Legality as a Rule of Customary International Law: Non-Retroactivity of Crimes and Punishments - research through 2010

LEGALITY AND CRIMINAL LAW, Juan Pablo Montiel, ed., 2011

UALR Bowen School Research Paper No. 11-12

82 Pages Posted: 17 Jun 2011 Last revised: 14 Dec 2011

Kenneth S. Gallant

University of Arkansas at Little Rock - William H. Bowen School of Law

Date Written: June 14, 2011

Abstract

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.

Suggested Citation

Gallant, Kenneth S., Legality as a Rule of Customary International Law: Non-Retroactivity of Crimes and Punishments - research through 2010 (June 14, 2011). LEGALITY AND CRIMINAL LAW, Juan Pablo Montiel, ed., 2011; UALR Bowen School Research Paper No. 11-12. Available at SSRN: https://ssrn.com/abstract=1864930

Kenneth S. Gallant (Contact Author)

University of Arkansas at Little Rock - William H. Bowen School of Law ( email )

1201 McMath Street
Little Rock, AR 72202
United States
501-324-9912 (Phone)

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