The Principle of Legality at the Crossroads of Human Rights and International Criminal Law
Forthcoming in Margaret deGuzman and Diane Amann (eds.), Arcs of Global Justice; Essays in Honor of William A. Schabas, Oxford University Press, 2016.
21 Pages Posted: 18 Aug 2015
Date Written: August 13, 2015
The rights associated with a fair trial lie at the intersection of international criminal law and human rights. Prominent among the fair trial guarantees, and a recurring point of tension in international criminal justice, is the principle of legality and its rule against retroactive application of criminal law. Accused persons in international trials from Nuremberg to the Hague have sought to challenge the legality and legitimacy of the proceedings against them, arguing that rules and laws being applied violate the principle of nullum crimen sine lege. For William Schabas, retroactivity has ‘obsessed international criminal justice since its earliest days’ and has given rise to ‘unceasing controversy’. This essay explores the treatment of the principle of legality in international criminal law, in particular the rule against ex post facto application of criminal laws, as enshrined in human rights law. It considers how judicial bodies and scholars have interpreted the parameters of the principle. The essays demonstrates that a broadly liberal interpretation of nullum crimen has facilitated judicial creativity and the development of international criminal law by international courts and tribunals.
Keywords: Human rights, international criminal law, legality, nullum crimen, war crimes, crimes against humanity, fair trial
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