Folkeret: strafferet

The starting point of this book is the generally shared observation that in violence-torn areas of limited statehood, the civilian population is often subject to deliberate attacks. This violence often escalates to core crimes such as war crimes, crimes against humanity and even genocide. The International Criminal Court (ICC) could potentially deter such crimes. In order to do so, it largely depends on the cooperation of the states on the territory of which alleged core criminals operate. Since such states are often unwilling or unable to cooperate, the book explores whether the ICC could instead seek assistance from international forces such as UN peace support operations, UN-mandated missions, and belligerent occupants.The book covers, on the one hand, the law and practice of the UN Security Council with regard to mandating international forces to arrest and transfer alleged offenders to the ICC or to other international courts. On the other, it addresses to what extent international forces may or must hand alleged offenders over to the ICC, regardless of such mandates. More precisely, the book examines whether the duties to prosecute genocide, torture, enforced disappearance, grave breaches and other war crimes apply extraterritorially and ¿ if so ¿ whether international forces can discharge these duties by transferring suspects to the ICC.At the same time, the book addresses the limitations to such extraterritorial action: firstly, to what extent the prohibition of the use of force and the principle of territorial sovereignty restrict extraterritorial deprivations of liberty and transfer to the ICC. Secondly, it explores the restrictions and permissions that the law of occupation and other norms of international humanitarian law impose on such apprehensions and transfers. Finally, it discusses how international forces can uphold the right to liberty and security as well as the principle of non-refoulementwhen they extraterritorially apprehend ICC suspects. This also reflects the book¿s relevance with regard to the more general debate on the extraterritorial application of human rights.

This book focuses on OLAF, the European Union¿s anti-fraud office, and examines the role of and challenges concerning fundamental rights in OLAF¿s composite enforcement procedure. The mission of OLAF (Office Européen de Lutte Antifraude) is to fight fraud, corruption and any other illegal activities that affect the financial interests of the European Union. To this end, OLAF carries out administrative investigations, in which it gathers evidence itself, and coordination cases, in which it coordinates the Member States¿ investigations. OLAF¿s investigation and coordination efforts are conceived of as mere derivatives of other more traditional forms of law enforcement cooperation in which authorities enter into obligations to cooperate with one another, but in which each acts to fulfill these obligations within its own separately identifiable legal order and on the basis of its own law. This system, in its most conventional form, is founded on the notion of territorial sovereignty.If we extend the logic of this approach from enforcement (the ¿sword¿) to fundamental rights (the ¿shield¿), issues in relation to the latter ¿ and the accompanying responsibility to prevent and/or remedy them ¿ can arise only in individual (sovereign) legal orders. The way in which we view OLAF, as an evolved cognate of traditional forms of law enforcement cooperation, therefore directly dictates which fundamental rights issues enter into the equation, and in which manner.This book proposes an innovative way of looking at OLAF, which we refer to as ¿composite enforcement procedures.¿ In this type of procedure, responsibilities for the entirety of enforcement are attributed to inextricably interlinked European Union and Member State legal orders. If we observe OLAF through this new lens, fundamental rights issues that would otherwise go unnoticed come to the forefront. These are issues that arise not in individual legal orders, but rather between or among theEuropean Union and the Member States. This book addresses these fundamental rights challenges and makes concrete recommendations on how they can be addressed and resolved.

This book represents an interdisciplinary academic endeavour intended to provide readers with a comprehensive, balanced, and nuanced examination of critical issues at the intersection of cyberspace, cyberterrorism, and national and international security. It draws insights from a range of diverse fields, including Computer Science, Social Science, Political Science, International Relations, Criminology, and Law. Furthermore, the book investigates the field of Artificial Intelligence (AI) and related technologies, exploring their dual role in this dynamic landscape of contemporary cyberthreats, with both constructive and malicious implications.The book comprises four distinct themes, with each theme represented by a dedicated Part. Within this organisational framework, each overarching theme is systematically explored through a series of chapters, providing readers with a clear and thematic roadmap for their journey through the content.Part I, Understanding Terrorism and Counter-Terrorism Strategies, of the book explores complexities surrounding contemporary global security challenges. It serves as the foundational segment of the book, consisting of three chapters that critically analyse various dimensions of terrorism and the strategies implemented to combat it.Part II, Cyberterrorism Landscape, of the book offers an in-depth assessment of the current cyberterrorism landscape. This section comprises two critical chapters, each contributing to a comprehensive understanding of the contemporary threats posed by cyberterrorism and their implications for national security.Part III, Countering Cyberterrorism with Technology, of the book forms the core of the book's exploration into leveraging technology to mitigate the threats of cyberterrorism. This section includes four critical chapters, collectively providing an in-depth understanding of the intersection between technology and counterterrorism strategies.Part IV, Artificial Intelligence and National and International Security, of the book delves into the complex relationship between AI technology and the broader security landscape. Comprising three pivotal chapters, this section provides a detailed understanding of AI's transformative role in shaping the future of national and international security.

This book provides an expanded conceptualization of legalization that focuses on implementation of obligation, precision, and delegation at the international and domestic levels of politics. By adding domestic politics and the actors to the international level of analysis, the authors add the insights of Kenneth Waltz, Graham Allison, and Louis Henkin to understand why most international law is developed and observed most of the time. However, the authors argue that law-breaking and law-distorting occurs as a part of negative legalization. Consequently, the book offers a framework for understanding how international law both produces and undermines order and justice. The authors also draw from realist, liberal, constructivist, cosmopolitan and critical theories to analyse how legalization can both build and/or undermine consensus, which results in either positive or negative legalization of international law. The authors argue that legalization is a process over time and not just a snapshot in time.

The book deals with illicit trafficking in the Mediterranean, seen as a borderline issue between mobility and security under a strongly interdisciplinary approach. The opening part is dedicated to issues that transversally concern illegal trafficking: criminological, criminal law, criminal procedure, but also international law issues. This part presents a kind of general theory of illegal trafficking, showing its recurring aspects and identifying the legal and criminal-political issues that would be best addressed by a unified approach to the matter. The other parts are devoted to presenting, instead, a special part overview of illegal trafficking. The second and the third section are devoted, in particular, to illegal traffics having human beings as their objects. More specifically, the second part examines smuggling of migrants, which has a central - criminological and criminal-political - relevance among the illegal traffics taking place in the Mediterranean. The third part dealswith the neighbouring theme of human trafficking, especially in its connection with the problem of labour exploitation. Finally, the fourth part focuses on some trafficking in goods, offering a selected and representative overview of some of the most significant forms that such trafficking can take: tobacco trafficking, drug trafficking and trafficking in cultural goods.

Framework Decision 2009/948/JHA on the prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings established an ad hoc procedure for settling conflicts of criminal jurisdiction based on the mutual exchange of information and the establishment of direct consultations between the competent authorities with a view to reaching consensus on an effective solution. However, neither common legally binding criteria for deciding the best jurisdiction nor specific rules for the transfer of proceedings (which can occur after parallel proceedings have been identified) were established in this instrument, or in any other instrument adopted by the EU to date.This book analyses the current EU legal framework on conflicts of jurisdiction and transfer of criminal proceedings, paying special attention to its numerous shortcomings and loopholes from a fundamental rights and due process of law perspective. The book begins with an assessment of the various principles and grounds used by Member States for claiming criminal jurisdiction. Secondly, de lege lata EU procedure on the settlement of conflicts of criminal jurisdiction, as well as its implementation in Spain and Italy, are thoroughly examined. After discussing the main principles and fundamental rights at stake, the author proposes two alternative and original de lege ferenda models for the prevention and settlement of conflicts of criminal jurisdiction and transfer of criminal proceedings, exploring the different possibilities offered by the EU's primary law.

Indem die Rechtswissenschaft das Recht vorandenkt, kann sie am zivilisatorischen Fortschritt mit und durch Recht mitwirken. Dieser Sammelband reflektiert über diese These, die für Prof. Dr. h.c. Heike Jung eine Art Bekenntnischarakter hat, und wirft hierzu Schlaglichter auf herausgehobene Bereiche, in denen sich eine gewichtige Rolle der Rechtswissenschaft bei der Weiterentwicklung des Rechts aufdrängt: Die "tour d'horizon" reicht dabei vom Völkerstrafrecht über die die Rechtswissenschaft als Akteur der Rechtsentwicklung im Bereich der Digitalisierung bis hin zur Rolle der Strafrechtswissenschaft bei der Begrenzung und Bewältigung des menschengemachten Klimawandels.Mit Beiträgen vonProf. Dr. Joxerramon Bengoetxea | Prof. Dr. Michael Bohlander | Prof. Dr. Dominik Brodowski, LL.M. (UPenn) | Prof. Dr. Thomas Elholm | Prof. Dr. Maximilian Herberger | Prof. Dr. Dr. h.c. Heike Jung | Prof. Dr. Karl-Ludwig Kunz | Dr. Anke Morsch | Prof. Dr. Kathrin Nitschmann | Prof. Dr. Carl-Friedrich Stuckenberg,LL.M. (Harvard) | Prof. Dr. Julien Walther

The aim of this book is to delve into the impact of the Information and Communications Technologies in the criminal prevention and investigation, by addressing the state of the art of different measures and its implementation in different legal systems vis à vis the protection of human rights. Yet this research not only pursues a diagnostic goal but furthermore aims at providing a reconstruction of this problematic area in light of modern, human rights-oriented notion of criminal justice. This broadens the scope of this investigation, which encompasses both unprecedented safeguards to traditional, or anyway widely recognized individual rights and the emergence of new rights, such as the right to informational self-determination, and the right to information technology privacy.The book addresses the problems and potentials in the areas of criminal prevention and criminal investigation, taking into account that due to electronic surveillance and the progress in the use of big data for identifying risks, the borders between preventive and investigative e-measures is not clear-cut.

The expression "e;transitional justice"e; emerged at the end of the Cold War, during the transition from dictatorships to democracies, and serves as a central concept in dealing with systemic injustice. This textbook examines the basic principles of transitional justice and explores its core mechanisms, including prosecutions, amnesties, truth commissions, reparations, and vetting the public service. It elaborates the substance and legal framework of these mechanisms and discusses current challenges.The book provides extensive material illustrating a wide variety of transitional justice situations.  "e;This book summarizes the subjects of transitional justice and Vergangenheitsbewaltigung systematically and clearly"e; (Joachim Gauck, German Federal President, 2012-2017).

This volume elucidates and explores the interrelationships and direct causal connection between serious international crimes, serious breaches to fundamental human rights and gross affronts to human dignity, that lead to mass forced migration.

This collection identifies and discusses problems and opportunities for the theory and practice of international criminal justice.The International Criminal Court and project of prosecuting international atrocity crimes have faced multiple challenges and critiques. In recent times, these have included changes in technology, the conduct of armed conflict, the environment, and geopolitics. The mostly emerging contributors to this collection draw on diverse socio-legal research frameworks to discuss proposals for the futures of international criminal justice. These include addressing accountability gaps and under-examined or emerging areas of criminality at, but also beyond, the International Criminal Court, especially related to technology and the environment. The book discusses the tensions between universalism and localisation, as well as the regionalisation of international criminal justice and how these approaches might adapt to dynamic organisational, political and social structures, at the ICC and beyond.The book will be of interest to students, researchers and academics. It will also be a useful resource for civil society representatives including justice advocates, diplomats and other government officials and policy-makers.

In the era of globalisation, cross-border crimes are becoming increasingly common. The nature of these crimes is complex, and cross-border evidence exchange is, therefore, crucial to the successful prosecution of these offences. The exchange of evidence between countries can provide invaluable assistance in solving crimes that have an international dimension. The European Investigation Order (EIO) allows judicial authorities to request evidence more quickly and easily than via traditional instruments. The EIO has become the primary legal tool for gathering trans-border evidence, replacing the traditional Mutual Legal Assistance (MLA) conventions previously used. However, the EIO is not the only pertinent legal instrument for cross-border evidence gathering within the EU. Accordingly, professionals need a clear understanding of this subject.Exchanging evidence among judicial authorities in the EU Member States presupposes twoessential components. First, there must be a secure communication channel. This is provided by e-CODEX, which offers a European digital infrastructure for secure cross-border communication in the field of justice. Recently (May 30th, 2022), the e-CODEX system became the digital backbone of EU judicial cooperation in civil and criminal matters on the basis of Regulation 2022/850. To achieve effective evidence exchange via EIO/MLA legal instruments, there must also be a communication tool. This is provided by the e-Evidence Digital Exchange System, which is capable of managing any EIO/MLA procedures/instruments, from the e-Forms (EIO Annexes) to the whole business logic, on the basis of the e-CODEX system. Finally, it is essential to use a uniform standard for the representation of evidence data and metadata, so as to streamline the process and make investigations more effective, in particular when it comes to complicated criminal cases where it is key to find either correlations amongdifferent cases or to extract multiple types of data from the same inspection. The importance of cross-border evidence exchange in criminal matters cannot be overstated. This book addresses all the above-mentioned aspects, offering an up-to-date overview of scenarios in cross-border judicial cooperation from both juridical and technical standpoints.

This book critically analyzes the criminalization of incitement to terrorism under the fundamental principles of legality, necessity, and proportionality with the aim of striking a fair balance between security and liberty on this complicated issue. The criminalization of incitement to terrorism has gained momentum, but no exact or generally accepted definition of this offense exists at the international level. What¿s more, given that the criminalization of incitement to terrorism results in restrictions on the exercise of citizens¿ freedom of expression, there should be certain limitations on those criminal measures to avoid unnecessary or disproportionate infringement of this fundamental human right. Nevertheless, there has not been a precise standard by which to determine how to draw the line between anti-terrorism and the protection of freedom of expression. Hence, it could be concluded that the criminalization of incitement to terrorism concerns how to balance security and liberty, and the safeguarding principles of legality, necessity, and proportionality should be fully observed in considering this issue.This book studies definitions of ¿incitement¿, ¿terrorism¿, and ¿incitement to terrorism¿ under the relevant international and national legislation, and points out the existing absence, ambiguousness, or substantive divergence in defining actus reus and mens rea regarding incitement to terrorism. It carefully considers the current need for and essential limitations on criminal measures against incitement to terrorism in accordance with the principles of necessity and proportionality, and particularly focuses on how to balance the protection of freedom of expression with the criminalization of incitement to terrorism. In considering how to draw a line between the two, the book formulates precise requirements for objective and subjective elements of this offense in accordance with the principle of legality.Given its scope, it will be of interest not only to academics, human rights lawyers and practitioners, but also to policymakers, as it offers an extensive evaluation of the effects and counter-effects of existing criminal measures.

"Using an historical and theoretical approach, Richard Clements explores why global justice and management have become so intimately connected within the International Criminal Court. Mapping the ICC's management ideas and practices onto an accessible model, Clements highlights the impact of management on the global justice project"--

This book thoroughly discusses the concept of sovereign immunity in international law and how the problems normally associated with the said subject can be resolved in order to promote justice. In part one, the author shows through a careful analysis of the law that restrictive immunity does not have vox populi in developing countries and that it lacks usus. He also argues that forum law, i.e., the lex fori is a creature of sovereignty and between equals before the law, only what is understood and acknowledged as law among states must be applied in as much as the international legal system is horizontal.Furthermore, the state never acts as a juridical or natural person and, therefore, in logical terms, its functions cannot be divided into potere politico and persona civile as a prelude to determine jurisdiction. The said Italian doctrine, therefore, is ex-facie erroneous, and that a simple dichotomy between absolute immunity and restrictive immunity wholly predicated on the nature test alone would not be helpful in promoting justice. Hence the contextual approach, arbitration and comparative dominant theory are suggested as essential tools to supplement the UN Treaty on state immunity when it comes into force because some states are likely to stay out of the said treaty regime. In part two, of the book, the author provides a comprehensive analysis of international criminal justice i.e., the prosecution of heads of state before international tribunals and the means or tools available to defend these leaders. To that end, it is apposite that a distinction between immunity ratione personae and immunity ratione materiae be made clear, whereby emphasis must be placed on their differences and legal consequences in regard to the verticality of international tribunals and foreign criminal jurisdiction of statese.g., the ICC and SCLC. The author further argues forcefully that the law has not changed and that despite the reforming zeal of some important states to change the law, in reality however, the law remains almost intact wholly structured on the presumption of immunity subject to certain limited acknowledged exceptions duly supported by opinio juris, thus eclipsing the suggestion by some scholars, senior courts and international tribunals that the law be instead based on an acknowledged exception to a presumed jurisdiction. This is because international law is a decentralized public order system without a compulsory jurisdiction.

The purpose of this book is to critically examine the activities of the International Criminal Court (ICC) on the eve of its 20th year of existence, with a focus on its relationship to the Rohingya crisis. This book is unique in that it identifies the potential and contemporary challenges of the ICC while focusing on the relationship between the Rohingya issue and the ICC. The relationship between the Rohingya crisis and the ICC is an issue that is fraught with contemporary challenges and worth dealing with. The relationship between the ICC and non-State Parties and the relationship between the ICC and high government officials are the examples of these challenges. Its novelty is to address the relationship between the Rohingya crisis and the ICC by staying current of information. The human rights situation of the Rohingya is of high international concern. With a case pending at the International Court of Justice (ICJ), not only individual criminal responsibility but also State responsibility may be sought for the most serious human rights violations. The Rohingya crisis itself is of great international concern, and it is expected that the issues will be discussed from the perspective of international human rights law, international humanitarian law, and international criminal law. Therefore, the structure of this book is as follows. First, it explains the history of the Rohingya crisis. Secondly, it touches on the relationship between the Rohingya crisis and the ICC. Thirdly, the book discusses the relationship between the ongoing case of Gambia v. Myanmar at the ICJ and the proceedings of the ICC. Finally, the book concludes with an assessment of the legitimacy, effectiveness, and efficiency of the ICC in recent years.

Forced Mobility of EU Citizens is a critical evaluation from an empirical perspective of existing practices of the use of transnational criminal justice instruments within the European Union. Such instruments include the European Arrest Warrant (EAW), prisoner transfer procedures and criminal law-related deportations.The voices and experiences of people transferred across internal borders of the European Union are brought to the fore in this book. Another area explored is the scope and value of EU citizenship rights in light of cooperation not just between judicial authorities of EU Member States, but criminal justice systems in general, including penitentiary institutions. The novelty of the book lays not only in the fact that it brings to the fore a topic that so far has been under-researched, but it also brings together academics and studies from different parts of Europe - from the west (i.e. the expelling countries) and the east (the receiving countries, with a special focus on two of the jurisdictions most affected by these processes - Poland and Romania). It therefore exposes processes that have so far been hidden, shows the links between sending and receiving countries, and elaborates on the harms caused by those instruments and the very idea of 'justice' behind them. This book also introduces a new element to deportation studies as it links to them the institution of the European Arrest Warrant and EU law transfers targeting prisoners and sentenced individuals.With a combination of legal, criminological, and sociological perspectives, this book will be of great interest to scholars and students with an interest in EU law, criminal law, transnational criminal justice, migration/immigration, and citizenship.

This book addresses the issue of the timing of transitional justice policies in countries that had negotiated transitions from authoritarianism to democracy.Why are transitional justice measures often being implemented decades after the events they refer to? More specifically, what combination of factors leads to the implementation of transitional justice policies at certain moments in time? And, what explains countries' different choices and trajectories? To address these questions, this book pursues a comparative analysis of three cases: comparing a case of 'robust' implementation of transitional justice measures (Uruguay), a case where only victim-centered measures were approved (Spain), and a case that sits in between these two (Brazil). Through an in-depth empirical analysis of these specific country-cases, and focusing on seven different transitional justice initiatives, the book identifies the determinants behind delayed transitional justice policies and explains why such policies are more robust in some settings than in others. In doing so, it provides a holistic account of post-transitional justice outcomes, offering more general conclusions and insights about the study of the drivers of transitional justice.This book will appeal to scholars and students of transitional justice in politics, law, and sociology, as well as to policymakers involved in the implementation and administration of transitional justice measures.

This book focuses on the tension between the protection of human rights recognised as jus cogens (peremptory) norms, on the one hand, and the bestowal of immunity on the state and its representatives, on the other, to ascertain how these immunities can be eroded, if not fully abolished, to maintain full protection of jus cogens human rights under international law. The book argues that immunity should not equate to impunity when violations of jus cogens human rights are committed by States, Heads of State, or diplomatic agents. To make the case, the organic structures of the concepts of sovereignty and fundamental human rights are examined. Then, the human rights-based challenge to immunity is presented with respect to State, Head of State and diplomatic immunity, and the transition from a state-centric system to a human-centric system is explored. Jus cogens norms are at the centre of the impunity versus immunity debate.

This book focuses on the enforcement aspect of tobacco control policy, and argues that the intense regulation of the tobacco market will never be successful as long as it can be circumvented by the availability of illicit tobacco products. Yet, current efforts to combat illicit tobacco trade are insufficient, suffering from several flaws and gaps at the regulatory and operational levels. The aim of this book is to provide an analysis of the legal framework and practice of enforcement with regard to illicit tobacco products. Combining criminological and legal perspectives, it presents and critically analyses the phenomenon of illicit tobacco trade, as well as the policies, legal frameworks and practices in six EU countries with regard to combatting this phenomenon, assessing the strengths and weaknesses of their approaches. Furthermore, it studies the relationship between the EU and third countries (e.g. Ukraine) in terms of how the EU can influence policy and enforcement in these countries in order to counter illicit tobacco trafficking. Not exclusively focusing on the EU, the book also includes an analysis of enforcement against illicit tobacco products in the US. The EU Member States analysed in the book (Belgium, Germany, Italy, Latvia, the Netherlands and Poland) reflect the range of currently available approaches. Some of them have ratified the WHO Protocol against tobacco smuggling; others have not. They belong to different legal traditions and face different challenges due to their respective border situations. While Belgium and the Netherlands are key entry ports to the EU, Poland and Latvia represent the Eastern land border of the EU, with various regional challenges. Italy has a long maritime border, where trafficking is possible from Northern Africa and from the Middle East. It also has significant experience in fighting organised crime. Lastly, Germany is the largest market in Europeand situated in the middle of these trafficking routes.

This book explores the EU's approach to peacebuilding and questions the EU global role as crisis manager and capacity builder. It highlights the significant contributions of the EU to civilian peacebuilding and also critically evaluates the activities of the EU Common Security and Defence Policy (CSDP) within their rule of law and human rights peacebuilding missions. It draws on the author's twenty years of experience working on CSDP and EU defence matters including his research on EU police missions in Africa and Middle East. It exposes emergent tension between peacebuilding in its neighbourhood and security issues. It examines the practice of EU peacebuilding including performance of its missions and how deployed personnel can professionalise their diplomatic (mediation, negotiation and dialogue facilitation) capacity to fully realise the potential of missions and exploit opportunities for expanding the vision of peace. It formulates convincing policy recommendations for the future planning of EU external relations in post conflict environments and offers valuable insights into how to connect with people and communities in the aftermath of conflict.

This book explores the practical and theoretical opportunities as well as the challenges raised by the expansion of transitional justice into new and 'aparadigmatic' cases.

This volume brings together work by authors who draw upon sociological and criminological methods, theory, and frameworks, to produce research that pushes boundaries, considers new questions, and reshape the existing understanding of "e;art crimes"e;, with a strong emphasis on methodological innovation and novel theory application. Criminologists and sociologists are poorly represented in academic discourse on art and culture related crimes. However, to understand topics like theft, security, trafficking, forgery, vandalism, offender motivation, the efficacy of and results of policy interventions, and the effects art crimes have on communities, we must develop the theoretical and methodological models we use for analyses. The readership of this book is expected to include academics, researchers, and practitioners in the fields of criminology, sociology, law, and heritage studies who have an interest in art and heritage crime.