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OBSTACLES AND ADVANCES OF THE PRINCIPLE OF LEGALITY OF CRIMES
AND PUNISHMENTS IN INTERNATIONAL CRIMINAL LAW
Dr. Mohammad Tariq Wamiq
1
Dean of the Faculty of Law and Political Science at Jami University.
Qadruddin Akbari
2
https://doi.org/10.5281/zenodo.15321052
Abstract. International criminal proceedings have been consistently criticized due to the
lack of an international legislative system, mandatory competent courts, and organized
enforcement mechanisms. These factors are essential for establishing a comprehensive and
credible legal framework. These shortcomings were particularly evident during the Nuremberg
and Tokyo trials, where reliance on the concept of "justice" could not fill the void left by the
absence of "legality." The criticisms raised during and after these trials highlighted the
importance of the principles of legality of crimes and punishments within international criminal
law. Although the process of accepting and establishing these principles has been slow, it has
progressed steadily. A historical examination of international criminal proceedings—from the
Leipzig High Court in the early 20th century, the Nuremberg and Tokyo trials in the mid-
century, the International Criminal Tribunals for the former Yugoslavia and Rwanda in the
1990s, and ad hoc tribunals like the Special Court for Sierra Leone to the International Criminal
Court (ICC) at the beginning of the 21st century—demonstrates a profound and gradual
evolution in the acceptance and implementation of the principles of legality of crimes and
punishments. This process began with denial and initial indifference to these principles and
ultimately reached a point where adherence to them was explicitly stated as a legal necessity.
This evolution reflects the continuous efforts of the international community to strengthen
the legal foundations of international criminal proceedings and ensure the rights of the accused.
Keywords: Crime, Punishment, Principle of Legality, Jurisprudence, International
Criminal Courts.
ПРЕПЯТСТВИЯ И ДОСТИЖЕНИЯ ПРИНЦИПА ЗАКОННОСТИ
ПРЕСТУПЛЕНИЙ И НАКАЗАНИЙ В МЕЖДУНАРОДНОМ УГОЛОВНОМ ПРАВЕ
Аннотация. Международное уголовное судопроизводство постоянно подвергалось
критике из-за отсутствия международной законодательной системы, обязательных
1
2
Master's student in Criminal Law and Criminology at Jami University.
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компетентных судов и организованных механизмов принуждения. Эти факторы имеют
важное значение для создания всеобъемлющей и надежной правовой базы. Эти
недостатки были особенно очевидны во время Нюрнбергского и Токийского процессов,
где опора на концепцию «справедливости» не смогла заполнить пустоту,
образовавшуюся из-за отсутствия «законности». Критика, высказанная во время и после
этих процессов, подчеркнула важность принципов законности преступлений и наказаний
в международном уголовном праве.
Хотя процесс принятия и установления этих принципов был медленным, он
неуклонно
продвигался.
Исторический
анализ
международного
уголовного
судопроизводства — от Лейпцигского Высокого суда в начале XX века, Нюрнбергского и
Токийского процессов в середине века, Международных уголовных трибуналов по бывшей
Югославии и Руанде в 1990-х годах и специальных трибуналов, таких как Специальный
суд по Сьерра-Леоне, до Международного уголовного суда (МУС) в начале XXI века —
демонстрирует глубокую и постепенную эволюцию в принятии и реализации принципов
законности преступлений и наказаний. Этот процесс начался с отрицания и
первоначального безразличия к этим принципам и в конечном итоге достиг точки, когда
их соблюдение было прямо заявлено как юридическая необходимость. Эта эволюция
отражает постоянные усилия международного сообщества по укреплению правовых
основ международного уголовного судопроизводства и обеспечению прав обвиняемых.
Ключевые слова: Преступление, Наказание, Принцип законности, Юриспруденция,
Международные уголовные суды.
Introduction
The principle of legality of crimes and punishments is considered a fundamental pillar of
criminal law in national systems, where the criminalization of conduct and the imposition of
penalties outside the legal framework are deemed unacceptable. However, the fundamental
question arises: is this principle applicable in the realm of international criminal law? The
rationale behind this inquiry lies in the structural differences between national and international
criminal law systems. At the national level, the existence of legislative bodies, the codification of
laws, mandatory competent courts, and criminal enforcement mechanisms, alongside a unified
political authority, facilitate the implementation of the principle of legality of crimes and
punishments.
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Conversely, at the international level, the absence of a central legislator, the customary
nature of certain criminal rules, ambiguity in international treaties, and lack of clarity in defining
crimes and punishments have posed significant challenges.
At first glance, it was presumed that the application of the principle of legality in
international criminal law was not feasible. This erroneous perception was evident in the
Nuremberg Trials, where judges detached this principle from international crimes. Their mistake
lay in failing to distinguish between the concept and the instances of this principle. While the
essence of the principle of legality reflects the musts and must-nots that are enforceable in both
national and international law, its application may differ. For instance, in the national system,
law refers to parliamentary enactments, while at the international level, it may encompass
peremptory customary rules or multilateral treaties. International criminal proceedings, such as
those of the former Yugoslavia and Rwanda, have relied on this principle.
However, international criminal proceedings in the 20th century shared common
characteristics that hindered the full realization of this principle, including the temporary nature
of courts, disputes over jurisdiction, lack of centralized enforcement mechanisms, and imprecise
definitions of crimes and punishments. During this period, international criminal law rules were
still not systematized, and international customs played a decisive role that, alone, was
insufficient for the realization of the principle of legality. This period can be termed as the
"unsystematized phase of international criminal law."
With the emergence of the International Criminal Court as a permanent authority, the
belief strengthened that the lack of an international legislator should not impede the enforcement
of the principle of legality. Multilateral treaties, widely accepted by states and binding on non-
members, could act as a substitute for legislation. Here, questions arise: Is adherence to the
principle of legality essential in international criminal law? Has this principle been respected in
international proceedings? Assuming that compliance with this principle is necessary at both
national and international levels, critiques of international criminal proceedings indicate
violations of this principle in multiple instances. However, these criticisms do not imply the
disregard of legal achievements in this area; rather, they highlight the necessity for further
evolution of these principles in international criminal law.
Significant developments in the acceptance of this principle indicate that international
criminal law is moving toward systematization.
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To analyze this process in greater detail, it can be examined in three stages: 1. The
concept of the principle of legality of crimes and punishments; 2.
The inclination towards the acceptance of this principle at the international level; 3. The
manifestation of this principle in international criminal proceedings.
The Principle of Legality of Crimes and Punishments
The principle of legality of crimes and punishments is one of the fundamental principles
of criminal law, stipulating that no act shall be considered a crime, nor shall any punishment be
imposed, unless it has been previously defined by law. This principle is designed to protect
individual freedoms and create transparency within the criminal justice system, allowing
members of society to be aware in advance of what is considered a crime and the corresponding
punishments. According to this principle, the legislative authority is obliged to establish crimes
and penalties clearly and explicitly in codified laws, and no judicial or executive authority may
declare any act a crime or impose a punishment outside the framework of established laws. This
principle ensures that citizens are only punished for violating clearly defined and enacted laws,
thereby preventing arbitrary actions by judicial or executive bodies (Khalighi, 2011: 132).
The principle of legality also prevents the retroactive application of laws and emphasizes
the necessity of defining crimes and punishments based on the laws in effect at the time the
crime was committed. This principle is also recognized in international criminal law; however,
due to the absence of an international legislator and differences in legal sources, its
implementation has encountered challenges. Nevertheless, international treaties, peremptory
norms, and the jurisprudence of international courts have played a significant role in realizing
this principle at the international level (Mir Mohammad Sadeghi, 2013: 185).
A: The Principle of Legality of Crimes
This principle emphasizes that criminalization must be prior and clear, and no individual
should be punished for an act that was not considered a crime at the time of its commission. In
the initial international criminal proceedings, such as the Nuremberg and Tokyo Trials, the
principle of legality of crimes was not fully upheld. However, subsequent international courts,
including the International Criminal Tribunal for the former Yugoslavia and Rwanda, made
efforts to adopt this principle. Nevertheless, certain challenges persisted, such as the use of
customary rules and ambiguous terms in defining crimes, which allowed for broad interpretation
and analogy (Shari'at Baqeri, 2013: 245). For example, in the statute of the Yugoslav Tribunal,
some crimes, such as war crimes, were presented without precise definitions, requiring the court
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to interpret these crimes. In some instances, these interpretations led to violations of the principle
of legality of crimes, as the expansion of criminalization occurred through humanitarian law
customs (Aqa'i Nia, 2006: 65).
B: The Principle of Legality of Punishments
This principle states that the law must precisely define the scope and type of punishment
for each crime. In international criminal law, the principle of legality of punishments was
somewhat accepted in the Yugoslav and Rwandan courts; however, challenges remained, such as
the lack of precise frameworks for punishments and the delegation of the determination of prison
terms to judicial panels. For instance, the statute of the Yugoslav Tribunal only provided for
imprisonment as a punishment without specifying maximum and minimum penalties. This
resulted in judges having significant discretion in determining sentences, which conflicted with
the principle of legality of punishments (A'vaz, 1980: 245).
Overall, in the 1990s, efforts to adopt the principle of legality of crimes and punishments
in international law began. The establishment of courts such as the International Criminal
Tribunal for the former Yugoslavia and Rwanda, and later the Special Court for Sierra Leone,
exemplifies these efforts. The Sierra Leone Court attempted for the first time to distinguish
between international and national crimes, utilizing a combination of domestic and international
laws to uphold this principle. However, challenges in precisely defining crimes and determining
punishments remained. Notably, the use of vague and ambiguous terms in statutes allowed for
analogy and expansion of the scope of crimes (Kiti Shiazeri, 2004: 155).
Willingness to Accept the Principle of Legality of Crimes and Punishments
During this period, the trend in international criminal proceedings gradually moved away
from denying the principles of legality of crimes and punishments, revealing a growing
inclination toward the acceptance of these principles in judicial practices. Although the statutes
of international criminal courts during this period did not explicitly require adherence to the
principle of legality, the performance of these courts indicated a shift toward embracing general
principles of criminal law (Mir Saidi, 2007: 140). The most notable symbol of this
transformation can be observed in the establishment of the International Criminal Tribunal for
the former Yugoslavia in 1993. This court sought to provide a legal framework for addressing
war crimes and crimes against humanity by relying on customary rules and accepted legal
principles.
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However, despite this positive step, developments related to the principle of legality of
crimes and punishments are still deemed insufficient, with challenges such as the lack of clarity
in defining certain crimes and the absence of comprehensive legal resources in international
proceedings persisting (Qudsi, 2002: 158).
A: The Principle of Legality of Crimes
The statute of this criminal court does not explicitly refer to the principle of legality of
crimes. On the other hand, it does not accept the legal consequences arising from this principle,
except for the presumption of innocence in Article 21, Paragraph 3, which does not obligate the
court to interpret criminal rules restrictively and in favor of the accused, nor does it prohibit the
retroactive application of criminal rules or analogical reasoning in criminal matters. The four
crimes under the court's jurisdiction include grave breaches of the Geneva Conventions (1949),
violations of the laws and customs of war, genocide, and crimes against humanity, as stated in
Articles 2, 3, 4, and 5 of the statute. The crimes specified in Article 2 are problematic because
their elements are neither defined nor explained in the relevant conventions or in the statute
itself.
Although international conventions have been somewhat successful in defining some
examples of criminal acts and partially satisfying the criteria of the principle of legality of
crimes, ambiguity in defining the criminal responsibility of perpetrators and the generality of
crimes has created challenges in adhering to this principle. Particularly, the use of figurative
language regarding war crimes in the relevant statutes has facilitated recourse to analogy in
international criminal proceedings. In the “Tadic” case in the appeals chamber of the Yugoslav
Tribunal, Article 3 of the court's statute stated that customary international humanitarian law
rules apply to internal armed conflicts as well. However, the court's statute emphasized only the
regulations contained within it and did not explicitly reference other sources of international
criminal law. Therefore, the expansion of criminalization through customary rules is
questionable and cannot be fully aligned with the principle of legality. The report of the United
Nations Secretary-General regarding the establishment of this court also specified that Article 3
of the statute is only applicable in international armed conflicts (Mohseni, 2003: 251).
Furthermore, the statute of the International Criminal Tribunal for Rwanda explicitly
criminalized violations of Article 3 common to the Geneva Conventions and Additional Protocol
II for addressing crimes in internal conflicts.
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This indicates that at that time, there were no established and binding customary rules,
and such an expansion in criminalization is considered contrary to the principle of legality.
Regarding the crime of genocide, the statute's provisions in Article 4 reiterate Article 2 of
the Convention on the Prevention and Punishment of the Crime of Genocide (1948). The
Security Council also deemed this convention as one of the "peremptory" norms, binding for all
states. The inclusion of other inhumane acts in the definition of crimes against humanity in
Article 5 facilitated analogy and undermined the principle of legality of crimes. Deficiencies in
the statute led the court in the Krstic case to define destruction as an instance of a crime against
humanity; in addition to the general conditions for a crime against humanity, it must be proven
that a specific population was targeted and its members were killed or subjected to conditions
aimed at destruction. Additionally, in the Furundzija case, the court referred to international law
and the general principles common to major legal systems in defining the concept of dishonor.
Importantly, the Yugoslav Tribunal stated in the Aleksovski case that the judgments of
the trial chambers, if confirmed by the appeals chamber, are binding for all trial and appeals
chambers in similar cases. Thus, the roles of legislator and judge become intertwined, as,
according to the principle of legality of crimes, the definition and explanation of the concept of a
crime belong to the law, and the determination of its instances lies with the judicial authority
(Aqa'i Janteh Makan, 2007: 145).
B: The Principle of Legality of Punishments
The principle of legality of punishments indicates that the law must clearly specify the
scope and framework of punishment for each crime. In this regard, developments in international
criminal law in the 1990s are significant compared to the 1940s of the 20th century. During this
period, the statutes of international criminal courts took initial steps toward implementing this
principle, and the traditional view that deemed adherence to the principle of legality unnecessary
in international law gave way to a gradual acceptance of this principle. This transformation
represents an important step toward achieving international criminal justice, as it reflects efforts
to make criminal laws binding and specify defined punishments. However, the international
proceedings in this area have also faced challenges, and the full implementation of this principle
requires addressing ambiguities and strengthening legal resources (Ketabi, 1963: 181).
This text examines the trends and challenges related to the acceptance of the principle of
legality of crimes and punishments in international criminal proceedings, emphasizing the need
for clarity and precision in laws.
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Advancements and Challenges of the Principle of Legality of Punishments in
International Criminal Proceedings
1. Advancements
In international criminal proceedings, the acceptance of the principle of legality of
punishments has significantly improved during this period. Major advancements include:
•
Prohibition of the Death Penalty
: This approach represents a positive shift in the
international criminal justice system, respecting human rights and human values.
•
Recognition of National Court Sentences
: This reflects the alignment of international
and national laws, aiding the administration of justice.
•
Relatively Detailed Specification of Crimes Under Jurisdiction
: This action enhances
clarity and reduces ambiguity in criminal laws.
•
Uniform Application of Criminal Laws
: This principle fosters balance and fairness in
international proceedings.
•
Commitment to the Presumption of Innocence
: This principle supports the rights of
the accused and helps prevent unjust convictions.
•
Specification of Mitigating Factors and Conditions for Punishment Execution
: This
helps judges issue fairer sentences (Nabipour, 2013: 59).
2. Challenges
Despite these advancements, serious challenges related to the principle of legality of
punishments persist:
•
Lack of Structured Punishments
: According to the statute, punishments are primarily
confined to imprisonment, with the determination of prison terms relying on the common
practices of the former Yugoslav courts. This can lead to significant inequalities in punishments.
•
Ambiguity in Conditions of Criminal Responsibility
: In the "Oric" ruling, the court
specified that it is the court's responsibility to decide on various excuses, including minimum age
and mental disorders. This ambiguity can result in unjust sentences.
•
Potential Conflicts Between National Laws and Statutory Regulations
: Such conflicts
can create obstacles for the implementation of the principle of legality of punishments,
particularly in cases of pardoning convicts, parole, or suspension of sentences.
•
Lack of Guarantee for the Right to Appeal for Convicts
: According to the statute,
appeals can only be made in two instances against the judgments issued by trial chambers, and
this limitation can undermine the rights of the accused.
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•
Excessive Emphasis on Judicial Precedent
: Currently, the judiciary still possesses
absolute power in determining punishments, while guaranteeing the principle of legality of
punishments necessitates a reduction in the discretionary power of judges.
•
Superficial and Misleading Attitude Toward the Principle of Legality of
Punishments
: The statute of the International Tribunal for Rwanda (1994), despite defining
genocide, war crimes, and crimes against humanity, refrained from including a provision to
determine the severity of punishments for the convicted. (Kasseh, 2008: 158).
Given these challenges, it can be concluded that the principle of legality of punishments in
international criminal proceedings faces significant issues and requires reforms and enhanced
clarity in laws. These challenges not only impact the administration of justice but may also
undermine the credibility and legitimacy of the international criminal justice system.
The Formation of the Principle of Legality of Crimes and Punishments
In contemporary times, international and hybrid courts have made significant efforts to
incorporate national criminal laws alongside international sources as applicable law, taking steps
to meet the requirements of the principle of legality of crimes and punishments. This approach
clearly demonstrates the commitment of these courts to uphold the principle of legality, as
national criminal law recognizes this principle as one of the fundamental foundations of the
criminal justice system. (Halawi Gabriel, 2015: 185).
Notable Example: Special Court for Sierra Leone
One prominent example in this regard is the Special Court for Sierra Leone, recognized
as a third-generation international court. This court was established based on an agreement
between the government of Sierra Leone and the United Nations, and its statute combines
international criminal law, international humanitarian law, and the domestic laws of Sierra
Leone. This hybrid structure represents a new effort to align legal principles in international
criminal proceedings and lays the groundwork for the development of this principle globally
(Susan Lamb, 2002: 191).
Conclusion
Initially, the architects of international criminal proceedings disregarded the principles of
legality of crimes and punishments, hindering their implementation. The judges of the
Nuremberg Trials believed that the demands of justice left no necessity for adhering to these
principles.
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However, over time, the legal rationale and the global community's need to address this
deficiency prompted extensive efforts to formulate laws and adopt international conventions.
Gradually, these efforts bore fruit, leading to different approaches in the statutes of the ad hoc
tribunals for the former Yugoslavia and Rwanda, marking a significant step forward compared to
the past. Ultimately, the establishment of the International Criminal Court as the sole permanent
authority in international criminal proceedings fundamentally recognized the principles of
legality of crimes and punishments.
This transformation led to the emergence of principles such as the prohibition of analogy,
the ban on retroactive application of criminal laws, and an emphasis on fair trial standards as
guaranteed measures in international criminal law. While past violations of these principles were
seen as the starting point for the human rights movement, international criminal law has now
matured to a point where it can be regarded as a comprehensive legal system. Nonetheless,
despite the fundamental advancements in this area, these principles still face challenges and have
not yet achieved their rightful status.
One of the most significant threats to the principle of legality of international crimes
remains the reliance on analogy in criminalization. To address this issue, it is crucial for
international criminal law rules to be formulated in a way that prevents judicial precedent from
creating new crimes and punishments, or at least minimizes this process. In this regard, the role
of judicial precedent should be limited in clarifying the specifics of criminalized concepts.
Criminal rules should provide a comprehensive and clear definition of the term "crime," rather
than vague and ambiguous concepts, leaving the determination of specific cases to judges based
on illustrative definitions. This approach not only secures the requirements of the principle of
legality of crimes but also ensures public safety and social defense against offenders.
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