Browsing by Author "Thomas, Kym"

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Making Rights Count: Finding the Balance between Judicial Review and the Right to Self Government
(Te Herenga Waka—Victoria University of Wellington, 2010) Thomas, Kym
This paper summarises the arguments on both sides of the case in respect of judicial review as articulated by Ronald Dworkin and Jeremy Waldron. Both of these authors represent two opposing positions with respect to judicial review: Dworkin arguing that judicial review is necessary because protection of human rights represents a limit on legislative power and the legislature should not be the final judge of when its power should be limited to protect individual rights; and Waldron arguing that judicial review is an unacceptable interference with democracy. Essentially, commentators on judicial review can be split into two camps: judicial supremacy (based on traditional American constitutionalism) as represented by Dworkin; and democracy (or perhaps, more accurately, parliamentary sovereignty) as represented by Waldron. Having introduced the arguments on each side, this paper then investigates how these opposing models work in practice and then recommends a model that strikes the appropriate balance between judicial review and democracy.
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Officially Induced Error: A Defence for Torture?
(Te Herenga Waka—Victoria University of Wellington, 2010) Thomas, Kym
This paper seeks to address the question can ‘officially induced error’ be a defence to the crime of torture in international criminal law? This question is answered within the context of the “torture memos” relied upon by senior U.S officials to implement interrogation techniques at Guantanamo Bay and in Afghanistan that amounted to torture and cruel, inhuman or degrading treatment. The role that these legal memoranda played in the development of the illegal interrogation policy provides a useful basis for investigating the appropriateness and limitations of the defence of officially induced error as it may be applied in international criminal law. Domestically a number of nation states have implemented versions of the officially induced error defence on the premise that such a defence is necessary on policy grounds where the defendant does not have the requisite criminal intent because they relied on incorrect advice on the law. This paper concludes that the defence of officially induced error may have a place in international criminal law, but it should not succeed in the U.S. example because of the clear customary legal obligation to treat detainees humanely.