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Andrea CARCANO

Professore Associato
Dipartimento di Giurisprudenza

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Pubblicazioni

2023 - Upholding the Prohibition of Torture: The Practice of the European Court of Human Rights [Monografia/Trattato scientifico]
Carcano, Andrea; Scovazzi, Tullio
abstract

This volume deals with the right of any individual not to be subjected to torture. Although almost universally prohibited, torture still manifests itself in the conduct of several States around the world, including Member States of the Council of Europe. The European Court of Human Rights has, since its inception, entered numerous findings of torture. Mindful of the urgency of the effectiveness of the international legal prohibition of torture, this book examines and critically appraises the practice of the European Court on torture. Through the analysis of leading cases and the legal issues ensuing from them, the book explores the contribution of the European Court to the clarification of the applicable law, illustrating developments of legal significance, exploring some still contentious issues, and stressing the several achievements as well as some still questionable outcomes. The volume offers knowledge and analytical tools to students and researchers, but also to lawyers and practitioners as it collects in a single volume significant portions of jurisprudence distilled from what are often lengthy and detailed judgments, followed by a reflection on the legal issues arising in a specific case or common to a number of them.

2021 - Brevi riflessioni sulla Responsibility to Protect nel quadro del sistema di sicurezza collettiva delle Nazioni Unite [Articolo su rivista]
Carcano, Andrea
abstract

The responsibility to protect is a doctrine now entrenched in the theory and practice of the United Nations. To some extent this doctrine seeks to bypass the restraints placed on political and military interventions within foreign countries by the UN Charter and general international law. The claimed exception rests on the noble concern for the protection of the lives of individuals that are (or are at risk of) being victims of international crimes. Based on a review of the practice of the United Nations and of States, this paper suggests that the responsibility to protect doctrine has promised more than it has delivered. It argues that a critical rethinking of that doctrine, both as a political and a legal concept, is required in an increasingly multipolar and dystopian world.

2020 - Notable Cases of the European Court of Human Rights on the Right to Life [Monografia/Trattato scientifico]
Carcano, Andrea
abstract

Since its inception, the European Court of Human Rights has been at the forefront of the interpretative effort to clarify and develop human rights law in controversial factual and political contexts. Given this role, this book discusses some of the most important decisions the Court has issued on the right to life under Article 2 of the European Convention on Human Rights and includes a critical analysis of the judicial developments linked to those judgments. To students, the book offers an instructive resource on cases and international norms relating to the right to life. It achieves this through a methodology that prioritises reading primary sources, studying law in concreto by testing it against the facts to which it applies, and stimulating curiosity in the process of learning how to learn. To scholars and practitioners, it provides a tool to appraise the contribution of the Strasbourg jurisprudence to the human right to life and to identify the work that remains to be done.

2020 - On the Exercise of the Judicial Function at the International Criminal Court: Issues of Credibility and Structural Design [Articolo su rivista]
Carcano, Andrea
abstract

2020 - The Challenges of Populism: What Role for International Law Scholars? [Articolo su rivista]
Carcano, Andrea
abstract

Taking stock of the impact of economic and financial globalization on the growth of inequality within nations and the connected articulation of a variety of new political demands, this paper reflects on the significance of populist claims from an international law perspective. It identifies three challenges that populism poses to international lawyers and human rights activists. The first challenge concerns the threat to liberal democracy, charged with being unable to protect the interests and rights of the ‘real people’, as opposed to those of the elites. The second is the challenge to economic globalisation itself and the inequalities that it has brought about with all the ensuing consequences from a human rights perspective. The third may be defined as the challenge of ‘national populism’, which targets the international liberal order in the name of a parochial version of national sovereignty. It argues that the complexity of these challenges poses not only practical but also theoretical problems concerning, inter alia, the philosophy of international law and the function of international lawyers in the twenty-first century.

2019 - On the Governance of International Judicial Institutions: The Development of Performance Indicators for the International Criminal Court [Articolo su rivista]
Carcano, Andrea
abstract

This article reviews the recent effort of the Assembly of States Parties to the Rome Statute (asp) to measure the performance of the International Criminal Court (ICC) through the identification of goals and performance indicators. Upon an analysis of the various performance indicators reports prepared by the icc and pertinent scholarly contributions, it offers a critical review of the asp’s endeavour. While appreciating the usefulness of the large amount of information collected by the ICC in the said reports, it argues that the turn to managerialism brought about by the asp’s endeavour, while laudable in many respects, may constitute an encroachment on the exercise of the judicial function if not properly handled through a closer coordination with the goals set in the ICC Statute. It may, in fact, amount to ‘micromanagement’ with the consequence of diverting the asp’s attention from the more pressing task of developing—20 years after the signing of the Rome Statute—an innovative vision of the ICC’s role for the next (20) years.

2018 - Uses and possible misuses of a Comparative International Law approach [Articolo su rivista]
Carcano, Andrea
abstract

Should international lawyers embrace the Comparative International Law project (CIL)? One can readily with the noble aspiration to renew international law and to deal more effectively with the challenges of our times and on the need to engagein a more constructive and effective communication among international lawyers of different origins and backgrounds. Still, the complexity and the breadth of the CIL project as both a legal and a political tool commands a more nuanced response. To this end, this paper is divided in three parts. First, it illustrates the theoretical and factual basis underlying the CIL project. Second, it provides an overview of the function(s) that comparative law currently plays in different branches of public international law and asks in what way a more robust turn to comparative law than is currently in place may enrich international law. Third, it reflects on the relationship between the CIL approach and the existing system of international law as a set of primary and secondary rules.

2017 - Of efficiency and fairness in the administration of international justice: Can the Residual Mechanism provide adequately reasoned judgments? [Articolo su rivista]
Carcano, Andrea
abstract

This paper discusses some of the structural and procedural innovations that the Security Council introduced in the Statute of the International Residual Mechanism for Criminal Tribunals (Mechanism)[1] and reflects on how some of these developments impact on the exercise of the Mechanism’s judicial function. These innovations constitute a unicum in the field of international criminal justice. At a micro-level, they bring about a shift in the modalities through which the judges of the Mechanism shall exercise the judicial function in respect of their colleagues at the ad hoc Tribunals. At a macro-level, they provide an opportunity to reflect on the kind of judicial institutions that should be devised in future in order to combat impunity in a fair and efficient manner

2016 - Of Fragmentation and Precedents in International Criminal Law: Possible Lessons from Recent Jurisprudence on Aiding and Abetting Liability [Articolo su rivista]
Carcano, Andrea
abstract

After discussing the notion of ‘fragmentation’ and the value of using the metaphor in the context of ICL, the author turns to substantive criminal law to try and determine the correct actus reus of aiding and abetting liability in contemporary ICL, and to ask whether ‘specific direction’ has any role to play therein. He then addresses the more general problem of determining the role of coherence and consistency in the development of ICL, the function of precedents within and across international courts and tribunals, and the evolving role and function of customary international law in contemporary ICL to draw lessons for the International Criminal Court.

2015 - The Transformation of Occupied Territory in International Law [Monografia/Trattato scientifico]
Carcano, Andrea
abstract

This volume discusses the practice of transformative military occupation from the perspective of public international law through the prism of the occupation of Iraq and other cases of historical significance. It seeks to assess how international law should respond to measures undertaken in the pursuit of a given transformative project, whether or not supported by the Security Council. A monographic study tackling the bulk of the international law issues that emerge during and as a result of a transformative occupation, based on a comprehensive analysis of historical cases, applicable norms, and relevant facts.

2014 - On the Relationship between International Humanitarian Law and Human Rights Law in Times of Belligerent Occupation: Not Yet a Coherent Framework [Capitolo/Saggio]
Carcano, Andrea
abstract

This contribution analyses the relationship between the law of belligerent occupation and its relationship with IHRL. After first illustrating the legal basis on which one can argue that a state is required to comply with IHRL in the territory it happens to occupy, the chapter explores the extent to which IHRL has impacted on the authorities, responsibilities, and duties of an occupying power as framed by the law of occupation. It further examines the implications of the law of occupation as lex specialis for the applicability of IHRL during occupation, as well as whether adherence to IHRL standards could augment the normative powers of the occupying power.

2013 - International, Corporate, and Individual Responsibility for Conducts of Private Military and Security Companies [Capitolo/Saggio]
Carcano, Andrea
abstract

2013 - The Criminalisation and Prosecution of Attacks Against Cultural Property: from the ICTY to the ECCC via the Rome Statute and the 1999 Second Protocol [Capitolo/Saggio]
Carcano, Andrea
abstract

2013 - The Practice of International Courts and Tribunals on Armed Forces: Issues of Status and Attribution [Capitolo/Saggio]
Carcano, Andrea
abstract

2013 - The criminalization and prosecution of attacks against cultural property [Capitolo/Saggio]
Carcano, A.
abstract

2010 - Sul rapporto fra diritto all’autodeterminazione dei popoli e secessione in margine al parere della Corte internazionale di giustizia riguardante il Kosovo [Articolo su rivista]
Carcano, Andrea
abstract

2010 - The Relationship between the Decisions of the International Criminal Tribunals and the International Court of Justice: Dialogue or Conflict? [Articolo su rivista]
Carcano, Andrea
abstract

2009 - L'occupazione dell'Iraq nel diritto internazionale [Monografia/Trattato scientifico]
Carcano, Andrea
abstract

2009 - The Right to Self-Determination of the Iraqi People in the Practice of the Security Council Concerning the Occupation of Iraq’ [Capitolo/Saggio]
Carcano, Andrea
abstract

2008 - Riflessioni a margine di un processo mai terminato: il caso Milošević e la sua rilevanza per la giustizia penale internazionale [Capitolo/Saggio]
Carcano, Andrea
abstract

2006 - End of the Occupation in 2004? The Status of the Multinational Force in Iraq after the June 2004 Transfer of Sovereignty to the Interim Iraqi Government [Articolo su rivista]
Carcano, Andrea
abstract

2006 - End of the occupation in 2004? The status of the multinational force in Iraq after the transfer of sovereignty to the Interim Iraqi Government [Articolo su rivista]
Carcano, A.
abstract

The situation in Iraq, in the period between the end of the Coalition Provisional Authority's (CPA) occupation of Iraq and the constitution of the Interim Government presided over by Prime Minister Allawi in June 2004 and the general elections held at the end of January 2005, was subject to Security Council Resolution 1546 as well as, of course, to the applicable provisions of international law. Resolution 1546, inter alia, endorses the formation of the Interim Government, recognises the Interim Government as sovereign and authorises, on the basis of the invitation by the Interim Government the continued presence in Iraq of the Multinational Force, an approximately 140,000 troop American led-army, and regulates its relationships with the other actors in the Iraqi crisis such as the United Nations Assistance Mission for Iraq (UNAMI). When the rather grim reality of the situation in Iraq as presented in the media is compared with the project and ambitions characterising Resolution 1546, questions arise. How did Resolution 1546 impact on the reality in Iraq? What is the exact legal status of the Multinational Force after Resolution 1546? What are the legal relationships between the Multinational Force and the other actors in the Iraqi crisis? The article questions, inter alia, the domestic legitimacy of the Interim Iraqi Government and the validity of the invitation it issued to the Multinational Force. It further argues that, if the invitation is not valid under general international law as being issued by a government that has been externally appointed, the Multinational Force should still be regarded as an occupation force. © 2006 Oxford University Press.

2005 - The ICTY Appeals Chamber’s Nikolić Decision on Legality of Arrest: Can an International Criminal Court Assert Jurisdiction over Illegally Seized Offenders? [Articolo su rivista]
Carcano, Andrea
abstract

2004 - Requests for Review in the Practice of the Ad Hoc International Tribunals’, Leiden Journal of International Law [Abstract in Rivista]
Carcano, Andrea
abstract

2004 - Requests for Review in the Practice of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda [Articolo su rivista]
Carcano, A.
abstract

This article is concerned with the remedy of ‘review’ provided for in the Statutes of the International Criminal Tribunal for the former Yugoslavia and for Rwanda, in Articles 26 and 25 respectively, which allows a convicted individual or the prosecution to seek the reopening of a case on the basis of a new fact. The main purpose of this article is to provide a comprehensive overview of how this remedy has been applied by the chambers of the ICTY and the ICTR. It focuses first on the relevant provisions set out in the Statutes and in the Rules of Procedure and Evidence of the two tribunals, and then reviews a range of international and national provisions. The latter examination clarifies the concept of review adopted, and reveals the interplay between international and national provisions. It also shows that the remedy of review can be seen as one application of the general principle of law that a convicted individual must have the right to seek the reopening of his or her case on the basis of a new fact, which may show his or her innocence, even after a considerable lapse of time. This article then examines the decisions rendered so far by the ICTY and the ICTR. It considers the factual context of each case and discusses how the applicable law has been interpreted and refined by the judges of the ICTY and ICTR appeals chambers. In conclusion, some suggestions are advanced as to how the pertinent Rules of Procedure and Evidence could be made clearer and perhaps fairer, in the light of the experience gained from the practice of the two tribunals and the provisions of the Statute of the International Criminal Court. © 2004, Foundation of the Leiden Journal of International Law. All rights reserved.

2004 - The International Criminal Tribunal for the Former Yugoslavia: Activities in 2003 [Articolo su rivista]
Carcano, Andrea
abstract

2002 - Sentencing and the Gravity of the Offence in International Criminal Law’ [Articolo su rivista]
Carcano, Andrea
abstract