Transcript Internacjonalizacja prawa karnego [wprowadzenie]

ON INTERPRETATION OF
INTERNATIONAL CRIMINAL
LAW PROVISIONS
BETWEEN CONCEPTS AND TRADITIONS
Dr Michał Królikowski, University of Warsaw
CHARAKTER AND RULES OF ICL

INTERNATIONAL CRIMINAL LAW (STRICT SENSE)
 Core
crimes under the jurisdiction of international
tribunals
 Individual criminal liability for commission

TRANSNATIONAL CRIMINAL LAW
 Crimes
of international concern (treaty crimes)
 Transnational interest in co-operation with regard to
those crimes


EUROPEAN CRIMINAL LAW
NATIONAL LAW ON INTERNATIONAL CRIMES AND
CO-OPERATION
INTERNATIONAL CRIMINAL LAW IN
THE STRICT SENSE




Core crimes based on definitions recognized under
international law (genocide, crimes against
humanity, war crimes and aggression, special case
for torture)
Individual criminal responsibility directly imposed
and executed by international rules
Universal jurisdiction over the offender
Protection of international or the most
fundamental values and interests
THE CRUCIAL POINTS



Penal rules on the conditions on which individual
may be held criminally liable for his (international)
crime are expressed in public international rules
Preconditions of criminal liability and description of
sources on public international law are products of
different legal traditions
Judges come from different legal traditions (tension
between continental and common-law legal
reasoning)
BASIC ANTINOMIES


Reconstruction of sources and principles of interpretation
of international criminal law provisions should follow
the theory of public international law (Viena Convention
of Treaties: literal interpretation, teleological
interpretation and contextual interpretation – understood
either as a systemic or value-oriented method of
interpretation).
The aim of individual criminal liability introduces
limitations on how the basics for liability should look
like and how they need to interpreted (n.c.s.l., strict
construction of crimes, ban on analogy creating the basics
for liability, predicatibility and legal certainty expressed
the most directly in the mistake of law excuse).
BASIC FRAMEWORK OF THE SOURCES
OF INTERNATIONAL LAW

Art. 38 sec. 1 of the International Court of Justice states,
that basic sources of PIL are:
 International treaties providing the rules explicitly
recognized by parties;
 International custom being the evidence of
existing common practice recognized as a law;
 general principles of the law ‘recognized by
civilized nations’;
 as subsidiary means – case law and doctrinal
positions.
PIL SOURCES -- continued


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Lack of hierarchy between sources and coherence in
the system
Possibility to identify so-called peremptory norms
(jus cogens), but legal consequences of them are
clear only in treaty regime
Problem of legality principle when statute is
adopted after commission of the crime
 The
responsive content of the statutory rules
 The role of customary law (but problem with
predictability to the offender)
Criminal Liability Objection towards
PIL framework

Problem of legality principle when statute is
adopted after commission of the crime
 The
responsive content of the statutory rules
 The role of customary law (but problem with
predictability to the offender)
Sources recognised by the
International Criminal Court Statute

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
In the first place, ICC Statute, Elements of Crimes and its Rules
of Procedure and Evidence;
In the second place, where appropriate, applicable treaties
and the principles and rules of international law, including
the established principles of the international law of armed
conflict;
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 the State that would
normally exercise jurisdiction over the crime, provided that
these principles are not inconsistent with this Statute and with
international law and internationally recognized norms and
standards.
Dispersed system of criminal
unlawfulness

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
Most of the ICL provisions were expressed in
peremptory customary norms to which obligations erga
omnes are related. The reconstruction of them requires
understanding the common relations between custom
and treaties, and between custom and case law.
Treaty and statutory rules introducing principles of
liability are very fragmentary, so the burden was
imposed on ‘general principles’.
Problem of the level of activity of the courts in
declaring the general principles.
GENERAL PRINCIPLES

‘General principles of the law recognized by
civilized nations’ (art. 38(1)(c) of ICJ) contrasted
with ‘General principles of the law derived from
national laws of legal systems of the world’ (art.
21(1)(c) of ICC)
 General
principles of ICL recognized explicitly in
international law framework (n.c.s.l. versus victors
justice)
 General principles of PIL
 Generalizations made on comparative analises (ICTY
Furundzija rape exaple)
Next antinomies

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A Court may apply principles and rules of law as interpretes
in its previous decisions (art. 21(2) ICC) – so-called ‘soft
approach to precedents’ (not ‘shall’)
The definition of crime shall be strictly construed and shall not
be extended by analogy (art. 22(2) ICC)
Two criminal law traditions in assessing limits of prohibited
behaviour (continental and common-law). They merge on two
levels:


while discovering the content of the rules, especially general principles
of the ICL
while serving as a judge with regard to obligation to follow the written
law
ICTY in Aleksowsky
(IT-95-14/1-A, 24 March 2000)
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Courts shall rely on reasoning adopted in former judgments, but under
extraordinary circumstances they can give up with that line of
argumentation.
The need for criminal liability of the offender requires that the compromise
need to be made between legal certainty, stability and predictability of
the execution of the ICL with material justice (transgressing formal
definition for the sake of doing justice).
What shall be followed is not the solution expressed in former
judgement, but ‘legal principle, being ratio decidendi, is the point, which
you need refer to’. But the obligation to obey the way of reasoning exists
only in similar cases.
Why? Artificial reason may be more effective in vaqueness of the law
reconstructed from different aources that formal clarity. While there is clear
rule formality in n.c.s.l. should be decisive.
Examples

‘In every legal system, both continental and common-law, when the
meaning of the statutory words is beyond doubts, judge is obliged to
follow that wording’. In the case court dealt with the concept of ‘body
and health grave harm’ and – as declared – based on ‘plain, ordinary
meaning of the words (sic!)’ he accepted that it was related also to
mental suffering [ICTY, Delalić Trial Chamber, IT-96-21, 16 Nov. 1998]

In another case court was looking for the definition of the rape (empty
definition in the statute). After assessing that there is no clear in the
major legal system whether forced oral sex is understood as a rape it
found basic for punishing the offender for rape crime based on
‘intransgressible principle of human dignity’[ICTY, Furundzija Trial
Chamber, IT-95-17, 10 Dec. 1998]
FINAL ISSUES


Is n.c.s.l. principle (strict interpretation and prihibition of analogy) part of
core limit of the interpretation of international criminal law provisions?
(example: problem of crimes committed by the omission)
Is there an obligation in the process of interpretation to force the
compliance of the ICC statutory provisions to customary rules?

‘Nothing … shall be interpreted as limiting or prejudicing in any way existing
and developing rules of IL for other purposes than this Statute’ (art. 10 ICC)

N.c.s.l. ‘shall not affect the characterization of any conduct as a criminal under
international law independently of this Statute’ (art. 22(3) ICC)

Part of the definition of war crimes: ‘other serious violations of the laws and
custom aplicable in international armed conflict, within the established
framework of international law…’ (art. 8(2)(b)(e) ICC