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training-law-hrilhwpwc-con03b | Firstly, more prosecutions take place in developing nations because in recent decades more war crimes have been committed in developing nations. Western nations have been equally committed to prosecutions in the former Yugoslavia, in an increasingly prosperous European region. Secondly, although the refusal of the United States to become a signatory to the ICC is problematic, an inability to prosecute every war crime should not prevent us from prosecuting any. |
training-law-hrilhwpwc-con01b | Proving the commission of crimes on this scale beyond reasonable doubt must take a great deal of time and expertise. The end is so important that the cost must be borne. The successes at Nuremburg and the ICTY convictions prove that it is possible to bring war criminals to justice. While the ICC has had limited success, it is a young institution and is likely to streamline its processes and achieve more convictions in the future. |
training-law-hrilhwpwc-con02a | Post-conflict reconciliation These trials are not always in the best interests of people on the ground in post-conflict societies. Victims may feel great trauma at having to testify and revealing information might inflame tensions. This is particularly true when large numbers of people in the society had connections to the war criminals. For instance, many high-ranking Cambodian businessmen and officials had Khmer Rouge connections [i] and in Rwanda, Hutus make up 85% of the population. Prosecution is intended to allocate blame not to encourage progress and reconciliation. If any official process is necessary, Peace and Reconciliation Commissions are more suitable. [i] Justice of a Kind, The Economist, |
training-law-hrilhwpwc-con04a | Problems with symbolic justice There is no such thing as symbolic justice. While full justice is an admirable aspiration, its value is undermined by consistent failure. If prosecutions cannot be completed, the international community is seen as toothless. This undermines its deterrent value and trivialises the trauma of victims, who may feel their suffering is subordinate to esoteric legal principle. Furthermore, the prosecution of war criminals could use up political capital, thereby preventing more effective preventative measures, or real commitment to post-conflict rebuilding. |
training-law-hrilhwpwc-con03a | Double Standard While proposition may claim that prosecution of war criminals is a moral imperative, the reality is that geo-political factors determine which prosecutions are taken. For example, all of the ICC’s prosecutions have been against African leaders. [i] Furthermore, although the United States is strongly suspected of war crimes in Iraq and Afghanistan, it is too powerful to be prosecuted. Fair justice should apply equally to everyone. Because it doesn’t, these prosecutions are often seen as Western impositions. This aggravates international tensions and reduces willingness to take any action on war crime in the developing world. For example, the African Union has refused to uphold the ICC’s arrest warrant on Omar Al Bashir. [ii] [i] Case reports of the ICC [ii] BBC News, 'Warrant issued for Sudan's leader', 4 March 2009, |
training-law-hrilhwpwc-con04b | Justice is always aspirational. International law is a work-in-progress and while there is no question that a lot of work remains to be done, abandoning the effort will cause stagnation. While many failed prosecutions may come before International Courts, as commitment to international law strengthens so will the success-levels of prosecutions. |
training-law-cplghrhwrgo-pro02b | Those who satisfy these demands by citizens are more likely to be voted back into office. It is in their absolute interest to keep their focus on relevant emails or phone talks, as if they don’t do that, there is another person qualified for the job who will. Secondly, it is clear that in this quest for protecting society, it is in the government’s interest to obey the law. As recent events have proven, the population is allergic to any state agency’s violation of law, especially when it comes to warrantless tapping. They won’t risk breaking the law in the hope they will catch more criminals as they know there would be a society and media backlash. If anything, it is in any politician’s interest to search and investigate if any government agency is conducting such abuses and to reveal it with the resulting plaudits and votes it will bring. A politician will gain much more if it takes a public stance against that agency by imposing tighter controls and inspections rather than secretly supporting it. Let us not forget that it is the people who keep politicians in office. Thirdly, we must remember that there is a lot of pressure from different NGOs and even whistleblowers that is put on these officials not to make any wrong steps. They know that if the population finds out that they focused on anything else but catching wrong doers, their career is over and there is no coming back. As a result, we have every reason to believe that the government will maximize its efforts of protecting us, but abusing its powers won’t benefit it on any level. |
training-law-cplghrhwrgo-pro02a | Warrants are needed to prevent abuse In the light of the recent NSA events(1) , we must try and see past this curtain of fog the government has put in front of us, trying to make us believe that everything it does, it does for our own good and that in this process the law is being respected to the letter. Unfortunately, if the necessary system of checks-and-balances between the government and the masses or judicial courts is lacking, it will always find ways to abuse its powers and violate our rights. Even with the warrant currently being mandatory when trying to tap one’s phone, we see that Justice Department’s warrantless spying increased 600 percent in decade(2). If the government is currently invading our lives when we have specific laws banning it from doing so, why should we believe that this phenomenon won’t escalate if we scrap those laws? The government's biggest limitation when actively trying to spy or follow a large group of people was technological; it was difficult - if not impossible - to follow a lot of people for days at a time. But with surveillance tools it’s becoming cheaper and easier, as is proven by the astounding 1.3 million demands for user cell phone data in the last year “seeking text messages, caller locations and other information”(3.) Without the resource limitations that used to discourage the government from tracking you without good reason, the limits on when and how geolocation data can be accessed are unclear. A police department, for example, might not have the resources to follow everyone who lives within a city block for a month, but without clear rules for electronic tracking there is nothing to stop it from requesting every resident's cell phone location history. Considering these facts, it is clear that, as we live in a time when it would be extremely easy for the government to engage in mass surveillance of the population, we must enforce and harden the current laws for our own protection, rather than abandoning then for good. No matter what, George Orwell’s books should not be perceived as a model for shaping our society. At the end of the day, without any oversight, it would be extremely easy for the government to abuse this power given to it by electronic surveillance tools, without us ever knowing it. This system is the only thing left that prevents government agencies to violate our rights. (1) Electronic Frontier Foundation (2) David Kravets” Justice Department’s Warrantless Spying Increased 600 Percent in Decade”, “Wired” 09.27.12 (3) Trevor Timm , “Law Enforcement Agencies Demanded Cell Phone User Info Far More Than 1.3 Million Times Last Year”, “Electronic Frontier Foundation” July 9, 2012 |
training-law-cplghrhwrgo-pro01a | Freedom from government intrusion One of the most important pillars on which every single western liberal democracy has been founded is freedom. Allowing the government to be able to track and monitor individuals through mobile or internet connections is against everything we, as a western society, stand for. First of all, it is undisputable that liberty and freedom are indispensable to our society. Every single individual should and must be the master of his own life, he should have the capacity of controlling how much the government or other individuals know about him, the right to private life being the main argument in this dispute. Secondly, it is clear that phone and internet tracking potentially allow the government to know almost everything about you. Most phones have a GPS incorporated and a lot can be deduced about ones habits by the photos or updates on his social network profile. One who knows all of another’s travels, can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups, basically about every activity you have in your life. Remember this data is extremely precise, as your cell phone sends your location back to cell phone towers every seven seconds—whether you are using your phone or not—potentially giving the authorities a virtual map of where you are 24/7. Finally, we, as individuals, created this artificial structure, i.e the state, to protect our human rights, but also to protect us from each other. We admitted that some rights can be taken away if there is serious concern about the security of other people. Therefore, it is absolutely normal to allow the government to track and follow certain individuals who are believed to have taken part in criminal activities, but there is no ground on which you can violate the right to privacy of a law-abiding citizen, especially if we are talking about such an intrusive policy. If we did so, it would come as a direct contradiction with the very purpose the state was created. |
training-law-cplghrhwrgo-pro01b | What is imperative to understand is that principles are never the end result; they are simply the means to an end. We rely on certain principles like the philosophy of liberty and freedom because in general they have positive outcomes on our lives. The question which rises on this point is what principle, protection freedom, brings more benefits to us. The freedom of no one knowing your whereabouts and the right to privacy may sound good in theory, but the truth is they don’t have any effect on the individual. No matter if my phone is connected to the NSA headquarters or not, my day remains exactly the same and nothing changes. I face the same obstacles and joys and I feel the same emotions, as I am not aware of this tracking. But if we prioritize protection over freedom we see that there is significant change in someone’s life. As the government will stop and prevent more crimes happening by tracing and intercepting calls and e-mail s, the lives of the citizens will be drastically improved. Any stopped crime means that the potential victim of that crime has a dramatic improvement in their safety and quality of life. In the end, we clearly see that protection must be prioritized over freedom as it has more practical benefits upon the population. |
training-law-cplghrhwrgo-pro03a | Reducing trust in the state In a world where state agencies would have the possibility of tracking everyone’s moves without any person knowing it, we would reach a point in which the population lose their trust in their elected officials. The consequences could then be very damaging to democracy. This phenomenon took place right after the NSA leaks, as the confidence in the US government was near record’s low.(1) First of all, the population would know that the government is spying and tracking their moves, but they wouldn’t know how much. This general lack of information on this matter will create a lot of scepticism relating this process, and inevitably the population will reach the conclusion that the government is conducting massive phone tapping and spying campaigns as no one is checking on them. Despite potential official document trying to give certain facts regarding this, due to the previous incidents when the state has been releasing little or misleading information, these will have little influence over the population. As a result, trust in the state will suffer a massive blow. This is extremely problematic, as you want and need the general population to trust and listen to what the government, and more particularly law enforcement agencies, say in a lot of instances. When promoting non-discrimination, gender equality or increased social welfare contributions for the poor, you need the population to see the state as someone who is on the same side with them and someone who they can trust. Unfortunately, the scepticism with which those beneficial government proposals will be received will drastically reduce their impact and the chances of them being implemented. If I do not trust that the government is looking after my own good, but rather in a lot of instances its interests are mutually exclusive with mine, then I would most probably lose my respect towards authority. When talking about law enforcement agencies, i.e the police, the NSA, etc., it is clear that we have trusted them to protect us and our rights. When it is those very agencies that are conducting these warrantless spying campaigns, it comes as a direct contradiction with their very purpose and thus the impact and the loss of trust is higher on this level. Moreover, in the long term, the whole electoral process could suffer a lot from this lack of confidence, as individuals aren’t particularly inclined to go to elections any more if they see that no matter what they do, their rights will still be breached. As you need the population to trust the government, so that its reforms are being met with positivism and not reluctance, you must not portray the government as an intrusive, harmful and ill-willing element of the society. (1) Harry J Enten ” Polls show Obama's real worry: NSA leaks erode trust in government”, The Guardian, 13 June 2013 |
training-law-cplghrhwrgo-pro04a | Changes in behaviour Surveillance changes the way we make daily decisions—the same way that a rapidly approaching police car in your rear-view mirror may make you feel nervous even when you are driving completely lawfully. The very existence of a mass surveillance system will negatively influence the behaviour and emotions of a significant majority of the population. First, surveillance affects emotions and mental performance, as it leads to heightened levels of stress, fatigue and anxiety due to the constant feeling that you are being watched.(1) Secondly, it creates conformity to social norms. “In a series of classic experiments during the 1950s, psychologist Solomon Asch showed that conformity is so powerful that individuals will follow the crowd even when the crowd is obviously wrong. A government that engages in mass surveillance cannot claim to value innovation, critical thinking, or originality.”(2) This is of extreme importance as first of all, it is the state’s duty to create the most peaceful and harmonious environment in which the individual can reach its full potential (this one clearly not being it) and second if we don’t feel free to do things that are perfectly legal because we think someone might think it suspicious or out of character then it is difficult to say we are really free. (1) M.J. Smith, P. Carayon, K.J. Sanders, S-Y. Lim, D. LeGrande “Employee stress and health complaints in jobs with and without electronic performance monitoring”, 1992 (2) Chris Chambers ” NSA and GCHQ: the flawed psychology of government mass surveillance”, The Guardian, 26 August 2013 |
training-law-cplghrhwrgo-con03b | It is clear that the population has high demands and high expectations from the government, but that is because it should do. It is clear that every time the state fails to protect us, every time it breaks the law and every time it violates our constitutional rights, the state needs to be held to account. But that doesn’t mean the state’s job is impossible and unfeasible simply that it needs to learn and improve from its mistakes, and the only way this will happen is if it is open and transparent about its systems. In addition, crime has fallen in the western world, governments can and do both protect the civilians and respect their rights at the same time. Such a system requires warrants and check and balances on government. The population may sway in terms of its demands but this is mostly driven by events; when there is a large terrorist attack there is a response, when government goes too far again the people will respond. This ensures that the government strikes the right balance. |
training-law-cplghrhwrgo-con01b | It may be true that we gave the state the burden and the duty to protect us and it is a very high-ranking priority. But this doesn’t justify sacrificing day-to-day freedom just for the state to fulfil its duty a little bit more. We cannot say that the state can do whatever it wants as long as it does that for the safety of our safety. On that logic, it would be OK for the government to have a bodyguard stand next to us without our consent for every single minute of our lives, as that way, we would be more protected. The Supreme Court ruled on this in 2012 and held that police need a warrant to attach at GPS device to a car.(1) One cannot say specifically what the main purpose of the state is, as it’s rather a combination of protecting us and serving us. As it is the population who controls the government and not vice-versa, it must be up to them to decide where to draw the line between security and privacy. What we see on this level is that by engaging in these sorts of operations, the government is not fulfilling its purpose as there are a lot of harmful effects that the citizens would feel if large scale tapping will take place. Maybe some people don’t mind being spied on, but there is a significant majority of people who do. This constant feeling that you are followed translates into fear, anxiety, restlessness or stress. In turn, these emotions affect your day to day life prohibiting you from enjoying it. So on this level, the state is failing at its purpose to improve the lives of the mass population. (1) Trevor Timm , “Law Enforcement Agencies Demanded Cell Phone User Info Far More Than 1.3 Million Times Last Year”, “Electronic Frontier Foundation” July 9, 2012 |
training-law-cplghrhwrgo-con02a | A safer country On this point, there are two levels on which a government which isn’t forced to obtain warrants protects the population better. In 2011 violent crime went up for the first time since 1993 data collected by the Bureau of Justice Statistics in telephone surveys showed a 22 percent increase in assaults so something clearly needs to be done to stop violent crime.(1) First of all, let’s not imagine that there are people hired by the government who will listen to every single word of every single conversation and that every email will be read word for word. In this type of situation, the police uses special software designed to identify certain key words like “murder”, “Al Qaeda”, etc as well as more subtle combinations which could possibly be a clue towards finding certain criminals. If someone is talking or emailing about certain wanted criminals belonging to military militias or terrorist organizations, I would want to know what they were talking about. Now, we have the possibility of doing that, as, last year, for instance, the FBI requested help to develop a social-media mining application for monitoring "bad actors or groups".(2) The problem is the initial search needs to be general to find these individuals in the general mass of the world’s population. This is an efficient way of discovering new previously-unknown criminals. In the past, there would have been no way of ever discovering these individuals and they would continue to be a threat to innocent civilians. Secondly, this improved government control over phones and the internet would be an immense deterrent. It would prevent people from engaging in planned crime as the chances of them getting caught are drastically improved. Deterrence relies on the criminal knowing that they are likely to be caught, knowing your communications are monitored will make people believe they are more likely to be caught. So, not only will the police be able to catch active criminals but will prevent other persons from engaging in this type of actions. (1) Terry Frieden ” U.S. violent crime up for first time in years”, CNN ,October 17, 2012 (2) Ryan Gallagher ”Software that tracks people on social media created by defence firm”, The Guardian, 10 February 2013 |
training-law-cplghrhwrgo-con03a | The public can’t decide what they want Sadly, we reached a point in our desperate quest for perfection where the population, through its mutually exclusive demands, has ended up putting the government between a rock and an anvil. The population then blames the government for not being able to fulfill these demands, when actually we are at fault. We demand our government protects us from terrorists, criminal organizations and in general people who want to harm us. If it fails to do this job, we blame it and throw dirt at it for being inefficient. But what we see is that although the state has the power to launch a full campaign against wrong-doers through electronic surveillance means, we deny him the possibility of doing that. If, by chance, the government is breaking this law when trying to stop and prevent crimes from happening, like in the example of the NSA, again we launch meaningless offenses and start accusing state agencies for being too intrusive. This fickleness is shown by polling; in 2010 47% of Americans thought that anti-terror programs had not gone far enough to protect the country, three years later that figure had dropped to 35% while those thinking the programs restrict liberties had risen from 32% to 47% with little change in how much was actually being done.(1) (1) “Few See Adequate Limits on NSA Surveillance Program” July 26, 2013 |
training-law-cplghrhwrgo-con02b | It is obvious that warrantless tracking of citizens is not the only way to fight crime. There are other ways which do not negatively impact the citizens to such an extent. When talking exclusively about protection, the government could have better trained police officers, harsher laws in other to deter criminals from committing infractions, improved gun control regulations and a more efficient judicial system. There a lot of alternatives to this, as the elected officials must understand that they need to choose a path which does not hurt the population. Moreover, if we look at statistics (1), in most of the western world, the crime rate has been decreasing. Slowly but surely, crimes are falling and our societies are becoming safer and safer. Thus, not only we have other ways of fighting crime, but crime is becoming less of a problem, so do we really need new intrusive measures to deal with it? (1) Eurostat Statistics, |
training-law-lgpcphwawtai-con01a | The controversy which surrounds intercept evidence is far-reaching and very complex. This debate is not contained within the courtroom but also spans wider principles of legal justice and the rules which uphold democratic law. Even countries which currently allow this evidence, such as certain US states [1] , have noted that it can be difficult to use successfully and without violating past Acts and wider legal principles [2] . Bodies such as MI5, MI6 and GCHQ argue that revealing the ‘evidence’ necessitates revealing how that evidence was garnered; as such, intercept evidence can compromise the security status of intelligence services and their techniques [3] . This kind of method should be reserved, if used at all, for singular, extreme cases such as terrorist activity where all other possibilities for collecting evidence have truly been exhausted. Finally, wiretapping and intercept evidence has been criticised or deemed illegitimate by many legal professionals [4] [5] . For this kind of evidence to be admissible in court, it needs to follow legal principles which have already been set up. There is little evidence that it can do so. [1] , accessed 30/08/11 [2] , accessed 30/08/11 [3] , accessed 30/08/11 [4] , accessed 30/08/11 [5] , accessed 30/08/11 |
training-law-hrilppthwr-pro01b | There is no reason why the United States cannot uphold constitutional protections such as Habeas Corpus and effectively combat terrorism at the same time. The two are not mutually exclusive. In fact, ensuring that suspected terrorists have access to Federal courts will save much-needed resources and ensure more accurate administration of justice. In the present case, it is unclear which of the Guantanamo detainees actually committed the acts that are used to justify their indefinite detention. Allowing detainees to challenge their detention would bring clarity to this uncertain situation and free up resources in the war against terrorism. |
training-law-hrilppthwr-con02a | Disregarding Habeas Corpus protections sets a dangerous precedent for the treatment of the soldiers and citizens of the US and its Allies when captured by foreign forces. If the US disregards Habeas Corpus protections, it sets a dangerous precedent for the rest of the world to follow. If other countries follow suit, the citizens and soldiers of the US and its Allies abroad could also be indefinitely detained and denied legal recourse if captured by foreign forces. This is especially relevant when considering journalists covering foreign conflicts, such as those currently occurring in the Middle East. [1] [1] Staff reports, ‘USA TODAY writer, 3 other journalists captured in Libya’, USA Today, 8 April 2011, |
training-law-hrilppthwr-con03a | Suspending Habeas Corpus makes it easier for terrorist organisations to demonise the US and its Allies, and thus to recruit more terrorists in its fight against the West. By suspending Habeas Corpus, the US is playing into the hands of terrorists and creating more would-be terrorists for the future. Enemies of the West aim to demonstrate that the US is an oppressive state in order to make its model less attractive to others. In particular, they wish to show that America is at war with Muslims in order to radicalise young Muslims both at home and overseas. The US should take heed of the precedent in Northern Ireland, where widespread internment without trial radicalised many Catholic youths in the 1970s and drove them into the arms of the IRA. |
training-law-ilppghsuta-pro02b | Even the best Truth and Reconciliation process can only arrive at a partial version of the truth. This may take so many years that political development is halted while society relives the trauma through commission proceedings. Truth and reconciliation commissions also impose a particular form of morality upon both their participants and the post conflict society they serve. This moral perspective draws upon specifically Christian traditions of confession, absolution and forgiveness that may be alien to victims and perpetrators alike. Even in an almost completely Christian South Africa, many victims' families rejected the process for this reason; it is even less well suited to other societies and cultures. It is no coincidence that the truth and reconciliation process is so heavily promoted by European and American think tanks, government and NGOs. It fits into a decidedly Christian niche and presents western donors and aid givers with an image of progress that they can understand an easily approve of. However, without closer ties to the cultural contexts in which past political violence took place, reconciliation commissions run the risk of obstructing political and social reform in the very societies that they are intended to protect. |
training-law-ilppghsuta-pro01a | The reconciliation process provides access to justice in post conflict states Countries emerging from violent pasts, involving repression, civil war and political violence may attempt to come to terms with their histories in three ways. Firstly, they can attempt to ignore the past, allowing those guilty of atrocities to go unpunished and perhaps even prosper under the new system. This approach leaves victims' families bitter and communities divided, entrenching resentments and potentially distorted accounts of individuals’ involvement in violent activities. Such a situation makes renewed violence all the more likely. Secondly, post conflict states can set up war crimes courts (as in the Balkans, Rwanda and Sierra Leone), but these may be seen as victor's justice, or as an imposition by a distant opaque international body. Those threatened by such courts may refuse to lay down their arms, jeopardising any chance of a lasting peace settlement - as with Joseph Kony's long-running rebellion in Northern Uganda. Finally and often best, they can set up a form of Truth and Reconciliation Commission. This requires the whole country to face up to its past, to acknowledge that violence was done by all parties and that the victims were many, and to seek reconciliation through forgiveness at both personal and national levels. |
training-law-ilppghsuta-pro01b | Terrible crimes deserve appropriate punishments. Ignoring the past may not be a good idea, but war criminals (especially the leaders of violent groups) should be brought to justice in public trials. This approach is the only way to ensure that dangerous men are not allowed to continue to act in and influence vulnerable societies. Such individuals are often opportunistic, using periods of peace to re-arm and refresh political sympathies, before resuming campaigns of violence. Indeed, the notorious Ugandan warlord Joseph Kony took advantage of peace negotiations initiated in early 2008 to rearm his followers and to forcibly recruit child soldiers for communities in south Sudan and Congo [i] . Adversarial justice also allows punishment to be proportionate, distinguishing between individuals who planned violence and repression, and those who followed their orders, rather than granting all the same amnesty. Most importantly, treating communal and political violence as a crime sends a message to other would-be warlords and dictators, both at home and abroad, that justice will not be denied; the easy assumption of amnesties will only encourage future violence. [i] “Lord’s Resistance Army uses truce to rearm and spread fear in Uganda”, The Times, 16 December 2008. |
training-law-ilppghsuta-con01b | A Truth and Reconciliation process provides a national forum for facing up to the past. It places responsibility for resolving the tensions latent in post conflict scenarios in the hands of the parties to that conflict [i] . The ICC, by contrast, represents an international intrusion into the moral discourses of post conflict societies. War crimes tribunals for the Balkans and Rwanda have taken years to achieve a very small number of convictions. They can often appear to have been hijacked by international bodies such as NATO or the UN, in an attempt to impose a solution from outside (to salve consciences in the west) without providing a real understanding of the particular circumstances of the individual nation. [i] “The voice of ‘Prime Evil’”, BBC News Online, 28 October 1998. |
training-law-ilppghsuta-con02a | Reconciliation can be used to conceal political corruption and patrimony Truth and Reconciliation commissions are a mask, behind which political bargains can be made that allow the guilty to go free [i] . Power is traded in return for amnesty. People may be required to confess to their crimes (although in South Africa middle-ranking bureaucrats were the main scapegoats, while their political masters mostly escaped close scrutiny), but they will not be punished for them [ii] . South Africa is a unique exception to the rule that reconciliation commissions do nothing more than legitimatise dealings between equally dubious and unaccountable elites where violence was often committed by agents of the state for purely political reasons, and where the end of repression was negotiated rather than brought about through victory for one side. Elsewhere political and criminal or economic violence are hard to separate (e.g. Sierra Leone, Cambodia), and violence was ended by victory for one party, often with external help (e.g. Sierra Leone, Cambodia, again, but also Rwanda). [i] “’I cannot betray Kony’ – Museveni”, The Daily Monitor, 16 August 2006, [ii] Apartheid did not die. 1998, John Pilger, johnpilger.com. |
training-law-ilppghsuta-con03a | The South African reconciliation commission has proven itself to be ineffective Frequently cited as the most successful post conflict restorative justice programme in recent history, South Africa's Truth and Reconciliation process has failed in a number of ways. Polls show that different races are more polarised after its work, rather than less [i] , so reconciliation seems to be failing [ii] . As the journalist Peter Storey comments, “some have decried the absence of repentance in many amnesty applications [made to the South African Truth and Reconciliation Commission]. Apart from the fact that this is a further damning judgment on perpetrators, the legislation does not require repentance, only the truth.” Storey notes that “The issue of amnesty has been… controversial. Some victims’ families challenged these provisions in South Africa’s highest court[s].” [iii] The South African Reconciliation Commission also promised financial redress for victims and their families, but this has largely failed to appear. [i] Ubu and the Truth Commission. Director’s note. 2007, Jane Taylor, University of Cape Town press [ii] “Antonette’s story”, BBC News Online, 29 October 1998. [iii] “A Different Kind of Justice: Truth and Reconciliation in South Africa”, The Christian Century, 10 September 1997. |
training-law-ilppghsuta-con01a | International and inter-governmental bodies are better able to secure justice for the victims of war crimes The United Nations, the ICC and other international bodies have great experience and expertise in dealing with post-conflict situations, including running war crimes trials. They can draw upon the lessons to be learnt from other countries and apply them in partnership with local politicians and lawyers. The involvement of inter-governmental bodies is important because conflicts are rarely entirely domestic, often spilling over into neighbouring states, as in the Balkans, South-East Asia and West Africa. International courts can also avoid the suspicion of bias and corruption which an entirely national process can suffer. Post conflict societies are often lack a stable professional class. Access and cooperation with lawyers, clergy and academics is often necessary to ensure that a reconciliation commission can run effectively and can verify the testimony that it hears. The international community can provide skilled individuals of this type. |
training-law-ueegllghwhsl-pro02a | The bully's intentions are irrelevant In criminal law, the establishment of culpability does not always depend on the intentions of the perpetrator. If, during a fight on a train platform, I shove someone and that person falls on the tracks and is killed by a train, I will be guilty of manslaughter, whether I intended to kill the person or not, because the harm caused by my actions is so great [1] . The same applies to bullying. Bullies try to hurt their victims through their actions, either physically or psychologically. Whether the bully intended for the victim to die or not, is irrelevant. The bully’s actions were responsible for the victim taking her own life. [1] Ashworth, Andrew. Principles of Criminal Law, Chapter 7.5. Oxford University Press. 2009. |
training-law-ueegllghwhsl-pro01a | The law should always punish actions that inflict serious harm - whether physical or psychological Bullying can inflict serious psychological harm on its victims, especially in the case of young people. It leads to low self-esteem, depression, and for some kids it leads to suicide [1] . Bullied children are almost 6 times more likely to think about or attempt suicide [2] . This phenomenon has been termed ‘bullycide’ and the law should recognize it. Many forms of behaviour that result in the death of another person are criminal, from murder to negligence. It is the duty of the law to brand such behaviour as unacceptable, deter future incidents, punish the perpetrators, and offer comfort to victims: in this case, the families of those who lost their life to bullying. [1] O'Moore, Mona, “Understanding School Bullying: A Guide for Parents & Teachers”, Veritas, 1, Dublin, 2010 [2] Kim YS, Leventhal BL, Koh YJ, Boyce WT “Bullying Increased Suicide Risk: Prospective Study of Korean Adolescents”. Arch Suicide Res. Vol. 13, No. 1, pp15-30. 2009. |
training-law-ueegllghwhsl-pro01b | The law should only punish people for their own actions, not those of others. It’s fine to punish bullies for their bullying behaviour, if it is against the law. But ‘bullycide’ implies the bully bears individual responsibility for the death of the victim, just like in the case of murder or manslaughter. But the bully did not pull the trigger, the victim did. While the bully may have intended to harm or berate the victim, she made no attempt on the victim’s life, and cannot be treated like a murderer, who intentionally took the life of another. |
training-law-ueegllghwhsl-pro03a | The damage wrought by bullying is cumulative Bullying is truly dangerous when it becomes persistent. Any one incident of it, while unpleasant, may be entirely tolerable for the victim. But being unrelentingly subjected to this treatment for months on end can make life truly unbearable and lead that person to suicide. In the case of Phoebe Prince, an Irish immigrant who was bullied at her US high school, she was called expletives, threatened, and even hit with a beverage container before she finally took her life [1] . She may have survived any one of those taunts, but it was their cumulative effect that was too much to bear. Conversely, punishing her bullies for any one act will fail to acknowledge the much greater extent of the overall harm. A different, special offence is needed to recognize the magnified level of harm caused by bullying. [1] Eckholm, Eric; Zezima, Katie. “Documents Detail a Girl’s Final Days of Bullying”. The New York Times. April 8, 2010. |
training-law-ueegllghwhsl-con01b | Under this law, bullies would be held accountable for their own actions, not those of the victim. The law wouldn’t have to equate them with murderers, punish them as harshly, or suggest they bear sole and full responsibility for the victim’s death. But it would make it clear they bear some responsibility for the outcome, and that they should be punished for their role. If they are children, they can be prosecuted as juvenile offenders and given less harsh punishments, like community service. |
training-law-ueegllghwhsl-con02a | Conduct offence Defining bullying would be nearly impossible. Spreading rumours, giving someone the silent treatment, inviting all your classmates but one to a party, expressing a religious belief about someone’s sexuality, eye rolling, making faces, these can all be hurtful and perceived as bullying [1] . Yet this is perfectly legal behaviour. Criminalizing bullying would amount to criminalizing these acts. They may be offensive, they may even be hurtful, but these gestures should never, ever constitute criminal behaviour in any society that is concerned with human rights, freedom of speech, and of expression. Throwing someone in prison for spreading rumours or eye rolls might be worthy of a totalitarian state, but not a liberal democracy. [1] Bolton, José, and Stan Graeve. No Room for Bullies: from the Classroom to Cyberspace. Boys Town Press. 2005. |
training-law-ueegllghwhsl-con03a | It is difficult to make a direct, legally sound link between a bully's behaviour and a victim's suicide Many of the children and adolescents who take their own lives allegedly as a result of bullying have a far more complicated background. Some already struggle with depression, and have unstable family situations that make it hard to turn to their parents for help with their problems. Phoebe Prince, for example, was taking anti-depressants, was devastated by her parents’ divorce, was self harming, and had already attempted suicide after a break up. And that was long before she was allegedly bullied to death [1] . She was a very troubled young woman, and anything could have pushed her over the edge. It would be hard to find the bullies criminally responsible for her death. [1] Bazelon, Emily. “What Really Happened to Phoebe Prince? Entry 2”. Slate. July 20. 2010. |
training-law-ueegllghwhsl-con01a | Individuals should only be held responsible for the consequences of their own actions In any free and democratic society, criminal law should only hold people accountable for the things they do, not for the actions of others. We are all autonomous, moral agents who make decisions and have to live with their consequences and the consequences of our actions. While it might be justified to punish bullies for their bullying behavior, if it breaks the law, we cannot hold them accountable for another person’s decision to commit suicide. |
training-law-ueegllghwhsl-con02b | We criminalize behaviour when it is truly harmful. Especially when it is so harmful that it leads to someone losing her life. Eye rolling and gossip are not harmful enough to be criminal offences. Nor would they be under this law. What would become a criminal offence would be the sustained and prolonged torment of another person to the point of pushing her to committing suicide, whatever forms that torment takes, whether it’s gay slurs, or physical threats and insults. It has also long been established that there are limits to the freedom of speech or expression we enjoy, if that can result in the direct harm of others. For example, we don’t allow people to incite violence against others. |
training-law-lgsghwlp-pro02b | Market mechanisms are inappropriate for the exchange of some goods, such as children, medically needed bodily substances or organs, and sex. These are precious goods, and we should not allow citizens to alienate these goods for payment. Instead, the terms of alienation should protect the critical interests of all involved. While sexual relationships serve legitimate needs, it does not follow that we should be able to purchase them. Having children serves legitimate needs, but we do not think that people should be able to buy children. Buying sex robs the provider of dignity and the right to sexual autonomy. Moreover, people are not entitled to some goods simply because they have money. If we allow money to determine who can have children, donated organs, or sexual intimacy, then this will lead to unfair distributions. Market mechanisms may eclipse other forms of exchange, and deprive those without significant wealth of the means to happiness. |
training-law-lgsghwlp-pro01a | Prohibition does more harm than good Criminalizing the acts of selling and buying sexual services does not protect those who sell or buy such services, but rather pushes these activities underground. While market exchanges of sexual services involve some risk-taking, the risks are increased and compounded when such markets are prohibited. When selling and buying sex is illegal, those participating in these exchanges cannot, or simply do not, seek the protection of the law when their rights are violated. Because crimes against sex workers or their clients are often unreported, and when reported often not investigated, predators and rights violators can take advantage of others without fear of arrest and punishment. Moreover, because criminalization forces sex work into remote and invisible corners of society, sellers and buyers are less able to insure their safety and protection. For these reasons, laws criminalizing sex markets amplify the risks sellers and buyers face when they participate in sex market transactions. The main purpose of criminalizing sex markets is to protect those who enter such markets from harm. Yet the harms of paying or accepting money for a good that can be legally exchanged for free are far less than the harms that result from the rights violations that often occur (robbery, battery, sexual assault, murder) when sex markets are pushed underground. |
training-law-lgsghwlp-pro01b | The fact that prohibition cannot prevent prostitution is not an argument against prohibition. We have laws prohibiting murder, and yet murders happen. Our laws deter some murders and they express our society’s moral outrage regarding murder. Similarly, laws prohibiting prostitution deter some prostitution and express our society’s moral condemnation of sex for hire. These laws do not create harms, rather prostitution itself creates harms, by robbing those who participate of self-respect, and contributing to the spread of sexually transmitted diseases. It is inevitable that laws prohibiting prostitution will make it riskier to engage in prostitution, as this is the purpose of such laws: to provide disincentives to those who might otherwise engage in this activity. |
training-law-lgsghwlp-pro04a | Legalization has benefits for society Removing criminal penalties from the sale or purchase of sexual services, and regulating sex markets so that they protect participants and non-involved third parties, would be socially beneficial. In particular, sex enterprises and businesses could be made safer for workers, clients, and the communities in which they operated. By allowing sex businesses to operate openly, providers, clients, and business owners can become law-abiding, productive citizens, who contribute to their communities. Sex businesses and workers would pay taxes, and other licensing fees. Business owners would be expected to comply with standard business laws and regulations. Moreover, the government could enact special regulations appropriate to this industry, such as age restrictions on workers and clients, and mandatory condom use. The resources that are currently allocated to arrest, prosecute, and incarcerate sex workers and clients could be reallocated for better uses. For example, these resources could be used to better address the sexual abuse of minors, sexual assault, substance abuse, mental health problems, and the many public and individual needs that go unmet. |
training-law-lgsghwlp-con04a | Markets in sex would corrupt non-market sexual relations, turning women and girls into commodities Markets in sex are shaped by values that differ from non-market sexual relationships. Market sexual transactions are not structured by the ideals of fidelity and exclusivity between social intimates, but rather by the ends of profit maximization and mutual benefit among strangers. The goods exchanged in a market are interchangeable with other goods, in ways that maximize profit and mutual benefit. When these goods include sexual services, the sexual services of one provider will be interchangeable with those of another. The position of seller or buyer in a particular market is often determined by one’s gender, class, race, and nationality. In sex markets, sellers are typically female, and buyers are typically male. Race, class, and other social hierarchies also shape one’s position in a sex market. Because the sellers in sex markets are often people who are disadvantaged by their gender, class, race, or nationality, the existence of markets in their sexual services will promote the idea that the sexual capacities of women (and other disadvantaged groups) are goods that are interchangeable and exploitable. The idea that the sexual capacities of women (and girls) can be accessed as market goods or commodities will shape attitudes toward women and girls who do not enter sex markets as providers. In this way, the values that structure markets in sex will spill over into non-market sexual relationships, and lead men to regard women as replaceable goods rather than unique human subjects. |
training-law-lgsghwlp-con03a | Moral sex requires more than informed consent, and society should uphold moral values Moral sex requires treating others not merely as a means to our own ends, but as beings with ends of their own. This means that we are morally required to consider the needs of our sexual partners and not only our own selfish desires. In market sexual transactions, the client merely pursues the satisfaction of his own desires, and therefore treats the service provider as a means to his own ends. Because prostitution inevitably involves the instrumental and immoral treatment of others, toleration of prostitution involves the toleration of immoral behaviour. Society should uphold moral values by banning prostitution. |
training-law-lgsghwlp-con01a | Prohibition prevents harm by substantially curtailing markets in sex The good of sex when offered as a gift is not the same good when it is bartered. Taking or offering money cheapens and deforms the good of sexual intimacy, which when shared with many on the open market diminishes its value. Moreover, while the benefits of commoditized sex are questionable, the harms are significant. Those who engage in such exchanges diminish their capacity for genuine sexual intimacy, while damaging their physical, emotional, and mental health. Moreover, the harms of market sexual transactions often affect non-involved third parties, such as the spouses or lovers of sellers and buyers. Because the harms of market sex are long lasting, though sometimes distant, it is appropriate for society to intervene to prevent these harms. Markets in sex pose a public health threat, just like markets in dangerous drugs. Prohibition will reduce the number of people who engage in market sexual transactions, and for those who do participate, there are ways to minimize violations of their rights. |
training-law-cplghwsdjr-pro02b | The overriding objective of the justice system is to ensure that the innocent go free, not that the guilty are punished, and the system should be orientated around that objective. Ex post-facto confessions do not make someone ‘clearly guilty’ as false confessions can arise for a number of reasons, from boasting to an innocent misstatement. It is also wrong to assume that new evidence is better evidence. The longer a trial takes place after a crime the less strong the evidence gets; memories get weaker, people go missing, evidence can be damaged etc. There is also the problem that in a re-trial any tactical advantage of ‘ambushing’ a witness in cross-examination is lost because they know that the ambush is coming. There are therefore a multitude of reasons why retrials are less likely to achieve convictions than a well prepared first trial. |
training-law-cplghwsdjr-pro03b | Such restrictions on double jeopardy would not be effective in practice, for they attempt to put a value on the relative importance of crimes without using either the prospect of re-offending or the impact on victims. As QC Geoffrey Robertson noted in response to the Law Commission's finding, it is irrational to confine the possibility of re-trials to 'serious crimes' alone and exclude "repetitive, professional" crime like armed robbery. If the intention of the repeal is to bring both offenders to justice and prevent further crime, it is exactly the 'repetitive, professional' criminals who should be targeted. |
training-law-cplghwsdjr-pro04b | Faith in the justice system is derived from it being been to be fair and even-handed. It is not merely faith on the part of victims that offenders will be found guilty, but faith on the part of innocent defendant that they will be found innocent. The double jeopardy rule reinforces faith in the justice system because it forces the prosecution service to make the best possible case that they can – because they only get one shot to make it. It also means that defendants can feel secure in submitting themselves to trial on the basis that an acquittal represents complete security from future accusations. Abolishing the double jeopardy rule would actually undermine confidence in the system – overturning an acquittal is an explicit statement that the system produces false negatives. If it becomes widely accepted that a not-guilty verdict is meaningless then the principle of the presumption of innocence loses its force. |
training-law-cplghwsdjr-con03a | Double jeopardy ensures defendants are not brought to trial on weak grounds The implications of this should be looked at carefully. This would grant police and the prosecution the right to prosecute an individual if the evidence against them can be ‘reanalysed.’ Surely almost all cases could see such ‘improvement in investigatory techniques,’ allowing the state to pursue individuals at will. Presumably this ‘generation’ of techniques isn’t the last; why won’t the same logic hold in asking for a third trial? A fourth? A fifth?…Subsequently, if the ‘double jeopardy’ rule is scrapped, police work will be sloppier, because police detectives will know that the insurance of a second trial exists. The ‘one-shot’ rule forces investigations and prosecutions to be of as high a quality as possible. The abolishment of double jeopardy would be ‘merely a shortcut to prosecutors seeking unlimited re-trials until they get the verdict they want’ 1. Courts cannot be permitted to be tied up in such cases, nor can prosecutors be allowed to destroy the lives of defendants by enforcing such constant emotional turmoil. 1. Bosscher, M. (2006, November 10). Danger in abolishing double jeopardy rule. Retrieved May 12, 2011, from Online Opinion: |
training-law-cplghwsdjr-con01a | The rule of law means less if it is being constantly overturned Respect for the law will diminish if criminal verdicts exist in a perpetual state of uncertainty. We need to be protected from the state in other ways, too - from the vindictive or obsessed policeman that will pursue a case because he 'knows' the accused, properly acquitted in a court of law, to be guilty nevertheless. The nature of our police force means that these instances are inevitable as it imparts a strong cognitive bias onto our policemen to look for guilt - so unless we mandate a rule determining when a line of investigation has to end, police will continue to focus on their chosen 'perpetrator' until they get the result that they have decided is correct. As Matthew Kelly QC notes, removing double jeopardy restrictions could 'lead to prosecutions routinely seeking a second bite of the cherry, if a case flopped first time for good reason.'1 Given that we are talking about a tiny proportion of cases, it is better to have the principle of finality - because the police will spend vast amounts of time and effort and money on case that are already resolved, to the detriment of crimes that will receive less attention. Therefore successful detective work, and subsequent conviction rates, will increase with the double jeopardy rule in place, not decrease, for police cannot allow themselves to remain rooted in closed cases. 1 BBC News. (2005, April 3). Double jeopardy law ushered out. Retrieved May 12, 2011, from BBC News: |
training-law-cplghwsdjr-con02b | The people who are protected by this rule are the guilty who are wrongly declared innocent; the murderer whose voice couldn’t be identified on the tape; the rapist who couldn’t be identified because DNA testing wasn’t sufficiently developed at the time; the robber who couldn’t be identified because facial mapping technology didn’t exist to show their face beneath the mask. People may in unguarded moments confess to crimes for which they have been found not guilty. Why would the state be in their favour and against the victims that so deserve justice - why should victims suffer because evidence didn’t emerge until later? The test for guilt will still be 'reasonable doubt' - defendents who are genuinely innocent have no need to fear because they will still be found innocent. |
training-law-ilhwpoa9apus-pro02b | While they undermine the court, they are an inevitable quid pro quo of part of diplomatic relations with the US, the last remaining superpower. While impunity is not ideal, it is better than not signing and taking part in international criminal justice at all. Creating BIAs does not mean that the countries in question will absolve their own citizens of wrongdoing instead they are likely to be tried at home and in some cases may still be handed over to the ICC. |
training-law-ilhwpoa9apus-pro03b | The United States is not under any form of responsibility to other states to provide them with military and other aid. Aid has always been provided with strings attached to those whose receipt of aid is considered beneficial. It is within the purview of the US to decide who they give aid to, based on their own priorities. This is simply part of the diplomatic process. If the US wishes to provide aid to countries that sign up to treaties then this is its right, it is perfectly normal to provide a sweetener to encourage states to sign up while punishing those that don’t. This then is a good reason why these European states should not pull out of their BIAs. To do so would mean losing the financial benefits being provided. At the same time it would also show that these states are not to be trusted when they sign up to international agreements. |
training-law-ilhwpoa9apus-pro01a | The BIAs are at best bad faith compliance, and worst a blatant violation of the Rome Statute The European states have signed and ratified the ICC Statute and should honour it, to do otherwise makes a mockery of the ICC which those states supported throughout its genesis and at least claim to continue to support. Article 98(2) was only intended to be a factor where there are other agreements such as status of forces agreements (an agreement entered in to between two states, one having military forces in the other voluntarily, such as British troops in Germany). It was not meant as a broad-brush way for states being able to grant selective immunity to citizens of non-member states who have committed genocide or crimes against humanity inside the jurisdiction of an ICC member state. Signing an Article 98 Agreement is at best accepting foreign instigation of the abuse of process of a treaty. At worst it is accepting an illegal attempt at circumventing the treaty. |
training-law-ilhwpoa9apus-pro01b | The text of the Rome Statute is clear. Article 98(2) is unspecific as to the variety of international agreements that it covers, unlike the narrower Article 98(1) covering diplomatic immunity. Article 98 Agreements are a tool that is a legitimate method of the US ensuring that US citizens are not subject to trial and punishment by a court which the United States is not a part of. This would run against the principle that a treaty only affects states that have signed and ratified it, rather than any others. |
training-law-ilhwpoa9apus-con03b | Theoretical impunity is still impunity. The concept that any entity should be given special treatment by the law runs contrary to principles of the rule of law. If such immunity is not going to be needed then there is very little reason for the agreements in the first place and there should be little objection to getting rid of them. |
training-law-ilhwpoa9apus-con02a | Withdrawal from Article 98 agreements would hamper relations with the US Many of the states in Europe that have signed up to BIA’s are applicant to NATO which leaves them in a difficult position when it comes to withdrawing from such a treaty. While NATO members are exempt from the punitive provisions aimed at states who do not have Article 98 agreements, in order to join NATO the state will need the support of the United States. Such support will be less forthcoming if that country has abandoned an agreement with the United States such as a BIA. Linking issues is not unusual in international relations whether it is linking multiple issues in a single larger negotiation or blocking progress in joining an organisation as a result of a single issue. Perhaps the best example of this occurring is Turkey and the EU where Turkey’s membership has been held up by its dispute with Cyprus over the northern half of the island. [1] Even if the United States were to allow an application to NATO to proceed despite the abandonment of their bilateral treaty relations will surely be damaged. No state is going to welcome another state unilaterally withdrawing from a treaty they have signed. The Eastern European states value their relationship with the United States due to that country’s commitment to their independence and support during the early 1990s as the soviet bloc broke up. It would not make sense for these small independent countries to risk relations with the world’s most powerful statements over an agreement which is unlikely to ever have a practical relevance. [1] Rinke, Andreas, and Solaker, Gulsen, “Cyprus remains stumbling block in Turkey’s EU ambition: Merkel”, Reuters, 25 February 2013, |
training-law-ilhwpoa9apus-con01a | Article 98 Agreements are a crucial tool in maintaining American national sovereignty As a key part of its national sovereignty, the US should not be required to have its citizens subject to the ICC if it does not ratify the treaty itself of its own choice. It is an accepted principle, as enshrined in Article 34 of the Vienna Convention on the Law of Treaties, [1] that a treaty only binds the states that have consented to it. Binding citizens of states who are not parties, who may be acting under the orders of a state arm, such as a military, when in the territory of state parties, violates that state’s sovereignty. There have been attempts to put US soldiers on trial. Italy for example put Mario Lozano on trial for the killing of an Italian agent in Iraq, the US maintained he was doing his job at a checkpoint and provided warnings while the Italians considered it murder. In this case the United States was able to refuse to hand the soldier over but BIA’s ensure that such actions will not be a concern whenever troops are deployed abroad. [2] Bilateral Immunity Agreements are a legitimate tool to ensure that this key principle is protected in the case of the International Criminal Court – this has no bearing on the nations that desire to be part of the International Criminal Court. [1] United Nations. Vienna Convention on the Law of Treaties, 23 May 1969, [2] “Controversial Trial Opens in Rome: Italy Tries US Soldier For Iraq Murder”, Spiegel Online, 17 April 2007, |
training-law-cplghwap-pro02b | The police should not be reacting in such a way that they exacerbate those problems. By routinely arming its police officers, the state effectively legitimizes the weapon as a symbol of authority. Whether or not this is pragmatic, it is an implied affirmation of the criminal sub-culture, which will accordingly be strengthened. The argument about a rapid increase in gun crime in the UK depends upon a very limited and selective use of crime data. Recorded gun crime did indeed rise by close to 105% between 1998 (when handguns were banned in the UK after the Dunblane tragedy) and 2003, but a large proportion of that increase is attributable to air weapon misuse and non-firing replica weapons. [1] Since then the increase has largely stabilised and even fallen. A temporary trend, now brought under control, is not necessarily a strong argument for changing, for ever, the nature and character of British policing. By this policy—especially in the absence of a Constitutional right for citizens to bear arms—the role of the police is essentially defined in opposition to at least part of the citizenry. This can be contrasted to the more common expectation that police and citizens operate under essentially common rules, for shared values and that policing is undertaken in a spirit of the minimum use of force and by ‘public consent’. [1] Squires, P. 2008 Gun Crime: a Review of Evidence and Policy, Centre for Crime and Justice Studies |
training-law-cplghwap-con03b | Violence is already escalating and we need a robust response. Many communities are vulnerable to postcode gangs comprised of young people aged 14 and upwards who are armed and dangerous and making their areas unsafe to live in. Only a robust and proactive response from the police such as patrolling such territories with firearms so as to protect themselves and innocent civilians will address this problem. |
training-law-cplghwap-con04a | Arming the police does not deal with the causes underlying violence The real issues that cause crime usually lie in societal issues and a lack of a proper rehabilitation effort in the justice system. The root problems are therefore not being solved by arming the police. This policy only masks the problems societies face. Governments need to make more long-term, sustainable investments. They should be attempting to change the culture that creates violence, providing jobs for those who are in poverty making sure that everyone feels they have a stake in society, rather than rely on a “quick fix” plan that tackles none of the real issues. |
training-law-cplghwap-con03a | Arming the police will cause an escalation in criminal violence The British Crime Survey maintains that gun crime is very rare throughout the UK. The reason communities are so afraid is that the over-zealous media continually hype up individual incidences of gun crime in order to attract more readers. The statistics show that knife and gun crime are overrepresented in the news, with 25% of newspapers stories on average being dedicated to crime. [1] Because of this exaggerated coverage, there is a moral panic in which people think that if they are attacked it will be by a knife-wielding maniac. This is simply not true. There is more chance that you will be in a car accident than be attacked on the street. Introducing guns onto the streets, even in a legal and well-intentioned manner is a trigger for increasing the number of guns that gangs and organised crime groups bring onto the street. [1] Media Awareness Network, ‘TV Crime Facts – Teaching Backgrounder’ , accessed 20 September 2011 |
training-law-ucgllghwbg-pro06a | Gambling is associated with other forms of addiction and harmful behaviour Gambling makes people concentrate of winning money. Religious leaders of all denominations see gambling as eroding family values1 because it implies that material goods should be valued above other things like friendships and families. It also sends out the message that success should not necessarily be the result of merit and effort. As a philosophy, ‘gambling culture’ is incredibly dangerous. Those in society who most need to self-improve, never do. Instead, they tie their hopes and dreams to the lottery. There may be the possibility of winning a big prize, but the overwhelming likelihood is that a gambler will lose money. Instead, governments should be promoting values like thrift, hard work and self-reliance rather than encouraging or even allowing gambling to promote its own negative values. 1 Holahan, Catherine, ‘Online Gambling Still in the Cards’, Bloomberg Businessweek, 3 October 2006. |
training-law-ucgllghwbg-pro05a | Gambling affects poor people disproportionately Poor people are more likely to gamble, in the hope of getting rich. In 1999, the National Gambling Impact Commission in the United States found that 80 percent of gambling revenue came from lower-income households1. It is immoral for the state or charities to raise money by exploiting people’s stupidity and greed. Taxing gambling is a regressive tax (this means that the poor pay a greater proportion of their income in tax than the rich), and regressive taxation is deeply unfair. Gambling attracts people with little money who are desperate for a windfall. These are the people who can least afford to lose money. 1 Mark Lange, The Gambling Scan on America’s Poor, Allnet.com, May 3 2007. |
training-law-ucgllghwbg-pro01b | Unlike drugs, gambling is not physically or metabolically addictive. Most gamblers are not addicts, simply ordinary people who enjoy the excitement of a bet on a sporting event or card game. Only a small percentage of gamblers have an addiction. Many more get enjoyment from gambling without problems. The risks of gambling addiction are well known. People can make a conscious choice to start gambling, and are aware of the risks of addiction. |
training-law-ucgllghwbg-pro06b | There is no evidence that gambling makes people not care about others. People do not gamble because they expect to win lots of money. Most gamble as a form of entertainment. Also, there are many areas of life where success is not the result of merit or hard work. Someone born to well-off parents may get many advantages in life without merit or hard work. There are therefore no grounds for thinking that gambling promotes these undesirable values. The desire for wealth one that stems from society as a whole, not casinos. |
training-law-ucgllghwbg-pro04a | Casinos are often used to mask criminal activity Casinos are often associated with crime, particularly organized crime. When it comes to local crimes a study has found that only larceny(theft) liquor violations increased significantly with a small increase in prostitution.1 But comparing statistics probably does not show the real harm; drug dealers and prostitutes operate near casinos – they know that there are a large number of potential clients in the area. Moreover when a gambler is in debt and wishes to continue gambling due to its addictive nature, he or she often turns to loan sharks as no bank would lend to them. Casinos can therefore be devastating to neighborhoods. It would of course be wrong to assume all gamblers are criminals, although there is an increased possibility that gamblers in debt could turn to criminality through illegal borrowing. These loan sharks themselves usually have links to organized crime, in some cases are actually run by organized crime,2 and use brutal methods to reclaim their money. By banning gambling the opportunities for loan sharks to offer their services is greatly reduced due to a lesser amount of gamblers in debt, as are the opportunities for prostitutes therefore reducing criminal activity in the areas surrounding casinos. 1 Stitt, Grant, et al., ‘Does the Presence of Casinos Increase Crime? An Examination of Casino and Control Communities’, Crime & Delinquency, Vol. 49, No. 2, April 2003, pp.253-284, P.279 2 Jordan, Mary, ‘Mafia loan sharks making a killing’, Washington Post, 15 March 2009. |
training-law-ucgllghwbg-con02a | It is impossible to effectively ban gambling When gambling has been banned, people have just found a way round the ban. They use internet sites based in other countries. A good example being the Ukraine, who in May 2009 made gambling illegal, this included internet gambling. By July 2009, over 500 illegal gambling operations were established, where 6,000 slot machines were confiscated and 216 criminal charges were made in connection to illegal gambling.1 This illustrates how banning gambling can creates a thriving underground market. It is better to legalize and regulate online gambling than to drive gamblers to poorly-regulated foreign operators. Regulation can reduce the problems identified by the proposition. For example, online gamblers can be required to give personal details when registering (e.g. occupation, income). If this information suggests he or she is spending more than they can afford, the company can block their credit card. 1 Kyiv Post, ‘Governmental checks expose over 500 facts of illegal operation of gambling establishments’, 20 July 2009. |
training-law-ucgllghwbg-con02b | Gambling is not impossible to ban, although it will not be easy such examples of states that have banned it show that it is possible and although illegal activity may arise from the ban this can also be stopped by though rules. If government did not ban activities where some may find a way around it, nothing would be banned at all. Making an activity more difficult to pursue will still reduce the number of those who take it up. It is not impossible to put effective deterrent steps in place, such as the recent US ban on American banks processing credit card payments to internet gambling sites. |
training-law-ilpwhbujufp-pro02b | This would be an argument in favour of preventing countries from developing any deterrent at any time, because it would make them easier to invade. It presumes, firstly, that it would be a good thing for the United States to be able to invade countries that do things it does not like at will, and secondly that it assumes that deterrence will not deter the initial invasion in the first place. The main reason why great powers involve themselves in wars, is because many smaller countries are not able to fight off larger ones using their own resources and so the great power expects an easy victory assuming it can avoid intervention by other great powers. Jammu and Kashmir could not stand up to the Indian army in 1947 and Kuwait could not stand up to Iraq; Georgian was unable to mount armed resistance against a Russian incursion and neither was Chechnya. Nuclear Weapons are a great equalizer, and if one consequence of Iran developing Nuclear weapons is that all of her neighbours do so as well, then war will become far less likely, and US intervention will become unnecessary. As a consequence, in the long-run, Nuclear proliferation is a self-correcting problem. |
training-law-ilpwhbujufp-pro01a | The United States has an obligation to protect international stability due to its unique military strength. The Nuclear Non-Proliferation Treaty is one of the lynchpins on which the current Western-led international political and diplomatic order is dependent.1,2 Just as any normal legal system requires laws that are predictable and enforceable, so too does the international system. The Non-Proliferation Treaty provides this level of consistency and control over states’ nuclear assets. In particular, one of those key principles is the assumption that once a country enters a treaty it will abide by its terms. If a country can leave a treaty at will, it means that no policy can be made with any degree of predictability. States are not able to formulate plans for future policies and development strategies if analysts and politicians are prevented from making reliable predictions about neighbouring state’s behaviour, economic policies and territorial ambitions. This is particularly important with treaties relating to armaments, and of vital importance when it comes to Nuclear Weapons, because other countries choose to participate in military alliances and actions based on such assumptions. Historically, arms build-ups and wars have occurred when the Great Powers fail to uphold the international legal system – fail to regard it as binding and inherently valuable and consequential. For example Germany’s willingness to disregard Czechoslovakian sovereignty prior to World War II. For that reason the United States has a vested interest in upholding the principles of the Nuclear Non-Proliferation Treaty. This is because the US is the major beneficiary of the present international system, both economically and politically. Economically, the major loser in any upheaval around the world is almost guaranteed to be the United States or its corporations. However, the political incentives for the USA to continue upholding the non-proliferation treaty- by force if necessary- are far greater. A failure on its part to act will not just lead to nuclear proliferation, but also undermine other treaties banning chemical weapons and guaranteeing human rights as nations’ realize they are only pieces of paper. 1. ‘The Treaty on the Non-Proliferation of Nuclear Weapons’, 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), 1 July 1968, 2. Kasprzyk, Nicholas, ‘Nuclear Non-proliferation and Regional Changing Strategic Balances: How Much Will Regional Proliferation Impinge Upon the Future of the NPT?’, in Krause, Joachim and Wenger, Andreas eds., Studies in Contemporary History and Security policy, 2001, |
training-law-ilpwhbujufp-pro03a | Nuclear weapons can fall into the wrong hands. Even if states do not use nuclear weapons themselves, or attempt to threaten their neighbours, they can sell their technology to other, less savoury states and individuals. This was a particular problem with Pakistan. The former head of the Pakistani nuclear program, AQ Khan, sold technology on detonation mechanisms and Uranium enrichment to North Korea and Iran. [1] Iran is also likely to be willing to pass on its own nuclear information to other states, particularly Assad’s Syria. [2] Such weapons could also find their way into the hands of terrorists. Iran has close links to Hezbollah and Hamas which it funds substantially, and a strong desire to hurt Israel. [3] North Korea has close links to a number of nasty groups ranging from drug cartels to Islamist terrorists. [1] Kerr, Paul K., and Nikitin, Mary Beth, ‘Pakistan’s Nuclear Weapons: Proliferation and Security Issues’, Congressional Research Service, 30 November 2011, pp.20-23, [2] Gekbart, Jonathan, ‘The Iran-Syria Axis: A Critical Investigation’, Stanford Journal of International Relations, Vol. XII, No. 1, Fall 2010, [3] Bruno, Greg, ‘State Sponsors: Iran’, Council on Foreign Relations, 13 October 2011, |
training-law-ilpwhbujufp-con03b | Not all states are inherently rational, either by our standards or generally. North Korea is a xenophobic state based on the belief that they are racially and ideologically superior to all other states. [1] A government that does not consider its enemies fully human in its official propaganda is unlikely to blanch at the prospect of nuking them, even at their own expense. Even seemingly rational states make tactical mistakes, like Saddam Hussein did when he invaded Kuwait. Nuclear Weapons raise the stakes, and have the potential to make the consequences of those errors far more serious and deadly. Furthermore, MAD does not operate solely due to the possession of Nuclear Weapons, but rather it requires that a state possess a “Second-Strike” ability. A “second Strike” ability means that a country has the capacity to nuke another country after it has already been attacked, whether through hardened silos or submarine launched warheads. Without such an ability, a state like Israel would risk losing its nuclear deterrent in an Iranian attack, and would therefore have every incentive to strike first if it thought such an attack might be about to occur. Iran, which is far less likely to be able to develop a “Second Strike” capability due to financial and technological limitations, would in turn almost constantly face a “use it or lose it” situation of its own. [1] Myers, B.R., ‘Excerpt: The Cleanest Race’, The New York Times, 26 January 2010, |
training-law-ilpwhbujufp-con01b | Regardless of its origins, the Nuclear Non-Proliferation treaty is the cornerstone of an international system that has prevented the rapid proliferation of Nuclear weapons for nearly half a century. The dangers of Nuclear weapons, especially in the wrong hands, mean that the ownership of nuclear weapons is an issue which transcends moral standards of “fairness”. It may be true that the treaty should be revisited in the case of say India or Brazil, but this debate is not about the nuclear ambitions of fundamentally stable, democratic states that would willingly comply with all of the terms of the non-proliferation treaty if they were permitted to become signatories. Rather, the question of America’s right to act to enforce the treaty should focus on rogue states that present a significant danger to their neighbours, and whose acquisition of such weapons is likely to destabilize regional balances of power, and make the entire world less secure. Iran, Syria and Pakistan’s use of the language of anti-colonialism is a sign of nothing more than political opportunism. |
training-law-ilpwhbujufp-con02a | No country has an inherent right to invade or use aggression against another. Given the moral bankruptcy of the NPT, and existing views of the United States in much of the developing world, [1] any move by the United States to prevent other nations from developing nuclear weapons by force will be seen for what it is: an act of neo-colonialism. This would be the case with any act to enforce a treaty that is considered unfair towards most of the world. This is especially true in areas where there is a long history of US support for regional actors who are less than popular. In moving against Iran, the United States will be perceived as a stalking horse for Israel, whilst any efforts to invade North Korea Would cause great alarm in China as well as in neighbouring South Korea despite being a U.S. ally where some Koreans believe the US is more of a threat to the nation than the North. [2] In both cases, the image of the US in the region will be badly damaged, and the United States will face a hostile insurgency within the countries that they invade. [1] Pew Global Attitudes Project, 2011, [2] Larson, Eric V. et al., Ambivalent Allies? A Study of South Korean Attitudes Towards the U.S., RAND Corporation, March 2004, p.93 (n.b. before north detonated nuclear bomb) |
training-law-ilpwhbujufp-con04a | [Iran specific] Iran has not invaded any other country in three and a half centuries; the same cannot be said for US allies including Israel, Pakistan, etc. For all the censure Iran has faced as a rogue state, it has not, in fact, invaded another country for more than three centuries and despite internal aggression against western embassies the Iranian revolution seems to have made little difference. On the other hand, it has faced invasion on numerous occasions, whether from Russia, Britain or Iraq. Both Britain – whom the Iranians are still extremely suspicious off due to events such as the 1953 coup against Prime Minister Mosadeq [1] – and Russia – who together with Britain occupied Persia during world war II [2] - are nuclear weapons states. Iran therefore has legitimate defensive reasons for developing Nuclear weapons. While Iran’s current government has pursued destabilizing policies in Lebanon and Israel/Palestine, the presence of Russia on its northern border and tensions with the United States justify their development. This is one reason why Iran’s nuclear program predates the current government and in fact goes all the way back to the Shah’s time. [3] Rather than being the product or continuation of Iran’s policies in the region, the nuclear program is independent of them, and justified on those basis. [1] Abrahamian, Ervand, ‘The 1953 Coup in Iran’, Science & Society Vol. 65, No. 2, Summer 2001, pp.182-215, [2] Globalsecurity.org, ‘Azerbaijan crisis (1945-1948)’, [3] Milani, Abbas, ‘The Shah’s Atomic Dreams’, Foreignpolicy.com, 29 December 2010, |
training-law-ilpwhbujufp-con01a | Existing international treaties that grant nuclear weapons to the US and other countries no longer reflect the changing global balance of power. The Nuclear Non- Proliferation Treaty is inherently unfair, in that it prevents countries that did not have nuclear weapons as of 1964 from developing them, but makes no effort to force those who already possess nuclear devices to disarm. The result is that the list of countries with such weapons, the United States, Russia, Britain, France, and China, represents the balance of power as it existed at the time that the non-proliferation treaty was drafted. Countries that have entered the club subsequently, like India and Pakistan, did so in violation of the treaty and international law. Any sort of treaty that seeks to limit access to nuclear arms has to provide opportunities for countries like Brazil to enter the “club” as they gain political or economic power. In the absence of any such mechanism the current treaty system is nothing more than a tool of Western dominance in order to keep the status quo which is favorable to the current nuclear powers something which is bound to build up resentment. This would in effect offer not only to the pursuit of nuclear weapons by the targeted regimes, but to the rest of their policies. States like South Africa and Brazil already find it difficult to support a strong international line against Iran [1] due to seeing the inequality of allowing some countries nuclear weapons programmes but seeking to punish others, especially when the nuclear weapons states that are signatories to the NPT have not moved towards disarmament as the treaty stipulates. [2] This would in effect alienate them completely. Second, even if the harm was justifiable by the ends, it would seem that in the long run, invading- or even censuring- every country that attempts to develop Nuclear Weapons in violation of the NPT is impractical as the United States and the rest of the world have de facto admitted by ending sanctions on Pakistan and India in 2001, two years after their nuclear tests. [3] As such, there needs to be a political means that can separate states like Brazil from states like Iran, lest the policy collapse under its own weight. The West, rather than using force, should attempt to repair the existing non-proliferation treaty framework, such that the standards for possession of nuclear weapons are based on behaviour rather than history. [1] Charbonneau, Louis, ‘Q+A: How likely are new U.S. sanctions against Iran?’, Reuters, 9 November 2011, [2] Spektor, Matias, ‘How to Read Brazil’s Stance on iran’, YaleGlobal, 16 March 2010, [3] BBC News, ‘US lifts India and Pakistan sanctions’, 23 September 2001, |
training-law-ilpwhbujufp-con04b | What is not at issue is whether Iran will invade anyone. No one expects that, at least not immediately. Rather, the harm of Iranian possession of nuclear weapons is that they will provide Iran with immunity from retaliation which will encourage it to escalate its Cold War against Saudi Arabia in the Gulf, and increase its assistance to Hezbollah and Hamas. As noted above, Pakistan has in fact behaved in exactly this manner. Safe behind its nuclear shield, it has provided increasingly blatant backing to anti-Indian terrorist groups and opp is right to note that there is little that can be done about that. The best bet is not to allow Iran to do the same thing |
training-law-ilpwhbujufp-con02b | The United States would ideally move with the backing of the world community, but even if that is not present, we think that the United States is more than capable of making clear that it is not anyone’s puppet and that it is intervening solely to uphold international law. Any military action whether justified or not will cause resentment, but this not a reason to let genocide run amok or dictators get away with invasions nor is it a reason to let the same dictators get their hands on nuclear weapons, security is a vital interest whereas being liked by the rest of the world is not. |
training-law-apslpsyhwbbc-pro03b | Rehabilitation programmes are not a panacea – nor are they instantly or reliably effective. The risk of an individual committing crime can only be reduced by long-term engagement with reform schemes. In 2009 violations of parole- the rules, conditions and schemes offenders are required to engage with on being released from prison- led to a third of all state prison admissions in the United States [i] . This being the case, the best location in which to rehabilitate offender is prison. Prison serves, in some cases, to separate prisoners from poverty and desperation, and to help them access the structure and routine that was missing from their lives. Moreover, contrary to the proposition’s argument, offenders are less likely to originate from stable family environments, to have secure employment, or to have the skills that will let them seek employment in the future. Additionally, it does not seem proportionate for a white collar fraudster, whose actions could affect the livelihoods of thousands of individuals, to receive a flogging while retaining his freedom and his assets. Prison also quarantines offenders from the influence of gangs or damaged family structures. Offenders may have difficulty cutting themselves off from close knit social groups of this type; the activities of these groups (drug taking, organised violence) may compete with the positive behaviours fostered by rehabilitation. It cannot be assumed that dramatic changes in an offender’s behaviour can be brought about without a correspondingly dramatic change in their environment and lifestyle. Criminality is as dependent on context and environment as it is on the choices and values of the criminal. If there are minimal restraints put on an offender’s freedom while he rehabilitates, it will be easier for him to avoid complying with rehabilitation programmes. As noted above, the threat of further floggings will not motivate offenders who have become habituated to brutality and violence. [i] “Tackling Recidivism: They All Come Home”, The Economist, 20 April 2011, |
training-law-apslpsyhwbbc-pro03a | Custodial sentences make recidivism more likely A custodial sentence is capable of destroying the relationships and livelihood of an offender. Imprisonment means that an offender will be unable to work and will lose his job, if he has one. Statistics sourced from the Pew Foundation indicate that a criminal record can reduce the likelihood of a black, male American securing a job by up to 57%1. The isolation inherent in imprisonment can lead to the breakup of marriages and to the decay of relationships between parents and children. The stigma associated with a custodial sentence may result in an offender being shunned by his friends, his family and his community. He will, in effect, be left with no sources of support once he is released. A former inmate will be left with no incentive to adjust his behaviour and disengage with criminality2. The Pew Foundation notes that 43% of offenders in the United States were returned to prison within three years of release1. The long-term damage done to an offender's life is not an intended consequence of custodial sentencing. However, it cannot be claimed to be a proportionate response to crime, as it affects both serious offenders and those accused of non-violent offences such as burglary or fraud. The decay of an offender's relationships and social support structures is yet another harmful externality of custodial punishment.A corporal sentence caters to the social imperative to punish criminals, but it also allows offenders to remain with their families and to avoid financial hardship by remaining in employment. In Moskos' own words, corporal punishment allows society to express its disapproval quickly and efficiently, leaving the offenders to "move on" with the process of reform. It is in the interests of any effective system of rehabilitation to ensure that a non-violent offender remains in contact with their family and remains in employment (excepting, of course, offenders who have attack or abused family members). Families, spouses and social networks can play an important role in supporting and encouraging an offender to engage with rehabilitation programmes. Wives and children can effectively monitor an offender's behaviour when trained staff are unavailable, integrating the reform process with the offender's day to day life. 1 "Tackling Recidivism: They All Come Home", The Economist, 20 April 2011, 2"A Plague of Prisons: The Epidemiology of Mass Incarceration in America". Drucker, E. The New Press |
training-law-apslpsyhwbbc-pro04a | Prison reform is politically unachievable The failures of the prison system are tolerated within political culture and by the public, partly because the privations of the prison environment are seen as a suitable punishment for criminal behaviour. Deprivation of liberty and the emptiness of criminal life are seen as retribution for criminals' dishonest or violent activities. Politicians dare not confront the damaging effects of imprisonment for fear of being labelled as "soft" on crime. There is greater political cache to be gained from introducing policies that prolong prison terms, and remove judges' discretion to order non custodial sentences. Novel approaches to the problem of criminality are seen as signs of political weakness. The use of monitored corporal punishment will keep offenders who have not committed serious crimes out of the prison system. At a nominal rate of five lashes for every year of incarceration, flogging will serve as a clear demonstration of societal disapproval, satisfying popular conceptions of retributive "justice". Once the need to punish is satisfied, policy makers will be free to institute new rehabilitation schemes that address the root causes of criminal behaviour; these schemes can be set up without sacrificing political capital or appearing to prioritise the rights of criminals over victims or the public. |
training-law-apslpsyhwbbc-con03b | The opposition is unable to conclusively prove that the growth in the prison population and the reduced effectiveness of rehabilitation is a direct result of over-criminalisation. It may be true that the list of non-traditional crimes is expanding, but the harm that the resolution is seeking to address arises in the prison system, not in politician’s manifestos. The majority of offenders imprisoned in the USA and the UK have committed genuine crimes, albeit of a petty or non violent nature. Once exposed to the prison system the criminal tendencies of these individuals are entrenched, rather than eliminated. The prison system does not transform unwitting and harmless offenders into criminals – it makes criminals out of desperate, poorly socialised or ignorant offenders. The prison system harms those placed in its care because it is no longer able to carry out its rehabilitative objectives. The failure to rehabilitate those convicted of “ordinary” criminality impacts on the prison system itself, when recidivism and social exclusion lead to offenders being repeatedly convicted. The root cause of the problems in the status quo is not the creation of too many crimes, but a failure to accept the contemporary reality of crime and criminal behaviour. Flogging would allow policy makers to engage with this reality, while satisfying the fundamental need to see wrongdoing punished. The danger posed by over-inclusive corporal sentences is neatly eliminated by the balancing of judicial and legislative power in liberal democracies. Judges are given discretion in order to allow them to mitigate the effects of atavistic, unreasonable, disproportionate or populist manipulations of the law. If a judge believes that flogging would be excessive or unnecessary, given the nature of an offence, he will usually be free to hand down a different sentence. |
training-law-apslpsyhwbbc-con02a | Flogging will be over-utilised, rehabilitation will be under-utilised The “packaging” of flogging with a revitalised approach to rehabilitation that proposition suggests may be a feasible response to some crimes, but politicians are much more likely to treat the lash as a panacea for any activity or trend that affects the public’s confidence in the justice system. The public and the mass media are not inclined the probe the depths of criminal sentencing. Criminals are hard to sympathise with, and public confidence rests largely on the visible aspects of a sentence – has a criminal been locked away? Will they be closely monitored on release? Has a criminal received a sufficient number of lashes? As a consequence, as with custodial sentences, cutbacks to reform programmes can be achieved with little objection, leaving only the empty and brutal gesture of flogging itself. Political reality will neutralise the aspirations of the proposition Lawmakers are currently too keen to invoke imprisonment as a response to crime. They are likely to be just as hasty in ordering the use of whipping as a sanction for criminality. A 1995 US Department of State Report on the use on penal practices in Singapore noted that 3244 sentences had incorporated caning [i] . A subsequent Department of State briefing published in 2008 stated that the Singaporean judiciary had handed down 6404 sentences that included either mandatory or discretionary use of caning [ii] . The corporal sentences handed down to Malaysian women that were discussed above were widely held to have been influenced by a clamp-down on “moral” offences mounted by the Malaysian judiciary [iii] . Flogging will not prevent politicians from making grabs for political capital by criminalising the ill-judged actions of otherwise harmless, well-adjusted and compliant members of society. Moreover, law makers are likely to discount or overlook the close link between flogging and rehabilitation that the proposition case is dependent on. [i] “Singapore Human Rights Practices, 1994”, US Department of State, February 1995, [ii] “Singapore”, Bureau of Democracy, Human Rights and Labor, US Department of State, 11 March 2008, [iii] “Malaysia canes women for adultery”, Al Jazeera English, 18 February 2010, |
training-law-apslpsyhwbbc-con01a | States' duty to avoid the use of force when solving social problems How will the severity and legality of flogging be monitored? How will it be reconciled with existing liberal democratic value sets? The majority of western liberal democracies are party to inter-governmental and supranational agreements that expressly forbid states from using torture or degrading or inhuman punishments in any capacity. The mark of a modern, liberal state is that it uses authority and engagement rather than raw power to protect its citizens. The use of force or power by the state and its agents is harder to regulate and costlier to compensate when it is misapplied. Liberal democracies, apart from being agents of realpolitik, are also aspirational bodies that should strive to reflect and adhere to the values they were created to defend. Arbitrary, coercive force and violence is one of the core harms that a state must guard against. Violence is said to be the preserve of criminals and those acting against the values of society. Therefore, as an aspirational body, the state should hold itself to a higher standard of behaviour than such individuals. Violence, as most liberal constitutions make clear, should only ever be employed by the state as a last resort. Where a state has the means to do so, even if those means are costly or politically contentious, it should endeavour to achieve peace and order within its own borders without wielding power. At its broadest, the liberal democratic ideology holds that the rights and autonomy of individual citizens should be only be infringed in order to protect the rights and autonomy of other citizens. This principle would be violated if the state resorted to corporal sentencing as a way of satisfying a mob-like demand for visible and harsh criminal sentencing. No citizen of a liberal democracy has a right to demand that another citizen, criminal or not, should be subjected to unnecessary pain and suffering by the state. |
training-law-lgpcpao-pro02a | Prison reform is politically unachievable The failures of the prison system are tolerated within political culture and by the public, partly because the privations of the prison environment are seen as a suitable punishment for criminal behaviour. Deprivation of liberty and the emptiness of criminal life are seen as retribution for criminals’ dishonest or violent activities. Politicians dare not confront the damaging effects of imprisonment for fear of being labelled as “soft” on crime. There is greater political cache to be gained from introducing policies that prolong prison terms, and remove judges’ discretion to order non custodial sentences. Novel approaches to the problem of criminality are seen as signs of political weakness. The use of monitored corporal punishment will keep offenders who have not committed serious crimes out of the prison system. At a nominal rate of five lashes for every year of incarceration, flogging will serve as a clear demonstration of societal disapproval, satisfying popular conceptions of retributive “justice”. Once the need to punish is satisfied, policy makers will be free to institute new rehabilitation schemes that address the root causes of criminal behaviour; these schemes can be set up without sacrificing political capital or appearing to prioritise the rights of criminals over victims or the public. |
training-law-lgpcpao-pro01a | Flogging harms offenders less than imprisonment he criminologist Peter Moskos [i] observes that most of us, if given the choice, would opt to receive ten lashes rather than spend five years in prison. Paradoxically, a significant number of us would condemn corporal punishment as barbaric and inhumane. If imprisonment is a more rational response to criminal behaviour, why would so many rational individuals opt to receive corporal punishment? Contemporary prisons are the result of a failed utopian experiment. They serve no useful rehabilitative purpose, and exist only to fulfil a common desire to punish deviant behaviour and to segregate criminals from the public at large. Prisons harm inmates and obstruct attempts to reintegrate them into society. It may be necessary to incarcerate certain compulsive and habitually violent criminals, but for a majority of offenders, prison only serves exacerbate underlying social, economic and psychological problems that lead to criminality. Using corporal punishment to reduce or replace custodial sentences would provide an effective way to fulfil the social need to punish criminals, while removing the harmful externalities of mass incarceration. Strictly supervised whipping or caning can adequately and proportionately express society’s anger with the criminal, while avoiding the dangers of long-term incarceration and reinvigorating the use of rehabilitation. In the United States, the UK and many European countries, prison populations have increased dramatically, but reductions in rates of offending have been minimal or non existent. In the absence of funding, or coherent, centrally administered rehabilitation strategies, prisons have become places devoid of productive activity. Prisoners are not encouraged to address the causes of their offending, or to acquire skills that will help them to live independently in society following their release. Boredom, overcrowding and under-staffing have led to the emergence of gang- and drug-cultures in many prisons. Inmates incarcerated for minor offences quickly become complicit in gang violence, or fall prey to alcoholism and drug addiction. Gang associations and chemical dependencies carry over into inmates’ lives once they are released. The prison system serves only to breed criminality, not to cure it. The cost of incarcerating the average offender in the United Kingdom is estimated to be £45000 a year [ii] . Reduced spending on incarceration can be used to fuel an increase in spending on detoxification, rehabilitation and restorative justice schemes. Moreover damaging effects of prison will not cancel out the positive effects of rehabilitation. The physical injuries resulting from whipping, although painful, are less severe than the subtler damage wrought on inmates by imprisonment. [i] “In Defense of Flogging”, The Chronicle of Higher Education, 24 April 2011, [ii] “Tough on Crime, Tough on Criminals”, The economist, 23 June 2011, |
training-law-lgpcpao-pro04a | Imprisonment punishes offenders’ families Even though liberal democratic systems of justice continue to place an emphasis on punishment rather than rehabilitation, sentences are still required to be proportionate to the crime that they punish. Further, a sentence must only punish those judged responsible for the crime. Collective punishment and guilt by association are not tolerated within rational, liberal systems of criminal law. Imprisoning or fining an offender often places an intolerable burden on the offender’s family. If the offender is a breadwinner, the family is denied the income that he would otherwise provide. They may be forced to use inadequate benefit systems. Other members of the family may be forced to take up a second job, adversely affecting childcare arrangements. Any fines that an offender is ordered to pay are often impact upon his family, damaging household budgets and forcing other family members into debt. The negative effects of a custodial sentence extend beyond the offender himself. Financial and social deprivation may have a minimal impact on an offender while his is imprisoned, but may cause considerable suffering within his family. Sudden social isolation and poverty have themselves been shown to provoke criminality and increase childhood deviance. Corporal sentences allow a punishment to be targeted only at the criminal, not at their families. |
training-law-lgpcpao-con01b | The opposition is unable to conclusively prove that the growth in the prison population and the reduced effectiveness of rehabilitation is a direct result of over-criminalisation. It may be true that the list of non-traditional crimes is expanding, but the harm that the resolution is seeking to address arises in the prison system, not in politician’s manifestos. The majority of offenders imprisoned in the USA and the UK have committed genuine crimes, albeit of a petty or non violent nature. Once exposed to the prison system the criminal tendencies of these individuals are entrenched, rather than eliminated. The prison system does not transform unwitting and harmless offenders into criminals – it makes criminals out of desperate, poorly socialised or ignorant offenders. The prison system harms those placed in its care because it is no longer able to carry out its rehabilitative objectives. The failure to rehabilitate those convicted of “ordinary” criminality impacts on the prison system itself, when recidivism and social exclusion lead to offenders being repeatedly convicted. The root cause of the problems in the status quo is not the creation of too many crimes, but a failure to accept the contemporary reality of crime and criminal behaviour. Flogging would allow policy makers to engage with this reality, while satisfying the fundamental need to see wrongdoing punished. The danger posed by over-inclusive corporal sentences is neatly eliminated by the balancing of judicial and legislative power in liberal democracies. Judges are given discretion in order to allow them to mitigate the effects of atavistic, unreasonable, disproportionate or populist manipulations of the law. If a judge believes that flogging would be excessive or unnecessary, given the nature of an offence, he will usually be free to hand down a different sentence |
training-law-lgpcpao-con02b | There is political capital to be gained from adopting a hard line stance on law and order issues, but there is also political capital to be gained from showing that a particular policy has had a positive effect on reoffending. The Pew Foundation report cited above has also determined that some 90% of US voters were in favour of reducing the length of prison sentences and “strengthening” probation and parole systems [i] . The opposition assumes that politicians are interested only in cheap, hollow, short term solutions to problem. However, a large number of policy makers are genuinely public spirited, with a sincere interest in solving long-standing social problems. The adversarial nature of politics tends to prevent politicians from seeking elaborate or novel solutions to such issues. Spending money on intangible rehabilitation programmes will always provoke more criticism than spending money on training more police officers. The resolution allows politicians to engage with the novel solution to criminality offered by rehabilitation while at the same time meeting a general demand for criminals to be visibly and strictly punished for their actions. There will be a cynical minority of politicians who will see the dramatic nature of flogging as an opportunity to disguise cuts to reform programmes. Equally, there will be others who will use corporal sentences as an opportunity to address and resolve the politically intractable problem of criminal deviance. [i] “Tackling Recidivism: They All Come Home”, The Economist, 20 April 2011, |
training-law-railhbtsbis-con01b | Such progress has been self-serving, with many of the economic gains made by Han Settlers. Secondly it has come at the cost of Tibetan culture and the very national identity that Tibetans hold dear. It is also absurd to suggest that these gains would disappear upon independence. Tibet would likely seek to continue to trade with China, and if that is not possible, there would be opportunities to gain investment from India or the West. The benefits of such trade could then be used to help the Tibetans themselves rather than Han settlers. As Ten Zin Samphel, a leader of the Tibetan community in Britain remarks "At the moment, the economic development is for the benefit of the Chinese… If Tibet were free, we could develop it ourselves." [1] [1] McGivering, Jill, ‘China’s quandary over Tibet’s future’, BBC News, 20 March 2008, |
training-law-railhbtsbis-con02b | First of all it is worth noting that the Chinese settlers are themselves the product of deliberate campaign of cultural genocide on the part of the Chinese government. While individually they may be innocent, by their participation they have become targets. In this sense there is little difference between them and Israeli settlers in the West Bank or the former French settlers in Algeria. But even granting that, there is no reason to assume this violence would continue if Tibet became independent and the major cause of conflict, namely the Chinese occupation, was removed as a major issue of contention. It could be expected that a new Tibetan government would have an incentive to avoid all of the harms outlined by the opposition. Symbolic of this is the Dalai Llama’s remarks that Tibet’s future is linked to China’s and that an independent Tibet would benefit from a close relationship with China. |
training-law-aegtlcpsyhwa-con04b | The opposition’s point is a rather speculative one, as you could apply this argument to teachers in general, or anyone in positions of power over more vulnerable groups, such as nurses or doctors. Just because a minority choose to abuse (such as with the paedophile scandals in reported in some public US high schools) [1] that does not mean everyone in the teaching profession should have the right to protect those in their care revoked. [1] Irvine, Martha, and Tanner, Robert, ‘AP: Sexual Misconduct Plagues US Schools’, The Washington Post, 21 October 2007, |
training-law-tllgrhwds-pro02b | Victims of any form of crime, regardless of their life choices, are free to come to the police for protection and will be provided with the same protections as anyone else. The fact that people who commit crimes may feel less comfortable going to the police to avoid self-incrimination is not a reason to remove those laws. |
training-law-tllgrhwds-pro01a | The criminalisation of sadomasochism infringes on individual liberty Control of one’s own body is the most fundamental of human rights. No government should be permitted to define how its citizens can express themselves. The distinction between the permissible and the impermissible should be drawn at the line of consent. This is not a novel distinction. Your property cannot be stolen from you if you agree to give it away. You have no legal remedy if your property is damaged by another with your consent, or if you damage it yourself. Why should there be a moral difference when this property is flesh and blood? Paternalism in this instance only protects those who do not want to be protected. The prohibition of sadomasochism is simply inconsistent with the liberty that governments already permit their citizens to exercise to injure each other and themselves. When people are entitled to risk pain, serious injury, or even death in sporting activity, why should they not also be permitted to suffer some discomfort in consensual sexual activity? The same piercing of flesh which attracts criminal liability in a fetishistic context can be performed legally in a chemist’s shop or tattooist’s parlor. The distinction between the rugby scrum, the bungee tower and the bedroom is an arbitrary one. Some of the pleasure that is inherent in contact sports is derived from the adrenal thrill of flirting with injury. It is widely known that a significant proportion of individuals find jeopardy and danger as enjoyable as decadence. A sport purged of all risk would be unwatched and unplayed. Comparably, a corpus of law that did not acknowledge or protect the diversity of human sexual experience would needlessly limit individual sexual freedom, and would probably be ignored. |
training-law-tllgrhwds-pro01b | Every government has a duty to protect the moral and physical health of all its citizens. Firstly, the defining characteristic of sadomasochism is that it does harm to others. The activity has a victim. It is not a simple question of one individual being permitted to harm himself. Secondly, the fact of the victim’s consent is immaterial. The use of seatbelts is mandatory because citizens should not be allowed to risk their bodies for such a nugatory freedom. Citizens are allowed to lose or jeopardize their material assets through foolishness, since the assets are replaceable, or at least not critical to survival. Paternalism exists to protect people from themselves. As noted below, governments are able to exercise varying degrees of regulation over potentially harmful activities according to the contexts that they occur in. Under these circumstances, the beneficial aspects of contact sports, risky performance arts and non-essential medical procedures can be balanced against the harms they might cause. Dangerous sporting activities invariably occur in public, are supervised by coaches and referees, and are subject to rule-sets agreed on by players and overseen by professional bodies. Under such circumstances, it is possible for the state to be satisfied that risk to the individual has been minimized as far as possible, and that there can be no confusion over which risks an individual consents to. Where altercations on the sports field result in criminal prosecutions, much discussion is focused on the risks that the victim foresaw he would be exposed to. Hockey players have previously been held to have implicitly accepted the possibility that they might be deliberately struck with a hockey stick in the course of a match [i] . A recent English case ruled that a rugby player does not impliedly consent to run the risk that another player might bite and tear at his ear during a match [ii] . [i] R v Green (1971) 16 DLR 93d) 164 [ii] R v Johnson (1986) 8 Cr App R (Sentencing) 343 |
training-law-tllgrhwds-pro04a | Western ideals of beauty already permit individual to endure intense physical pain in order to achieve sexual gratification The idealization of physical beauty within American and European culture has created a demand for increasingly interventionist forms of cosmetic enhancement. Women and men are prepared to pay hundreds of thousands of pounds to have their faces, breasts and genitals maimed and modified by surgeons, to have their skin bleached or their facial muscles temporarily paralyzed by “beauticians” and to be badgered, bullied and blackmailed into complying with restrictive diets and extensive regimes of physical exertion by domineering personal trainers. Except in the most extreme and obvious cases of emotional or psychological disturbance, adults are automatically assumed to be capable of consenting to these acts. Further, the western ideal of physical beauty is closely associated with the cultural norms that influence and control sexual attraction, compatibility and enjoyment. The erotic is almost inextricably linked with the aesthetically idealized. The intense pain and extensive physical injuries that individuals endure in the pursuit of physical beauty are also endured in the pursuit of sexual gratification. The risks inherent in invasive cosmetic treatments are poorly explained. The expense of these products and services and the pervasiveness of idealized physical forms combine to create parallel markets comprising cheaper, poorly regulated forms of “beauty enhancement”, including intensive tanning and skin bleaching lotions. The ultimate objective of these physically painful and dangerous activities is sexual pleasure. Even if the heightening of sexual pleasure that results from physical modification is less direct than in a sadomasochistic encounter, many cosmetic surgery patients find the aesthetic pleasure attendant on successful surgery to be satisfying too. It seems hypocritical and perverse for a supposedly liberal system of law to allow individuals who are openly pursuing a sexual objective to consent to the harms and risks of cosmetic surgery, while limiting the legality of sadomasochistic acts. Both activities have the same underlying purpose, and both produce dangerous externalities. Rational, consenting adults should have as much freedom to engage in S&M play as they currently have to submit to cosmetic surgery. |
training-law-tllgrhwds-con03b | Where should the line between sadomasochistc and “conventional” sexual activity be drawn? The English appeal case of R v Slingsby [i] concerned the accidental death of an individual who had consented to an inherently risky sexual act (the insertion of her partner’s fist into her anus) that was considered “vigorous” but not masochistic. As noted above, conventional sexual interaction is just as susceptible to subversion as S&M encounters, and can just as easily collapse into a non-consensual act. In effect, “normal” sexual expression is as difficult to regulate, and as likely to incorporate violence (or “vigorous activity” as the judge in Slingsby would have it) and to cause harm, as sadomasochism. Society at large does not demand that all private sexual activity is as tightly regulated as professional sport, nor does it attempt to outlaw sexual activity. Instead, it is acknowledged that personal freedom outweighs the occasional harms that private sexual relationships produce. Existing legal safeguards are seen as providing victims of abusive conventional relationships with adequate protection and recompense. Indeed, the dangers that accompany conventional sex may be less obvious to the participants in a relationship than the dangers posed by a poorly tied knot or an inexpertly wielded crop. Sexually transmitted infections, concealed personality disorders, infidelity or jealous former partners all constitute significant and easily overlooked sources of harm. [i] R v Slingsby [1995] Crim LR 570 |
training-law-tllgrhwds-con04a | The right to privacy counterbalances the state's obligation to ban sadomasochistic sex y the proposition, those who want to engage in violent sexual activities will do so, irrespective of laws to the contrary. Without undermining core liberal concepts of privacy and freedom of association, the state will be unable to regulate private sexual interaction. This being the case, when is violent activity most likely to be detected and prosecuted under the status quo? When such acts become too visible, too public or too risky. When the bonds of trust and consent that (as the proposition has agreed) are so vital to a sadomasochistic relationship break down. Liberal principles of privacy and autonomy allow individuals to engage in consensual activities that may fall outside established boundaries of social acceptance. In this way individual liberty is satisfied, while the risk of others being exposed to harmful externalities is limited. In the words of the anthropologist and lawyer Sally Falk-Moore, “the law can only ever be a piecemeal intervention in the life of society” [i] . The prosecution of a large and organized community of sadomasochistic homosexual men in the English criminal case of R v Brown was in part motivated by the distribution of video footage of their activities [ii] . Doubts were also raised at trial as to whether or not some of the relationships within the group were entirely free of coercion. Their activities had become too public, and the bond of consent between the sadistic and masochistic partners too attenuated for the group to remain concealed. Individuals break the law, in minor and significant ways, all the time. Due to the legal protection of private life, due to an absence of coercion, due to a consensual relationship between a “perpetrator” and a “victim”, such breaches go entirely undetected. The general right to privacy balances out the obligation placed on the state to ensure that individuals who encounter abuse and exploitation within sadomasochistic relationships can be protected. The protection afforded by privacy incentivizes individuals engaged in S&M activities to ensure that they follow the highest standards of safety and caution. Arguably, where “victims” have consented to being injured, but have then been forced to seek medical treatment due to their partner’s incompetence or lack of restraint, complaints to the police by doctors and nurses have helped to identify and halt reckless, negligent or dangerous sadomasochistic behavior. Correctly and safely conducted, a sadomasochistic relationship need never enter the public domain, and need never be at risk of prosecution. However, without the existence of legal sanctions the state will have no power to intervene in high-risk or coercive S&M partnerships. [i] “Comparative Law in a Global Context: The Legal Systems of Asia and Africa”, Werner Menski, Cambridge University Press, 2006 [ii] Annette Houlihan, ‘When “No” means “Yes” and “Yes” means Harm: Gender, Sexuality and Sadomasochism Criminality’ (2011) 20 Tulane Journal of Law & Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues 31 |
training-law-tllgrhwds-con01a | The pursuit of pain for the purpose of achieving pleasure is an immoral act Not only does the state have the right and obligation to uphold the morals of society and stop deviant behavior, but it also has an obligation to prevent escalation of deviance. Acts such as sadomasochism are good indicators of the propensity for escalation to further deviant acts. With the passing of the Anti-Social Behaviour Act 2003 [i] in the UK, a legal precedent has been established where the government has the right and obligation to tackle minor deviant behavior as it can be a precursor to larger and more harmful deviance in the future. Even if S&M was “victim-less”, it demonstrates a propensity to inflict pain to gain pleasure and thus indicates high risk for developing a craving for infliction of pain of higher magnitude and scope in the future, which could be even more damaging to society. [i] Anti-social Behaviour Act 2003." legislation.gov.uk. The National Archives, n.d. Web. 20 Jun 2011. |
training-law-tllgrhwds-con04b | It should first be observed that accidents and inadvertent harm can befall S&M practitioners irrespective of the level of caution that they exercise. It is unacceptable to require responsible adults to run the risk of prosecution whenever they engage in a consensual act of sexual expression. Further, relationships, even sadomasochistic relationships, can break down and become acrimonious. There is a risk that an embittered partner who formerly consented to prohibited S&M activity might try to use that fact to blackmail or persecute his or her ex-lover. The opposition state that the freedom to dissent from laws regulating one’s private conduct begins to break down when the number of people engaging in a “private” activity grows. Why should the freedom to engage in a particular sexual activity imply a trade off against the freedom to choose how many people we engage in that activity with? Interacting with multiple sexual partners is not, in itself, illegal in the majority of western liberal states, but it does not exclude other sexual fetishes, such as S&M. The opposition is disguising a further limitation on sexual freedom- the freedom to engage in group S&M- as a concession to liberalism. Finally, the awareness that a particular activity is proscribed can affect an individual’s ability to enjoy that activity. The pleasure inherent in free expression of sexual identity is compromised by the knowledge that discovery will lead to prosecution and stigmatization. As numerous accounts by those involved in the LGBT liberation movement have demonstrated, knowing that one’s sexuality is seen as something immoral and socially destructive is inhibiting and upsetting, even in private contexts. |