Nullum Crimen Sine Lege is a non-derogable fundamental principle of criminal law which requires that the prohibited act and penalties must be pre-established by law for a valid conviction. This basic principle provides effective safeguard against the arbitrary prosecution, conviction, and punishment. Here the question arises as to the interpretation of the term pre-established by law. Does it connote international law or domestic law, because an act may be criminal under international law but not necessarily under domestic Law and vice versa; further which law should prevail over another this problem was not solved till the International Criminal Court (ICC) recognized the principle of Complementarity of jurisdiction according to which jurisdiction of ICC shall be triggered only if domestic laws are incapable of punishing the war criminal. Thus a dictator though can immunize himself from jurisdiction but can’t from the ICC jurisdiction.
Existence of offence either in national or international level shows that Nullem Crimen Sine Lege principle is not violated in strict sense. Specificity, certainty, foresees ability and accountability are the essential elements of a valid law. Hence a law to be valid must qualify to these tests. If we put the Nuremburg and Tokyo judgment on these tests , none of them are satisfied and hence may be called as victor’s Justice, but whether the condition was same when ICTY and ICTR was constituted and whether they failed to satisfy these tests the obvious answer would be no as at that time certain international crimes as described in Anti Genocide Convention of 1948, Geneva convention of 1949 with its two protocols of 1977 and several other treaties and conventions got specificity, certainty, reasonable foresee ability of punishment, accessibility to different national, regional and international institutions for their prevention and individual accountability for them , hence the judgment based on those laws were to a greater extent valid.
Nullem crimen sine lege is the principle of legal justice not the principle of Justice which is ideal. Hence protection of this principle must be used to prevent the arbitrariness of the laws and punishments; not to use as a shield against the acts which is extremely serious crimes against humanity. There are two ways to keep pace with the changing nature of offences i.e either by creation of new laws or by reasonable extension of the existing laws to cover those offences. First falls within the domen of legislature while the second falls within the domen of Judiciary. Principle of Nullem Crimen Sine Lege does not make a bar to the progressive development of criminal law by judiciary provided they are reasonably foreseeable which is assessed in the light of contemporary national and international development and objective of the statute concerned , as was rightly observed in C.R. v U.K, Tadic ,and Furundzija cases .
Due to the lack of sufficient development of ICL ,originally the application of Nullem crimen sine lege principle was liberalized to a greater extent and all pre ICC war tribunals were given wider discretion to interpret and determine its jurisdiction, procedures and penalties , and hence the judgments suffered from retrospective operation of law ,biasness, etc. which were later on cured by ICC because it has prescribed the offences in advance, contents of offences are elaborately described, judges are already appointed, it has wider jurisdiction & it favours strict application of Nullem Crimen Sine Lege principles, principle of innocence , describing minimum and maximum punishments for different penalties at different stages of offences it has reduced the judges desertion in playing with justice. ICC has jurisdiction over offences only if it is committed after the its enforcement i.e. 1 July 2002. However strict compliance of Nullem Crimen Sine Lege principle does not mean that it has closed its doors for further developments as Article 21 of the Rome statute of international Criminal Court gives it jurisdiction to determine a case in the light of human rights and secondary sources like treaties, conventions, general principles of law derived from courts etc.
The most advantage feature of the Rome statute of ICC is that element by element description of several offences at different stages with different punishments gives the court an opportunity to determine the individual criminal responsibility besides joint liability. Hence if an act does not satisfy the elements of a serious offence, it may satisfy the elements of a less serious offence, thus it does not suffer from the lack of specificity or certainty of the offence. Originally there were only two options for a judge either to punish or acquit which depends upon proving all the elements of that crime hence the judges had tendency to punish the acts with extension of existing penal laws with the same sentence even though all elements of that crime were not satisfied. It further protects the persons involved in dangerous war criminal activities with good motive by making a distinction between conscious recklessness and unconscious negligence.
ICC encompasses within it certain offences committed during internal conflicts as war crimes and crimes against humanity. Thus now no dictator can take defense of state sovereignty or superior orders or any other defenses for the most heinous offences whether during peace or at war time within or beyond the domestic state. In nutshell principle of Nullum Crimen Sine Lege and Nulla Poena Sine lege should be strictly complied except in exceptional cases in consonance with article 21 of the Rome statute of international criminal court. Further the Security Council should be debarred to use veto when a situation (Security Council can’t refer directly the defendants for trial, it can only refer situations on basis of which ICC itself decides upon whom it should conduct trial) is brought to the Security Council to refer it or not to the ICC.
Find More Criminal Law Articles
Tags: basic principle, fundamental principle, geneva convention of 1949, genocide convention, international crimes, international criminal court, international institutions, nuremburg, principle of complementarity, strict sense