Breivik case shows ‘fine line between bad and mad’

By Arlie Loughnan, University of Sydney

One of the most high profile court decisions on “madness” and crime has concluded.

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In a unanimous decision, the Oslo District Court in Norway has convicted Anders Behring Breivik of the murder of 77 people in the streets of central Oslo and on the island of Utoya in July 2011.

As is well-known, Breivik faced trial for multiple counts of murder, following gun and bomb attacks resulting in mass killing of adults and children. Since his apprehension, Breivik has admitted planning and carrying out the killings, and is on record as saying that they were necessary to start a revolution aimed at preventing Norway from accepting further numbers of immigrants.

Breivik’s conviction was based on a finding that he was sane at the time of the killings. In a strange twist, the court’s verdict is a victory for the defence; they had been instructed by their client Breivik to argue that he was sane. The prosecution had argued that Breivik was insane.

The finding that Breivik was sane and the conviction means that he can be punished and he has been sentenced to 21 years in prison. It is possible that Breivik will be detained beyond that period, under a regime of preventative detention. This means Breivik may never be released. The seriousness of Breivik’s offences and the enormous harm they have caused seems to indicate that Breivik’s conviction and sentence will be well-received in Norway.

The issue in Breivik’s trial was whether he was criminally responsible for the killings. If he was insane at the time of killings, he was not criminally responsible. Criminal responsibility concerns the capacities of the accused. If an accused lacks the necessary capacities, he or she cannot be called to account for his or her actions in the context of a criminal trial.

The question of criminal responsibility goes beyond the issue of liability for an offence: it addresses the issue of whether the accused is someone to whom the criminal law speaks. Criminal responsibility lies at the heart of our criminal justice system.

It prompts us to where the line between “madness” and “badness” lies and to think about how to respond to offenders whose criminal responsibility is at issue.

Media reports indicate that Brievik has been examined by a total of 18 medical experts. Some of these experts concluded that he met the legal test of insanity, which, in Norway, requires that he acted under the influence of psychosis at the time of the crime. But Breivik himself disputed this diagnosis, claiming it is part of an attempt to silence him and stymie his message about “saving” Norway. Other medical assessments concluded Breivik was sane at the time of the offences, his actions motivated by extremist ideology not mental illness. The judges reached the same conclusion.

This difference of opinion among expert should not surprise us. Not only is the process of diagnosing a mental disorder complex, determining whether a disorder had a relevant effect on an individual at a specific point in time, is notoriously difficult. At what point, if any, does ideologically-driven fanaticism become “madness”?

It is tempting to think that Breivik’s crimes were so extreme that he had to be “mad”. How could he think he was performing a “duty” to his country, that such violence was “necessary”? According to this logic, the criminal acts tell us everything we need to know. And criminal responsibility appears to be a trade off between the severity of someone’s mental incapacity and the magnitude of harm resulting from their offence.

But, as a matter of law, in our system, responsibility and harm are separate matters. If an individual is not criminally responsible, the issue of the harm that their actions have caused must be dealt with by means other than punishment. Indeed, treatment for the relevant mental condition may be the most appropriate response when an individual is not criminally responsible.

If this seems too lenient, we must recall that it represents the flipside of a criminal justice system that works on the assumption that everyone is an independent agent, and, in a liberal democratic system, this assumption protects us from excessive paternalism on the part of the state. Our system requires that each individual accused of crime be respected as an autonomous subject of the law.

We must also recall that, even if an individual is not criminally responsible, legal options remain open. If Breivik had been found to be insane at the time of the killings, and not convicted of the offences with which he was charged, he could have been made the subject of a court order, which, in his case, would have seen him detained in a secure psychiatric unit inside a prison. This form of detention could have been just as long as any prison term.

If he had been tried here, and found not to be criminally responsible, Breivik could have been subject to detention – perhaps even indefinitely. But, in that case, our legal system’s response is not so much a moral condemnation of blameworthy conduct, but more forward-looking action aimed at avoiding further harm – to the individual and others – in the future.

The crucial difference with this response is that it is not based on the responsible subject otherwise at the heart of criminal law and process.

Arlie Loughnan does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.


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Nuclear power ‘major issue’ in Japan poll

The future of nuclear power is shaping up as the major issue on voters’ minds ahead of national elections in Japan this week.

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It’s been just over 18 months since the tsunami and earthquake that killed thousands of people and triggered the Fukushima nuclear disaster.

(Transcript from World News Australia Radio)

But even though nuclear power production is something many want stopped, the party on track to win the poll this Sunday is in favour of keeping the reactors.

Every Friday in front of the Japanese Prime Minister’s residence and Parliament, anti-nuclear protesters turn up to make their voices heard.

Some want whoever wins this Sunday’s election to close down the nuclear power plants immediately – others are worried about the economy.

“They say it’s not something that you can stop quickly. So while they say that you can’t stop it quickly, if you don’t plan on stopping it immediately then it just keeps getting put off. So I plan on supporting a party that says they will stop them immediately.”// “The economy is cooling down a bit. So on top of that if you then go and stop all the nuclear reactors then the economy will get even worse, so there’s the worry that it’s hard to stop all of a sudden.”

COMPLEX POLITICAL LANDSCAPE

This election will see around 1,500 candidates fielded by 12 parties or standing as independents campaign for the 480 seats in the lower house of parliament.

The two main parties are the ruling Democratic Party of Japan, the DPJ, and the opposition Liberal Democratic Party or LDP.

Opinion polls have suggested the LDP is on course to return to government as the biggest party, but not with an outright majority.

Its leader, Shinzo Abe, has been Prime Minister before – for one year between 2006 and 2007.

On the sensitive issue of nuclear power, Shinzo Abe told a recent debate audience it’s not as simple as shutting down the plants.

“Assume that places like China continue with nuclear power, and only Japan stops. Then at that point if there’s an accident would Japan really be all right? Or for instance how to deal with spent nuclear fuel, this is a world-wide issue. In order for us to contribute to those issues, it’s necessary to preserve those with knowledge in Japan as well”.

Rikki Kersten is a former Australian diplomat in Japan and now a Professor of Modern Japanese Politics at the Australian National University.

She says the current ruling party, the DPJ, and the minor parties such as the Japan Future Party and Japan Restoration Party are all talking about phasing out nuclear energy.

But not the LDP.

“Only the LDP talks about consulting the experts before deciding what to do. But the electorate is unequivocally in favour of eliminating nuclear energy from Japan’s energy mix. I think what we’re going to see in this election is that parties are going to recognise the popular appeal of this platform, but that does not mean that after the election we are going to see a realisation of that policy.”

One prominent anti-nuclear voice is former Prime Minister Naoto Kan, who was leader of the DPJ at the time of the Fukushima disaster.

“If the Liberal Democratic Party does indeed manage to get a majority again and looks to really start restarting reactors again and make things as they were then that’s indeed something that I’d want to look to prevent or stop.”

Sophia University Associate Professor of political science Koiichi Nakano says the pro-nuclear camp – including the LDP, business groups and power companies – don’t want to debate the issue.

“They don’t particularly want to have a debate about that. They rather want to shelve the issue, pretend nothing much happened. And they won’t come out saying we are pro-nuclear, let’s continue. But instead they’ll say something like let’s wait for three year.”

Elsewhere on the campaign trail, the long-running dispute between China and Japan over a group of islands in the East China Sea has also featured in the debate.

Earlier this month, four Chinese government ships sailed into the territorial waters of disputed islands, known as Senkaku in Japan, and Diayu in China.

Japan is maintaining its claim to the islands.

The current Prime Minister is the DPJ’s Yoshihiko Noda.

“In order to peacefully and safely control them over the long term, we nationalised them. However unfortunately China is reacting emotionally to this. We plan on maintaining a strong stance towards this”.

Meanwhile, a senior government minister has come under fire for saying North Korea should “waste no time” in holding its planned rocket launch so he can get on with campaigning.

North Korea’s government announced last week that it would launch a rocket before the 22nd of December.

On a visit to his constituency in Osaka, Chief Cabinet Secretary Osamu Fujimura said government duties were limiting his time to campaign.

Asked by reporters when he would come home again to put his campaign in full swing, he replied that it would depend on when the North Korean missile goes up.

He went on to say, “It will be great if they waste no time and (just) send it up (soon).”

Opposition parties have taken advantage of his apparent gaffe to step up their attack on the DPJ, demanding Mr Fujimura’s resignation.

Rikki Kersten from the ANU says sensitive issues like this make the final election result impossible to predict.

“There’s a lot going on that causes the electorate to be perplexed. I think that things like the firing of the missile by the DPRK (North Korea), any developments over the Senkaku islands with China. These sorts of things at the last minute could swing the electorate in a particular direction”.


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Central African rebels near on capital

The rebels, who already have control of four other regional capitals in the centre and north of the country, faced no resistance as they entered the town of Sibut around 150 kilometres (95 miles) from Bangui, a military official told AFP.

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The streets of Bangui were deserted on Saturday night, according to an AFP journalist, after a curfew was imposed from 7:00 pm to 5:00 am (1800 GMT to 0400 GMT).

Many shops were being guarded by men armed with machetes. “The bosses fear looting so they are paying guards,” said one guard.

Officials on both sides said the rebels of the so-called Seleka coalition had also repelled army soldiers trying to recapture Bambari, a former military stronghold in the landlocked country, one of the world’s poorest despite vast mineral wealth.

A military official described “extremely violent” fighting over the town, with detonations and heavy weapons fire audible to witnesses some 60 kilometres away.

The rebel advance on Sibut, also a base for Chadian soldiers stationed in the country, forced government forces and their allies to retreat to Damara, 75 kilometres from Bangui and the last major town on the road to the southwestern capital.

“The rebels entered Sibut. There was no fighting, the Central African Armed Forces (FACA) stationed there and the Chadian troops left the town last night (Friday) for Damara,” the military official told AFP.

Djouma Narkoya, a Seleka leader, claimed that the army suffered “losses” in the fighting for Bambari, while the rebel side had “one killed and three injured” in the fighting.

“We are continuing to progress,” he added.

Sibut residents arriving in Bangui said they saw around 60 Chadian and Central African army vehicles converging on Damara late Friday.

One of the towns under the control of the rebels, who launched their offensive in early December, is the garrison town and key diamond mining hub of Biraosince.

Former colonial power France, meanwhile, boosted its military presence to 400 on Friday with the deployment of 150 paratroopers to Bangui airport, and the Economic Community of Central African States (ECCAS) announced reinforcements.

French Prime Minister Jean-Marc Ayrault stressed again on Friday that French troops were there only to protect French and European nationals, not fight the rebels.

Regional efforts to mediate a peaceful solution in the landlocked equatorial country were at a standstill.

A day after announcing that the rebels and the government had agreed to hold unconditional peace talks and that more regional troops would head to the country, ECCAS said no dates had been set for either move.

The bloc’s foreign ministers will meet again next Thursday “and that is when they will announce a date for the meeting in (the Gabonese capital) Libreville,” ECCAS’s communications director Placide Ibouanga told AFP, referring to talks between rebels and the government.

The coalition of three rebel movements known as Seleka — or the “alliance” in the Sango language — says the government has not fulfilled the terms of peace pacts signed in 2007 and 2001, providing for disarmament and social reintegration for insurgents, including pay.

Central African President Francois Bozize, who took power in a 2003 coup, has twice been elected into office.

Bozize’s appeals for help from France and from the United States to fight the rebels have fallen on deaf ears.

Neighbouring Chad, which has helped Bozize with rebellions in 2010, earlier sent a contingent to the country, however.

In Bangui, food prices have soared, further spiking tensions and uncertainty.

“I’m afraid of the rebels coming,” said vegetable vendor Euphrasie Ngotanga in the city’s huge Sambo market. “We’re not going to sell our produce if there’s no peace. And then how we will feed our children?”

“We don’t eat properly any more,” said another vendor, Angele Bodero, with her baskets full of condiments before her. “Cassava has become more expensive, everything costs more,” she said, referring to the country’s staple food.

A bag of cassava has risen nearly 50 percent from 13,000 CFA francs to 18,000 FCFA (19.80 to 27.40 euros, $26 to $32).


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Emotional Magnussen wins 100m world title

Australian James Magnussen put a year of pain behind him as he defended his world 100m freestyle title with an emotional victory in Barcelona.

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A year on from his heartbreaking defeat in the London Olympic final, Magnussen reasserted himself as the world’s fastest man as he clocked 47.71 seconds to win Thursday’s thrilling final.

After turning for home in fifth, the 22-year-old powered home in the late stages to beat Americans James Feigen (47.82) and Nathan Adrian (47.84), the man who beat him by one one-hundredth of a second in the Olympic final.

In a surprise result, Australian teenager Cameron McEvoy (47.88) was fourth after producing a huge PB.

Magnussen revealed he was almost too drained to celebrate after what had been a humbling year.

“It was really emotional,” Magnussen said.

“That last 15 metres, I really used the last 12 months of experiences that I’ve gone through.

“I was really aggressive towards the wall and I’m just stoked that I got there.

“I’ve put the last 12 months behind me now and I consider that race the start of my preparations for Rio.”

Magnussen said he was overwhelmed with the emotion of adding a second individual title to his 2011 triumph in Shanghai.

“The last 12 months has sort of kicked me down to the kerb,” Magnussen said.

“But I’ve worked so hard and my support team’s worked so hard.

“I think it’s a great reward for all my friends and family and support team who have stuck by me through what’s been a pretty terrible twelve months.”

McEvoy, 19, was thrilled after finishing ahead of title contenders including Russian Vladamir Morozov (48.01) and Frenchman Fabien Gilot (48.33).

“That was pretty unreal, I don’t think I’ve ever experienced anything like that before,” McEvoy said.


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Fijian play celebrates cross-cultural love

The story of love between two cultures is not an unfamiliar one.

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But ground-breaking a New Zealand theatre company blends traditional Fijian culture and the magic of theatre in a bold new way.

Masi is an extraordinary show that has captivated audiences in New Zealand and Fiji, where it was the first professional theatre show to tour there.

Now it’s in Australia for the first time.

It’s a dance of two cultures. He, a Fijian high chief from the island of Kadavu; she, the daughter of Cambridge school masters.

“It’s a piece that explores loss and memory,” Nina Nawalowalo said, the show’s artistic director and actor.

“[It’s] what represents [the] identity of who we are.”

Nawalowalo, who also appears in the play, tries to recreate her parents’ love story, based on their meeting at a chess club in Wellington in the 1950s.

The story is told without words, using the magic of theatre.

The magic, coming from Harry Potter special effects designer, British illusionist Paul Kieve, who worked on the production.

The show also includes traditional Fijian male dancing, continuing the cultural heritage of Nina’s father in a new, contemporary light.

“You know, when you are another generation and then you are not born in that country and how you connect back to something that is not so familiar,” Nawalowalo said.

“But it may be familiar in your house.”

The dancers enjoy the opportunity to share their culture in a new setting.

“We’ve never come this far with traditional dancing, I mean as far as stage show is concerned,” Master Lai said, lead choreographer for the show and Fiji’s Kabu ni Vanua Dance group.

“It’s always been done in a traditional context. But it’s a great pleasure to see it step up into theatre co-production and now it’s opened up a lot of windows and doors. So, the sky’s the limit.”

The play takes its name from the traditional cloth of the South Pacific Islands, the geometric patterns reflecting the convergence of personal lives, and narratives.

Professional masi maker Ro Miriama is from an outer village in Fiji and is now a story-teller on stage.

“I’m proud to be a masi maker,” Miriama said. “I think its a very good experience for me to show masi to the audience because this come from my village.”

“I believe that it’s a universal story because we all hold onto things when we lose people, objects, things that are close to us,” Nawalowalo said.

“And Masi is something that was in our house when we grew up, we got gifted. And so it was a natural doorway and something when I lost my Dad that connects me to Fiji.”

While her parents died without seeing the play, their story of cross-cultural love lives on, bringing new life and possibilities to Fijian culture and story-telling.


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