A note on the evolution of the principle of legality in international criminal law

Criminal Law Forum

Volumn 18, Issue 3-4, 2007, Pages 301-319

  Olásolo, Héctor ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

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EID: 35748959908     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1007/s10609-007-9042-9     Document Type: Review

References (73)

1. QUINTERO OLIVARES, G., MANUAL DE DERECHO PENAL; PARTE GENERAL 68 (3rd edn., 2002).
2. Prosecutor v. Thomas Lubanga Dyilo, Case Num. ICC-01/04-01/06, Decision on the Confirmation of the Charges, 29 January 2007 ("hereinafter Lubanga Confirmation Decision"), paragraph 303. See also Ambos, K., Nulla Poena Sine Lege in International Criminal Law, in: SENTENCING AND SANCTIONING IN SUPRANATIONAL CRIMINAL LAW (Haveman/Olusanya eds., 2006), pp. 20-23.
3. MUÑOZ CONDE, F./GARCÍA ARAN, M, DERECHO PENAL. PARTE GENERAL 107 (3rd edn,, 1998).
4. Ibid., p. 112.
5. According to Article 38 of the statute of the International Court of Justice, the sources of international law are the following: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; and (d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
6. See Prosecution and Punishment of Major War Criminals of the European Axis, 8 August 1945, United Nations Treaty Series, Vol. 82, pp. 279 et seq. (containing the statute of the International Military Tribunal seated in Nuremberg).
7. See Special Proclamation: Establishment of an International Military Tribunal for the Far East, 19 January 1946, Treaties and Other International Act Series (T.I. A.S), Num. 1589, p. 3 et seq; reproduced in: MINEAR, R. H., VICTORS JUSTICE: THE TOKYO WAR CRIMES TRIAL 185-199 (1991.) (containing the statute of the International Military Tribunal for the Far East seated in Tokyo).
8. See United Nations Security Council Resolution 827, whereby the ICTY is established, and its statute is approved, U.N. Doc. S/RES/827 (1993), 25 May 1993.
9. See United Nations Security Council Resolution 855, whereby the ICTR is established and its statute is approved, U.N. Doc. S/RES/855 (1994), 8 November 1994.
10. OLÁSOLO, H. CORTE PENAL INTERNACIONAL: "DÓNDE INVESTIGAR" 76-77, 82-85 (2003).
11. OLÁSOLO, H., THE TRIGGERING PROCEDURE OF THE INTERNATIONAL CRIMINAL COURT 19, 23-24 (2005).
12. On the scope of Article 10 of the Rome Statute, see, Triffterer, O., Article 10, in: COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT (Triffterer, O., ed., 1999), pp. 318-320.
13. This situation is not a coincidence. On the contrary, it is the result of the drafters' decision to only criminalize behaviour, which most severely undermines the core values of the international community in order to promote support for the Rome Statute among States.
14. Schweld, Crimes against Humanity, 191 BRIT. INTL L. REV. (1958), pp. 184 et seq.
15. When the Rome Statute was approved by the Rome Diplomatic Conference, the Appeals Chamber of the ICTY had not reversed the interpretation of the ICTY Trial Chamber II decision in the Tadic case that required a discriminatory element for all crimes against humanity. See Opinion and Judgment (Trial Chamber II), 7 May 1997, The Prosecutor v. Dusko Tadic. Case No. IT-94-1-T, para. 652; and Judgment (Appeals Chamber,), 15 July 1999, The Prosecutor v. Dusko Tadic. Case No.: IT-94-1-A, para. 305). Moreover, the chapeau of Article 3 of the ICTR Statute says as follows: "The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds".
16. Dolus eventualis usually requires the perpetrator: (i) to be aware that his conduct will likely bring about the forbidden result; and (ii) to accept or be reconciled with the occurrence of such a forbidden result. Article 30(2) Rome Statute defines intent as including cases in which the perpetrator is aware that the forbidden result "will occur in the ordinary course of events". This definition contains a presumption whereby a perpetrator is considered to have accepted the production of the forbidden result when he decided to proceed with his conduct despite being aware of the likelihood of bringing about the forbidden result through the performance of his conduct. See the definition of dolus eventualis provided for by in the Lubanga Confirmation Decision, paragraphs 352-354; and in Prosecutor v. Milomir Stakic, Judgement, Case No. IT-97-24-T, 31. July 2003, paragraph 587.
17. For a concurring view see Piragoff, D. K., Article 30. Mental Element, in: COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT (Triffterer, O., ed., 1999), p. 534;
18. and Rodriguez-Villasante y Prieto, J. L., Los Principios Generales de Derecho Penal en el Estatuto de Roma de la Corte Penal Internacional, 75 REVISTA ESPAÑOLADE DERECHO MILITAR (2000), p. 417.
19. This conclusion has also been reached in the Lubanga Confirmation Decision, paragraph 355. The so-called subjective recklessness usually requires (i) awareness of the risk of causing the forbidden result as a consequence of carrying out certain conduct; and (ii) acceptance of such risk, which is usually considered to be inherent in the decision to proceed with his conduct. As it has been pointed out: "Recklessness is a form, of culpa - equivalent to what German scholars call 'conscious negligence'. The problem, of distinguishing 'intention' and 'recklessness' arises because in both cases the actor is aware that his conduct might generate a specific result", FLETCHER, G. P., RETHINKING CRIMINAL LAW 443 (2nd edn., 2000). Hence, subjective recklessness does not include any element of intent because the perpetrator is only required to accept the risk of his conduct but is not required to accept or be reconciled with the occurrence of the forbidden result. In this regard, it must be highlighted that a person can perfectly carry out dangerous conduct while trusting his skills to avoid the forbidden result.
20. See Piragoff, D. K., supra note 19, p. 535; and Eser, A., Mental Element-Mistake of Fact and Mistake of Law, in: THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY (Cassese, A./Gaeta, P./Jones, J. R. W. D. (eds.), 2002), pp. 898-899.
21. See also, Olasolo, H., Complementarity Analysis of National Sentencing, in: SENTENCING AND SANCTIONING IN SUPRANATIONAL CRIMINAL LAW (Haveman/Olusanya (eds.), 2006), pp. 49-53.
22. See for all, Prosecutor v. Stanislav Galic, Judgement, ICTY Case No. IT-98-29-T, 5 December 2003, paragraph 59, which has been recently upheld in Prosecutor v. Stanislav Galic, Appeals Judgement, ICTY Case No. IT-98-29-A, 30 November 2006 ("hereinafter Galic Appeal Judgement"), paragraph 140.
23. Article 22(2) and (3) of the Rome Statute.
24. Such a footnote, which is attached, to the short title of the crime, says that the crime against humanity of enforced disappearance "falls under the jurisdiction of the Court only if the attack referred to in elements 7 and 8 occurs after the entry into force of the Statute". It therefore requires that the wide-spread or systematic attack against a civilian population, of which both the arrest, detention or abduction of the victim and the refusal to acknowledge the victim's deprivation of freedom or to give information about the victim's fate must be objectively part, takes place after the entry into force of the Rome Statute. This footnote was drafted against the backdrop of the introductory section to the Elements of the Crimes against Humanity. This section dealt with the problem of the socalled "first actors" in an emerging widespread or systematic attack against a civilian population by establishing that in this scenario the perpetrator does not need to know that his acts are part of the attack but it is sufficient that "the perpetrator intended to further such an attack" (See Robinson, D., The Context of Crimes against Humanity, in: THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF THE CRIMES AND RULES OF PROCEDURE AND EVIDENCE (Lee, R. S. (ed.), 2001) p. 73. As a result, those acts that take place prior to the initiation of the attack cannot be considered to be part of the attack and, therefore, do not give rise to criminal liability pursuant to Article 7 of the Rome Statute. As a result, as required by footnote 24 of the Elements of the Crimes in relation to the crime of enforced disappearance, if the attack must take place after the entry into force of the Rome Statute, only those acts that take place after such a date could be part of the attack and could give rise to criminal liability pursuant to the Rome Statute. In this regard, it is important to highlight that the crime of enforced disappearance is comprised of the sum of two main acts, that is to say, on the one hand, the arrest, detention or abduction of the victim and, on the other hand, the refusal to acknowledge the victim's deprivation of freedom or to give information about the victim's fate. Therefore, in order for criminal liability to arise pursuant to Article 7 (1) (i) Rome Statute both acts must take place after the entry into force of the Rome Statute (otherwise they would not be part of the attack). This leads to the conclusion that no criminal liability can arise under the Rome Statute in those cases in which the arrest, detention or abduction of the victim takes place before the entry into force of the Rome Statute and only the refusal to acknowledge the victim's deprivation of freedom or to give information about the victim's fate continues after such an entry into force.
25. For the ICTY case law on the notion of common criminal purpose, see Olásolo, H./Pérez Cepeda, A. I., The Notion of Control of the Crime in the Jurisprudence of the ICTY: The Stakić Case, 4 INTL CRIM. L. REV. (2004) 474, pp. 480-482.
26. Although, paragraphs (a), (b), (c) and (e) of Article 8(2) of the Rome Statute are comprised of several sub-paragraphs, some of these subparagraphs include the definition of more than one crime. This is particularly the case with subparagraph (xxii) of Article 8(2)(b) and subparagraph (vi) of Article 8.2(e), which include a number of sexual offences applicable both in international and non-international armed conflicts, such as rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence also constituting either a grave breach of the Geneva Conventions or a serious violations of common Article 3 to the Geneva Conventions.
27. As Philippe Kirsch has put it: "The Elements of the Crimes are designed to elaborate on the crimes listed in the Statute. The goal in the negotiations was to convert the Statute's general descriptions into an element-by-element list that could assist the Court in establishing individual criminal responsibility. Essentially, the Elements define the objective and subjective prerequisites that together constitute the prohibited act", Kirsch, P., The Work of the Preparatory Commission, in: THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF THE CRIMES AND RULES OF PROCEDURE AND EVIDENCE (Lee, R. S. (ed.), 2001) p. xlvii.
28. See also Von Hebel, H., The Making of the Elements of the Crimes, in: THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF THE CRIMES AND RULES OF PROCEDURE AND EVIDENCE (Lee, R. S. (ed.), 2001) pp. 4-8.
29. Kirsch, P., supra note 25, p. xlviii, has referred to the non-binding nature of the Elements of the Crimes in the following terms: "Article 9 of the Rome Statute reflects the compromise that was reached. It provides that the Elements of Crimes 'shall assist the Court in the interpretation and application' of the crimes in the Rome Statute. The Elements are therefore not binding in the same way as the Rules of Procedure and Evidence, which, 'shall enter into force' pursuant to article 51. In this way, it was agreed that the Elements of the Crimes would guide but not bind the Court."
30. Article 9 (1) of the Rome Statute.
31. Article 3 of the statute of the ICTY contains a general reference to violations of the laws and customs of the war. This general reference is accompanied by a list of five examples of violations of the Hague Conventions of 1899, 1907 and 1954 and their respective annexed Regulations, which according to customary international law gave rise to individual criminal responsibility at the time the armed conflict in the former SFRY started in 1991. On the other hand, Article 4 of the statute of the ICTR contains a general reference, although it has a more limited scope, to the violations of common Article 3 to the 1949 Geneva Conventions and of its second additional protocol of 1977. This general reference is also accompanied by a list which expressly include the violations of common Article 3 to the Geneva Conventions and a couple of examples of violations of its second additional protocol which according to customary international law gave rise to criminal liability in 1994.
32. Article 8(2)(a)(iii).
33. See the elements of the crime provided for in Article 8(2)(a)(iii).
34. Article 8(2)(a)(ii).
35. Article 8(2)(c)(i).
36. See the elements of the crimes provided for in arts. 8(2)(a)(ii-2) and 8(2)(c)(i-3).
37. See Pignatelly y Meca, F., La Sanción de los Crímenes de Guerra en el Derecho Español: Consideraciones sobre el Capítulo III del Título XXIV del Libro II del Código Penal, 2003, pp. 31-33.
38. In this regard, Article 21(1)(b) of the Rome Statute establishes that the Court will apply "p]n the second place, where appropriate, applicable treaties and principles of international law, including the established principles of the international law of armed conflict".
39. Article 9(1).
40. See Lubanga Confirmation Decision, paragraphs 205-207, 243-245, 260-262 and 269-274.
41. See Lubanga Confirmation Decision, paragraphs 205, 208 and 277-280.
42. Article 21(3) provides for grounds such as "gender as defined in article 7, paragraph 3, age, race, colour, language, religion, belief, political or other opinion, national ethnic or social origin, wealth, birth or other status".
43. For a concurring view see Ambos, K., supra note 2, pp. 26-27.
44. In this regard, it is also worth-noting that Article 78 (3) of the Rome Statute contain certain rules on multiple convictions and Article 110 establishes a mechanism for the mandatory review of sentences.
45. Rule 145(2) and (3).
46. Rule 145(1).
47. For a concurring view, see Lirola Delgado, I./Martín Martínez, M., La Corte Penal Internacional. Justicia versus Impunidad, Ariel Derecho, 2001, pp. 236-238; and Ambos, K., supra note 2, pp. 26-27.
48. Ambos, K., supra note 2, pp. 33-34. See also OLUSANYA, O., SENTENCING WAR CRIMES AND CRIMES AGAINST HUMANITY UNDER THE ICTY 60 et seq, in particular pp. 88, 93 and 97 (2005).
49. As William Schabas has pointed out, the International Law Commission recognized the need for the definition of precise penalties during the elaboration of the Draft Rome Statute, although it was unable to specify them, Schabas, W.A., Article 23: Nullum Poena Sine Lege, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT (Triffterer, O. (Ed.), 1999), p. 463.
50. See supra notes 8 and 9.
51. Report of the Secretary-General pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), S/25704, 3 May 1993, paragraph 29.
52. Ibid., paragraph 33.
53. Ibid., paragraph 34.
54. The grave breaches of the Geneva Conventions are provided for in Article 2 of the Statute of the ICTY.
55. Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No., IT-94-1-AR72, 2 October 1995 (hereinafter "Tadic Decision on Jurisdiction"), paragraph 143.
56. Ibid.
57. Ibid., paragraph 94.
58. Prosecutor v. Pavle Strugar, Decision on Interlocutory Appeal, Case No. IT-01-42-AR72, 22 November 2002, paragraphs 9, 10 and 13.
59. Prosecutor v. Milan Milutinovic, Nikola Sainovic and Dragoljub Ojdanic, Decision on Interlocutory Appeal, Case No. IT-99-37-AR72, 12 May 2004 (hereinafter "Ojdanic Decision on Interlocutory Appeal"), paragraph 9.
60. Prosecutor v. Enver Hadzihasanovic. Mehmed Alagic and Amir Kubura, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Case No. IT-0.1.-47-AR.72, 1.6 July 2003 (hereinafter "Hadzihasanovic Decision on Interlocutory Appeal"), paragraph. 32.
61. Appeals Chamber, The Prosecutor v. Milomir Stakić Judgement, (hereinafter "Stakić Appeal. Judgement"), IT-92-24-A, 22 March 2006, paragraph 62.
62. Ojdanic Decision on Interlocutory Appeal, paragraph 9.
63. Tadic Decision on Jurisdiction, paragraph 134. See also, Lamb, S., Nullum Crimen sine Lege, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A. COMMENTARY (Cassese, A./Gaeta, P./Jones, J. R. W. D. (eds.), 2002), pp. 733-766, p. 742.
64. Galic Trial Judgement, paragraphs 94-105. In this regard, it is important to highlight that the Trial Chamber in the Galic case decided to ignore the new jurisprudence of the Appeals Chamber on the principle nullum crimen sine lege and decided to apply the interpretation of such principle put forward by the Appeals Chamber in the Tadic case (see in particular Galic Trial Judgement, paragraph 97).
65. In this regard, it must be highlighted that the recent Galic Appeal Judgement has found that the prohibition of terror against the civilian population as enshrined in Article 51 (2) of Additional Protocol I and Article 13 (2) of Additional Protocol II belonged to customary international law from prior to the relevant time of the indictment (Galic Appeal Judgement, paragraph 92). It has also found that customary international law imposed individual criminal liability for violations of such a prohibition from, at least, the period relevant to the indictment (Galic Appeal Judgement, para. 98).
66. LUZÓN PEÑA, D.M., CURSO DE DERECHO PENAL: PARTE GENERAL i 81 (1999).
67. Ojdanic Decision on Interlocutory Appeal, paragraph 21. See also Hadzihasa-novic Decision on Interlocutory Appeal, paragraphs 32-36.
68. Ojdanic Decision on Interlocutory Appeal, paragraph 21
69. Ibid., paragraph 39. See also Trials of War Criminals Before The Nuremberg Military Tribunals Under Control Council Law No 10, Vol. III ("Justice Case"), pp. 974-975.
70. Ojdanic Decision on Interlocutory Appeal, paragraph 41.
71. Quintero Olivares, G., supra n. 1, p. 80.
72. Rodríguez Villasante y Prieto, J. L., Los Principios Generales del Derecho Penal en el Estatuto de Roma de la Corte Penal Internacional, in 75 REVISTA ESPAÑOLA DE DERECHO MILITAR (2000), 381, pp. 388-396.
73. Galic Appeal Judgement, paragraph 85.