Nullum crimen, nulla poena sine lege: Aspects and prospects

Statute Law Review

Volumn 26, Issue 1, 2005, Pages 41-55

  Mokhtar, Aly ^a  

^a Egyptian Ministry of Justice   (Afghanistan)

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EID: 27644527116     PISSN: 01443593     EISSN: None     Source Type: Journal    
DOI: 10.1093/slr/hmi005     Document Type: Article

References (128)

1. See Aly Mokhtar, An Egyptian Judicial Perspective, in Voices from the Bench: Esteemed Members of the Federal, Colorado State, and Foreign Judiciary Speak Freely, Denver University Law Review Volume 80 issue 4, 2003.
2. See also, Stefan Glaser, Nullum Crimen Sine Lege, 24 J Comp Leg Int L 29 (1942). For a thorough annotated bibliography regarding the maxim in universal instruments, regional instruments, international courts and tribunals, soft law instruments in domestic tribunals,
3. see Aly Mokhtar, Nullum crimen sine lege, nulla poena sine lege: An Enigma, in The Global Community Yearbook of International Law & Jurisprudence 2003, 3 vol. (II) at 1263.
4. For instance the first provision of Hammurabi code of Laws reads as follows: '1. If any one ensnare another, putting a ban upon him, but he can not prove it, then he that ensnared him shall be put to death'. See, http://eawc.evansville.edu/anthology/hammurabi.htm (accessed 17 May 2002).
5. Paul Vinogradoff, Outlines of Historical Jurisprudence: The Jurisprudence of the Greek City, vol 2 (Oxford: Oxford University Press, 1922) at pp. 139-140.
6. It should be noted that the Roman law developed as a mixture of laws, 'senatorial consults, imperial decrees, case law, and opinions issued by jurists. One of the most long lasting of Justinian's actions was the gathering of these materials in the 530s into a single collection, later known as the Corpus Iuris Civilis [The Code of Civil Law].' See, http://www.fordham.edu/halsall/source/cjc-marriage.html (accessed 30 July 2002).
7. S. D'Angelo, Jus Digestorum, vol I Pars Generalis (Rome, 1927) at p. 157.
8. See also, Basil M. Frison et al., The Retroactivity Of Law: An Historical Synopsis And Commentary, (Washington, DC: The Catholic University of America Press, 1946) at pp. 30-31.
9. In the constitution of Constantine it was stated that, 'Quoniam inter alias captiones praecipue commissoriae pignorum legis crescit asperitas, placet infirmari eam et in posterum omnem eius memoriam aboleri. 1. Si quis igitur tali contractu laborat, hac sanctione respiret, quae cum praeteritis praesentia quoque depellit et futura prohibet. Creditores enim re amissa iubemus recuperare quod dederunt.' C. (8.34) 3.
10. See http://www.upmf-grenoble.fr/Haiti/Cours/Ak/001_58.htm. (accessed 30 July 2002).
11. In Anastasius constitution C. (4.29) 21 see http://www.upmf-grenoble.fr/ Haiti/Cours/Ak/01_66.htm (accessed 30 July 2002).
12. In Justinian constitution C. (4.32) 27 see http://www.upmf-grenoble.fr/ Haiti/Cours/Ak/01_66.htm (accessed 30 July 2002).
13. It is worthy of note that the Novellae of Justinian form a part of the Corpus Juris. Most of them were published in Greek, some of them in Latin and some in both languages. The first of these Novellae of Justinian belongs to the year 535 A.D., but most of them were published between the years 535 and 539. These Constitutions were published after the completion of the second edition of the Code for the purpose of supplying what was deficient in that work. Indeed it appears that on the completion of his second edition of the Code, the Emperor designed to form any new constitutions, which he might publish, into a body by themselves so as to render a third revision of the Code unnecessary, and that he contemplated giving to this body the name of Novellae Constitutiones.
14. See http://www.ukans.edu/history/index/europe/ancient_rome/E/Roman/Texts/ secondary/SMIGRA*/Novellae.html (accessed 30 July 2002).
15. However, it should be noted that the legislation of Justinian at large started with retroactive effect, see C. (1.17) (2.23) available at http://www.upmf-grenoble.fr/Haiti/Cours/Ak/01_57.htm (accessed 30 July 2002).
16. James Leigh Strachan-Davidson, Problems Of The Roman Criminal Law, vol I (Oxford: Clarendon Press, 1912) at p. 108. Strachan-Davidson in a chapter entitled 'Magistrate As Judge' addressed the problem of new crimes in the Roman Law: He stated that the great difficulty is to discover what was done in the case of a new crime not stipulated in the Statute book. What, for instance, became of the first forger? Strachan-Davidson expressed the view that it is impossible to presume that because no laws had yet been passed defining the offence and articulating a penalty he would therefore enjoy impunity. 'I believe that the magistrate (preferably the quaestor) would condemn him for a new crime, and leave him to be tried on appeal to the people. The crime might next become the subject of an edict of the magistrates, and finally the people would be called upon to pass a definite law against it.' It is worthy of note that Strachan-Davidson stated that Mommsen (in his Römisches Strafrecht) was guilty of overstatement when he wrote '[t]he criminal law begins when arbitrary will of him who wields the power to punish and the right of judgment has limits placed on it by the law of the State or by custom as strong as law... The law establishes a corresponding satisfaction for each crime... From that time forth there is in Rome no crime without criminal law, no criminal procedure without a law of procedure, no punishment without a law of punishment.' Strachan Davidson states that, '[t]his, is indeed an ideal; but I believe that it is impossible to fix the Valerian law or any other enactment as the date from which the ideal is realized.'
17. Jerome Hall, 'Nulla Poena Sine Lege', 47 Yale LJ 165 (1937).
18. Jerome Hall, General Principles Of Criminal Law, 2nd edn (New York: Indianapolis, 1960) at pp. 29-30. Hall concludes that the prohibition against retroactivity of penal laws was well known and followed under Sulla. He also added that, 'long before [Sulla, the prohibition against retroactivity] appears to have been approved by the Greeks. Under Augustus several penal laws were declared to be non-retroactive, although not until 440 A.D. was the principle itself enacted.'
19. Levy, 'Statute and Judge in Roman Criminal Law', 13 Washington LR 291 (1938).
20. Carl Ludwig Von Bar et al., A History Of Continental Criminal Law (translated by Thomas S. Bell et al.) (New York: Augustus M. Kelly Publishers, 1968) at p. 17.
21. Ibid at pp. 19-20. Von Bar stated that Laboulaye (in his book Essai Sur les Lois Criminelles des Romains Concernant la Responsabilite des Magistrats) explained this peculiar character of the composition of the criminal statutes by the statement that, 'they were statutes whose purpose was to confer jurisdiction, and were of the same nature as statutes assigning to one and the same "quaestio" power to deal with different delicts.' However, jurisdiction was not the only matter with which the criminal statutes of the republic were concerned. '... Moreover the fact that more attention was given to the matter of jurisdiction than to an exact definition of the crime is further evidence of the arbitrary manner in which the Romans dealt with the substantive criminal law.'
22. Hall, above n 7. It should be noted that alongside with extraordinaria judicia may be found insistence upon pre-definition of offence and penalty.
23. Von Bar, above n 10 at 18.
24. M. Cherif Bassiouni, Crimes Against Humanity In International Criminal Law, 2nd edn (Kluwer Law International, 1999) at p. 132.
25. Tacitus described the Teutonic tribes as familial in nature (the family forming the basic unit of the tribe) and noted that they were 'a peculiar people... like no one but themselves.' He also noted that their kings ruled by hereditary right, but were not allowed to rule in an unlimited or arbitrary fashion. Tacitus described, in some detail, the workings of tribal legal assemblies, known as 'moots'. Regarding these institutions, Tacitus noted that at this assembly it is also permissible to lay accusations and to bring capital charges. The nature of the death penalty differs according to the offense: Traitors and deserters are hung from trees; cowards and poor fighters and notorious evil-livers are plunged in the mud of marshes with a hurdle on their heads: The difference of punishment has regard to the principle that crime should be blazoned abroad by its retribution, but abomination hidden. Lighter offenses have also a measured punishment: Those convicted are fined in a number of horses and cattle: Part of the fine goes to the king or the state; part is paid to the person himself who brings the charge or to his relatives. At the same gatherings are selected chiefs who administer law through the cantons and villages: Each of them has one hundred assessors from the people to be his responsible advisors. See, Tacitus, Germania, Dialogus, Agricola, Germania (translated T. E. Page) (Cambridge: Harvard University Press, 1946) at pp. 269-283.
26. In this context Hall maintains that 'it is probable that "lex terrae" [legem terre]... did mean more than procedural guarantees. More likely was it a limitation of both process and substantive law upon the royal prerogative.' Moreover, in English history, the principle of legality is prominent from the promulgation of the Charter of Henry I (some writers maintains that this Charter served as the basis of the Magna Carta), and it was reiterated in the Constitution of Clarendon. It is worth noting that, in the 13th century, Bracton in his famous work De Legibus Et Consuetudinibus Anglic [On the Laws and Customs of England] stated that '[t]he king must not be under man but under God and under the law, because law makes the king.' Bracton, On the Laws and Customs of England vol II (translated Samuel E. Thorne) (Cambridge, Massachusetts: The Belnap Press, 1968) at p. 33.
27. See also, http://supct.law.cornell.edu/bracton/Unframed/English/v2/ 33.htm (accessed 31 July 2002). Bracton also stated that 'Item tempus spectandum erit, cum omnis nova constitutio futuris formam imponere debeat et non pareteritis.' Sir Travers Twiss translated this as '[l]ikewise time is to be taken into account, since every new constitution ought to impose a form upon future matters, and not upon things past.' See, Sir Travers Twiss, Bracton's Legibus Et Consuetudinibus Anglie Libri Quinque, vol III (London: Longman, 1883) at p. 531.
28. Lysander Spooner, An Essay On The Trial By Jury (Boston: Bela Marsh, 1852) at p. 26.
29. Hans Kelsen, 'The Rule Against Ex Post Facto Laws and the Prosecution of the Axis War Criminals' 2 Judge Advocate J 8 (1945). However, it should be noted that, although in English law, the Parliament is not restricted in its power to pass retroactive legislation, the judges have for centuries reaffirmed that no legislation should be interpreted retroactively, unless the intention of the legislature that it should be construed so 'is expressed in clear, plain, and unambiguous language.'
30. See Shulman, 'Retroactive Legislation' in Edwin R. A. Seligman (ed.), Encyclopedia of the Social Sciences, vol VII (New York: Macmillan, 1937) at p. 355.
31. Glaser, above n 1 at 30.
32. Machteld Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege And The Subject Matter jurisdiction Of The International Criminal Court (Intersentia, 2002) at p. 83.
33. See, Kilbourn v. Thompson, 103 US 168 (1880), where the US Supreme Court spoke about the doctrine of separation of powers.
34. Montesquieu wrote that, '[I]es juges de la nation ne sont que la bouche qui prononce les paroles de la loi, des etres inanimes qui ne peuvent ni en addresser la force ni la rigeur.' See, Charles Montesquieu, De L'esprit Des Lois (Paris: Societe Les Belles Lettres, 1950) at p. 127.
35. The very famous example for the consequences of the abuses by the sovereigns due to the non-separation of the legislative, executive and judicial powers is what happened in Nazi Germany. See, Fritz Ermarth, The New Germany: National Socialist Government In Theory And Practice (Washington, DC: Digest Press, 1936) at pp. 48-57.
36. Volker Krey, Keine Strafe Ohne Gesetz: Einführung In Die Dogmengeschichte Des Satzes "Nullum Crimen, Nulla Poena Sine Lege" (Berlin: De Gruyter, 1983) at p. 14.
37. See also Boot, above n 20 at 83.
38. Becarria wrote on the interpretation of laws and the judicial discretion in his Die Delitti e Delle Pene that, 'Nothing is more dangerous than the common axiom that one must consult the spirit of the law. This is a dyke that is readily breached by the torrent of opinion... Everyone has his own point of view, and everyone has a different one at different times. The spirit of the law, then, would be dependent on the good and bad logic of a judge, on a sound or unhealthy digestion, on the violence of his passions, on the infirmities he suffers, on his relations with the victim, and on all the slight forces that change the appearance of every object in the fickle human mind.' He also wrote about the obscurity of laws that, 'If the interpretation of laws is an evil, their obscurity, which necessarily entails interpretation, is obviously another evil, one that will be all the greater if the laws are written in a language that is foreign to the common people. pp. 10-14.
39. Which translates as 'no crime committed, and no punishment meted out, without a violation of penal law as it existed at the time.' Some writers assert that the principle originated in the rationalistic and humanitarian thought of Aufklarungzeit, and found its way into German legislation through the influence of French revolutionary philosophy and the works of Feuerbach. In this sense see Lawrence Preuss, 'Punishment by Analogy in National Socialist Penal Law', 26 J Crim L Criminol 849 (1936).
40. See also Klee, 'Strafe Ohne Geschriebenes Gestez', 39 Deutsche Juristen Zeitung 639 (1934)
41. Mazke, 'Was Bedeutet die Uberwindung der Liberalistischen Weltanschauung fur die Heutige Stellung des Richters zum Strafgestez?', 63 Juristische Wochenschrift 1612 (1934).
42. Hall, above n 8 at 34.
43. See also Boot, above n 20 at 85.
44. Glaser, above n 1 at 30. Glaser noted that this law, 'although tyrannical, sets out in paragraph I: "only such illegal acts are to be considered and treated as crimes which have been enumerated in the present law".'
45. This is the day which had been fixed for commencing the operations of Government under the new Constitution. It had been ratified by the conventions chosen in each State to consider it, as follows: Delaware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Massachusetts, February 6, 1788; Maryland, April 28, 1788; South Carolina, May 23, 1788; New Hampshire, June 21, 1788; Virginia, June 25, 1788; and New York, July 26, 1788. See http://www.house.gov/Constitution/ Constitution.html (accessed 8 August 2002).
46. Article I section 9(3) reads as follows: 'No Bill of Attainder or ex post facto Law shall be passed'.
47. Glaser, above n 1 at 30.
48. In the Declaration of the Rights of Man and the Citizen of August 26, 1789, Article 7 provides that: 'Nul homme ne peut-etre accuse, arête, ni detenu que dans les cas determines par la loi, et selon les formes qu'elle a prescrites.' The Declaration of the Rights of Man and the Citizen reprinted in Albert P. Blaustein et al., Human Rights Sourcebook (New York: Paragon House, 1987) at p. 744.
49. The French Constitution of 1791 embodied that principle and the Code Penal of 1791 stated in Article 4: 'Nulle contravention, nul delit ne prevent etre punis de peines qui n'etaient pas prononcees par la loi avant qu'ils fussent commis.' The French penal code of 1810 retained this same Article 4, and it is still the law of France. See Bassiouni, above n 14 at 130.
50. The principle was embodied in the following human rights universal and regional instruments: Article 11(2) of the Universal Declaration of Human Rights; Article 15 of the International Covenant on Civil and Political Rights; Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Article 9 of the American Convention on Human Rights; Article 7(2) of the African Charter on Human and Peoples' Rights; Article 49(1,2) of the Charter of Fundamental Rights of the European Union.
51. Thomas Hobbes, The Leviathan (1651), chapters XXVII and XXVIII. This publication is available on line at http://www.orst.edu/instruct/phl302/ texts/hobbes/leviathan-contents.html (accessed 16 December 2002).
52. See also, Glanville Williams, Criminal Law: The General Part, 2nd edn (London: Stevens & Sons Ltd, 1961) at p. 580.
53. Joel Prentiss Bishop, A Treatise on Criminal Law, 9th edn (Indianapolis: The Bobbs-Merrill Company Publishers, 1892) at p. 186. Blackstone also maintained that, 'retrospective legislation is that which changes a right or a duty in the interval between its origin and its final effect completion. Wherever no lasting right vested can exist, the term becomes meaningless; wherever a lasting right vested in any private person exists, retrospective legislation affecting it becomes contrary to the common principles of justice.'
54. Sir William Blackstone, Commentaries On The Laws Of England, In Four Books (abridged and adapted to the present state of the law by Robert Malcolm Kerr) (London: John Murray, 1865) at p. 3.
55. See also Kelsen, above n 18.
56. Andrew Ashworth, Principles Of Criminal Law, 3rd edn (Oxford: Oxford University Press, 1999) at p. 71.
57. Calder v. Bull, 3 US (3 Dall.) 386, 390 (1798).
58. The USA Supreme Court has recently reaffirmed the four categories of Calder v. Bull in Carmell v. Texas, (120 S Ct 1620, 2000).
59. For cases discussing the principle, see: Dash v. Van Kleeck, Late Sheriff Of Albany, 7 Johns. 477, 1811 NY (February 1811)
60. Kring v. Missouri, 107 US 221, 229 (1883)
61. Cummings v. Missouri, 71 US (1 Wall.) 277 (1866)
62. People v. Ashworth, 220 App. Div. 498, 222 NY Supp. 24 (4th Dept 1927)
63. Beazell v. Ohio, 269 US 167, 169-170 (1925)
64. Lanzetta v. New Jersey, 306 US 451, 453 (1939)
65. McBoyle v. United States, 283 US (1930)
66. United States v. Rodgers, 466 US 475 (1984)
67. Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 US 827, 855 (1990)
68. Landgraf v. USI Film Prods, 511 US 244, 265 (1994).
69. For a discussion of ex post facto prohibition in the USA, see Brainerd Taylor DeWitt, 'Are Our Legal-Tender Laws Ex Post Facto?', 15 Pol Sci Qrtly 96 (1900)
70. Oliver P. Field, 'Ex Post Facto in the Constitution', 20 Michigan L Rev 315 (1922)
71. Breck P. McAllister, 'Ex Post Facto Laws in the Supreme Court of the U.S.', 15 Calif L Rev 269 (1927)
72. 'Ex Post Facto Limitations on Legislative Power', 73 Mich L Rev 1491 (1975)
73. William W. Crosskey, 'The True Meaning of the Constitutional Prohibition of Ex Post Facto Laws', 14 Chig L Rev 539 (1947)
74. Jessica A. Golden, 'Examining the Lautenberg Amendment in the Civilian and Military Contexts: Congressional Overreaching, Statutory Vagueness, Ex Post Facto Violations, and Implementational Flaws' 29 Fordham Urb L J 427 (2001)
75. Francis Allen, 'The Erosion of Legality in American Criminal Justice: Some Latter-Day Adventures of the "Nulla poena Principle"', 29 Ariz L Rev 385 (1987)
76. Mary-Marsha Porter Loe, 53 Ark L Rev 175 (2000)
77. R. Brian Tanner, 'A Legislative Miracle: Revival Prosecutions And The Ex Post Facto Clauses', 50 Emory LJ 397 (2001)
78. Steven J. Samario, 'Applying Washington's Sentencing Reform Act to Mandatory Life Prisoners: An Ex Post Facto Violation', 66 Wash L Rev 229 (1991)
79. Andrew J. Gottman, 'Fair Notice, Even for Terrorists: Timothy McVeigh and a New Standard for the Ex Post Facto Clause', 56 Wash Lee L Rev 591 (1999)
80. Chet Kaufman, 'A Folly of Criminal Justice Policy-Making: The Rise and Demise of Early Release in Florida, and its Ex Post Facto Implications', 26 Fla St UL Rev 361 (1999).
81. Egyptian Court of Cassation, 19 October 1953, Compilation of the Cassation Judgments, Year 5, No. 13 at 39.
82. See also, Mahmoud Mahmoud Mostafa, Al-Taalik Ala Qanoon Al-Okobat: Al-Kesm Al-Am [Commentary on the Penal Code: The General Part] 10th edn (Cairo: Cairo University Press, 1983) at p. 99. Professor Mostafa asserts that although the principle is constitutional in France, however, the judge in France has no authority to over rule the constitutionality of the substance of the laws. Thus, if a law was enacted to be applied retroactively he should apply it.
83. For Communications in the HRC addressing the issue of lighter penalty, see Gordon C. Van Duzen v. Canada, HRC, Communication No. 50/1979, 07/04/ 82, UN Doc. CCPR/C/15/D/50/1979.
84. The second was Alexander MacIsaac v. Canada, HRC Communication No. 55/ 1979 14/10/82, UN Doc. CCPR/C/17/D/55/1979.
85. For a discussion of these Communications see, Torkel Opsahl et al., 'The Uncertain Scope of Article 15(1) of the International Covenant on Civil and Political Rights', Canadian Human Rights Yearbook 237 (1983).
86. See Article 15(1) of the ICCPR.
87. See Article 9 of the ACHR.
88. With regard to the prohibition of the heavier penalty, Nowak, similarly, argued that the weight of the penalty should not generate serious concern as long as one is dealing with the same type of penalty. 'Greater difficulties, however, result from a comparison of different types of penalties. Here, the subjective perception of the person concerned is not unimportant. For some, a two-week prison term is less severe than a considerable fine; for others, just the opposite.' See, Manfred Nowak, UN Covenant On Civil And Political Rights - Ccpr Commentary (Strasburg: Engel, 1993).
89. Eric S. Kobrick, 'The Ex Post Facto Prohibition And The Exercise Of Universal Jurisdiction Over International Crimes', 87 Columb L Rev 1515 (1987).
90. Susan Lamb, 'Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law', in Antonio Cassese et al. (eds) The Rome Statute of the International Criminal Court: A Commentary, vol I (Oxford: Oxford University Press, 2002) at p. 735.
91. The United Nations War Crimes Commission, History Of The United Nations War Crimes Commission And The Development Of The Laws Of War (London: HMSO, 1948) at p. 435. The statement of the Netherlands Government can be considered as a political decision that was shaped and introduced as a legal argument. However, it still implies that the principle of nullum crimen sine lege was recognized and formulated in the international law at this time.
92. On the behalf of the defendants at the International Military Tribunal at Nuremberg, it was argued that a fundamental principle of all law (either national or international) was that there could be no punishment of crime without a criminalizing pre-existing law (nullum crimen sine lege). 'It was submitted that ex post facto punishment is abhorrent to the law of all civilized nations.' It was further argued that no sovereign power had made aggressive war a crime at the time that the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission and no Court had been created to try and punish offenders. See, Judgment of the International Military Tribunal at Nuremberg, October 1, 1946, at 39; reprinted in 41 AJIL (1947) (issue 1).
93. Judgment of the International Military Tribunal at Nuremberg, October 1 1946 at 39; reprinted in 41 AJIL 1947, at 217.
94. For discussions and arguments regarding the application of the principle nullum crimen sine lege in the Nuremberg Trials see, Hans Kelsen, 'Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals', 31 Calif L Rev 530 (1943)
95. Eric S. Kobrick, 'The Ex Post Facto Prohibition And The Exercise Of Universal Jurisdiction Over International Crimes', 87 Columb L Rev 1515 (1987)
96. De Vabres 'Le Proces de Nuremberg devant les Principes modernes du droit penal international', 70 Hague Academy Recueil des Cours 577 (1947)
97. Quincy Wright, 'The Law of the Nuremberg Trial', 41 AJIL 38 (1947)
98. Hans Kelsen, 'Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law', 1 Intl Law Qrtly 153 (1947)
99. Francis Biddle, 'The Nuremberg Trial', 33 Virg L Rev 679 (1947)
100. De Vabres, 'Le Procés de Nuremberg', Revue de Droit Penal et de Criminologie 480 (1947)
101. Stefan Glaser, 'Les Principes de la Legalite des Delits et des Peines et les Proces des Criminels de Guerre', 28 Revue de Droit Penal et de Criminologie 230 (1948)
102. Caloyanni, 'Le Process de Nuremberg et L'avenir de la Justice Penale Internationale', 26 Revue de Droit International des Sciences Diplomatiques et Politiques (1948)
103. George A. Finch, 'The Nuremberg Trial and International Law', 41 AJIL 20 (1947)
104. Hans Ehard, 'The Nuremberg Trial Against the Major War Criminals and International Law', 43 AJIL 223 (1949)
105. Glaser, 'La Charte Du Tribunal de Nuremberg et les Nouveaux Principes du droit International', Revue Penale Suisse (1948)
106. Telford Taylor, 'Nuremberg Trials: War Crimes and International Law', 450 Int Conc (1949)
107. Carl Haensel, 'The Nuremberg Trials Revisited', 13 DePaul L Rev 248 (1964)
108. Stanley L. Paulson, 'Classical Legal Positivism at Nuremberg', 4 Philos Public Affairs 132 (1975)
109. Arthur L. Goodhart, 'The Legality of the Nuremberg Trials', 58 Jurid Rev 1 (1946)
110. Nathan April, 'An Inquiry Into the Judicial Basis for the Nuremberg War Crimes Trial', 30 Minnesota L Rev 313 (1946)
111. Louis C. Bial, 'The Nuremberg Trial and International Law', 13 Brooklyn L Rev 34 (1947)
112. Otto Kranzbuhler, 'Nuremberg Eighteen Years Afterwards', 14 DePaul L Rev 333 (1965)
113. Georg Schwazenberger, 'The Judgment of Nuremberg', 21 Tul L Rev 329 (1946)
114. Otto Pannenbecker, 'The Nuremberg War Crimes Trial', 14 DePaul L Rev 398 (1965)
115. F. B. Schick, 'The Nuremberg Trial and the International Law of the Future', 41 AJIL 770 (1947)
116. Benjamin Ferencz, 'Nuremberg Trial Procedure and the Rights of the Accused', 39 Crim L Criminol 144 (1948)
117. N. C. H. Dunbar, 'The Maxim Nullum Crimen Sine Lege in the Law of War', 4 Jurid Rev 176 (1959)
118. Emilio Von Hoffmannsthal, 'War Crimes not Tried Under Retroactive Law', 22 NYU L Q Rev 93 (1947)
119. F. B. Schick, 'War Criminals and the Law of the United Nations', 7 Univ Toronto L J 27 (1948)
120. John Alan Appleman, Military Tribunals And International Crimes (Indianapolis: The Bobbs-Merrill Company, 1954) at pp. 46-55.
121. The Nuremberg Tribunal itself maintained that, the maxim nullum crimen sine lege is in general a principle of justice. See, Judgment of the International Military Tribunal at Nuremberg, October 1 1946 at 39; reprinted in 41 AJIL 217 (1947).
122. Judgment of the International Military Tribunal at Nuremberg, October 1 1946 at 39; reprinted in 41 AJIL 217 (1947).
123. The United Nations Secretary General in his report stated with regard to the principle of nullum crimen sine lege that it requires that the tribunal 'apply rules of international humanitarian law which are beyond any doubt part of customary law.' The Report also notes that such customary law clearly embraces all of the Geneva Conventions of August 12, 1949. Furthermore, the Report notes that the Hague Convention, as interpreted and applied by the Nuremberg Tribunal, provides the basis for the article in the statute relating to the "laws and customs of war". See, UN. Doc. S/25704, §34.
124. See also M. Cherif Bassiouni, et al. The Law of the International Criminal Tribunal for the Former Yugoslavia. (Irvington-on-Hudson, New York: Transnational Publishers, Inc, 1996) at pp. 265-291.
125. Lamb, above n 42 at 735.
126. Hobbes, above n 31 at 191.
127. See also, A. P Simester et al., Principles of Criminal Law (Wellington: Brooker's Legal Information, 1998).
128. Williams, above n 31 at 582.