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Criminology Human Rights
by
Jay S. Albanese

Introduction

The concept of human rights is an old idea, but its application to criminology and criminal justice is fairly new. Human rights are those rights seen as being fundamental freedoms to which all human beings are entitled. In the United States, they are referred to as civil rights, most of which are enumerated in the U.S. Constitution’s Bill of Rights and which include freedom of speech, assembly, privacy, equality before law, and other civil and political rights. Other countries have similar lists of rights guaranteed to all citizens. The notion of human rights goes beyond civil and political rights, however, and also commonly includes the right to opportunities for work, education, and fair treatment in all aspects of life. Writings on human rights cover centuries, consisting of many works of political and social philosophy that provide the basis for natural and individual rights in the face of the greater power of governments. Many of these classic works are summarized in other reference works, such as The Encyclopedia of Human Rights and The Oxford Handbook of Political Theory, both cited in this entry. This guide to sources focuses on contributions to human rights literature and their connections to criminology and criminal justice.

General Overviews

Human rights has a long history, but only in recent years has this history been connected to criminology and criminal justice, corresponding to the growth of international treaties and agreements following the collapse of the Soviet Union and the rise of many emerging democracies, postconflict states, and international concern about terrorism, trafficking, and related crimes. Griffin 2008 provides an overview of the nature of human rights and how they should be defined and circumscribed. Cassese 2009 provides a massive overview with more than six hundred entries on the development and application of international law and criminal justice throughout the world. Maier-Katkin, et al. 2009 discusses the history of the human rights-criminology relationship and why criminology should be addressing human rights as a subject. Hagan and Rymond-Richmond 2008 argues for the inclusion of genocide as part of the study of mainstream criminology. Tavakoli 2009 argues that human trafficking should be a transnational criminal offense, rather than an international crime, given its nature and harms. Tjaden 2005 makes an argument why crimes against women, traditionally defined as a domestic crime, should be addressed from a human rights perspective. Tonry 2008 addresses the unique history of the United States in permitting the treatment of offenders in ways that violate human rights from the perspective of other nations.

  • Cassese, Antonio, ed. 2009. The Oxford companion to international criminal justice. New York: Oxford Univ. Press.

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    A massive work in its scope, with twenty-one essays by leading scholars on the issues surrounding international humanitarian law, international criminal law, and the enforcement of these laws, followed by three hundred entries on international doctrines, procedures, and institutions. The final part contains more than 330 essays on trials from international and domestic courts dealing with war crimes, crimes against humanity, genocide, torture, and terrorism.

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  • Dryzek, John S., Bonnie Honig, and Anne Phillips, eds. 2008. The Oxford handbook of political theory. New York: Oxford Univ. Press.

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    A comprehensive overview of political theory, with forty-five chapters written by distinguished political theorists. Focuses on classic, present, and future developments and directions in the field and the challenges presented by social, economic, and technological changes.

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  • Forsythe, David P., ed. 2009. Encyclopedia of human rights. New York: Oxford Univ. Press.

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    A five-volume encyclopedia covering all aspects of human rights theory, practice, law, and history. Subjects include the development of the movement, historical cases of abuse, key figures, major organizations, and a range of issues in economics, government, religion, and journalism that impacts human rights theory and practice.

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  • Griffin, James. 2008. On human rights. New York: Oxford Univ. Press.

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    A definitional examination describing what a human right is and how we can determine whether a proposed human right is what it’s supposed to be. The author discusses how to establish the content of particular human rights and resolve conflicts between them, and how twentieth century international law has made a limited contribution to settling the question of which rights are human rights.

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  • Hagan, John, and Wenona Rymond-Richmond. 2008. Darfur and the Crime of Genocide. Cambridge Univ. Press.

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    The authors argue the events in Darfur amounted to an intentional state-supported act of genocide. They contend that the discipline of criminology must begin to address crimes of genocide and crimes against humanity, and they review the intellectual history of competing approaches to genocide from classical works in criminology to the events described in this book.

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  • Maier-Katkin, Daniel, Daniel P. Mears, Thomas J. Bernard. 2009. Towards a criminology of crimes against humanity. Theoretical Criminology 13:227–255.

    DOI: 10.1177/1362480609102880Save Citation »Export Citation »E-mail Citation »

    An examination of why criminology has largely ignored the study of crimes against humanity, even though the acts involved—genocide, murder, rape, torture, the appropriation or destruction of property, and the displacement and enslavement of populations—are serious criminal acts under national and international law and more serious than most crimes commonly studied by criminologists.

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  • Tavakoli, Nina. 2009. A crime that offends the conscience of humanity: A proposal to reclassify trafficking in women as an international crime. International Criminal Law Review 9:77–98.

    DOI: 10.1163/157181209/398826Save Citation »Export Citation »E-mail Citation »

    The article argues that trafficking in women should be a transnational, rather than an international, crime against human rights because it offends international order and the conscience of humankind, and because transnational status affords greater protection to human rights abuses against women.

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  • Tjaden, Patricia. 2005. Defining and measuring violence against women: Background, issues, and recommendations. Statistical Journal of the UN Economic Commission for Europe 22:217–224.

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    Examines the history of the violence against women movement from its inception in the 1970s to the present. It discusses paradigmatic shifts that have occurred in the way violence against women is viewed: from a criminal justice perspective to a public health perspective, and most recently from a human rights perspective. The author recommends that violence against women be defined as broadly as possible and incorporate a human rights perspective.

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  • Tonry, Michael. 2008. Crime and human rights—How political paranoia, protestant fundamentalism, and constitutional obsolescence combined to devastate Black America. Criminology 46:1–34.

    DOI: 10.1111/j.1745-9125.2008.00108.xSave Citation »Export Citation »E-mail Citation »

    An examination of why the human rights concerns present in so many Western nations are so weak in the United States, where criminal justice practices are dramatically harsher (especially against African Americans) than in comparable industrialized nations, and why Americans give their leaders political permission to operate within such broad boundaries concerning human rights as compared to other nations.

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Human Rights Law and Enforcement

Translating concern about human rights into operational criminal justice law and policy requires discussion of how this might be accomplished. In Human Rights Watch 2009, a nongovernmental organization issues an annual report on both positive and negative developments in human rights in individual countries around the world. Alison, et al. 2008 reports on a study of police interrogations in India and the extent to which the methods employed corresponded with views about human rights. Henham and Behrens 2008 discusses legal conceptions of, and responses to, genocide around the world. Council of Europe 2009 assesses democratic oversight; the roles of parliaments, the executive, the judiciary, and civil society; as well as the need to strike a balance between a democratic conception of fundamental freedoms and security safeguards in using armed forces and security services in efforts against terrorism and international organized crime. O’Conner 2006 discusses how the Model Codes for Post-conflict Criminal Justice Project (and related efforts) and its set of model criminal laws in accord with international human rights may contribute to domestic criminal law reform efforts and enhanced human rights protection in postconflict states. O’Rawe 2005 reports on police human rights training, focusing on Northern Ireland, to illustrate obstacles to inculcating a culture of human rights into police organizations in transitional contexts. Plachta 2005 discusses joint investigation teams as a tool for international mutual assistance in criminal matters and the hurdles of trust and legislative authority which need to be overcome. Smith 2008 uses Afghanistan as a case study to examine the difficulties of implementing international human rights standards in postconflict states.

  • Alison, Laurence, Sudhansu Sarangi, and Allison Wright. 2008. Human rights is not enough: The need for demonstrating efficacy of an ethical approach to interviewing in India. Legal & Criminological Psychology 13:89–106.

    DOI: 10.1348/135532506X157737Save Citation »Export Citation »E-mail Citation »

    A study comparing attitudes about Human Rights and the acceptance of coercive interviewing practices by Indian police officers, offenders, and the general public. The self-reported frequency with which police used intimidating and nonintimidating interviewing techniques was related to their beliefs about suspects’ human rights and the extent that they perceived intimidating interviewing methods to be useful.

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  • Council of Europe. 2009. Armed forces and security services: What democratic controls? Brussels: European Commission.

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    This report examines democratic oversight of government action against transnational crime, and the roles of parliaments, the executive, the judiciary, and civil society, as well as the need to strike a balance between a democratic conception of fundamental freedoms and security safeguards.

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  • Henham, Ralph and Paul Behrens, eds. 2008. The criminal law of genocide. Aldershot: Ashgate.

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    A collection of essays from multiple authors on different aspects of genocide as a violation of criminal law. Contents include discussion of its historical dimensions, recent atrocities, legal and social concepts of genocide, treatment of genocide in different courts and tribunals worldwide, alternatives to trial justice, and questions of prevention and sentencing.

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  • Human Rights Watch. 2009. Human Rights Watch world report 2009. New York: Seven Stories Press.

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    An annual report by a nongovernmental organization dedicated to documenting human rights developments around the world. The report describes world events during the past year with brief overviews of the most pressing human rights issues on a country-by-country basis, focusing on the roles of key domestic and international figures.

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  • O’Connor, Vivienne. 2006. Rule of law and human rights protections through criminal law reform: Model Codes for Post-conflict Criminal Justice. International Peacekeeping 13:517–530.

    DOI: 10.1080/13533310600988796Save Citation »Export Citation »E-mail Citation »

    An examination of the interrelationship of the rule of law, criminal law reform, and international human rights in postconflict societies. New tools for law reform have included the Model Codes for Post-Conflict Criminal Justice Project and its model criminal laws in accord with international human rights norms and standards in the field of criminal proceedings.

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  • O’Rawe, Mary. 2005. Human rights and police training in transitional societies: Exporting the lessons of Northern Ireland. Human Rights Quarterly 27:943–968.

    DOI: 10.1353/hrq.2005.0039Save Citation »Export Citation »E-mail Citation »

    Police transformation in transitional societies through an analysis of police human rights training. Using Northern Ireland as its focus, this article offers the use of transition to best effect for both institutional reform of the police and the wider peace building. This article addresses obstacles to inculcating a culture of human rights into police organizations in transitional contexts.

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  • Plachta, Michael. 2005. Joint investigation teams: A new form of international cooperation in criminal matters. European Journal of Crime, Criminal Law & Criminal Justice 13:284–302.

    DOI: 10.1163/1571817054300648Save Citation »Export Citation »E-mail Citation »

    Joint investigation teams are a tool in the field of international mutual assistance in criminal matters. Such teams are needed to respond to the challenges of modern, sophisticated, and crossborder criminality. International trust among police agencies, and changes to existing national and international legal instruments are needed for operational reasons and to support human rights.

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  • Smith, Leanne. 2008. Implementing international human rights law in post conflict settings—Backlash without buy-in: Lessons from Afghanistan. Muslim World Journal of Human Rights. 5:1146–1159.

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    Using Afghanistan as a case study, the article examines the difficulties of implementing international human rights standards in postconflict states, arguing that imposing international human rights law with a “top down” approach is ineffective. Instead, a more transparent, consultative, and long-term approach to human rights implementation is recommended.

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Adjudication of Human Rights

Once human rights are incorporated into criminal justice proceedings, the method of their adjudication must be established. Buergenthal 2006 assesses of the role of truth commissions in safeguarding human rights as a mechanism that stands between international human rights bodies and international criminal tribunals. Jayawickrama 2004 offers an assessment of judicial interpretations of human rights law from both national and international sources, while Davis 2008 examines attempts by human rights groups to use the law to enforce human rights norms in U.S. courts. Humes-Schulz 2008 uses a British case to examine the concept of state sovereignty in the context of international law. Kerr 2006 examines the growing body of literature dealing with the commission of war crimes, crimes against humanity, and genocide, and the complex legal, political, ethical, and practical issues involved. Morrison 2008 connects global developments in international customary law from the 1960s to the present with international human rights laws. Rodman 2008 uses Darfur as a case study to argue that international tribunals cannot deter criminal violence as long as states and international institutions are unwilling to take enforcement actions against perpetrators. Peskin 2005 evaluates the approach of international criminal tribunals to the question of “victor’s justice” and assesses the extent to which the victorious protagonists in the Balkan and Rwandan conflicts were held accountable for wartime atrocities. Ward and Langlands 2008 argues that restorative justice can protect certain offender rights but that it may violate others, and makes suggestions for reconciling the tensions between community needs and individual well-being.

  • Buergenthal, Thomas. 2006. Truth commissions: Between impunity and prosecution. Case Western Reserve Journal of International Law 38:217–223.

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    An assessment of the role of truth commissions, which stand between international human rights bodies and international criminal tribunals. International criminal tribunals and courts try individuals charged with violations of human rights to assess individual responsibility. Truth commissions perform important fact-finding tasks outside the court process.

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  • Davis, Jeffrey. 2008. Justice across borders: The struggle for human rights in U.S. courts. New York: Cambridge Univ. Press.

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    Analyzes attempts by human rights groups to use the law to enforce human rights norms. Deals with legal issues that arise when victims sue the United States or when the United States intervenes to urge dismissal of a claim, as well as the controversies arising from attempts to hold foreign nations, officials, and corporations liable under international human rights law.

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  • Humes-Schulz, Stacy. 2008. Limiting sovereign immunity in the age of human rights. Harvard Human Rights Journal 22:105–142.

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    A discussion of the concept of state sovereignty in the context of international law, using the case of a British national beaten in prison by Saudi police after being suspected of planting an explosive in Riyadh. A civil suit was filed in Great Britain against Saudi Arabia, but the case was dismissed, citing the principle of sovereign immunity.

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  • Jayawickrama, N. 2004. The judicial application of human rights law: National, regional, and international jurisprudence. New York: Cambridge Univ. Press.

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    An assessment of judicial interpretations of human rights law from both national and international sources. The book covers the historical and juridical background to human rights, the basics of international law, and an overview of the UN Declaration on Human Rights and other international and domestic legal instruments.

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  • Kerr, Rachel. 2006. Prosecuting war crimes: Trials and tribulations. International Journal of Human Rights. 10:79–87.

    DOI: 10.1080/13642980500422472Save Citation »Export Citation »E-mail Citation »

    Alternative approaches to prosecuting war crimes, such as truth commissions or amnesty, have been put forth as better suited to meet the demands of postconflict justice. A number of books dealing with the commission of war crimes, crimes against humanity, genocide, and the complex issues involved are compared.

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  • Morrison, Howard. 2008. International crimes and trials. International Criminal Law Review 8:391–398.

    DOI: 10.1163/157181208X308727Save Citation »Export Citation »E-mail Citation »

    Focusing on issues of national sovereignty, universal jurisdiction, impunity and immunity, and the International Criminal Court, the article connects global developments in international customary law from the 1960s to the present with international human rights laws.

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  • Peskin, Victor. 2005. Beyond victor’s justice? The challenge of prosecuting the winners at the International Criminal Tribunals for the former Yugoslavia and Rwanda. Journal of Human Rights 4:213–231.

    DOI: 10.1080/14754830590952152Save Citation »Export Citation »E-mail Citation »

    The International Criminal Tribunals for the former Yugoslavia and Rwanda found that lack of police powers gives states wide latitude to withhold assistance needed to investigate atrocities. Evaluates the tribunals’ approach to the “victor’s justice” question and assesses the extent to which the victorious protagonists in the Balkan and Rwandan conflicts were held accountable for wartime atrocities.

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  • Rodman, Kenneth A. 2008. Darfur and the limits of legal deterrence. Human Rights Quarterly 30:529–560.

    DOI: 10.1353/hrq.0.0012Save Citation »Export Citation »E-mail Citation »

    Using the Darfur referral to the International Criminal Court as a case study, the author argues that international tribunals cannot deter criminal violence as long as states and international institutions remain unwilling to take enforcement actions against perpetrators and political strategies are employed outside the court system.

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  • Ward, Tony, and Robyn L. Langlands. 2008. Restorative justice and the human rights of offenders: Convergences and divergences. Aggression & Violent Behavior 13:355–372.

    DOI: 10.1016/j.avb.2008.06.001Save Citation »Export Citation »E-mail Citation »

    Restorative justice claims of protecting human rights are seldom supported by empirical evidence, so the authors argue that although restorative justice can protect certain offender rights, it may violate others. They make suggestions for reconciling the tensions between community needs and individual well-being.

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Punishment and Human Rights

The way in which human rights violations should be punished has been the focus of a growing literature in criminal justice. David and Choi 2009 reports on a survey of former political prisoners in the Czech Republic, finding that financial compensation, social acknowledgement, punishment, and forgiveness are likely to reduce victims’ retributive desires. Fenwick 2005 finds that prisoners held in privately run facilities are better protected by international human rights law in their capacity as workers than those in publicly run prisons. Lurigio and Loose 2008 summarizes the information collected in a Human Rights Watch report which identified Illinois as having the highest African American–to-white disparity in prison admissions for drug offenses in the United States, resulting in disproportionate minority confinement. Viljoen 2005 reports on the Special Rapporteur on Prisons and Conditions of Detention in Africa, established by the African Commission on Human and Peoples’ Rights in 1996, aimed at addressing the position of detainees in Africa.

  • David, Roman, and Susanne Y. P. Choi. 2009. Getting even or getting equal?: Retributive desires and transitional justice. Political Psychology. 30:161–192.

    DOI: 10.1111/j.1467-9221.2008.00687.xSave Citation »Export Citation »E-mail Citation »

    An examination of the impact that different policy interventions of transitional justice has on the desires of the victims of human rights violations for retribution. Results of a survey of former political prisoners in the Czech Republic suggest that financial compensation, social acknowledgement, punishment, and forgiveness are likely to reduce victims’ retributive desires.

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  • Fenwick, Cohn. 2005. Private use of prisoners’ labor: Paradoxes of international human rights law. Human Rights Quarterly 27:249–293.

    DOI: 10.1353/hrq.2005.0005Save Citation »Export Citation »E-mail Citation »

    Analysis of human rights law regulating the use of prisoners’ labor assesses the impact of globalization on human rights in the private operation of prisons. Prisoners held in privately run facilities are better protected by international human rights law than those in publicly run prisons, at least in their capacity as workers.

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  • Lurigio, Arthur J., and Pamela Loose. 2008. The disproportionate incarceration of African Americans for drug offenses: The national and Illinois perspective. Journal of Ethnicity in Criminal Justice 6:223–247.

    DOI: 10.1080/15377930802243445Save Citation »Export Citation »E-mail Citation »

    A Human Rights Watch report identifying Illinois as having the highest African American–to-white disparity in prison admissions for drug offenses in the United States, resulting in the formation of a disproportionate-minority-confinement working group to further investigate the nature and extent of racial disparities in the incarceration of drug offenders. A summary of the information collected.

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  • Viljoen, Frans. 2005. The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and possibilities. Human Rights Quarterly 27:125–171.

    DOI: 10.1353/hrq.2005.0010Save Citation »Export Citation »E-mail Citation »

    The Special Rapporteur on Prisons and Conditions of Detention in Africa, established by the African Commission on Human and Peoples’ Rights in 1996, is aimed at addressing the dire position of detainees in Africa. It visited places of detention in eleven African Union member states, but its response to individual complaints has been less effective.

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Extensions of Human Rights

There have been interesting arguments made for extending human rights protection to populations that have been overlooked in the past in terms of their treatment by the criminal justice system. Erooga 2008 discusses the balancing of rights in dealing with sex offenders, questioning whether a human rights–based approach should be applied in order to develop more effective public protection. Cave 2004 analyzes whether human rights permits pregnant women to be held liable for harm they cause to their unborn children. Lenning 2007 examines China’s alleged practice of harvesting the organs and skin of executed prisoners and develops an argument why this practice constitutes a case of state crime. Morgaine 2009 reports on a study of those who work on domestic violence and/or human rights issues to examine whether the international “women’s rights as human rights” movement has influenced the field of domestic violence and the barriers to redefining domestic violence as a violation of human rights. O’Brien 2008 argues that human rights should be about more than civil liberties, state security, and criminal justice; human rights should also include principles for public service delivery and shared values and for a common culture that is democratic, deliberative, and participatory. Prior 2007 analyzes mentally disordered offenders at the intersection of the healthcare system and the criminal justice system, examining cases taken to the European Court of Human Rights by mentally disordered offenders.

  • Cave, Emma. 2004. The mother of all crimes: Human rights, criminalization, and the child born alive. Aldershot: Ashgate.

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    An analysis of whether women should be held liable for the harm or death of their unborn children due to their conduct while pregnant, usually involving smoking, drinking, or drug use. The author argues that criminalization is a breach of the mother’s human rights.

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  • Erooga, Marcus. 2008. A human rights–based approach to sex offender management: The key to effective public protection? Journal of Sexual Aggression 14:171–183.

    DOI: 10.1080/13552600802413247Save Citation »Export Citation »E-mail Citation »

    Discussion of appropriate balancing of rights in public policy measures dealing with sex offenders, questioning whether a human rights–based approach should be applied in order to develop more effective public protection.

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  • Lenning, Emily. 2007. Execution for body parts: A case of state crime. Contemporary Justice Review 10:173–191.

    DOI: 10.1080/10282580701372053Save Citation »Export Citation »E-mail Citation »

    An analysis of China’s alleged practice of harvesting the organs and skin of executed prisoners. Outlines the development of organ transplantation as a profitable business in China, discusses the techniques used by the Chinese government to extract organs and skin from executed prisoners, and develops an argument why this practice constitutes a case of state crime.

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  • Morgaine, Karen. 2009. You can’t bite the hand … Affilia: Journal of Women & Social Work 24:31–43.

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    A qualitative study based on interviews with key individuals who work in national organizations on domestic violence and/or human rights issues to examine whether the international “women’s rights as human rights” movement has influenced the field of domestic violence and the barriers to redefining domestic violence as a violation of human rights.

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  • O’Brien, Nick. 2008. Equality and human rights: Foundations of a common culture? Political Quarterly 79:27–35.

    DOI: 10.1111/j.1467-923X.2008.00899.xSave Citation »Export Citation »E-mail Citation »

    An argument that notions of equality should go beyond the negative notion of antidiscrimination, and toward a more positive value-driven conception of equal participation which better corresponds with a human rights approach. Human rights should also include principles for public service delivery and shared values and for a common culture that is democratic, deliberative, and participatory.

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  • Prior, Pauline M. 2007. Mentally disordered offenders and the European Court of Human Rights. International Journal of Law & Psychiatry 30:546–557.

    DOI: 10.1016/j.ijlp.2007.09.002Save Citation »Export Citation »E-mail Citation »

    An analysis of cases taken to the European Court of Human Rights by mentally disordered offenders demonstrates the difficulties inherent in ensuring appropriate care to individuals and safeguards to the public at the same time. Analysis involves cases from Belgium, Norway, Poland, the Netherlands, Russia, and the United Kingdom.

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LAST MODIFIED: 12/14/2009

DOI: 10.1093/OBO/9780195396607-0055

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