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Benjamin Mason Meier - One of the best experts on this subject based on the ideXlab platform.

  • international Criminal Prosecution of physicians a critique of professors annas and grodin s proposed international medical tribunal
    Social Science Research Network, 2004
    Co-Authors: Benjamin Mason Meier
    Abstract:

    In light of the international community’s experiences in creating the ICC, this article analyzes professors Annas and Grodin’s proposed International Medical Tribunal. Part I describes the actions of Nazi physicians during World War II and the trial of these physicians at Nuremberg. Part II explains how, contrary to expectations of those at Nuremberg, physicians continue to take part in widespread violations of human rights. Part III details professors Annas and Grodin’s proposed International Medical Tribunal and their arguments in favor of its creation. Part IV critiques the International Medical Tribunal. Specifically, part IV argues that there is no longer a valid justification for establishing a separate international court for physicians now that the ICC has been formed to prosecute perpetrators of human rights violations; if such an International Medical Tribunal were created, it would fail to achieve professors Annas and Grodin’s purported goals. This article argues that only once nations have codified the rights of victims can national and international tribunals enforce these rights under international Criminal law. By examining the evolution from human rights protections to international Criminal prohibitions, part V advocates the creation of international law governing physicians, creating the law necessary to transmute into internationalized Criminal law. This article concludes that scholars must reengage a human rights framework to protect the victims of medicine, setting the stage for future Prosecution of Criminal physicians.

  • international Criminal Prosecution of physicians a critique of professors annas and grodin s proposed international medical tribunal
    American Journal of Law & Medicine, 2004
    Co-Authors: Benjamin Mason Meier
    Abstract:

    I. INTRODUCTION Society benefits from physicians who seek truth and healing for the good of humanity.1 Despite ethical admonishments to "do no harm,"2 however, physicians have caused some of the most appalling human rights abuses of the twentieth century.3 Physicians, alone or in concert with the state, have willfully abused their medical knowledge and debauched their profession in furtherance of human rights violations. Compounding their crimes, physicians often have been complicit in following oppressive regimes in abusive practices against their citizens. Ironically, it is their knowledge of this healing art that allows physicians to take part in this injurious conduct; and it is this knowledge that states seek to harness in buttressing violative policies. In fact, for nations bent on violating human rights, it is "much easier for governments to adopt inherently evil and destructive policies if they are aided by the patina of legitimacy that physician participation provides."4 There is widespread international agreement that physicians can and should be held accountable for their involvement in human rights abuses. The Doctors' Trial of 1946-47, in which Nazi physicians were tried at Nuremberg for war crimes and crimes against humanity, remains the only international Criminal Prosecution of physicians for violations of human rights. Despite the success of the Doctors' Trial, and the medical ethics codes that have derived from it, physicians continue to participate in human rights violations, often outside the reach of Criminal Prosecution. Condemning such acts and preventing future abuses of medicine have become a focus for lawyers, doctors, and human rights practitioners. Beginning in 1992, professors George Annas and Michael Grodin5 have advocated the creation of an "International Medical Tribunal" to prosecute physicians who violate human rights.6 Even after the successes and failures in the creation of the International Criminal Court ("ICC"), Annas and Grodin continue to believe that "[t]he arguments for a permanent international medical tribunal are every bit as compelling as those for [an International Criminal Court]."7 Yet, the International Medical Tribunal lacks many of the advantages of the ICC while retaining many of its disadvantages. On July 17, 1998, representatives of more than 160 nations met in Rome, Italy and adopted an international treaty to govern a permanent international Criminal court, the Rome Statute of the International Criminal Court ("Rome Statute").8 The ICC, created by the Rome Statute, has subject matter jurisdiction over the so-called "core crimes" of genocide, crimes against humanity, war crimes, and, once defined, aggression.9 Within this jurisdiction will fall crimes committed by physicians and non-physicians alike. This permanent Criminal court, built upon the ad hoc tribunals of Nuremberg and beyond, came into effect in 2002 and has just begun to adjudicate its first case.11 This article analyzes professors Annas and Grodin's proposed International Medical Tribunal in light of the international community's experiences in creating the ICC. Part II describes the actions of Nazi physicians during World War II and the trial of these physicians at Nuremberg. Part III explains how, contrary to expectations of those at Nuremberg, physicians continue to take part in widespread violations of human rights. Part IV details Annas and Grodin's proposed International Medical Tribunal and their arguments in favor of its creation. Part V critiques the International Medical Tribunal. Specifically, Part V argues that there is no longer a valid justification for establishing a separate international court for physicians now that the ICC has been formed to prosecute perpetrators of human rights violations; if such an International Medical Tribunal were created, it would fail to achieve Annas and Grodin's purported goals. Only when nations have codified the rights of victims can national and international tribunals enforce these rights under international Criminal law. …

Norman Abrams - One of the best experts on this subject based on the ideXlab platform.

  • addressing the guantanamo legacy problem bringing law of war prolonged military detention and Criminal Prosecution into closer alignment
    Journal of National Security Law & Policy, 2014
    Co-Authors: Norman Abrams
    Abstract:

    INTRODUCTIONIt is commonplace that a war against a terrorist organization, such as al Qaeda, has the following three characteristics. First, it has certain elements of a traditional war: there is a defined enemy; attacks are made by the enemy against both military and civilian targets, both in this country and abroad; and the goal of the enemy is to destroy or defeat us as a nation. Second, it contains elements of Criminal behavior by a Criminal organization because the hostile actions allegedly engaged in by the members and supporters of the Criminal organization are usually considered crimes either under the law of war or domestic U.S. law, or both.1 And finally, it may turn out to be a war without an end date.2Given the fact that most of the hostile acts of the enemy in this war against the United States are crimes, the Obama administration has made Criminal Prosecution of the Guantanamo detainees, where feasible, a high priority. Incarceration upon conviction for those detainees who are prosecuted provides a legal basis for continuing imprisonment, at least for the length of the sentence. But for various legal reasons such as statute of limitations violations or non-extraterritoriality of the relevant statute, it is not feasible to successfully prosecute many of the detainees, even though they, too, have allegedly engaged in Criminal behavior. As described in the President's remarks at the National Archives, the current approach for dealing with persons captured in the war against al Qaeda includes: (1) a preference for Criminal Prosecution of as many of the detainees as possible (in most cases, after the detention has been determined to be lawful through habeas corpus petitions by detainees); (2) release or transfer of many of them; and (3) prolonged detention of "a number," subject to periodic review of their continuing dangerousness.3The possibility that any person, even someone who engaged in serious terrorist acts, might be detained indefinitely in military custody, possibly for a lifetime, without having been convicted of a crime sets offalarm bells in a society such as ours. Long-term detentions without Criminal trials often have been a hallmark of a despotic government. Of course, there are instances in our legal system where, even without a Criminal conviction, there is provision for long-term, possibly indefinite deprivation of an individual's liberty in an institutionalized setting, based on the presence of certain conditions - for example, civil commitment of a person who suffers from a mental disorder and is proved to be a danger to himself/herself or others.Justice O'Connor, speaking for a plurality of the Court in Hamdi v. Rumsfeld, 4 expressed concern about indefinite, conceivably lifetime, detention based on a rationale of preventing the detainee from returning to the "battlefield."5 Significantly, she stated that if the duration of the conflict can be indefinite, the law-of-war understanding - detention for the duration of the conflict - may unravel.6 Justice O'Connor in her enigmatic phrasing seemed to be saying that "[t]he law-of-war understanding is not based on conflicts of indefinite duration"; it did not contemplate detention for a lifetime." Through the "unravel" statement, Justice O'Connor put a big, if ambiguous, question mark on the idea of prolonged, potentially lifetime detention based on a law-of-war rationale in the context of a war against a terrorist organization.Despite the weightiness of the concerns about such prolonged detentions, both Presidents Bush and Obama acknowledged the need for the exercise of such a power in a limited number of cases. And under both presidents, the exercise of such authority was tempered somewhat by the establishment of a process of regular review of the cases of the detainees to determine whether they continued to be dangerous and, if not, providing for their release.7 Nevertheless, a substantial number of Guantanamo detainees - probably on the order of several dozen - seem likely to continue to be detained for a lengthy, indefinite period. …

  • addressing the guantanamo legacy problem bringing law of war prolonged military detention and Criminal Prosecution into closer alignment
    Social Science Research Network, 2014
    Co-Authors: Norman Abrams
    Abstract:

    The U.S. government claims authority under the law of war to detain enemy belligerents captured in the war against the Taliban and al Qaeda for the duration of the conflict. Enemy belligerents in this war are generally regarded by U.S. authorities as unprivileged under the Geneva Conventions, and acts they commit in furtherance of the war are therefore likely to be crimes under the law of war and/or under U.S. domestic law. Regarding those belligerents who, because they are considered dangerous, have not qualified for release and transfer to another country, the government has had two choices — to detain them in military custody on a prolonged basis (for the duration of the conflict), or to prosecute them for crimes they are alleged to have committed.President Obama has stated a strong preference for the Criminal Prosecution option. But for many of the detainees, Prosecution is not feasible — for a variety of reasons. These detainees are likely to remain in prolonged detention. The President has described the continuing detention of these individuals as the "legacy problem," i.e. prolonged detention cases left over from the post-9/11 period.The purpose of this paper is to address the legacy problem, in part by taking into account the fact that all of the long term detainees, both those whom it is infeasible to prosecute as well as those who can be prosecuted, can be said to have engaged in culpable Criminal activity. A primary goal is to reduce the inequality between the two paths — Criminal Prosecution or prolonged military detention — by bringing law of war detention and Criminal Prosecution into closer alignment. Under the present system, choice between the paths appears to result in unequal treatment, i.e., in many cases, Criminal Prosecution and the imposition of a fixed term sentence for those who are convicted versus what looks like an indefinite period of detention in military custody for the other cohort (subject to the possibility of release through a periodic review process) — even though both cohorts are alleged to have engaged in culpable Criminal conduct. A revised approach should, while paying heed to national security interests, not only decrease this apparent difference in treatment but also increase the chances that most of the detainees in indefinite detention might be released short of a lifetime in custody and thus give them some reasonable hope that their detention may end at some point. Progress toward these several goals, which are closely related, can be achieved by tinkering with, and adding to the existing approach, taking into account the special features of a war against a terrorist organization — by introducing into the indefinite detention track some fixed-term Criminality attributes plus a standard to be applied for continued indefinite detention, while adding to the Criminal Prosecution/fixed term imprisonment track a similar standard governing the possibility of a return to military custody.

David M Uhlmann - One of the best experts on this subject based on the ideXlab platform.

  • the pendulum swings reconsidering corporate Criminal Prosecution
    Social Science Research Network, 2016
    Co-Authors: David M Uhlmann
    Abstract:

    Corporate crime continues to occur at an alarming rate, yet disagreement persists among scholars and practitioners about the role of corporate Criminal Prosecution. Some argue that corporations should face Criminal Prosecution for their misconduct, while others would reserve Criminal Prosecution for individual corporate officials. Perhaps as a result of this conflict, there has been a dramatic increase over the last decade in the use of deferred Prosecution and non-Prosecution agreements for some corporate crimes, even as the government continues to bring Criminal charges for other corporate crimes. To move beyond our erratic approach to corporate crime, we need a better understanding of what is accomplished by the Criminal Prosecution of corporations, a construct that considers retributive and utilitarian theories but also takes into account the expressive function of Criminal law and the societal need for condemnation, accountability, and justice when crime occurs.In this article, I provide a justification for corporate Criminal Prosecution that identifies the moral content of corporate crime, considers the deterrent value of corporate Prosecution, and explains why the expressive value of the Criminal law is indispensable in the corporate context. Corporate wrongdoing has pernicious effects on our communities, the economy, and the environment, which warrant the condemnation the Criminal law provides. Criminal Prosecution of corporations upholds the rule of law, validates the choices of law-abiding companies, and promotes accountability. Together those values contribute to our sense that justice has been done when crime occurs, which enhances trust in the legal system, provides the opportunity for societal catharsis, and allows us to move forward in the aftermath of Criminal activity. When corporations face no consequences for their Criminal behavior, we minimize their lawlessness, and increase cynicism about the outsized influence of corporations.

  • environmental crime comes of age the evolution of Criminal enforcement in the environmental regulatory scheme
    Utah law review, 2009
    Co-Authors: David M Uhlmann
    Abstract:

    The environmental crimes program in the United States has entered its third decade, yet questions remain about what makes an environmental violation Criminal. Our environmental laws make only limited distinctions between Criminal and civil liability, so theoretically the same conduct could give rise to Criminal, civil, or administrative enforcement. This article will reconsider concerns that have been raised historically about the role of Criminal enforcement under the environmental laws and will suggest an answer to the question of what makes an environmental case Criminal. The article addresses claims that the complexity of environmental law makes it a difficult fit for Criminal enforcement and that the mental state requirements for environmental crime make it possible for corporate officials to be convicted for conduct that they do not know is occurring. The article considers the role of prosecutorial discretion in environmental cases and asserts that Criminal Prosecution should be reserved for cases involving (1) significant harm of risk of harm to the environment or public health; (2) deceptive or misleading conduct; (3) deliberate efforts to operate outside the regulatory system; or (4) significant and repetitive violations of environmental laws. By limiting Criminal Prosecution to these cases, prosecutors can ensure that Criminal enforcement will advance the goals of the environmental regulatory scheme.

Vladimir Kruglyak - One of the best experts on this subject based on the ideXlab platform.

  • the regulatory Criminal law in the uk analyzing dissenting factors of the deferred Prosecution agreements
    Social Science Research Network, 2020
    Co-Authors: Vladimir Kruglyak
    Abstract:

    In this paper the inter-temporal analysis of the case law is employed to depict the trajectory of changes leading to high amount settlements for financial corporate crimes serving as a substitute for Criminal Prosecution and sentencing. Placed in conjunction with statutory review of historic Criminal proceedings, the opportunistic behaviour of the Crown Prosecution Services is analysed. The Serious Fraud Office and its regulatory efforts to prosecute corporate crimes using Deferred Prosecution Agreement tested for the economic purpose. From its historic English traditions to punish wrongdoers until recent wrongful death cases, the reluctance of the government to sentence offenders under the Criminal law is exposed. An array of reasons for abandoning the settlements is offered for the legislative review.

Chilenye Nwapi - One of the best experts on this subject based on the ideXlab platform.

  • accountability of canadian mining corporations for their overseas conduct can extraterritorial corporate Criminal Prosecution come to the rescue
    Social Science Research Network, 2016
    Co-Authors: Chilenye Nwapi
    Abstract:

    This article is set against the backdrop of the inability of Canadian courts to hear civil cases brought by victims of the operations of Canadian mining corporations in developing countries where accountability mechanisms are weak. The article examines the legal framework for extraterritorial Criminal Prosecution in Canada with a view to seeing how corporate Criminal Prosecution could fill the accountability gap and contribute to the promotion of the accountability of Canadian mining corporations involved in human and environmental rights abuses in developing countries. The article argues that extraterritorial Criminal Prosecution holds prospects for success in Canada, if only the Canadian government is willing to utilize it. The real and substantial link test, the Crimes against Humanity and War Crimes Act, and several sections of the Criminal Code provide sufficient jurisdictional bases for such Prosecution. The amendments to the doctrine of corporate Criminal liability that were made in Canada in 2003 bolster the Criminal jurisdictional strength of Canadian courts. Lastly, there are no compelling international comity concerns to discourage the Canadian government from utilizing the Criminal justice process to contribute to the global fight against corporate impunity in human and environmental rights abuses. This article seeks to contribute to the knowledge of the powers at the disposal of the Canadian government to do so.