Legality, Culpability and Dogmatik: A Dialogue between the ECtHR, Comparative and International Criminal Law

in International Criminal Law Review
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This article aims to analyse a peculiar interplay between the case-law of the European Court of Human Rights (ECtHR), comparative and international criminal law. The discussion focuses on legality, foreseeability of the criminal nature of conduct, knowledge of a fact’s wrongfulness and mistakes of law. Starting from foreseeability as a constitutive element of legality in the ECtHR case-law, the author examines ‘knowability’ of a fact’s wrongfulness as a component of the Continental law Dogmatik category of culpability, the issue of ignorance in common law and the general interaction between the principles of legality and culpability. With regard to the International Criminal Court, there is a problematic need to establish a personal mental link between an individual’s actions and the system criminalising such action. In this context, the issue of foreseeability as applied to modes of liability has proven to be problematic. The upshot is this paper’s appeal for a truly international criminal Dogmatik.

Legality, Culpability and Dogmatik: A Dialogue between the ECtHR, Comparative and International Criminal Law

in International Criminal Law Review




Italian Constitutional Court (1988) supra note 11 paras. 8 16 and 17.


Weigendibid. p. 475. On statutory regulation of mistake of law see A. Eser ‘Mental Element - Mistake of Fact and Mistake of Law’ in A. Cassese P. Gaeta and R.J.W.D. Jones (eds.) The Rome Statute of the International Criminal Court. A Commentary vol. I (Oxford University Press Oxford 2002) pp. 889–948 especially p. 941.


Fiandaca and Muscosupra note 8 p. 403. Italian Constitutional Court (1988) supra note 11 paras. 16 and 17.


Fletcher (2012)supra note 7.


 For example Smithsupra note 50 p. 19 et seq.; also Greenawalt supra note 52 p. 1897 et seq.


Asworthsupra note 54 p. 222.


Italian Constitutional Court (1988) supra note 11 para. 8.


Weigendsupra note 13 p. 491.


Concurring Opinionsupra note 19.


Concurring Opinionsupra note 19 para. 31.


Concurring Opinionsupra note 19 paras. 32–39 where the judge also takes the view that the reference to possibility or probability standards as to the common plan criminal outcome may lead to dolus eventualis (acceptance of the mere risk) psychological imputations falling outside Art. 30 of the icc Statute on mens rea. On this cf. recently Lubanga 1 December 2014 Appeals Chamber Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction icc-01/04-01/06 A 5 paras. 441–452 <> 11 March 2015 (henceforth ‘Lubanga Appeals Chamber’) holding that the reference to dolus eventualis is misleading when looking at the mental element of co-perpetration and in particular with regard to mens rea of participants to the common plan; they need to be aware that the implementation of the plan will result in the commission of a crime within the jurisdiction of the Court in the ordinary course of events i.e. with virtual certainty and not with a mere acceptance of a risk.


Concurring opinionsupra note 19 paras. 32–33. But on the necessity of the common plan requirement cf. Lubanga Appeals Chamber supra note 100 paras. 452–455.


Concurring Opinionsupra note 19 paras. 52–57.


Fletcher (2012)supra note 7 pp. 1030–1031.

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