Nullum crimen sine lege should also adapt to the needs of the international community it order to ensure that
should also adapt to the needs of the international community it order to ensure that justice is served
- ("no crime without law") is the moral principle in criminal law and international criminal law that a person
cannot or should not face criminal punishment except for an act that was criminalized by law before he/she
performed the act. Subtler versions of this principle require crimes to be declared in unambiguous statutory
text.
Some scholars make a distinction between substantive and procedural law in the context of nullum crimen
sine lege.[1] On this view, a change in substantive law leading to liability must occur before the act is
committed, but a change in procedural law leading to liability may occur after the act is committed. For
example, extending the statute of limitations to allow the prosecution of crimes that occurred far in the past
would constitute a change in procedural law.
The notion of nullum crimen sine lege has been relatively important in the context of international criminal
law. The acts punished by the international criminal tribunals were of ambiguous legality in the conflict or
atrocity situations in which they were committed.
Nullum crimen sine lege is sometimes called the legality principle. Another formulation is "nullum poena sine
lege" ("no punishment without law").
The principle of legality is a core value, a human right but also a fundamental defense in
criminal law prosecution according to which no crime or punishment can exist without a legal
ground. Nullum crimen, nulla poena sine lege is in fact a guarantee of human liberty; it protects
individuals from state abuse and unjust interference, it ensures the fairness and transparency of the
judicial authority. The principle is often associated with the attempts to constrain states, governments,
judicial and legislative bodies from enacting on retroactive legislation, or ex post facto clauses and
ensuring that all criminal behavior is criminalised and all punishments established before the
commencement of any criminal prosecution.The origins of the principle date back to post-World War
II when a set of compelling criminal statutes were established and the drafters of the Nuremberg
Statute affirmed the notion of individual criminal responsibility from a tri-dimensional perspective:
legal, moral and criminal.
In terms of international law, the Article 11 of the Universal Declaration of Human Rights
(UDHR) (1948) gives a very well structured definition of the principle: “No one shall be held guilty
of any penal offence on account of any act or omission which did not constitute a penal offence,
under national or international law, at the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the penal offence was committed”. The same
concept with nearly identical wording is found in several international and regional human rights
treaties, including the International Covenant on Civil and Political Rights (ICCPR) (1966), the
European Convention for the Protection of Human The principles of legality “nullum crimen, nulla
poena sine lege” and their role.
In conclusion, given the fact that the principle reflects essentially the core considerations of
justice, it should always be present in the states' legislations and practices but at the same time it
and to fight impunity.
CRIMES AGAINST HUMANITY: NULLA POENA SINE LEGE Vs ARTICLE 762 PENAL CODE
The principle of Nullum Crimen Nulla Poena Sine Lege states that there can be no crime committed
and no punishment meted out, without a violation of penal law as it existed at the moment the alleged
offence occurred . The consequence of this principle requires that all criminal behaviors were
criminalized and all punishments were established before the commencement of any criminal
prosecution.
Therefore, it is interesting to give an insight into the relevance of the punishment of “crimes against
humanity committed between October 1, 1990 and December 31, 1994” under the Organic Law N°
01/2012/OL of 02/05/2012 instituting the Rwanda Penal Code.
Background
Unlike for the crime of genocide which is dealt with in the 1948 Convention on the Punishment and
Prevention of the Crime of Genocide which Rwanda domesticated since 1975; it is generally
accepted that the notion of crimes against humanity in the Rwandan domestic law is very recent. It
was referred to in the law on the Gacaca tribunals promulgated in 1996. The subsequent
amendments of the Gacaca Law merely talked about “crimes against humanity” without either
defining them or providing any guidance as to how to determine the content of that nomenclature. A
clear and complete enumeration of acts constituting crimes against humanity is found in article 120 of
the New Penal Code; while the punishment is provided for in its article 121 .
Article 120: “The crime against humanity means any of the following acts when committed as part of
a widespread or systematic attack directed against any civilian population because of its national,
political , ethnic or religious affiliation: 1° murder; 2° extermination; 3° enslavement; 4° deportation or
forcible transfer of population; 5° imprisonment or other severe deprivation of physical liberty in
violation of law; 6° torture; 7° rape, sexual slavery, forced prostitution, forced sterilization, or any other
form of sexual violence of comparable gravity; 8° persecution against a person on political, racial,
national, ethnic, cultural, religious grounds or any other form of discrimination; 9° enforced
disappearance of persons; 10° the crime of apartheid; 11° other inhuman acts of a similar character
intentionally causing great suffering, or serious injury to mental or physical health”.
Article 121: “Any person who commits a crime against humanity provided under items 1°, 2°, 3°, 6°,
7° and 9° of Article 120 of this Organic Law shall be liable to life imprisonment with special provisions.
Any person who commits a crime against humanity provided for under items 4°, 5°, 8°, 10° and 11° of
Article 120 of this Organic Law shall be liable to a term of imprisonment of ten (10) years to twenty
five (25) years.
When the crime against humanity provided under paragraph 2 of this Article is accompanied by
inhuman and degrading treatments, the offender shall be liable to life imprisonment with special
provisions”
The same organic law (article 762), entails a retroactive effect applicable to crimes against humanity
committed between October 1, 1990 and December 31, 1994 punishable under Organic Law n°
16/2004 of 19/6/2004 establishing the organization, competence and functioning of Gacaca Courts.
Article 762: The genocide crimes and other crimes against humanity committed between October 1,
1990 and December 31,1994 punishable under Organic Law n° 16/2004 of 19/6/2004 establishing the
organization, competence and functioning of Gacaca Courts charged with prosecuting and trying the
perpetrators of the crime of genocide and other crimes against humanity, committed between October
1, 1990 and December 31, 1994 as modified and complemented to date, to be transferred to ordinary
Courts after the conclusion of the work of Gacaca Courts shall be punishable by penalties provided
under this Organic Law, unless otherwise provided for by the law. [Art.762]
NULLUM CRIMEN NULLA POENA SINE LEGE VS. CRIMINALIZATION POSTERIORI TO THE
COMMISSION OF ACTS
Given the situation (as described above), one can lean on the principle of nullumcrimennullapoena
sine lege, requiring that criminal behaviors be criminalized and all punishments established before the
commencement of any criminal prosecution, to criticize the applicability of the New Penal Code on
cases of crimes against humanity as provided for in article 762.
In defending a suspect of crimes against humanity (other than genocide), a proactive lawyer may
seek to challenge the constitutionality of article 762 of the new penal code, and if he/she is smart
enough, he/she can probably mount a sound debate on basis of the second paragraph of article 24(2)
of the Constitution of the Republic of Rwanda of 2003 revised in 2015.
Article 24 (2) of the Constitution: « No one shall be subjected to prosecution, arrest, detention or
punishment on account of any act or omission which did not constitute a crime under the law in force
at the time it was committed»
In his/her attempt to have article 762 of the Penal Code declared unconstitutional, the interested party
may have to refresh minds on the principle of hierarchy of norms. Laying a special stress on the
supremacy of the Constitution would be necessary. In that sense, it would be worth highlighting that
while the lawmaker has the discretion to grant retroactive effect to a law, the same lawmaker is
required to act within the law… and in this case, within the limits set by the Constitution.
NULLUMCRIMENNULLAPOENA SINE LEGE VS. NORMS RELATING TO CRIMES AGAINST
HUMANITY – JUS COGENS
When dealing with crimes against humanity, law enforcement authorities, especially prosecutors and
Judges will have to go beyond the boundaries of the domestic law. It is important that we do not look
at crimes against humanity through a national lens, but we are rather required to address them
through a much wider lens which focuses on the entire community of human beings.
In connection with the drafting of the statute of the International Criminal Tribunal for the former
Yugoslavia (ICTY), the UN Secretary General rightly stated that “the application of the principle
NullumCrimen, NullaPoena Sine Legerequires that the international tribunal should apply rules of
international humanitarian law which are beyond any doubt part of customary law so that the problem
of adherence of some but not all States to specific conventions does not arise” .
The UN Secretary General further stated that the part of conventional international humanitarian law
which has beyond doubt become part of international customary law applicable in armed conflict is
embodied in the Charter of International Military Tribunal of 8 August 1949, among others
international instruments .
Authors have argued that the questions of crimes against humanity and norms that apply to them are
part of Jus Cogens , thus concluding that “crimes against humanity” violate a Jus Cogens norm .
As a principle, these arguments do converge on the gravity of crimes against humanity as well as the
non-derogation of norms involved, therefore, is the obligation to all States to prosecute suspects and
punish those found guilty.
DETERMINATION OF PENALTY FOR CRIMES AGAINST HUMANITY
The International humanitarian law is certainly an indispensable reference for determination of
matters involving crimes against humanity. However, it does not provide an all-made answer to the
question of penalties. Conscious of this shortcoming of the International Humanitarian Law, the UN
Secretary General addressed the issue. He urged the International Tribunals to determine penalties
with reference to domestic practices.
JUSTIFICATION OF DEROGATIONS TO THE PRINCIPLE OF NULLUM CRIMEN
This principle of NullumCrimenSinaPoena Sine Lege has been incorporated into international criminal
law. It prohibits the creation of any ex post facto law to the disadvantage of the defendant. An ex post
facto law (in Latin for “from after the action” or “after the facts”) is a law that retroactively changes the
legal consequences (or status) of actions that were committed, or relationships that existed, before
the enactment of the law.
Since the Nuremberg Trials, that principle has been diluted in order to enable communities to fight
crimes that target and represent a serious threat to humanity in its entirety. Therefore, the
prosecutions of Nazi war criminal have been possible accordingly to Nuremberg Principles I & II
stating that; “Any person who commits an act which constitutes a crime under international law is
responsible therefore and liable to punishment.” and “The fact that internal law does not impose a
penalty for an act which constitutes a crime under international law does not relieve the person who
committed the act from responsibility under international law” .
This principle is enshrined in several national Constitutions, and a number of international
instruments. For example in article 24 of Constitution of the Republic of Rwanda of 2003 revised in
2015 , article 3 of Rwanda Penal Code, article 15 of International Covenant on Civil and Political
Right, European Convention on Human Rights, article 7(1);Rome Statute of the International Criminal
Court, articles 22 and 23, etc.
From the “Nullum Crimen” principle, jurists have deduced the principle of prohibition of retrospective
penal laws. As early as 1651, Hobbes wrote: “No law, made after a fact done, can make it a crime …
For before the law, there is no transgression of the law” . This principle was stated in 1789 in Article
1, section 9(3) of the American Constitution, which prohibited Ex post facto laws.
However, if punishment is viewed as society’s retribution for moral wrongdoing, then retroactivity can
be justified. As Williams lays it:”Morality can have no special exemption for those who ‘commit the
oldest sins the newest kind of ways’.”
Nevertheless accepting that retroactivity has a role in the retributive punishment of wrongdoers does
not confer to retroactivity the status of a general principle. The proponents of retroactivity only argue
for the making of retroactive laws in exceptional circumstance, for example in situations where the
wrongdoer’s acts or omissions were morally wrong, though legal at the time that they were
committed, that is, where the wrongdoer has transgressed the “natural law” .
In so doing, they have accepted that there is a role for the retrospective operation of criminal law in
order to punish wrongdoers whose crimes, even if legal at the time, were always immoral . In other
words, this has no other meaning than being allowed to make exceptional laws in exceptional
circumstances.
Williams claims:
“No injustice was done at Nuremberg, because all the defendants there found guilty were clearly
guilty of war crimes in the traditional sense.”
It is at least arguable that finding Nazis guilty of war crimes “in the traditional sense” is as much the
application of an Ex Post Facto law as the punishing of people who deserve punishment according to
the “sound feelings of the people”. Few would argue that the Nazis found guilty at Nuremberg were
treated unfairly or unjustly, and jurists have been loath to admit that they were tried under a
retroactive law. Yet it is clear that the principle of non-retroactivity was largely ignored . In Rwanda,
the principle of non-retroactivity was overtaken by the necessity to respond to the disastrous
consequences of the genocide which claimed an overwhelming number of innocent lives from
October 1, 1990 through December 31st, 1994.
RETROACTIVITY IN OTHER MATTERS
Retroactivity in connection with crimes involving mass killings has fomented significant loquacity to
the extent of creating in some of us the impression that the derogation is possible sorely in matters
related to the most horrific crimes namely the crime of genocide, war crimes and crimes against
humanity. Out of curiosity, we were able to dig into other systems
EXAMPLES OF CASES WHERE THE PRINCIPLE OF NON-RETROACTIVITY WAS BYPASSED IN
MATTERS NOT CONNECTED WITH CRIMS AGAINST HUMANITY:
1. Shaw v. Director of Public Prosecutions (D.P.P.)
Shaw had published a booklet called the Ladies’Directory, which advertised the names and
addresses of prostitutes. The booklet says:
“. . . left no doubt that the advertisers could be got in touch with at the telephone numbers given and
were offering their services for sexual intercourse and, in some cases, for the practice of sexual
perversions. ”
Shaw was successfully prosecuted under a number of provisions of the Sexual Offences Act 1956
and the Obscene Publications Act 1959. He was also convicted on a charge of “conspiracy to corrupt
public morals” on the basis that, when he published the booklet, Shaw was conspiring with the
prostitutes “. . . to debauch and corrupt the morals of youth and other subjects of the Queen” .
Shaw complained to the House of Lords, inter alia, that the crime of conspiracy to corrupt public
morals was hither to unknown or innominate in domestic law. They held that courts have a residual
power to superintend offences which are prejudicial to the public welfare.
2. Case of R. v. Manley
Manley made false allegations of robbery to the police. Before the Court of Criminal Appeal she was
found guilty of “unlawfully effecting a public mischief”. This decision was widely attacked as being an
example of Ex Post Facto punishment, as no such crime existed before R. v. Manley. Both Manley
and Shaw were found guilty of having committed crimes that were not recognized as such when they
committed the acts in question . These two cases have been much criticized, yet they remain as
examples of how the principle of non-retroactivity has not been universally respected.
CONCLUSION
The principle of NullumCrimenNullaPoena Sine Lege as enshrined in the article 762 of the Rwandan
Penal Code is well recognized throughout the international community. In accordance to this
principle, however, there are many examples of communities where the principle is formally
recognized as a fundamental right, where retroactive criminal laws have been enacted , and this is
deemed necessary in the endeavor of the civilized communities to address crimes against humanity
and other international crimes.
As elicited in this paper, debaters do and, probably, will never agree on the justification of possible
derogations to the principle of the non-retroactivity of penal laws. However, every reasonable person
would probably agree on this: unless we have means of deterring and fighting efficiently against the
crime, life is impossible in the society! Impunity is, in any possible circumstance, a threat to peace;
thus, a duty to every Society, to preserve peace through the prevention and punishment of conducts
that are internationally considered criminal. The respect of the principle of legality is very crucial in
terms of preservation of human liberties; hence, any interpretation liable to constitute a hurdle to the
punishment of serious violations of the same liberties is obviously wrong.
Ex  post  facto  laws retroactively change the  RULES  OF  EVIDENCE in 
a criminal case, retroactively alter thedefinition of a crime, retroac
tively increase the punishment for a criminal act, or punish cond
uct thatwas legal when committed. They are prohibited by Article 
I, Section 10, Clause 1, of the U.S.Constitution. An ex post facto l
aw is considered a hallmark of tyranny because it deprives peopl
e ofa sense of what behavior will or will not be punished and allo
ws for random punishment at the whimof those in power.