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The Evolving Landscape of
Criminal Law: From National to
International Jurisdiction
Principles of Criminal Law
The Concept of Criminal Law
There is no single, unified international law system. However, there are supranational criminal law courts, such as the European Court of Human Rights, that can influence national criminal law systems. Criminal law is defined as "offenses against the duties owed to society and that the society has the right and must prosecute and punish." The essence of criminal law is punishment, which is characterized by the infliction of physical pain. Criminal law is distinct from civil law in that it involves a vertical relationship between the state and the individual, rather than a horizontal relationship between the culprit and the victim. Crimes can be classified as "mala in se" (moral wrongs) or "mala quia prohibita" (regulatory offenses). The former are considered inherently wrong, while the latter are defined as criminal by law. Criminal law has existed in all organized societies throughout history, as it is essential for maintaining the social contract and defining what is considered right or wrong.
The Evolution of Criminal Law
The Enlightenment period (17th-18th centuries) brought about three main reforms to criminal law: Secularization: Separating criminal law from religion, morals, and ethics. Humanization: Shifting away from the use of torture and capital punishment as sanctions. Rationalization: Requiring justification for the use of punishment as a strong state instrument. The Enlightenment also led to a focus on the criminal act rather than the perpetrator, which is a fundamental principle of criminal law. However, this principle has been challenged in certain contexts, such as the prosecution of ideologies or "enemies of the state." In the last three centuries, two dominant tendencies in theories of punishment have emerged: Retributive justice: Punishment as a means of inflicting deserved suffering on the offender. Utilitarian approaches: Punishment as a means of deterring future crime, incapacitating offenders, or rehabilitating them.
The Changing Role of Criminal Law in Society
The relationship between individuals and the state has evolved, with the individual becoming more isolated from traditional social structures like the family, church, and political parties. In this more individualistic society, there is a growing social demand for criminal law as a means of protection and symbolic recognition of victimhood. The expansion of criminal law and the creation of new crimes can be seen as a response to this societal change, as individuals seek greater state intervention and protection. However, this trend has also been criticized, as it can lead to the use of criminal law for purposes of social control and education, rather than solely for the punishment of wrongdoing.
Retributivism
Deontological and Desert-Based Theory
Retributivism is a deontological, or desert-based, moral, backward-looking theory. It is based on the idea of "punitur quia peccatum est" - we punish because a crime has been committed. This theory looks to the past, as the punishment is justified by the fact that the perpetrator has committed a crime and therefore deserves to be punished.
Key Principles
Retributivism is committed to the following three principles:
Those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment. It is intrinsically morally good, good without reference to any other goods that might arise, if some legitimate punisher gives them the punishment they deserve (it is goods per se). It is intrinsically morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers.
Aspects of Retributivism
Retributivism has aspects that are in favor of the perpetrator, as well as an absolute perspective that admits no derogation. It is the most common line of thought, where the idea is to be punished for what one has done.
Hegel's Perspective
According to Hegel's thought, structured upon thesis/antithesis/synthesis, the thesis is the norm that is violated, the antithesis is the crime that has breached the norm, and the synthesis will be the punishment that restores the legal order after the violation of the crime.
Cesare Beccaria
Cesare Beccaria is considered the founding father of the utilitarian approach to criminal justice. He was an Italian criminologist, jurist, philosopher, and politician, and one of the greatest thinkers of the Age of Enlightenment.
Beccaria's Principles
According to Beccaria, punishment should be public, speedy, necessary, the minimum possible in the given circumstances, proportionate to the crime, and determined by the law. The metric of just punishments and just laws is the greater good of the individuals, as justice is what is socially useful.
Social Contract Theory
Beccaria's theory is based on the idea of the social contract, where individuals relinquish a measure of their freedom in exchange for a degree of security provided by the state. The political sovereign is vested with the legitimate right to provide security and to embody the public well-being, but the social contract itself places limits on the sovereign's right to punish.
Proportionality and Deterrence
Beccaria emphasizes the importance of proportionality between the severity of the crime and the severity of the punishment, as this reflects the level of civilization and humanity of a country. Punishment should aim to create a lasting association in the human mind between the ideas of crime and punishment, serving as a deterrent for future crimes.
Capital Punishment
Beccaria argued that capital punishment is neither necessary nor useful, as long-drawn-out punishments, such as penal servitude or slavery for life, are more effective and fear-inducing than the fleeting shock of death. He also believed that capital punishment has a brutalizing effect on society.
Modern Economic Model of Crime
Beccaria's ideas heavily influenced the theoretical framework of the modern economic approach to crime and punishment, pioneered by scholars such as Gary Becker and Richard Posner. This model is premised on the idea that individuals are rational beings who pursue self-interest by trying to avoid pain and seek pleasure.
Utilitarianism in Criminal Law
Utilitarianism views criminal law as a social control technique, with punishment as a means to reach social and political goals. The focus is on the perpetrator, aiming to prevent them from committing crimes again, rather than on the criminal act itself.
Justifications and Limits of Criminal Law
Theories Justifying the Use of Criminal Law
In continental law, the legal good/interest principle (Rechtsaut) states that criminal law can only be used to punish acts capable of endangering socially relevant interests necessary for the coexistence and well-being of society, such as life, property, etc. The legislator is not free to use criminal law arbitrarily, but must do so to protect essential interests for the community.
In common law, the harm principle doctrine (J.S. Mill's "On Liberty") holds that an individual's autonomy can only be limited to prevent harm to others.
These two theories, while having similarities, also present differences in governing modern criminal law systems. The main concern of criminal law scholarship is to limit the use of criminal law and protect individuals from state intervention.
Criminal law aims to protect the perpetrator from the arbitrary use of the state's criminal power. Potentially, anyone could be on the side of the perpetrator. Criminal law is the "Magna Carta of the perpetrator," requiring that the perpetrator be convicted while respecting principles of fair trial, human rights, etc. The protection of individuals from criminal law is fundamental, as it is better for a rule of law state to have three guilty men on the streets than one innocent person in prison.
Sources of Domestic Criminal Law
Criminal law can be found in: - Criminal codes - Special legislation - Constitutions - National case law (with differences between common and civil law systems) - Supranational and international legislation - Supranational and international case law
General Principles of Criminal Law
Principle of Individual Criminal Responsibility : The basic idea is that no one shall be held accountable for an act they did not perform or participate in.
Implications:
Responsibility is based on the materiality of the act, not the perpetrator's ideology (with some exceptions like terrorism). Responsibility is limited to individuals, but this is not entirely true today. There is a growing debate on extending criminal responsibility to corporations for certain crimes. No responsibility for acts committed by others, with some exceptions (e.g., surveillance or protection obligations).
The Distinction between Substantive and Procedural
Criminal Law
The text discusses the distinction between substantive criminal law, which deals with criminal responsibility and the non-retroactivity principle, and procedural law, which deals with the execution of punishment or the trial, subject to the tempus regis actus principle (the applicable law is that of the time of application).
The issue of statutory limitation (prescriptio) is debated as to whether it is a matter of substantive or procedural criminal law. Some scholars, especially in Italy, argue that it is a matter of substantive criminal law because it is related to the right of the accused to know before the facts that the crime is punished with specific sanctions and for how long it can be prosecuted. In other countries, it is considered a merely procedural law and can be applied retroactively.
Statutory Criminal Law: Riserva di Legge
The text discusses the concept of statutory criminal law, known as the "riserva di legge" in civil law systems. In civil law, only positive law, adopted by the legislator through a specific process, has the power to determine what is punishable and what is not. The judge's role is to apply the law found in positive sources, as the parliament represents the collective and is the only one endowed to limit the freedom of citizens with punishments.
In common law systems, the judge has a more creative power, as they find the law that somehow lives in the social dimension. The judge establishes whether the conduct is criminal or not. However, the text notes that in modern times, the vast majority of criminal law in common law countries is based on statutory law, and the problem is mainly related to the "mala in se" crimes, where the criminal responsibility is based on precedent.
Criminal Law as Extrema Ratio
Criminalization and the Use of Criminal Law
The use of criminal law is justified only when the act attacks interests that are perceived as essential to a community. However, even if the use of criminal law is justified in theory, the judge has the discretion to use alternative, less invasive instruments to solve the problem. Criminal law should be the last resort, not only because it is the most invasive instrument, but also because it is costly. The legislator should first explore other social solutions. Criminalization should only occur when strictly necessary, considering the seriousness of the conduct and the importance of the interest at stake. Criminal law should only be used when all other means (civil or administrative) are insufficient.
The use of criminal law has a strong impact on individual autonomy, personal liberty, and has a stigmatizing effect.
Principle of Proportionality
The principle of proportionality has been widely used in the context of the European Court of Human Rights. Proportionality operates at two levels: Criminalization: The conduct should deserve criminalization, as it should attack particular interests. If the offense is minimal, it should not be considered a crime (e.g., stealing an apple from a shop). Punishment: The punishment should fit the crime, with the aim of causing the minimum harm. These principles are related to the trial but affect the basic rights of the individual, such as: Presumption of innocence: A person is presumed innocent until proven guilty. Right against self-incrimination: Nobody is compelled to testify against themselves or confess guilt. Standard of proof: Guilt must be proven beyond a reasonable doubt (favor rei). Ne bis in idem (double jeopardy): Prohibition of trying someone twice for the same act.
The General Part of Criminal Law
The general part of criminal law applies to all kinds of crimes and includes the theory of crime.
A crime has three components that must be proven:
Actus reus : The concrete criminal conduct.
The criminal conduct must be a voluntary act, with the element of control and volition. Crimes can be committed through both active conduct and omissions, particularly when there is a legal duty to act or protect. Under special circumstances, the act of another person can be attributed to the subject.
Some crimes require a specific result caused by the act, while others only require the intent.
Mens rea : The mental element.
The mental element of the perpetrator must correspond to the mental element provided by the norms. There are different degrees of mens rea, such as intention, recklessness, and negligence.
Strict liability is an exception, where the mental element is not required.
Transitional Justice : Addresses the legacy of large-scale human rights abuses. European Criminal Law : Influenced by the European Union and the European Court of Human Rights.
Transnational Criminal Law
Suppression of Criminal Activities with Transboundary
Effects
Transnational criminal law refers to the suppression of criminal activities that have actual or potential transboundary effects or transboundary moral impact. This involves:
Horizontal international obligations between states to criminalize and cooperate. Vertical application of criminal law and procedures by states to individuals to meet these international obligations.
The first transnational crime was piracy, as countries realized that this problem could not be resolved by a single state, leading to international cooperation.
Examples of transnational crimes include human trafficking, which affects more than one country, requiring cooperation among the involved countries for suppression.
The source of criminality and prosecution takes place at the national level, based on criteria such as the citizenship of the perpetrator, territoriality, passive citizenship, or the principle of universal jurisdiction for serious crimes.
These crimes represent the first instances of the internationalization of criminal law, involving different levels of cooperation, both at the procedural and enforcement levels, such as cooperation among police forces.
European Criminal Law
European criminal law is a multi-level field of law within Europe, involving two main systems:
The Council of Europe and the European Court of Human
Rights
The European Court of Human Rights can have an indirect impact on criminal law, depending on whether the final decision concerns the status of the victim or the accused. The decisions of the court have to be implemented at the national level.
The European Union
Initially, the EU was not meant to have a supranational criminal system, but rather an economic community. The idea was that uniting the EU from an economic perspective would also lead to political union.
Before the Lisbon Treaty, the EU did not directly deal with criminal law, and the impact of EU norms on national criminal law was indirect. If there was a conflict between national law and European law, European law had primacy, and the judge had the duty to disapply the national provision.
After 2009, the EU gained the power to issue directives that can have a direct effect on national criminal law. Additionally, the European Public Prosecutor's Office was established in 2021, with limited competencies in financial crimes, and the jurisdiction still lies before national tribunals.
These developments demonstrate that criminal law is not just a national dimension, and there can be an internationalization of criminal law.
The Internationalization of Criminal Law
The internationalization of criminal law has led to a paradigm shift in the understanding of the system of sources of law, from a pyramid to a net or labyrinth.
From a Pyramid to a Net
The pyramidal model, where the sources of law derive legitimacy from the top (e.g., constitutional law), is no longer accurate. Instead, the current system can be better described as a net or labyrinth, where the judge has to consider different sources and how they interact with each other.
From Monism to Pluralism
The monistic system envisaged by Kelsen, where there is a single source of law, no longer exists. Instead, we are moving towards a pluralistic system, where different sources of law are interplaying.
Statutory and Judicial Interactions
The internationalization of criminal law is characterized by statutory and judicial interactions:
Statutory Interactions
Legal provisions can refer to other legal provisions, either at the national level (e.g., national provisions referring to international definitions of crimes) or at the EU level (e.g., EU framework referring to the ICC Statute).
Involved the relationship between the principle of legality and the statute of limitations Dialogue between the Court of Justice of the EU and the Italian Constitutional Court Mr. Taricco was accused of not paying taxes, which is relevant because taxes are how member states finance the EU The Italian system had a very short period regarding the statute of limitations for tax evasion The EU claimed that this short time limit did not guarantee the money to be paid to the EU, and the Italian government later changed the law However, the new longer statute of limitations was created during the trial, after the facts had already occurred In Italy, the jurisprudence considers the statute of limitations to be a substantive rule subject to the principle of legality and non-retroactivity The principle of non-retroactivity implies that if one of these three aspects (the crime, the punishment, or the statute of limitations) changes, it cannot be applied retroactively This way of reasoning is not so simple, as we do not live in a purely national dimension
The Taricco II Judgment
The Court of Justice of the EU issued a preliminary ruling on the applicability of national limitation periods in criminal proceedings concerning serious fraud in relation to VAT In the Taricco judgment (Case C-105/14), the Court held that Member States should disapply national criminal law provisions which have an adverse impact on the fight against fraud, provided that such disapplication is compatible with defence rights In "Taricco II", the Italian Constitutional Court made a preliminary reference to the Court, expressing concern that such disapplication would violate the constitutionally enshrined principle of legality The Court noted that it is primarily for the national legislature to lay down rules on limitation that enable Member States to comply with their obligations under Article 325 TFEU The Court stressed the importance of the principle that offences and penalties must be defined by law, and the tenets of foreseeability, precision and non-retroactivity of criminal law The Court stated that the national court is not obliged to disapply the national limitation periods if doing so would breach the principle of legality
Globalization/Europeanization and Criminal
System
The Taricco Case
The Taricco case is instrumental in explaining the complicated interactions between constitutional and supranational laws. In this case, the judge is put
in the middle of these judicial tensions, with the role of finding the correct source of law to be applied.
The key points from the Taricco case are:
Tribunal of Cuneo (2014) (preliminary ruling)
The judge of the first instance knew that he could not apply the statute of limitation retroactively, but was considering whether this law was in contrast with European law. The national constitutional statute of limitations was believed to be in contrast with the EU treaty provision which says that the state has to secure a financial guarantee from the EU. The national judge should resort to the ECJ, which is the only body to provide an official interpretation of EU law.
Court of Justice of the EU, Taricco I (2015)
The court said that the national law should not be applied because it would be in contrast with EU law, as the national principle was in contrast with the principle of the protection of financial interests of the EU. The national judge should apply the EU provision.
Court of Appeal and the Court of Cassation ask for a preliminary ruling from the Constitutional Court (2015)
The second judge of the court of Appeal said that there was the need to also check the national constitution, so there was a double scrutiny. The main issue was that the supremacy of EU law regards laws, but what happens when the contrast is between EU positive law and the basic principle of the national constitution. The question was if EU law should always prevail, even when it was in contrast with a basic principle of the constitution. The constitutional court acknowledged that the supreme principles of the constitution always prevail, and that the principle of non- retroactivity was a fundamental principle for the Italian judiciary.
CJEU, Taricco II (2017)
A solution in the middle was found, and the ECJ stated that if the EU law is against the basic principles of the constitution, the constitutional principle prevails over the economic interests of the EU.
Constitutional Court (115/118)
The ICC says that there was no longer a constitutional issue, because the 'Taricco Rule' could not be applied, as the principle of non- retroactivity, even regarding the statute of limitations, is a basic principle of the constitution.
Combating Bribery of Foreign Public Officials in International Business Transactions, "This Convention seeks to assure a functional equivalence among the measures taken by the Parties to sanction bribery of foreign public officials, without requiring uniformity or changes in fundamental principles of a Party's legal system." The goal is to achieve a common objective, and it is up to each individual state how this goal will be implemented and achieved. As long as the means used are equivalent and reach the same goal, the specific mechanism employed does not matter.
Complementarity
The International Criminal Court (ICC) represents a new relationship between the international dimension and the national dimension of criminal justice. Unlike previous international tribunals like Nuremberg or Yugoslavia, which had only an international dimension, the ICC establishes a dialogue where in some circumstances the state will have jurisdiction over the case, and in other circumstances the ICC will.
The Rome Statute of the ICC establishes a system of justice that acknowledges that crimes within the jurisdiction of the Court shall, in principle, either be investigated or prosecuted by a domestic jurisdiction or by the Court itself. The ICC enjoys an independent right of assessment (droit de regard) over the situation and the choices of justice adopted in the domestic context.
Complementarity is a key principle that organizes the concurrent jurisdiction between international and domestic jurisdictions. It reaffirms the primary role of States in exercising criminal jurisdiction over international crimes, with the ICC acting as a "Court of last resort." The ICC can only activate and exercise its jurisdiction if national courts have not taken any action, or if they were, or are, "unable" or "unwilling" to properly conduct their investigations and prosecutions.
In other words, the ICC does not hold states responsible for the crimes themselves, but rather for how states deal with the international crimes which have been committed. Complementarity is an instrument to accommodate legitimate differences and to allow for pluralism and diversity, without requiring uniformity or identity between international and domestic justice approaches.
Harmonization
The interdependent relationships between international and domestic justice are defined by the principle of complementarity. Complementarity is an incentive for states to approximate substantive criminal law and criminal law procedure in the area of core crimes, rather than an imperative to model national criminal justice systems after the image of the ICC.
Cooperation among States
Cooperation is another key element of the systemic interaction between international and domestic criminal justice. It is essential at different stages, from investigation to the enforcement of sentences. This involves not only arrest and surrender of defendants but also access to information, 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 is the cornerstone of criminal law cooperation. If someone is convicted in one member state, this conviction has to be recognized in other member states, with some exceptions. These instruments help avoid conflicts and allow dialogue between the different actors involved.
From Traditional Conceptions of Law and
Justice to Pluralism
The shift towards pluralism avoids hegemony and leaves space for decisions by individual states (souveraineté partagée or shared sovereignty). This "ordered pluralism" (Mireille Delmas-Marty) involves techniques that maintain hierarchy and autonomy for states while supporting integration.
Pluralism accepts differences and national discretion, but there is a threshold of compatibility (as a limit, as in the case of the European Court of Human Rights). Pluralism requires a dialogue between legal systems and the use of comparative law as a fundamental tool:
a. Within codification (in international criminal law and European criminal law) b. Within interpretation (e.g., Article 21 of the ICC Statute, which recognizes comparative law as a source)
Comparative law is a key tool for the integration and resistance in the founding of a global human community on diverse yet common values. It promotes the search for harmony through the creation of compatibility that preserves national margins rather than uniformity.
A crucial element is the relationship between human rights and criminal law. Criminal law appears to be both a protection and a threat for fundamental rights and freedoms, serving as both a "shield" and a "sword" function. Human rights play a role in both restricting and expanding criminal law enforcement.
Human rights, traditionally viewed as a defensive weapon for the individual, have gradually become an offensive weapon over the past few decades.
Brief History of International Criminal Law
International criminal law deals with crimes so serious that they are considered an attack on the world community as a whole, regardless of
Military Code (1863), the Hague Conventions (1899 and 1907), and others. These were binding for states but did not involve individual criminal responsibility.
The Aftermath of World War I
After World War I, which was a "total war" due to the use of new weapons, there was an attempt to prosecute the German Emperor, William II, for a "supreme offense against international morality and the sanctity of treaties." The Allied Powers sought to create an international tribunal to try him, but this never materialized, and he was only exiled.
The Nuremberg Trials and the Establishment of
International Criminal Law
The turning point came after World War II, which shocked the world community and led the Allied Powers to establish the International Military Tribunal, known as the Nuremberg Trials. The charter of this tribunal defined three types of crimes:
Crimes against peace (now known as the crime of aggression) War crimes Crimes against humanity
This marked the beginning of the development of international criminal law as we know it today.
Crimes against Humanity
The Nuremberg Trials
The Nuremberg Trials were an international military tribunal established to prosecute the major war criminals of the European Axis powers after World War II. The trials took place between November 20, 1945, and October 1,
- The object of the treaty was limited to conduct conducted within the context of war, so the previous phases of the war were not considered.
The outcomes of the Nuremberg Trials were as follows: - 12 defendants were sentenced to death - 3 defendants were sentenced to life imprisonment
- 4 defendants were sentenced to prison terms of between 10 and 20 years - 3 defendants were acquitted - 3 groups were declared to be criminal organizations
The Nuremberg Trials were an international tribunal, with each of the four allied countries (the United States, the United Kingdom, France, and the Soviet Union) providing one judge and an alternative, as well as a prosecutor.
Achievements of the Nuremberg Trials
The criminalization of the worst violations of human rights became part of the international legal system, marking the birth of international criminal law. The world community established the principle of individual criminal responsibility, regardless of whether the individual was part of the Nazi party. The law applied was based on natural law, the philosophical notion of humanity itself, and the idea that if this limit is crossed, there must be a reaction through law, not revenge. The Nuremberg Trials established limits to the politics and actions of human beings, regardless of the strength of a state.
Problems of the Nuremberg Trials
The principle of non-retroactivity: the crimes and the judges were established after the fact, which is a violation of criminal law principles. The issue of "victor's justice": the tribunal was established by the winning countries, and the accused were the losers. The crimes of the winners, such as the bombing of Hiroshima and punitive carpet bombings, were not considered. The prosecution of Nazi criminals was not limited to the Nuremberg Trials. Other tribunals were established, such as the International Military Tribunal for the Far East (Tokyo Tribunal) and subsequent Nuremberg trials.
Subsequent Nuremberg Trials
After the Nuremberg Trials, Germany was divided into two spheres of influence, and national tribunals were established by the Allies' respective military tribunals. These trials involved people who were not important enough to be included in the international trials.
The Control Council Law No. 10 (CCL No. 10) included an improvement that permanently affected international criminal law: the nexus to war crimes or crimes against peace required by the Nuremberg Charter was eliminated. These trials also involved people with different degrees of responsibility, including corporations and individuals such as doctors and judges.
The Age of Codification
After the Nuremberg Trials, the world was divided into two spheres during the Cold War, and many dictatorships were established in both the East and the West. This made it difficult to exercise international criminal law, as attacking one dictator could trigger another world war.
However, the reaction to World War II led to the codification of international crimes through various international conventions, such as the Geneva Conventions (1949 and 1977), the Convention on the Prevention and Punishment of the Crime of Genocide (1948), and the Convention on the
