Nullum Crimen sine Lege in The International Criminal Court

• Author: Venus Ghareh Baghi - Dr. T. R. Mruthi

Venus Ghareh Baghi - Open University, Iran - venus_gh645@yahoo.com

Dr. T. R. Mruthi - Mysore University in India - maruti@yahoo.com

Introduction

The general principle of all criminal law-nullum crimen nulla poena sine lege-was already mentioned. Many call it the principle of legality (in its narrow sense). The said principle is an achievement from the 1789 French Declaration of the Rights of Man and of the Citizen and is embodied in the constitutions of a great many of States as being one of the guarantees of the rights of individuals¹ even if, strictly speaking, it is not a peremptory norm of general international law (jus cogens), it is better to observe it than to undermine its importance in any criminal proceedings.²

Nullum crimen sine lege scripta: the basis of a criminal charge should be either in the national law of a State, or in a Statute of an ICC or tribunal. In both instances, the matter should be subject to a rule of positive law in written form. This excludes incriminations based exclusively on (unwritten) customary law.

Nullum crimen sine lege certa: the elements of crimes must be precisely defined by a rule. This forbids the criminal judge to resort to analogy. To this end, the Assembly of States Parties to the Rome Statute of 1998 has adopted the Elements of Crimes, to be applied by the ICC.

Nullum crimen sine lege previa: a crime must be forbidden by law at the time of its commission. Retrospective application of new criminal laws is forbidden, unless they were more favorable to the accused (lex mitius).

Nulla poena sine lege: the penalties for specific crimes should also be provided by a legal rule in advance. It is hard to strictly respect this requirement in international criminal proceedings. The scale of prison sentences for the crimes within the competence of international criminal tribunals have so far not been provided in their Statutes.³

The constructional foundations of the crime, including the actus reus,mens rea and legal base are discussed in the criminal law. In this discussion, the necessity of approving laws related to the criminal titles is emphasized, and this notion is introduced in the legality principle of crimes and punishments in the Criminal Law. This principle is obtained from Latin phrase "nullum crimen,nullum crimen,nulla poena sine lege". Legality is derived from the rules of law and has several conditions.

1. Laws must be adapted and enforced in accordance with established procedural steps that are referred to as due process. In constitutional theory, decision about what conducts should be taken criminal should be considered by the legislature and these decisions should be implemented by the executive and applied by the Court. Where statutory penalty laws must create a guarantee to the individual, considered as a fundamental right, that he would not be prosecuted for an action or omission that was not considered a crime according to the statutes passed by the legislators in force at the time of the action or omission, and that only those penalties that were in place when the infringement took place would be applied. Also, even if one considers that certain actions are prohibited under general principles of international law, critics point out that a prohibition in a general principle does not amount for the establishment of a crime, and that the rules of international law also do not stipulate specific penalties for the violations. ⁴The other arguments, the judge will be able to give a clear decision on the law to make the jury's job easier and lessen the need for appeal to the Court. In this appeal "a" is the direction by judges and another advantage proponent to a code argue that in drafting it the contradiction and ambiguities in the law can be removed.⁵

2. the principle requires that criminal behavior be laid down as clearly as possible in definition of the crime. But this standard is less rigid than is usually required in continental European law and statue of Rome

3. the law must be readily available to the public if all the laws were kept secret even if they were written in the clearest language

1. Consequences of nullum crimen sine lege

Exposit facto law or retroactive law

1. According to article 15 International Convent on Civil and Political Rights international law,. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If subsequently to the omission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. According to the mentioned rule and also the religious rule if an apostate converts to Islam and becomes a Muslim, he won't be punished or chastised for his irreligious acts, which were committed when he had been a pagan. In other words, the newly announced law is not related to the past, since it hasn't been expressed before. Generally, the rational...