1. Crimes Against the Person
Dr. Eric Engle

2. Crimes Against the Person Overview
Jus Cogens Crimes
Non Jus Cogens Crimes

3. Crimes Against the Person
Crimes against the person in national law are generally treated much more seriously than crimes against property.
This is partly to avoid blood feuds: the monopolization of legal violence. If there were no courts then there would be feuds. That's expensive.
Property can be repaired. People are much tougher to repair.

4. Crimes Against the Person
Crimes against the person also are likelier to lead to private vengeance: blood feuds.
Effective criminals avoid crimes against the person.
This is why white collar crime exists and persists.
How best to punish the white collar criminal?

5. Crimes Against the Person Jus Cogens
Jus cogens are the non-derogable portions of customary international law.
Customary International Law =
Actual State Practice +
Sense of obligation (usages + opinio juris)
Jus cogens are obligations to the international system as a whole; similar to obligations erga omnes
US tends to use only jus cogens and not to use erga omnes!
EU courts sometimes still talk of obligations erga omnes
Erga omnes = Barcelona Traction

6. Obligations Erga Omnes
Barcelona Traction and Power case:
Pre-War universal obligations “erga omnes”.
“Restrictions on state sovereignty are not to be presumed”
Erga omnes are obligations of states to the system, not of individuals nor to individuals.
Post war: largely replaced by jus cogens. Can still find “erga omnes” term in EU but in USA they talk only of “jus cogens”. B ut Barcelona Traction is good law in the USA. You can cite that case as an authority.
Jus cogens is also obligations to the system but may be obligations of or to individuals!
Erga omnes is reflected in the Vienna Convention on the Law of Treaties. Codifes the customary ideas into lex.

7. Sidebar: Sources of Law
International case law, like in the civil law, is only persuasive evidence of the law, and not a source of law. It's non-binding precedent because each case only adjudicates the merits of that case.
This is not the common law view of case law!
General principles of law: are not a source of law in the common law, unlike in the civil law!
Works of legal scholars are at most persuasive in common law, can be a source of law in international law where the scholars all agree, otherwise international legal scholarship is only persuasive evidence of international law.

8. Jus Cogens Literally: The right of good conscience.
“How could you do this?”
Crime must be of concern not merely to each state but to the international system as a whole: “jointly AND severally”. The crime must somehow disturb international order, good relations between states threatening war.
What crimes are prohibited as jus cogens?

9. Jus Cogens Crimes: Pre-War
Piracy
Slave Trade
The pirate, the slaver, are out-law. They have no rights.
Any state may take them
anywhere on earth?
In practice yes!
Eichman, Argoud, various terrorists.
Certainly anywhere there is no effective government.
Practice: abductions.
If jus cogens then universal jurisdiction.

10. New Jus Cogens Crimes after 1945
Genocide – dolus specialis
War Crimes (soldiers versus soldiers)
Crimes Against Humanity
Anyone against Anyone
Dolus generalis?
Armenians unfortunately massacred inter-war.
“Aggression” (Angriffskrieg)
Ill-defined. Never since 1945.
Russia 1979? Bush 2006?

11. Jus Cogens: After 1945
After 1945 states no longer have a right to wage war against any other state at any time for any reason or no reason at all.
After 1945 annexation illegal under international law because it fosters war after war.
Those are post-war rules! Pre-war, states had the absolute right to go to war and could lawfully annex others' territory
Prohibition of war and annexation are not in my opinion jus cogens because the persons who violate them are states not individuals. Are better seen as erga omnes.

12. New Jus Cogens Crimes After 1990
Torture
ICTY ICTR mostly were able to use Nuremburg – few innovations.
ICC may bring new ideas.

13. Jus Cogens: After 2000? War-Time Rape (ICC) Child Soldiers?
Sex tourism?
Child pornography? (Kinderporn)
Terrorism?
Human trafficking?
Drug trafficking?

14. Summary: Jus cogens crimes
Piracy
Slave Trade
Genocide
War Crimes
Crimes Against Humanity
Torture
War-Time Rape

15. Some Common Law Crimes
Rape Robbery Murder Arson Assault Battery Mayhem
These have fairly exact corresponding crimes in civil law
Violation (not a crime)
Misdemeanor
Felony

16. Thank you for listening!
Any questions?