Appunti corso Criminal Law - Menghini e Rigoni, Appunti di Diritto internazionale penale

Scarica Appunti corso Criminal Law - Menghini e Rigoni e più Appunti in PDF di Diritto internazionale penale solo su Docsity! CRIMINAL LAW Antonia Menghini 200223 Short-Time Prison: prisons, where there are only inmates that are sentenced for less than 5 years, or held in custody (pre-trial detention) for Italian native speakers Home of detention, is different from short-time prison Art. 37? → get into prison without any authorization whenever they want, other citizens must be authorized? What if there is a violation of a right, who do you write a report to? 1. to the director of the prison and the commander of the penitentiary police 2. to the central administration - department of penitentiary administration a. headquarters in Rome b. when the problem is general and affects all inmates at the national level These are the two subjects entrusted with the function of protecting the rights 1. guarantor 1. civilian judges a. can impose on the administration all the measures to protect the inmates Scholars define it as multilateral protection. Prohibition of torture and prohibition of inhuman and degrading treatments → ECtHR as a violation of art. 3. Torregiani Case 2013 European Court → In this ruling, the court states the violation of article 3 concerning the prison conditions of Italy, relating in particular to the issue of overcrowding. Theories of Punishment If someone breaks the law, they have to be punished, but why? There is a fundamental distinction made by scholars during the Enlightenment: 1. absolute theories a. looking backward → “quia peccatum est” (because they committed a crime), “tot crimina, tot poena” → Law of Talion b. the punishment must be proportional to the seriousness of the crime c. penalty = reaction of the society to the fact that a crime has been committed d. punishment is based on a vengeance instinct, an ancient instinct of revenge i. no specific purpose to apply a punishment 2. relative theories a. look forward → punishment has a specific purpose b. the offender is punished “ne peccetur”, to prevent future crimes c. punishment is a means to an end, aiming at reducing future crimes 1 d. looking from the offender’s perspective = to reduce the possibilities of recidivism, to prevent future crimes There are 3 fundamental theories: 1. retribution a. the absolute theory also called Just Desert or Principle of proportionality 2. general prevention a. a relative theory, also called deterrencewhen considered in its negative form 3. special prevention a. a relative theory that evokes the idea of rehabilitation b. in Italy, this is the only punishment allowed by the Italian constitution, Art. 27.3 i. Art. 27.3: “Punishments may not be inhuman and shall aim at re-educating the convicted.” In recent years, a new idea of justice has developed: restorative justice. It is based on a different perspective because here there is a dialogical justice, a horizontal perspective where the offender and the victim are at the same level. On the contrary, from a classical point of view, the justice perspective is vertical → above there is the power to punish, which belongs to the state, and below there is the offender, considered a passive subject to whom the penalty has to be imposed if the law is broken. In the new approach, instead of punishing the offender, the victim and the offender choose together the path to follow to restore the situation prior to the harm caused by the crime. Restoration is a very wide concept, an empty vessel in which the victim can find whatever is the most suitable way to solve the issue. It depends on the single victim and their subjective perspective (could be either money or a simple letter of excuse). It is a new way of looking at punishment and the justice system as a whole. The recent reform of the Justice in Italy (riforma Cartabia) aimed at regulating restorative justice at every stage of the penal proceedings, even when penalties are carried out in prison. The new law provides that a restorative justice program could be evaluated by the civilian (or surveilling) judge in granting benefits to the offenders, such as alternative measures (probation, home detention, day release). It is something different from the classical ideas of justice, a new way to find a restoration between the victim and the offender. The classical idea of guilt has nothing to do with restorative justice because the idea is not to find the penal liability, for instance, the offender shouldn’t say that he is the perpetrator of the crime but just admit the basic facts. It is not a part of affirming the culpability. Retribution Historically there are three forms of retribution. Devine retribution According to this approach, the person who commits the crime violates a supreme law, the law of God, and God delegates men to apply his justice on Hearth. The moral basis of punishment is pretty clear: punishment is seen as a cathartic path for the offender. The offender has to understand his wrongdoing and repent and promise to comply with the law in the future 2 - fast - importance of a fast process that penalties should be executed as soon as possible - important because the person could change - imposed in a way that doesn’t corrupt the offender - idea of non-desocialization - “even if the exhibition of a re-educated offender is certainly a good one, the need for a reeducation should never be carried out to the detriment of the need for retribution and deterrence” - special prevention is considered a non-desocialization of the offender - General prevention in its negative form with the limit of retribution + special prevention is considered in a strict sense as non-desocialization of the offender. 220223 Legal Diversity, judicial interaction and the methods of comparative criminal law “Why should we even start studying criminal law from a European, Comparative and International perspective?” Approximation and harmonization → characterize criminal law across the world. Harmonization v diversity Harmonization finds its own theoretical and political limits in diversity. Harmonizations might bring some risks to legal diversity. Criminal law springs from cultural traditions of each system and they can differ quite substantially even within the relatively “homogenous” regions in the world. The issue of legal diversity, especially in substantive criminal justice, is extremely delicate. This dilemma tends to portray the tension that exists → pursuing minimum standards that allow different legal systems to live together and cooperate with each other, on the other hand, the respect of constitutional identity that underpins criminal law. One way or another, constitutional principles are of great importance for the establishment of criminal law at the national level and they cannot be forgotten when we’re trying to harmonize criminal law internationally. Because of this very tight connection between the sovereignty of the state, its national culture and criminal justice, it is a very politically sensitive area of operation → difficult for authorities outside the state to intervene in this area. Criminal justice is developed by some of the most political principles of constitutions that make it very difficult for courts to intervene. Should harmonization of substantive and procedural criminal law take place? There are two questions that are made by both the law-making and the decision-making bodies at the supranational and international levels: CAN? OUGHT? 1. Is it at all achievable? → can question 2. Is harmonization desirable? → ought question a. Is harmonization desirable if it is considered legal? b. the risk would be of “legal colonization” 3. If harmonization is both achievable and desirable, what are the best means to achieve it? how can we do it in a way that is respectful of the core constitutional principles of different jurisdictions that may differ a lot from one another? 5 There is also a problem of classification: CONVENTIONAL DISTINCTION BETWEEN LEGAL SYSTEMS → mostly influenced by political institutional traditions that have shaped the way the law is conceived about DICHOTOMY BETWEEN COMMON LAW AND CIVIL LAW JURISDICTION → it is not really black and white because in this world there is also gray🙂 The concept of legal families is a useful analytical tool on which we can rely on. In the US in the late 60s-70s there was an attempt by the American Civil Association (attempt to reform substantive criminal law at the federal level) → huge influence on the modification of criminal law in the US the model penal code was very much influenced by a comparative study conducted by American scholars (George fletcher) looking at European models. Another aspect that should make us raise a question mark on whether or not we should keep the dichotomy between common law and civil law is legal pluralism → within the jurisdiction itself, there is legal pluralism (e.g. increasing importance that in some jurisdictions that have important native populations, how the traditional principles of customary law that have been codifies within those communities played an important role in the transformation of criminal law in those countries. e.g. restorative justice → some restorative justice processes that are now common in Canada and New Zealand [problem-solving restorative circles → not only victim and perpetrator but also members of the community] are the result of the influence of the native communities). One of the most common dichotomies in criminal justice is the one between ADVERSARIAL/INQUISITORIAL adjudication. ● Adversarial: court has an impartial role that is mostly dealing with adjudication, not with gathering evidence, legal and procedural truth. ● Inquisitorial: courts play an active role in fact-finding with the aim of discovering the truth. This has implications for substantive criminal law too. Due to the role of churches in discovering heresy, this kind of adjudication collapsed into brutalism with the use of torture. Methods of analysis criminal liability v the theories of punishment the structure of criminal offenses (methods of analysis criminal liability) Two steps analysis of criminal liability: - act - mental state The two-step analysis of criminal liability divides the criminal offense between the actus reus and themens rea. Most jurisdictions that have been influenced by the principles of British law prefer the two-step approach. Criminal liability divided into three different elements: - offense - wrongfulness not being justified by any defense or excuses - culpability Where is this three-step analysis more common? Germany (origin of this method) How can we explain this difference, which also has an important impact on the way courts adjudicate? ● germany, spain and italy (for a long time) ○ courts → fact finding role ■ reconstruct themselves the facts of the case, the material truth that lies behind the charges for an offense ■ they need a very elaborated structure to go about analyzing and collecting evidence to come to the conclusion and decide whether the suspect is guilty ● common law jurisdiction → passive, not involved in the collection of evidence for the discovery of material proofs 6 ○ It is a task of the defense and the prosecutor to come up with evidence of criminal liability. ○ non-trained legal professional? It is complex to compare the act required in the us/UK with the elements of criminal offense (Italy, Germany), but if you reflect on the reason for the differences, it would make it a little less obscure. Theory of punishment → to a certain degree, especially when we compare Europe with US, the idea of correction and how to impose a criminal sentence and the sentence itself, are developed from principles that MIN 51 idea that individuals should be rehabilitated at the end of their sentence (more accepted in Europe). COURTROOM DESIGNS INFLUENCED by the idea behind the culture. INDEED DICHOTOMY INQUISITORIAL/ADVERSARIAL → not only inaccurate (italy e.g. has a reformed criminal process that involves the adversarial tradition still being a civil law country), but also it has a downside because pure systems do not exist. UK → the idea being that because continental law is always inquisitorial and inspired from the old inquisition of the pope, is a very liberal criminal justice (both procedural and substantive), they saw an endangerment of the british constitutional principles and traditions one of the arguments against harmonization There is a different way to analyze criminal liability: - two-tier model (uk, us) - three-step model NOT EVERY CIVIL LAW COUNTRY DISTINGUISHES BETWEEN TYPICITY ANDWRONGFULNESS AND CULPABILITY FOR THE IDENTIFICATION OF CRIMINAL LIABILITY (e.g. France uses the two-tier model). What justifies criminal law? there are different answers to this question. - anglo-american tradition → idea of criminal law as a way to prevent harm - continental scholar tradition → criminal law justifies as far as it protects legal interests and legal goods - human interests protected by the law to a certain degree - not an easy identification - attempt to link a list of those interests to some key legal sources so that only a certain number of important individual legal interests would require criminal law intervention, principle of extrema ratio In Europe and in the context of the Human Rights Law, diversity v. harmonization is still a dilemma. It is in this context that the interaction in abstracto uses comparative law. Comparative law: identify the trends that are existing, how the different legal orders fit into the ? Comparative criminal law can be used to solve this dilemma: not focusing on only one source within a legal system → functional comparison is the way we should do comparative criminal law. It is not comparing a legal provision A in italy with legal provision B in germany. It consists in the identification of the factual problem or social issue without reference to concepts or terminology of one’s own system. After functional comparison, we can apply the unifying function. Comparative criminal law has a critical function → provide tools for convergence between legal sysytem 230223 Carrara’s idea of punishment is sort of mix of ideas in which all purposes play an important role: retribution, which plays a fundamental role, and the idea of special prevention in its strict sense. 7 - if he is also considered socially dangerous, the judge can grant security measures - an offender totally capable of thinking and willing - double sanction: principle penalty + security measure if found socially dangerous - separate sentences General theory of the crime If the offender is incapable of thinking and willing, there will be no crime and no penalty. Italy → tripartite system The general theory of crime is structured in three pillars → question: when do we have a crime. 1. When the fact is typical (it complies with the old elements provided for by the provision.) coincidence between the fact as the described by the law and what really happens. 2. When the fact is unlawful → lack of any cause of justification (e.g. self-defense justifies) a. if the fact is typical and unlawful the fact is considered illegal b. if the fact is typical but not unlawful the fact is considered legal in the entire legal system (not only for those that have penal consequences but also for the administrative and civil legal order) i. e.g. you cannot ask for compensation in the civil legal order if the offender committed homicide for self-defense 3. The culpability a. e.g. child under 14 yo → typical + unlawful, but it isn’t absolutely blameworthy because the capacity of thinking and willing in this general theory of the crime is considered as a precondition of the culpability aspect. It is a precondition for reproach because the offender must be aware of being conscious of the action b. dolus, negligence, intent → part of the third pillar, but first, the capacity of thinking and willing must be asserted. Beccaria - on crime and punishment “In order that punishment should not be an act of violence perpetrated by one or many upon a private citizen, it is essential that it should be public, speedy, necessary, the minim possible in the given circumstances, proportionate to the crime, and determined by the law”. “Dei delitti e delle pene”, 1764 → first anonymous. It cought the attention of some philosophers in France, such as Voltaire’s, who referred to Beccaria as a lover of Humanity. The book also has an impact in England, especially on utilitariarism. Bentham → Beccaria as basis of “moral arithmetic” SOCIAL CONTRACT THEORY Before utilitarianism, social contract was considered as a fiction, but with Beccaria individuals only are necessary for the achievement of security → punishment to prevent individuals to react to get back the small portion of freedom they gave up to give it to the government. Beccaria linked together utilitarianism and social contract theory. He believed that there was conflict between these two theories Equality. Punishment: 10 - related to the harm associated with the criminal offense - proportionality - beccaria deemed it to reflect the degree of dehumanization of a country CAPITAL PUNISHMENT nO SENSE because citizens just give up a slight portion of their freedom. According to Beccaria individuals didn’t even have the right of suicide. The death penalty was not necessary (vague and distant) and not useful (negative effect on society) Modern appropriation of Beccaria → economic side: fundamental role in the use of mathematic to analyze criminal. He influenced the modern economic approach to crime and punishment. The logic of economics could determine right from wrong. Physiocrats → Dupont loved and hated beccaria (right to property → beccaria did not recognized its importance. Criticized Beccaria’s methods: started from the particular and not from the general; and policy proposal: improvement of the country?) The principle of punishment is a categorical imperative 270223 Criticism of retribution in general · Difference between the crime and the sanction> idea of compensate a crime via a sanction, the categories of crimes and sanctions are totally different, two entities which are not comparable at all. The basic idea is that criminal law is functional to protect legal goods and interests i.e., crime of robbery property is taken, crime is sanctioned with the privation of liberty. You can say that the social interest protected by the criminal provision and violated by the offender and the penalty imposed do not always match · Individuals have free will> compensation does not imply that the offender will be held back from committing new crimes, free will so there are not guarantees that the crime will not be doe again. If the only aim is retribution then there are no guarantees that the crime will not be done again · If taken to its extreme consequences the retributive theory can mark a return to the atrocities of the law of retaliation. Taking into consideration all these remarks, can we say that retribution is still valid? On one hand the idea of vengeance is deeply rooted in the social consciousness; on the other we can affirm that the fundamental concept of the retributive theory, still endorsed, is the principle of proportion. Proportionality is fundamental not only for its strict connection with the idea of justice but also because it acts as limit to the power of punishment. In the Italian criminal code, we can find a reference to proportion in art 133 i.c.c.(C.p.): normally a criminal provision is composed of 2 parties: a first part is the description of the conduct and its results and an other which is the sanction, the penalty. The legisaltor provides for a minimum and a maximum> penalty framework or cornice edittale. The judge fixes the fair amount for the specific crime within this penalty framework. Under article 133 the legislator gives to the judge several criteria to evaluate the fact, the most important is the seriousness of the crime (gravità del fatto). The problem is that this article is not clear enough: it does not state anything explicitly about the purposes of punishment, it just provides for factual criteria. There is a distinction between the first paragraph and the second The first is about the seriousness of the crime> even though is not written it evocates the idea of retribution, tot criminal tot poena. Is based on different elements. Nell'esercizio del potere discrezionale indicato nell'articolo precedente, il giudice deve tener conto della gravità del reato, desunta: 11 · dalla natura, dalla specie, dai mezzi, dall'oggetto, dal tempo, dal luogo e da ogni altra modalità dell'azione; · dalla gravità del danno o del pericolo cagionato alla persona offesa dal reato; · dalla intensità del dolo o dal grado della colpa Objective dimension of the crime (type of offence committed and the seriousness of the harm conceived as a potential damage or a simple endangerment of the legal good). Example of crime of damage: life in murder; example of crime of endangerment art. 439 which sentences the conduct of water poisoning before these are drawn or distributed without causing the direct damage. The third reference is to the subjective dimension of the crime, culpability or mens rea> seriousness of the intent, dolus and the degree of the fault or negligence. Grado della colpa e intensità del dolo. Culpability provided by this paragraph is considered to be the foundation and limit of criminal liability. In this sense the role of proportion is a safeguard for the offender: if the punishment is not considered proportional to the seriousness of the offend, the sanction can be conceived as unfair; the premises for a path of rehabilitation are undermined. Culpability is not only the basis the foundation of the criminal liability at the pillar of the general theory of the crime but plays a crucial role in limiting the criminal sanction. According to paragraph 2 provides about the so-called capacity of the offender to commit a crime> close to the idea of social dangerousness of the offender (likelihood of reoffending). Is based on different criteria: the offender’s reasons for committing crime, his/her criminal records and social condition and his/her behavior before and after committing the crime and during the trial. The point here is that according to paragraph 2, which of course evokes the idea of special prevention and reeducation, only a reduction of a sentence determined by the seriousness of the offend based on para 1 is only allowed. l giudice deve tener conto, altresì, della capacità a delinquere del colpevole, desunta: · dai motivi a delinquere e dal carattere del reo; · dai precedenti penali e giudiziari e, in genere, dalla condotta e dalla vita del reo, antecedenti al reato; · dalla condotta contemporanea o susseguente al reato; · dalle condizioni di vita individuale, famigliare e sociale del reo Seriousness of the offend and culpability fix the limit of criminal liability. Instances of the second paragraph can only allow for reduction of penalty. i.e. if for first paragraph is 3 year, a specific social condition can only reduce the penalty. If it was not so, the offender wouldn’t perceive the sanction as fair and will never begin a path of reeducation. Retribution is the fundamental purpose but also special prevention plays an important role in reducing the sentence. After the Italian consitution was enacted in 1948, the scholars and case law of the consitutional court supported the polyfunctional theory about the purposes of punishment according to which there are different goals for penalties and all are equivalent: no one has prevalence on the others. Soon after, a dialectical approach was chosen: the goal of punishment can be analyzed in three phases in which in each the punishment has different goals: · Precept/threat phase> legislative power of the State, have to choose which act to criminalize and punish, is both a criminal law and political choice. Main theory is general prevention (deterrence is important) and also proportion 12 reductive treatment in prison but, on the other hand, could lead in certain circumnstances to the opposite extreme. If the offender is seen as incorrigible, also Ferri was in favor of the penalty of indefinite duration. This theory presents a problematic deviation because its claims an extremely intransigent punishment when rehabilitation is deemed impossible. As a consequence, it is possible to provide a sine vie sanction such as life imprisonment. Historically life imprisonment entails a day and night isolation and in some countries such as Japan is still like that. The Zanardelli code of 1889 provided a continuous isolation, solitary confinement, for the first seven year of life imprisonment. The code was considered a really liberal code because it did not provide for dead penalty but still was really severe. · Special prevention expanded by the Theory of Von Liszt> theorize the concept of resocialization. According to him, punishment is a tool to achieve different goals depending on the classification of the offender. Opposite to the Carrara who focused on the act, here the classification is made to different characteristics of the offender. For example: for persons that are unsocialized, that they have no family, work or reference in society the punishment works as a tool of resocialization. On the contrary for person who are considered incorrigible the only possible dimension is the negative form ant thus neutralization. Incorrigible offenders can be sentenced to life imprisonment or dead penalty depending on the seriousness of the crime. Finally for occasional offenders’ punishment has the goal of intimidation aiming at reeducating the offender and at preventing new crimes. Theories of punishment in the Positive School For positive scholars we can say that crime is a concreate action of a concreate human being in a contingent reality in which there is no space of free will: we face the idea of the classical school to which the human being has free will, culpability is the star of this theorization. Here there is no space for free will so the basic idea is the social dangerousness, probability that the offender will commit a new crime. According to the positivist approach, the offender is led to commit a crime by other factors> there is a law of natural causation that leads subjects to commit crimes (legge di causazione naturale). Lombroso> leading figure, based his theory on biological determinism, analyses the dead bodies of offenders and gave identikit of the type just considering physical factors. At his times Lombroso had success. The same approach is taken by neuroscience: synapse movement to predict behaviors. Different approach by Garofalo in his criminology textbook> individuals are lead to crime by psychological factors and not physical one. Ferri can be considered the leading figure who has an even different approach: gave value to all the aspects underlined by the others enhancing a different factor, social and economical context/environment. In his theory there are 3 factors that lead a person to commit a crime · Physical factors (limited) · Psychological factors · Social context fundamental Ferri’s though is interesting: it is inspired by Von Lits buts anticipated principles that nowadays have importance. He theorizes the legge della saturazione criminosa, law of criminal saturation> the committing of a crime is determined by the condition of the social environment. Crimes are seen as product of innate predisposition given by the social and economical condition. Consequentially, notwithstanding the law of prevention, some people will commit a crime anyway> criminal sanction is not sufficient to prevent the crime to be committed. Limited preventive effect of criminal law> if it works crimes would not be committed. 15 He developed a second doctrine called the theory of the sostitutivi penali, theory of criminal substituted> criminal sanctions are only one of the tools of criminal prevention, it should be combined with social reforms to modify the social context (not a completely ex ante “re-education”, an ex post phase is still present). Ferri gave examples: with regard to civil law, many reforms were deemed necessary i.e.,law for divorce would have reduced domestic violence and homicides. His basic idea was to have a huge range of reforms that would have had an impact on the criminal system. Reeducation is still present> criminal law is not enough, need for huge reform that could affect the external environment helping the offender to create the situations in which crimes could be committed. Reeducation as ex ante not ex post. He later admitted that his theory was impossible to be carried out: it was too expensive and demanding a lot of time “legislator would take into consideration the possibility of systematic reform”> still fundamental, he theorizes the exrema ratio in Italy. Criminal law is part of criminal sociology, is just one of the means to intervene in the crime. Ferri, as Von Liszt, proposed a classification based on the type of offender and not on the type of punishment or sanction (different from Carrara's one): · Mad offenders for which he proposed the asylum · Known incorrigible offenders (delinquenti noti incorreggibili)> death penalty or imprisonment. Other scholars proposed punishments based on the law of retaliation with invading sanctions i.e., castrations. neutralization of the offender · Impetus offenders (offenders acting on impulse or passion delinquenti per impeto o per passione)> believed that in this case the sanction is totally useless since there are no possibility to improve the social context. Impose compensation for the victim and removal of the offender for limited period of time only if the material object of the crime is a person. · Occasional offender> prevention has to prevail over repression, prevalence of special prevention. The goal is that of re-education, proposes the surrogate penalty (pene surrogatorie) pretty close to alternative measures nowadays. In this moment the struggle against short prison sentence arises due to the criminogenic effect of the prison environment on inmates behavior The general preventive effects of punishment- Johannes andeaes In the past: the main role of the threat of penalty was to enforce the fear of punishment in the mind of the potential criminal in order to prevent the commitment of the crime. Nowadays: In penal legislation and in the sentences of the court the tendence is to prefer special prevention, judges try to dispose several alternatives to the classical prison sentences Errors inferences about general prevention • Criminal law has no deterrent effect à if a man commits a crime we can only conclude that general prevention has not worked in his case • The belief on general prevention rests on an untenable rationalistic theory of behaviour à modern theory of general prevention takes into account both deterrence and moral influence • Legal history shows that general prevention has always been overestimated à the fact that general preventive effects of punishment has been exaggerated in the past does not disprove the existence of such effects. 16 • Because people generally refrain from crimes on moral grounds, threats of penalty have little influence - offenses which are subject to little or no moral reprobation - moral inhibition wouldn’t work if the hazards of punishment were removed or minimized - the effects of legal machinery are extremely valuable from a community point of view • To believe in general prevention is to accept brutal penalties à today brutal penalties would scarcely win many adherents. Basic observations about general prevention • Differences between types of offences - MALA PER SE : actions which are immoral in their own rights. - MALA QUIA PROHIBITA : actions which are illegal merely because they are prohibited by law. • Differences between persons à Citizens are not equally receptive to the general preventive effects of the penal system • Differences between society à Criminal law operates within the cultural system • Conflicting group norms à The influences of penal law may becomemore or less neutralized by group norms working in the opposite direction • Law obedience in law enforcement agencies à corruption in law enforcement can reduce the general preventive effects of criminal law Variations in general prevention with changes in legislation and enforcement • The risk of detection apprehension and conviction à The efficiency of the system could be changed by intensifying or reducing the effort of the police or by altering the rules of criminal procedure. • The severity of penaltiesà a potential criminal who reflects upon the possibilities of punishment may pay attention to the severity of the penalty to which he exposes himself. • Punishment or treatmentà what appears realistic today is the application of treatment programs to limited categories of criminals. • Restriction or expansion of the penal system à there may be fields where a sufficient degree of conformity could be reached without any sanction, but it does not seem probable that such techniques will be widely applicable. Research possibilities on the efficacy of general prevention • Comparison between geographic areas à in this case we need areas with similar social conditions but drastic difference in legal system, which are difficult to find. • Comparison in time à radical and sudden changes in legal systems and the machinery of justice are rare. • Experiments à any change of a legal provision is in a way an experiment. 17 whether the conduct harmed the legal good protected). The elements composing the criminal facts are: Conduct + causation + event. Art. 25 ITALIAN CONSTITUTION → CONDUCT → distinction between action and omission. The constitution criminalizes positive behavior. Under some circumstances, the lawmaker decided exceptionally decide to punish omission (art. 583 Italian criminal code) → when the person had a duty to act. SOurces of duty to act: ● law → e.g. parents have to take care of their children ● contract → e.g. safeguard who has to rescue a person; babysitter signing a contract with the parent, so now she has a duty to act protecting the child ● previous dangerous action → if you cause damage, you have to act in order to prevent any harmful consequences that would come from your damage. e.g. if you open a hole in the street, you have to act in order to prevent people from falling or getting harmed. ○ there is not a clear provision on what to do after you act. Art.2 of the Italian constitution enshrines the principle of solidarity → can demand us to take some positive action to take care of the interests of other people. EVENT Result crime → crimes, the perpetration of which consists in the causation of an event (e.g. the death of someone) Free-from crime → events punishable regardless of the manner in which they have been perpetrated. e.g. you kill someone and you are punished regardless of how you killed them Bound from crimes → offenses, the gravity of which lies in the manner they have been committed. The gravity of the offense lies in the specific manner you commit the crime. Mere conduct crimes → crimes in which the law punishes some kind of action or omission, regardless of any event that might follow Naturalistic event → the behavior of the offender has in some way altered the external world causing a perceivable modification in reality Event in a legal sense → harm or endangerment of the legal good protected by the criminal procedure (the idea behind art. 133.2). The lawmaker should include in the structure of the crime the legal good that is put at risk by the conduct of the offender. Every crime should include an event in a legal sense. e.g. you are called to testify in a trial and you say false things, there would be no material modification of reality, but you are damaging the right of a fair trial CAUSATION One can be held responsible only for actions that he committed. Art. 27 Italian constitution → criminal responsibility is personal Condicio sine qua non rule: ● positive action → A shoots at B and B dies. How can we say that A killed B? The judge has to mentally remove the action of A and see if B would would still be alive. If so, there is condicio sine qua non ● Omission → A is drawing and B should help him, but does not and A does. The judge has to image as happened the action required by law (but not acted as provided). If that would have saved A’s life, B’s omission is condicio sine qua non. 20 Unlawfulness It could be possible to have a typical fact, but still, the act is considered lawful: ● necessity → when you have to rescue your life or to avoid serious harm to your/the people under your care, you can sacrifice another’s life. Necessity works only if there is no way to avoid harm ● self-defense → if you are attacked, you can counterattack. Proportionality of the reaction is required. You can react onlywhile you are offended. ● exercise a right ● Consent Culpability art. 27 Italian constitution → you cannot be punished for the action of someone else Culpability = capacity of thinking and willing. Culpability is composed of Intent and negligence and the judge has to establish that there is no excuse for the behavior. CAPACITY OF THINKING ANDWILLING A person can be reproached for their actions only if they were capable to understand the meaning of their actions. If these cases the capacity of willing and thinking is excluded: ● mental insanity ● children under 14 yo ● alcohol and drug intoxication If a person is not able to understand what he is doing, it is not correct to punish them, but there are different aims depending on the reason of the exclusion. Mental insanity is very difficult to assess from a physiological point of view. We can distinguish between two approaches: ● medical approach = psychosis → considers only pathological characters ○ gives legal certainty ○ the person is considered to lose contact with reality ● personality disorders can effect the capacity of thinking and willing ○ the person does not lose touch with reality but the have trouble perceiving and relating to situations and people ○ respectful of the principle of culpability → if we can make a reproach, we cannot consider the person culpable. Only the presence of a mental disorder or psychosis is not sufficient to exclude culpa rea, but the judge has to verify if the type of mental illness the accused one suffers from, has affected their capacity of thinking and willing in committing that specific crime. e.g. Kleptomaniac committing a murder → the mental disorder did not affect his capacity of thinking and willing relating to his action of killing someone. Insanity alone is not enough!! INTENT Intent is the general rule. You will be punished if you acted intentionally because you wanted the consequences of your actions. However, within intent we can distinguish different degrees: ● impetus ○ you did not plan in advance to commit the crime, but you act out of anger in that moment ● recklessness 21 ○ lies between intent and negligence ○ when you consciously accept an illicit risk ● purpose forethought ○ when you plan in advance what you are going to do The judge has to establish the punishment basis on the degree of intent of your action. In the italian legal system we distinguish between three types of dolus: ● dolo intenzionale ○ you acted on purpose well aware of your actions ● dolo diretto ○ maybe you do not commit the crime, but you are sure that acting in that way you will commit the crime ● dolo eventuale ○ taking the risk of the event that is going to happen NEGLIGENCE It is exceptional because the general rule is that you are punished only if you act with intent. To punish a negligent act, there must be a provision (589 Italian criminal law code ) that specifically provides for the punishment of the conduct caused by negligence. It means that you commit a crime by fault. Our legal system under some circumstances punishes crimes committed under negligence. The problem is to establish negligence → the offender didn’t want to commit the crime but he broke a cautionary rule that set a standard of behavior and he failed in foreseeing and avoiding a harmful result. Negligence assessment? e.g. a medical doctor is treating a patient and during the procedure, the patient died. How can we establish that the doctor was negligent? 1. establish if he broke a cautionary rule a. e.g. left a bandage in the body of the patient 2. establish if a reasonable doctor in the same circumstances of the offender would have complied with the cautionary rule and would have avoided the harmful result a. if the answer is yes, we can establish negligence Negative element → lack of intention Positive element → break of the cautionary rule No excuses The judge has to establish the lack of abnormal circumstances under which the offender couldn’t have acted in a different way. Excuses can exclude culpability because the offender could not act differently. In the italian legal system there is a huge distinction between unlawfulness and causes of justification, or defense, but they compose the second pillar. Excuses in the italian system are part of the third pillar, mens rea. e.g. Art 5 cp → Ignorantia legis non excusat → declared by the Italian constitutional court partially unconstitutional: if the ignorance of the crime is inevitable than it can work as excuse. The question is “when is the ignorance of the law unavoidable?” when the wording is obscure or unclear. Here ignorance is inevitable. 22 To grant legal certainty judges at the same time have to offer convincing reasoning and look for precedents and try to apply a penalty that is similar to penalties applied in seminal cases → coherence. The evolution of criminal law in the evolution of the past few decades has resulted in some structural and procedural differences, but also some aspects in which the two systems are approaching each other: ● a growing number of matters rules by statutory law ● Attempts to fix the general principles and statutory laws: 1962 Model Penal Code in the USA; 1989 Draft Criminal Code in the UK ○ US Model Penal Code is not a test, but it is a model for all the states in the US that want to pass a specific law in criminal law ■ tries to fix some common criteria that should be taken into account when legislating in criminal law matters ○ UK Draft criminal code → aimed at helping when legislating on criminal law matters from that moment on ■ they still do not have a criminal code as such, just specific legislations, acts, dealing with more primitive and specific criminal offenses or aspects in the application and regulation of criminal law ● despite the conceptual differences, we can see that often cases result in a very similar outcome regardless of the systems in which the decision was taken structure of the crime The starting point is the identification of the structure of the offence not composed of different parts but as a biparted structure: 1. actus reus a. the conduct b. the part of the offence that describes the prohibited behavior/conduct and the consequences arising therefrom and the causation 2. mens rea a. fault b. describes the mental element of the subject that performs the action in relation to the conduct c. e.g. intention, knowledge, recklessness The second distinction is between offense and defense: ● offensee ○ all the elements of the offense must be present ● defense ○ no defense can apply in the case ○ “cause di giustificazione” ○ include also aspects belonging to the procedural realm Continental legal system 1. conduct a. action or omission b. causality between conduct and result 2. tipicità a. corresponds to the definition of a crime within the criminal legislation 3. antigiuridicità a. if the action really goes against the legal order 25 4. colpevolezza a. no reasons that the offender couldn’t have acted in a different way 5. punibilità a. all the considerations that may allow the legislator to take into account i. circumstances that have no impact on the seriousness of the offese nor on the level of culpability, but can still lead to the decision not to punish in some instances or to reduce the penalty (e.g. granting a reduction in penalty because the offender has confessed) conditions of criminal liability According to scholarly literature, in the common law systems to establish criminal liability: 1. there is an act and the act created that result 2. absence of permission a. “antigiuridicità” b. self-defence; necessity; consent sometimes 3. capacity and fault requirements a. minimum age (UK → 10); no insanity; mens rea 4. excusatory defences a. duress; intoxication sometimes causation and omission No really a theorization in common law systems, no effort to build a theory about this. HARM PRINCIPLE in common law systems in general terms subjective criteria are given priority over considerations of harm. PRINCIPLE OF CULPABILITY In the case in which the person has a mental link with the conduct, in the common law strict liability (the person can be convicted even without culpa or dolus) is permitted in a number of cases LACK OF CONSISTENCY and UNIFORMITY IN JURISPRUDENCE It is the consequence of the wide discresion of the judges, which has lead to the lack of the creation of a coherent corpus of judicial decisions and rationes decidendi. On the contrary we often find situations in which we can identify a lack of consitency and uniformity in jurisprudence. APPROACH In common law systems courts often have a harsh approach. This is linked to the idea that apparently, an idea to give a moral reproach often leads to taking some decisions. The idea to send a specific message sometimes leads judges to impose very harsh sentences in cases in which in continental systems the defendant would have had a much lower sentence. voluntary act A person can only be convicted in a case in which the act was conducted by its mind. There are also some exceptions. There are many cases in which criinal liability is accepted even though it is not based on a voluntary act: 1. state of affairs 26 a. offenses punishing states b. e.g. being a trespasser can be considered an offense c. Examples: i. Larsonneur, 1933 ii. R v Robinson-Pierre d. in the US the SC ruled unconstitutional to make someone criminally liable merely for being a drug addict, but later with the case Powell v. Texas 1968 the offender was convicted because he was in a state of intoxication in a public place 2. offenses of possession a. possession of drug, offensive weapons, articles for use in burglary or theft b. possession in itself is often punished as part of an incohate offese. c. House of Lords,Warner v Metropolitan Police Commissioner established 2 criteria: i. not applicable if the object has been slipped into the offender’s bag/pocket. ii. if the person knows that they have control over an article, the offense applies even if they are mistaken about their content, exceptions are very narrow iii. the reason is to enable the police to intervene before a particular wrong is done instead of doing so on the verge of the infringement of fundamental rights. 3. offenses of omission a. punishing somebody for not doing something that they were required to do b. shared with continental legal systems but different i. linguistic approach 1. some verbs imply action 2. it is possible and it is needed to find an act of conduct and the omission of acts that are required by the legal systems to avoid the result of the crime ii. redefinition of damage offenses (“causing death”) 1. e.g. parents causing the death of their baby by not feeding him 2. judicial extension of statutory wording v principle of legality iii. no theorizing of the ground for liability for the omission, nor a general clause for considering it as an equivalent of an act c. Speck, 1977 → liability based on a duty of the adult to put an end to an indeecent yet innocent touching by a child Criteria to establish causation Causation in judicial decisions is defined as being present in all those situations where evidence shows that there was wither intent or knowing risk of causing the result: it is irrelevant how likely it was the result. Outside this situation, the minimum connection is that the result would have not happened but for the offender’s conduct (condicio sine qua non). This is not a general criteria applied when having to find causation. The draft criminal code and the Model Penal code envisage a provision setting this criterion as its limit but they just include the opportunity to use the condicio sine qua non approach. SELF-DEFENSE The idea of criminal law as a fabric is quite clear when we talk about self-defence, one of the defenses recognized generally. 27 the US capital punishments Trap v dulles they are contemplating expatriation and it is considered against the 8th amendment → evolving standards of decency Fruman v Georgia 1972. All of the existing death penalty laws are unconstitutional. Judge Brennan has a clear idea of other possibilities instead of the death penalty. Gregg v Georgia 1976 → death penalty not per se unconsitutional, but it needs to adhere to tight procedural safeguards and standards 30 INTRODUCTION TO INTERNATIONAL AND EUROPEAN CRIMINAL LAW Clara Righoni Principles of Jurisdiction Criminal law is traditionally a national discipline → it is hard for states to give away their juridisction in criminal law (see EU competences, ICC formation). This is manily ebcause of the traditional monopoly of the use of force the states have. Criminal law is much linked to the national identnty of each state, even though there are some behaviors that are crimes in every country, but othre behaviors are not (abortion, adultery, culturally motivated crimes [e.g. forced marriage]). Another reason is the history of each state (e.g. in Germany after experiencing the nazis, there are laws on holocaust neial, which are not present in countries not touched by that experience). There is nevertheless globalization → the new trends of migrations, the free movement of people bring also new crimes (diversity: in the past migration was from Europe to America or from Southern Europe to Northern Europe, nowmany immigrants are from other countries and they come to Europe) the free movement of people also means free movement of crimes. There are more and more crimes that are organized in other countries, also thanks to the use of technology, as well as many more criminal organizaitons spreading all over the world. That is why there are joint investigations, problems of jurisdictions (where do we start and end the investigations and trial agaisnt someone that has committed several crimes in several staes), eurocrimes (in order to facilitate the harmonizationa dn investigations within europe, there are some crimes that must be treated in the same way) International crimes in stricto sensu → crimes that affect the very core values of the international community → the international community takes responsibility for those crimes. In this sense, there is a need for strong cooperation amongmember states. Criminal jurisdiction The principle of jurisdiction allows us to understand which country has jurisdiction. It might happen that more states want to intervene in one case, and there are usually rules contained in international conventions and treaties and in the criminal code and criminal procedural codes of the states. This also prevents impunity (no state wanting to have jurisdiction) Example: ● german citizen kills a Belgian guy ● 2 risks ○ double jeopardy → no person shall be punished more than once for the same act ○ risk of forum shopping or impunity → the person can decide where they want to be punished because maybe one is more convenient than another 31 ■ there are some aspects in which the offender has a say, others in which he doesn’t Criteria for state intervention: There must be a meaningful or genuine link between the state and the crime. This is a very general criterion. The international community has agreed on certain principles that more or less every state adopts. Every state decides on the scope of application of its national law. There are international conventions that decided for certain situations, which principles apply. Territorial Principle “A state is entitled to claim criminal jurisdiction over crimes that occurred within its national territory” → locus commissi delicti. Rationale: sovereignty → national criminal law must be applicable to any person present in the country + principle of non-intervention → what happens within my country stays in my country + easier investigation There are some specificities → it is not always clear where the crime has happened. Locus commissi delicti: a. where the perpetrator acted b. where the result of the offense occurred c. principle of ubiquity i. countries looking at both the act and the result ii. e.g. France d. Preparatory acts i. important for example in terroristic crimes What about Cybercrimes? They are very specific and very problematic to investigate. e.g. identity theft Authroties usually look at the result → place where the incriminated content has accessed National territory Usually it is clear where the territory of a national state start and ends. The flag principle also applies for instance in crimes committed on a ship. Nationality Principle “Every offender is subject to his/her national legal order” Even if that person has committed a crime somewhere else. Rationale: duty of allegiance + solidarity among states I as a country should act to punish someone frommy country that has committed a crime in another country. 32 don’t need the approval of state authorities and can be helpful in triggering the investigation and in gathering supporting evidence (e.g case of the European central constitutional human rights ??) Who are the accused ● powerful leaders? ● small fish? Timeline? ● pinochet ● step back → western leaders accused of massive human rights violations pushed for changes in the law after the Pinochet case ○ this was a strong concern even for states that had not ratified the Rome State (“immune” from international jurisdiction) ○ backdoor → international community can anyway reach them ○ Belgium → provided for many restrictions on the universal principles; before it was a very broad power ● in the last few years universal jurisdiction gained again popularity ○ even if some cases do not come to trial, they go up in the chain of command or powerful economic actors EXAMPLES OF UNIVERSAL JURISDICTION ● al-khatib trial in Koblenz, Germany ● Taha Al-J trial in Frankfurt, Germany ● Moafak d. trial in Berlin, Germany ○ A German court on Thursday convicted a Palestinian man from Syria of a war crime and murder for launching a grenade into a crowd of civilians waiting for food in Damascus in 2014. He was sentenced to life in prison. ● The flow of refugees coming to Europe allowed both getting accused and witnesses and victims Sweden, Netherlands, ecc. a lot of countries are taking shared responsibility of the international community. There are some degrees of criticism because it is considered a way of expanding the area of criminal law. Use of human rights as a tool to expand more and more the boundaries of criminal law beyond the boundaries of the state. UKRAINE There have been discussions on the possibility to try and there have been investigations against some Russian citizens, but there will be a problem of immunity → mixed approach is suggested: set up a european tribunal for aggression, national (ukraine) courts leading the process. Germany has already opened some investigations against russia? 35 Universal jurisdiction and the ICC There was an initial proposal by the German and other delegations to grant universal jurisdiction to the ICCso that it could intervene no matter what. It was much criticized by those states that did not ratify the Rome statute. The ICC provides for 2 main criteria with the possibility of third criteria → case brought before the ICC by the UN Security Council. It is possible for a state to give jurisdiction to the ICC even if that state did not ratify/sign the Rome <Statute. Cooperation is necessary in every transnational and international investigation, but it would have been even more necessary under universal jurisdiction → every case before the ICC comes from states that have agreed at giving the court jurisdiction. There is no universal jurisdiction at the icc. Representation Principle it entitles states that have no genuine link to the case to exercise criminal jurisdiction on behalf of another state that is incapable of prosecuting it. e.g. a suspect seized in a state cannot be extradited to a state that would be competent under other criteria e.g. because he is a political refugee, the state in which he is a refugee can prosecute. Rationale: solidarity and subsidiarity to avoid impunity. Restrictions: lex mitior (punishment imposed in the state that is prosecuting and punishing cannot be much higher than the one which would have been imposed in the actual competent state). Conflicts of Jurisdictions There are no general measures, every state can choose the applicable principle. However, to avoid the possible problems e.g. impunity: ● art. 82 tfeu → encourages the EU parliament and the council to adopt measures to avoid conflicts of jurisdiction ● certain acts of the EU contain provisions that do aim at solving conflicts of jurisdictions Art. 54 CISA (Convention Implementing the Schengen Agreement) → A person whose trial has been finally disposed of in one contracting party of the CISA may not be prosecuted in another contracting party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing contracting party. This provision introduces the “first come first served” → preference for the territorial principle. 150323 36 The origins of International Criminal Law and the Nuremberg Trial International Criminal Law International crimes are those crimes that “offend” certain values that are common to the international community therefore can be persecuted not only by the state where they happened but also by other states of the international community. Criminal law refers to prohibitions addressed to individuals and punished by the states. It is a new paradigm developed in the 20th century imposing responsibility on individuals. International crimes are “mala in se”, crimes that affect values that are internationally recognized, so those crimes that are considered as such in every legal system (e.g. murder). They are crimes that affect values protected by the international community and that threaten the peace, security and well-being of the world. The opposite would be crimes “mala prohibita”, whichmight instead change from one system to another and are considered crimes due to some laws or statutes prohibiting certain acts. Sources 1. Treaties a. Rome Statute as a point of reference i. signed in 1988 and entered into force in 2002 2. Customary Law a. law made by practice and opinio iuris 3. General principles of law a. both this and customary law are considered problematic because they are often unwritten → principle of legality: how can you find someone guilty of principles that are not written? 4. National and international judicial decisions and opinions of scholars a. in international criminal law there is no principle of stare decisis, but courts will for sure look at previous cases (precedents) b. scholars usually come form criminal law and international law Statute of the ICJ → Art. 38 enlists the sources of international law. Origins of international criminal law There was a first attempt to establish an international criminal justice after the end of WWI to prosecute Kaiser Wilhelm II but he managed to flee to the Netherlands. Another trial tried 12 people, but it is considered a failure. There were also some Istanbul trials, but there are controversies on whether what happened was a genocide or not. After WWII, the question was how to punish the acts committed during the war. The first idea was an executive action, mass punishment (giustizia sommaria), or impunity. In the end, they decided to apply the justice that the Nazi regime had destroyed to record history, educate and deter and lastly create a precedent. Hitler stated in connection to his plans to “cleans” Jews, Gypsies and others: “who after all is today speaking the destruction of the Armenians?” 37 7. complicity Still valid principles 1. individual criminal responsibility a. not only the state but also state officials b. does not depend on whether the act violated the law of the country in which it was committed 2. acting upon superior’s order does not exclude punishment 3. acting as a head of state or government does not exclude punishment 4. right to a fair trial International Military tribunal for the far east - IMTFE (Tokyo tribunal) Established by a special proclamation of General Douglas MacArthur (19 January 1946; on the same day he adopted the Charter of the IMTFE, following the model set by the Nuremberg trials). It operated from 46 to 48 and convicted 28 defendants (7 death sentences). Subsequent Nuremberg Trial After the Nuremberg trial, there were other initiatives to punish the perpetrators of the crimes committed during and before WWII but before the Allies’ respective military tribunals Control Council Law N. 10 → improvement regarding the actione materia (crimes for which there could be a punishment). 12 trials were carried on before military tribunals in the US between 46 and 49, but they are very little numbers. It is still a phase in which international criminal law is still at its beginning. Criticism towards international criminal law Paradox between reality v expectations. International criminal institutions are marked by multiple paradoxes. The mandates of international criminal courts and tribunals are marked by a considerable degree of “goal ambiguity (retribution, ending violations and preventing their recurrence, securing justice and dignity for victims, establishing a record of past events, promoting national reconciliation, re-establishing the rule of law, and contributing to the restoration of peace) Sometimes the goals are in contrast with each other → justice or peace? Because not always they go hand to hand. When talking about restorative justice, for instance, the problem of having many peoples engaged in a conflict snd are neightbour it is more imporatn to find a way to have a peaceful life therefore a compromise is necessary. Another problem is that there is a lack of resources involved and it relies greatly on states. Biases also are strongly criticized → investigation limited to easy targets, and not to the big powers. Another critic comes from the fact that the international criminal court is successful in contexts where it has the support of governments but struggles to pursue cases challenging the authority of recalcitrant regimes. 40 Transitional Justice “It is the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes”. Its role is very discussed. Judgements are only one of the instruments of justice. Transitional justice tries to address the reconciliation of a society: “The notion of “transitional justice” (…) comprises the full range of processes and mechanisms associated with a society´s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting, and dismissals, or a combination thereof.” (UNSC, 2004) There are very different instruments with very different purposes. The term emerged at the end of the Cold War. beofre that scholars refered to this as “justice after atrocity” or “restorative justice”, but restorative justice is a conception of justice upon which certain mechanism used in the transitional justice are based. It developed in 3 phases: 1. postwar period a. Nuremeberg trials that has seen excletional political conditions and used mostly prosecutorial measures i. accountability for a small number of leaders and the “retributive approach” was use 1. universal idea of the rule of law → punishing perpetrators 2. post-cold war period a. at the end of the cold war there was a high political fragmentation and there was the so called third wave of democratization i. first: 1820 (widening of the suffrage) - fascism ii. second: 1945(triumph of the allies) - 1960s/70s (dictatorships in Latin America) iii. third: 1991 (Collapse of Soviet Union/ South American military regimes) b. more transitional justice instruments i. more domestic trials taking place (movie: Argentina 1985) ii. more pragmatic idea of the rule of law → not necessary t enforce the international ide of the rule of law but look at the context and find the best way to reconcile the situation in that specific context 1. multiple conceptions of justice a. restorative justice + informal justice + mediation and conciliation start being unsed more and more c. search for truth i. truth commissions aiming at rebuilding peace 1. mechanisms in which the perpetrator are invited to speak truly about the crimes they have committed in exchange of mitigation of their punishment ii. way to recollect historical truth d. communitarian conception of justice i. more people attend the trials 1. gacaca court e. involvment of non-state actos f. during this phase the two ad hoc tribunals were established 3. contemporary situation of persistent conflict. 41 a. characterized by globalization + conflicts that are more widespread (not concentrated in one state) b. blurring of sovereignty as a result of legal pluralism i. diffeetnt regimes becomemore interconnected ii. blurred difference between national and international levele c. political instability and fragmentation i. weak states ii. small wars iii. terrorism 1. cooperation of states against terroriims and organized crimes d. after the two phases, it is established to establish the INTERNATIONAL CRIMINAL COURT, who is a centralized criminal court despite the fragmentaiton + the international criminal court can only intervene in cases where other instruments have already been used but unsuccessfully e. there is an extension of the law of war + humanitarian law in peacetimes contexts i. starting form the 90s it was recognized that war crimes can be punishable not only in the international context but also in the national context. f. there is a normalization of the idea of transitional ju7stice Goals: 1. rule of law a. reestablished it where it was eabolisehd or not respected 2. truth a. record the memory of what really happened 3. justice 4. peace a. reconciliation and rebuild a functioning society Mechanisms: 1. prosecutions 2. reparations 3. truth commissions 4. amnesties 5. vetting and dismissals 6. institutional reforms Holistic approaches. Challenges: 1. peace v justice 2. collective aspects a. generally there are several victims and several perpetrators, and it is difficult to address every victim and punish every perpetrator 3. weak justice institutions 4. weak legal frameworks 42 International criminal courts only are able to prosecute a certain number of accused (scarse resources, international criminal court relies on the states to cooperate, ecc), so as a matter of facts there is a tendency that international criminal court deal with “big fishes” cases. We do not have to genrealize and bring collective blame because responsibility is individual. There is a risk of scapegoating → only one person considered responsible for a collective form of violence (e.g. command responsibility cannot be the only one held responsible for a genocide for isntance) Accountability tends to focus on leadership accountability, so on the big fishes. This has a symbolic function and helps disrupt power structures but on the other hand prosecuting and punishing those high leaders might be very difficult because there are often little evidence because there were not committing the crime directly but they were just giving orders. Nowadays we highly rely on vidos taken by victims or those taken by witnessess but those recorder are only “pons” not the big fishes giving orderes. Victims might really want to see justice done, so they want to see condemned those “pushing the trigger” condemned, not those architecting the whole action. level of responsibility 1. leadership actors 2. agents 3. executors modes of liability There are some specific provisions that refer to specific individuals, btu there are also general provision. 1. proper link between the person and the crime a. it is the element binding the person to the crime 2. conduct can be attributed to him/her a. there are different forms of participation FORMS OF PARTICIPATION: Art. 25: individual criminal responsibility 1. … 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: ● Art. 25(3)(a): Direct or indirect perpetration or coperpetration (common plan) ○ Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; ● Art. 25(3)(b): order, solicitation or induction (instigation/incitement) ○ Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; ● Art. 25(3)(c): aiding, abetting or otherwise assisting (assistance/facilitation) ○ For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; ● Art. 25(3)(d): contribution of any other form (conspiracy) ○ In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: ● (b), (c) and (d): accessoryship 45 ● Art. 25(3)(e) ○ In respect of the crime of genocide, directly and publicly incites others to commit genocide; ● Art. 25(3)(f) ○ Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. ● Art. 25(3 bis): ○ In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State ● Art. 25(4) ○ No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law. ■ the state might still be found responsible Theories of co-perpetration Joint criminal enterprise A very discussed form of co-perpetration. It was developed by the ICTY and sets out objective prerequisites for a person to be held responsible: ● Several individuals ● Common plan or purpose (including the commission of one or several international crimes) ● Contribution within the framework of the common plan (even if non-essential) There are three different types, differentiated by the subjective prerequisites. JCE1: several individuals acting with a common purpose/criminal intent (“division of labor”). Each of them contributes with his or her conduct to a common plan JCE2: Several individuals run an organized system, e.g. concentration camp. Here there is no need to prove the specific intent for the crimes committed but it suffices that the participant acted with knowledge of the organized system and with the intent to further this system. JCE3: if a member of the group commits a crime that was not part of the common plan, responsibility is extended to the other members. However, only for crimes or consequences that could be reasonably foreseeable (not applicable to crimes that require special intent-for lack of mens rea). it is a form of guilt by association. Very much criticized and not much used anymore. These three theories were much used by the ad hoc tribunals (the international criminal court was not in place, and there was no international criminal court statute, which now requires intent). They give less importance to the objective elements and much more important to the subjective elements. The perpetration is assumed on the basis of a shared intent to reach a certain criminal goal. 46 control theory Developed by Roxin and was used by the INTERNATIONAL CRIMINAL COURT in the Lubanga case. It is sued to punish perpetrators who control or mastermind certain crimes. It excludes responsibility for non-essential contributions to the crime. “When the objective elements of an offense are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned- and who consequently have the power to frustrate the commission of the crime by not performing their acts- can be said to have joint control over the crime” (ICC, Lubanga)” If a person can stop a certain crime and does not, it is said to have control over the crime and therefore can be held responsible. command responsibility theory It was developed for the first time in Nuremberg and is still the same until now. “The fact that the crime was committed by subordinates does not relieve the superior of criminal responsibility if the commander knew or had reason to know that the subordinate was about to commit such acts or had done so, and the superior either failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.” If you are a higher step of the chain of command, you are supposed to know what your subordinate is going to do and if it is a crime you should stop them or punish them. It was codified in Art. 28 International criminal court Statute: Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: a. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: i. That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and ii. That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. b. With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: i. The superior either knew, or consciously disregarded informationwhich clearly indicated, that the subordinates were committing or about to commit such crimes; 1. not saying that they “should have known” because it is not always possible in civil organizations for superiors to have knowledge of what the subordinates are up to (if the superior does not have military background) ii. The crimes concerned activities that were within the effective responsibility and control of the superior; and 1. not negligence but plainly disregarding what’s happening 47 mistake of lawmay, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33 Mistake of fact: e.g. a soldier which employs bullets, whcih expand or flatten in the human body (prohibited), without knowing the nature of the ammunition mistake of law: exception to the principle ignorantia legit non excusat, however there is a tendency in domestic constitutional courts to not ascribe responsibility if the person is not culpable. Is a reasonable person expected to be aware of the legality of a particular conduct under international law? e.g. a common soldier is expected to knwo the norms on war crimes, but a civilian is not, therefore he could be exempted. Superior Orders Article 33: Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: a. The person was under a legal obligation to obey orders of the Government or the superior in question; b. The person did not know that the order was unlawful; and c. The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. It is a rule derived from the Nuremberg trial, principle IV of the Nuremberg Principles: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him” (excuse of duress). The ICTY and ICTR do not recognize the exclusion of responsibility but they recognize those defenses as a possibility of mitigating punishments Art. 33 provides for a duty to disobey unlawful orders. immunity Article 27 Irrelevance of official capacity 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. There is no immunitywith regard to international crimes, however, there is still immunity within domestic jurisdiction, which stops the willingness of states to approve universal jurisdiction. 200323 50 Genocide Genocide was chronologically the last crime that was codified. It is usually considered the most serious crime, the “crime of crimes”. However, not many people agree on the idea of hierarchy among crimes and therefore among victims. The crime of Genocide is very difficult to prove and it has a very stigmatizing label attached to it → sensitive topic politically speaking. The term was firtsly presented in some writing of Raphael Lemkin and it comes from the union of two words: genos and caedere. The first definition: “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.” It is a very broad definition aiming at prohibiting several forms of distruction. The next definition, given by the General Assembly Resolution 96(1): “Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the light to live of individual human beings” The element of the group is an integral part of the definition. The “destruction” is meant in a holistic sense: political and social institutions, culture, language, national feelings, religion, economic existence… The core of genocide is that these groups are not attacked for doing something, but for being something. The crime of genocide was codified pretty late because: ● often committed or tolerated by states ○ e.g. crime of aggression is a leadership crime ■ can only be committed by military or state leaders ● there is a reluctance to punish the perpetrators or at least diminishing the crime It is now recognized as norm of jus cogens and erga omnes obligation. first attempts to prosecute genocide 1. Treaty of Versailles (1919) set up the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 2. Mandate: investigate the violations of international law committed by Germany 3. The commission reported on acts that aimed to “denationalize the inhabitants of occupied territory” carried out in Serbia by Bulgarians, Germans and Austrians (e.g. prohibition of the Serbian language, abduction of children, starvation, internment, etc.) a. did not really talked about genocide 4. Recommendation that the commission gave: establishment of a high tribunal that could judge on offenses against “the laws and customs of war” and “the laws of humanity” 51 Crimes against the Laws of Humanity The new crime (against the laws of humanity) was proposed by the Greek members of the commission in order to punish also the massacres of the Armenians committed by the Ottoman empire (1915). They were not recognized as genocide by a court, but were nevertherless recognized as war crimes by the Ottoman Empire Tribunal. They are by contrast recognized as genocide through political declarations by some states (e.g. Italy), but not by others (e.g. turkey), and this creates debates. We cannot have a judgment on these crimes that states that a genocide was committed → some facts are there but the intent to destroy a group is the most difficult element to prove. In any case, at that time, crime against humanity applied to the facts that had happened more than 4 years before → this was interpreted as retroactive law. Results of the work of the Commission: ● Kaiser Wilhelm II (Germany): escaped to the Netherlands that refused extradition ● Treaty of Lausanne (1923): granted amnesty for crimes committed between 1914-1922 Genocide in Nuremberg second attempt Holocaust punished under crimes against humanity, in particular the conducts of: “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population” and “persecution on political, racial or religious grounds” (art. 6(c) London Charter) Term genocide used during the pleading by the prosecutor but not in the judgment There was a reluctance to use the term genocide (political but also legal reasonsCAH easier to prove) for reasons of retroactivities since the other crimes had already appeared in other treaties. The idea is that crimes against humanity are easier to prove, thus more used The Nuremberg Trial shed light on genocidal policies and this contributed to the drafting of the Genocide Convention. “The crimes prosecuted by the Nurenberg Tribunal, namely the holocaust of the Jews or the 'Final Solution', were very much constitutive of genocide, but they could not be defined as such because the crime of genocide was not defined until later” (ICTR, Kambanda, 1998) → principle of legality Sources of the Crime of Genocide 1. UN General Assembly 96(1) → definition of genocide broader in scope: a. encompassed many groups b. recognized physical, biological and cultural genocide (the latter is not recognized anymore) c. aimed at formalizing universal jurisdiction i. anyone could prosecute the crime, now it is not recognized anymore 52 Destruction ● ICJ, Bosnia v. Serbia (2007): ○ Destruction is meant in the physical sense and not only the destruction of the “identity of the group” ■ the cultural distruction that was included in the first definitions of genocide is not nowadays recognized ● contested when talking about colonization processes and destruction of entire culturalized individuals in Africa, North America, New Zealand ● ICTY, Krstić (2001): ○ action must target a substantial part of the group (in number but also with regard to how essential that part was for the survival of the group-quantitative or qualitative) ■ the court defined waht “in whole or in part” means → substantial part of the group destroyed is sufficient to have a crime of genocide. ■ ssubstantial part: not only a number, but also “essential members for the survival of the group ● ICC, art. 6(a)(4)Elements of Crime : ○ “The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction” ■ the question is whether a single act could be sufficient for the crime of genocide to be recognized. In principle yes, but it is unrealistic that it could happen ○ One action would be sufficient if capable of destroying a group (although difficult to imagine) Singe Act was recongized as avalide by the ICTY in the Jelisic case: “to establish the material element of the crime of genocide and it is a priori possible to conceive that the accused harboured the plan to exterminate an entire group without this intent having been supported by any organisation in which other individuals participated.” Most scholars and jurisprudence criticize this vision and see the single act as an impossible way to actually establish the crime of genocide in reality. ICC Elements of Crimes The International criminal court elements of crimes, official document, added a contextual element to the actus reus, requiring that the conduct for which the defendant is on trial takes place in the content of amanifest pattern of similar conduct or is of itself able to destroy at least part of the group. Art. 6 → With respect to the last element listed for each crime: (a) The term “in the context of” would include the initial acts in an emerging pattern; (b) The term “manifest” is an objective qualification; (c) Notwithstanding the normal requirement for a mental element provided for in article 30, and recognizing that knowledge of the circumstances will usually be addressed in proving genocidal intent, the appropriate requirement, if any, for a mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis. Conduct international criminal court statute give the definition of Genocide in Art. 6. 55 Art. 6.b: causing serious bodily or mental harm: ● a grave and long-term diasavantage to a person’s ability to lead a normal and constructive life ● acts of sexual violence and rape can constitute genocide; sexual violence was found to be an integral part of the process or destruction in the Rwanda genocide Art. 6.c: deliberately inflicting conditions of life calculated to bring about physical destruction ● 'conditions of life' as including but 'not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion horn homes’. Not a result crime (intention matters!) ○ does not need to result in physical destruction, but the set up of certain condition that were meant to generate general distruction ○ starvation for instance ethical cleansing → deporting and cleansing a certain area from a certain population. ● “Forcible expulsion of civilians belonging to a particular group from an area, a village or a town” (Cassese, 2003) ● “Rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area” (ICJ, 2007) ● Does this amount to genocide? ○ Ambivalent approach German Constitutional Court (Jorgic, 1997): “systematic expulsion can be a method of destruction and therefore an indication, though not the sole substantiation, of an intention to destroy” ICJ, Bosnian Genocide: “Neither the intent, as a matter of policy, to render an area 'ethnically homogeneous', nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is 'to destroy, in whole or in part' a particular group, and deportation or displacement of the members of a group, even if effected by forces, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement” This does not automatically exclude it. It could be an indicator of a crime of genocide Art. 6.d: imposing measures intended to prevent births ● sexual mutilation, sterilization, forced birth control, separation of the sexes and prohibition of marriages. ○ prohibits the survival of a certain group ICTR, Akayesu, 1998: “in patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended lo prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of group, with the intent to have her give birth to a child who will consequently not belong to its mother's group. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped subsequently refuses to procreate, in the same way that members can be lad, through threats or trauma, not to procreate” 56 Mental Element - Mens Rea It is an exception to the general rule contained in Art. 2 of the international criminal court. In this case a double subjective element is needed → double level of intent: intent to destroy (the person was willing to kill, killed with intent to do so) + specific intent (the killing is aimed at destroying the group) - dolus specialis: willingess to achieve a certain goal. It is criticized as it weakens the application of the convention as it is very difficult to prove. How can the two levels of intent be proven? 1. Holocaust: Nazi documentation proved the intent of destroying the various groups 2. Rwanda: judges looked at the circumstances a. Statements indicating a genocidal intent (e.g. Tutsi named as cockroaches) b. Conscious planning c. Systematic targeting of the victims’ group i. there were many more people killed that belonged to the Tutsi in respect of the Hutu people that were killed d. Scale i. not decisive because a single act could theoretically consitutie a genocide + a minor killing, but of a substancial necessary to the group is genocide 3. Srebrenica, Krstic Case (ICTY): a. Order to kill Bosnian Muslimmilitary aged men i. they were the men in the reproductive age b. Forcible transfer of women, children and elderly 4. Armenia: Turkey´s argument for the denial is the “lack of intent” (war context) a. considered a war crime in the end “The general context of the perpetration of other culpable acts systematically directed against that same pup, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, and furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the member of other groups, can enable the Chamber to infer the genocidal intent of a particular act” (ICTR, Akayesu, 1998) The court here makes reference to the context element in which the perpetration took place to prove intent, which otherwise would be difficult to prove since we’re not in the mind of the perpetrator. jurisdiction Universal jurisdiction was not recognized → genocide convention does not require its state parties to implement in their domestic jurisdiction universal jurisdiction for the crime of genocide = not everybody is required to prosecute or punish possible accused of genocide regardless of the territory where it took place. Universal jurisdictions was rejected in the end, so the territorial and international jurisdiction were the recognized ones. Domestic legislation enabling universal jurisdiction for the crime of genocide exists, but not everywhere. Art. 6 Genocide convention: “Persons charged with genocide or any of the other acts enumerated in Art. III shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction.” 57 They were all rejected and because the appeal to international customary law which recognized a mere declaratory effect to the law approved in Israel in 1950, also recognized that he had wide discretionary powers → could decide upon a number of things + kept performing his duties with devotion. He was convicted of all 4 indictments to death penalty. 220323 Crimes against Humanity It is easier to convict people of crimes against humanity because there is no proof of intent. There are reasons why courts can chose between the two, they have a lot of communalities: · Very serious offences/attack against human dignity · Often part of a larger context (large scale) · Often carried out by or with the complicity/connivence/toleration or by state officials but not a requirement of the crime Differences are: · Genocide: targets specific groups · Crimes against humanity: civilian population · Actus reus (reciprocally special/overlap)> conducts are listed in the statutes, we find additional elements by the elements of crimes but also by the jurisprudence of the ICC and by ad hoc tribunals. Sometimes they correspond to the cases in genocide, but there is a special element in the mens rea · Mens rea> differentiate them from war crimes and genocide (intent to destroy in all or in part a group) Origins Crimes against humanity are related to principles governing armed conflicts. They were used for the first time in 1915 to refer to the Armenian mass killing (formula used France, Great Britain and Russia) but were not codified yet. The first codification is in the Nuremberg Charter (art. 6)> first time the conduct of a state against its citizens becomes a matter of international law. They were Later enshrined also in the Nuremberg Principles, and in the ICTY, ICTR, ICC Statutes. While the definition of genocide stays the same throught the different convention, the definition here changed quite a lot because it aimed at encompassing more and more conducts to protect more the victims. There was also a development of humanitarian law and in line with certain sensibility of the peoples. However, country to what we have in genocide and war crimes (Geneva conventions), we do not have a specific convention: courts and discussion between the negotiations on the ICC, relied on instruments of international law (convention against torture and enslavement) but there is no one convention. Definition of the Nuremebrg charter was quite limited: Art. 6(c) Nuremberg Charter “…murder, extermination, enslavement, deportation, and other inhumane acts (keep contained later on, although it might sound in contrast with the principle of legality, allow us to include further conducts, enlarge the portection i.e., see advancement of technology brings about new ways of 60 torturing people) committed against any civilian population before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the countrywhere perpetrated”. They must be committed during or before the war against civilian populations (also of the same state that is perpetrating the act) there are no crimes in time of peace. This was the very first definition> during an international armed conflict and in connection with war crimes and crimes against peace( aggression). Seen as an extension of war crimes for the first time: it encompasses also crimes committed by a State against its own citizens. The element of sovereignty is still prevalent, later the dignity of the person is central. These crimes were not recognized in any document before Nuremberg however were included in the charter: there is a discussion about retroactivity, the main argument is that crimes are such of nature that were part of customary law so there was no breach of the principle of legality and thus of retroactivity. What we find as requirement in the ad hoc tribunal and we do not find anymore are two elements · ICTY: when committed in an armed conflict, whether international or internal in character, as part of…> did not have to be committed in connection with others crimes but had to be committed in times of war either internal or international. · ICTR: when committed as part of….on national, political, ethnic, racial or religious grounds (discrimination) These are justified by the characteristics that those conflicts had: the ICTY was judging on facts that happened during war conflicts, ICTR was deciding on genocide in a national basis grounded on discrimination Now we have article 7 ICC. (see in connection with article 30) It lists: · A list of acts (Murder, Extermination, Enslavement, etc.) · Committed as part of a widespread or systematic attack... · …directed against any civilian population… · …with knowledge of the attack 1 For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. 2. For the purpose of paragraph 1. Second paragraph gives explanations There is no nexus required neither to other crimes nor to an armed conflict, either international or national. There is also no requirement of discrimination except from persecution. What we see in the ICC is also that the categories of the conduct punished are enlarged i.e., apartheid, enforced disappearance of persons and gender crimes and the open clause to add others. Normative theories (protected interests), different theories 61 · Laws of humanity: CAH are international crimes because they represent an attack on humanity and on the individual as a human being. · International peace and security: they threaten the peace, security and well-being of the world (human coexistence). · State or organizational policy: right of the individuals to be protected from abuse of state power (Crimes against humanity as the result of state policies that promote or tolerate such crimes). However, see nonstate actors: they can commit crimes against humanity. Are the result that either promote, active or authorized those actions. It is contested if we need a state-like organization involved is necessary. Material Element (Actus Reus) in ICL · Conduct · Consequence/result (if required)-Causation · Contextual Elements of the crime (e.g. “as part of a widespread or systematic attack directed against any civilian population” CAH): these elements distinguish international from domestic crimes Material element Art. 7(1) contains a list of conducts that might fall within the category of CAH (letters a-k, including an open clause). There are two types of conduct to fall into crimes against humanity · Murder type: most of them are also criminalized in domestic systems (murder, extermination, enslavement, deportation or forcible transfer, torture, sexual offences, enforced disappearance, etc.). they are inflicting physical pain · Persecution related: not always prohibited by national law. Persecution on the basis of racial, religious, or political grounds (modern slavery, sex-related persecution, etc.) Contextual Element Committed as part of awidespread or systematic attack directed against any civilian population. Attack does not necessarily mean use of armed forces but also any other form of mistreatment (no just military attack but could be anything else that is a mistreatment). Civilian population: must be the primary target (of the overall attack). This encompasses also former combatants, wounded people, etc. (irrelevance of nationality) if is part of the general widespread attack towards civilians. See Art. 7(2) letter a) ICC Statute> Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack Widespread is to be understood as being quantitative> conducted on a large scale and causing a large number of victims, the consequences of the attack upon the target population (how serious they are) and also might look at the geographical area. Quantity and scale counts. Systematic refers to the quality side meaning its organization> Organized nature of the violence, repetition of similar conducts… , existence of a plan, policy, ideology, involvement of high-level military or political leaders (also paramilitary) not required but often present 62 in an official capacity, the ICTY lifted this requirement, they also admit torture by people nor in an official capacity (ICTY, Kunerac). If a person is acting under official capacity we will at least have the responsibility of the state in international law, here we have the single person, so we have also private people. ICC endorse this trend: no requirement of official capacity (torture by rebel groups, paramilitaries and others is included. Another discussion was on the purpose of torture: what the convention required was that the torture was to put in place to ”obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind”. The presence of this purpose would distinguish torture from inhuman treatment. The ICC in line with the jurisprudence of the ECtHR does not require this purpose and only looks at the severity of the act: torture would imply more cruel forms of practice. Article 7(1)(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity> rape is was already in Control Law Council no 10. It is seen as an acknowledgement and not an expansion of the act. Rape the elements of crimes are: · Physical invasion of sexual nature> “The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body · Presence of coercive circumstances OR lack of consent> “The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. Now> lack of consent is now the criteria, reflects the principle of penalizing violations of sexual autonomy. Force is no more an element of rape; it is still in certain domestic jurisprudence and legislation. MacKinnon: when coercion is present, we do not need to investigate the existence of consent (e.g. Katanga)> in certain cases, it is clear that there is coercion and the investigation of consent would not make sense. Sexual slavery> Particularly serious form of enslavement, Enslavement + the perpetrator caused the victim to engage in one or more acts of a sexual nature. Examples of these were comfort stations, rape camps, etc. 230323 crimes against humanity pt.2 Enforced Prostitution The area of sexual-related violence has been broadened. One of the conducts that Art. 7 prohibits is enforced prostitution. The International criminal court for the first time took away the link to honour → in many countries there is often a discussion where to place within the criminal code certain conducts related to sexuality and sexual autonomy?, as in the past they were not considered as a 65 legal good to be protected (family, honour, ecc). Now the international criminal court focuses on the secual anatomy as a good to be protected. ● Previously linked to honour ● ICC statute: 1. causing one or more persons to engage in one or more acts of a sexual name; 2. by force or by threat of force (or under the coercive circumstances) 3. the perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature forced pregnancy At the beginning it created some discussions because of the problem that in many countries abortion is prohibited. The discussion that took place for instance in rome before the adoption of the rome statute was that in many countries the crime of forced pregnancy could be recognized in those cases in which national law prohibits abortion, therefore forces the woman to give birth to the child. This however was quickly clarified: human rights law needs to be kept separated with international criminal law. international criminal court statute: ● This definition shall not in any way be interpreted as affecting national laws relating to pregnancy: ○ unlawful confinement, ○ of a woman forcibly made pregnant and ○ with the intent of affecting the ethnic composition of a population or carrying out other grave violations of international law ■ remind crime of genocide enforced sterliziation Definition: ● the perpetrator deprived one or more persons of biological reproductive capacity; and ● the conduct was neither justified by the medical or hospital treatment of the persons concerned nor carried out with their genuine consent ○ the purpose of affecting the ethnic composition of a certain population plays an important role. Other forms of sexual violence Art. 7.g → “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;” The definition that was given for the other forms of sexual violence is: 1. the perpetrator committed an act of a sexual name against one or more persons or caused one or more persons to engage in an act of a sexual nature 2. by force or threat of force or coercion and 3. the gravity of the conduct was comparable to the other offences in Article 7(1)(g). force and threat of force is quite a comlpex concept because the jurisprudence in going toward a different direction → consent. 66 Forced Marriage One of the latest development of the jurisprudence of the international criminal court. It is the crime of forcing someone to get married with someone else. It is not contained only in international criminal law but also in domestic law. It changes depending on the context. We are traditionally used to think that the marriage is forced by the family, enlarged family or tribe. Often this crime can be found in immigrant families in Europe. Nowadays forced marriage is becoming a crime almost everywhere. Next to the traidtional forms of forced marriage, there is also the case of human trafficking → marry someone for permits of residence or marriage. IN the war context, we are facing a third type of crime: frocing someone to marry a soldier. Forced marriage has been elaborated by the jurisprudence within the open clause “other inhuman acts”. The first to recognize this crime was the special court for sierra leone and then the extraordinary chamber in the courts of cambodia. Then the international criminal court in Ongwen → independent crime form rape and other. The court recognized that wihtin the crime of forced marriage there is an additional trauma and stigma deriving from the imposition of the status of wife of the perpetrator. The international criminal court in Ongwen: “The central element, and underlying act of forced marriage is the imposition of this status on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage - including in terms of exclusivity of the (forced) conjugal union imposed on the victim - as well as the consequent social stigma” The court recognized that there is an additional legal good to protect which derives from the status of being the wife of, generally, the combatant. UN Special Rapporteur: Declaration in the area of the sexual related violence: “any violence, physical or psychological, carried out by sexual means or targeting sexuality. Sexual violence covers both physical and psychological attacks directed at a person's sexual characteristics, such as forcing a person to strip naked in public, mutilating a person's genitals or slicing off a woman's breasts. Sexual violence also characterizes situations in which two victims are forced to perform sexual acts on one another or to harm one another in a sexual manner” Way to limitate the discretionary power of judges when deciding upon the open clause of art. 7 Persecution Persecution involves the intentional and severe deprivation of fundamental rights, against an identifiable group or collectivity on prohibited discriminatory grounds. When talking about persecution the key word is discriminatory goudns Discriminatory grounds: political, racial, national, ethnic, cultural, religious or gender…. “other grounds that are universally recognized as impermissible under international law” 67 ○ disciplined by the UN Charter ● ius in bellum ○ governed by international humanitarian law and principle ■ apply to all conflicts regardless of how the conflic was initiated ○ always governs the conduct in war after it has been initiated international humanitarian law There is no way to eliminate wars, but we can regulate a war as to reduce the harm caused by the war. There is the need to balancemilitary and humanitarian considerations, but humanitarian considerations are taking more importance, in the sense that there are stricter rules, a broader protection of victims and a broader application of international humanitarian law. War crimes are a smaller unit within international humanitarian law, they are the grave breaches of international humanitarian law, but not every breach of international humanitarian law is a war crime. War crimes address individuals (individual criminal responsibility), whereas international humanitarial law as such addresses states. IHL Regimes: nowadays the distinction has little relevance, but it is interest for the development of IHL ● hague law ○ Limits the consequences of harm on the enemy (protects soldiers) ○ Prohibits the use of means and methods that are particularly dangerous ○ Conferences at the Hague in 1899 and 1907 on the “Laws and Customs of War on Land” (Hague Regulations: “the right of belligerents to adopt means of injuring the enemy is not unlimited”) ■ right to combat but there are limits ● Geneva law: ○ Protecting victims of armed conflicts (civilians) ○ Other categories of persons (prisoners of war, detainees, humanitarian aid workers) ■ still suffering the consequences of war ○ International committee for the red cross Conventions signed in Geneva at first in 1864 (after creation of the ICRC), 1929 and then in 1949 (Four Geneva Conventions) + 1977 Additional Protocols ■ started earlier but crystallized after wwii Customary law: ● 1907 → Hague regulations ● 1949 Geneva conventions ● certain provisions of the additional protocols Even if a state is not party to those convention, it still have to respond for those crimes. protected interests ● Fundamental individual rights in armed conflicts ○ Where possible (specific categories of persons) avoid the harm ○ where not possible (combatants) reduce unnecessary damages ● Peace (both maintaining and restoring peace after conflict) 70 war crimes as violations of IHL principles 1. Protection of non-combatants: civilians, prisoners of war, wounded, etc. Property is also protected a. geneva convention 2. Principle of distinction: obligation to distinguish civilians frommembers of the military. Only military objectives. a. linked to the first principle 3. Principle of proportionality (collateral damages) a. a certain amount of collateral damage is allowed (physiological), but the civilian population should not be the main target of an attack 4. Prohibition of employing weapons, etc. that cause unnecessary suffering (biological, nuclear, chemical weapons) a. prohibition of nuclear weapons contested 5. Prohibition of the use of child soldiers became a principle (Lubanga) a. developed by the jurisprudence Definition of War Crimes ● complicated international criminal court text on art. 8 ● Geneva Convention ○ “grave breaches” of the Conventions constitute war crimes ● ICTY, Tadic 1995: ○ breach of a rule protecting important values and involving grae consequence for the vitìctim ○ test: ■ Infringement of IHL rule ■ Rule found in customary law or in an applicable treaty ■ It must be a “serious” violation ■ It must entail individual responsibility contextual element Armed Conflict → In the past only breaches taking places within international conflic context, since the 1990s this distinctions has blurred. Currently, also violations within interenal conflicts might be considered war crimes. In tadic the armed conflic was defined as: “resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state” No requirement of the state being part of the conflic. Moreover, there is no need to be existence of a conflict, but a nexus between the consudct of the perpetrator and that part of conflict → Necessary Link between the individual crime and the armed conflict - art. 8(1) ICC Statute: crime enabled or facilitated by the conflict and committed by one of the parties involved “as part of a plan or policy or as part of a large-scale commission of such crimes” 71 If in the context of a war one rapes without any connection to the war, it does not amount to a war crime. Jurisprudece for the identification of this Nexus: ICTY in Kunarac and ICC in Bemba: ● Status of perpretator (combatant?) ● Status of victim ● Does the act serves the goal of a military campaign? ● Was the act committed in the context of an official duty? Status of the Parties Perpetrator: does not need to be a combatant (civilians can committ war crimes, provided a nexus with the armed conflict exists – and knowledge!) Victim or object: their status is a prerequisite for the existence of certain war crimes. Their status can change the consequences of the crime. Non-International context Nowadays war crimes are recognized also in non-international conflicts, but there are some requiremenst: ● Armed violence needs to be of sufficient intensity in order to amount to war crime • Protracted armed violence • Intensity of the hostilities • Capacity (and organization) of armed groups to carry out attacks We can’t talk about war crimes when there are sporadic acts of violence, such as riots. international or internal? Contested because there are differences on the sets of law regarding international or internal conflicts: ● Invitation to a second state to assist in the fight of internal armed groups → internal) ● Wars of national liberation/resitance to colonial powers → controversial ● Proxy forces – local armed forces acting on behalf of another state → controversial ● State vs. non-state armed group within another state → it depends on whether the non state is supported by that state or not Tadic → first time war crimes were recognized in non-international conflicts. icc statute ● Grave breaches of the Geneva Conventions ● Serious violations of Common art. 3 Geneva Convention ● Other serious violations (of other sources/treaties) 50 offences listed, no open clause, however, there is the possibility to the court to refer to customary law to broad the list of offenses. → Some offences considered customary norms are not included but can be taken into account by the court (e.g. chemical or biological weapons) 72 The use of nuclear weapons could violate some principles on the basis of which humanitarian law and war crimes were developed: ● proportionality ● necessary harm ● distincion War Crimes in Non-International Armed Conflicts Art. 8.2(c) icc statute → serious violations of Art. 3 common to the 4 Geneva Conventions In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: 1. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; 2. Committing outrages upon personal dignity, in particular humiliating and degrading treatment; 3. Taking of hostages; 4. The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable min 14 Art. 3 common to the four Geneva Conventions Art. 8.2(e) icc statute → Other serious violations of the laws and customs applicable in armed conflicts not of an international character within the established framework of international law Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: 1. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; 2. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; 3. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; 4. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; 5. Pillaging a town or place, even when taken by assault; 6. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; 7. Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; 8. Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; 9. Killing or wounding treacherously a combatant adversary; 75 10. Declaring that no quarter will be given; 11. Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; 12. Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; 13. Employing poison or poisoned weapons; 14. Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; 15. Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. List of prohibition that are very similar to the Hague laws. The court dealt in the case of Lubanga and Onweng? with the war crime of children soldier. This list can be applied only when certain characteristics are present, not in any general internal conflict. Art. 3 common to the four Geneva conventions establishes a minimum standards guaranteed by international humanitarian law provided to non-combatants. The international community believes that the violations of Art. 3 do not need a protracted conflict to be applicable. To underline the distinction between international and non-international conflict, the requirement of time is added: “protracted armed conflict” → there was a resistencec by member states (icc) to accept the jurisdiction of the court also in cases of purely internal conflict, therefore they added this element so that the court can intervene. for “less serious violations” there must be a protracted conflict for the itnervention of the court. Mental element It follows the genral rule of Art. 30 international criminal court: ● intent and knowledge of the individual act ● in certain provision “wilfulness” applies ○ lower threshold → suffice that the person acted recklessness - dolus eventualis ● knowledge of the armed conflict Arrest warrant Putin/Lvova-Belova Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova | International Criminal Court Making the arrest warrant public by the international criminal court is a symbolic act + throught this arrest warrant the court is calling upo the cooperation of the other rome statute member states for when Putin and Belova will leave the russian territory. They chose this crime because 1. it’s children, c’mon 2. there were probably many pieces of evidence. a. there were declarations by Belova of what they were doing lol The crime for which Putin cannot be prosecuted ius the crime of aggression. But since Ukraine has opted in the jurisdiction of the international criminal court, according to art. 12.3, every crime committed on its territory is subject to the jurisdiction of the international criminal court, so also 76 those crimes committed by other nationals whose state has not agreed to the jurisdiction of the international criminal court. differences betweenWar Crimes and Crimes against humanity War crimes may only be committed during an armed conflict, whereas now crimes against humanity can be committed both in times of war and of peace. A crime against humanity may be committed against nationals of any state, including that state’s own nationals, if the state takes part in the attack. War crimes are committed against the “enemy” Whereas crimes against humanity may only be committed against civilians (even though if the it can be recognized also against combatantss when the main target are civilians and combatants as side effectts), most war crimes may be committed against both civilians and enemy combatants. A crime against humanity must be committed as part of a widespread or systematic attack upon a civilian population; there is no such requirement for a war crime. An isolated act could qualify as a war crime, but not as a crime against humanity (unless htere is an attack going on against other people). Nearly all of the offences which could qualify as crimes against humanity would also amount, all other conditions being met, to war crimes, but the converse is not necessarily true. Crime of Aggression It is an unlawful act of a State against another state. It is a crime that can be committed only by a leader or policy-maker of a state. This crime potects State sovereingty by punishing attacks on States and encroaches on sovereignty by going behind the state to make individual leaders directly accountable under international law. Originally, it was described as “crime against peace” by art. 6.a London Charter: Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. During the international criminal court statute negotiations it was difficult to push throught the crime of aggression and it wasn’t really pushed through in 1998 but it took it another 20 years for the crime to become effective. There were 3 questions that were discussed: 1. whether the crime of aggression should be included in the Statute at all; 2. how it should be defined; 3. how and whether a role for the Security Council should be reflected in the Statute in the determination of the crime of aggression. We are in the field of ius ad bellum + chapter 7 Un Charter. The old version of Art. 5.2 international criminal court statute (before the Kampala Agreement, whcih made the crime of aggression active): The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such 77 Jurisdiction The crime of aggression has been made operational later on and it contemplates certain differences in comparison with other crimes. The art. regardint hte jurisdiction added with the Kampala agreement are Art. 15bis and 15Ter. GENERAL JURISDICTION OF THE COURT → ART. 13 art. 15bis: exercise of jurisdiction over the crime of aggression (State referral, proprio motu) 1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs (a) and (c), subject to the provisions of this article. 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the samemajority of States Parties as is required for the adoption of an amendment to the Statute. 4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years. 5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory. 6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents. 7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression. 8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article16. 9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute. 10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5 1998 → member states decided to put in art. 5.2 the possibility for parties to find an agreement in the future. What was still needed was the ratification of at least 30 states of the Kampala agreement + one year from the ratification of the agreement + confirmation by the Assembly of State parties (took place in 2017). The crime started to function from 17 July 2018 → no one can be tried before the international criminal court for crimes of agressison that took palce before that date. In case a single state has ratified the Kamplala agreement after that date, jurisdiction for its nationals will start from that date. The possibility to exercise jurisdiction depends on the ratification of the Kampala agreement. There is an opt-in/opt-out clause because it is the crime that mostly relies on state sovereignty. Art. 15ter: Exercise of jurisdiction over the crime of aggression (Security Council referral) 80 1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b), subject to the provisions of this article. 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the samemajority of States Parties as is required for the adoption of an amendment to the Statute. 4. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute. a. what the sc is irrelevant to the court → the pre-trial division can authorize the prosecutor to act in case of state referral or in case of state investigation proprio motu 5. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5 trigger mechanism Given that we are talking about violations of the UN charter, the unsc is the body deciding on the un charter. The question is: should the unsc have a say on the jurisdiction of the international criminal court? If we allow the unsc to have a say on the crime of aggression that can be tried before the international criminal court there might be the usual problem that the member of the sc could use their veto power. In the end it was decided that all 3 possible mechanism for the other crimes can also be used for the crime of aggression. In the case of proprio motu investigations by the prosecutor, we need to have either a declaration of the unsc which has already recognized a breach of the un charter (either prior to the properio motu investigation, or intervened within 6 months form the start of the investigation) or pre-trial chamber authorization. UNSC Authorization Discussion on UNSC authorization as a filter • No need for a previous determination • Possibility of referral of cases • In case of state referral or proprio motu: either UNSC determination of an act of aggression (6 months) or pre-trial division authorization. A pre-trial chamber authorization is needed also when the prosecutor acts proprio motu. mental element the same as stated in art. 30 international criminal court → intent + awareness 300323 030423 81 International Criminal Court Establishment of the international criminal court There were some attempts to establish international criminal tribunals, but during the cold war the process was stuck. The first expression was seen with the ad hoc tribunals. The establishment of the international criminal court was the result of intense negotiations. They took place in 1998 in Rome → 5 weeks of discussion among several states of the UN. In the end, 120 states agreed and ratified in their national jurisdiction the Statute. There had been some addition, now 123 + Armenia in these days. In July 2002 the statute entered into force → relevnat because of the ratione tempporis Jurisdiction Ratione Materiae The jurisdiction of the international criminal court are: ● genocide ● cah ● war crimes ● aggression ○ only for those states that have ratified the Kampala Agreement Universal Aspiration The court does not have universal jurisdiction, but a universal aspiration. It has a permanent character, which makes it different from ad hoc tribunal that had a very limited period of action (although their activity is still dragging afterwards for the cases that are not completed yet) and it is also one single court for the entire international community. Its functioning takes a continuinng negotiation and cooperation action by member states and non-state parties. The consensual element is prominent. The Court was created trhough a founding treaty and has power only with regard to the states that have gave consent to it Consensual Nature Jurisdiction As already been said, the court does not have universal jurisdiction. It works accordign to art. 12 icc Statute: preconditions to exercise jurisdiction 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: 82 it is difficult to decide when the proceedings are conducted against the same person. What scholars and jurisprudence have agreed on the same conduct/same person test: There must be substantial overlap of the investigations at the two levels → if so, one of the two needs to stop the prosecution, and it is usually the international criminal court stopping. Exercise of Jurisdiction In principle, jurisdiction ofr those crimes belong to both the international criminal court and national courts. The differentiation is not on the jurisdiction, but on the exercise of the jurisdiction. WHo can exercise the jurisdiction differs on the different cases, generally the national jurisdiction has precedent. Next to the previous seen criteria (nationality, territoriality and complementarity), we have to see whether the case is admissible Challenges 1. lack of enforcement power → it relies completely on state cooperation. The prosecutor has a team investigating, but is necessary to have the cooperation of the national authorites to collect evidences and conduct investigations + enforce the judgemtn 2. intervention in ongoing conflicts a. in some case the actions of the prosecutors can have consequences on the case i. increase the violent actions ii. prevent the violence from being committed 3. Selectivity → focus on Africa, especially in the past Art. 19 ICC Statute The admissibility of the case can be challenged on the basis of certain criteria. The possibility of challengin the jurisdiction of the court is related to protection of state sovereignty and the protection of individual rights → ne bis in idem (Art. 20) Art. 19.2 “Challenges to the admissibility of a case on the grounds referred to in article 17 (principle of complementarity) or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12.” Regarding this challenges of jurisdiction, so the possibility of the court to start a proceeding while a single member state is already bringing forward an investigation or prosecution, both state and the accused can challenge the jurisdiction. The pre-trial chamber will decide The decision is case by case and related to that specific moment. Pre-trial Chamber 85 Main Actors Structure of the court Aseembly of state parties (deciding on several issues regarding the court, including changes to the icc changes) Presidency + registry (administrative function) Chambers Office of the Prosecutor → assisted by several divisions ● Cooperation of member states + investigation division + prosecurion division Trustfund for victims Prosecutors ● Elected by the assembly of state parties and must assist the judge to discover the trust. ● They can start the case ● Must take into account the needs of victims ● Independent (although politics play a big role) ● ICC: decision to entrust the prosecution with the power to take action proprio motu (control of pre-trial chamber) Defense Every accused in front of the international criminal court has a right of fair trial based on the equality of arms (less valid since the prosecutor is a body while the accused is a private person). The procedures must follow the due process standard and must aim at finding the truth, however the defendant often lacks equality: ● less means and resources ● less investigation ○ might not know from the beginning that the prosecutor has already started an investigation ● less cooperation of state authortiies ○ might change when the state aims at shielding the perpetrator After the authorization of the pre-trial chamber the accused is noticed. However, until an arrest warrant is issued, the accused does not know for sure what he is being accused of. Counsels Those that have no money to afford a private lawyer are provided with counsels, fully funded by the international criminal court. ● Appointed and funded by the ICC if the defendant lacks means ● Suspects/accused: right to represent themselves (selfrepresentation), however not illimited ○ if it comes to the point that it constitutes an obstruction of justice, the court can decide to appoint ex officio a defense counsel ● Interest of the client but not obstruction of justice 86 ● Accused must be present during trial (in absentia, see Kenyatta: 2013 Decision of the Assembly of States Parties (ASP) to the Rome Statute of the ICC to adopt three additional rules to the existing Rules of Procedure and Evidence of the ICC. The accused 'may submit a written request to the Trial Chamber to be excused only during part or parts of his or her trial’, but exception) ○ the person must be present during trial → difficulty to try powerful leaderrs that states do not surrender Judges 18 judges (for 9 years) Art. 36 ICC statute: qualification, nomination and election of judges Not all were judges before, but they need to have a Knowledge of criminal law or international law Elected by the Assembly of State Parties Equitable geographical and gender representation «persons of high moral character, impartiality and integrity who possess the required qualifications in their respective states for the highest judicial offices» Judges Functions They shall: ● interpet the law with a certain limit to their discretion ○ law: international criminal court statute + other international treaties + customary law ● fact finding work: ○ request evidence ○ question and visit witness ○ visit crime scene ● administration of justice ○ Managing proceedings in a fair and efficient way ○ Guarantee the rights of the accused Victims They have been acquiring more importance. They have become across in international criminal proceeding. They can access to justice even though not directly but through the state. They have the right to an effective remedy and to truth. Restorative justice influence Victims contribution ● pre-trial phase ○ by bringing evidence or testimonies → impact on prosecutor decisions [act through victims testimonies or NGOs] ● observations regarding jurisdiction and admissibility ● present views and concerns at any stage 87 a. number of crimes and victims 3. nature of crimes a. crimes such as killing and sexual violence are considered of greater gravity 4. manner of commission a. systematicity, cruelty, discrimination 5. impact a. on victims, environment, ecc steps of case selection They shall look with objectivity → look at all parties in a conflict Selection of potential perpetrators: ● Gravity of crimes ● Degree of responsibility (big fishes) ○ the court should try to bring to justice less poeple possible because it should be member states to try the majority of the perpetrators ■ there is in fact a tendency to bring to court only big fishes ● Potential charges ○ might go for perpetrators that either have a good chance of being convicted for the number of evidence or because of the greater number of crimes the perpetrator has committed The possibility to secure the offender is also took into consideration. LAstly, there might be also a consideration on the future of the conflict: which perpetrator’s indictment might deter further violence? idk se questa frase ha senso Focus on those bearing the greatest responsibility for core crimes. OTP Policy Paper on Case Selectin and Propritization ● Most serious crimes within a situation >> both qualitative (nature of the crime) and quantitative (e.g. number of victims) criteria; ● Most responsible perpetrators, to be determined on a case-by-case basis with reference to the nature of the criminal conduct, the degree of participation, intent, etc.; ● Nature of charges, that should reflect the crimes occurred within the situation, with particular reference to crimes traditionally underprosecuted, e.g. crimes against children and sexual or gender-based crimes; ○ might play a role the fact that certain crimes are criminalized wihtin the rome statute but not within some national jurisdiction → state is not very likely to take action in those cases if there is not a criminalization in the national law ● Other factors, e.g. impact on the community and victims, contribution to the prevention of crimes, etc. Interest of Justice criticized because it is considered to allow too much discretion ot the prosecutor, but it can allow the prosecutor which cases to carry on and which to dorp. Discretionary category that can include: ● Age of the accused (or infermity) ● Other judgments for the same accused ● Victims’ requests (e.g. for other measures, e.g. traditional justice – see art. 17. E.g. Colombia) 90 ○ the prosecutor is free whether to take those cases or not ○ discussed: when we used the traditional justice mechanisms(e.g. Chachacha court, or other instruments set up in other regions of the world) → they do not reach the threshold to be considered as domestic prosecution = do not bar the jurisdiction of the court according to art. 17. ■ there is not an investigation going on officially at the national level. Can we avoid the court intervening in cases in which there is already a traditional mechanisms in place? Yes!☺ ● criteria of the interest of justice ○ prosecutor can decide to withdraw or to not go on ■ e.g. jurisdiction of peace in colombia building a case Already at the case level (phase 3) 1. collection of material a. during visits of the prosecutor in the region where the conflict has taken place 2. investigation 3. formation of a case colelction of material comes mainly from states in cooperation with the prosecutor, ngos and fact finding body (UN generally). The material must be analyzed, selected, verified and tested and it can only be used in court if relevant, credible, accurate and reliable. evidence can be either direct (videos) or circumstantial (tell only part of the story, but the rest needs to be reconstructed). Can be documentary (prove order and commandsm plans or policies), witness testimonies (context of thec rim, the role of perpetrators, but they come with a high risk of re-victimization, or the risk that the person is not being honest, he changes the view because of various factors), physical evidence (forsenic evidence generally). The evidence must refer to thsee elements: ● crime has happened ● context of the crim ● must provide a link between the perpetrator and the crime ○ principle of individual criminal responsibility must be respected formulation of a case once the prosecutor thinks he has gathered enough information to start a trial, he must: ● identify a suspect ● formulate a specific charge(s) ● Identify the modes of liability ○ was he directly responsible? or co-perpetration? acting as a commander? ● arrest warrant ○ all the details are issued ○ once it is issued, the real prosecution starts 91 stages pre-trial Pre-trial division is in charge with the verification of the evidence and charges Preliminary examination by the prosecutor, which helps him to decide whether to initiate an investigation but also encourages domestic investigation. It can either be short of very long. It starts investigation if there are reasonable grounds to believe that the person committed the crime (especially when the prosecutor acts proprio motu). If so, it formulates a warrant of arrest. Arrest and pre-trial detention, in the Hague [for the enforcement of the sentences of the court, the single member states take over it] (relying on member states’ enforcement power, states’ police forces) follow.Only at this point the prosecuto discloses evidence they are given to the accused to using that evidence to build up his defense. The pre-trial chamber is responsible after the arrest warrant is issued to confirm the charges. → confirmation of charges. Protects the defense form the discretionary power of the prosecutor: it is not only the prosecutor decides for which crimes the person will be prosecuted, but there is also the need of the agreement of the pre-trial charges. In order for the hearing to go further, there must be substantial gounds to believe that the suspect has committed the crime. trial Hearings in court ● Aim to establish the truth ● Opening statements ● Presentation of the evidence ● Closing arguments ● Deliberation ● Judgment appeals Can intervene after an appeal made by the prosecutor or accused. The appeal chamber can: ● Reviews (errors of law or fact) ● Case can be sent back to the chamber that issued it if the appeal chamber rules it reparations It is a sort of novelty in international criminal justice. Special proceedings required → see art. 75 and 79 050423 EU criminal law RECUPERA INIZIO 92 approximation Gives the member states a broader discretionary power in the way of reaching certan common goals. Disciplined by the treaties, especially the TFEU provides possibilities for approximation: ● Mutual admissibility of evidence between Members States ● The rights of individuals in criminal procedure ● The rights of victims of crime ● Minimum rules concerning the definition of criminal offences and sanctions ○ especially in those crimes that are considered more serious and need a common effort to be fought ● Open clause integration Principle that deals with the creation of common effort and common institutions and bodies in order to fight together some crimes → organized crimes, financial crimes against the EU. e.g. Europol, Eurojsut, EUropean public prosecutor mutual recognition Differences remain in the regimes among the different countries, but those differences do not impede cooperation.the parties allow differences to remain but ensure that they do not impede tr ade or co-operation Competences of the EU The distribution of competences between the EU and the MSs follows three basic principles (art. 5 TEU): 1. Principle of Conferral 2. Principle of Subsidiarity 3. Principle of Proportionality Principle of Conferral Principle of Conferral: the competences of the EU are conferred on it by the MSs in order to attain the objectives that they share. The competences not conferred upon the EU remain with the MSs. The Union should respect the national identity of the MSs as well as their essential state functions. Exclusive v shared competences Areas of exclusive competence of the EU: MSs can only act if they have been empowered to do so or to implement the acts of the Union. Areas of shared competences: both EU and MSs can legislate. 95 Principles of Subsidiarity in areas which do not fall within its exclusive competence, the EU shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the MSs either at the central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at the Union level. Principle of Proportionality the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. Emergency Brake Procedure Art. 82 and 83 TFEU create the so called “emergency brake procedure”. If a MS is concerned that a draft directive would affect fundamental aspects its criminal justice systemmight refer it to the European Council. Possible enhanced cooperation (see EPPO - European Public Prosecutor Office). Although there is no more veto power, there is the possibility for certain member states that are concern that a certain directive will affect some fundamental aspect of their system, they might refer to the EU Council → interruption of the procedure and there can be a different from of continuing the directive: enhanced cooperation Principle of Sincere cooperation (loyalty) Art. 4.3 TEU: Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardize the attainment of the Union's objectives. Member states and the union should act in a way that ease the process of cooperation. Member states should mutually respect each other and work together to reach the goal. This means that the member states are required to implement EUmeasures in their domestic system, when it is not automatic. They should enforce Union legislation in their country and they should cooperate with the commission and with the law enforcement authorities of other Member states. Commission v. Greece https://eur-lex.europa.eu/resource.html?uri=cellar:4f255660-f631-479c-91b7-7abaf62826d1.0002.06/D OC_1&format=PDF Greek Maize Criteria “Where Community legislation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty (now Art. 5 TEU) requires the Member State to take all measures necessary to guarantee the application and effectiveness of Community law. 96 For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. Moreover, the national authorities must proceed, with respect to infringements of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws.” Member states in the application of EU law, especially criminal law, do not have to make a difference in respect on how they enforce and implement their national law. The criteria are: ● effectiveness ● proportionality ● dissuasive effectiveness Effectiveness: if violations of Union law occur, the systemmust be capable of responding to them. It must be possible to impose a penalty. See Taricco I (2015): a national rule on the statute of limitation might make the application of the penalty impossible: “The national court must give full effect to Article 325(1) and (2) TFEU, if need be by disapplying the provisions of national law the effect of which would be to prevent the Member State concerned from fulfilling its obligations” In this case the court was judging an italian provision on the statute of limitation, which made it impossible for the italian state to punish a certain crime because too much time had passed. The court of justice established the principle that national court must give full effect to the articles of the TFEU and even if this means disapplying national provision that would prevent the member states and the court to fulfil the obligaiton → in this case to punish a criminal. proportionality Proportionality: having a look at the gravity of the offence and at the sanction provided. It must be appropriate to reach the legitimate objectives pursued by it and it should be necessary. Where there is a choice among several equally appropriate penalties, the less onerous one must be chosen. The effects of the penalty on the person concerned must be proportionate to the aims pursued. Dissuasiveness Dissuasiveness: the severity of the penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely deterrent effect, while respecting the general principle of proportionality Principle related to the protection of fundamental rights - substantive and procedural Relate to the protection of fundamental rights (especially in the area of criminal law) The evolution went along with the acquisition of competences in the area of criminal law. 97