Nauki penalne wobec szybkich przemian socjokulturowych Księga jubileuszowa
Profesora Mariana Filara TOM II R e d a k c j a n a u k o wa
Andrzej Adamski, Janusz Bojarski, Piotr Chrzczonowicz, Michał Leciak
Redaktor prowadzący Justyna Brylewska Redakcja techniczna dywiz
Korekta Alicja Kloska Projekt okładki Marek Głowacki
© Copyright by Wydawnictwo Adam Marszałek Toruń 2012 ISBN 978-83Współpraca wydawnicza Wydawnictwa Adam Marszałek z Uniwersytetem Mikołaja Kopernika w Toruniu
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Wydawnictwo Adam Marszałek, ul. Lubicka 44, 87-100 Toruń tel. 56 660 81 60, e-mail: info@marszalek.com.pl, www.marszalek.com.pl Drukarnia nr 1, ul. Lubicka 46, 87-100 Toruń, tel. 56 659 98 96
Szanownemu Panu Profesorowi Marianowi Filarowi Przyjaciele, Koledzy, Współpracownicy
Spis treści
Prawo karne procesowe P i o t r H o f m a ń s k i , Wykorzystanie w postępowaniu karnym informacji pozyskanych poza procesem – paląca potrzeba zmian .................................................. 13 M a r i a J e ż - L u d w i c h o w s k a , Skazanie w trybie art. 335 i 387 k.p.k. a funkcje procesowego prawa karnego w świetle projektowanych zmian legislacyjnych ........................................................................................................... 23 M o n i k a K l e j n o w s k a , Pokrzywdzony przestępstwem na tle współczesnych
tendencji rozwojowych prawa karnego ............................................................................ 39
S t a n i s ł a w P i k u l s k i , M a ł g o r z a t a S z w e j k o w s k a , Wybrane zagadnienia dotyczące wykorzystania wiedzy z zakresu psychiatrii i psychologii na potrzeby stosowania internacji psychiatrycznej z art. 94 k.k. ........................................................ 58 J e r z y S k o r u p k a , Kilka uwag o sprawiedliwości procesu karnego .......................... 75
Prawo karne wykonawcze L e s z e k B o g u n i a , To m a s z K a l i s z , Wątpliwości dotyczące nowych
rozwiązań w zakresie bezpieczeństwa osobistego osadzonych (Uwagi na tle art. 88d i 212 ba k.k.w.) .............................................................................. 93
S t e f a n L e l e n t a l , Środki zabezpieczające orzekane i wykonywane wobec
sprawców przestępstw seksualnych ................................................................................ 118
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Spis treści
Prawo karne porównawcze i międzynarodowe prawo karne A n d r z e j A d a m s k i , Amerykańska polityka karna w sprawach przestępstw
związanych z pornografią dziecięcą ................................................................................ 135
S t a n i s ł a w H o c , Szpiegostwo w kodeksie karnym Federacji Rosyjskiej .............. 158 K r z y s z t o f I n d e c k i , Art. 30 Statutu Międzynarodowego Trybunału Karnego.
Zagadnienia wybrane ....................................................................................................... 171
J u s t y n a J u r e w i c z , Handel ludźmi w ujęciu Konwencji przeciwko
międzynarodowej przestępczości zorganizowanej w powiązaniu z protokołami dodatkowymi ........................................................................................... 191
A r k a d i u s z L a c h , Unifikacja i harmonizacja prawa karnego w Australii ............ 222 A l i c j a O r n o w s k a , Holenderskie doświadczenia z wprowadzeniem kary pracy na cele społeczne i aktualne kierunki jej zmian ............................................................ 232 S ł a w o m i r R e d o , The long convergence. How a thin blue link advances
global criminal law ............................................................................................................ 251
Kryminologia K a t a r z y n a L a s k o w s k a , Przestępczość z użyciem
materiałów i urządzeń wybuchowych w Polsce – zmierzch zjawiska? ...................... 269
E m i l W. P ł y w a c z e w s k i , Kilka refleksji na temat przestępczości i jej kontroli w Japonii ............................................................................................................................. 286 W i e s ł a w P ł y w a c z e w s k i , Ekokryminologia wobec zorganizowanych form kłusownictwa oraz nielegalnego handlu dzikimi gatunkami chronionej awifauny ............................................................................................................................. 305 L e s z e k W i l k , Kryminologiczne aspekty uzależnienia od hazardu ........................ 323
Spis treści
9
Polityka kryminalna i penologia J a n i n a B ł a c h u t , M a g d a l e n a G r z y b , Jeżeli kobieta mówi „nie”,
to co to oznacza ? .............................................................................................................. 341
L e c h G a r d o c k i , Kryminalizacja i dekryminalizacja w polskim ustawodawstwie karnym w latach 2006–2011. Wybrane zagadnienia ................................................... 353 M i r o s ł a w a M e l e z i n i , Znaczenie środków karnych w polityce karnej ............... 365 M o n i k a P ł a t e k , Genderowo-prawne aspekty usług seksualnych w Polsce ......... 390 J a r o s ł a w U t r a t - M i l e c k i , Kryminalizacja polityki państwa. Zarys krytycznej
analizy podstaw teoretycznych kryminalizacji polityki państwowej .......................... 408
Kryminalistyka M a r i u s z K u l i c k i , L e s z e k S t ę p k a , Prawne i kryminalistyczne pojęcie
broni strzeleckiej w świetle zmian przepisów ustawy o broni i amunicji .................. 437
J ó z e f Wó j c i k i e w i c z , V i o l e t t a Kw i a t k o w s k a - Wó j c i k i e w i c z , „Dobry
wróż dowodowy”? Paranauka w procesie sądowym .................................................... 452
Inne dyscypliny – varia B o g u m i ł B r z e z i ń s k i , Dochody podatkowe jako przedmiot ochrony prawnej w kontekście zjawiska unikania opodatkowania ............................ 467 Te r e s a D u k i e t - N a g ó r s k a , O stanie prawa medycznego uwag kilka ................ 480 A n d r z e j G a c a , Prawo karne materialne w Kodeksie Waldemara II
z 1241 roku ......................................................................................................................... 494
J a n u s z J u s t y ń s k i , Przyczynki do rzymskiej filozofii prawa karnego ................... 513 A n d r z e j J . S z w a r c , Ustawowe uregulowanie sportowej odpowiedzialności dyscyplinarnej .................................................................................................................... 523
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Spis treści
Z b i g n i e w W i t k o w s k i , A g n i e s z k a B i e ń - K a c a ł a , „Mania ustawodawcza” – przewlekła choroba polskiego parlamentu i metody jej leczenia ............................ 538 E l e o n o r a Z i e l i ń s k a , Kilka uwag w sprawie odpowiedzialności zawodowej
lekarzy kierujących podmiotami leczniczymi ............................................................... 548
Noty o autorach ......................................................................................................................... 560
Sławomir Redo*
The long convergence. How a thin blue link advances global criminal law
T
Introduction
his article is prompted by the book The Long Divergence. How Islamic Law Held Back the Middle East by Timur Kuran1. He credits religious pan-tribalism, until the early Middle Ages common to the Occident and the
* The author thanks Prof. Irmgard Marboe (the University of Vienna, Austria) for her comments on the earlier draft of this article. [From the Editor:] Dr hab.; United Nations Office on Drugs and Crime (1981–2011); Professor at the Łazarski University (Warsaw, Poland), Visiting Lecturer/Privatdozent at the University of Vienna (Austria). As a UN Senior Crime Prevention and Criminal Justice Expert, he was involved in technical assistance projects implementing United Nations law against organized crime in Central Asia. In other capacities he assisted in crime prevention cooperation between developing countries (South-South); urban crime prevention; abolition of the death penalty; crime prevention and civilian private policing; virtual forum against cybercrime; on-line international crime prevention and criminal justice education. He has been guest lecturer/speaker at many universities and institutes worldwide and has published 4 and co-edited 3 criminological books and about 60 articles, mainly on UN law and practice of crime prevention and criminal justice. He is a member of the Academic Council on the United Nations System and of the Austrian Society for Criminal Law and Criminology; email s@redo.net. 1 T. Kuran, The Long Divergence. How Islamic Law Held Back the Middle East, Princeton 2011.
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Orient2, to the continuous relative underdevelopment of the Middle East. In the Western world that form of governance has since subsided. It gave way to growing statehood through the concomitant secularization of civic affairs. Consequently, by the 18th century, the Occident had accumulated critical international business and legal experience enabling it to advance various corporate law based market instruments. They put the Occident at the forefront of global modernization, as we see it now. The book emphasizes that the above split between moral and market values led to divergent paths in regulating the corporate life (business, community). Different laws controlled economic inequality and the self-governance in the Occident and Orient. In Shari’a law dominated countries, its excessive egalitarianism and polygny enabling women and their children to inherit their husband’s shares, combined with insufficient self-governance are the two critical factors that disperse the capital and arrest the socio-economic progress. By contrast, economic inequality „inter alia” driven by the principle of monogamy, primo- then ultimogenitur enabling pooling the capital, combined with a broader than in those countries public participation in the State’s and local affairs, have been the hallmarks of development that until the 19th century drove forward the Occident. Only now, in the 21st century, will the Islamic world be able to catch up in economic terms with the Occident. This is because only presently do the Islamic countries have, through the introduction of modern corporate law institutions, like (nominally) interest-based investment banking and stock exchanges, the necessary legal and institutional infrastructure. Against the background of that new infrastructure, and in spite Shari’a’s continuously excessively egalitarian inheritance law and rigid hereditary succession, Islamic countries may now overcome the major impediment standing in the way of their progress – the inability to accumulate by their businessmen high investment capital for large-scale modernization. This will permit a more competitive and equal economic participation in the contemporary global trade, so the book optimistically concludes. In this context the author humbly acknowledges that: “Western civilization is essentially an amalgam of intellectual constructs which were designed to further the interest of their authors” (N. Davies, Europe: A History, Oxford 1994, p. 25). Consequently, what is geopolitically “Occidental” or “Oriental” for him may not necessarily be so for other authors. 2
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Since the globalization of trade has started with its gradual internationalization that led to the emergence of various criminal law and crime prevention principles and practices (e.g. the universal jurisdiction principle against piracy as a delictum iuris gentium; the consular protection of detained foreign criminal suspects; countering criminal, interethnic and other global security threats), the above lagging legal and institutional developments may still have implications for the recent programme and action contents of UN criminal law and policy. The present article takes up some of these new implications. Progressive development of international criminal law
Unlike those academics who mainly research topics by analysing “problems”, my combined capacity of a UN official with 30-year long experience and of an academic with additional 10-year employment at Professor Marian Filar’s University and other universities, prompts me, because of the dominance of my practical interest, to start a counter narrative. It will involve researching and demonstrating “progress” (even if tenuous only) on “the long divergence” problem. Hence the article’s title “The long convergence…”. One century ago, much before the book by Kuran, Professor Makarewicz (1872–1955), Polish lawyer, penal philosopher and anthropologist3 in his book Introduction to the Philosophy of Criminal Law on Historical Principles4 proved that since the beginning of humankind, tribes formed through religion and interpersonal exchange, with the image of “others” gradually becoming less hostile as trade grew. However, unlike in the 19th century Middle East and Central Asia (Turkmenia), where only traders of kin or their friends enjoyed local hospitality (while others might still be victimized) in line with religion and custom favouring personal bondage, Europe The main author of the Polish Criminal Code (1932). Einführung in die Philosophie des Strafrechts auf entwiklungsgesichtlicher Grundlage (Stuttgart, Verlag von F. Enke, 1906), reprinted by E. J. Bonset, Amsterdam 1967, excerpted http://books.google.at/books?id=vJReqtCtFaYC&printsec=frontcover&hl=de&source =gbs_ge_summary_r&cad=0#v=onepage&q&f=false, and translated into Polish (Wstęp do filozofii prawa karnego w oparciu o podstawy historyczno-rozwojowe, by K. Jakubów, edited by A. Grześkowiak, Lublin 2009), especially ch. 5. 3
4
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(originally in the early Middle Ages’ Italian cities-States, later in German, Swiss and other cities) for the sake of peaceful trade pursued a corporate impersonal pax urbis5, current equivalent of “urban security”. It meant that any trader regardless of religion or origin, regardless whether s/he was a victim or a suspect, could be treated in the same manner as a local citizen, in line with what later became established in criminal law as the territoriality and universality principles6. Pioneering and “monumental” as Makarewicz’s contribution to the “global heritage of criminal law”7 is, his research on its progressive development has really been appreciated only by those who read it in German, and – now – in Polish. For those who read his and Kuran’s books there is no doubt about their common thesis: that in international law, progress has indeed been made over a long period of time. And yet, what Makarewicz could not foresee and Kuran overlooked8, is that by establishing in 1945 the UN, with its Charter pledging to work to In Polish cities pax regnum (pokój monarszy/książęcy; king’s/count’s peace) or treuga Dei (the peace of God); less often manus domini (ręka pańska; the hand of God), as per email communication with Prof. A. Gaca, 29 December 2011. 6 Further, in line with “the long divergence” thesis, in early Middle Ages criminal law there emerged the split between the two legal cultures in valuing human life. Before the Islamic conquests and after them in the territories under Islam, the belief prevailed that regardless of the living person’s conduct, after his or her death no punishment or reward is meted out. Spreading religion through conquests guarantees external life after death. In Europe, after the Crusades, that belief was gradually abandoned, thus it stopped to justify violent behaviour (see: S. Redo, Organized Crime and Its Control in Central Asia, Office of International Criminal Justice, Sam Houston State University, Huntsville, Tx 2004, p. 66, and Zwalczanie przestępczości zorganizowanej w Azji Centralnej (The Fight against Organized Crime in Central Asia), Warszawa 2007, p. 112). For a more comprehensive review, see: S. Pinker, The Better Angels of Our Nature. The Decline of Violence in History and Its Causes, London 2011. 7 P. Kardas quoted by: A. Grześkowiak, Słowo wstępne (Foreword), ibidem, p. 7. See also the Editorial preface by J. H. Wigmore to: C. L. von Bar, A History of Continental Criminal Law, Little, Brown and Company, Boston 1916, p. xxxii, in which he praised Makarewicz’s book as “a brilliant beginning” of the history of the European continental criminal law (http://www.archive.org/stream/historyofcontine00barl/historyofcontine00barl_djvu.txt). 8 Given the book’s emphasis on international trade law developments, it is surprising to see no account of them involving the Shari’a law countries negotiating the arbitration and commerce legal instruments at the UN Commission on International Trade Law (UNCITRAL) and through the UN Investment Dispute Resolution of International Transactions (UNIDROIT). For the review of their incompatibilities with the Shari’a law, see: F. Kutty, 5
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ward the “progressive development of international law”, the world has acquired a new transformative mechanism facilitating the acceleration of legal convergence. Based on the records of the UN Crime Prevention and Criminal Justice Programme, the UN International Drug Control Programme and the Statute of the International Criminal Court (ICC)9, the following three sections will exemplify that convergence through UN criminal law and policy. Convergence through the United Nations criminal law
Since the adoption of the Universal Declaration of Human Rights (1948), but, especially, after the adoption of the Standard Minimum Rules for the Treatment of Prisoners (1955), the work of the UN until 2000 had focussed on the humane treatment of offenders and victims through “soft law” standards and norms, but with the intermittent idea of making at least some of them a part of the treaty law10. In the course of those years, quite some progress has been made. But only in 1996 when Poland submitted to the General Assembly a draft UN framework convention against transnational organized crime, did the process of legal convergence receive an additional and creative impetus11. Subsequently, through the Ad Hoc Committee on The Shari’a factor in international commercial arbitration, Loyola of Los Angeles International & Comparative Law Review, Vol. 28, pp. 565–624. The author argues that the above arbitration instruments ignored the cultural specificities of the Shari’a law. However, the UNCITRAL secretariat does not confirm that in negotiating those instruments there were any reservations made by the Shari’a law countries (email communication with Mr. T. Lemay, UNCITRAL, 13.12.2011). This result may be credited to those countries’ weak presence at the negotiating table – the question further mentioned below. 9 Before the Statute’s adoption, there was a formal proposal to include in it the adjudication for one of the forms of transnational organized crime – the illicit trafficking in narcotic drugs and psychotropic substances. This would extend the Court’s mandate beyond its present humanitarian law proper. Hence in this article the linkage of the Statute with the two other UN programme mandates. 10 See further: S. Redo, Blue Criminology. The Power of United Nations Ideas to Counter Crime Globally, Helsinki 2012. 11 See further: E. W. Pływaczewski, Zwalczanie przestępczości zorganizowanej z perkspektywy międzynarodowej (The Fight against Organized crime from the international perspective). In E. W. Pływaczewski (ed.), Przestępczość zorganizowana (Organized Crime), Warszawa 2011, pp. 366–369.
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the Elaboration of a Convention against Transnational Organized Crime (UNTOC), Member States have agreed to incorporate into the convention the regulation of the joint criminal enterprise responsibility. Originally, this institution emerged from the British common law “purpose doctrine”. In 1997 it was adapted for the adjudication by The International Criminal Tribunal for the former Yugoslavia12. The doctrine broadened individual criminal responsibility of the accused to crimes that were objectively foreseeable, even if s/he did not herself/himself foresee them. It effectively lowered the mental state to negligence13. In 1999, when this proposal was formally tabled for the Ad Hoc Committee, it was found to be “good […], since it served as a bridge between civil and common law systems”14. Consequently, in art. 5 of the UNTOC the incorporated institution reads “1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: […] Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question [...] 2. The knowledge, intent, aim, purpose or agreement referred to in paragraph 1 of this article may be inferred from objective factual circumstances.” The UNTOC leaves to the domestic legal system how to implement the above provision, in terms of formulating what really a “guilty mind” is. But the ICC Statute (art. 30) addresses this directly: “Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall A. M. Danner, J. S. Martinez, Guilty associations: Joint criminal enterprise, command responsibility, and the development of international criminal law, California Law Review 2005, Vol. 93, p. 109 ftn. 137. 13 Ibidem. 14 UN doc. A/AC.254/4, art. 3, ftn. 12. 12
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be construed accordingly”15. The above is a Roman law (mens rea) concept that sits most comfortably with the individualistic16 Judeo-Christian religions17. Originally coming from the Aristotelian philosophy, the concept must have strongly influenced Westerners and Easterners in their legal thinking, if one would only judge this on the strength of the convergence reached on art. 30. Surprisingly, however, the travaux préparatiores on the Rome Statute hardly mention any active participation of the Islamic countries in its formulation. Accordingly, one commentator notes that their “participation… in the creation of international criminal law, and their support of international criminal law institutions, is spotty at best. The more a predominantly Islamic state adheres to a Shari’a system the less likely there is to be participation of any kind”18. He concludes that the above provision is “to blunt the incursion of international criminal law into the Islamic world, not to further the work of the field”19. Another commentator confirms that the entire drafting work on the Statute was very hasty and carried out by partly unprepared for this job diplomats, including some from developed countries20. This quite a harsh criticism of the ICC’s constitution may be even harsher if one adds that, in comparison with civil and common criminal law, with less or more consolidated definitions of “knowledge”’ and “intent”, in Islamic law these elements of a ‘guilty mind’ are far more diversified21. No wonder therefore that very few This definition excludes “recklessness”. The Statute deals with it separately as a specific offence-type mental element. This piecemeal treatment of all mental elements additionally documents the tenuous character of a “guilty mind”. 16 Historically, individualism is a much earlier tradition. It dates back to Homer. In his Iliad and Odyssey he problematizes the actions of individuals, hence also invokes personal guilt. This became a fitting resource for the Jewish-Christian tradition (J. W. Neuliep, Intercultural Communication. A Contextual Approach, 4th ed., Thousand Oaks 2009, p. 40). 17 L. Lombardi Valluri, L’Orizzonte problematic. In Christentum, Säkularisation und Modernes Recht, herausgegeben von L. Lombardi Valluri & G. Dichler, Baden-Baden 1981, ch. 1. 18 M. J. Kelly, Islam & international criminal law: A brief (in)compatibility study, International Law Review Online Companion 2010, Vol. 1, No 8, pp. 28–30. 19 Ibidem. 20 R. Vogler, A World View of Criminal Justice, Aldershot 2005, pp. 120–126 & 284. 21 J. Bury, J. Kasprzak, Prawo karne Islamu (Criminal Law of Islam), Warszawa 2007, pp. 111–113; United Nations Office on Drugs and Crime, Combating Trafficking in Persons in Accordance with the Principlesof Islamic Law, New York 2010, p. 44. 15
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Islamic countries signed the Rome Statute. Of the 120 state parties to the Rome Statute, there are 20 of 57 members of the Organization of Islamic Conference (OIC) – these are all African countries. Fifteen of these have predominantly Muslim populations. Jordan is the only Arab state party. At the this time of writing, Nigeria with a partial Shari’a system, was the only other state party which ratified the Statute. Philosophy of law and philosophy of the United Nations
Contrary to the above argument, as deficient as the entire diplomatic job was, and as unique the ‘ontological’ agreement in art. 30 of the Rome Statute therefore may be, it may likewise be a tenuous, at least, evidence of the Occident-Orient legal convergence on what a ‘guilty mind’ is to be. In other words, what in the academic world may be a liability, in the UN world may be an asset. That value may be better appreciated first in the context of what, in early science, involved Occidental and Oriental patterns of thought. In those early days, the difference between Western and Eastern legal thinking rested on assumptions for the one that a “thing” is an object, while for the other that a “mind” is an object22. But since the time of Avicenna there have been convergent views of his like-minded commentators, on what is meant by a “thing”23, and, therefore, what a “mind” is. In effect, now there is no doubt that the mind produces brain impulses as thought particles, hence “things” that empirically can be measured. The active mind produces a “meaning” or “notion” – a sign in the mind that naturally represents a “thing”. This was equalled by Avicenna’s interpreters (Ockham) with Latin “intent”. Within the realm of criminal law this would probably correspond to “knowledge” that may or not lead to the criminal “intent” (dolus directus/ eventualis). Depending on the legal culture (common or civil law), “knowledge” may or not be an autonomous category of mens rea, being absorbed by intent or by recklessness24. B. Faure, The Kyoto School and reverse orientalism. In Ch. Weih-Su Fu and S. Heine (eds.), Japan in Traditional and Postmodern Perspectives, Albany 1995, p. 247. 23 A. Cassese, International Criminal Law, 2nd ed., Oxford 2008, pp. 61–62. 24 Ibidem. 22
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The above summary shows de facto convergence of Oriental and Occidental views on the thinking patterns on a broader plane, if on a real plane they ever have been so different from one another that only later they converged. Consequently, commentators who insist that a “guilty mind” is so interculturally split to the point that legally or otherwise incompatible, may only partially be right. But only as far as the difference in aggregate terms between cultures of “guilt” and “shame” is concerned25. Consider how Islamic Egyptian novelist N. Mahfouz describes a typical city-dweller in Egypt: He leads a contemporary [i.e. “modern’] life. He obeys civil and penal laws of Western origin and is involved in a complex tangle of social and economic transactions and is never certain to what extent these agree or contradict his Islamic creed. Life carries him along in its current and he forgets his misgivings for a time until one Friday he hears the imam, or reads the religious page in one of the papers, and all the old misgivings come back with a certain fear. He realizes that in this new society life has been afflicted with a double personality: half of him believes, prays, fasts and makes the pilgrimage. The other half renders his values void in banks and courts and in the streets, even in the cinemas and theatres, perhaps even at home among his family before the television set26.
In short, as one Polish researcher concluded, the “Orient” is rather inside someone’s split mind, rather than exists outside it as an objective fact. If the issue of objectivity really comes into the picture, then perhaps only its one least divisive and clearest feature, namely that of a (non-) Orientally thinking person pursues a Aristotelian/Avicennian logic to defining a particular situation27. Consequently, one and the same person may be “Orientally” or/ and “Occidentally”- minded. This applies, for example, to an Oriental judge whose legal system is hybrid, but also to anybody else who switches between R. Benedict, The Chrysanthemum and the Sword, London 1967. Quoted from H. Sharabi, Neopatriarchy. A Theory of Distorted Change in the Arab World, after A. Shalakany, Sanhuri and the historical origins of comparative law in the Arab world (or how sometimes losing your Asalah can be good for you). In A. Riles (ed.), Rethinking the Masters of Comparative Law, Oxford 2001, p. 157. 27 E. Kuźma, Mit orientu i kultury Zachodu w literaturze XIX i XX wieku (The Mythos of Orient and the Culture of the West in the literature of the XIXth and XXth century), Wyższa Szkoła Pedagogiczna w Szczecinie, Rozprawy i Studia, T. XLI, Szczecin 1980, pp. 119–120. 25
26
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one and the other thinking mode, for example, for legal reasoning. In effect, as one Arabic commentator puts it, “Orientalism might be better viewed as just one strand or voice that permeates an author’s text, rather than as the only voice of an author”28. To conclude this generally, an Oriental or Occidental way of thinking may only be a matter of mode and proportion, but not of “apples & pears”. Ceteris paribus, a “guilty mind” is one, but the depth and extent of guilty thoughts in it is interculturally different, hence its definition in art. 30 may be a first global legal manifestation of the convergence of legal concepts. This interim section of the article and its conclusion would look like quite a detour from its divergence-convergence trajectory (hence the guilt for this could only be ascribed to the unrigorous author), had it not shown two things. First, that there is one ontological base for a “guilty mind”. Had it been otherwise, there would have been implications involving responsibility for racism, prejudice, hatred, violence and the criminal manifestations thereof29. Second, that what really slows down global criminal law convergence may indeed be Shari’a law. As the Rome Statute shows – possibly, but as the UNTOC shows – not necessarily. In line with the latter contention, in the spirit of converging what has otherwise been overlooked in Kuran’s book, and since cultures consist of groups or communities’ norms, customs, beliefs, values, traditions and thought patterns passed down from generation to generation30, the last section of this article discusses East-West normative convergence through the UN policy. Convergence through United Nations policy
This section starts first with noting that after the ratification of the Rome Statute by Nigeria, this was also done by Bangladesh – a country with Islam O. Arabi, Studies in Modern Islamic Law and Jurisprudence, The Hague 2001, p. 190. Further of Oriental inferiority, and, finally, of the Orient itself as a post-colonialist conceptual remnant (E. W. Said, Orientalizm (Orientalism), transl. by M. WyrwasWiśniewska, Poznań 2005). On the other hand, see M. McCain (Orientalism, occidentalism and the sociology of crime, British Journal of Criminology 2000, Vol. 40, No. 2, pp. 239–260) who emphasizes Occidental misconceptions of countering crime in the Orient. 30 S. Liu, Z. Volčič & C. Gallois, Introducing Intercultural Communication. Global Cultures and Contexts, Los Angeles 2011, p. 56. 28 29
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as the official state religion, but with its legal system partly based on English common law. This may be credited to the pre-ratification assistance provided by the secretariat of the ICC – a “compensation” for the poor job of the Statute’s negotiators. Pre-ratification assistance for joining the UNTOC is a good example which shows what the UN machinery can do for Member States with different legal systems to join it. As of this writing, altogether 165 countries have ratified it, including all from the OIC group save Iran. OIC countries with considerable Islamic population: Arabic (Egypt, Mauretania, Morocco, Oman, Saudi Arabia, Syria), African (Cameroon, Guinea-Bissau), Asian (Indonesia, Kyrgyzstan, Malaysia, Pakistan, Turkey), and Azerbaijan are in that UNTOC group, but none of these countries ratified the Statute. Certainly, from the Arabic and Asian countries a few of them have ratified the UNTOC notwithstanding Shari’a law (official or not) concerns that have so far kept them from ratifying the Statute. If so, then what merits attention would be the explanation why Shari’a law can hold back certain countries in the latter case and not in the former case. In other words, why in the case of the Rome Statute Islamic countries have generally failed to adopt a “progressive codification of Islamic criminal justice (procedure and administration), which could sift through and distil the law and practices of Islam and adapt it to a contemporary framework which would keep faith with the past, while setting the foundations for the future”31, while in the case of UNTOC, they made a contribution to the foundation of the future? In my opinion, this is due to the increased relevance of the concept of global security. It has a thin blue thread in it. It is the growing global threat to the peace and security of mankind (Chapter VII of the UN Charter) posed by the transnational organized crime and, in particular, by the illicit trafficking in narcotic drugs and psychotropic substances. It may be recalled that in 1989 the Prime Minister of Trinidad and Tobago motivated by an effort to combat drug trafficking, resurrected a proposal M. Ch. Bassiouni, Sources of Islamic law, and the Protection of Human Rights in the Islamic Criminal Justice System. In M. Ch. Bassiouni (ed.), The Islamic Criminal Justice System, London 1982, p.42. The author was later Chairman of the Drafting Committee on the Rome Statute. 31
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to the General Assembly to establish an international criminal court that should adjudicate the cases of that transnational organized crime. When in 1994 the Assembly had started working on that proposal, it decided that a conference of plenipotentiaries be convened to negotiate a treaty and enact the Statute. The renewed proposal submitted to the UN Diplomatic Conference of Plenipotentiaries on the Establishment of such an international criminal court was co-sponsored by Barbados, Dominica, India, Jamaica, Sri Lanka and Turkey32. It was eventually turned down by the conference. What diplomats could not eventually accept has nonetheless been in 1994 argued by the UN Human Development Report – milestone publication in the field of human security, with its argument that insuring “freedom from want” and “freedom from fear” for all persons is the best path to tackle the problem of global insecurity33. The Report argued that human development and human security had an instrumental value in the pursuit of peace, for without it “there may be no development. But without development, peace may be threatened”. The Report broadened the scope and underpinnings of violence. It included in the concept of human security criminal violence against women, and other harsh practices: female circumcision, employing bonded labour and slaves. It added that “Most people instinctively understand what security means. It means safety from the constant threats of hunger, disease and repression. It also means protection from sudden and hurtful disruption in the pattern of our daily lives-whether in our homes, in our jobs, in our communities, or in our environment […] Some of these traditional practices are breaking down under the steady process of modernization […] Some global challenges to human security arise because threats within countries spill beyond national borders […] The trade in drugs is […] a transnational phenomenon – drawing millions of people, both producers and consumers, into a cycle of violence and dependency […]. So, when human security is under threat anywhere, it can affect people everywhere”34. Counteracting this internal threat to human security Professor Filar treated as one of the aspects of the right to life in peace, citing the Gener UN doc. A/CONF. 183/C. 1/L.71. Http://en.wikipedia.org/wiki/Human_security. 34 Human Development Report 1994, United Nations Development Programme, New York 1994, ch. 2. 32
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al Assembly resolution 35/71 of 15 December 1980, containing the Caracas Declaration of the Sixth UN Congress on the Prevention of Crime and the Treatment of Offenders35. Whether or not connected to the above right, the above concept of human security is difficult to legislate and operationalize. This is a very broad concept of human security, and one that is difficult to operationalize. Even at its core (“most people instinctively understand what security means”) it is not robust enough to withstand the comparative critique. It is intellectually stretched almost to the limits. It hardly lends itself to a rigorous treatment, especially if one seeks to establish a casual nexus between its violation and a threat to international peace and security. This is an important issue, because such a violation would trigger action by the Security Council under Chapter VII of the UN Charter.36 To make it fit for this purpose, international lawyers would cut this idealistic definition of human security down to size, and in the process would certainly leave a few crime-related phenomena outside its scope. But not all. This is exactly the context in which the Statute’s rationae materiae was shaped. This context explains where is there this thin blue link along which the Islamic countries converge with the modern-law countries in a joint concept of global security. As far as internal threats are concerned, several Islamic countries attempted to exclude from the Statute various elements of crimes of gender violence, e.g. forced pregnancy. They objected to recognize it as a crime that may be involved in a widespread or systematic attack against civilians. They preferred to treat it as a war crime. This would limit the ICC from interfering into internal affairs of the State where there was no war nexus37. As far as external threats are concerned, the Islamic countries agreed to include in it the crime of aggression, even though some attempted to down35 M. Filar, Bezpieczeństwo lokalne – profilaktyka przestępczości – prawa człowieka. In: M. Filar (ed.), Problemy bezpieczeństwa lokalnego. Materiały I Konferencji Krajowej, Toruń, 10 XII 1993 (Problems of Local Security. Materials of the 1st National Conference), Toruń 1995, p. 7. 36 S. N. MacFarlane, Y. E. Kong, Human Security and the UN: A Critical History, Bloomingron, IN, 2006, pp. 227–230. 37 S. C. Roach, Politicizing the International Criminal Court: The Convergence of Politics, Ethics, and Law, Lanham 2006, p. 139.
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play the role of the UN Security Council. Interestingly, when for the first time in UN history in 2010 the Security Council took up the problem of transnational organized crime as a threat to international peace and security, not only all its permanent members supported the resulting Presidential Statement, but also all non-permanent members including Gabon, Lebanon, Nigeria and Turkey (OIC member countries, the latter three with a sizeable Muslim population). In that Statement the Security Council noted drug trafficking as such a threat, and further noted that “in a globalized society, organized crime groups and networks, better equipped with new information and communication technologies, are becoming more diversified and connected in their illicit operations, which in some cases may aggravate threats to international security”. Finally, the Council expressed “concern at the increase in incidences of kidnapping and hostage-taking, in some areas of the world with a specific political context, with the aim of raising funds or gaining political concessions. The development of cybercrime is another particular source of concern”38. It remains to be seen how many transnational organized or other new crimes may eventually come into the purview of the amended Rome Statute. But as one can see, not all elements of human security listed by the UNDP would meet the eye of Islamic countries, as far as their interpretation of the alleged violation of the Rome Statute or the threat to international peace and security is concerned. In fact, some of them were objected as the statutory forms of criminal violence against women. However, in no single instance did those countries object to treating various forms of transnational organized crime as a threat to international peace and security. In my opinion, such objections do not stem from Islam per se. They rather exemplify a subsiding conflict on the notion of sovereignty. Transnational organized crime is a case in point. When it comes to some forms of internal threat to peace and security, Islamic countries (e.g. Saudi Arabia, Qatar, United Arab Emirates) tend to emphasize the principal bond that exists between Shari’a and state rule, as well as the peoples and monarch. What generally typifies this form of sovereignty is the submission of the people to the king/sultan/sheik in exchange for social public order and beneficence (inheritance/hereditary succession). In other Islamic countries (e.g. Jordan, 38
UN doc. S/PRST/2010/4.
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Yemen), the republican version of Shari’a – still is a principal source of legislation, while this involves excessively egalitarian inheritance, it does not emphasize the union of prince and the peoples, but rather a pluralist order involving also decision-making bodies of (non-) elected political parties and organizations39. However, in either case, and generally, illicit drug trafficking is perceived as a major threat to sovereign state rule across the world, whether democratic or not. This is because of the overall corrosive impact of that crime. As the Prime Minister of Trinidad and Tobago reminded: “We cannot allow our young people to continue to fall victims to this insidious monster which has fuelled transnational organized crime and resulted in cross border armed violence which threatens the political and social stability of many nations”40. In short, while some Islamic countries may experience difficulties because of their domestic law in catching up in trade law and commerce terms with Western-led globalization, in criminal law terms, most of them if not all, have de-facto renounced their reservations to join the UN Security Council and the rest of the international criminal justice community to counter a new global threat. Legal convergence is underway.
Roach, op.cit., p. 141. Statement by The Honourable Kamla Persad-Bissessar, Prime Minister of the Republic of Trinidad and Tobago in the General Debate of the Sixty-fifth session of the United Nations General Assembly, 27.09.2010, p. 7, http://www.un.org/en/ga/65/meetings/generaldebate/Portals/1/statements/634212041495156250TT_en.pdf. 39
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