Legality, Culpability and Dogmatik: A Dialogue between the ECtHR, Comparative and International Criminal Law

Abstract

This article aims to analyse a peculiar interplay between the case-law of the European Court of Human Rights (ECtHR), comparative and international criminal law. The discussion focuses on legality, foreseeability of the criminal nature of conduct, knowledge of a fact’s wrongfulness and mistakes of law. Starting from foreseeability as a constitutive element of legality in the ECtHR case-law, the author examines ‘knowability’ of a fact’s wrongfulness as a component of the Continental law Dogmatik category of culpability, the issue of ignorance in common law and the general interaction between the principles of legality and culpability. With regard to the International Criminal Court, there is a problematic need to establish a personal mental link between an individual’s actions and the system criminalising such action. In this context, the issue of foreseeability as applied to modes of liability has proven to be problematic. The upshot is this paper’s appeal for a truly international criminal Dogmatik.