84708 - International and European 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 and in particular of the Rome Statute of International Criminal Court. Furthermore, particular attention will be paid to the ad hoc Tribunals for the Former Yugoslavia and Rwanda, the mixed tribunals and the relevant case-law of these courts. A special focus will be dedicated to the Truth and Reconciliation Commissions and other alternative mechanisms of transitional justice as well. The second part of the course will analyse European criminal law and in more depth, the European Convention of Human Rights. Specified attention will be paid to the decisions of the European Court of Human Rights, their influence on national law and the jurisprudence of the international criminal jurisdictions. During the course, the analysis of the law cases will be extremely useful in order to examine relevant issues, such as, the principle of legality, the definition of international crimes, statutory limitations, the duty to punish gross human rights violations and victims’ rights. 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. The chosen methodology allows a wider vision, which does not ignore pluralism of mechanisms and the importance of the legal, historical and political context in which a decision is rendered. The course is based on a participatory, active learning approach, with an emphasis on critical reflection. Some practitioners and scholars working on international and European criminal law will be invited to give specific lectures. Documentaries and movies will be used to demonstrate some key aspects of the internationalisation of criminal law and justice. This approach will lend knowledge and awareness of the peculiar features of this new dimension of criminal law, that is marked by multiple interactions and multiple actors both national and supranational. The main purpose of the course is to give students keys to interpret and apply legal texts of international and European criminal law, make legal research and solve the cases involving the fundamental questions of the International and European criminal law.

Course contents

The course examines the intricate process of internationalisation and Europeanisation that characterises the contemporary criminal law and justice system. The course examines the pivotal role of judges in determining the applicable law, considering both the supranational drive towards greater harmonisation of legislation 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 focuses on the constituent pillars of the criminal law system. Subsequently, an analysis will be conducted of the sources of international and European criminal law and their effect on municipal law. This will provide students with a critical understanding of a fundamental aspect that will inform the entire course: the multifaceted relationship between the various normative levels in question (international, regional, and national). The objective of this first part of the course is twofold: firstly, to demonstrate the interactions that comprise this regulatory system; secondly, to examine the tensions that are intrinsic to this legal domain. In particular, this course will focus on the inherent tensions between the logic of criminal law and the logic of international law. Furthermore, the course will examine the tensions between various internationally derived duties to punish and the fundamental guarantees enshrined in the Constitution.

The course then proceeds to examine international criminal law, with particular attention to the Rome Statute of the International Criminal Court. This case study is of significant importance from both the perspective of criminal policy and that of theoretical conceptualisation (Dogmatik). It provides a convenient vantage point from which the distinctive characteristics of international crimes and the related obstacles to effective prosecution can be discerned. After an overview of the ICC framework (sources and trigger mechanisms), the course will examine some of the most controversial judicial decisions, which sparked a debate about the challenges of a potentially universal jurisdiction. Such decisions include those in the situations of Libya, Burundi, Comoros Islands (incident of “Freedom Flotilla for Gaza”), Myanmar, Sudan and Afghanistan.

Following this examination, the focus will shift to the most recent developments concerning the ICC and forms of cooperation with Eurojust, as well as the ongoing debate surrounding the establishment of an ad hoc court for the crime of aggression.

Furthermore, attention is directed towards other mechanisms established for the prosecution of crimes under international law, including the ad hoc Tribunals for the former Yugoslavia and Rwanda, but above all the mixed (or hybrid) Tribunals.

Finally, the focus will shift to the domestic level. On the one hand, this will entail an examination of the implementation of international criminal law (and in particular of the Rome Statute) in the different national systems. On the other hand, it will involve a study of the evolution of universal jurisdiction, with particular reference to the numerous trials initiated in Germany and in France.

Once this overview of the history and mechanisms of international criminal justice has been concluded, this module will address selected issues of substantive criminal law (e.g., principle of legality, modes of liability, definition of crimes, penalties).

In addition to the aforementioned responses based on a punitive paradigm, a specific thematic session is devoted to exploring some interesting and innovative experiments that are grounded in the model of restorative justice. The role of truth and reconciliation commissions and other concurrent or alternative mechanisms of transitional justice, in particular those developed in Latin America (e.g. in Colombia, Argentina, Peru) or Canada, will be revisited. A number of classes also examine the most significant landmark decisions of regional human rights mechanisms (notably the European and Inter-American Courts of Human Rights) and national courts (in Latin America, Spain, Germany, Italy and France) regarding international crimes.

The final part of the course addresses the subject of European criminal law. Following an introduction to 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. These include the nullum crimen sine lege principle, culpability, the statute of limitations and the principle of ne bis in idem. In this section of the course, we will examine a selection of judgments handed down by the Court of Justice of the European Union and the European Court of Human Rights. In addition to analysing the content of these judgments, we will also consider their impact on domestic law.

Particular emphasis will be placed on the examination of both domestic and international case law, with a view to fostering active engagement and participation from students. This will entail the involvement of legal practitioners, as well as the provision of assignments designed to facilitate a comprehensive understanding of the practical implications of the cases under discussion.

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 key players of the 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 hoc tribunals 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. New forms of cooperation and evolution and future perspectives of hybrid models (Cambodia, Senegal, Kosovo, Sierra Leone, etc.)

· The development of universal jurisdiction

· A sui generis system: 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 Syllabus will be made available also on the Virtuale platform for the use of all enrolled students.

For attending students, mandatory readings may be assigned to specific lectures. In such an event, the students will be duly informed at the appropriate time, and the syllabus will be updated to reflect the mandatory readings assigned. Students will be expected to come to class prepared to engage in discussion about the assigned material. Attendance and active participation will be considered in the overall assessment for this course.

The texts and materials pertaining to the cases discussed during the course will be made available on Virtuale, along with any additional readings that may be identified during classes.

Teaching methods

Teaching methods

The course will consist of lectures and additional seminars and activities to further analyse some specific topics and encourage students’ involvement. The lectures will provide a systematic explanation of the syllabus, accompanied by an examination of relevant case law.

The lectures will adopt a comparative approach, analysing both 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 enables students to gain an understanding of the “bigger picture”, to consider the range of mechanisms for redress – including both contentious and non-contentious approaches – and to appreciate the significance of the legal, historical and political contexts.

It is expected that students will actively participate in the classes in order to develop their critical thinking skills. Individual seminars or classes will be taught by professionals and academics with extensive experience in international and European criminal law. Moreover, documentaries and movies may be employed to illustrate some of the most crucial aspects concerning the internationalisation of criminal law and justice.

Class attendance will be taken at each class. Students who collect five or more absences from shall not be allowed to sit the exam as attending students and will have instead to follow the instructions for non-attending students.

Assessment methods

The final exam consists of an individual take-home written assignment on a topic to be chosen from a comprehensive list that will be provided to students at the beginning of the course.
The selected topic must be communicated via e-mail to the Professor. Should students wish to address a more expansive topic (among those provided in the list) from a particular perspective, they must first obtain the Professor's approval via email.

- Attending students are required to submit a research paper of a minimum of 4,000 and a maximum of 4,400 words;

- Non-attending students are required to submit a research paper of a minimum of 8,000 and a maximum of 8,800 words;

The word count shall not include footnotes, bibliography, title page and table of contents.

Papers should include a bibliography at the end, listing all cited works and cases, and should include footnotes. Papers with no footnotes and/or no bibliography will be given a failing grade.

Important guidelines for your paper

Papers should not consist in a mere juxtaposition of cases and/or legislation and should be analytical. The inclusion of a personal opinion on the topic is permitted, provided that it is supported by a robust analysis and a comprehensive bibliography.

You should rely mainly on books, law journal articles and cases (NEVER on Wikipedia). In order to conduct your research, you should go to the Law School library and in case you have difficulties, please schedule an appointment with a librarian who can teach you how to access databases.

Papers should be written in English (spelling must be consistent and can be American or British). Papers should be written in a clear, correct, idiomatic and comprehensible manner.

EVALUATION and SUBMISSION OF PAPERS

For attending students: the lecturer has discretion to adjust the grade in a manner that reflects the level of active participation demonstrated by the student during the course of the classes.

Deadlines: Papers are to be submitted 2 weeks before the “Appello” (exam date) in which the student wishes to enroll. Students should submit their papers using the Microsoft Form link made available on the “Virtuale” platform. Further instructions will be provided in the submission form.

IMPORTANT NOTICE: Students must ensure to enroll in the final exam through Almaesami on https://almaesami.unibo.it/almaesami/welcome.htm . You will need to enroll on AlmaEsami for us to officially attest your passing of the exam and grade.

On the date of the exam, the student will receive an e-mail with the assigned grade. During the exam session, your physical presence is not required. The Professor will simply proceed with the administrative registration of your grades in the system.

Disclaimer:

Please note that we follow a zero-tolerance policy against plagiarism. Plagiarism will result in a failing grade.

The use of generative artificial intelligence (AI) and other AI-powered tools and apps is regulated by the course’s AI policy, which will be made available on the “Virtuale” platform

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