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Make White-Collar-Offenders Pay (Additional) Tax And Subject Them To Technological Incarceration Instead Of Being A Tax Burden On Society, Mirko Bagaric, Theo Alexander, Brienna Bagaric

San Diego International Law Journal

White-collar offenders do not scare people. There is no reason to be afraid of them. Yet, they are subjected to the most serious sanction in our legal system – prison. Every white-collar prisoner costs society over $30,000 annually. Rather than punishing white-collar offenders in a way that further depletes the public revenue, we should compel them to remedy the damage they have caused by paying additional tax. There are more intelligent, evidence-based approaches to dealing with white-collar offenders. The objectives for dealing with white-collar offenders should be to impose penalties that are proportionate to the seriousness of the crimes; ensure …

End Crime With Harm? Castration For Sexual Offenders In Hong Kong, Max Hua Chen

San Diego International Law Journal

The issue of post-conviction treatment of sex offenders has been the subject of debate and changes to State legislation, particularly in respect of paedophile offences. One such treatment method is through chemical or physical castration on either a mandatory or a voluntary basis. In this regard, some States have implemented these measures for certain paedophile offences. Hong Kong (HK) has no such laws in place. Researchers such as William Winslade and his colleagues highlighted that whilst paedophilia may not be a stringently defined condition, it is one which involves a “reinforcing [pattern] of sexual behaviors,” with the result that sexual …

Long Live Joint Criminal Enterprise: With A Particular Reference To Tadić’S Interactive Construction Between “The Beast” And Specific Direction, Miguel Ângelo Loureiro Manero De Lemos

San Diego International Law Journal

The idea that Joint Criminal Enterprise, in particular its extended version, contravenes fundamental principles of criminal law has gained track. Thus, not only did the International Criminal Court distance itself from the construct but, today, the widely held view is that the extended version should be discarded, not least because it is not grounded in customary international law. This Article challenges that view. While addressing scholarly criticism towards Joint Criminal Enterprise, and demonstrating why the “beast” is a solid construction, it argues that prosecutors and judges must look past the written provisions of the Statute of the International Criminal Court …

A Path Forward To #Niunamenos Based On An Intersectional Analysis Of Laws Criminalizing Femicide/Feminicide In Latin America, Melissa Padilla

San Diego International Law Journal

Since 2007, eighteen Latin American countries have enacted laws that criminalize femicide/‌feminicide in an effort to address gender-based murders in the region and to uphold their obligations under international human rights law. However, the COVID-19 pandemic and its systemic lingering effects exacerbated the existent dangerous levels of gender-based violence in the region, resulting in an increase in gender-based murders. To address these murders, between 2020 and 2021, a quarter of the eighteen Latin American countries that criminalized femicide/‌feminicide have implemented or are in the process of implementing reforms to their laws criminalizing femicide/‌feminicide. Given this new trend to address the …

Deportations For Drug Convictions In The United States And The European Union: Creating A More Compassionate Approach Toward Drug Convictions In The Immigration Law, Megan Smith

San Diego International Law Journal

This Comment begins by examining and comparing the legal framework for deportation and other immigration consequences for convictions of drug offenses in the United States, the European Union, and the United Kingdom. This Comment then looks at the harsh effects of current immigration policy on individuals and marginalized communities. Finally, this Comment argues that immigration law should be reformed to adopt a more humanitarian approach toward non-citizens convicted of drug offenses. Deportation and other harsh immigration consequences for drug offenses levy disproportionately severe punishments toward vulnerable minority immigrant communities, exposing them to consequences much harsher than non-immigrants would face for …

Protection Of Witnesses And Sensitive Information In U.K. Criminal Prosecutions, Eric Waage

San Diego International Law Journal

This Article examines the film Closed Circuit, as it portrays the legal issues surrounding a British judge’s decision to hold a hearing in camera. As in the United States, holding in camera hearings safeguards the use of witnesses and protects confidential information before it is shared with all parties to a criminal case or the jury. Closed Circuit accurately portrays some aspects of the United Kingdom’s legal standards that govern these hearings including the judicial deference to the Crown’s national security interests, the appointment of cleared special counsel to represent the accused, and the use of pseudonyms to protect …

Re-Conceptualizing The International Human Right To Health: An Analysis Of The Trends In Developing And Developed Countries’ Responses To Substance Use Disorders, Leonard Mukosi

San Diego International Law Journal

This Article juxtaposes addiction paradigms seen in the United States of America and Zimbabwe, two countries with diametrically dissimilar political, economic, and social systems. Thus, an insight is provided by this Article into how developing and developed countries are transitioning from punitive to curative approaches in addressing the problem of drug addiction. Positing that addiction is a health condition, this Article recognizes the optimum realization of the addict’s right to health is best met if the required international standards of health are implemented nationally to insure, treat, and evaluate addiction like other chronic illnesses.

Drug addiction is a brain disease …

Policing Against The State: United Nations Policing As Violative Of Sovereignty, Alexandra R. Harrington

San Diego International Law Journal

It is the author's contention that both parties to the policing arrangement-be they individuals, states, or organizations-give up portions of their sovereignty in the creation and maintenance of the police and policed relationship where the police are not serving the state which theoretically guards the policed. Part II of this Article provides a discussion of legal concepts of state sovereignty in international law. Part III examines the role of police in U.N. peacekeeping missions from the first peacekeeping mission entailing policing operations in the 1960s through present day operations. This examination reveals a pattern in the growth and development of …

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with the …

Sub Judice And Free Speech: Balancing The Right To A Fair Trial Against Freedom Of Expression In Israel, Boaz Shnoor, Doron Menashe

San Diego International Law Journal

Over the past few years, a relatively large number of cases have arisen in Israel, in which media publications have allegedly influenced criminal proceedings. The Supreme Court of Israel has issued a number of inconsistent decisions regarding such publications.

In this Article, we will study the sub judice prohibition, analyze the concern of undue influence of media publications in criminal cases in light of contemporary behavioral literature, discuss the various approaches found in contemporary Israeli case law, and propose a new and better model.

Using The Ability To Host World Events As Incentive To Procure Voluntary Anti-Discrimination Legal Reform, Brett M. Crowell

San Diego International Law Journal

The International Olympic Committee (IOC) and Federation Internationale de Football Association (FIFA) have the power to effect global change. Countries vie for the honor of hosting world events such as the Olympic Games and the World Cup because of the prestige and the economic and political gains those events provide. The IOC and FIFA can and should use the incentive of hosting one of these events to procure legal reform in myriad humanitarian equality issues such as sexual orientation, gender, and race. These organizations can prompt this change by requiring that host countries uphold a set of minimum legal standards …

Proportionality In Perspective: Historical Light On The Law Of Armed Conflict, Jeremy Rabkin

San Diego International Law Journal

The argument of this article is that the proportionality rule in AP–I does express a doctrine that has real roots in western military practice, but it was not traditionally understood as the severe constraint on military operations that the Red Cross propounds. The western States at the Geneva drafting conference did not resist the proportionality rule. In fact, they were active sponsors of that formulation. They understood that rule to be consistent with past practice, including most Allied tactics in the world wars. At the time of the drafting conference, World War II was still within the personal memory of …

Admissible Or Inadmissible: The Role Of Formally Codified Rules Of Evidence As A Safeguard In Mexico’S Developing Adversarial System, Connie Dang

San Diego International Law Journal

[T]his Comment begins with a brief history of Mexico’s political framework, including an introduction to its civil law tradition, the positivist values present in its legal framework, and the previous criminal procedure reforms that took place before the current 2008 constitutional reforms. It is important to understand the challenges that the previous—and unsuccessful—constitutional reforms faced in order to appreciate the drastic scope of the current changes to Mexican criminal procedure. Part II will address the role of the United States in its relationship with Mexico relationship during the implementation of the 2008 constitutional reforms. As Mexico’s direct neighbor, the United …

A High Seas Requirement For Inciters And Intentional Facilitators Of Piracy Jure Gentium And Its (Lack Of) Implications For Impunity, Jonathan Bellish

San Diego International Law Journal

Around 2005, maritime piracy made a troubling resurgence three quarters of a century after a consensus had been reached that the age of piracy had permanently ended. Yet piracy returned in a slightly different form, with pirates relying more on land-based facilitators than their historical counterparts. Maritime piracy’s reappearance made ripe for consideration the question of whether a facilitator of maritime piracy must be physically present on the high seas while facilitating in order to be subject to universal jurisdiction. This Article undertakes an analysis of the text, statutory context, history, and policy impetus behind UNCLOS art. 101 as it …

Improper Deportation Of Legal Permanent Residents: The U.S. Government’S Mischaracterization Of The Supreme Court’S Decision In Nijhawan V. Holder, Michael R. Devitt

San Diego International Law Journal

The purpose of this Article is to draw attention to the government’s misinterpretation of the central holding in Nijhawan v. Holder and how it has led to the improper dilution of evidentiary standards in removal proceedings when determining the $10,000 threshold loss requirement under section 101(a)(43)(M)(i) of the INA [hereinafter “M(i)”]. Section II of this article provides a brief doctrinal overview and summary of my proposed procedural methodology; sections III and IV provide essential background information regarding the Supreme Court’s important pre-Nijhawan opinions and the inconsistent methods circuit courts have applied when calculating the monetary threshold under the fraud or …

The Judicialization Of International Atrocity Crimes: The Kharkov Trial Of 1943, Michael J. Bazyler, Kellyanne Rose Gold

San Diego International Law Journal

This Article analyzes the Kharkov trial, the first trial of Nazi war criminals undertaken by any Allied Power, as well as the first trial of the Holocaust. It is written on the occasion of the 70th anniversary of the Kharkov trial. Part II, as background, describes the Holocaust as experienced in Kharkov, Ukraine. Part III discusses the trial that took place in Kharkov: the defendants, the prosecution, the setting, and the testimony. Part IV looks at the Kharkov trial as a typical Stalinist “show trial,” where guilt has been predetermined and a trial is used merely as a show to …

Sovereignty In Theory And Practice, Winston P. Nagan, Aitza M. Haddad

San Diego International Law Journal

This Article deals with the theory and practice of sovereignty from the perspective of a trend in theoretical perspectives as well as the relevant trend in practice. The Article provides a survey of the leading thinkers’ and philosophers’ views on the nature and importance of sovereignty. The concept of sovereignty is exceedingly complex. Unpacking its meanings and uses over time is challenging. An aspect of this challenge is that the discourse about sovereignty is vibrant among diverse policy, academic, and political constituencies. At times, its narratives are relatively discrete and at other times, the narratives overlap with the discourses from …

Untangling The Web: Exploring Internet Regulation Schemes In Western Democracies, Renee Keen

San Diego International Law Journal

This Comment investigates past censorship schemes proposed and implemented by selected democratic administrations, in order to develop an improved framework and accompanying infrastructure that may accomplish the goals that these policies envisioned, but failed to achieve. The difficulty of this undertaking is in developing the intermediate and legally defensible parameters under which a regulation scheme can endure and gain support in a democratic society. The greater difficulty lies in developing a system that can accomplish these objectives in the burgeoning and ever-changing cyber realm. The challenges posed by Internet activity are novel ones, and the legitimacy of the actions taken …

Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein

San Diego International Law Journal

The Order in Council permitting the prosecution appeal of "Mo" Courtney's acquittal and allowing him to be retried for the same offense of which he had previously been acquitted stems from the Criminal Justice Act 2003. That Act, which applies in England and Wales, grants the government the right to appeal certain rulings by the trial judge in criminal prosecutions on an indictment, including a ruling that there is no case to answer, i.e., a directed verdict of acquittal, and if the appeal is successful, allows the reviewing court to order that the acquitted defendant?s trial be resumed or that …

Foreword, Brian J. Kennedy

San Diego International Law Journal

This final issue of the San Diego International Law Journal's twelfth volume is composed of articles which examine a broad range of contemporary legal issues which raise foreign, international, and global concerns.

Foreword, Brian J. Kennedy

San Diego International Law Journal

This twelfth issue of the San Diego International Law Journal is composed of articles which examine a broad range of contemporary legal issues of international and foreign significance.

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

A Sense Of Duty: The Illusory Criminal Jurisdiction Of The U.S./Iraq Status Of Forces Agreement, Chris Jenks

San Diego International Law Journal

This Article will examine the Iraq SOFA’s use of duty status as a basis for determining which State has primary jurisdiction over U.S. service members for alleged criminal misconduct in Iraq. In the third section, the Article will briefly explain what a SOFA is, and how and why they are used, focusing on the North Atlantic Treaty Organization (NATO) SOFA. This section will also utilize examples of U.S. service member misconduct, both associated with and detached from official duty, to illustrate the application of an acts-based SOFA jurisdiction article. The fourth section turns to the Iraq SOFA’s status-based jurisdiction article, …

Between Fragmentation And Unity: The Uneasy Relationship Between Global Administrative Law And Global Constitutionalism, Ming-Sung Kuo

San Diego International Law Journal

This paper aims to critically examine the status of global administrative law within the already widely acknowledged notion of global constitutionalism. While global constitutionalism describes the processual "constitutionalization" of an increasingly globalized world through the values emerging from cross-border regulatory cooperation, the global regulatory process at the heart of global administrative law appears to take the place of "We the People" as the creative force behind global constitutionalism. Contrary to the domestic/national context, the identitarian relationship between global administrative law and global constitutional law suggests the unity of global legality, whether it be called administrative law or constitutionalism. The paper …

Title Insurance In Mexico: A Necessary Protection, Duplicative Expense, Or Something In Between, Christina Clemm

San Diego International Law Journal

This Comment is written for those interested in buying property in Mexico and for the professionals who advise them. It begins by analyzing whether title insurance companies provide a necessary service for those purchasing property in Mexico. This section of the Comment addresses issues related to the protections afforded by Mexican law and whether title insurance is duplicative in light of those protections. It also discusses another option for a buyer, obtaining an opinion from a Mexican attorney. It goes on to analyze whether having a title insurance company maneuver the Mexican courts is a justification for its purchase. It …

Retrying The Acquitted In England Part Ii: The Exception To The Rule Against Double Jeopardy For Tainted Acquittals, David S. Rudstein

San Diego International Law Journal

Parliament enacted a statute in 1996 intended to limit the double jeopardy bar in some situations in which the defendant obtained an acquittal through improper means, thereby permitting the government to retry the person for the same offense of which he previously was tried and acquitted. The statute, part of the Criminal Procedure and Investigations Act 1996, allows a retrial when an individual's acquittal was tainted, which, under the statute, means an acquittal resulting from interference with, or intimidation of, a juror, witness, or potential witness. In allowing a retrial in such circumstances, the statute creates an exception to the …

Seeking The Final Court Of Justice: The European Court Of Human Rights And Accountability For State Violence In Northern Ireland, Christopher K. Connolly

San Diego International Law Journal

This article examines the impact of the European Court's right to life jurisprudence on the issue of accountability for state violence in Northern Ireland. To date, the initiatives undertaken by the United Kingdom to comply with the European Court's rulings are largely unsatisfactory. Piecemeal institutional reforms aimed at preventing future breaches of Article 2 have failed to fully address the underlying concerns identified by the Court, and domestic right to life jurisprudence has placed significant limitations on the extent to which past violations of the right to life can be dealt with effectively in British courts. The United Kingdom's response …

Foreword, Shanish M. Aloor

San Diego International Law Journal

The impact of international law has reached past foreign policy and has now extended into every part of U.S. government. Our last issue emphasized the increasing importance of globalization on domestic issues such as national elections. In the past decade, international laws have had a practical effect upon the interpretation of United States domestic law. Influential jurists such as former Justice Sandra Day O'Connor have expressed "that with time [the judiciary] will rely increasingly on international and foreign law in resolving what now appear to be domestic issues, as we both appreciate more fully the ways in which domestic issues …

Retrying The Acquitted In England, Part I: The Exception To The Rule Against Double Jeopardy For New And Compelling Evidence, David S. Rudstein

San Diego International Law Journal

More than 240 years ago, Sir William Blackstone, perhaps the most important commentator on the English common law, wrote that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. This plea of autrefois acquit (a former acquittal), Blackstone explained, is based upon the principle that no man is to be brought into jeopardy of his life, more than once for the same offence, which he called a universal maxim of …

U.S. Asylum Law Out Of Sync With International Obligations: Real Id Act, Victor P. White

San Diego International Law Journal

Focusing on defensive asylum applications, this Comment examines whether certain provisions of REAL ID violate due process and international obligations to asylum seekers. Part I situates REAL ID within the historical context of nearly a decade of restrictive U.S. immigration law and over two decades of Executive Orders aimed at deterring a mass exodus of asylum seekers from reaching U.S. shores. Part II provides an overview of the U.S. asylum system and argues that the system produces inconsistent and sometimes arbitrary results, indicating that segments of the system do not satisfy international obligations. Part III outlines three provisions of REAL …