Parochial versus universal criminal law

Journal of International Criminal Justice

Volumn 3, Issue 1, 2005, Pages 20-34

  Fletcher, George P ^a  

^a Columbia University Law School ^*  (United States)

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EID: 27144522145     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/3.1.20     Document Type: Article

References (45)

1. Edward III, chapter 2, St. 5. The current version of the statute, enacted in the Treason Felony Act 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.
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.
5. 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, §2381, 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).
6. 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, clause 1.
7. Ibid.
8. 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 http://www.project-syndicate.org/commentaries/ commentary_text.php4?id=753&lang=1&m=contributor.
9. Preamble ICCSt.
10. Arts 6-9 ICCSt.
11. These are two of the more prominent crimes covered by Art. 7(1)(f) ICCSt. (systematic and wide-spread 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).
12. 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).
13. 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'.
14. Fourth Geneva Convention of 1949, relating to the Protection of the Civilian Population, Art. 146.
15. See my critique, 'Against Universal Jurisdiction', 1 Journal of International Criminal Justice (2003), at 580.
16. See A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 297.
17. Fourth Geneva Convention of 1949, Art. 146.
18. See Völkerstrafgesetzbuch (2002).
19. 18 USC, §1111(a).
20. Ibid., §1111(b).
21. Ibid.. §2332(b).
22. See SC Res. 827 (1993) establishing the International Criminal Tribunal for the former Yugoslavia under chapter VII of the UN Charter (measures to restore international peace and security).
23. Art. 17(1)(a) ICCSt.
24. See I. Kant, The Metaphysics of Morals (1797, reprinted by Cambridge University Press, Mary Gregor transl., 1991), 142.
25. 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.
26. 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.
27. See the deliberations leading to the federal trial of Lemrick Nelson for the murder of Yankel Rosenbaum in Fletcher, ibid., 86-102.
28. I admit some difficulties explaining the federal jurisdictional basis for the crime of murder discussed supra notes 17 and 18.
29. 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).
30. M. C. v. Bulgaria, ECHR, 4 March 2004.
31. X and Y v. the Netherlands, ECHR, 28 February 1985.
32. Ibid., §23.
33. A. v. UK, ECHR, 23 September 1998.
34. Ibid., §22.
35. M. C. v. Bulgaria, supra note 28, §149.
36. Ibid. (concurring opinion).
37. The leading case is DeShaney v. Winnebago County Department of Social Services, 489 US 189 (1989).
38. See M. Delmas-Marty (ed.), Corpus Juris (Paris: Economica,1997), Art. 1
39. G. Grasso and R. Sicurella (eds), Il Corpus Juris 2000: Un Modello di Tutela Penale dei Beni Giuridici Comunitari (Milan: Giuffrè, 2003, Art. 1.
40. Article 6 ICCSt.
41. The dangers are well articulated in G. Corstens and J. Pradel, European Criminal Law (Dordrecht: Kluwer, 2002), 509-511.
42. Article 30 ICCSt.
43. 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), 767.
44. Model Penal Code (1962), §2.02(2). This model code has shaped law reform in over 35 American states.
45. See Corpus Juris, supra note 36, Art. 11(2).