Nullum crimen sine lege

Notion(s) Filing Case
Decision on Command Responsibility - 16.07.2003 HADŽIHASANOVIĆ et al.
(IT-01-47-AR72)

51.     […] [T]he Appeals Chamber holds the view that this Tribunal can impose criminal responsibility only if the crime charged was clearly established under customary law at the time the events in issue occurred.[1] […]

[…]

55.     […] [A]n expansive reading of criminal texts violates the principle of legality, widely recognized as a peremptory norm of international law, and thus of the human rights of the accused.[2]

[1] Prosecutor v. Bagilishema, Case No. ICTR-95-1A-A, Judgement (Reasons), 3 July 2003, para 34.

[2] Cf. Rome Statute, art. 22, para. 2.

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Decision on Command Responsibility - 16.07.2003 HADŽIHASANOVIĆ et al.
(IT-01-47-AR72)

34.     […] As to foreseeability, the conduct in question is the concrete conduct of the accused; he must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision. As to accessibility, in the case of an international tribunal such as this, accessibility does not exclude reliance being placed on a law which is based on custom.[1]

[1] See “Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction-Joint Criminal Enterprise”, Prosecutor v. Milan Milutinović et al, IT-99-37-AR72, 21 May 2003, paras. 37-39 (“Ojdanić Decision”).

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Nobilo Contempt Appeal Judgement - 30.05.2001 ALEKSOVSKI Zlatko
(IT-95-14/1-AR77)

38. The principle of nullum crimen sine lege, or of legality, requires that a person may only be found guilty of a crime in respect of acts which constituted a crime at the time of their commission.[1]  That principle does not, however, mean that decisions of this Tribunal (or of any other court) which interpret or clarify the elements of a particular crime change the law which existed at the time the offences are alleged to have been committed.[2]  The Tribunal’s inherent power to deal with contempt has necessarily existed ever since its creation, and the extent of that power has not altered by reason of the amendments made to the Tribunal’s Rules,[3] or by reason of its decisions interpreting or clarifying that power.

[1]    See, for example, the International Covenant on Civil and Political Rights, Article 15:  “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

[2]    Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgment, 24 Mar 2000 (“Aleksovski Judgment”), pars 126-127;  Prosecutor v Delalić, Case IT-96-21-A, Judgment, 20 Feb 2001 (“Čelebići Judgment”), par 173.

[3]    Vujin Judgment, par 28.

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Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

126. The Defence argument on the principle of legality or nullum crimen sine lege, is based on a misunderstanding of that principle.  The Appeals Chamber understands the Defence to be saying that reliance cannot be placed on a previous decision as a statement of the law, since that decision would necessarily have been made after the commission of the crimes, and for that reason would not meet the requirements of the principle of legality.  There is nothing in that principle that prohibits the interpretation of the law through decisions of a court and the reliance on those decisions in subsequent cases in appropriate circumstances.  The principle of legality is reflected in Article 15 of the ICCPR.[1]  What this principle requires is that a person may only be found guilty of a crime in respect of acts which constituted a violation of the law at the time of their commission. […]

127. There is, therefore, no breach of the principle of nullum crimen sine lege.  That principle does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime; nor does it prevent a court from relying on previous decisions which reflect an interpretation as to the meaning to be ascribed to particular ingredients of a crime.

 

[1] Article 15 of the ICCPR states in relevant part: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

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Other instruments International Covenant on Civil and Political Rights: Article 15.
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JCE Decision - 21.05.2003 MILUTINOVIĆ et al.
(IT-99-37-AR72)

37.     Secondly, the principle nullum crimen sine lege is, as noted by the International Military Tribunal in Nuremberg, first and foremost, a “principle of justice”.[1]  It follows from this principle that a criminal conviction can only be based on a norm which existed at the time the acts or omission with which the accused is charged were committed.  The Tribunal must further be satisfied that the criminal liability in question was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time for it to warrant a criminal conviction and sentencing under the head of responsibility selected by the Prosecution. 

38.     This fundamental principle “does not prevent a court from interpreting and clarifying the elements of a particular crime”.[2]  Nor does it preclude the progressive development of the law by the court.[3]  But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification.  This Tribunal must therefore be satisfied that the crime or the form of liability with which an accused is charged was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time, taking into account the specificity of international law when making that assessment. 

39.     The meaning and scope of the concepts of “foreseeability” and “accessibility” of a norm will, as noted by the European Court of Human Rights,[4] depend a great deal on “the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed”.[5]  The specificity of international criminal law in that respect has been eloquently noted by one American Military Tribunal in Nuremberg in the Justice case:

Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field.  […] International law is not the product of statute for the simple reason that there is yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence.  It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the events. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth.[6]

40.     […] This Tribunal does not apply the law of the former Yugoslavia to the definition of the crimes and forms of liability within its jurisdiction.  It does, as pointed out above, apply customary international law in relation to its jurisdiction ratione materiae.  It may, however, have recourse to domestic law for the purpose of establishing that the accused could reasonably have known that the offence in question or the offence committed in the way charged in the indictment was prohibited and punishable.  […]

41.     Although domestic law (in particular the law of the country of the accused) may provide some notice to the effect that a given act is regarded as criminal under international law, it may not necessarily provide sufficient notice of that fact.  Customary law is not always represented by written law and its accessibility may not be as straightforward as would be the case had there been an international criminal code.  But rules of customary law may provide sufficient guidance as to the standard the violation of which could entail criminal liability.[7]  […]

42.     […] Although the immorality or appalling character of an act is not a sufficient factor to warrant its criminalisation under customary international law, it may in fact play a role in that respect, insofar as it may refute any claim by the Defence that it did not know of the criminal nature of the acts.[8] 

See also para. 10.

[1]    IMT Judgment [Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946, Vol 1, p 226], p 219.

[2]    Aleksovski Appeal Judgment, pars 126-127;  Delalić Appeal Judgment, par 173.

[3]    See, inter alia, Kokkinakis v Greece, Judgment, 25 May 1993, Ser A 260-A (1993), pars 36 and 40 (ECHR);  EV v Turkey, Judgment, 7 Feb 2002, par 52;  SW v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-B (1995), pars 35-36 (ECHR).  See also C.R  v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-C (1995), par 34 (ECHR): “However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation.  There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 (art. 7) of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.”

[4]    See references in previous footnote, including, Kokkinakis v Greece, Judgment, 25 May 1993, Ser A 260-A (1993), (ECHR);  EV v Turkey, Judgment, 7 Feb 2002;  SW v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-B (1995) (ECHR); C.R  v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-C (1995).

[5]    Groppera Radio AG and Others v Switzerland, Judgment, 28 Mar 1990, Ser A 173, par 68.

[6]    See, eg, Trials of War Criminals Before The Nuremberg Military Tribunals Under Control Council Law No 10, Vol III (“Justice case”), pp 974-975.  

[7]    See X Ltd and Y v United Kingdom, D and R 28 (1982), Appl 8710/79, pp 77, 80-81.

[8]    In the Delalić case, the Appeals Chamber referred to the ICCPR to state that certain acts could be regarded as “criminal according to the general principles of law recognized by the community of nations” (Delalić Appeals Chamber Judgment, par 173). The IMT used a similar formulation when addressing the criminalisation of aggressive war: “the attacker must know that he is doing wrong” (IMT Judgment, p 219)

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

576. [T]he Trial Chamber is said by Landžo to have violated the principles of certainty in the criminal law,[1] and of nullum crimen sine lege,[2] or ex post facto law (as it was described by counsel for Landžo).[3]  These objections are misconceived.  The law to be applied must be that which existed at the time the acts upon which the charges are based took place.  However, the subsequent identification or interpretation of that law by the Tribunal, whenever that takes place, does not alter the law so as to offend either of those principles.[4]

[1]    Landžo Brief, pp 88-89.

[2]    Restated in Article 15 of the International Covenant on Civil and Political Rights, 1966: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”.

[3]    Appeal Transcript, pp 590, 595, 627.

[4]    Aleksovski Appeal Judgement, paras 126-127, 135.

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Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

311. The nullum crimen sine lege principle does not require that an accused knew the specific legal definition of each element of a crime he committed. It suffices that he was aware of the factual circumstances, e.g. that a foreign state was involved in the armed conflict. It is thus not required that Kordić could make a correct legal evaluation as to the international character of the armed conflict. Consequently, it is irrelevant whether Kordić believed that the effective control test constituted international customary law.

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