week 13-18

• Police


  A body of trained officers entrusted by a government with maintenance of public peace and order, enforcement of laws, and prevention and detection of crime
• Police powers


  • Search of a person or a dwelling
  • Seizure
  • Arrest
• Police powers are very intrusive. They bring the state's interest in the prosecution of crime at odds with the protection of individuals in society.
• The prevention and detection of crime is not the exclusive prerogative of national police authority.
• Police


  • They are agents of peace
  • Their function is reactive and rarely proactive
  • They respond to calls that include not only crime, but also altercations, emergency health matters etc.
• Human rights impacted by police powers

  • Right to be free from arbitrary arrest and detention
  • Right to privacy
  • Right to a fair trial
• Excessive use of police powers violates human rights and may lead to inadmissibility of collected evidence, charge dismissal or stay of proceedings, and award of compensation.
• Search


  Police pat-downs, police hunt through a person's home, phone wiretapping, electronic surveillance, collection of DNA samples
• Seizure


  The confiscation of evidence by the police. Evidence that is 'found' is not seized - evidence found abandoned in the trash is not 'seized'
• Reasonable search/seizure


  The search/seizure must be authorised by law, not arbitrary, and based on reasonable and probable grounds that an offence has been committed and that the evidence relating to that offence is likely to be found at the place to be searched
• Grant test of inadmissibility of illegally obtained evidence


  1. How serious was the breach of the Charter?

  2. What was the impact of the Charter breach on the interests of the accused?

  3. What is society's interest in a trial on the merits?
• A warrantless search or seizure is prima facie unreasonable and therefore a violation of Sec. 8, but it is permitted if there is explicit statutory or common law bases.
• Exigent circumstances


  Circumstances where the peace officer has reasonable grounds to suspect that entry is necessary to prevent imminent bodily harm or death, or to prevent the imminent loss or destruction of evidence
• Warrantless search and seizure common law

  • Incident to a lawful arrest
  • During an investigative detention
  • Upon informed consent
• International Criminal Law (ICL)

  A branch of public international law

  
• Where ICL fits in


  • Public International Law
  • Human Rights Law
  • International Criminal Law

  
• Sources of ICL


  Correspond to those of public international law, as per Article 38(1) of the ICJ Statute
• Sources of ICL as per Article 38(1) ICJ Statute

  • International conventions
  • International custom
  • General principles of law recognized by civilized nations
  • Judicial decisions and teachings of highly qualified publicists
• Where one finds the sources of public international law

  1. Treaties

  2. Customary international law

  3. General principles of law

  4. Subsidiary means (case law, scholars' writings)

  
• ICL


  • At the crossroads between different fields of law
• ICL existed prior to the 1990s
• First attempt to attribute criminal responsibility for international crimes, but failed due to enforcement issues

  World War I
• World War I: Commission's investigation and recommendations


  1. Investigate who was responsible for the outbreak of the war and whether there had been breaches of international humanitarian law

  2. Recommend prosecution of the most responsible (high officials, including the Kaiser)
• The Netherlands gave refuge to the Kaiser
• Nuremberg and Tokyo tribunals


  • First examples of international criminal courts
  • Established the principle of individual criminal responsibility for international crimes
• Defence arguments at Nuremberg: not legally established, applied retrospective criminal law
• International Tribunal for the Far East (MTFE) was in the shadow of the Nuremberg Tribunal and also fiercely criticized as an example of Victor's justice
• The 50 years between the Nuremberg and Tokyo tribunals and those for the former Yugoslavia and Rwanda represented a gestation period (and not a break) in the development of International Criminal Law
• Certain crimes (in this case genocide) give rise to universal criminal jurisdiction
• UN SC Resolution 827: ICTY

  1993
• UN SC Resolution 955: ICTR

  1994
• Rome Conference: ICC


  1998
• Nullum Crimen Sine Lege


  A person may only be convicted and punished for something that was a crime defined under law at the time the conduct occurred
• Nullum Crimen Sine Lege is part of the Rome Statute (Article 22)
• Nullum Crimen Sine Lege

  • Has two aspects: non-retroactivity of the law and clarity of the law
  • Critics on Nuremberg/Tokyo tribunals
• Nullum Poena Sine Lege

  Requires that there are defined penalties attached to criminal prohibitions
• Nullum Poena Sine Lege is part of the Rome Statute (Article 23)
• ICTY/ICTR have recourse to the general practice of sentencing of the former Yugoslavia/Rwanda (national system)
• Jurisdiction


  The law of power, the power of an entity to regulate persons or property
• Admissibility


  Reasons of judicial propriety on the basis of which a court should not decide a case (e.g. exhaustion of local remedies, monetary gold, abstract question in advisory proceedings, complementarity etc)