91373 - INTERNATIONAL CRIMINAL LAW

Learning outcomes

This course aims to provide students with a general understanding of the international framework, the European criminal law and the complex issues relating to the relationship between criminal law and human rights. The first part of the course will examine the most important provisions of international criminal law. The course will use both the comparative method and the analysis of (national and international) leading cases, in order to show empirical examples of the various issues related to the protection of human rights.

Course contents

Course Content

The objective of the course is to provide students, through a comparative and international perspective, with an understanding of:

• the criminal justice system and its changes introduced through the processes of internationalisation and Europeanisation, at the same time highlighting the importance of the comparative approach
• the constitutional principles in criminal matters and the foundational concepts of criminal law, the structure of its main principles and categories, the punishment and the classification of different penalties
• the European criminal law developments, both regarding the legislation and the case law, as well as its influence on national criminal justice and law systems

  Throughout this course, the theoretical framework will be analyzed in the light of judicial decisions of national Constitutional Courts, the Interamerican Court of Human Rights and, finally, the International Criminal Court.

  Part I:

  Internationalization of Criminal Law

  • The Internationalisation of Criminal Law
    • From the pyramid to the net. Metaphors for the current instability 
    • Harmonization, Hybridisation and cross-fertilization
    • The role of the judges

  • The fundamental principles of criminal law
    • The fundamental principles as a limit of criminal law
    • The principle of legality
    • The principle of culpability
  • Globalization and comparative method
    • The functions of legal comparison
    • Multilingual Treaties and multilingual Courts

  Part II:

  International Criminal Law

• The definition of international crimes
• Mass crimes: the concept
• The prosecution of international crimes between national and international mechanisms
  • From Nuremberg to the International Criminal Court
  • Retributive and restorative justice
  • Duty to prosecute or duty to punish
  • Amnesty and international crimes
• The tension between legality and justice
• Victim’s rights
  • The right to truth 
  • The right to justice
    
• The criminal trial as a space for truth, memory and justice

  Part III

  Leading case law analysis

  • International Criminal Court
  • European Court of Human Rights
  • Interamerican Court of Human Rights
  • National Courts
  • Truth Commissions
  •  

Readings/Bibliography

The compulsory syllabus and the reading list for both attending will be published online on IOL (Insegnamenti On Line- “Courses On Line”).

Materials of the cases discussed during the course will be also uploaded online on IOL (Insegnamenti On Line- “Courses On Line”) website, along with potential additional readings that will be identified during classes.

Each week, students shall prepare for the discussion that will be held in class, reading in advance 1 or 2 short papers, that will be uploaded on IOL (Insegnamenti On Line- “Courses On Line”). The specific lists of readings, distributed according the weekly programs, may be found in the Syllabus (uploaded on IOL (Insegnamenti On Line- “Courses On Line”).

Bibliography

Internationalization of Criminal Law

Mireille Delmas Marty, Comparative Legal Studies and Internationalization of Law, Collège de France, 2003.

Mireille Delmas Marty, La bussola dei possibili, 1088Press, Bologna, 2021 (a cura di Emanuela Fronza e Carlo Sotis).

Mireille Delmas-Marty, Mark Pieth et Ulrich Sieber. Harmonising Criminal Law,UMR de droit comparé de Paris, Volume 15; Paris, Société de législation comparée, 2008, chap. 1.

Globalization and comparative method

Mark D. Dubber, Comparative Criminal Law, in Oxford Handbook of Comparative Law, 2019.

Elisabetta Grande, Comparative Criminal Justice, in The Cambridge Companion to Comparative Law, 2012, 191-209.

Elisabetta Grande, Legal Transplants and the Inoculation Effect. How American Criminal Procedure Has Affected Continental Europe, American Journal of Comparative Law 64 Am. J. Comp. L. 2016 [https://heinonline.org/HOL/Contents?handle=hein.journals/amcomp64&id=1&size=2&index=&collection=journals], 583-618.

George FLETCHER, Parochial versus Universal Criminal Law, Journal of International Criminal Justice, 2005, 20.

International Criminal Law:

International crimes

Mark Drumbl, Toward a Criminology of International Crime, (May 2003). Washington & Lee Public Law Research Paper No. 03-07.

David LUBAN, A Theory of crimes against humanity, Yale Journal of International Law, 2004, 85.

General Principles

Kai AMBOS, Nulla poena sine lege in international criminal law, in HAVEMAN R.- OLAOLUWA O. (cur.), Sentencing and sanctioning in supranational criminal law, 2006, Antwerpen-Oxford, 17.

Kai AMBOS, Remarks on the General Part of International Criminal Law, in Journal of International Criminal Justice, 2006, 667.

Antonio CASSESE, Balancing the Prosecution of Crimes against Humanity and Non- Retroactivity of Criminal Law, in Journal of International Criminal Justice, 2006, 410.

George FLETCHER – J. OHLIN, Reclaiming Fundamental Principles of Criminal Law in the Darfur Case, in Journal International Criminal Justice, 2005, 539.

The prosecution of international crimes between national and international mechanisms

Mireille Delmas Marty, Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC, Journal of International Criminal Justice, Volume 4, Issue 1, March 2006, 2–11.

Mirjan R. Damaška, What is the Point of International Criminal Justice?, Chicago-Kent Law Review, 2008, Volume 83, 329-365.

Máximo Langer, The Rise of Managerial Judging in International Criminal Law, The American Journal of Comparative Law, Vol. 53, No. 4 (Fall, 2005), 835-909.

Retributive and Restorative Justice

Antoine Garapon, Three Challenges for International Criminal Justice, Journal of International Criminal Justice, Volume 2, Issue 3, 1 September 2004, 716-726.

Mark J. Osiel, Why Prosecute? Critics of Punishment for Mass Atrocity, Human Rights Quarterly, Vol. 22, No. 1 (Feb., 2000), 118-147.

International Criminal Tribunals

Michael P. Scharf, The international trial of Slobodan Milošević: real justice or realpolitik?, 8 ILSA Journal of International and Comparative Law, 2002, 389.

Teaching methods

The course will consist of lectures. Additional seminars and activities to further analyse some topics and foster students’ involvement could be organised. Students’ active involvement is encouraged as crucial for learning and will be evaluated in the final assessment of the course.

Students will also have the possibility to give an oral presentation in class on a topic to be agreed with the Professors.

During lectures, the syllabus will be systematically explained, together with the examination of the reading material and the case law relevant to each topic.

The teaching will be carried out using the comparative approach and the analysis of the domestic and international case law in order to provide practical examples of the main issues related to the critical issues on the functioning of criminal proceedings. This methodology allows the students to recognize different judicial model with a critical and systematic perspective, and understand the importance of the legal, historical and political contexts in which they operate.

Professionals and academics with extensive experience in international criminal justice will be invited to teach individual seminars or classes. Documentaries and movies may be employed to illustrate some of the most crucial aspects of the matters treated during the course.

This approach will facilitate the understanding of some peculiarities of the current dimensions of the criminal justice system, marked by multiple interactions and actors at both the national and international levels.

The main purpose of the course is to provide students with suitable tools for the interpretation and application of of the main normative provisions of different models of criminal justice, the ability to conduct effective legal research and to solve cases that involving fundamental issues of international and comparative criminal justice.

Class attendance is mandatory and will be taken at each class.

Assessment methods

Students are required to attend lessons, and to examine and actively discuss the cases that will be submitted by the teacher. Active students’ participation is encouraged and may be taken into account in the final assessment.

FOR LEGS STUDENTS AND ERASMUS STUDENTS WITH 12 CREDITS (enrolled for both the International Criminal Procedure AND the International Criminal Law modules):

THERE IS A SINGLE EXAM FOR THE WHOLE COURSE of “Criminal Justice From A Comparative And International Perspective (I.C)”

The final exam will be held in writing and will consist of 3 questions (maximum 10 points each) on the topics dealt with in the lessons (both on the International Criminal Procedure AND the International Criminal Law modules) and in particular:

• A theoretical question on principles;
• A question on the topics dealt with in the International Criminal Procedure module;
• A question on the topics dealt with in the International Criminal Law module.

For each question there will be a maximum number of lines for the answer (approximately 15-20 lines).

The duration of the written examination will be about 1,5 hours.

The evaluation will be carried out taking into account:

• knowledge of institutional profiles;
• the ability to analyse jurisprudential and doctrinal orientations;
• the ability to make connections between the different parts of the programme;
• the ability to develop, including in writing, critical arguments in summary form;
• the structure of the answers;
• the accuracy of the exposure of the answers.

Students with disabilities or Specific Learning Disorders can ask to the Professors adaptations for their specific needs.

FOR STUDENTS AND ERASMUS STUDENTS WITH 6 CREDITS (only enrolled to the International Criminal Law module):

The final exam will consist of a research paper of at least 4,000 and no more than 6,000 words, to be individually prepared.

Students will be free to propose the topic of the research paper, choosing from a list of topics that is uploaded on Virtuale (further topics can be agreed with the Professors). The paper must indicate a list of all used bibliographic sources. The bibliography on the chosen topic must be exhaustive. Online sources are allowed, as long as they do not include websites such as Wikipedia.

Papers will be e-mailed to the Teaching Tutor or Professors at least 3 weeks before the final examination date, which will be communicated to the students during the course (and published on Almaesami (https://almaesami.unibo.it/almaesami/welcome.htm).

Professors will only reply if the paper does not respect the prescribed parameters and requirements and therefore cannot be accepted (e.g., because it does not meet the minimum length requirement or due to a late submission). In case the paper meets all requirements and therefore it is accepted by the Professors, no e-mail response will be forwarded to the student. The student will come in person to the final examination to know the final evaluation outcome and decide whether to accept or refuse the final grade.

Active students’ participation is encouraged and will also be taken into account in the final evaluation: to be positively assessed students are required to read the compulsory readings indicated in the Syllabus and strongly encouraged to actively participate to the discussion at class. The final assessment will be based on an overall evaluation, which will take into consideration both the paper and active interventions of the students during the course, in the terms previously expressed.

Students with disabilities or Specific Learning Disorders can ask to the Professors adaptations for their specific needs.

Enrolment in the final exam shall be done through the online system ‘Almaesami’ on https://almaesami.unibo.it/almaesami/welcome.htm

Teaching tools

To facilitate the comprehension and learning of the syllabus, the course will be presented with the support of PowerPoint slides.

Students with disabilities or learning disabilities (DSA) who need additional support will be able to refer to the professor to discuss their needs and be directed to the relevant personnel and agree on specific assistance.

Office hours

See the website of Emanuela Fronza

 

Office hours

See the website of Emanuela Fronza