ASSIGNMENT

TOPIC: NULLUM CRIMEN SINE LEGE, NULLA POENA SINE LEGE

SUBMITTED TO
SUNIL KUMAR CYRIAC SIR

SUBMITTED BY
ARUNDHATHY R M
3RD SEMESTER CRIMINAL LAW
INTERNATIONAL CRIMINAL LAW
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 . 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 .”
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 .”
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 .”
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 .” 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 .”
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:
“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 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.
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 . 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:
• The crime of Genocide;
• Crimes against humanity;
• War crimes;
• The crime of aggression .
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 .”
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 .
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 .
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