One of the lesser known tasks of the Royal Commission into Institutional Responses to Child Sexual Abuse was to investigate responses within the legal system to allegations of such abuse, including the procedural and evidentiary rules surrounding joinder of complaints by multiple complainants against the same defendant. The Commission itself commissioned an empirical study and a report on the effects of joinder of charges on jury reasoning and decision making, which, at over 370 pages in length is quite demanding to digest, and, we would argue, open to criticism on methodological and interpretive grounds. This article reviews and critiques the report’s methodology and findings, and argues for interpretations and conclusions contrary to those contained in the report, to the effect that the study did provide significant evidence supporting the prejudicial effect of joinder and failed to adequately controvert theories of prejudice through character bias, accumulation prejudice and inter-case conflation of evidence.
{"title":"Joint Trials and Prejudice: A Review and Critique of the Report to the Royal Commission Into Institutional Child Sex Abuse","authors":"P. M. Robinson","doi":"10.26180/5DB8096E51375","DOIUrl":"https://doi.org/10.26180/5DB8096E51375","url":null,"abstract":"One of the lesser known tasks of the Royal Commission into Institutional Responses to Child Sexual Abuse was to investigate responses within the legal system to allegations of such abuse, including the procedural and evidentiary rules surrounding joinder of complaints by multiple complainants against the same defendant. The Commission itself commissioned an empirical study and a report on the effects of joinder of charges on jury reasoning and decision making, which, at over 370 pages in length is quite demanding to digest, and, we would argue, open to criticism on methodological and interpretive grounds. This article reviews and critiques the report’s methodology and findings, and argues for interpretations and conclusions contrary to those contained in the report, to the effect that the study did provide significant evidence supporting the prejudicial effect of joinder and failed to adequately controvert theories of prejudice through character bias, accumulation prejudice and inter-case conflation of evidence.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"10 1","pages":"723-759"},"PeriodicalIF":0.0,"publicationDate":"2018-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83116578","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}
Field research conducted in the Northern Territory sought Aboriginal children and young people's views about the 'Intervention' and revealed the impact of these measures on their lives, on Aboriginal peoples and in Aboriginal communities. Research participants articulated detailed knowledge about the Intervention and expressed their nuanced views about two key measures: income management through the BasicsCard, and alcohol regulation through the 'blue and white warning signs' that were placed at the entrance to all prescribed communities. Most participants said the BasicsCard positively impacted aspects of their lives, yet nearly all participants were unaware that the BasicsCard targeted Aboriginal peoples and upon learning this children and young people assessed the measure as 'bad racism'. Participants unanimously agreed that the blue and white warning signs were an ineffective regulatory measure that negatively impacted their lives by 'shaming' communities and making them 'look bad'. This research is significant because it (a) presents the first academic accounts from Aboriginal children and young people detailing their views about the Intervention; (b) demonstrates Aboriginal children and young people's agency and capacity to express informed views about complex matters such as legislation and policy; and (c) shows that the involvement of Aboriginal children and young people in the design of laws and policies likely to affect them is not only the Australian government's responsibility under art 12 of the Convention on the Rights of the Child, and Australia's obligation under art 19 of the Declaration on the Rights of Indigenous Peoples, but is an effective and necessary precondition for the development of relevant, culturally appropriate and durable laws and policies that advance Aboriginal children and young people's human rights.
{"title":"I Think It’s Okay … But It’s Racist, It’s Bad Racism' — Aboriginal Children and Young People’s Views about the Intervention","authors":"Holly Doel-Mackaway","doi":"10.26180/5DB80864F0DB1","DOIUrl":"https://doi.org/10.26180/5DB80864F0DB1","url":null,"abstract":"Field research conducted in the Northern Territory sought Aboriginal children and young people's views about the 'Intervention' and revealed the impact of these measures on their lives, on Aboriginal peoples and in Aboriginal communities. Research participants articulated detailed knowledge about the Intervention and expressed their nuanced views about two key measures: income management through the BasicsCard, and alcohol regulation through the 'blue and white warning signs' that were placed at the entrance to all prescribed communities. Most participants said the BasicsCard positively impacted aspects of their lives, yet nearly all participants were unaware that the BasicsCard targeted Aboriginal peoples and upon learning this children and young people assessed the measure as 'bad racism'. Participants unanimously agreed that the blue and white warning signs were an ineffective regulatory measure that negatively impacted their lives by 'shaming' communities and making them 'look bad'. This research is significant because it (a) presents the first academic accounts from Aboriginal children and young people detailing their views about the Intervention; (b) demonstrates Aboriginal children and young people's agency and capacity to express informed views about complex matters such as legislation and policy; and (c) shows that the involvement of Aboriginal children and young people in the design of laws and policies likely to affect them is not only the Australian government's responsibility under art 12 of the Convention on the Rights of the Child, and Australia's obligation under art 19 of the Declaration on the Rights of Indigenous Peoples, but is an effective and necessary precondition for the development of relevant, culturally appropriate and durable laws and policies that advance Aboriginal children and young people's human rights.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"16 1 1","pages":"76-112"},"PeriodicalIF":0.0,"publicationDate":"2017-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83745562","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}
This article argues that the religious tests clause of s 116 of the Australian Constitution should be conceived of as an anti-discrimination provision embracing a distinction between direct and indirect religious tests equivalent to the distinction between direct and indirect discrimination in other bodies of law. In other words, a religious test exists where there is discrimination, either directly or indirectly, on the ground of religion. The article develops this interpretation using a functionalist comparative analysis with other bodies of law, including European human rights law, American equal protection jurisprudence and Australian anti-discrimination law.
{"title":"The Australian Constitution's Religious Tests Clause as an Anti-Discrimination Provision","authors":"Luke Beck","doi":"10.26180/5DB807D8695D1","DOIUrl":"https://doi.org/10.26180/5DB807D8695D1","url":null,"abstract":"This article argues that the religious tests clause of s 116 of the Australian Constitution should be conceived of as an anti-discrimination provision embracing a distinction between direct and indirect religious tests equivalent to the distinction between direct and indirect discrimination in other bodies of law. In other words, a religious test exists where there is discrimination, either directly or indirectly, on the ground of religion. The article develops this interpretation using a functionalist comparative analysis with other bodies of law, including European human rights law, American equal protection jurisprudence and Australian anti-discrimination law.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"13 1","pages":"545-578"},"PeriodicalIF":0.0,"publicationDate":"2017-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85012254","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}
This article explores misleading food credence claims. The article commences by drawing attention to a concomitant increase in differentiated foods (eg locally sourced, free-range or ‘healthy’) and information asymmetry (ie where food businesses possess more accurate and useful information than consumers). The article then examines attempts by the Australian Competition and Consumer Commission (‘ACCC’) to deter misleading food credence claims and identifies a taxonomy of misleading food credence claims including those made about a food’s: (i) provenance; (ii) manufacture or production; and (iii) qualities or characteristics. The article then situates the ACCC’s efforts within the dialectic of Corporate Social Irresponsibility (‘CSI’) and Corporate Social Responsibility (‘CSR’), and in so doing, within regulatory theory that espouses a mix of deterrence and cooperation. We argue that while the ACCC plays a crucial role in deterring misleading food credence claims its focus is on CSI: meaning that more needs to be done to encourage CSR in relation to accurate and unbiased food credence claims. By treating food credence claims as a matter of CSR, food businesses can support informed decision-making and perhaps even contribute to better health outcomes. Indeed, conceptualising food credence claims as CSR is an important and necessary step in ensuring that honest and accurate food credence claims become the norm, not just the law.
{"title":"Not Free to Roam: Misleading Food Credence Claims, the ACCC and the Need for Corporate Social Responsibility","authors":"Sharne Hobill, Jay Sanderson","doi":"10.26180/5DB80871F4039","DOIUrl":"https://doi.org/10.26180/5DB80871F4039","url":null,"abstract":"This article explores misleading food credence claims. The article commences by drawing attention to a concomitant increase in differentiated foods (eg locally sourced, free-range or ‘healthy’) and information asymmetry (ie where food businesses possess more accurate and useful information than consumers). The article then examines attempts by the Australian Competition and Consumer Commission (‘ACCC’) to deter misleading food credence claims and identifies a taxonomy of misleading food credence claims including those made about a food’s: (i) provenance; (ii) manufacture or production; and (iii) qualities or characteristics. The article then situates the ACCC’s efforts within the dialectic of Corporate Social Irresponsibility (‘CSI’) and Corporate Social Responsibility (‘CSR’), and in so doing, within regulatory theory that espouses a mix of deterrence and cooperation. We argue that while the ACCC plays a crucial role in deterring misleading food credence claims its focus is on CSI: meaning that more needs to be done to encourage CSR in relation to accurate and unbiased food credence claims. By treating food credence claims as a matter of CSR, food businesses can support informed decision-making and perhaps even contribute to better health outcomes. Indeed, conceptualising food credence claims as CSR is an important and necessary step in ensuring that honest and accurate food credence claims become the norm, not just the law.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"43 1","pages":"113-147"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75319444","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}
This article reports on the second stage of a national study of how the effects of alcohol and other drugs are treated by criminal laws and the criminal justice system. Based on a mixed methods analysis of more than 300 appellate court decisions from all Australian jurisdictions handed down in the period 2010–2014, we identify the multiple points at which legal significance is attached to evidence that the accused, the victim or a witness was ‘intoxicated’ at the time of the alleged commission of a criminal offence. Focusing on the rules and principles endorsed by appellate courts in relation to four key ‘sites’ of criminal justice decision-making — the admissibility of police interviews, the credibility and reliability of witness testimony, adjudication on the criminal responsibility of the accused, and determination of sentence for convicted offenders — we show that the impact of intoxication on the enforcement of the criminal law is complex. There is no single characterisation that can account for the multiple points at which intoxication may need to be assessed, and the divergent ways in which it can impact on adjudication. Depending on a range of site-specific and case-specific considerations, intoxication evidence may expand/contract the parameters of criminal responsibility, and it may yield higher or lower criminal penalties.
{"title":"EVIDENCE OF INTOXICATION IN AUSTRALIAN CRIMINAL COURTS : A COMPLEX VARIABLE WITH MULTIPLE EFFECTS","authors":"Luke McNamara, Julia Quilter, Kate Seear, R. Room","doi":"10.26180/5DB808801DBF1","DOIUrl":"https://doi.org/10.26180/5DB808801DBF1","url":null,"abstract":"This article reports on the second stage of a national study of how the effects of alcohol and other drugs are treated by criminal laws and the criminal justice system. Based on a mixed methods analysis of more than 300 appellate court decisions from all Australian jurisdictions handed down in the period 2010–2014, we identify the multiple points at which legal significance is attached to evidence that the accused, the victim or a witness was ‘intoxicated’ at the time of the alleged commission of a criminal offence. Focusing on the rules and principles endorsed by appellate courts in relation to four key ‘sites’ of criminal justice decision-making — the admissibility of police interviews, the credibility and reliability of witness testimony, adjudication on the criminal responsibility of the accused, and determination of sentence for convicted offenders — we show that the impact of intoxication on the enforcement of the criminal law is complex. There is no single characterisation that can account for the multiple points at which intoxication may need to be assessed, and the divergent ways in which it can impact on adjudication. Depending on a range of site-specific and case-specific considerations, intoxication evidence may expand/contract the parameters of criminal responsibility, and it may yield higher or lower criminal penalties.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"9 1","pages":"148-194"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75942888","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}
The question of what constitutes a 'legitimate end' for burdening the implied freedom of political communication has remained unclear and divisive for nearly two decades, in spite of the unanimity of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Until recently, the test for 'legitimate ends' appeared to require evaluation by the High Court of the 'public interest' that the impugned legislation was directed at. However, the ambiguous operation of 'legitimacy testing' has now been simultaneously clarified and problematised by the High Court in McCloy v New South Wales (2015) 257 CLR 178. In that case the High Court switched the focus of legitimacy testing from an impugned purpose's eff ect on the 'public interest' to its eff ect on 'representative government'. This article examines how the bare majority's judgment in McCloy has both removed some confusion, but also laid the groundwork for continued uncertainty in other respects, and places the landmark decision in the wider context of legitimacy testing. In particular, questions remain concerning the continued role of public interest considerations and what constitutes 'representative and responsible government prescribed by the Constitution'.
{"title":"The public interest, representative government and the 'legitimate ends' of restricting political speech","authors":"Samuel J Murray","doi":"10.26180/5DB8084802EF2","DOIUrl":"https://doi.org/10.26180/5DB8084802EF2","url":null,"abstract":"The question of what constitutes a 'legitimate end' for burdening the implied freedom of political communication has remained unclear and divisive for nearly two decades, in spite of the unanimity of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Until recently, the test for 'legitimate ends' appeared to require evaluation by the High Court of the 'public interest' that the impugned legislation was directed at. However, the ambiguous operation of 'legitimacy testing' has now been simultaneously clarified and problematised by the High Court in McCloy v New South Wales (2015) 257 CLR 178. In that case the High Court switched the focus of legitimacy testing from an impugned purpose's eff ect on the 'public interest' to its eff ect on 'representative government'. This article examines how the bare majority's judgment in McCloy has both removed some confusion, but also laid the groundwork for continued uncertainty in other respects, and places the landmark decision in the wider context of legitimacy testing. In particular, questions remain concerning the continued role of public interest considerations and what constitutes 'representative and responsible government prescribed by the Constitution'.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"45 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85165266","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}
Australia is once again considering how to best protect the public interest in copyright. One of the most contested current issues in Australian copyright law is the question of limits and exceptions to the rights of copyright owners. The recent Australian Law Reform Commission (‘ALRC’) review into copyright exceptions recommended broadening and simplifying the exceptions to better protect the interests of users to access and reuse copyright material for socially beneficial purposes. Despite the exhaustive consultation and report produced by the ALRC, and the support lent to it by the recent Productivity Commission Inquiry Report, there is little consensus about its recommendations. The proposal to introduce fair use is strongly contested by rightsholder groups, who are reluctant to cede further control over the use of information and cultural goods, particularly given the challenges they have faced transitioning to a digital environment.
{"title":"Fair use and fairness in copyright: A distributive justice perspective on users' rights","authors":"Ezieddin Elmahjub, Nicolas Suzor","doi":"10.26180/5DB808AB07C90","DOIUrl":"https://doi.org/10.26180/5DB808AB07C90","url":null,"abstract":"Australia is once again considering how to best protect the public interest in copyright. One of the most contested current issues in Australian copyright law is the question of limits and exceptions to the rights of copyright owners. The recent Australian Law Reform Commission (‘ALRC’) review into copyright exceptions recommended broadening and simplifying the exceptions to better protect the interests of users to access and reuse copyright material for socially beneficial purposes. Despite the exhaustive consultation and report produced by the ALRC, and the support lent to it by the recent Productivity Commission Inquiry Report, there is little consensus about its recommendations. The proposal to introduce fair use is strongly contested by rightsholder groups, who are reluctant to cede further control over the use of information and cultural goods, particularly given the challenges they have faced transitioning to a digital environment.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"3 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90520840","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}
In 2009, Sudanese President Omar Hassan Ahmad Al Bashir (‘President Bashir’) was indicted by the International Criminal Court (‘ICC’) on charges of war crimes and crimes against humanity over the conflict in the western region of Darfur, Sudan. The following year the ICC charged President Bashir with genocide over events in Darfur, where allegedly more than 300 000 people have died and more than two million people have been displaced since 2003. Before the ICC can prosecute President Bashir, it has to obtain custody over him. As a judicial institution without power to arrest those it indicts, the Court relies on national authorities. States to which President Bashir has travelled since the warrants for his arrest have been issued have been reluctant to arrest and surrender President Bashir to the ICC justifying their refusal by the head of state immunity argument. By focusing on the specific response of the South African government to the ICC’s arrest warrant against President Bashir in June 2015, this article considers the question of whether states must cooperate with the ICC in instances of an arrest warrant against a sitting head of state of a non-state party and observes the broader implications of state responses similar to the South African case.
{"title":"To arrest or not to arrest the incumbent head of state: the Bashir case and the interplay between law and politics","authors":"Jadranka Petrović, Dale Stephens, Vasko Nastevski","doi":"10.2139/SSRN.3060963","DOIUrl":"https://doi.org/10.2139/SSRN.3060963","url":null,"abstract":"In 2009, Sudanese President Omar Hassan Ahmad Al Bashir (‘President Bashir’) was indicted by the International Criminal Court (‘ICC’) on charges of war crimes and crimes against humanity over the conflict in the western region of Darfur, Sudan. The following year the ICC charged President Bashir with genocide over events in Darfur, where allegedly more than 300 000 people have died and more than two million people have been displaced since 2003. Before the ICC can prosecute President Bashir, it has to obtain custody over him. As a judicial institution without power to arrest those it indicts, the Court relies on national authorities. States to which President Bashir has travelled since the warrants for his arrest have been issued have been reluctant to arrest and surrender President Bashir to the ICC justifying their refusal by the head of state immunity argument. By focusing on the specific response of the South African government to the ICC’s arrest warrant against President Bashir in June 2015, this article considers the question of whether states must cooperate with the ICC in instances of an arrest warrant against a sitting head of state of a non-state party and observes the broader implications of state responses similar to the South African case.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"17 1","pages":"740-782"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84787595","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}
Contemporary personal injury law lives and breathes in the bureaucratic processing of compensation claims. Little empirical legal scholarship has explored claimant experiences in Australian compensation systems, despite their central role in access to justice for the injured. This article explores claimant experiences in compensation processes using data from a large longitudinal cohort study of patients admitted to hospital with injuries in three states (Victoria, New South Wales and South Australia). At 6 years after injury, participants (n=332) who had pursued claims in transport accident or workers’ compensation claims were interviewed about their experiences. The study highlights the diversity of claimant experiences and key themes in claimant encounters with compensation systems, including the relationship between rights information, advocacy and representation, and the inherent justice-based tensions in claims processing. The findings demonstrate that analysis of claimant experiences of injury law in its primary, bureaucratic form can provide important evidence for the evaluation and development of compensation systems.
{"title":"Claiming justice in injury law","authors":"Genevieve Grant","doi":"10.2139/SSRN.2635258","DOIUrl":"https://doi.org/10.2139/SSRN.2635258","url":null,"abstract":"Contemporary personal injury law lives and breathes in the bureaucratic processing of compensation claims. Little empirical legal scholarship has explored claimant experiences in Australian compensation systems, despite their central role in access to justice for the injured. This article explores claimant experiences in compensation processes using data from a large longitudinal cohort study of patients admitted to hospital with injuries in three states (Victoria, New South Wales and South Australia). At 6 years after injury, participants (n=332) who had pursued claims in transport accident or workers’ compensation claims were interviewed about their experiences. The study highlights the diversity of claimant experiences and key themes in claimant encounters with compensation systems, including the relationship between rights information, advocacy and representation, and the inherent justice-based tensions in claims processing. The findings demonstrate that analysis of claimant experiences of injury law in its primary, bureaucratic form can provide important evidence for the evaluation and development of compensation systems.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"60 1","pages":"618-654"},"PeriodicalIF":0.0,"publicationDate":"2015-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79884330","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}
Pinochet represents a victory for international human rights law. Faced with the traditional doctrine of head of state immunity, jus cogens crimes have triumphed. The House of Lords has recognised that certain crimes cannot be excused, and thus marked the beginning of the end of the age of impunity. The implications of the decision extend far beyond Pinochet's trial. They include the possibility of other perpetrators of serious international crimes being brought to justice. However, the decision also heralds a new uncertainty. A broad head of state immunity has been replaced with the potential for a somewhat indeterminate and uncodifed set of jus cogens crimes being applied selectively and interpreted differently by the national courts of powerful countries. While it is easy to overstate the potential disruptive effect the decision could have on international relations, it is certainly true that it underscores the need for the new ICC, with its defined crimes, independence and jurisdiction based on the consent of states. While states may have originally viewed the ICC as an unwelcome intrusion into state sovereignty, the Pinochet decision could well change that view. States may consider it better to concede some sovereignty to the ICC than to lose even more through the enforcement of international human rights by the national courts of other states. Governments have repeatedly said that crimes such as hostage taking and torture are unacceptable and that those responsible should be called to justice. The House of Lords has given substance to that rhetoric, but national courts are a poor second choice in the prosecution of international crimes. Now it is up to governments to support the ICC and move these matters to a truly international forum.
皮诺切特代表了国际人权法的胜利。面对传统的国家元首豁免学说，强制法犯罪取得了胜利。上议院已经认识到某些罪行是不可原谅的，这标志着有罪不罚时代的结束。这一决定的影响远远超出了对皮诺切特的审判。其中包括其他犯有严重国际罪行的人被绳之以法的可能性。然而，这一决定也预示着新的不确定性。广泛的国家元首豁免已被这样一种可能性所取代，即强国的国家法院有选择地适用一套不太确定和未编纂的强制法罪行，并对其作出不同的解释。尽管很容易夸大这一决定可能对国际关系产生的潜在破坏性影响，但它确实强调了建立新的国际刑事法院的必要性，其罪行的定义、独立性和管辖权都是基于各国的同意。虽然各国最初可能将国际刑事法院视为对国家主权的不受欢迎的侵犯，但皮诺切特的决定很可能改变这种看法。各国可能会认为，与其因其他国家的国家法院执行国际人权而失去更多的主权，不如将一些主权让给国际刑事法院。各国政府一再表示，劫持人质和酷刑等罪行是不可接受的，应将肇事者绳之以法。英国上议院(House of Lords)为这一言论提供了实质内容，但在起诉国际犯罪时，国内法院只是一个糟糕的第二选择。现在是各国政府支持国际刑事法院并将这些问题转移到一个真正的国际论坛的时候了。
{"title":"Leave Your Hat on? Head of State Immunity and Pinochet","authors":"A. Mitchell","doi":"10.2139/SSRN.2614899","DOIUrl":"https://doi.org/10.2139/SSRN.2614899","url":null,"abstract":"Pinochet represents a victory for international human rights law. Faced with the traditional doctrine of head of state immunity, jus cogens crimes have triumphed. The House of Lords has recognised that certain crimes cannot be excused, and thus marked the beginning of the end of the age of impunity. The implications of the decision extend far beyond Pinochet's trial. They include the possibility of other perpetrators of serious international crimes being brought to justice. However, the decision also heralds a new uncertainty. A broad head of state immunity has been replaced with the potential for a somewhat indeterminate and uncodifed set of jus cogens crimes being applied selectively and interpreted differently by the national courts of powerful countries. While it is easy to overstate the potential disruptive effect the decision could have on international relations, it is certainly true that it underscores the need for the new ICC, with its defined crimes, independence and jurisdiction based on the consent of states. While states may have originally viewed the ICC as an unwelcome intrusion into state sovereignty, the Pinochet decision could well change that view. States may consider it better to concede some sovereignty to the ICC than to lose even more through the enforcement of international human rights by the national courts of other states. Governments have repeatedly said that crimes such as hostage taking and torture are unacceptable and that those responsible should be called to justice. The House of Lords has given substance to that rhetoric, but national courts are a poor second choice in the prosecution of international crimes. Now it is up to governments to support the ICC and move these matters to a truly international forum.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"3 1","pages":"225"},"PeriodicalIF":0.0,"publicationDate":"2015-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90086081","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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