Chair: Wendy De Bondt

Thinking outside the criminal law box: Limits and possibilities drawing from other branches of law or disciplines

Building: G
Room: 21


Author: Quackelbeen Ligeia, The Institute of International Research on Criminal Policy (IRCP), Ghent University

Title: Crimes Against Humanity and Organizational Policy at the International Criminal Court: Limits Set by the Legality Principle
The International Criminal Court (ICC) has been criticized for interpreting crimes in an overly broad fashion. One of the identified interpretative problems is the interpretation of the contextual element of crimes against humanity that requires the crimes to be part of a “widespread or systematic attack”. Given that art 7(2)(a) Rome Statute requires the attack be made in pursuant to or in furtherance of a "state or organizational policy", the widespread or systematic attack requirement installs a conjunctive rather than a disjunctive test, thereby departing from the customary definition of crimes against humanity and the case law of the international criminal tribunals. The author discusses the struggle of the ICC with the departure from prior interpretation and demonstrates that this interpretative struggle is the result of it lacking a sound interpretative methodology. Such a methodology would inhibit the ICC from drawing from external sources of law and using the interpretative canons of the Vienna Convention on the Law of Treaties that are not necessarily adapted to the standards of criminal law. The sketched interpretative problems indicate the need for the ICC to draft a interpretative methodology crafted on the most principal standard of criminal law: the legality principle.
Keywords: interpretation of crimes against humanity, International Criminal Court, interpretative canons, external sources
Author: Mc Gonigle Brianne, Netherlands Institute of Human Rights (SIM), Utrecht University

Title: Pragmatism Over Principles: the International Criminal Court and a Human Rights-Based Approach to Judicial Interpretation
The interconnected relationship between international human rights law and international criminal law has long been an issue of scholarship. This article examines the last decade of practice at the International Criminal Court focusing on instances where the Court has either invoked a human rights interpretation of governing documents or rejected such an approach. The article concludes that the application of human rights is unclear and is largely driven by pragmatism rather than principle. Greater clarity, through a more consistent and transparent theory of international criminal law interpretation, is needed. In the meantime, the judges should remain reluctant from too easily conflating the two fields of law because to do so, at the expense of an accused, can undermine the very principles upon which fair and legitimate criminal proceedings operate
Keywords: International criminal law, human rights law, interpretation, ICC
Author: De Coensel Stéphanie , Institute for International Research on Criminal Policy (IRCP) – Ghent University (funded by the Special Research Fund of Ghent University)

Title: Extending Criminal Liability Throughout the Phases of the Radicalization Process : Building Bridges Between the Knowledge of Criminological Sciences and the Counterterrorism Legislation Within the Criminal Law
In recent times, legislators increasingly resort to the criminal law system in order to prevent the occurrence of future terrorist acts. In the name of security, and often pressured in the aftermath of a terrorist attack, legislators introduce new criminal law provisions so to extend the criminal liability beyond the traditional boundaries of the criminal law. However, current policy is not always accustomed to the criminological knowledge of the phenomena. Therefore, research is needed into the relationship between the preceding trajectory towards terrorism and the criminal law provisions related to terrorism. In order to gain insight into this relationship, first, an integrated phase model of radicalization is constructed based on a comparative review of thirteen existing models. Afterwards, the substantive criminal law measures of four EU-countries (i.e. Belgium, the Netherlands, the United Kingdom and France) are matched with the integrated model. On the one hand, it will be shown that the extension of criminal liability throughout the phases of the process often leads to counterproductive results. On the other hand, models of the trajectory may be misused by legislators to justify their far-reaching policy. Not only do these findings urge for a better partnership between both disciplines, it also leads to a critical assessment of the fundaments of the criminal law system and more in particular the principles of subsidiarity, proportionality and legality.
Keywords: counterterrorism; phase model of radicalization; criminal liability; preventive justice
Author: De Bondt Wendy, Institute for International Research on Criminal Policy (IRCP) – Ghent University

Title: Victims or Perpetrators? the Criminal Liability of (Former) Child Soldiers
As long as there will be armed conflicts, there will be children who voluntary or forcefully participate therein. Children over 15 years are in principle allowed to fully participate, whereas the involvement of younger children is commonly perceived as problematic, be it that the definition of ‘involvement’ is largely left to be assessed in individual cases. The participation or involvement of children in armed conflicts gives way for complex legal and ethical questions regarding their criminal liability, when they have committed an offence. The ‘presumed’ maturity underpinning the international acceptance of a 15 year old participating to an armed conflict, often crumbles down when assessing the ‘required’ maturity to be held criminally liable. The debate becomes even more complex when either the crimes are committed by a minor following involuntary recruitment, or the crimes are committed by an adult who in the past has fallen victim to involuntary recruitment and possibly indoctrination. The current prosecution of Dominik Ongwen in front of the International Criminal Court in The Hague gives way for an interesting academic debate on the desirability to use criminal law and to prosecute former child solders.
Keywords: Child soldier, criminal liability, victim, perpetrator, ICC, Ongwen
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