"Serial no. 106-73." ; Shipping list no.: 2001-0059-P. ; Distributed to some depository libraries in microfiche. ; Includes bibliographical references. ; Microfiche. ; Microfiche. ; Mode of access: Internet.
This article surveys the possible application of International Criminal Law to address abuse of power. It thereby aims to stimulate discussion on criminal responsibility for abuse of power. Military commanders and civilian superiors, including politicians, can under conditions be held liable for abusing their power position in relation to the commitment of war crimes, crimes against humanity and genocide. War crimes require a state of conflict, while crimes against humanity and genocide can take place in both times of peace and war. Criminal forms of participation include committing and ordering such crimes. The abuse of a position of authority can be an aggravating factor in the sentencing. Even if the superior did not get involved in the crime directly, command responsibility can be established if the superior did not prevent his or her subordinates from committing the crime. It can also be established if the superior did not punish these subordinates for committing the crime. Criteria include that the commander or superior had effective control over his or her subordinates, whether on a legal basis or in fact, and knew or had reason to know that they were committing or about to commit such crimes. Therefore, people who abuse their position to, for example, cause or maintain a conflict situation at the cost of the human security of population groups, could find themselves accused of having committed international crimes.
If we are to succeed in crafting appropriate solutions to prevent abuses of administrative discretion, we must pay serious attention to three major perspectives that shape the exercise of administrative authority: the perspective of lawmakers, who create at least four different kinds of discretion; the perspective of clients, who may suffer from one or more of five major forms of administrative abuse; and the perspective of practitioners, who are influenced in varying ways by the moral propensities of the work setting. The article concludes with a brief discussion and illustration of how these multiple perspectives need to be taken into account when devising solutions to prevent various abuses of administrative discretion.
Debates about globalization have centered on calls to improve accountability to limit abuses of power in world politics. How should we think about global accountability in the absence of global democracy? Who should hold whom to account and according to what standards? Thinking clearly about these questions requires recognizing a distinction, evident in theories of accountability at the nation-state level, between "participation" and "delegation" models of accountability. The distinction helps to explain why accountability is so problematic at the global level and to clarify alternative possibilities for pragmatic improvements in accountability mechanisms globally. We identify seven types of accountability mechanisms and consider their applicability to states, NGOs, multilateral organizations, multinational corporations, and transgovernmental networks. By disaggregating the problem in this way, we hope to identify opportunities for improving protections against abuses of power at the global level.
In the article the author specifies some general theoretical approaches to the concept of abuse of power, which were outlined by him earlier in his article «Abuse of Rights and Abuse of Power: To the Formation of a Unified Doctrine» published in one of the issues of this journal. In the introduction, the author proposes the concept of spoilers as a form of abuse and defines it in a following way: a participation of representatives of public authorities in the distribution of limited resources, which has the sole purpose of hindering (blocking) the exercise by citizens of their right to free expression of opinion (Article 29) and the right to participate in the life of the state (Part 1 of Article 32) and which is therefore unacceptable within the meaning of Article 18 of the Constitution of the Russian Federation. The main part of the article discusses possible illustrations of spoilers in the following areas of legal relations: the organization of public assemblies (including in single specially designated places), participation in public hearings (in particular, on the adoption and amendment of land use rules), initiation of a federal referendum (namely, challenging the decision of the election commission to register a regional subgroup of the initiative group). Finally, in the last part of the work, the author briefly examines possible models of legal regulation of countering abuse of power, and also warns against uncritical (politicized) use of this category, since this, in turn, may be fraught with violations of citizens' rights. According to the author, among such models are ex ante mechanisms (amending the current legislation and construing the norm in a constitutionally biding manner) and ex post mechanisms (application of the principle of inadmissibility of abuse of power by a court of general jurisdiction when considering a specific dispute), each of which has its advantages and disadvantages.
