Principle of Nullum Crimen Sine Lege in the International Criminal Court

Introduction

The maxim nullum crimen sine lege literally means ‘no crimes without law.’ It means that without any previous criminal law, conduct cannot come within the definition of crime. It is related to the principle called “Nullum crimen, nulla poena sine praevia lege poenali“, which means penal law cannot be enacted retroactively.

The maxim nullum crimen sine lege has found its importance at the end of the Second World War. The international crimes had not been defined which led the judges of the Nuremberg Tribunal to define many of the elements of the crime. At the trials, the prosecution was denied protection from this retroactive criminal law on the grounds that their act was against humanity. The proceedings of the Nuremberg Tribunal have received criticism.

There was a debate on the judgment made by the tribunal: whether the principle of nullum crimen sine lege apply to international law or not?

After Second World War and Nuremberg the principle of nullum crimen sine lege has been codified in a number of international treaties on human rights. Thereafter, enormous development was made to the said maxim. Today, the principle of nullum crimen sine lege has constitutional significance in many national systems.

In Indian law, for example, the ex post facto clauses of the Indian Constitution constrain the legislative branch of the government from enacting retroactive legislation. It safeguards civilians from arbitrary bias and upholds the sanctity of law guaranteeing the fundamental rights of people.

Notion Of Principle After Second World War

The Principle of nullum crimen sine lege entered the field of international jurisprudence on an uncertain footing and was immediately distinguished. This part discusses how much respect has been given by these courts to said principle. Schaack in his research paper gave detailed information about the origin of the said principle.

He stated that the principle was at the heart of the defendant’s challenge to the legality of the near-identical Charters governing the international military tribunals at Nuremberg and Tokyo [1]. After the Second World War, plans were made to try war criminals. In response to the plan, Allies set up an International Military Tribunal at Nuremberg. The Nuremberg trial started in August 1945.

The Nuremberg Charter itself was the source of law to be applied by the Tribunal. During the trial of the “major war criminal”, there have been some critical comments that the Tribunal administer on the basis of crime as defined in the Charter and did not administer justice based on former precedents. The defendants attacked the novel crime against peace charge most vociferously, arguing that-

“no sovereign power has made aggressive war a crime at the time that the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders [2].”

This contention was rejected by the tribunal, reasoning simply that the law of the Charter-as the manifestation of the sovereign legislative power of the victorious Allies-was “decisive” and “binding upon the Tribunal”. The Tribunal noted that-

“The maxim …. is not a limitation of sovereignty, but is in the general principle of justice? To assert that it is unjust to punish those who in defiance of treaty and assurance have attacked neighboring 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 unjust if he were allowed to go unpunished.

Occupying the position, they did in the government of Germany, the defendant, or at least some of them must have known of the treaties signed by Germany, outlawing resources to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when incomplete deliberation they carried out their design of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts [3].”

Therefore, the tribunal concluded that the conduct was unquestionably wrong and unlawful in international law. The tribunal pointed to various treaties and various bilateral treaties of neutrality and non-aggression, to reason that international law prohibited the charged acts of aggression. Therefore, the Tribunal concluded that the principle has no application.

The Tokyo Tribunal was given almost the same subject matter authority by the Tokyo Charter, which was the result of a special proclamation issued by the Supreme Allied Commander in the Far East, General Douglas MacArthur of the United States. The defendants’ arguments were identical to those of their Nuremberg counterparts.

Regarding the allegation of crimes against the peace, they, too, held that war as a state act was not unlawful under international law and hence not punishable. The Tribunal succinctly embraced the Nuremberg Tribunal’s reasoning:

“In view of the fact that in all material respects the Charters of this Tribunal and the Nuremberg Tribunal are identical, this Tribunal prefers to express its unqualified adherence to the relevant opinions of the Nuremberg Tribunal rather than by reasoning the matters anew in a somewhat different language to open the door to the controversy by way of conflicting interpretations of the two statements of opinions [4].”

Justice Roling in his separate opinion concluded that aggressive war was not a crime prior to the enactment of the two Charters. He noted that

“If the principle of “nullum crimen sine praevia lege” [“no crime without previously declared law“] were a principle of justice, . . . the Tribunal would be bound to exclude for that very reason every crime created in the Charter ex post facto, it being the first duty of the Tribunal to mete out justice.

However, this maxim is not a principle of justice but a rule of policy, valid only if expressly adopted, so as to protect citizens against the arbitrariness of courts… as well as the arbitrariness of legislators… The prohibition of ex post facto law is an expression of political wisdom, not necessarily applicable in present international relations. This maxim of liberty may, if circumstances necessitate it, be disregarded even by powers victorious in a war fought for freedom [5].”

Justice Pal of India maintained a dissenting opinion and held that

“The so-called trial held according to the definition of crime now given by the victors obliterates the centuries of civilization which stretch between us and the summary slaying of the defeated in a war. A trial with the law thus proscribed will only be sham employment of legal process for the satisfaction of a thirst for revenge. It does not correspond to any idea of justice [6].”

In Justice Pal’s estimation, a victor nation’s legislating new law for the vanquished was not only contrary to the rule against the retroactivity of law but also, a usurpation of power.

Amid serious violation of International humanitarian law committed in the territory of the former Yugoslavia and in the territory of Rwanda, the United Nations Secretary-General created two ad hoc International Criminal tribunals that will be beneficial for the ICC in future proceedings.

The United Nations Secretary-General stated in a report that “the application of the principle of nullum crimen sine lege requires that the International Tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law [7].” Although he had explicitly mentioned the principle in his report, he fails to further explain the applicability of the principle to the jurisdiction of the International Ad Hoc Tribunal.

International Criminal Court And Notion Of Nullum Crimen Sine Lege

The International Criminal Court was established through the Rome Statute, which was adopted by the General Assembly on 17th of July 1998 and it came into force on 1st of July 2002. Professor Bassiouni, a celebrated expert of international criminal law, said, “the establishment of the ICC symbolizes and embodies certain fundamental values and expectations shared by all people of the world and is, therefore, a triumph for all peoples of the world [8].”

Before this court, there was no permanent international court to deal with serious international crimes. The principle is now put in Article 22 of the ICC statute and its importance is emphasized by its placement of Part 3 on ‘General Principles of Criminal Law. Article 22 of the Rome Statute explicitly mentions the nullum crimen sine lege principle. It states:

1. “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.
2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favor of the person being investigated, prosecuted or convicted.
3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute [9].”

According to Article 22(1), which states that certain conduct can only be deemed illegal if that specific conduct was prohibited at the time when the conduct took place. In cases when the specific conduct was not criminalized at the time of the conduct, the said Article prescribes that the person shall not be convicted. The conduct in question is criminal only if, at the time of commission, it fits the definition of a crime under Article 5 of the ICC statute.

The term “conduct” refers both to acts and omissions [10]. Article 22(1) also refers to the jurisdiction of the court. In order to determine whether a person can be held criminally responsible under the ICC statute, it is, therefore, necessary to establish the jurisdiction of the court. The jurisdiction of ICC is found in Article 5 of the ICC statute. The International Criminal Court has jurisdiction over the following crimes:

1. The crime of Genocide;
2. Crimes against humanity;
3. War crimes;
4. The crime of aggression [11].

The definition of a crime shall not be extended. The principle has been used as a tool of interpretation in Prosecutor v. Katanga, when the Pre-Trial Chamber defined “other inhumane acts” in Article 7(1)(k) as “serious violations of international customary law and the basic rights pertaining to human beings, being drawn from the norms of international human rights law, which are of a similar nature and gravity to the acts referred to Article 7(1) of the Statute [12].”

The rule of strict interpretation is enshrined in Article 22(2) of the ICC statute. The said Article provides protection to state parties of the ICC Statute and the individual that is under investigation. According to this rule of interpretation and the prohibition of analogy, the judges

of the ICC cannot create new crimes as the creation of new crimes is exclusively within the power of the Assembly of State Parties. In Prosecutor v. Al Bhasir, the Pre-Trial Chamber 1 of the ICC fully embraces the general principle of interpretation in dubio pro reo, which means that in cases of uncertainty the interpretation is more favorable to the investigated person shall be used [13].

In Prosecutor v. Thomas Lubanga Dyilo, in this case, Thomas was found guilty of war crimes consisting of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities [14]. The Defence side argued that various interpretation made by the Pre-Trial Chamber on the confirmation of charges was in breach of Article 22(2).

In this judgment, the judges used Article 22(2) as a test of whether the interpretation of Article 8(2)(e)(vii) was acceptable and held that: therefore, consistently with Article 22 of the Statute, a child can be ‘used’ for the purposes of the statute without evidence being provided as regards his or her earlier ‘conscription’ or ‘enlistment’ into the relevant armed force or group [15].

Article 22(3) acknowledges that the principle in Article 22 does not affect customary international law and that it applies only to the definitions of crimes in the ICC Statute. This said Article does only limit the impact of Article 22 and not the whole statute.

Article 23 of the ICC Statute contains the principle of nulla poena sine lege. It is closely related to the principle of nullum crimen sine lege which prohibits retroactive application of the law. Thus, the Rome statute has followed the principle of a fair trial.

In contrast to this, Article 77(1) of the said Statute states the penalties available to the Court. The Court is authorized to impose imprisonment for a specified number of years, which may not exceed a maximum of 30 years. The same is considered as an indirection violation of the said principle.

Conclusion

Though, the said principle has found an important place in the International Human Rights such as Article 11(2) of the Universal Declaration of Human Rights, Article 15 of the International Covenant on Civil and Political Rights, Article 15(2) of the European Convention on Human Rights, etc. In Post Second world war, the principle has been dealt with in international jurisprudence.

After the Nuremberg and Tokyo Trial, the said principle is criticized by various intellectuals from a legal point of view. The Nuremberg judgment is often accused of being an example of “Victorious power“. Critics argued that the tribunals are applying ex-post-facto laws and in potential violation of the principle of Nerem crimen sine lege.

Nevertheless, some authors who negated the application of the principle, argued that it is not applicable in international criminal law. Going forward, the international community creates Ad-hoc Tribunals, the principle has not been found in international jurisprudence. The ICTY trials were characterized by the violation of International law and justice. The tribunal has been accused of being too quick to decide the aspects of case law.

Unlike the ICTY statute, the ICTR statute follows closely the model of the ICTY statute. After taking this experience, the said principle has been recognized under Article 22 of the Rome Statute. However, the principle has been violated under Article 77 of the Rome Statute. Thus, it can be concluded that even the Rome Statute has failed to properly acknowledge the principle of nullum crimen sine lege.

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1. Beth Van Schaack, “Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals,” (The Georgetown Law Journal, 2008), Available here
2. Ibid., p.125.
3. Kedia Bineet, “Nullum Crimen Sine lege in International Law: Myth or fact?”, International Journal of International Law, Vol. 1, Issue 2.
4. Kenneth S. Gallant, “The Principle of Legality in International and Comparative Criminal Law, Chapter 7: Legality as a Rule of Customary International Law Today & Conclusion: The Endurance of Legality.” SSRN, June 30, 2007, Available here
5. Ibid.
6. Ibid.
7. See report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN doc. S/25704, 3 May 1993, Para. 34 Available here
8. International Covenant on Civil and Political Rights, Available here
9. Rome Statute of the International Court art. 22, Available here
10. Mark Klamberg (ed.), Commentary on the Law of the International Criminal Court (Torkel Opsahl Academic Publisher, 2017) Available here
11. Rome Statute of the International Court art. 5, Available here
12. Prosecutor v. Katanga et al., ICC Sec-3 p. 150, ICC-01/04/07-717, Sep 30 2008, Available here
13. Prosecutor v. Omar Al Bashir, ICC Sec-3 p. 55-56, ICC-02/05-01/09, March 04, 2009, Available here
14. Prosecutor v. Thomas Lubanga Dyilo, ICC Sec-11 Closing Submission of Defence, March 14, 2012, Para. 497, 583, 620 Available here
15. See Supra Note 10.

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