basic concepts that's not so basic pt. 2 Flashcards
what is criminal law?
is when there has been a crime done against the society and safety thereof
why do we punish criminal law?
- deter re-offender
- deter third parties
- rehabilitation
What is the relationship between criminal law and politics?
- We bridge law and politics because we apply the codes that come from the parliaments, who come from politics, who we vote for.
- Because even though we like to distance ourselves from politics, people want to be involved in law.
Policy priorities - is it drugs crimes, terrorism, etc. depends on whose elected
- Goes hand in hand with resource allocation.
- Even though politics and laws are completely different fields.
What is the relationship between criminal law and ethics?
1) Morals - criminal law reflects the ethical standards of a society, like LGBTQ+ rights, like the death penalty, torture, etc.
2) Also ethical considerations ensures fairness in criminal law, to have just treatment of individuals, due process, and more
Sources of criminal law
Nullum crimen sine lege, nulla poena sine lege
This means no law, no crime. No crime no penalty
No law no crime
- An act can’t be considered a crime unless defined by such a law
No crime no penalty
- Punishment cannot be imposed unless prescribed by law
Thus, the crime and punishment must be grounded in existing law, which are found in one of the three subcategories:
- monopoly of law/statutes
- there must be a formal law or statute that defines the crime and punishment.
- therefore, customary law or arbitrational rulings cannot create criminal law.
Role of national jurisdictions?
- criminal proceedings respect national jurisdiction, even if the crime was committed abroad.
- ex. TPC Art. 19 - that Turkey will not impose a more significant punishment than the jurisdiction where the crime occurred would. so an example would be 5 yrs in Germany but fled to Turkey? still get 5 years baby. - precision and clarity
when there is ambiguity in the law, then legal interpretation will occur, such as:
a) gramatical interpretation
b) historical interpretation, i.e. Roman Statute → ICC = no intx. drug trafficking
c) systemic interpretation - looks at the scope of the laws this affects.
sometimes, laws should be ambiguous for abstract norms. - Non-retroactivity - is the principle of criminal law
* if there is no law at the time of the crime, there is no crime/punishment
* if criminal law changes, it’s in favor of the applicant
male captus, bene detentus, - wrongly captured, rightfully, detained.
Application of Criminal Law
male captus, bene detentus wronglfully captured, rightfully prosecuted.
Eichman case - Israel imposed on soverginity of Argentina to try him for WWII crimes. but why tf does Israel have the right? it’s not even a state.
- territory application
* strongest application there is
* has to do with soveringity - soverign states impose their criminal law within their state. - personal application
* has to do with the nationality of the person
* if, the person committed a crime, even if not in their own state, their state of origin can try them. - protectivie application
* if there was an act done against the vital interests of a state, that state can try the suspect, even if it never occured in that state - international application
* when the suspect has conducted in an act that has gone the international legal system as a whole.
* only specific crimes for this; genocide, war crime, crimes against humanity, acts of agression.
* the state who tries the suspect doesn’t need to haev a correlation with the incident. ex. ICC
thus, in Eichman, Israel used the protective application and the international application
extradition?
when a state requests a subject to be extradited the requested state has to either prosecute them or extradite them.
a few characteristics to fulfill:
- double criminality
- shall be a crime in both the requesting state and the requested state - Rule of Specialty
- suspect can only be tried for the crime they were extradited for, not more - extraditable offences.
- sometimes it is extradictiable, sometimes it isn’t:
a) if its an international or transnational crime, it is.
b) often military, political, and fiscal crimes are not - this isn’t absolute.
non-refoulement - if a suspect has
1. well founded fear
2. evidence of prosecution
then they don’t necessarily should get extradictied, as the refugee/asylum seeker has the right to protection under the UNHCR, and if the state sends them back, then the sending state becomes liable.
So, is extradition to execution legal.
Soering v. UK
ECHR Art. 2 says yep! but when UK asked, ECtHR said, yeah I mean it is, but, the waiting upon is not legal, it’s torture. so then US promised to not execute and UK gave Soerings up and they lived happily ever after
What are international HRs?
set of obligations which prescribes governments on how to act, or which acts to refrain from to promote and protect fundamental freedoms and HRs of indiviudals and groups
Also have zero-tolerance policies, in which international crimes have no leniency
The ECHR key principles
- admissibility → cases shall fulfill the admissibility requirements before they are considered
- Last resort mechanism → cases brought to the ECHR shall exhaust all domestic legal remedies before.
- Right to fair trial Art 6 → right to lawyer, right to understand trial in language, right to understand charges, right to access court documents, right to fair trial, with due process.
- Dynamic HRs → ECHR adapts the HRs to the evolving societal norms. Looks at the norms of European states to determine them. ex. LGBTQ+ right.
- Limitations → All freedoms have limitations to them to balance the societal and individual interests. ex. freedom of speech isn’t absolute, but there’s more freedom when talking about politicians. ex. Art. 9 → Freedom of conscious, thought, and religion, well not absolute either, because look at France.
ECHR Restriction and Freedoms in Rights
- Limitations
because there has to be a balance between societial interests and individual interests. thus, no freedom is absolute.
Example → Art. 9 freedom of thought, conscious, and religion. but this is restricted through lacitie - France. - Conditions for Restrictions:
a) Prescribed by law
* there must be a legal basis
* with legal certainty, and quality of law
ex → threatening someone/ a group is not allowed!
b) Legitimate aim:
* a true purpose for the restriction
* usually for the national security or societal safety
ex → your freedom of movement is restricted under awful arrest
c) Necessary for a Democratic state
* contributes to the needs for a state with proportionality
ex → hate speech may incite civil unrest
i) Proportionality → gotta balance the needs of the society and the indidivual
ii) Margin of Appreciation → states do not have a lot of discretion to interpret and enforce restrictions to freedoms.
ex → UK banned pornographic magazines, and ECHR said no babe x it’s freedom of expression innit.
HRs Case law
Opuz v Turkey
women went ot turkish court to get a divorce because of abuse, but Turkish court ruled it as a family matter. the women plus her mother died due to the abuse.
ECHR ruled: Turkey to be guilty because of judicial passivety - failing to take action on serious matters and neglecting HRs, violating Art. 14 ECHR → prohibitation of discrimination
Ruling: Turkey was fined with the intention of legal reform.
Hirsi Jamaa and others v Italy
Italy intercepted a boat carrying Somali and Eritrean migrants and sent them to Libya. This goes against allowing migrants to become asylum seekers.
violated Art. 3 - prohibition of torture and inhuman or degrading treatment.
ECHR found Italy guilty, going against Article 1, exposing them to potential danger in Libya.
What is International Public Law?
Manages relations between members of the international community - actors being states and IOs
Problem: there is no international enforcement due to soverign equality if the states, thus enforcement is only done by cooperation.
Sources of International Law
Article 38(1) of the Statute of the ICJ:
- International conventions
Treaties, conventions, pacts
Bilateral/multilateral
universal/regional - International customs
Two elements:
a)** State Practice** - consistent and general practices by states
Ex. freedom of navigation in high seas
b) **Opinion Juris **- beileif that such practices are legally required
Prohibition of the use of torture
Ex. ICJ ruling that Serbia in former Yugoslavia indeed was responsible for not preventing genocide. - The general principles of law recognized by civilized nations → ex. Pacta Sunt Servanda
Judicial decisions/teachings of the most highly qualified publicists of law. - Scholarly findings cannot really be used, but it is useful!
UN Charter Articles
Article 2(4) → prohibits the use of force
Art. 39 → determines if theres been a breach of Article 2(4)
Art. 40 → may call upon state to adhere to intx laws
Art. 41 → may impose non-military actions like sanctions
Art. 42 → if that fails, may impose military action
Art. 51 → right to self defense
Just war theory
Jus ad bellum - the right to war
1. proportionality and necessity
2. Anticipatory self-defense - with proof
3. pre-emptive self defense - ify, Bush doctrine because of WMD
a) permissible: credible evidence
b) non-permissible: no credible evidence
