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Abstract:
This brief essay, written for the Criminal Law Conversations Project, examines whether one can justifiably kill a faultless, insane assailant to save oneself or another from imminent and serious harm. Although scholars on both sides of the Atlantic agree that the person attacked should not be punished for defending herself from the psychotic aggressor, there is significant disagreement with regards to whether the defensive response should be considered justified or merely excused. Furthermore, amongst those who argue that the appropriate defense in such cases is a justification, there is disagreement regarding whether the specific ground of acquittal should be self-defense or necessity.

These issues are explored in three parts. Part I discusses the facts that give rise to the problem of the psychotic aggressor and summarizes the basic questions posed by the case. Part II surveys and rejects five theories that would lead to acquitting the victim of the attack if he were tried for killing the psychotic aggressor. Part III advances an autonomy-based conception of self-defense that would justify the victim's use of force against the insane assailant and would allow third-party intervention in favor of the defending party. According to this theory, the roots of the right to use defensive force are not in the culpability of the aggressor, but in the wrongful invasion of the autonomy of the defender. Given that the psychotic assailant's attack amounts to an unjustifiable attack on the victim's autonomy, the victim's reciprocal obligation to show consideration for the psychotic aggressor's autonomy weakens. As a result, the law affords him a right to use whatever force is necessary to repel the unlawful attack. The fact that the psychotic actor would be acquitted on grounds of insanity if he were tried for his aggression is beside the point, for excuses such as insanity do not negate the wrongfulness of the act. Our right to be free from unlawful interferences with our person should not be compromised merely because the threat to our autonomy originates in the acts of an inculpable person. In such a confrontation on the street, the aggressor loses the protections that he would get during a trial, that is, the right to plead excuses such as insanity or duress.

self-defense, justification, psychotic aggressor, wrongfulness, excuse, aggression, defensive force, necessity, passive necessity, defensive necessity

Abstract:
This paper takes two legislative developments in the English-speaking world - the precedent of statutory criminalization of treason in England, and the establishment of federal criminal law in the United States - 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.

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Abstract:
The authors consider the recent operation of the International Criminal Court (ICC), its system of funding and the jurisdictional challenges facing the Court's Prosecutor. These challenges require an in-depth analysis of the Rome Statute's funding scheme and its provisions on complementarity. A close reading of the Statute indicates that both of these areas operate in an entirely different manner when a case is referred to the Court by the Security Council, and even suggests the startling possibility that these referrals relieve the Court of the usual constraints of complementary jurisdiction. The authors therefore conclude that the ICC is best viewed as two separate courts: an independent criminal court enacted by the parties of the Rome Statute but, in the case of referrals by the Security Council under Article 13(b) of the Statute, an organ for restoring collective peace and security that transcends the classic goals of criminal law to adjudicate individual guilt.

Abstract:
According to the authors, the Report of the UN Commission of Inquiry on Darfur and the Security Council referral of the situation in Darfur to the International Criminal Court (ICC) bring to light two serious deficiencies of the ICC Statute and, more generally, international criminal law: (i) the systematic ambiguity between collective responsibility (i.e. the responsibility of the whole state) and criminal liability of individuals, on which current international criminal law is grounded, and (ii) the failure of the ICC Statute fully to comply with the principle of legality. The first deficiency is illustrated by highlighting the notions of genocide and genocidal intent, as well as that of joint criminal enterprise. The second is exposed by drawing attention to the uncertainties and ambiguities surrounding such notions as recklessness and dolus eventualis, and in addition to the frequent reliance in both international case law and the legal literature on customary international law and loose concepts such as proportionality. The authors finally point out that if the ICC tries to operate as a real criminal court under the rule of law and shows sensitivity to the rights and interests of the accused, US fears of politicized prosecution will diminish.

Abstract:
In the Hamdan decision, Judge Stevens, writing for the majority, addressed the boundaries of the law of war and specifically whether the conspiracy charge lodged against Hamdan constituted a violation of this body of customary international law. The Supreme Court persuasively held that conspiracy does not constitute a war crime.

Abstract:
As the concept of terrorism fulfils multiple functions, the better way to think of terrorism is not as a crime but as a different dimension of crime, a higher, more dangerous version of crime, a kind of super-crime incorporating some of the characteristics of warfare. There are at least eight primary factors that bear on terrorism: the factor of violence; the required intention; the nature of the victims; the connection of the offender to the state; the justice and motive of their cause; the level of organization; the element of theatre; and the absence of guilt. However, one cannot draw from these variables a simple (or indeed even a complex) definition of terrorism. The reason is that not all the factors apply all the time. Any proposed definition produces counterexamples. The way to think about terrorism is, therefore, to become aware of all the relevant factors but not to expect that they will all be fulfilled in any particular case. The specific cases of terrorism are related the way the members of a family are related. Most, but not all, might have the same eye shape. Others might have hair colour or the shape of their nose in common; still others might be tall or short. One should try to picture a series of overlapping sets in which no set intersects with all the others. That is the way our intuitions of terrorism operate.

Abstract:
The Military Commissions Act 2006 seems to have a much broader application than the 2003 Military Commission Instruction Number 2, or MCI2. None of the 28 specific crimes listed in § 950v(b) of the 2006 Act mentions a nexus with armed conflict. This Act raises a number of questions. In particular three issues are relevant: (i) Congress intended to act under its constitutional power to define offenses against the law of nations. In so far as some of these offences are not violations of the law of nations, they fall outside the field of legislative competence; (ii) the Military Commissions are given excessive discretion in the field of sentencing. There are no terms of imprisonment provided. In many cases the death penalty is allowed. Otherwise the Commissions may impose any sentence they wish. This degree of discretion arguably violates the Eighth Amendment against cruel and unusual punishment ; (iii) there might be a violation of the principle of equal protection: is it constitutional to impose a special regime on suspects simply because they are aliens ?

Abstract:
This Essay argues that the principle of equality under law is best grounded in a holistic view of human dignity. Rejecting modern attempts to justify equality by reducing humanity to a particular factual characteristic, it articulates a religious imperative to treat people equally by drawing on biblical as well as modern philosophical sources. The principle "all men are created equal," as celebrated in the Declaration of Independence and Gettysburg Address, draws on this holistic understanding of humanity. This admittedly romantic approach to equality generates a critique of contemporary Supreme Court doctrine, including the prevailing approaches to strict scrutiny, affirmative action, and wealth discrimination.