Legality as a Rule of Customary International Law: Non-Retroactivity of Crimes and Punishments - research through 2010
Kenneth S. Gallant
University of Arkansas at Little Rock - William H. Bowen School of Law
June 14, 2011
LEGALITY AND CRIMINAL LAW, Juan Pablo Montiel, ed., 2011
UALR Bowen School Research Paper No. 11-12
Both nullum crimen sine lege [nothing is a crime without law against it] and nulla poena sine lege [no punishment may be imposed for crime without law authorizing it] have become rules of customary international law which bind both states and international organizations. They forbid the retroactive creation of crimes and retroactive creation or increase of criminal punishments – though the current. They apply as binding customary and treaty international human rights protections to prosecutions brought under both national and international criminal law, and in both national and international tribunals. This piece shows how the principles of notice, foreseeability and accessibility of law can provide a working definition of non-retroactivity of crimes and punishments, even though language itself always has some indeterminacy. This chapter demonstrates, contrary to views popular in some circles, that nullum crimen and nulla poena truly apply in international criminal law – though the form of the prohibitions in international law are not quite as strong as their form in some civil law countries.
This piece also includes citation to constitutional and statutory provisions from about 190 nation-states from around the world, treaty provisions, practice of international organizations (including international criminal courts and tribunals), and other historical and current sources.
Number of Pages in PDF File: 82Accepted Paper Series
Date posted: June 17, 2011 ; Last revised: December 14, 2011
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