More recently, the Extraordinary Chambers of the Courts of Cambodia (ECCC) considered NCSL`s application in case 002. The court stated that a crime alleged against the ECCC must have existed at the time it was committed under national, international or customary law. IENG Sary case, decision on IENG Sary`s appeal against the closure order, 11 April 2011. The Pre-Trial Chamber ruled that the accused could be tried for crimes of genocide and crimes against humanity because they were part of customary international law in 1975 and because Cambodia was bound by the Geneva Conventions to which it had acceded at the time and was therefore obliged not to commit serious violations of that Convention. The latter assertion is disputed by those who believe that the distinction between offence and defence is essential. These authors admit that crimes and defences are subject to different procedural rules. They argue that the distinction between offences and defences explains why those rules differ. Perhaps the best-known version of this view runs as follows. The elements of the offence are individually necessary and, taken together, sufficient to describe an act for which there is a general reason not to perform it. Defensive elements block the transition from the existence of this reason to the conclusion that (D) should be convicted of a crime. From this perspective, whether we should consider lack of consent as part of the criminal offence of sexual assault depends on whether we believe there is a general reason for not having consensual sex with others.

If there is no such reason, the lack of consent is necessary to give us an action that we do not need to take for a general reason. It is therefore an element of the criminal offence of sexual assault. If, on the other hand, there is a general reason for not having consensual sex, consent is rightly considered a defence to sexual assault (Campbell, 1987; Gardner, 2007, pp. 144-149). According to Suárez, the punishment of conscience is the recognition of an obligation to act in accordance with human nature in order to reverse a past misdeed. [10] This idea requires impossible action due to the fact that the harm is in the past and therefore immutable. Therefore, in accordance with the synderesis, conscientia undertakes to perform an impossible act. [11] Therefore, consciousness restricts conscientious people by restricting their own will.

[12] Because they are not able to think of any action other than fulfilling their obligation. To the extent that conscientia restricts the intellect, scholasticism speaks of it as malum or malum metaphysicum,[13] because restriction is related to a metaphysical property of a person. The law consists of human nature itself from what is added to the malum metaphysicum. Therefore, the punishment of conscience for a violation of natural law is executed. [14] Guilt, as this term is used here, is a moral notion. This amounts to moral culpability or moral blame. Mens rea is not enough for guilt – even intentional murder is sometimes excused. But it may well be necessary – guilt may presuppose at least one element of mens rea (Simester 2013; cf. Gardner 2007, 227-232). If so, the debate shifts to whether we should accept (C). One of the concerns of this principle is its universality.

The consequences of criminal responsibility are not always particularly severe. And the benefit of culpable liability can be particularly important. To give just one example, think of the regulations that govern the activities of businesses and protect the health and safety of the public as a whole. Making it a criminal offence, breaking these regulations and imposing heavy fines does not have to have the destructive effects of detaining people. Waiving the fault requirements can enhance the deterrent effect of the law by making it more difficult for offenders to evade conviction. Whether (C) is reasonable depends on whether such effects, which hypothetically protect the health and safety of many persons, can justify criminal liability through no fault of their own. Only if (2(`)) is true, we never control the results. Unfortunately, (2(`)) has unpleasant effects. Uncontrolled factors don`t just influence whether we succeed. They also relate to the question of whether we are trying, the choices we make, and the character traits that influence our decisions. (2(`)) implies that we are never responsible for any of these things – for our successes, our efforts, our decisions or our character. Pursued to its logical conclusion, it implies that we are never to blame for anything (Nagel 1979; Moore, 1997, pp.

233-246). If, as most people believe, we are sometimes guilty of what we do, (2(`)) must be wrong. We can add that (3) radically underestimates the conclusion of the argument proposed above. Combined with (C), this argument does not mean that we should not be criminally responsible for the results. This implies that no one should ever be criminally responsible. In dealing with Nazi crimes after World War II in Austria, Austrian jurist and judge Wilhelm Malaniuk justified the admissibility of the non-application of the “nulla poena sine lege” with regard to the Austrian prohibition law of 1947: “Because these are crimes that so grossly violate the laws of humanity!” Regarding the Law on War Crimes and War Crimes Related to Command Structures, Malaniuk said: “In the war unleashed by the Nazis, the demands of humanity as well as the principles of international law and martial law were violated to such an extent that it was no longer only the government that was held accountable. but also individual citizens, because they knew that their actions grossly violated the principles, the respect of which must be demanded of every member of Western culture. [15] [16] [17] This revision avoids the unpleasant implications of (2(`)). But it also invalidates the argument from (1) to (3).