The joint trial of Germain Katanga and Mathieu Ngudjolo fell apart soon after closing arguments. Faced with insufficient evidence for convicting the pair as joint “masterminds” of a single ethnic-motivated attack against civilians, the Trial Chamber acquitted Ngudjolo but undertook to reconfigure the trial with a new theory about Katanga’s mode of liability. The military structure posited by the Prosecutor (taken from NGO reports) came under careful scrutiny, as it appeared that neither Katanga nor Ngudjolo matched the profile of the mastermind commander. Acting in striking independence of the Prosecution, two of the three trial judges found Katanga guilty under an improvised theory of criminal responsibility, based in part on questions put to Katanga during his testimony by the Presiding Judge. Although Katanga’s conviction and twelve-year sentence were not appealed, there was a powerful dissent by the third trial judge, clarifying some central controversies of the case. More controversy surrounded a later appeal of the Ngudjolo acquittal, which was upheld by a split judicial panel.

If evidential legal reasoning is probabilistic, and rational certainty about a factual hypothesis is unattainable, then we need rules, called “standards of proof”, to determine the degree of probability required to be able to deem the assumption as proven. Only if we have standards of proof that indicate evidential thresholds will we be able to use other decision-making rules, such as burdens of proof or presumptions. Indeed, the purpose of burden of proof rules is to determine who loses the case if there is insufficient evidence of any of the hypotheses at issue. However, to apply these rules we need to know when the evidence is sufficient. The same is true of rebuttable presumptions, which require that a hypothesis be admitted in court (and used in the reasoning) in the absence of (sufficient) proof to the contrary. Therefore, for example, the presumption of innocence as a procedural rule means that defendants must be found innocent unless there is sufficient proof of their guilt. But when is the proof of a defendant’s guilt sufficient? Once again, implementing the presumption of innocence (like any other rebuttable presumption) presupposes the existence of a rule that establishes the evidentiary threshold.

This chapter contemplates the possibility of enforcing the responsibility of individuals with regard to violations of the principles of lawful targeting. It foregoes re-stating the general principles that govern the individual responsibility for war crimes, in favour of strictly addressing the responsibility for unlawful attacks during armed conflict. Two issues are discussed separately. The first one is the norms that criminalize attacks against persons not directly involved in hostilities and against civilian objects. It is verified whether each violation of IHL as regards targeting results in criminal responsibility. The second issue is responsibility strictly for the participation in hostilities, because in several states there have been attempts to criminalize this as a type of war crime. Moreover, punishability of such participation offers a good illustration of the differences in treatment of those on the state and the non-state side of armed conflict.

Technological progress could constitute a huge benefit for law enforcement: greater efficiency, effectiveness and speed of operations as well as more precise risk analyses, including the discovery of unexpected correlations, which could feed nourish profiles. A number of new tools entail new scenarios for information gathering, as well as the monitoring, profiling and prediction of individual behaviours, thus allegedly facilitating crime prevention: algorithms, artificial intelligence, machine learning and data mining. Law enforcement authorities have already embraced the assumed benefits of big data. However, there is a great need for an in-depth debate about the appropriateness of using algorithms in machine-learning techniques in criminal justice, assessing how the substance of legal protection may be weakened. Given that big data, automation and artificial intelligence remain largely under-regulated, the extent to which data-driven surveillance societies could erode core criminal law principles such as reasonable suspicion and the presumption of innocence, ultimately depends on the design of the surveillance infrastructures. This contribution first addresses the so-called rise of the algorithmic society and the use of automated technologies in criminal justice to assess whether and how the gathering, analysis and deployment of big data are changing law enforcement activities. It then examines the actual or potential transformation of core principles of criminal law and whether the substance of legal protection may be weakened in a ‘data-driven society’.

The need to make progress in the harmonisation of the rights of suspects and accused persons in criminal proceedings has become essential for the appropriate functioning of the principle of mutual recognition, laid down in Article 82 TFEU as the basis of judicial cooperation in criminal matters. This principle is founded on mutual confidence between the judicial authorities of Member States, according to which national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter. Among these fundamental rights, the EU had to establish a common core of minimum standards protecting rights of suspects and accused persons in criminal proceedings. To this end and to implement the Stockholm Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, six directives have been adopted. They represent a reference point for procedural guarantees and should be regarded as an integral part of the protection afforded by Article 48(2) of the Charter. This chapter analyses the six directives, including the consequences of their adoption by EU institutions, the possible shortcomings experienced during their implementation in Member States, and the difficulties involved in their application by judicial authorities.

This is the introductory chapter to the edited collection on 'Data-Driven Personalisation in Markets, Politics and Law' (Cambridge University Press, 2021) that explores the emergent pervasive phenomenon of algorithmic prediction of human preferences, responses and likely behaviours in numerous social domains – ranging from personalised advertising and political microtargeting to precision medicine, personalised pricing and predictive policing and sentencing. This chapter reflects on such human-focused use of predictive technology, first, by situating it within a general framework of profiling and defends data-driven individual and group profiling against some critiques of stereotyping, on the basis that our cognition of the external environment is necessarily reliant on relevant abstractions or non-universal generalisations. The second set of reflections centres around the philosophical tradition of empiricism as a basis of knowledge or truth production, and uses this tradition to critique data-driven profiling and personalisation practices in its numerous manifestations.

The joint trial of Germain Katanga and Mathieu Ngudjolo fell apart soon after closing arguments. Faced with insufficient evidence for convicting the pair as joint “masterminds” of a single ethnic-motivated attack against civilians, the Trial Chamber acquitted Ngudjolo but undertook to reconfigure the trial with a new theory about Katanga’s mode of liability. The military structure posited by the Prosecutor (taken from NGO reports) came under careful scrutiny, as it appeared that neither Katanga nor Ngudjolo matched the profile of the mastermind commander. Acting in striking independence of the Prosecution, two of the three trial judges found Katanga guilty under an improvised theory of criminal responsibility, based in part on questions put to Katanga during his testimony by the Presiding Judge. Although Katanga’s conviction and twelve-year sentence were not appealed, there was a powerful dissent by the third trial judge, clarifying some central controversies of the case. More controversy surrounded a later appeal of the Ngudjolo acquittal, which was upheld by a split judicial panel.

The primary source of law before the Court is the Statute itself and the principal subsidiary instruments, the Elements of Crimes and the Rules of Procedure and Evidence. The Court may also refer to relevant rules of international law, notably those of international humanitarian law and international human rights law. Article 25 of the Statute sets out the various forms of participation in crimes starting with direct perpetration but also including ordering and forms of complicity and attempt. Article 28 defines so-called command or superior responsibility, by which an individual may be held responsible for crimes perpetrated by subordinates. The Court cannot prosecute an individual who was under 18 at the time of the crime. Statutory limitation of crimes within the Court’s jurisdiction is prohibited. There is a presumption that all crimes subject to the Court’s jurisdiction require proof of intent and knowledge. Several defences are codified: diminished mental capacity, voluntary intoxication, self-defence, duress and necessity, mistake of law and mistake of fact and, under limited circumstances, superior orders.

The previous chapter has presented the general proof rules of causation in competition damages actions. These standard rules burden the claimant with the proof of the essential elements of a tort, including causation. However, the claimant may find it very difficult if not impossible to prove causation, especially when information is limited or is not accessible. As observed in Chapter 5, the standard proof rules place the risk for the proof of the claim and the risk of error due to evidential uncertainty on the claimant. The rules allocating this risk are mainly the result of policy-based decisions aiming at distributing the risk fairly between the parties based on a moral statement. However, on the basis of equally justifiable policy and moral choices, it is possible to create exceptions to this rule in two cases: (1) when the information is readily available to the other party and (2) when it is fair, according to the type of responsibility, to allocate the risk differently.

This chapter provides a general picture of the criminal justice system in Hong Kong. It highlights the roles and powers of key criminal justice agencies including the Hong Kong Police Force (HKPF), the Independent Commission Against Corruption (ICAC) and the prosecution. It includes discussion of police powers and prosecutorial decision-making. This chapter also goes through the criminal procedure, drawing attention to key decision points such as bail, court venue, the plea and the standard of proof. It concludes by looking at the various sentencing options at the court’s disposal.

When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III);1

Since its independence from the Soviet Union in 1991, Kazakhstan has been led by President Nursultan Nazarbayev, a Soviet-era politician who has remained in the position by concentrating all political power in his office.1 No election in the post-Soviet republic has ever met international standards; in March 2015, Nazarbayev won reelection with 95 percent of the vote in a snap election widely panned by the international community.2 Beyond the complete absence of free and fair elections, the current Government prohibits citizens from enjoying their rights to freedom of expression, assembly, association, and religion. In the past few years, there have been major crackdowns on newspapers, which are the only source of independent news in the country, and many of the country’s prisons are filled with detainees serving sentences for peacefully assembling without a permit. Of particular concern to many states and international organizations is the pervasive use of torture in state-run detention centers.