The principles of legality “nullum crimen, nulla poena sine lege”
1. The
principle of legality in domestic legal systems
To grasp fully the significance of this principle (which is
usually described by using the Latin maxim nullum crimen nulla poena sine lege)
a few words of introduction are necessary.
National legal systems tend to embrace, and ground their
criminal law on either the doctrine of substantive justice or that of strict
legality. Under the former doctrine the legal order must primarily aim at
prohibiting and punishing any conduct that is socially harmful or causes danger
to society, whether or not that conduct has already been legally criminalized
at the moment it is taken.
The paramount interest is defending society against any
deviant behaviour likely to cause damage or jeopardize the social and legal
system. Hence this doctrine favours society over the individual (favor
societatis).
Extreme and reprehensible applications of this doctrine can
be found in the Soviet legal system (1918–58) or in the Nazi criminal law
(1933–45). However, one can also find some variations of this doctrine in
modern democratic Germany, where the principles of ‘objective justice’
(materielle Gerechtigkeit) have been upheld as a reaction to oppressive
governments trampling upon fundamental human rights, and courts have had
recourse to the celebrated ‘Radbruch’s formula’. Radbruch, the distinguished
German professor of jurisprudence, created this ‘formula’ in 1946. In terms
subsequently taken up in some German cases, he propounded the notion that positive
law must be regarded as contrary to justice and not applied where the
inconsistency between statute law and justice is so intolerable that the former
must give way to the latter. This ‘formula’ has been widely accepted in the
legal literature.
In contrast, the doctrine of strict legality postulates
that a person may only be held criminally liable and punished if at the moment
when he performed a certain act this act was regarded as a criminal offence
under the applicable law.
Historically, this doctrine stems from the opposition of
the baronial and knightly class to the arbitrary power of monarchs, and found
expression in Article 39 of Magna Charta libertatum of 1215 (so-called ‘Magna
Carta’). One must, however, wait for the principal thinkers of the Enlightenment
to find its proper philosophical and political underpinning.
Montesquieu and then
the great American proclamations of 1774 and of the French revolution (1789)
conceived of the doctrine as a way of restraining the power of the rulers and
safeguarding the prerogatives of the legislature and the judiciary. As the
distinguished German criminal lawyer Franz von Liszt wrote in 1893, the nullum
crimen sine lege and nulla poena sine lege principles ‘are the bulwark of the
citizen against the state’s omnipotence; they protect the individual against
the ruthless power of the majority, against the Leviathan. However paradoxical
it may sound, the Criminal Code is the criminal’s Magna Charta. It guarantees
his right to be punished only in accordance with the requirements set out by
the law and only within the limits laid down in the law.’
At present, most democratic civil law countries tend to
uphold the doctrine of strict legality as an overarching principle. In these
countries the doctrine is normally held to articulate four basic notions:
1. criminal offences may only be provided for in written
law, namely legislation enacted by Parliament, and not in customary rules (less
certain and definite than statutes) or in secondary legislation (which emanates
from the government and not from the parliamentary body expressing popular
will); this principle is referred to by the maxim nullum crimen sine lege
scripta (criminal offences must be provided for in written legislation);
2. criminal legislation must abide by the principle of
specificity, whereby rules criminalizing human conduct must be as specific and
clear as possible, so as to guide the behaviour of citizens; this is expressed
by the Latin tag nullum crimen sine lege stricta (criminal offences must be provided
for through specific legislation);
3. criminal rules may not be retroactive; that is, a person
may only be punished for behaviour that was considered criminal at the time the
conduct was undertaken; therefore he may not be punished on the strength of a
law passed subsequently; the maxim referred to in this case is nullum crimen
sine proevia lege (criminal offences must be provided for in a prior law);
4. resort to analogy in applying criminal rules is
prohibited (analogy would allow to punish, at the whim of courts, conduct
similar or approximate to that already prohibited, thereby unduly extending the
scope of existing criminal provisions).
The purpose of these principles is to safeguard citizens as
far as possible against both the arbitrary power of government and possibly
excessive judicial discretion. In short, the basic underpinning of the doctrine
of strict legality lies in the postulate of favour rei (in favour of the
accused) (as opposed to favour societatis, or in favour of society).
However, in common law countries, where judge-made law
prevails or is at least firmly embedded in the legal system, there is a
tendency to adopt a qualified approach to these principles. For one thing,
common law offences (as opposed to statutory offences) result from judge-made
law and therefore may lack those requirements of rigidity, foreseeability and
certainty proper to written legislation. For another, common law offences are
not strictly subject to the principle of non-retroactivity, as is shown by
recent English cases contemplating new offences, or at any rate the removal of
traditional defences (see, for instance, R. v. R. (1992), where a court held
that the fact of marriage was no longer a common law defence to a husband’s
rape of his wife). It is notable that the European Court of Human Rights did
not regard such cases as questionable or at any rate contrary to the
fundamental provisions of the European Convention (see SW and CR v. United
Kingdom, 1995).
2. The
principle of legality in ICL
As seen above, the principle of legality in criminal law is
not uniformly applied in in common law and civil law countries. Let us now see
which of the two aforementioned doctrines is applied in ICL.
One could note that ICL, being also based on customary
processes, is more akin to English law than to French, German, Argentinean, or
Chinese law. However, this would not be sufficient. The main problem is that
for a long period, and until recently, ICL has applied the doctrine of
substantive justice; it is only in recent years that it is gradually replacing
it with the doctrine of strict legality, albeit with some important
qualifications.
That ICL has long applied the former doctrine is not to be
attributed to a totalitarian or authoritarian streak in the international
society. Rather, the rationale for that attitude was that states were not
prepared to enter into treaties laying down criminal rules, nor had customary
rules evolved covering this area. In practice, there only existed customary
rules prohibiting and punishing war crimes, although in a rather rudimentary or
unsophisticated manner. Hence the need for the international community to rely
upon substantive justice when new and extremely serious forms of criminality
(crimes against peace, crimes against humanity) suddenly appeared on the
international scene.
The IMT clearly enunciated this doctrine in Göring and
others. From the outset the Tribunal had to face the powerful objections of
German defence counsel that the Tribunal was not allowed to apply ex post facto
law. These objections were grounded in the general principles of criminal law
embedded in civil law countries, and also upheld in German law before and after
the Nazi period. The French Judge H. Donnedieu de Vabres, coming from a country
where the nullum crimen principle is deeply ingrained, also showed himself to
be extremely sensitive to the principle. As a consequence, when dealing with
the crimes against peace of which the defendants stood accused, the Tribunal,
before stating that in fact such crimes were already prohibited when they were
perpetrated (at 219–23)—a finding that seems highly questionable—noted that in
any case it was not contrary to justice to punish those crimes even if the
relevant conduct was not criminalized at the time of their commission:
In the first place, it is to be observed that the maxim
nullum crimen sine lege is not a limitation of sovereignty, but is in general a
principle of justice. To assert that it is unjust to punish those who in
defiance of treaties and assurances have attacked neighbouring states without
warning is obviously untrue, for in such circumstances the attacker must know
that he is doing wrong, and so far from it being unjust to punish him, it would
be unjust if his wrong were allowed to go unpunished (219; emphasis added).
In other words, substantive justice punishes acts that harm
society deeply and are regarded as abhorrent by all members of society, even if
these acts were not prohibited as criminal when they were performed.
As stated above, after the Second World War the doctrine of
substantive justice (upheld in a number of cases, among which one may cite
Peleus and later on Eichmann) was gradually replaced by that of strict
legality. Two factors brought about this change.
First, states agreed upon and ratified a number of
important human rights treaties which laid down the nullum crimen principle as
legal standard for national courts. The same principle was also set out in such
important treaties as the Third and Fourth Geneva Conventions of 1949,
respectively, on Prisoners of War and on Civilians. The expansive force and
striking influence of these treaties could not but impact on international
criminal proceedings, leading to the acceptance of the notion that also in such
proceedings the nullum crimen principle must be respected as a fundamental part
of a set of basic human rights of individuals. In other words, the principle
came to be seen from the viewpoint of the human rights of the accused, and no
longer as essentially encapsulating policy guidelines dictating the penal
strategy of states at the international level.
The second factor is that gradually the network of ICL
expanded both through a number of international treaties criminalizing conduct
of individuals (think of the 1948 Convention on Genocide, the 1949 Geneva
Conventions, the 1984 Convention on Torture, and the various treaties on
terrorism) and by dint of the accumulation of case law.
In particular, case law contributed to either the
crystallization of customary international rules of criminal law (for instance,
on the mental element of crimes against humanity) or to clarifying or
specifying elements of crimes, defences, and other important segments of ICL.
As a consequence, the principle of strict legality was laid down first, albeit
implicitly, in the two ad hoc Tribunals (ICTY and ICTR), and then, explicitly,
in the Statute of the ICC, Article 22(1) of which provides that "A person
shall not be criminally responsible under this Statute unless the conduct in
question constitutes, at the time it takes place, a crime within the
jurisdiction of the Court.
The conclusion is therefore warranted that nowadays this
principle must be complied with also at the international level, albeit subject
to a number of significant qualifications, which we shall presently consider.
3.
Articulations of the principle of legality
3.1 The
principle of specificity
Under this principle criminal rules must be as detailed as
possible, so as to clearly indicate to their addressees the conduct prohibited,
namely, both the objective elements of the crime and the requisite mens rea.
The principle is aimed at ensuring that all those who may fall under the
prohibitions of the law know in advance which specific behaviour is allowed or
proscribed. They may thus foresee the consequences of their action and freely
choose either to comply with, or instead breach, legal standards of behaviour.
Clearly, the more accurate and specific a criminal rule, the greater is the
protection accorded to the agent from arbitrary action of either enforcement
officials or courts of law.
The principle is still far from being fully applicable in
international law, which still includes many rules that are loose in their
scope and purport. In this regard, suffice it to mention, as an extreme and
conspicuous instance, the provision first enshrined in the London Charter of
1945 and then restated in many international instruments (Control Council Law
no. 10, the Statutes of the Tokyo Tribunal, the ICTY, the ICTR and the SCSL),
whereby crimes against humanity encompass ‘other inhumane acts’.
Similarly, the provisions of the four 1949 Geneva
Conventions on grave breaches among other things enumerate, as ‘grave
breaches’, ‘torture or inhuman treatment’. In addition, many rules contain
notions that are not defined at the ‘legislative’ level, such as ‘rape’,
‘torture’, ‘persecution’, ‘enslavement’, etc. Furthermore, most international
rules proscribing conduct as criminal do not specify the subjective element of
the crime. Nor are customary rules on defences crystal clear: they do not
indicate the relevant excuses or justifications in unquestionable terms.
Given this indeterminacy and the consequent legal
uncertainty for the possible addressees of international criminal rules, the
contribution of courts to giving precision to law, not infrequent even in civil
law systems, and quite normal in common law countries, becomes of crucial
importance at the international level, as has already been pointed out above.
Both national and international courts play an immensely important role in
gradually clarifying notions, or spelling out the objective and subjective
ingredients of crimes, or better outlining such general legal concepts as
excuses, justifications, etc.
Thus, for instance, the District Court of Tel Aviv, in
Ternek spelled out, by way of construction, the notion of ‘other inhumane acts’
in a manner that seems acceptable (at 540, and §7). Similarly, in defining the
concept of ‘rape’ a TC of the ICTY in Furundžija had recourse to general
principles of ICL as well as general principles common to the major legal
systems of the world, and general principles of law.
One should not underestimate, however, another drawback of
ICL: the lack of a central criminal court endowed with the authority to clarify
for the whole international society the numerous hazy or unclear criminal
rules. To put it differently: the contribution of courts to the gradual
specification and precision of legal rules, emphasized above, suffers from the
major shortcoming that such judicial refinement is ‘decentralized’ and
fragmentary. In addition, when such process is effected by national courts, it
suffers from the another flaw: each court tends to apply the general notions of
criminal law proper to the legal system within which such court operates.
Hence, the possibility frequently arises of a contradictory or ‘cacophonic’
interpretation or application of international criminal rules.
Fortunately, the draftsmen of the ICC Statute made a
significant contribution when they endeavoured to define as precisely as
possible the various categories of crimes. (However, as the Statute is not
intended to codify international customary law, one ought always to take it
with a pinch of salt, for in some cases it may go beyond current law, whereas
in other instances it is narrower in scope than rules of customary
international law. Furthermore, formally speaking that Statute is only binding
on the ICC).
3.2 The
principle of non-retroactivity
As stated above, a logical and necessary corollary of the
doctrine of strict legality is that criminal rules may not cover acts performed
prior to their enactment, unless such rules are more favourable to the accused.
Otherwise the executive power, the judiciary, or even the legislature could
arbitrarily punish persons for actions that were allowed when they were carried
out.
In contrast, the ineluctable corollary of the doctrine of
substantive justice is that, for the purpose of defending society against new
and unexpected forms of criminality, one may go so far as to prosecute and
punish conduct that was legal when taken. These two approaches lead to contrary
conclusions. The question is: which approach has been adopted in international
law?
It seems indisputable that the London Agreement of 1945
provided for two categories of crime that were new: crimes against peace and
crimes against humanity. The IMT did act upon the Charter provisions dealing
with both categories. In so doing, it applied ex post facto law; in other
words, it applied international law retroactively, as the defence counsel at
Nuremberg rightly stressed.
Many tribunals sitting in judgment over Germans in the
aftermath of the Second World War, as well as the German Supreme Court in the
British Occupied Zone, endorsed the legal approach taken by the IMT, for all
its deficiencies. This stand, while having scant persuasive force with regard
to the past, nonetheless contributed to the slow consolidation of the principle
of non-retroactivity in ICL.
Subsequently, as a logical consequence of the emergence of
the nullum crimen sine lege principle a general rule prohibiting the
retroactive application of criminal law gradually evolved in the international
society. Thus, the principle of non-retroactivity of criminal rules is now
solidly embedded in ICL. It follows that courts may only apply substantive
criminal rules that existed at the time of commission of the alleged crime.
This, of course, does not entail that courts are barred from refining and
elaborating upon, by way of legal construction, existing rules. The ICTY AC
clearly set out this notion in Aleksovski (AJ).
B.
Expansive
adaptation of some legal ingredients of crimes laid down in international rules
to new social conditions
One should duly take account of the nature of ICL, to a
large extent made up of customary rules that are often identified, clarified or
spelled out, or given legal determinacy by courts. In short, that body of law
to a large extent consists of judge-made law (with no doctrine of precedent).
Consequently, one should reconcile the principle of non-retroactivity with
these inherent characteristics of ICL. In this respect some important rulings
of the European Court of Human Rights may prove of great assistance.
In particular, in CR v. United Kingdom20 the Court held
that the European Convention could not be read ‘as outlawing the gradual
clarification of the rules of criminal liability through judicial
interpretation from case to case, provided that the resulting development is
consistent with the essence of the offence and could reasonably be foreseen’
(§34).21 In a subsequent case, Cantoni v. France, the Court insisted on the
notion that, in order for criminal law (that is, a statutory provision or a
judge-made rule) to be in keeping with the nullum crimen principle, it is
necessary for the law to meet the requirements of accessibility and
foreseeability. It added two important points. First, a criminal rule may be
couched in vague terms. When this happens, there may exist ‘grey areas at the
fringe of the definition’:
This penumbra of doubt in relation to borderline facts does
not in itself make a provision incompatible with Article 7 [of the European
Convention on Human Rights, laying down the nullum crimen principle], provided
that it proves to be sufficiently clear in the large majority of cases. The
role of adjudication vested in the courts is precisely to dissipate such
interpretational doubts as remain, taking into account the changes in everyday
practice. (§33.)
The second point related to the notion of foreseeability.
The Court noted that the scope of this notion:
Depends to a considerable degree on the content of the text
in issue, the field it is designed to cover, and the number and status of those
to whom it is addressed [. . . .] A law may still satisfy the requirement of
foreseeability even if the person concerned has to take appropriate legal
advice to assess, to a degree that is reasonable in the circumstances, the consequences
which a given action may entail [. . . .] This is particularly true in relation
to persons carrying on a professional activity, who are used to having to
proceed with a high degree of caution when pursuing their occupation. They can
on this account be expected to take special care in assessing the risk that
such activity entails (§35).
It would seem that the following legal propositions could
be inferred from the Court’s reasoning. First, while interpretation and
clarification of existing rules is always admissible, adaptation is only
compatible with legal principles subject to stringent requirements.
Secondly, such requirements are that the evolutive
adaptation, by courts of law, of criminal prohibitions, namely the extension of
such legal ingredients of an offence as actus reus, in order to cover conduct
previously not clearly considered as criminal must (i) be in keeping with the
criminal rules relating to the subject matter, more specifically with the rules
defining ‘the essence of the offence’;(ii) conform with, and indeed implement
fundamental principles of ICL or at least general principles of law; and (iii)
be reasonably foreseeable by the addressees. In other words the extension,
although formally speaking it may turn out to be detrimental of the accused,
could have been reasonably anticipated by him, as consonant with general principles
of criminal law.
To put it differently, courts may not create a new criminal
offence, with new legal ingredients (a new actus reus or a new mens rea). They
can only adapt provisions envisaging criminal offences to changing social
conditions (for instance, by broadening the actus reus or, possibly, lowering
the threshold of the subjective element, i.e. from intent to recklessness, or
from recklessness to culpable negligence) as long as this adjustment is
consonant with, or even required by, general principles.
This process, particularly if it proves to be
disadvantageous to the accused (which is normally the case) must presuppose the
existence of a broad criminal prohibition (for instance, the proscription of
rape) and no clear-cut and explicit enumeration, in law, of the acts embraced
by this definition. It is in the penumbra left by law around this definition
that the adaptation may be carried out. Admittedly, the frontier between such
adaptation process and the analogical process, which is instead banned (see
below), is rather thin and porous. It falls to courts to proceed with great
caution and determine on a case-by-case basis whether the ‘adaptation’ under
discussion is legally warranted and consonant with general principles, and in
addition does not unduly prejudice the rights of the accused.
An instance of this process of ‘adaptation’ of existing law
can be seen in the judgment delivered by the ICTY AC in Tadić (IA), where the
AC unanimously held that some customary rules of international law criminalized
certain categories of conduct in internal armed conflict (see §§94–137).24 It
is well known that until that decision many commentators, states as well as the
ICRC, had held the view that violations of the humanitarian law of internal
armed conflict did not amount to war crimes proper, for such crimes could only
be perpetrated within the context of an international armed conflict.
The ICTY AC authoritatively held that the contrary was true
and clearly identified a set of international customary rules prohibiting as
criminal certain classes of conduct. Since then this view has been generally
accepted.
Similarly, contrary to the submission made by defence
counsel in Hadzihasanović and others, an ‘adaptation’ of existing rules
(corroborated by a logical construction) warrants the contention that persons
may be held accountable under the notion of command responsibility even in
internal armed conflicts.
Two arguments support this proposition. First, generally
speaking the notion is widely accepted in international humanitarian law that
each army or military unit engaging in fighting either in an international or
in an internal armed conflict must have a commander charged with holding
discipline, ensuring compliance with the law, and executing the orders from
above (with the consequence that whenever the commander culpably fails to
ensure such compliance, he may be called to account).
The notion at issue is crucial to the existence and
enforcement of the whole body of IHL, because without a chain of command and a
person in control of each military unit, anarchy and chaos would ensue and no
one could ensure compliance with law and order. Secondly, and with specific
regard to the Statute of the ICTY, Article 7(3) of this Statute is couched in
sweeping terms and clearly refers to the commission by subordinates of any
crime falling under the jurisdiction of the Tribunal: any time such a crime has
been perpetrated involving the responsibility of a superior, this superior may
be held accountable for criminal omission (of course, if he is proved to have
the requisite mens rea: see infra, 11.4.4). If this is so, it is sufficient to
show that crimes perpetrated in internal armed conflicts fall under the
Tribunal’s jurisdiction, as held in 1995 in Tadić (IA), for inferring that as a
consequence the Tribunal has jurisdiction over a commander who failed to
prevent or punish such crimes.
Bibliography:
The
principle of legality. Cassese, International criminal Law”, 3 Ed.
Nullum
crimen nullum poena sine lege principle and the ICTY and ICTR by Guillaume
Endo.
NULLUM
CRIMEN SINE LEGE IN INTERNATIONAL CRIMINAL LAW: MYTH OR FACT? Bineet Kedia
The
principles of legality “nullum crimen, nulla poena sine lege” and their role by
Iulia Crisan.
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