Criminal Law (International and European), Appunti di Diritto internazionale penale

Scarica Criminal Law (International and European) e più Appunti in PDF di Diritto internazionale penale solo su Docsity! Criminal Law Oral exam, 3 questions: one on the first part of the program, two on international criminal law/European criminal law Notes and slides Satzger, H. (2018), International and European Criminal Law, Beck, 2nd Edition The presentations will not be the object of the exam, but we can refer to them (highly appreciated) Our presentation will be asked Purposes of punishment Every detainee has fundamental rights. The grantor of rights in prison is the surveillant judge → judge of the legality of penalty during its execution. He can impose the penitentiary administration to use any measure for the protection of inmates’ rights Art.3 ECHR: prohibition of torture → no one shall be subjected to inhuman or degrading treatment or punishment. The ECtHR condemned Italy for violation of art.3 because of overcrowding in prison in the Corteggiani case If someone breaks the law, he has to be punished, but why? Fundamental distinction between two groups of theories:  Absolute theories: theories looking backward, offenders are punished “quia peccatum est”, because they committed a crime. Tot crimina, tot poena → the biblical Law of Talion (an eye for an eye) is at the basis, the punishment must be proportionate to the seriousness of the offence Penalty is only a reaction of the society to the fact that a crime has been committed Punishment is based on an ancient instinct of revenge There is no specific purpose for applying a penalty  Relative theories look forward, offenders are punished “ne peccatur”, to prevent future crimes, to reduce recidivism Three fundamental theories: 1. Retribution (absolute) 2. General prevention (relative) 3. Special prevention (relative) → it evokes the idea of rehabilitation A new idea of justice: restorative justice → it offers a different perspective: the victim and the offender are on the same level (from the classical pov, justice is vertical: the state is above, and the offender is a passive subject to whom the punishment is applied) and they decide together their own path to restore the harm caused by the crime. The victim can find whatever is the most suitable, and it depends on the person and on his subjective perception. Riforma Cartabia: it aims at regulating restorative justice at every stage of the penal proceeding, even when penalty is carried out in prison. A restorative justice program could be evaluated by the surveillant judge in guaranteeing benefits to the offender, such as alternative measures (e.g. spending the day out of prison and the night inside it) It’s a new way of seeing justice, not a complementary idea. It’s a way to find restoration for the victim. Retribution Historically, we have three forms of retribution: 1 - Divine → the person violates the rule of God, and the human is endowed with the power to punish him. It’s seen as a cathartic path for the offender who has to promise he will comply with the law in the future - Moral (Kantian doctrine) → Kant developed his theory on the fundamental value of human being: man should not be used as a means to an end, so to keep the offender nor the community to commit new crimes. The harm caused by the offender should be compensated by the harm inflicted to him through the sentence, justice must be restored through the principle of retaliation (legge del taglione): the offender is punished in order to compensate evil with evil This thought is still present in the common opinion and it’s very hard to eradicate - Legal (Hegelian doctrine) → based on Hegel’s dialectical approach: punishment is the tool to restore social order o Crime = negation of the law o Punishment = negation of the crime → the tool to restore social peace (il delitto è la negazione del diritto, la pena è la negazione del delitto, la pena riafferma il diritto) Legal retribution is more modern, and it describes the fundamental characteristics of punishment: proportionate, personal, certain, necessary, effective Punishment shall be proportionate and must be appropriate to the seriousness of the crime, but it must also be certain: the citizen should know in advance the consequences of their behaviour in order to guide their conduct consciously Criminal liability is personal: you cannot be held responsible for other people’s acts. Criminal law must be used when it is the only possible solution, i.e., necessary (extrema ratio of criminal law) → if the result is the same, the less afflictive sanction shall be used The punishment shall be effective: it should be short, the sentence imposed by the judge must be carried out 50 years before, Beccaria (1774, “On crimes and punishments”) wrote that in order that punishment should not be an act of violence perpetrated by one or many upon a private citizen, it must be: - Public - Speedy - Necessary - The minimum possible in the given circumstances - Proportionate to the crime - Determined by the law His theory is the quintessential illustration of the classical school of thought in criminology It rests on the Hobbesian social contract → however, individuals do not give all their freedom away, but only the smallest part necessary to achieve security The principal means of enforcing the social contract is punishment: it keeps individuals from trying to seize back that small part of freedom that they relinquished. The social contract itself, however, places limits on the sovereign’s right to punish, which is justified only to the extent necessary to produce security and order, to defend the public well-being He’s one of the first theorists treating punishment as a matter of state legitimacy and political obligation (not from a moral or religious pov) “The juster the punishment, the greater the freedom which the sovereign preserves for its subjects” Focus on equality → everyone is subject to the same forms of punishment, the wealthy cannot buy their way out of justice The measure of criminality is the harm done to the society (not in the mens rea) The proper amount of punishment is simply what is necessary to prevent future similar acts of criminality (general and specific deterrence) → strong element of proportionality between the severity of the crime and the severity of the punishment 2 2. Integrative positive general prevention → the call of punishment is the development of a mechanism of collective psychology in order to achieve conformity of conducts. According to this approach, criminal law should be considered as a tool to control society Special prevention It makes part of the relative theories, it is the only goal for punishment provided for by the Italian constitution (“penalties should lead to re-education”) Negative special prevention: neutralization of the offender, confinement, in order to remove all the conditions to committing new crimes↳ Firstly theorized by Grolman, who based the theory of punishment on the right of self-defence against any unfair offence Neutralization is justified by society as a legitimate reaction to an unfair offence. According to this theory, neutralisation is justified as a legitimate reaction of society against an unfair offence following the idea of self-defence The state’s power to punish has also several limits: - Avoiding inhuman and cruel repression - Principle of strict necessity (extrema ratio principle, subsidiarity principle): the use of criminal law is allowed only when strictly necessary, only when there are no other means to reach the preventive effect Imprisonment is the most afflictive sanction, and it also must be used only when strictly necessary This theory presents a problematic deviation because it claims an extremely intransigent punishment when re-education is deemed impossible It’s possible to get a sine die sanction → life imprisonment Positive special prevention: the goal of punishment is re-education, but also resocialization Punishment is a tool to achieve a goal that is differentiated depending on the classification of the offender According to the positive approach, offenders are led to committing crimes not by free will but by other factors: law of natural causation that leads a person to commit a crime Physical, psychological factors and social context lead a subject to commit a crime. There is also a necessity to intervene in these environmental factors Ferri theorized the law of criminal saturation → the commitment of a crime is influenced by the social conditions The criminal system has therefore a limited preventive effect Theory of criminal substitutes → criminal sanctions should be combined with social reforms modifying the social context (e.g. the introduction of divorce reduced domestic violence and homicides) Criminal law is part of criminal sociology, one of the means by which to intervene Ferri provided a classification based on the type of the offender and not on the type of punishment:  Mad offenders  Known incorrigible offenders → sanction is totally useless as there was no possibility to improve the social context, therefore, the proposed compensation and removal of the offender for a specific amount of time  Impetus offenders (acting on impulse or passion)  Occasional offenders → surrogate penalties, alternative measures Prevention has to prevail over repression Andenaes Andenaes argues that the general preventive function of punishment aims at preventing crime by deterring potential offenders in society as a whole, rather than just deterring the individual offender. 5 According to Andenaes, there are two main mechanisms through which punishment can achieve general prevention: deterrence and reinforcement of moral norms. Deterrence refers to the idea that potential offenders will be deterred from engaging in criminal behaviour if they believe that the costs of punishment outweigh the benefits of committing the crime. This can occur through the perception of the severity, certainty, and swiftness of punishment. If potential offenders believe that the punishment for a particular crime is severe, and that they are likely to be caught and punished, they may be less likely to engage in that behaviour. Reinforcement of moral norms refers to the idea that punishment can serve to reinforce the moral norms that underpin the law. When individuals see that others are being punished for breaking the law, it sends a message that the behaviour is morally wrong and unacceptable. This can contribute to the formation of a normative culture in which individuals are more likely to comply with legal requirements and avoid deviant behaviour. Andenaes notes that the effectiveness of punishment in achieving general prevention depends on several factors. Firstly, the severity and certainty of punishment are important. Punishments that are more severe and certain are likely to have a stronger deterrent effect. Secondly, the perceived legitimacy of the legal system is also important. If individuals believe that the legal system is fair and just, they are more likely to view punishment as legitimate and to comply with legal requirements. Lastly, the level of social inequality and disadvantage in society can also affect the effectiveness of punishment. In societies with high levels of inequality and disadvantage, individuals may be more likely to engage in criminal behaviour, regardless of the severity of punishment. Despite the importance of the general preventive function of punishment, Andenaes cautions against relying too heavily on punishment as a means of achieving general prevention. Addressing the underlying social and economic causes of crime is also essential. Furthermore, Andenaes argues that punishment should be used sparingly and should be designed to maximize its deterrent effect, rather than simply as a means of retribution or rehabilitation. Overall, Andenaes' ideas on the general preventive effects of punishment provide a valuable theoretical framework for understanding the role of punishment in reducing crime and promoting social order. Kant’s retributivism Retributivism is often defended as a moral intuition, a basic free-standing moral principle that is underivable from any broader theory or set of principles Kant, a strong defender of tough retributivism, tried to find a rational basis for the idea of retribution, centred upon the categorical imperative → a principle whereby one should “act only on that maxim through which you can at the same time will that it should be a universal law" The specific categorical imperative will in this case be: "An action is right if it can coexist with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone's freedom in accordance with a universal law." The kind of freedom referred to is external freedom → external actions that might affect others The state has an authorization to punish individuals guilty of actions that violate the law → the threat of punishment and coercion is the adequate motivation to make moral precepts effective ↳ The fear of punishment provides the incentive not to violate the law The proper measure of the punishment (equality, lex talionis) restores the equilibrium that existed before the crime and that was first disturbed by the crime Kant compares his theory with Newton’s third law → law of equality of action and reaction Both laws are necessary and invariable, like any categorical imperative Consequently, appropriate punishment must fit the crime exactly, according to the lex talionis Even though there is no incoherency or contradiction in having the punishment double the crime, or halve the crime, such alternative principles could not be willed by everyone → they are not possible Kant is a partial retributivist → crime control is the main purpose of punishment 6 However, death penalties against convicted murderers should be carried out even when they could serve no purpose → in this sense, he is a full retributivist In Kant’s own view, deterrence is a secondary, though still essential, effect → his primary concern is that the punishment be appropriate from the pov of the person receiving the punishment The lex talionis assures that the rights of the punished are not violated The punishment cannot be less than the lex talionis requires → such a punishment would reflect: - A lack of equal respect for the crime victim - A lack of adequate hatred of the wrongdoing being punished Kant addresses the problem of enforcing qualitatively appropriate punishments for all kinds of crimes Murder → execution Example of theft: Whoever steals makes the property of everyone else insecure and therefore deprives himself of security in any possible property. He has nothing and can also acquire nothing; but he still wants to live, and this is now possible only if others provide for him. But since the state will not provide for him free of charge, he must let it have his powers for any kind of work it pleases (in convict or prison labour) and is reduced to the status of a slave for a certain time, or permanently if the state sees fit. The same applies to fraud and burglary, but other crimes remain problematic → not always it is possible to find appropriate mirror-image punishments The task of constructing perfectly equivalent punishments for each crime seems beyond human capability → even with theft, it is impossible: how long should the punished suffer imprisonment at hard labour? Every legislator is obliged to formulate his laws in such a way that they could have sprung from the unified will of the entire people and to regard every subject, insofar as he desires to be a citizen↳ Does this criterion work for his theory of punishment? Yes → Who is the person whose reason is not likely to consent to punishment? Answer: the one being punished. So, in justifying punishment we must focus our attention on that one, and assure ourselves that we can justify the punishment to him Kantian view on death penalty Kant was for death penalty → how can we reconcile his views with the actual situation? There is a need to promote moral behaviour → based on the categorical imperative Reason-based philosophy of behaviour: morality is based on human, not divine, intellect Principle of universality: do unto others as you would have done to you, no man can be treated merely as a means Principle of humanity: we should all respect each other Kantian retributivism → criminal law is a categorical imperative Inborn personality v civil personality: it’s crucial Kant considered women as passive citizens, lacking civil independence (no right to vote/being voted) Passive citizens, however, can work their way up from their status → but women are women by birth and cannot change it Minors are also passive citizens → the distinction active/passive citizens is not per se objectionable It’s sufficient to remove women from the list of passive citizens, without modifying Kant’s basic ethical and political views 7 Conduct Action vs omission  our legal system prohibits us from doing something, but also punishes having omitted doing something When are omissions punishable? → when the duty to act is not respected. There’s a duty to act under the law, under a contract, or to make good any previous dangerous action (e.g. you caused a damage, so you have to avoid any harmful consequence, for instance if you open a hole in the street). In the latter case, there’s not any specific provision and it’s subject of debate What is the legal basis for omission? Art. 2 of the Italian constitution: principle of solidarity → taking of positive action in order to take care of the interests of other people When it comes to conduct, we can distinguish between:  Result crimes: they consist in the causation of an event. They can be distinguished into: o Free-form crimes → punishable regardless of the manner in which they have been perpetrated, what matters is the resulting event o Bound-form crimes → offences the gravity of which lies specifically in the manner they have been committed: by artifice, deception, misleading (e.g. fraud) Not all the offences are punished, only those actions perpetrated in a particularly cruel or serious way  Mere conduct crimes: they are crimes in which the law punishes some kind of action or omission, regardless of any event that might follow. The law punishes the conduct itself (e.g. theft) Causation One can be held responsible only for the action they have carried out  Positive action → A shoots B, B dies: the judge has to mentally remove the action to see if B would not have died  Omission → A is drowning and dies because B didn’t do anything to save them: the judge has to imagine the conduct required by the law in that specific situation 2. Unlawfulness There are defences that the offender can submit in trial in order to exclude their responsibility The typical fact is lawful when we can demonstrate these defences: - Necessity: when you have to rescue someone’s life or avoid harm to the physical integrity of someone, you can sacrifice the life of others. It works if there are no other ways to avoid the harm - Self-defence: if you are attacked, you can counterattack, but the reaction must be proportionate to the offence. Moreover, you can react only at the time when you are being attacked. - The exercise of a right. Journalist revealing some scandals about politicians. Is he liable for slander? He enjoys freedom of press, but within some limits: the news has to be true, there must be a public interest in the news, you have to announce the news in a way that is not offensive for the person. - Consent 3. Culpability (mens rea) Art.27 IC provides the principle of personal criminal responsibility Personal = you cannot be punished for crimes committed by someone else 10 Culpability = you detach from the normative standards required by the law. In this case we can reproach them. This can also be linked to the principles of rehabilitation, but if the person was not culpable, we cannot reproach them and punishment would be pointless Culpability is strictly related to our capacity of thinking and willing The capacity of thinking and willing can be excluded for: - People with mental diseases (treatment rather than punishment) - Children under the age of 14 (support rather than punishment) - Alcohol or drug intoxication A person can be reproached only if they are capable to understand the meaning of their actions It’s very difficult to assess whether a person is mentally insane There are two different approaches: - Medical approach: only psychosis that have a pathological character. Legal certainty is secured - Personality disorders are now considered as well: they change the way the person affected perceives the outside world Insanity alone is not enough to exclude responsibility → the judge has to verify the mental disease has affected their capacity of thinking and willing while committing the crime You will be punished if you acted intentionally (dolus) Within intent, we can distinguish different variations:  Impetus: intent arises suddenly in the mind of the accused one, out of anger. It’s not planned  Recklessness: it lies between intent and negligence. You consciously accept an illicit risk (e.g. you go skiing even if the authorities said it’s dangerous and you cause an avalanche)  Purpose forethought: action planned in advance Negligence (fault) → the offender didn’t want to commit the crime, but he broke a cautionary rule and he failed in foreseeing and avoiding a harmful result It’s an exception to the political choice of the lawmaker to criminalise actions committed purposefully How can we assess negligence? Would a reasonable person have been able to foresee those results and avoid them in the same circumstances? Lastly, the judge has to establish whether there are excuses: abnormal circumstances under which the offender couldn’t act in a different way. They are able to exclude culpability Art.5 Italian criminal code: ignorantia legis non excusat But the Italian constitutional court said that if the ignorance of the law was unavoidable, it should work as an excuse (sentence 364/1988) → if a provision of law is so unclear that nobody can understand it Is crime a tripartite or a quadripartite structure? → punishability is added For instance, in the case of incest (art 564 cp), the latter can only be punishable if it constitutes a public scandal The tripartite structure is essential for assessing whether a crime exists Punishability lacks when a person has an immunity (e.g. the president of the republic, except if he attacks the constitution or commits treason, is not criminally accountable for any offense he could cause). Parliamentarians are also protected in order to protect their freedom of speech/vote The death of the offender extinguishes the crime 11 General theory of the crime according to the Italian Criminal Code The general theory of the crime allows us to answer to a fundamental question: when can we say that a crime has been committed? A crime is a typical, wrongful and blameworthy act, which is a punishable act or human fact A crime is a fact forbidden by the law through the provision of a criminal sanction → it implies an effective or a potential deprivation of personal freedom According to the tripartite system of the crime (teoria tripartita), which is the most supported among the Italian law scholars, a crime is a behaviour which has 3 fundamental elements: 1. The conduct should be typical → all the constitutive elements of the offence provided by the legislator should be met Some of those are always present in the crime: o The perpetrator (active subject) → there is a fundamental distinction between the proper crimes and the common crimes:  Anyone can commit a common crime (e.g. murder): the offender doesn’t need to have any specific characteristics  In proper crimes, the offender must have some characteristics explicitly provided for by the law (e.g. bribery, in which the offender has to be a public officer) o The preconditions of the conduct (e.g. the existence of a previous valid marriage in the crime of bigamy) o The conduct: either an action or an omission (failure to act), when the law imposes a duty to act o The passive subject whose legal interest is protected by the legal provision. It may be different from the damaged from the crime, who can ask for compensation (e.g. the family of a murdered person) The others are present or not depending on the structure of the crime, which depends on the criminal policies a. The result (event): the consequence, in natural, material or even ideal sense (e.g. in murder, the event is the death of the victim)  In a naturalistic sense, it is the modification of reality caused by the conduct of the offender → e.g. death in murder  In a juridical sense, there are crimes which cause a damage to the legal interest and others which only cause the endangering of the legal interest → all crimes have a juridical result: we have both harm crimes-reati di danno (the conduct compromises the integrity or existence of the legal interest) and danger crimes- reati di pericolo (the legislator anticipates the protection criminalizing facts that could affect the existence or the integrity of the legal interest → e.g. poisoning public water or setting an arson: the offender is convicted irrespective of whether someone has been actually poisoned, but the penalty will be higher if someone dies) All crimes have a result in the juridical sense, and some of them in the naturalistic sense as well b. The causation (causal link): the link between the conduct and the natural result/event. We find another classification of crimes:  Mere conduct crimes → we don’t find any naturalistic result or any causal link (e.g. bad treatment of the family members: to be punished for this crime, it’s enough to have undertaken the conduct of bad treatment. If the children have been also injured, this is just an aggravating factor: crime aggravated by the result. Another example is the crime of pure omission, e.g. the failure to rescue someone in danger. If you don’t help or call for help you are convicted even if the person needing help doesn’t die or get injured)  Result crimes → the provision criminalizes a certain result and the prosecutor has to prove the causation between the conduct and the result (e.g. murder) There are result crimes which require a general conduct (e.g. murder: anyone who causes the death of a human being: it is not important the way the death is 12 b. In the Italian system, we speak about “determinatezza/tassatività” There must be a law which is precise, that enables in advance the individual to know exactly what the meaning of the criminal offence is and what the consequences are 4. Prohibition against unwritten or judge-made law provisions (statutory reservations) → this cannot be applied within common law systems, because they are mainly judge-made law systems Theoretical foundations: - Guarantee of individual liberties against State arbitrariness - The need for fairness in criminal law - Democracy and separation of powers - Purposes of criminal law → general prevention (both negative and positive) Philosophical foundations → they are the result of a philosophical evolution which took place mostly during the Enlightenment  Social contract doctrine  Cesare Beccaria → the citizens gave up their personal freedom conferring it to the state for it to grant the peaceful coexistence between individuals Judges shall only apply, not create, the legal provisions established by the legislator (Montesquieu: the judge is la buche de la loi)  Feuerbach → he theorized negative general prevention as a purpose for punishment and firstly used the Latin expression “nullum crimen, nulla poena sine lege” This principle is fairly complex especially due to many sources that govern it: - Constitutions o IT art 25 o DE art 102 o SP art 25 o FR declaration of HR art 8 - Criminal codes o IT art 1 and 2 o DE par 1 and 2 o SP art 9 o FR art 111 and 112 - International law  art.7 ECHR, art.49 par.2 CFREU, art.22 and 24 Rome statute, art.9 ACHR - EU law Statutory reservation: Not a principle which is valid in every legal system due to different legal traditions (Civil law vs common law + different structure of sources of law). In Italy, the statutory reservation principle is very strong and is enshrined in art 25.2, which establishes that law is the only source of criminal provisions. Thus, we need to establish what law means in our legal system. The Italian constitution and in particular art 1 of the criminal code states that no one may be punished for an act not expressly provided as a criminal offence by the law + reference to penalties. When it comes to statutory reservations, there is a big difference between civil and common law countries, where there are no strong statutory reservations as the law is mainly judge-made. In civil law systems, statutory reservations are essential, which is why it is crucial to establish what law exactly means when speaking of the criminal law system → law as the law issued by the parliament, ordinary law. The main goals of statutory reservations are the following: 15 1. Giving the parliament the power to issue criminal law to safeguard minority rights 2. Parliament is best organ to grant collective interests – dialogue within parliament as best way to grant a broader scenario as to interests protected by the law (consequence of the separation of the powers) The legislator must be the parliament and not the executive – this is ideal and not so well applied in practice (as we have observed the issuing of legislative as to criminal law by the government). There are two main questions regarding statutory reservations: 1. Absolute or relative? a. Absolute → only the primary sources of law can define criminal offences and penalties – only the sources having the same status as ordinary law b. Relative → also secondary law should be allowed to issue criminal law; thus we speak of secondary sources. Ex: regulations issued by the government, sources which are underneath the statutes of ordinary law. Generally, although there were, especially in the past, some contrary views on the topic, we have adopted the absolute version of the principle. Yet, secondary sources still play an important role, even though it is limited, according to the majority of the scholars, to a so- called technical contribution → ex: decrees and regulations on drug trafficking offences established by the ministry of health, which were functional to the definition of which are the drugs that are susceptible of being considered as such. In this case, we could also accept the influence of secondary sources, but we need to keep in mind that they neither define the criminal offence nor the penalty. 2. What should be the meaning of law? Is law defined in a formal or in a substantive way (every other enactments that has the same status as ordinary law – aventi forza di Legge)? This is an issue related to the difference between law decrees and legislative decrees (decreti legilsativi vs decreti legge). The difference between the two of them can very well be seen by analyzing the procedures for their adoption → which is the role of the parliament? When it comes to legislative decrees, there is a delegation from the parliament to the government that issues a decree within the limits established by parliament (legge delega). It’s acceptable to issue criminal provisions through this procedure as we have an excellent parliamentary control. Yet, the parliament is only giving directions as to what the government has to do, the concrete provision is written by the government – still, this kind of source is generally accepted if the legge delega is precise (most of our criminal laws are nowadays issued through legislative decrees). In the case of law decrees the situation is even more complicated → art 77 const: decrees issued in case of necessity and urgency by the government and since temporary, they have to be converted into law by the parliament within 60 days. If not transposed, they will, of course, lose their validity. Thus, it is dubious whether a law decree put forward in case of urgency is really the right source to issue criminal provisions as they shouldn’t be established with haste. If we wish to link all these principles → art. 650 criminal code: failure to comply with a provision of the authorities. This provision was established to sanction disobedience to decrees enacted by the government regarding covid. However, this provision was already well known to criminal lawyers as it is very dubious → so-called blanket criminal law provision: each person that doesn’t comply with an order legally given by public authorities, will be punished with a certain penalty. This provision is like an empty vessel: we have the shape but no content, as the real content is contained in the order given by the authorities (secondary source) – is this compliant with article 25 of our constitution? In a quite old judgement, the constitutional court has stated that such provision is in accordance with the constitution as ordinary law provides for the general framework in which it has to be applied. When we talk about the relationship with primary and secondary sources, legal systems tend to differ a lot: for instance, the French criminal code admits regulations by the executive to provide for criminal offences and penalties of a particular importance → French contravention is similar to Italian contravention. 16 Another issue is the relationship between statutory reservation and European law issuing criminal law provisions → no precise treaty provision regarding criminal law. The main issue was the respect, or lack thereof, of parliamentary prerogatives. Nowadays, when speaking of eu criminal competences, we must look at art 83.1 TFEU. Since its entry into force, the European parliament, and the Council, according to the ordinary legal procedure, may establish minimal rules concerning criminal offences and sanctions in some areas (listed in the second point of par 1). It is important to underline that the EU can issue directives and not regulations. If we read art 83.2, we will notice another case in which the EU can issue directives in the context of criminal law: when approximation of criminal laws proves essential to ensure effective implementation of the Union policy in an already harmonized area of WU law. Possible issues on the respect of the parliamentary procedure as to the democratic principle are no longer relevant as since the EU Parliament is elected by the EU citizens. Art 7 ECHR requires that the criminal offence and the penalty be provided for by national or international law at the time the offence was committed. The problem, in this context, is the interpterion of the word law by the court of Strasbourg refers both to written and unwritten law. This means that the court, in its case law, has acknowledged that the definition of law, according to the Convention, must include judge-made law as well. Thus, for Strasbourg, it makes no difference whether the criminal offence is provided for by decree or judge made law as it is an autonomous definition that should not depend on the differences between the various states parties to the convention. The main aim of the court in issuing this kind of ruling was to be able to apply conventional provisions both to common and civil law MS → this definition, yet, causes issues especially in relation to its consequences with regards to the principles being deducted from art 7 (ex: retroactivity). In common law countries, it is acceptable that a criminal offence is provided for only by case law → precedent system (only the Scottish High court has the power to affirm criminal offences). As a matter of fact, if we look at the highest court in the UK or USA, they no longer have declaratory powers – most of the time we consider very old criminal offences provided for by judge-made law in case law + general principles of criminal law with regards to new offences (also common law states now tend to prefer written sources and therefore statutory law). The principle of certainty is protected by art.25 Italian Constitution, although it is not expressly stated in that article Art.1 of the Penal Code is considered the reference to the necessity of the principle of certainty → criminal law needs to be sufficiently defined The law has to have a certain quality in terms of clarity and precision → only in this way we can have an effective safeguard against the abuse of the judicial power If the legislator defines criminal offences and penalties as clearly as possible, it would be very difficult for the judge to apply the law in an arbitrary way. On the contrary, if the law is very broadly defined, it is up to the judge to decide whether the case would be under the scope of application of that law. On the side of the individual, this would break the pact between the individual and the state because the former would not be in the place to know the law in force and therefore to regulate his behaviours according to it The principle of precision is primarily directed to the legislative power → it is a command to the legislative power to draft legal provisions (about criminal law, but also in general) as clearly and precisely as possible This is an ideal principle, whereas the practice, especially in the last 2 decades, is different → clarity and gravity are not the main features of these provisions The principle of clarity regards the definition of the criminal offences as well as the penalties Judgment 96/1981: the Italian Constitutional Court declared inconsistent with the constitution the offence punished under art.603 CC called plagium (subjection of another person to our power) → it was not a clear concept in criminal law, in medical terms, in common knowledge terms, so it was impossible to consider the article consistent with the principle of precision 17 - Par.5 → what is provided for by article 2 shall not be applied to exceptional and temporary statutes – otherwise it would have been pointless to have introduced a statute which is only temporary. - Par.6 → since the discipline of law decrees has been changed, this provision has been declared to be partially contrary to our constitution and in particular with article 77. Paragraph 6 states that the provisions of art.2 shall be applied in case of relinquishment, absence of ratification of a law decree and non-converted decrees – it seems that a law decree shall be subject to art.2. As a matter of fact, the criminal code was issued in the 1930s, so the constitution as we know it today was not yet in force and at that time law decrees were provisions that if not transposed into law, lost their effect ex nunc, so they remained valid for the 60 days. On the contrary, according to our constitutional system, if a law decree is not transposed into law, it loses its effect ex tunc, so it’s as if it never existed – this means that a succession of statues cannot exist. So, what if the decree introduced more favorable criminal provision? What would be the situation of people having committed a criminal offence during the 60 days of validity of the non-converted law decree? It seems that the decree should be applied every time it imposes more lenient provisions. In decision 51/1985 the constitutional court declared this paragraph inconsistent with article 77 of the constitution that provided to apply the 2nd and 4th paragraph in the case of a non- converted law decree providing more favorable criminal provisions. The constitutional court is telling us that a person having committed a crime offence within the 60 days of validity of the non-transposed decree providing for more lenient provisions, shall be subject to a detrimental law – the one reentered into force after the non-ratification of the law decree. However, if we look deeper into the constitutional court’s reasoning, we will observe that it only refers to offences committed before the entering into force of the decree. Summing up, after decision 51/1985, we must make a distinction between the actions carried out before the entry into force and the ones committed during the 60 days of validity of the decree. Only for the last ones we can apply the most favorable provisions, in the other case, the person will be convicted on the basis of the law provided at that time. The ECHR on the issue of non-retroactivity We need to specify what article 7 means  according to Strasbourg’s interpretation, being law both written and unwritten, non-retroactivity applies both statutory and case law. This means that according to the ECHR, case law cannot provide for detrimental regulations retroactively. This makes sense if we think about the fact that the system of the Council of Europe comprises both civil and common law countries. In the UK, where the binding precedent principle is dominant, case law usually also has a retroactive effect. On the other side, the US applies the principle of prospective overruling, according to which the law declared by the court applies only to cases arising in the future – a detrimental overruling is only applied in the future and not to cases under scrutiny. The problem is that the ECtHR applied the principle of non-retroactivity to civil law countries as well. How is that possible? Often judges may introduce a detrimental interpretation of certain provisions even in civil law countries. As a matter of fact, the ECtHR has often declared the breaching of article 7 even in civil law countries. For example, in case Del Rio Prada v Spain, the ECtHR condemned Spain for having applied retroactively the parole doctrine on early release. Another principle applied by the ECtHR is principle of retroactivity of more lenient criminal law. Even art 7 doesn’t expressly provide for this principle. Nevertheless, in the Scoppola case of 2009, the ECtHR has acknowledged this principle as implicitly entailed in article 7 – consequences of affirmation of such principle at EU level (2005, Berlusconi v Italy). Looking at other international provisions, such as article 15 of the International Covenant on Civil and Political Rights and art 49.2 of the CFREU, the ECtHR decided to acknowledge this principle at the level of the Council of Europe as well → this has stimulated our constitutional court to give to the principle constitutional protection (art 3 – equality principle + 117 to be read together with art 7 of the convention). 20 Art 7 has a second paragraph which may be seen as foreseeing an exception to the principle of non- retroactivity → art 7 shall not prejudice the trial and punishment of any person for any act or omission which at the time it was committed was criminal according to the general principles of law recognized by civilized nations → the convention entered into force in the 1950s, so the main concern of the delegation writing the convention was that the principle of non-retroactivity could be used to prevent war crimes from being punished properly. This provision can be considered to be limited to the trials having taken place in Nuremberg and Tokyo, whereas now we have international treaties dealing with international crimes, still the above-mentioned provision could open the way to improper use especially because it is not clear what are the criminal acts acc to general principles of law recognized by civilized nations. For instance, possible misuses could come from the punishing of acts other than international crimes Criminal law in the common law legal system – guest lecture There are some structural differences: COMMON LAW CONTINENTAL LAW Wide understanding of the principle of legality. It does not really recognize the importance of the formal aspect (fundamental in continental law) Strict understanding of the principle of legality Substantive and procedural issues are part of a whole Separation between substantive and procedural criminal law Case by case approach. From a case, we understand how it works in similar cases High level of theorisation and abstraction. We study general principles, a system of thought, and we use cases just as examples. It’s a theoretical construction The general (rules and principles) and special (the single offences are described and interpreted) part of criminal law are studied together Separation between the general and special part of criminal law Trend to give priority to subjective considerations. Of course, the harm caused is important, but the intentions of the offender are more important Prominence of the harm principle. Prosecution and punishment are legitimate insofar as they respond to a harm caused by the violation In common law, there is not the formal (or democratic) dimension → linked to the principle of separation of powers. Its main consequence is that in criminal law we need to have both crimes and penalties in statutory law approved by the parliament Case-law is not considered as a legal source in continental legal systems, even though there has been a growing recognition of the role played by judges in the process of creation of the norms to be applied to concrete cases The material dimension focuses on legal certainty: citizens must know which conducts give rise to criminal responsibility - Principle of non-retroactivity → no person can be convicted for a conduct which was not recognized as a crime at the time when it was committed - Principle of taxativity/precision → directed mainly to the legislator, requiring the law to be as precise as it can be - Principle of prohibition of analogy → it prevents judges from applying criminal norms to conducts that do not fall within the specifics of that criminal offence These principles apply to continental legal systems The common law system only has the material dimension, but both statutory law and case law are sources In common law systems, judges have a high level of judicial discretion in deciding specific cases, although there is the binding precedent rule, granting legal certainty. However, there is the possibility of departing from precedents through 2 rules: 21 - Overruling → when judges feel that the shared perception about a certain conduct within the society has changed throughout time - Distinguishing → judges do not expressly depart from another precedent but they focus on an element which allows them to say that the case is different than the precedent, and can in this way decided without taking the latter into account Criminal law is like a fabric made of different elements: principles, rules, standards, patterns set down in statutes and cases (Horder, 2019) Precisely because it is so important to manage all these sources, judges have such a discretion In continental legal tradition, there are specific rules stating in which cases and in which amount the judge can impose a higher or lower sentence. In common law, instead, the exact sentence is not predefined by the law Judges have to provide a reasoning Although it is true that there are structural and conceptual differences, the two legal traditions are approaching to each other: there is a growing number of matters in common law covered by statutory law. This makes common law more similar to the continental legal tradition There have also been some attempts to pass some model criminal codes both in the UK and in the USA → they don’t have legal force but they are used as models by all the states that want to adopt some legislation on the matter Very often, similar cases lead to similar outcomes in practice, regardless of the formal differences The structure of the crime In common law, the offence is formed of two parts: - Actus reus (conduct) → it is the part of the offence that describes the prohibited conduct, the consequences and the causational link - Mens rea (fault) → it describes the mental element of the subject performing the conduct in relation to the conduct itself: it can be intention, knowledge or recklessness All the elements of the offence have to be present Are there any defences? → procedural matters are considered as well In continental legal systems, the structure is: conduct, typical fact, unlawfulness, guilt, punishability Which are the conditions of criminal liability according to literature in common law? 1. Is there an act causing a concrete harm or a situation of danger? 2. Is there no permission to perform that act? (self-defence, necessity, consent) 3. Does the person performing the conduct have the age necessary to be considered criminally liable? (in the UK, the minimum age is 10) 4. Does the person have the mens rea? 5. Do excusatory defences apply? (duress, intoxication) There has not been an effort to build a complete theory about criminal law, the case-by-case approach is still preferred Strict liability (liability with no dolus nor culpa) is permitted in a huge number of cases The exercise of discretion does not lead to a coherent corpus of jurisprudence Judges tend to take harsh measures A person can only be convicted in cases in which the act was voluntary There are many cases in which criminal liability is accepted even though there is no act: 1. State of affairs → the simple fact to be a trespasser can be considered as an offence, as well as the simple fact of being the owner of a dog which injures someone 22 Ad hoc tribunals, established ex post facto Already established principles of individual responsibility Crimes recognized at the international level, not within the respective national legal systems Already existing ‘codification’ of international crimes Not voluntarily established by the state The UN has a different legitimacy than the Allies The crime of genocide was not present at Nurnberg There is a well-developed body of procedural law in accordance with the rule of law principle 1998: for the first time, there was the idea that one united world could be possible Pinochet, the dictator of Chile, was arrested → it was crystal clear that he committed crimes, but they were supported by the US so no one could do anything In 1998, times had changed. But nobody would believe that such a figure could be prosecuted one day A Spanish judge, based on a law in force back then in Spain which allowed judges to prosecute people from wherever, asked for the arrest of Pinochet, who was in the UK for medical reasons. The House of Lords agreed to the arrest The ICC (International Criminal Court) was established → finally, a permanent court was established↳ International crimes can now be prosecuted in conformity with the principles of criminal law (no retroactivity, …) The jurisdiction of the court is not imposed from outside, but it’s the states which voluntary decide to submit their citizens to the court by ratifying the statute of the court. Once the statute is ratified, it becomes directly binding for individuals Principle of complementarity → the ICC does not have either primacy over national courts or exclusive jurisdiction over international crimes The ICC intervenes only when the national system is not willing or able to intervene, but the states have primary responsibility International criminal law 1. PRINCIPLES OF JURISDICTION Criminal law is traditionally a national subject → it’s very hard for states to give away their jurisdiction in this field It’s linked to the sovereignty of the states It’s also very much linked to the cultural values and national identity of a certain system↳ Of course there are crimes mala in se, that are crimes everywhere, but there are also actions that are not accepted only in certain countries (e.g. abortion, polygamy, forced marriage) Criminal law is very much linked to the history of states → e.g. in states that suffered fascism/Nazism, there are laws that punish the denial of Holocaust Despite this, we have globalization → more and more people, migration, diversity Free movement of people also means free movement of criminals There are crimes that affect different countries (transnational crimes), and criminal organizations spreading in more than one country → joint investigation, problems of jurisdiction International crimes stricto sensu: war crimes, crimes against humanity, crimes of aggression, genocide → they affect the very core values of the international community. Therefore, they are addressed at the international level 25 We need a very strong cooperation The principle of jurisdiction helps us understand which court should take the lead in transnational crimes and which laws are applicable It may happen that more than one state wants to decide the case → risk of double jeopardy (ne bis in idem): no person shall be punished more than once for the same act The principle of jurisdiction is also helpful in order to avoid impunity and forum shopping (the person deciding to which court to go because it’s more convenient) General criterion to decide jurisdiction: there must be a meaningful (genuine) link between the crime and the state which takes the lead in the investigation Each state decides on the scope of application of its own national law Among these principles recognized in international law, some principles (territoriality and nationality) must be used more than others and are the two relevant in the statute of the ICC 1. Territorial principle A state is entitled to claim criminal jurisdiction over those crimes that occurred within its national territory (locus commissi delicti) Rationale: principle of territorial sovereignty and non-intervention It’s easier to find evidence in the place where the crime has been committed There can be some specificities, it can be not that easy to assess where the crime was committed What is the locus commissi delicti?  Where the perpetrator acted (conduct)  Where the result of the offence occurred  Principle of ubiquity → adopted by certain countries like France: both the act and the result are taken into account  Preparatory acts (Italy) Cybercrimes are → usually, location of the result: place where the incriminated content was accessed National territory → international law rules: crimes committed on board of ships or aircrafts → international flag principle 2. Nationality principle Nationality of the offender → every offender is subject to their national legal order Rationale: duty of allegiance, solidarity among states There are some states (Germany and Austria, for example) which don’t allow extradition for their own nationals Who is a national? - Citizens of a state - Domicile principle → permanent resident (in common law countries) - Naturalized citizens (for crimes committed before the naturalization) Restrictions:  Lex loci (double criminality) → the act must be punishable according to the law in force in the state where the crime was committed (if an act which is allowed in Italy, but not in Germany, is committed by a German citizen, he cannot be prosecuted)  Lex mitior → the penalty imposed by a domestic court must not exceed the penalty provided for by the law of the state where the crime was committed 3. Protective principles Jurisdiction to a state over all offences that violate or endanger its domestic legal interests, regardless of locus commissi delicti and nationality of offender → also crimes committed abroad by foreigners 26 Rationale: the state protects its own legal interests and its citizens’ interests  Protective principle stricto sensu It applies when the self-defence of the state and its institutions is at stake (“fundamental interests of the nation”) Offences related to the security of a state (espionage, high treason, preparation of war aggression), offences against the administration of justice (false statements in court, malpractice in office), environmental crimes, political crimes, bribery, corruption Rationale: the “genuine link” required by int. law is evident Often foreign criminal law does not protect the interests of the attacked state  Passive personality principle Law of the state of which the person(s) affected by the crime is a national (or permanent resident) Rationale: responsibility of any state to protect its citizens against infringements of their individual legal interests Restrictions: - Lex loci → the act must be a crime also under the law of the state of commission - Gravity → seriousness of the crime or list of specific offences (e.g. terrorism, parental abduction of children-see forced marriages) 4. Principle of universality The most important one Every state is entitled to exercise jurisdiction over certain offences without regard to the location of the offence, the nationality or domicile of the perpetrator or the victim Rationale: common security interests of all states are concerned or the legal interest infringed or endangered is of a global character (crime that affects values whose protection is considered a common task of the international community as a whole) Crimes against humanity, genocide, war crimes, terrorism, misuse of nuclear energy, trafficking of human beings, sexual offences against minors, … Aim: avoid risk of impunity, avoid the likelihood that states will not be able to prosecute their criminals First case: judge Garzón issued a warrant to arrest Pinochet (former Chilean dictator) → the case never went to court (Pinochet dies) but it’s an important precedent: possibility to have an effective tool to counter impunity The exercise of universal jurisdiction: - Is up to states to decide - Is a potential for victims relying on systems that can deliver justice - Is a difficult principle to exercise → evidence gathering, apprehending the person, immunities - Specialized units within the judiciary are needed - Role of NGOs: initial triggers, support in evidence gathering, no need for the agreement of states Individuals are easier to be dealt with, but also leaders can be investigated (e.g. Pinochet) In the last few years, this principle became more popular ICC → initially, Germany proposed to grant universal jurisdiction to the ICC, but this was very much criticized (mainly by the US) and so was never applied Two main criteria (art.12 and 13 of the Statute of Rome): territoriality and nationality Cooperation is necessary 5. 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 27  International criminal institutions are marked by multiple paradoxes. There is a strong discrepancy between reality and expectation.  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’, contributing to the ‘restoration of peace’).  The ICC has been successful in contexts where it operated with the support of governments. It has struggled to pursue cases challenging the authority of recalcitrant regimes (e.g. Sudan, Kenya).  Investigations limited to easy targets: non-Western powers or non-armed groups (criticisms that the Court is too consensual).  Criticisms of colonialism and hypocrisy.  Struggle for funding. Transitional justice → conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes “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.” The term emerged at the end of Cold War → before, it was called “justice after atrocity” or “restorative justice” (but not only addressing to transition processes) Evolution of transitional justice: - Post-war period → Nurnberg trials, retributive approach and modern human rights law as a legacy - Post-cold war period → “third wave of democratization” (collapse of the USSR and of South American military regimes) More and more domestic trials More pragmatic idea of the rule of law → look at the context in which the conflict took place and decide the best tool to achieve reconciliation Search for the historical truth, not only the legal truth Involvement of non-state actors However, in this period we have ICTY and ICTR - Contemporary situation of persistent conflicts → end of the 20th century Globalization, interdependence, constant political instability and violence The ICC was established; humanitarian law was expanded also in peacetime contexts “Normalization of transitional justice” → regimes now change continuously Hybrid tribunals were also created (e.g. Special Tribunal for Lebanon) Goals of transitional justice:  Re-establish the rule of law  Find truth (individual and collective)  Achieve justice and peace (rebuild a functioning society, reconciliation) A mixture of political and legal approaches is used 3. ELEMENTS OF CRIME AND CRIMINAL RESPONSIBILITY IN ICL Material element (actus reus): - Conduct - Consequence/result – causation 30 - 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 Mental element (mens rea) → art.30 ICC Statute: unless otherwise provided, liability is only recognized with intent and knowledge  Conduct: intent  Consequences/results: you want to act in that way, knowing the consequences that will occur  Circumstances: awareness that they exist Dolus eventualis (recklessness) seems to be rejected by the wording of art.30, but it was recognized in certain cases → Lubanga and Katanga There might be cases where either higher or lower levels of mental element are required:  Command responsibility has a negligence standard (lower)  Genocide requires specific intent (higher) → you have to prove that the person had the specific intent to destroy a population: that’s why it’s difficult to prove and used less than crimes against humanity GENERAL PRINCIPLES There are two problems related to the principle of legality and the principle of individual criminal responsibility The principle of legality is introduced by the Rome Statute: - Art.22 : nullum crimen sine lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. - Art.23 : nulla poena sine lege A person convicted by the Court may be punished only in accordance with this Statute There is not an international prison, the place of imprisonment is a bit random (according to certain conditions) Death penalty is not allowed - Art.24 : non-retroactivity ratione personae 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply. The principle of individual criminal responsibility poses some doubts In national systems, there is not a collective criminal responsibility The Nurnberg Trials affirmed the capacity of individuals to commit crimes under IL → under international law, only states are accountable This principle is important to avoid generalization, collective blame, fragmentation of societies It’s important to acknowledge that in conflicts, both parties commit crimes → important to rebuild a society There has been a tendency to prosecute only the big fish → “smaller” criminals are prosecuted in national courts Accountability tends to focus on leaders, those that are at the higher level of the chain of command:  Symbolic function  Disrupting power structures → if I take away the head of power, it’s going to be difficult to replace him 31 However, this requires significant evidence, which is hard to find → nowadays, we rely much more on videos taken by witnesses/victims/people involved and in these cases we see the actual perpetrators, not the people giving commands LEVELS OF RESPONSIBILITY: 1. Leadership actors → decision-making powers 2. Agents → planning/organization 3. Executors → those who execute the crime There always must be a proper link between the person and the crime → apart from specific circumstances listed in the statute, I can’t respond for conducts committed by someone else Conducts can be attributed to him Art.25 Rome Statute: individual criminal responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 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: a. Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; b. Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; c. 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; d. 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: i. Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or ii. Be made in the knowledge of the intention of the group to commit the crime; e. In respect of the crime of genocide, directly and publicly incites others to commit genocide; 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. 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. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law. THEORIES OF CO-PERPETRATION Joint Criminal Enterprise Objective prerequisites: - 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) When we judge someone, we have to be sure that the prosecuted has at least contributed to the commitment of such crimes 32 (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control The protected interests are very limited → you cannot protect property The responses must be necessary (very difficult to assess), the most lenient and at the same time effective It must not be intended to cause a greater harm than the one sought to be avoided It does not apply in cases where the person puts him/herself in a situation in which it is likely that he/she will be asked to commit crime (or of self-induced threat) Mistake of fact or mistake of law - Mistake of fact → e.g. a soldier who employs bullets, which expand or flatten in the human body, without knowing the nature of the ammunitions Of course we must assess why he didn’t know that - Mistake of law → an exception to the principle ignorantia legis non excusat No responsibility without culpability Is a reasonable person expected to be aware of the illegality of a particular conduct under international law? (e.g. could a common soldier know all norms regarding war crimes?) Art.32: 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, 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. Superior orders, when a moral choice is not possible to the subject Art.33 → duty to disobey manifestly unlawful orders 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 There is no immunity with regard to international crimes, but immunities are still used in domestic jurisdictions and this may be a problem ERDEMOVIC CASE He did not put himself in the situation, was threatened to death, and the threat was imminent He turned himself to the ICTY, pled himself guilty and fully cooperated with the ICTY The ICTY looked at some elements: - Immediate and serious threat - No means of escape - Act not disproportionate to the threat 35 Duress and superior order were only accepted as a mitigating circumstance Important factor according to the dissenting opinion: the crime would have been committed anyway 4. GENOCIDE Genocide is the crime of crimes → but does this mean that there is a hierarchy among crimes? And among victims? Origins of the term: genos (race or tribe) + caedere (to kill) Raphael Lemkin, Axis Rule in Occupied Europe (1944) → (…) 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.” Another definition by the UN GA (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” “Destruction” is meant in a holistic sense: political and social institutions, culture, language, national feelings, religion, economic existence… Groups are attacked for being, not for doing something In the late codification, genocide was often committed or tolerated by states → there was reluctance to punish perpetrators Now, the prohibition of genocide is a jus cogens norm, an erga omnes obligation First attempt to prosecute genocide → Treaty of Versailles (1919): it set up the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties Its mandate was to investigate the violations of international law committed by Germany 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.) Recommendation: establishment of a high tribunal that could judge on offences against “the laws and customs of war” and “the laws of humanity” The new crime “against the laws of humanity” was proposed by the Greek members of the commission in order to also punish the massacres of the Armenians committed by the Ottoman empire (1915)↳ 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 At the Nurnberg trials, Holocaust was 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) The term “genocide” was used during the pleading by the prosecutor but not in the judgment There was reluctance to use the term for political but also for legal reasons → crimes against humanity are easier to prove 36 The Nurnberg Trial shed light on genocidal policies and this contributed to the drafting of the Genocide Convention “The crimes prosecuted by the Nurnberg 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) SOURCES  UN GA Resolution 96(I) 1946 o It encompassed other groups as well o It recognized physical, biological and cultural genocide o It was aimed at formalizing universal jurisdiction Its scope was reduced during the drafting of the Convention  Convention on the Prevention and Punishment of the Crime of Genocide (1948, entered into force in 1951)  ICTY and ICTR Statutes  ICC Statute  International Court of Justice: o The prohibition of genocide is a norm of just cogens (2006) o The prohibition of genocide possesses “the existing requirements of customary international law” The Genocide Convention 1948 Aims: - Oblige State parties to criminalize and punish genocide - Provide judicial cooperation for the suppression of the crime (including prevention and extradition) - Provide protection in times of both war and peace It is considered the first human rights treaty adopted within the United Nations Art.2 provides a definition which remained unchanged: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” The crime is directed at specific groups recognized under international law (national, ethnic, racial or religious groups) Political opponents and state assigned social classes are not protected The purpose is to protect groups with a certain stability (criticized), but also to leave unpunished crimes such as those committed in the USSR (killing of political opponents) Criticism: it’s too limited States are free to broaden the definition and protection in national law How are protected groups identified? → Akayesu judgement (ICTR, 1998) “(The group must be) constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more “mobile” groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.” 37 Convention 1948: territorial jurisdiction + international jurisdiction ICTY and ICTR Rules of Procedure and Evidence recognize universal jurisdiction → domestic legislation enables universal jurisdiction Duality of responsibility Individual criminal liability: - Commission of genocide - Conspiracy - Direct and public incitement - Attempt - Complicity State responsibility (art.1, 5, 8):  Prevent  Punish  Refrain from engaging in genocide (stated by the ICJ in Bosnia v Serbia, 2007) However, there is no specification of their obligations. Most states focused on legislation criminalizing and punishing genocide, but not many measures were taken in prevention of genocide apart from criminalization In 2007 the ICJ in Bosnia v. Serbia (regarding the genocide of Srebrenica) clarified what the “obligation to prevent” means → ‘[t]he obligation to prevent the commission of the crime of genocide is imposed by the Genocide Convention on any State party which, in a given situation, has it in its power to contribute to restraining in any degree the commission of genocide.... [T]he obligation to prevent genocide places a State under a duty to act which is not dependent on the certainty that the action to be taken will succeed in preventing the commission of acts of genocide, or even on the likelihood of that outcome’ Adolf Eichmann, head of the Gestapo, was singled out in Nurnberg as the main responsible for the Final Solution of the Jewish Question. He escaped the capture and migrated to Argentina, where he was abducted by Israeli secret services (Mossad) and then tried in front of the Jerusalem District Court in 1961 The Eichmann trial (1961): - Jurisdiction → the 1950 Law (Nazis and Nazi Collaborators Punishment Law) recognizes jurisdiction under a universal principle (also crimes committed against non-Jews) There are also a protective principle (stricto sensu) and passive personality principles for crimes committed against Jews - Indictments o Crimes against the Jewish people (a specific case of genocide) o Crimes against humanity o War crimes o Membership in a criminal organization (SS, Gestapo) The defence contested the jurisdiction of the court → retroactivity and sovereignty The acts were carried out by Eichmann in the course of duty on behalf of the state, he complied to superior orders All defences were rejected: - Customary international law - Law 1950 had a mere declaratory effect - The orders were manifestly unlawful - He enjoyed wide discretionary powers - He performed his duties with devotion He was convicted for all four indictments to death penalty 40 This case is seen as a consolidation of the legacy of Nurnberg Milestones of the case: universal jurisdiction and conviction by a national tribunal of a foreign official acting in this capacity 5. CRIMES AGAINST HUMANITY Genocide v crimes against humanity  Commonalities: o Very serious attacks against human dignity o They often take place in a larger context, in a large scale → multiplicity of acts o They are often committed with the complicity/connivence/toleration of state officials  Differences: o Genocide targets specific groups, whereas under CAH the full civilian population is protected o Actus reus → there is always a specificity either in the contextual element or in the mens rea that distinguishes the two types of crimes CAH are related to humanitarian principles governing armed conflicts The term was used for the first time in 1915 to refer to the Armenian mass killing The term was codified for the first time in the Nurnberg Charter (art.6) → first time in which the conduct of a state against its own citizens becomes a matter of international law It was later enshrined also in the Nuremberg Principles, and in the ICTY, ICTR, ICC Statutes The definition of CAH changed in time → it aimed at encompassing more and more conducts, to enlarge protection for the victims However, we lack an ad hoc convention protecting CAH as such → it would be difficult to encompass them all Art.6(c) Nurnberg Charter: “…murder, extermination, enslavement, deportation, and other inhumane acts 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 country where perpetrated” First step of recognition: every civilian population is protected (for the first time, even the one of the state perpetrating the acts), but it’s still connected with war, and it should be committed in connection with war crimes or crimes against peace↳ At the beginning, it was seen as an extension of war crimes Later on, dignity became central It was the first definition → discussion about the principle of non-retroactivity But it is said that CAH were already part of customary law, so the Nurnberg Charter only had a declaratory character Requirements in the ad hoc tribunals: - ICTY: when committed in an armed conflict, whether international or internal in character, as part of … - ICTR: when committed as part of … on national, political, ethnic, racial or religious grounds (discrimination) These requirements disappeared nowadays Art.7 ICC Statute: 1. List of acts which are recognized as CAH 2. Committed as part of a widespread or systematic attack... 3. …directed against any civilian population… 4. …with knowledge of the attack 41 There is no nexus required to other crimes, an armed conflict or discrimination It also enlarges the categories of punishable conducts → there is an open clause: “other inhuman acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” Normative theories (protected interests):  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 (CAH as the result of state policies that promote or tolerate such crimes). However, nonstate actors can commit CAH as well Material elements (actus reus) in ICL: - Conduct - Consequence/result – 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 Two types of conducts → murder-type (murder, extermination, enslavement, deportation, torture, sexual offences, enforced disappearance), also criminalized in domestic systems, and prosecution related (modern slavery, sex-related persecution), not always prohibited at national level Contextual element: the crime is committed as part of a widespread or systematic attack directed against any civilian population  An attack does not need the use of armed forces → it can also be caused by any other form of mistreatment  The civilian population must be the primary target of the overall attack Widespread: referring to the quantitative element We look at the scale, the number of victims, the consequences of the attack on the population, the geographical area involved Systematic: referring to the qualitative element Organized nature of the violence, repetition of similar conducts…, the existence of a plan, policy, ideology The involvement of high-level military or political leaders (also paramilitary) is not required but often present What are the indicators of an attack? We need a minimum scale → multiple acts We also need a minimum level of collectivity → an attack shall come from a collectivity of people These minimum levels are necessary in order for the act to be considered as an attack → then, the act must be widespread (higher scale) or systematic (coordination among the acts) This excludes isolated crimes and unconnected crimes After the Nurnberg trials and before the establishment of the ICC, there used to be a governmental policy → there needed to be a policy/direction/encouragement of a state or organization In the Rome Statute, this is not required → but the word “attack” requires some form of coordination, meaning that some organization is usually working behind that It’s speaking about any collective effort 42 Forced pregnancy It caused some discussions at the beginning → problem that in many countries, abortion is prohibited The fear was that the crime of forced pregnancy would be granted when a woman could not engage in an abortion → this definition shall not in any way be interpreted as affecting national laws relating to pregnancy Definition: 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 Enforced sterilization 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 Other forms of sexual violence The requirement of gravity is made in order for the statute to comply with the principle of legality Definition: (I) 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 (II) By force or threat of force or coercion and (III) The gravity of the conduct was comparable to the other offences in Article 7(1)(g) Forced marriage It’s a marriage without the consent of at least one partner We find this crime in domestic jurisdiction as well We are traditionally used to talk about crimes stemming from customs, tradition We find this problem very often within immigrant populations in Europe, but until some decades ago this was very widespread here as well Forced marriage as a crime goes beyond sexual slavery and rape ↳ Within forced marriage, there is an additional trauma and stigma deriving from the imposition of the status of «wife» of the perpetrator PERSECUTION Persecution involves the intentional and severe deprivation of fundamental rights, against an identifiable group or collectivity on prohibited discriminatory grounds → political, racial, national, ethnic, cultural, religious or gender, or “other grounds that are universally recognized as impermissible under international law” Severe deprivation of fundamental rights: (1) a gross or blatant denial (2) on discriminatory grounds (3) of a fundamental right, laid dawn in international customary or treaty law, and (4) reaching the same level of gravity as other crimes against humanity There must be an intent related to the act → specific intent of discrimination ENFORCED DISAPPEARANCE Arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of law for a prolonged period of time It was widely spread in Latin America 45 Elements of crime: (a) by arresting, detaining or abducting a person, with knowledge that a refusal to acknowledge or give information would be likely to follow in the ordinary course of events; or (b) by refusing to acknowledge the deprivation of freedom or to provide information on the fate or whereabouts, with knowledge that such deprivation had occurred The people surrounding the victim are additional victims of the crime, indirect victims APARTHEID For the first time crystallized within the Statute “Inhuman acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime” OTHER INHUMAN ACTS Enacted in order to enlarge protection to cases that were not envisaged yet They must be of a similar character to prohibited acts; and cause great suffering or serious injury to body or to mental or physical health 6. WAR CRIMES We are in the field of ius in bello → rules governing an armed conflict Ius ad bellum is different → rules that govern the act of initiating a war Ius in bello is governed by international humanitarian law, and it applies to all conflicts, regardless of whether the war is just or not We can’t prevent an unjust war; we cannot eliminate war → this is more a political aim We can try to minimize the harm and suffering done to combatants and civilians They always need to balance between military and humanitarian consideration We have stricter rules, more groups of people being protected, a broader application (in many internal conflicts, IHL is applicable) War crimes are a smaller unit within IHL → they are grave breaches of IHL War crimes address individuals, whereas IHL as such addresses states IHL Regimes:  Hague law → intended to limit the consequences of harm on the enemy (it protects soldiers) It 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”)  Geneva law → intended to protect victims of armed conflicts (civilians) Other categories are protected: prisoners of war, detainees, humanitarian aid workers, …) Conventions signed in Geneva at first in 1864 (after creation of the ICRC), 1929 and then in 1949 (Four Geneva Conventions) + 1977 Additional Protocols Nowadays, both the Hague regulations and the Geneva Conventions have become customary law Even if a state is not a party of those conventions, it needs to comply with them Civilians should not be targeted as such → when this is not possible, the harm shall be limited The interest protected is peace → both maintaining and restoring peace after conflict War crimes as violations of IHL principles: 1. Protection of non-combatants: civilians, prisoners of war, wounded, etc. Property is also protected 46 2. Principle of distinction: obligation to distinguish civilians from members of the military. Only military objectives. 3. Principle of proportionality (collateral damages) 4. Prohibition of employing weapons, etc. that cause unnecessary suffering (biological, nuclear, chemical weapons) 5. Prohibition of the use of child soldiers became a principle (Lubanga) Contextual element: armed conflict → “resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state” (ICTY, Tadić) There must be a necessary link between the perpetrator and the conflict The crime was 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” Perpetrator: does not need to be a combatant (civilians can commit 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 In the case of internal conflicts, there is a threshold: - A certain intensity of the armed violence, protracted over time - Intensity of the hostilities - Capacity (and organization) of armed groups to carry out attacks We cannot talk of war crimes when we have sporadic acts of violence Is a conflict internal or international?  Invitation to a second state to assist in the fight of internal armed groups → internal  Wars of national liberation/resistance to colonial powers → it’s controversial  Proxy forces – local armed forces acting on behalf of another state → it’s controversial  State vs. non-state armed group within another state → it depends The ICC lists 50 offences and there is no open clause However, the ICC can appeal to customary law in order to enlarge the list of offences War crimes in international armed conflicts:  Grave breaches of the Geneva Conventions, 1949 → art.8(2)(a) ICC Statute Wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injuries, extensively destroy or deprive of property, unlawfully deport or transfer, unlawful confinement, taking of hostages, …  Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law → art 8(2)(b) ICC Statute Attacks against the civilian population or objects, employing poison or poisoned weapons, … These violations come from the Hague law (protection of soldiers) No criminalization of the use of nuclear weapons → they violate the principle of proportionality, of distinction (it targets both the military and civilians) and therefore it should enter into customary law, but this is not the case yet War crimes in non-international armed conflicts:  Serious violations of art. 3 common to the four Geneva Conventions, 1949 → art. 8(2)(c) ICC Statute It protects rights and interests that should be protected in any context, at any time It provides for a minimum standard Violence to life and person, humiliating and degrading treatment, arbitrary executions, taking of hostages 47 The mental element is intent of the conduct + awareness of the aggressive war/attack 8. THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA It was settled because there was a lot of evidence that serious violations of humanitarian law and of human rights were taking place in the Balkan region This evidence was gathered by international observers Very strong participation of the international community The tribunal itself was set up already during the conflict → it was the first time Evidence of crimes → mass killings and population transfers, organized rape and torture, imprisonment of civilians and attacks on non-combatant populations, the destruction of towns and cultural property, and ethnic cleansing Factors that led to the establishment of the ad hoc tribunal: - High level of activity enjoyed at the UN SC following the end of the Cold War - Development of international humanitarian and international criminal law which provided for a body of applicable existing rules upon which the ICTY’s statute could be based - Interpretation of ‘threat to international peace and security’ to include intra-State conflict and widespread violations of basic human rights Legal basis:  UN SC Resolution 808 (1993)  UN SC Resolution 827 (1993)  Adopted under Chapter VII UN Charter, art.39: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” Why UN SC Resolution? A UN SC Resolution would allow immediate creation and jurisdiction over the territory of former Yugoslavia irrespective of the consent → different than if they had ratified a treaty Moreover, all the states had the duty to cooperate with the ICTY → including duty to surrender indicted persons The SC had mandatory powers → power of sanctions and use of force to enforce judgements Aims: 1. Deter from the commission of further crimes (conflict still ongoing) 2. Contribute to restore peace and reconciliation within the society 3. Bring the responsible to justice (avoiding collective responsibility) The Tribunal was established in 1993 in the Hague and dissolved in 2017 First prosecution: 1994 The ICTY was composed of 16 permanent judges (2 of them were also working for the ICTR) and all of them were of different nationalities↳ They were elected by the UN GA based on propositions of states for a term of 4 years (with the possibility to be re-elected) 27 judges ad litem → they helped the permanent judges in solving the cases and could serve for a max of 3 years 50 Art.13 ICTY Statute: Judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices↳ Judges or academics in criminal and international law + humanitarian and human rights law There was also an appeal chamber → this is the first time that an international tribunal was provided the possibility to appeal The prosecutor was appointed by the UN SC on nomination of the UN Secretary General (term of 4 years) JURISDICTION  Ratione personae: crimes committed by natural persons (this is what distinguishes international responsibility from international criminal responsibility)  Ratione loci: crimes committed in the territory of the former Socialist Federal Republic of Yugoslavia  Ratione temporis: crimes committed between 1991 and 2001  Ratione materiae: o Grave breaches of the Geneva Conventions (art. 2 ICTY Statute) o Any serious violation of the law and customs of war (art. 3 ICTY Statute):  Violations of Hague law (1899 and 1907)  Infringements of the Geneva Conventions not classified as “grave breaches”  Violations of common art. 3 GC and other customary rules in internal conflicts  Violations of Treaty law o Genocide (art. 4 ICTY Statute) o Crimes against humanity committed during an armed conflict (art. 5 ICTY Statute) The jurisdiction of the ad hoc tribunal and the domestic are concurrent → they both can try the same cases, but the ad hoc tribunal has primacy (different than ICC, which has a subsidiary function) The ad hoc tribunal could ask to defer proceedings and to retry a person if the national proceeding was: - For an ordinary crime - Not impartial or independent - Designed to shield the accused from international criminal responsibility - Not diligently prosecuted The states had a duty to cooperate → the enforcement of the sentences takes place in different countries The International Residual Mechanism for Criminal Tribunals:  Was established in 2012/2013 by the UN as a successor of the two ad hoc tribunals  It secures and brings to trial remaining fugitives  It protects and supports victims and witnesses  It provides assistance to national jurisdictions  It supervises the enforcement of sentences of the ad hoc tribunals  It preserves the archives of the two tribunals  It carries out appeals and reviews CONTRIBUTIONS OF THE ICTY TO IHL AND ICL “Armed conflict”: “resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state” (Tadić, 1995) → extension to internal conflicts, provided that they are protracted 51 Theory of joint criminal enterprise: individual liability for committing the crime as part of “a plurality of co-perpetrators who act pursuant to a common purpose” → the collective element is the subjective one, the common purpose (Tadić, 1995 and 1999) Cumulative convictions (Čelebići test): multiple convictions for the same conduct are permitted only when: - The conduct relates to crimes under distinctive provisions of the ICTY Statute and - Each crime contains a materially distinct element (not contained in the others) which requires proof of a fact that the elements of the other crimes do not require e.g. rape can fall under genocide, CAH and war crimes if it is committed during an armed conflict, against a member of protected group, with the intent to destroy that group, if there is a widespread and systematic attack against the civilian population (and knowledge of it) Definition of the elements of crimes:  “Destruction” (genocide) means “physical or biological” destruction (Krstić, 2001)  “In whole or in part” (genocide) can mean qualitative or quantitative (Krstić, 2001)  “Persecution” (CAH) is an act which denies/infringes upon fundamental rights, carried out deliberately with the intention to discriminate based on race, religion or politics Sexual violence (and enslavement) can be recognized as crimes against humanity (Kunarac et al., 2002) THE RWANDAN GENOCIDE: BETWEEN INTERNATIONAL AND LOCAL JUSTICE This tribunal worked a bit differently than the ICTY ICTY ICTR Focus on prosecuting individual perpetrators Genocide committed among people living together, often committed by civilians, on a massive scale No impunity Strong need of reconciliation Trials at both domestic and international level Transitional justice on 3 levels: - International prosecutions (ICTR) - National prosecutions (Tribunals) - Local mechanisms (among which Gacaca courts) Strong involvement of the international (mainly European) community both during and after the conflict The Rwandan genocide Polarization between Hutu and Tutsi → a legacy of colonialism Tensions increased in 1990 → civil war (1990-94) 6/04/1994: the plane of the president was shot down by unknown attackers → this was the trigger for the beginning of the genocide 100 days, 800000-1 million victims, mainly belonging to the Tutsi. Moderate Hutu were victims as well High participation of military and political leaders but also of civilians 52 10. THE INTERNATIONAL CRIMINAL COURT The establishment of the ICC was the result of an intense negotiation In 1998, 120 states adopted the Statute of the International Criminal Court in Rome → now, it’s 123 state parties + Armenia It entered into force on 1 July 2002 after the ratification by 60 states Jurisdiction ratione materiae: - Crimes of aggression (only for those states which have ratified the Kampala agreements) - Crimes against humanity - War crimes - Genocide It is a permanent court, aspiring at the entire international community (universal aspiration) It is binding only to the parties of the statute Its consensual elements make the ICC more similar to a treaty-based institution than to the ad hoc tribunals established under UN SC resolutions Jurisdiction The ICC has no universal jurisdiction, it is binding only to the parties to the statute Art.12 ICC Statute: principles of territoriality and of active nationality Persons must be older than 18 at the time the crime was committed The UN SC can extend the ICC’s jurisdiction, but there are political obstacles States can opt in according to art.12(3) Trigger mechanisms Art.13 ICC Statute: - State referral, as well as self-referral (DRC, Uganda, Mali) - UN SC referral → when there is a threat to peace, a breach to peace or an act of aggression It can refer to crimes committed in states that are not members of the ICC Statute as well (Darfur, Libya, but permanent members vetoed) - Proprio motu action by the ICC Prosecutor → authorization of the pre-trial chamber is required because of checks and balances (Kenya, Cote d’Ivoire) Principle of complementarity Art.17 ICC Statute: states have primary responsibility to investigate and prosecute international crimes → preservation of sovereignty The ICC comes into play when no domestic investigations or prosecutions are initiated and when domestic institutions are not able or willing to intervene There must be substantial overlap of the investigations at the two levels Both the states and the ICC have jurisdiction, the issue here is defining the exercise of jurisdictions The Court cannot exercise its jurisdiction if a case is inadmissible CHALLENGES:  Lack of enforcement power → the Court relies on state cooperation both to investigate, to acquire evidence and to enforce its decision  Intervention in ongoing conflicts → problems for prosecutors and possible consequences of their action on the conflict 55 ACTORS 1. Prosecutors a. They are elected by the Assembly of the State Parties b. They start the case c. They assist the judges in discovering the truth d. They are bound by objectivity e. They must take into account the needs of victims f. They are independent, although politics plays a big role g. They can take action proprio motu, with the control of the pre-trial chamber 2. Defence a. Right to a fair trial b. Equality of arms c. Integrity of the proceedings and process of truth finding d. However, there is a lack of substantive equality → less means and resources, later investigation, less cooperation of state authorities 3. Counsels a. They are appointed and funded by the ICC if the defendant lacks means b. The suspects/accused have the right to represent themselves, but it’s not unlimited c. They must follow the interests of the client but not obstruct justice d. The accused must be present during trial 4. Judges a. 18 judges, appointed for 9 years and elected by the Assembly of State Parties b. Persons of high moral character, integrity, impartiality who possess the required qualifications in their respective states for the highest judicial offices (not all of them were necessarily judges before) c. Equitable geographical and gender representation d. Knowledge of criminal law or international law Their functions include:  Interpretation of the law → the elements of crime are very detailed so as to limit the judges’ discretion  Fact finding (request evidence, witnesses, visit the crime scene)  Administration of justice (managing proceedings in a fair and efficient way, guaranteeing the rights of the accused) 5. Victims a. They have an increasing role and are actors in international criminal proceedings b. Rights to access to justice, to an effective remedy, to truth c. Restorative justice influence d. They give contributions: i. During the pre-trial phase (impact on prosecutors’ decisions): observations regarding jurisdiction and admissibility ii. They present their views and concerns at any stage when their interests are affected, they interrogate witnesses and contest evidence through a legal representative iii. Individual victims must demonstrate the link between the direct or indirect harm caused to them and the charges brought against the accused There is a Trust Fund for victims → reparatory and compensatory payments for victims and victim support Usually, there is collective representation The rights of the accused prevail (art.68(3) ICC Statute) Prosecution The suspect is identified, then specific charges are formulated and lastly modes of liability are identified 56 1. Preliminary examinations → they help the prosecutor deciding whether to initiate an investigation 2. Investigation → situations defined in geographic and temporal terms If there are reasonable grounds to believe that the person committed the crime, a warrant of arrest is formulated; the suspect is arrested and there is pre-trial detention (which relies on states’ enforcement power and police forces). The evidence is disclosed 3. Prosecution → cases in relation to one or more accused The court must select the regions, the conflicts, the crimes, the actors It has a discretion on when to bring charges, whom to indict and in which order If crimes under the jurisdiction of the ICC have been committed and they are of sufficient gravity, they are selected by the court How to assess gravity? - Generic assessment - Scale of crimes (number of crimes and of victims) - Nature of crimes (killing, sexual violence, …) - Manner of commission (systematicity, cruelty, discrimination, …) - Impact (suffering, damage, …) Steps:  Objectivity: looking at all parties to the conflict  Selection of potential perpetrators → gravity of crimes, degree of responsibility (there is a focus on those bearing the greatest responsibility, big fish), potential charges  Available evidence  Possibility to secure the offender  Future on ongoing crimes The court collects material coming from states, NGOs, fact finding bodies which needs to be analysed, selected, verified and tested It’s used in court only if relevant, credible, accurate and reliable Evidence may be: o Direct (videos) o Circumstantial → it tells only a part of the story that needs to be reconstructed o Documentary → documents that prove orders and commands, plans or policies o Witness testimonies o Physical (forensic evidence) It can be about the crimes, about the context and about the link between the perpetrator and the crime Appeal is allowed on errors of law or fact and a case may be sent back to the chamber that issued it The Evolution of EU Criminal Law & the Protection of Fundamental Rights The focus of the European Community was the internal market Elimination of internal borders to ensure the free movement of goods, persons, services and capital Creation of a new legal order that became an integral part of the legal system of MS → directly applicable Initially, there were no competences in criminal matters → for long, MS refused to grant competences to the European Community in the area of criminal law↳ Issues of sovereignty and democratic deficit (the Commission and Council are not elected) Instead, they favoured cooperation in criminal matters 57 This means: - Implementation of Union measures into national law - Enforcement of Union legislation - Cooperation with the Commission - Cooperation with law enforcement authorities of other MSs Enforcement criteria → case Commission v Greece (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. 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.”  Effectiveness → if violations of Union law occur, the system must be capable of responding to them. It must be possible to impose a penalty  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 → 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 2. Other principles related to the protection of HRs, especially in the area of criminal law The evolution went along with the acquisition of competences in the area of criminal law Stauder 1969 (ECJ): for the first time the ECJ states that "Fundamental rights [are] enshrined in the general principles of Community law and protected by the Court.” Nold 1973 (ECJ): “as the court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures (…) in safeguarding these rights, the court is bound to draw inspiration from constitutional traditions common to the member states, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the constitutions of those states.” The first treaty that officially recognized the protection of FRs is the Treaty of Maastricht → art.6: The Union is founded on principles of liberty, democracy, respect of human rights fundamental freedom and the rule of law, principles which are common to the Member States The Union shall respect the human rights as guaranteed by the European Convention on human rights and fundamental freedoms signed on Rome on 4 November 1950 and as they results from constitutional traditions common to the member States as general principles of law The Union shall respect the national identities of its Member States Relationship ECHR-EU: Matthews 1999 (ECHR) “Acts of the European Union as such cannot be challenged before the European Court of Human Rights because the European Union is not a Contracting Party. The European Convention on Human Rights does not exclude (prohibit) the transfer of competences to international organizations provided 60 that Convention rights continue to be secured. Member States responsibility therefore continues even after such a transfer.” MS are responsible for the respect of human rights even if that implies an infringement of EU Law The Charter contains provisions with regard to criminal law → art.47 to art.50: - Art.47: right to an effective remedy and to a fair trial - Art.48: presumption of innocence and respect for the right to defence - Art.49: principles of legality and proportionality of criminal offences and penalties - Art.50: ne bis in idem principle Victims’ rights: Directive 2012/29  Right to information and support  Right to participate in criminal proceedings (r. to be heard; restorative justice programs, etc.)  Protection of victims with specific needs Ne bis in idem principle Art. 54 CISA (Convention on the Implementation of the Schengen Agreement): “A person whose trial has been finally disposed of in one contracting party 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" Art. 50 Charter: No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law. Art. 4 protocol 7 ECHR: No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. No derogation from this Article shall be made under Article15 of the Convention (time of emergency). Art.54 CISA and art.50 Charter have a transnational effect → needed for mutual assistance and recognition Art.4 protocol 7 has a national effect → criminal v administrative proceedings In the end, administrative proceedings may have similar consequences to criminal proceedings What is exactly a criminal proceeding? There is no commonly agreed definition of criminal law. Many administrative/disciplinary proceedings should be treated as criminal for the effects they have The European Court of Justice (ECJ) builds on the jurisprudence of the European Court of Human Rights (ECHR) to define a proceeding as “criminal” Three criteria (alternative, not cumulative) developed by the ECtHR to define whether a proceeding is criminal in nature: 1. Classification of the offence 61 2. Scope of the norm → is it addressed to the general public or to some specific people? Purpose of the penalty → is it punitive and deterrent? 3. Nature and severity of the sanction EU accession to the ECHR Advantages: - The EU's accession will strengthen the protection of human rights in Europe, by submitting the EU’s legal system to independent external control - It will also close gaps in legal protection by giving European citizens the same protection vis-à- vis acts of the EU as they presently enjoy vis-à-vis acts of the Member States - Accession would minimize the risk of the two courts arriving at diverging interpretations of human rights standards. - EU’s accession to the ECHR will send a strong signal to third countries that are frequently called into account by the EU in relation to human rights issues. By acceding to the ECHR, the EU will demonstrate that it too is willing to submit to external scrutiny Problems: o Who should be judge for the EU (which nationality)? o Problem of possible domination of the EU inside the CoE o It could be problematic to insert EU bodies in the mechanisms of the CoE o Question of sovereignty 62