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Article

Access_open Moet de strafrechter ook de scheidsrechter zijn van het publieke debat?

De scheiding der machten in het licht van de vrijheid van meningsuiting voor volksvertegenwoordigers

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Freedom of speech, Separation of powers, Criminal law, Hate speech, Legal certainty
Authors Jip Stam
AbstractAuthor's information

    This article contains a critical review of the provisions in the Dutch penal code regarding group defamation and hate speech. It is argued that not only these provisions themselves but also their application by the Dutch supreme court, constitutes a problem for the legitimacy and functioning of representative democracy. This is due to the tendency of the supreme court to employ special constraints for offensive, hateful or discriminatory speech by politicians. Because such a special constraint is not provided or even implied by the legislator, the jurisprudence of the supreme court is likely to end up in judicial overreach and therefore constitutes a potential – if not actual – breach in the separation of powers. In order to forestall these consequences, the protection of particularly political speech should be improved, primarily by a revision of the articles 137c and 137d of the Dutch penal code or the extension of parliamentary immunity.


Jip Stam
Jip Stam is onderzoeker en docent bij de afdeling Encyclopedie van de rechtswetenschap aan de Leidse rechtenfaculteit.
Article

Access_open Enemy of All Humanity

The Dehumanizing Effects of a Dangerous Concept

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords enemy of all humanity, hostis humani generis, piracy, international criminal law, Luban
Authors Marc de Wilde
AbstractAuthor's information

    In his contribution to this special issue, David Luban proposes to revive the age-old concept of ‘the enemy of all humanity.’ On his view, this concept supports the aims of international criminal justice by emphasizing that atrocity and persecution crimes are ‘radically evil’ and therefore ‘everyone’s business.’ Criticizing Luban’s proposal, this paper shows that in the past, the ‘enemy of all humanity’ concept has often served to establish parallel systems of justice, depriving these ‘enemies’ of their rights as suspects under criminal law and as lawful combatants under the laws of war. Thus, even if the ‘enemy of all humanity’ concept is used with the intention to bring today’s perpetrators of ‘radical evil’ to justice, it risks undermining, rather than protecting, the rule of law.


Marc de Wilde
Marc de Wilde is Professor of Jurisprudence at the University of Amsterdam.
Article

Access_open ‘We Do Not Hang Around. It Is Forbidden.’

Immigration and the Criminalisation of Youth Hanging around in the Netherlands

Journal Erasmus Law Review, Issue 1 2016
Keywords Criminalisation of youth hanging around, culture of control, immigration and discrimination
Authors Thaddeus Muller
AbstractAuthor's information

    The focus in this article is the ‘criminalisation’ of youth hanging around with the emergence of bans on hanging around. A critical social constructivist approach is used in this study, which draws predominantly on qualitative primary data collected between the late 1980s and 2010s. The article compares indigenous with immigrant youth, which coincides with, respectively, youth in rural communities and youth in urban communities. This study shows that there is discrimination of immigrant youth, which is shaped by several intertwining social phenomena, such as the ‘geography of policing’ – more police in urban areas – familiarity, sharing biographical information (in smaller communities), and the character of the interaction, normalising versus stigmatising. In further research on this topic we have to study (the reaction to) the transgressions of immigrant youth, and compare it with (the reaction to) the transgressions of indigenous youth, which is a blind spot in Dutch criminology.


Thaddeus Muller
Thaddeus Muller, Ph.D., is senior lecturer at the Lancaster University Law School.

    The Kenyan Situation pending before the International Criminal Court (ICC) is the first situation in which the prosecutor exercised his power to initiate cases “proprio motu” under Article 15 of the Rome Statute. In the wake of the comments from the former Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, that there was political interference from foreign diplomats during the investigation stage of the cases, it is prudent to re-examine the standards provided under the Rome Statute regarding prosecutorial discretion and evaluate the prosecutorial power and how the Kenyan cases may shape this discretionary power in order to align it with the Preamble of the Rome Statute. The Preamble affirms that the most serious crimes of concern to the international community must not go unpunished. Further, that their effective prosecution must be ensured for the purposes of ending impunity for the perpetrators of international crimes and thus to contribute to the prevention of genocide, crimes against humanity, war crimes, and crimes of aggression.


Simeon P. Sungi
Associate Professor of Criminal Justice at the United States International University in Nairobi, Kenya. He is also an Advocate of the High Court of Tanzania and the High Court of Kenya. Dr. Sungi holds a PhD in Criminal Justice from Indiana University in Bloomington, Indiana; an MA in Criminology and Criminal Justice from Indiana State University in Terre Haute, Indiana; and an LLM in International Human Rights Law from Indiana University School of Law (now Robert H. McKinney School of Law) in Indianapolis, Indiana, all in the United States of America. He also holds an LL.B. Hons degree from the Open University of Tanzania. He is a former United Nations International Criminal Tribunal for Rwanda staff member. The views expressed herein are his own; ssungi@alumni.iu.edu.

    This article explores the politics of international criminal justice and argues that the International Criminal Court is a lieu of staged performance where actors deploy their political narratives. Using the Situation in the Republic of Côte d’Ivoire before the ICC and focusing on the pre-trial phase, I contend that the defendants Laurent Gbagbo and Charles Blé Goudé project a performance and deploy political narratives that are the extension of the politics of the Ivorian crisis, which make the Court the quintessential arena where domestic and international politics cohabit with law and rules of procedure.


Oumar Ba
Oumar Ba is a PhD Candidate in the Department of Political Science at the University of Florida.
Article

Volksraadplegingen: kan België wat leren van Nederland?

Journal Res Publica, Issue 1 2009
Keywords referendum, local referenda, local politics
Authors Jo Buelens
AbstractAuthor's information

    Belgium did not organise a referendum on the European Constitution, like the Netherlands, even though there were some initiatives to make it legally possible. In the Netherlands there is also more experience with referenda at the local level. For decades there has been a debate about how to make it legal at the national level, but after many attempts, there is still no law that makes referenda possible at that level. The aim of this article is to compare Belgium and the Netherlands in order to identify similarities and differences. Some explanation can be found in the past, which clarifies why Belgium is reluctant to referenda and why at the local level this tool is not as often used as in the Netherlands. The main conclusion is that in spite of the referendum on the European Constitution in the Netherlands and the more frequent use of local referenda in that country, the political classes in Belgium and the Netherlands are comparable in their reluctant attitude towards this consultation of their citizens. Both countries continue to evaluate referenda as not in accordance with the system of representative democracy.


Jo Buelens
Jo Buelens (°1954) is verbonden aan de vakgroep politieke wetenschappen van de Vrije Universiteit Brussel. Zijn belangstelling gaat met name uit naar politieke partijen, verkiezingen en lokale politiek. Hij doceert tevens aan de Erasmus Hogeschool Brussel.
Article

Access_open 'Sociale vrede' als kelseniaanse voorstelling van rechterlijke rechtvaardigheid

Journal Netherlands Journal of Legal Philosophy, Issue 1 2008
Keywords aansprakelijkheid, rechtspraak, geweld, autonomie, rechtmatigheid, vertaling, auteur, idee, voorwaarde, belanghebbende
Authors M. Notermans

M. Notermans

E.T. Feteris
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