The Milanković Case: Do Convictions Based on Rules of Customary International Law Violate Article 7 of the Convention?

Summary, in English

In the Milanković judgment, the First Section of the European Court of Human Rights was called upon to assess whether the applicant’s criminal convictions based on the doctrine of command responsibility violated the principle of legality laid down in art. 7 of the European Convention on Human Rights. The Court answered in the negative, finding itself in line with the jurisprudence of the ad hoc criminal tribunals, which had repeatedly emphasised the customary nature of the doctrine of command responsibility, regardless of both the type of conflict during which the alleged crimes were committed and the military or civilian status of the superior. As a guarantor of fundamental human rights, the Court therefore concluded that criminal convictions based on the doctrine of command responsibility, and thus on a rule of customary international law, should not be considered in violation of the principle of legality, provided that this rule was accessible and foreseeable by the accused at the time of the crime, as in the Milanković case. The legal reasoning followed by the Court to reach this conclusion is examined in this article, which also reflects on the Court’s role in harmonising and consolidating principles of international law.

• Author: Nicole Citeroni
• Department/s: Department of Law
• Publishing year: 2022
• Language: English
• Pages: 387-401
• Publication/Series: Quaderni di SIDI Blog
• Volume: 9
• Links: https://editorialescientifica.it/prodotto/quaderni-di-sidi-blog-fasc-2021-9/
• Document type: Journal article
• Publisher: Editoriale Scientifica
• Topic: Law
• Keywords: Command responsibility; war crimes; customary international law; principle of legality; foreseeability; accessibility; Mänskliga rättigheter
• Status: Published
• ISBN/ISSN/Other: ISSN: 2465-0927