Crimen sine lege: Judicial lawmaking at the intersection of law and morals

Georgetown Law Journal

Volumn 97, Issue 1, 2008, Pages 119-192

  Van Schaack, Beth ^a  

^a SANTA CLARA UNIVERSITY   (United States)

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EID: 57049168719     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (459)

1. German jurist Anselm Feuerbach is credited with coining the maxim. See PAUL JOHANN ANSELM RITTER VON FEURBACH, LEHRBUCH DES GERMEINEN IN DEUTSCHLAND GÜLTIGEN PEINLICHEN RECHTS (1801). The concept, however, is far older than the maxim. Extant in ancient Roman and Greek law, NCSL is a fundamental component of such seminal works of legal philosophy as St. Thomas Aquinas's Summa Theologica. The nullum crimen sine lege principle experienced a resurgence in the Enlightenment period, when the prevailing political ideology was one of reaction against oppressive government and judicial arbitrariness. For a comprehensive treatment of the principle and its history,
2. see MACHTELD BOOT, GENOCIDE, CRIMES AGAINST HUMANITY, WAR CRIMES: NULLUM CRIMEN SINE LEGE AND THE SUBJECT MATTER JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT 83-85 (2002);
3. Jerome Hall, Nulla Poena Sine Lege, 47 YALE L.J. 165, 165-70 (1937);
4. and Aly Mokhtar, Nullum Crimen, Nulla Poena Sine Lege: Aspects and Prospects, 26 STATUTE L. REV. 41, 41-47 (2005).
5. See, e.g., Prosecutor v. Galić, Case No. IT-98-29-T, Judgment and Opinion, para. 93 (Dec. 5, 2003) (noting that nullum crimen sine lege encompasses principles of specificity and strict construction)
6. ; Veeber v. Estonia (No. 2), App. No. 45771/99, paras. 30-31 (Eur. Ct. H.R. Jan. 21, 2003), available at http://cmiskp.echr.coe.int/tkp197/view. asp?item=9&portal=hbkm&action=html& highlight=estonia&sessionid= 8778689&skin=hudoc-en (same).
7. Jorgić v. Germany, App. No. 74613/01, para. 10 (Eur. Ct. H.R. July 12, 2007), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item = 1&portal=hbkm&action=html&highlight=74613/ 01&sessionid= 8779548&skin=hudoc-en;
8. see HERBERT PACKER, THE LIMITS OF CRIMINAL SANCTION 79-80 (1968) (describing NCSL as "the first principle" of the criminal law).
9. THE FEDERALIST NO. 84, at 511-12 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
10. For a comparative study of NCSL in domestic law, see BOOT, supra note 1, at 81-126 and KENNETH S. GALLANT, THE PRINCIPLE OF LEGALITY IN INTERNATIONAL AND COMPARATIVE CRIMINAL LAW (forthcoming Nov. 2008) (unpublished manuscript, on file with author).
11. U.S. CONST. art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed.");
12. id. § 10, cl. 1 ("No State shall... pass any Bill of Attainder, ex post facto Law ...."). The eẋ post facto clauses include a constellation of prohibitions against legislative acts that: (1) make criminal an innocent action done before the passing of the law; (2) aggravate a crime; (3) inflict a greater punishment than the law stated at the time the crime was committed; or (4) alter the legal rules of evidence to allow for less, or different, testimony than the law required at the time of the commission of the offence to convict the offender. Calder v. Bull, 3 U.S. 386, 390 (1798).
13. Trevor W. Morrison, Fair Warning and the Retroactive Judicial Expansion of Federal Criminal Statutes, 74 S. CAL. L. REV. 455, 462 (2001) (noting Framers' concerns with Great Britain's passage of ex post facto laws and bills of attainder to attack unpopular groups and individuals).
14. James v. United States, 366 U.S. 213, 247 n.3 (1961). Indeed, the ex post facto clauses do not speak to the judicial power at all.
15. See Ross v. Oregon, 227 U.S. 150, 162 (1913) ("[T]he provision is directed against legislative, but not judicial, acts."). The U.S. Supreme Court has resisted the extension of the ex post facto clauses to courts.
16. See Rogers v. Tennessee, 532 U.S. 451, 467 (2001) (upholding a court's action as the "routine exercise of common law decisionmaking in which the court brought the law into conformity with reason and common sense").
17. U.S. CONST. amends. V, XIV, § 1; see United States v. Lanier, 520 U.S. 259, 265 (1997).
18. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217A, at art. 11(2), U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR]; see also infra Part I.
19. George A. Finch, The Nuremberg Trial and International Law, 41 AM. J. INT'L L. 20, 22 (1947).
20. Robert H. Jackson, OPENING STATEMENT FOR THE UNITED STATES OF AMERICA, ON THE SUBJECT OF INTERNATIONAL MILITARY TRIBUNAL No. I (Nov. 21, 1945),
21. reprinted in 2 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, 14 NOVEMBER 1945-1 OCTOBER 1946, at 98, 99.
22. See, e.g., Finch, supra note 11, at 28. But see Lord Wright, War Crimes Under International Law, 62 L.Q. REV. 40 (1946) (arguing in favor of the legality of the proceedings).
23. See, e.g., Christian Tomuschat, The Legacy of Nuremberg, 4 J. INT'L CRIM. JUST. 830, 832-34 (2006) (recounting criticism).
24. The Justice Case, brought immediately following the Nuremberg proceedings against Nazi jurists held responsible for implementing the Nazi "racial purity" program through the implementation of eugenic laws, also invoked this comparison between ICL and the common law when the tribunal stated: International law is not the product of statute. Its content is not static. The absence from the world of any governmental body authorized to enact substantive rules of international law has not prevented the progressive development of that law. After the manner of the English common law it has grown to meet the exigencies of changing conditions. United States v. Altstötter, reprinted in 3 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNAL UNDER CONTROL COUNCIL LAW No. 10, at 954, 966 (1951) [hereinafter Justice Case].
25. Common law crimes emerged in the United Kingdom through the mid-seventeenth century. At this time, legislatures met infrequently and judges regularly confronted harmful conduct without proscriptive statutes. WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW 103 (1986).
26. ALEXANDER PASSARIN D'ENTRÈVES, NATURAL LAW 116 (2d ed. 1952).
27. Interestingly, the defendants' motion did not address the novelty of the crimes against humanity charge at all. See Motion Adopted by All Defense Counsel on 19 November 1945, in 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, 14 NOVEMBER 1945-1 OCTOBER 1946, at 168-70 (1947).
28. Judgment, 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, 14 NOVEMBER 1945-1 OCTOBER 1946, at 462 (1948) [hereinafter Nuremberg Judgment].
29. Id. at 461.
30. Id.
31. Id.
32. Id.
33. Id. at 462.
34. The French translation of the judgment disarms the defense even more, stating "nullum crimen sine lege ne limite pas la souveraineté des États; elle ne formule qu'une règle generalment suivie" - that is, NCSL "is not a limitation on the sovereignty of states; it only expresses a generally followed rule." There are other translation discrepancies in the versions of this passage of the opinion. See Susan Lamb, Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law in 1 THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 733, 737 n.13 (Antonio Cassese et al. eds., 2002).
35. General Treaty for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57 [hereinafter Kellogg-Briand Pact].
36. Nuremberg Judgment, supra note 19, at 463.
37. Kellogg-Briand Pact, supra note 26, at pmbl.
38. Telford Taylor, a key member of the U.S. prosecutorial team, anticipated this correlation in an early memorandum on trial strategy in which he wrote: Only the most incorrigible legalists can pretend to be shocked by the conclusion that the perpetrator of an aggressive war acts at peril of being punished for his perpetration, even if no tribunal has ever previously decided that perpetration of an aggressive war is a crime. And, in any event, the ex post facto question is rendered much easier by the fact of treaty violation ... a man who violates a treaty must act at peril of being punished by the offending parry's employing self-help. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 51 (1992).
39. The Tribunal contended that criminal prosecutions were justified because the defendants could not have reasonably thought their conduct was lawful and it would be unjust to exonerate responsible individuals. It argued: To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances, the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. Nuremberg Judgment, supra note 19, at 462. Tribunals established pursuant to Control Council Law No. 10 in the allied zones of occupation echoed this certainty: "There is no doubt of the criminality of the acts with which the defendants are charged. They are based on violations of International Law well recognized and existing at the time of their commission." The German High Command Trial, in 12 Law REPORTS OF THE TRIALS OF WAR CRIMINALS 62 (1949).
40. Nuremberg Judgment, supra note 19, at 462.
41. The 1899 Hague Conventions, signed but never ratified, addressed themselves to the Pacific Settlement of International Disputes (Hague I), the Laws and Customs of War on Land (Hague II), Maritime Warfare (Hague III), the Launching of Projectiles and Explosives from Balloons (Hague IV, 1), Asphyxiating Gases (Hague IV, 2), and Expanding Bullets (Hague IV, 3). In 1906, delegates reconvened in The Hague to draft additional treaties, which have superseded their predecessors and expanded consideration to the Opening of Hostilities (Hague III), the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague V), the Status of Enemy Merchant Ships at the Outbreak of Hostilities (Hague VI), the Laying of Submarine Automatic Contact Mines (Hague VIII), Bombardment by Naval Forces in Time of War (Hague IX), and the Discharge of Projectiles and Explosives from Balloons (Hague XIV). The most important treaty to emerge from this latter Conference was undoubtedly the fourth "Respecting the Laws and Customs of War on Land." Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 2 (limiting the means and methods of warfare) [hereinafter 1907 Hague (IV) Convention].
42. Nuremberg Judgment, supra note 19, at 463. Article 3 of the 1907 Hague (IV) Convention provides that a belligerent in violation of the treaty "shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces." The treaties do not contemplate penal sanctions. 1907 Hague (IV) Convention, supra note 32, at art. 3.
43. Nuremberg Judgment, supra note 19, at 463. For support, the Tribunal cited the now infamous Quirin case before the U.S. Supreme Court for the proposition that "[f]rom the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as enemy individuals." Ex parte Quirin, 317 U.S. 1, 27-28 (1942); see Nuremberg Judgment, supra note 19, at 465.
44. Nuremberg Judgment, supra note 19, at 463; see also id. at 186 (finding a war of aggression to be "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole"). This concept finds expression in Justice Jackson's observation that war is "the crime that comprehends all lesser crimes." Robert H. Jackson, Report to the President (June 6, 1945), reprinted in INTERNATIONAL CONFERENCE ON MILITARY TRIALS REPORT OF ROBERT H. JACKSON TO THE INTERNATIONAL CONFERENCE ON MILITARY TRIALS: LONDON, 1945 (U.S. Gov't Printing Office 1949), available at http://www.yale.edu/lawweb/avalon/imt/jackson/jack08.htm [hereinafter Jackson Report].
45. Taylor, supra note 29, at 65-66.
46. Id. at 66.
47. In 1915, the Allied governments of France, Great Britain, and Russia issued a joint declaration to the Ottoman Empire denouncing the massacres of Armenians as "crimes against humanity and civilization for which all the members of the Turkish Government will be held responsible together with its agents implicated in the massacres." Egon Schwelb, Crimes Against Humanity, 23 BRIT. Y.B. INT'L L. 178, 181 (1946) (quoting Armenian Memorandum Presented by the Greek Delegation to the Commission of Fifteen on March 14, 1919).
48. Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Comm'n on Responsibilities (Apr. 4, 1919), Annex II, reprinted in Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties: Report Presented to the Preliminary Peace Conference (Mar. 29, 1919), 14 AM. J. INT'L L. 95, 134 (1920).
49. Id. at 47.
50. United States v. Araki et al., Dissenting Opinion of Justice Pal, in 21 THE TOKYO MAJOR WAR CRIMES TRIAL 36-37 (R. John Pritchard & Sonia Magbanua Zaide eds., 1981).
51. Id. at 37.
52. Id. at 123-26; see also id. at 152 ("War itself, as before remained outside the province of law, its conduct only having been brought under legal regulations. No customary law developed so as to make any war a crime.").
53. Id. at 128.
54. Id. at 180.
55. Id. at 214.
56. Id. at 215.
57. Military tribunals proceeding on the basis of Control Council Law No. 10 (CCL 10), which was enacted to provide a uniform basis for the trial of lesser defendants in occupation courts, generally adopted the same reasoning employed by the two international tribunals when confronted with claims that CCL 10 constituted ex post facto legislation. United States v. Ohlendorf et al., 4 TRIAL OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL NO. 10, at 458-59 (1951) ("Control Council Law No. 10 is but the codification and systematization of already existing legal principles, rules, and customs.... Certainly no one can claim with the slightest pretense at reasoning that there is any taint of ex post factoism in the law of murder."). Likewise, in the Justice Case, the court noted: "The ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field." Justice Case, supra note 15, at 974-75. NCSL was unsuccessfully raised as a defense in several subsequent domestic proceedings beyond the immediate postwar period (most notably in the Eichmann case), but the Nuremberg reasoning was largely followed and "no new arguments were adduced." Lamb, supra note 25, at 739; see Att'y Gen. of Isr. v. Eichmann, reprinted in 36 I.L.R. 5 (Jm. 1961), aff'd, 36 I.L.R. 277 (S. Ct. 1962) (Isr.).
58. Ecclesiastes 1:9.
59. See, e.g., Prosecutor v. Milutinović, Šainović & Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction: Joint Criminal Enterprise, paras. 37-42 (May 21, 2003) (relying on the existence of a customary rule, an equivalent rule under national law, and the inherently atrocious behavior of the accused to reject his NCSL defense).
60. Many of the post-WWII occupation courts echoed this reasoning. In the Justice Case, for example, the court noted: The ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field.... International law is not the product of statute for the simple reason that there is yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the events. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth. Justice Case, supra note 15, at 974-75.
61. ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 72 (2003); see also Hans Kelsen, Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?, 1 INT'L L.Q. 153, 164 (1947) ("[T]his rule [against ex post facto legislation] is not valid at all within international law, and is valid within national law only with important exceptions.").
62. Prosecutor v. Delalić, Mucić Delić & Landžo, Case No. IT-96-21-T, Judgment, para. 403 (Nov. 16, 1998). This reasoning was echoed in Prosecutor v. Karemera, Ngirumpatse, Nzirorera & Rwamakuba, Case No. ICTR-98-44-T, Decision on Defense's Preliminary Motions Challenging Jurisdiction: Joint Criminal Enterprise, para. 43 (May 11, 2004) ("The Chamber holds that, given the specificity of international criminal law, the principle of legality does not apply to international criminal law to the same extent as it applies in certain national legal systems.").
63. See Alicia Gil Gil, The Flaws of the Scilingo Judgment, 3 J. INT'L CRIM. JUST. 1082, 1087 (2005) (noting that international courts can do things that domestic courts cannot).
64. Delalić, Case No. IT-96-21-T, Judgment, para. 403.
65. Id. paras. 404-05.
66. See, e.g., Prosecutor v. Galić Case No. IT-98-29-T, Judgment and Opinion, para. 133 (Dec. 5, 2003) (ascertaining the elements of the crime of terror against the civilian population, which is prohibited - but not defined - by the Additional Protocols to the Geneva Conventions).
67. See, e.g., 18 U.S.C. § 2441(c) (1996) (providing for jurisdiction over "war crimes" as defined by enumerated treaties); see also Jordan J. Paust, It's No Defense: Nullum Crimen Sine Lege, International Crime and the Gingerbread Man, 60 ALB. L. REV. 657, 672-78 (1997) (citing referential statutes).
68. With respect to the Geneva Conventions, the Commentary notes that "[h]owever great the care taken in drawing up a list of all the various forms of infliction, it would never be possible to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes." 3 INT'L COMM. OF RED CROSS, COMMENTARY: GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 39 (J. Pictet ed. 1958); see also Sunday Times v. United Kingdom, 30 Eur. Ct. H.R. (ser. A) para. 49 (1979) (noting that "whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague....").
69. Prosecutor v. Delalić, Mucić, Delić & Landžo, Case No. IT-96-21-T, Judgment, para. 412 (Nov. 16, 1998) ("It has always been the practice of courts not to fill omissions in legislation when this can be said to have been deliberate. It would seem, however, that where the omission was accidental, it is usual to supply the missing words to give the legislation the meaning intended.").
70. See 1 OPPENHEIM'S INTERNATIONAL LAW 1278-79 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) (discussing the canon of in dubio mitius, which dictates that where treaty terms are ambiguous, an interpretation should be chosen that is least onerous to the party assuming the obligation or that interferes least with state sovereignty).
71. Preparatory Commission for the International Criminal Court, Addendum: Finalized Draft Text of the Elements of Crimes, U.N. Doc. PCNICC/2000/INF/3/Add. 2 (Nov. 2, 2000), available at http://daccessdds.un.org/docUNDOC/GEN/N00/724/27/ PDF/N0072427.pdf?OpenElement [hereinafter Elements of Crimes]. During the Rome Conference, several delegations, led by the United States, insisted that further elaboration of crimes beyond the statutory definitions was necessary and that formal Elements of Crimes should be incorporated directly or by reference into the Statute. The United States argued for the following statutory language: "Definitional elements for these crimes, contained in annex XXX [placeholder in original], shall be an integral part of this Statute, and shall be applied by. the Court in conjunction with the general provisions of criminal law, in its determination." Rome Conference, June 15-17, 1998, Conference Document, A/CONF.183/C.1/L.8 (June 19, 1998). Other delegations resisted, arguing that "the current definition of crimes in the Draft Statute generally meets the requirements of the principle of nullum crimen sine lege. There is no need at this stage for any further elaboration on the material and mental elements of the crimes." Definition of Crimes, ICJ Brief No. 1, to UN Diplomatic Conference (June 1988). Adopted as a compromise measure and part of a "package deal" in the waning days of the Rome Conference, Article 9 reads, "Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties." Rome Statute of the International Criminal Court art. 9, opened for signature July 17, 1998, 2187 U.N.T.S. 90 [hereinafter ICC Statute]. But see id. at art. 21 (placing Elements of Crime in the first tier of sources of law). Articles 9 and 21 can be reconciled by reading them in tandem: the Court "shall apply" the Elements for the purpose of "assisting] the Court.... " See Margaret McAuliffe deGuzman, Article 21: Applicable Law, in Commentary on the Rome Statute of the International Criminal Court 701, 705 (Otto Triffterer ed., 2d ed. 2008) (forthcoming) (draft, on file with author).
72. There is no express void for vagueness doctrine in international law that would allow an international tribunal to strike part of its subject matter jurisdiction for vagueness. See Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926) (stating that the void for vagueness doctrine bars the enforcement of "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application ...."). But see Prosecutor v. Stakić, Case No. IT-97-24-T, Judgment, para. 724 (July 31, 2003) (striking "other inhumane acts" count for vagueness). One commentator has surmised that this absence is a feature of the disempowerment of international judges: The absence of any remedy .for vagueness is presumably the result of both the general trend toward limiting rather than expanding the power of the judges vis-à-vis States Parties, and the feeling that States Parties as legislators could be trusted to delineate clearly the crimes which might ultimately be charged against their own agents. Bruce Broomhall, Article 22: Nullum Crimen Sine Lege, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 447, 452-53 (Otto Triffterer ed., 1999). Ironically, the ICL cases presented herein suggest that, by contrast, international judges feel quite empowered to prescribe conduct in the face of ambiguities in the law.
73. See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1554-55 (1987); see also Allison Marston Danner, When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War, 59 VAND. L. REV. 1 (2006) (applying Eskridge's theory to international humanitarian law).
74. Prosecutor v. Milutinović, Šainović & Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction: Joint Criminal Enterprise, paras. 37-38 (May 21, 2003) (setting forth the requirements of NCSL, but noting that courts must "tak[e] into account the specificity of international law" in considering the principle's application).
75. Prosecutor v. Delalić Mucić, Delić & Landžo, Case No. IT-96-21-T, Judgment, paras. 503, 515 (Nov. 16, 1998).
76. Id. para. 532.
77. See Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, art. 5(i), Annex, U.N. Doc. S/RES/827 (May 23, 1993) [hereinafter ICTY Statute]. During the drafting of the ICC Statute, some delegates raised concern about the inclusion of this crime on the ground that it "would not provide the clarity and precision required by the principle of legality, would not provide the necessary certainty concerning crimes that would be subject to international prosecution and adjudication, would not sufficiently guarantee the rights of the accused and would place an onerous burden on the Court to develop the law." Erkin Gadirov, Article 9: Elements of Crimes, in COMMENTARY ON THE
78. ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 289, 294 (Otto Triffterer ed., 1999) (internal quotation marks omitted).
79. Prosecutor v. Ku̇preškić, Case No. IT-95-16-T, Judgment, para. 563 (Jan. 14, 2000)
80. see also Prosecutor v. Blagojevic, Case No IT-02-60-T, Judgment, para. 625 (Jan. 17, 2005) (noting that "the principle of legality requires that a trier of fact exercise great caution in finding that an alleged act, not regulated elsewhere in Article 5 of the Statute, forms part of this crime [of "other inhumane acts"]: norms of criminal law must always provide individuals with sufficient notice of what is criminal behaviour and what is not").
81. KupreŠkić, Case No. IT-95-16-T, Judgment, para. 563.
82. Id. para. 566.
83. Prosecutor v. Stakić Case No. IT-97-24-T, Judgment, para. 719 (July 31, 2003) (internal quotation marks omitted). The Trial Chamber went on to rule that the crime against humanity of deportation covered the alleged inhumane acts, which involved the forced movement of persons across a de facto, as opposed to a strictly international, boundary.
84. Id. para. 723. This ruling was novel in its own right, as deportation historically referred to the forcible transfer of a person across an international border. The drafters of the ICC Statute dropped this distinction;
85. Article 7(1)(d) prohibits "deportation or forcible transfer," and the Elements of Crimes makes no mention of the necessity of traversing such a boundary. Elements of Crimes, supra note 72.
86. Prosecutor v. Stakić, Case No. IT-97-24-A, Judgment, paras. 314-15 (Mar. 22, 2006). The Appeals Chamber did, however, scale back the Trial Chamber's ruling that deportation (as a crime against humanity) could also be charged for moving individuals across shifting frontlines - as opposed to de facto or de jure state boundaries - as contrary to the NCSL principle.
87. Id. paras. 300-03. At the same time, the Appeals Chamber reversed the Trial Chamber's determination that "other inhumane acts" did not encompass the internal - as opposed to international - forcible transfer of persons.
88. Id. para. 317.
89. Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, para. 201 (Nov. 29, 2002) ("Once it is satisfied that a certain act or set of acts is indeed criminal under customary international law, the Trial Chamber must satisfy itself that this offence with which the accused is charged was defined with sufficient clarity under customary international law for its general nature, its criminal character and its approximate gravity to have been sufficiently foreseeable and accessible.").
90. Id.
91. Id para. 193.
92. See Prosecutor v. Blaškić, Case No. 95-14-T, Judgment, para. 182 (Mar. 3, 2000).
93. See Prosecutor v. Milutinović, Šainović & Ojdanić Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction: Joint Criminal Enterprise, para. 37 (May 21, 2003).
94. See Kelsen, supra note 62, at 165 ("In case two postulates of justice are in conflict with each other, the higher one prevails; and to punish those who were morally responsible for the international crime of the second World War may certainly be considered as more important than to comply with the rather relative rule against ex post facto laws, open to so many exceptions."). Kelsen also argued that Nazi defendants should not benefit from the protections of the principle of legality when they denied them to so many of their subjects.
95. See Hans Kelsen, The Rule Against Ex Post Facto Laws and the Prosecution of the Axis War Criminals, 11 JUDGE ADVOC. J. 8, 46 (1945)
96. see also CASSESE, supra note 62, at 139 (discussing the substantive justice approach).
97. CASSESE, supra note 62, at 72.
98. Prosecutor v. Delalić, Mucić, Delić & Landžo, Case No. IT-96-21-T, Judgment, para. 405 (Nov. 16, 1998).
99. See Prosecutor v. Karemera, Ngirumpatse, Nzirorera & Rwamakuba, Case No. ICTR-98-44-T, Decision on Defense's Preliminary Motions Challenging Jurisdiction: Joint Criminal Enterprise, para. 39 (May 11, 2004) ("The Chamber agrees with the Defence that, in deciding on the present issue, the Chamber is bound to respect the principle nullum crimen sine lege.").
100. This notion of international judicial privilege is apparent elsewhere in ICL, for example in the jurisprudence on the applicability of amnesty laws and immunity doctrines before international courts.
101. See Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment, para. 155 (Dec. 10, 1998) (noting that international crimes can be prosecuted before an international tribunal notwithstanding a domestic amnesty law that might block a domestic proceeding)
102. Prosecutor v. Taylor, Case No. SCSL-2003-01-AR72(E), Decision on Immunity from Jurisdiction, paras. 51-52 (May 31, 2004) (finding that the international court was not bound by the head of state immunity doctrine applicable within domestic courts).
103. Prosecutor v. Hadžihasanović, Alagić & Kubura, Case No. IT-01-47-PT, Decision on Joint Challenge to Jurisdiction, para. 36 (Nov. 12, 2002). In this regard,
104. see also the Tadić; case, which established that the doctrine of joint criminal enterprise was a form of complicity prosecutable in light of the Tribunal's object and purpose. Prosecutor v. Tadić, Case No. IT-94-l-A, Judgment, paras. 190-91 (July 15,1999).
105. See Hadžihasanović, Case No. IT-01-47-PT, Interlocutory Appeal on Decision on Joint Challenge to Jurisdiction (Nov. 12, 2002) (consolidating the defendants' arguments on the legality of the superior responsibility counts for interlocutory appeal).
106. Hadžihasanović, Case No. IT-01-47-PT, Decision on Joint Challenge to Jurisdiction, para. 62. In this regard, the Trial Chamber cited Article 22 of the ICC Statute, which states that "A person shall not be criminally responsible ... unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court."
107. Id. (emphasis added by Trial Chamber). The Trial Chamber also noted that the extradition law principle of double criminality is also satisfied where the conduct in question is criminal in both the sending and receiving state.
108. Id.
109. Id. paras. 62, 165.
110. Id. para. 62.
111. Id. paras. 97-101, 112, 115-19, 172-73.
112. Id. paras. 105-09 (highlighting the responses of Italy, the United States, Canada, and the Netherlands).
113. Id. paras. 164-65 ("The International Tribunal is in a different position than States and can apply all principles of international criminal law to achieve the purposes of international humanitarian law.").
114. Id. para. 64;
115. see also Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment, para. 146 (Mar. 24, 2000) (noting that the object of the Geneva
116. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts pmbl., June 8, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II]. Protocol II develops the law governing non-international armed conflicts.
117. The Martens Clause, which finds expression in a number of IHL treaties, states that "[u]ntil a more complete code of the laws of war is issued... populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience." Convention Respecting the Laws and Customs of War on Land, July 21, 1899, 32 Stat. 1803, T.S. No. 403. In most IHL treaties, some version of the Clause appears in the preamble. The First Additional Protocol to the Geneva Conventions elevates it to a substantive provision.
118. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts art. 1(2), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I] ("In the cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.").
119. Prosecutor v. Hadžihasanović, Alagić & Kubura, Case No. IT-01-47-PT, Decision on Joint Challenge to Jurisdiction, para. 160 (Nov. 12, 2002).
120. Id. para. 16.
121. Hadžihasanović Appellate Brief, supra note 95, para. 20.
122. Id. ("Whether conduct is punishable must be seen in the context of this fundamental distinction between the two bodies of law. The fact that the conduct may be prohibited by the law applicable in international conflict does not ipso facto make the same conduct unlawful in internal conflict .... Given the historical distinction between the bodies of law applicable to each kind of conflict, it cannot be said that it is foreseeable that conduct is unlawful in internal conflict on the basis that it is prohibited in international conflict.").
123. Id.
124. Id. para. 81.
125. Id. para. 25.
126. Id.
127. Prosecutor v. Hadžihasanović, Alagić & Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, paras. 16-17, 22 (July 16, 2003) ("[T]he concept of responsible command looks to the duties comprised in the idea of command, whereas that of command responsibility looks at liability flowing from breach of those duties. But... the elements of command responsibility are derived from the elements of responsible command.").
128. Id. para. 18.
129. Id. para. 29.
130. See Prosecutor v. Delalić, Mucić, Delić & Landžo, Case No. IT-96-21-A, Judgment, para. 193 (Feb. 20, 2001) (noting the difficulty of determining command hierarchies in contemporary conflicts).
131. See id.
132. Hadžihasanović, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, para. 34. Judge Hunt, in his separate opinion, likened the majority's reasoning to the common law approach taken in the post-WWII period to adapt established principles to novel situations. Hadž ihasanović, Case No. IT-01-47-AR72, Separate and Partially Dissenting Opinion of Judge David Hunt: Command Responsibility Appeal, para. 4 (July 16, 2003).
133. Jacquins v. Commonwealth, 63 Mass. (9 Cush.) 279, 281 (1852) ("The reason why [ex post facto] laws are so universally condemned, is that they overlook the great object of all criminal law, which is, to hold up the fear and certainty of punishment as a counteracting motive, to the minds of persons tempted to crime to prevent them from committing it. But a punishment prescribed after an act is done, cannot, of course, present any such motive.").
134. See David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 FORDHAM INT'L L.J. 473, 476, 483 (1999) ("Even if we assume that those committing atrocities engage in rational cost-benefit calculations (weighing the risk of prosecution against the personal and political gain of continued participation in ethnic cleansing and similar acts), most probably view the risk of prosecution as slight.... Even if successful, the contribution of such mass prosecutions to deterrence is uncertain at best."). But see Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 AM. J. INT'L L. 7, 12 (2001) ("Where leaders engage in some form of rational cost-benefit calculation, the threat of punishment can increase the costs of a policy that is criminal under international law.").
135. See Diane Marie Amann, Group Mentality, Expressivism, and Genocide, 2 INT'L CRIM. L. REV. 93, 116 (2002) (noting the "selectivity" of international prosecutions).
136. See Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice, 15 HARV. HUM. RTS. J. 39, 44-47 (2002) (discussing the multiple goals of criminal law).
137. See Prosecutor v. Erdemović, Case No. IT-96-22-T, Sentencing Judgment, para. 65 (Nov. 29, 1996) ("[T]he International Tribunal sees public reprobation and stigmatisation by the international community, which would thereby express its indignation over heinous crimes and denounce the perpetrators, as one of the essential functions of a prison sentence for a crime against humanity.").
138. ICC Statute, supra note 72, at pmbl. (affirming that "the most serious crimes of concern to the international community as a whole must not go unpunished").
139. This emphasis on accountability reflects the polar shift that often occurs among human rights advocates who espouse the rights of defendants in domestic criminal proceedings, but cheer for the prosecution in international ones. In both cases, advocates have aligned themselves against the source of superior power - the state in the domestic context, and the impunity-enjoying perpetrator in the international context.
140. This analysis assumes the applicability of the Vienna Convention approach to the statutes of the ad hoc tribunals, not all of which are technically treaties. Notwithstanding the different instruments creating these tribunals, the provisions governing the subject matter jurisdiction of all of the tribunals are drawn directly from ICL treaties. This provenance may indirectly justify a treaty-based approach to interpretation. In addition, the Vienna Convention regime mirrors the techniques governing the interpretation of domestic legal instruments, such as contracts, which arguably renders the Vienna Convention's interpretive rules applicable as "general principles of law." William A. Schabas, Interpreting the Statutes of the Ad Hoc Tribunals, in MAN'S INHUMANITY TO MAN 847, 852 (Lai Chand Vohrah et al. eds., 2003) (arguing that defendants are entitled to strict construction). In any case, the ad hoc tribunals regularly cite the Vienna Convention for guidance in interpreting their statutes.
141. See, e.g., Kanyabashi v. Prosecutor, Case No. ICTR-96-15-A, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para. 15 (June 3, 1999)
142. Prosecutor v. Tadić Case No. IT-94-1, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, para. 18 (Aug. 10, 1995) ("Although the Statute of the International Tribunal is a sui generis legal instrument and not a treaty, in interpreting its provisions and the drafters' conception of the applicability of the jurisprudence of other courts, the rules of treaty interpretation contained in the Vienna Convention on the Law of Treaties appear relevant.").
143. Vienna Convention on the Law of Treaties art. 31(1), Jan. 27, 1989, 1155 U.N.T.S. 331 [hereinafter Vienna Convention]. The Vienna Convention, while not universally subscribed to, is generally considered to have codified the customary international law of treaties and is treated as definitive by international and domestic tribunals.
144. See East Timor (Port. v. Austl.), 1995 I.C.J. 90, ¶ 214 (June 30).
145. See The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (arts. 74 and 75), Advisory Opinion OC-2/82, Sept. 24, 1982, Inter-Am. C.H.R. (Ser. A) No. 2 para. 27 (1982), reprinted in 67 I.L.R 568 (1984) ("[T]he object and purpose of the Convention is not the exchange of reciprocal rights between a limited number of States, but the protection of the human rights of all individual human beings within the Americas, irrespective of their nationality.")
146. see also Ireland v. United Kingdom, App. No. 5310/71, 2 Eur. H.R. Rep. 25 (1980), reprinted in 58 I.L.R 188, 291 ("Unlike international treaties of the classic kind, the [European Convention for the Protection of Human Rights and Fundamental Freedoms] creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a 'collective enforcement.'").
147. See Alexander Orakhelashvili, Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights, 14 EUR. J. INT'L L. 529, 532 (2003).
148. Justice Jackson referenced the Martens Clause in connection with the proposed crimes against humanity charge in his letter to President Truman on the status of what would become the Nuremberg trials. See Jackson Report, supra note 35. Tribunals in the post-WWII period also applied the Martens Clause to confirm the illegality of certain conduct absent positive law criminalization. In the Justice Case, for example, the Clause was invoked for the proposition that the deportation of the inhabitants of occupied territory constituted a war crime under CIL. Transcript of Prosecution's Opening Statement, United States v. Alstotter (Justice Case), reprinted in 3 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG TRIBUNAL UNDER CONTROL COUNCIL LAW NO. 10, at 31, 66 (1951).
149. The full meaning and import of the Martens Clause remains in dispute. Some states argue that it simply reminds states parties that they are bound by CIL alongside their treaty obligations. Others consider it defunct given the state of codification of the law of armed conflict. Still others argue that the Clause goes further as a source of norms regulating state conduct in the absence of a treaty of CIL rule. These views came to a head in the ICJ's Nuclear Weapons opinion. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 405-09 (July 8) (Shahabuddeen, J., dissenting). See generally Theodor Meron, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, 94 AM. J. INT'L L. 78 (2000).
150. Jared Wessel, Judicial Policy-Making at the International Criminal Court: An Institutional Guide to Analyzing International Adjudication, 44 COLUM. J. TRANSNAT'L L. 377, 390 (2006) ("[T]he Martens Clause ... codifies a legal view that necessitates a high level of deference to judges to engage in progressive development as they define reasonable standards in the diverse international community.").
151. The Attitude of States Toward the Development of Humanitarian Law, in THE NEW HUMANITARIAN LAW OF ARMED CONFLICT: PROCEEDINGS OF THE 1976 AND 1977 CONFERENCES 221, 257 (Antonio Cassese ed., 1980) [hereinafter PROCEEDINGS] (emphasis omitted). This "language was revolutionary in its recognition that the codified laws of war were incomplete and could supplement and interact with customary laws of war." Ariane L. DeSaussure, The Role of the Law of Armed Conflict During the Persian Gulf War: An Overview, 37 A.F. L. REV. 41, 45 (1994).
152. PROCEEDINGS, supra note 133, at 257. In this way, the Martens Clause: is much more than a pious declaration. It is a general clause, making the usages established among civilized nations, the laws of humanity, and the dictates of public conscience into the legal yardstick to be applied if and when the specific provisions of the [Hague] Convention and the Regulations annexed to it do not cover specific cases occurring in warfare, or concomitant to warfare.
153. United States v. Krupp, reprinted in 9 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL NO. 10, at 1327, 1341 (1950).
154. See Schabas, supra note 126, at 852-55 (arguing that defendants are entitled to strict construction).
155. See Prosecutor v. Erdemović, Case No. IT-96-22-A, Judgment, para. 19 (Oct. 7, 1997) (holding that notwithstanding the lack of a customary international law rule or a general principle of law, duress does not constitute a complete defense to the killing of innocents by a soldier).
156. See Prosecutor v. Kupreškić, Case No. IT-96-16-T, Judgment, para. 530 (Jan. 14, 2000) (discussing historical practice of reprisals).
157. See, e.g., Convention Respecting the Laws and Customs of War on Land art. 3, Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 2 [hereinafter Fourth Hague Convention] ("A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."). Nicragua sought such reparations before the ICJ in connection with the United States' support of the Contras. See generally Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).
158. Prosecutor v. Delalić, Mucić, Delić & Landžo, Case No. IT-96-21-A, Judgment, para. 162 (Feb. 20, 2001) ("a finding of individual criminal responsibility is not barred by the absence of treaty provisions on punishment of breaches"). But see Prosecutor v. Vasiljevid, Case No. IT-98-32-T, Judgment, paras. 196, 199 (Nov. 29, 2002) ("[U]nder no circumstances may the court create new criminal offences after the act charged against an accused... by criminalising an act which had not until the present time been regarded as criminal.... For criminal liability to attach, it is not sufficient... merely to establish that the act in question was illegal under international law, in the sense of being liable to engage the responsibility of a state which breaches that prohibition, nor is it enough to establish that the act in question was a crime under the domestic law of the person who committed the act." (emphasis in original)).
159. The Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, para. 34, delivered to the Security Council, U.N. Doc. S/25704 (May 3, 1993) [hereinafter ICTY Secretary-General's Report].
160. Prosecutor v. Tadić, Case No. IT-94-1-AR92, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 77 (Oct. 2, 1995).
161. Id. para. 72.
162. Id. para. 74.
163. Id. para. 78.
164. The Appeals Chamber reversed the Trial Chamber on the applicability of the Geneva Conventions' grave breaches provisions to non-international armed conflicts. In a separate opinion, Judge Abi-Saab argued that the Tribunal should have affirmed the Trial Chamber's Article 2 ruling in order to rationalize the laws of war and rectify an "artificial" division of labor between the ICTY statutory provisions that does not reflect the modern trend toward considering war crimes committed in internal armed conflicts to be "grave breaches." Tadić, Case No. IT-94-1-AR72, Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction, pt. IV (Oct. 2, 1995).
165. Tadić, Case No. IT-94-1-AR92, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 126.
166. Id. para. 89.
167. Id. para. 94.
168. In Akayesu, the ICTR followed the ICTY's lead and determined that parts of Additional Protocol II (particularly Article 4(2)'s fundamental guarantees) entail individual criminal responsibility as a matter of CIL. Prosecutor v. Akayesu, Case No. ICTR-94-4-T, Judgment, paras. 615-17 (Dec. 6, 1999). This argument was bolstered by the observation that all the acts in question were crimes under Rwandan law and that Rwanda had ratified the treaties. Id. para. 617.
169. Prosecutor v. Karemera, Ngirumpatse, Nzirorera & Rwamakuba, Case No. ICTR-98-44-T, Decision on Defense's Preliminary Motions Challenging Jurisdiction: Joint Criminal Enterprise (May 11, 2004). In Hadž ihasanović, the defendants made similar arguments with respect to the doctrine of superior responsibility. The ICTY Appeals Chamber rejected the challenge. See Prosecutor v. Hadžihasanović, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility (July 16, 2003).
170. Karemera, Case No. ICTR-98-44-T, Decision on Defense's Preliminary Motions Challenging Jurisdiction: Joint Criminal Enterprise, para. 2
171. see also Prosecutor v. Milutinović, Šainović & Ojdanić, Case No. IT-05-87-PT, Decision on Ojdanić's Motion Challenging Jurisdiction: Indirect Co-Perpetration, para. 15 (Mar. 22, 2006)
172. Prosecutor v. Blagojević & Jokić, Case No. IT-02-60-T, Judgment, para. 695 n.2145 (Jan. 17, 2005).
173. See Prosecutor v. Tadić, Case No. IT-94-1-AR92, Decision on the Defence Motion for Interlocutory Jurisdiction (Oct. 2, 1995). The ICTY's invocation of JCE liability in Tadić was an
174. innovation, as the ICTY Statute does not specifically list it as a punishable form of liability and excludes liability for conspiracy to commit the enumerated crimes. See Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, art. 7(1), Annex, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute], In finding JCE liability to be a form of "commission," the ICTY relied upon the object and purpose of the Statute and the nature of international crimes, which are often "manifestations of collective criminality." Tadić, Case No. IT-94-1-A, Judgment, para. 191 (July 15, 1999).
175. Karemera, Case No. ICTR-98-44-T, Decision on Defense's Preliminary Motions Challenging Jurisdiction: Joint Criminal Enterprise, para. 16.
176. Id. para. 33. In this regard, the Trial Chamber also found the doctrine of JCE applicable to a prosecution for genocide, even though the Genocide Convention (at Article III) and the ICTR Statute (at Article 2(3)) only list five forms of punishable genocidal acts. Id. paras. 46-48. The Chamber determined that Article 6(1) applied to all crimes within the jurisdiction of the Tribunal and that the specific provisions on genocide provide additional grounds on which individuals may be prosecuted for genocide that are not applicable to other crimes (for example, conspiracy and incitement). Id. para. 47;
177. see also Prosecutor v. Krstić, Case No. IT-98-33-A, Judgment (Apr. 19, 2004).
178. Karemera, Case No. ICTR-98-44-T, Decision on Defense's Preliminary Motions Challenging Jurisdiction: Joint Criminal Enterprise, para. 36 ("The Chamber does not perceive any difference between the structure of international crimes committed in the course of international armed conflicts and international crimes committed in the course of internal armed conflicts.").
179. Id.
180. Id.
181. Id.
182. Id. para. 44.
183. As a result of these rulings, the Office of the Prosecutor has brought most war crimes charges before the ICTY under the catch-all Article 3 rather than Article 2, which incorporates the grave breaches regime of the Geneva Conventions. A charge under Article 3 obviates the need to prove the existence of an international armed conflict in the relevant region of the former Yugoslavia, a highly complex task where international involvement by Yugoslavia (Serbia and Montenegro) and the Republic of Croatia in the newly independent Bosnia-Herzegovina was clandestine and subtle. Article 3 now essentially does all the work of Article 2 and more.
184. See Kanyabashi v. Prosecutor, Case No. ICTR-96-15-A, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para. 16 (June 3, 1999).
185. See Prosecutor v. Delalić, Mucić, Delić & Landžo, Case No. IT-96-21-T, Judgment, para. 176 (Nov. 16, 1998) ("While 'grave breaches' must be prosecuted and punished by all States, 'other' breaches of the Geneva Conventions may be so."). This result harkens back to the ancient Lotus principle whereby that which is not affirmatively prohibited is permitted.
186. See generally S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 9 (Sept. 7).
187. See Robert Gellately, Introduction to LEON GOLDENSOHN, THE NUREMBERG INTERVIEWS, at vii, vii-xiv (Robert Gellately ed., 2004) (recounting proposals by the United States, the United Kingdom and the Soviet Union to execute the Nazi defendants).
188. See Kelsen, supra note 62, at 165 (noting that collective sanctions are a feature of "primitive law").
189. Prosecutor v. Tadić, Case No. IT-94-1-AR92, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 83 (Oct. 2, 1995).
190. Id. para. 97 ("Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals ... when two sovereign States are engaged in war, and yet refrain from the same bans or providing the same protection when armed violence has erupted 'only' within the territȯry of a sovereign State?");
191. see also Delalić, Case No. IT-96-21-T, Judgment, para. 172 ("In light of the fact that the majority of the conflicts in the contemporary world are internal, to maintain a distinction between the two legal regimes and their criminal consequences in respect of similarly egregious acts because of the difference in nature of the conflicts would ignore the very purpose of the Geneva Conventions, which is to protect the dignity of the human person.").
192. Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AM. J. INT'L L. 247, 258 (2004).
193. ROBERT H. JACKSON, THE NÜRNBERG CASE 94 (1947).
194. Delalić, Case No. IT-96-21-T, Judgment, para. 313 (allowing the prosecution of violations in the face of defense arguments that such offenses do not give rise to individual criminal responsibility). The ICTY Appeals Chamber ruled that, "[i]t is universally acknowledged that the acts enumerated in common Article 3 are wrongful and shock the conscience of civilized people" and thus were "criminal according to the general principles of law recognized by the community of nations" within the meaning of the International Covenant on Civil and Political Rights (ICCPR). Delalić, Case No. IT-96-21-A, Judgment, para. 173 (Feb. 20, 2001);
195. see also Prosecutor v. Milutinović, Šainović & Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction: Joint Criminal Enterprise, para. 42 (May 21, 2003) (noting that "due to the lack of any written norms or standards, war crimes courts have often relied upon the atrocious nature of the crimes charged to conclude that the perpetrator of such an act must have known that he was committing a crime").
196. Milutinović, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction: Joint Criminal Enterprise, para. 42.
197. Tomuschat, supra note 14, at 835.
198. Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, paras. 172-75 (July 15, 1999).
199. Id. para. 191.
200. Stefan Glaser, La Méthode d'Interpretation en Droit International Pénal, 9 RIVISTA ITALIANA DI DDUTTO E PROCEDURA PENALE 757, 762-64 (1966).
201. See, e.g., Prosecutor v. Erdemović, Case No, IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 75 (Oct. 7, 1997) ("The purview of the International Tribunal relates to war crimes and crimes against humanity committed in armed conflicts of extreme violence with egregious dimensions. We are not concerned with the actions of domestic terrorists, gang-leaders and kidnappers. We are concerned that, in relation to the most heinous crimes known to humankind, the principles of law to which we give credence have the appropriate normative effect upon soldiers bearing weapons of destruction and upon the commanders who control them in armed conflict situations.").
202. See Martti Koskenniemi, "The Lady Doth Protest Too Much": Kosovo, and the Turn to Ethics in International Law, 65 MOD. L. REV. 159 (2002).
203. Wright, supra note 13, at 40 (arguing that all of law must reflect "the instincts of justice and humanity which are the common heritage of" humankind).
204. Id. at 51.
205. GARY J. BASS, STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS 25 (2001).
206. The statutes of the ad hoc tribunals contain language limiting their jurisdiction to "serious violations of international humanitarian law." See ICTY Statute, supra note 152, at art. 1; Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, art. 1, Annex, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute]. The ICC Statute ups the ante to "the most serious crimes of international concern." ICC Statute, supra note 72, at art. 1. The Extraordinary Chambers in the Courts of Cambodia are to prosecute "senior leaders" of the Khmer Rouge and those "most responsible" for international crimes. Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea art. 2, Oct. 27, 2004, NS/RKM/1004/006 [hereinafter ECCC Statute]. Likewise, the Special Court for Sierra Leone is prosecuting "persons who bear the greatest responsibility for serious violations" of IHL. Statute of the Special Court for Sierra Leone art. 1(1), Jan. 16, 2002, 2178 U.N.T.S. 138, available at http://www.sc-sl.org/scsl-statute.html [hereinafter SCSL Statute].
207. Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction, paras. 2-7 (May 31, 2004).
208. See Asylum Case (Colom. v. Peru), 1950 I.C.J. Rep. 266, 276-77 (recognizing the possibility of regional custom).
209. See, e.g., Convention on the Rights of the Child art. 38, Nov. 20, 1989, 1577 U.N.T.S. 3. A 2000 Optional Protocol raises the age of conscription to eighteen and obliges states parties to take "all feasible measures" to refrain from using children in direct hostilities.
210. See Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, G.A. Res. 54/263, art. 1, U.N. Doc. A/RES/54/263, entered into force Feb. 12, 2002.
211. Statute of the International Court of Justice art. 38(1)(a)-(d), June 26, 1945, 59 Stat. 1031, pt. 2, 1055, 1060 [hereinafter ICJ Statute].
212. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 95 (June 27) (noting that the treaty norms do not necessarily supersede CIL).
213. See H.L.A. HART, THE CONCEPT OF LAW 94 (2d ed. 1994) (explaining the concept of a rule of recognition that "specif[ies] some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts"); Lorenzo Gradoni, Nullum Crimen Sine Consuetudine: A Few Observations on How the International Criminal Tribunal for the Former Yugoslavia Has Been Identifying Custom (unpublished manuscript, on file with the author), available at http://www.esil-sedi.eu/english/pdf/Gradoni.PDF.
214. Prosecutor v. Galić, Case No. IT-98-29-T, Judgment and Opinion, para. 64 (Dec. 5, 2003).
215. Protocol I, supra note 104, at art. 51(2) ("The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.").
216. Protocol II, supra note 103, at art. 13(2) (same language as Article 51(2) of Protocol I).
217. Galić, Case No. IT-98-29-T, Judgment and Opinion, paras. 94-129.
218. Id. para. 25;
219. see also Prosecutor v. Kordić, Case No. IT-95-14/2-A, Judgment, paras. 41-46 (Dec. 17, 2004) (noting that NCSL is satisfied where a state is already bound to a treaty containing the applicable prohibition, regardless of whether the treaty or the rule constitutes customary international law, and distinguishing prior cases that may have implied that the crime had to be part of customary international law).
220. Galić, Case No. IT-98-29-T, Judgment and Opinion, para. 24;
221. see also Prosecutor v. Delalić, Mucić, Delić & Landžo, Case No. IT-96-21-A, Judgment, para. 44 (Feb. 20, 2001) (noting that the May 22 Agreement rendered some of the norms derived from the law governing international armed conflicts applicable in the war in the former Yugoslavia regardless of conflict classification).
222. Protocol I, supra note 104, at art. 85(3)(a).
223. Galić, Case No. IT-98-29-T, Judgment and Opinion, para. 127.
224. Id. paras. 97, 138.
225. Prosecutor v. Galić, Case No. IT-98-29-A, Judgment, para. 79 (Nov. 30, 2006) (internal quotation marks omitted).
226. Galić, Case No. IT-98-29-A, Judgment, para. 94-96;
227. see also Prosecutor v. Milutinović, Šainović & Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction: Joint Criminal Enterprise, para. 10 (May 21, 2003) ("[T]here is no reference in the report of the Secretary-General limiting the jurisdiction rationae personae of the International Tribunal to forms of liability provided by customary law. However, the principle of legality demands that the Tribunal shall apply the law which was binding upon individuals at the time of the acts charged. And, just as is the case in respect of the Tribunal's jurisdiction ratione materiae, that body of law must be reflected in [CIL].").
228. Galić, Case No. IT-98-29-A, Judgment, para. 83.
229. Id. paras. 94-96.
230. Id. para. 87.
231. Galić, Case No. IT-98-29-A, Separate and Partially Dissenting Opinion of Judge Schomburg, paras. 7-8 (Nov. 30, 2006).
232. Id. paras. 10-15, 20.
233. Id. para. 16.
234. Id. para. 21.
235. Id. para. 22.
236. The Nuremberg Tribunal signaled the importance of CIL when it noted that [t]he law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced in military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principle of law already existing. Nuremberg Judgment, supra note 19, at 464. Historically, adjudications of the law of war in the United States provide additional examples of this approach.
237. See, e.g., 11 Op. Att'y Gen. 297, 299 (1865) (stating that the laws of war may be prosecuted even though they have not been defined by any act of Congress).
238. Prosecutor v. Delalić, Mucić, Delić & Landžo, Case No. IT-96-21-T, Judgment, paras. 302-03 (Nov. 16, 1998) ("The evidence of the existence of such customary law ... may ... be extremely difficult to ascertain, particularly where there exists a prior multilateral treaty which has been adopted by the vast majority of States.... Despite these difficulties, international tribunals do, on occasion, find that custom exists alongside conventional law, both having the same substantive content.").
239. See R.R. Baxter, Treaties and Custom, in 129 RECUEIL DES COURS 64 (1971) (identifying the paradox of finding CIL when a well-subscribed treaty occupies the field).
240. M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 144 (2d ed. 1999) (suggesting that the principle of legality in ICL should be reformulated as noted given that it does not rely exclusively on written law (lege) but also encompasses unwritten customary rules (jure)).
241. See Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (May 31, 2004).
242. SCSL Statute, supra note 180, at art. 4(c).
243. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction, para. 25.
244. Id. para. 33.
245. Id. para. 50.
246. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction, Dissenting Opinion of Justice Robertson, para. 2 (May 31, 2004).
247. Id. para. 12;
248. see also id. para. 13 (noting that the fact that the accused's conduct would "shock or even appall decent people is not enough to make it unlawful in the absence of a prohibition").
249. Id. para. 31.
250. Id. para. 12. The surviving defendants were convicted of the offense. Prosecutor v. Fofana, Case No. SCSL-04-14-T, Judgment (Aug. 2, 2007).
251. SAN, Apr. 19, 2005 (R.J., No. 16/2005).
252. Art. 23.4 L.O.P.J.
253. SAN, Apr. 19, 2005 (R.J., No. 16/2005, 1.A., Fundamentos de Derecho, paras. 6-7).
254. Art. 607 C.P.
255. SAN, Apr. 19, 2005 (R.J., No. 16/2005, 1.B., Fundamentos de Derecho, para. 1).
256. See generally Giulia Pinzauti, An Instance of Reasonable Universality: The Scilingo Case, 3 J. INT'L CRIM. JUST. 1092 (2005); Christian Tomuschat, Issues of Universal Jurisdiction in the Scilingo Case, 3 J. INT'L CRIM. JUST. 1074 (2005).
257. See Art. 25 C.E. ("No one may be sentenced or fined for actions or omissions that at the time of occurrence were not a crime, misdemeanor or administrative offence pursuant to valid legislation in effect at that time."); Art. 9.3 (guaranteeing the principle of legality); see also Art. 2 C.P. ("A crime or misdemeanor shall not be punished with a penalty not included in the law prior to the perpetration thereof.").
258. STS, Nov. 8, 2007 (R.J., No. 789/2007).
259. Id. paras. 70-75.
260. Id. para. 64.
261. Id. paras. 69-71.
262. Id. para. 71.
263. This disaggregative reasoning finds analogy in Bivens - a U.S. Supreme Court case - and Alien Tort Statute (ATS) litigation, in which the Constitution and international law, respectively, provide the rule of decision, and the right of action is a creature of federal common law. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (explaining the ATS's operation).
264. STS, Nov. 8, 2007 (R.J., No. 789/2007, paras. 70-71).
265. Id. para. 74. Given the NCSL provision in the Spanish Constitution, this judgment will inevitably be appealed to the Tribunal Constitutional (Constitutional Court).
266. See generally Gil Gil, supra note 64; Pinzauti, supra note 224; Tomuschat, supra note 224.
267. Tribunals will rely on CIL to establish the existence of forms of responsibility as well as substantive offenses. See, e.g., Prosecutor v. Milutinović, Šainović & Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction: Joint Criminal Enterprise, para. 41 (May 21, 2003) (finding that the rules of customary law were sufficient to support a prosecution under the joint-criminal-enterprise theory of liability).
268. This is the case in other areas of public international law reasoning as well. See Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AM. J. INT'L L. 238, 239 (1996) (noting that opinio juris weighs more heavily in IHL than state practice, which frequently contravenes articulated norms).
269. Gradoni, supra note 186, at 4-5 (explaining ICTY's methodology for identifying custom and noting reliance on the work of the International Law Commission and the drafting history of the ICC Statute).
270. One study notes that the ICTY has considered the following as evidence of state practice: signatures to, ratifications of, and accessions to treaties; resolutions adopted by institutional organizations; decisions of domestic tribunals; internal legislation and policy statements (for example, military manuals); acquiescence in other state practice; and unilateral action that may not have been projected onto the international plane. Id. at 8. The frequency of citation suggests that the Tribunal is most influenced by the practices of the United States, Western Europe, and Russia. Id. at 13 fig.7.
271. See, e.g., The Paquete Habana, 175 U.S. 677, 686 (1900) (tracing the historical development of a rule of customary international law).
272. See Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, 12 AUSTL. Y.B. INT'L L. 82, 89 (1992) (critiquing the tendency to view CIL as formed "through proclamation, exhortation, repetition, incantation, lament").
273. One commentator has characterized this as a sliding-scale methodology: "[T]he more destabilizing or morally distasteful the activity ... the more readily international decision makers will substitute one element [of CIL] for the other, provided that the asserted restrictive rule seems reasonable." Frederick L. Kirgis, Jr., Custom on a Sliding Scale, 81 AM. J. INT'L L. 146, 149 (1987).
274. Gradoni, supra note 186, at 1;
275. see also BOOT, supra note 1, at 20 ("[J]urists practicing criminal law tend to become somewhat nervous when reference is made to 'customary international law' as a basis for individual criminal responsibility. . . . "); Lamb, supra note 25, at 743 ("[T]he nullum crime principle, which relies on expressed prohibitions and is based explicitly upon the value of legal certainty, sits uneasily with the very nature of customary international law, which is unwritten and frequently difficult to define with precision.").
276. See M. CHERIF BASSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW 225 (2003) (noting the two dimensions of NCSL).
277. See Prosecutor v. Blaškić, Case No. IT-95-14-A, Judgment, paras. 34-42 (July 29, 2004) (canvassing national law to determine the mental element of ordering offenses). The general-principles-of-law inquiry allows for the "distillation" of a general principle without a "comprehensive survey" but requires more than the consideration of one national legal system.
278. See Milutinović, Šainović & Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction: Joint Criminal Enterprise, para. 41 (May 21, 2003) (observing that "although domestic law (in particular the law of the country of the accused) may provide some notice to the effect that a given act is regarded as criminal under international law, it may not necessarily provide sufficient notice of that fact"). Although
279. this is the dominant view of the directionality of general principles of law, an alternative view suggests that general principles of law can also emerge from international sources and then trickle down to the domestic context. See Simma & Alston, supra note 239, at 102.
280. See BOOT, supra note 1, at 330.
281. See Prosecutor v. Tadić, Case No. IT-94-1-AR92, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 135 (Oct. 2, 1995) (noting that "substantive justice and equity" confirmed that the defendants could be prosecuted for violations of treaties that did not include penal provisions in light of the fact that the national law of the former Yugoslavia had incorporated such breaches into domestic law, so "[n]ationals of the former Yugoslavia . . . were therefore aware, or should have been aware, that they were amenable to the jurisdiction of their national criminal courts in cases of violation of international humanitarian law"). The appellate ruling did not alter the accused's sentence because the war crimes counts were cumulative charges, and so the sentences would run concurrently. Tadić, Case No. IT-94-1-Tbis-R117, Sentencing Judgment, para. 32 (Nov. 11, 1999).
282. Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment, para. 177 (Dec. 10,1998).
283. See, e.g., Convention Relative to the Protection of Civilian Persons in Time of War art. 67, Aug. 12,1949, 6 U.S.T. 3516,75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention].
284. Furundžija, Case No. IT-95-17/1-T, Judgment, para. 179.
285. Id. para. 182.
286. Id. para. 183.
287. Elements of Crimes, supra note 72, at art.7(l)(g)-1 (defining rape to include oral intercourse).
288. See, e.g., Prosecutor v. Milutinović, Š ainović & Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction: Joint Criminal Enterprise, paras. 40-41 (May 21, 2003) (noting that national law-particularly from the accused's home state-can provide notice of prohibited conduct or forms of responsibility, and finding that Yugoslavian law allowed for prosecutions based on a joint-criminal-enterprise theory of responsibility).
289. See ICC Statute, supra note 72, at art. 7. Indeed, one commentator has noted that ICL merely "introduce[d] a new nomenclature for long recognized offences." L.C. Green, The Maxim Nullum Crimen Sine Lege and the Eichmann Trial, 38 BRIT. Y.B. INT'L L. 457,461 (1962).
290. As Justice Jackson argued in his letter to President Truman outlining his plan for the Nuremberg prosecutions, "We propose to punish acts which have been regarded as criminal since the time of Cain and have been so written in every civilized code." Jackson Report, supra note 35, at pt. III.
291. Prosecutor v. Delalić, Mucić, Delić & Landžo, Case No. IT-96-21-T, Judgment, para. 312 (Nov. 16, 1998). In Delalić, the Trial Chamber responded to the defendants' NCSL argument by pointing out that the criminal code of the former Yugoslavia, adopted by the newly independent Bosnia-Herzegovina, criminalized all of the acts prohibited by Common Article 3.
292. Prosecutor v. Hadžihasanović, Case No. IT-01-47-PT, Interlocutory Appeal on Decision on Joint Challenge to Jurisdiction, para. 62 (Nov. 12, 2002).
293. See Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgment, paras. 681-87 (Jan. 14, 2000) (applying the common law concept of lesser-included offenses to international crimes). In the civil law tradition, the more specific offense consumes the more general one. Id. para. 688.
294. Cook v. United States, 138 U.S. 157, 183 (1891) (noting that "an ex post facto law . . . does not involve, in any of its definitions, a change of the place of trial of an alleged offence after its commission") (internal quotations and citations omitted);
295. see also Demjanjuk v. Petrovsky, 776 F.2d 571, 582-83 (1985) (allowing for the extradition of the defendant to Israel, which did not exist at the time of the alleged crimes, for ICL crimes);
296. Caso Scilingo, STS, Nov. 8, 2007 (R.J., No. 789/2007, para. 63) (noting that there is no NCSL problem where the Security Council created the ICTY and ICTR after many of the crimes to be adjudicated were committed).
297. 19 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 464 (1948);
298. see also id. at 463 ("[T]he existence of law has never been dependent on the existence of a correlated sanction external to the law itself."); Stanley L. Paulson, Classical Legal Positivism at Nuremberg, 4 PHIL. & PUB. AFF. 132,151-55 (1975).
299. This interplay between international crimes and their domestic analogs finds parallels in the way in which international tribunals manage complementarity, ne bis in idem (double jeopardy), and requests for deferral or referral to domestic courts. For example, the ICC's complementarity regime functions similarly to the NCSL jurisprudence. The principle of complementarity bars the ICC from asserting jurisdiction where a competent domestic court is prosecuting an individual, even if the conduct had been charged as a domestic rather than an international crime. A case is thus inadmissible if "the person concerned has already been tried for conduct which is the subject of the complaint" before the ICC. ICC Statute, supra note 72, at art. 17(l)(c) (emphasis added). This formulation suggests that where the underlying conduct is subject to domestic prosecution, the principle of complementarity bars the prosecution before the ICC. The ICC Statute's ne bis in idem provisions operate somewhat differently. Domestic courts are free of any double jeopardy obligations where an individual has been tried for an international crime before the ICC and is subsequently prosecuted for an ordinary crime in a domestic court. See id. at art. 20(2) ("No person shall be tried by another court for [an ICC crime] for which that person has already been convicted or acquitted by the Court."). In other words, if a person has been tried for the crime against humanity of torture before the ICC, a domestic court could also prosecute that individual for battery. Immi Tallgren, Article 20: Ne bis in idem, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 419, 428 (Otto Triffterer ed., 1999) (arguing that domestic courts may re-prosecute the same defendant for a domestic crime without running afoul of the ICC Statute's double jeopardy provisions).
300. ICJ Statute, supra note 184, at art. 38(l)(d).
301. The ICTY and ICTR share an Appeals Chamber, which has harmonized the jurisprudence emanating from those tribunals to a certain extent. See Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgment, paras. 537-42 (Jan. 14, 2000) (discussing operation of stare decisis in the ICTY/R system). Another partial exception is the Statute of the Special Court for Sierra Leone, which provides at Article 20(3) that "[t]he judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda." SCSL Statute, supra note 180, at art. 20(3).
302. ICC Statute, supra note 72, at art. 21(2).
303. See ICJ Statute, supra note 184, at art. 59.
304. See, e.g., Kupreškić, Case No. IT-95-16-T, Judgment, para. 541 ("[J]udicial decisions may prove to be of invaluable importance for the determination of existing law.").
305. See, e.g., Prosecutor v. Rwamakuba, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, para. 14 (Oct. 22, 2004) (noting the ICTY/R Appeals Chamber's reliance on judicial decisions for evidence of CIL).
306. See Amann, supra note 121, at 118 (noting the importance of having respected voices of authority express moral condemnation).
307. See BVerfG, Dec. 12, 2000, docket number 2 BvR 1290/99, available at http://www.bverfg.de/entscheidungen/rk20001212-2bvr129099en. html.
308. Id. para. 2.
309. Id. para. 2(a).
310. Id.
311. Id. para. 2(d).
312. See Jorgić v. Germany, App. No. 74613/01, paras. 27, 36, 47 (Eur. Ct. H.R. July 12, 2007), available at http://cmiskp.echr.coe.int/ tkpl97/view.asp?item=l&portal=hbkm&action=html& highlight=74613/ 01&sessionid=8779548&skin=hudoc-en.
313. Wright, supra note 13, at 44 ("The actual law with its specified offences and penalties may not be familiar to a cheesemonger in the City of London, but must be taken to be known to all those who have to act in the matter to which it relates, for instance, to statesmen, to military, naval and air officers and even to soldiers in the lower ranks.").
314. Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment, paras. 126-27 (Mar. 24, 2000) (stating that NCSL "does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime . . . .").
315. See Wessel, supra note 132, at 386 (noting the distinction between "judicial gap-filling," which occurs when courts resolve disputes by policy-making in situations in which legislatures have failed to fully codify a particular rule, and "judicial activism," which occurs when courts refuse "to implement the announced public policy decisions of otherwise authoritative institutions").
316. In domestic law, NCSL is, among other things, "a direct consequence of the theory of the separation of powers" and a reflection of a rational system for organizing state authority. BOOT, supra note 1, at 83. The separation-of-powers implications of disregarding the NCSL principle are somewhat mitigated in the international system in which the familiar triad of government branches is not reproduced mutatis mutandis. Accordingly, NCSL does not protect an analogous legislative authority; rather, it protects the right of states to make rules that govern their relations with each other, with the individuals within their jurisdiction, and between such individuals. Courts adjudicating ICL appear to feel less compelled to respect the outcomes of these processes than they might the products of a democratically elected legislature.
317. The cases addressed above may suggest that courts are exceeding their delegated authority and dramatically refashioning the rules that states created for themselves. And yet, it has been argued that a "residual lawmaking capacity of [international] judges may well be part of the intended design of" some treaty regimes.
318. See Tom Ginsburg, Bounded Discretion in International Judicial Lawmaking, 45 VA. J. INT'L L. 631, 641 (2005);.
319. see also Eyal Benvenisti, Customary International Law as a Judicial Tool for Promoting Efficiency, in THE IMPACT OF INTERNATIONAL LAW ON INTERNATIONAL COOPERATION 85 (Eyal Benvenisti & Moshe Hirsh eds., 2004) (arguing for the efficiency of judicial lawmaking where collective action problems among states prevent the emergence of necessary rules). For an application of this theory to the IHL context, see generally Danner, supra note 74.
320. See, e.g., UDHR, supra note 10, at art. 11(2);
321. European Convention for the Protection of Human Rights and Fundamental Freedoms art. 7, opened for signature Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECPHRFF];
322. International Covenant on Civil and Political Rights art. 15, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR];
323. American Convention on Human Rights art. 9, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter American Convention];
324. African Charter on Human and Peoples' Rights art. 7, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 [hereinafter African Charter].
325. Touvier v. France, App. No. 29420/95, 88-B Eur. Comm'n H.R. Dec. & Rep. 148, 161 (1997) (noting that Article 7(2) of the European Convention on Human Rights and Fundamental Freedoms was not meant "to affect laws which, in the wholly exceptional circumstances at the end of the Second World War, were passed in order to punish war crimes, treason and collaboration with the enemy[,]" and finding no violation where applicant was prosecuted for crimes against humanity).
326. UDHR, supra note 10, at art. 11(2);
327. see also ICCPR, supra note 279, at art. 15(1) (containing an analogous formulation);
328. African Charter, supra note 279, at art. 7(2) (same). The African Charter, however, does not contain a clause referencing international law as a source of law: "No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed." African Charter, supra note 279, at art. 7(1).
329. The French translations of these provisions generally employ the word "droit" rather than "loi," implying that more than written law is at issue. BOOT, supra note 1, at 146-47.
330. ICCPR, supra note 279, at art. 15(1). A similar formulation is found at Article 9 of the American Convention of Human Rights although reference is made to "under the applicable law" rather than to national and international law. American Convention, supra note 279, at art. 9. This provision was meant to cover both international and domestic law. BOOT, supra note 1, at 173;
331. see also Protocol II, supra note 103, at art. 6(2)(c) (requiring prior criminalization "under the law").
332. ICCPR, supra note 279, at art. 15(2). The latter provision has been interpreted to allow for resort to general principles of law within the meaning of the ICJ Statute where no applicable treaty or custom can be identified.
333. See DAVID J. HARRIS ET AL., LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 282 (1995) ("If there is no treaty binding upon the parties to a dispute and if no rule of customary international law based on state practice applies, recourse may be had to 'general principles of law recognized by civilized nations,' i.e., by the state members of the international community, to fill the gap."). Cassese suggests that this reference should have been to CIL and not to general principles of law. CASSESE, supra note 62, at 149 n.27.
334. Mohamed Shahabuddeen, Does the Principle of Legality Stand in the Way of Progressive Development of Law?, 2 J. INT'L CRIM. JUST. 1007,1011 (2004).
335. European Convention on Human Rights and Fundamental Freedoms art. 7, Nov. 4, 1950, 213 U.N.T.S. 222.
336. See, e.g., ICCPR, supra note 279, at art. 4(2). IHL contains its own articulations of the NCSL principle in the penal provisions of several treaties. For example, the Third Geneva Convention (protecting prisoners of war (POWs)) at Article 99 states that POWs may not be tried or sentenced for acts "not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed." Convention Relative to the Treatment of Prisoners of War art. 99, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention];
337. see also Fourth Geneva Convention, supra note 247, at art. 67. Protocol I considers this prohibition to be a "fundamental guarantee" in Article 75(4)(c), and Article 6(2)(c) of Protocol II applies the same principle to individuals involved in non-international armed conflicts.
338. Protocol I, supra note 104, at art. 75(4)(c);
339. Protocol II, supra note 103, at art. 6(2)(c).
340. See P. VAN DUK & G.J.H. VAN HOOF, THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 436 (1998);
341. ANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS, CCPR COMMENTARY 281 (2005);
342. N. ROBINSON, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ITS ORIGINS, SIGNIFICANCE, APPLICATION AND INTERPRETATION 116 (1958) (noting that Article 11(2) of the UDHR was meant to signal the legality of the post-WWII proceedings);
343. see also Prosecutor v. Delalić, Mucić, Delić & Landžo, Case No. IT-96-21-T, Judgment, para. 313 (Nov. 16,1998).
344. Likewise, in 1946, the U.N. General Assembly adopted Resolution 95(I) affirming the principles of international law recognized in the Nuremberg Charter and Judgment without, however, identifying those principles specifically. Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal, G.A. Res. 95 (I), at 1144, U.N. GAOR, 1st Sess., pt. 2, U.N. Doc. A/236 (Dec. 11, 1946);
345. see also Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, [1950] 2 Y.B. Int'l L. Comm'n pt. III, paras. 95-127, U.N. Doc. No. A/1316 (A/5/12) [hereinafter Principles of International Law], available at htrp://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7-l-1950 Principle II states: "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. Principles of International Law, supra, para. 99.
346. See Vienna Convention, supra note 127, at art. 27 ("A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.").
347. Prosecutor v. Tadić, Case No. IT-94-1-AR92, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 42 (Oct. 2, 1995) (noting that provisions in human rights treaties are addressed to national legal systems, not international courts, but conceding that some such provisions may be binding as general principles of law).
348. UDHR, supra note 10, at pmbl.
349. Early drafts of what became the ICC Statute included the NCSL principle. The 1966 version of the Draft Code of Crimes against the Peace and Security of Mankind contains a formulation that references internal law but not international law: "Nothing in this article precludes the trial of anyone for an act which, at the time when it was committed, was criminal in accordance with internal law or national law." 1 Y.B. Int'l L. Comm'n 33, U.N. Doc. A/CN.4/L.522/1996.
350. See also ICC Statute, supra note 72, at art. 8(2)(b) (allowing for the prosecution of war crimes "within the established framework of international law");
351. Elements of Crimes, supra note 72, at art. 7(1) ("[C]rimes against humanity . . . are among the most serious crimes of concern to the international community as a whole, warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.").
352. ICC Statute, supra note 72, at art. 22(1).
353. Id. at art. 24(2).
354. Id. at art. 22(2).
355. This provision embodies the idea that the relatively static Statute may not reflect existing CIL and should not "chill" the continuing process of CIL development. Per Saland, International Criminal Law Principles, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE 195 (Roy S. Lee ed., 1999);
356. see also ICC Statute, supra note 72, at art. 10 ("Nothing in this Part [concerning crimes, jurisdiction, and admissibility] shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.").
357. ICC Statute, supra note 72, at art. 24 ("No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.").
358. Id. at art. 5(2).
359. Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Annex I, Res. E, U.N. Doc. A/Conf.183/10 (July 17,1998).
360. Collectively, these provisions have their roots in predecessors to the ICC Statute that contemplated that the court would have jurisdiction by reference over "core" international crimes of genocide, crimes against humanity, and war crimes as defined by customary international law along with certain enumerated "treaty crimes" derived from discrete multilateral treaties. As originally envisioned, the ICC's constitutive statute was to be primarily procedural in nature, incorporating general international law and treaty crimes by reference. Early on, delegates expressed concern that CIL would not define the relevant crimes as clearly as would be necessary to provide adequate notice to an accused. In addition, with respect to treaty crimes, they anticipated that it would be necessary to confirm that the treaty was in force with respect to the relevant states in order for a prosecution to proceed. These concerns led states to set out definitions of crimes in the Statute rather than refer to crimes by reference. The treaty crimes eventually either fell out of the Statute, as was the case with terrorism stricto sensu and drug trafficking, or were incorporated into the core crimes, as was the case with respect to crimes against internationally protected persons (which are enumerated as war crimes at Article 8(2)(b)(iii)) and apartheid (which is listed as a crime against humanity at Article 7(l)(j)). These developments, coupled with the court's jurisdiction becoming strictly prospective with respect to the crimes, defined within the Statute, meant that the NCSL provisions lost much of their relevance.
361. See Raul C. Pangalangan, Article 24: Non-Retroactivity Ratione Personae, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 467,467-70 (Otto Triffterer ed., 1999).
362. This would have to be the case; otherwise, states would simply legislate impunity. In fact, the opposite has occurred whereby ICC ratification has spurred a global codification effort as states bring their domestic legal orders into line with the subject matter jurisdiction and infrastructure of the ICC.
363. This provision states: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence 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 the criminal offence was committed. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilised nations. ECPHRFF, supra note 279, at art. 7.
364. This methodology can be traced, to a certain extent, to the seminal cases of S.W. and C.R. v. United Kingdom, in which two men argued that they could not be prosecuted for raping their wives in light of common law marital immunities. The British House of Lords had ruled that the defense was no longer available in light of changing social, economic, and cultural mores. Considering several trends in decision in the British courts establishing important exceptions to immunity alongside ongoing legislative efforts to abolish it, the European Commission on Human Rights held that: there was a basis on which it could be anticipated [by the applicants] that the courts could hold that the notional consent of the wife was no longer implied. In particular, given the recognition by contemporary society of women's equality of status with men in marriage and outside it and of their autonomy over their own bodies, . . . this adaptation in the application of the offence of rape was reasonably foreseeable to an applicant with appropriate legal advice.
365. C.R. v. United Kingdom, App. No. 20190/92,21 Eur. H.R. Rep. 363, para. 60 (1995). The European Court affirmed, reasoning that "Article 7 . . . cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen." C.R. v. United Kingdom, 335-C Eur. Ct. H.R. (ser. A) para. 36 (1995).
366. X Ltd. & Y v. United Kingdom, App. No. 8710/79, 28 Eur. Comm'n H.R. Dec. & Rep. 77, 81 (1982) (holding that Article 7 dictates that constitutive elements of an offense (blasphemous libel) cannot be changed by the courts ex post, although they may be clarified or adapted to new circumstances).
367. C.R. v. United Kingdom, 335-C Eur. Ct. H.R. (ser. A) para. 41 (1995).
368. C.R. v. United Kingdom, App. No. 20190/92, 21 Eur. H.R. Rep. 363, para. 33 (1995).
369. C.R. v. United Kingdom, 335-C Eur. Ct. H.R. (ser. A) paras. 37, 41 (1995).
370. C.R. v. United Kingdom, App. No. 20190/92, 21 Eur. H.R. Rep. 363, para. 41 (1995).
371. See id. para. 59.
372. Cantoni v. France, 1996-V Eur. Ct. H.R. para. 35 (finding that although the statute in question was drafted in general terms, the defendant could have foreseen potential liability with the advice of counsel).
373. Id.
374. Parker v. Levy, 417 U.S. 733, 756 (1974) (upholding a military prohibition against "conduct unbecoming an officer and a gentleman" as not unconstitutionally vague).
375. In this case, the applicants were involved at various levels of command in the establishment and implementation of a system for preventing individuals from crossing the Berlin Wall that involved the use of anti-personnel mines, automatic fire apparatuses, and a shoot-to-kill policy and that led to the death or injury of many individuals attempting to cross the border into West Germany. After reunification, the German courts convicted the applicants of various forms of homicide, notwithstanding the defendants' arguments that their actions were sanctioned by extant law allowing for the use of firearms to prevent the commission of a "serious crime" (that is, fleeing the GDR) and by an official policy of using deadly force to police the border. Streletz, Kessler & Krenz v. Germany, 2001-II Eur. Ct. H.R. 230.
376. Id. para. 47.
377. Id. para. 104. Indeed, the Court noted that the applicants could not rely on the existence of a policy that contravened international law and "objective justice." Id. paras. 47, 87.
378. Id. para. 84.
379. K.-H. W. v. Germany, App. No. 37201/97, paras. 14, 17 (Eur. Ct. H.R. Mar. 22, 2001), available at http://cmiskp.echr.coe.int/tkpl97/view.asp?item= l&portal=hbkm&action=html&highlight=GERMATY&sessionid= 10570468&skin=hudoc-en.
380. Streletz, 2001-II Eur. Ct. H.R. 230 (Loucaides, J., concurring).
381. Kolk & Kislyiy v. Estonia, App. Nos. 23052/04 & 24018/04 (Eur. Ct. H.R. Jan. 17, 2006), available at http://www.derechos.org/nizkor/ impu/kolk.html.
382. Id. § A.
383. See id. (citing Article 23(1) of the Estonian Constitution, which states that "[n]o one shall be convicted of an act which did not constitute a criminal offence under the law in force at the time the act was committed").
384. Id. For a discussion of the "war nexus" requirement, see supra note 41 and accompanying text.
385. See also Papon v. France (No. 2), 2001-XII Eur. Ct. H.R. 235; Touvier v. France, App. No. 29420/95, 88-B Eur. Comm'n H.R. Dec. & Rep. 148, 161 (1997).
386. Cantoni v. France, 1996-V Eur. Ct. H.R. para. 32;
387. see also Kokkinakis v. Greece, App. No. 14307/88, para. 40 (Eur. Ct. H.R. May 25, 1993), available at http://cmiskp.echr.coe.int/tkpl97/ view.asp?item=l&poital=hbkm&action=html&highlight= Greece%20%7C%20Kokkinakis&sessionid=10572462&skin=hudoc-en.
388. Cantoni, 1996-V Eur. Ct. H.R. para. 32.
389. C.R. v. United Kingdom, 335-C Eur. Ct. H.R. (ser. A) para. 42 (1995).
390. Id.
391. Id. para. 32.
392. See supra notes 268-73 and accompanying text.
393. Jorgić v. Germany, App. No. 74613/01, paras. 103-08 (Eur. Ct. H.R. July 12, 2007), available at http://cmiskp.echr.coe.int/tkp197/view.asp? item=1&portal=hbkm&action=html&highlight=74613/01&sessionid= 8779548&skin=hudoc-en.
394. Id. para. 113.
395. Id. paras. 109-10.
396. Id. paras. 104-05.
397. Id. paras. 47, 111.
398. Prosecutor v. Krstić, Case No. IT-98-33-T, Judgment, para. 25 (Aug. 2, 2001) (rejecting cognizability of cultural genocide).
399. Jorgić v. Germany, App. No. 74613/01, para. 112 (Eur. Ct. H.R. July 12, 2007), available at http://cmiskp.echr.coe.int/tkpl97/view.asp? item=l&portal=hbkm&action=html&highlight=74613/01&sessionid= 8779548&skin=hudoc-en.
400. Id. para. 114.
401. It should be noted that the ECHR cases hinge to a certain degree on the recognition by the European Court of a margin of appreciation for states codifying international crimes and interpreting domestic or international law. The European Court's role is "confined to ascertaining whether the effects of such an interpretation are compatible with the Convention." Kolk & Kislyiy v. Estonia, App. Nos. 23052/04 & 24018/04, § C (Eur. Ct. H.R. Jan. 17, 2006), available at http://www.derechos.org/nizkor/impu/kolk. html.
402. Anthea Elizabeth Roberts, Traditional and Modem Approaches to Customary International Law: Reconciliation, 95 AM. J. INT'L L. 757, 778 (2001) (identifying "commonly held subjective values about right and wrong that have been adopted by a representative majority of states in treaties and declarations").
403. Important treaties embodying these values are the 1948 Genocide Convention, the 1949 Geneva Conventions, the 1966 International Covenant on Civil and Political Rights, the 1984 Torture Convention, the regional human rights conventions, and the various nondiscrimination conventions.
404. Many human rights treaties envision the state (via state actors and governmental policies) as primarily responsible for rights violations, and thus the source of recompense. See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 14, G.A. Res. 39/46, at 197, U.N. GAOR, 39th Sess., Annex 39, Supp. No. 51, U.N. Doc. A/39/51 (Dec. 10, 1984) [hereinafter Torture Convention]. The most extreme human rights abuses have also been embodied in penal treaties-such as the Genocide, Geneva, and Torture Conventions-which envision both state and individual criminal responsibility.
405. Prosecutor v. Tadić, Case No. IT-94-1-AR92, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 97 (Oct. 2, 1995).
406. See Principles of International Co-operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, G.A. Res. 3074 (XXVIII), at 78, U.N. GAOR, 28th Sess., Supp. No. 30, at 78, U.N. Doc. A/9030 (Dec. 3, 1973); Question of the Punishment of War Criminals and of Persons Who Have Committed Crimes Against Humanity, G.A. Res. 2840 (XXVI), at 88, U.N. GAOR, 26th Sess., Supp. No. 29, U.N. Doc. A/8429 (Dec. 18, 1971) (affirming that "refusal by States to co-operate in the arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity is contrary to the purposes and principles of the Charter of the United Nations and to generally recognized norms of international law");
407. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), at 121, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028 (Oct. 24, 1970).
408. See Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, at 213, U.N. GAOR, 40th Sess., 96th plen. mtg., Annex, Agenda Item 5, Supp. No. 53, U.N. Doc. A/40/53 (Nov. 29, 1985) ("Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures . . ..").
409. See, e.g., ICCPR, supra note 279, at art. 2(1).
410. UDHR, supra note 10, at art. 8 ("Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.").
411. ICCPR, supra note 279, at art. 2(3).
412. The American Convention obliges signatories to ensure that every person has the right to a hearing to determine his rights and obligations of a civil nature. American Convention, supra note 279, at art. 8(1).
413. Torture Convention, supra note 343, at art. 14. These provisions apply mutatis mutandis to acts of cruel, inhuman, and degrading treatment or punishment that may fall short of torture: "the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment." Id. at art. 16.
414. See, e.g., id. at arts. 5-7 (obliging states parties to prosecute or extradite individuals accused of committing torture).
415. See Garay Hermosilla v. Chile, Case 10.843, Inter-Am. C.H.R., Report No. 36/96, OEA/Ser.L./ V./II.95, doc. 7 rev. 156 (1997) (finding Chilean amnesty law incompatible with IACHR obligations to ensure victim redress).
416. See, e.g., Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, G.A. Res. 2391 (XXHI), at 40, Annex, 23 U.N. GAOR, Supp. No. 18, U.N. Doc. A/7218 (Nov. 26,1968);
417. see also ECCC Statute, supra note 180, at arts. 3-5 (extending the statute of limitations for domestic crimes and noting that international crimes have no statutes of limitations);
418. Kolk & Kislyiy v. Estonia, App. Nos. 23052/04 & 24018/04, § C (Eur. Ct. H.R. Jan. 17, 2006), available at http://www.derechos.org/ nizkor/impu/kolk.html (noting that crimes against humanity and war crimes have no statute of limitation).
419. See Prosecutor v. Delalić, Mucić\ Delić & Landžo, Case No. IT-96-21-T, Judgment, para. 301 (Nov. 16, 1998) ("[T]he prevalence of armed conflicts within the confines of one State or emerging from the breakdown of previous State boundaries is apparent and absent the necessary conditions for the creation of a comprehensive new law by means of a multilateral treaty, the more fluid and adaptable concept of customary international law takes the fore.").
420. See Deidre Willmott, Removing the Distinction Between International and Non-International Armed Conflict in the Rome Statute of the International Criminal Court, 5 MELB. J. INT'L L. 196, 199-204 (2004).
421. Prosecutor v. Tadić Case No. IT-94-1-T, Opinion and Judgment, para. 655 (May 7, 1997) (citing the work of the International Law Commission as evidence of CIL).
422. Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment, para. 227 (Dec. 10, 1998) (noting that "the Rome Statute by and large may be taken as constituting an authoritative expression of the legal views of a great number of States").
423. See Tomuschat, supra note 14, at 834 (noting that crimes against humanity are "an amalgamation of the core substance of criminal law to be encountered in the criminal codes of all 'civilized' nations").
424. A strict application of nulla poena sine lege dictates a published schedule of penalties, a feature of many civil law systems.
425. ICTY Statute, SUPRA note 152, at art. 24(1);
426. see also Rules of Procedure and Evidence (RPE) of the International Criminal Tribunal for the Former Yugoslavia, rule 101(B)(iii), U.N. Doc IT/32/rev.38 (June 13, 2007) (reiterating requirement that the Trial Chamber consider the general practice regarding prison sentences in the courts of the former Yugoslavia). The ICTY and ICTR RPE also set forth some aggravating and mitigating factors that may be considered in sentencing convicted defendants.
427. ICTR Statute, supra note 180, at art. 23.
428. See, e.g., Prosecutor v. Plavšić Case No. IT-00-39/40-T, Sentencing Judgment, paras. 21, 25 (Feb. 27, 2003).
429. Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment, para. 184 (Dec. 10,1998).
430. But see Prosecutor v. Galić, Case No. IT-98-29-A, Judgment, para. 398 (Nov. 30, 2006) ("[T]he International Tribunal, while bound to take the sentencing law and practice of the former Yugoslavia into account, does not have to follow it.").
431. See Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Li, para. 19 (Oct. 7, 1997) (arguing "that the gravity of a criminal act, and consequently the seriousness of its punishment, are determined by the intrinsic nature of the act itself and not by its classification under one category or another").
432. See Erdemović, Case No. IT-96-22-A, Judgment, paras. 26-27 (finding defendant's original guilty plea to be uninformed because defendant was unaware that crimes against humanity were a more serious offense than war crimes);
433. Prosecutor v. Musema, Case No. ICTR-96-13-I, Judgment, para. 981 (Jan. 27, 2000) ("[G]enocide constitutes the 'crime of crimes,' which must be taken into account when deciding the sentence.").
434. See generally Allison Marston Danner, Constructing a Hierarchy of Crimes in International Criminal Law Sentencing, 87 VA. L. REV. 415 (2001) (arguing that the chapeau elements of international crimes allow for the grading of offenses for sentencing purposes).
435. Early in the process of drafting the ICC Statute, it was envisioned that the international court would take into account the penalties provided in applicable national law (for example, the territorial or nationality state) to serve as guidance. William A. Schabas, Article 23: Nulla Poena Sine Lege, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 463,464 (Otto Triffterer ed., 1999). There was even talk of drafting a more detailed schedule of penalties along the line of civil law jurisdictions, but in the end, these options were abandoned in favor of a more untethered approach. Id. at 465-66.
436. ICC Statute, supra note 72, at art. 23.
437. Id. at art. 77 (setting forth available penalties).
438. Id. at art. 75 (providing for victim reparation).
439. Id. at art. 78(1).
440. Id. at art. 76(1).
441. Rolf Einar Fife, Article 77: Applicable Penalties, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 985, 986, 989-90 (Otto Triffterer ed., 1999).
442. Prosecutor v. Erdemović, Case No. IT-96-22-T, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para. 85 (Oct. 7, 1997) (noting that sentencing provides a "sophisticated and flexible" tool to do justice in particular cases).
443. Dworkin would employ a tree metaphor to describe this process, whereby the Nuremberg and Tokyo Tribunals provided ICL's trunk and the modern tribunals, perched on ever narrower branches, are making increasingly minor refinements and subinterpretations of the basic doctrines. RONALD DWORKIN, LAW'S EMPIRE 70 (1986).
444. ICC Statute, supra note 72, at art. 21. This Article directs the Court to apply, in the first place, the Statute, Elements of Crimes and Rules of Procedure and Evidence; in the second place, "applicable treaties and the principles and rules of international law"; and, in the third place, "general principles of law . . . derived from national law[]." It has been presumed that "principles and rules of international law" refers to international customary law, although the formulation is ambiguous. See Margaret McAuliffe deGuzman, Article 21: Applicable Law, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 435, 441-42 (Otto Triffterer ed., 1999).
445. Perceived vagueness in definition is one of the reasons articulated by the United States for opposing the court. See John R. Bolton, The Risks and Weaknesses of the International Criminal Court from an American Perspective, 41 VA. J. INT'L L. 186, 189 (2000).
446. See David Hunt, The International Criminal Court: High Hopes, "Creative Ambiguity" and an Unfortunate Mistrust in International Judges, 2 J. INT'L L. CRIM. JUST. 56, 60 (2004) (opining that the Elements of Crime-"an overwhelming exercise of legal positivism"-will have the effect of "stultifying further growth in the law").
447. See Wessel, supra note 132, at 414 ("[I]t is unrealistic in light of history to expect nullum crimen sine lege to significantly restrain judicial policy-making at the ICC").
448. See, e.g., Vincent-Joel Proulx, Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity?, 19 AM. U. INT'L L. REV. 1009, 1022-25 (2004).
449. See, e.g., Sonja Starr, Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations, 101 NW. U. L. REV. 1257, 1257-58 (2007).
450. See ECCC Statute, supra note 180, at art. 2 (limiting the ECCC's temporal jurisdiction to crimes committed during the period of April 17, 1975 to January 6, 1979).
451. A hybrid court to consider terrorist acts in Lebanon is in the process of being established. See Detlev Mehlis, Report of the International Independent Investigation Commission Established Pursuant to Security Council Resolution 1595, para. 5, delivered to the Security Council, U.N. Doc. S/2005/662 (Oct. 20, 2005) (proposing the establishment of such a court). The contemplated subject matter jurisdiction includes crimes of terrorism, for which there is no omnibus international definition. The statute for that tribunal, however, defines terrorism solely in reference to Lebanese domestic law. It is unclear how influential international law will be in those proceedings. See Statute of the Special Tribunal for Lebanon, S.C. Res. 1757, art. 2, Attachment, U.N. Doc. S/RES/1757 (May 30, 2007).
452. See supra note 354.
453. Prosecutor v. Milutinović, Šainović & Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction: Joint Criminal Enterprise, para. 39, (May 21, 2003) (noting that international law is "the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence' rather than a set of statutes adopted by one sovereign authority, as in national systems") (quoting the Justice Case, supra note 15).
454. See Military Commission Act of 2006,10 U.S.C.A. § 950v(b)(25) (2006 & Supp. 2007).
455. See United States v. Hamdan, Ruling on Motion to Dismiss (Ex Post Facto) 5-6 (July 14, 2008) (holding that the conspiracy and material support for terrorism crimes did not violate the ex post facto prohibition because they were pre-existing offenses under the common law of war) (draft on file with The Georgetown Law Journal).
456. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) (abolishing notion of federal common law crimes and declaring that all federal crimes must be proscribed by statute to be punishable). For a history of this transition, see WAYNE R. LAFAVE, 1 SUBSTANTIVE CRIMINAL LAW § 2.1 (2d ed. 2007).
457. John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189, 202 (1985) (noting that, in the United States, "penal legislation exists in such abundance that wholesale judicial creativity is simply unnecessary").
458. Bruce Ackerman uses the term "constitutional moment" in the context of liberal revolutions. See BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION 46-54 (1992). According to Ackerman, this moment is essentially a window of opportunity for "a collective effort both to frame . . . fundamental principles and to mobilize broad popular support for . . . crucial initiatives." Id. at 49.
459. MARTTI KOSKENNIEMI, BETWEEN APOLOGY AND UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT (2005) (noting the tension in international law between descriptive theories that accurately convey how states behave and normative ones that hinge on principles of justice that should govern international relations).