Principles of Criminal Law PDF

PRINCIPLES OF CRIMINAL LAW Laura Lacerda Graziottin LECTURE 1 AND 2 How Do We Study “International Criminal Law”? → It’s about a dialogue between systems. What can we ﬁnd in common with different State’s criminal law? What are foundations that can be seen in different cultures? > Where do we look for these common themes? Italian criminal law, for example, can be affected by other systems (EU, European Court of Human Rights), which means that from the moment a State participates in a bigger collective, acting under treaties, or under an international organization, there’s going to be an inﬂuence. > How do human rights affect criminal law? ⎼ Committing a crime is a direct violation of someone’s HR. ⎼ The use of criminal law itself, if done incorrectly, can become a violation of HR. What is a Crime? An action or omission punishable by law. A crime is the only conduct that has a consequence punishment → this is the ﬁrst criteria to deﬁne what constitutes a crime. There needs to be a difference between punishment and compensation (in the case of divorce or breach of contract). Even if you have to pay a ﬁne when committing a crime, the very nature of this is to ensure “suffering” for violating a rule. You can be sentenced to pay a ﬁne and compensate a victim for example -- making these two different things. Punishment is the strongest tool in a community. Why do we use this tool, why do we punish? Offense against the duty owed to a society and that the society has the right and Public wrong: duty to prosecute & punish. Moral wrongs, considered wrong everywhere, maybe with different limits, but it’s Mala in se: the “bad for the sake of being bad” (rape, murder, theft, etc.) Regulatory offenses-acts declared criminal by the law (speeding, tax evasion, Mala quia prohibita: gambling, etc.). “Risk Society”: we engage every day in activities that are seen as dangerous, but we accept this risk because we consider it essential to the way we live. We live in a society composed of individuals who have great freedom to act alone, and that are alone in society. At one point, we were more involved in social bodies (church, political parties, groups, movements) but now there are no social bodies between us and the state. All types of social punishment by these social bodies have disappeared, we don’t need to be selected by someone to share our opinions. A random person's opinion can have the same impact as someone whose opinion would be considered “more valid” → this makes us more vulnerable, because we don’t have that old kind of protection, so we look to criminal law to protect us. There’s a common ground in society to ask for “more criminal law” because we see it as a tool to protect us. Criminal Law Populism: is a political solution that addresses a problem in order to solve this problem will always be polarizing. So we avoid making decisions to avoid responsibility, shifting to criminal law to leave the responsibility to the judicial system → not wanting to take responsibility over our political decisions in order to “not lose votes” is the opposite of politics. Criminal law is never a solution to social problems, because if you resort to criminal law it is because we haven’t found a real solution to a problem. Criminal law should be a last resort. Just because we criminalize a behavior, it doesn’t mean the problem will never happen again/it’s solved. LECTURE 3 Why Do We Punish Why do we punish? Western criminal law is the result of the enlightenment movement: In the middle ages there was no clear distinction between criminal law and ethics, morals, etc. There wasn’t a need to have committed an act, but you could be prosecuted for reasons out of your control, like who you were (religion), the act you committed was a “clue of your nature”, not the crime. The philosophers of the enlightenment started to question why do we punish. Why do we give the power to the State to use this very powerful tool? The enlightenment wanted to secularize (criminal law needs to be separated from morals/focusing on the act not on who you are, no need to punish you for your nature), humanize (punishment should preserve the dignity of the individual) and rationalize criminal law. The only reason why the State should limit someone’s freedom against their will is to protect other members of society. As long as you don’t cause harm to others, there’s no need for the state to educate you. Criminal law shouldn’t be paternalized: criminal law isn’t your daddy. > Focus on the Act Even in the 21st century, the focus on the act isn’t always respected. Can we prosecute someone for being something, even if that didn’t cause another individual harm? There are many theories of punishment. There are two main archetypes: 1. Retributivism: deontological, moral, backward-looking theories → something wrong was done, so you’re punished. Punishment matches the crime. There can’t be any exceptions, you did, you get punished. However, it’s focused on the act → culpability: you can’t just commit an act, you need to have intent. You get no more and no less than what you deserve. You suffer proportionate punishment. It is morally wrong to intentionally inﬂict punishment on the innocent, or to disproportionally punish a wrongdoer. But even in extreme situations, you will never get less than you deserve. Nobody can be used as a means for political/social aims. a. The Lex Talionis: an eye for an eye. You violated a basic rule that keeps society together, so you need to be punished so the rule can be restored → you’re an example. 2. Utilitarianism: consequentialist, forward-looking theories. The social contract is the basis of this theory, the State sovereignty is the total sum of the freedom that individuals relinquish in the exchange for a measure of security → because the state has the power to punish, it has to be limited. The right to punish has to be limited to the absolutely necessary. We need to look forward to the good of society, not every action needs to be punished, just the ones necessary for the protection of society → the focus is on the harm to the other. You’re punished so you're not going to sin in the future. a. Capital punishment is not necessary nor useful. b. There can be exceptions to punishment, there can be circumstances where punishment isn’t necessary. c. Focus on the perpetrator and not the act. d. Possible unlimited extension to punishment based on social danger -- because it might be necessary to prevent future crimes. e. There has to be an evaluation of whether or not punishment is necessary. Deterrence (preventing other people from committing crimes) → Being afraid of consequences. The collective is scared of punishment, and therefore Negative General Prevention avoids committing crimes, however, a prior legislation deﬁning what these crimes are is necessary. Cultural orientation. Deterrence cannot be achieved only through legislation, Positive General Prevention people must believe that acting in a certain way is morally wrong. Crimes that derive from impulse cannot be prevented easily. Refers to the perpetrator and not the prevention of the crime. Meant to neutralize the criminal. - Positive Special Prevention: rehabilitation, where we try re-educating and re-integrating the criminal into society. The Special Prevention State takes away freedom of opinion to reform the mind of the perpetrator, it can be double-faced. - Negative Special Prevention: incarceration. Some countries are more focused on retribution. A socially relevant interest to justify the criminalisation of an action → a way to limit the use of criminal law. Only the acta that are capable of endangering socially relevant interests, necessary for the coexistence and Legal Goods well-being of society, can excuse the use of criminal law. In common law, this translates into the harm principle → acts of individuals shall only be permitted to prevent harm to others. → We must remember that criminal law is enacted in order to protect the rights of the accused and limit the punitive powers of the State. The rights of the accused affect all of us and society as a whole. The evolution of punishment is linked to the evolution of sovereignty. Transnational Criminal Law x International Criminal Law Transnational International Transboundary effect → something that affects both Crimes so serious that even if happening outside States/one State unintentionally affects another. another country’s jurisdiction, are seen as a problem affecting all countries. LECTURE 4 General Principles of Criminal Law (Slide 26), Due Process No one shall be held accountable for an action they haven’t performed or in the commission of which they haven’t participated. There needs to be a material act and it’s limited to individuals. There’s no responsibility for acts Principle of Accountability committed by others (some exceptions, there’s no collective responsibility) and none without culpability/mens rea (no objective(strict liability). Nowadays, focusing solely on individuals isn’t enough, especially in the case of corporations/organizations. No crime, no punishment without law. No one shall be held guilty of a Principle of Legality criminal offense which doesn’t constitute a crime under national (or international) law. Law should be clear and accessible (it should be clear where criminality Legal Certainty begins). Case Law (Common Law) x General Legislation (Civil Law). Limit to judicial interpretation. The judge cannot extend criminalisation on Prohibition of Analogy the acts analog to similar crimes. Law should pre-exist the act. You cannot punish someone for an act that only Non-Retroactivity became a crime after their action. Much stronger in civil law systems. Who can decide what’s criminal and what’s Statutory Criminal Law not? In civil law systems only the law can be a source, whereas in the common law system judges/customs/case law are involved in the process as well. Principle of Individual Criminal Responsibility: No one should be held responsible for an act they have not performed or in the commission of which they haven’t participated. - There must be an act → Focus on the act, not the perpetrator. - Limited to individuals - No responsibility for crimes committed by others (no collective responsibility → there are exceptions). - No responsibility without culpability/mens rea (no objective/strict liability) Principle of Legality: nullum crimen, nulla poena sine lege (no crime, no punishment without law). No one shall be guilty of a criminal offense that doesn’t constitute a crime under law. > Consequences: - Legal certainty (law should be clear and accessible) - Prohibition of analogy (limit to judicial interpretation) - Non-retroactivity (law should pre-exist the act) - Statutory criminal law (Much stronger than the civil law system, only the bodies of law can be considered a source, no customary law. The legal precedent as a source of law. Criminal law as an extrema ratio (last resort): Criminalization only when strictly necessary (seriousness of conduct & importance of interest). When all other means are insufﬁcient. CL has a strong impact on individual autonomy/personal liberty and stigmatizing effects → therefore if you make everything a crime you’re inﬂicting on your citizens freedom and “creating an agenda”. → First we need legal interest, and then we need to see if there are other ways to solve it before we turn to criminal law. Principle of Proportionality: Balance between crime and punishment. - Criminalization (conducts that deserve it → it should be relevant enough to deserve criminal punishment). - Punishment (should ﬁt the crime, minimum harm) It’s the task of the criminal lawyers to be the magna carta, to limit the use of criminal law → this comes from judicial guarantees of the accused. Procedural Law (Due Process) Presumption of Innocence: Innocent until proven guilty. Right to Remain Silent (Privilege Against Self-Incrimination): Nobody can be compelled to testify against themselves or to confess guilt. Standard of Proof: Beyond any reasonable doubt → Even if another suspect is more “likely” to be guilty, one cannot be disconsidered without complete proof of innocence. Ne bis in idem (Double jeopardy): Prohibition of trying someone twice for the same act. Even if the person leaves a trial innocent and then confesses, even if new proof has come to light, if someone has been prosecuted once, they cannot be prosecuted twice. General and Special Parts: General Part Structure of Crime: Actus reus (the material act, consequence of the principle of materiality), mens rea (the mental element, the intent/recklessness) and absence of defenses/justiﬁcations & excuses (self-defense is a justiﬁcation). Special Part Speciﬁc offenses: homicide, rape, theft, etc. > The Act Must be a voluntary act (volition and/or control over agency, no automatism, no mere thoughts). Can be identiﬁed with an omission (failure to act, if legislation says we need to act, failure to do so constitutes a crime - ex. negligence). Under special circumstances it can be the act of someone else that makes someone else responsible (employer responsible for the act of an employee, parent responsible for minor) → this is a very exceptional situation, and the legislator needs to prove failure to act. Some crimes require a speciﬁc result caused by the act → the act as a necessary condition for the result (shooting = death). > Mens Rea The mental element of the crime (defendant’s mental state). The main criteria to determine culpability and blameworthiness. - Precondition: the capacity of the person (mental illness, involuntary intoxication, etc.) - Degrees of mens rea: ↳ Intention: requires purpose or aim → the offender foresees and wants the event as a direct consequence of their action. Considered the most blameworthy. ↳ Recklessness: an “indirect intention” → the defendant must have been aware that there was a risk that their conduct would cause a particular result. Sometimes there is a very thin line between intention and recklessness (it can be very probable that your action will cause a negative consequence, but it doesn't mean it was your intention). Usually seen in common law countries (Italy and Germany, for example, don’t have recklessness). ↳ Negligence: The lowest level. The conduct/event isn’t desired by the defendant but it is the result of carelessness, imprudence, lack of skills, failure to observe laws, rules, etc. The reasonable person test comes into play → did the defendant behave in a reasonable way during that circumstance? ↳ Strict Liability (exception): No intent required, just responsibility. → Usually the degree is stated by the law/statute (special part) → in each country the legislator can decide whether or not mens rea is necessary to constitute a crime - some crimes don’t need intention to be committed. > Defenses Even if the prosecution has proved the existence of actus reus and mens rea, the defendant might still escape conviction by proving the existence of a defense. Justiﬁcations: objective grounds that exclude the wrongfulness of the act. Under certain conditions conduct that would entail a crime is considered justiﬁed. ↳ Necessity: “the lesser of two evils” → the main distinction between necessity and self-defense is that the latter is a reaction and in necessity there’s a conscious choice. ↳ Self-Defense: justiﬁes the use of force against another person who has posed an unjust and imminent threat. Excuses: subjective grounds that exclude criminal liability. The blame on the offender is diminished or excluded because of a condition that causes the wrongful act. ↳ Duress: act was committed under a threat of death or serious bodily harm (to them or someone else). ↳ Insanity: at the time of the alleged offense, the defendant was suffering from a defect of reason caused by a disease of mind. Legal Families > The Concept of Legal Families A simpliﬁcation of legal systems that results in an “ideal type” → an abstract concept that groups these general characteristics of the different legal systems into different territories. However, there are various taxonomies in existence. When it comes to criminal law, the differences are becoming less and less important. - Convergence of legal systems: There’s a dialogue between different criminal law systems through IOs. Despite these convergences, there still are main differences. - Legal Pluralism: multiple legal systems coexisting globally. - National Criminal Justice Systems: LECTURE 5 The Internalization Of Criminal Law Internalization of Criminal Law Criminal law is usually seen as a domestic measure, but it’s becoming more open to the inﬂuences of international, transnational and European law. Despite the resistance to change and “globalization of criminal law”, we’re still seeing this dialogue. INTERNATIONAL Establishes individual criminal responsibility for international crimes. Examples: Genocide, crimes against humanity, HR violations. States look for a common solution in Treaties. TRANSNATIONAL Suppression by international law through domestic criminal law of criminal activities that have actual/potential transboundary effects/transboundary moral impact (horizontal international obligations between States to criminalize and cooperate, and the vertical application of criminal law and procedures by those States to individuals in order to meet these international obligations). - States agree to Treaties for a solution. - States try to ﬁnd a dialogue. - Piracy was the ﬁrst phenomenon that was considered a transnational crime - it forced countries to go out of their isolated national dimension. EUROPEAN Multi-level ﬁeld of law within Europe: EU and ECHR (judicial cooperation and protection of HR). We cannot talk about a “European Criminal Law”, but groups of laws that have a direct impact on domestic law. > ICL and ECL as a Paradigm There are different level interactions of ICL, so we focus on ICL and ECL as they are: 1. A paradigm of the internationalization of law and justice. 2. A paradigm of the transformation of CL, both national and supranational. 3. International and European Criminal Justice as a paradigm of tensions between international and criminal law. The Dimension of Criminal Law: From a Pyramid to a Net From Monism to Pluralism. There’s a shift between the State being at the top of the pyramid mode to a network. Globalization and internationalization interactions have replaced subordination and linear hierarchy. - Pyramid: Relation between norms can only be independence or subordination. - Net: Relation between norms is based on interplay. It expresses a different structure of the relationships between the centers of production of law (pluralism of sources). It’s a multipolar net marked by interactions (at a statutory, judicial, horizontal and vertical level). a. Statutory Interactions: A legal provision refers to another legal provision. b. Judicial Interactions: One court may quote a reasoning from a court at a different level. A judicial decision makes reference to another precedent. They don’t follow this precedent because it’s legally binding, but simply because they’re inﬂuenced by/respect the authority of the higher court. c. Horizontal/Vertical Interactions: ↳ H: interactions between levels at the same type (ECHR/ICHR). ↳ V: Interactions between different levels (National v. International). > The Dialogue (ius commune) Between Different Levels as Part of the Legal Landscape “Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.” - Art 21, paragraph 1.c of the ICC Statute → Judges are trying to see if there are common principles in different international legal systems that can apply to different cases. > Judge as the Main Actor of the Criminal System The Net implies a crucial role of the judge → from interpreter to creator of the applicable law. LECTURE 6 Different Frameworks Of International Law European Framework Criminal law isn’t a competence of the EU. Could the basic freedoms we’re awarded (free movement, free movement of goods, etc.) in the EU inﬂuence criminal law? What happens if there’s a conﬂict between domestic and EU law in a criminal case? If a judge sees a contrast between a national law and an EU law, they’re forced to apply EU law → this is the primacy of EU law. This is the ﬁrst effect of European Law on member States. This primacy limits and reduces national criminal law. > El Dridi Case In 2008, the EU decided to set common standards in order to regulate migration - they should return illegally staying third-country nationals. The government in Italy wasn’t happy with this directive, it wasn’t strong enough to discourage illegal migration into Italy - so Italy adopted a series of legislative measures, the “Security Package”, to avoid the implementation of the Return Directive. This legislation introduced new immigration offenses of irregular entry with punishment with a ﬁne and imprisonment of 1-4 years if there's failure to comply. Because the directive didn’t apply to criminals, Italy found a way to bypass this regulation by criminalizing all irregular migrants. El Dridi, an Algerian national who entered Italy irregularly, in 2004 was issued an expulsion decree. Although he was requested to voluntarily leave the country within 5 days, in September 2010 he was arrested and sentenced to 1y imprisonment. El Dridi argued that this decision was in conﬂict with EU law, and appealed the decision to the Appeal Court of Trento, which later submitted a reference for a preliminary ruling to the ECJ, enquiring whether or not a criminal sanction during an administrative procedure concerning El Dridi’s return due to non-compliance complied with the Return Directive. The ECJ conﬁrmed the doubt of the Italian Judge, and said Italy couldn’t resort to criminal law in this case, because the country didn’t have any facilities that could help the removal of the illegal immigrants. Because of this decision, Italian courts started to dismiss criminal cases involving third-country nationals, and freed those detained on the basis of this provision. Directives, in EU law, function as a means for the Union to apply measures in member States in order to ﬁght a problem and reach a solution. On one hand, we have this dialogue, but it creates a risk of losing basic principles at the national level. The reason why we didn’t see more competence of the EU in criminal law matters is because they didn’t (couldn’t) share the same fundamental principles as each member State that follows it. Does the EU have the competence to decide what should/shouldn’t be considered a crime in a member State? There’s a possible 3rd effect of EU law on national criminal law, the Lisbon Treaty introduced on Art. 83 (still on paper), the power of the EU to introduce minimal norms to reference some relevant transnational crimes (human trafﬁcking, mistreatment of women and children, cyber crime, drug trafﬁcking, etc.). Since 2021, the EU created a body: the European Prosecutor, a body with a very limited task → dealing with ﬁnancial crimes against the EU. It’s not a central uniﬁed EU criminal system, just a prosecutor that identiﬁes this situation and then brings it to a national court. An Example of the Net Paradigm: The Taricco Case On the relationship between the principle of legality (includes the principle of “not looking back in the law” - stare decisis/non-retroactivity) and the statute of limitations. A dialogue between the ECJ and the Italian Constitutional Court. Compromise between internalization and the resistance of the National system and their protection of their citizens. → Proliferation of Norms → Relativism in the Protection of HR → Diversiﬁcation of Actors LECTURE 7 Globalization/Europeanisation and the Criminal Law System From Monism to Pluralism Pluralism: Law is much more than State law. Law acting simultaneously even if neither totally independent nor totally subordinated one to the other. Towards a New Global Order? We’re going from fragmentation to harmonization: we reach a common background where we still have differences at a national level. How do we reach this harmonization? ↳ Legal Techniques: National Margin of Appreciation Functional Equivalence Complementarity Cooperation a. National Margin of Appreciation A constant dialogic perspective between States and the European Court, the margin of appreciation doctrine balances the evolutive interpretation of the European Convention in favor of the States → In order to balance the situation. Guarantees a degree of national autonomy: in legislative, judiciary and executive as far as certain convention rights are concerned. State’s decisions are then subject to the scrutiny of the Court. As long as you’re not violating the basic HR, you can have a different (more restricted/wider scope) of an HR. NMA is the key to combine universalism (HR) and relativism (single States): HR are an example of integration and interaction between universal and relative paradigms. Not opposing the National dimension and the International dialogue, but ﬁnding a balance between the two. b. Functional Equivalence A common goal is found in a Treaty, and the States are allowed to use different approaches to reach this goal, as long as it follows the functional equivalence. Found in the ﬁeld of international corruption: It doesn’t require uniformity or changes in the fundamental principles of the single legal systems, but a functional equivalence among the measures taken by the State Parties. → Making sure different layers of justice (like local, global, and regional systems) work together is a big challenge. There are some basic rules in international law to help with this: complementarity and cooperation. c. Complementarity Grounded in the idea that international and domestic institutions have shared responsibility in investigating and prosecuting international crimes. From just a legal perspective, complementarity is a legal mechanism to organize coinciding jurisdiction between international and domestic jurisdiction → reafﬁrms the primary role of the States in exercising criminal jurisdiction over international crimes. It seeks to complement, not replace national Courts. > ICC as a Global Project The Rome Statute establishes a more systemic turn to the interaction between international and domestic legal systems. The Statute doesn’t only create a Court, but a system of justice. By ratifying the Statute, a State acknowledges that crimes within the jurisdiction of the Court shall either be investigated or prosecuted by a domestic jurisdiction or by the Court itself. The ICC enjoys an independent right of assessment over the situation and the choices of justice adopted in the domestic context. > The ICC as a “Watchdog Court” The ICC can only activate and exercise its jurisdiction if national courts haven’t taken any action, or if they’re “unable” or “unwilling” to properly conduct their investigations and prosecutions (Art. 17). The Rome Statute allows the ICC to activate and exercise its jurisdiction when national courts aren’t doing their job properly, but also empowers the ICC to decide whether national Courts are doing it at all → watchdog. ICC takes over when it considers that States aren’t investigating and prosecuting crimes of genocide, crimes against humanity and war crimes properly. The ICC doesn’t hold States responsible for the crimes themselves, but how they deal with the international crimes committed. > Harmonization The interdependent relationships are deﬁned by the principle of complementarity. It’s an instrument to accommodate legitimate differences and allow for pluralism and diversity. It doesn’t require uniformity (or identity, like uniﬁcation), at most a certain degree of equivalence between international and domestic justice. d. Cooperation Another key element of systemic interaction. Essential at different stages of international and European criminal justice. Involves not only arrest and surrender of defendants, but access to info, logistical support, judicial cooperation, operational support, assistance with security or access to places, sites and evidence. In the EU setting → the adoption of the mutual recognition principle. From Traditional Conceptions of Law and Justice to Pluralism Pluralism avoids dominance and allows individual States to make decisions. > Ordering Pluralism Can use techniques to maintain hierarchy and autonomy for States while still supporting integration. Although it accepts differences and national discretion, there’s a threshold for compatibility (as a limit). Pluralism Requires: a dialogue between legal systems and comparative methods → within codiﬁcation/within interpretation. Pluralism Implies: a crucial role for comparative law (tool for integration and resistance) → comp law is a key tool for the founding of a global human community. Comp law searches for harmony through the creation of a compatibility that preserves national identity instead of uniformity. The Relationship Between HR and CL Demonstrated in the various instruments for safeguarding fundamental rights and freedoms (in domestic, EU and international law). However, according to Marty, “criminal law appears to be both an appreciation and a threat for fundamental rights and freedoms” → not the law protects, but a law from which protection is needed. Limit as a key concept → HR as the object and the limits of International and EU CL. > “Shield” and “Sword” Functions of HR in the Application of CL HR, originally a defensive method, is slowly turning into an offensive weapon. At the same time, an defensive (afford protection from CL) and offensive role (CL called to protect HR). HR protecting from and giving rise to CL enforcement. LECTURE 8 The Beginnings of Criminal Law Before International Criminal Law > After WWII The attempt to prosecute Kaiser Wilhelm II → “For a supreme offense against international morality and the sanctity of treaties. In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality.” - Art. 227, Peace Treaty with Germany > International Military Tribunal (IMT) Dealt with crimes against peace (aggression), war crimes and CAH. Each of the four allied countries provided one judge and an alternative, as well as a prosecutor. This Tribunal had problems with Victor's Justice (winners of a conﬂict impose their own version of justice on the losing side, often with a biased or self-serving perspective, the winner getting to decide what’s right and wrong without impartial judgment) and retroactivity. It achieved the criminalization of the worst violation of HR, making it a part of the international legal system. Established principles (still valid today): 1. Individual criminal responsibility for international crimes. 2. Individual criminal responsibility doesn’t depend on whether the act violates the law of the country in which it was committed. 3. Acting upon superior’s orders doesn’t exclude punishment (can almost mitigate it). 4. Acting as a head of State or government doesn’t exclude punishment. 5. Every accused gets a right to fair trial. > International Military Tribunal for the Far East (IMTFE/Tokyo Tribunal) Established by a special proclamation of General Douglas MacArthur in 1946, the same day he adopted the Charter of the IMTFE, following the model of the Nuremberg Trials. Functioned from 1946-1948. > Nuremberg Trials The trials didn’t happen at an international tribunal, but before the Allie’s respective military tribunals. Basis: Control Council Law N.10 of December 1945. For CAH, CCL N.10 included an improvement that permanently affected ICL: the link to war crimes or to crimes against peace required by the Nuremberg Charter was eliminated. Done in Three Phases: 1. After WWII: The IMT and the IMTFE 2. The Age of Codiﬁcation: a. Report of the International Law Commission on the “Nuremberg Principles” (1947). b. 4 Geneva Conventions (1949) and 2 additional Protocols (1977). c. Convention on the Prevention and Punishment of the Crime of Genocide (1948). d. Convention on the non-applicability of statutory limitation to war crimes and CAH (1968). 3. After the Cold War: the ad hoc Tribunals (ICTY 1993) and ICTR (1994) and the ICC (Rome Statute adopted in 1998, entered into force 2002). There were other National Trials related to WWII, in particular in the second half of the XX Century (Eichmann Trial, Frankfurt Auschwitz Trials, Barbie Trial, Papon Trial, Priebke Trial), they weren’t an application of ICL and Justice, but contributed to the deﬁnition. There were also trials that contributed to the concept of transnational justice: Juicio a las Juntas in Buenos Aires 1985. > ICTY and ICTR Considered the second application of international law. Established by resolution 827 of the UN Security Council in 1993 “An International Tribunal shall be established for the prosecution of persons responsible for serious violations ICTY of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. Established by resolution 955 of the UN Security Council in 1994, for the Prosecution of Persons Responsible for Genocide and Other Seriuos Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between Jan 1st 1994 and Dec 31st 1994. ICTR Akayesu: ﬁrst conviction for genocide in history - legal precedent that genocidal rape falls within the act of genocide. Nahimana and Barayagwiza: ﬁrst conviction for incitement to genocide - hate speech as an international crime. → The Security Council acted under Chapter VII of the United Nations Charter, which allows the Council to determine the existence of any threat to the peace, breach of the peace or act of aggression, and to take military and non-military action to restore national peace and security. In this case, the source of criminal law is found at the international level and the constitutional justice takes place at the national level, this is why it is considered international criminal law. Analogies With Nuremberg Differences With Nuremberg Ad Hoc Tribunal Already established principles of individual responsibility. Ex post facto Tribunal Already existing “codiﬁcation” of international crimes. Not voluntarily established by the State The UN has a different legitimacy than the Allies. Victor’s Justice (?) The crime of genocide wasn’t present at Nuremberg. There’s a well-developed body of procedural law in accordance with the rule of law principle. ICTY Located in the Netherlands, operated from 1993-2017. Contributed substantially to clarifying and further developing ICL, in particular to the assimilation of the scope of criminal law applied in international and non-international armed conﬂicts. Ofﬁcial Steps Into Ofﬁcializing ICL 1. The attempt to prosecute the Kaiser after WWII 2. Nuremberg and Tokyo 3. “The Age of Codiﬁcation” 4. ICTY and ICTR 5. The ICC ICL = ICJ? Although important, the ICJ isn’t the only response to ICL → they’re known as transitional justice. ↳ Hybrid tribunals: SCSL, SPSC, ECCC, Extraordinary African Chambers. ↳ Other: War Crimes Chamber of State Court of Bosnia and Herzegovina, Kosovo Relocated Specialist Judicial Institution, STL. 1998 In the 1990s, the rebirth of international criminal justice was inﬂuenced by the optimistic atmosphere of Western dominance and the perceived triumph of capitalism. However, events like the 2008 crisis, Twin Tower attack, and climate crisis created uncertainty. The focus shifted to legal theories addressing international crimes. Dictatorships were giving way to democracy, as seen in Chile's transition from Pinochet's regime to democracy. In 1998, Pinochet's arrest in the UK marked a turning point, challenging the immunity of former heads of state. This event, known as the Pinochet effect, signaled the end of impunity for political leaders. The ICC was founded in the same year, reﬂecting a global push for a permanent universal criminal court. The euphoria of that time aimed to establish a court with binding norms directly applicable to individuals—a manifestation of idealism in 1998. LECTURE 9 Disillusion, Structure of the ICJ In the past there was idealism, today, we see disillusion. The most powerful States aren’t MS of the ICC: USA, Israel, India, Russia, China. International criminal institutions are marked by multiple paradoxes. There’s a strong difference between reality and expectation. The mandates of international ICCs and tribunals are marked by a considerable degree of “global 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”. There has been a pattern of investigations limited to easy targets (non-Western powers or non-armed groups), the ICC has been accused of being too consensual. The ICC has been successful in contexts where it operated with the support of governments, but struggles to pursue cases challenging the authority of uncooperative regimes. > The African Court of Justice and Human Rights The African alternative to the ICC. Founded in 2004 by the African Union. The minimum number of ratiﬁcations hasn’t been reached yet. ICC as a Revolution Established voluntarily through a Treaty, it is not only a court, but a system of justice. By ratifying the Statute, a State recognizes that crimes within the jurisdiction of the Court shall either be investigated or prosecuted by a domestic jurisdiction or by the Court itself. The ICC: - Permanent - Potentially Universal - Applies basic principles of criminal law: nullum crimen sine lege and nulla poena sine lege, irretroactivity. - Sanctions determined in the Statute - Participation of victims - Complementarity Structure of the ICC > 18 Judges Chosen for 9y. Must be nationals of the States parties to the Rome Statute, and there cannot be 2 judges of the same nationality. > Jurisdiction Three requirements: 1. Ratione Materiae (Art. 5) Most serious crimes of concern to the international community as a whole. The jurisdiction of the Court is limited to, in respect to this Statute: a. Crime of Genocide b. Crimes Against Humanity c. War Crimes d. Crime of Aggression International Crimes Deﬁnition: Conduct + Contextual Element → It’s not enough to prove that you committed a crime, you also have to prove intention. 2. Ratione Temporis (Art. 11) Article 11 1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. [1 July 2002] 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3 (Philippines and many others). Article 12 paragraph 3 If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question.” (eg. Palestine accepted the ICC jurisdiction in 2014 and became State Party in 2016; Ukraine... debated) → If a State joins after a certain point, their actions will only be taken into consideration by the Court from that point on. 3. Ratione Loci/Personae (Art. 12) Article 12(2): In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3 (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; [no matter the nationality of the perpetrators] (b) The State of which the person accused of the crime is a national.» [very controversial in the Rome conference, eg. Usa] > Trigger Mechanisms (Art. 13) There are three institutions that can trigger the ICC: MS, Security Council of the UN and the Prosecutor. a. Referral of a Situation by a State Party Article 14 A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more speciﬁc persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring to the situation. b. Proprio Motu The Prosecutor can initiate an investigation, even against the will of a MS → This is a revolutionary act, because a State can be put under investigation by a lower body. The authority to investigate and prosecute international crimes is no longer exclusively triggered by States. The main caution is that proprio motu action by the Prosecutor requires additional judicial control, namely authorization by Pre-Trial judges. Article 15 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyze the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. 5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. Rome Statute of the International Criminal Court 12 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence. The Security Council of the UN can also initiate investigations. This was a controversial decision because there have been cases (Libya and South Sudan) where investigations were started on States which aren’t members of the ICC → it has powers to extend the jurisdiction of the ICC beyond its limit. The ICC is turned into an ad hoc tribunal. Article 13 b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations (Action with respect to threats to the peace, breaches of the peace, and acts of aggression). It also has the power to stop an investigation of the ICC for one year → deferral of investigation or prosecution. It hasn’t been used so far. It’s also very controversial. Article 16 No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. There are speciﬁc triggers for crimes of aggression: Art. 15 bis and 15 ter, 17 July 2018. All mechanisms have been used: - STATE REFERRAL: (Uganda, DRC, Central African Republic, Mali, Palestine, Ukraine) ⎻ PROPRIO MOTU: (Kenya, Côte d’Ivoire, Burundi, Georgia, Bangladesh/Myanmar, Afghanistan, Philippines, Ukraine) ⎻ SECURITY COUNCIL REFERRAL: (Darfur, Libya) Situations/Cases Situation: general framework (time/space) in which crimes appear to have occurred. General framework of the investigation (Ukraine 2022). ↳ Deﬁnition absent from the ICC Statute, but elaborated by ICC case-law. ↳ When the ICC jurisdiction is triggered, a situation is referred. ↳ Situations are “chosen” by the subject that triggers the jurisdiction. Cases: Speciﬁc incidents committed by one or more identiﬁed suspects in the context of a situation → more speciﬁc than a situation. ↳ Deﬁnition absent from the ICC Statute, but elaborated by ICC case-law. ↳ The identiﬁcation of cases coincides with the issuance of arrest warrants or summons to appear. > Selection of Cases Made by the Prosecutor within a speciﬁc situation (delicate and political strategic choice with repercussion on the Prosecutor’s reputation). OTP Policy Paper on Case Selection and Prioritization: 1. Most serious crimes within a situation → qualitative (nature of the crime) and quantitative (number of victims). 2. 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. 3. Nature of charges, should reﬂect the crimes occurring within the situation, with particular reference to crimes traditionally under-prosecuted (crimes against children, sexual, gender-based crimes). 4. Other factors (impact on the community and victims, contribution to the prevention of crimes, etc.). > Preliminary Examinations Phase common to all manners to trigger the ICC jurisdiction → the Prosecutor, with limited investigative powers, collects material and evidence in order to establish if there’s a reasonable basis to believe that crimes under the ICC jurisdiction have been committed. Principle of Complementarity ICC has neither primacy over national courts nor exclusive jurisdiction over international crimes. Reﬂects the balance between preserving the State sovereignty and ﬁghting impunity for international crimes. ↳ States have primary responsibility and the ICC is empowered to act in situations where there’s no prospects of national (genuine) trials. ↳ This does not mean subsidiarity, like in the case of ECRH. > Double Effect of Complementarity 1. Incentive for States to ﬁght impunity on a domestic level → positive complementarity. States are motivated to accept and approve jurisdiction and adopt it in their own systems because otherwise the ICC can take primacy. 2. Safety Net Mechanism → ICC intervenes in case states fail to do it at all/fails to do it properly. If States fail to prosecute international crimes. The ICC and States both have jurisdiction: principle of complementarity ≠ deﬁning jurisdictions → principle of complementary = deﬁning the exercise of jurisdictions. The ICC doesn’t inﬂuence the existence of jurisdiction of the Court as such, but it rules when this jurisdiction may be exercised by the Court → you have jurisdiction in this case, but you cannot exercise your jurisdiction in this situation (Art. 17). ↳ ICC Statute Norms: The ICC shall be complementary to national criminal jurisdictions. It’s the duty of the State to exercise its criminal jurisdiction over those responsible for international crimes. > Ratio Safeguarding the State’s sovereignty → the right to prosecute is a part of sovereignty. States are the likely actors in the prosecution of international crimes. The ICC has limited resources → It’s important not to overload it, it cannot prosecute all international crimes. > Effects ICC has limits in the exercise of its jurisdiction, but it can exercise some control on States and intervene whenever necessary. This becomes a stimulus to prosecute crimes at the national level and progressive harmonization of national legislation with reference to criminal law respecting State sovereignty, since States have the burden of adapting to the Rome Statute (amendments, laws and even constitutions to render them compatible with the ICC system). > Positive/Proactive Complementarity The idea that national legal systems should actively work alongside international courts to address and prosecute crimes, creating a complementary relationship between national and international justice efforts. Initiation of an Investigation Article 53 1. The Prosecutor shall [...] initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. 2. If, upon investigation, the Prosecutor concludes that there is not a sufﬁcient basis for a prosecution [...], the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion. 3. (a) At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision. (b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if conﬁrmed by the Pre-Trial Chamber. 4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information. Art. 53 Pt. C → controversial, has never been used. You don't open an investigation even if there’s an investigation, if you think this wouldn't serve the interest of justice. Not only strict legal requirements. If we think on the utilitarian approach, there are several views of justice, very political views of justice, so what could be “against the interests of justice”? The Admissibility Issue (Art. 17) General Rule: a. The case is being investigated or prosecuted by a State (...) → If a State acts ﬁrst, the ICC cannot intervene. b. The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned (...) c. The person concerned has already been tried for conduct which is the subject of the complaint (...) → If a State has acted ﬁrst, the ICC cannot intervene. > Exceptions: The case is of the State’s jurisdiction unless the State is unwilling or unable to carry out the investigation or prosecution. This could be a violation of the “you can’t be prosecuted twice”, but in this situation, the ICC can open a case. State is UNWILLING State is UNABLE (a) The national proceedings were made for the Due to a total or substantial collapse or purpose of shielding the person concerned from unavailability of its national judicial system criminal responsibility; (factual or judicial incapacity), the State is unable (b) There has been an unjustiﬁed delay in the to: obtain the accused, obtain the necessary proceedings which in the circumstances is evidence or testimony, otherwise carry out its inconsistent with an intent to bring the person proceedings. concerned to justice; (c) The proceedings were not conducted independently or impartially. Legal Inability → you recognize there’s a crime, but there’s no national instrument in their legal systems to prosecute the crime. Could be a case in which an NGO or IO brings a case to the UN Prosecutor because that State doesn’t have the capability to deal with that crime. Gravity → The ICC cant take primacy if the case is of sufﬁcient gravity to justify further action by the Court. Who decides if a State is unwilling or unable? This assessment is extremely political and discretional → it affects State’s sovereignty. International criminal law has to be unbiased and just, it has to be aware of where these political moves can have a place. Challenge of Admissibility Article 19 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. Serves two functions: 1. Protects State’s sovereignty. 2. Protects the individual right → ne bis in idem. The State can challenge the admissibility of a case, because it wants to protect their sovereignty, and the accused can try to protect their right not to be prosecuted twice for the same crime. Decision is done case-by-case and related to that speciﬁc moment. The ICC decides (Pre-Trial Chamber, with a possible appeal) → the ICC becomes not only the judge of the crime, but the judge who decides the abilities of a State to act. There’s nothing on evidence on the Statute. > The Two-Fold One-Fold Test Two-Fold Test Based on the Statute. A case is admissible only The court shall evaluate if: when the State is unwilling or unable. 1. If there is/was a prosecution/investigation in a State, if not (inaction) the case is automatically admissible. 2. If there is, the case is admissible only if the State is unwilling or unable. > Same Person/Same Conduct Test A legal principle that determines if someone can be prosecuted for the same criminal behavior in both national and international courts. If a person has already been tried for a particular conduct in one jurisdiction, the same person/same conduct test may prevent them from being tried again for the same actions in another jurisdiction. > Burden of Proof There’s no automatic assumption or legal expectation that a state is both willing and able to address a particular issue or situation. The state has to demonstrate its willingness and capability instead of it being presumed by default. LECTURE 10 Criminal Law and Non-Retroactivity - How to Deal With Nazi Crimes? Hans Kelsen and Positivism Positivist approach means that the legitimation of law is based on a highest source, a fundamental norm that legitimizes the entire system. Law should be separate from all morals and ethics - it should be justiﬁed by the authority of those who issue the law. Separation between law and morals and between law and empirical sciences. As long as the procedure is correct as provided by the higher authority, then the law is valid. According to Kelsen the principle of absolute leadership, constituted in Nazi Germany, from the POV of CL positivistic approach, this was a valid form of law, and therefore should not result in punishment. According to him, the punishment of Nazis can be justiﬁed on the ethical and moral level, but not on the basis of law. Gustav Radbruch > Approach Before the WWII “Since it is impossible to ascertain what is just, it must be decided what is lawful. In lieu of an act of truth (which is impossible) an act of authority is required. Relativism leads to positivism.” → There’s too many different morals and ethics in the world, it’s not up to the Judge to decide what’s just or not, we must decide based on what’s lawful. Law shouldn’t be based on what’s just, but what’s true. Law should serve the purpose of legal certainty → it’s not the task of the Judge to decide if the task is just or unjust, the ﬁrst task of the law is to decide what’s lawful and unlawful, and the judge must guarantee this. > Approach After WWII Says the opposite: he admits that positivism is incapable of the validity of Statues. That while power may serve as a basis for the “must” compulsion, it never serves as a basis for the “ought” of obligation for legal validity. > The Formulas 1. Positive law must be applied because of the principle of legal certainty. Unerträglichkeitsthe se (“Intolerability Law can go against justice = false law = is unjust but valid, legal certainty Thesis”) prevails. Very exceptional cases. Statutory Non-Law, non-existent law because you can’t even call it law = it 2. Verleugnungsthese lacks the very nature of law: the primacy of legal certainty is revoked, when (“Disavowal Thesis”) injustice becomes tolerable. → Justice prevails over law. Only in very extreme situations, such as Nazi Germany, does legal certainty have to give away to arguments based on justice. In ordinary times, morality shouldn't be a part of law → here the value of legal certainty takes precedence. In this sense, Radbruch formula combines “positivist” and “natural law” arguments. → This formula has the power to combine the two principles: both positivism and non-retroactivity are still valid. > Consequences for CL Does Radbruch’s formula violate the ban against ex post facto law? Since the law that was enforced was unjust, we can’t see it as law. Therefore we can apply the CL that came before → this isn’t retroactivity, because Nazi law is “non-law”, and we can prosecute it as such. Does Radbruch’s formula violate the principle of certainty? It’s an exception, because this principle is trumped by the principle of legality, which protects the citizen. Legal certainty shouldn’t protect the criminal regimes. In view of intolerable injustice and extreme acts against human rights, there is no reliable trust. It’s a compromise. While Radbruch's Formulas are more clearly focused on individual norms, in practice, it is most likely to be applied where there has been some form of transition in the relevant regime, such that a judge from one system or tradition is asked to apply (or not apply) the law of another system or tradition: post-war Germany dealing with its Nazi past; uniﬁed German dealing with the East German past; and so on. The Berlin Wall Guards & the ECTHR Berlin was divided into two zones by a wall (considered to be a no-one zone). Young people, with a promise to have a better life on the Western side of Berlin, tried to pass through this wall, and soldiers were ordered to shoot them on sight. In 1989 the Berlin Wall was brought down, and in 1990 Germany was brought back together. 1990-2005 there was the prosecution of GDR State criminality: border shooting, perversion of justice, electoral fraud, economic crimes, doping, abuse of prisoners, etc. What law could be applied in this case? Uniﬁcation Treaty → substitution equated with national change of laws. Criminal liability subject to the most favorable principle. > Border Guard Trials - Retroactive Question Intentional homicide was criminalized under GDR law, but killing people to prevent feeling from the Republic was permissible. However, prosecuting these people could be a violation of retroactivity? This behavior was lawful under GDR law, and therefore prosecuting them now would be prosecuting them for a crime that didn’t exist when the act was performed. Answer of the FRG: application of Radbruch’s formula in accordance with international law, and HR friendly interpretation of GDR law (people have the right to life) → through this, they declared the guards have violated both East and West Germany law. HR Friendly Interpretation by the Federal Radbruch’s Formula + IL Supreme Court Was already used in Nazi crimes. It refused to East Germany recognized the protection of life recognize the HR violating justiﬁcatory grounds and the principle of proportionality → killing for government-instigated killings → the violation unarmed people could be considered illegal by of the right to life was permitted in limited cases. the HR friendly judge of the GDR → doesn’t Justiﬁcation for border shootings didn’t respect involve retroactivity. the proportionality of means and ends (“random” killings). Prohibition on retroactivity didn’t stand ECHR → no violation of Art.7 “No one shall be held in the way of accountability. 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.” → however, in paragraph 2 of this article there was an exception to the principle of legality which was used speciﬁcally for cases after WWII, which allowed the prosecution and punishment of crimes committed that violated the general principles of law. There was a great divide between that the law written was, and how the application of this law was done by the GDR. The GDR ignored and disregarded the need to preserve human life, which was enshrined in the GDR’s constitution and legislation, the applicants (political leaders) knew, or should’ve known that they infringed on HR, since they couldn’t be ignorant of the legislation of their own country. Fundamental Pillars of German Transitional Justice Serious human rights infringement used both as a legitimization and limit to criminal prosecution: (used in many cases of GDR criminality), with some dismissed for lack of serious HR violations. Continuity of prosecution: culture of impunity, electoral fraud and abuse of power and corruption, respecting the will of the people. Strengths: accountability for serious violations of HR, taking into consideration the will of the German population and acknowledgement of past wrongs. Weakness: rough legal framework, multilevel legal framework, no center prosecutorial ofﬁce, divergences in prosecution, no further development of the tools used with HR. Mistaken Weaknesses: victor’s justice, lenient penalties (camouﬂaged amnesty). GUEST LECTURE: Universal Jurisdiction and the Prosecution of International Crimes in Germany The Domestic Prosecution of Criminal Law in Germany > The Al Khatib Case Two middle-ranking ofﬁcers of the Syrian secret service were put on trial by the Germany court, prosecuted for torturing and killing members of the political opposition. The ﬁrst defendant was sentenced to life in prison in 2022 → crimes against humanity for rape, torture, murder, sexual violance (in IL, sexual crime is a very important crime). The second defendant was charged for aiding and abetting. This trial was the ﬁrst trial for crimes committed by the Syrian regime - the reason why this trial became so famous. Why did this trial take place in Germany? The crime wasn’t committed in Germany nor did it involve German citizens, but due to the conﬂict in Syria, the movement of refugees concentrated themselves in Germany, including the perpetrators. A victim recognized one of the perpetrators and went to the police, and the trial started. Why was a German Court dealing with this International Crime? Why didn’t it take place in the ICC - because the ICC has limited jurisdiction, it deals with international crimes but the Statute of the ICC claims that it only has jurisdiction only if the crime occurred in one of the MS or if the perpetrators are nationals of a MS. Syria isn’t a MS of the ICC, and therefore the Court has no jurisdiction. The Constitutional Court placed the German proceeding into an international context → the crimes were considered to affect the entire International Community, and allowed Germany to claim jurisdiction. German Constitutional Court, decision of 18 August 2020, 1 BvR 1919/20 “It must be taken into account that this is a criminal trial that attracts an unusually large amount of public attention - particularly in the population for which the complainants intend to report - and therefore naturally also attracts the interest of media representatives who do not speak the German language. This applies all the more in view of the fact that Germany is claiming jurisdiction that does not exist according to general principles, but is due precisely to the special nature of the crimes in question, which affect the international community as a whole.” (para. 11) → The Constitutional Court placed the German proceeding into an international context. > International v. National Prosecution of International Crimes Modes of enforcement: a. Direct enforcement → International courts: direct prosecution and punishment of individuals for serious international crimes by international bodies, such as the International Criminal Court. Unlike traditional national law enforcement, direct enforcement transcends borders to hold individuals accountable for crimes like genocide and war crimes. It aims to address situations where national authorities may be incapable or unwilling to prosecute such offenses, ensuring global accountability for the most severe violations of human rights and international law. b. Indirect enforcement → Domestic court: relying on national legal systems to prosecute individuals for international crimes. Instead of direct international prosecution, countries are encouraged or required to incorporate international legal principles into their domestic laws and pursue legal action against those accused of offenses like genocide and war crimes. This approach emphasizes the role of individual nations in upholding international standards while recognizing their sovereignty in handling legal proceedings within their borders. c. Internationalized/Hybrid courts: blend international and national elements. They have a mixed composition of international and domestic legal personnel and jurisdiction over serious international crimes. Operating in situations where national systems may be inadequate, these courts aim to ensure accountability by combining international and host country legal frameworks. Examples include the Special Court for Sierra Leone, reﬂecting a collaborative approach to addressing and prosecuting serious international crimes. > Concept of Universal Jurisdiction States are entitled to exercise their criminal jurisdiction over certain crimes (under IL) regardless of: a. The location of the crime b. The nationality of the perpetrator c. The nationality of the victim d. Or any other link to the crime in question Universal jurisdiction is like the superhero of legal principles - it allows a country to prosecute individuals for certain crimes, even if the crimes were committed outside its borders and the perpetrator isn't a citizen. Think of it as a global pursuit of justice, where some offenses are considered so heinous that any state can take legal action against the wrongdoer, regardless of where the crime occurred or the nationality of the accused. It's like saying, "Hey, crimes against humanity concern all of humanity, so anyone can step up and ﬁght for justice." MS act as “trustees” or “representatives” of the International Community, acting on behalf of it. > German Code of Crimes Against International Law Section 1 – Scope of Application (CCAIL) This Act shall apply to all criminal offences against international law designated under this Act, to offences pursuant to sections 6 to 12 (genocide, crimes against humanity and war crimes) even when the offence was committed abroad and bears no relation to Germany. For offenses pursuant to section 13 (crime of aggression) that were committed abroad, this Act shall apply independently of the law of the place where the act was committed if the perpetrator is German or if the offense is directed against the Federal Republic of Germany. Germany and International Criminal Law: from initial rejection to approval and eventual support. - Government: support for UN and hoc Tribunals and ICC - Parliament: progressive legislation implementing ICC Statute - Court System: prosecutes international crimes Not all States have to act under Universal Jurisdiction or have to exercise on it, it’s a very political issue and can cause conﬂict. In 2002, the GCCAIL was implemented, this code provided a legal basis for the prosecution of crimes under IL by the German criminal system. It adapts German legislation to the substantive law of the ICC statute. It remedies the prior deﬁcits: the “lack of adequate deﬁnitions of crimes” problem and the “limited scope of applicability” problem → universal jurisdiction (universal jurisdiction, which allows prosecution regardless of where a crime occurred, is constrained by speciﬁc legal or political factors. This limitation may affect the ability to prosecute certain international crimes under this jurisdiction). LECTURE 11 Transnational Justice, Retributive/Restorative Justice, Criminal Prosecution and Amnesty ICL and Transitional Justice How to deal with State/mass criminality? How do we deal with criminal conducts that were legal/compulsory in a previous regime? How do we deal with past atrocities in an unstable present of transition from one regime to another? International criminal justice isn’t the only option to deal with past atrocities → different solutions at a national level: application of national CL, amnesty and non-prosecution (ofﬁcial pardon or forgiveness for a group or individuals for offenses, often granted by the government, or the decision not to pursue legal action against someone for a particular offense), truth commissions (ofﬁcial bodies established to investigate and report on human rights abuses or atrocities that occurred during a speciﬁc period, aiming to uncover the truth, promote reconciliation, and often recommend reforms or prosecutions), reparations to the victims, etc. > Scope of Transitional Justice Depends on the notion of Justice: ⎻ Retributive Justice: those who commit crimes deserve to suffer a proportionate punishment. ⎻ Restorative Justice: Restorative justice involves a process where all parties affected by an injustice, especially in the context of crime, engage in discussions to express how they've been affected and collaboratively determine actions to repair the harm. It emphasizes healing and believes that conversations between the harmed and the responsible parties should be central to achieving justice - J. Braitwaite Retributive Justice Restorative Justice Crime is an act against the state, a violation of a Crime is an act against another law, an abstract idea. person/community. The criminal justice system controls crime. Crime control lies primarily in the community. Offender accountability deﬁned as taking Accountability is deﬁned as assuming punishment. responsibility and taking action to repair harm. Cime is an individual act with individual Crime has both individual and social dimensions responsibility. of responsibility. Punishment is effective: Punishment alone isn’t effective in changing behavior and is disruptive to community harmony Threats of punishment deter crime. and good relationships. Punishment changes behavior. Victims are peripheral to the process. Victims are central to the process of resolving a crime. The offender is deﬁned by deﬁcits. The offender is deﬁned by the capacity to make reparation. Focus on establishing blame or guilt, on the past Focus on problem solving, on (did he/she do it?). liabilities/obligations, on the future (what should be done?). Emphasis on adversarial relationships. Emphasis on dialogue and negotiation. Imposition of pain to punish and deter/prevent. Restitution as a means of restoring both parties; goal of reconciliation/restoration. Community on sideline, represented abstractly by Community as facilitator in the restorative state. process. Response focused on the offender's past behavior. Response focused on harmful consequences of offender’s behavior; emphasis is on the future. Dependence upon proxy professionals. Direct involvement by participants. Summary: Summary: The use of criminal law and criminal Voluntary mechanism. trials. Dialogue between parties. The formulation of an indictment. Attention to victims rights. The criminal trial as a passive/non Not passive. consensual approach. No punishment. A conﬂicting paradigm between the Truth pro amnesty/penalty reduction. parties. Looks towards the future. The direct power to punish individuals with a penalty limiting personal freedom. The judgment as outcome of trial. Criminal trials as an instrument for setting the truth. A judicial truth, and authoritarian memory. The criminal trial is oriented towards the past. South African TRC: The South African Truth and Reconciliation Commission (TRC) was a post-apartheid initiative that investigated human rights violations, promoted reconciliation, and granted amnesty in exchange for truth-telling. Gacaca Trials in Rwanda: The Gacaca trials in Rwanda were community-based courts established to address and reconcile crimes committed during the 1994 genocide. > Why is TJ Different from Ordinary Justice? Hyper-politicized Moments: Dealing with crimes during highly politicized situations. Mass Participation: Challenges in punishing everyone when a large portion of the population is involved in crimes. Can we punish everybody? Political and Military Leaders: Difﬁculties in prosecuting crimes committed by high-ranking politicians or soldiers due to practical and legal obstacles, including immunities. Legality of Previous Conduct: Addressing crimes that were legal or mandatory under a previous regime, leading to legal conﬂicts. Justice and Political Transformation: Balancing the need for justice to uphold the legal order while supporting a political shift to a different regime, often during transitions to democracy. Main Problem: Trade-off Between Peace and Justice ⎻ Peace over Justice: should we avoid prosecuting crimes in order to guarantee a paciﬁc transition to democracy? ⎻ Justice over Peace: should we prosecute and punish at all costs? Even if peace is fragile? Even if this can bring war again? We need to reﬂect on what’s more important, justice for past atrocities or peace and democracy for the future. Prosecuting and punishing past crimes may lead to accepting the risk or present and future crimes. ⎻ Backward Looking Mechanisms: criminal, reparatory and administrative justice → dealing with past actions. ⎻ Forward Looking Mechanisms: rule of law measures and constitutionalism → preventing future problems. Ruti Teiler proposes that legal mechanisms in transitional periods serve both retrospective and prospective purposes. While criminal justice is traditionally backward-looking, focusing on punishment, during transitions, it also takes on a forward-looking role. In these times, criminal justice is used to delineate between the old and new regimes, emphasizing both consequences and the establishment of a new order. Overlapping of TJ and ICJ Objects and methods of Transitional Justice can be wider than International Criminal Justice → TJ goes beyond ICJ in its scope and methods. It encompasses a broader range of objects and approaches to address issues during periods of transition, not limited solely to criminal prosecution. When TJ deals with international crimes strictu sensu (narrow and precise interpretation), the notions of TJ and ICJ overlap → when TJ speciﬁcally addresses international crimes in a narrow and precise manner, the concepts overlap. In this focused context, the goals and principles of both TJ and ICJ align closely. Can TJ be in contrast with ICJ? Depends on the deﬁnition of ICJ. ↳ ICJ = Retributive Justice → can be contrast if TJ uses retributive justice: TJ is broader, aiming not only for accountability but also for societal healing, reconciliation, and addressing the root causes of conﬂict. While ICJ leans towards punishment, TJ incorporates a more comprehensive and forward-looking approach during transitions from conﬂict or authoritarian rule. ↳ ICJ = Retributive or Restorative Justice → No contrast. Genealogy of Transitional Justice > 1st Phase: Post WWII Characteristics: 1. Post-war. 2. Retributive model. 3. Use of international (criminal) law. 4. Prosecution at international level (IMT, MTFE). > 2nd Phase So called 3° wave democracy (from 1975 - post Cold-War transitions: Spain, Portugal, Latin American countries, former Soviets, South Africa). Characteristics: 1. Post-dictatorship peaceful transitions. 2. Restorative justice and alternative measures (TRC in South Africa), with or without retributive justice (in Argentina, the CONADEP commission worked in absence of criminal prosecution - In South Africa the TRC could decide whether to grant amnesty or to let criminal prosecution go on). 3. National level. 4. Various actors (not only criminal judges, but also involvement of local communities, NGOs, etc.). What happened in the 2nd Phase is a Justice Cascade? refers to a shift in the legitimacy/acceptance of the norm of holding individuals criminally accountable for human rights violations. Initially a small idea, it gained sudden widespread recognition, leading to increased criminal prosecutions based on this norm. The term highlights the idea's gradual growth, likened to a small stream that later becomes a powerful force, and notes that the Nuremberg precedents, which set the stage for individual accountability, were dormant until the 1970s before gaining momentum. What happened in the 2nd Phase is a Pinochet Effect? The "Pinochet effect" refers to the impact on the accountability of leaders for human rights abuses, stemming from the arrest of former Chilean dictator Augusto Pinochet in 1998. It signaled that even powerful leaders could face legal consequences for such offenses, inﬂuencing the pursuit of justice for human rights violations globally. Should political leaders be prosecuted and punished for their political actions? (Yes.) Is there a control over jurisprudence over politics? > 3rd Phase: 21st Century Characteristics (Paul Gready): 1. TJ as an Industry: A lot of activity. There's been a lot happening in transitional justice, with general and speciﬁc guides emerging. Big NGOs and academic centers from the Global North, often collaborating locally, are key agents in spreading information. There's also a surge in academic initiatives offering study programs, training, and various types of commentary on the subject. 2. Change of Ethos (Characteristics) of TJ: Not an alternative, but complementary tool → TJ is now broadly deﬁned to include various interventions like criminal prosecutions, truth-telling, reparations, and institutional reform. Keywords are considered holistically, moving beyond a peace versus justice debate, and recognizing that justice involves both judicial and non-judicial measures, focusing on the past and the future (criminal accountability, truth commissions, reparations, indigenous or community-based justice). Peace is understood to span both negative peace (prioritizing an end to violence) and positive peace (addressing the underlying causes of violence). The shift is from substitution to complementarity, emphasizing that interventions work together rather than as exclusive alternatives. 3. TJ Beyond Transition? A permanent feature → in the 21st century, transitional justice is no longer an exceptional instrument; it's seen as an ongoing tool addressing broader issues like economic and environmental problems. It's considered a constant part of political liberalization. Even in established democracies like the UK and Germany, transitional justice is applied to address issues like gender, ethnic, and LGBTQ+ discrimination, as well as corruption in places like Guatemala. 4. TJ as an example of the ambiguity of globalization: Transitional justice, with its focus on political violence and past abuses, tends to overlook issues like neo-liberal economics and present-day socio-economic rights violations. By prioritizing certain aspects, it may limit structural change in new democracies, potentially remarginalizing marginalized groups. The challenge is whether transitional justice addresses the broader facets of globalization that shape transitional realities, or if it merely acts as a conscience without challenging essential characteristics of transitional globalization. No Agreement to the Deﬁnition of Transitional Justice Some scholars give a very broad conception: “Anything that a society devises to deal with a legacy of conﬂict and/or widespread human rights violations, from changes in criminal codes to those in high school textbooks, from creation of memorials, museums and days of mourning, to police and court reform, to tackling the distributional inequities that underlie conﬂict“ (Naomi Roht-Arriaza) Others limit TJ to cases of post-war or post-dictatorship change of regime. Wide deﬁnition from the UN Secretary General: “The notion of ‘transitional justice’ discussed in the present report 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.” What are the Aims of TJ? In the context of international criminal law and transitional justice: 1. Justice (Retributive or Restorative): Transitional justice aims to achieve both retributive and restorative justice. Retributive justice involves holding individuals accountable for crimes through legal punishment, while restorative justice focuses on repairing the harm caused and promoting reconciliation. 2. Peace (Negative or Positive): Transitional justice contributes to both negative and positive peace. Negative peace involves ending violence and resolving immediate conﬂicts, while positive peace addresses the root causes of violence, promoting long-term stability and harmony. 3. Reconciliation: The ultimate goal of transitional justice is reconciliation. This involves not only resolving past conﬂicts through legal means but also fostering a sense of understanding, healing, and cooperation among individuals and communities affected by the crimes. Transitional Justice Mandates In the context of transitional justice in international criminal law: 1. Known → Truth: The pursuit of truth is a fundamental mandate. It involves uncovering and acknowledging the facts and details of past human rights violations, ensuring that the historical record reﬂects an accurate account of the events. 2. Remembered → Memory: Memory plays a crucial role in transitional justice. It involves preserving and acknowledging the collective memory of the affected communities, ensuring that the lessons learned from the past are remembered to prevent the recurrence of similar atrocities. 3. Punished → Justice: Holding perpetrators accountable is a key aspect of transitional justice. This mandate seeks to ensure that those responsible for international crimes are punished according to legal standards, promoting a sense of justice and accountability. 4. Repaired → Reparation: Reparation is an essential element of transitional justice. It involves addressing the harm and suffering caused by the crimes, both at an individual and societal level. Reparative measures aim to restore dignity, compensate victims, and contribute to the overall healing process. Criminal Prosecution Can be undertaken either at the national/international level or in mixed tribunals. The main problem is the overlapping of legal regimes → the classic example of national law permitting or ordering a conduct which is criminal under ICL. ↳ Different regimes: national criminal law, international human rights law, humanitarian law, international criminal law. > Connected problems of criminal prosecution: a. Can we punish crimes committed many years ago? No statute of limitation for international crimes. ↳ Nazi crime prosecution in Italy or Germany. b. Do international crimes justify an exception to the strict principle of legality? It’s debated. Some argue that the severity of offenses like genocide justiﬁes departing from strict legality, while others stress the importance of upholding the rule of law. The challenge lies in ﬁnding a balance between ensuring accountability for heinous crimes and maintaining legal principles. ↳ In its case law, the European Court of Human Rights (ECtHR) emphasizes the principles of legality and fair trial guarantees, particularly in cases involving allegations of human rights violations during armed conﬂicts. The ECtHR carefully examines the legality of national legal frameworks used to prosecute individuals for international crimes, highlighting the importance of maintaining legal safeguards while addressing serious offenses. The court aims to strike a balance between ensuring accountability and upholding fundamental human rights principles in the context of international criminal prosecutions. > The three phases of criminal prosecution are: 1. Investigation: Gathering evidence and information to determine if a crime has been committed and to identify potential suspects. 2. Accountability: Determining the responsibility of individuals for th

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