Criminal Law - CEILS 2022/2023, Appunti di Diritto Penale

Scarica Criminal Law - CEILS 2022/2023 e più Appunti in PDF di Diritto Penale solo su Docsity! Criminal law After the 2019 reform, in law 354/1975 there is an explicit provision of affirmation of fundamental rights of inmates. Art.4 par.3 of Penitentiary law states that every detinee has fundamental rights. Art.67 penitentiary law establishes that a guarantor has an inspection power (no authorization to enter the prison): they have to write reports to director of prison and commander of penitentiary police but also to department of penitentiary administration (Rome) if the problem is general and affects all inmates in Italy. Home of detention =/= short time prison (Trento): less than 5 years or held in custody (pre trial detention, custodia cautelare) There is a multilevel protection: guarantor (no authoritative power), surveillance judge/judge of legality of penalty during its execution and ECHR (art.3 about prohibition of torture, inhuman and degrading treatment: several violation in Italy for prison conditions, in particular overcrowded ones; Torreggiani (2013) and other rulings). In Italy, there are two types of offenses: crimes and misdemeanor/contravention/infringements. In France there is a tripartite system (crime, misdemeanor and other minor crimes). LEGAL DIVERSITY, JUDICIAL INTERACTION AND THE METHODS OF COMPARATIVE CRIMINAL LAW Dr. Martufi Why should we even start studying criminal law from a European, Comparative and International perspective? Improvement, harmonization, approximation, … There is a perennial dilemma between harmonization and diversity of law and substantial criminal law in particular: on the one hand, harmonization is useful but criminal law comes from the tradition of each country that differs substantially even in relatively close and similar countries. There is tension between the pursuit of common (minimum) standards on the one hand, and respect for the different legal systems and traditions of states on the other (it is somehow unavoidable). Colson & Field say that ‘The inextricable link between sovereign state, national culture, and criminal justice makes it an area politically sensitive to governance at the supranational level’. In particular, constitutional standards are the relevant ones: they establish the limits of criminal law at national level and they cannot be deleted when trying to harmonize the topic at supranational level, also for the political importance. It is important not only for lawmakers but also courts. When we think about the harmonization of substantive and procedural criminal law, we should keep in mind a couple of questions. Asking both ‘can’ and ‘ought’ questions (but always making sure to distinguish between the two) is essential for clear and meaningful discussions on the ‘harmonization versus diversity’ dilemma that characterizes discussions on supranational law and therefore also about European and International criminal law. - ‘Can’ question: Given the diversity of European legal cultures is harmonization at all achievable? - ‘Ought’ question: If it is achievable, is it also desirable, given the virtues and vices of harmonization and diversity? - ‘How’ questions: If harmonization is both achievable and desirable, how may it be pursued while respecting diversity? Colson and Field speak of ‘intrinsic difficulties’ in this regard. Comparative law deals with classifications. The traditional division is between common law and civil law, but there is also customary law system, muslim law system and mixed law systems. We have to be careful because this typification of legal systems (in a broad sense) into bigger entities according to their general characteristics and legal histories is still useful. The underlying idea that laws of different states, regions, nations, peoples, or cultures can be categorized and generalized into neatly organized theoretical constructs is widespread within the academic study of law. But can national legal systems really be grouped into major families? There is convergence of legal systems and legal pluralism. There is harmonization due to the interaction between legal systems, also outside Europe (see the new US Penal Code, influenced by criminal theories from Germany and Uk). Jurisdictions in both countries are both not monolithic: there is legal pluralism (increasing importance especially where there are native communities and customary laws, e.g. restorative justice, circles). Despite the evident shortcomings, the legal family classification and the dichotomy does not seem to disappear; there is a role for the concept of legal families, but taxonomic categorisation should not be an end in itself. Common law/civil law refers to ideal types of legal families, while adversarial (legal and procedural truth based on fairness) vs inquisitorial (courts are not only adjudication but also role in the fact founding because material truth is central) refers to ideal types of criminal justice systems/procedural models/modes of investigation and adjudication (more about ‘ideal types’ later). Further dichotomies may concern the theories of punishment and the analysis of criminal liability, in particular the ‘structure of criminal offense’, two-tier or three tier. There are some ‘overlaps’ between dichotomies. Most common law countries use an adversarial model with a two-step organization; most civil law countries use a three-step division and an inquisitorial model (but not Italy). Significant differences between national criminal justice systems, some of which can be explained to some extent by reference to the adversarial/inquisitorial or common law/civil law ‘dichotomy’ are the historical development, key actors and their roles (e.g. police, prosecutors, courts), the position of the suspect/accused (justice-involved individual), key principles of substantive and procedural criminal law, legitimacy of criminal law (justifications for state intervention), legal education and training and courtroom design (e.g. public prosecutors in common law are attorneys while in civil law they are part of the judiciary). . In Germany, Spain and for some time in Italy, judges had a fact-finding role, the ability to reconstruct the material facts of the case. For this reason, they needed an elaborate structure. In other systems, it is the role of the prosecutor to come up with evidence. Accusatorial/inquisitorial ‘dichotomy’ is a useful analytical tool (Spencer: ‘there are unquestionably two different traditions’), but not without limitations/dangers: it oversimplifies matters (pure systems do no exist), there is potential for labels to ‘live a life of their own’ (leading to the exaggeration of differences and/or to differences being explained only in terms of labels), there is a potential obstacle to looking to other national criminal justice systems for ideas and inspiration and political ‘hijacking’ (see, examples from the UK pre- and post-Brexit: continental law is inquisitorial and, thus illiberal, e.g. contrary to British legal traditions/constitutional principles). Two-tier/three tier analysis of criminal liability is a useful analytical tool. Two-tier model distinguishes between the actus reus and mens rea and it’s used in UK, US, common law. The three-step model looks at the satisfying requirements of the statutory offense (‘typicity’) and it’s used in Germany and other civil law jurisdictions. But there is convergence (US model penal code with three.tier model) and interaction (through cooperation) and it’s an unsatisfactory dichotomy, see France as a two-tier model and Italy as an adversarial model. The justification of criminal law (and the nature thereof) reflects the prevention of harm to others (Anglo-American tradition) and the protection of individual legal goods/interests (Rechtsgüter, beni giuridici, bienes juridicos). In the context of human rights (HRL) and European criminal law (ECL), harmonization versus diversity is an ongoing dilemma. An important question in this regard is whether and to what extent harmonization is achievable/possible (given also the need to respect diversity). Convergence is a prerequisite for harmonization and the effective implementation of supranational law, including HRL and ECL; and that interaction between national criminal justice systems is both a prerequisite for, and important indicator of, convergence. Interaction can be said to ‘take place’ on two levels, in abstracto and in concreto, We begin on interaction in abstracto. Studying the interaction between national criminal justice systems in abstracto means studying how they relate to one another. Studying how national criminal justice systems relate to one another entails the comparison of such systems and comparative legal research. Interaction in abstracto, i.e. comparison, is inherent in interaction in concreto (i.e. the use of foreign or supranational law by national courts in practice). Put differently, interaction in concreto implies interaction in abstracto. Billis wrote on the relationship between harmonization, convergence and comparative legal research: ‘Comparative legal research aims at identifying modern trends in, and searching for convergences and divergences between more than one legal system. Any meaningful implementation of elements of foreign legal systems at the national level and the smooth realization of the objectives of international and supranational justice presuppose a reciprocal understanding between legal orders that adhere to different traditions in terms of their normative foundations.’ Defining the aim(s) and methods of research is important. Convergence and divergence are not mutually exclusive and must be taken together. In the division between macro versus micro-comparison, ‘in a micro-comparison, the objects of research are normally individual legal rules, judgments, or individual legal institutions. In macro-comparative law, comparison is done between legal systems or legal cultures. Typically, macro-comparisons deal with higher abstractions than micro-comparison. For instance, a micro-comparatist may ask what constitutes a legally binding contract, whereas a macro-comparatist may ask whether the rules of contract are based on statutory law or case law. Commonly, macro-comparative law is practiced by academics and theoreticians, whereas micro-comparatists tend to hold interest in more practical-natured legal questions.’ But in how far are the macro- and micro-comparisons research methods between which we can legitimately choose? Billis wrote: ‘an approach that focuses on a direct comparison of such specific legal norms would undermine the coherent definition of the research aims, might lead to overlooking significant material differentiations or to misinterpret similarities between the legal traditions and systems, and could deprive the entire research project of much needed added value. Instead, in the above example, the starting point of research might involve the definition, elements, and, most importantly, the limits of culpability in different legal orders belonging to the Western legal tradition.’ Merryman said: ‘A focus on rules limits the attention to only one kind of difference and equates “legal system” with “legal rules.” A more adequate definition of a legal system, however, would include a number of additional components: legal extension, legal penetration, legal culture, legal structures, legal actors, and legal processes.’ But there are difficulties involved in macro-comparison. Merryman wrote: ‘In brief, an adequate examination of convergence of the Common Law and the Civil Law requires attention to all dimensions of the legal system and a concomitant distrust of rules of law. This is particularly disagreeable because rules are so easy to find and to read, while it is very difficult to find reliable information about legal extension, legal penetration, the legal culture, and the structure, composition and operation of the law machine in law libraries.’ A functional comparison requires identification of ‘an overarching factual problem or social issue without reference to concepts and terminology of one’s own system’. It involves the use of ideal types: ‘a cognitive tool for facilitating functional comparisons and, in general, for depicting complex realities in a simple and abstract way’. For example: the ‘conflict-solving versus policy-implementation’ model, the ‘adversarial versus inquisitorial’ model, the ‘crime control versus due process model’. Ideal types are a useful ‘technical aid’ or analytical tool, but require careful application so as not to mislead or to lead to oversimplification or matters being overlooked. The unifying function is done to identify common grounds for harmonization and interstate cooperation. It shows the critical function of comparative criminal law to provide tools for convergence between legal systems. Such a legal toolbox might be used by both law and policymakers (e.g. EU Commission) or by supranational judicial bodies (ECtHR; CJEU). How to identify criteria to select such common ground: overcoming dichotomies, contrasts while respecting legal diversity? Interaction in concreto is the use of foreign or supranational law by national courts in practice Regarding the relationship between interaction in abstracto and in concreto, note Mak’s observation that ‘comparative legal research…is a prerequisite for the use of foreign law by the highest courts’. But should national highest courts use foreign law? Judicial approaches in this regard vary: Aharon Barak (former president of the Supreme Court of Israel) said that ‘When a national jurist – a judge, a professor of law, or an attorney – is confronted with the need to understand a legal phenomenon…that jurist is certainly permitted, and it is even desirable, to examine the understanding of legal phenomena and legal concepts beyond his national framework. These are all universal aspects which cross national boundaries, and in order to understand them, it is worthwhile to turn to all thought which has been developed on the subject, be its geographical origin as it may.’ Antonin Scalia (former US Supreme Court Justice) wrote that ‘the basic premise of the Court’s argument – that American law should conform to the laws of the rest of the world – ought to be rejected out of hand. (...) I do not believe that approval by “other nations and peoples” should buttress our commitment to American principles any more than (what should logically follow) disapproval by “other nations and peoples” should weaken that commitment. (...) What these foreign sources “affirm”, rather than repudiate, is the Justices’ own notion of how the world ought to be (…)’. The typologies are different: forms of transjudicial communication (horizontal, vertical, mixed), degree of reciprocal engagement (direct dialogue, monologue, intermediate dialogue), functions (enhancing effectiveness of supranational tribunals, assuring and promoting acceptance of reciprocal international obs, dissemination of ideas from one national legal system to another, enhancing persuasiveness, authority or legitimacy of individual judicial decisions, fostering common judicial deliberation). The common preconditions are the fact that courts in question see themselves as autonomous international actors, that they interact on the basis of persuasive rather than coercive authority and the assumption of commonality: commitment to and understanding of rule of law. The causes are increased internationalization, growing number of supranational courts, mechanisms that encourage/facilitate transjudicial communication The consequences are improvement of judicial decision-making, transjudicial community-building, blurring hypothesized boundaries between national and international law and spread and enhanced protection of human rights There are four types of variables which influence judicial practices: constitutional variables (‘constitutional flexibility’), institutional variables, organizational variables and personal variables killing another soldier in a duel. In both cases, the killing has been motivated by a sense of honor, which would suggest a lighter penalty. However, at any rate, Kant still thinks that death still remains the objectively appropriate penalty for such crimes. Potter taker a critical approach in regard to the fact that punishment must be perfectly matched to the crime, both quantitatively and qualitatively - in his view, Kant’s abstract theory of punishment sets a very high ideal because there is a suggestion that there should be zero tolerance, in the sense that we should be able to specify precisely what the appropriate punishment is and such precision can be argued to be out of human capability. Another example of the categorical imperative applied to the realm of Recht is the requirement of advance consent, which is an idea that Kant describes as "a mere idea of reason, one, however, that has practical reality.” The idea of advance consent means that there is an obligation for legislators to formulate laws in a manner that could have sprung from the unified will of the entire people in order for it to be just. To illustrate this point, he applies this particular theory to the privileges of the Noble class and states that they are to be refused because they could not have been agreed upon by the entirety of society, but only by the ruling class. This is another example of a universal law that is found in many formulations of the categorical imperative. However, we must be reminded that this is a theoretical exercise in order to establish the normativity of an already existing law and not something that happens in practice (at least in the time of Kant). In my opinion, nowadays this idea does not seem so far out of reach due to the mechanisms such as the judicial review of legislation which can be seen to share this idea by Kant. In sum, Kant’s theory of punishment as a categorical imperative centers around the idea of equality and fairness not only for the victim, but also the offender. As we have seen in multiple aspects, the retributivism of Kant is fully and strongly linked to his grander philosophical framework and his moral theory. Despite the fact that Kant is perceived by Potter as a partial retributivist, his writings indicate that he is a full retributivist and while this attitude might seem harsh to the modern perspective, Kant’s theory is particularly interesting because of the effort in rationalizing the value of retribution instead of relying on the emotional arguments that are often present in common discourse - legal retribution (Hegelian dialectic): under the utilitarian doctrine punishment is a way to restore the law and social order violated by the crime. It’s a kind of a syllogism: if crime is the negation of law, the punishment is the negation of the crime and thus the tool to restore the law, social peace (synthesis moment). Legal retribution is much more modern and it describes the fundamental characteristics of punishment: - proportionate: appropriate to the seriousness of the crime - certain: people should know in advance the consequence of behavior to guide consciously their conducts - personal liability: prohibition of personal liability for other people’s act (criminal liability is personal according to art. 27.1 Italian Constitution) - necessary: no other sanctions (civil or administrative) capable of achieving the same result; the less afflictive sanction should be used (extrema ratio of criminal law: use it only when it’s the only possible solution). - effective: it must be sure; the sentence must be carried out (which doesn’t mean to stay in prison for its entire duration: on the contrary there are two subsequent principle of re-education: gradual reintegration and flexibility which states that how to complete the execution of the penalty depends on the behavior in prison). In Italy there is a huge problem of lack of effectiveness: in the 90’s the legislator tried to find a balance between special prevention in a positive form (rehabilitation) and the general prevention in negative form (deterrence) and enacted some meccanism that permitted not to carry out the sentence. If the convicted is not considered socially dangerous (the judge needs a negative prognosis of social dangerousness, i.e. the concrete possibility to recommit the crime) and if he is sentenced to less than 2 years of imprisonment, the judge can grant the suspended sentence (which exists also in the Uk): the convicted doesn’t serve its sentence at all (it’s not a probation, but a suspension period of 5 years for crimes and 2 for infringements in which the offender must follow all requirements and not commit other violation; after this, the crime is considered extinguished. In Italy 50% of people enjoy the suspension of the penalty but it was not enacted for the overcrowded prison; the reason was to fight the criminogenic effect of short sentences (effect of prison environment), the goal of non de-socialization Fifty years before, Beccaria (1774, “On crimes and punishments”) wrote that punishment should be: public, speedy, necessary, the minimum possible in the given circumstances, proportionate to the crime and determined by the law. BECCARIA'S ON CRIMES AND PUNISHMENTS: A MIRROR ON THE HISTORY OF THE FOUNDATIONS OF MODERN CRIMINAL LAW - Bernard E. Harcourt (2013) “In order that punishment should not be an act of violence perpetrated by one or many upon a private citizen, it is essential that it should be public, speedy, necessary, the minimum possible in the given circumstances, proportionate to the crime and determined by the law.” With these words Beccaria closed Dei delitti e delle pene, a concise treatise that would become the crown jewel of the Italian Enlightenment and a classic text of modern penality (+ judicial torture to extract confessions, against the use of secret evidence and sealed accusations, against sentencing inequalities based on wealth and social status, and against excessively brutal corporal punishments). It was, in fact, an impassioned critique of the punishment practices of the 17th and 18th centuries, which Beccaria perceived to be excessive, brutal, arbitrary, and unequal. On Crimes and Punishments is a manifesto for legal reform centered on the Enlightenment values of rationality, proportionality, legality, lenience, and RoL. It was extremely influential and contributed to outline a history of the foundations of modern criminal law (author’s conclusion). Beccaria wrote Dei delitti e delle pene between 1763 and 1764 while an active member of a small Milanese intellectual circle known as the “Accademia dei pugni”. The treatise was first published anonymously for fear of repercussions given its strong egalitarianism and its secular foundations. As a matter of fact, it received mixed reviews, some of which even called the work “dangerous”. Beccaria’s little book soon caught the attention also of the Philosophes of the Encyclopédie. It was noticed by the statesman de Malesherbes who wanted it translated and published in France. Afterwards, he received compliments from Diderot and D'alembert and David Hume etc. It also caught the attention of Voltaire, who wrote a commentary that would later become the official French preface and where he defined Beccaria as “lover of humanity”. Beccaria’s treatise was translated into English in 1767 and immediately had a profound impact on the movement of utilitarianism, specifically both Blackstone and Bentham. Blackstone’s discussion of punishment in Volume 4 of his Commentaries on the Laws of England referred to Beccaria ‘more than any other authority, and he drew especially on his treatise to ground his arguments in favor of proportionality and certainty in punishment, preventive rather than punitive justice, and against capital punishment. For Bentham, who wrote Rationale for Punishment in 1775, Beccaria’s treatise became the cornerstone of his conception of a ‘moral arithmetic,’ which was at the heart of the utilitarian philosophy that he founded: the greatest happiness of the greatest number is the foundation of morals and legislation. There is one important divergence between Beccaria and the utilitarians: if the latter referred to the theory of the social contract as “unnecessary fiction”; Beccaria’s On Crimes and Punishments rests on a social contract foundation: he believed that state sovereignty was based on the fact that individuals relinquish freedom in exchange of security, which must be assured by the sovereign → hobbes BUT slight distinction: he disagreed with him in that individuals relinquished all liberty to the Leviathan. in fact, on Beccaria’s theory, individuals only relinquished the smallest part necessary to achieve security. For Beccaria, the principal means of enforcing the social contract was punishment = State-imposed penal sanction that kept individuals from trying to seize back that small part of freedom that they relinquished, a constant struggle given that men are by nature, so self-interested and passionate. But having given up only the smallest portion of their freedom, there is an inherent limitation to the extent, mode, and scope of punishment. "Everything more than that is no longer justice, but an abuse”. In other words, the right to punish is justified only to the extent necessary to produce security and order. Paradoxically, in this context, Beccaria was able to weave together the social contract theory and utilitarianism. The metric of just punishments and of just laws—the metric of justice—is precisely the greater good which utilitarians aimed for. Also the notion of maximizing social welfare (happiness) was central to Beccaria’s work + focus on equality: the rich and the powerful should be subject to the same forms of punishment and should not be able to buy their way out of justice. But we cant call him merely an utilitarian. For Beccaria, the two frameworks—social contract and utilitarianism—overlap, coincide, and there is no theoretical tension or potential conflict between them. Focusing on punishment, there are some things to consider: - Punishment must be related to the harm associated with the criminal offense, and the metric of harm, is to be measured by the harm to society, and not by the evil intent of the offender: damage done to the nation > malefactor’s intention. - The proper amount of punishment becomes simply what is necessary to prevent future similar acts of criminality—what we would call today ‘specific deterrence’ of a particular individual from committing future crimes and ‘general deterrence’ of other possible individuals. - The harm of punishment should outweigh the good which the criminal can derive from the crime. → this suggests proportionality and for Beccaria this proportionality between the severity of the crime and the severity of the punishment reflects the level of civilization of a country. - Principle of marginal deterrence: ‘If an equal punishment is laid down for two crimes which damage society equally, men will not have a stronger deterrent against committing the greater crime if they find it more advantageous to do so.’ Some other rules 1. the certainty of punishment should take priority over the harshness of the it. He argued that the certainty of judging by syllogistic reasoning is what produces, among citizens, a sense of justice that is so important to the legitimacy of the sovereign. 2. the harsher the punishment, the more likely the criminal will commit more crimes to avoid it. 3. the brutality of punishment will adversely affect the savageness of criminality, or as he wrote, “As punishments become harsher, human souls. . . become hardened.” Individuals in society, he suggested, get accustomed even to the harshest of punishments The basic idea is quite straightforward: Since individuals only give the slightest bit of freedom to the sovereign in order to achieve security, this could never include the right of the sovereign to kill a subject. Life is the greatest good of all, not some small measure of freedom. It would make no sense to give this right to the sovereign. Men do not even have the right to commit suicide, Beccaria suggested. The death penalty, according to Beccaria, did not fall in the domain of the right and just, but in the realm of war, but even in that realm, though, capital punishment was neither necessary nor useful. Not necessary because long-draw-out punishments, such as penal servitude or slavery for life, are more effective and fear-inducing than the fleeting shock of death, “which men always regard as vague and distant”; Not useful because capital punishment has a brutalizing effect on society, ‘because of the example of savagery it gives to men.’ Beccaria’s argument attracted the criticism of both Kant and Hegel. Kant mainly defended the right to capital punishment as a core pillar of his retributive theory of punishment and the idea of lex talionis. Hegel attacked Beccaria’s conception of the sovereign state and its purpose. For him the state was not a contract and its purpose was not the unconditional protection and guarantee of the life and property of the individuals. On the contrary, it is a higher entity which lays claim to life, property and demands sacrifice.’ (Despite this disagreement, though, Hegel applauded Beccaria for focusing attention on the death penalty and for helping to bring about a more rational appreciation of this extreme punishment.) The author of the essay tells us that Beccaria’s theoretical approach would shape the sensibilities of modern economic theory. It would be helpful to draw a line between two possible perspectives of analysis on Beccaria's work, economic on one side and humanitarian on the other. On the economic side, which is the most prominent for this section, Beccaria had (first) a fundamental role regarding the use of mathematics. He is perhaps the first to ever have deployed mathematical modeling to analyze criminality and Joseph Schumpeter even recognized him among the three precursors to modern econometrics. (Schumpeter in fact called Beccaria “the Italian A. Smith,” and Adam Smith “the Scottish Beccaria”.) Second, and at a more general level, Beccaria heavily influenced the theoretical framework of the modern economic approach to crime and punishment pioneered by scholars such as Gary Becker and Richard Posner at the University of Chicago. For example, Becker’s economic model of crime followed the idea, developed by Beccaria and Bentham, that criminal behavior is influenced by calculation of the costs and benefits of committing crime → so the modern economic model assumes that an individual—any one of us—would engage in illegal activity as long as the benefits outweigh the costs. Overall, Beccaria believed that the logic of economics could tame and civilize society, could guide policy in the social domain, determine right from wrong, just from unjust punishment. But there is one crucial difference that sets Beccaria apart from contemporary liberal economists: the economic rationality that Beccaria promoted was not the self-regulating, free market system, but instead, what is referred to as cameralism: the intense administration of markets and commerce. it was the economics of how to maximize the "prince’s" wealth using all the tools of state intervention, eg. taxation. In this sense, Beccaria was in no way a precursor of liberal economic thought. Beccaria’s views on policing caught the attention of the Physiocrats—a group of French thinkers that opposed the circle of Philosophes. One of them, Dupont, praised Beccaria for being one of the first recognized economists, but at the same time, he heavily criticised him, primarily on the question of the right to property, suggesting that Beccaria had not properly recognized the importance of that right. He also criticised Beccaria’s method, which, starts with the particular instead of beginning with general principles and first truths. He also criticized his policy proposals, suggesting that they inevitably will lead to an impoverished nation. For Dupont, Beccaria was threatening because he promoted a different brand of economics, by trying to integrate and harmonize commercial regulation with the penal sphere. On Crimes and Punishment served also as basis for the genealogy of discipline and prison in Discipline and Punish by Foucault, both implicitly and explicitly. Foucault, in his 1978 lectures, illustrated three different approaches to governing —the juridical, the disciplinary, and the security modes —and, by means of the example of the policing of the grain markets, he analysed the characteristics of discipline, which was very much resemblant of the regulatory mechanisms that Beccaria had espoused with his concept of discipline—all this without directly mentioning Beccaria. On the other hand, Foucault explicitly referred to Beccaria as the key reformer who, drawing on Enlightenment ideas, as well as utilitarian principles of prevention and correction, helped imagine a system of proportional and signifying penalties that would communicate the proper values and simultaneously educate the citizenry. The problem was not that the brutal punishments of the Ancien régime were too savage, he argued, rather it was that they did not function properly anymore as a result of changing social and political circumstances. Beccaria’s writings evinced ‘the emergence of a new strategy for the exercise of the power to punish’ with the primary objective ‘not to punish less, but to punish better,’ with ‘more universality and necessity.’ In the penultimate paragraph of the treatise Beccaria writes: I conclude with a final reflection that the severity of punishments ought to be relative to the state of the nation itself. … But as souls become softened by society, sensitivity grows. And as it does so, the severity of punishments ought to diminish, if the relation between the object and the sensation is to remain constant. In Italy, the retributive theory was supported by the "Classic School”, whose leading scholar was Carrara: 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". It is based on the concept of social contract by Rousseau which has to be restored by the punishment. Carrara asserted that punishment should be: - exemplary: public, deterrent for all citizens; the core of general prevention in negative form (keeping members of society from committing a crime). Carrara also claims that making an example of the offender should not prevail over the correct proportion of punishment: it’s not only about prevention and deterrence, but also a matter of proportion and retribution as limits to this. - certain (see above) - fast: the penalty should be executed as soon as possible (Riforma Cartabia deleted prescription because in Italy criminal proceedings are long). - imposed in a way that does not corrupt the offender: back to the idea of non de-socialization, special prevention in its strict sense: no wide sense of re-education and rehabilitation, but as a not further desocialization. Carrara also gives a classification of punishment. In the 18th century he classified punishment in 4 different classes: - Capital punishment/ Death penalty: he is completely against, just like Beccaria. Carrara played an important role in drafting the Zanardelli Code in 1889 that didn’t provide for death penalty. - Coercive punishment: divided into: • Positive (corporal punishments) which are also divided into: • Permanent: e.g. mark or mutilation. Carrara was against and considered them degrading, irreversible and inhuman, not repairable • Erasable: e.g. flogging, corporal punishment • Negative which are proportional and are repairable, in the sense that they're not definitive; they are the ones that limit the liberties of detainees, e.g. detention and exile. If the punishment is reversed, there is not the possibility to ‘cancel’ the punishment if it is definitive. Detention is the best punishment according to Carrara since it reflects the proportion idea and reparable aspect of a punishment. - Dishonorable punishments: they destroyed dignity and didn't show a connection between the criminal conduct and the sanction; e.g. public blame (placulum). Carrara considered them unequal because they are perceived by the offender in a different way, in a subjective way (not being able to vote can be terrible for someone and not so important for others). Ancillaries or accessory penalties in the Italian system are still in existence and applied together with principal penalties; if the preconditions are met, the judge doesn’t have discretionality in applying them; they are strictly connected with the description of the conduct of the offense, described by specific instances of the law: one of the preconditions is a violation of duty or an abuse of power. An example is the interdiction from the medical profession, but at the time of Carrara this connection between the conduct and the punishment was not present. - Pecuniary punishments: classified them into: a. Pecuniary punishments in the strict sense: fines. Carrara criticized them because different people attach different values to different events; they are unfair because of the economical condition of the prisoners (while deprivation of liberty is equal since it’s perceived by all offenders in the same way). 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 (1: setting the compensation; 2: considering the economic situation of the convicted, setting a certain maximum and minimum). b. Pecuniary punishments broadly speaking: confiscations. It is considered a security measure in Italy and when it affects all the goods (omnium bonorum), Carrara didn't approve because it also affects other members of the family therefore going against the principle of personality of the punishment (art.27.1 IC: penal liability is personal). Security Measures Principal penalties must be separated from security measures. Art.71 of Italian Penal Code provides two different types of principle penalties: pecuniary and deprivation of liberty. and no other tools. Extrema ratio is valid also for detention if compared with other penalties. In this doctrine, nevertheless, special prevention is still understood in its negative form. 2. Positive special prevention: it was theorized by Krause in “Emenda theory”. He considered the offender as an incapacitated and desocialized subject which should be re-educated in conformity with the values of society. He also considered intervening in the environmental factors that lead the subject to commit the crime. It anticipated concepts later developed by the positivist school There's a double need: isolating the offender and re-educating the offender. It depends on the characteristics of the offender himself: it implies a recognition of a great deal of judicial discretion aimed at evaluating not only the actus reus but also and most of all the offender; this approach should surely lead to humanisation of the re-educative prison treatment and also to the opposite extreme of throwing away the keys, since it imposes/claims an extremely intransigent punishment when rehabilitation is impossible. In this case we could have life-imprisonment (sine die sanction). Historically life imprisonment entailed day-night isolation and in some countries, e.g. in Japan, it is still so nowaday. Zanardelli code in 1899 provided a continuous isolation for the first 7 years of imprisonment (it was nevertheless considered liberal because it didn’t provide for the capital punishment). 3. Positive special prevention was expanded by the theory of Von Liszt. The German criminologist added to the idea of neutralization and re-education. The concept of resocialization sees punishment as a tool to achieve different goals depending on the classification of the offender. It is a totally different approach from Carrara's one because the distinction is based on the different characteristics of the offender. Here, for subjects who are totally unsocialised (=no family/no friends etc..), punishment works as a tool for socialization; for offenders who are incorrigibles the only possible solution is neutralization (death penalty or life imprisonment); for occasional ones, punishment has the goal of intimidation, aiming to re-educate the offender and preventing the committing of new crimes. The theories of punishment were developed also in the Positive School. Here, crime is a concrete action of a concrete human being in a contingent reality in which there is no space for free will; for positivist scholars the offender is led to commit a crime not by free will but by other factors. There is a law of natural causation that leads a person to commit a crime. Lombroso theory is based on biological determinism: he analyzed the dead bodies of most dangerous offenders and gave an identikit of the criminal type in “Criminal Man” and “Criminal Woman" (e.g. sloping forehead, median occipital fossa, …). He had a lot of success. Nowadays, his work is carried out by neuroscience, based on synaps movement. There is a debate on whether using genetic techniques as a means of proof. According to Garofalo, psychological factors, not physical ones, are important. Ferri gave value to all the aspects underlined by his colleagues (physical factors and psychological factors) but underlined also the importance of the social context/environment and made it the most important aspect that leads a subject to commit a crime. His theory was inspired by Von Litzs but anticipated important principles. In particular, he theorized the so-called “legge di saturazione criminosa/law of criminal saturation” according to which the commitment of a crime is determined by the social environments: crimes are results of innate inclinations (physical and psychological) but most of all social and economical conditions. From this first doctrine, he also developed a second and very current theory: the theory of the “sostitutivi penali/criminal substitutes” according to which criminal sanctions are one of the tools of crime prevention, therefore criminal sanctions should be combined with social reforms changing the social context, with a positive impact on the criminal situation (criminal law is not enough): e.g. law on divorce help with murders, change on law on inheritance could have a good effect (if you kill the testator, you cannot inherit: indegnità a succedere now is law). However, he recognized that this proposal of massive reform was impossible: too expensive in terms of money and time. However, it is important since it was the first theorization of extrema ratio of criminal law. Ferri gave also a classification of penalty, based on the type of offender and not on the type of punishment or sanction, as Von Litsz: - Mad offenders → mad asylum - Known incorrigible offenders → perpetual deportation or deprivation of liberty (but others proposed death penalty, e.g. Garofalo; others proposed other invasive penalties). The idea is neutralization of offenders - Impetus offenders (offenders acting on impulse or passion) → sanction is useless so there is no possibility to improve the social context. The compensation for the victim and the removal of the offender for a limited period of time are the only proposed remedies. - Occasional offenders → prevention has to prevail over repression (prevalence of special prevention). The goal is re-education and Ferri proposes the surrogate penalties (pene surrogatorie), close to modern alternative measures. It was at this moment that struggles against short period sentences arose (criminogenic behavior). General theory of the crime - civil law Acts can be legal or illegal (in violation of the law). The consequences of illegal actions can be compensation (in cases of civil liability) and punishment (in cases of criminal responsibility, where compensation is not enough). Punishment does not rule out compensation: a victim can claim compensation in a separate trial or in the same criminal trial. There are three purposes of punishment. The first and oldest is retribution: we have to inflict some kind of suffering to the offender. The second is deterrence, which can be specific and general. General refers to all members of society (the mere existence of a provision should work as a deterrent for people who want to commit a crime), while specific refers to the offender who has already spent time in prison (if you already tried it, you avoid committing it again). The third one is rehabilitation: punishment should re-educate and re-socialize offenders. Rehabilitation is more developed in the civil law area. Who decides whether or not to incriminate some kind of wrong behavior? The legislative power, the parliament. This is why: first of all, there is democratic representativeness (minority and majority should debate about the needs of society). Then, they need to prevent abuse by the hands of the executive powers. Finally, there is a need to curb judicial discretion. The legislative power faces some limitations in the act of criminalizing certain conducts, since parliament is not a sufficient guarantee for the rights of people. First of all, the constitution limits its power: e.g. freedom of movement, right to life, …are protected so the parliament can criminalize only those acts endangering those rights, called legal goods. Also, principle of subsidiarity should be respected: criminal law must be the extreme ratio (only if all other sanctions have failed, we can resort to criminal law). The principle of legality means that the crime must be strictly and exhaustively outlined by statutory law, adopted and brought into force before committing the crime. From this principle, we can derive other four rules. First of all, there is statutory reservation (riserva di legge): the crime must be provided by a statutory law, an act adopted by the parliament. Then, there is non-retroactive application of criminal law (ex post facto law). Also, well-definition is derived: the provision of criminal law should be worded in clear and specific form in order to be understandable by citizens. Finally, there is prohibition of interpretation by analogy (same decision for similar situations); the only thing allowed is extensive interpretation. The principle of legality is present in art.25 IC but also art.7 ECHR. The case law considers two fundamental points: accessibility (ability to access the law easily) and foreseeability (from the wording of the provision, the criminalized conducts and the penalty are understandable). They are suitable for both statutory law and case law. In conclusion, we can say that a crime is a fact, a change in the external world which: is the result of a human action; the legislative power decides to punish it; it is strictly and exhaustively outlined by statutory law; it is adopted and brought into force before committing the crime; its evaluation of which does not depend on the moral standards of the judge; it offends the legal goods enshrined in the constitution, undermining the “wellbeing” of society. We now have to shift from an empirical and phenomenal perspective to a judicial, technical and analytical perspective, so that a judge does not have to base the judgment on intuition and emotion. There are three important principles: the principle of legality, the principle of materiality and the principle of harmfulness. The principle of materiality is considered implicit in the conduct in common law. In our system, in order to be punished you have to act and do something. The third principle is the one of harmfulness: to be punished, the act must endanger a legal good. It addresses both the lawmaker and the judge. The lawmaker has to build the provision including the legal goods at risk. The judge has to check whether the act was concretely able to endanger the legal good; however, this is not easy to decide (e.g. stealing an apple). The crime is composed of three parts: typical fact, unlawfulness and culpability/mens rea. The elements that compose the typical fact are three: conduct, the causation and the event. - The crime is based on a conduct, a fact (not on a thought): art.25 IC states that no one shall be punished except on the basis of a law already in force before the OFFENSE (fatto) was committed. The legal system criminalizes an action; however, under some circumstances, omissions can also be punished, but this is an exception: it is a crime when there was a duty to act. The duty to act comes from the law, a contract or previous dangerous action (if you act illegally, you have to act in order to prevent harmful consequences following your conduct); the legal basis is art.2, principle of solidarity. - Results crimes (crimes, the perpetration of which consists in the causation of an event, e.g. murder) are different from mere conduct crimes (crimes in which the law punishes some kind of action or omission, regardless of any event that might follow, e.g. stealing). The result crimes can be free-form crimes, with general conduct (offenses which are punishable because a certain event has occurred, regardless of the manner in which they have been perpetrated; e.g. murder) or bound-form crimes, with a specific conduct (offenses, the gravity of which lies in the manner they have been committed; e.g. fraud). There is also a distinction between naturalistic events (harm occurred due to the positive action/the omission of the accused; the wrongful behavior altered the world around him/her, causing a perceivable modification in reality) and event in a legal/juridical sense (damage or endangerment of the legal good protected by the criminal provision). Every crime must include an event in the legal sense. - Causation follows the condicio sine qua non rule on personal liability: art.27 IC states that criminal responsibility is personal. It applies to both positive actions and omissions, but the judge has to reason in another way. In cases of positive action, there must be causation: A caused B if, without A, B would have not happened (the judge has to remove the conduct). In cases of omissions, A caused B if, with A, Would have not happened (the judge has to add the conduct). This is one of the most difficult steps in legal reasoning. Unlawfulness (antigiuridicità) is the second element of the crime. It refers to the fact that the offender can submit to the trial to exclude his fault. Even when we have established the typical fact (actus reus: there is conduct, causation and effect), we can say it is lawful when there is necessity (rescuing someone’s life, avoiding serious harm to physical integrity can justify the death of someone else if there are no other ways to avoid the harm), self-defense (counter-attack, fight back but in a proportionate way between the reaction and the offense and only while being attacked, not later), exercise of a rights (if done in a proportionate way, e.g. journalist gives a news about a politician), consent (e.g. medical intervention). The final part of the crime is culpability/mens rea. Criminal responsibility must be personal but also culpable, i.e. when detached from normative standards set by law and can be reapproached for their conduct. This is a normative conception of culpability, which can also be linked to rehabilitation: if someone is not culpable, there is no point for punishment and rapprochement. - The capacity of thinking and willing means that someone is considered capable unless some circumstances occur: mental insanity, child under 14 and alcohol and drug intoxication (but if you are drunk voluntarily or negligently to commit or before committing a crime, you are considered culpable; only in cases of chronic addiction). In these cases where offenders are not able to understand what they do, punishment has no point; they rather need support. Medical insanity, in particular, is difficult to assess; there are two perspectives: the medical approach considers only psychosis with pathological characters (this has legal certainty); not only psychosis but also personality disorders are considered able to affect the capacity of thinking and willing according to the Italian Supreme Court because these disease don’t have a distorted view on reality as psychosis, but give trouble when relating to situations and people. This is connected to culpability: one can be considered the offender if he can be reapproached. However, the mere presence of mental insanity is not enough: the judge has to verify if the type of mental illness the accused one suffers from has affected their capacity of thinking and willing in committing that specific crime (e.g. kleptomania does not affect the capacity to know that killing is bad). - Culpability has two forms: intent (dolus) and negligence (fault). Intent is the general rule: if you act deliberately, you will be punished (you wanted the consequences of the action). Within intent, there are different degrees: impetus (intent arises suddenly, e.g. after an argument; no planned crime), recklessness (it lies between intent and negligence and doesn’t correspond to a specific category in our legal system; e.g. HIV but unprotected sexual activities; go skiing causing an avalanche that kills people ignoring the prohibition to go skiing) and purpose forethought (action planned in advance). In the Italian system, there are three types of dolus: - dolo eventuale: less severe - dolo intenzionale: consequences are desired, act on purpose - dolo diretto: the aim is not committing the crime, but you know that acting in that way you’ll commit a crime (e.g. fire a boat with someone inside to get the money of the insurance, although you know that there were people inside). When deciding the penalty, the degree of intent must be considered by the judge. The other form is negligence, fault. This is an exception: the general rule is intent and, if negligence has to be punished according to the legislator, it must be said explicitly. It is difficult to establish negligence: e.g. breaking a cautionary rule: a reasonable person was able to foresee and avoid the harmful result of the break of the cautionary rule. To sum up, intent is composed by representation and intention/will; based on the degree of seriousness of intent, we can divide it into impetus, recklessness and purpose forethought. Negligence is defined by a negative element (lack of intention, while there can be representation) and a positive element (break of a cautionary rule). - The final characteristic of culpability is that there must be no excuses (the offender could not act in a different way) that can exclude culpability. However, art.5 of the C.P. states that ignorantia legis non excusat. The Italian Constitutional Court in the sentence 384/1984 ruled this article partly unconstitutional, when the ignorance of the law is unavoidable (e.g. obscured provision). Excuses, in the tripartite system, are part of the third pillar. This is the tripartite structure of the crime: to have a crime, all three parts must be present. If there are only some of them but not all: - typical, unlawful but there is no culpability: it’s an illicit, so no criminal consequences but maybe administrative or civil - typical but not unlawful (self-defense, necessity, …): not illegal, so legal in all the legal system, no other types of consequences There is also the quadripartite structure that also contains punishability: the judge has to establish that the crime is punishable. It might be not punishable when the legislator considers it not useful, convenient to be punished. An example is incenst which is punished only when a public scandal ensues. Immunity excludes culpability: it is for the Parliament of the Republic and parliamentarians. Art. 150 c.p. states that the death of the offender extinguishes the crime. This is one of the causes of extinguishment. General theory of crime - common law There are some structural differences between the common law and civil law systems. In common law there is a wide understanding of the principle of legality, while in civil law the understanding is strict. Substantive and procedural criminal law are part of a whole in the common law, while in the continental system they are separated. Common law as a case-by-case approach, while the continental one has high levels of theorisation and abstraction. The general and special part of criminal law are usually studied together in common law, while they are studied separately in civil law (the former is necessary to understand the latter). In common law, subjective principles have preeminence over consideration about harm, while in civil law there is preeminence of the harm principle. In continental legal systems, there is a formal and democratic dimension (separation of powers): crimes and penalties can be legitimately imposed only if they are envisaged in a statutory law passed by the Parliament and case law is not a legal source (principle of legality). There is also a material dimension (legal certainty safeguards), with three corollary: non-retroactivity, taxativity/precision (the law should be as much precise as possible) and prohibition of analogy (for judges: they cannot apply criminal law to cases that don’t fall in the scope of that provision). Common law systems share the material dimension and the worry to grant legal certainty, so they grant non-retroactivity and taxativity. On the contrary, in common law systems, there is no formal dimension (both statutory law and case law are legal sources), and high judicial discretion (but there is the binding precedent rule to grant legal certainty). According to the binding precedent rule, courts are bound by former decisions of the same/other courts in order to grant legal certainty. There is a possibility to depart in cases Introduction to International Criminal Law - Caroli International criminal law is about the most serious crimes that affect the whole of humanity. In international criminal law there is a horizontal relationship between States (differently from criminal law that has a vertical one). Traditionally, there was nothing beyond the State and criminal law is what states are more jealous about. In the past, wars were exceptional times where everything was permitted; later, everything was forgotten and forgiven. Amnesty was the best method to end the war. Responsibility could be applied only to states, while now the idea of individual responsibility for international crimes is rising. The first attempt was after ww1 to change this tradition (prosecuting Kaiser Wilhelm II), but it failed. Things changed after ww2, especially because the crimes were so terrible that it was impossible not to react. From the perspective of international law, there was no legal basis for that, so the Nazis used the excuse that it was not criminal and not illegal. People reacted to the atrocities of the war using law instead of amnesty. The three crimes in the charter for the Nuremberg Tribunal (international military tribunal) were crimes against peace (today, aggression), war crimes and crimes against humanity; back then, they didn’t have any legal basis, so they used natural law and philosophy. There are some biases: the crimes and the tribunal were established after the facts took place; the judges were appointed by the winning powers and also the Allies committed some international crimes. However, this was a way to say that there are boundaries, it showed that individuals can be held accountable, no matter of why they acted for, and those crimes were formalized. For the first time, the source of criminal law comes from outside the state, from a treaty: no matter what the domestic law says. Some principles were established back then but are valid still 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, acting as a head of state or government does not exclude punishment, every accused has the right to a fair trial. The Tokyo Tribunal is a similar experience, although not formally a military tribunal. There were also subsequent Nuremberg trials, to prosecute other people involved, apparently less responsible. We had to wait until the 90s to have other similar tribunals for other conflicts; meanwhile, while there was no application of international criminal law, there was the so called age of codification to codify what was established quickly in Nuremberg: 4 Geneva Conventions 1949 and 2 additional Protocols 1977, Convention on the Prevention and Punishment of the Crime of Genocide 1948, Convention on the non-applicability of statutory limitation to war crimes and crimes against humanity 1968. In the 90s, two other tribunals were established: the ad hoc Tribunals [ICTY (Yugoslavia, 1993) and ICTR (Ruanda, 1994)]. There are differences and similarities with the Nuremberg tribunals: they were both ad hoc, ex post facto, not voluntarily established and done for victors’ justice; however, individual responsibility was already established, international rimes were already codified, the UN have a different legitimacy than the Allies, the crime of genocide was not present before and there was procedural law in accordance to rol. The ICTY has contributed substantially to clarifying and further developing international criminal law, in particular to the assimilation of the scope of criminal law applied in international and non-international armed conflicts. There are examples of transitional justice. At the end of the cold war, there were other ways of dealing with the past. Everything changed in 1998. In America, the main topic was the Lewinsky issue: nothing like climate change, pandemic, … terrorism was not there and the enemy of the east was defeated. For the first time, there were no two powers but only one united world. There were goals for the new millennium, no more serious problems, … It was naive. The ICC was founded and Pinochet was arrested. After the cold war, in the second wave of transition, democracy took the place of previous forms of government in a peaceful way. Pinochet committed crimes and everyone knows that, but no one could think that he could be arrested and prosecuted. ICC was supposed to be the first court respecting the principles of criminal court (not ad hoc, not ex post, …). Now we are facing an age of disillusion: the more likely states to commit international crimes are not part of the convention, there are problems of fundings since it is very expensive, it was successful in cases where states cooperate, it refers more to African states and non-state agents, Death Penalty According to the theory of social contract, sovereignty includes the right to kill citizens. During the Enlightenment this idea started to be challenged, e.g. by Beccaria. Today, there are still states that impose the death penalty. Among the ones that impose more death sentences we find Iran and Saudi Arabia that use it to impose a regime of terror mainly for political opposition and to scare the population. However, the idea of the death penalty associated as a right to sovereignty started to change with the Holocaust that showed that sovereignty is no longer connected with the power to kill. Now, ¾ of the countries in the world stop using it, maybe not changing the law but only suspending the practice. A connected topic is the use of violence by police in South america. In the Philippines, political offenders are de facto executed while other offenders are protected against capital punishment. The problem is that public opinion still supports it: this is an understandable but emotional response due to ignorance. Another topic is the relation of the death penalty with islamic religion: sharia law provides for it not for so many crimes as established in some states (only for rape, murder, adultery, …) and it is never mandatory. When sharia was created, the death penalty was imposed for deterrence but now it is adapted and used as an excuse. The point is that there is no unanimity, no uniform interpretation about what sharia law allows. The strongest and most organized opposition came from the Catholic church and her activists. Now there is also an important role played by academic research. The abolition in the countries is a result of different reasons: religious, personal (e.g. France individual role of the minister of justice) and also scientific research which was able to demonstrate: the arbitrariness of death penalty; the role of deterrence, the cost of death penalty and the fairness of such practice (racism, gender, innocents, …). An important thing to change people’s minds is empathy: usually, killers are considered different from us. However, they are always humans capable of improvement and we do not consider the victims created by executions, innocent people that are relatives of inmates sentenced to death. Also, the families of the victims of the inmate can watch execution but later they are not trouble free. Kant and Capital Punishment today Kant’s deontological ethics can be summarized with this sentence: nothing is divine but what is agreeable to reason. According to moral absolutism, morality is like a mathematical constant: always true as it is based on human, not divine, intellect: "For if justice and righteousness perish, human life would no longer have any value in the world." The categorical imperative is our moral obligation/duty derived from pure reason. It differs from Hypothetical Imperatives. It has two formulations: 1. principle of universality: replacing do unto others as you would have done unto you 2. principle of humanity: replacing love thy neighbour and universal love. People as ends in themselves since they are autonomous, and thus have moral worth/selfhood Kant’s retributivism is summarized in the following sentence: The penal law is a categorical imperative; juridical punishment can never be administered merely as a means for promoting another good, either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of real right. Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality. Immanuel Kant was emphatically in favor of the death penalty for the crime of murder: even if a civil society were to be dissolved by the consent of all its members, the last murderer remaining in the prison would first have to be executed. This position on Kant’s part would hardly seem surprising, for Kant’s views on punishment are usually understood as a paradigm of retributivism. In Kant’s day, capital punishment was used for a variety of crimes throughout Europe and the new world, though Kant expressly argues in favor of it only for the crime of murder. There is also an approving mention of capital punishment for treason, where the crime is described as “attempting to destroy his fatherland – parricida,” but Kant does not indicate that for any other crime. In any event, world-wide today, among the countries politically organized most like Kantian republics, there is a near-consensus that the death penalty is best abolished. We will consider alternative ways that Kant’s philosophical views on ethics generally and on punishment more particularly could be brought into harmony with the present consensus of opposition to death penalty. Let us begin our discussion of Kant’s views today on the death penalty by considering another instance where there has been an even more decisive shift of consensus away from views that Kant presented in the Rechtslehre: the equality and citizenship of women. There Kant discusses the rights and attributes of a citizen, and in that connection makes a distinction between active and passive citizens. Though Kant does not much develop this distinction, he appears to think that passive citizens possess fully such rights as rights not to be injured or killed, and to enter into ownership of property, but passive citizens are in particular lacking the right to vote, and otherwise to participate in the activities of government. He gives the following as examples of passive citizens: an apprentice, a domestic servant, a minor, all women. Such individuals are lacking the “civil independence” which is a necessary attribute of any active citizen. He adds as a requirement that anyone in a position of passive citizenship “can work his way up from this passive condition to an active one.” Such a requirement makes sense in the cases of apprentices, servants, and minors, but it hardly makes sense in the case of women. It is almost as if Kant forgot his example of women as passive citizens. Women are women by birth, and it makes no sense to speak of working their way up from the status of being women. There is another group that Kant does not mention, that causes almost as much of a problem for this proviso as women. Also among the group of passive citizens would be various sorts of incompetent adults: the severely retarded, the severely mentally ill, the comatose, and the senile. Today there is a new and for all practical purposes universal consensus on the status of women: they are to be accorded full status as active citizens. The same is true of adult servants and apprentices. Yet the distinction between active and passive citizen is not in itself objectionable, because we would wish to make such a distinction today, and to put certain groups of individuals into the group of passive citizens. Two such groups would include minors and adult incompetents. There is some arbitrariness and a considerable amount of administrative convenience in recognizing some given age as the minimum age, but very young children, say those five or ten years old, are inevitably immature and dependent. The same is true of adult incompetents: there will always be difficult line drawing problems in determining the competency of adults, but there is a consensus, surely, that there are some individuals who would rightly be classified as legally incompetent. If all this is correct, then it follows that the problem with Kant’s distinction between active and passive citizens is not with the distinction itself being objectionable or invidious in some way, but with its application to the class of women. We can retain and accept the distinction between active and passive citizens, but reject Kant’s view that all women are to fall into the class of passive citizens. In doing so, we may revise the scope of classification of passive citizens. Let’s now turn to Kant’s retributivist argument for the death penalty. P1 Some criminal punishment is justified if and only if the punishment serves as retribution for the criminal’s behavior. P2 Some punishment can serve as retribution for the criminal’s behavior if and only if that punishment treats the criminal in a way that is sufficiently serious to match the severity of the criminal’s wrongdoing. → principle of retributive quality C1 THUS: Some criminal punishment is justified if and only if that punishment treats the criminal in a way that is sufficiently serious to match the severity of the criminal’s wrongdoing. P3 The death penalty is the only punishment that is sufficiently serious to match the severity of the crime of murder. C2 THUS: The only justified punishment for a murderer is the death penalty. "Whoever has committed a murder, must die." The lex talionis or principle of retributive equality for Kant means that "The undeserved evil which any one commits on another, is to be regarded as perpetrated on himself. [...] This is the right of retaliation (Jus talionis); and properly understood, it is the only principle which in regulating a public court, as distinguished from mere private judgment, can definitely assign both the quality and the quantity of a just penalty. "One who makes himself a worm cannot complain afterwards if people step on him." In accord with today’s near consensus on the death penalty, let us assume that Kant’s conclusions about the appropriateness of the death penalty for murder are incorrect, and there needs to be some revision of those views. Here the consensus against the death penalty is surely not as complete as the consensus for the full equality of women as citizens. There will be different alternative modern revisions of the Kantian theory of punishment that present themselves, and so arriving at a consensus about how to revise the Kantian theory to remove Kant’s support of the death penalty will be more complicated. One response to Kant’s theory of punishment, or to retributive theories of the justification of punishment in general, is to criticize and reject retributivism. Among the many criticisms of retributive theories of the justification of punishment is one which is aimed against the revenge element of such punishment, its perceived excessive harshness, and teleological pointlessness. One of the best developments of this criticism, in specific relation to Kant, is in an essay by Thomas Auxter, “The World of Retribution”. Auxter admits that Kant was a retributivist in his theory of punishment, but urges that this element of Kant’s theory could be rejected without major implications for the rest of Kant’s theory. We will see that Kant’s retributivism is compatible with a position opposing the death penalty, and hence that retributivism need not be implicated as we seek to revise Kant’s theory into a modern Kantian theory that opposes the death penalty. While there is an emerging or partial consensus against capital punishment today, there is no such consensus, even in prospect, in opposition to retributivism. Let us put Kant’s views on capital punishment in historical perspective. Kant proposes the use of the death penalty to be limited, primarily as a punishment for the crime of murder. But the laws in force for much of Kant’s life, the Constitution Carolina Criminalis of the German states, imposed the death penalty for a much wider range of crimes. Kant’s rejection of torture-executions represents a protest against and progress upon the status quo of his day. Thus Kant’s views may be progressive in the context of their time, even if contrary to present day consensus. It is sometimes claimed that carrying out the death penalty has a brutalizing effect on people who become aware of the executions. When this happens, executions may encourage rather than discourage potential murderers to proceed with their plans, and the deterrence of crime may actually be weakened. It surely goes against Kant’s grain to seek to maximize deterrence; maximization is more characteristically a utilitarian idea. We are perhaps talking about something more troubling here, punishments that may have the effect of inciting further crimes, something that arguably would have been of concern to Kant. As another instance of such thinking about actual harmful effects, or symbolic aspects of certain forms of punishment, it may be observed that Kant, though recommending the lex talionis in certain instances, also seeks out “symbolically equivalent” punishments in certain cases. Rather than rape the rapist, he proposes the rapist be castrated. Without endorsing these proposed symbolic alternative punitive retaliations, they show that Kant is willing to adjust the punishment when a literally like punishment is either impossible or morally objectionable. In like fashion, if it should be shown that the death penalty ought to be regarded as morally unavailable for use in contemporary society, a contemporary Kantian should be willing to settle for the alternative of a long prison sentence. In a general statement, Kant says that all murderers should be executed. But then he proceeds to discuss a variety of examples that constitute empirical exceptions to this abstract statement, including cases of young women who kill their babies born out of wedlock, soldiers killing one another in a duel, and a murder where “the number of accomplices to such a deed is so great that the state, in order to have no such criminals in it, could soon find itself without subjects.” He also gives other cases where appropriate punishment should be adjusted according to the social status of the wrongdoer, again suggesting that the abstract lex talionis in actual application must have a variety of exceptions. There are a variety of concerns about the death penalty today in the US that might call for various sorts of empirical adjustments in the abstract law of executions for murder. Concerns about the risk of executing the innocent and about the discriminatory effects of race and class in imposing the death penalty are often mentioned. Now let’s examine a case study, the US. The 8th amendment prohibits cruel treatments. 24 countries still have the death penalty; others have it but don't use it. 60% of American citizens strongly or somewhat favor death penalty (lowest level since Furman).; 90% of American citizens favoring the death penalty think it is morally justifiable for crimes as murder. Evolution can be analyzed through case law. In Trap v. Dulles (1944), expatriation was ruled against the 8th Amendment and Warren's evolving standards of decency. In Furman v Georgia (1972, landmark case), the Supreme Court ruled on the unconstitutionality of all existing death penalty laws in the US. In Brennan's concurring opinion, annihilation is against human dignity (Kant analogy) and death penalty is always unconstitutional. In Greg v Georgia 81976), death penalty is not considered per se unconstitutional, but it needs to adhere to tight procedural safeguards and standards. Brennan and Kant apply different scopes of applications of arguments for exclusions, yet the same rationale. Let us turn to the preferred revision of the Kantian theory of punishment to bring it into accord with the contemporary consensus against capital punishment. When Kant is arguing in favor of capital punishment as the only appropriate punishment for murder, he adds a qualification that we will need to attend to closely. Death is the punishment that must be carried out on the wrongdoer, “although it must still be freed from any mistreatment that could make the humanity in the person suffering it into something abominable.” This statement seems intended to rule out various forms of torture-execution. Analogously, and at almost the same time, the Eighth Amendment to the United States Constitution, part of the Bill of Rights of 1789, forbade cruel and unusual punishment, presumably with similar meaning and intent. In a later passage Kant expands on the above quoted statement. Nonetheless I cannot deny all respect to even a vicious person as a person; I cannot withdraw at least the respect that belongs to him in his quality as a person, even though by his deeds he makes himself unworthy of it. So there can be disgraceful punishments that dishonor humanity itself, such as quartering someone, having him torn by dogs, cutting off his nose and ears. Not only are such punishments more painful than loss of possessions and life to those who love honor, who claim the respect of others, as everyone must; they also make a spectator blush with shame as belonging to a species that can be treated that way. In 1972 the US Supreme Court considered the constitutionality of the death penalty and, in a badly split five to four decision, ruled capital punishment as it then existed in the United States, unconstitutional. It was unclear whether the court at that point wished to say that capital punishment in any form would remain unconstitutional. Only two out of the nine justices, William Brennan and Thurgood Marshal, made clear in their concurring opinions that the death penalty in any form ought to be regarded as unconstitutional. The two justices who remained on the court in 1976, Stewart and White, joined the majority in Gregg v. Georgia, with Stewart writing for the majority, in deciding that the death penalty was not per se unconstitutional, and that the newly proposed law from Georgia in particular was constitutionally acceptable. Brennan’s opinion in Furman is particularly interesting because its central argument is so Kantian. The central point of the constitutional prohibition on “cruel and unusual” punishment, he urges, is “that a punishment must not by its severity be degrading to human dignity,” and his criteria for such punishments are indicated as follows: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. Brennan’s entire discussion of these four principles has a certain Kantian flavor and undertone. Brennan immediately draws the conclusion: “In comparison to all other punishments today, then, the deliberate extinguishment of human life by the State is uniquely degrading to human dignity.” One of the cases that lay in the background of Furman, and was referred to and discussed by the justice’s opinions, was Trop v. Dulles. In this case the court ruled out as unconstitutional, because of its violation of the prohibition on cruel and unusual punishment, the punishment of expatriation, loss of citizenship. But there is another element of the influence of Trop: a much quoted phrase that comes from the opinion of Chief Justice Earl Warren writing for the plurality speaks of “the evolving standards of decency that mark the progress of a maturing society. It may well be that the original intent of the Eighth Amendment, in forbidding cruel and unusual punishments, did not extend far beyond forbidding torture-executions. In the same vein, as we have seen, Kant rejected torture-executions while accepting capital punishment for murder. We can see Brennan using almost the same argument, but extending what it excludes to capital punishment in general. Here we have what may seem to be a straightforward disagreement. The arguments of Kant and Brennan are similar in their rationales for excluding certain forms of punishment, but Kant and Brennan disagree about the scope of the application of the arguments for exclusion. Brennan and Kant may have different conceptions of death. Kant famously argued for the immortality of the soul, and at one point he uses a sort of euphemism to describe the death penalty, when he writes lex loci. Again, there is a restriction of 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. Principle of Distribution of Competences This is a rather new development to avoid overlapping criminal jurisdictions. International treaties relying on this principle mostly attribute jurisdiction to the state in which the perpetrator has the habitual residence or where prosecution seems to be most convenient. Differently from the previous, it is not about enlarging national jurisdiction, but about solving conflicts by international jurisdictions. In cases of conflicts of jurisdiction, no measures have been so far taken within the EU to prevent conflicts of jurisdictions. However, there is Article 82 TFEU that encourages the European Parliament and Council to adopt measures to avoid conflicts of jurisdiction; in addition, certain acts of the EU contain provisions that do aim at solving conflicts of jurisdiction. The general rule is contained in Article 54 CISA: 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 (ne bis in idem) 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. It outlines the principles of ne bis idem and of first comes first served. There is preference for the territorial principle. Principle of protection of EU interests It’s an extension of the protective principle: MSs can prosecute offenses affecting EU interests also in cases committed abroad. This arises from the fact that under classical principles, no MS could act to protect the legal interests of the Union. On the other hand, it cannot be considered completely new, since it is derived from territoriality and protective principles. There are already examples in domestic criminal codes. If we think about a European Criminal law as a normative structure resembling the domestic one, with a single European source of law directly applicable, there is not yet something similar in place (e.g. there is no European Criminal Code). However, there is a strong tendency towards the development of directly applicable European offenses. It is not true, however, that there is no European criminal law at all. First of all, there are legal provisions that impose sanctions applicable in all MSs; also, national criminal law influenced by European law can be seens as an example of a european criminal law in a broader sense. Origins of international criminal law International law is about the rights and responsibility of states; criminal law is about prohibitions addressed to individuals and punished by states. International criminal law (ICL) is a new paradigm: it’s international law (no longer domestic) that imposes responsibility on individuals. International Criminal Law constitutes one of the youngest fields of international law. The reason for the late occurrence was sovereignty concerns: states were regarded as independent and sovereign and it was unimaginable for the sovereign states to allow another state or an international institution to interfere with its own sovereignty. International crimes are considered mala in se (crimes that affect values protected by the international community and that threaten the peace, security and wellbeing of the world). The sources of ICL (which are the same outlined in art.38 of the Statute of International Court of Justice) are a mix of international law sources and criminal law sources, but mainly reflect the former. They are treaties (in particular the Rome Statute issued in 1998 and entered into force in 2002), customary law [practice + opinio iuris] and general principles of law (which are both problematic because of the principle of legality, since they are not written: nullum crime sine lege) and national and international judicial decisions (system of precedent but there is no stare decisis, together with the opinions of scholars. The first efforts were proposals made by Moynier, president of the International Red Cross Committee, after the Franco-German war in 1870/1871. He demanded a criminal rather than a merely moral sanction for individuals, and an international court with the possibility of independent investigations. His visionary proposal didn’t gain support. After WWI and massive breaches of international laws of war led to the revival of Moynier’s idea. According to art.227 of the Treaty of Versailles, the German emperor Wilhelm II was to be charged with launching an aggressive war; he escaped to the Netherlands where he was treated as a political refugee. Art.228 et seqq. empowered the Allies to try Germans for violations of the law and imposed a duty on Germany to extradite. The project failed in practice due to massive resistance by Germany that was unwilling to execute the arrests and based on legal considerations (e.g. Criminal Code prohibited). However, the German parliament in 1919 gave jurisdiction of the Supreme Court as simultaneous court of first and last instance for criminal acts committed by Germans in ww1; they could be prosecuted only under German domestic law. Proceeding started in Leipzig in 1921; Allies compiled a list of 896 individuals but investigations were rashly terminated and only 17 cases were carried out. The German Supreme Court’s apparent unwillingness to carry out regular criminal proceedings and the Allies didn’t enforce the extradition by military means. In other cases, German defendants were convicted in absentia abroad. There were also Istanbul Trails on the armenian genocide. At the end of WWII, there was Germany (defeated) and the Allies: URSS, UK, USA and France. How do you punish such evil acts as those that were committed during the second world war? Can impunity be granted or are executive actions (mass punishment without fair trial) better? They decided to prosecute to apply the justice that the Nazi regime had destroyed, to record history, educate and deter and also to create a precedent. In particular, deterrence was needed (Hitler, in 1939, said: ‘Who after all is today speaking about the destruction of the Armenians?’). However, some problems arose: who would take over jurisdiction for the trial? Which laws (common law and civil law) should the suspects be judged on? They found an agreement and founded the Nuremberg International Military Tribunal (1945-1946). The legal basis was the Charter of the International Military Tribunal, signed in London on 8 August 1945 (London Agreement). This resulted from a mixture of the different legislations and systems. Because the four major Allied Powers had different national criminal procedures (e.g. common law had adversarial procedures), drafting the IMT Charter was particularly difficult; at the end it was based mainly on Anglo-American common law but also on some features of civil law. For the composition of the tribunals, each of the four countries gave a prosecutor, two judges (a main one and an alternative) and a team of experts and defendants were given the right to information and to a lawyer. Art. 6 of the Nuremberg Charter gave a definition (ratione materiae) of the crimes under the jurisdiction of the tribunal for which there is individual responsibility: (a) ' 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; From the perspective of the principles of legality, the easiest to define of the three crimes was "war crimes." War crimes included customary law as identified, inter alia, by reference to the 1907 Hague Convention 58 and conventional law. (b) ' War crimes’: (oldest international crimes): namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or 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; Prosecution for "crimes against peace" was without legal precedent, save for the failed attempt after WWI. The Soviet Union wanted to include the phrase "by the European Axis," in order to make 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 prevailed in his view that the phrase should not be included. (c) ' Crimes against humanity. ' namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. 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. At that time, these were prosecuted only in connection to a war while now even without a war and also against states committing them against their citizens. For the ratione temporis, there was no mention but because of the necessity to link the crimes to a war, only crimes between 1939 and 1945 were examined; the trial of the major war criminals only between 1945 and 1946. There were 24 indictments; 22 prosecutions: 3 acquittals, 12 death sentences (abolished by future tribunals), 3 life imprisonment, 4 prison sentences (10-20 years) and 3 groups declared to be criminal organizations. They were all key actors that had taken part in the creation of the oppression and extermination. Differently from what is the usual situation, there was a lot of evidence available: nazi organizations used to well document all the activities within the camps, strategies, etc. It has been described as a one-sided trial: all defendants were German, no ally was indicted. Now, ICC investigates a whole event, on both sides. After this trial, ad hoc tribunals were set up following the primacy principle; the ICC on the contrary now follows the subsidiarity principle: it intervenes only if national courts are not able or willing to act, in order to bring justice close to victims. The defendants’ main arguments were two: non-retroactivity (but the crimes were too bad to need retroactivity: bad even without a law saying it; anyway, treaties started to be done to avoid this) and the fact that they were following superior orders and obeyed to the state. However, there is the obligation to exercise moral judgments and disobey immoral orders; appropriately enacted and socially effective norms lose their legal character or their legal validity when they are extremely unjust. This was reflected in the Radbruch’s formula: when a conflict between law and justice sparks, the justice must prevail on law if the latter is ‘evidently unendurable’ (1946). The major criticisms of this trial were: retroactivity (principle of legality respected or not?), the fact that it was a victors’ justice, the scarce rules on procedures, the absence of appeal, high discretionality and the use of the death penalty. However, it did achieve major goals, such as the criminalization of the worst violations of human rights that became part of the international system. Among the legacy of Nuremberg, which is what today human rights law is, there are the Geneva Convention, the Genocide Convention, the UDHR and the Nuremberg Principles, written after the trial but contained in the judgement. The principles of the IMT charter were approved unanimously by the first conference of the General Assembly that however was not capable or willing to create binding international criminal law. In 1948 the Genocide Conveniton was signed, declaring genocide as an international crime and obliging signatories states to prevent and punish it. Later, the General Assembly commissioned the International Law Commission to outline the principles of the jurisprudence of the Nuremberg Military Tribunal and draft an international criminal code. The codification of the Nuremberg Principles was completed in 1950. Principle I: any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. Collective elements might at first clash with individual criminal responsibility and need to be reconciled. 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. 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. (Immunity here is not effective). 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. Superior orders are not a defense Principle V: any person charged with a crime under international law has the right to a fair trial on the facts and law. Principle VI: the crimes hereinafter set out are punishable as crimes under international law: (first codification) (a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (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, ill treatment or deportation to slave-labor 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 inhumane acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are 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. The established principles still valid today are: 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) was established by a special proclamation of General Douglas MacArthur (19 January 1946; on the same day he adopted the Charter of the IMTFE, following the model set by the Nuremberg trials); it operated from 1946 until 1948. All 28 defendants were convicted (7 death sentences). Other initiatives and subsequent trials took place not before an international tribunal, but before the Allies’ respective military tribunals. The basis was 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. Subsequent to the London Charter, the Allies, by virtue of Germany's unconditional surrender, exercised sovereignty over Germany and enacted Allied Control Council Law No. 10 which permitted the Allies to prosecute German nationals in their respective zones of occupation.7 9 Political will, sufficient resources, control of the territory, and the nature of the German military and civil service systems combined to make the prosecutions at Nuremberg effective. The same consideration made the Subsequent Proceedings under CCL 10 by the Americans, British, and French equally effective. Twelve so-called subsequent Nuremberg trials were held before US military courts that regarded themselves as international courts, yet did not pass their verdicts based on the IMT charter but rather on Allied Control Council Law n.10. Further proceedings took place in the French, British and Soviet occupied zones. The cold war blocked any substantial steps. Later, an international drug trafficking issue, the Gulf War and the war in former Yugoslavia and Rwanda made evident the disadvantage of the lack of an institution. In 1994 the ILC submitted the draft of a Statute for an International Criminal Court, whose jurisdiction went beyond Nuremberg offenses, including the crime of terrorism and drug-related crimes; however, the overrun by current events in Yugoslavia demanded a quick reaction. The overall development started with the attempt to prosecute the Kaiser after WWI, then Nuremberg and Tokyo, later the age of ‘codification’, followed by ICTY (1993) and ICTR (1994) and finally the establishment of the ICC. There are some criticisms 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’); sometimes justice and peace need opposite mechanisms. 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 are 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. The U.S.S.R. used the tribunal to rewrite history: they sat in judgment over Germans accused of crimes for which the Soviet Union was responsible. Transitional justice is defined as the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes. “The notion of “transitional justice” (…) comprises the full range of processes and mechanisms associated with a society´s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.” The origin of the term emerged in the early 1990s (end of cold war); before that, people spoke about justice after atrocity or restorative justice. The goals are rule of law, truth (individual and collective), justice and peace. The mechanisms are a mix of political and legal ways, in a holistic approach: prosecutions, reparations, truth commissions, amnesties, vetting and dismissals and institutional reforms. The evolution of transitional justice is divided into 3 phases. (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (civilian superiors) (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. The requirements are a direct line of authority between leader and direct perpetrators of crime (de jure or de facto), effective command and control or authority over the group, the fact that the crime is the consequence of a failure to exercise control properly (negligence standard but responsible with intent) and the failure to take all reasonable and necessary measures. Military superiors are liable if they knew or should have known about the crime (stricter because expertise is expected), while civilian superiors only if they knew or “consciously disregarded information...”. The superior will be held liable as perpetrator (with intent if the crime was committed with intent by the subordinate). Instigation is presented in Art. 25 (3b). Inducing means persuasion, soliciting is ask or urge (weaker) and ordering needs a position of authority. Assistance is outlined in Art. 25(3)(c): aiding involves practical assistance, while abetting is moral assistance. The mental element is the intent of assisting and knowledge of the crime. Now, let’s turn to the grounds for excluding criminal responsibility (defenses) in ICL. Mental Incapacity (Insanity) is regulated in Art. 31(1a): 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. It’s a non-transient mental disease or defect. It has to affect the cognitive or the volitional sphere. The cognitive aspect affects the capacity to appreciate the unlawfulness or the nature of his/her conduct, while the volitional aspect affects the capacity to control his/her conduct. Mental Incapacity (Intoxication) is outlined in Art. 31(1b): The person is in a state of intoxication 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, unless the person has become voluntarily intoxicated 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. It is a temporary mental incapacity. It does not exclude responsibility if the person became voluntary intoxicated knowing or disregarding the risk that he/she would engage in crime Self-Defense is described in Art. 31(1c): The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph. The acting person had to defend him/herself or any other person (or essential property in the case of war crimes) from an “imminent and unlawful use of force”: imminent means which is about to be carried out, it just started or it is still ongoing; unlawful means not justified (in the civil law system terminology). Response (in Self-Defense) has to be reasonable/proportionate to the degree of danger to the person or property. This limit is present in many (but not all) domestic systems: reasonableness and proportion of the attack is increasingly recognized. Necessity and Duress is described in Art. 31 (1d): The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control. It requires a situation of necessity: threat of imminent death or of continuing or imminent serious bodily harm against that person (the defendant) or another person emanating from a person (duress) or constituted by other circumstances beyond that person’s control (state of necessity). The protected interests are life, bodily integrity but no property. The response has to be necessary (most lenient and at the same time effective response) and reasonable/proportionate (must not intend to cause greater harm than the one sought to be avoided, but just to avoid the threat): there is the need for an objective balancing of the legally protected interests. It does not apply in cases where the person puts him/herself in a situation in which it is likely that he/she will be asked to commit crime (or of self-induced threat). There are also Mistakes of fact or law, outlined in Art 32: A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. (e.g. when a soldier employs bullets, which expand or flatten in the human body so they’re illegal, without knowing the nature of the ammunition). A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33. Mistakes of law are exceptions to the principle ignorantia legis non excusat: no responsibility without culpability. Is a reasonable person expected to be aware of the illegality of a particular conduct under international law? (e.g. a common soldier could know all norms regarding war crimes? if someone is brought to the battlefield because of law, was he expected to know the law?) Superior Orders were first touched in Principle IV of Nuremberg Principles: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him” (duress excluded). For ICTY and ICTR, there is no exclusion of responsibility but possible mitigation of punishment. In the ICC Statute, they’re in art. 33: The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. There is a duty to disobey (manifestly) unlawful orders Orders to commit genocide and CAH are manifestly unlawful, but it only relates to war crimes (and aggression). Immunities are outlined in Art. 27 (Irrelevance of official capacity): 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. So, there is no immunity with regard to international crimes. However, the use of immunities in domestic jurisdiction is still relevant. Exercise: Erdemovic is a 20 year old ethnic Serb, who had voluntarily enlisted in 1994 in the Bosnian Serb army as an auto mechanic. In May 1995, he was transferred to serve as an infantry soldier in the 10th Sabotage Detachment of the Bosnian Serb army. On 6 July 1995, the Bosnian Serb army commenced an attack on the UN “safe area” of Srebrenica. This attack continued through 11 July 1995, when the first units of the Bosnian Serb army entered Srebrenica. On 16 July 1995, buses containing Bosnian Muslim men arrived at the collective farm in Pilica, near Srebrenica. Each bus was full of about 70 Bosnian Muslim men, ranging from 17-60 years of age. After each bus arrived at the farm, the Bosnian Muslim men were removed in groups of about 10, escorted by members of the 10th Sabotage Detachment to a field adjacent to farm buildings and lined up in a row with their backs facing Erdemovic and members of his unit. At first Erdemovic refused to carry out his commander’s order to shoot and kill the Muslim men with his machine gun. But Then the commander told him that the alternative was to line up next to the Muslims and be killed. Erdemovic then pulled the trigger, and killed approximately 70 men. When Erdemovic was prosecuted for these killings before the Yugoslavia Tribunal he raised the defense of having acted under duress. Questions (Refer to Art. 31 and 33 ICC Statute): did he put himself in this situation? Not really (he applied as a mechanic). Was he threatened to death? How imminent was the threat? Really immediate. Did he have alternatives? No (to be killed) Did he cause more harm? No: one life is equivalent to 27. At the trial, Erdemovic turned himself in to the ICTY where he pleaded guilty and fully cooperated. The Judgement decided that duress was not applicable (3-2). Elements looked at by the ICTY were an immediate and serious threat, no means of escape, and an act not disproportionate to the threat. Duress and superior order were accepted as a mitigating circumstance. The sentence was 10 years imprisonment for war crimes and crimes against humanity /he appealed and the sentence was reduced to 5 years). In Cassese's Dissenting Opinion, Cassese looks at four elements: immediacy, no alternatives, proportionality (can we balance different lives) and voluntary causation of the situation. An important factor: the crime would have occurred anyway “Law is based on what society can reasonably expect of its members. It should not set intractable standards of behavior which require mankind to perform acts of martyrdom, and brand as criminal any behavior falling below those standards” (ICTY, 1996b, Par. 46) Genocide It was chronologically the last crime to be codified. It is considered the most serious, the crime of crimes but many people don’t agree with the hierarchy among crimes, which might involve a hierarchy among victims as well. The origins of the term date back to the writings of Raphael Lemkin (Axis Rule in Occupied Europe, 1944). Genos means race or tribe and caedere means to kill. He defined the crime as “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.” This broad definition will be narrowed.“Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings” (General Assembly Res. 96(1)). Destruction is meant in a holistic sense: political and social institutions, culture, language, national feelings, religion, economic existence… Groups are attacked for being, not for doing, something. The codification was late, since it is often committed or at least tolerated by states, being reluctant to punish perpetrators. However, now it is a jus cogens norm and an erga omnes obligation (ICJ, 1951). The first attempts to prosecute genocide was the Treaty of Versailles (1919) which set up the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties. The mandate was to investigate the violations of international law committed by Germany. The commission reported on acts that aimed to “denationalize the inhabitants of occupied territory” carried out in Serbia by Bulgarians, Germans and Austrians (e.g. prohibition of the Serbian language, abduction of children, starvation, internment, etc.) The recommendation given by the commission was the establishment of a high tribunal that could judge on offenses against “the laws and customs of war” and “the laws of humanity”. The new crime (against the laws of humanity) was proposed by the Greek members of the commission in order to punish also the massacres of the Armenians committed by the Ottoman empire (1915); the difficult part was proving the intent. However, this was interpreted as retroactive law. The results of the work of the Commission were: Kaiser Wilhelm II (Germany) escaped to the Netherlands that refused extradition and the Treaty of Lausanne (1923) granted amnesty for crimes committed between 1914-1922. Nuremberg punished Holocaust under crimes against humanity, in particular the conducts of: “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population” and “persecution on political, racial or religious grounds” (art. 6(c) London Charter). The term genocide was used during the pleading by the prosecutor but not in the judgment. There was reluctance to use the term genocide (political but also legal reasons, such as retroactivity risk and CAH easier to prove). Despite this, the Nuremberg Trial shed light on genocidal policies and this contributed to the drafting of the Genocide Convention. “The crimes prosecuted by the Nurenberg Tribunal, namely the holocaust of the Jews or the 'Final Solution', were very much costitutive of genocide, but they could not be defined as such because the crime of genocide was not defined until later” (ICTR, Kambanda, 1998) Let’s now turn to the source. The UNGA Resolution 96(I) 1946 encompassed also other groups, and recognized physical, biological and cultural genocide. It was aimed at formalizing universal jurisdiction for this crime. The scope was reduced during the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide (1948, entered into force in 1951). The definition of genocide of the convention was then copied-paste in the ICTY and ICTR Statutes and in the Statute of the ICC. The ICJ in 2006 said that the prohibition of genocide is a norm of jus cogens and in 2007 that the prohibition of genocide possesses “the existing requirements of customary international law”. The Genocide Convention 1948 entered into force in 1951. It aims at obliging State parties to criminalize and punish genocide. It also provides judicial cooperation for the suppression of crime (including prevention and extradition) and protection in times of both war and peace. It is considered the first human rights treaty adopted within the UN. Art.2 gives a definition that remained unchanged: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” What are the protected groups? Genocide is a crime directed at specific groups recognized under international law: national, ethnic, racial and religious. On the contrary. not protected are political opponents and state assigned social class. The purpose is to protect groups with a certain stability (criticized! e.g. change of religion; not real aim according to someone) but also to leave unpunished crimes such as those committed in the Soviet Union (killing of political opponents). The criticism is that it’s too limited, but States are free to broaden the definition/protection in national law. How are protected groups identified? Akayesu judgment, 1998 (ICTR) speaks about objective elements: “(The group must be) constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more “mobile” groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.” This definition is often criticized. The ICTR listed objective elements of groups: • national group: a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties • ethnic group: a group whose members share a common language or culture • racial group: based on hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors • religious group: one whose members share the same religion, denomination or mode of worship Since this definition is not always clear, the ICTY in Krstic said that “The preparatory work of the Convention shows that setting out such a list was designed more to describe a single phenomenon, roughly corresponding to what was recognised, before the Second World War, as 'national minorities', rather than to refer to several distinct prototypes of human groups. To attempt to differentiate each of the named groups on the basis of scientifically objective criteria would thus be inconsistent with the object and purpose of the Convention”. It criticized the fact of having scientific criteria to identify a group, but it didn’t solve the problem. For this reason, some courts use subjective elements, which are self-perception and identification by others (perpetrators). This is decisive in cases where These requirements are explained by the characteristics of the conflicts upon which these tribunals were judging. They disappeared since they are no longer present in the Rome Statute: according to art. 7 ICC Statute, they must be: 1. a list of acts (Murder, Extermination, Enslavement, etc.), 2. committed as part of a widespread or systematic attack, 3. directed against any civilian population, 4. with knowledge of the attack. No nexus is required to other crimes or to armed conflicts or to discrimination. This definition also enlarges the categories of punishable conducts (list + open clause): apartheid, enforced disappearance of persons and gender crimes. There are several normative theories (protected interests) behind. The first is laws of humanity: CAH are international crimes because they represent an attack on humanity and on the individual as a human being. According to international peace and security, they threaten the peace, security and well-being of the world (human coexistence). The third theory refers more to State or organizational policy: there is the right of the individuals to be protected from abuse of state power (CAH as the result of state policies that promote or tolerate such crimes); however, it is contested because it is discussed whether we need a state to have CAH or if nonstate actors can also commit CAH. These theories can complement each other. Material elements (Actus Reus) in ICL are the conduct, the consequence/result (if required) and causation but also a further element, the contextual element (e.g. “as part of a widespread or systematic attack directed against any civilian population” CAH): these elements distinguish international from domestic crimes. Art. 7(1) contains a list of conducts that might fall within the category of CAH (letters a-k, including an open clause). There are two types of conducts. The murder type are usually also criminalized in domestic systems (murder, extermination, enslavement, deportation or forcible transfer, torture, sexual offences, enforced disappearance, etc.), usually inflicting pain on the victims. Persecution related crimes are not always prohibited by national law; persecution can be on the basis of racial, religious or political grounds (modern slavery, sex-related persecution, etc.). The contextual element (chapeau element) requires the crime to be committed as part of a widespread or systematic attack directed against any civilian population. - Attack refers not only to the use of armed forces but also any other form of mistreatment of the population. Indicators of an attack are the following. The attack might be small, but a minimal scale is required, which requires multiple acts and a minimal level of collectivity (but the way these people are correlated must not be random, but this is controversial and debated). In addition to this it must be widespread (higher scale) or systematic (coordination among the acts). This excludes isolated crimes and unconnected crimes. - The civilian population must be the primary target of the overall attack but this can also include military, if inside a widespread attack directed against the civilians. This also encompasses former combatants, wounded people, etc. (irrelevance of nationality). - Widespread refers to quantity and the scale: conducted on a large scale and causing a large number of victims, the consequences of the attack upon the targeted population. geographical area. - Systematic refers to quality: organized nature of the violence, repetition of similar conducts…; with the existence of a plan, policy, ideology or the involvement of high-level military or political leaders (also paramilitary) not required but often present. The two parts (widespread and systematic) don’t have to be both present: one is enough. examples of “systematic” are the Akayesu, ICTR (1. thoroughly organized 2. following a regular pattern 3. on the basis of a common policy 4. involving substantial public or private resources) and Blaškić, ICTY (1. a plan or objective 2. large scale or continuous commission of linked crimes 3. significant resources 4. implication of high-level authorities); the ICC wrote a very short definition of the element “systematic”, 'the organized nature of the acts of violence and the improbability of their random occurrence'. The important elements are the presence of an organization, patterns, continuous commissions, the use of resources, planning and political objectives. In the second half of the 20th century (after Nuremberg, before ICC), policy/direction/encouragement of a State or organization (governmental policy) was required. The Rome Statute aimed to enlarge the protection (e.g. crime waves are widespread but not necessarily systematic) and didn't require the presence of governmental policy. However, the word attack already requires a minimum coordination, so the matter is controversial! Another debate topic is whether a state or an organization is behind: what about political parties, terrorist organizations, criminal organizations? ICC adopted a broad view: there is no requirement of state involvement but “any collective effort to inflict massive crimes on a civilian population”. The mental element requires intent (and knowledge) of the individual act and knowledge of the contextual element (“widespread and systematic attack directed against any civilian population”). The specific intent (required for genocide) is required for “persecution” and “enforced disappearance”. The single act must form part of the widespread or systematic attack; theoretically, it is possible that a single act in itself constitutes an attack if it is of great magnitude (e.g. use of biological weapon) and can also be a different act with regard to the other acts that form part of the attack (e.g. sexual violence vs. murders), but this is difficult to find in practice. As said before, there has been an evolution of prohibited acts (conduct, actus reus). In Nuremberg, only murder, extermination, enslavement, deportation, persecution and other inhumane acts were included. The Control Council Law No. 10 added rape, imprisonment and torture. The Rome Statute refers to sexual slavery, enforced prostitution, forced pregnancy, other sexual violence, enforced disappearance and apartheid. The acts are better explained in the second paragraph of art. 7 Rome Statute or in Elements of the Crime. There are always open/residual clauses. - Murder - Extermination: killing on a large scale, by the accused within the context of mass killing (awareness of the mass killing). It includes indirect means of causing death, e.g. 'inflicting conditions of life calculated to bring about the destruction of part of a population’. The difference with genocide is that there is genocide requires a specific group and special intent, while extermination doesn’t require specific intent and can be carried out against the whole civilian population. - Enslavement: means 'exercising the powers attaching to the right of ownership' over one or more persons. It was recognized in the 1926 Slavery Convention and the 1956 Supplementary Slavery Convention are on point. There are different definitions: treating people as “chattels” (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 and forced labour. Another definition is 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 abuse, control of sexuality and forced labor. - Deportation or Forcible Transfer is the 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. Examples are deportation of irregular migrants, 'Deportation' is generally regarded as referring to displacement across a border, whereas 'forcible transfer' is generally regarded as referring to internal displacement. Forced is not necessarily physical, but also threat of force or coercion, psychological oppression - Imprisonment is the detention in prison-like conditions and also other serious forms of confinement (e.g. house arrest), so this is why the ICC Statute refers to 'other severe deprivation of physical liberty' to ensure that situations such as house arrest were included. Arbitrary imprisonment excludes imprisonment upon lawful arrest, conviction following lawful trial, lawful deportation or extradition procedures, quarantine and, during aimed armed conflicts, assigned residence, internment on security grounds and internment of prisoners-of-war. In jurisprudence, arbitrary means without due process and the ICC Statute refers to imprisonment “in violation of fundamental rules of international law'. The UN Working Group on Arbitrary Detention developed three points: 1 absence of any legal basis for the deprivation of liberty; 2 deprivation of liberty resulting from exercise of specified rights and freedoms (e.g. political prisoners); 3 when the total or partial non-observance of the international hr norms relating to the right ta a fair trial is of such gravity as to give the deprivation of imprisonment an arbitrary character. - Torture: the prohibition of torture is customary law and jus cogens. It is protected by the 1984 Convention Against Torture (CAT): the intentional infliction of severe pain or suffering, whether physical or mental, upon a person. While CAT requires that the pain or suffering be ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’, on the other hand international tribunal lifted this requirement: according to ICTY in Kunarac, official capacity is not required in international criminal law (this is the difference btw international law and international criminal law) and according to ICC, there is no requirement of official capacity (torture by rebel groups, paramilitaries and others is included). The purpose, according to CAT, is obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind this would distinguish torture from inhuman treatment. On the other hand, for the ECtHR and ICC the distinction lies in the severity (torture: more cruel suffering). The victim must be in the 'custody or control' of the perpetrator. - Rape and other Forms of Sexual Violence: rape was already included in Control Council Law No. 10. The ICC Statute brought the major addition in this regard, including rape, sexual slavery, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. This is seen as an acknowledgement, with a declaratory function (not an expansion) of the acts. There has been a shift from coercion to consent: once, coercion had to be there to recognize a crime as existing, while now the lack of consent is required (and now, discussion from “no means no” to “yes means yes” rule). Rape: the ICC presents two elements, the physical invasion of sexual nature (“The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body”) and the presence of coecive circumstances OR (always more towards) lack of consent (“The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent”). Now, the lack of consent of the victim is required: this reflects the principle of penalizing violations of sexual autonomy. Force is no more an element of rape, for MacKinnon when coercion is present, we do not need to investigate the existence of consent (e.g. Katanga). Sexual Slavery: is a particularly serious form of enslavement (enslavement + the perpetrator caused the victim to engage in one or more acts of a sexual nature). This is done in comfort stations (comfort women given to arm forces to comfort them during conflicts), rape camps, etc. Enforced Prostitution: it was previously linked to honor, but the ICC took it away and focused only on the sexual autonomy of the victim: in the ICC statute, it is the crimes (1) causing one or more persons to engage in one or more acts of a sexual name; (2) by force or by threat of force (or under the coercive circumstances); (3) the perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature Forced Pregnancy: it caused discussion because in many countries abortion is still prohibited; this crime is kept separated from the discussion on abortion at the international/human rights level, so the definition shall not be interpreted as affecting national law on pregnancy. The definition is an unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of a population or carrying out other grave violations of international law. Enforced Sterilization is when the perpetrator deprived one or more persons of biological reproductive capacity; and the conduct was neither justified by the medical treatment of the persons concerned nor with their genuine consent. Other Forms of Sexual Violence of comparable gravity are when the perpetrator committed an act of a sexual name against one or more persons or caused one or more persons to engage in an act of a sexual nature, by force or threat of force or coercion, the gravity of the conduct was comparable to the other offences in Article 7(1)(g). The wording “of comparable gravity” is to respect the principle of legality. The concept of force is changing toward consent, rather than coercion. Forced Marriage is recognized as an independent crime but is one of the latest to be defined. It is not only in ICL but also in domestic jurisdiction, but according to the context it takes several different forms. Traditionally, we think of crimes stemming from traditions, where the decision is taken by the family; in Europe it is spread among the immigrant population, but in the past especially in the rural areas was present also in Italy and the mediterranean area. Now, it is becoming a crime almost everywhere. There are other forms of forced marriages: in human trafficking, marriage is done in exchange for something, e.g. permit residence, money, …; bush wives that marry soldiers and live with them in combat areas; … It was developed by jurisprudence in the open clause “other forms”. It was first recognized by the Special Court for Sierra Leone and Extraordinary Chambers in the Courts of Cambodia and later the ICC in Ongwen recognized it, saying that it goes beyond sexual slavery and rape, since there’s the additional stigma from the imposition of the status of wife of the perpetrator: “the central element, and underlying act of forced marriage is the imposition of this status on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage, including in terms of exclusivity of the (forced) conjugal union imposed on the victim, as well as the consequent social stigma”. To limit the discretionary power of judges when deciding on the open clause of art.7, the UN Special Rapporteur wrote that “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”. The idea of forced marriage is different from arranged marriage, where there is a certain amount of space for decision. Usually, forced marriages are linked to traditions rather than religions; the tradition is based on culture (e.g. continue to do something, avoid “westernalizing” girls, economic reasons to keep within a group the cattles or the lands, ). The European approach is taking the victim away from the context and putting them under protection, giving them a new identity, with the consequences that often they go back to their families, however there should be an approach of mediation and work on the family side. We are used to individual form of domestic violence, while these are collective forms of domestic violence, so this is why the community should be involved. Persecution involves fundamental rights, against an identifiable group or collectivity on prohibited discriminatory grounds. Discriminatory grounds are political, racial, national, ethnic, cultural, religious or gender and “other grounds that are universally recognized as impermissible under international law”. The formula “severe deprivation of fundamental rights” is defined as (1) a gross or blatant denial (2) on discriminatory grounds (3) of a fundamental right, laid down in international customary or treaty law, and (4) 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 domestic criminal justice systems. Thus the crime of persecution needs careful and sensitive development in international law in light of the principle of nullum crimen sine lege. The connection to other acts involves any crime within the jurisdiction of the Court or any other act listed in Article 7(1). Examples of acts of persecution are the one previously listed in art.7.1 when committed with discriminatory intent: murder, extermination, imprisonment, deportation, transfer of populations, torture, enslavement and beating, “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 a particular social, religious, cultural or other group (what is called cultural genocide). The mental element requires an intent related to the act and the specific intent of discrimination. It is different from genocide (different special intent: destroy vs discriminate; different actus reus: few conducts vs long list) and from CAH (special intent of discrimination). Enforced Disappearance: is the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of law for a prolonged period of time. It was common in Latin American regimes. The elements of crime are: (a) by arresting, detaining or abducting a person, with knowledge that a refusal to acknowledge or give information would be likely to follow in the ordinary course of events; or (b) by refusing to acknowledge the deprivation of freedom to provide information on the fate or whereabouts, with knowledge that such deprivation had occurred. Surrounding people are additional victims of the crime. crime of aggression operational; the new definition quotes: “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 UN Charter”. For the material element, the crime must be committed (I) by a perpetrator in a leadership position in a State, (II) who has participated, (III) in an act of aggression by the State, (IV) which 'by its character, gravity and scale, constitutes a manifest violation of the UN Charter. Perpetrators can be leaders and high-level military commanders and high-level policy-makers, in a position effectively to exercise control over or to direct the political or military action. Art 25(3bis) “In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State”. The ICC excludes persons who are not political leaders but nonetheless have the power to shape and influence policy. There must be a link between the act of aggression and the act of perpetrator: ‘Planning, Preparation, Initiation or Execution’): Art 25(3bis); te prosecutor will have to show that a policy-level accused planned, prepared, initiated or executed an act of aggression that was in fact committed (attempt is not enough) and the liability under Article 25. The applicable defenses are the one in art. 31(justifications and excuses) and also defenses under public international law relating to the collective act of aggression. The act of aggression requires that “The use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the UN Charter ''. Excluded are acts by individual mercenaries not sponsored by a State or to other non-State actors. Whether an act of aggression has been committed by a State, a necessary part of the crime of aggression as we have seen will need to be determined under public international law the jus ad bellum. Usually, it’s the UN Security Council to say when the UN Charter is breached, but in this case the Court has a say. The prohibition of the Use of Force is enshrined in Art. 2(4) UN Charter that states that war is no longer a legitimate means of politics: “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the UN purposes”. There are exceptions (Chapter VII): individual or collective self-defence (necessary and proportionate) → Art. 51 Charter states that nothing shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a UN Member, until the Security Council has taken measures necessary to maintain international peace and security; force authorized by the UNSC: UN peacekeeping/ peace enforcement missions and coalitions of forces of States (even if debated). The manifest violation of the UN Charter is usually considered only law under customary law; “the three components of character, gravity and scale must be sufficient to justify a 'manifest' determination. No one component can be significant enough to satisfy the manifest standard by itself” (Kampala). The list of what constitutes an act of aggression (regardless of a declaration of war) is included in Art.8 bis (2). Jurisdiction is dealt with in Art. 15bis and 15ter (scope and time limit). Usually (Art.13 ICC Statute), ICC exercises jurisdiction when a situation is referred to it by a State party or by a Security Council or proprio motu (but further authorization needed). For this crime, other two articles are important. Art.15 bis on exercise of jurisdiction over the crime of aggression (State referral, proprio motu) states that 1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs (a) and (c), subject to the provisions of this article. 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute. Since it was discussed a lot, everything was postponed: in 2010, the agreement was found and new articles were added. However, the crime of aggression became an operation after. Ratione temporis, a confirmation by the Assembly of State Parties (2017) is required, the ratification of at least 30 States (+ one year); so everything started from 17 July 2018 or later (1 year after single states ratification). For this reason, there is an opt out clause. Ratione loci/personae, it has jurisdiction only for those State Parties that have ratified. Trigger mechanisms have some controversies: shall we allow the UN Security Council to have a say in the activity of the ICC, given the conflicting powers and the veto power in the Council? In the end, all three possible trigger mechanisms of the other crimes work in this case: UNSC Authorization, State referral or proprio motu investigation (which however needs a UNSC confirmation of the breach of the act of aggression within 6 months or pre-trial division authorization). The mental element is the same of art. 30 ICC Statute (awareness of the aggressive war). Putin Arrest Warrant Today, 17 March 2023, Pre-Trial Chamber II of the International Criminal Court issued warrants of arrest for two individuals in the context of the situation in Ukraine: Mr Vladimir Vladimirovich Putin and Ms Maria Alekseyevna Lvova-Belova. Mr Vladimir Vladimirovich Putin, born on 7 October 1952, President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) ICC Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute; direct and indirect perpetration), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) ICC Statute; command responsibility). Ms Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that she bears individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute). Pre-Trial Chamber II considered that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children. The Chamber considered that the warrants are secret in order to protect victims and witnesses and also to safeguard the investigation. Nevertheless, mindful that the conduct addressed in the present situation is allegedly ongoing, and that the public awareness of the warrants may contribute to the prevention of the further commission of crimes, the Chamber considered that it is in the interests of justice to authorize the Registry to publicly disclose the existence of the warrants, the name of the suspects, the crimes for which the warrants are issued, and the modes of liability as established by the Chamber. Making it public, the Court calls upon cooperation by other states (not necessarily successful) and makes a symbolic act. By choosing only this exact crime, the court wanted to give a symbolic message (children), probably also because they collected quite enough evidence. This is different from the past (e.g. Milosevic: 17 crimes in the arrest warrant), so this is a strategic decision (more crimes would mean more proofs to bring, slow the work and they would not make the arrest easier). The first international tribunals to be set up after the Nuremberg Trials were the ICTY and ICTR, quite a while after that because of the cold war. ICTY Evidence in the region was gathered by international observers and showed violations of international humanitarian law and fundamental human rights. There was public pressure for the international community to take action since the beginning (international community started to collect evidence and set up the tribunal during the conflict, while in Rwanda only ex post). The UNSC Res. 780 (1992) established an impartial Commission of Experts during the conflict that in 1994 reported on the need to establish an ad hoc tribunal (rapporteurs of the Conference for Security and Co-operation in Europe + commissions of jurists from France and Italy). Evidence of crimes showed mass killings and population transfers, organized rape and torture, imprisonment of civilians and attacks on non-combatant populations, the destruction of towns and cultural property, and ethnic cleansing. The factors taken into consideration to establish the tribunal are: high level of activity enjoyed at the UNSC following the end of the Cold War, development of international humanitarian and international criminal law which provided a body of applicable existing law upon which the ICTY’s statute could be based, interpretation of ‘threat to international peace and security’ to include intra-State conflict and widespread violations of basic human rights. The legal basis are UNSC Res. 808 (1993) and UNSC Res. 827 (1993), adopted under Chapter VII UN Charter, art. 39: “The SC 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 was the UNSC Resolution the best option to set up the tribunal? Immediate creation (e.g. no negotiation period), jurisdiction over the territory of the former Yugoslavia irrespective of the consent (otherwise treaty ratification), duty of States to cooperate with ICTY (including duty to surrender indicted persons), mandatory powers of the SC (sanctions and use of force to enforce judgments). The aims of the set up were not only retribution after the conflict, but also to deter from the commission of further crimes (since the conflict was still ongoing), to contribute to restore peace and reconciliation within the fragmented inter-ethnic and inter-religious society and to bring responsible to justice (avoiding collective responsibility). The Tribunal was established in 1993 in the Hague; the first prosecution was in 1994; the official languages are English and French; it was supposed to close much earlier, but it closed in 2017, together with the ICTR, and the residual mechanisms were set up. The ICTY is composed of 16 permanent judges (2 of them working for the ICTR) all of different nationalities, elected by the UNGA based on propositions of States, with a 4 years mandate (and possibility of re-election). There were 27 judges ad litem to help in specific cases (in charge for 3 years); the president was elected by the permanent judges (2 year term) and there was a vice-president. The qualification of the judges is enshrined in Art. 13 ICTY Statute: judges ‘shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices’. They are either persons who have held judicial positions in their own countries or have strong academic backgrounds in criminal law and international law, including international humanitarian law and human rights law. There are 3 trial chambers; each one was composed of 3 permanent judges and a maximum 9 ad litem judges (one internal president elected) and could split into sections of 3 judges. The Appeal Chamber (important: not present in Nuremberg and Tokyo) was composed of 5 permanent judges. The prosecutor was appointed by the UNSC on nomination of the UN Secretary General (4 years term), he was assisted by the Office of the Prosecutor (appointed by the UN Secretary General on recommendation of the prosecutor). The registry was responsible for the administration. The jurisdiction ratione personae included the crimes committed by natural persons; ratione loci referred to crimes committed in the territory of the former SFRY; ratione temporis was for crimes committed after 01/01/1991 until 2001; ratione materiae included: grave breaches of the Geneva Conventions (art. 2 ICTY Statute); any serious violation of the law and customs of war (art. 3 ICTY Statute); violations of Hague law (1899 and 1907); infringements of the Geneva Conventions not classified as “grave breaches”; violations of common art. 3 GC and other customary rules in internal conflicts; violations of Treaty law; genocide (art. 4 ICTY Statute); crimes against humanity committed during an armed conflict (art. 5 ICTY Statute). The jurisdiction of the ICTY and ICTR are concurrent with domestic jurisdiction (complementary principle of ICTY), but they have primacy over national courts (while ICC has subsidiary character that must respect domestic jurisdiction). There was the possibility of asking to defer proceedings (against the ne bis in idem); the possibility of re-trying a person if the national proceeding was: not impartial or independent, done to shield international criminal responsibility, not diligently prosecuted. There was also the possibility for the ICTY to refer proceedings to national courts as well. The State had, according to the Statute, the duty to cooperate. It was very prolific (and was more prolific that ICC now): there were 161 indicted people and 90 sentenced that served their sentence in 14 States. There were 4650 witnesses, 10’8000 days of trial, 2.5 million pages of transcripts, … These are the main contributions of the ICTY to IHL and ICL. First of all, the concept of “armed conflict” was expanded to include “resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state” (Tadić, 1995). It can also happen in internal conflicts, provided that they are “protracted”. There is also the theory of joint criminal enterprise, when individual liability for committing the crime is part of “a plurality of co perpetrators who act pursuant to a common purpose”; the collective element is the subjective “common purpose” (Tadić 1995 1999). It started cumulative convictions (Čelebići test), multiple convictions for the same conduct, that are permitted only when: the conduct relates to crimes under distinctive provisions of the ICTY Statute and each crime contains a materially distinct element (not contained in the others) which requires proof of a fact that the elements of the other crimes do not require. E.g.: rape can fall under genocide, CAH and war crimes if it is committed during an armed conflict, against a member of protected group, with the intent to destroy that group, if there is a widespread and systematic attack against the civilian population (and knowledge of it). It also gave better definitions of the elements of crimes: “destruction” (genocide) means “physical or biological” destruction (Krstić, 2001); “in whole or in part” (genocide) can mean qualitative or quantitative (Krstić, 2001); “persecution” in CAH is an act which denies/infringes upon fundamental rights, carried out deliberately with the intention to discriminate based on race, religion or politics; sexual violence (and enslavement) are recognized as a crime against humanity (Kunarac et al., 2002). Exemplary Cases are: Erdemović (CAH and violations of the laws or customs of war. 5 years imprisonment), Tadić (CAH and violations of the laws or customs of war. 20 years imprisonment), Krstić (first conviction of genocide-as aider and abettor, CAH and violations of the laws or customs of war. 35 years), Milosević (died during trial), Karadžić (genocide, CAH and violations of the laws or customs of war. 40 years) and Mladić (genocide, CAH and violations of the laws or customs of war. Life imprisonment). International Residual Mechanism for Criminal Tribunals were established in 2012/2013 by the UN as a successor of the two ad hoc tribunals. It secures and brings to trial remaining fugitives, protects and supports victims and witnesses, provides assistance to national jurisdictions, supervises the enforcement of sentences, preserves the archives and carries out appeals and reviews. ICTR The Tribunal in Former Yugoslavia focused on prosecution of individual perpetrators (especially “small fishes” because it was easier), there was no impunity, trials at both domestic and international level and a strong involvement of the international (mainly European). community both during and after the conflict. However, in Rwanda the genocide was committed among people living together, often by civilians, on a massive scale (almost one million victims); as a consequence, there was a strong need to achieve reconciliation and transitional justice was organized on three levels: •International prosecutions (ICTR), national prosecutions (Tribunals) and local mechanisms (among which Gacaca courts). The Rwandan Genocide was due to a polarization between Hutu and Tutsi legacy of colonialism (e.g. different identity cards stating the membership to a one specific group). Tensions increased in 1990, with the outbreak of a civil war (1990-1994). On 6 April 1994 the plane of President Habyarimana was shot down (by unknown attackers) and during the same night the genocide started and lasted for 100 days, causing 800.000-1.000.000 victims (mainly Tutsi but also moderate Hutu). The characteristics of the genocide were: high participation of military and political leaders but also of civilians, the reactions of the population were mixed (but high participation), on a massive scale, the use of machetes, rifles, rape, women and children strongly affected by the genocide and the international community failed to take action. The post-genocide period posed some challenges: the state had to be rebuilt, the rol to be re-established and reconciliation had to be achieved (everybody had been affected by the genocide). Transitional Justice Responses ICTR 1/1/94 – 12/31/94 1, 2, 3, 4 (primacy principle – never applied) National courts 10/31/90 – 12/31/94 1, 2, 3, 4 Gacaca 10/31/90 – 12/31/94 2, 3, 4 A. International Level: ICTR The legal basis was the UN Security Council Resolution 955 (8 November 1994). The tribunal was very similar to the ICTY but seats in Arusha (Tanzania). Initially, due to the lack of a functioning judiciary, there was monopoly of the ICTR. Jurisdiction ratione temporis was for facts happened in 1994 (restricted), ratione loci was Rwanda and neighbouring states, ratione materiae included genocide, CAH (linked with discrimination) and war crimes (in non international armed conflicts, common art. 3 GCs). The international community was criticized because it stood still instead of intervening. There are several challenges. There is a lack of enforcement power: it relies on state cooperation both to investigate, to acquire evidence and to enforce its decision. Intervention in ongoing conflicts causes problems for prosecutors and consequences of his/her action on the conflict (increasing or stopping further violence). Selectivity usually focuses on Africa rather than on Western countries. Art. 19 ICC Statute serves 2 functions: protects State’s sovereignty and the individual right (ne bis in idem) in cases of challenging jurisdiction: «Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12.» The decision is done case by case by the pre-trial Chamber and is related to that specific moment. The main actors are several. There is the assembly of States parties. The Presidency with the Registry; the Chamber, with the pretrial divisions, the trial division and the appeal division; and the office of the prosecutor with the investigation divisions, the jurisdiction, complementarity and cooperation division and the prosecution division. There is a trust fund for victims as well. Prosecutors are elected by the Assembly of the State Parties and can start the case. He assists the judges in discovering the truth, he’s bound by objectivity, must take into account the needs of victims and is independent (although politics play a big role). The ICC can take the decision to entrust the prosecution with the power to take action proprio motu (control of pre-trial chamber). The defense in principle follows the right to a fair trial and the equality of arms for the integrity of the proceeding and process of truth finding. However there is a lack of substantive equality: less means and resources, later investigation (after the prosecution started, but sometimes it is useful to avoid the threat to witnesses and influences on the process) and have less cooperation of state authorities. Those who cannot provide by themselves a defense, they have the right to counsel. Counsels are appointed and funded by the ICC if the defendant lacks means. The suspects/accused has the right to represent themselves (self representation), however not in an illimited way. Lawyers must do the interest of the client without the obstruction of justice. The accused must be present during trial: in absentia is impossible, this is why it is difficult to try leaders who won't surrender (in Kenyatta, 2013: the Decision of the ASP decided to adopt three additional rules to the existing Rules of Procedure and Evidence of the ICC. The accused 'may submit a written request to the Trial Chamber to be excused only during part or parts of his or her trial’). There are 18 judges (for 9 years); they’re regulated by art. 36 ICC statute, not all were judges before and are elected by the Assembly of State Parties. There must be equitable geographical and gender representation and they must be «persons of high moral character, impartiality and integrity who possess the required qualifications in their respective states for the highest judicial offices». Of course they must have knowledge of criminal law or international law. Their functions are the interpretation of the law (elements of crimes are very detailed to limit the discretion of judges, see Art. 21; in ICTY and ICTR they had more discretion); fact finding (request evidence, witnesses and visit crime scene) and administration of justice (managing proceedings in a fair and efficient way and guaranteeing the rights of the accused). Victims have acquired an increasing role. They are real actors in international criminal proceedings and their rights are access to justice, effective remedy, right to truth (not better defined and not completely achieved through the trial, maybe other systems of restorative justice are influential for the truth). They can contribute in several moments: during the pre-trial phase (impact on prosecutors decisions) through testimonies or evidence, provide observations regarding jurisdiction and admissibility of a case, present views and concerns at any stage when their interests are affected, interrogate witnesses, contest evidence, … The legal representative of victims can present evidence and to receive remedies individual victims must demonstrate the link between direct or indirect harm (to them) and the charges brought against the accused. Reparations follow Art. 75 that establishes the Trust Fund for Victims (art. 79), responsible for organizing reparatory and compensatory payments for victims and victim support such as protection); there can also be restitution, compensation and rehabilitation. There are some challenges: risk of victims being left out, tensions, hierarchy, etc.; usually there is collective representation, the rights of the accused prevail (art. 68(3) ICC Statute) and there must be guaranteeing safety of victims (and witnesses). There are several questions that can be put forward: on the basis of which criteria the crimes are chosen? What regions, what conflicts, what crimes, what actors? There is discretion on when to bring charges, whom to indict and in which order. The criteria stated in art.53 ICC Statute are: the gravity, the victims’ interests and the interests of justice (+ jurisdiction and admissibility). The questions to be asked are: have crimes under the jurisdiction of the ICC been committed? Are they of sufficient gravity to justify further action by the court? To assess the gravity, he should look at: generic assessment, scale of crimes (number of crimes and victims), nature of crimes (killing, sexual violence, etc.), manner of commission (systematicity, cruelty, discrimination, etc.), impact (suffering, damage, etc.). The steps of case selections look at objectivity (looking at all parties in a conflict), at the selection of potential perpetrators (gravity of crimes, degree of responsibility, potential charges), at the available evidence, at the possibility to secure the offender and at the future on ongoing crimes. The focus is on those bearing the greatest responsibility for core crimes. The OTP Policy Paper on Case selection and Prioritization says that it should be looked at: - most serious crimes within a situation, both qualitative (nature of the crime) and quantitative (e.g. number of victims) criteria; - most responsible perpetrators, to be determined on a case-by-case basis with reference to the nature of the criminal conduct, the degree of participation, intent, etc.; - nature of charges, that should reflect the crimes occurred within the situation, with particular reference to crimes traditionally under prosecuted, e.g. crimes against children and sexual or gender-based crimes; - other factors, e.g. impact on the community and victims, contribution to the prevention of crimes, etc. The interest of justice is a discretionary category that can include the age of the accused (or infirmity), other judgments for the same accused and victims’ requests (e.g. for other measures, e.g. traditional justice – see art. 17. E.g. Colombia). There are different phases of the prosecution: preliminary examinations (little power, usually based on publicly available information); investigation (situations defined in geographic and temporal terms to limit the scope of the examination to specific limits, more legal powers) and prosecution (cases in relation to one or more accused are built when enough evidence are collected to link a crime to defendants; the case is open when the arrest warrant is issued). The collection of material comes from states, NGOs, fact finding bodies, etc. This material needs to be analyzed, selected, verified and tested and used in court only if relevant, credible, accurate and reliable. Evidence can be either direct (e.g. videos) or circumstantial (it tells only a part of the story that needs to be reconstructed). It is documentary (prove commands, plans or policies), from witness testimonies (gives the context, the role of perpetrators and involves a risk of re-victimization, honesty, changes…) or physical (forensic evidence recorded). Evidence can prove the crime(s), the context and/or the link between perpetrator and crime. The formulation of a case consists in the identification of suspect(s), in the formulation of specific charge(s) and in the identification of modes of liability. The process is composed of various stages: - Pre-trial: preliminary examination by the prosecutor; it helps the prosecutor to decide whether to initiate an investigation but also encourages domestic investigation. Sometimes it is very brief, sometimes very long. It includes the investigation (if there are reasonable grounds to believe that the person committed the crime), the formulation of a warrant of arrest, the arrest and pre-trial detention (relying on states’ enforcement power, states’ police forces) and the disclosure of evidence. The confirmation of charges takes place in front of the pre-trial chamber, it protects the defense, checks the evidence and the charges and whether there are “substantial grounds” to believe that the suspect has committed the crime. - Trial: the aim is to establish the truth; the steps are the opening statements, the presentation of the evidence, the closing arguments, the deliberation and the judgment - Appeal: it can do reviews (errors of law or fact) and cases can be sent back to the chamber that issued them. - Reparations. EU Criminal Law The focus of the European Community was the internal market: the elimination of internal borders was done to ensure the free movement of goods, persons, services and capital. The creation of a new legal order that became an integral part of the legal system of MSs, directly applicable, started. Initially, there was no competence in criminal matters. For long MSs refused to grant competences to the European Community in the area of criminal law because of the protection of sovereignty and the democratic deficit (decisions were mainly taken by the Commission or Council that were not elected); instead, it favored cooperation in criminal matters under international law instruments. The first attempt to grant certain competences was done with the Treaty of Maastricht (1992) which established the Eu and created the pillar structure, which opened the way for the EU to have competences in the field of criminal law. (Although at this point the Council-so the MSs-had control over all initiatives in this area). The 3 pillars were: 1. Community law (internal market), 2. Common defense/security and foreign policy and 3. Justice and home affairs (cooperation in civil and criminal law, police cooperation, combating racism, fighting drugs, arms trade, organized crime, terrorism, …). The decisions taken in this last area were not taken traditionally (regulations and directives) but under international law instruments (conventions and later on framework decisions), with unanimity and veto power, and without direct effect (implementation into national law). The second attempt to expand competences was the Treaty of Amsterdam (1997) which tried to “communitarize” the third pillar but was not successful. It did change the third pillar: from Justice and Home Affairs we went to the Area of Freedom Security and Justice (AFSJ). This was a broad area touching asylum, immigration and especially criminal law are (politically) sensitive. MSs were reluctant to give away their sovereignty and to confer powers to the EU. These are areas that impact enormously on human rights: there was an increasing need for more accountability of the EU for the measures taken in these fields. How do you achieve accountability? By strengthening the role of the European Parliament (democratically elected) making it more active in the legislative procedure and by extending the jurisdiction of the ECJ in this area. We reached this accountability with the treaty of Lisbon. The Treaty of Lisbon (2009) abolishes the pillar structure, extends directives and regulations to the third pillar (co-legislation procedure), extends the competence of the ECJ to the third pillar (with a transition period of 5 years, starting from 01/12/2014) and sets forth the accession of the EU to the ECHR and incorporates the CFREU among the binding treaties. In this single common legal order the sources were primary, so the treaties (TEU and TFEU) and secondary (directives and regulations). Title V TFEU contains the new discipline for the AFSJ. Art. 67 TFEU: (1)The Union shall constitute an area of freedom, security and justice with respect for FR and the different legal systems and traditions of the MSs. (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 basic provisions for criminal law are Art. 82 and Art. 83 TFEU. Art. 82 refers to judicial cooperation and procedural matters: there is mutual recognition, procedural rights, admissibility of evidence, defense and victims’ rights. Art. 83 TFEU refers to the substantive criminal law: general part, definition of offenses (actus reus, mens rea, participation, liability), sanctions (see principle of sincere cooperation) and a special part (Euro-offenses: terrorism, trafficking, etc.); it states: “The EP and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rule concerning the definition of criminal offenses and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offenses or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organized crime (…)” The fundamental concepts of EU criminal policies are: 1. Harmonization/Approximation: - Harmonization means that in a given policy area, MSs need to respect minimum obligations set out by the EU. The goal is to arrive at common rules. It is a bit stronger than approximation as the latter allows MSs some discretion in the choice of the means. - Approximation is possible in some areas according to the TFEU: mutual admissibility of evidence between MSs, the rights of individuals in criminal procedure, the rights of victims of crime, minimum rules in the definition of criminal offenses and sanctions. It’s an open clause. 2. Integration: creation of common bodies and shared European rules. E.g. Europol, Eurojust, European Public Prosecutor: each MS lends resources (human and economic) to the Eu to fight together certain problems 3. Mutual Recognition: differences remain but they do not impede trade or co-operation The distribution of competences between the EU and the MSs follows three basic principles (art. 5 TEU): 1. Principle of Conferral: the competences of the EU are conferred on it by the MSs in order to attain the objectives that they share. The competences not conferred upon the EU remain with the MSs. The Union should respect the national identity as well as the essential state functions. In areas of exclusive competence of the EU, MSs can only act if empowered to do so or to implement the acts of the Union. In areas of shared competences, both EU and MSs can legislate. 2. Principle of Subsidiarity: in areas which do not fall within its exclusive competence, the EU shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the MSs either at the central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at the Union level. 3. Principle of Proportionality: the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. Articles 82 and 83 TFEU create a so-called “emergency brake procedure”. Although there is no longer a veto power, if a MS is concerned that a draft directive would affect fundamental aspects its criminal justice system might refer it to the European Council; the procedure will be interrupted; a certain number of MSs can proceed with the directive but under enhanced cooperation, so only binding upon those states that accepted this enhanced cooperation (used in the establishment of EPPO). Other relevant principles are 1. Sincere Cooperation (Loyalty): in Art. 4(3) TEU: Pursuant to the principle of sincere cooperation, the Union and the MSs shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The MSs shall take any appropriate measure to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The MSs shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardize the attainment of the Union's objectives. In practice this means: implementation of Union measures into national law, enforcement of Union legislation, cooperation with the Commission and with law enforcement authorities of other MSs. The enforcement criteria were outlined in the Case Commission v. Greece (Greek Maize). The Greek Maize Criteria summarizes what loyalty means, especially in the area of criminal law: “Where Community legislation does not specifically provide any penalty for an infringement or refers to national laws, Art. 5 TEU requires the MS 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.” So, MSs should not make differences. - Effectiveness: if violations of Union law occur, the system must be capable of responding. It must be possible to impose a penalty. In Taricco I in 2015 (on invalidation period which made impossible for Italian court to prosecute certain crimes), a national rule on the statute of limitation might make the application of the penalty impossible: “The national court must give full effect to Article 325(1) and (2) TFEU, if need be by disapplying the provisions of national law the effect of which would be to prevent the MS concerned from fulfilling its obligations” - Proportionality: having a look at the gravity of the offense and at the sanction provided. It must be appropriate to reach the legitimate objectives pursued by it and it should be necessary (criminal law as extrema ratio). 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, in particular by ensuring a genuinely deterrent effect, while respecting the general principle of proportionality Nullum Crimen, nulla poena sine lege (principle of legality) This principle applies to every branch of law, but in criminal law it’s particularly important. Art. 25.2 IC: No punishment may be inflicted except by virtue of a law in force at the time the offense was committed. Art. 1 C.P. No one may be punished for an act not expressly provided as a criminal offense by the law, nor with penalties not provided for by the law. There are also 4 sub principles: 1. Principle of Non-Retroactivity (nullum crimen, nulla poena sine lege praevia), the least debated 2. Prohibition of Analogy (nullum crimen, nulla poena sine lege stricta) 3. Principle of Precision/certainty (nullum crimen, nulla poena sine lege certa): maximum certainty En, precision/determinacy It; 4. Prohibition against unwritten or judge-made criminal provisions/statutory reservation (nullum crimen, nulla poena sine lege scripta) Theoretical foundations are not the same in every system. First of all, it is a guarantee of individual liberties against State arbitrariness and an answer to the need for fairness in criminal law (fairplay by the State which limits its power). It also guarantees democracy and the separation of powers: only the parliament can impose a limitation of liberty. It has a role also in the purposes of criminal law, in particular for general prevention, both negative (if known in advance, general deterrent effect) and positive (reaffirm the validity of law and values protected). The philosophical foundations date back to the Enlightenment and in particular to the social contract doctrine. Beccaria's work was relevant: it theorized the contract as a give up of personal freedom conferring it to the state for the aim of peaceful coexistence. Only legislators have power to define penalties and judges can only apply these clear and abstract provisions. Judges were seen as bouche de la loi by Montesquieu. Von Feuerbach spoke of negative general prevention and invented the latin name of the principle. The principle is present also at international and EU level. Art. 7 ECHR, Art. 49.2 CFREU, Art. 22-24 ICC St, Art. 9 ACHR. In domestic criminal codes, Art. 1-2 c.p., § 1-2 StGB, Art. 9(3) c.p. ES, Art. 111-2 ff., 112-1 ff. c.p. FR; in Constitutions, Art. 25.2 IC, Art. 103 II GG, Art. 25 Const. ES, Art. 8 DDHC. In the Italian legal system, the relevant provisions are Art. 25.2 IC, Art.1 C.P. , Art. 2 C.P., Art. 199-200 C.P. and Art. 25.3 IC for security measures. 4. Statutory reservation (not valid in every legal system; in Italy it is strong). Art. 25.2 IC: No punishment may be inflicted except by virtue of a law in force at the time the offense was committed. Art.1 C.P.: No one may be punished for an act not expressly provided as a criminal offense by the law, nor with penalties not provided for by the law. It imposes a strict standard: which statutory sources can define criminal offenses and penalties means what law is according to art. 25.2 IC and art.1 C.P.. Law is the one by parliament, the ordinary law. The Parliament is best to grant broader scenarios and public interest and to protect minorities; however, this is ideal and not so well applied(often legislative decrees as sources of criminal law). Absolute reservation means that only primary sources can issue criminal law, while relative statutory reservation also allows secondary sources (e.g. regulation by executive). In Italy there is the absolute one but secondary sources still have a (limited) role of technical contribution (e.g. trafficking offense: what is a drug, which cannot be traded, …): they can influence but not define. What is more, the definition of law can be substantive or formali (legge ordinaria or attivi aventi forza di legge: decreti legge e legislativi). Legislative decrees come from a legge delega, delegation law, from the parliament to government; there is an excellent parliament control but actually it only gives directive and doesn’t check the content;, they’re acceptable if the legge delega is sufficiently precise. Law decrees, following art.77 IC, are issued in case of necessity and urgency, but must be converted into law or they’ll lose validity; so it is dubious as the right source for criminal provision, nevertheless we accept it. An example is Art.650 C.c. on the failure to comply with the provision of authorities; it was used to sanction disobedience of corona rules but it was already well known because it is a blanket criminal law: each person that doesn’t comply is pushed: it’s an empty vessel, it has no content which is the order of the authority, a secondary source. The Const court said that it is acceptable because ordinary law provides for general provisions. The relationship with EU law issuing criminal law is debated because there was no provision or competence on this, only democratic protection. Now art. 83.1 TFEU established minimal rules. Eu can issue only directives, not regulation on this topic (implementation by States); art. 81.2allows regulation only if they’re essential to implement in a harmonized way. This debate is no longer up to date: since parliament is elected, the problem of democracy respect no longer arises. The ECHR is directed to states following both common law and civil law legal traditions. Art. 7 (no punishment without law) quotes: No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offense was committed.” Law refers both to written and unwritten law. This means that law (ECtHR, Sunday Times v. Uk, 1979; ECtHR, S.W. v. Uk, 1995) must include common law too. This is done to apply ECHR to both civil and common law traditions, but with consequences on other principles (e.g. retroactivity). The limitation only to parliamentary law is not widespread in Europe, only in Italy (common law: criminal law is provided only by case law, following precedent, but only the high court of judiciary in Scotland has the power of affirm new criminal offenses; most of the time, old judgments impose crimes and new offense are in written sources, but it’s a tendency, not a general principle). 3. Principle of certainty The references are Art. 25.2 IC, although it’s not expressly stated, and art.1 C.P. The principle requires a sufficient definiteness of the criminal law: the quality of the law safeguards against abuses of judicial power. – It enables individuals to know the law in force and prevent arbitrary application. It is primarily directed towards the legislative power that should draft (criminal) provision as clearly as possible. Unfortunately, clarity and brevity are not main features of the newest provisions, in practice but the It Const Court is not used to declare the unconstitutionality and breaches of this principle. In a past case, plagium (art.603 C.P.) was not a clear concept and so declared not constitutional. There must be certainty also for the penalties: the legislator must establish a clear limit on judgments (Art.132 C.P. necessity of motivation for amount of penalty. Art.133 C.P.). The important part is the maximum penalty (in France there is not a minimum, but it’s not a big problem). 2. Prohibition of analogy It regards the interpretation by judges. It is not expressly stated in art.25 but present in Art. 14 preleggi of the c.c.: The judge cannot fill the gap in the criminal law by applying a statute beyond its wording to cases with the same rationale when done in malam partem (detriment of accused). Extensive interpretation (considered included in the wording) is different from analogy: in the case of street homicide (art.529 bis, 2016), par.2 refers to the possible offender who is a drunk driver of a vehicle; if he’s riding a bicycle and he’s convicted, it’s analogy; for electric bicycle it is extensive interpretation. Analogy in favor of the accused (to widen causes of justification) is possible, if exceptional (abused wife murdering sleeping husband). Danish law allows analogy, but it’s the only country in Europe. In the rest of Europe, Art. 7 ECHR doesn’t contain the principle of precision, but something similar: it includes both the prohibition of analogy and the so-called qualities of the law, accessibility and foreseeability. Accessibility means that the law is knowable to individuals and it’s assumed when published. Foreseeability is more complicated and refers to the calculability of law (know law and consequences of actions, clarity and precision of law and case law). 1. Principle of non-retroactivity The reference articles are Art. 25.2 IC and Art. 2.1 C.P.: no one may be punished for an act which did not constitute an offense at the time it was committed. Legislators may not enact ex post facto criminal laws, but only provide for future actions to be punished. udges may only apply criminal provisions in force at the time the offense was committed. Its scope of application includes only criminal provisions in detriment of the accused. Procedural law is not subject to non-retroactivity, only to tempus regis actum (law at time of application). The statute of limitation is ruled in Art. 2.2. C.P. (abolitio criminis) and art.2.4 C.P. (retroactivity of more lenient criminal law), this distinction is not present in every system (e.g. german no). Abolitio criminis is different from lex mitior because of the impact on res judicata. Art.2 quotes: (2) No one may be punished for an act which does not constitute an offense according to a subsequent statute; and if the sentence has been imposed, the execution and the penal consequences thereof shall cease→ all penalties imposed by virtue of a succession law should cease (even with res iudicata); (3) If there has been sentence of imprisonment, and the later law only provides for a fine, imprisonment is immediately converted in the correspondent fine according to art. 135. (4) If the statute in force at the time an offense was committed and a subsequent statute are different, that statute shall be applied whose provisions are more favorable to the accused, unless a final judgment has been issued. Here, res iudicata is the limit (in Spain and Germany also for res iudicata) and might be in breach of art.3 equality IC (e.g. different results depending on time of process), so it was changed and now it’s immediately converted in the best penalty, even if final. To sum up, there are two situations in which the final judgment is not a limit: par. 2 abolitio and the new par.3 (conversion). Art. 2.5 C.P. (exceptional or temporary provisions): previous provisions shall not be applied to exceptional and temporary statutes; Art. 2.6 C.P. (non converted Law Decrees): previous provisions shall be applied in case of relinquishment, absence of ratification of a Law Decree and in case of a non converted Law Decree. In all cases, a law decree should be subject to art.2 IC but this is no sense: the C.P. was enacted in 1930 when the constitution was not yet in force; at the time law decrees which were not transposed lost power ex nunc, while now law decree ex tunc (since beginning, as if it has never existed). The Corte Cost., in 1985, in the judgment n.51 (art. 2.6 C.P. is inconsistent with art. 77 IC. when it makes art.2.2 and 3 (now 4) applicable to this case) apparently stated that a person committing a crime within 60 days of validity was subject to the detrimental law, the one after non-transposition.However, looking into the reasoning, it refers only to offenses before the entry into force of decrees. So, there is a distinction between crimes committed before and during the validity of a law decree; only the last one applies the most favorable penalty, the one before is decided on the basis of law provided at the time. Art. 7 ECHR foresees the prohibition of retroactivity of criminal law in detriment of the accused but it is directed both towards written and unwritten law; also case law cannot provide detrimental effects retroactively. In Uk, in abstract,there is the pending precedent system, with retroactive effect of law; in the Us there is a solution with the prospective overruling (detrimental overruling applying only to cases arising in the future, not to the case under scrutiny). Also in civil law, judges can introduce detrimental interpretation of provisions but only in the future, not retroactively. The ECHR has acknowledged the principle of retroactivity of more lenient criminal law (in Scoppola v. Italy, 2009) as implicitly entailed (not expressly in the article) in the Convention, also in consequence of the affirmation of this principle at Eu level (ECJ recognized it in Berlusconi V Italy). This stimulated It Constit Court to protect it. –Art. 7(2) ECHR “This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilized nations.” might sound like an exception which is unacceptable under national law, but was due to Nuremberg trials. Now it leaves the door open for improper use or misuse (e.g. punish other crimes from international crimes).