Criminal law notes for CEILS students., Appunti di Diritto internazionale penale

Scarica Criminal law notes for CEILS students. e più Appunti in PDF di Diritto internazionale penale solo su Docsity! CRIMINAL LAW Theories of punishment If you break the law, you have to be punished, but why do we punish criminals? There's a fundamental distinction between absolute and relative theories: 1.Absolute theories are those looking backward: offenders are punished “quia peccatum est”, because they committed a crime. "Tot crimina, tot poena" which is the biblical Law of Talion (an eye for an eye). Penalty is a reaction of society to the fact that a crime has been committed and punishment is based on vengeance instinct. 2. Relative theories, on the contrary, look forward: punishment has a specific goal: the offender is punished “ne peccetur”, i.e. to prevent future crimes. Punishment is aimed at preventing future crimes. According to this theory penalty is a mean to an end and its goal is to reduce the number of future crimes and rehabilitation. There are 3 fundamental theories explaining why we punish criminals and in each one the purposes of punishment have a different phase. Additionally to the three possibilities we will see, there is another option -> restorative justice meaning the possibility to compensate the victim and the compensation is relative and different from victim to victim. It is a dialogic justice between the victim and the criminal and a different way to look at punishment. • Retribution (absolute theory) -> Historically, we have three forms of retribution: 1. Divine retribution: persons who commit crimes also violate a superior law offending God and therefore he delegates judges on earth to restore the justice -> punishment seen as a cathartic path for the offender = he has to promise he will respect the law in the future 2. Moral retribution: Kantian doctrine -> Justice is conceived as a part of the so called categorical imperative = unconditional imperative which means that punishment is an end in itself. Theory developed by Kant from the principle of fundamental value of the man -> men are not to be used as a mean to an end and neither to keep the other members of the community away from committing new crimes. Kant tells us that punishment finds its justification only in the principle of justice = the harm done by the offender should find its equivalent in the harm done to him and the principle of justice should be determined by the principle of retaliation. It doesn't have a specific goal but it is a response to evil with evil/to the desire of revenge. This way of thinking is hard to eliminate -> nowadays we are characterised by a strong sense of "throwing away the key of the prisoners" and by the strong need for social and public security. 3. Legal or juridical retribution: Hegelian dialectics -> punishment as a tool to restore the social order/the law violated by the crime -> the dialectical approach works in this way = if crime is conceived as the violation of the law, punishment is conceived as the negation of the crime and therefore a tool to restore the law. This theory is much more modern and describes the fundamental characteristics of punishment: • Proportionality = punishment should be appropriate to the seriousness of the crime • Principle of Personal Liability / Personality = prohibition of liability for other people's actions • Necessary Effectiveness (certainty) = the punishment has to be sure/certain that the punishment will be carried out In Italy, the retributive theory was supported by the "Classic School”-> at the basis there was the need of social stabilization in order to restore a peaceful climate in society. Carrara was the leading jurist: punishment is a factor of “social stabilization”: “punishment serves thus to restore a peaceful climate in society, avoiding citizens to choose between violent private reactions and abandoning a society that is not able to protect them". Whole theory based on the idea of Social Contract, developed by J.J.Rousseaux -> each citizen renounces to a part of his freedom that makes the power of punishment belong to state, in order to guarantee peace and tranquillity in society. Fifty years before, Beccaria (1774, “On crimes and punishments”) wrote that punishment should be public, speedy, necessary, the minimum possible in given circumstances, proportionate to the crime and determined by the law. In addition, Carrara asserted that punishment should be: • Exemplary = Carrara also underlined that making an example of the offender should never prevail over the correct proportion of punishment. Proportion becomes the limit to deterrence -> it has to be a deterrent, this is the core of general prevention to keep the member of society from committing crimes, but Carrara underlines that making an example of the offender should never prevail over the proportionality of punishment = proportion becomes the limit to deterrence. So exemplary? Yes, but always in proportion to the crime committed. • Certain • Fast • Imposed in a way that does not corrupt the offender = it should not dissocialize = criminogenic effect of the prison environment on the inmate behavior Carrara's classification of punishment -> In the 18th century he classified punishment in 4 different classes 1. Capital punishment = Completely against, just like Beccaria 2. Coercive punishment = Deprive or limit freedom. These are divided into: • Positive (corporal punishments) which are also divided into: • Indelible, not-erasable -> f.ex mark or mutilation -> Carrara was against because he considered them to be degrading and not repairable • Erasable -> f.ex. flogging • Negative -> can be proportional and are repairable, in the sense that they're not definitive -> f.ex. detention and exile -> Think about innocent people convicted wrongfully: if the punishment is reversed, there is not the possibility to ‘cancel’ the punishment if it is definitive. 3. Dishonorable punishments -> destroying dignity and at that time regulated in a way that didn't showed a connection between the criminal conduct and the sanction -> f.ex a traditional ones was public blame (placulum in Roman times) considered unequal and aberrant = interdiction from medical profession: only in particular kinds of conduct described by specific instances of the law. 1. Pecuniary punishments or the so called "fines" -> criticized by Carrara because different people attach different values to different events. In Europe we have the day- tax system = the judge evaluates the seriousness of the offense and fixes the number of the tax based on the seriousness of the act. Then we have a second moment in which the judge, considering the economic situation of the convicted person, fixes the amount of the Day Tax between a minimum and a maximum amount given by the law -> first the offender -> idea of "throw away the key of his cell" in order to remove the condition to commit a crime. First scholar to theorize this idea was Grolman: he based himself on the right to defense + the right to compensation of damages + the right to avoid a threat to offence. According to this theory, neutralization of the offender is justified by security and prevention -> justified as a legitimate reaction against an unfair offense, following the idea of self-defense. In this doctrine, nevertheless, special prevention is still understood in its negative form = state's power to punish has also some limits -> first one comes from the principle of strict necessity of criminal sanction = extrema ratio principle/subsidiarity principle -> criminal law is allowed only when it's strictly necessary = only when the legislator has just this possibility and no other tools + valid also for detention 1. Positive special prevention: special prevention in its positive form was theorized by Krause -> offender as an incapacitated subject which should be re-educated in conformity with the values of society + also to intervene in the environmental factors that lead the subject to commit the crime -> positivists school. There's a double need = isolate the offender + re-educate the offender. It depends by the characteristics of the offender itself -> humanisation of the re-educative prison treatment and also to the opposite extreme of throwing away the keys -> it imposes/claims and extremely intransigent punishment when rehabilitation is impossible. In this cases we could have life-imprisonment. The goal of punishment is thus a real re-education. Historically life imprisonment entailed day-night isolation: in Japan it is still so nowadays, convicted people stay alone in a single cell. In Zanardelli code (before Codice Rocco) there was life imprisonment with day-night isolation for 7 years instead of capital punishment. 3. Special prevention expanded by the theory of Von Liszt -> the third form of positive special prevention: The German criminologist added to the idea of neutralization and re-education, the concept of resocialization -> punishment is a tool to achieve different goals depending on the classification of the offender = totally different approach from Carrara's one because the distinction is based on the different characteristics of the offender = we have subjects who are totally unsocialised (=no family/no friends etc..) -> for them punishment works as a tool for resocialisation, on the contrary, for offenders who are incorrigibles the only possible solution is neutralisation. We have a third category of offenders: the occasional ones. Here the treatment is different from the other two category -> punishment has the goal of intimidation, aiming to re- educate the offender and preventing the committing of new crimes. With the idea of resocialisation, subjects starts to develop ideas aimed at modifying life conditions and promoting social reintegration = like alternative measures like probation. Classification of punishment in the Italian penal code -> in Italy crimes are divided in two groups: • Crimes (= crimini) like robbery or murder • Misdemeanours (=contravvenzioni) like serious offences The criteria to make a distinction is the severity of the punishment and the different type of penalty provided by the law -> different categories of punishments: A. Principal Penalties -> no longer existing because death penalty was abolished in 1944 and it's confirmed in Art.27/1) of the Italian Constitution -> but instead we have life imprisonment = custodial sentence of an unconditional period -> most severe one and replaces death penalty. It could be of two types -> the imprisonment and the normal life imprisonment = with the possibility of serving several years and then being served with a conditional release after 26 years - or semi- liberty, the offender sleeps inside the prison but for 10 hours a days is free - special leaves (= permessi premio) after 10 years, three hours at the beginning and no more than 15 days per year - early release, discount of penalty of 45 days each semester for good behaviours - grazia ad personam, possibility just for a person evaluated for his history but it's quite impossible to obtain • Imprisonment: imposed from 15 days from 24 years. We have provisions, art. 23 CP, but there is also the possibility for the legislator to provide exceptional cases in which the range goes up to 30 years (kidnapping that end up in killing) • Fines: our system is characterized by ineffectiveness of the fine and in order to prevent not- payment by the offender, the Italian CP introduced the principle of the ‘conversion of the pecuniary sentence’: if the offender is not able to pay, it is possible to convert it in a custodial sentence. However, the CC declared this provision unconstitutional (because depended on the economic situation of the convicted) and now the solution an indirect conversion is unpaid work and a measure pretty close to probation. Alternative measures: • probation/assignment of the offender to the probation service: an offender can be placed under its control if his prison sentence is < 4 years or < 4 years to serve. Is a task of the Surveillant Court to apply the alternative measure (magistratura di sorveglianza) • house detention: pursuant to art. 47 penitentiary law, law n° 354/75, when a person is confined to his private residence and the surveillant court also imposes several requirements: • some free time to run errands, a couple of hours for basic necessities • semi-liberty / work release / day liberty: the offender sleeps in prison and works or attends school outside. The offender must have already served already ½ the sentence; for life- imprisonment 20 years A. Accessory Penalties B. Alternative Sanctions C. Security Measures Long term and short term imprisonment sentence in Italy Custodian sentence in Italy can be imposed by a Judge for a period ranging from 15 days to 24 years -> Art. 22 of Codice Penale italiano. There is also the possibility for the legislator to provide it in exceptional cases in which the range goes up to 30 years = f.e.x in kidnapping when the death of the kidnapped occurs. Fines -> the important thing to say about fines is that our system is characterised by an ineffectiveness of the fine, and in order to prevent the non-payment of the penalty by the offender, the Italian penal code introduced the principle of conversion of the pecuniary sentence = if the offender is not able to pay the fine, it is possible to convert the fine into custodian sentence. However this conversion was proven unconstitutional and nowadays it’s still possible but the conversion is done between a money sum and unpaid work. Last time -> alternative measures/alternative sanctions: • Probation or "assignment of the offender to the probation service" = an offender can be placed under the control of the probation service if his/her prison sentence is less than 4 year or if there are less than 4 years remaining to serve -> it's a task of the surveillance court to apply this measures • House detention = Art.47 of the penitentiary law (354/1975) says that house detention it's a measure by which a person is confined to his/her private mansion and is allowed to get out only for domestic commissions -> it’s still a task of the surveillance court to grant this type of alternative measures • Semi-liberty or daily release or work release -> this measures allows the inmate to attend some activities outside the prison during the day but he/she must sleep in prison. In order to be given this alternative measure the inmate must have served the 50% of his/she sentence. In case of life imprisonment, the offender must have served at least 20 years. Sentencing in Italy -> in common law system the trial is divided in two parts, the second one being the sentence. in Italy, and in civil law countries, it is different = there’s only one part but in our code (Art. 132 – 133) there are some criteria which guide judicial discretion. It allows the judge to determine the sentence within the limit provided by the law -> he's bound by the law and his power is not absolute. ➔ Art. 132 = Duty of motivation regarding in particular the amount of penalty ➔ Art. 133 = Establishes criteria o Paragraph 1: is about the seriousness of the offence, taking in consideration several different factors: ▪ The type of offence committed ▪ The seriousness of the harm caused/the seriousness of the threat posed ▪ The level of guilt/the seriousness of wilfulness and the level of fault (mens rea) o Paragraph 2: is about the capacity of the offender to commit an offence, basing itself on: ▪ The offender’s reasons for committing the crime ▪ His/her precedents and social conditions ▪ His/her behaviour before committing the offence With regard to fines Art. 133bis adds also the criterion of economic condition of the offender. There is no provision in all the Italian penal code about the purposes of punishment, but we could see the purpose of fair proportion in the first paragraph of Art.133 and the special prevention purpose in the second paragraph. The Positivist School -> according to this theory crime is a concrete action coming from a concrete human being in a concrete reality in which there is no free will = social dangerousness -> the offender is lead to commit the crime by a law of natural causation, not by his will. Cesare Lombroso was the main exponent of biological determinism -> examination of the physical factors. He analysed the corpses of the most dangerous offenders to give an identikit of the criminal. Nowadays the same approach is taken from the so called "neuroscience" -> studies of the synaptic movement = to predict behaviour + possibility to use genetic testing as a mean of tool. Same school but different approach taken by Raffaele Garofalo -> his approach is psychological = crimes are done because of a psychological factor. A third scholar is Enrico Ferri -> adds a new factor with respect to his colleagues = the social context was after WWII with the International Military Tribunal and the Nuremberg trial, held before the IMT itself. A lot has been said and written about the Nuremberg trial: there are of course good and bad points of view of this experience which marks the birth of international criminal court. Good side: for the first time, there was the criminalization of a huge violation of human rights. The bas side is that this trial was seen as a sort of “victors’ justice”. The Nuremberg trial just dealt with crimes committed by the Nazis, other crimes committed by the Allied forces (e.g. Hiroshima and Nagasaki bombings) were not considered. Moreover, the principle of legality and the principle of non-retroactivity were not respected. Of course, there were sources of international law condemning these crimes, but the majority of the law applied was established after the crimes were committed. Still, Nuremberg affirmed many principles that are at the basis of today’s international criminal law: 1. Individual responsibility for international crimes 2. Individual responsibility does not depend on whether the act violates the law of the country in which it was committed 3. Acting upon superior’s orders does not exclude punishment (at most, it can mitigate it) 4. Acting as a head of state or government does not exclude punishment (immunity is not valid) 5. Every accused has the right to a fair trial Subsequent Nuremberg trial: the nexus to war crimes and to crimes against peace was removed. Many people involved in the ancillary activities for the perpetration of these crimes were tried before the court. These trials are very much studied nowadays, as individual responsibility is in a sort of crisis. The equilibrium of the Cold War was very tense: although people knew that the dictatorships of Latin America and Eastern Europe, which were related either to the US or to the USSR, committed serious crimes, the international community was not able to condemn them. This period was called “the age of codification”: the crimes which were not codified at the time of the Nuremberg trial. In these period, other trials relating to the crimes of WWII were carried out, such as the Eichmann trial (1961). There were also trials related to the 2nd phase of transitional justice, such as the Juicio a las Juntas in Argentina in 1985. Then came the ICTY and the ICTR, which were ad hoc tribunals established by the UN, respectively for the crimes of Yugoslavia and Rwanda. These tribunals had some analogies and differences with the Nuremberg trials. Analogies 1. Both were ad hoc tribunals, established ex post facto 2. They are not voluntarily established by the States, they were imposed 3. Can we talk about victors’ justice again? Differences 1. The ICTY and the ICTR were more respectful with respect to the Nuremberg trials because the “age of codification” had defined some criminal conducts 2. The principle of individual responsibility had already been established 3. UN vs. Allied Forces 4. The crime of genocide was not present at Nuremberg 5. ICL = ICJ? These are hybrid tribunals: they apply a mix of national and international law and they are also made by international law experts. Other tribunals: War Crime Chamber of Bosnia and Herzegovina and the one for Kosovo – they do not use national law. The year 1998 was a turning point for the international arena. Pinochet was arrested, although he never made it to trials and was given a State funeral. This was felt as the end of the “age of impunity”. Today, we are talking about disillusion. There are many elements to support this view. In 1998, it was felt to have reached the end of the age of impunity. The MS of the ICC are 123 and the main countries are not members. Moreover, when the ICC was established, the aim was not just of retributive justice, but also of prevention. The ICC has been successful in context when it operates with the support of local governments. Finally, the trials are very expensive, and funding is difficult. Nonetheless, the ICC is a sort of revolution: 1. First of all it was established voluntary 2. It is permanent 3. It is potentially universal 4. It is not ex post facto 5. It applies the basic principles of criminal law: nullum crimen sine lege and nulla poena sine lege The ICC ha only had 27 cases, and only 4 people were sentenced, all of them were acquitted. This is seen as a failure by some, but others think that this is saying that the ICC is a real criminal court. So, is it a failure or a success? has only had 27 cases, and only 4 people were sentenced, all of them were acquitted. This is seen as Jurisdiction of the ICC: • Jurisdiction ratione materiae a. Most serious crimes of concern of the international community as a whole. These four crimes are the worst: i. Crime of genocide ii. Crimes against humanity iii. War crimes iv. The crime of aggression It was argued to enlist the crime of terrorism, too. This is still a very debated issue. How do we define an international crime? It is a combination of conduct and of the contextual element. • Jurisdiction ratione temporis A. It applies only for crimes committed after the entry into force of the ICC Statue in 2002 • Jurisdiction ratione loci/personae B. With regard to the country in which the crime was committed or the person who allegedly committed the crime, there must be a connection with a MS of the ICC Statute How is the jurisdiction of the court triggered? -> It can be activated by 3 subjects: 1. The interested State 2. The prosecutor of the ICC 3. The Security Council of the UN: this is the most debated one. It was made twice, for Libya and Sudan, which were however not parties to the ICC Statute. Here, the ICC has a jurisdiction which was established ex post facto. Purposes of punishment -> Art. 1 of Penitentiary Law which provides the principles of Humanity and Dignity of the person convicted (these two principles must be balanced) + the one on order and discipline. The concepts of re-education and resocialization in the Constitution -> Art. 27 par. 3 of the Constitution states that “punishment cannot consist in inhuman treatment (treatment contrary to human dignity) and must aim at re- educating the convicted”. NB. It is important, in analysing the content of this article, to follow the order of the sentences: 1. Prohibition of inhuman treatment (against dignity); 2. Re-education of the offender. Even today, the inversion has a logical sense -> no program of resocialization is possible if the punishment does not conform to humanitarian characteristics. That is to say that the punishment shall firstly respect the dignity of each person, even an offender. The Constitutional Court, after 30 years dedicated to the analysis of the second part of art. 27 par. 3, around the 90’s started to underline the importance of the second part of the article: i.e. the humanitarian ideals. Nowadays protection is offered first of all before ordinary and administrative judges. The latter can be asked for annulment of an illegitimate act. Moreover, labour court judges can protect rights too. The problem, however, is that these trials take a lot of time. So, the first layer of protection of detainee rights is before the surveillance judge, who is also in charge of checking the legality of the penalty. Lastly, and more recently, there is also the protection deriving from the interpretation of the ECtHR. The attention of the constitutional court thus shifted to the inhuman and degrading treatment. The importance of these rights is even more evident after Torreggiani v. Italy judgment, a ruling of the Strasbourg court which was pronounced in 2013. Italy was accused of violating art. 3 ECHR due to the situation of overcrowding of our prisons. Nowadays, prisons are characterized by an extreme overcrowding. After that moment, the Italian legislator adopted some specific regulations, e.g. 199/2010, enacted before the judgment (legge svuotacarceri) introduced a special measure for the enforcement of the sentence at the inmate’s domicile for sentencing not exceeding 18 months. Thanks to these measures, the number of prisoners decreased until 2015. Unfortunately, the number of prisoners started growing again, reaching more than 60.000 detainees in 2019. It is clear that prison overcrowding is a phenomenon that undermines the treatment and violates prisoners’ rights. Before the Torreggiani case, there was the Sulejmanovic case of 2009. These are all “pilot judgements”. The ECtHR imposed to Italy a deadline to comply with the judgments and asked to solve the problem of overcrowding. At the end of 2015, the Torreggiani affair was closed, and the Italian legislator was deemed to have solved the problem of overcrowding, but this was a result connected to a particular period in which there was a decrease of more than 10.000 inmates. Right now, the problem of overcrowding is still there. Law) between: • "Mala in se" -> the so called moral wrongs -> actions per se considered by every jurisdiction, by every state, by every person of common sense, as crimes = f.ex. homicide, rape, theft, etc.. • "Mala quia prohibita" -> the so called regulatory offences -> acts considered as crimes just because they are declared as such by a certain jurisdiction -> f.ex. tax evasion, speeding, gambling, etc.. -> these second type of crimes are not so self explanatory so there might be, for example, tax offences that varies quite substantially from one country to the other -> this has some complication for example with the possibility of appealing to ignorance of the law / not knowledge of a single crime justified = not so self explanatory and not as evident as the previous ones. Justification and limits of criminal law -> what are the justification of a state to intervene and punish a certain person for breaching this duties and what are the limits of the state? Here the doctrine has been developing in two systems: 1. The theory used in Continental law countries -> especially continent of Europe -> The Doctrine of Legal Good or the Interest Doctrine (Rechtsgut in German) Only acts that are capable of endangering socially relevant interests, necessary to the coexistence and the well being of society (life, property etc..), give the state the possibility to intervene and punish the wrongdoer -> not every act is subjected to punishment -> to put a limit 2. In the Common law legal system -> less focused on the solidarity idea as it's more individualistic -> the Harm Principle prevails Acts of individuals (and therefore their autonomy to commit those acts) shall only be limited to prevent harm to others (J. S. Mill "On Liberty", 1859) -> only those acts that are likely to harm other people can be described and punished as crimes. Aims/Functions of Criminal Law -> 1. Criminal law defines certain conducts/acts as crimes -> mainly by the two doctrines seen before + limiting also the non-crimes and everything that is not capable of endangering socially relevant interest or harming other that should than be regulated by other branches of the law such as Administrative or Civil law; 2. It specifies the procedures through which those accused of perpetrating certain crimes are called to account (criminal trial) -> verification of responsibility -> the task of Criminal Procedure; 3. Determine and administer punishment for those convicted Sources of Domestic Criminal Law -> in domestic criminal law we find mainly: • Norms and disciplines coming from criminal codes, where these source exists, so especially in continental Europe, in Civil Law Systems; • In Common Law countries sometimes these sources are not existing (because the principle of written rule is weaker) so we have special legislation emanated by the Parliament; • The Constitution which especially determines the principles among which Criminal Law shall in a way shape itself = f.ex. Principle of rehabilitation of those punished through criminal law - the principle of due process when it comes to criminal procedure - etc.. • Supranational legislation and that we will see both in the part of International Criminal Law but also in the part of European Criminal law, and we will see how differently these two legislation - International on the one hand and European on the other hand - enter the domestic criminal law system = sometimes indirectly, like for International Criminal Law- and sometimes directly, like the EU Criminal law; • Case Law, meaning jurisprudence, previous and recent judgements that have been passed by courts (domestic and international ones), are often used also as a source, either to interpret certain provision contained in criminal courts, or sometimes also to add missing elements to a norm/ regulation -> still a difference between common and civil law countries because the former make extensive use of case law and they adopt the doctrine of the binding precedent (what previous courts have decided, counts and it's sort of binding in common law countries) - while in the latter, Civil law countries, courts are more like dethatching themselves from what court previously have decide on the matter, because there's no biding precedent rule. General Principles Substantive Principles of Criminal Law -> 1. Principle of Individual Criminal Responsibility = no one should be held accountable for an act he/she has not performed or in the commission of which he/she has not in some way participated. The principle has two cores in it: • No responsibility for acts committed by others (no collective responsibility but here again we will see some exception in international Criminal Law) -> I cannot be held responsible from the crimes committed by another person UNLESS certain rules define me responsible for this people who committed in fact the crime; • No responsibility without culpability/mens rea -> no objective/strict liability (apart from few exception) -> right to be punished for a crime only if I was culpable for that crime -> punishable only if I can be considered consciously responsible for that crime. 2. Principle of Legality = nullum crimen, nulla poena sine lege (= no crime, no punishment without law) = no one should be held guilty of a criminal offence which does not constitute a crime under national or international law -> three corollaries derives from the principle: a. Legal Certainty (law should be clear and accessible) -> there need to be a law which is clear and accessible, if the law is not as such, then I cannot be held responsible for a crime contained in that same law; b. Prohibition of Analogy (limit to judicial interpretation) -> I can be punished or accused only for an act which is exactly in that way described by a provision or a criminal norm -> I cannot be held responsible and punished for acts that are only similar to a certain criminal provision -> important limit to judicial interpretation because when a judge applies the law he could make a certain act fall into a category which is only similar to the one of the crime committed, so not 100% matching the real category the legislator provided us for; c. Non-retroactivity (law should pre-exist the act) -> the law which punishes a certain crime should pre-exist the act of the person who's accused and punished for that crime -> this we'll see has created quite a lot of problems especially during the Nuremberg Trial = this is one of the main reason why the Nuremberg Trial was criticised for principles of legality but we'll see how the international community managed to overcome this problem by appealing to the international law rules and not to the criminal law rules (these are the two components of international criminal law). 3. Criminal Law as Extrema Ratio (= last resort) -> meaning that: o The criminalisation of the act must be decided only when this is strictly necessary = we have to look at the seriousness of the conduct and of the importance of the interest which that conduct is either endangering or harming; o We need to criminalise a certain conduct when all other means (the Civil or the Administrative provisions) are insufficient in order to protect that interest or that good; Why so many attentions and requirements to fill? Because Criminal Law has a strong impact on individual autonomy/personal liberty and moreover it has very stigmatizing effects, f.ex. think of the consequences in terms of personal life, family, finding a job for a person who has been convicted of a crime and especially if he has been convicted to spend some time in prison. This is also a reason why people that have spent a considerable amount of time in prison tend to get back…prison life is not easy. 4. Principle of Proportionality -> it affects both parts: • The criminalisation = the legislators that draft the conducts have to keep in mind that what they're writing is something that deserves to be applied and that there needs to a proportion between the legal good/the legal interest which is protected by the norm and the seriousness of the conduct • The amount of punishment which is inflicted is decided at first by the legislator in the norm, even though usually it's just a range/a broader definition, and then is decided more in detail by the judge, which looks at the norms and interprets it in light of the facts, deciding then how severe the wrongdoer needs to be punished. Punishment should fit the crime, minimised the harm, so it must be only the amount necessary in order to reach the goals (retribution - rehabilitation - deterrence) and it should fit the condition and the person who committed the crime. Procedural Law Principles -> not much into detail -> what are the main procedural law principles? 1. The Presumption of Innocence -> a person should be presumed innocent UNLESS and UNTIL proved guilty 2. The Right to Remain Silent -> a privilege against self-incrimination -> nobody is compelled to testify against him/herself or to confess guilt = which is what distinguishes the position of the Accused from the position of the Witness = during a testimony the witness is compelled to tell the truth -> but this can only occur if the testimony isn't a close relative/friend of the accused because he/she might have an interest in protecting the accused -> the right is extended to them as well. Instead, for the accused, there's no duty to tell the truth and confess guilt in the case he/she is -> he can lie during trial; 3. Standard of Proof -> beyond any reasonable doubt (favor rei) = in case the court, the judge, the panel of judges, is not sure beyond any reasonable doubt that that person is actually guilty, they must decide in favor rei = to the favour of the guilty person and acquit him or her ; 4. Ne bis in idem (double jeopardy) -> prohibition of trying somebody twice for the same act = both within international and national law and we will see how principles of jurisdiction have been developed in order to, on the one level, avoid that some people escape one crime because no country takes an action against that person, but also to avoid that the person goes to trial twice for the same case, f.ex. In the case of translational crimes. General and Special Part -> criminal law is usually divided into: 1. General Part -> it deals with the structure of crimes a. Actus Reus -> the objective element of crimes = the conduct; b. Mens Rea -> the psychological element; c. The absence of Defences ( term for common law countries) / Justification and Excuses (term for civlil law countries). 2. Special Part -> it deals with the special offences = f.ex. homicide, rape, theft, etc. or with Core International Crimes but also with Directives of the EU ruling disciplining the offences of organised crime and terrorism (the EU has not so far been able to develop a Special Part of Criminal Law because of the specificities that are inherent to the General Part which are difficult to harmonise among the various Member States, so every country have a certain General Part, while instead what has been done more and more is to harmonise the Special Part, so to establish certain was reasonable under those circumstances, or whether if he/she should have behaved differently in order for his behaviour to be reasonable -> if in the judge's opinion the defendant behaved unreasonably then the defendant can be held responsible out of negligence. • In certain cases serious cases in which the punishment is also very high, for example in the case of manslaughter (the negligent form of homicide), a gross negligence must be proved in order to convict the defendant -> the defendant must have acted in a very unreasonable way in order to be held responsible for the act out of negligence = f.ex. this is the case of medical acts, in which the doctors commits a very small error during a surgery or treatment, and for conditions of bad luck or for a condition of the patient, the patient himself dies, the doctor is to be considered as not responsible -> he didn't commit a grave error • Strict liability (exception) -> very much contested and disappearing in much systems but still people are considered responsible in the absence of the presence of a real mens rea Usually the degree of mens rea, which is necessary in order to accuse and then condemn a person for a certain crime, is stated by the law or by a statute in the criminal code Strict Liability basically requires no proof of any mental state of the defendant, and also not really a failure -> not really a negligence -> because all that needs to be shown is that the defendant caused a particular result/ carried out a particular act -> we don't look for a definition of the behavior carried out by that person (whether it is responsible or not) we simply condemn the act itself. F.ex: • Selling alcohols to underage person; • Rules concerning safety in workplaces; • Responsibility of the director of a newspaper for articles written by other people. Defenses -> word mainly used in common law systems to define what we in continental Europe call justification and excuses -> at the beginning we saw that the crime is composed by three elements: 1. Actus Reus 2. Mens Rea 3. The absence of Defenses = even if the prosecution manages to prove the existence of both the actus reus and the mens rea, the defendant might still escape conviction by proving that he acted in the presence of defenses. The term Defenses: • In common law systems -> is used to indicate a variety of objective and subjective instruments capable of reducing or excluding the responsibility of the offender. • In civil law systems they distinguish between: a. Justifications -> objective grounds that exclude the wrongfulness of the act -> under certain conditions, a conduct that would normally be considered as a crime, is considered as justified because of certain objective elements present in that moment, in that situation; b. Excuses -> look at the subjective grounds that exclude criminal liability -> the offender cannot be blamed for the conduct because something else/somebody else is -> some external conditions or external persons caused him to commit the act that he has committed The first case of justification, which is common to every system, is necessity -> the so called "lesser of two evils" -> here the defendant finds himself in a situation, at the time he acted, in which meant that whatever he would do result in harm = what he did was to choose the action that resulted in the least harm -> f.ex. The victim of a shipwreck which pushes away a person who's holding to the same boat/relict = there's only place of one person on the boat so he was allowed to push the other person in order to save his own life. Another example of justification is self-defense -> it justifies the use of force against another person who has posed an unjust and imminent threat = I'm justified to make use of violence only in the cases in which my life/my properties are put in danger and only if the force I use is proportionate to the violation I'm experiencing -> but in the circumstance of acting for self-defense in my private home, proportionality sometimes is presumed = because you have higher chances of seeing the proportionality recognized by the judge as presumed in my reaction. The response that one develops out of self defense must be necessary -> it must be the only way in which we're able to defend ourselves = f.ex if you had the easy possibility to call the police to escape/avoid the situation, than you should have done so instead of using violence. It can be invoked to defend also another person or property -> not only myself and my properties Also allowed when the threat is merely perceived as such = f.ex. If you're attacked/ threatened by someone who's holding a fake gun, so a toy, the justification of self- defense is guaranteed The first example of excuses is duress -> typical situation in which the defendant committed a crime under a threat of death or serious bodily harm (to him or to somebody else) -> here again we have the Reasonable Person Test in order to access whether a reasonable person would have acted in the same way the defendant did = f.ex. The case in which a person is forced to commit a crime under the imminent threat to death for him/her or his/her family -> typical scene in which someone points a gun to someone. In these cases, the person to be blamed for the crime is the person who was exercising duress -> the person who was in fact committing the crime cannot be held responsible for the crime itself. The second excuse that we analyze is insanity -> a situation in which the defendant at the time of the alleged offence was suffering from a defect of reason, caused by a disease of the mind, which meant that either: • He/she did not know the nature or quality of his/her actions (cognitive insanity) -> f.ex an old lady stealing chocolate from the supermarket • He/her could not control his/her behavior (volitional insanity) -> f.ex. people acting during epileptic attack and hitting something injuring someone else Ignorance/Mistake of Law Ignorance of the law is normally not an excuse to breach the law -> especially for the mala in se crimes. However in certain case of mala quia prohibita, so in cases of complicated law, the principle is actually tempered -> this was put in place by courts in order to really respect the requisite of mens rea and the principle of autonomy = there are cases in which people are not likely/allowed to know the norms and the laws regulating them -> f.ex. The statute is too difficult to understand or because it was not made public + in certain cases people coming from another country/another system invoke ignorance of the law even though they have been in the foreign country for a quite respectable amount of time and it's quite evident that they did not have the means, maybe because they lacked knowledge of the language or of the system = quite evident that they could not have known the statute or the norm. The same occurs for mistakes of law -> incomprehension of the law which make them commit a crime. Part one: principles of jurisdiction: they will help us understand how competence works when a crime has certain international and cross-border elements. Criminal law is traditionally very much a national discipline. This is the reason why it took so many efforts to build a set of rules both within the international community and in the EU. Many states are still reluctant in giving the international community and the EU certain powers in this field. Why? 1. Sovereignty: we know that criminal law works quite differently from other areas of law. In private law, the principle of private autonomy is the main principle that rules the relationships among people. A number of individuals agree on a set of rules, they draw a contract, breach a contract, call for arbitration on that dispute and they are quite free to do so on the basis of the rules that they agreed upon. So, the power of the State to intervene in such disputes is quite limited. One of the main limits that private citizens encounter is that of the public order. In criminal law, the situation is completely different: the State is entitled to act. There is a public interest of the State to intervene. Moreover, there is the monopoly of violence: the State is the only entity authorized to use violence or coercion against its citizens. So, this is an expression of the exercise of sovereignty form the State upon individuals. 2. Cultural values/national identity: criminal law reflects some cultural values that are actually in place in that place and in that moment. This is reflected mainly on criminalization: the Parliament decides what is a crime on the basis of what in that society in that time is considered wrong. This is of course currently a big issue when we talk about immigration: newly settled immigrants come from different systems and are used to a very different set of rules. What expert now call “culturally-motivated crimes” are acts which are considered crimes in certain countries and are instead condoned in another country, and the problem of course exists when a person from one country cannot recognize that the behaviour that he/she used to put in place in their country of origin is now, in the new country, a crime. 3. History: of course, in certain countries, due to their specific history, certain laws are considered necessary. E.g. in Germany, specific legislation on punishing the denial of Holocaust have been passed in order to prevent the repetition of certain phenomena. This conception of criminal law is actually not sufficient anymore in a world which is more and more globalized and in which people move more and more freely. There is an increased freedom of movement, especially in the EU, and with this free movement of people it follows that there is a free movement of criminals as well: crimes nowadays affect more and more several countries, there is terrorism, which is a crime that needs to be fought by more countries together, but also we often have international or transnational crimes. We need joint investigations and we also need to decide which is the State in which the prosecution will take place. For this reason, we need some rules (principles of jurisdiction). On the other hand, there are crimes which are so serious to require also some effort of the international community so that they will not go unpunished. International criminal law: we already analysed how this need was felt after the IIWW and the Holocaust. Form that moment on, the development of international criminal law was felt as necessary by the whole international community. We will see how such crimes have become the so- called core international crimes and how they can and should be prosecuted according to the traditional principles of jurisdiction, but also by other countries according to the universal jurisdiction principle, and of course by international courts that have a special jurisdiction (primacy/complementary). Criminal jurisdiction: how do we know, in cases of transnational crimes, which rules are applicable and which state has the right to prosecute the crime? It might happen that two or more states claim jurisdiction over one case (conflict of jurisdiction), but it might also happen that no state claims jurisdiction at all. i. Offences related to the security of the state (espionage, high treason, preparation of war aggression) ii. Offences against the administration of justice (false statements in court, malpractice in office) iii. Bribery, corruption, counterfeiting of money etc. iv. Environmental crimes v. Political crimes b. Passive personality principle: it states that a state can intervene and claim jurisdiction when the person affected by the crime (the victim) is a national or a permanent resident of the country-. This of course responds to the responsibility of any state to protect its citizens against infringements of their individual legal interests. Here again there are some restrictions: i. Lex loci (double criminality): the act must be a crime also under the law of the state of commission ii. Gravity: the crime should be serious enough (e.g. terrorism, parental abduction of children-see forced marriages) c. Universality principle: this will come up again when analyzing core international crimes. It states that every state is entitled to exercise jurisdiction over certain offenses without regard to the location of the offence, the nationality or domicile of the perpetrator or the victim. This principle was contested at the beginning because of the lack of a meaningful link, but it is a principle that responds to the need of the international community to defend certain common interest and to make sure that certain very serious crimes will not go unpunished and are fought together at a global level. So, if a state that would have jurisdiction under all the other principles above does not take action to prosecute one of these crimes, then every other state can claim jurisdiction over that crime. d. Representation principle: it entitles states that have no genuine link to the case to exercise criminal jurisdiction, on behalf of another state that is incapable of prosecuting it. E.g. suspect seized in a state cannot be extradited to the state that would be competent under other criteria (e.g. because he is a political refugee): when the state that would have competence under other principles is considered unsafe so that the person cannot be safely surrendered to that state, then the prosecution can be carried out by another state that represents the unsafe state. The rationale is both solidarity and subsidiarity to avoid impunity. i. Restriction: lex mitior - the punishment imposed in the representing state cannot be much higher than the one which would have been imposed in the competent state So, we said that each state adopts certain principles of jurisdiction independently from other states. Thus, conflicts of jurisdiction can still happen. The EU has not adopted any measures or guidelines in order to decide which principle of jurisdiction to adopt. However, art. 82 TFEU encourages the European Parliament and the Council to adopt measures to avoid conflicts of jurisdiction and certain acts of the EU contain already provisions that aim to solve such conflicts. For now, the general rule is contained in art. 54 CISA (Schengen Convention): 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. This is a restatement of the ne bis in idem principle, but there is also a “first come, first served” rule: the first country that starts the prosecutions will be the one who has jurisdiction on the case. There is, however, a preference among European states for the territorial principle of jurisdiction. To conclude, the principles of jurisdiction and the need to coordinate proceedings are paramount of several reasons: • First of all, to facilitate and coordinate the investigation of transnational crimes and their prosecution • To avoid impunity, but at the same time • To minimize the risk of double jeopardy • Finally, to reach legal certainty !!!!!!!!!!! (Comincia parte importante) Part two: the origins of international criminal law and the Nuremberg trial International criminal law International criminal law is a new paradigm which sees a fusion between international law, which is traditionally concerned with the rights and responsibilities of states and criminal law, which is instead concerned with conducts that are punishable by the state. So, international criminal law is something new that tries to merge these two disciplines and tries to pose responsibility on individuals through international law instruments. International crimes are categorized under the mala in se: they are crimes that affect the values protected by the international community and that threaten the peace, security and wellbeing of the world. What are the sources of international criminal law? • Treaties, especially the Rome Statute (1998) • Customary law (practice + opinio iuris) • General principles of law ➔ These two sources are particularly problematic because they are not written, so this may be a hardship for the respect of the nullum crimen sine lege principle. We will see how international criminal law has tried to overcome this problem • National and international judicial decisions (system of precedents but NO stare decisis – no obligation to follow precedent) and opinion of scholars These sources are also contained in art. 38 ICJ. So, the sources of international criminal law are very similar to the sources of international law. The origins of international criminal law At the end of WWII, Germany was defeated, and the Allied forces were the main global forces. There were some attempts to establish a system on international criminal law. The first attempt was after the Franco- German war in the 19th century, a second attempt was made after WWI with the Treaty of Versailles and also with some domestic trials such as the Leipzig trials, but none of them actually ever materialized in a concrete attempt to punish those crimes committed during the wars. The first successful attempt was that of the Nuremberg trial. The question that allies asked themselves after the end of the war was: how to punish such evil acts as those that were committed during the IIWW. The Holocaust was an unimaginably serious crime: how should that crime be dealt with? Do we go for impunity, leaving the perpetrators of this crime unpunished? Do we go for mass punishment, hanging and shooting people without even trying them before? After long discussions, the four leaders of the major allied forces decided to go for prosecution. They decided to go for prosecution for several reasons: first of all because they really wanted to apply that justice that the Nazi regime had destroyed, so a justice that responds to the democratic idea of the rule of law. They also wanted to record history, and to educate and deter people form the commission o future serious crimes, so they wanted to avoid that this situation could happen again in the future. They also wanted to create a precedent for such an international judgement. One point that was brought into discussion while debating on the deterrent effect that this trial would have: somebody during the discussion about building an international tribunal, quoted Hitler, who in 1939 stated his plans to "cleanse" Jews, Gypsies, and others from the Third Reich, asked: “Who after all is today speaking about the destruction of the Armenians?”. So, the idea that had to be eradicated is that such crimes will go unpunished in the future. Problem: 1. Who would take over the jurisdiction for the trial? 2. Based on which laws should the suspects be judged? The Nuremberg International Military Tribunal After long discussions, the Allied forces decided to set up the Nuremberg International Military Tribunal, which operated between 1945 and 1946. The legal basis for this tribunal was the Charter of the International Military Tribunal, signed in London on 8 August 1945 which was annexed to the “London Agreement”. It disciplined the functioning of the tribunal, and it was signed by the Four Major Allies and later acceded by 19 other states. It resulted from a mixture of the four different legislations and systems: some of the countries taking part in the discussion were actually coming from a common law system, while the USSR and France were using the continental system. Some elements, such as the absence of a jury, show the compromise that was reached in setting up this court. London Agreement: uploaded in the materials How was the tribunal composed? Each of the four countries provided one prosecutor and a team of experts which were there to assist the prosecutor in the investigation activities, and they also provided a judge and an alternate judge. All defendants were given the right to information and the right to a lawyer (they wanted to re-establish the principle of fair trial destroyed by the Nazi regime). What was the jurisdiction ratione materiae? What are the crimes the defendants were accused of? Art. 6 of the Nuremberg Charter: The Tribunal established by the Agreement referred to in Article 1 thereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, The Nuremberg principles: Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal approved in 1950 by the General Assembly. They are principle of international law recognized in the Nuremberg Charter and in the judgements. Principle I -> Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. → this principle of individual responsibility did not exist in international criminal law before the Nuremberg trial: only States were considered responsible. Principle II -> The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. → the subsidiary function of international law and international community in case domestic legislations does not provide a sufficient punishment for such crimes. Principle III -> The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law. → the irrelevance of immunities Principle IV -> The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. → the irrelevance of superior orders: one should not obey orders which are unjust. However, there are circumstances in which these orders were so compelling that the person had no possibility to escape (duress). Principle V -> Any person charged with a crime under international law has the right to a fair trial on the facts and law. → the importance of the rule of law and the due process of law as a counter response to what the Nazi regime had done. Principle VI -> The crimes hereinafter set out are punishable as crimes under international law: a. Crimes against peace: i. (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; ii. (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). b. War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, illtreatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. c. Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are 3 done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime. Principle VII -> Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law. Established Principles (still valid today): • Individual criminal responsibility for international crimes. • Individual criminal responsibility does not depend on whether the act violates the law of the country in which it was committed. • Acting upon superior’s order does not exclude punishment (can almost mitigate it). • Acting as a head of state or government does not exclude punishment. • Every accused has the right to a fair trial. International military tribunal for the far east - IMTFE (Tokyo Tribunal). Established by a special proclamation of General Douglas MacArthur (19 January 1946; on the same day he adopted the Charter of the IMTFE, following the model set by the Nuremberg trials). Operated from 1946 until 1948. All 28 defendants were convicted (7 death sentences) Subsequent Nuremberg Trials: • Not before an international tribunal, but before the Allies’ respective military tribunals • Basis: Control Council Law N. 10 of 20 December 1945. • For crimes against humanity CCL N. 10 included an improvement that permanently affected ICL: the nexus to war crimes or to crimes against peace required by the Nuremberg Charter was eliminated. • Most important: 12 trials before US military tribunals (1946-1949) Overall Development: • The attempt to prosecute the Kaiser after WWI • Nuremberg and Tokyo • The age of ‘codification’ • ICTY (1993) and ICTR (1994) • The ICC Criticism towards ICL: • 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 “TJ is the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.” (Teitel, 2003) “The notion of “transitional justice” (…) comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.” (UNSC, 2004) The term emerged in the early 1990s (end of the Cold War), before that: “justice after atrocity” or “restorative justice”. Evolution of Transitional Justice: Phase I: • Nuremberg Trials • Exceptional political conditions • Mostly prosecutorial measures (international criminal law) ◦ International (fewer national judgments) ◦ Individual judgments (fewer collective sanctions) • Accountability for a small number of leaders (big fishes) • Universal idea of the rule of law: punishing perpetrators/retribution • Legacy: modern human rights law Phase II: • End of the Cold War (but also Latin American military regimes). outdid Robert Jackson during his cross-examination and as his lawyer harangued the Tribunal for two days. Nevertheless, the evidence of the horrible acts committed overshadowed anything that the defendants or their lawyers had to say. Ultimately, the higher values and goals sought to be achieved by the United States, France, and Great Britain prevailed. Because the four major Allied Powers had different national criminal procedures, drafting the IMT Charter was particularly difficult. While British and American procedures were both adversarial in nature and based on the common law, France had a civil law system, and the Soviet Union had its own new brand of "socialist justice”. The representatives of the Allies reconciled their different legal systems in a mixed process. The London Agreement, of August 8 1945, established the IMT and had an annex containing the charter of the new tribunal. The legal amalgamation, according to Justice Jackson, worked to the advantage of the defendants. They could, for example, take the stand and testify under oath in their own defense or simply present an unsworn statement to the court at the end of a trial without submitting to cross-examination. The drafters were also faced with the arduous task of defining the crimes for which the defendants would be prosecuted. The Charter ultimately provided in Article 6 for the prosecution of the following substantive crimes: (a) crimes against peace; (b) war crimes; and (c) crimes against humanity. From the perspective of the principles of legality, the easiest to define of the three crimes was "war crimes." War crimes in Article 6(b) included customary law as identified, inter alia, by reference to the 1907 Hague Convention 58 and conventional law as evidenced in the 1929 Geneva Convention Relative to the Treatment of Prisoners of War. A more difficult legal issue was whether "crimes against humanity" under Article 6(c) existed under a combination of sources of international law, namely conventions, custom, and general principles of law. Because "crimes against humanity" had not been a part of treaty law, the Allies needed to avoid a rigid interpretation of the principles of legality in order to avoid enacting ex post facto legislation that could be successfully challenged in court. Thus, the rationale for "crimes against humanity" was predicated on a theory of jurisdictional extension of war crimes. The reasoning was that war crimes applied to certain protected persons, namely civilians, in time of war between belligerent states, and "crimes against humanity" merely extended the same "war crimes" proscriptions to the same category of protected persons within a particular state, provided it is linked to the initiation and conduct of aggressive war or to war crimes. As a result of this interpretation, crimes committed before 1939 were excluded from prosecution. It is evident from the adoption of Article 6(c) that the United States radically changed its position from that taken before the 1919 Commission that: "crimes against the laws of humanity" did not exist in positive international law. Yet no legal development took place between 1919 and 1945 that could have explained this change of position. In the case of Nazi atrocities, the facts drove the law, and politics were also a consideration. Prosecution for "crimes against peace" was without legal precedent, save for the failed attempt after World War I to prosecute the Kaiser under Article 227 of the Treaty of Versailles. Article 6(a) of the Charter provided for the prosecution of those who directed or participated in a war of aggression against other nations in violation of treaties and the principles of international law. This was the best legal basis the Allies could come up with. The Soviet Union wanted to include the phrase "by the European Axis," in order to make the initiation of a war of aggression a crime limited to the leaders of the European Axis and avoid the application of that same norm to any of its own conduct. Justice Jackson, then representative of the United States at the London Conference, prevailed in his view that the limiting phrase should not be included. Jackson stated that the American representatives would not draft a law that would be akin to a "bill of attainder," which is prohibited by the United States Constitution67 and that the prohibition against aggression is universal and could also be applied against the United States. The United States had thus also changed its position from that of post-World War I by deciding to make war of aggression a crime under international law, a position that subsequently changed once again during the Cold War era when it was no longer politically convenient. The IMT Charter developed the law of armed conflict in a progressive manner. Article 8 of the IMT Charter removed the defense of "obedience to superior orders," making it only a mitigating factor that would not exonerate a defendant from being held responsible for his actions. This was contrary to what most military laws provided for at the time World War II started. The judgments of the IMT did not entirely follow the prescription of Article 8, however, and allowed the defense when the subordinate had no alternative moral choice in refusing to carry out the order. Once the procedural and legal issues were resolved, the IMT Charter was appended to the London Agreement of August 8, 1945, which established the IMT. The London Agreement was signed by the Four Major Allies and later acceded to by nineteen states. The Four Major Allies assembled individual prosecution teams, which also had their own investigators. The American team provided most of the documents that were used as evidence as well as practical and logistical support for the other teams. At the time, over one million Allied troops occupied Germany, with complete access to prisoners of war, civilian witnesses, and government documents. The collection of evidence was made easy by what Telford Taylor has called the "Teutonic penchant for meticulous record keeping." The IMT indicted twenty-four persons, of whom twenty-two were prosecuted. Three defendants were acquitted, twelve were sentenced to death by hanging, three were sentenced to life imprisonment, and the others were sentenced to terms of imprisonment ranging from ten to twenty years. Hermann Goering committed suicide at the end of the trial. All of the defendants were German and no other defendants from the European Axis Powers were indicted or tried before the IMT. No Allied Military personnel were prosecuted for any war crimes against Germans. These proceedings, even though just with respect to the accused, were one-sided. Core crimes The four core crimes are genocide, crimes against humanity, war crimes and crimes of aggression. Genocide Origins of the term -> The first time that the term “Genocide” appeared was in 1944 by Raphael Lemkin (a German-Polish jurist) in his writing Axis Rule in Occupied Europe in 1944 to describe what was happening in Nazi Germany. The term comes from the Greek γενος: race or tribe and the Latin caedere: to kill. And the definition he gave is “(...) a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups”. It is a quite extensive and detailed definition which will be then reduced in the legislative description of the term later on. Destruction -> He talks about destruction, what does this mean? He meant destruction in a holistic sense: political and social institutions, culture, national feelings, language, religion, economic existence etc. He said that the main characteristic of genocide is attacking a group for being something, not for doing something. This conception differs form the more recent interpretation of the term ‘destruction’ within the crime of genocide: nowadays, what is usually meant by ‘destruction’ is physical destruction. Late codification -> in comparison with other crimes, genocide had a later codification, later than all the other crimes actually, but it sort of always existed in international law. It was absent in the Nuremberg Charter. Why this late codification? It took an effort by the UN by the international community as a whole in order to create instruments that actually punished and contained obligations and prohibitions both for the individuals and for the states to commit genocide and to prevent and punish genocide. Genocide is a crime that for its dimension ,its gravity, and usually for the number of victims that it implies, it is quite difficult that a single person not being a state official, not being part of an organized network is able to commit genocide on his own. Genocide does not require a certain number of acts: it can theoretically also be perpetrated through a single act (difficult to realize: most that commit genocide are state officials or part of para-state organization). It is also often the case that a State is aware of a genocide being perpetrated, but it tolerates it or does nothing to prevent or punish. This also means that it took and maybe it still takes a big effort for states to criminalize genocide and to recognize its existence as a core international crime. States tend to avoid mentioning genocide, it has very serious political implications. It is seen as the crime of crimes, and one of its main characteristics is that it is often carried out by a State or tolerated by a State. For this reason, there is a strong reluctance of States to intervene in these situations. First attempt to prosecute genocide -> although the term genocide did not exist yet, the Treaty of Versailles (1919) set up a commission (Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties) that was supposed to investigate violations of international law committed (mainly by Germany) during WWI and enforce penalties. The Commission reported on acts that aimed to denationalize the inhabitants of occupied territories, carried out in Serbia by Bulgarians, Germans and Austrians (e.g. prohibition of the Serbian language, abduction of children, starvation, internment, etc.). the Commission also recommended the establishment of a high tribunal that could judge on offences against “the laws and customs of war” and “the laws of humanity”. Crimes against the laws of humanity -> a sort of a new crime, proposed by the Greeks in order to punish not only Germany, Austria and Bulgaria for the offenses against Serbians, but also the Ottoman Empire for the massacre of the Armenians. However, this law was interpreted as retroactive law, therefore clashing with the principle of legality. Moreover, this High Tribunal was actually never successful. It was one of the first attempts to set up a system of international criminal law, which failed. Why? Kaiser Wilhelm II managed to escape to the Netherlands, which refused to extradite the Kaiser for the prosecution. With regard to the Ottoman Empire and everybody else, the Treaty of Lausanne (1923) granted an amnesty for crimes committed between 1914 and 1922. Genocide in Nuremberg -> Genocide was NOT part of the accusations of officials that were indicted in the Nuremberg trials. The 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) of the London Charter). The term “genocide” was actually used during the trial (in the pleadings of the prosecutors), although it did not appear in the judgement. We will see the reluctance to use the term genocide: not only the reluctance of states signing conventions criminalizing genocide, but there is also a reluctance for states in USING the term genocide. It is a very strong term: genocide is the crime of crimes (although there is no proper hierarchy, they are all considered heinous) and it constitutes a very strong political impact. It has however also some legal implications: the psychological element in the crime of genocide is very difficult to prove: it requires intent (dolus specialis). This is the reason why crimes against humanity is preferred. The function that the Nuremberg trial had in the definition of the crime of genocide is the fact that it shed light on genocidal policies and the evidence that it collected had a very important role in the discussion of the Genocide Convention and of the first resolution passed by the UN General Assembly of 1946 (this definition of genocide found here is still the used, differently form the definitions of all the other core crimes). Sources of the crime of genocide: • UN General Assembly Resolution 96(1)/1946 2. The International Criminal Tribunal for the former Yugoslavia also defined in Kristic (2001) that the action must target a substantial part of the group. It is not only a quantitative element , but it can also be a qualitative element that defines a genocide: in that case, even if a minority (all adult male that are necessary for reproduction) of the group is destroyed, then the action should be considered as genocide. 3. In the ICC Statute, in art. 6(a)(4) Elements of Crime, it is stated that “the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction”. In a genocide, also one single conduct could constitute genocide, but this is very difficult to put in place. There are mainly theoretical cases about this possibility. Some discussions have taken place to decide whether ethnic cleansing is or could be considered genocide. Ethnic cleansing has been defined in two ways: 1. “Forcible expulsion of civilians belonging to a particular group from an area, a village or a town” (Cassese, 2003) 2. “Rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area” (ICJ, 2007) Does this amount to genocide? There is an ambivalent approach, but the majority of the interpretations, also confirmed by the German constitutional court in the Jorgic case of 1997, which stated: “systematic expulsion can be a method of destruction and therefore an indication, though not the sole substantiation, of an intention to destroy”. So, simply removing people from an area without killing them is not considered genocide but ethnic cleansing (which falls within the scope of Crimes against Humanity). The mental element (mens rea) -> The acts enlisted in art. 2 of the Genocide Convention must be committed with the intent to destroy: this is a very specific mental element (dolus specialis) and it is very difficult to prove. This has been quite lively discussed during the drafting of the Convention but also later on: it has been criticized for not responding to the aim of the Convention, i.e. that of giving protection to the victims, therefore the Conventions should not make the prosecution more difficult. This is also the reason why crimes against humanity are often preferred, because they are easier to be proven. How was evidence gathered in cases in which genocide had to be proven? • Holocaust: although genocide was not one of the charges, evidence was easier to find because of the extensive Nazi documentation, including also Mein Kampf. The intention of exterminating Jewish people was made very clear. • In Rwanda, what was used as evidence was: o The fact that the Tutsi were names as cockroaches o The fact that there was a conscious planning o Very clear propaganda against the group (radio programs) o The scale of the targets was enormous • In Srebrenica, the Kristic case showed the intent to destroy Bosnian Muslims through the orders that were given to kill Bosnian Muslim military aged men and to transfer of women, children and elderly. • In the case of the Armenian Genocide, Turkey’s argument for the denial of the genocide is the “lack of intent”: they stated that they were just killings in a context of war (perpetrated within the conditions excluding the war crime charges) Jurisdiction -> The original General Assembly Resolution hoped for the establishment of a universal jurisdiction, so that any country, without any genuine link with the crime, could prosecute the actors of a genocide within its domestic criminal system. However, the Genocide Convention did not recognize in a written form this universal jurisdiction. Article 6 foresees territorial jurisdiction: “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” International jurisdiction was also recognized in order to solve the problem of the lack of internal prosecution. In the Statutes of ICTR and ICTY, however, universal jurisdiction was recognized. States can themselves decide the jurisdiction for these crimes in their internal legislation. Duality of responsibility -> The Genocide Convention basically presents a double form of responsibility: 1. Individual criminal liability (characteristic of international criminal law), which takes the form of: a. Commission of genocide b. Conspiracy c. Direct and public incitement to genocide d. Attempt e. Complicity 2. There is also State responsibility (under International law) a. To prevent b. To punish c. And to refrain from engaging in genocide ➔ The first two principles are contained in art. 1 of the Genocide Convention, whereas this third form of responsibility was stated by the ICJ in Bosnia v. Serbia in 2007. Article I -> The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Article V -> The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in article III. Article VIII -> Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. So, they also state that State parties should do everything that is necessary to prevent genocide by referring the state to the UN. However, there is not really a specification in the Convention of their obligations. It seems that most States do provide criminalization and penalties for genocide, but that not many measures have been taken in order to prevent genocide. Prevention is often understood as criminalization, but it is not clear what measures should be taken when a State becomes aware of a genocide. The ICJ intervened in Bosnia v. Serbia (regarding the genocide of Srebrenica) and it 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’ (par. 461). So, even if a State is sure that it will not be able to stop the genocide, it should nevertheless act in order to try to prevent it, for example referring the case to the UN. So, it is na obligation of conduct, not an obligation of result. Eichmann 1961 -> The Nuremberg trial did not foresee genocide in its charges. However, shortly after the Nuremberg trial, the first genocide case that was decided after the entry into force of the Convention: the Eichmann case, which was tried in 1961 in Jerusalem. Otto Adolf Eichmann was a member of the SS in Nazi Germany. He was first captured by the Americans, but he escaped in Italy and then arrived in Argentina in 1950, where he lived under false identity with his family. In 1961, he was abducted by the Israeli secret services (Mossad) and taken back to Israel, in order to be tried in front of the Jerusalem District Court. this abduction created a lot of discussion and disagreement within the international community, which was solved and did not really have an impact on the validity of the trial. Jurisdiction -> The Eichmann trial was based on the “Law 1950”, which recognizes jurisdiction under universal principle (also crimes committed against non-Jewish people. The jurisdiction was universal because internal law allowed it, but one could also have granted jurisdiction to Israel under the protective principle (both stricto sensu because the interests of Israel were touched upon by the crime, but also according to the passive personality principle, because most of the victims were Jewish). In order not to limit the possibility of accusing or punishing Eichmann for crimes against the Jewish, the universal principle was adopted. Indictment -> what was Eichmann indicted of? • Crimes against the Jewish people, which was a specific form of genocide, because it was not only a crime committed against a group, but a specific group. • Crimes against humanity • War crimes • Membership in a criminal organization (SS, SD, Gestapo) Defence’s arguments: 1. First of all, the defence tried to contest the jurisdiction of the court, both through the retroactivity argument Law 1950 was a transposition of the Genocide Convention which was approved in 1948: those crimes were committed before that, so the principle of legality was infringed) and also through the argument of sovereignty (contesting the universal jurisdiction of Israel and also challenging Eichmann’s abduction by Mossad in Argentina. So, the sovereignty of Argentina was used as a shield to accuse the legitimacy of the trial). 2. Moreover, they tried to use the immunity of state official (Act of State doctrine), meaning that the acts carried out by Eichmann during the Holocaust were carried out in the course of duty on behalf of a foreign State. Therefore, Israel had no right to judge him of those acts. within the category of CAH. There are two types of conducts: • Murder type o Most of them are also criminalized in domestic systems (murder, extermination, enslavement, deportation or forcible transfer, torture, sexual offences, enforced disappearance, etc.) • Persecution-related o Not always prohibited by national law. Persecution on the basis of racial, religious or political grounds (modern slavery, sex-related persecution, etc.) An additional element (the chapeau element) -> all the listed conducts must be committed as part of a widespread or systematic attack against any civilian population. This is the contextual element which distinguishes simple murder from a murder committed as a CAH. • The attack does not necessarily imply the use of armed forces • The civilian population must be the primary target of the attack. This definition of civilian population encompasses also former combatants, wounded people, discharged members of the military. It must be the primary target not necessarily of the act, but of the overall attack. See art. 7(2) letter a) ICC Statute: "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. → The multiple commission of acts can also be perpetrated by several perpetrators. One single person can also commit only one act and still be charged with CAH if this single conduct is part of a more widespread systematic attack. To what concern would this article say “pursuant to or in furtherance of a State or organizational policy to commit such attack”? here what is required is a state-like organization, meaning an organization which his able to have a certain hierarchy, a certain chain of command, where policy can be imposed and where there are sanctions if policies are not followed. For example, this is the case of paramilitary groups: it has been discussed, and possibly also agree, that ISIS can constitute such an organization. The attack must be widespread or systematic. What do these words mean? Widespread is usually referred to the quantity of the attack. • The attack must be perpetrated on a large scale and must cause a large number of victims. • The consequences must be extensive. There is of course no minimum requirement, however this is a matter of interpretation of the courts. • One can also look at the geographical area affected by the attack in order to decide whether the attack is widespread. So, there is a number of factors that can be observed. Systematic is instead a qualitative indicator. • The attack must be organized, the conducts must be put in place in a pattern, in a repetition. • There must be the existence of a plan, of a policy, of an ideology, so there must be a design of the attack. It is not a random attack committed against several people on the spot. • Usually, there should be the involvement of high-level (para-)military or political leaders: this is not a requirement per se of the article, but it is usually required in order to convict someone for CAH. The mental element of CAH is usually intent and knowledge. We have a general provision: article 30 ICC Statute. This is a sort of general clause: when nothing else is specified, article 30 is valid. Article 30 requires intent and knowledge, which is implied in intent. There is no specific intent required (and this is the major difference with genocide and also the reason why sometimes CAH are preferred to genocide as a charge). There must be however knowledge of the contextual element: the person must be aware that he/she is committing that crime simultaneously with the existence of a widespread and systematic attack directed against any civilian population. There are two specific conducts that require specific intent, and there are persecution and enforced disappearance -> they are to be found in article 7, paragraph 1, letters h) and i) of the Rome Statute. Letter h)criminalizes “Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”. letter i) only lists enforced disappearance of persons. These two crimes must be committed with specific intent, and we see an explanation of this on paragraph 2, letters g) and i). Letter g) states “"Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;”. Letter i) states “"Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a 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 the law for a prolonged period of time”. So, in these two cases, specific intent is required. Examples of Systematic Akayesu: 1. thoroughly organized 2. following a regular pattern 3. on the basis of a common policy 4. involving substantial public or private resources Blaškić: 1. a plan or objective 2. large scale or continuous commission of linked crimes 3. significant resources 4. implication of high-level authorities ICC: 'the organized nature of the acts of violence and the improbability of their random occurrence'. Important elements Organization Patterns Continuous commissions Use of resources Planning Political objective Attack No need for the use of armed forces It can encompass a mistreatment of the civilian population Indicators of an Attack Minimal scale (multiple acts) Minimal level of collectivity (policy element - controversial) In addition to this it must be widespread (higher scale) or systematic (coordination among the acts). This excludes: Isolated crimes and unconnected crimes (Governmental) Policy? Second half of the 20th century: policy/direction/encouragement of a State or organization (governmental policy) Rome Statute: aimed to enlarge the protection (e.g. crime waves are widespread but not necessarily systematic) The word attack already requires a minimum coordination State or Organization? Political parties? Terrorist organizations? Criminal organizations ICC broad view: no requirement of state involvement but “any collective effort to inflict massive crimes on a civilian population” Mental Element Intent (and knowledge) of the individual act Knowledge of the contextual element (“widespread and systematic attack directed against any civilian population”) Specific intent required for “persecution” and “enforced disappearance” Single Act It must form part of the widespread or systematic attack It can in itself constitute and attack if it is of great magnitude (e.g. use of biological weapon) It can also be a different act with regard to the other acts that form part of the attack (e.g. sexual violence vs. murders Evolution of Prohibited Acts Nuremberg: murder, extermination, enslavement, deportation, persecution and other inhumane acts Control Council Law No. 10: rape, imprisonment and torture Rome Statute: sexual slavery, enforced prostitution, forced pregnancy, other sexual violence, enforced disappearance and apartheid Always open/residual clauses Extermination Killing on a large scale Killing by the accused within the context of mass killing (awareness o the mass killing) It includes indirect means of causing death: e.g. 'inflicting condition of life . . . calculated to bring about the destruction of part of a population’ Difference with genocide: specific group and special intent Enslavement 'Exercising the powers attaching to the right of ownership' over one or more persons 1926 Slavery Convention and 1956 Supplementary Slavery Convention Treating people as “chattels” (goods): capture, acquisition, sale, exchange, transport or disposal of persons ‘Reducing a person to a servile status’: debt bondage, serfdom, forced marriage and child exploitation Human trafficking Forced labour Enslavement II Control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abase, control of sexuality and forced labour. Deportation or Forcible Transfer forced displacement of persons by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law 'Deportation' is generally regarded as referring to displacement across a border, whereas 'forcible transfer' is generally regarded as referring to internal displacement Forced: not necessarily physical force but also threat of force or coercion, psychological oppression… terms of exclusivity of the (forced) conjugal union imposed on the victim - as well as the consequent social stigma” UN Special Rapporteur: “any violence, physical or psychological, carried out by sexual means or targeting sexuality. Sexual violence covers both physical and psychological attacks directed at a person's sexual characteristics, such as forcing a person to strip naked in public, mutilating a person's genitals or slicing off a woman's breasts. Sexual violence also characterizes situations in which two victims are forced to perform sexual acts on one another or to harm one another in a sexual manner” Persecution Persecution involves the intentional and severe deprivation of fundamental rights, against an identifiable group or collectivity on prohibited discriminatory grounds. Discriminatory grounds: political, racial, national, ethnic, cultural, religious or gender…. “other grounds that are universally recognized as impermissible under international law”. Severe deprivation of fundamental rights: a gross or blatant denial on discriminatory grounds of a fundamental right, laid dawn in international customary or treaty law, and reaching the same level of gravity as other crimes against humanity Neither international treaty law nor case law provides a comprehensive list of illegal acts encompassed by the charge of persecution, and persecution as such is not known in the world's major criminal justice systems. [Thus] the crime of persecution needs careful and sensitive development in light at the principle of nullum crimen sine lege. Connection to other acts: any crime within the jurisdiction of the Court; or any other act listed in Article 7(1) Examples of acts of persecution: previous list (when committed with discriminatory intent). “conduct that severely deprives political, civil, economic or social rights. This includes the passing of discriminatory laws, restriction of movement and seclusion in ghettos, the exclusion or members of an ethnic or religious group from aspects of social, political and economic life, including exclusion from professions, business, educational institutions, public service and inter-marriage” “systematic destruction of monuments or buildings representative of particular social, religious, cultural or other group” Mental Element Intent related to the act Specific intent of discrimination Differences From Genocide: different special intent and difference in the actus reus From other CAH: special intent of discrimination Enforced Disappearance Arrest, detention or abduction of persons by, or with the authorization, 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 Enforced Disappearance I Elements of crime: 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 by refusing to acknowledge the deprivation of freedom to provide information on the fate or whereabouts, with knowledge that such deprivation had occurred Surrounding people are additional victims of the crime (friends and families) Apartheid “inhumane 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 Closed list are restrictive Need to encompass future technologies and to be large enough to provide protection Principle of legality? ICC: inhumane acts must (1) be of a similar character to prohibited acts; and (2) cause great suffering or serious injury to body or to mental or physical health. Tribunals: “similar gravity and seriousness” to other prohibited acts. 23/03/2023 War crimes • Ius ad bello = set of rules that govern the act of initiating a war, disciplined by that UN charter and rules concerning the crime of aggression • Ius in bello = governed by international humanitarian law and principles. It does apply to all conflicts, regardless of how they are initiated. • UN Charter + Crime of Aggression vs. International Humanitarian Law • IHL applies to ALL conflicts (regardless of the purpose/justification). War crimes are possibly the oldest international crime existing, and they have their basis in international humanitarian law. International humanitarian law is called ius in bello, so it regulates the conducts of parties that are involved in an armed conflict, and these serve to minimize the suffering of either one of the parties. Of course, during the war the prohibition of killing and of committing other crimes is suspended, however there are certain rules in order to minimize the side effects of the war, and in order to balance between military and humanitarian considerations. So, war crimes are described as (serious) breaches of international humanitarian law. International humanitarian law has several sources: historically there were two “regimes”. The Hague regime and the Geneva regime. Now, this distinction is slowly disappearing, however there have been two types of intervention historically. On the one hand, the Hague law tries to limit the consequences of the war (so, harm inflicted on the enemy → it protects the soldiers). For example, it prohibits the use of certain means and certain methods of war. For example, it prohibits the use of biological weapons, poisons that are particularly dangerous and have very heinous side effects, or methods like starvation, because it is similar to a torture. So, these rules were adopted in certain conferences in the Hague, the first one in 1889, the second one in 1907, and they were called conferences on the “Law and Customs of War on Land”. On the other hand, there is another set of rules, the so-called Geneva law, arising out of the Geneva Convention, which aim at protecting non-combatants, civilians, which are usually not the main target during wars but of course suffer of the side effects of an armed conflict. It also protects other categories of people, such as the prisoners of war (so former soldiers that have been imprisoned by the enemies, humanitarian workers working in a conflict area to help the civilian population). This set of rules is formed of certain convention that were signed in Geneva, the first one in 1864, the second one in 1929 on prisoners of war, and then in 1949 the so-called Four Geneva Conventions, and the additional protocols, were signed. What are the protected interests under the crime of war crimes? • The fundamental individual rights in armed conflicts: o These rules aim at avoiding, where possible, harm for certain specific categories of persons such as civilians. o For combatants, they still try to reduce unnecessary suffering • These rules also try to maintain peace, but also to make the restoration of peace possible War crimes are considered violations of international humanitarian law, and also as breaches of international humanitarian law principles. What are the overarching principles in international humanitarian law? 1. Protection of non-combatants: civilians, prisoners of war, wounded, etc. Property is also protected 2. The principle of distinction: the obligation to distinguish civilians from members of the military. In war, the objectives must be only the military. 3. Civilian objectives may be affected by the war, but there is a principle of proportionality, meaning that the collateral damages that the civilian population undergoes must always be proportionate to the military objectives. 4. Prohibition of employing weapons that cause unnecessary suffering (biological, nuclear, chemical weapons) a. Nuclear weapons are prohibited in principle; however, the ICC Statute has not recognized the use of nuclear weapons as being part of war crimes. This is because there were parties to the ICC Statute that already had nuclear weapons, and therefore, they pushed for leaving the use of nuclear weapons out of the definition of war crimes 5. The prohibition of the use of child soldiers, which was recognized later as the result of an interpretation of the Court (Lubanga decision). The definition of War Crimes -> Usually, we talk about war crimes as grave breaches of the Geneva Conventions, which are that part of international humanitarian law that refers to the protection of non- combatants, but the ICTY, in its famous case Tadic, stated that “breach of a rule protecting important values and involving grave consequences for the victim” must also be considered as war crimes. We will see how this will have some repercussions on the ICC Statute. In the past, only breaches taking place within international armed conflicts were considered as war crimes. Tadic was the first case where an international tribunal nullifies this distinction, which however still exists: the ICC distinguishes between war crimes committed in international armed conflicts and war crimes perpetrated in internal armed conflicts. This distinction is becoming more and more senseless, and the conducts which are considered as falling under these categories are becoming more and more the same, so this distinction is slowly disappearing. Like in the case of CAH, we have a contextual element. There is was the widespread or systematic attack, here it is the armed conflict. “Armed conflict” was defined by the ICC in Lubanga (2012) as “resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. This distinction between international and non-international armed conflicts The origins of the crime - > In article 6(a) of the London Charter, crimes against peace (now called crimes of aggression) are defined: “Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing” meaning war tat does not respect those norms that we have also seen as valid for war crimes. So, war is to be avoided, and where it is not avoidable, it should be carried out within certain limits. This same prohibition of crimes of aggression is also part of customary international law. The inclusion of crimes of aggression in the ICC Statute -> First of all, article 5 recognizes the crimes within the jurisdiction of the court (jurisdiction ratione materiae): The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. In the past, article 5 had a subsequent paragraph, containing a clause that was aimed at suspending the jurisdiction of the Court with regard to the crime of aggression and postponing the beginning of this jurisdiction to a second moment. The crime of aggression, and in particular article 8 bis and articles 15 bis and 15 ter were added in 2010, when the Rome Statute was re-discussed after 12 years since the first drafting of the ICC Statute. The MS came together in Kampala and decided to re-discuss the Rome Statute: this second moment of drafting had actually already been foreseen. Why was the crime of aggression so problematic in light of the ICC Statute? First of all, because it is a crime that really touches upon the sovereignty of a State: when we talk about aggression form one State to the other, we are in the realm of international law, and so States and their sovereignty. Moreover, there is another challenge: the competition between the ICC and the UN Security Council. The UN Charter already disciplines and rules upon the use of force in the international community, not only in article 2(4) but also in the whole Chapter VII of the UN Charter. So, there could be a problem of competition between the two institutions, although we know that the UNSC mainly deals with responsibility of States (as also the ICJ), whereas the ICC deals with the responsibility of individuals for international crimes. This was seen as a possible obstacle. This led to the later inclusion of the crime of aggression in the Statute, and even when the crime of aggression was actually enshrined in the ICC Statute, certain conditions were stated: first of all, the crime of aggression (article 8 bis) was included in the Charter during the Kampala Conference, but its coming into force was postponed to a later moment, as article 15 ter states: “2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.” What does this mean? State parties met in Kampala in 2010, re-discussed the conditions and included the crime of aggression within the jurisdiction of the Court. Between 2010 and 2017, 30 States managed to sign and ratify this amendment, and after 1st January 2017 a further decision was made in order to render these changes of the agreement operational. So, in the end, the crime of aggression came into force in July 2017, much later than the other crimes. Article 15 bis and article 15 ter on the jurisdiction od not only limit the jurisdiction of the Court in time, but also in scope. As far as the crime of aggression is concerned, trigger mechanisms are limited: there is no problem with the referral of a case from the Security Council, but in case of State referral and in case of proprio motu jurisdiction (i.e. when the prosecutor decides to take action and investigate a certain situation) there are some limits. The prosecutor needs to either look whether a resolution of the UNSC on the matter is already there, or, if the UNSC has not acted yet, the prosecutor should receive the authorization of a judicial authority (usually the pre-trial chamber). This means that the possibilities of States or of prosecutors to act are shrunk, exactly because of this State sovereignty element and of the UNSC power on that matter. In addition to these limitations, there is also an opt-out clause, which gives States the possibility to opt out from an investigation, so not to be investigated for the crime of aggression. This opt-out stands until the moment in which the investigation is initiated, so the State has always the possibility to opt-out from a certain investigation (?) How does the crime of aggression look like in the ICC Statute? -> Article 8 bis ICC Statute: “1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” Then, the article bring a certain number of examples of what crime of aggression means in paragraph 2. It is a crime which is considered a “leadership crime”: it can only be carried out by leaders, people that have “a position effectively to exercise control over or to direct the political or military action of a State”. People in a subordinate position cannot be held responsible for this crime. As for the material element, the first paragraph mentions “the planning, preparation, initiation or execution [...] of an act of aggression”, and in paragraph 2, letters a) to g), there is a list of all conducts that could be considered as a crime of aggression. Characteristics • The attack must have a certain scale and intensity (“by its character, gravity and scale”) → it must amount to a grave breach of international law. Not all acts of war are criminalized under the Rome Statute • The attack must pursue a particularly aggressive goal (e.g. occupation, annexation, oppression etc.) • The attack must be committed by a member of a military or political leadership (effective control) So, it is very much debated how this crime could and will be used by the ICC with all these limitations and thresholds that have been placed. Mental element -> With regard to the mental element of the crime of aggression, there are no peculiarities. The general article disciplining the mental element for core international crimes, so article 30 of the ICC Statute, is valid. This means that the person must have some intent or awareness of the war that he/she is causing through the attack. This is still quite a new crime, which will possibly result problematic in its application because of all these limits, because of the opt-out clause and because of the conflicts that are arising in the competitions with the UNSC. Elements of crimes and criminal responsibility in international criminal law So far, we have analyzed the elements of a crime, the basic elements and principles of criminal law in domestic jurisdiction, and then we have analyzed the international core crimes. With this knowledge, we will analyze how elements of crimes and principles of criminal law are or should be declined in ICL. In its characteristics, ICL differs from domestic criminal law, and so do the crimes and principles. We have already seen that crimes are formed by a material (objective) element, a mental element, and we have also seen that in most cases there must be (under the civil law categorization of crimes) the absence of justifications and excuses. Material element (actus reus) in ICL -> In domestic criminal law, there is a conduct element and sometimes also a result that must be provoked by the conduct in question. In ICL, we still have a conduct element (as we have seen in the international core crimes: the conduct is describes by articles 6 to 8 bis ICC Statute). Sometimes there is a consequence or result that might be required by the norm, and in this case there must also be a link between the conduct and the result (we talked about causation): in ICL we do not have one single explicit theory of causation, we mentioned the condicio sine qua non, which is also often adopted in ICL, but there might be other forms of causation that are adopted by the single chambers of the Court. What makes the material element in ICL different is the contextual element of the crime. In many cases we have seen, for example in CAH, that we need the conduct to be put in place “as part of a widespread or systematic attack directed against any civilian population”: the contextual element of the crime is something that is usually absent in domestic legislation, and it is actually what differentiates domestic crimes from international crimes, meaning that if we have a person killing another person, the former will be liable for murder/manslaughter under domestic law. If this person is committing a murder knowing that this murder is part of a widespread or systematic attack directed against any civilian population, he/ she is no more simply liable for murder under domestic law, but for CAH under ICL. Mental element (mens rea) in ICL -> We have already seen while analyzing the international core crimes, that sometimes the articles themselves (6, 7, 8, 8 bis ICC Statute) require a certain specific element, like special intent or other forms of psychological elements. When nothing is expressly provided by the Rome Statute, then article 30 is valid. Article 30 ICC Statute: “1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.” This article has been contested for not being very clear. The reason for this is again that MS of the ICC tried to bring together elements from civil law systems on the one hand and common law systems on the other hand. This is why intent and knowledge are sometimes required simultaneously, while we know that intent presupposes knowledge. So, basically there is a volitional element (intent) and a cognitive element (knowledge). However, what scholars have stated, is that an autonomous definition of the mental element should exist, independent form domestic categories such as intent and knowledge. Subjective elements 1. Regarding the conduct, when nothing else is specified, we need intent. 2. As for the consequences/results of the conduct, we need knowledge (awareness that a consequence will occur in the ordinary course of events) AND intent (that a person means to cause that consequence or is aware that it will occur in the ordinary course of events). These two framework of the common plan: this contribution might also not be essential for the commission of those crimes. b. There are three types of joint criminal enterprise, which differ from one another in regard to the subjective prerequisites: i. It is a typical example of individuals acting with a common purpose, with criminal intent in a sort of “division of labor” model: each individual takes care of a certain part of the plan, and each of them effectively contributes with his/ her conduct to the plan ii. Here, the case is that of several individuals running and organizing systems (e.g. a concentration camp). There is no need to prove the specific intent for the crimes committed by the individuals, but it is sufficient that the participants acted with the knowledge of the organized system and with the intent to perpetrate that system. iii. The third type is the most problematic: it is the case of a group that has a plan to commit a certain crime under international criminal law, but it is the case in which a member of a group commits a crime that was not part of the plan. In this case, can a member of a group be held responsible for a crime that another person committed and that was not part of the plan? In this case, the interpreters have suggested that the responsibility common to all member is extended to the other members only if the crime that that person committed detaching from the initial plan was a reasonable or foreseeable consequence of that plan. This is not applicable for crimes that require specific intent (e.g. genocide). This has been harshly criticized for assigning guilt by association This theory has been criticized a lot, mainly because it looks at the initial pact among people, regardless of the further development of the plan. So, perpetration is assumed on the basis of a shared intent. It is almost fully abandoned, apart from certain hybrid courts that used it recently. 2. Control theory: the main theory used nowadays by the ICC. It was developed in Germany by Claus Roxin, and it was used in Lubanga by the ICC. It is used to punish perpetrators who control or mastermind certain crimes, and it excludes responsibility for non-essential contributions to the crime: so, it responds better to the idea of individual criminal responsibility. a.In Lubanga, it was stated that “When the objective elements of an offense are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned- and who consequently have the power to frustrate the commission of the crime by not performing their acts- can be said to have joint control over the crime” so when one person was not able to change the result of a crime, so could not impede a certain crime with his/her own actions because his/her contribution was not essential, then he/she cannot be held responsible for that → this responds way better to the idea of individual responsibility 3. Command responsibility theory: it was established and used in Nuremberg. a. “The fact that the crime was committed by subordinates does not relieve the superior of criminal responsibility if the commander knew or had reason to know that the subordinate was about to commit such acts or had done so, and the superior either failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.” b. This theory that was applied for the first time in Nuremberg was also enshrined in the ICC Statute later on: i. Article 28 ICC Statute disciplines the responsibility of commanders and other superiors: what are the requirements of the article? 1. First of all, the article requires a direct line of authority between the leader and the direct perpetrator. This line of authority can be de jure or de facto. 2. This person needs to have effective command and control or authority over the group 3. The crime committed by the subordinate must be the consequence of a failure of the commander to exercise control properly: here again, we have a sort of a causal connection, so if the commander had taken an action in order to impede the crime, but he could not have impeded the crime, because it would have been perpetrated anyway, then this chain of causality is broken and responsibility of the commander cannot stand. This is of course a responsibility of negligence: so, the commander is held responsible with the same psychological element that is required by the crime committed by the subordinate 4. The commander must have failed to take all reasonable and necessary measures in order to impede this crime ii. Article 28 distinguishes between military and civilian superiors: 1. Military superiors have a stricter duty: they are liable if they knew that the person was about to commit a crime and did not impede it, but also f they should have known about the crime, so if they failed to know about the crime because of negligence 2. Civilian superiors have lighter conditions: they are liable if they knew about the act or if they “consciously disregarded information” So, it is more difficult to prove responsibility of civilian superiors in comparison with military superiors. Here again, the superior will be held liable as perpetrator of the crime. Accessoryship to direct/indirect perpetration • Art. 25(3)(b) – instigation: the article talks about people that “order, solicit or induce” the commission of such a crime. ‘Inducing’ is the form of persuasion, ‘soliciting’ means to ask or urge somebody to do something, while ‘order’ is of course the strongest form and it requires that the person is in a position of authority with respect to the people who then act physically. The difference in seriousness of these conducts leads also to a difference in punishment. • Art. 25(3)(c) – assistance: there are different forms o ‘Aiding’:practicalassistance o ‘Abetting’: moral assistance o Residualclause:“otherwiseassisting”:it refers to more vague forms of assistance Here again, the mental element required is intent of assisting the commission of a crime, and the knowledge of the crime. • Residual clause: 25(3)(d): to be used by the Court when the requirements of the previous letters cannot be fulfilled Grounds for excluding criminal responsibility: defenses in ICL -> We have already seen justification and excuses in domestic criminal law. Now, we will see what grounds are recognized under ICL in order to exempt the defendant rom criminal liability. Here again, there was a compromise between civil and common law systems: the Statute does not talk about either defenses or justifications and excuses; it simply lists a certain number of grounds for excluding criminal responsibility. The relevant articles are: 27, 31, 32, and 33 of the Rome Statute. Article 31 begins by stating “In addition to other grounds for excluding criminal responsibility provided for in this Statute”: there might be other grounds that are set ad hoc for certain situations contained in other articles of the Statute, but other than that, the rules contained in this article are relevant. Mental incapacity (insanity) -> Article 31(1)(a) lays down the discipline for the insane: “The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law” → when we talk about insanity, we talk about permanent diseases or defects of the mind, or durable one at least. This element of duration distinguishes insanity from intoxication, which is regulated in letter b). again, as we have seen for domestic criminal law, there is a distinction between cognitive and volitional incapacity: the cognitive insanity affects the capacity to appreciate the unlawfulness of the conduct, meaning that the defendant does not know that his/her conduct is criminal because of a disease of the mind. Volitional insanity instead means that the person cannot control his/her conduct and therefore commits a crime as a result of this lack of control. Mental incapacity (intoxication) -> Article 31(1)(b) regulates intoxication, i.e. temporary mental incapacity due to substances for example. It does exclude the responsibility of the person, UNLESS that person has voluntarily intoxicated himself/herself, knowing that this intoxication would have resulted in the commission of a crime. Typical example: people who take drugs in order to commit a crime, because drugs eliminate the inhibition that they would normally have. This happens to soldiers but also in domestic crimes. if the defendant had been intoxicated by a third person, this would constitute a possible ground for excluding criminal responsibility. Self-defense -> It is contained in article 31(1)(c). The article requires that the acting person had acted in order to defend himself/herself or another person, or also essential property in case of war crimes. Property must be essential, for example for the survival of people or for military objectives. This defence shall happen towards an “imminent and unlawful use of force”. What does this mean? It means that the use of force is about to be carried out, so it is the last moment possible in which a person can react. The use of force can also already have started and still be ongoing. So, this is the time lapse in which a person can act and be justified in the name of self-defence. ‘Unlawful’ means that the use of force is not justified: here, the Court uses the terminology of civil law systems, meaning that there is a difference between justifications and excuses. Justifications take away the unlawfulness of the crime. How should the response be? It must be reasonable, proportionate to the degree of danger and to the person or property. This limit is present in many (but not all) domestic systems. constituted by circumstances beyond anybody’s control. As indicated by the disparate modes of threat, it is advisable to differentiate between two types of duress. One factual background, which may be called ‘coercion’, comes into play when the dire consequences which the accused was trying to avert were caused by another human being. The other scenario which is best described as ‘necessity’ unfolds when the accused tried to avoid fatal results brought about by circumstances beyond anybody’s control, for instance, a raging fire. In conformity with Art. 31 (1) (c) Rome Statute, criminal responsibility is also excluded on the ground of acting reasonably in defense—of oneself or another person, or property essential to survival or accomplishment of a military mission, on condition of proportionality to the danger—against an imminent and unlawful use of force. Not everybody accepts the use of deadly force where the defense of property is concerned. However, in essence, this construct is linked to ‘necessity’. The defense of duress, in all its manifestations, means that an act which would otherwise be an international crime may be excused if the international court or tribunal is satisfied that the accused committed it in the absence of moral choice—that is to say, that the choice available to him/her was morally vitiated by the constraints of the situation. As the International Military Tribunal (‘IMT’; → International Military Tribunals) at Nuremberg pronounced in 1946, the ‘true test’ of criminal responsibility is ‘whether moral choice was in fact possible. Lack of moral choice means that the accused committed the act in consequence of a reasonable apprehension that failure to do so would bring about death or grievous harm either upon himself/herself, or upon another person near and dear to him/her. It must be taken into account, however, that the case-law shows that the defense of duress is subject to three very serious qualifications: a) If it is to prevail as a defense, duress must be predicated on firm evidence that the accused was genuinely unwilling to perpetrate the international crime with which he/ she is charged, and that he/she would have avoided action but for the duress. If the will of the accused was not overpowered, but actually coincided with the will of those who allegedly compelled him/her to act, the defense of duress is insupportable. b) As an American Military Tribunal held in the Einsatzgruppen trial in 1948 (part of the ‘Subsequent Proceedings’ at Nuremberg), the defense of duress is inadmissible if it is proved that the actual harm caused by the crime is disproportionately greater than the potential harm which would have ensued had the accused abstained from committing the offense. The need to weigh the harm caused against the harm sought to be avoided is also spelt out in the Rome Statute. Mistake: A mistake may be of fact or of law. (a) Mistake of Fact : The defense of mistake of fact is acknowledged in Art. 32 (1) Rome Statute. The essence of the defence is that an act which would otherwise be an international crime may be excused should the Court be satisfied that the accused committed it under an honest but mistaken belief in the existence of facts which, if true, would have made his/her conduct legal. This is in keeping with the ancient adage ignorantia facti excusat. Of course, the crux of the issue is the credibility of the contention that the accused sincerely believed in the existence of a fictitious state of affairs. A good illustration for mistake of fact would be that of a soldier ‘employing bullets which expand or flatten easily in the human body’ (a war crime under Art. 8 (2) (b) (xix) Rome Statute) without being aware of the nature of the ammunition that he/she is using. (b) Mistake of Law: The defesce of mistake of law is admitted by Art. 32 (2) Rome Statute, ‘if it negates the mental element required’ or as provided for in Art. 33 Rome Statute dealing with obedience to superior orders and quoted below at para. 22. In other words, the ancient adage of ignorantia iuris non excusat is reversed. This is mainly due to the prevalent feeling that there is no room for a presumption that every person is acquainted with all the norms of international criminal law. The summing-up of the Judge Advocate, presenting the legal reasoning for the judgment rendered by a British Military Court at Hamburg in the Peleus Case in 1945, is representative: ‘[i]t is quite obvious that no sailor and no soldier can carry with him a library of international law, or have immediate access to a professor in that subject’ (at 12; → Peleus, The). Nevertheless, the criminality of some acts is obvious to any reasonable person. In such circumstances, it is usually maintained that the subjective belief of an accused that the act was lawful will not provide him/her with a valid defense. Differently put, when an act is manifestly unlawful, an irrebuttable presumption is created to bar submission of evidence as to the state of mind of the accused. The question that usually arises in the concrete case is whether a reasonable person is objectively expected to be aware of the illegality of a particular conduct under international law. Thus, during the formulation of the Elements of Crimes— elaborating the definitions of genocide, crimes against humanity, and war crimes in the Rome Statute—there was acute disagreement as to whether a common soldier could and should have the requisite knowledge as to when conduct would amount to an ‘improper use’ of flags, insignia, and uniforms constituting a war crime under international law (Art. 8 (2) (b) (vii) Rome Statute). Similar concerns arose with respect to the war crime of destruction or seizure of enemy property, since such destruction or seizure is not prohibited when ‘imperatively demanded by the necessities of war’ (Art. 8 (2) (b) (xiii) Rome Statute). Mental Disease: Art. 31 (1) (a) Rome Statute excludes criminal responsibility when the accused ‘suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature his or her conduct, or capacity to control his or her conduct to conform to the requirements of law’. That is to say, an accused will not be held criminally responsible for an international crime when the Court is satisfied that he/she acted as a result of some form of mental abnormality negating mens rea, the presumption being that every person is of sound mind. The defense of a mental disease—which precludes conviction altogether—must not be confused with the plea that an accused, sane at the time of the commission of the offence, is insane at the point of trial. Intoxication Art. 31 (1) (b) Rome Statute excludes criminal responsibility when a person ‘is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct’, unless the intoxication happened under such circumstances that ‘the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court. Intoxication may be voluntary or involuntary. But if intoxication is self- induced, like drug abuse, it is by no means clear why this fact by itself should constitute a ground for exclusion of criminal responsibility. The Rome Statute provision in this regard has attracted much criticism. Intoxication is accepted by some domestic criminal systems as a defense, but its application to international offenses is clearly an innovation. Doubts have been expressed, in particular, as to whether the issue of intoxication can be relevant to the high-level defendants who are expected to be brought for trial before the ICC. It remains to be seen what judicial practice, if any, will develop in this field. Obedience to Superior Orders: Under customary international law, the fact that an accused acted in obedience to superior orders does not constitute a defense per se, but is a factual element that may be taken into account—in conjunction with other circumstances—within the scope of an admissible defense based on lack of mens rea, specifically, duress or mistake. Art. 33 Rome Statute takes a somewhat divergent approach to the subject by stating: 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. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. It follows from the text that, although, as a rule, obedience to superior orders is no defence, there is an exception related to the defence of mistake of law. When three cumulative conditions are fulfilled—the existence of a legal obligation to obey the order, the lack of knowledge of the illegality of the order, and the fact that the order is not manifestly unlawful—criminal responsibility can be relieved, it being understood that genocide and crimes against humanity are always manifestly unlawful. Art. 33 Rome Statute ‘departs from customary international law without any well grounded motivation’ (Gaeta 190). The solution offered to the problem of obedience to superior orders is quite unsatisfactory for several reasons: a) If the person committing the illicit act genuinely does not know that the order obeyed is illegal under international law—the order not being manifestly unlawful— why does it matter whether or not the accused was under a legal obligation to obey the order? Either way, the mental element required should be negated (as per Art. 32 (2) Rome Statute). b) How can it be stated categorically that all crimes against humanity are manifestly unlawful when almost every phrase in Art. 7 (1) Rome Statute listing these crimes requires a detailed definition and explanation in Art. 7 (2) Rome Statute: c) Why deal with the fact of obedience to superior orders in combination with the defence of mistake of law while disregarding a similar potential combination between that fact and the defence of mistake of fact or duress? There is no real difference in this respect between mistake of law, mistake of fact, and duress. Empirically, all three defences are often intertwined with the fact of obedience to superior orders. When the evidence shows that the accused obeyed orders under duress, within the proper scope of that defence, or without being aware of the true state of affairs or the illegality of the order, within the permissible bounds of the dual defence of mistake, he/she ought to be relieved of responsibility. But obedience to superior orders must never be a defence as such. The true defence is lack of mens rea, manifested either in duress or in mistake of fact or of law. Mitigation of Punishment: The rejection of a particular defence plea by an international criminal court or tribunal, as a reason relieving the accused of responsibility, does not signify that there can be no mitigation of punishment. This was expressly the approach taken in Art. 8 IMT Charter, which—while utterly removing the defence of obedience to superior orders—allows weighing that fact in mitigation of punishment ‘if the Tribunal determines that justice so requires’. The precedent is followed in Art. 7 (4) ICTY and in Art. 6 (4) ICTR Statute. Patently, mitigation of punishment is not justified automatically in case of obedience to superior orders. Aggression The crime of aggression, or 'crime against peace' as it was referred to by the Nuremberg Tribunal, is committed by a leader or policy-maker of a State who participates in an act of aggression carried out by the State.' The prevention of acts of aggression is one of the primary purposes of the United Nations. The crime of aggression differs from all others within the scope of this book in being inextricably linked to an unlawful act of a State against another State. The use of a country's troops against its own population does not come within the crime, nor do attacks on a State by a non state group. Such operations might involve other crimes within the Court's jurisdiction such as crimes against humanity and war crimes, but not aggression. The crime of aggression can be said to protect State sovereignty by punishing attacks on States, but also to encroach on sovereignty by going behind the State to make individual leaders directly accountable under international law. The first international trial for aggression, under the name of 'crimes against peace', was before the Nuremberg International Military Tribunal (IMT) following the Second World War. Origins of the Crime Art. 6(a) London Charter: crimes against peace Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing ICC Statute Negotiations 3 questions: whether the crime of aggression should be included in the Statute at all; how it should be defined; how and whether a role for the Security Council should be reflected in the Statute. Eichmann Case (di nuovo?) Adolf Eichmann (1906–62) was, during most of World War II, head of Section IVB4 (‘Jewish Affairs and Emigration’, a part of the Gestapo Bureau) of the Reich Central Security Office (‘RSHA’), where he reached the grade of SS Lieutenant Colonel. In this capacity, he was notably in charge of the round up of Jews in Germany and occupied countries, and of their deportation to extermination camps. Although he was not accused before the International Military Tribunal, the Nuremberg Judgment singled him out as the main official responsible for carrying out the policy of the ‘Final Solution of the Jewish Question’ by the Nazi regime, which Eichmann himself estimated to have resulted in the killing of six million Jews. At the end of the war, Eichmann was captured by American forces—who failed to recognize him—then escaped and, after a few years in Germany and a passage in Italy, emigrated to Argentina in 1950 under the name of Ricardo Klement. On 11 May 1960, in a carefully planned operation conducted by the Israeli secret services, Eichmann was captured near Buenos Aires and, 10 days later, was clandestinely transferred to Jerusalem. This incident provoked a dispute between Argentina and Israel, which was settled amicably only following a resolution of the United Nations Security Council. Eichmann’s trial before the District Court of Jerusalem began on 11 April 1961 and lasted until 14 August 1961. On 11 December 1961, Eichmann was declared guilty on all counts of which he was accused (with certain minor restrictions) and, four days later, he was sentenced to death. The defense appealed both the conviction and the sentence on legal and factual grounds. However, on 29 May 1962, the Supreme Court, sitting as a Court of Criminal Appeal, rejected the appeal and upheld the District Court’s judgment, making it clear that it concurred, ‘without hesitation or reserve, in all its conclusions and reasons’. Eichmann’s last appeal to the President of Israel for clemency was rejected, and he was executed by hanging on 1 June 1962. In the weeks following the abduction, Argentina, faced with Israel’s refusal to return Eichmann, brought the dispute to the attention of the UNSC, under Arts 34 and 35 (1) United Nations Charter. Israel objected to this initiative, considering that the matter went beyond the competence of the UNSC. In Resolution 138, adopted on 23 June 1960, by eight votes to none, with two abstentions—Argentina did not participate in the vote in conformity with Art. 27 (3) UN Charter—the UNSC declared that ‘acts such as that under consideration, which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security’ and requested ‘the Government of Israel to make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law’. The resolution thus left unresolved the key question of what would constitute ‘appropriate reparation’ in this case —and, in particular, whether Eichmann’s return could be demanded on these grounds. Negotiations continued between the parties in the following weeks and a settlement of the dispute was only reached on 3 August 1960, in the form of a brief joint statement in which the governments of Argentina and Israel ‘resolve to regard as closed the incident which arose out of the action taken by citizens of Israel, which infringed the fundamental rights of the state of Argentina’. The Trial of Eichmann: Jurisdictional Issues: The Israeli tribunals’ jurisdiction to try Eichmann was based on the 1950 Nazis and Nazi Collaborators (Punishment) Law (‘1950 Law’), which provided inter alia that a person having committed, in an enemy country, a crime against the Jewish people or a crime against humanity (→ Crimes against Humanity) during the period of the Nazi regime or a war crime (War Crimes) during World War II was liable to the death penalty. The defense challenged the jurisdiction of Israeli tribunals on various grounds, which were all rejected in the judgment and the appeal. The defense had submitted inter alia that the 1950 Law, in attributing jurisdiction to Israeli tribunals to try these crimes, was in conflict with international law. While rejecting this argument on the grounds that it was under an obligation to give effect to its municipal legislation, the District Court examined legal writings, international instruments, and case law—notably of the Nuremberg trials—which supported the finding that each of the crimes in question was universal in character and justified Israel’s jurisdiction based on the universality principle; with regard to genocide in particular, it noted that Art. VI Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’) was not designed to limit the States’ jurisdiction to try this crime under customary international law. The Supreme Court further elaborated on this basis of jurisdiction, showing that the said crimes had always borne the stamp of international crimes and that international law vested in every State the authority to try and punish them. It also observed that Israel, rather than Germany—where most of the offenses had been committed —constituted an appropriate forum for the conduct of the trial, given that most of the evidence was located therein. It should be noted that the universality principle was the only one that could found the entirety of the indictment against Eichmann, which included charges for crimes committed against non Jews. The District Court found nevertheless that its jurisdiction was also based on the protective and passive personality principles, given the connecting link between the State of Israel and the Jewish people who were the victims of most of the crimes included in the indictment; the fact that Israel had been created after the commission of these crimes did not alter that conclusion. The defence had also submitted, on the basis of the Act of State Doctrine, that Israeli tribunals could not try the accused for acts carried out in the course of duty on behalf of a foreign country. This argument was essentially devised as a challenge to jurisdiction, arguing the immunity of a State official from foreign criminal jurisdiction as a corollary of the rule par in parem non habet imperium (an equal cannot judge an equal), but had also some relevance on the merits—the defense had maintained that only Germany, and not the accused, was responsible for the crimes in question. This plea was rejected: the District Court mainly invoked the repudiation of the Act of State doctrine at Nuremberg. The defence had further argued that the prosecution of the accused in Israel following his abduction from a foreign country conflicted with international law and exceeded the jurisdiction of the tribunal. Relying extensively on precedents of national tribunals, the District Court found that the circumstances of the arrest and the mode of bringing the accused into the territory of the State had no relevance to the trial; it added that this plea, based on an alleged violation of the State’s sovereignty, pertained only to Argentina under international law. The District Court also rejected the plea of prescription based on Argentine law (at para. 53). The Trial of Eichmann: The indictment against Eichmann contained 15 counts under the 1950 Law. The first four counts related to ‘crimes against the Jewish people’, respectively in the form of killings of Jews, placing Jews in living conditions calculated to bring about their physical destruction, causing serious bodily or mental harm to Jews, and devising measures intended to prevent child-bearing among Jews. Under the 1950 Law, the definition of this crime was directly inspired by the Genocide Convention—the crime was but a specific case of genocide, directed against the Jewish people—and required the proof that the accused had acted with the ‘intent to destroy the Jewish people in whole or in part’. Although it did not rely on the law of criminal conspiracy as invoked by the prosecution, the District Court considered that the ‘Final Solution’ was to be regarded as a single whole and that the accused’s criminal responsibility was to be determined accordingly. It found that Eichmann had been privy to the plan for extermination from June 1941 and had begun to act in furtherance of this plan as of August 1941: he was thus convicted under counts 1, 2, and 3 as of the latter date, as well as under the fourth count for the relevant period 1943–44. Eichmann was also accused of crimes against humanity for his participation in various actions against Jews (counts 5 to 7) and in the deportation of Polish civilians from 1940 to 1942 (count 9), Slovenes in 1941 (count 10), gipsies (count 11), and 100 children from Lidice in Czechoslovakia (count 12). Crimes against humanity, as defined in the 1950 Law, included two categories of crimes: murder, extermination, enslavement, starvation or deportation, and other inhumane acts committed against any civilian population; and persecution on national, racial, religious, or political grounds. Contrary to the Charter of the Nuremberg Tribunal, this definition did not require any connection between the acts in question and a crime against peace or war crime; the District Court interpreted this latter condition as a limitation to the jurisdiction of the Nuremberg Tribunal, and not pertaining to the substantive nature of a crime against humanity. The District Court also found that the plunder of property, as perpetrated against the Jews, could be considered an inhumane act under that definition if committed by pressure of mass terror against a civilian population or if linked to any other acts of violence listed therein. It convicted Eichmann under these counts, as of the date in which he undertook operational tasks, ie March 1938. Eichmann was further accused, and found guilty, of war crimes (count 8) for the ill-treatment, deportation, and murder of the Jewish inhabitants of States occupied by the Axis Powers during the war. Eichmann was finally accused, and found guilty, for his membership in the SS, SD, and Gestapo (counts 13 to 15), which were considered, with reference to the Nuremberg Judgment, as enemy organizations under the 1950 Law. The main legal defence by the accused was that he had acted in furtherance of superior orders. The 1950 Law, however, explicitly provided that the obedience of superior orders could not exempt from responsibility for the crimes in question, and could only be accepted as a ground of mitigation of the sentence. The District Court thus rejected this plea, finding that the relevant provision in the 1950 Law was in accordance with the law of all civilized countries. It considered that the orders received by Eichmann were manifestly unlawful and it demonstrated in detail that the accused had performed his duties at every stage with inner conviction. The Supreme Court confirmed this finding, noting that no principle recognizing the defence of superior orders had crystallized in international law. It further rejected the plea of ‘necessity’—which was admitted under the 1950 Law— considering that Eichmann had not been coerced into committing the crimes in question and had, on the contrary, executed his tasks con amore. Milestones: Universal jurisdiction. Conviction by a national tribunal of a foreign official acting in this capacity. The conflict in former Yugoslavia and the ICTY We have previously analysed the IMT in Nuremberg and we have mentioned the IMT for the Far East in Tokyo (which was very similar to the Nuremberg tribunal). How come that no other international mechanisms were set up for such a long time after the experience of these tribunal? It was the period of the Cold War, in which cooperation between and among Sates was very difficult. The first time the need to establish an international tribunal was felt again was during the conflict in the former Yugoslavia. The cold war had just ended, and the mass atrocities committed during that conflict made it necessary for the international community to intervene and set up what was the first ad hoc tribunal in the history of international criminal law. The other ad hoc tribunal that was set up a few years later was the ICTR (next lecture). The conflict in Yugoslavia The origins of the State of Yugoslavia -> The “Kingdom of Serbs, Croats and Slovenes” was established in 1918, and it was renamed as “Kingdom of Yugoslavia” in 1929. Yugoslavia has always been a complicated a puzzle of multiple ethnicities and religions. During the IIWW, starting from 1941, German and Italian occupied Yugoslavia. Again, in a very complicated matrix, some areas were controlled by Germany, some by Italy, some were annexed to Bulgaria and Hungary, and some were instead governed by “Ustasha”, a puppet government of a fascist origin. At the end of the war, in 1945, the Constituent Assembly decided to abolish the monarchy and declared the new Republic, which was a federation of republics and so-allied autonomous territories .so, the Socialist Federal Republic of Yugoslavia was composed of: • Six constituent Republics: o Slovenia o Croatia o Bosnia-Herzegovina o Serbia o Montenegro o Macedonia • Two autonomous territories inside Serbia The UN/NATO intervention -> It is a quite contested intervention. Between 1993 and 1994, several attacks were carried out to UN safe areas. In 1994, there was an attack to the Sarajevo market: NATO decided to send the Bosnian Serbs an ultimatum in order for them to withdraw from Sarajevo. The Bosnian Serbs again refused and attacked a hospital in a UN safe area, so NATO responded with an airstrike of a Serb command post (1995). The Serbs again responded by taking hostage 150 UN and EU personnel, and entered the safe area of Srebrenica, where the genocide took place. We are going to see, analysing the tribunal, a couple of judgements dealing with the genocide in Srebrenica, where about 8000 Bosnian Muslim men were murdered by the Serbs, despite the presence of UN peacekeeping forces. There is also quite a strong discussion, because the UN and the EU have been accused of being aware of what was about to happen, at least for what regards the imminent attack. There are some videos and documentaries that talk about the fact that two members of the UNSC were aware of the imminent attack. NATO bombing -> After Srebrenica, the UN decided to intensify the peacekeeping forces, which had not managed to keep the area safe an to impede the genocide and the deportation of the others. Serbs decided to conquer another UN safe area (Zepa) and attempted to enter a third one (Gorazde), and attacked Sarajevo. NATO, supported by the UN, decided to start attacking Bosnian Serb military targets. After two weeks, Bosnian Serb leaders agreed to comply with the UN/NATO conditions and the air campaign stopped. The conclusion of the conflict -> The Dayton Agreements (1995) proposed a Federation of Bosnia and Herzegovina: • Bosniak – Croats Federation • Republika Srpska (which recognised a sort of autonomy to the Serbs living in Bosnia) The Dayton Agreements were accompanied by a very strong international supervision (UN stabilization force + High Representative until 2010). Moreover, cooperation of all countries of former Yugoslavia was requested with the ICTY, which had already been established during the conflict. The conflict in Kosovo -> What happened after the Dayton agreements was that between 1998 and 1999 the tension kept rising. The Albanian majority in Kosovo started seeking independence. The tensions lasted 10 years until Kosovo managed to declare its independence from Serbia in 2008. This independence has not been recognized by all members of the UN yet, and the situation is still quite tense. The ICTY -> The conflict in the former Yugoslavia saw a quite big involvement of the UN and the EC. There was a wide media coverage and observes were sent by the UN and the EC, in order together evidence on violations of international humanitarian law and human rights. Given this involvement of the international community in the conflict, there was also a quite strong pressure in order to stop the violence and punish the perpetrators. Already in 1992, the UNSC issued Resolution 780, which established an impartial commission of experts that reported in 1994 (already after the establishment of the ICTY) reported on the need to establish an ad hoc tribunal. However, the Commission was gathering evidence for the future ICTY. The legal basis -> The ad hoc tribunal was established even before the Commission reported on what they had seen in the areas of conflict. It was established through 2 UNSC resolutions in 1993 (808 and 827): these resolution were based on Chapter VII of the UN Charter, and especially in article 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 did the UN act through the UNSC? -> First of all, as the conflict was still ongoing, the UN tried to deter from the commission of other crimes and to stop violence. Moreover, the UN also wanted to restore peace and reconciliation within society and, of course, bringing the perpetrators to justice (thus avoiding collective responsibility). The establishment of the tribunal • It was established in 1993 in the Hague and it started to work immediately • Its first prosecution took place in 1994 • The official languages of the Tribunal were English and French • It closed in 2017, and it was replaced by the international residual mechanism Organisation of the ICTY -> It was organized with 16 permanent judges (2 of which worked also for the ICTR), and they were all of different nationalities. They were elected by the UNGA based on propositions of the States. They had a 4- year mandate with the possibility of being re-elected. They were accompanied by 27 judges ad litem, who were nominated for one specific trial and had a mandate of 3 years. There was a president, who was elected by the permanent judges for a 2-year term and a vice- president. Chambers -> The trial chambers were 3: each trial chamber was composed of 3 permanent judges + a maximum of 9 judges ad litem. Each of the chambers elected one internal president that ran the work of the chamber. These chambers could split in two sections. There was also an appeal chamber composed of 5 permanent judges who decided not only on appeals but also on new evidence: as the tribunal started working when the conflict was still ongoing, a lot of the evidence appeared later. Prosecution and registry -> The prosecutor was appointed by the UNSC on nomination by the UN Secretary General for a 4-year term and was assisted by an office. The members of the office were appointed by the UN Secretary General on recommendation of the prosecutor. Plus, there was a registry responsible for the administration. Jurisdiction • Ratione persona: crimes committed by natural person • Ratione Loci: crimes committed in the territory of the former Socialist Federal Republic of Yugoslavia (so not only in the area of conflict) • Ratione Temporis: crimes that were committed after the 1st January 1991 until 2001 (10- year jurisdiction) • Ratione materiae: what were the crimes prosecuted by the ICTY? o Grave breaches of the Geneva Convention (Art.2 of the ICTY Statute) o Any serious violation of the law and customs of war (Art.3 ICTY Statute) and this included: ▪ Violations of the Hague Law ▪ Infringements of the Geneva Convention not classified as “grave breaches” ▪ Violation of common Art.3 Geneva Convention and other customary rules in internal conflicts ▪ Violations of treaty law o Genocide o Crimes against humanity committed during an armed conflict (Art.5 ICTY Statute) So, these are the same crimes that are listed in the ICC Statute, but under a different name. Another difference is that here CAH were limited to those committed during an armed conflict, but of course, this is relevant only to a certain extent because the ICTY for the most part tried crimes that were committed during the armed conflict lasting from 1991 to 1995. Domestic vs international jurisdiction -> What is the relationship between domestic and international jurisdiction? (Principle of complementarity with Dr. Caroli). The ICTY instead adopted the principle of primacy. Of course, the jurisdiction of the ICTY and of national courts were concurrent, because both could judge on the same crimes/people, but in this case, both the ICTY and the ICTR had primacy over national courts. This means that the ICTY could ask national courts to stop prosecuting a certain defendant and defer the case to the ICTY itself. The States had a duty to cooperate with the ICTY, e.g. providing evidence or surrendering prisoners. The ICTY would also stay at disposal (principle of loyal cooperation) in order to help or to give evidence (this is also one of the aims of the international residual mechanism). The ICTY could also re-try people that had been prosecuted for an ordinary crime instead of an international crime. If the proceedings had not been carried out impartially, or if they had been designed to shield the accused from international criminal responsibility or if it was for any other reason prosecuted, the ICTY could restart the proceedings. • 4 types of crime investigated (Genocide – CAH – Grave Breaches of the GC – Violations of the Law and Customs of War) 161 individuals indicted (more than the ICC = it’s thanks to the principle of primacy) o 37 proceedings were terminated because there was not enough evidence o 13 were referred to countries in the former Yugoslavia for trial o 90 sentenced o 19 acquitted Contributions of the ICTY to international humanitarian law and international criminal law The ICTY contributed to the development of concepts, terms and also theories in international criminal law and in international humanitarian law. “Armed conflict”-> We already talked about the definition of ‘armed conflict’ especially in regard to war crimes. In Tadić, the ICTY gave for the first time a definition of armed conflict (also repealed in Lubanga): “resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state” → for the first time, also internal conflicts fall within the jurisdiction of international criminal law. Joint criminal enterprise doctrine -> The ICTY also developed the complicated and must contested theory of joint criminal enterprise (JCE): 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: the intent to contribute to a common plan which has the commission of crimes as an element). This was developed in Tadić in 1995 and then again in the appellate proceedings in 1999, convicting Tadić for JCE of the third type. Cumulative convictions -> The ICTY also developed a doctrine for cumulative convictions. This clashes with the principle of ne bis in idem, but here we are in a slightly different situation. The Čelebići test was establish in order to determine whether cumulative convictions were in order: multiple convictions for the same conduct are permitted only when: Belgians. This genocide was committed by many civilians: there was a presence of military and State officials, but there were a lot of common people that embraced machetes and started killing their neighbours, and this is the reason why this genocide had such a massive scale. We have testimonies and documents stating that there were more than 1 million victims in just more than three months. So, the fact that neighbours were killing each other also made the need to reconciliate the two peoples in the aftermath very prevalent. The transitional justice measures, especially the prosecutorial ones, were organized on three different levels: • International prosecution (ICTR) • National prosecutions (tribunals) • Some locals mechanisms (among which what have been defined Gacaca Courts) The Rwandan Genocide -> The Hutu and the Tutsi were not really two different ethnic groups: they shared quite a lot of characteristics, but they were living together in a very tense situations since many decades. In the past, the Tutsi constituted a minority and were the ones who owned the cattle and the land (the noble ones, Rwanda was a monarchy in the past), and the Hutu were instead the peasants, who worked on the land, although they were the majority. In order to differentiate between the two, physical characteristics were used: the Hutu were smaller and had darker skin, the Tutsi were taller and had fairer skin. These differences were in fact emphasized during the colonial era, when a stamp was put on the IDs of the Hutu and the Tutsi, containing the ethnic membership. The tension between the two exacerbated in the 1990s, a civil war occurred and lasted two years, and on the 6th April 1994, the plan of a Hutu president was shot down by unknown attackers. It was on that night that the genocide started. How do we differentiate between the civil war and the genocide? Sometimes it is hard to distinguish, but the genocide is characterized by a specific intent to destroy a certain group and this is usually proved by evidence such as propaganda, statements, incitement to destroy a certain group (in this case “free Rwanda from the Tutsi population”). Also the Tutsi committed some crimes, but they cannot be defined as genocide, although they should have also been punishment, which is something that the ICTR has not done. Not only Tutsi were killed, but also certain Hutu, namely the most moderate of them which opposed to the genocide. So, after the shooting to the president Habyarimana, the genocide started that same night. It lasted 100 days, it made about 1 million victims, mainly Tutsi, and it was performed through a very strong propaganda which was mainly spread through radio. Characteristics: 1. High participation of military and political leaders but also of civilian population 2. The reactions of the populations were mixed, so of course there were also people that opposed the genocide, but it was demonstrated that a big part of the population took part in the genocide. This is the reason why it had such a massive scale. 3. The weapons used were very rudimental (machetes, rifle, rape was also used as a weapon in order to prevent the survival of the ethnic group of the Tutsi. Women and children were very strongly affected by the genocide and the international community failed to take any action and only intervened afterwards). What were the main challenges after the genocide? • First of all, that of rebuilding of the State, which had already been affected by the long tensions and the civil war but was completely destroyed by the genocide. • There was a need to re-establish the rule of law • and also to achieve reconciliation between the two peoples What were the transitional justice responses? ➔ The international level: ICTR (main instrument) • The ICTR was very similar to the ICTY in terms of setting up, composition and principles • Legal basis: UN Security Council Resolution 955 (8th November 1994) • The tribunal only started operating in 1995 and it worked until 2015, when the Residual Mechanism took over • It sat in Arusha (Tanzania). Another element that was an issue was the distance that was felt between the context of the genocide and the instrument that was supposed to achieve justice for that crime. This distance is one of the elements that is often criticized in international justice and it is also the reason why the tendency nowadays is that of using instruments that are as close as possible to the conflict that took place and to the citizens involved citizens • The ICTR had primacy, too (differently from the ICC, which is complementary to national courts, which enjoy precedence) • Initially the ICTR was the only instrument because the State was completely devastated and there were no functioning institutions. So, there was a transitioning period for the reconstruction of those institutions • Jurisdiction of the ICTR – very limited o Ratione tempore: only for crimes committed in 1994 – there were also some crimes committed both during the antecedent civil war and also in the aftermath (also committed by the Tutsi) that did not fall within the jurisdiction of the Tribunal o Ratione loci: Rwanda and also neighboring states where part of the atrocities was committed o Ratione materiae: the cries that were object of the prosecution were genocide, crimes against humanity (but only the ones dealing with discrimination), war crimes (in non- international armed conflicts, namely the breaches to the common article 3 of the Geneva Conventions) ➔ National level -> domestic courts • After the reconstruction of the institutional machinery, the new government of National Unity was free to organize the transitional justice agenda. The international part was of course decide by the international community (N.B. Rwanda voted against the ICTR – this was for a number of reasons: the temporal jurisdiction limited to 1994, the fact that there were other crimes other than genocide, the fact that some judges were shared with the ICTY, and the fact that the ICTR did not foresee the death penalty. This made cooperation between the international community and Rwanda very difficult, and it slowed down the work of the ICTR quite a lot) • Rwanda decided to organise itself internally in order to bring to justice the perpetrators of the genocide and it did so on the basis of an organic law (n. 8/1996) which gave jurisdiction to Rwandan courts for genocide, CAH and offenses committed in connection with these crimes. It was the first time that such offenses were codified and domesticated for the Rwandan legal system. The jurisdiction was broader in comparison with the jurisdiction of the ICTR, so national courts could judge crimes committed between 1990 and 1994. They introduced plea bargains (done in order to overcome the lack of evidence). Moreover, special chambers were set up in order to deal specifically with genocide. • There were four categories of offenders foreseen in the organic law o Category 1: offenses punished with the death penalty (punishing the so-called génocidaires) “persons whose criminal acts or whose acts of criminal participation place them among the planners, organizers, instigators, supervisors and leaders of the crime of genocide or of a crime against humanity; ▪ persons who acted in positions of authority at the national, prefectoral, communal, sector or cell level, or in a political party, the army, religious organizations or in a militia and who perpetrated or fostered such crimes; ▪ notorious murderers who by virtue of the zeal or excessive malice with which they committed atrocities, distinguished themselves in their areas of residence or where they passed; ▪ persons who committed acts of sexual torture;” o Category 2: life imprisonment: “persons whose criminal acts or whose acts of criminal participation place them among perpetrators, conspirators, or accomplices of intentional homicide or of serious assault against the person causing death;” o Category 3: prison sentence: “persons whose criminal acts or whose acts of criminal participation make them guilty of other serious assaults against the person;” o Category 4: civil redress: “persons who committed offenses against property.” • Problems linked to domestic trials -> length – costs – prison overcrowding • In the period between 1996 and 2001, 7181 people were accused out of tens of thousands people whose case was pending before the court • What did the government think of in order to avoid impunity for these perpetrators ans achieve justice with everybody? The re-institution of the pre-colonial justice institution ➔ Local level -> Gacaca Courts • They were established in 2000 with organic law 3040/2000 and then again in 2004 with law 16/2004 • They had a pilot phase between 2002 and 2005. The official functioning began in 2006 and lasted until 2012 • At the beginning they only dealt with the most lenient crimes, but due to t overwhelming amount of cases, certain Gacaca courts also started trying crimes of the first category with certain limitations • Origins of the Gacaca courts :pre-colonial method. It means literally “grassy place” because of the fact that they took place in the open air. The aims of this instrument were to restore justice and achieve just decisions, so it is a mechanism that has aims that are very close to the community and that furthered the participation of the community. During the colonial period, these Courts were strongly opposed by the colonial powers and were restricted to civil dispute. Little by little, they declined and disappeared. They were re-established only after the genocide, although they were revisited and having a more formal framework, so they partially lost their informal character. • They were based on an idea of justice which is nowadays quite popular in Western countries, not only in traditional societies: restorative justice. Restorative justice is a conception of justice that can be considered a theory of punishment: it is “A process whereby parties with a stake in within the family), community work to repay the community itself and one element that facilitated was confession, that brought about a strong mitigation of punishment also to limit the problems linked to the lack of evidences. Two characteristics differentiated Gacaca from purely informal and restorative justice mechanisms: - No voluntariness! (neither perpetrators nor victims) because of the jurisdictional powers given by the law — usually restorative justice is based on the voluntary participation of all the parties. - Neither completely informal nor completely restorative (more participatory), set up by law. Problems. Fair trial standards? no right to a defense lawyer, no crimes where punished of the ones committed by the Rwandan Patriotic Front, the ruling party that come into power after Civil war and genocide after 1994 (that caused between 15.000-35.000 victims) Three Levels of Jurisdiction (Source, Sullo 2018) ICTR 1/1/94 — 12/31/94 1,2,3,4 > no case was recalled from (primacy principe — > applied) the ICTR from domestic lasional cow — |105450= ———TLZh Aurisicion, 12/31/94 Gacaca [10/31/90 — [23,4 12/31/94 The ICC was established after intense negotiations in 1998. At the beginning 120 States adopted the Statute of the International Criminal Court in Rome (now 123 State Parties, 4 of them have in the past brought forward the intention of leaving the Statute but however none of them as so far done so). It entered into force in 2002 after the ratification by 60 States parties. Jurisdiction ratione materiae: prosecution for perpetrators of genocide, crimes against humanity, war crimes and aggression (only for those states that have ratified it after the Kampala Conference of 2010) The court has a universal aspiration, reflected in its permanent character. It is a court for the entire international community, not specifically referred to situations but it has jurisdiction for the whole community provided certain criteria are met. There are a lot of consensual elements in the ICC (and negotiations in international law usually result in a compromise), more similar to a treaty-based institution than to the ad hoc tribunals established under UNSC Resolutions. For these reasons it is only binding to the parties to the statute (with some exceptions however). Consensual Nature reflected in: 1. Jurisdiction 2. Trigger mechanisms 3. Principle of Complementarity Jurisdiction -> At the beginning it was proposed that the court had universal jurisdiction but this was rejected. It is very difficult for states to accept invasion or interventions in their criminal law sphere because it touches upon their sovereignty. What is enshrined in art. 12 ICC Statute is that the courts acts on the basis of the principles of territoriality (crime in the territory of a MSs) and active nationality (state of the nationality of the defendant). The UNSC can extend this jurisdiction by referring to the prosecutor situations in states or committed by nationals of states that have not ratified the Rome Statute (but political obstacles and especially the veto power of the 5 permanent members of the SC). Trigger Mechanisms (art. 13 ICC Statute) 1.State referral, also self-referral (e.g. DRC, Uganda, CAR, Mali) 2.UN Security Council Referral (in case there is a threat to peace, the SC can act under CH 7 of the UN Charter): also relates to crimes committed in states that are not party to the ICC Statute. Situations referred: Darfur and Libya (however see veto permanent members). 3.Proprio motu action by the ICC Prosecutor: authorization of the pre-trial chamber is required (judicial authorization). Cases of Kenya and Cote d’Ivoire (post-election conflicts) Principle of Complementarity (art. 17 ICC Statute) -> This principle differs from the principle of primacy of the ad hoc tribunals that had primacy over national courts: in this case the ICC has a subsidiarity responsibility while States have primary responsibility to investigate and prosecute international crimes. The court can then intervene if: • If no domestic investigations or prosecutions are initiated: automatic jurisdiction of the ICC • If the domestic investigation has been conducted in order to shield the perpetrator or have been carried in a non-impartial way. The subsidiarity character keeps the investigation and prosecution at the level closer possible to the defendant, to the conflict and to the victims but has the aim also to fight impunity. However, here we need to be careful that the person is not convicted twice for the same act, same conduct/same person test (ne bis in idem). What are the challenges that the court faces? Lack of enforcement power: relies on state cooperation both to investigate, to acquire evidence and to enforce its decision, there is not international police for example. Intervention in ongoing conflicts can also be problematic for prosecutors – that cannot acquire evidences in a safe manner – but the actions of the court could also influence the conflict itself. Another challenge that has been raised quite often is the selectivity, meaning that most of the cases in the past have focused on Africa, and this has created criticisms towards the court. What are the main actors? Prosecutors -> Is the person who starts the case and assists the judges in discovering the truth, bound by objectivity. They shall and must take into account the needs of victims: this is one of the characteristics of the current international justice system, the increasing attention towards victims and towards victims’ rights. Rights are becoming more and more the focus of international criminal law. The prosecutor must be independent (although politics plays a big role especially in the decisions on acting proprio motu). Thedecision to entrust the prosecution with the power to take action proprio motu needs the control of pre- trial chamber, that is foreseen to ensure the independence of the investigation. Defense -> There are some principles that are valid within international criminal law and especially on which the ICC is based: right to a fair trial (right to information, to a lawyer…), equality of arms between the prosecutor and the defence which however is quite difficult to reach (the defense has less means and resources, also in the sense of the cooperation of states and time, because the investigation start before notice is given to the defendant, that makes harder to acquire evidences lack of substantive equality: less means and resources, later investigation, less cooperation of state authorities). Also the integrity of the proceeding and process of truth finding are paramount. Counsels -> If the defendant has not the mean to pay a defense lawyer, then one is appointed and funded by the ICC. The defendant may also defend himself but if he obstructs justice then the possibility can be restricted (self-representation). Interest of the client but not obstruction of justice. Accused must be present during trial (in absentia trials are not allowed except for some special cases, like the Kenyatta case) Judges -> They are disciplined at Art. 36 ICC Statute. They are 18 judges and are elected by the Assembly of State Parties, political element. Not all were judges before, might have been experts of the subject, university professors or other people working in the field. Judges’ functions are: Interpretation of the law: they use not only the text of the Rome Statute but also the elements of crimes and the system of treaties and the rules of procedure ecc. are very detailed, thought to limit the discretion of judges, smaller than the discretion that they enjoyed in the ad hoc tribunals. Art. 21 ICC Statute list the instruments judges can use: Art. 21 Applicable law - 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b)In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c)Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. Fact finding function Request evidence, listen to witnesses and visit crime scene Administration of justice Managing proceedings in a fair and efficient way and guarantee the rights of the accused Victims -> They are acquiring an increasing role in the last decades, considered actors in international criminal proceedings. Rights: participate in the proceedings, access to justice, effective remedy, right to truth. This is a conception of justice that brings to the centre the role of the victim and his right to reparation, we see restorative justice influence. The victim can contribute in every stage of the trail: • During the pre-trial phase (impact on prosecutor’s decisions, prompt him to investigate a certain case or situation, providing evidences and making requests often through victims association) • Present observations regarding jurisdiction and admissibility of a case • Present views and concerns at any stage when their interests are affected, interrogate witnesses, contest evidence, so a very broad role that is allowed to victims. • Legal representative of victims that can present evidence, also associations or collective means. • Each victim in order to be recognized as such must demonstrate the link between direct or indirect harm that he has suffered and the charges brought against the accused (causal link) Art. 75 ICC Statute foresees reparations for victims in the form of restitution (where possible), compensation or other forms of rehabilitation and in order to manage restitution a trust fund for victims has been set up, responsible for organizing compensatory payments for victims. There are some challenges also regarding victims: some can be left out, or there can be tensions, hierarch etc. Usually collective representation. If there are conflicts between the right of the victim and the rights of the accused, the latter prevail (art. 68(3) ICC Statute). Rights guaranteeing safety of victims (and witnesses) are ensured with victims protection programmes, like the ones foreseen at national level for witnesses of Mafia crimes or terrorism, that might experience retaliation by the accused or someone close to him. The prosecution Selectivity -> The ICC has been criticized for the focus on African cases so that we have to understand how does the selection of cases work, what regions, what conflicts, what crimes, what actors can be prosecuted. There is a high degree of discretion in the hands of the Prosecutor that can also decide when states to act at the national level in order to prosecute cases before national courts, but is also due to the lack of cooperation of states authority with the ICC, the lack of referral and the de-legitimation that this court is experiencing, especially by certain big and powerful countries (US, China, Russia…). There is also an increasing attention towards gender-based violence and an attention to re-conciliation (restorative justice and reparation) that aims at restoring the victims. The focus is not only on retribution but also on collective reconciliation, re-integration and rehabilitation of both victims and perpetrators (even if there is not a collective system of enforcement at international level so that there are not specific rehabilitation programmes). The evolution of EU criminal law We will see how the EU has acquired competences in the field of criminal law little by little, and how these competences are disciplined within the treaties and how they are distributed between the EU and all the MS. We know that at the beginning of its establishment, the EU was called ‘European Community’ and it only focused on the internal market, on economic matters. The focus was on the abolition of internal border in order to ensure the four freedoms: • Free movement of goods • Free movement of services • Free movement of people • Free movement of capital This same area of the internal market managed to develop itself more and more and to create a legal order that is now capable to directly enter the legal systems of the MS. International law is based on treaties that must be signed and ratified, but the norms of the treaties must be transplanted in the legal system of the States parties through national legislation. This is called intergovernmental method. The EU works partially like that: the criminal law field of law used to work like that. For the other pillars, there has always been a system of direct effect, whereby EU law is directly applicable on the MS legal system. Initially there was no competence of the Union in criminal matters. MS refused for quite a long time to attribute competences in criminal law to the Union. Why so? Especially for sovereignty issues (remember it was already a difficult quest at the international level), but one of the main reasons is actually the democratic deficit that was perceived and that is still partially perceived within the EU, meaning that the role of the EU Parliament in the legislative process in the past was actually smaller than now. The Parliament is the only institution which is directly elected by the citizens, so in order to fill this democratic gap, more power and participation to the legislative process needed to be given to the Parliament. Nowadays with the ordinary legislative procedure, the Parliament and the Council cooperate more or less on an equal basis in the legislative process, so the basis of this democratic deficit has been eliminated. There are still people which still recognize a democratic deficit in the EU given that the Parliament does not directly represent the European population, but elections still take place on a national level, so we do not have (yet) European lists for the elections. Also, the number of seats allocated to each country is not exactly corresponding to the number of citizens of that country (although there are some methods of adjustment). The fact that the EU was not granted competences in criminal law for a long time favoured the development of strategies of cooperation in criminal matters. When was the first time that partial recognition of competences to the EU in the criminal law sphere was given? Through the Treaty of Maastricht in 1992, which established the passage from the European Community to European Union and created the pillar structure, which opened the way to some competences in this field. In this field, however, there was still the control not of the Parliament but of the Council (so, of the MS). Three pillars: the European communities, common Foreign Security Policy, and Cooperation in Justice and Home Affairs (name later amended in the Treaty of Amsterdam). This last pillar consisted in: • - Cooperation between judicial authorities in civil and criminal law • - Police cooperation • - Combating racism and xenophobia • - Fighting drugs and the arms trade • - Fighting organized crime • - Fighting terrorism • - Criminal acts against children, trafficking in human beings What are the characteristics of this pillar? It is constituted of international law instruments (conventions and later framework decisions, later substituted by directives). Why? Because of the intergovernmental method: every MS had to agree on a decision and each of them also had veto power. Another limit of this instrument was the absence of direct effect: these instruments needed to be transposed into national legislation. The Treaty of Amsterdam (1997) tried to communitarise the third pillar, establishing the same regime as in the first pillar, but it failed. The name of the third pillar was changed into a broader term ‘Area of Freedom, Security and Justice’. The aim was that of securing free movement while combating illegal activities. With free movement of people, also the movement of criminals was easier, and it was felt the need to secure this free movement but also to tackle the movement of criminals that was seen to be facilitated by free movement. These efforts to combat illicit activities also included the need for cooperation among authority, especially judicial and police authorities, which should work together in order to prevent, investigate, prosecute, and punish such crimes. What areas are covered by the Area of Freedom, Security and Justice? The AFSJ covers the management of the EU external border, judicial cooperation in civil matters, asylum and immigration policies, judicial cooperation in criminal matters, police cooperation and the fight against crime However, there was also a need for accountability. Such areas are very politically sensitive, they touch upon the sovereignty of States in a very prominent way. It was very difficult to confer EU power on those areas. Moreover, those areas have a strong impact on the human right of the people involved. How was this accountability achieved? On the one hand, by strengthening the role of the European parliament, which is the only democratically elected institution and which acquired an egalitarian role in the legislative role; on the other hand, by extending the jurisdiction of the ECJ on this area, which has power of review of legislation in this area since 2014. What was the treaty that managed to achieve the accountability and to extend the competences of the EU in this area? The Treaty of Lisbon (2009), which abolished the pillar structure and creates only one regime, the whole of which is subject to the same instruments, namely directives and regulations, which were extended to the third pillar. The Treaty of Lisbon also extended the competences of the ECJ to the third pillar (after a transitional period of 5 years, so starting on the 1st December 2014), and it set forth the accession of the EU to the ECHR and incorporated the CFREU among the basic treaties of the EU. So, after the entry into force of the Lisbon Treaty, the primary sources of EU law were the TEU and the TFEU, whereas the secondary sources were directives and regulations (difference between the two). Where is the discipline of AFSJ contained? Title V TFEU In particular, the discipline is contained in article 67 TFEU: “1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States (...) the traditions and differences are deemed important in order for the Union to continue its existence and enhance cooperation among MS. 3. The Union shall endeavor to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws”. The provisions that relate directly to criminal law within the TFEU are two: • - Article 82 TFEU: judicial cooperation + procedural matters • - Article 83 TFEU: substantive criminal law Article 82 TFEU: Paragraph 1: Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83. – approximation is necessary for cooperation: we need to make sure that a certain common level is reached in order to enhance trust among States, and to do so we need to reach a point in which our legislations are not so different from one another. At the moment, we cannot ask States to adopt the same legislation on a certain topic, but we can encourage/force them to adopt legislation that is somehow similar throughout Europe. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to: (a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions; (b) prevent and settle conflicts of jurisdiction between Member States; (c) support the training of the judiciary and judicial staff; (d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions. – these are the areas in which legislation should become similar throughout MS Paragraph 2: To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States. The establishment of minimum rules is aimed at establishing trust between the MS involved. The following sentence means that we have to find a compromise: we cannot follow the practice of a MS if it is too different from the practice of another MS, and/or if it is too onerous for another MS. process of being approved by the EU endangers or affects fundamental aspects of its criminal justice system: “If a MS is concerned that a draft directive would affect fundamental aspects its criminal justice system might refer it to the European Council.” What happens when this procedure is adopted? The directive is terminated, but there is still the possibility for the States that wish so to adopt the directive through the principle of enhanced cooperation. The procedure of enhanced cooperation is disciplined by title III TFEU, and article 329 disciplines the procedure to trigger enhanced cooperation. Other principles of EU law (particularly relevant for EU criminal law) 1. Principle of sincere cooperation (loyalty) a) Regulated by art. 4(3) TEU: Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardize the attainment of the Union's objectives. – what does this entail? i. Implementation of Union measures into national law ii. Enforcement of Union legislation iii. Cooperation with the Commission iv. Cooperation with law enforcement authorities of other MSs Enforcement of Union legislation when it comes to criminal law: important case – Commission v. Greece, stating the criteria that have to be respected by MS when applying EU law and especially when providing penalties for breaches of EU law. In this judgement, the Commission accused Greece of having failed to take action recovering the levies not collected from an import from Yugoslavia to Greece. A certain amount of maize was imported from Yugoslavia to Greece and levies were not applied. The maize was subsequently declared as coming from the EC, so what the Commission did was accusing Greece of not having punished adequately those that infringed Greek law and therefore in this area also community law. So, Greece was accused of not having fulfilled its obligations under community law. What is particularly interesting in this judgement is that the Court states what criteria are considered necessary/what measures MS shall take in order to guarantee the application and the effectiveness of Community law: “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.” Basically, what is required by MS is that they act with the same carefulness and diligence that they use in order to punish and to prevent the infringement of national law. They should guarantee and protect community law the same way they do with national law. So these three criteria have remained as the three criteria of reference for stating the compliance of MS with their obligation to protect the application and effectiveness of Community law. (effectiveness, proportionality, and dissuasiveness) Effectiveness: if violations of Union law occur, the system must be capable of responding to them. It must be possible to impose a penalty. Thus was quite disputed in the famous Italian judgement Taricco, which stated that a national rule on the statute of limitation cooperation. The procedure of enhanced cooperation is disciplined by title III TFEU, and article 329 disciplines the procedure to trigger enhanced cooperation. (prescrizione) might make the application of the penalty impossible: “The national court must give full effect to Article 325(1) and (2) TFEU, if need be by disapplying the provisions of national law the effect of which would be to prevent the Member State concerned from fulfilling its obligations” in this case, article 325 TFEU disciplines the duty of MS and the union to counter fraud and illegal activities that are somehow affecting the financial interest of the Union Principle of 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. Principles related to the protection of fundamental rights (both substantive and procedural) (e.g. principle of legality, ne bis in idem, defense rights, victims’ rights etc.) → next lectures. The first focus of the European Community, at its birth, was the internal market. In fact, the elimination of internal borders to ensure the free movement of goods, persons, services and capital was the purpose of such organization. Then, through different treaties, the creation of a new legal order that became an integral part of the legal system of MSs, with directly applicable provisions. At the beginning, the community had no competences in Criminal Matters since for long Member States refused to grant competences to the European Community in the area of criminal law The refusal of member states to not give powers within the area of criminal law had two main reasons: Sovereignty; Democratic deficit: the legislative process, at the beginning, did not involve the parliament and all the decisions were taken by both the Commission and the Council, which are not directly elected. Therefore, in the European framework, states actually tended to favor cooperation in criminal matters rather than renouncing some competences. Later on, the Treaty of Maastricht (1992), which established the European Union, created the so-called pillar structure, which divided the competences of the European Union in 3 pillars and in the third established competences in the field of criminal law (Cooperation in justice and home affairs). Still, at this point, it was the Council that had competences in this area, meaning that the competences were on MSs, who had control over all initiatives in this area. The 3 pillars were: the Community law (internal market), the Common defense/security and foreign policy and the Justice and home affairs. The third pillar, concerning criminal law, had different instruments: international law instruments (conventions and later on framework decisions) unanimity and veto power no direct effect → an implementation into national law was needed. These instruments did not include directives or regulations, since the community was still particularly similar to an international law regime. Then, the Treaty of Amsterdam (1997) tried to “communitarize” the third pillar but it was not successful. It changed the name and partially the content of the third pillar, from Justice and Home Affairs to the Area of Freedom Security and Justice (AFSJ). This Area was broader, also dealing with sensitive issues such as asylum, immigration and especially criminal law are (politically) sensitive. Member States are reluctant to give away their sovereignty and to confer powers to the EU in such delicate fields. These instruments not only touched upon the sovereignty of the states but also the fundamental rights of individuals; in fact, since these are areas that impact enormously on human rights, there was a need for more accountability of the EU for the measures taken in these fields. This accountability could have been achieved by strengthening the role of the European Parliament (democratically elected, and therefore accountable) and extending the jurisdiction of the European Court of Justice (ECJ) in this area. Then, the Treaty of Lisbon (2009) abolished the pillar structure and achieved the “communitarization”. It extended directives and regulations to the third pillar (co-legislation procedure) and extended the competence of the ECJ to the third pillar, with a transition period of 3 years (it started in 2014). Also, it set forth the possibility of accession to the ECHR and incorporated, among the binding treaties, the European Charter of Human Rights. The applicable sources changed and were then: Primary: Treaties Treaty on European Union (TEU) Treaty on the Functioning of the European Union (TFEU) Secondary: Directives Regulations (no veto power, no unanimity) Title V TFEU New discipline for the Area of Freedom, Security and Justice gave some guidelines to discipline this area in art. 67 TFEU: (1)The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States (...) (3)The Union shall endeavor to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. Criminal Law Provisions are included in the basic Provisions of articles: Art. 83 TFEU: Substantive Criminal Law → it deals with Judicial Cooperation (Mutual Recognition) and ‘procedural rights/matters of both victims and accused, as Admissibility of evidence; Defense rights; Victims’ rights. Art. 83(1) TFEU: “The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offenses and