86446 - International and European Criminal Law (Italian - Spanish Law Individual Study Plan)

Course Unit Page

SDGs

This teaching activity contributes to the achievement of the Sustainable Development Goals of the UN 2030 Agenda.

Good health and well-being Affordable and clean energy Reduced inequalities Peace, justice and strong institutions

Academic Year 2021/2022

Course contents

Course contents

The course explores the complex process of internationalisation and Europeanisation that marks today’s criminal law and justice. It dissects the central role (and related power) of judges in identifying the applicable law, taking into account both the supranational push towards an increased harmonization of the law and the risk posed to the right of defence, in a global context dominated by a strong emphasis on retribution and security.

The first part of the course centres on the constituent pillars of the criminal law system. Following an analysis of the sources of international and European criminal law and their effect on municipal law, this part intends to expose the students to a critical aspect, which will inform the whole course, that is the multifaceted relationship among the various normative levels in question (international, European, national). The attention is drawn, notably, on the inherent tension between various internationally derived duties to punish and the fundamental guarantees enshrined in the Constitution.

The course then moves on to international criminal law, with special regard to the Rome Statute of the permanent International Criminal Court. This institution represents a significant case study both from the perspective of criminal policy and that of theoretical conceptualisation (Dogmatik). It offers a convenient vantage point to discern the characteristic traits of international crimes (large-scale violence accompanied by the requisite of “gravity”) along with the related obstacles to effective prosecution. After an overview on the trigger mechanisms, our classes examine some of the most controversial judicial decisions, which sparked a debate about the challenges of a potentially universal jurisdiction. These decisions include, for example, those in the situations of Libya, Burundi, Comoros Islands (incident of “Freedom Flotilla for Gaza”), Myanmar, Sudan and Afghanistan.

Particular emphasis is placed on other mechanisms established to prosecute crimes under international law, including the ad hocTribunals for the former Yugoslavia and Rwanda, but above all the mixed (or hybrid) tribunals, which emerged as a manifestation of an alternative paradigm of international justice, in which, in various forms, national players are also involved in the efforts to deliver justice (e.g., judges, lawyers, victims, activists). Of note are, for example, the Extraordinary Chambers in the Courts of Cambodia (set up to bring to trial the former leaders of the Khmer Rouge), the Kosovo Specialist Chambers and Prosecutor’s Office, and the Extraordinary African Chambers in Senegal to try former Chad ruler Hissene Habré. Once this overview on the history and mechanisms of international criminal justice is concluded, this module addresses selected issues of substantive criminal law (e.g., principle of legality, modes of liability, definition of crimes, penalties). In addition to these responses based on the punitive paradigm, a specific thematic session is devoted to some interesting and innovative experiments grounded in the model of restorative justice. The Truth and Reconciliation Commissions and other alternative mechanisms of transitional justice, especially those developed in Latin America (e.g. in Colombia, Argentina, Peru), will be recalled. A few classes also examine the most significant landmark decisions of regional human rights (notably, the European and Inter-American) and national courts (Latin America, Spain, Germany, Italy and France) regarding international crimes.

The final part of the course deals with European criminal law. After an introduction on the Europeanisation of the criminal law system, this thematic session proceeds to examine some general principles of criminal law in light of the European context, including nullum crimen sine lege, culpability, statute of limitation and ne bis in idem. During this part of the course, some judgments of the Court of Justice of the European Union and of the European Court of Human Rights will be analysed, together with their impact on domestic law.

Special attention will be paid to the analysis of the domestic and international case law through a constant involvement of the students, the contribution of practitioners and assignments to guide students in the understanding of practical cases.

  • Part I – Internationalisation of the Criminal Law System
    • Internationalisation and criminal law
    • Human rights as a main factor of the internationalisation of criminal law
    • Multi-level protection and players of criminal law system
    • Supranational sources of criminal law: (i) European Union’s competence in criminal law matters; (ii) European Convention on Human Rights and case law of the European Court of Human Rights; and (iii) impact of European law upon the domestic system
    • Harmonisation, Complementarity, Margin of Appreciation
  • Part II – International Criminal Law and Justice
    • History and development of international criminal justice from Nuremberg to the ad hoctribunals and the International Criminal Court
    • The Rome Statute of the International Criminal Court. Basic features of the system (jurisdiction, complementarity, admissibility, procedure, general principles)
    • The proliferation of international criminal jurisdictions. Evolution and future perspectives of hybrid models (Cambodia, Senegal, Kosovo, Sierra Leone, etc.)
    • The crisis of the International Criminal Court? An overview of the recent most controversial cases (Bemba, Gbagbo, Afghanistan, Head of State immunity)
    • A sui generissystem: between prevention and repression of international crimes
    • Analysis of international and domestic case law on selected issues of substantive criminal law (definition of crimes, nullum crimen, modes of liability, culpability, penalties)
    • Transitional justice
    • Truth commissions: a comparative analysis
    • Latin America: a laboratory for international criminal law; analysis of decisions of supreme courts and other domestic courts
    • The crucial role of regional courts: examination of some cases of the European Court of Human Rights and comparative analysis with judgments of the Inter-American Court of Human Rights on criminal law matters (international crimes, victims’ rights, right to truth, right to justice)
  • Part III – European Criminal Law
    • Europeanisation and criminal law
    • Dual players: the European Union and the Council of Europe
    • Criminal law and human rights: analysis of some landmark cases of the European Court of Human Rights and the European Union’s Court of Justice

Readings/Bibliography

The compulsory syllabus and the reading list for both attending and non-attending students will be published on the Alma DL website.

Texts and materials of the cases discussed during the course will be also uploaded on the AlmaDL website, along with potential additional readings that will be identified during classes.


Teaching methods

The course will be held in lectures and additional seminars and activities to further analyse some topics and encourage students’ involvement. In the lectures, the syllabus will be systematically explained, together with the examination of the case law relevant to each topic.

Attending students will be encouraged to take part in the discussion and, individually or in small groups, carry on research and present their results during the lecture.

The teaching will be carried on 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 protection afforded by international human rights and humanitarian law. This methodology allows the students to understand the bigger picture, consider the plurality of mechanisms – contentious or not – to redress and the importance of the legal, historical and political contexts.

The course requires students to actively participate in the classes, in order to develop critical thinking skills. Professionals and academics with extensive experience in international and European criminal law will be invited to teach individual seminars or classes. Moreover, documentaries and movies may be employed to illustrate some the most crucial aspects concerning the internationalisation of criminal law and justice.

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 the main normative provisions of international and European criminal law, the ability to conduct effective legal research and to solve cases that involve fundamental issues of international and European criminal law.


Assessment methods

Exam

Non-attending students are required to submit 2 papers, each consisting of at least 6,000 words. The related topics and deadlines must be agreed upon with the lecturers.
Attending students:
The final exam consists of an individual take-home written assignment of a minimum of 4,000 and a maximum of 4,400 words. The assignment consists of a research paper, legal memorandum or case note on an International and European Criminal Law topic, issue or judicial decision. Further information on the choice of topic, issue or judicial decision will be provided in class. In the alternative, students may combine an in-class individual or group presentation with a paper of 2,000-2,200 words on the same topic of the presentation.

Please note that we follow a zero-tolerance policy against plagiarism.

The lecturer has discretion to adjust the grade to reflect active participation demonstrated during classes.
Class attendance will be taken at each class. Students who collect five or more absences from class sessions shall not be allowed to sit the exam as attending students and will have instead to follow the instructions for non-attending students.
Students with disabilities or Specific Learning Disorders (DSA) can ask to the Professor adaptations for their specific needs.
Erasmus students can ask to the Professor adjustment of the program according their learning agreement.
Students must ensure to enrol in the final exam through 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.

In addition to the compulsory readings, students will benefit from the insights of professionals and scholars who have worked extensively in the field of international or European criminal law and who will be invited to deliver individual lectures. Students will have the opportunity to assist to a hearing of the ICC and the CJEU in Luxembourg, and to meet professionals in international and European criminal law, as part of a study trip.

Films and documentaries on international criminal justice and transitional justice will be shown throughout the course with the aim of familiarizing students with the most problematic issues arising from the relationship between criminal law and fundamental rights.

Guidance and support will be provided to students seeking internship opportunities at European and international institutions, such as international criminal courts and tribunals, European courts, the Inter-American Court for Human Rights, or NGOs.


Office hours

See the website of Emanuela Fronza

See the website of Paolo Lobba