May 21, 2010 Intl Perspective (International Perspective)

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The international diagnostic tools have, however, remained key indicators of the presence of the qualifying conditions for the insanity defence. People are constituted, not by the physiology of their brains, but by their ways of life, values and beliefs. In this respect, the social dimension of psychiatric practice comes to the fore.

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The discipline of cross-cultural psychiatry has developed as a direct response to the assumption of the universal applicability of Western psychiatric diagnostic categories. Cultural psychiatrists operating in any ICC psychiatric detention scheme will need to integrate the implications of cross-cultural comparative studies of psychiatric disorders and traditional healing into better efforts to respond to the mental health needs of mentally impaired defendants. A well-informed cultural perspective means that clinicians will be more aware of hidden assumptions and prejudices that limit current psychiatric theory and practice.

In this way, cross-cultural psychiatry suggests that new approaches can be developed for more effective treatment of the diverse populations seen in psychiatric services the world over. Cultural psychiatry has developed alongside the discourse on therapeutic jurisprudence: an interdisciplinary approach examining the potential of the law to heal and rehabilitate.

The authors who introduced the term sought to assess ways to maximise the therapeutic and minimise the counter-therapeutic consequences of the criminal prosecution process. Turning to the potentially counter-therapeutic aspects of the ICC process, Heller identifies a factor that could potentially affect all ICC acquittees, but which will have more serious ramifications for those who have been found insane or unfit to stand trial.

These categories of prisoners most often arise when referring States ask the Prosecutor to investigate crimes by rebels fighting the Government. Ideally, an acquittee will either be repatriated or find a third State to grant them asylum. Heller concludes that it will seem likely that a number of these acquittees will seek to remain in ICC safehouses in the Hague, but clearly this will not suffice where they require effective psychiatric treatment.

The Headquarters Agreement between the ICC and the Netherlands makes no express provision for dealing with psychiatric dispositions from the ICC and it remains to be seen how satisfactory the status quo is from the perspective of the Netherlands government. Certainly, from a therapeutic jurisprudence viewpoint, there are serious concerns about a prosecutorial process by which potentially seriously mentally ill defendants are transferred from their countries of domicile to the Hague where, even if acquitted or their proceedings are terminated, they may have to remain permanently in safe-houses with no provision for effective and culturally appropriate psychiatric treatment.

In their approach to sentenced prisoners, the ad hoc international criminal tribunals have developed a generally progressive approach to international detention standards because as UN institutions, it is difficult to ignore international human rights standards notwithstanding that the ad hoc Tribunals are not strictly bound by the international instruments.

This may reflect a concern among the member States that many of them could offer only sub-optimal conditions of detention.

It is fair to assume that member states that cannot meet the international standards for detention of convicted prisoners will struggle to reach such standards for detaining the mentally ill. Ideally, the ICC should adopt the higher standard and, in turn, lead other human rights courts to adopt more progressive interpretations of these international instruments. Moreover, the transfer of potentially mentally ill persons to The Hague in full knowledge that they may have no alternative but to remain indefinitely in a UN safe house if acquitted may be incompatible with the prohibition on inhuman and degrading treatment contained in art 7 of the ICCPR.

More importantly in the present context, persons with mental illness also have the protections of art 15 of the UNCRPD. The question then becomes what kind of amendment would remove the incompatibility this article identifies. On that basis, this paper proposes that an amendment that would best remove the rights incompatibility would require the court to satisfy itself of fitness to stand trial and sanity at the time of the offending before transfer to the ICC.. The issue of competence and capacity of an accused would then be considered as issues going to the admissibility or jurisdiction to undertake prosecution.

This model would also accord with the laudable principles of therapeutic jurisprudence that urge legislators to consider tailoring institutional processes in a way that causes the least harm to those who must involuntarily participate in those processes. Therefore it is imperative that the ICC develop a sophisticated, culturally appropriate setting for psychiatric treatment of seriously mentally ill defendants who are not identified as such before surrender and transfer. On that basis, it is argued that the right not to be subjected to cruel, inhuman or degrading treatment requires member States of the ICC, who are also signatories to the UNCRPD, to recommend and promote amendments to the ICC Statute designed to ensure that no person is transferred from their place of domicile under an ICC warrant where there are grounds to believe that person may have a disability affecting their fitness to stand trial or mental capacity for criminal responsibility.

It is likely that the process envisaged by the ICC Statute will violate international human rights standards when it eventually has to deal with a defendant who is permanently unfit to stand trial or is acquitted by reason of mental incapacity, particularly if those defendants pose a risk to themselves or others. The experience of the ICTR illustrates the unacceptable plights of ICC acquittees who can neither return home nor find a third State willing to grant them asylum.

Those consequences are likely to be all the more traumatic on acquittees who are seriously mentally ill. In that respect, the failure of the ICC Statute to provide for safe medical and non-medical dispositions for the insane and the unfit to stand trial goes beyond a general disrespect for the doctrines of insanity and unfitness to plead and represents a regressive approach to persons with disabilities that permeates the highest levels of international law-making.

In any event, more sophistication is required particularly in the approach to fitness to stand trial. Certainly, some international forensic psychiatric facility should be developed to accommodate those who are unfit to stand trial but still require psychiatric care. Such a scheme should be heavily informed by the principles of cross- cultural psychiatry.

The first line of protection for those lacking competence or capacity should be an amendment to the admissibility provisions in arts 17 and 18 of the Rome Statute in order to require the ICC to be satisfied as to the competence and capacity of a prospective defendant before that defendant is transferred out of their country of origin.

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If the ICC cannot satisfy itself as to the competence and capacity of the prospective defendant, then the defendant should remain subject to their domestic mental health laws where applicable. The best protection of the rights of persons with disabilities is achieved by treating competence and capacity as matters going to admissibility considered at the front end of the ICC prosecution process and before the prospective defendant becomes semi- permanently trapped in The Hague with little hope of repatriation or asylum.

To frame the topic being addressed, we start with a definition of terrorism and an assessment of the current threat posed by terrorism, both internationally and domestically. There is a plethora of definitions for terrorism — a study by the U. Army counted The two offered here are consistent with the key elements found in most definitions. Terrorism is defined by U. Law U. Code Title 22, Ch. This collection is organized in five sections, each of which contains papers that address key aspects of the contemporary terrorist phenomenon and what is known about those that engage in terrorism: instigators, perpetrators, and supporters.

The collection begins with an overview that sets the stage for where threats exist and are emerging.

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The defensive view can lead to a security dilemma , where increasing one's own security can bring along greater instability as the opponent s builds up its own arms, making security a zero-sum game where only relative gains can be made. Neorealism or structural realism [14] is a development of realism advanced by Kenneth Waltz in Theory of International Politics. It is, however, only one strand of neorealism. Joseph Grieco has combined neo-realist thinking with more traditional realists. This strand of theory is sometimes called "modern realism".

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It shapes all foreign policy choices of states in the international arena. For instance, any disagreement between states derives from lack of a common power central authority to enforce rules and maintain them constantly. Thus there is constant anarchy in international system that makes it necessary for states the obtainment of strong weapons in order to guarantee their survival. Additionally, in an anarchic system, states with greater power have tendency to increase its influence further.

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Waltz also challenges traditional realism's emphasis on traditional military power, instead characterizing power in terms of the combined capabilities of the state. The precursor to liberal international relations theory was " idealism ". Idealism or utopianism was viewed critically by those who saw themselves as "realists", for instance E. For example, an idealist might believe that ending poverty at home should be coupled with tackling poverty abroad. Wilson's idealism was a precursor to liberal international relations theory, which would arise amongst the "institution-builders" after World War I.

Liberalism holds that state preferences, rather than state capabilities, are the primary determinant of state behavior. Unlike realism, where the state is seen as a unitary actor, liberalism allows for plurality in state actions. Thus, preferences will vary from state to state, depending on factors such as culture , economic system or government type.

Thus, instead of an anarchic international system, there are plenty of opportunities for cooperation and broader notions of power, such as cultural capital for example, the influence of films leading to the popularity of the country's culture and creating a market for its exports worldwide.

Another assumption is that absolute gains can be made through co-operation and interdependence —thus peace can be achieved.

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The democratic peace theory argues that liberal democracies have never or almost never made war on one another and have fewer conflicts among themselves. This is seen as contradicting especially the realist theories and this empirical claim is now one of the great disputes in political science.

Numerous explanations have been proposed for the democratic peace. It has also been argued, as in the book Never at War , that democracies conduct diplomacy in general very differently from non-democracies. Neo realists disagree with Liberals over the theory, often citing structural reasons for the peace, as opposed to the state's government. Sebastian Rosato , a critic of democratic peace theory, points to America's behavior towards left-leaning democracies in Latin America during the Cold War to challenge democratic peace.

Neoliberalism, liberal institutionalism or neo-liberal institutionalism [22] is an advancement of liberal thinking. It argues that international institutions can allow nations to successfully cooperate in the international system. Robert O. Keohane and Joseph S. Nye , in response to neorealism, develop an opposing theory they dub " complex interdependence. The heart of Keohane and Nye's argument is that in international politics there are, in fact, multiple channels that connect societies exceeding the conventional Westphalian system of states.

This manifests itself in many forms ranging from informal governmental ties to multinational corporations and organizations. Here they define their terminology; interstate relations are those channels assumed by realists; transgovernmental relations occur when one relaxes the realist assumption that states act coherently as units; transnational applies when one removes the assumption that states are the only units. It is through these channels that political exchange occurs, not through the limited interstate channel as championed by realists.

Secondly, Keohane and Nye argue that there is not, in fact, a hierarchy among issues, meaning that not only is the martial arm of foreign policy not the supreme tool by which to carry out a state's agenda, but that there are a multitude of different agendas that come to the forefront. The line between domestic and foreign policy becomes blurred in this case, as realistically there is no clear agenda in interstate relations. Finally, the use of military force is not exercised when complex interdependence prevails.

The idea is developed that between countries in which a complex interdependence exists, the role of the military in resolving disputes is negated.