Unit 3: International Law and Dispute Resolution Flashcards
what is actus reas?
- the prohibited act
- physical component to criminal conduct
what is mens rea?
- the guilty mind
- the mental component to a crime/intent
what is absolute liability?
-the accused aren’t given the opportunity to prove reasonable care was taken
what is strict liability?
-guilt is based on the accused’s ability to prove duty diligence/reasonable care to avoid committing the offence
what is criminology?
- the study of the nature, causes and means of dealing with a crime
- theories include a variety of ideas from sociology/psychology
who were the 2 famous theorists in criminology? (late 18th-19th cen)
- Beccaria
- Bentham
what was Beccaria’s theory?
-humans are driven by self-interest but would rational in their actions by weighing all possible consequences
what was Bentham’s theory?
- believed that law should ensure the greatest good for the greatest #
- gov’t should determine what behaviours were criminal
what did both Beccaria and Bentham both believe?
-the gov’t could control crime by creating laws and swiftly punishing when broken
What is positivism? (late 19th cen)
-focused on biology and psychological factors to explain criminal behaviour
who was positivism’s best known theorist?
Cesare Lambroso
what did Cesare Lambroso believe?
- serious offenders had inhereted criminal traits
- they were born criminal
what did positivists in the 60s believe about criminals?
-criminal behaviour’s connected to chromosomal abnormalities
what did positivists in the 60s believe about criminals?
-criminal behaviour’s connected to chromosomal abnormalities
what is the sociological perspective?
-considered the external/physical influences as major contributors to criminal behaviour
what are the three theories of the sociological perspective?
- theory of anomie
- ecological school
- consensus theory
what are the three theories of the sociological perspective?
- theory of anomie
- ecological school
- consensus theory
what is the theory of anomie?
- the shift from rural to urban caused a shift of tradition, causing them to weaken
- an indv’ls anonymity in urban society means they turn to crime
true or false:
traditional society made it harder to commit crimes b/c everyone would know
true
summarize what the ecological school of sociological perspective is
criminal behaviour was fostered and encouraged in certain environments
what did the ecological school’s study find?
poor/transient neighbourhoods were more likely to condone criminal activity
what is the social conflict theory?
- argued that a capitalist society that encourages competition for resources means crime is inevitable
- the justice system protects those w/money and power than poor ppl
what is the consensus theory?
- there’s a universal definition of right/wrong
- criminal law prohibits behaviours that society has agreed are harmful and these collective prohibitive acts apply to all classes of ppl
what is strain theory?
- ppl commit crimes b/c they think they can’t achieve the their desires and goals
- unfair econ. structures makes ppl. turn to crime for compensation
what is the socialization theory?
-suggests that the key influences of criminal behaviour are found in upbringing, peers and role models
what are the contemporary theories?
- strain theory
- socialization theory
- social conflict theory (again)
- biological trait theory
- neurophysiological theory
true or false:
extensive research in biology and genetics caused positivism to be revisited
true
summarize biological trait theory
-human traits like intelligence, genetic makeup and personality might cause certain indv’ls to engage in crime
what has bio-chemical research suggest factors in to criminal behaviour
-poor diet, hormones and prenatal exposure
what is an indictable offence?
- a felony that leads to over 2 years in prison
- ie. murder
what is a summary offence?
- a petty crime that leads to either a fine or max. 2 yrs.
- ie. stealing
what is a hybrid offence?
-those who commit assault is guilty of an indictable offence and liable to imprisonment under 5 yrs; or an offence punishable on summary conviction
what is a negative defence?
-raises a reasonable doubt about whether an accused committed the actus reus of an offence/had the necessary mens rea to support a conviction
what is an affirmative defence?
-admits that the crown has est. the elements of the offence but claims that the accused’s criminal act was justified in the circumstances
what are some negative defences?
- mistake of fact
- mental disorder
- automatism
- intoxication
what are some affirmative defences?
- self-defence
- compulsion (duress)
what are the 6 purposes of sentencing?
- to denounce unlawful conduct
- to deter the offender and others
- to separate offenders from society
- to assist in rehabilitating offenders
- to provide reparations for harm done
- to promote responsibility for actions
true or false:
the last two purposes/objective of sentencing had guided justice for decades even though they had not been codified
false: the first four are
what is the purpose of restorative justice?
-asks victims, offenders and the community to take part in resolving the conflict & in dealing with any harm done
what are the 3 principles of restorative justice?
- crime violates a relt’p among victims, offenders and community
- responses to crime should encourage an active participation of victim, offender and community
- a consensus approach is the most effective response
what are some examples of restorative justice?
- victim-offender mediation
- family group conferencing
- victim-offender panels
- aboriginal sentencing circles
define the term aggravating factors
-factors that intensify the sentence of an indv’l
define the term mitigating factors
-factors that lessen the sentence of an indv’l
what are some aggravating factors?
- specific factors that equal harsher punishment
- violence/weapons
- previous conviction
- excessive cruelty to victims
- multiple victims/crimes
- vulnerability of the victim
what are some mitigating factors?
- specific factors that lessen punishment
- no previous convictions
- physical/mental illness
- age
- provoked/duress
- evidence of restitution
- genuine remorse
what is a wrongful conviction?
-a wrongful conviction is the result of an innocent person being convicted and is a double failure: innocent is convicted, guilty is free
what are the 10 warning signs leading to wrongful conviction?
- perjury/jailhouse informants
- systematic bias
- misinterpretation of demeanour evidence
- police tunnel vision
- prosecutorial tunnel vision
- misleading circumstances
- ineffective defence counsel
- inadequate resources
- judicial bias
what is a general intent offence?
- the only intent required relates to the performance of the act in question, w/no further ulterior intent
- ie. just punching someone randomly
what is a specific intent offence?
- the actus reus is coupled w/an intent that goes beyond doing the act
- planning to punch a specific person
what do people who are wrongfully convicted get for compensation?
- money
- a commission
true or false:
the increase of crime misrepresents the actual crime rate in Canada b/c more are being recorded by politicians, media and researchers
true
explain what a moral crime is
-an immoral act that does not necessarily harm anyone but is deemed bad in society
what is the natural law stance on moral crime?
-punishing immoral conduct b/c they violate the fundamental moral order of the universe
what is the positive law stance on moral crime?
-moral law is utilitarian and est. order to keep the majority happy
what are the 7 principles of justice?
- fairness
- efficiency
- clarity
- restraint
- accountability
- participation
- protection
define pacta sunt servanda
-each state is obligated to keep int’l promises made through treaties
what is a treaty?
-a formal agreement b/t two or more states that sets out mutual legal rights and obligations
what is collective security?
-the uniting of indv’l states against an aggressor state in order to maintain peace and security
what is extradition
-the legal surrender of a fugitive to the jurisdiction of another state to face trial
explain diplomatic immunity
-special rights/privileges given to diplomats visiting other nations from physical harm, civil litigation or criminal proceedings
what is the purpose of the int’l criminal court?
-looks at serious criminal offences in member states
what are the 5 permanent member states in the security council?
- UK
- USA
- Russia
- France
- China
how many seats are in the security council? how are the other seats appointed (minus the permanent ones)?
-there are 10 other seats that are elected every two years
what is the purpose of the general assembly?
-each member state has one vote during weekly meetings about emergencies
who is the current secretariat general?
Antonio Guterres of Portugal
explain sovereignty
-a country’s right to say no to int’l help and have complete control over their gov’t people, and territory
what is interpol?
-interpol is the inter-gov’t organization facilitating int’l police operation
what factor makes it difficult for int’l intervention?
-sovereignty
what two int’l organizations exist to deal with criminal activity?
- Interpol
- UN
why is diplomatic immunity necessary?
-it ensures cooperation among states and maintains good relationships so that no representative can be in trouble
when is it necessary to use force to resolve int’l conflict?
-it can be used for collective security, self-defence or for the self-determination of peoples
what are the 6 branches of the UN?
- general assembly
- security council
- secretariat
- economic and social council
- trusteeship council
- int’l court of justice
explain the int’l court of justice’s role
-works independently from the UN
-the legal organ of the UN
the general assembly elects the judges
-settles disputes among member states
which branch of the UN holds the most power?
-security council because it’s set up of the 5 permanent nations that hold veto power
under what grounds can a country ask for extradition?
- nationality
- political offenders
- principle of non bis in idem (a fugitive already sentenced and released)
- the death penalty
