Procedureal Law and ICL

Key Elements of Civil Law

• Codification and Generality: Law is primarily found in written codes that consist of a "body of general principles". These codes are typically collections of abstract principles rather than specific rules for every concrete situation.

• Legal Certainty: Predictability and legal certainty are treated as "supreme values" and "unquestioned dogmas".

• Principle of Legality: The tradition maintains a very strict adherence to the principle of nullum crimen sine lege (no crime without law).

• Search for Truth: An overarching goal of the system is the systematic search for truth, often through a largely inquisitorial approach.

Key Elements of the Inquisitorial Law (Procedural System)

• Principle of Cumulation: In its pure form, the judge acts as the judge, accuser, and defender of the accused simultaneously.

• The "One Case" Approach: Instead of two competing versions of the facts, only one case file is prepared by a state official (such as a juge d’instruction) who carries out the investigations.

• Active Judicial Role: The judge is an active arbiter with a legal duty to establish the true facts and submit evidence accordingly.

• Writing and Secrecy: Proceedings have historically been based on investigative secrecy and written records. A famous maxim of this system is quod non est in actis, non est in hoc mundo—what is not in the file is not in the world.

• Office Initiative: The judge can initiate a trial ex officio (on their own motion) without needing a request from an accusing party.

• Presumption of Guilt: Historically, if some evidence was gathered, the defendant was expected to "exonerate himself"; otherwise, they were presumed guilty.

• No Limits on Admissibility: The focus is on the result (the truth), meaning almost any method of investigation might be permitted, historically including confession as the "queen of evidence".

• Multiplicity of Appeals: Because the initial judge has such broad power, the system allows for several layers of appeal where a superior judge uses the same inquisitorial powers to check for mistakes.

Key Elements of Common Law

• Case Law as Primary Source: Unlike civil law's focus on written codes, the chief source of law here is case law. Judicial decisions are considered "both the source and the proof of the law".

• Inductive Reasoning: Decisions are reached through a casuistic (inductive) approach. Rather than applying general principles downward, lawyers and judges assess the "force of arguments" from all sides in connection with actual cases.

• Dialectical Competition: The system is characterized by a dialectical competition between parties. It is believed that through this clash, the "stronger (and therefore the true) version of the case will prevail".

• Flexible Legal Certainty: In this tradition, legal certainty is not elevated to an "unquestioned dogma" or supreme value as it is in the civil law tradition.

Key Elements of the Adversarial System

• Separation of Procedural Functions: There is a strict separation of powers between the impartial judge, the prosecutor, and the defense.

• Party-Driven Process: The parties, rather than the judge, control the proceedings. They decide what evidence to submit and in what order it is presented.

• The "Two Case" Approach: Each party prepares its own version of the case during the pre-trial stage and presents them subsequently at trial.

• The Passive Judge: The judge acts as a passive arbiter whose primary task is to ensure that parties abide by procedural rules and to assess the admissibility of evidence.

• Orality and Cross-Examination: Evidence is formed through oral testimony. The "cross-examination" is a central feature, allowing parties to question the existence of facts asserted by the other side and exploit the "surprise effect" to test witness credibility.

• Presumption of Innocence: The accused is presumed innocent until the prosecution proves guilt "beyond reasonable doubt".

• Limits on Pre-Trial Detention: Custody before sentencing is structured as a last resort. The prosecution must prove a concrete need (such as danger of flight or evidence pollution) to justify it.

• The Jury: A jury often serves as the final decision-maker.

• Complex Rules of Evidence: The system relies on detailed regulations regarding what evidence can be admitted, such as the hearsay rule, to protect the integrity of the trial.

Civil Law vs. Inquisitorial System

• Civil Law (Legal Tradition): This term describes a legal family (also called Romano-Germanic or European Continental Law) characterized by a set of deeply rooted, historically conditioned attitudes about the nature of law. It prioritizes written codes and abstract general principles over specific case-by-case rules.

• Inquisitorial (Procedural Model): This refers to the concrete structure of the trial within the civil law tradition. It is based on the "principle of authority," where a single official (like an investigating magistrate or juge d’instruction) is tasked with uncovering the truth. Main features include a "one case approach" where the state prepares the file, a reliance on written records (quod non est in actis, non est in hoc mundo), and an active judge who submits evidence.

Common Law vs. Adversarial System

• Common Law (Legal Tradition): Often called "Anglo-American" law, this is a legal tradition where case law (precedent) is the primary source and proof of law. Decisions are reached through inductive reasoning by assessing the force of arguments in actual cases.

• Adversarial/Accusatory (Procedural Model): This describes the trial type used in common law systems. It is based on the "dialectical principle," which holds that the truth emerges from a competition between two antagonistic parties (prosecution and defense) before an impartial, passive judge. It features a "two case approach" (where each side prepares its own version of facts), oral testimony, and the "surprise effect" of cross-examination.

common law and the emphasis on case law

• The chief source of law in Common law legal system is case law of the courts. It’s both the source and the proof of the law, pronounced in connection with actual cases.

• Common law decisions are reached through confrontation and reasoned debate by assessing the force of arguments from all sides.

A compromise behind inqusitorial and adversarial systems

• The compromise is between the protection of society and the defense of the accused (need to conduct a fair trial).

• The protection of society is the need to detect crimes and apply sanctions to protect the public from the danger of the crimes.

• The defese of the accused refers to the necessity of providing the means to respect the values that inspire a fair trial.

• Example: investigative secrecy protects society by preventing criminal gangs from distorting evidence or eliminating witnesses; however, it simultaneously prevents a defendant from proving that prosecution sources are not trustworthy.

principle of authority

• Main belief: truth is better ascertained the more power is given to the inquiring party.

• Cumulation of procedural functions: it acrs at the same time as judge, as accuser and as defender of the accused.

• There is a tendency not to recognize any power to the parties; the offender and the accused are mere ‘‘objects’’ of the judgement.

• There is no need for the judge to be independent

main features of the inquisitorial system

• Office initiative: the intiative in criminal proceedings lies with the judge. The intervention of the judge doesn’t need to be requested by an accusing party.

• Ex offcio evidentiary initiative: the search for evidence is the responsibility of judge. The judge is able to search the evidence with coercive powers.

• Secret: the inquisitor is a person (or body) that seeks the truth without using dialectical opposition between parties. He takes depositions in secret and does not need to compare his reconstruction of the truth with positions of the prosecution and the defence of the accused.

• Writing: a record is taken of the depositions taken by the inquisitor.

• No limits on the admissibility of evidence.

• The presumption of guilt.

• Pre-trial detention. Since the defendant is presumed guilty, in the absence of proof of innocence he may be subjected to preventive detention in prison.

• Multiplicity of appeals.

separation of procedural functions

• dialectical principle: the truth can be ascertained only if the procefural functions are shared between subjects with antagonistic interests.

• judge must be independent and impartial to decide on the basis of evidence sought by the prosecution and the defence.

• the judge’s choice between the different reconstructions of the fact is stimulated by the dialectic that takes place between subjects driven by opposing interests.

• the power of one subject is balanced by the power granted to another subject

main features of accusatory system

• Party’s initiative: the intiative of the criminal trial must lie solely with the parties.

• Party evidentiary initiative: the power of search, admission and evaluation of evidence must be divided and approtioned between the judge, the prosecution, and the defense in such a way that none of them can abuse of it.

• Contradictiory: each party can contribute to the formation of the evidence by putting questions to the witness. The adversarial process fulfils two essential functions: protecting the right of each party and constituting a fact-finding technique.

• Orality: those listening can ask questions to and obtain answers from the person who has made a statement. In principle, written statements cannot be used for decision-making purposes.

• Limits of admissibility of evidence: the method by which evidence is arrived at is considered very important.

• Presumption of innocence.

• Limites to pre-trail detention. If the defendant is presumted innocent until he is finally convicted, he cannot be treated as a guilty person.

• Limits to appeals. The checks work ar the very moment the evidence is formed before the judge in the cross-examination that exploits the ‘surprise effect’.

which procedural system is more effective

• the inquistorial system uses a kind of ‘state terrorism’ that has fairly simple solution. But it does not sufficiently guarantee against the risk of an innocent person being convicted.

• When it comes to the protection of polifical freedom and the human rights, the accusatory system is more respectful of fundamental rights. But the disadvantage is the excessive convativeness, risk of lynching the witness, the wide-ranging powers enjoyed by the public prosecution prevent the judge from carrying out effective control especially in the moments before the trial, rules excluding evidence tend to hinder the reconstruction of truth.

Historical background and legal evolution

• a war crime is a serious violation of the laws and cutoms applicable in armed conflict (i.e., internaitonal humanitarian law, or IHL).

• Lieber code 1863 (American civil war);

• Geneva Convention 1864 (Red Cross; protection of non-combatants);

• St. Petersbury Declaration 1868 (the only legitimate goal of war is to weaken the enemy)

• Hague Regulations (1899/1907): Prohibition of certain methods and emans of warfare (e.g., Dum Dum Ammunition)

• Geneva Gas Protocol 1925 (prohibition of use biological and chemical weapons in war)

• Kellog- Briand Pact 1928 (‘outlawing’ of offensive war)

• Geneva Convention 1929 (regulations for prisoner of war)

• Geneva Convention 1949 (Comprehensive codification and expansion of humanitarian protections)

• Additional Protocols I and II 1977 (Modern rules on targeting, distinction, proportionality, and civilian protection in international wars; Comprehensive humanitarian law for civil wars)

International Humanitarian Law

• International humanitarian law is triggered by the existence of an armed conflict, regardless of whether the war itself is lawful or unlawful.

• It’s about the law in wars, which is means how the war is fight, not the law on the use of force, which means whether a state is legally allowed to use force in the first place.

• IHL regulates the protection of non-combatants (Geneva Law) and the prohibition of certian methods and emans of warfare (Hague Law).

• Principle of ‘limited warfare’: principle of necessity and proportionality —> militarily necessary (both amount and kind)

• Minimization of covilian collateral damage: prohibition of unnecessary suffering and destruction of property’; prohibition of indiscriminate attacks against civilians/civilian objects

• Protection of non-combatants: civilians; prisoners of war; fighters out of war

• Principle of distinction: only military objectives are valid targets (of attack)

Geneva Law

• sick and wounded in the field

• wounded, sick and shipwrecked at sea

• prisioners of war

• civilians

• protection of victims of International Armed Conflict (IAC)

• protection of victims of Non-international Armed Conflict (NIAC)

Hague Law

• 1899, expanding bullets

• 1907, Hague Convention respecting the Laws and Customs of War on Land

• 1925, Geneva Gas Protocol

• 1977, Additional Protocol 1 to Geneva Conventions

Application of IHL

• Geneva law and Hague law are recognized as customary international law

• Universal participation to the Geneva Convention (194 parties)

• Hague law is recognized as CIL because of Nurembury IMT and ICJ, Case Concerning Armed Activity on the Territory of the Congo (2005)

• the two-box approach of IHL: Scope of protection depends on the international or non-international character of the armed conflict

War Cimes

• a war crime is a serious violation of the laws and customs applicable in armed conflict.

• IHL is set of rules that seek to limited the effects of armed conflicct for humanitarian reasons.

• War crimes law criminilizes a subset of IHL —> war crimes are violations of rules of IHL that establish directcriminal responsibility under international law

IAC and NIAC

• International armed conflicts require inter-state conflict or intra-state conflict with an interantional character (e.g., third party/state intervenes actively, like Vitnam war)

• Non-international armed conflicts are entirely intra-state conflicts (e.g., civil war).

Intensity Threshold/ Triggers of IHL

• To IACs a ‘first-shot’ threshold applies. The intensity of the conflict is irrelevant. There is a higher escalation risk.

• For NIACs a higher intensity threshold applies. Because the applicability of war crimes law impinges upon state sovereignty. NIAC must reach an internsity that is comparable to an IAC to trigger the applicability of war crimes law (= affect interests of the international community)

Nexus Requirement

• Key requirement: connection between the individual act and the armed conflict.

• The criminal conduct must take place in the context of (temporal and geographic context) and be associated with (close relation between the criminal conduct and the armed conflict) an armed conflict.

• War crims don’t encompass unrelated criminal activity

Mental Element

• intent and knowledge with regard to the individual act

• awareness of the context

• Perpetrator must not necessarily be a combatant.