The International Criminal Court is aimed at ending the impunity of serious human rights violations and this role has been used as a response to criticisms raised against it. But what is it meant by impunity here? And is the Court fit to fight against it? In this paper I try to answer these questions by looking into our ideas of impunity and into the mechanisms through which courts of law fight against it. I argue that working at their best, courts of law contribute to ending impunity by applying the criminal law in such a way that it restores or enhances the experience of equality before the law whenever it is threatened by abuses of power or patterns of discrimination. As a consequence, punishment does not play a primary role in ending impunity. Instead, what is more crucial is sustaining equality and formal justice against privilege and brute power.
In balancing flexibility with foreseeability in criminal adjudication, two fundamental state duties (security and freedom) collide.
At first glance, the legality principle in criminal law requires maximum foreseeability but, also in order to optimize inter alia deterrence, effective criminal law and justice requires flexibility in the application of law. Domestic and international courts have to deal with this tension.
Separation of powers and the role of the judiciary are at the heart of the debate on adjudicative retroactivity. In this context, two techniques have been deployed to face the flexibility-foreseeability dilemma: prospective overruling and mistake of law.
This presentation questions how various courts within Europe, paying also attention to the European Court of Human Rights, view and manage the flexibility-foreseeability dilemma in the context of judicial retroactivity.