Since the colonization of the “New World,” indigenous people have struggled with establishing and maintaining their rights as citizens while still keeping to their cultural heritage. There is a continuing struggle even in today’s modern age, regarding the extent of indigenous peoples’ rights, particularly with regard to the maintenance of their cultural traditions and land. However, in recent years, there have been serious movements as well as legislation passed to help secure the rights of indigenous people across the globe. The International Labour Organization (ILO) helped start the trend by passing such legislation in 1989. Many South American countries ratified the ILO’s “Indigenous and Tribal Peoples Convention, 1989,” and since ratification, many of those countries have endeavored to secure and enforce the rights of indigenous peoples, Peru being the prime example. Peru, in particular, has been a model to follow when it comes to passing and enforcing legislation securing the rights of the indigenous in culture and land. But even in Peru, there are still enforcement and recognition issues when it comes to the indigenous people.

It is the purpose of this Note to expound on the development and extent of indigenous cultural rights on the international and domestic plane, focusing on Peru. This Note will also note the shortcomings of law and policy in Peru, regarding the indigenous people. While the ILO and United Nations (UN) have made conscious international efforts to secure change for the indigenous, it is not quite enough because there is still a struggle for recognition and enforcement of indigenous rights on the domestic level. Unless there is a significant change of attitude on the domestic level, the struggle for the indigenous will continue. Passing new domestic legislation or ratifying international conventions will not likely be enough. To really make an impact, continuing positive policies and attitudes towards this issue will have to be adopted, circulated, and accepted.

I. INTRODUCTION

Indigenous people are a culturally unique class of people. 1 “Indigenous identity, though evidently fluid and constantly changing, is linked to a prevailing sense of cultural difference and to discrimination by dominant society.” 2 In other words, the commonality that defines indigenous peoples all across the globe is the desire to adhere to their distinct cultural roots, even if it means being different from and discriminated against by modern society. Being a unique class of people, indigenous people need unique considerations by international conventions and domestic legislation. Unlike most groups or classifications of people, recognition of their individual human rights is not sufficient.3 Indigenous people need their collective human rights to be recognized and enforced to help them continue to exist as they do and have for centuries. The extent of indigenous rights has been at issue for centuries, and it is still at issue even today. 4 This is the continuing struggle.

Every now and again something is seen on TV or read in a newspaper that brings indigenous people and the question of the extent of their rights to center stage. In fact, this was recently a hot topic in United States’ news. When this Note was written in 2016, a pipeline was about to be built in North Dakota near the Standing Rock Sioux Tribe reservation.5 The indigenous people, who lived on the reservation, and many others, were protesting the pipeline’s construction because it was set to be built over sacred Native American burial grounds.6 Further, there was a concern that the pipeline may leak or break and cause environmental damage to the reservation and area surrounding it. 7 Despite the dissent from the indigenous people, the President of the United States gave his stamp of approval to continue construction of the pipeline, believing it would “‘serve the national interest.’”8 Protests of the pipeline escalated to violence.9 This is a classic example of the dominant culture trying to subvert indigenous culture in the name of the “common good,” and it is not just the United States that has had these issues.10 Even Peru, one of the current national leaders in indigenous rights,11 has recently had some troubles with its oil pipeline contaminating and infringing on indigenous lands.12 Two of the most recent spills in 2016 caused the leaders of the indigenous community affected by the spills to meet with Peruvian government officials to discuss fixing the problem.13 The meeting ended at an impasse, which led to protests by the indigenous community a little while later.14 Both this and the United States’ example demonstrate why the extent of indigenous rights needs to be explored. Either indigenous people have the right to live in adherence with their cultural traditions, which include the necessary accompanying land and resource rights, or they do not. If the indigenous do have these rights, then their domestic government needs to honor and enforce those rights.

For the most part, the international and domestic communities are coming to understand and accept that “Indigenous Peoples should remain, nonetheless, . . . interpreters of their own situations and masters of their fates.”15 The indigenous people have as much a right to this as any other human being does. The fact that their culture is different from the majority of the modern world does not negate this. Despite opposition, assimilation attempts, suffering, poverty, and many more atrocities, the indigenous, for the most part, have remained true to their culture and heritage.16 How can anyone deny indigenous people their right to live as they do and have lived for hundreds of years when they have clung to it with such steadfast faithfulness? It is possible for two cultures to occupy the same space without clashing or trying to assimilate each other, and Peru has become one of the best, albeit not perfect, examples of this being possible.

II. THE GENERAL HISTORY AND IMPACT OF THE COLONIZATION OF PERU

To understand this continuing struggle of clashing cultures and fighting for recognition and enforcement of indigenous rights, it is best to start with the history of Spanish exploration and subsequent colonization of Peru. It really began with Christopher Colon’s, more popularly known as Columbus, desire “to exceed the bounds which had limited the most daring and successful navigators.”17 By the late 1400’s, the East Indies had become, by way of trade, very profitable to Europe.18 For this reason, the nations of Europe greatly desired a direct route to the East Indies because it would afford the nation who found it “the richest commerce in the world.”19 Using his knowledge, Columbus conceived of a way to get to the East Indies by sailing west,20 and by doing this, whether he knew it or not, Columbus would become “the initiating agent of a vast and historic transformation.”21

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† Samantha Piñeiro Graham received her J.D. from Regent University School of Law in May 2018. She also received her M.A. in Government from Regent University Robertson School of Government in 2018 and her B.A. in Government from Regent University College of Arts and Sciences in 2014. During her time at Regent University School of Law, she served as Editor-in-Chief of the Journal of Global Justice and Public Policy and supervised the publishing of this volume.

1 See MATTIAS ÅHRÉN, INDIGENOUS PEOPLES’ STATUS IN THE INTERNATIONAL LEGAL SYSTEM 83–84 (2016).

2 Rachel Sieder, Introduction to MULTICULTURALISM IN LATIN AMERICA: INDIGENOUS RIGHTS, DIVERSITY AND DEMOCRACY 2 (Rachel Sieder ed., Palgrave MacMillan 2002).

3 Razida Torres, The Rights of Indigenous Populations: The Emerging International Norm, 16 Yale J. Int’l L. 127, 133 (1991).

4 See discussion infra Section III.

5 Dakota Pipeline: What’s Behind the Controversy? BBC (Feb. 7, 2017), http://www.bbc.com/news/world-us-canada-37863955.

6 Id.

7 Id.

8 Id.

9 Id.

10 See Press Release, U.N. General Assembly, Indigenous Peoples Distinct Cultures Erode Without Respect for Rights Over Lands, Territories, Natural Resources, Forum Told, U.N. Press Release HR/4917 (May 14, 2007) [hereinafter Press Release, Indigenous Peoples Distinct Cultures].

11 ANDINA, Peru, Model for Protection of Indigenous Peoples in Isolation, ANDINA –PERU NEWS AGENCY (June 2, 2016) [hereinafter ANDINA] http://www.andina.com.pe/ingles/noticia-peru-model-for-protection-of-indigenous-peoplesin-isolation-615303.aspx.

12 Barbara Fraser, Negotiations and Protests Ongoing in Wake of Oil Spills in Peruvian Amazon, MONGABAY (Sept. 5, 2016), https://news.mongabay.com/2016/09/negotiations-andprotests-ongoing-in-wake-of-oil-spills-in-peruvian-amazon/.

13 See id.

14 Id.

15 Dr. Erica-Irene A. Daes, Equality of Indigenous Peoples Under the Auspicies of the United Nations – Draft Declaration on the Rights of Indigenous Peoples, 7 ST. THOMAS L. REV. 493, 499 (1995).

16 See Elvira Pulitano, Introduction to INDIGENOUS RIGHTS IN THE AGE OF THE UN DECLARATION 5–6 (Elvira Pulitano ed., Cambridge Univ. Press 2012).

17 HON. JOHN M. NILES, HISTORY OF SOUTH AMERICA AND MEXICO: COMPRISING THEIR DISCOVERY, GEOGRAPHY, POLITICS, COMMERCE AND REVOLUTIONS 7 (1838).

18 See id.

19 Id.

20 Id.

21 STEVE J. STERN, PERU’S INDIAN PEOPLES AND THE CHALLENGE OF SPANISH CONQUEST: HUAMANGA TO 1640, at xxii–xxiv (Univ. Wis. Press, 2nd ed. 1993).

INTRODUCTION

On May 11, 2016, the United Nations Security Council (“UNSC”) requested that the Counter-Terrorism Committee propose an “international framework” to curb “Islamic State in Iraq and the Levant (“ISIS”)” incitement and recruitment.1 The UN’s urgent request comes at a time when terrorist groups, such as ISIS, have been increasingly using social media platforms as a tool to recruit followers and to incite their followers to commit violent acts.2 ISIS has been notorious for taking advantage of Twitter as a propaganda megaphone through which it blares its extremist narratives to the world.3 Moreover, the way in which social media platforms have enabled ISIS to instantaneously share its narratives with the world with just a click of the mouse has led ISIS to gain a global base of supporters.4 In fact, it would not be an understatement to claim that social media platforms have transformed terrorism by “facilitating both ubiquitous and real-time communication between like-minded radicals with would-be recruits and potential benefactors, thus fueling and expanding the fighting and bloodshed to a hitherto almost unprecedented extent.”5

Consequently, there is a pressing need for an international framework of internet governance on social media platforms to regulate ISIS narratives and to specifically curb ISIS incitement and recruitment through the regulation.6 The proposed international framework, however, must not infringe upon “human rights and fundamental freedoms and [must be] in compliance with obligations under international law.”7 Despite the UN’s recognition of the need to preserve “human rights and fundamental freedoms,” a proposed international framework on internet governance of social media platforms will inevitably implicate free speech rights. In addition, the lack of a universally accepted definition of terrorism raises potential issues with a government’s abuse of discretion. Without a universal definition of terrorism, a government would be able to arbitrarily decide what constitutes terrorist narratives at the cost of regulating merely objectionable yet legitimate content.

In an attempt to propose an international framework for internet governance of social media platforms, this Note will first examine the advantages of social media platforms and how ISIS has adopted these advantages for its own purposes of spreading propaganda, inciting, and recruiting. Then, this Note will present the challenges of regulating social media platforms due to free speech implications and the lack of a universally working definition of terrorism, especially with regard to the United States (“U.S.”) and France, countries that have traditionally placed a high value on the freedom of speech, then Russia and Turkey, countries that have traditionally placed a low value on the freedom of speech. This Note elaborates on these four countries because all are in the fight against terrorism on multiple fronts, including the regulation of ISIS narratives on social media platforms. Then, this Note will explore each country’s regulations in light of its respective value for the freedom of speech. After examining each country’s respective definition of terrorism and attempts to regulate online terrorist content, this Note will propose that the international framework should adopt the U.S.’s multistakeholder approach on internet governance and France’s definition of terrorism to minimize infringing on citizens’ free speech rights. As for specifically curbing ISIS incitement and recruitment, this Note suggests that internet governance of social media platforms through a multistakeholder approach must be accompanied by nuanced approaches in the form of both hard and soft law, that is, broadly speaking, both governmental measures and non-governmental measures.

I. TERRORISM AND SOCIAL MEDIA

“Unlike traditional media . . . in which only a [select group] of established institutions disseminates information[,] . . . social media [platforms] enable[] anyone to publish or access information [instantaneously].”8 This enabling power of social media platforms can give voice to those who traditionally had no platform on which to voice their opinions. However, this same enabling power can also be misused and give voice to those whose opinions, or specifically, extremist narratives, can do more harm than good.9

A. Social Media and Its Appeal

It is undeniable that social media has become a major platform on the Internet that allows users to view and share information in “real time.”10 Specifically, social media platforms in the form of social networks, such as Facebook, Twitter, and YouTube, enable its users to view any content they are interested in, and likewise, to share any content they are interested in with not only a limited audience of their choosing, but also with a global audience.11 Furthermore, social media platforms are appealing to users because of the ease with which users can share content, including, but not limited to, images, videos, or messages.12 This ease of sharing such content is facilitated by various factors such as the “accessibility” and “interactivity” of social media platforms and the little to no restrictions imposed on users when creating accounts or posting content.13

In addition to these advantages of social media platforms, there are also psychological aspects as to why users are drawn to social media platforms.14 By granting users nearly absolute discretion in posting about a subject matter of their own choosing, social media platforms encourage self-expression, which consequently promotes the user’s sense of self-affirmation.15 Also, social media platforms emphasize users’ “social connections”16 with seemingly like-minded people around the world when users are able to interact with other users by viewing status updates, tweets, or images and then “liking” or “commenting” on other users’ content.17 In other words, users are able to belong to niche communities that they might not have otherwise found outside of social media.18 Lastly, users may feel empowered on social media platforms because, unlike in traditional forms of media, where only a select group of people such as journalists or reporters have a voice, social media platforms allow anyone, from an ambitious teenager to a retired teacher, to have a say on the current affairs of the world.19

B. Social Media as a Platform for Terrorism

The “growth and communicative power”20 of social media platforms have not gone unnoticed by terrorist groups.21 Rather, terrorist groups have fully adopted the advantages of using social media platforms since these platforms “are by far the most popular with their intended audience, which allows [previously hidden] terrorist organizations to be part of the mainstream.”22 A chilling example of when terrorists began to realize how social media platforms can help disseminate their ideologies into the mainstream “was outlined in a jihadi online forum[, which] call[ed] for [a] ‘Facebook Invasion’”:

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† Janice Yu received her J.D. (Equivalent) from the Handong International Law School in 2017. She also received her B.S. from the University of California, Irvine in 2013.

1 Press Release, Security Council, Security Council Presidential Statement Seeks Counter-Terrorism Committee Proposal for ‘International Framework’ to Curb Incitement, Recruitment, U.N. Press Release SC/12355 (May 11, 2016) [hereinafter Press Release 2016] https://www.un.org/press/en/2016/sc12355.doc.htm.

2 See Gabriel Weimann, New Terrorism and New Media, WILSON CTR. COMMONS LAB 1, 3 (2014), https://www.wilsoncenter.org/sites/default/files/STIP_140501_new_terrorism_F.pdf.

3 See id. at 1–2.

4 See id. at 3.

5 Bruce Hoffman, Foreword to GABRIEL WEIMANN, TERRORISM IN CYBERSPACE: THE NEXT GENERATION at xi, xii (Woodrow Wilson Ctr. Press 2015).

6 See Press Release 2016, supra note 1.

7 S.C. Res. 2253, ¶ 22 (Dec. 17, 2015).

8 Weimann, supra note 2, at 2.

9 See Shannon Green, Changing the Narrative: Countering Violent Extremist Propaganda, CTR. FOR STRATEGIC & INT’L STUD. (Sept. 25, 2015), https://www.csis.org/analysis/changing-narrative-countering-violent-extremist-propaganda; Shaukat Warraich, Tackling Online Hate Requires a Collaborative Approach, HUFFPOST: THE BLOG (U.K.) (Apr. 5, 2017), http://www.huffingtonpost.co.uk/shaukat-warraich/tackling-online-haterequ_b_16392310.html.

10 See SOC. MEDIA GUYS, THE COMPLETE GUIDE TO SOCIAL MEDIA 14 (2010), https://rucreativebloggingfa13.files.wordpress.com/2013/09/completeguidetosocialmedia.pdf

11 Manasa Boggaram, 4 Ways to Reach a Global YouTube Audience, Promolta Blog, http://blog.promolta.com/4-ways-to-reach-global-youtube-audience/.

12 Catriona Pollard, Why Visual Content Is a Social Media Secret Weapon, HUFFPOST: THE BLOG (May 12, 2015, 6:08 PM), http://www.huffingtonpost.com/catriona-pollard/why-visual-content-is-a-s_b_7261876.html.

13 Farzana Parveen Tajudeen et al., Role of Social Media on Information Accessibility, 8 PAC. ASIA J. ASS’N FOR INFO. SYS. 33, 34–35 (2016) (discussing the “impact of social media on information accessibility” and how interactivity positively influences usage of social media in organizations).

14 See Catalina L. Toma & Jeffrey T. Hancock, Self-Affirmation Underlies Facebook Use, 39 PERSONALITY SOC. PSYCHOL. BULL. 321, 327–28 (2013), https://blogs.cornell.edu/socialmedialab/files/2014/01/2013-Toma-Hancock-Self-affirmation-underlies-Facebookuse.pdf (discussing self-affirmation theory, how self-affirmation functions work in everyday environments, and the revealing psychological factors underlying Facebook use).

15 See id. at 322.

16 Id. at 328.

17 See Social Media Best Practices, TUFTS UNIV. OFF. OF COMMC’NS & MKTG., http://communications.tufts.edu/marketing-and-branding/social-media-overview/social-media-best-practices/ (last visited Sept. 23, 2017).

18 See Larry Alton, Niche Social Networks Rise as Alternatives to Mainstream Platforms, SOC. MEDIA WK. (June 6, 2014), https://socialmediaweek.org/blog/2014/06/niche-social-networks-rise-alternatives-mainstream-platforms/.

19 Since the advent of social media platforms in 2002, social media has been increasingly successful in attracting users from all around the world. See The History of Social Networking, DIG. TRENDS (May 14, 2016, 6:00 AM), https://www.digitaltrends.com/features/thehistory-of-social-networking/. In the U.S. alone, there has been a nearly tenfold jump, from 7 percent in 2005 to 65 percent in 2015, in the number of adults who use social media platforms (76 percent of Americans in total use the Internet). Andrew Perrin, Social Media Usage: 2005-2015, PEW RES. CTR. 2 (Oct. 8, 2015), http://assets.pewresearch.org/wp-content/uploads/sites/14/2015/10/PI_2015-10-08_Social-Networking-Usage-2005-2015_FINAL.pdf. Research from 2016 shows that nearly 79 percent of online Americans use Facebook, 24 percent use Twitter, and 32 percent use Instagram. Shannon Greenwood et al., Social Media Update 2016, PEW RES. CTR. 3, 4 (Nov. 11, 2016), http://assets.pewresearch.org/wp-content/uploads/sites/14/2016/11/10132827/PI_2016.11.11_Social-Media-Update_FINAL.pdf. The number of social media users is expected to rise, not only in the U.S., but across the globe.

20 Hoffman, supra note 5, at xii.

21 See Weimann, supra note 2, at 2.

22 Id. at 3.

INTRODUCTION

Adroa, a 30 year-old woman, lives in a rural village in Northern Uganda with her three children and long-term boyfriend, who she refers to as her husband. People in her village describe her as kind and full of laughter. She makes barely enough to feed her family by selling food at the local market, and her boyfriend finds work, when he can, driving his small motorcycle (referred to locally as a bodaboda), transporting people from place to place. The average person passing Adroa’s smiling face on the orange dirt road outside her village would never know that Adroa lives in a home where she is constantly abused by her boyfriend. From being violently raped when her boyfriend comes home drunk to being beaten when she disagrees with him, she has learned to suffer through the abuse with a smile on her face just like her mother and grandmother did before her. When asked why she does not report such abuse, she responds, “What am I to report? My mother, her mother, and my grandmother’s mother all lived the same type of life. We endure or we risk losing our homes, families, and children. I pray he does not kill me, but I do not have much choice.” Adroa will likely never report the abuse she has suffered at the hands of her boyfriend.1

Abenaa is a 26 year-old woman living in the Ashanti region of Kumasi, Ghana, with her three children and husband. She works as a seamstress and provides approximately half of the family’s income. Her husband finds work building when he can. Abenaa loves ice cream and spending time with her children. She is well-known in her community and sings at church on Sunday mornings. However, Abenaa harbors a similar secret. She, like Adroa in Uganda, suffers physical and mental abuse at the hands of her husband. Her husband likes to drink and will beat her when they disagree. Though she does not claim to have been raped by her husband, she does admit to being abused. Like Adroa, she lives in a small community where wives stay with their husbands for life despite the husband’s abuse or infidelity. However, unlike Adroa, Abenaa was told about Ghana’s Domestic Violence Victims’ Support Unit (DOVVSU). She filed a report with DOVVSU, which investigated her case of abuse. Thanks to the investigation, evidence was provided to Abenaa’s attorney and her case against her abusive husband has been filed with the court. Though awaiting trial, Abenaa no longer lives with her husband and has moved to the city of Kumasi with her children, where she works and finds support through her new church.2

Nelson Mandela stated, “[F]reedom cannot be achieved unless women have been emancipated from all forms of oppression.”3 Domestic violence constitutes a form of discrimination and oppression in Africa, especially in Ghana and Uganda.4 Ghanaian and Ugandan women live with an inordinately high risk of being a victim of domestic violence due to the Ghanaian and Ugandan custom of treating a wife as property.5 However, both Ghana and Uganda are known for their relatively advanced legal systems on the continent of Africa. 6 Despite having advanced legal systems and having passed similar laws against domestic violence, the response in the two nations has been drastically different.7 In that vein, both countries passed a Domestic Violence Act – Ghana in 2007 and Uganda in 2010.8 However, the courts in Ghana have prosecuted many more cases in the past nine years using Ghana’s Domestic Violence Act than Uganda, which seems to have only prosecuted one case using the Domestic Violence Act in the past six years.9

This Note seeks to differentiate between the two Domestic Violence Acts and governmental changes that followed from the passage of these Acts to determine why Ghana has done a greater job implementing the Act than Uganda. Section I introduces the topic of domestic violence by telling the stories of women living in Uganda and Ghana. Section II will provide an overview of domestic violence, including the history of domestic violence in Ghana and Uganda. Section III examines the Domestic Violence Acts of both Ghana and Uganda and other relevant law from each country. Section IV discusses the hurdles to defeating domestic violence in Africa. Section V then compares the tactics taken in each country against domestic violence and makes recommendations for improvement in Uganda’s approach to defeating domestic violence.

I. OVERVIEW OF DOMESTIC VIOLENCE

No typical victim of domestic violence exists, as victims come from all ages, ethnicities, religions, and sexual orientations. However, most domestic violence occurs due to the power inequality in a relationship between men and women; thus, women tend to be the victims.10 Domestic violence has been defined by the United States Department of Justice as “a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.”11 Physical or sexual abuse tends to be the most common form of domestic violence and includes “hitting”, “slapping”, “biting”, “denying a partner medical care”, “forcing . . . drug[s] . . . [on a partner]”, “marital  rape”, “treating [a partner] in a sexually demeaning manner”, and forcing any sexual act on a partner without consent.12 However, domestic violence includes more than just causing harm physically or coercing someone to commit a sexual act through the threat of physical harm. Domestic violence also includes both economic abuse through the deprivation of economic or financial resources and emotional, verbal, and psychological abuse through a pattern of degrading or humiliating conduct towards a victim using insults, name-calling, threats, possessiveness, or abuse of a minor. 13 “Domestic violence can [also] result in physical injury, psychological [abuse, [or] . . . even death]”.14

Victims of domestic violence suffer from emotional trauma at the hands of the perpetrator.15 Victims may experience an array of emotions both during and following the relationship with their offender.16 Some of those emotions include the following: isolation, depression, helplessness, wanting to escape the relationship, embarrassment, emotional withdrawal, aggressiveness, financial dependence on the abuser, shame, suicidal thoughts, alcohol abuse, religious reasons for staying in the relationship, fear of no support if they leave, and/or distrust of law enforcement or the court systems.17 Even if a victim is able to escape the relationship, victims often must live with long-lasting effects on their health, including physical problems, psychological damage, negative views of other relationships, and inability to support themselves and their families.18

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† Mary Elizabeth “Reagan” Hinton received her J.D. from Regent University School of Law in 2017.

1 Interview with “Adroa” in Northern Uganda (Names have been changed to protect the privacy of the subjects of this story).

2 Names have been changed to protect the privacy of the subjects of this story. Interview with “Abenaa” in Kumasi, Ghana (Names have been changed to protect the privacy of the subjects of this story).

3 Nelson Mandela, President of S. Afr., State of the Nation Address (May 24, 1994) (transcript available at Nelson Mandela Found.: O’Malley Archives, https://www.nelsonmandela.org/omalley/index.php/site/q/03lv02424/04lv03370/05lv03427.htm).

4 Takyiwaa Manuh, African Women and Domestic Violence, OPENDEMOCRACY (Nov. 26, 2007), https://www.opendemocracy.net/content/african-women-and-domestic-violence.

5 Gender Studies & Human Rights Documentation Center., Facts on Violence Against Women in Ghana (Mar. 2011), http://gendercentreghana.org/wpcontent/uploads/2015/04/Facts-on-Violence-gainst-Women-mar-2011.pdf; Human Rights Watch, Just Die Quietly: Domestic Violence and Women’s Vulnerability to HIV in Uganda (Aug. 2003), https://www.hrw.org/reports/2003/uganda0803/uganda0803full.pdf [hereinafter Just Die Quietly].

6 See Asante Fordjour, What is Wrong with Ghana’s Legal System?, JUSTICEGHANA, http://justiceghana.com/blog/law-justice/what-is-wrong-with-ghanas-legal-system/ (last visited Sept. 30, 2017); Brenda Mahoro Updated by Lydia Matte, UPDATE: Uganda’s Legal System and Legal Sector, N.Y.U. L. GLOBAL: GLOBALEX (Oct. 2016), http://www.nyulawglobal.org/globalex/Uganda1.html.

7 See infra Part IV.

8 See generally Immigration and Refugee Board of Canada, Ghana: Domestic violence, including protection, services and recourse available to victims, GHA103468.E (June 10, 2010), https://www.justice.gov/sites/default/files/eoir/legacy/2014/09/25/GHA103468.E.pdf [hereinafter Immig. & Refugee Bd. of Can., Ghana]; Domestic Violence Act, 2010 (Uganda).

9 See generally Uganda v. Kamuhanda, Uganda Legal Information Institute (ULII), (HCT-01-CR-SC-0024 of 2012) [2014] UGHCCRD 21 (Feb. 13, 2014) (discussing the newly recognized precedent under the Domestic Violence Act of 2010).

10 Strengthening Health System Responses to Gender-based Violence in Eastern Europe and Central Asia: Defining Gender-Based Violence, HEALTH-GENDER VIOLENCE, http://www.health-genderviolence.org/training-programme-for-health-care-providers/factson-gbv/defining-gender-based-violence/21 (last visited Sept. 22, 2017) [hereinafter Strengthening Health System].

11 Domestic Violence: What is Domestic Violence?, DEP’T JUST.: OFF. ON VIOLENCE AGAINST WOMEN, https://www.justice.gov/ovw/domestic-violence (last updated June 16, 2017) [hereinafter DEP’T JUST.: OFF. ON VIOLENCE AGAINST WOMEN].

12 Id.

13 Id.

14 Learn More: What is Domestic Violence?, NAT’L COAL. AGAINST DOMESTIC VIOLENCE (NCADV), https://ncadv.org/learn-more (last visited Sept. 22, 2017). 15 Michael O. Schroeder, The Psychological Impact of Victim-Blaming – and How to Stop It, U.S. NEWS & WORLD REP. (Apr. 19, 2016, 11:20 AM), https://health.usnews.com/wellness/articles/2016-04-19/the-psychological-impact-of-victimblaming-and-how-to-stop-it.

16 The 4 Stages of Battered Woman’s Syndrome, LAWS, http://marriage.laws.com/domestic-violence/battered-person-syndrome/stages-of-batteredwomens-syndrome/stages-of-battered-womans-syndrome (last visited Sept. 22, 2017).

17 See Emotional and Physical Reactions to Violence and Abuse, OUR BODIES OURSELVES (Mar. 14, 2005), http://www.ourbodiesourselves.org/health-info/emotional-andphysical-reactions-to-violence-and-abuse/; Why do Abuse Victims Stay?, SUDBURYWAYLAND-LINCOLN DOMESTIC VIOLENCE ROUNDTABLE, http://www.domesticviolenceroundtable.org/abuse-victims-stay.html (last visited Sept. 23, 2017).

18 See Samantha Gluck, Effects of Domestic Violence, Domestic Abuse (On Women and Children), HEALTHY PLACE, https://www.healthyplace.com/abuse/domestic-violence/effectsof-domestic-violence-domestic-abuse-on-women-and-children/ (last updated May 26, 2016).

 

I. INTRODUCTION

One of the most horrific and exceedingly pervasive human rights violations today is human trafficking—otherwise known as modern slavery. The United Nations Office on Drugs and Crime (UNODC) has admitted that it is not only one of the largest sources of income for organized crime, but also the fastest growing.1 Despite heightened attention by activist groups and the international community as a whole, victims continue to be exploited at alarmingly high rates.2 In fact, with upwards of 21 million victims worldwide, it has become one of the largest illegal industries, second only to drug trafficking.3 Human trafficking earns roughly $150 billion USD a year ($99 billion of which comes from sexual exploitation alone).4 To put that into perspective: the enslavement of human beings earns well over the annual revenue of Microsoft, Nike and Starbucks combined.5 Yet despite the blatant human rights crisis implied by these gut wrenching numbers, survivors of human trafficking are often unfairly overlooked as deserving recipients of international asylum protection.6

So what exactly is human trafficking, and why has it been allowed to fester into such a global atrocity? Although the term trafficking may imply movement, it is not required by definition, and in fact is much more inclusive in its scope.7 Article 3(a) of the United Nations’ Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (“Trafficking Protocol”) defines trafficking in persons as:

This definition comprises three essential elements: action, means, and purpose. The actus reus (action) of recruiting, transporting, transferring, harbouring, or receiving can normally be neutral on its own, but when combined with the mens rea (purpose) of exploitation any innocence in the behavior itself is distorted.9 In most cases all three elements must be present before finding that trafficking in persons has occurred, yet in instances where the victim is a minor, the means requirement is vacated and courts focus solely on the action and the purpose.10

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The means of exploitation, as evidenced by the lengthy list offered in Article 3(a), can be numerous. Although abduction or sale by a family member is not uncommon, one of the most prevalent approaches used by traffickers is to recruit individuals using false pretenses of lavish jobs with better earning capabilities.11 Presented with the promise of a better life, these often poor and uneducated individuals leave home with their recruiter only to find themselves in situations drastically different than they expected.12 Additionally, because the recruiter typically covers the cost of travel, victims are considered indebted and forced to work without compensation in order to pay off the recruiter’s fees and other travel expenses.13 Furthermore, although the Trafficking Protocol provides no definition of exploitation, international law recognizes that it can be carried out in many ways.14 The most common are through sexual slavery, which makes up 72% of all trafficking occurrences, and forced labor, which makes up 20% of all trafficking occurrences.15 The remaining 8% is a conglomeration of equally appalling methods, including trafficking children to be used as soldiers or for forced and sham marriages, as well as pornography, street begging, and even organ removal.16 Once enslaved, victims face repeated rape and sexual abuse, violent beatings, humiliation, degradation and other forms of psychological manipulation. 17 Additionally, in order to assert control, traffickers often implement forced drug use in order to keep the victim in a weakened state and, once addiction takes hold, dependent on the traffickers themselves.18

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† Rikkilee Moser earned her J.D. in 2016 from Northern Illinois University, and in 2017, she earned her L.L.M. in Human Rights from UCL in the United Kingdom. She currently lives in London and works as an immigration attorney for a U.S. immigration firm.
1 See Human Trafficking: Organized Crime and the Multibillion Dollar Sale of People, U.N. OFFICE ON DRUGS AND CRIME (July 19, 2012), http://www.unodc.org/unodc/en/frontpage/2012/July/human-trafficking_-organized-crime-and-the-multibillion-dollar-sale-of-people.html.
2 See The Scale of The Issue, STOP THE TRAFFIK, https://www.stopthetraffik.org/about-human-trafficking/the-scale-of-human-trafficking/ (last visited Jan. 26, 2018).
3 See id.; CAL. DEP’T OF JUSTICE , THE STATE OF HUMAN TRAFFICKING IN CALIFORNIA 3 (2012), http://www.courts.ca.gov/documents/BTB24-4L-4.pdf.
4 Human Trafficking by the Numbers, H UM . RTS . F IRST (Jan. 7, 2017), http://www.humanrightsfirst.org/resource/human-trafficking-numbers.
5 The combined revenue of Microsoft, Nike, and Starbucks in 2017 totaled $146.03 billion. See Microsoft Corp., MARKET WATCH,
http://www.marketwatch.com/investing/stock/msft/financials (last visited Apr. 29, 2018); Starbucks Corp., MARKET WATCH ,
http://www.marketwatch.com/investing/stock/sbux/financials (last visited Apr. 29, 2018); Nike Inc., MARKET WATCH , http://www.marketwatch.com/investing/stock/nke/financials (last visited Apr. 29, 2018).
6 See Smuggling and Trafficking, RIGHTS IN EXILE PROGRAMME,
http://www.refugeelegalaidinformation.org/smuggling-and-trafficking (last visited Feb. 14, 2018).
7 See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, art. 3(a), Dec. 25, 2003, 2237 U.N.T.S. 319, 344 [hereinafter Trafficking Protocol].
8 Id.
9 U.N. Office of Drugs & Crime, The Role of ‘Consent’ in the Trafficking in Persons Protocol 2, 24 (2014), http://www.unodc.org/documents/human-trafficking/2014/UNODC_2014_Issue_Paper_Consent.pdf [hereinafter The Role of ‘Consent’].
10 See id. at 25.
11 U.S. DEP’T OF S TATE, TRAFFICKING IN PERSONS REPORT 15 (2015), http://www.state.gov/documents/organization/245365.pdf.
12 See id.
13 Id. at 15, 17.
14 U.N. Office of Drugs & Crime, The Role of ‘Exploitation’ in the Trafficking in Persons Protocol 2, 21, 23–24 (2014), https://www.unodc.org/documents/congress/background-information/Human_Trafficking/UNODC_2015_Issue_Paper_Exploitation.pdf [hereinafter The Role of ‘Exploitation’].
15 U.N. Office of Drugs & Crime, Global Report on Trafficking in Persons 1, 28 (2016), https://www.unodc.org/documents/data-and-
analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf [hereinafter Global Report on Trafficking in Persons].
16 See id. at 8, 28.
17 Kelly Karvelis, The Asylum Claim for Victims of Attempted Trafficking, 8 NW. J. L. & SOC. POL’Y 274, 277 (2013).
18 Id.

North Korea has long been an international concern, not only for the United States, but also for its allies in the Pacific region.1 These concerns have been elevated in recent years with North Korea’s intentions to become a nuclear power and subsequent rounds of testing.2 Most of the recent international focus has been spent attempting to curb North Korea’s nuclear ambitions, yet, there has been little response addressing its human rights issues and the generations-long atrocities against the North Korean people by its rulers. 3 The extent of the atrocities were exposed in 2014, when the United Nations Human Rights Council (UNHRC) released a report outlining the lack of human rights in North Korea and noting that “crimes against humanity” (CAH) had been committed.4 The same evidence indicates North Korean leadership has also committed genocidal and democidal acts. Democide, a fairly new term, is “[t]he murder of any person or people by a government, including genocide, politicide, and mass murder.” 5 Given the historical and current treatment of North Korean citizens by its government, this phrase would adequately define those atrocities. 6 Yet, does it matter if North Korean leadership is committing genocide, democide, or “crimes against humanity,” and if it does, what should be the international response under current international law? No matter what the international response, there are no good options. The international community could choose to do nothing and maintain the status quo, or it could rely on international law to properly address the crimes against humanity (CAH) committed by North Korean leadership. The international community could also use military action to end the crimes against humanity. All options have serious flaws.

The first two parts of this Article will present some brief background information about North Korea, some of the findings of the UNHRC’s Commission of inquiry on human rights in the Democratic People’s Republic of Korea (“the Commission”), how those findings fit into the definitions of genocide, democide, and CAH, and why North Korean leadership should be charged with CAH. However, charging is only part of the equation. The third part of this Article will explore why relying on international law to end the North Korean CAH, particularly relying on the International Criminal Court (ICC) and Universal Jurisdiction (UJ), are not viable options. Finally, this Article will discuss the propriety of military action: why state sovereignty is not the issue it used to be, the impact the “Responsibility to Protect” will have on state sovereignty, and how inaction by the United Nations (UN) Security Council to address CAH around the world has weakened its legitimacy. Ultimately, the facts presented will show that rapidly changing international law has eroded the notion of the sanctity of state sovereignty, and because the United Nations Security Council (UNSC) has failed to protect the citizens of North Korea from its own leadership committing crimes against humanity, international military action is the only option to end the long-standing atrocities.

I. NORTH KOREA AND THE COMMISSION’S REPORT

The most reclusive, secretive country on Earth, North Korea is a mystery to most people.7 This can most likely be attributed to the policy established by the country’s first leader, Kim il-Sung, who “created the country’s policy of juche or self-reliance,” resulting in North Korea cutting itself off from the rest of the world politically, economically, and relying on its own military for protection.8 Yet, juche is now used as an “ideological weapon to justify its dictatorship and hereditary power succession plan . . . a means to justify its closed-door system externally.”9 For nearly 70 years, its Supreme Leaders, Kim il-Sung, his son, Kim Jung-il, and now Kim Jung Un, Kim il-Sung’s grandson,10 have abused, manipulated, and suppressed the human rights of the North Korean people under the principle of juche.11 Little good comes from its political situation, and for the most part, the world only hears about North Korea when it is threatening to obtain and/or use nuclear weapons.

It is estimated that North Korea has a population of just over 25 million people.12 Despite spending an estimated $1.3 billion on its missile program in 2012,13 North Korea has one of the world’s least open economies, with a gross domestic product of $1800 per capita, and has an estimated 25.6% unemployment rate.14 North Korea spends about one third of its income on military spending and has 1.2 million military members, twice as many as South Korea.15 A portion of North Korea’s citizens do not even have electricity in their homes, and those that do have electricity only receive it “a few hours per day.”16 There is no independent media, and the state relies on international aid to feed its population.17 The UN World Food Programme (WFP) estimates that more than 70% of the North Korean population is food insecure, with only about a fifth of its land being arable, and that children in WFP nurseries showed a 25% stunting prevalence due to the lack of food consumption.18 “In 2015, the U.N. [WFP] asked foreign donors for . . . $111 million in contributions.”19 However, donors are reluctant to help North Korea because of restrictions on “humanitarian workers and international fears over its nuclear ambitions.”20 There is no religious freedom in North Korea, nor is there an independent judicial system.21 North Korea is considered to be the third most corrupt country on earth.22

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† Charlton J. Meginley is a Judge Advocate for the United States Air Force. He received his undergraduate degree in Criminal Justice from the University of Louisiana at Monroe, and his Juris Doctor from Louisiana State University. He currently serves as the Chief Senior Defense Counsel for the Air Force’s Central Circuit. Please note: the opinions, conclusions, and recommendations expressed or implied within this Article are solely those of the author and do not necessarily represent the views of the United States Air Force, the Department of Defense, or any other US government agency.
1 See Rex Tillerson, Secretary of State of the U.S., Remarks at the United Nations Security Council Ministerial Session on D.P.R.K., (Apr. 28, 2017) (transcript available at https://www.state.gov/secretary/remarks/2017/04/270544.html).
2 North Korea’s Push over the Years to Become a Nuclear Power, L.A. T IMES (Apr. 14, 2017), http://www.latimes.com/world/la-fg-north-korea-nuclear-timeline-20170414-htmlstory.html.
3 Olivia Enos, What the United States Can Do to Address North Korea’s Human Rights Crisis, THE FEDERALIST (Apr. 17, 2017), http://thefederalist.com/2017/04/17/united-states-can-address-north-koreas-human-rights-crisis/.
4 See U.N. Human Rights Council on Its Twenty-Fifth Session, Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, U.N. Doc. A/HRC/25/CRP.1 (2014) [hereinafter U.N. Human Rights Council].
5 R.J. RUMMEL, D EATH BY G OVERNMENT Ch. 2 (Transaction Publishers, 1994).
6 See id.; see also Yael Stein and Elihu D. Ritcher, Suspected Mass Killings, GENOCIDE PREVENTION NOW, www.genocidepreventionnow.org (last visited Oct. 4, 2017).
7 See Charlotte Alfred, How North Korea Became So Isolated, HUFF POST (Oct. 17, 2014, 5:42 PM ), http://www.huffingtonpost.com/2014/10/17/north-korea-history-isolation_n_5991000.html.
8 15 Fascinating Facts about Mysterious North Korea, USA TODAY (July 17, 2017 10:17 AM ), https://www.usatoday.com/story/news/world/2017/03/17/fascinating-facts-north-korea/99296938/.
9 See Columbia University, Juche Ideology, http://www2.law.columbia.edu/course_00S_L9436_001-North%20Korea%20materials/3.html (last visited Sept. 17, 2017); Dae-Kyu Yoon, The Constitution of North Korea: Its Changes and Implications, 27 FORDHAM INT’L L. J. 1289, 1291 (2004).
10 See Central Intelligence Agency, The World Factbook: North Korea, https://www.cia.gov/library/publications/the-world-factbook/geos/kn.html (last updated Sept. 6, 2017).
11 See 15 Fascinating Facts about Mysterious North Korea, supra note 8.
12 Central Intelligence Agency, supra note 10.
13 Ramy Inocencio, North Korea’s Rocket Launches Cost $1.3 Billion, CNN (Dec. 12, 2012), http://www.cnn.com/2012/12/12/business/north-korea-rocket-cost/index.html.
14 Central Intelligence Agency, supra note 10. See generally North Korea’s economic growth climbs to 17-year high in 2016 despite sanctions targeting nuclear program, CNBC (July 20, 2017 11:26 PM), https://www.cnbc.com/2017/07/20/north-koreas-economic-growth-climbs-to-17-year-high-in-2016-despite-sanctions-targeting-nuclear-program.html (noting that the North Korean economy is growing, even in light of the sanctions).
15 20 Facts about North Korea, USA TODAY (Apr. 13, 2013), http://www.usatoday.com/story/news/world/2013/04/13/north-korea-factoids/2078831/.
16 See id.; Rick Newman, Here’s How Lousy Life is in North Korea, U.S. NEWS (Apr. 12, 2013), https://www.usnews.com/news/blogs/rick-newman/2013/04/12/heres-how-lousy-life-is-in-north-korea.
17 20 Facts about North Korea, supra note 15.
18 Democratic People’s Republic of Korea, WORLD FOOD PROGRAMME, http://www.wfp.org/countries/korea-democratic-peoples-republic (last visited Sept. 18, 2017); see also DPRK Country Brief, WORLD FOOD PROGRAMME, http://documents.wfp.org/stellent/groups/public/documents/ep/wfp276263.pdf?_ga=2.143296828.840591394.1505785676-1256538179.1505785676 (last visited Sept. 18, 2017). According to the WFP, “81 percent of DPRK’s population do not have acceptable diversity in their diet. People consume 25 percent less protein and 30 percent less fat than required for a healthy life, according to international standards. One in three children under five years of age, and almost half of the children between 12 and 23 months of age, are anemic.” Id.
19 Olivia Enos & Bruce Klinger, Next Steps for Human Rights in North Korea, HERITAGE FOUND. (Jan. 12, 2016), http://www.heritage.org/asia/report/next-steps-human-rights-north-korea.
20 Magdalena Mis, U.N. Calls for $111 Million for Crucial Aid for North Korea, REUTERS (Apr. 9, 2015), http://www.reuters.com/article/us-northkorea-aid-un-idUSKBN0N01YK20150409.
21 20 Facts about North Korea, supra note 15.
22 See Corruption Perceptions Index 2016, TRANSPARENCY INT’L, https://www.transparency.org/news/feature/corruption_perceptions_index_2016 (last visited Sept. 20, 2017) (noting Somalia as the most corrupt nation, followed by South Sudan); Aza Wee Sile, These are the World’s Most Corrupt Countries, CNBC (Jan. 24, 2017, 11:07 PM ), https://www.cnbc.com/2017/01/24/these-are-the-worlds-most-corrupt-countries.html.

“But to punish and not to restore, that is the greatest of all offences.”††

INTRODUCTION

We have a problem in the United States: the juvenile incarceration rate is the highest among . . . developed nations.1 Since the 1990s, the juvenile justice system in America, from a global context, has followed a more punitive trajectory in dealing with young offenders, in comparison to international trends.2 Indeed, internationally, countries are seeking to incorporate the United Nations Convention on the Rights of the Child (CRC), which “requires states to use alternatives to incarceration whenever possible . . . [and] prioritizes rehabilitation over retribution.”3 Currently, the United States has not ratified the CRC.4

In the United States, one “of the primary criticisms of juvenile incarceration . . . [is] its inability to effectively address recidivism.” 5 The national recidivism rate in the United States has at times exceeded 50%.6 By contrast, there is evidence that “restorative justice [programs] tend to decrease” recidivism levels.7 Restorative justice is a “model[] of conflict resolution” that treats crime as an opportunity and “emphasizes healing rather than punishment.”8

While restorative justice may be effective, this Article asserts that the answer to America’s incarceration problem is not replacing the current system with one based on restorative justice, but rather incorporating restorative justice principles into our system. After all, punishment is not bad in and of itself. Indeed, punishing criminals “treats [them] as . . . dignified human being[s] by responding to [their] conduct in a way that respects [their] choice to engage in wrongful behavior.” 9 Punishment in the form of retribution is “intended to vindicate the value of the victim denied by the wrongdoer’s action.” 10 However, the success of restorative justice at preventing future crimes and its satisfaction rates, both of which will be discussed in this Article, cannot simply be ignored. Restorative justice involves both the offender and the victim and searches for solutions for reconciliation,11 which can be very beneficial for our system. In short, the point of this Article is that a proper approach to juvenile detention involves both punishment and restoration.

This Article is divided into four parts. Part I will explain both the theories of retributive justice and restorative justice, so that the reader will understand the underlying rationales of both. Part II briefly discusses the development of the juvenile justice system in the United States and the current status of juvenile law therein. Part III will look at how restorative justice has developed in Germany, and Part IV will evaluate how principles of restorative justice from Germany could potentially be incorporated into United States law to supplement punishment.

I. THEORIES OF RETRIBUTION AND RESTORATIVE JUSTICE

In order to lay a foundation for the rest of this Article, it is important to first discuss what is meant by the theories of retributivism and restorative justice.

A. Retributivism

The criminal theory of retribution generally focuses on “revenge for the past violation of a law.”12 Typically, it is concerned with punishing a past offense rather than deterring a future one.13 The retribution sought in a criminal case may be viewed as “social condemnation” of a criminal’s act and an affirmation of appropriate social norms. 14 The position of retributivism is that “punishment is necessary,” as society must mete out some kind of “retribution against [lawbreakers].” 15 Punishment, rather than being valuable as a deterrent, is valuable in and of itself, as the person who has “committed a crime . . . simply deserve[s] to be punished,” and there is no further justification needed.16

This theory has been around for quite some time. From ancient times until the middle ages, numerous “criminal justice systems were . . . [built around a] concept of retribut[ion].”17 It can also be found in both “biblical and Talmudic forms of justice.” 18

Those who argue in favor of this theory have said that punishment is not a means of “promoting another [g]ood,” but rather is “to be pronounced over . . . criminals proportionate to their [deeds].” 19 Furthermore, it has been argued that crimes must “be negated in order to re-establish equivalence” within a society, and that can only be done through punishment.20

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† Carter Budwell graduated cum laude from Regent University School of Law in 2016. While at Regent, he worked as a Managing Editor with this Journal, and as a Graduate Assistant for the Center for Global Justice, Human Rights, and the Rule of Law. He also interned for the National Legal Foundation and the United States District Court for the Eastern District of Virginia. A native of Colorado, Carter worked for Youth With A Mission Strategic Frontiers for three years before attending law school. During this time he worked with missionaries in Central Asia, the Caribbean, Africa, and Europe. He is currently practicing law in Norfolk, Virginia.
†† ALAN PATON, TOO LATE THE PHALAROPE 264 (1953).
1 Sandra Newcombe, The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due- Process Rights, 44 U. M EM . L. R EV . 921, 925–26 (2014). I acknowledge that not all juveniles who go through the American system are incarcerated. The principles discussed in this Article should therefore be applied to those who are.
2 Beth Caldwell, Globalization and Juvenile Life Sentences: Creating Meaningful Opportunities for Release for Juvenile Offenders, 2014 J. INST. JUST. & INT’L STUD. 1, 2.
3 Id. at 1–2.
4 Id. at 1.
5 Judy C. Tsui, Breaking Free of the Prison Paradigm: Integrating Restorative Justice Techniques into Chicago’s Juvenile Justice System, 104 J. CRIM. L. & CRIMINOLOGY 635, 641 (2014).
6 Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice, 42 U. S.F. L. REV . 983, 1022 (2008). See generally MATTHEW R. DUROSE ET AL ., U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS (2014), https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf (conducting a study from 2005 to 2010 which found high rates of recidivism for offenders).
7 Tsui, supra note 5, at 641.
8 Paul Clark, Restorative Justice and ADR: Opportunities and Challenges, 44 ADVOCATE , Nov. 2001, at 13, 13.
9 David A. Starkweather, The Retributive Theory of Just Deserts” and Victim Participation in Plea Bargaining, 67 IND. L.J. 853, 855 (1992).
10 Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV . 1659, 1686 (1992).
11 See Mary Ellen Reimund, Mediation in Criminal Justice: A Restorative Approach, 46 ADVOCATE , May 2003, at 22, 22 (discussing how reconciliation can be achieved from various means such as restitution and mediation).
12 Maria Foscarinis, Toward a Constitutional Definition of Punishment, 80 COLUM. L. REV. 1667, 1679 (1980).
13 Id.
14 Id. at 1681.
15 Matthew Haist, Deterrence in a Sea of “Just Deserts”: Are Utilitarian Goals Achievable in a World of “Limiting Retributivism”?, 99 J. CRIM. L. & CRIMINOLOGY 789, 793 (2009).
16 Id. at 793–94.
17 Id. at 795.
18 Id.
19 Id.
20 Id.