91373 - International Criminal Law

Learning outcomes

At the end of the course unit, students: - demonstrate an advanced, specialised understanding of international law in the area of international criminal law and its basic principles, concepts and methodologies; - demonstrate familiarity with the sources and methods of research in the field of international criminal law; - demonstrate an understanding of the evolution of the concept of international crime; - demonstrate an ability to examine the different international and national procedures for prosecuting or otherwise dealing with international crimes, and the political and legal determinants of those procedures as well as their enforcement;

Course contents

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

- the criminal justice system and its changes introduced through the processes of internationalisation and Europeanisation, while also highlighting the importance of the comparative approach;

- the constitutional principles in criminal matters and the foundational concepts of criminal law, including 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 context of judicial decisions delivered by national Constitutional Courts, the Inter-American Court of Human Rights and, finally, the International Criminal Court.

Part I:

● Internationalization 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 principle of legality

● The principle of culpability

● Globalization and the 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

● Analysis of leading cases

● International Criminal Court

● European Court of Human Rights

● Interamerican Court of Human Rights

● National Courts

● Truth Commissions

 

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.

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 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 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

Students are encouraged to examine and engage in discussion of the cases that will be presented by the Professor. Students’ active participation is encouraged and may be taken into account in the final assessment.

à For students enrolled BOTH in the International Criminal Procedure AND the International Criminal Law courses (12 credits):

IMPORTANT! Class attendance is mandatory in order to sit the exam for the 12-credit module.

THERE IS A SINGLE EXAM FOR THE WHOLE MODULE of “Criminal Justice from a Comparative and International Perspective (I.C)”

The final exam will be in written form, and it will be in English.

The duration of the written exam will be approximately 2 hours.

The final exam will consist of 3 questions (10 marks maximum each), which will cover the topics dealt with in class and in particular:

· N 1 general question on fundamental principles in the supranational dimension;

· N 1 question concerning a case discussed during classes (and included in the list uploaded on Virtuale);

· N 1 practical question (solving a case).

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

Students with disabilities or Specific Learning Disorders (DSA) can ask to the Professor accommodations to their specific needs.

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

à For students enrolled ONLY in the International Criminal Law course (6 credits):

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 specific learning disorders (DSA) who require additional support will be able to refer to the Professor to discuss their needs and be directed to the relevant personnel to then agree on specific assistance and accommodations.

Erasmus students may request an adjustment to the programme in accordance with the terms of their learning agreement from the Professor.

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 guest lectures.

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