






























Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community for help and clear up your study doubts
Discover the best universities in your country according to Docsity users
Free resources
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
The application of international law to individuals, focusing on the principles of individual responsibility for international crimes and the right to a fair trial. It also explores the relationship between international and domestic law, using the Nuremberg Principles and the European Convention on Human Rights as examples. The document also touches upon the role of customary international law in domestic legal systems, specifically in Scotland.
Typology: Study notes
1 / 38
This page cannot be seen from the preview
Don't miss anything!
2
(^1) See, for example the Zyklon B Case (Reports of Trials of War Criminals, The United Nations War
Crimes Commission, Volume I, London, HMSO, 1947) in which various civilian officers of the firm of Tesch & Stabenow - an established distributor of certain types of gas and disinfecting equipment - were tried by a British Military Court in Hamburg in March 1946 on a charge of being accessories before the fact of mass murder - in furnishing concentrated prussic acid under the proprietary name Zyklon B to various concentration camps in Eastern Germany and occupied Poland, knowing that it was to be used to kill the inmates. The contemporary case note commentary notes at 1498: “The decision of the Military Court in the present case is a clear example of the application of the rule that the provisions of the laws and customs of war are addressed not only to combatants and to members of state and other public authority, but to anybody who is in a position to assist in their violation The activities with which the accused in the present case were charged were commercial transactions conducted by civilians. The Military Court acted on the principle that any civilian who is an accessory to a violation of the laws and customs of war is himself also liable as a war criminal” See too Willard B. Cowles “Trials of War Criminals (Non-Nuremberg)” (1948) 42 The American Journal of International Law 299 who notes at 310: “Dr. Bruno Tesch, the owner, and his principal executive, one Karl Weinbacher, were sentenced to death by hanging. The sentences were carried into effect. A third accused was acquitted apparently on the ground that he held a subordinate position and that there was reasonable doubt that he knowingly did any act as a principal or accessory”
(^2) See Ingo Müller Hitler’s Justice: the Courts of the Third Reich (I. B. Turis & Co. Ltd.: London,
1991), in particular Chapter 29 at page 274. See, too, Michael Stolleis The Law under the Swastika: Studies on Legal History in Nazi Germany (Chicago: University of Chicago Press, 1998) and Neil Gregor (ed.) Nazism, war and genocide : essays in honour of Jeremy Noakes (Exeter: University of
3
4
Exeter Press, 2005) Chapter 5 Nikolaus Wachsmann “‘Soldiers of the home front’: jurists and legal terror during the Second World War”
(^3) See Case Note in (1951) 64 Harvard Law Review 1005-1007. See, too, the commentary on this and
similar cases in H. O. Pappe “On the validity of Judicial Decisions in the Nazi Era” (1960) 23 Modern Law Review 260-
(^4) For a celebrated discussion of the justification of this case from the standpoint of competing legal
philosophies see HLA Hart: “Positivism and the separation of law and morals” (1958) 71 Harvard Law Review 583-629 and Lon Fuller: “Positivism and the separation of law and morals: a reply to Professor Hart” (1958) 71 Harvard Law Review 630-
11
12
(^10) See, now, Article 5 of the Rome Statute of the International Criminal Court (which entered into force
on 1 July 2002): “ Crimes within the jurisdiction of the Court
(^11) The decision of the Appeals Chamber the International Criminal Tribunal for the former Yugoslavia
(ICTY) in Prosecutor v. Dusko Tadic , decision of 15 July 1999 finding that customary international law does not contain any requirement to the effect that crimes against humanity may not be committed from purely personal motives, such as revenge or personal gain.
(^12) Hansard HL Volume 253, column 831, 2 December 1963
13
14
(^13) See, too, Article 38(1)(c) of the Rome Statute of the International Criminal Court which refer to “the
general principles of law recognised by civilised nations”. The Rome States and the jurisdiction of the IICC has been recognised and given domestic effect to in the United Kingdom by the International Criminal Court Act 2001 and, in Scotland, by the International Criminal Court (Scotland) Act 2001 (asp 13)
(^14) See Francôme v. Mirror Group of Newspapers Ltd. [1984] 1 WLR 892, CA per Sir John Donaldson
MR at 897: “Parliamentary democracy as we know it is based upon the rule of law. That requires all citizens to obey the law, unless and until it can be changed by due process. There are no privileged classes to whom it does not apply. ....
It is sometimes said... that all are free to break the law if they are prepared to pay the penalty. This is pernicious nonsense. The right to disobey the law is not obtainable by the payment of a penalty or licence fee. It is not obtainable at all in a parliamentary democracy, although different considerations arise under a totalitarian regime.
In saying this I nevertheless recognise that, in very rare circumstances a situation can arise in which the citizen is faced with a conflict between what is, in effect, two inconsistent laws. The first law is the law of the land. The second is a moral imperative, usually, but not always, religious in origin. An obvious example is the priest’s obligation of silence in relation to the confessional, but others can be given. In conducting the business of the courts, judges seek to avoid any such conflict, but occasionally it is unavoidable. Yielding to the moral imperative does not excuse a breach of the law of the land, but it is understandable and in some circumstances may even be praiseworthy. However, I cannot over-emphasise the rarity of the moral imperative. Furthermore, it is almost unheard of for compliance with the moral imperative to be in the financial or other best interests of the person concerned. Anyone who conceives himself to be morally obliged to break the law, should also ask himself whether such a course furthers his own interests. If it does, he would be well advised to re-examine his conscience.”
See too Fox LJ at 901
18
(^17) Compare with Helen John v Donnelly , 1999 JC 336 where the appellant, one of a group of protesters,
was charged under Section 52(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 with vandalism for cutting part of the perimeter fence of the Faslane Royal Naval nuclear base. She stated J, stated when cautioned and charged that she had cut the fence in order to protest against ‘the genocidal nature of the illegal Trident weapons programme’. Her defence at trial was that she had a reasonable excuse for her conduct by reason of her sincere belief in the illegality of nuclear weapons and her anxiety at their potentially appalling effects on mankind and the environment. That defence was rejected and on conviction she appealed. It was held on appeal that a person could be said to have a reasonable excuse when he or she had acted in response to some particular and immediate stimulus and that in the present case the appellant had acted deliberately and without any immediate stimulus.
(^18) Compare with the English Court of Appeal decision in R. v. Denis Geoffrey Clarke (1985) 80 Cr. Ap
R. 344 an appeal in relation to a conviction for aiding and abetting a burglary charge in which the defence had been put forward by the accused that he was in fact working as an informer for the police and was passing on information about the other offenders to them. The Court of Appeal held that it would not be right to state “that conduct which is overall calculated and intended not to further but to frustrate the ultimate result of the crime is always immaterial and irrelevant”. Accordingly in “exceptional and rare cases” where it could be said that the acts in question were done n order to allow “the police to make use of information concerning an offence that is already ‘laid on’, a jury might conclude that the defendant had been acting lawfully.
(^19) See the English Court of Appeal decision in R v. Fitzroy Derek Pommel [1995] 2 Cr. App. R. 607
where the defendant’s answer to charges of possessing a prohibited firearm and ammunition without a licence (in fact a loaded sub-machine gun) was that he had taken them from another man who was intending to commit a crime with them and intended to pass them on to his brother for surrender to the police. The Court of Appeal held that if these facts could be established, a defence should be available to the accused, termed by the court “duress of circumstances” and observed “[In] the situation where someone commendably infringes a regulation in order to prevent another person from committing what everyone would accepts as being a greater evil with a gun … it cannot be satisfactory to leave it to the prosecuting authority not to prosecute, or to individual courts to grant an absolute discharge. The authority may, as in the present case, prosecute because it is not satisfied that the defendant is telling the truth and then, even if he is vindicated, he is left with a criminal conviction which, for some purposes would be recognised as such.”
22
(^20) See Mackintosh v Lord Advocate (1876) 2 App Cas 41, HL(Sc).
(^21) Lord Bingham of Cornhill, evidence to the Parliamentary Joint Committee on Human Rights, 26
March 2001
(^22) See for example Fraser (Nat Gordon) v. HM Advocate [2008] SCCR 407, HCJ per Lord Osborne at
paragraphs 219- 219 ... [T]he relationship between the concepts of a miscarriage of justice, recognised in section 106(3) of the Criminal Procedure (Scotland) Act 1995 and an unfair trial in terms of Article 6(1) of the Convention is not straightforward. Plainly they are not co-extensive. An unfair trial may not result in a miscarriage of justice. That would be so where, for example, that trial concluded with an acquittal, since the concept of miscarriage of justice comes into play only following a conviction on indictment, as provided in section 106(1) of the 1995 Act. Furthermore, a trial may be completely fair yet result in a conviction which must be regarded as a miscarriage of justice, as for example where the provisions of section 106(3)(a) operate.
220 What importance, if any, it may be asked, attaches to these considerations in the present context. The answer, in my view, is that it is potentially confusing and therefore unhelpful, in criminal appeals under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 to seek to rely on dicta pronounced in appeals under paragraph 13 of Schedule 6 to the Scotland Act 1998, since the issues which this court must determine in the former type of
25
26
(^25) In Korbely v. Hungary , ECtHR, 19 September (2008) 25 BHRC 382 the Grand Chamber of the
Strasbourg Court noted as follows at paragraph 70: “70.... Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts' interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable. The Court has thus indicated that when speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability.”
(^26) See Coëme and others v. Belgium , ECtHR, 22 June 2000 at paragraph 45:
“45. Since the term “penalty” is autonomous in scope, to render the protection afforded by Article 7 effective the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a ‘penalty’ within the meaning of this provision (see the Welch v. the United Kingdom judgment of 9 February 1995, Series A no. 307-A, p. 13, § 27). While the text of the Convention is the starting-point for such an assessment, the Court may have cause to base its findings on other sources, such as the travaux préparatoires. Having regard to the aim of the Convention, which is to protect rights that are practical and effective, it may also take into consideration the need to preserve a balance between the general interest and the fundamental rights of individuals and the notions currently prevailing in democratic States (see, among other authorities, the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, pp. 14-15, § 26, and the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, pp. 34-35, § 95).”
(^27) In Kononov v. Latvia , ECtHR 24 July (2008) 25 BHRC 317, the Strasbourg Court observed (at para
115): “115. With regard to Article 7 § 2, the Convention institutions have commented as follows: (a) The second paragraph of Article 7 of the Convention relating to “the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations” constitutes an exceptional derogation from the general principle laid down in the first. The two paragraphs are thus interlinked and must be interpreted in a concordant manner ( Tess v. Latvia (dec.), no. 34854/02, 12 December 2002).
to specify that Article 7 does not affect laws which, in the wholly exceptional circumstances at the end of the Second World War, were passed in order to punish war crimes, treason and
collaboration with the enemy; accordingly, it does not in any way aim to pass legal or moral judgment on those laws ( X. v. Belgium , no 268/57, Commission decision of 20 July 1957, Yearbook 1, p. 241). This reasoning also applies to crimes against humanity committed during this period ( Touvier v. France , no. 29420/95, Commission decision of 13 January 1997, Decisions and Reports (DR) 88, p. 148; and Papon v. France (no. 2) (dec.), no. 54210/00, ECHR 2001-XII (extracts)).”
(^28) See, more recently, Paterson v. HM Advocate , 2008 SLT 465, HCJ at paragraphs 22-23 considering
the potential use of a charge of breach of the peace to convict an individual accused of lewd, indecent and libidinous behaviour toward a seventeen year old: “In Smith v Donnelly , 2002 JC 65 this court examined the existing authorities on breach of the peace with a view to determining whether bringing proceedings on such a charge, as developed, violated the requirements of art 7 of the Convention (no punishment without law). The court held that, on a sound interpretation of these authorities, the definition of the crime was such as to meet the requirements of the Convention. ... In the context of behaviour towards a 17 year old girl by a man 20 years her senior the conduct was, in our view, severe enough to cause alarm to ordinary people. ... The conduct does not require to cause serious disturbance to the community. It is sufficient that it threatens such disturbance. Such conduct by a mature man towards an adolescent girl was such that, if discovered, was likely to cause a serious reaction among other adults. In these circumstances the nature of the conduct was such that, if proved, it constituted on each occasion breach of the peace. [...] Although the two elements in the conjunctive expression [conduct severe enough to cause alarm to an ordinary person and to threaten serious disturbance to the community] may include common elements and the same evidence in particular circumstances may cover both, they focus on different things. In particular, the former element highlights the objective
37
(^34) It is an aggravated assault where the victim is a police officer: see s.41(1)(a) of the Police (Scotland)
Act 1967
(^35) Note, however, that the Theft Act 1607 makes it an offence to steal bees, and fish from fishponds
(^36) Pamela R. Ferguson “Codifying criminal law: a critique of Scots common law” (2004) Criminal Law
Review 49-59 at 50-
(^37) See Grant v. Allen , 1987 JC 71 per Lord Justice-Clerk Ross:
“[T]his court has an inherent power to punish any act which is obviously of a criminal nature (Hume on Crimes (3rd edn.), i, 12; Macdonald Criminal Law (5th edn.), p. 193; Sugden v. H.M. Advocate 1934 J.C. 103) .... Hume describes the declaratory power of the court as an inherent power to punish every act which is obviously of a criminal nature. Although there are circumstances where it will be appropriate for the court to exercise this power, I am of opinion that great care must be taken in the exercise of this power. Exercising the power may well conflict with the principle nullum crimen sine lege. The declaratory power has been considered in a number of cases over the last fifty years. I do not find it necessary to consider these cases because I am not satisfied that what is libelled in this complaint was so obviously of a criminal nature that it should be treated as a crime under the criminal law. No doubt what the appellant is alleged to have done was reprehensible and immoral, but as was recognised in H.M. Advocate v. Mackenzies , 1913 JC 107,, the fact that conduct is reprehensible or indicates moral delinquency is not sufficient to bring it within the scope of the criminal law. I recognise that there may be reasons for thinking that conduct of this kind ought to be regarded as criminal. However, if that is so, I am of opinion that it is for Parliament and not the courts to create any new crime in that regard.”
(^38) See McLaughlan v Boyd , 1934 JC 19 per Lord Justice-General Clyde at 22-3:
“ It would be a mistake to imagine that the criminal common law of Scotland countenances any precise and exact categorisation of the forms of conduct which amount to crime. It has been pointed out many times in this Court that such is not the nature or quality of the criminal law of Scotland. I need only refer to the well-known passage in the opening of Baron Hume's institutional work (Hume on Crimes (3rd ed.) ch. i), in which the broad definition of a crime - a doleful or wilful offence against society in the matter of ‘violence, dishonesty, falsehood, indecency, irreligion’ is laid down. In my opinion the statement in Macdonald's Criminal Law (4th ed., p. 221) that ‘all shamelessly indecent conduct is criminal,’ is sound and correctly expresses the law of Scotland. No doubt there may be in particular cases circumstances of aggravation, but I am not prepared to rule out of the category of crime any shamelessly indecent conduct, and I am not prepared to infer, from the circumstances that sec 11 of the Act of 1885 affirmed the proposition that shamelessly indecent conduct by one male adult in relation to another was criminal, that such conduct was not, or could not have been, the competent subject of prosecution in Scotland before.”
(^39) In Webster v Dominick , 2005 JC 65 a court of five judges headed by the Lord Justice Clerk (Gill)
(with Lord Marnoch, Lord Macfadyen, Lady Cosgrove, Lord Sutherland, Lord Gill) decided to abolish the previously recognised crime of “shameless indecency” and replace it with a crime of different scope which they termed “public indecency Lord Justice Clerk Gill stating
“[43] ... [T]wo decisions of this court [ McLaughlan v Boyd 1934 JC 19 and Watt v Annan 1978 JC 84] have created a crime that rests on an unsound theory, has an uncertain ambit of liability and lays open to prosecution some forms of private conduct the legality of which should be a question for the legislature ( Paterson v Lees 1999 JC 159 , Lord Justice-General Rodger, p 234D). It is time that this court put the matter right. ... [45] The soundness of the present law on shameless indecency is not a mere academic question. There are important practical considerations. Since shameless indecency is a sexual offence within sch 1 to the Sex Offenders Act 1997 (para 2(1)(a)(vii)), every person convicted of it becomes a sex offender and is subject to the notification requirements of secs 1 and 2 of that Act. ... [51] In my opinion, this crime, clearly established in Scots law before McLaughlan v Boyd , 1934 JC 19, should in modern practice be described as ‘public indecency’. It has a similar place in the law of Scotland to that of the common law offence of public indecency in the law of South Africa. Public indecency was declared to be a crime by the Supreme Court of the Cape Colony in R v Marais (1887) 6 SC 367 on the analogy of the crimina extraordinaria described by Voet ( Commentarius ad Pandectus (1704, A de Hondt, Hagae at 47.11.1ff.; cf D. 47.11; Mars, WH, ‘ Crimina Extraordinaria ’ (1911) 8 SALJ 490; Snyman, CR, Strafreg (4th ed, Butterworths, Durban, South Africa, 2003), pp 365, 366) and by reference to the English common law on the subject ( R v Marais , (1887) 6 SC 367 per De Villiers CJ at 370). In its original conception, the South African crime of public indecency was considered to be criminal by reason of the tendency of the conduct to deprave the morals of others ( R v Marais ), but it has been recognised in the modern case law that it is sufficient for liability if the conduct outrages the public’s sense of decency ( R v B and C (1949) (2) SA 582 (T); Milton, vol 2, pp 271, 272, 276-278). In S v F (1977) (2) SA 1(T), for example, an indecent action committed by a performer in a cabaret was found by the magistrate to have been designed to incite lascivious thoughts and arouse sexual desires, but the decision of the appellate court was concerned almost entirely with the question whether the audience were shocked.
[52] In my view, if such conduct is seen as a public order offence, questions about the depraving or corrupting effects of the conduct complained of are at most of indirect relevance. As in the English offence of outraging public decency ( Knuller (Publishing Printing and Promotions) Ltd v DPP [1973] AC 435, Lord Simon of Glaisdale, p 493), it is sufficient for liability that, on an objective assessment, the conduct complained of should cause public offence.
[53] In the law of Scotland, in my opinion, the actus reus of the crime has two elements, namely the act itself and the effect of it on the minds of the public. As to the indecent act, the paradigm case is that of indecent exposure (1995 Act, sch 5; Lord Advocate, Petr , 1998 JC 209 Lord Justice-General Rodger, p 405A-C; Usai v Russell , 2000 JC 144, Lord McCluskey, p 62B-C); but the crime may extend to any other form of indecency, for example sexual intercourse in public view ( Paterson v Lees 1999 JC 159 Lord Sutherland, p 235F-G; R v B and C (1949) (2) SA 582 (T)), or the making of indecent actions or gestures in a stage show (eg S v F (1977) (2) SA 1(T) ). Whether or not such indecency is committed for sexual gratification is, in my view, irrelevant to liability, being a matter of motive, but may, on conviction, be a relevant factor in the court's disposal.
(^42) SW v UK (1995) 21 E.H.R.R. 363 at 399
(^43) Pamela R. Ferguson “Codifying criminal law: a critique of Scots common law” (2004) Criminal Law
Review 49-59 at 58. This approach has recently been confirmed in the Strasbourg decision Korbely v. Hungary , 19 September 2008 where the Grand Chamber of the ECtHR noted as follows (at paragraph 71): “71. However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see Jorgic v. Germany , no. 74613/01, §§ 100-101, 12 July 2007; Streletz, Kessler and Krenz , cited above, § 50; and S.W. v. the United Kingdom and C.R. v. the United Kingdom , judgments of 22 November 1995, Series A no. 335-B, pp. 41-42, §§ 34-36, and Series A no. 335-C, pp. 68-69, §§ 32-34, respectively).