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5 - Operationalizing the principle of legality

Published online by Cambridge University Press:  05 November 2014

Leena Grover
Leena Grover
Affiliation:
Universität Zürich
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Summary

Introduction

In this Chapter, consideration will be given to the different elements of article 22 with a view to assessing their origins, purpose and limits. The references to ‘strict interpretation’, ‘favouring the accused’ and the ‘prohibition against analogy’ will be unpacked. In the final section, a method for the principled operationalization of these devices will be outlined to assist judges and lawyers with the interpretation of crimes in the Rome Statute. By giving meaningful content to these imperatives, the goal is to facilitate reasoning by judges and counsel that is informed, principled and transparent. In the absence of this effort, article 22 may be invoked in a manner that leads to interpretive reasoning and outcomes that are over- or underinclusive in some way.

Drafting history

Article 22 provides:

  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 favour 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.

At the Rome Diplomatic Conference, the legality principle as it appears in article 22 sparked little debate and was adopted with minor changes. In the International Law Commission’s 1994 and 1996 Draft Statutes of the Court (ILC), the principle of legality was defined so as to accommodate the inclusion of crimes under customary international law – the ‘core crimes’ of aggression, genocide, other crimes against humanity and war crimes – but also treaty crimes, the latter category ultimately not making it into the final Rome Statute. For these ‘core crimes’, the draft language was limited to a prohibition against retroactive application of international law. Thus, so long as the conduct was criminal under international law at the relevant time, it mattered not that national law applicable to the accused did not criminalize the same conduct.

Type
Chapter
Information
Interpreting Crimes in the Rome Statute of the International Criminal Court , pp. 186 - 219
Publisher: Cambridge University Press
Print publication year: 2014

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References

Schabas, WA, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 406CrossRefGoogle Scholar
Broomhall, B, ‘Article 22’ in Triffterer, O (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn (CH Beck/Hart/Nomos 2008) 714Google Scholar
Kreß, C, ‘Nullum Crimen, Nulla Poena Sine Lege’ in Wolfrum, R (ed.), Max Planck Encyclopedia of Public International Law (2008–)
Pellet, A, ‘Applicable Law’ in Cassese, A and Others (eds.), The Rome Statute of the International Criminal Court: A Commentary, vol. II (Oxford University Press 2002) 1051, 1057Google Scholar
Clark, R, ‘Article 9’ in Triffterer, O (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn (CH Beck/Hart/Nomos 2008) 505, 529Google Scholar
Robinson, D and von Hebel, H, ‘Reflections on the Elements of Crimes’ in Lee, RS (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational 2001) 219Google Scholar
Gallant, KS, The Principle of Legality in International and Comparative Criminal Law (Cambridge University Press 2009) 8–9Google Scholar
Saland, P, ‘International Criminal Law Principles’ in Lee, RS (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International 1999) 189, 195Google Scholar
Boot, M, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Intersentia 2002) 362–63, 371Google Scholar
Packer, HL, The Limits of Criminal Sanction (Stanford University Press 1968) 93Google Scholar
Maxwell, PB, The Interpretation of Statutes, 7th edn (GFL Bridgman 1929) 244Google Scholar
Ashworth, (n. 36) 432 (citing Law Commission No. 177, Criminal Law: A Criminal Code for England and Wales, vols. I–II (1989) para. 3.17)
Shihata, IFI, The Power of the International Court to Determine Its Own Jurisdiction: Compétence de la Compétence (Martinus Nijhoff 1965) 189–90CrossRefGoogle Scholar
Cassese, A, International Criminal Law, 2nd edn (Oxford University Press 2008) 51Google Scholar
Jennings, RY, Interview in Antonio Cassese, Five Masters of International Law (Hart Publishing 2011) 115, 176Google Scholar
de Visscher, C, Problèmes d’Interpretation Judiciaire en Droit International Public (Pedone 1963) 50Google Scholar
Hogg, JF, ‘The International Court: Rules of Treaty Interpretation’ (1958) 43 Minn L Rev369, 372–74Google Scholar
Fitzmaurice, GG, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’ (1951) 28 British Ybk Int’l L1, 6–7Google Scholar
Ashworth, A, Principles of Criminal Law, 4th edn (Oxford University Press 2003) 82Google Scholar
Orentlicher, DF, ‘Criminalizing Hate Speech in the Crucible of Trial: Prosecutor v. Nahimana’ (2005) 12 New England J Int’l & Comp L17Google Scholar
Jessberger, F, ‘Bad Torture – Good Torture? What International Criminal Lawyers may Learn from the Recent Trial of Police Officers in Germany’ (2005) 3 J Int’l Crim Justice1059CrossRefGoogle Scholar
Gaeta, P, ‘May Necessity be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?’ (2004) 2 J Int’l Crim Justice785)CrossRefGoogle Scholar
Schabas, WA, ‘Criminal Responsibility for Violations of Human Rights’ in Symonides, J (ed.), Human Rights: International Protection, Monitoring, Enforcement (UNESCO 2003) 281Google Scholar
Van Schaack, B, ‘Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals’ (2008) 97 Georgetown LJ119, 139–40Google Scholar
Robinson, PH, ‘Legality and Discretion in the Distribution of Criminal Sanctions’ (1988) 25 Harv J on Legis393, 430–31Google Scholar
Bassiouni, MC, Crimes against Humanity in International Criminal Law (Martinus Nijhoff 1992) 130Google Scholar
Ashworth, (n. 36) 432 (citing Law Commission No. 177, Criminal Law: A Criminal Code for England and Wales, vols. I–II (1989) para. 3.17)
Akande, D, ‘The Sources of International Criminal Law’ in Cassese, A (ed.), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) 41, 45Google Scholar
Jacobs, D, ‘Positivism and International Criminal Law: The Principle of Legality as a Rule of Conflict of Theories’ in d’Aspremont, J and Kammerhofer, J (eds.), International Legal Positivism in a Post-Modern World (Cambridge University Press, forthcoming October 2014), 1Google Scholar
German, H and Spindler, J, Soviet Criminal Law and Procedure: The RSFSR Codes, 2nd edn (Harvard University Press 1972) 22Google Scholar
Ribeiro, M, Limiting Arbitrary Power: The Vagueness Doctrine in Canadian Constitutional Law (University of British Columbia Press 2005) 20Google Scholar
Summers, RS and Taruffo, M, ‘Interpretation and Comparative Analysis’ in MacCormick, DN and Summers, RS (eds.), Interpreting Statutes: A Comparative Study (Dartmouth Publishing Company Ltd 1991) 461, 471–72Google Scholar
Bassiouni, MC, ‘Principles of Legality in International and Comparative Law’, in International Criminal Law: Sources, Subjects and Contents, vol. I (Martinus Nijhoff 2008) 83Google Scholar
Bassiouni, MC and Manikas, P, The Law of the International Criminal Tribunal for the Former Yugoslavia (Transnational 1996) 279Google Scholar
Jennings, R and Watts, A, Oppenheim’s International Law, 9th edn (Longman, Harlow 1992) 1279–80Google Scholar

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