This book deals with the gathering of evidence in cross-border investigations in Europe. The issue of obtaining evidence in and from European countries has been among the most debated issues of EU cross-border cooperation in criminal matters over the last two decades, going through periods of intensive discussions and showing an extraordinary adaptability to the evolution of EU legislation for criminal matters. On the other hand, the prosecution and investigations of cross-border cases pose unprecedented challenges in the European scenario, characterized by the increasing flow and activity of citizens over the territory of more than one country and therefore by the need to lay the foundations of a transcultural criminal justice system.

The book analyses this complex topic starting with the current perspectives of EU legislation, thus providing a critical analysis of the legislative initiative aimed at introducing a new tool for gathering almost any type of evidence in other Member States, i.e., the European Investigation Order. On a second level, this study deals with the solution models and human rights challenges posed by the increasingly intensive dialogues between domestic and supranational case laws, and formulates essential guidelines for setting up a fair transnational enquiry system in Europe.

Criminal law can no longer be neatly categorised as the product and responsibility of domestic law. That this is true is emphasised by the ever-increasing amount of legislation stemming from the European Union (EU) which impacts, both directly and indirectly, on the criminal law. The involvement of the EU institutions in the substantive criminal laws of its Member States is of considerable legal and political significance. This book deals with the emerging EU framework for creating, harmonising and ensuring the application of EU criminal law. This book aims to highlight some of the consequences of EU involvement in the criminal law by examining the provisions which have been adopted in the field of information and communications technology. It provides an overview of the criminal law competence of the EU and evaluates the impact of these developments on the criminal laws of the Member States. It then goes on to consider the EU legislation which requires Member States to regulate matters such as data protection, e-security, intellectual property and various types of illegal content through the criminal law is analysed. In the course of this evaluation, particular consideration is given to issues such as the basis on which the EU institutions establish the need for criminal sanctions, the liability of service providers and the extent to which the Member States have adhered to, or departed from, the legislation in the course of implementation.

Over more than three decades starting in the 1990s, thousands of robberies, acts of piracy, and other violent attacks against merchant vessels have been reported in many of the world's waters. The grave danger of piracy poses a direct threat not only to the security and efficiency of marine transportation, but more seriously, to the lives of the men and woman carrying out this important function. This book collates ideas brought up by seafarers, shipowners, industry practitioners, government officials, academics, and researchers exchanged views and insights on the complex web of underlying factors behind the phenomenon of piracy. Piracy at Sea brings together a wide spectrum of maritime stakeholders, who present different aspects of the problem in an open manner and share their thoughts on how to deal with a truly complex situation. It encapsulates this collective wisdom in a publication that can serve as an easy reference for practitioners as well as researchers, and hopefully contribute to more concrete action.

'Child Soldiers and the Lubanga Case' and 'The Tallinn Manual on the International Law Applicable to Cyber Warfare' are the two central themes of this volume. Each of these timely topics is addressed from three different angles, providing a truly comprehensive analysis of the subject. The book also features an article on the duty to investigate civilian casualties during armed conflict and its implementation in practice and an elaborate year in review, discussing developments that occurred in 2012. The Yearbook of International Humanitarian Law is the world's only annual publication devoted to the study of the laws governing armed conflict. It provides a truly international forum for high-quality, peer-reviewed academic articles focusing on this crucial branch of international law. Distinguished by contemporary relevance, the Yearbook of International Humanitarian Law bridges the gap between theory and practice and serves as a useful reference tool for scholars, practitioners, military personnel, civil servants, diplomats, human rights workers and students.

Preventing Corruption explores the problems involved in the contemporary investigation, enforcement and governance of international corruption, identifying that no one country or culture has a monopoly on corruption, as it ranges across the social spectrum and different cultures. This unique international coverage explores the level of corruption in different public and private sectors of business for individuals and organizations around the world and highlights that some individuals and organizations benefit from corruption regardless of geographical location. It also examines the limits of current anti-corruption strategies, laws and conventions and considers the involvement of western democratic states in corruption, the concept of state capture and the corrupt use of private military organizations in conflict zones around the world.This diverse critical analysis of international corruption includes under-explored areas such as bribery, whistle blowing and the use of private bodies and will be a highly valuable tool for scholars and practitioners alike.

Language and the Right to Fair Hearing in International Criminal Trials explores the influence of the dynamic factor of language on trial fairness in international criminal proceedings. By means of empirical research and jurisprudential analysis, this book explores the implications that conducting a trial in more than one language can have for the right to fair trial. It reveals that the language debate is as old as international criminal justice, but due to misrepresentation of the status of language fair trial rights in international law, the debate has not yielded concrete reforms.
Language is the core foundation for justice. It is the means through which the rights of the accused are secured and exercised. Linguistic complexities such as misunderstandings, translation errors and cultural distanceamong participants in international criminal trials affect courtroom communication, the presentation and the perception of the evidence, hence jeopardizing the foundations of a fair trial.
The author concludes that language fair trial rights are priority rights situated in the minimum guarantees of fair criminal trial; the obligation of the court to ensure fair trial or accord the accused person a fair hearing also includes the duty to ensure they can understand and be understood."""

International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, they have misunderstood the nature of the collective action or framework that makes these crimes possible, and for which liability may be attributed to intellectual authors, policy makers and leaders. In this book, the author draws on insights from comparative law and methodology to propose doctrines of perpetration and secondary responsibility that reflect the role and function of high-level participants in mass atrocity, while simultaneously situating them within the political and social climate which renders these crimes possible. This new doctrine is developed through a novel approach which combines and restructures divergent theoretical perspectives on attribution of responsibility in English and German domestic criminal law, as major representatives of the common law and civil law systems. At the same time, it analyses existing theories of responsibility in international criminal law and assesses whether there is any justification for their retention by international criminal tribunals.

The book Criminal proceedings, languages and the European Union: linguistic and legal issues the first attempt on this subject deals with the current situation in the jurislinguistic studies, which cover comparative law, language and translation, towards the aim of the circulation of equivalent legal concepts in systems which are still very different from one another. In the absence of common cultures and languages, in criminal procedure it is possible to distinguish features that are typical of common law systems and features that are typical of civil law systems, according to the two different models of adversarial and inquisitorial trials. Therefore, the most problematic challenges are for the European Union legislator to define generic measures that can be easily implemented at the national level, and for the individual Member States to choose corresponding domestic measures that can best implement these broad definitions, so as to pursue objectives set at the European level.

In this "scenario," the book assesses the new framework within which criminal lawyers and practitioners need to operate under the Lisbon Treaty (Part I), and focuses on the different versions of its provisions concerning cooperation in criminal matters, which will need to be implemented at the national level (Part III). The book analyses the issues raised by multilingualism in the EU decision-making process and subsequent interpretation of legal acts from the viewpoint of all the players involved (EU officials, civil, penal and linguistic lawyers: Part II), explores the possible impact of the EU legal acts concerning environmental protection, where the study of ascending and descending circulation of polysemantic words is especially relevant (Part IV), and investigates the new legal and linguistic concepts in the field of data retention, protection of victims, European investigation orders and coercive measures (Part V)."

This book examines the rapid development of the fundamental concept of a crime in international criminal law from a comparative law perspective. In this context, particular thought has been given to the catalyzing impact of the criminal law theory that has developed in major world legal systems upon the crystallization of the substantive part of international criminal law. This study offers a critical overview of international and domestic jurisprudence with regard to the construal of the concept of a crime (actus reus, mens rea, defences, modes of liability) and exposes roots of confusion in international criminal law through a comprehensive comparative analysis of substantive criminal laws in selected legal jurisdictions.

The practice of using children to participate in conflict has become a defining characteristic of 21st century warfare and is the most recent addition to the canon of international war crimes. This text examines the development of this crime of recruiting, conscripting or using children for participation in armed conflict, from human rights principle to fully fledged war crime, prosecuted at the International Criminal Court. The background and reasons for the growing use of children in armed conflict are analysed, before discussing the origins of the crime in international humanitarian law and human rights law treaties, including the Convention on the Rights of the Child and its Optional Protocol. Specific focus is paid to the jurisprudence of the Special Court for Sierra Leone and the International Criminal Court in developing and expanding the elements of the crime, the modes of ascribing liability to perpetrators and the defences of mistake and negligence. The question of how the courts addressed issues of cultural sensitivity, notably in terms of the liability of children, is also addressed.

This book is written in memory of Avril McDonald, who passed away in April 2010. Avril was an inspired and passionate scholar in the fields of international humanitarian law, international criminal law, human rights law and law in the field of arms control and disarmament. What in particular made Avril's work special, was her strong commitment with the human aspects throughout. Fourteen scholars and practitioners have contributed to this liber amicorum, which has led to a rich variety of topics within the disciplines of Avril's expertise. They all have in common that they deal with the human perspectives of the discipline of law at hand. They concentrate on the impact of the developments in international law on humans, whether they are civilians, victims of war or soldiers. This human perspective of law makes this book an appropriate tribute to Avril McDonald and at the same time a unique and valuable contribution to international legal research in the present society. A society that becomes more and more characterized by detailed legal systems, defined by institutions that may frequently lack sufficient contact with the people concerned.

The coming into force of the Lisbon Treaty has provided the EU with new powers in the fields of criminal law and security law while reinforcing existing powers in immigration and asylum law. The Stockholm Programme is the latest framework for EU action in the field of justice and home affairs. It includes a range of new legislation in the fields of immigration and asylum, substantive criminal law, criminal procedure and co-operation between national criminal justice systems. The combination of the new treaty and programme have made security and justice key areas of legislative growth in the EU. This volume brings together a range of leading scholars, as well as some of the most interesting new voices in the debate, to examine the state of EU security and justice law after the Lisbon Treaty and the Stockholm Programme. It provides a critical examination of EU law in the fields of immigration, asylum, counter-terrorism, citizenship, fundamental rights and external relations. The book also examines the evolving roles of the EU institutions and criminal justice agencies. It provides a critical account of EU law in this field under the developing constitutional and institutional settlement.

As international criminal courts and tribunals have proliferated and international criminal law is increasingly seen as a key tool for bringing the world's worst perpetrators to account, the controversies surrounding the international trials of war criminals have grown. War crimes tribunals have to deal with accusations of victors' justice, bad prosecutorial policy and case management, and of jeopardizing fragile peace in post-conflict situations. In this exceptional book, one of the leading writers in the field of international criminal law explores these controversial issues in a manner that is accessible both to lawyers and to general readers. Professor William Schabas begins by considering the discipline of international criminal law, outlining the differing approaches to the description of international crimes and examining the frequent claims relating to the retroactive application of these crimes. The book then discusses the relationship between genocide and crimes against humanity, studying the fascination with what Schabas calls the 'genocide mystique'. International criminal tribunals have often been stigmatized as an exercise in victors' justice. This book traces how this critique developed and the difficulty it poses to the identification of situations for prosecution by the International Criminal Court. The claim that amnesty for international crimes is prohibited by international law is challenged, with a more nuanced approach to the relationship between justice and peace being proposed. Throughout the book there is a strong historical perspective, with constant reference to the early experiments in international justice at Nuremberg and Tokyo. The work also analyses the growing pains of the International Criminal Court as it enters its second decade.

Terrorism: Commentary on Security Documents is a series that provides primary source documents and expert commentary on various topics in the worldwide effort to combat terrorism. Among the documents collected are transcripts of Congressional testimony, reports by such federal government bodies as the Congressional Research Service (CRS) and the Government Accountability Office (GAO), United Nations Security Council resolutions, reports and investigations by the United Nations Secretary-General and other dedicated UN bodies, and case law from the U.S. and around the globe covering issues related to terrorism. Most volumes carry a single theme, and inside each volume the documents appear within topic-based categories. The series also includes a subject index and other indices that guide the user through this complex area of the law. Volume 130, Detention Under International Law: Safeguards Against Torture and Other Abuses, is the third in a three-volume arc on detention under international law. This volume provides an overview of the major documents and human rights judgments that address the treatment of the lawfully detained in times of peace and war. Professor Kristen Boon offers commentary on treaties, declarations, reports, and decisions from multinational and regional bodies and human rights courts that discuss the mistreatment of prisoners and enforced disappearances. This volume addresses the need to eradicate the abuse of alleged criminals in detention, including suspected terrorists, and the continued role of the United Nations, regional human rights systems, and local laws to define and eliminate these practices already prohibited by international law.

This book reveals the extent, types, investigation, enforcement and governance of international corruption. Providing a unique international coverage, it reveals the limits of current anti-corruption strategies and explores the involvement of western democratic states in corruption.

This book addresses the phenomenon of children as the particular targets of extreme cruelty and genocide during armed conflict. Selected International Criminal Court cases are analyzed to illustrate the ICC's failure to address the genocidal forcible transfer of children to armed State and/or non-State groups or forces perpetrating mass atrocities and/or genocide. An original legal interpretation of children as a protected group in the context of the genocide provision of the Rome Statute is provided. The work also examines certain examples of the various modes in which armed State and/or non-State groups or forces perpetrating mass atrocities and/or genocide appropriate children and accomplish the genocidal forcible transfer of children to the perpetrator group. It is argued that the failure to prosecute the genocidal forcible transfer of children through the ICC mechanisms (where the Court hasjurisdiction and the State has failed to meet its obligations in this regard) undermines the perceived gravity of this heinous international crime within the international community. Furthermore, this ICC failure to prosecute conflicts with the interests of justice and ultimately results in an erosion of the respect for the personhood and human dignity of children.

The protection of fundamental rights in the field of transnational criminal inquiries is of great delicateness in the current tangled web of domestic and international legal sources. Due to this complex scenario, this research has been carried out from a four-level perspective. The first part provides a critical analysis of the multilevel systems of protecting fundamental rights from the perspective of supranational and constitutional case law, and in the field of international and organized crime. The second part focuses on EU judicial cooperation in three main fields: financial and serious organized crime, mutual recognition tools, and individual rights protection. The third part provides the perspectives of ten domestic legal systems in two fields, i.e., obtaining evidence abroad and cooperation with international criminal tribunals. The fourth part analyses cross-border inquiries in comparative law, providing a reconstruction of different models of obtaining evidence overseas.

"With Forewords by Geoffrey Robertson QC, Doughty Street Chambers, London, UK and Professor Mihail E. Ionescu, Bucharest, Romania"

Simona u uianu describes a new model of sovereignty which is fast replacing the traditional Westphalian model embodied in Article 2 of the UN Charter and rigorously followed throughout the Cold War. The scholarly basis for this new model draws upon developments in international criminal law which first emerged from the Nuremberg trials and upon more recent interstate economic cooperation which has turned sovereign independence into interdependence across a range of state functions. Does this mean that traditional Westphalian concepts of sovereignty should be abandoned in constructing a new theory of world governance for the twenty-first century? Not at all. A new model, which can be called the pattern of interdependence-based sovereignty, serves to explain contemporary events that puzzle traditional theorists, such as the war over Kosovo, the invasions of Iraq and Libya, the emergence of a "Responsibility to protect" doctrine and its recent validation in Security Council Resolutions 1970 and 1973. We are witnessing the emergence of a new philosophy of action, which is in the process of producing a 21st century system of international relations.

The Book will appeal to academics, students and postgraduates studying international affairs, politics, international law, diplomatic history, or war and/or peace studies. It is particularly of interest for NATO establishments and national military schools, while experts and scholars will value its theory of what sovereignty means today.

The Book offers a multidisciplinary approach which underpins a new theory of how human rights can be better protected in a better world. There is a unique case study of cooperative security in the Greater Black Sea Area, by one of the few experts on the politics of this region." "It will be read and appreciated by those who need to understand how modern international law and diplomacy really work. Journalists, media commentators, human rights NGOs, aid agencies, diplomats and government officials need the information in this Book.

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Does an offender have the "right" to be punished? "The right to be punished" may sound like an oxymoron, but it is not necessarily so. With the emergence of modern criminal law, the offender gained the "right" to be punished by rational criminal law rather than being lynched by an angry mob. The present-day offender may have the "right" to be punished by doctrinal sentencing rather than being subjected to verdicts based on vague, unclear, and uncertain principles. In modern criminal law, the imposition of criminal liability follows accurate and strict rules, whereas there are no similar rules for the imposition of punishment. The process of sentencing is vague and obscure, as are the considerations used for the imposition of punishments. The objective of the present book is to propose a comprehensive, general, and legally sophisticated theory of modern doctrinal sentencing. The challenges of such a legal theory are plenty and complex. In addition to increasing clarity and certainty, modern doctrinal sentencing must deal with modern types of delinquency (e.g. organized crime, recidivism, corporate offenders, high-tech offenses, etc.) and modern principles of criminal law. Modern doctrinal sentencing must serve to ensure optimal sentencing.

The purpose of this book is to find a unified approach to the doctrine of mens rea in the sphere of international criminal law, based on an in-depth comparative analysis of different legal systems and the jurisprudence of international criminal tribunals since Nuremberg. Part I examines the concept of mens rea in common and continental legal systems, as well as its counterpart in Islamic Shari'a law. Part II looks at the jurisprudence of the post-Second World War trials, the work of the International Law Commission and the concept of genocidal intent in light of the travaux preparatoires of the 1948 Genocide Convention. Further chapters are devoted to a discussion of the boundaries of mens rea in the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda. The final chapter examines the definition of the mental element as provided for in Article 30 of the Statute of the International Criminal Court in light of the recent decisions delivered by the International Criminal Court. The study also examines the general principles that underlie the various approaches to the mental elements of crimes as well as the subjective element required in perpetration and participation in crimes and the interrelation between mistake of law and mistake of fact with the subjective element. With a Foreword by Professor William Schabas and an Epilogue by Professor Roger Clark From the Foreword by William Schabas Mohamed Elewa Badar has taken this complex landscape of mens rea at the international level and prepared a thorough, well-structured monograph. This book is destined to become an indispensable tool for lawyers and judges at the international tribunals. From the Epilogue by Professor Roger Clark This is the most comprehensive effort I have encountered pulling together across legal systems the 'general part' themes, especially about the 'mental element', found in confusing array in the common law, the civil law and Islamic law. In this endeavour, Dr Badar's researches have much to offer us.

This book critically examines the response of the United Nations (UN) to the problem of sexual exploitation in UN Peace Support Operations. It assesses the Secretary-General's Bulletin on Special Protection from Sexual Exploitation and Sexual Abuse (2003) (SGB) and its definition of sexual exploitation, which includes sexual relationships and prostitution. With reference to people affected by the policy (using the example of Bosnian women and UN peacekeepers), and taking account of both radical and 'sex positive' feminist perspectives, the book finds that the inclusion of consensual sexual relationships and prostitution in the definition of sexual exploitation is not tenable. The book argues that the SGB is overprotective, relies on negative gender and imperial stereotypes, and is out of step with international human rights norms and gender equality. It concludes that the SGB must be revised in consultation with those affected by it, namely local women and peacekeepers, and must fully respect their human rights and freedoms, particularly the right to privacy and sexuality rights.

Derivative criminal liability includes inchoate offenses (criminal attempt, conspiracy, preparatory offenses, etc.), complicity (joint perpetration, perpetration through another, incitement, solicitation, accessoryship, etc.), organized crime, natural and probable consequences liability, post-crime aid, enterprise liability, terrorism and terrorist infrastructure, and many more forms of criminal liability, clearly making it a major pillar of modern criminal law. Although derivative criminal liability affects countries worldwide, there is still no general legal theory that covers this issue. The objective of the present book is to develop a comprehensive, general, legally sophisticated, and at the same time practical theory of derivative criminal liability. The book emphasizes the practicality of the theory to enable courts, lawyers, legislators, attorneys, students, and academics to apply it in their daily professional occupations.

After having ignored victims, only recently both domestic and international law have begun to pay attention to them. As a consequence, different international norms related to victims have progressively been introduced. These are norms generally characterized by a certain concept from the perspective of victims, as well as by the enumeration of a list of rights to which they are entitle to; rights upon which the international statute of victims is built. In reverse, these catalogues of rights are the states' obligations. Most of these rights are already existent in the international law of human rights. Consequently, they are not new but consolidated rights. Others are strictly linked to victims, concerning the following categories: victims of crime, victims of abuse of power, victims of gross violations of international human rights law, victims of serious violations of international humanitarian law, victims of enforced disappearance, victims of violations of international criminal law and victims of terrorism.
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The book assesses the adoption of counterterrorism measures in the Netherlands and the United States, which facilitate criminal investigations with a preventive focus (anticipative criminal investigations), from the perspective of rule of law principles. Anticipative criminal investigation has emerged in the legal systems of the Netherlands and the United States as a consequence of counterterrorism approaches where the objective of realizing terrorism prevention is combined with the objective to eventually prosecute and punish terrorists. This book has addressed this new preventive function of criminal justice and identified the rule of law principles limiting the role of criminal investigation in terrorism prevention. The possibilities and limits of criminal investigation in general and of cooperation and the division of responsibilities between law enforcement and intelligence have been addressed in a manner transcending differences between national legal systems. Valuable for academics and practitioners interested in criminal investigation, rule of law and counterterrorism.

Every State has an obligation to prevent terrorist attacks emanating from its territory. This proposition stems from various multilateral agreements and UN Security Council resolutions. This study exhaustively addresses the scope of this obligation of prevention and the legal consequences flowing from its violation, so as to provide greater clarity on governments' counterterrorism duties and to enhance State accountability for preventable wrongs. It defines the contents and contours of the obligation while placing critical emphasis on the mechanics of State responsibility. Whether obscured by new technologies like the Internet, the sophisticated cellular structure of some terrorist organisations or convoluted political realities, the level of governmental involvement in terrorist activities is no longer readily discernible in every instance. Furthermore, the prospect of governments waging surrogate warfare through proxies also poses intractable challenges to the mechanism of attribution in the context of State responsibility. This monograph sets out the shortcomings of the extant scheme of State responsibility while identifying a paradigm shift towards more indirect modes of accountability under international law, a trend corroborated by recent State and institutional practice. Drawing on varied legal and theoretical influences, the study devises and prescriptively argues for the implementation of a strict liability-inspired model grounded in the logic of indirect responsibility with a view to enhancing State compliance with counterterrorism obligations. This shifts the policy focus squarely to prevention, while promoting multilateralism and transnational cooperation. Ultimately, the legal and policy sensibilities underlying the book converge into a new theory of prevention in counterterrorism contexts. From the Foreword by Judge Bruno Simma, International Court of Justice "Even if one might disagree with the bases on which the author constructs his argument, the execution of the argument is solid and thorough. The coverage of the major policy arguments and the available legal source materials is equally impressive. Moreover, the author's positions are genuinely progressive and present a fairly innovative solution, in the form of a strict liability mechanism...It behoves all scholars and practitioners of international law with an interest in combating international terrorism to consider the proposals outlined in this book." Transnational Terrorism and State Accountability by Vincent-Joel Proulx has been awarded the 2014 Myres McDougal Prize for best book in Law, Science, and Policy from the Society of Policy Scientists.