Advancing International Law: Rethinking Nulla Poena Sine Lege in International Criminal Justice

Shahram Dana of The John Marshall Law School in Chicago has posted a new article on Advancing International Law: Rethinking Nulla Poena Sine Lege in International Criminal Justice.  Here's the description of the article:

Although ranking among the most fundamental principles of criminal law, nulla poena sine lege has received surprisingly little attention in international criminal justice. Indeed, it may be considered the 'poor cousin' of nullum crimen sine lege, which in comparison has been the subject of numerous articles, books, and judgments. Given that they work in tandem as principles of legality, the limited scholarship on nulla poena sine lege is difficult to justify, although not without explanation. It has not, for example, escaped attention that nulla poena 'affects only proven criminals' while nullum crimen sine lege 'protects the mass of respectable citizens'. While most criminal justice systems have made considerable efforts over the years to close this gap, international criminal law has not. The potential contribution of nulla poena sine lege has been largely overlooked in the context of international prosecutions by policy makers, drafters, and judges. Likewise, there exists a lacuna in academic scholarship on this subject. Under-theorization of nulla poena in international criminal justice stalls the maturation in international law of this long standing criminal law principle, keeps dormant its contribution to justice, and challenges the legitimacy of international punishment. This article aims to redress this imbalance by developing the normative content of nulla poena sine lege under international law. The study's methodology deconstructs the nulla poena sine lege maxim into its underlying legal principles, investigates sources of international law pertaining to each principle and, reconstructs an international nulla poena sine lege maxim. The article hypothesizes that a fuller appreciation of the function and purpose of nulla poena sine lege, gained through an elucidation of its underlying legal principles, can facilitate a more penetrating analysis of its normative development in international law. Measured against the international standard for nulla poena, the article critically evaluates the statutes of international criminal courts and the emerging international sentencing jurisprudence for mass atrocities, genocide, crimes against humanity and war crimes.

Click here to download a copy of the article from SSRN.

(mew)