Parochial versus Universal Criminal Law

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1 Articles Parochial versus Universal Criminal Law George P. Fletcher* Abstract This paper takes two legislative developments in the English-speaking world ö the precedent of statutory criminalization of treason in England, and the establishment of federal criminal law in the United States ö and compares them with the development of two distinct branches of supranational criminal law: international criminal law and European criminal law. In doing so, the author demonstrates two different approaches to criminal law and the way in which criminal law can be used to protect different values. The author argues that the criminalization of certain violations follows two distinct patterns. In some cases, criminal law aims at preserving self-interest: for example, in the EU, this has taken the form of concentrating efforts to criminalize fraud against the EU s budget. This is what the author calls parochial criminal law. In other cases, criminal law has the broader purpose of pursuing the protection of universal interests: this is the case of the provisions criminalizing war crimes, crimes against humanity and genocide. The author concludes with some suggestions for reform of the general parts of both international criminal law and European criminal law. In the last half-century, we have witnessed systematic efforts on the part of supranational organizations to impose punishment for diverse purposes, sometimes as a surrogate for revenge after a military victory, and sometimes to broaden the purposes of justice and prevention. The two efforts that I will address in this article are the International Criminal Court (ICC) and the proposed system of European criminal law. These two efforts stand in a useful comparison with two legislative developments in the English-speaking world: the first English statute punishing treason (in 1352), and the emergence of federal criminal law in the United States. The reason for these points of comparison will become clear as I proceed. * Cardozo Professor of Jurisprudence, Columbia University Law School; member of the Journal s Editorial Board.... Journal of International CriminalJustice 3 (2005), 20^34 doi: /jicj/mqi008 ß Oxford University Press, 2005, All rights reserved. For permissions please journals.permissions@oupjournals.org

2 Parochial versus Universal Criminal Law 21 The undisputed prerequisite for legitimate punishment in all modern systems of criminal law is legislative definition prior to the commission of the offence, captured in the maxim: nullum crimen sine lege. The legislation might come in many forms ö a statute, an international treaty or a Security Council Resolution defining the powers of an ad hoc tribunal. The purpose of this definition is to advise potential offenders of the criteria of liability, to restrain judges in their exercise of discretion and to seek a measure of uniformity and equality in the prosecution of offenders. Of great interest also is the cultural significance of legislation. Upon which activities ö and in what order and in what sort of language ö do states seek to impose punishment as an expression of sovereignty? 1. Treason under English Law The crime that a community chooses to address first tells us a great deal about the cultural context of criminal punishment. It is significant, for example, that the first memorable statute to define a crime in English history addressed the subject of treason. In the Statute of 1352, passed by Parliament in the reign of Edward III, 1 we find the roots of the language now used everywhere in the English-speaking world. The American Constitution defines treason against the United States as consisting only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort. 2 As defined here, treason appears to be an offence committed first in the heart, by adhering to the enemy. In the 14th century, the definition was even broader, including cases of compassing the death of the king 3 or various cases of sexual assault against members of the royal house. The purpose of this 14th-century Statute was obviously to protect the stability of royal power and to limit succession to the legitimate offspring of the king and queen. This is a perfectly sensible use of the criminal law. After all, the state must secure its own authority before it can implement policies designed to avoid violence and other wrongs between citizens. Yet, treason is, by its nature, a parochial crime. An attempt to overthrow Edward III or any other 1 25 Edward III, chapter 2, St.5. The current version of the statute, enacted in thetreason FelonyAct 1848, chapter 12, s. 3 reads: If any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen,...and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing,...or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable,...[to imprisonment for life]. 2 US Constitution, Art. III, s. 3, clause 1. 3 This subjective element was supplemented by a requirement of an overt act. See generally G. P. Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, reprinted 2000), 207^213.

3 22 JICJ 3 (2005), 20^34 monarch constitutes a moral wrong only for those who are expected to support his reign. Not everyone is expected to be loyal to the English Crown. This explains why outsiders are not bound by the same duties of loyalty. Obviously, Frenchmen do not owe a duty of loyalty to the English Crown and therefore if, in time of war, they adhere to France and give the French aid and comfort, they commit no treason against England. 4 Even when nationals owe a duty of loyalty to the mother country, the bearers of that duty might have strong moral reasons for rejecting it. Americans know this well, for those who signed the Declaration of Independence all committed treason against the Crown. They were loyal neither in their hearts nor in their deeds. The founders of the United States realized that one country s traitor is another country s freedom fighter. That is why they took the unusual step of securing limitations on the scope of treason in the Constitution. Many of the grounds in the 1352 Statute were constitutionally barred, 5 and the dangers of false convictions were held in check by requiring the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. 6 Treason has remained on the books in all Western countries, but it is invoked less and less often and treated as a suspect crime that reflects the climate of local political interests International Crimes The parochial nature of treason becomes clear when disloyalty toward the Crown or the nation is compared with the crimes punished under international criminal law ö in particular, under the ICC Statute establishing the ICC. Only serious crimes of concern to the international community as a whole 8 are subject to punishment in the ICC. The crimes defined thus far include numerous war crimes as well as a large number of crimes against humanity and five types of genocide. 9 By and large, these are crimes that we 4 Definitions of treason frequently ignore the requirement of national identity as a condition for committing the offence. See the language of the 1848 English Statute, supra note 1. Also see the US Constitution Art. III, s. 3, clause 1, which makes no limitations on those who might be guilty of the offence. But cf.18 USC, x2381, which limits treason to those owing allegiance to the United States. For a concrete problem in applying the English law to a non-citizen, see the case of William Joyce (Lord Haw Haw), Joyce v. DPP, 1946 Appeal Cases 357 (convicted solely because he had fraudulently acquired a British passport and was therefore estopped from denying his allegiance to the Crown). 5 The only grounds remaining are waging war against the United States and adhering to the enemy giving them aid and comfort, US Constitution, Art. 3, s. 3, clause1. 6 Ibid. 7 For commentary on recent treason trials in the former Soviet block, see G. P. Fletcher, The End of Treason (or the Beginning) (2002), available online at commentaries/commentary text.php4?id¼753&lang¼1&m¼contributor. 8 Preamble ICCSt. 9 Arts6^9ICCSt.

4 Parochial versus Universal Criminal Law 23 would describe in the common law as wrongs in themselves ö not wrong by force of the international treaty that defines them. From the point of view of English lawyers, treason against the English Crown was surely a great wrong, but one could not reasonably expect the Americans who revolted against George III to feel the same way. The crimes of concern to the international community are, instead, wrongs in a universal sense. One might reasonably expect all people everywhere to regard torture and the deliberate killing of innocent civilians as inherently wrong. 10 In claiming that these actions are wrong, we put aside the purely parochial interests of particular nations or of their political leadership. Though not cultivated in the literature of criminal law, the distinction between parochial and universal crimes has great value. For example, though it is condemned by all nations, espionage is a parochial rather than a universal crime. Spies are traditionally executed when caught and tried, but they might indeed be honoured in the country for which they spied. This is why international agreements have never prohibited spying. The purpose of the 1907 Hague Convention was to impose limits on the conditions and criteria for executing spies, 11 the assumption being that their liability to punishment would proceed according to the law of the apprehending country. The crimes prohibited by the ICC Statute are not, or should not be, dependent on parochial interests. 12 As the foundation of the ICC Statute, the Geneva Conventions stress the universality of the offence. They assume that every contracting party ö ideally, every nation in the world ö should be obligated to arrest persons on their territories who are suspected of grave breaches of the Convention, regardless of the offender s nationality. 13 This is what it means for the offences to be universal rather than parochial. It is worth stressing the difference between the universal nature of war crimes and the claims of universal jurisdiction that we have heard so much about in recent decades. 14 The two forms of universality have 10 These are two of the more prominent crimes covered byart. 7(1)(f) ICCSt. (systematic and widespread torture as a crime against humanity), Art. 7(1)(a) (systematic and widespread murder of civilians as crime against humanity) and Art. 8(2)(a)(1) (willful killing of civilians as a war crime). 11 E.g. Hague Convention (1907), Art. 29 (conditions for considering someone as a spy), Art. 30 (no punishment without trial), Art. 31 (when former spies must be treated as prisoners of war). 12 There might be an exception in the politically motivated condemnation of transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies. 13 Fourth Geneva Convention of1949, relating to the Protection of the Civilian Population, Art See my critique, Against Universal Jurisdiction, 1 Journal of International Criminal Justice (2003), at 580.

5 24 JICJ 3 (2005), 20^34 nothing to do with each other, as will be easily perceived in the following chart: A: Universal approach B: Parochial approach Nature of the crime Jurisdictional basis of prosecution 1 Universal (based on nature of the wrong, no national perspective of victimhood) 2 Parochial (some nations are victims of the crimes, e.g. treason, spying) 3 Universality principle 4 Territoriality, nationality principles Column A represents the universal approach to crime or jurisdiction; column B illustrates the opposite. Note that there is nothing in this line-up that requires universal jurisdiction to attach to universal crimes. The claim is often made that the four Geneva Conventions of 1949 establish or even mandate universal jurisdiction for grave breaches of the Conventions. 15 In my view, this is false. The Conventions merely impose on every High Contracting Party an obligation to search for persons alleged to have committed grave breaches of the Conventions. It would make no sense for every State Party to be under a constant duty to search for all suspected violators regardless of the place of commission ö the duty can arise only if the state is informed that the suspect might be hiding within their territorial jurisdiction. Upon arresting suspects in its territory, the state may either prosecute such persons regardless of their nationality, 16 if its laws permit it to do so, or extradite the offenders to the state that does have jurisdiction. There seems to be no basis in the text of the Geneva Conventions for creating the kind of universal jurisdiction now found, for example, in the new German International Criminal Code. 17 Nonetheless, in a substantive sense, the offences proscribed in the Geneva Conventions are universal in nature. This is a plausible interpretation of the German term Weltrechtsprizip, or principle of worldwide law. Crimes of this universal nature apply to all human beings, regardless of the national identity of either victim or perpetrator. But many universal crimes are subject to prosecution at most under the territorial principle of jurisdiction. With reference to the chart, the combination A1 and B2 occurs commonly in the legal systems of the world. For example, routine cases of homicide are, by their nature, universal crimes ö the national identities of the perpetrator and of the 15 SeeA. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), Fourth Geneva Convention of1949, Art See Vo«lkerstrafgesetzbuch (2002).

6 Parochial versus Universal Criminal Law 25 victim are both irrelevant. It would shock our conscience to make the killing of Americans a crime while exempting the killing of foreigners. This confusion of universality both at the level of substantive law and at the level of jurisdiction pervades both professional and popular discussions of the criminal law. For example, after John Walker Lindh was arrested for fighting for the Taliban in Afghanistan, he was supposedly charged with having engaged in a conspiracy to kill Americans. In fact, there is no crime of that name. The basic crime of homicide under US federal law is defined in the universal terms used by the common law as the unlawful killing of a human being with malice aforethought. 18 Jurisdiction is based on the maritime and territorial jurisdiction of the United States. 19 In the case of murder or conspiracy to commit murder abroad, the jurisdictional nexus is supplied by the victim s being a national of the United States. 20 Thus, the popular mistake in the media confounds the universal nature of the crime with the basis of jurisdiction. The crime is universal in nature but, as to killing committed or planned abroad, America will punish only on the basis of the passive nationality principle. It would violate the basic principles of federal criminal law to legislate a crime that would, as a matter of substantive law, protect only Americans; yet, at the jurisdictional level, this kind of differentiation is not only permissible but desirable as a way of accommodating competing claims of jurisdiction by various nations. To summarize our inquiry so far, we have outlined two paradigmatic cases of criminality; one is the example of parochial crime against the English Crown, and the other is the example of universal crime punished under the ICC Statute. In each of these cases, the punishing entity ö be it the state or the international community ö has chosen one of these offences as the first crime to subject to legislative definition. The English chose a parochial crime ö a decision reflecting a young and unstable legal system; the international community has chosen to intervene only against crimes that are universal in principle ö crimes that are wrong in themselves and which could reasonably be expected to appear wrong to all legal systems. These choices reveal something about the identity and sense of justice in the governments seeking to invoke criminal sanctions. Parochial crimes reflect self-interest, while universal crimes express a commitment to justice for all persons. The English Crown sought to protect its own interests by punishing traitors. The same is true of all legal cultures that punish treason ö punishing traitors is a way of securing the state s stability and survival. Whether the international community has a similar interest is a matter of interpretation. The ad hoc Tribunals for the former Yugoslavia and Rwanda arguably instantiated the interests of the UN in maintaining international USC, x1111(a). 19 Ibid., x1111(b). 20 Ibid., x 2332(b).

7 26 JICJ 3 (2005), 20^34 peace and security ö this was their formal basis of legitimacy 21 ö and, arguably, the UN s special interest in peace and stability comes close to a universal value comparable to the protection of human life and dignity. However, the ICC has a different grounding. Its basic imperative appears to be avoiding the injustice of impunity ö i.e. the injustice of systematically failing to respond to the evil of criminal wrongdoing. To avoid impunity, either a national court or ö when the national courts are unwilling or unable to prosecute 22 ö the ICC should intervene to punish the guilty, regardless of national interests. The retributivist mentality underlying the ICC Statute is reminiscent of Immanuel Kant s famous hypothetical of an island society disbanding and puzzled about what it should do with its jailed murderers awaiting execution. Kant insists that they must all be punished so that no blood guilt remains on the community. Similarly, one has the sense in reading the ICC Statute that tolerating the impunity of mass offenders leaves a stain like blood guilt on the conscience of the world. 23 As we have seen, the first crime that a community seeks to define by legislation tells us about its fundamental values and reasons for existence. The English Crown wanted to punish treason in order to protect itself. The international community has committed itself to avoiding impunity for the most serious crimes of concern. In doing so, it is motivated not by self-interest but by a desire to demonstrate that no offender is above the law and no group of victims should be abandoned simply because its local system of justice is unwilling or unable to secure a conviction of mass offenders. 3. Federal Crimes in the United States For the sake of comparison, we should note the many points in common between the crimes punished under the ICC Statute and the federal criminal law of the United States. In both cases, the claim of a right to punish is severely restricted ö in the former case, by the vague notion of serious crimes of concern to the international community as a whole ; in the latter, by the more precise standard of a written Constitution setting forth specific grounds of legislation. However vague the outer limits of international jurisdiction might be, the ICC would not claim the authority to prosecute routine claims of theft, fraud and sexual assault. Much more is required to bring the crime to the requisite level of concern to the international community. This factor provides an 21 See SC Res. 827 (1993) establishing the International Criminal Tribunal for the formeryugoslavia under chaptervii of the UN Charter (measures to restore international peace and security). 22 Art.17(1)(a) ICCSt. 23 See I. Kant, The Metaphysics of Morals (1797, reprinted by Cambridge University Press, Mary Gregor transl., 1991), 142.

8 Parochial versus Universal Criminal Law 27 important structural limitation on the scope of the ICC Statute, but there is much more work to be done in this area. In the long run, we will need a more precise constitutional principle to determine the proper range and scope of international criminal law. There is much to be learned from the comparative study of international criminal law and federal crimes in the United States. Apart from the few crimes mentioned in the Constitution, Congress has sought a variety of principles to justify the use of criminal sanctions. The most intriguing is the panoply of civil-rights violations that functions very much as does the principle of complementarity in the ICC. 24 If egregious cases of violence, particularly violence against minorities, are not properly prosecuted at the state level, the federal government can intervene and redefine the crime as a violation of the victim s civil rights. A good example is the prosecution of the four Los Angeles police officers who were videotaped in 1993 beating up Rodney King in a parking lot in the San Fernando Valley. They were prosecuted in state court and acquitted. The trial was conducted fairly but many were suspicious of the Simi Valley jury, which was supposedly skewed against the interests of the African-American defendant and in favour of the white police offenders. The federal government decided to prosecute again, this time for the violation of Rodney King s civil rights. The theory was that the beating constituted an illegal seizure of his person in violation of the Fourth Amendment of the Constitution. If the police, acting on behalf of the state, violated the suspect s constitutional rights, then a federal action may proceed, even after an acquittal in a state court. 25 Of course, this procedure raises serious problems of double jeopardy, which the American courts dismiss on purely formalist grounds ö namely, a second prosecution is permissible if the sovereign differs or the second crime charged has some different elements from the first. Prosecutions in the ICC raise exactly the same problems of double jeopardy, but they are solved by invoking the principle of complementarity. Virtually all the crimes covered by the ICC Statute are subject to prosecution in national courts. If the national courts do proceed and acquit the defendant (as the California state court acquitted the four Los Angeles police officers), the question will be whether the ICC will recognize the prior acquittal as a bar to further prosecution. According to Article 20(3) of the ICC Statute, the ICC will defer to the national court only 24 The first civil-rights statutes were based on the Reconstruction Amendments (Thirteenth, Fourteenth and Fifteenth) adopted in the wake of the Civil War. These amendments purported to expand the authority of Congress to legislate in the area of the rights covered by these amendments, but the Supreme Court took a different view, holding the Statute of 1875 and all prior civil-rights statutes unconstitutional in the Civil Rights Cases, 109 United States Supreme Court Reports (US) 3 (1883). Civil-rights statutes did not reappear until the enactment of the Civil Rights Statute of 1964 on the basis of the interstate commerce clause of the Constitution. 25 For a discussion of the interplay between state and federal law in this case, see G. P. Fletcher, With Justice For Some: Victims Rights in Criminal Cases (Reading, MA: Addison-Wesley, 1995), 38 et seq.

9 28 JICJ 3 (2005), 20^34 if it decides that the national prosecution was pursued with the kind of vigour that reflects an intention to bring the person concerned to justice. The ICC standard might be tighter than that used by the US Justice Department in deciding whether to bring a civil-rights prosecution after a state court has acquitted, but a very similar process of evaluation takes place inside the prosecutorial bureaucracy. The Justice Department will intervene with a civil-rights prosecution only if it decides that the state-court decision represents a serious miscarriage of justice with excessively high social costs. 26 Just as treason reflected the concerns of the English Crown, and crimes of the ICC Statute reflect the basic values of the international community, the criteria of civil-rights prosecutions in the United States testify to the fundamental constitutional values that the federal government seeks to secure for the entire country European Crimes The nascent system of European criminal law consists of two parts: a system for protecting human rights, and a proposal to establish institutions for penalizing fraud committed against the European Union. The European Convention on Human Rights (ECHR) has led to a system of constitutional guarantees very similar to the American Constitution s due process guarantees, which are applicable in state as well as federal criminal trials. The ECHR arguably goes further than the American Constitution, because it secures the rights of victims as well as of criminal defendants. As evidenced by the recent case of M.C. v. Bulgaria, 28 the jurisprudence of the Strasbourg Court has taken some original and aggressive turns. The process of protecting victims began in 1985 in the case of XandYv.the Netherlands, 29 where a mentally handicapped young woman was induced by a young man to have intercourse while she was resident in a mental hospital. The Dutch penal code did in fact provide for criminal liability in these cases, but only if the victim herself filed a complaint. The Prosecutor decided that the victim was not mentally competent to file the complaint, and they would not accept her father s complaint as a substitute. The father brought a complaint to the Strasbourg Court on the ground that the Dutch authorities had violated his and his daughter s right to a private life under Article 8 ECHR. The Court decided that the failure to prosecute was indeed a violation of his right to 26 See the deliberations leading to the federal trial of Lemrick Nelson for the murder of Yankel Rosenbaum in Fletcher, ibid., 86^ I admit some difficulties explaining the federal jurisdictional basis for the crime of murder discussed supra notes 17 and 18. Some recent cases have begun to challenge the assumption that federal jurisdiction is always present simply because Congress decides to legislate. See United States v. Morrison,529 US 598 (2000) (declaring invalid federal provisions punishing rape). 28 M.C. v. Bulgaria, ECHR, 4 March X andyv. the Netherlands, ECHR, 28 February1985.

10 Parochial versus Universal Criminal Law 29 privacy. The remedy, however, was merely to provide a minimal compensation (3000 Guilders ö about 1400 Euros) to the victim. There was no order directing the state to prosecute and surely no way that the Council of Europe itself could have undertaken prosecution. Indirectly, however, the message was that the Netherlands must correct the flaw that led to the failure to prosecute the case ö and, in fact, they did so. The legal theory of the case, based on the right to privacy, is, however, a bit far-fetched. It might have made sense to say that the young man who had sex with Ms. Y violated her privacy. But it is not clear why the failure to prosecute the crime in itself constitutes a violation of the same article of the Convention. In effect, the Court was applying the German constitutional theory of Drittwirkung (third-party effect) by which private parties secure protection under the constitution against other private parties. But there is no explicit invocation of the German doctrine. Instead, the Court vaguely conceded to the possibility of positive obligations inherent in an effective respect for private or family life. 30 In an even more intriguing development, the Strasbourg Court has devised a way to regulate private relationships under a broad interpretation of Article 3 ECHR, which holds: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. At first blush, it seems that the terms torture and punishment should apply only to actions of the state, but the Court has read the provision to protect children against corporal punishment by their parents. In A. v. UK, decided in 1998, 31 a step-father had beaten his nine-year-old stepson and was prosecuted for assault, but acquitted on the grounds that he was entitled to use a reasonable amount of force as chastisement. The Court found that the stepfather s beating the boy had constituted degrading punishment and, therefore, the United Kingdom was in violation of the Convention for not having protected the victim. The reasoning of the Court takes a middle position between the imposition of duties under the ECHR on private parties and the stressing of the positive obligations of the state here in the following language: The Court considers that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals. 32 This language was adopted in M.C. v. Bulgaria to impose a broad general duty to enact an effective criminal law protecting victims. In the particular case, the issue was the definition of rape. The Court submitted a learned opinion that 30 Ibid., x A. v. UK, ECHR, 23 September Ibid., x 22.

11 30 JICJ 3 (2005), 20^34 canvassed the recent legal developments of several European states, the United States and the ad hoc International Tribunals and they concluded that Bulgaria had breached its duty under Articles 3 and 8 (the two provisions invoked in the prior cases discussed) by failing to adopting a definition of rape that would provide women with greater protection than allowed under the traditional definition requiring proof of force or threat of force. This holding is a far cry from the two earlier cases. The case of XandY was based on what appeared to be an arbitrary exception for mentally handicapped victims of rape. The case of A. v. UK reflected private conduct that could be properly called inhuman or degrading punishment as explicitly prohibited by Article 3 ECHR. In the most recent case against Bulgaria, the notion of degrading punishment has merged with the broader idea of ill-treatment. Though the Court did say, as quoted above, that the Member States of the Union must take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals, 33 the range of the former now seems to have no bounds. The Strasbourg Court has assumed the remarkable burden of supervising and rewriting the criminal codes of all the Member States. It is important to keep in mind, however, that in these cases, the power of the Strasbourg Court is severely limited. They do not order states to change their laws, nor do they reverse judgments entered in the national court. The only remedy offered is monetary damages to the victim. Thus, a new species of international tort law seems to be emerging, based on the failure of states to protect their citizens against harm. Of course, there might have been a tort remedy available in Bulgaria against the defendants, but the Court holds, without much reasoning, that the Member States must provide criminal sanctions for this type of harm. In a separate concurring opinion, Judge Tulkens of Belgium properly expresses reservations about whether it is proper to insist on a criminal remedy at the national level. She emphasizes that criminal proceedings should remain, both in theory and in practice, a last resort or subsidiary remedy. 34 One would think so, particularly because, in these cases, the Strasbourg Court itself recognizes only tort liability for breach of the Convention. Though there are obvious anomalies in the jurisprudence of the Strasbourg Court, these cases represent a salutary development toward the protection of victims rights. The United States lags far behind in this area. Even if state officials are negligent in failing to provide protection for abused children, the courts refuse to find state action and treat the abuse as a constitutional violation M.C. v. Bulgaria, supra note 28, x Ibid. (concurring opinion). 35 The leading case is DeShaney v. Winnebago County Department of Social Services, 489 US 189 (1989).

12 Parochial versus Universal Criminal Law Criminal Law as Ultima Ratio Though the ECHR has made some remarkable advances, the second part of European criminal law is less worthy. The primary focus, expressed in the Corpus Juris and in a Green Paper issued by the Commission, has been on protecting the budget of the EU against fraud and corruption. 36 If we look again at initial attempts at legislation as an expression of the basic values of a legal culture, then we can say that the English law of treason expressed the value of loyalty and political stability; international law, the value of the life and human dignity; and American federal law, the value of civil rights under the Constitution. By comparison, what fundamental interest do the Corpus Juris and other European ambitions seek to protect? Nothing less than the budget of the Community ö in other words, money. When we contemplate the great historical models, we cannot escape the feeling that we have gone from the sublime to the banal. We should never forget that the criminal sanction should be treated as the ultima ratio ö as Judge Tulkens recently emphasized, a last resort. We should impose criminal punishment only when all other remedies fail. And, if this is true at the national level, it is doubly true for supra-national sanctions that duplicate national systems of repression. Every national legal system punishes fraud and, therefore, there is no apparent need for an additional layer of law enforcement including a separate European Prosecutor. Also, the states of the EU and Union itself have a civil remedy against anyone who has defrauded it. What, then, is the case for invoking the ultima ratio: the penal sanction? You will find lip service to the principle of ultima ratio in the standard European texts of criminal law, but the idea seems to be lost in practice. Penalizing behaviour is so cheap and so easy ö just put some words on paper and get a majority vote in the relevant legislative body ö that it has become the prima ratio: the first considered response to a social problem. This, I am sorry to say, is true at the level of international as well as European criminal law. To invoke the categories we developed earlier, we should note the parochial nature of the proposed anti-fraud legislation. Fraud, of course, is a universal crime, but the only purpose of European legislation seems to be to protect the funds of the EU. Perhaps one might say that European taxpayers are the ultimate victims of the fraud; the parochial interest might then be tempered by a multinational concern. Ultimately, the anti-fraud project should be understood as the mercantile analogue to the English Treason Statute of Then, the purpose was to protect the Crown against the enemies of the state. Now, we appear to be more concerned about protecting the European treasury against internal parasites. 36 See M. Delmas-Marty (ed.), CorpusJuris (Paris: Economica,1997), Art.1; G. Grasso and R. Sicurella (eds), Il CorpusJuris 2000: Un Modello ditutela Penale dei Beni Giuridici Comunitari (Milan: Giuffre', 2003), Art.1.

13 32 JICJ 3 (2005), 20^34 6. The Appeal of Criminal Legislation If we assume that the criminal sanction should be the ultima ratio, then the appropriate question should always be why the civil remedy in tort is insufficient to protect the victim. The Union can always sue to recover the funds it has lost through deception and fraud. If the concern is deterrence, then the Europeans should borrow an institution that Americans have used effectively in anti-trust law ö namely, the remedy of treble damages. The great advantage of the civil remedy is that the aggrieved parties take responsibility for bringing the lawsuit, collecting the evidence and arguing at trial. A civil remedy presupposes, of course, that the damage has been done. It cannot provide a means of intervention to halt a criminal plan in progress. The advantage of criminal legislation is precisely the possibility of intervention prior to the occurrence of harm. This possibility seems to have been known to legislators for some time. For example, as I have noted, the English treason act punished compassing the death of the King. In early cases, it was enough to convict someone of treason if the defendant made a statement in an alehouse to the effect that if he met the King, he would kill him. International criminal lawyers have taken advantage of early intervention and they have done so in ways that obfuscate the language of victimization. Consider the language of genocide. Most people assume that this term ö coined in the wake of the Holocaust ö covers the murder of people on a mass scale. According to both the 1948 Genocide Convention and the ICC Statute, however, the label genocide applies to five distinct offences, including imposing measures intended to prevent births 37 within a particular ethnic group, with the purpose of reducing the population of the group. In an Orwellian distortion of language, the drafters even stigmatize as genocide the public incitement of others to impose birth-control measures and other supposed genocidal measures on a particular social group. The Corpus Juris is no less ambitious in its manipulation of language to push back the line of criminal responsibility as far as possible. Why wait for actual deception and the transfer of funds to criminals? Article 1 punishes the making of false statements in an application for a grant or subsidy that risks harm to the Union budget. If the falsity is grossly negligent, the applicant is criminally responsible. A negligently false statement, therefore, becomes equivalent to fraudulent self-enrichment. One would think that the EU would dare to extend liability in this way only if the same principles of liability were found in all European legal systems. But, of course, if they were already on the books, the need for them on the Union level would be less clear. The dangers of overkill seem not to have had much influence on the drafters of the Corpus Juris; 38 by overkill, I refer to excessive criminalization 37 Article 6 ICCSt. 38 The dangers are well articulated in G. Corstens and J. Pradel, European Criminal Law (Dordrecht: Kluwer, 2002), 509^511.

14 Parochial versus Universal Criminal Law 33 that discourages financial initiative. Why should entrepreneurs take a risk of criminal prosecution merely to get a subsidy from the European Union? If the economic policy of the Union is to encourage enterprise and to support those who deserve it, then they should be wary of imposing too many sanctions for negligent conduct. 7. Comparative Lessons To sum up this comparative survey, I wish to concentrate on the work that needs to be done in the general part of both international criminal law and in any future European project. The two weakest areas in both fields of law, I submit, are the subjective side of the offence and the theory of defences. Here, I offer both a complaint and some guidelines for reform. (A) First, as to the subjective side of offences, the state of both international treaty-making and scholarship lies far below the models that can be found in the leading legal systems of the world. The ICC Statute defines intention and knowledge as essentially the same, and reduces both to the expectation that a result will occur in the ordinary course of events. 39 This conflates the distinction between intentionality and the foreseeability of harm. Commentators on the ICC Statute favour expanding the conception of intentional killing to include recklessness, and they routinely (and mistakenly) equate dolus eventualis with recklessness. 40 The Corpus Juris offers no definition of intentionality and is willing, without any apparent justification, to extend liability for false statements to gross negligence. The field of international criminal law desperately needs serious work on why and when intention should be required and, even more acutely, on the meaning of intentionality and recklessness. The proper place to begin is the American Model Penal Code (MPC), which has defined these concepts far more accurately than any international text. 41 It is a great disappointment to me that the experience of the MPC, as influential as it had been in domestic-law reform, has had no impact on either the terminology or the jurisprudential work of international and European criminal lawyers. I have been one of the most fervent critics of the MPC but the first lesson of comparative law should be that we learn from the best models available in the world as a whole, and in this area of defining the relevant subjective states, the legislative experience of American criminal law leads the way. 39 Article 30 ICCSt. 40 A. Eser, Individual Criminal Responsibility, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002), Model Penal Code (1962), x2.02(2). This model code has shaped law reform in over 35 American states.

15 34 JICJ 3 (2005), 20^34 (B) On the second point, the failures of comparative investigations are even more striking. In the theory and structure of claims of justification and excuse, German law is far more advanced than any other legal system and, yet, both the ICC and the Corpus Juris ignore this rich experience. The ICC Statute does not even recognize the distinction between justification and excuse, and, as a result, it mixes elements of both in its definition of necessity under Article 31(1)(d). As defined, the claim of necessity requires both a balancing of interests (justification) and a response under overwhelming pressure (the element of excuse). Thus, the defence is truncated and unavailable in either the case of involuntary conduct that imposes a greater cost than benefit gained, or in a case in which the action serves the greater interest but is not an involuntary response to danger. Eventually, the Court will have to compensate for this overly restrictive definition by adding new grounds for excluding criminal behaviour under Article 21(2) ICCSt. My impression is that the committee that drafted the Corpus Juris represents, on average, even greater expertise in criminal law than that behind the ICC Statute but, oddly, the Corpus Juris does not recognize any claims of justification at all. Presumably, it would be difficult to commit fraud as an act of self-defence, but one could imagine many cases of dishonest behaviour that might be required by a state of necessity. In any event, this is the kind of issue on which the drafter of an anti-fraud statute could well benefit from a more thorough comparative study of national legal systems. At the level of excuses, e.g. insanity, involuntary intoxication and mistake of law, the ICC Statute follows the tendency toward strict liability that has unfortunately prevailed in common-law tradition. The provision on mistake of law in the CorpusJuris reflects the legislative pattern in Germany and Spain, as well as the holding of the 1988 Italian Constitutional Court mandating the recognition of mistake of law as an excuse. 42 The details in this area require further elaboration, but the underlying point is very direct and simple. It is imperative that international criminal lawyers pay more attention to comparative law, but there is always the danger of picking and choosing and taking the worst ö or the most pro-prosecution ö features that each country has to offer. Let me end, however, on a note of confidence in the future. If lawyers begin to take these issues more seriously, we will witness a positive form of competition ö a race to the top rather than the bottom. We will then have the opportunity be proud of an international criminal law that includes the best that every country has to offer. 42 See CorpusJuris, supra note 36, Art.11(2).

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