14 set 2008

Discussing with Prof. Emilio Viano: International Criminal Justice in the Age of Globalization

As you know, I am for 3 months at the Washington College of Law, American University.
Special thanks to Prof. Viano, who sponsored my research period and helps me every day.
He authorized me to publish some works, or some issues/topics on which we discussed.

WHO IS PROF. VIANO?

EMILIO VIANO
, Ph.D., LLM, specializes in human rights, criminology, and victimology at American University and serves as an adjunct professor at the Washington College of Law. He is a frequent commentator on the BBC, CNN, and Voice of America and lectures throughout the world.
A pioneer in the field of victimology, victims rights, and an expert in the field of transnational crime, Professor Viano is recognized internationally for his contributions to justice and human rights. He has authored countless articles and books, the most recent on trnasnational crime. Recent titles include Intimate Violence: Interdisciplinary Perspectives, Critical Issues in Victimology, Crime and Its Victims, and The Victimology Handbook. Viano is also widely published in such journals as Communications and the Law, the Journal of Behavioral and Social Sciences, and Studies on Crime and Crime Prevention.
(From AU website)

EMILIO VIANO es profesor de Justicia, Leyes y Sociedad en la Escuela de Asuntos Públicos de la Universidad Americana de Washington, Estados Unidos, donde investiga justicia penal internacional, ley criminal comparativa y victimología.
Obtuvo su doctorado de la Universidad de Nueva York, EE. UU. y una maestría en Leyes de la Universidad de Leicester, Reino Unido.

El Dr. Viano brinda asesoría experta a la Sección de Prevención de Delitos de Naciones Unidas, al Directorio de Asuntos Legales del Consejo Europeo y al Centro Internacional de Ciencias Penales de París, Francia.

Investiga, además, el terrorismo internacional, el crimen organizado transnacional y asuntos relacionados con las víctimas de violencia.

Emilio Viano es una autoridad en reformas de la legislación penal, prevención internacional del delito y tendencias penales en Europa y América Latina.

Es autor de varios artículos y libros, incluyendo Crimen organizado transnacional: mito, poder y utilidades. También ha recibido varios premios internacionales.

(From BBC News)

International Criminal Justice in the Age of Globalization

First part


By Prof. Emilio Viano, Washington College of Law, American University

The pursuit of international criminal justice has become part of the international legal system through an evolutionary process. It began with the emergence, convergence and coalescence of humanistic values in different civilizations which, along with the interests of states, has produced a synthesis of goals and policies among different national criminal justice systems and their international counterparts. That process has also included the development of international norms prohibiting certain conduct like the criminalization of genocide, crimes against humanity, and war crimes, among the most serious crimes.

The emergence of international criminal law norms has necessarily led to the need to enforce them, both as a means of upholding the values transgressed by the violation and also because of policy considerations believed to enhance compliance and reinforce deterrence.

The need to enforce these norms required the creation of institutions. This led to the establishment of ad hoc international investigatory bodies, ad hoc international criminal tribunals and of the International Criminal Court. As the enforcement processes developed, they contributed to the evolution of the norms that they applied. An interaction developed between international law norm-making and jurisprudential development of norm application, giving both impetus and vigor to the norm-developing process, as well as to the development of enforcement institutions and structures.

The enforcement of international criminal law norms requires sanctions against the actors who perpetrate the crimes or who generate the policies that bring about the commission of the crimes. The international legal system chose to direct its sanctions against individuals on the assumption that individual criminal responsibility is a more effective general deterrent. Thus the framework of the international legal system had to expand to accommodate the larger role of individuals as subjects of that system. Thus, it had to turn to the experience of national legal systems to borrow from their institutions of criminal justice. International investigatory, prosecutorial, and adjudicating bodies and processes were modeled after national criminal justice systems, often blending the diversity represented in the families of the world’s major criminal justice systems.

The borrowing process necessarily included the method by which norms are formulated and sanctions are attached to them. The borrowing of sanctions from national legal experiences was relatively simple with respect to contemporary national legal systems in which penalties include the death penalty, imprisonment, fines, confiscations, limitations on civil and political rights as a consequence of conviction, and, in some countries, corporal punishment. With the exception of the latter, practiced in some Muslim states, and the death penalty, now abolished in over half the countries in the world, the other penalties are recognized and applied in all legal systems in the world.

The infliction of death as a punishment has been criticized and rejected by many because of its barbaric nature and the lack of regard given to the interests of the offender. Moreover, some scholars argue that such brutal punishment impedes the moral development of societies that resort to capital punishment while simultaneously undermining the moralizing effect of punishment. In contrast, others ask how can the death penalty be ignored for crimes in which at times so many are killed (e.g., serial killers, genocide, ethnic cleansing, violations of the law of war, the holocaust…)?

Generally, international and regional human rights instruments abolish the death penalty. It has been excluded as punishment from the statutes of the International Criminal Court, the International Criminal Tribunal for the ex-Yugoslavia and that for Rwanda.

The question with respect to punishment in the international criminal justice system is, therefore, not so much what penalties to apply (excluding the death penalty and corporal punishment); rather, it is a question founded on the philosophical and policy basis and goals of punishment for international crimes.

The international criminal justice system consists of international and national criminal justice institutions which collectively undertake to enforce international criminal law norms. Ideally, it would function as a networking system whose cooperating units need to have:

1) uniform or substantially similar substantive legal norms

2) similar norms and procedures on international cooperation in penal matters applicable to international and national legal institutions

3) harmonized penalties for international crimes (whether before international or national institutions)

4) harmonized due process norms applicable to international and national processes.


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