364424_012
{"title":"Aspirational Justice: Achieving Equity for Children Using the Convention on the Rights of the Child and the International Criminal Court’s Policy on Children","authors":"","doi":"10.1163/9789004364424_012","DOIUrl":"https://doi.org/10.1163/9789004364424_012","url":null,"abstract":"","PeriodicalId":431200,"journal":{"name":"Biolaw and International Criminal Law","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122992201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-16DOI: 10.1163/9789004364424_002
C. Fournet, Anja Matwijkiw
{"title":"Introduction: The Emergence of International Criminal Biolaw","authors":"C. Fournet, Anja Matwijkiw","doi":"10.1163/9789004364424_002","DOIUrl":"https://doi.org/10.1163/9789004364424_002","url":null,"abstract":"","PeriodicalId":431200,"journal":{"name":"Biolaw and International Criminal Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127449334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-16DOI: 10.1163/9789004364424_015
{"title":"From the Martens Clause to Consent to Human Experimentations, the Legal Journey of the Judges during the Nuremberg Doctors’ Trial","authors":"","doi":"10.1163/9789004364424_015","DOIUrl":"https://doi.org/10.1163/9789004364424_015","url":null,"abstract":"","PeriodicalId":431200,"journal":{"name":"Biolaw and International Criminal Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130076419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-16DOI: 10.1163/9789004364424_017
C. Fournet
One of the aims of criminal justice is to qualify the criminal conduct and determine the guilt or innocence of the accused. International criminal justice is no exception. Yet, due to the scale of the crimes perpetrated, the time that has usually elapsed between the crimes and the trials, the particular trauma suffered by victims and witnesses, collecting reliable evidence to prove what happened and determine who was responsible is particularly difficult. Although heavily relied upon in international criminal justice, witness evidence is not always accurate: memory can be imprecise and witnesses may be subject to fear, threats or corruption. In this context, scientific evidence – including medical evidence – may prove a sound means of establishing the perpetration of the crimes, of corroborating witness evidence and of assigning individual criminal responsibility. Notwithstanding certain constraints, medical evidence has played a significant role in international criminal justice, in particular before the International Criminal Court. This contribution proposes to critically review the use of medical evidence in international criminal proceedings, both by exposing its inherent limits and by presenting its potential as a useful – even if not indispensable – evidentiary tool.
{"title":"Medical Evidence at the International Criminal Court – Dosage and Contraindications","authors":"C. Fournet","doi":"10.1163/9789004364424_017","DOIUrl":"https://doi.org/10.1163/9789004364424_017","url":null,"abstract":"One of the aims of criminal justice is to qualify the criminal conduct and determine the guilt or innocence of the accused. International criminal justice is no exception. Yet, due to the scale of the crimes perpetrated, the time that has usually elapsed between the crimes and the trials, the particular trauma suffered by victims and witnesses, collecting reliable evidence to prove what happened and determine who was responsible is particularly difficult. Although heavily relied upon in international criminal justice, witness evidence is not always accurate: memory can be imprecise and witnesses may be subject to fear, threats or corruption. In this context, scientific evidence – including medical evidence – may prove a sound means of establishing the perpetration of the crimes, of corroborating witness evidence and of assigning individual criminal responsibility. Notwithstanding certain constraints, medical evidence has played a significant role in international criminal justice, in particular before the International Criminal Court. This contribution proposes to critically review the use of medical evidence in international criminal proceedings, both by exposing its inherent limits and by presenting its potential as a useful – even if not indispensable – evidentiary tool.","PeriodicalId":431200,"journal":{"name":"Biolaw and International Criminal Law","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121876055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-16DOI: 10.1163/9789004364424_014
{"title":"Principles of Bioethics and International Criminal Law in the Light of Philosophy of Islamic Jurisprudence","authors":"","doi":"10.1163/9789004364424_014","DOIUrl":"https://doi.org/10.1163/9789004364424_014","url":null,"abstract":"","PeriodicalId":431200,"journal":{"name":"Biolaw and International Criminal Law","volume":"132 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116018857","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-04DOI: 10.1163/9789004364424_016
Dragana Spencer
This contribution examines the role of the mental health sector evidence in international crimes prosecutions. Specifically, recent trials are examined with a view to assess the scope and limits of psychiatric evidence in relation to war crimes defences. Scrutinizing fully the origins and triggers of individual criminal responsibility, serves the interests of justice and enhances trial rights. This study also tries to illustrate the undesirable but extensive use of hearsay evidence in international criminal courts and the ways in which psychiatric evidence is used frequently to validate inconsistent testimonies and hearsay accounts of presumed victims and witnesses but not to enable defendants to form defences. The chapter concludes that defence trial rights would be better protected if relevant legal lacunae and ambiguities regarding the admissibility of psychiatric evidence are clarified and if the amount of such evidence required to satisfy certain defences, such as duress, is quantified with greater specificity.
{"title":"Scope and Limits of Psychiatric Evidence in International Criminal Law","authors":"Dragana Spencer","doi":"10.1163/9789004364424_016","DOIUrl":"https://doi.org/10.1163/9789004364424_016","url":null,"abstract":"This contribution examines the role of the mental health sector evidence in international crimes prosecutions. Specifically, recent trials are examined with a view to assess the scope and limits of psychiatric evidence in relation to war crimes defences. Scrutinizing fully the origins and triggers of individual criminal responsibility, serves the interests of justice and enhances trial rights. This study also tries to illustrate the undesirable but extensive use of hearsay evidence in international criminal courts and the ways in which psychiatric evidence is used frequently to validate inconsistent testimonies and hearsay accounts of presumed victims and witnesses but not to enable defendants to form defences. The chapter concludes that defence trial rights would be better protected if relevant legal lacunae and ambiguities regarding the admissibility of psychiatric evidence are clarified and if the amount of such evidence required to satisfy certain defences, such as duress, is quantified with greater specificity.","PeriodicalId":431200,"journal":{"name":"Biolaw and International Criminal Law","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115879412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-11-23DOI: 10.1163/15718123-01706001
Michael Davis
This article offers an economic (market-based) argument for prohibiting not only transplant commercialism (trafficking and tourism) but also donation of quasi-replaceable body parts (such as first kidney) that require the mutilation of a living human body (turning a part of a person that does not regenerate into a thing to be implanted in another). The argument relies on the concept of pollution (negative effects of a market that fall on participants without their informed consent). The article includes a critique of part of the Declaration of Istanbul.
{"title":"Marketing Body Parts: Morality, Law, and Public Opinion","authors":"Michael Davis","doi":"10.1163/15718123-01706001","DOIUrl":"https://doi.org/10.1163/15718123-01706001","url":null,"abstract":"This article offers an economic (market-based) argument for prohibiting not only transplant commercialism (trafficking and tourism) but also donation of quasi-replaceable body parts (such as first kidney) that require the mutilation of a living human body (turning a part of a person that does not regenerate into a thing to be implanted in another). The argument relies on the concept of pollution (negative effects of a market that fall on participants without their informed consent). The article includes a critique of part of the Declaration of Istanbul.","PeriodicalId":431200,"journal":{"name":"Biolaw and International Criminal Law","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130189647","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-11-23DOI: 10.1163/15718123-01761384
Bronik Matwijkiw, Anja Matwijkiw
This essay shows that the emerging phenomenon called biolaw would benefit from philosophically critical exercises to secure a good fit with international criminal law (ICL). Although legal experts agree to treat ICL as the primary framework for conceptualisation and dynamic realisation (through norm-conferment, – implementation and -enforcement), the implied (bio)law-and-(bio)ethics integration can still be construed in different ways, thereby paving more than one path for biolaw. With the emphasis on transplant-related crimes, the authors try to capture a notion of important biolaw stakes, which provides direction-posts for the inescapable marketplace discussion. The argument draws on a broad stakeholder jurisprudence that does not overplay the distinction between capitalism and altruism – to avoid the abandonment of vulnerable cum poor stakeholders. Critically, theories may look like instances of activist jurisprudence, lines of argument and reasoning that would (better) explain, (re)direct and (ethically) enhance the realm, but which nevertheless fail substantively or procedurally, or both.
{"title":"Biolaw Stakes, Activist Jurisprudence, and (Presumed) Limits for Protected Interests","authors":"Bronik Matwijkiw, Anja Matwijkiw","doi":"10.1163/15718123-01761384","DOIUrl":"https://doi.org/10.1163/15718123-01761384","url":null,"abstract":"This essay shows that the emerging phenomenon called biolaw would benefit from philosophically critical exercises to secure a good fit with international criminal law (ICL). Although legal experts agree to treat ICL as the primary framework for conceptualisation and dynamic realisation (through norm-conferment, – implementation and -enforcement), the implied (bio)law-and-(bio)ethics integration can still be construed in different ways, thereby paving more than one path for biolaw. With the emphasis on transplant-related crimes, the authors try to capture a notion of important biolaw stakes, which provides direction-posts for the inescapable marketplace discussion. The argument draws on a broad stakeholder jurisprudence that does not overplay the distinction between capitalism and altruism – to avoid the abandonment of vulnerable cum poor stakeholders. Critically, theories may look like instances of activist jurisprudence, lines of argument and reasoning that would (better) explain, (re)direct and (ethically) enhance the realm, but which nevertheless fail substantively or procedurally, or both.","PeriodicalId":431200,"journal":{"name":"Biolaw and International Criminal Law","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122408744","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-05-05DOI: 10.1163/15718123-01703004
R. Long
This article provides a brief introduction to some contemporary challenges found in the intersection of bioethics and international criminal law involving genetic privacy, organ trafficking, genetic engineering, and cloning. These challenges push us to re-evaluate the question of whether the international criminal law should hold corporations criminally liable. I argue that a minimalist and Strawsonian conception of corporate responsibility could be useful for deterring the wrongs outlined in first few sections and in answering compelling objections to corporate criminal liability.
{"title":"Bioethics, Complementarity, and Corporate Criminal Liability","authors":"R. Long","doi":"10.1163/15718123-01703004","DOIUrl":"https://doi.org/10.1163/15718123-01703004","url":null,"abstract":"This article provides a brief introduction to some contemporary challenges found in the intersection of bioethics and international criminal law involving genetic privacy, organ trafficking, genetic engineering, and cloning. These challenges push us to re-evaluate the question of whether the international criminal law should hold corporations criminally liable. I argue that a minimalist and Strawsonian conception of corporate responsibility could be useful for deterring the wrongs outlined in first few sections and in answering compelling objections to corporate criminal liability.","PeriodicalId":431200,"journal":{"name":"Biolaw and International Criminal Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127669137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-02-17DOI: 10.1163/15718123-01602002
Tyler K. Fagan, W. Hirstein, K. Sifferd
Child soldiers, who often appear to be both victims and perpetrators, present a vexing moral and legal challenge: how can we protect the rights of children while seeking justice for the victims of war crimes? There has been little stomach, either in domestic or international courts, for prosecuting child soldiers—but neither has this challenge been systematically addressed in international law. Establishing a uniform minimum age of criminal responsibility would be a major step in the right direction; we argue that such a standard ought to be guided by the best evidence from neuropsychology about the development, during childhood and adolescence, of executive functions that give rise to morally and legally responsible agents. In light of that evidence, which suggests that the brain’s executive functions are still maturing into early adulthood, we recommend a graded structure of culpability for child soldiers.
{"title":"Child Soldiers, Executive Functions, and Culpability","authors":"Tyler K. Fagan, W. Hirstein, K. Sifferd","doi":"10.1163/15718123-01602002","DOIUrl":"https://doi.org/10.1163/15718123-01602002","url":null,"abstract":"Child soldiers, who often appear to be both victims and perpetrators, present a vexing moral and legal challenge: how can we protect the rights of children while seeking justice for the victims of war crimes? There has been little stomach, either in domestic or international courts, for prosecuting child soldiers—but neither has this challenge been systematically addressed in international law. Establishing a uniform minimum age of criminal responsibility would be a major step in the right direction; we argue that such a standard ought to be guided by the best evidence from neuropsychology about the development, during childhood and adolescence, of executive functions that give rise to morally and legally responsible agents. In light of that evidence, which suggests that the brain’s executive functions are still maturing into early adulthood, we recommend a graded structure of culpability for child soldiers.","PeriodicalId":431200,"journal":{"name":"Biolaw and International Criminal Law","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116942989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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