August 9, 2006

Gang Rape (updated)

Posted in criminal law at 12:42 am by thelawthoughts

No, NSW police, don’t play down the June 8 gang rape in Darling Harbour. Don’t ‘allay’ our fears. Don’t tell us it’s a ‘once-off’.

Just find these people, now. Then put them away until they are 80.

UPDATE: A man has been arrested over the attack.

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August 7, 2006

EU Death Penalty Debate

Posted in criminal law, EU, law reform, murder at 6:24 am by thelawthoughts

Poland wants to reopen the death penalty debate within the EU.

The EU administration has firmly rejected the possibility any such discussion. Why are we still having this tired old debate? The death penalty does not satisfy the main aims of penal theory. It does not rehabilitate (for obvious reasons). It does not deter (or else the US wouldn’t need to keep injecting people with lethal drugs). Apart from anything else, it is so scary to live somewhere where the state has the ability, historically used arbitrarially, to kill people. How can a State tell people not to kill, when the same State kills people itself? It just doesn’t make sense.

I liked the caption – ‘Lech Kaczynski advocates traditional Catholic values’. The Beeb is not noted for its irony, so I can only guess it is unintended, but it is dripping with irony. When will some Catholics realise that ‘traditional values’ do not mean killing people? They mean ‘love thy neighbour’, ‘turn the other cheek’ and ‘do unto others as you would have them do unto you’. Forgiveness is possibly the word I heard most in my childhood, yet people touting these ‘traditional values’ say in the same breath that State sponsored killing should be REintroduced.

Sometimes I wonder whether society has really progressed at all.

June 30, 2006

David Hicks and Illegal Commission

Posted in criminal law, international law, politics, terrorism, war crimes at 12:29 am by thelawthoughts

I am going to put this post up before I go so that it will stay on top for the 5 weeks I am gone. Warning, this is a rant.

The world woke today to the news that the US Military Commissions the American governments was going to use to try ‘illegal combatants’ are illegal. Thank goodness.

I wasn’t even going to blog this, because the coverage is so much more insightful and useful elsewhere (see Opinio Juris and SCOTUS Blog eg), but what really pisses me off is our government’s reaction.

David Hicks MUST BE TRIED NO MATTER WHAT. He has been held without trial for four years now. When are they going to GET ON WITH IT? The treatment of David Hicks by the US Government and our own government’s pathetic response quite astounds me. They should be demanding a trial now, or else a return of David Hicks to Australia so he can be tried by us. Or send him to the ICC or SOMETHING, but GET ON WITH IT. If he is guilty, so be it, lock him up. If not, he should be on the first plane home, a free man.

Yes, we go nuts trying to get prisoner exchange agreements for poor Schapelle Corby and the Bali Nine, but we won’t go into bat for a bloke who has been taken out of the jurisdiction in which he was found, placed in detention in conditions likened to a Soviet gulag, and left by our government to rot, despite the fact that other allies have demanded their nationals be returned to their jurisdiction. Saudis and Yemenis have been allowed home, but not Australians.

Why? Our government is more worried about posturing and pandering than the rule of law. And when governments ditch the rule of law, mark my words, bad things happen. Like torture, like people being held incommunicado, like interrogation without the presence of lawyers.

Short of the genocide, kind of sounds like Iraq under Saddam Hussein, really.

June 26, 2006

MUSU in Liquidiaton v Darren Ray

Posted in criminal law, funny law, judgments and transcripts, university at 7:01 am by thelawthoughts

Every now and then a case comes along that makes one really laugh. Remember Darren Ray? For those of you who have been at uni for a few years, he was the guy who got elected to the Student Union by giving us all $8 vouchers to spend at the UBar in return for voting.

Anyway, he was supposedly one of the driving forces behind the spectacular collapse of the Melbourne Uni Student Union (the other guy was called Scott something, and tried to get elected to a City Council recently. Brimbank maybe?).

Darren Ray and Benjamin Cass, amongst others, were sued by the liquidator for breaches of fiduciary duty and conspiracy. This proceeding related to an injunction sought by the liquidator to prevent Cass publishing material on his blog, in contempt of court.

The injunction wasn't granted, so Cass can still publish whatever he likes about the liquidator's conduct in the proceedings. I'm going to be straight with you, I'm not going to read the whole judgment.

You can, if you like, because from the overview that I took, it seems an interesting case in the evolution in this country of liability for work published in blogs.

Article 98 Agreements

Posted in criminal law, international law, politics, terrorism, UN, war crimes at 12:48 am by thelawthoughts

Opinio Juris notes that the US might be reconsidering its position on bilateral immunity agreements, whereby the US forces smaller countries to agree not to surrender US nationals to the ICC.

This would be great news. I argued in an essay that the agreements were illegal at international law, on three grounds, two relatively weak and one I believed quite strong. The weak grounds were that the agreements defeat the object and purpose of the statute, which is a weak argument because this ground of objection ceases to have effect once a country ratifies the treaty. Therefore, the more countries ratify, the less countries there are for this doctrine to operate between.

The other weak ground was that of universal jurisdiction, which is the idea that the ICC has universal jurisdiction over the crimes prosecuted under the Rome Statute, assuming their status as jus cogens offences at international law. I hope that this argument becomes stronger in future, because I firmly agree with Geoffrey Robertson's argument that no rogue leader will think twice about committing war crimes until there is a credible threat of their prosecution.

The strongest argument for the illegality was that an interpretation of Article 98 which allowed these agreements to be in force was not the intended interpretation of the treaty signatories. In effect, States are prohibited from acting in a way not contemplated by the drafters of the treaty, and I did not believe that agreements which allowed a State to circumvent the entire operation of the court were intended to be legal under the Rome Statute.

All this is nice in theory, but unless the US supports the ICC and allows its nationals to be prosecuted along with all others, it will lack legitimacy. I have noted this week the coming trial of Charles Taylor, which is great. However, whether these agreements are illegal or not, the US will use them and abide by them, and force others to also, until they decide not to.

This, of course, is the problem of powerful states in areas of international law in which they do not wish to be bound. A visionary US would realise that its interests are best served by having a legitimate international court in which to try alleged war criminals, rather than the kangaroo courts they have set up domestically.

June 21, 2006

Charles Taylor to the ICC

Posted in criminal law, international law, war crimes at 9:32 am by thelawthoughts

I hope Charles Taylor has a nice holiday in Den Haag. Because now that he is being tried for war crimes, he possibly may not have the option of too many holidays in the coming years.

June 17, 2006

Only in the US

Posted in criminal law, murder at 7:06 am by thelawthoughts

Could you see a headline such as 'Man Charged After Wife's Head is Found at Accident Scene'.

If you had cut off your wife's head, don't you think you would be careful not to drive around like a maniac, thereby killing another mother and daughter, and causing your wife's head to bounce around on the road.

I can't understand how tragedies like this could possibly happen. How sick can people be? 

June 16, 2006

More ICC

Posted in criminal law, international law, war crimes at 2:53 am by thelawthoughts

It seems also that the ICC is moving on Darfur.

I'm not a big fan of the complementarity principle, which basically says that if a national government is prosecuting or in the process of investigating war crimes, the ICC can't act.

I have always seen this as the most obvious way a country can block the jurisdiction of the court, by setting up courts to try people domestically which have no real power, or are corrupt, or hand out lenient sentences.

This is especially dangerous where a government is accused of war crimes, as it of course most often is. The leaders of Sudan simply have to 'try' each other to effectively prevent the ICC from acting.

Seems silly to me. 

Charles Taylor’s Trial

Posted in criminal law, international law, war crimes at 2:46 am by thelawthoughts

Liberia's ex-President, Charles Taylor, might be tried in The Hague, rather than in Sierra Leone

The trial of such an important alleged war criminal is just the type of case the ICC needs to establish itself as a legitimate, competent institution, which can be trusted to establish the guilt or innocence of alleged war criminals.

The type of leadership shown by the UK, which has said it might allow Taylor to serve his sentence in the UK, is a further stamp of legitimacy for the Court.

Such leadership from a country that needs to reestablish its international law credentials after the Iraq debacle can only leave the US, should it fail to support the court, even more in the cold than it already is. Hopefully, the growing strength of the ICC will mean that the rule of law in international affairs might grow in strength alongside the court.

Without a link, recent reports suggest that the US is moving towards a more accepting stance on the ICC, whilst still not accepting the court's jurisdiction over its own soldiers. That's a start.

June 14, 2006

Stealing Art

Posted in criminal law at 5:54 am by thelawthoughts

This question has been bugging me for ages, and I wonder if anybody might like to give me an answer if you have one.

Why would anybody steal fine art? Surely it is not saleable, unless people are willing to pay a small fortune to house a painting they can't show anybody. Why do they do it? 

June 12, 2006

Is Appealing Appealing? (updated)

Posted in criminal law, judgments and transcripts at 9:17 am by thelawthoughts

Since Zarah Garde-Wilson is the subject of every second search that drives traffic to my blog, I thought I should write another post about her. People obviously want to know.

Links are somewhere, but she has abandoned her potential appeal against her contempt of court conviction. This in effect means she is trading off her practicing certificate on the chance she would go to jail for a month or so.

That is such a tough call for a person to make. For me, I would probably have a crack. I would figure that my career was that important. I don't think they would have sent her to the big house. If you read Harper J's first instance judgment, he was big on her having been through enough. I think the bench get it.

Here is a question. Would you testify? Would you be scared? Would you be scared enough to trade in your career? These are the decisions people make every day I suppose.

I also guess that one can always find another career, however it is tough to forget going to jail.

UPDATED: This post had a page view within five minutes of being posted. Incredible. 

June 11, 2006

Bosnian War Criminals

Posted in criminal law, war crimes at 3:37 am by thelawthoughts

It might take a lifetime to catch all these animals, but one by one, alleged Balkan war criminals are being captured and handed over to the ICTY.

Despite the reasonably slow progress in prosecuting these people, nevertheless the process must be pursued. If these people did half of what they are accused of, then the money being spent on their prosecution is well spent.

June 9, 2006

Hypocritical Murder

Posted in criminal law, murder, politics, terrorism at 9:11 am by thelawthoughts

Can somebody tell me why it is ok for the American military to murder people, but it is not ok for those same people to murder people? Why is nobody reporting the irony in George Bush's comments, which ran something like 'this violent man will murder no more'?

Now, I am not pro-terrorist and I don't care about numbers or scale. Zarqawi was an animal, I am sure. What I can't stand is a group of people getting up and saying that by their own murder, they have acted virtuously in preventing the murder of others. Why should governments be able to assassinate people, then blow up their photo on CNN and denounce them as murderers?

Murder is murder, regardless of which person commits it. I would even argue that state organised and sponsored killing is much worse than murder by a private citizen.

June 8, 2006

The Lying Big V

Posted in criminal law, politics at 5:26 pm by thelawthoughts

As a lawyer, who in their right mind would tell the media that a statement of agreed facts they handed up to the Federal Court was just something they said so that the problem would go away?
<!–[endif]–>

<!–[if !supportEmptyParas]–>Now, Steve Vizard is in the spotlight for a possible perjury prosecution. It is not like he said something in court before the police found a document on his hard drive which contradicted his evidence. He contradicted his own evidence in the Magistrates Court via a court document to be handed up in the Federal Court! <!–[endif]–>

If I were his lawyer, I would be checking seek.com.au for a new job and my professional indemnity insurance. What a great response. ‘Oh, yeah, that…We were just blowing smoke up your arse there, Your Honour. We didn’t really expect you to take those as facts, more, just, um, well, goodbye.’ [door slamming…sound of lawyer running].

How pissed off would the judge be?