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Topic 2: Principles of Legality - Coggle Diagram
Topic 2: Principles of Legality
2 principles
Principle of strict legality
Liable if act is a crime at the time it occurred
Doctrine of Substatitive justsice
Jusice wins (Radbrach's formula)
Laws can be applied retroactively, it is assumed that all laws that will be made will be favouring justice, therefore, individuals should know that what they are doing is wrong even if there is no specific law at the time of the act.
Civil vs CL countries
Civil
Criminal offences must be in writing prior to the offence taking place
No customary law
Criminal legislation must be specific
No analogy
CL
Judge-made law
Historically has applied laws retroactively.
POL in ICL
DSJ is being replaced by strict legality
4 principles
Specificity
Needs actus reas and mens rea
Current issues with specificity
Acts not clearly defined
Defences not clear
Justifications not clear
Need clarification from various courts (National + Intl.)
Non-retroactivity
Why? to protect people from 3 arms of govt.
Retroactive implementation is allowed when the outcome is more favourable for the accused
Favour the accused
No analogy
Adaption is allowed but not analogy
Adaption should:
Be reasonably addressable
Compliant with defining essence of the crime
Conform with ICL fuundamental principles of law
ICL cannot create new law, adaptions allow them to apply their existing law to more situations
3 Exceptions
Ejidem Genesis (Rule of interpretation)
General principles can be extended
E.g ban on assault weapons, the general principle is the causing of unnecessary harm to society. So this ban can be applied to other objects based on the same general prinsiple.
General principles of ICL when there is a gap
FANS
Elements of International Crime
Acts by: State officials, servicemen, political leader OR Private individuals
Linked to
Intl/non-intl. armed conflict
No conflict necessary, just an ideological aspect
Linked to state party or non-state organised groups
Definitions
Domestic crimes: Personal purpose
Transnational crime: Private goal crosses intl. borders
Intl. crime: Harm intl. community
Can be
Double layered
Murder as a CAH needs:
Objective element,
Subjective element,
Broader objective context,
Additional mental element
Objective and Subjective element
Objective element
Needs a conduct
Consequence
Crime of conduct: Using chemical weapons
Crime of result: Starving prisoners
Circumstances: A qualifier of the crime E.g. being a commander
Subjective element
Guilty mind
Intent
Knows and wants the result to occur
Specific intent
Intent with a special goal (E.g. genocidal intent)
Recklessness
Act is overly risky and likely to cause harm
Negligence
Must abide by standard conduct and take reasonable precautions
Any reasonable person would abide by the standard conduct/ precautions
Acts against precautions/ standards
Simple negligence: Not aware of the risk of harm to others
Gross negligence: Aware of risk but believes the unfavourable outcome will not occur E.g. Commander doesn't check on subordinates