Academic journal article Denver Journal of International Law and Policy

General Rules of Criminal Law

Academic journal article Denver Journal of International Law and Policy

General Rules of Criminal Law

Article excerpt

In discussions of the problems connected with the establishment of an international criminal court, attention has naturally turned to the question of the nature of the law to be applied by the proposed court.

In Europe, down through the eighteenth century, criminal as well as civil law was largely based on a common law (ius commune) that transcended national boundaries.(1) The situation is described in scathing terms in the opening line of the preface to Beccaria's essay On Crimes and Punishments:

A few remnants of the legislation of a former conquering people

compiled by a prince who reigned at Constantinople twelve centuries

ago, afterwards mixed up with the customs of the Lombards,

and buried in a voluminous muddle of obscure commentaries -- these

comprise the hotch-potch of opinions to which a large part of

Europe has given the name of law; and thus, even today, it is as

deplorable as it is common that an opinion of Carpzov, an ancient

practice noted by Clarus, a torture proposed with barbaric complacency

by Farinacci, provide the rules so confidently administered by

men who ought to tremble when they decide on the lives and for

tunes of their fellow citizens.(2)

The eighteenth-century movement for penal reform swept all this away. Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789 declared: "no one may be punished except by virtue of a law (loi) drawn up and promulgated before the offense is committed"; the first (and only) code adopted during the French Revolution was the penal code of 1791. Almost everywhere (and nowadays, to a large extent, even in countries following English common law), the principle of legality has been taken to require that crimes be specifically proscribed by law in advance of the conduct sought to be punished. The most well-known formulation of the principle is Anselm Feuerbach's maxim: nullum crimen nulla poena sine lege. In its classical formulations, the principle requires that crimes and punishments be defined in a statute (loi, lex) promulgated prior to the offense.

A slightly diluted version of the principle appears in Article 11(2) of the Universal Declaration of Human Rights:

No one shall be held guilty of any penal offence on account of any

act or omission which did not constitute a penal offence, under national

or international law, at the time it was committed. Nor shall

a heavier penalty be imposed than the one that was applicable at

the time the penal offence was committed.(3)

Article 15 of the International Covenant on Civil and Political Rights(4) contains virtually the same language:

No one shall be held guilty of any criminal offense on account of

any act or omission which did not constitute a criminal offense,

under national or international law, at the time when it was committed.

Nor shall a heavier penalty be imposed than the one that

was applicable at the time when the criminal offence was

committed...

Article 15 of the Covenant then adds the qualification: "Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."

In these statements, it is not necessarily required that the offense be proscribed by a pre-existing statute, only by pre-existing law. The weaker formulation of the principle in international instruments preserves the possibility of prosecution for at least pre-existing common law crimes and of prosecution for violations of customary international law.

Article 39 of the International Law Commission's Draft Statute for an International Criminal Court(5) is titled "Principle of legality (nullum crimen sine lege). …

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