Laws, Volume 12, Issue 4 (August 2023) – 15 articles

This chapter evaluates how South Africa approaches and applies certain aspects of the Hague Convention on the Civil Aspects of International Child Abduction, the challenges it faces, and how it submits proposals to improve its application. The SA courts are the upper guardians of children in terms of the common law and uphold the best interests of the child as a paramount principle. The Chief Family Advocate (“FA”) has been appointed as the Central Authority (“CA”) and falls under the Department of Justice and Correctional Services. The Chief Liaison Judge is based in the Appeal Court and has appointed Liaison Judges in the Provincial Divisions. How SA approaches international child abduction, and applies the HC, is explored. SA has a rich jurisprudence around the practical application of the HC. The procedure in these matters; the general rules and exceptions; the voice, representation and participation of the child; and the approach to children’s best interests and measures to protect their interests are evaluated. SA’s approach in regard to HC matters could be improved. How the challenges of an independent best-interests factor, outcomes veering away from the return principles, the FA’s compromised role as the CA, and the delays in outcomes prejudice the HC’s philosophy and the application thereof are considered. Recommendations are made for the acceleration of proceedings, more certainty in the consideration of Article 13 defences incorporating protective measures in return orders, further clarity from courts or the implementation of practice directives in these matters, the use of mediation, and further guidelines/directives to be provided. Given the importance of the HC in international child abduction matters, hopefully the aims and purposes of the HC can be fully realised in SA’s future. Full article

High-profile school shootings in recent years have fueled fear and uncertainty among stakeholders (e.g., parents, teachers, and students) and the public debate on gun control legislation nationwide. These fears are reflected in the public discourse and the academic community, which focuses their investigation on rampage school shootings. To address this gap in the empirical literature, the current study’s goal is twofold: (1) to contribute to the descriptive understanding of school shooting characteristics; and (2) address the gaps in the extant literature through examining the perpetrators relationship with the school on the total number of victims during a school shooting incident. Secondary data analysis was performed on the K-12 School Shooting database (K-12 SSDB). A negative binomial and descriptive analysis were conducted on the K-12 School Shooting database, established by the Naval Postgraduate School’s Center for Homeland Defense and Security (CHDS) in 2018, which has been recently updated to reflect recent incidents. The findings and policy implications of the findings are discussed in detail in the manuscript. Full article

Although victims have the right to limited participation in trials and to seek reparations after sentencing, the legal structure of the International Criminal Court (ICC) prioritizes retributive justice over restorative justice and punishment over reparations. Thus, currently, although the perpetrators can be tried through the ICC, it is still difficult to obtain reasonable compensation for the damages suffered by the victims. On the one hand, the ICC’s reparation system may be restricted by the identity of the victim, ICC internal factors, and so on. The current structure of the ICC compensation system allows for hierarchical relationships between victims, while at the same time, there is tension between individual and collective types of compensation. These factors have led to a disconnect and gap between the protection of rights at the theoretical level and actual reparation. This dichotomy between the theoretical protection of the rights of victims and the real protection of victims in practice exists in the ICC. Victims are isolated from the field of vision due to potential repercussions. The idealistic illusion of justice is completed when the ICC stands on the stage and accepts the audience’s praise. However, for compensation in criminal courts, people are paying increasing attention to the legal process and content. In practice, the proportion of victims of international crimes is not low, and in some cases, victims are widespread. It can be seen that criminal compensation for victims is an issue that spans a vast range of people and regions. Nonetheless, there are still research gaps regarding reparation and other ideas of justice according to the ICC, how the ICC provides multifaceted safeguards for victims, and the limitations and influence of the mechanism of the ICC on the compensation of victims. Considering the above problems, this paper aims to analyze the International Criminal Court indemnity cases. This paper wishes to analyze reparations and other ideas of justice under the ICC, examining the approach of the ICC toward compensation for victims, where the ICC is heading regarding reparations for victims, how the reparations system works, and the advantages and disadvantages of the reparations system, as well as what are the potential problems of ICC related to reparations. What guarantees do the ICC’s mechanisms provide for victims to be able to receive reparations? How does the structure of the ICC reparations system conflict with victims’ reparations in practical terms? What are the potential obstacles and gaps between criminal trial reparations and victims? The first chapter wants to analyze the early Nuremberg tribunal, Tokyo tribunal, ICTY, and the ICTR by analyzing whether international criminal justice under these military tribunals was restorative justice or reparation justice and interspersed with analyses of reparation to victims under these tribunals. Then, it analyses it further about justice and reparation of the ICC, and it talks about the compensation for the victim and how the idea of compensation under the ICC has evolved. Using these arguments to analyze reparation and other different ideas of justice under the paly of ICC. The second chapter of the article analyzes the “participatate in trial for compensation”, “The limits of participating in trial”, “Safety protection for victims” to demonstrate the current protection and progress of the ICC system on the issue of victims’ compensation, this is because victims’ participation in the trial will bring a lot of help to the issue of compensation. The article analyses the significance and shortcomings of participation in a trial for compensation, which is necessary and meaningful to the issue of compensation because “participation in trial” and compensation are related and complementary to each other, as participation of the victims will bring a lot of help to the issue of compensation. The article analyses the section “Protection of the financial situation of victims: A possible alternative methods of reparation” because, to some extent, it can be seen as an alternative method of ICC compensation. The third chapter of the article hopes that by analyzing “Little compensation”, “The silence court put on victims’ rights of compensation”, “The ICC’s model of judicial administration remains optional” to argue and analyze how the structure of the ICC reparations system conflict with victim reparations in practical terms. Because the silence the court put on victims’ rights of compensation and the ICC’s model of judicial administration remains optional, both directly impact the issue of compensation. Chapter IV mainly aims to analyze some of the potential negative impacts of the ICC on victim reparations, specifically “The victim’s social death”, “Restrictions on “expression” between the victim and the court”, “Does the ICC hope to improve its attitude to victims?” to specifically analyze and argue these aspects of its potential negative impact on victim reparations. On this basis, this paper analyzes the gap between criminal trial reparations and victims to identify what negatives exist between the two. Full article

This paper outlines three broad models that have informed the relationship between the law and children’s involvement in decision making—the property/instrumentalist approach, the welfare approach, and a rights-based approach. It identifies and critiques contemporary legal practices that regulate children’s decision making against the standards required under a rights-based approach. The focus is on three contexts—(i) statutory bright line minimum age rules; (ii) presumptive age limits, and (iii) individual decision making involving children where there is often an interplay between the principle of Gillick competency and the parens patriae jurisdiction of a court. The key arguments advanced are that a rights-based approach tolerates minimum age rules and presumptive age limits under certain conditions. A rights-based approach also aligns closely with the principle of Gillick competency but offers a deeper and more nuanced insight into how to enable and support decision making with children across childhood. Finally, a rights-based approach also offers novel insights into how the parens patriae jurisdiction of common law courts, with its historical emphasis on the protection of children, could be developed to better protect children’s rights and decisional autonomy. Full article

The courts of England and Wales permit applicants in 1980 Hague Convention child abduction proceedings also to bring concurrent applications for the return of the child to their state of habitual residence based on a summary welfare assessment, which can be issued and heard alongside the Hague application. Given the different nature of these two applications, having them heard concurrently raises a number of challenges for the parties in terms of the evidence required and for the court in terms of the analytical process being undertaken. This article explores the nature of the two applications, the reasons why they might be brought concurrently, and the challenges that can arise in such cases. Full article

In this article we compare how children’s objections to being returned to their country of origin are treated in Hague child abduction matters in three different international jurisdictions: England and Wales, Australia, and the United States. We examine the relevance of children’s views for the purposes of the ‘gateway’ stage of the relevant exception to mandatory return, and how children’s objections have been approached in legislation, case law, and scholarly commentary. We critique each jurisdiction’s approach against the objectives of the Hague Convention and the Convention on the Rights of the Child. We discuss how aspects such as the methods by which children are heard can make a difference to experiences for children and make recommendations to promote greater certainty and consistency in how children’s objections are heard and considered across jurisdictions. Full article

This study aimed to examine the connection between the crime of corruption and human rights violations. Indonesia’s corruption-eradication regulations have increased the possibility of handling human rights-based corruption cases. This study employed doctrinal legal research that mainly relied on anti-corruption legislation and corruption cases in judicial decisions. The results showed that the law states that corruption infringes on people’s economic, social, and cultural rights. We employed a plausible scenario to provide practical explanations of the relationship between the two variables. The types of crimes of corruption have a direct nexus to the violation of human rights. In addition, there was inadequate proof of the connection between corruption and human rights violations in court rulings. Specifically, a few court decisions relate corruption to human rights violations. Judges consider the relationship more thoroughly when making legal considerations and when it is not applied as an aggravated circumstance, resulting in significantly milder prison sentences. The findings imply the necessity of mainstreaming corruption as a human rights violation through comprehensive and massive studies. Furthermore, legal enforcement institutions need to issue guidelines and provide continuous training on handling human rights-based corruption cases to the police, public prosecutors, and judges. Full article

The EU and its Member States share responsibility for improving the living conditions and integration of the Roma into society. When developing systemic solutions to address the challenges of the Roma population, the first thing to do is to provide them with a suitable living environment. A suitable living environment for vulnerable social groups includes social housing adapted to their needs and preferences as part of the social infrastructure. In the first, theoretical part, this paper explores the existing international, EU, and Slovenian legal framework for addressing the housing needs of the Roma community. In the second, empirical part, the preferences of the members of the Roma Community regarding the type and architecture of housing, and their financial capacity regarding the type and location of accommodation are examined through a survey that was conducted in the Roma settlement “Kerinov Grm”. The research paper gives answers to the following research questions: (1) what are the preferences of the inhabitants of Roma settlements regarding the type of housing and architecture? (2) how to provide adequate housing for members of the Roma community? and (3) do the Roma take advantage of the available free non-profit housing, and if not, why? The survey shows a very low level of satisfaction with living in Roma settlements, which, in combination with the growing population, limited possibilities for settlement expansion, and specific housing preferences, poses a unique challenge to the state and local communities. Full article

This article reflects on the proposed pandemic treaty negotiations, the content of the recently published Zero Draft and its prospects for success in preventing future pandemics from emerging at all. It argues that, as presently conceived, the proposed instrument does little to address environmental damage as the primary driver of zoonotic spillover, nor does it make sufficient provision for the implementation and enforcement of legal obligations. In particular, the piece suggests that human rights and rights of nature can and should feature more prominently in efforts to fully realize the One Health agenda and strengthen environmental governance with a view to mitigating the risk of future pandemics. Experience from rights-based approaches in other contexts suggests that they offer a promising conduit for achieving genuine policy reform and accountability regarding environmental degradation. Indeed, human rights and rights of nature can play an important role in mitigating ecological destruction, biodiversity loss and, in turn, preventing disease transmission from the natural world. Full article

A key impetus for the implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction was the protection of children from the harmful effects of their wrongful removal or retention. This article considers how well the Convention is achieving this aim in light of the challenges it faces in a global society that has changed significantly since its introduction. Two key aspects of the Convention’s operation are addressed in this regard: (i) The intersection between domestic violence and the exception to return in Article 13(1)(b); and (ii) the adoption of practices to enable abducted children to receive information about, and be given effective opportunities to express their views and be heard in, Convention cases. The article discusses why, how, and to what extent the Convention needs to be nurtured to best position it to meet current and future challenges and demands, including the current differences in interpretation and implementation globally. Suggestions are made to help future-proof the Convention so that children can be best protected in the way envisioned by the Convention. Full article

Even though hate speech is an extreme form of intolerance, which contributes to hate crime, the assessment of this particular behavior and its expressions is often problematic, because hate speech is difficult to define and even more difficult to investigate and punish. In the present article, the authors analyze the development of human rights standards (in particular as interpreted in the case-law of the European Court of Human Rights) regarding freedom of expression and hate speech and look at their application in Poland and Slovenia through a comparative analysis of Polish and Slovenian law and practice. We noticed that challenges with fulfilling international obligations to adequately respond to and fight hate speech can be observed and that some room for improvement on the level of lawmaking, policymaking, and their effective implementation is present. The most evident challenge remains in the low rates of prosecution of hate crimes recorded by the police, which need to be addressed by both States. In Slovenia, some positive systemic and regulatory changes have recently been introduced, while in Poland there has been little progress and not all victims of hate speech are adequately protected by law. The authors suggest a focus on educating individuals about the harmful consequences of hate speech and acts, adapting legislation to appropriately punish individuals who spread hate speech, raising awareness and understanding of the rhetoric used in the public sphere, and increasing media support for the aforementioned awareness, keeping in mind that solutions on how to appropriately address or prevent hate speech are by no means simple or straightforward. Full article

A recent trend can be seen in jurisprudence concerning the Hague Convention on the Civil Aspects of International Child Abduction, at least in the Australasia/Pacific region. Courts are now more mindful of the abducted child in particular and will investigate the true impacts of returning the child to determine what is in their best interests, particularly in cases of domestic violence. This is a departure from the long-standing emphasis on returning abducted children promptly to their country of habitual residence, after which the courts of that country will make the final decision, because it is generally in the best interests of children to deter child abduction. This article compares various jurisdictions’ approaches with the lens of whether the courts are preferring the particular child over the ‘theoretical’ child. Full article

Habitual residence is a key concept in the scheme of the Hague Child Abduction Convention because it determines the applicability of the mandatory return mechanism. However, the concept is not defined, and over the years there have developed different approaches thereto. In recent years, there has been increasing doctrinal uniformity as a result of wide adoption of the hybrid approach. However, there are real disparities in the way in which this approach is applied by different judges and the question of habitual residence remains one of the most litigated issues under the Convention. This article reviews recent case law developments and explains the disparities. It then proceeds to propose guidelines that might assist in increasing uniformity and ensuring that findings of habitual residence promote the objectives of the Convention. Full article

The idea for this Special Issue on ‘Human Rights Protection for Migrants’ was born out of a combination of frustration and scepticism in the face of International Human Rights Law’s enduring struggles to extend protections to non-nationals, but also out of hope in the light of (some) human rights bodies’ attempts to carve out ‘protective spaces’ for migrants against the backdrop of hostile migration laws and policies across the globe [...] Full article

Thousands of unaccompanied children arrive at the U.S. border each year. In many cases, these children are fleeing harsh conditions in their home country in search for safety and family. The U.S. immigration system lacks an adequate response for these children, providing only two exceedingly difficult paths: asylum and the Special Immigrant Juvenile Status designation. While providing access to a path to citizenship over time, the system is arcane and adversarial. Moreover, through it all, these children lack a right to an advocate who can protect their interest or at a minimum advise the immigration court of how to serve the child’s best interests. This article explores issues surrounding unaccompanied children in the U.S. immigration system and suggests the need for an independent juvenile immigration justice system similar to the Federal Juvenile Criminal Justice System. Full article