Long-Term Sentences in International Criminal Law: Do They Meet the Standards Set Out by the European Court of Human Rights?

This article traces the development of the foreseeability test in the context of the nullum crimen principle. While the European Court of Human Rights has introduced the ‘accessibility and foreseeability’ criteria long ago in the Sunday Times case, the Court has only recently started to apply this standard with respect to international crimes. In the Kononov case, judges of the European Court of Human Rights exhibited strongly divergent opinions on the question whether the punishment of alleged war crimes that had been committed in 1944 violated the nullum crimen principle. According to this author, the dissension of the judges demonstrates the lack of objective foreseeability, which should have served as a starting point for the assessment of the subjective foreseeability and a – potentially exculpating – mistake of law of the perpetrator. The Court should therefore have concluded that the nullum crimen principle had been violated.

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Legality, Culpability and Dogmatik: A Dialogue between the ECtHR, Comparative and International Criminal Law

International Criminal Law Review ◽

10.1163/15718123-01506001 ◽

2015 ◽

Vol 15 (5) ◽

pp. 823-860

Author(s):

Giulio Vanacore

Keyword(s):

Human Rights ◽

Criminal Law ◽

International Criminal Court ◽

International Criminal ◽

Common Law ◽

Case Law ◽

Criminal Court ◽

International Criminal Law ◽

European Court ◽

Constitutive Element

This article aims to analyse a peculiar interplay between the case-law of the European Court of Human Rights (ECtHR), comparative and international criminal law. The discussion focuses on legality, foreseeability of the criminal nature of conduct, knowledge of a fact’s wrongfulness and mistakes of law. Starting from foreseeability as a constitutive element of legality in the ECtHR case-law, the author examines ‘knowability’ of a fact’s wrongfulness as a component of the Continental law Dogmatik category of culpability, the issue of ignorance in common law and the general interaction between the principles of legality and culpability. With regard to the International Criminal Court, there is a problematic need to establish a personal mental link between an individual’s actions and the system criminalising such action. In this context, the issue of foreseeability as applied to modes of liability has proven to be problematic. The upshot is this paper’s appeal for a truly international criminal Dogmatik.

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The Principle of Legality at the Crossroads of Human Rights and International Criminal Law

10.1093/oso/9780190272654.003.0012 ◽

2018 ◽

Author(s):

Shane Darcy

Keyword(s):

Human Rights ◽

Criminal Law ◽

Ad Hoc ◽

International Criminal ◽

International Criminal Law ◽

International Criminal Tribunals ◽

Ex Post ◽

European Court ◽

Ex Post Facto ◽

Principle Of Legality

This chapter explores the treatment of the principle of legality in international criminal law, in particular the rule against ex post facto application of criminal laws, as enshrined in human rights law. It demonstrates that a broadly liberal interpretation of nullum crimen has facilitated judicial creativity and the development of international criminal law by international courts and tribunals. The chapter begins with a general discussion of the principle of legality under international law, before turning to a consideration of the treatment of the principle at Nuremberg and the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The final section of the chapter turns to the European Court of Human Rights and examines how it has addressed the rule of non-retroactivity in the context of national prosecutions of international crimes, in particular in Kononov v. Latvia.

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