The creation of international criminal law, especially in international criminal tribunals, frequently raises questions concerning “the principle of legality of crimes and punishments (le principe de légalité des délits et des peines).” Many rules have made up the principle of legality in criminal law, although not all of them apply in all societies that accept the principle:

1. No act that was not criminal under a law applicable to the actor (pursuant to a previously promulgated statute) at the time of the act may be punished as a crime.

2. No act may be punished by a penalty that was not authorized by a law applicable to the actor (pursuant to a previously promulgated statute) at the time of the act.

3. No act may be punished by a court whose jurisdiction was not established at the time of the act.

4. No act may be punished on the basis of lesser or different evidence from that which could have been used at the time of the act.

5. No act may be punished except by a law that is sufficiently clear to provide notice that the act was prohibited at the time it was committed.

6. Interpretation and application of the law should be done on the basis of consistent principles.

7. Punishment is personal to the wrongdoer. Collective punishments may not be imposed for individual crime.

8. Everything not prohibited by law is permitted.

RETROACTIVITY, JUSTICE, AND SOVEREIGNTY

The English-language version of the Nuremberg Judgment observes,

This statement – that “nothing is criminal except by law [existing at the time of the act]” is a mere nonbinding principle of justice – has a cynical ring to it. It implies that judges can and should ignore principles of justice in service of the sovereign powers that created their court. This was pointed out rather explicitly in the dissent to the Tokyo Judgment by Justice Radhabinod Pal of India, who argued that the International Military Tribunal for the Far East should not create crimes that did not exist at the time a defendant acted: “for otherwise the Tribunal will not be a ‘judicial tribunal’ but a mere tool for the manifestation of power.” The depth of the disagreement over the issue of retroactivity might be judged by Justice Pal's use of this statement. It refers to – and perhaps parodies – a similar passage by Lord Wright. Wright had argued that all the crimes in the Nuremberg Charter (and hence in the Tokyo Charter) were, at the time, crimes under international law, a position with which Justice Pal violently disagreed.

In the French version of the Nuremberg Judgment, even the reference to justice disappeared: '[N]ullum crimen sine lege ne limite pas la souveraineté des États; elle ne formule qu'une règle généralement suivie.

The following chart indicates provisions concerning non-retroactivity in criminal law adopted by the various nations of the world. It also covers the related doctrine of mercy (lex mitior) where a later law mitigates a penalty. All UN member states are included in this chart, plus Chechnya, the Republic of China (Taiwan), Kosovo, Turkish Republic of Northern Cyprus, the Palestinian Authority, Sahrawi Arab Democratic Republic (Western Sahara), Somaliland, and the State of Vatican City (the Holy See). These entities each make claims to be a state (Chechnya, Kosovo, N. Cyprus, W. Sahara, Somaliland, Vatican), to be the legitimate government of a state (Rep. of China), or to have the right to become a state (Palestine). Non–UN members are indicated with “x” on the chart.

1. C = Constitutional provision (including constitutional provisions incorporating human rights treaties with legality provisions, and constitutional provisions that may not be clear on their face but have been authoritatively interpreted by the court of highest jurisdiction in the nation) (Cols. 2-4).

2. S = Statutory provision (with no clear constitutional provision). Also included here would be case law not tied to a constitutional provision (Cols. 2-4). Note that in a few countries, it is difficult to distinguish between constitutional and statutory provisions.

3. T = Treaty provision (with no clear constitutional provision, and no statutory provision found) (Cols. 2-4, relevant treaties listed in Col. 5 whether or not there are constitutional provisions).

The Nuremberg Judgment correctly stated then-current law: nullum crimen sine lege was not a limitation of sovereignty. Specifically, nullum crimen sine lege did not state an international law-based human right that could be asserted by an individual against a state, group of states, or international organization. It was correct at least partly because, at the time, there was little interference by international law in the internal arrangements by which governments ruled their people, and the Nuremberg Judgment itself did not announce the violation of the principle of legality as one of the crimes against humanity and war crimes of which the accused might be convicted. Substantive international human rights and humanitarian law had not evolved to make this a right of individuals enforceable against states (or other prosecuting authorities, such as international organizations – should they come to exist).

The English version of the Nuremberg Judgment was also correct in stating that nullum crimen sine lege is a principle of justice. At least it was recognized as a fundamental principle of criminal justice by many persons and nations by the time of World War II, including the principal French judge Henri Donnedieu de Vabres.

The drafters of what became the Charter of the International Military Tribunal (IMT), which known as the Nuremberg Charter, struggled over the issue of legality and ex post facto legislation, and whether the issue could be defined out of existence simply by including criminal definitions in the text of the Charter.

THE CORE RULES OF LEGALITY IN CUSTOMARY INTERNATIONAL LAW

The history since World War II, set out in previous chapters, shows that the law has changed since Nuremberg. The central aspects of the principle of legality in criminal law, especially the non-retroactivity of crimes and punishments, are now rules of customary international law.

The statement of the principle of non-retroactivity of crimes and punishments from the Universal Declaration of Human Rights (UDHR) has become customary international law:

The prohibition of the act and the maximum penalty must not only have been in existence at the time of the act. They must also have been applicable to the actor and the action at the time. An act cannot constitute an offense carrying a penalty except pursuant to some national or international law applicable to the actor and the act at the time committed.

This summary of the customary international human rights rules of legality is based on the practice and opinio juris of states, the organic documents, other documents, practice and opinio juris of international organizations (especially but not only international criminal courts and tribunals), writings of publicists, and other evidence.

No book on current law is ever really finished. Any practicing lawyer who uses this book knows that its citations must always be checked for postpublication developments.

Several developments concerning legality in national constitutional law have occurred since the completion of the main text of this book. These have occurred in both generally recognized states (Senegal and Myanmar) and entities seeking recognition as states (Abkhazia, Kosovo, and South Ossetia). They generally conform to trends noted in the main text. They are organized next according to the sections of Chapter 5 (Modern Comparative Law Development: National Provisions Concerning Legality) in which the developments would have been noted. These developments generally confirm the conclusions reached in Chapter 5 and provide further evidence for the overall conclusions of the book discussed in Chapter 7 (Legality in Customary International Law Today).

Sources of the Requirement of Non-Retroactivity of Crimes and Punishments in National Law

The trend toward including non-retroactivity in criminal law as a national constitutional protection continues in entities seeking to be recognized as states, but which have not yet gained universal recognition or United Nations membership – specifically Kosovo, South Ossetia, and Abkhazia.

The Constitution of Kosovo, with non-retroactivity of crimes and punishments and a lex mitior provision, noted as a proposal in the main text, took effect 15 June 2008. The President of Serbia has stated that Serbia “does not accept the proclamation of Kosovo's constitution as a legal fact.”

This chapter examines how states have accepted various aspects of the principle of legality as a matter of law. These aspects include non-retroactivity of crimes (nullum crimen sine lege), non-retroactivity of punishments (nulla poena sine lege), requirement of a preexisting statutory text (praevia lege scripta), limitation or prohibition of special courts for crimes or retroactively created courts, and prohibition of collective punishments. It also looks at which states require retroactivity of more lenient punishment (lex mitior). It considers these materials in the context of the different legal systems in which they arise. It concludes with a section on the meaning of these national materials for international law.

CONTENT AND LIMITATIONS OF THE MATERIAL IN THIS CHAPTER AND THE APPENDICES ON NATIONAL LAW

The material used in this study of criminal law legality in national systems is collected in three appendices to this book. Appendix A lists in chart form the states that accept nullum crimen and nulla poena, and those that implement lex mitior. Appendix B lists the constitutional provisions, and in a few cases, other provisions, existing in 1946–47, after the end of World War II. Appendix C sets out the texts of the provisions as they exist today (or the most recent available texts). Appendix C also includes statutory and other material that has been found on these subjects in states where there are no constitutional materials.

The principle of legality has a long and checkered history in Western and other systems of jurisprudence. It appears in some form in many legal systems but also was subject to many exceptions and violations in those systems. For example, various implementations of legality, in both the criminal and non-criminal law, appeared in Justinian's compilations of laws. One of the most famous sections of the Magna Carta guarantees that no free man should be deprived of liberty, property, protection of the laws, or life, except according to law. This has been read by moderns as an embodiment of the principle of legality, in the sense of prohibiting retroactive criminalization or punishment. However, it is unclear whether it would have been understood to mean that the substantive law must have been proclaimed in advance of the criminal act or merely that the procedural law must be obeyed, or something of both. Indeed, as with many provisions of documents or statements of general principle from many ages that we moderns would call “open texture[d],” it is not clear that there would have been consensus at the time, if anyone had asked the question.

OVERVIEW

Civil Law and Common Law

Conventional wisdom, which is often conventional because it has a great deal of support in the evidence, credits the Enlightenment and eighteenth- and nineteenth-century positivism for the growth and spread of the principle of legality into a fundamental element of criminal law in many nations worldwide.