Prosecuting Asymmetrically: On Some ‘Preconditions’ of Criminal Liability of Aged Defendants for Atrocities

Belated punishment ends up to be nothing more than a ‘mere show’, Beccaria argues in his Dei Delitti e Delle Pene (1764). The motto remains current with regard to trials of aged defendants for past international atrocities. In such cases, the question arises if the preconditions of criminal liability (Duff, 2001) for aged defendants are properly satisfied. Are aged defendants fully answerable for their atrocities? Based on the idea that a criminal trial is really -except for its nature as a quest of truth and justice- a communicative event between parts, the author argues that there is an important ‘communicative asymmetry’ to be observed in criminal trials against aged defendants for international atrocities, illustrates its dimensions and features and suggests some ways of dealing with it, in order that the trial preserves its pure function as an instance of criminal justice.