Beyond retroactivity to realizing justice: a theory on the principle of legality in international criminal law sentencing.

• Author: Dana, Shahram

If an international court were to be set up, it would be unwise to give it the very wide power to determine the penalty to be applied to each crime.

--Mr. Carlos Salamanca Figueroa, International Law Commission (1954)

1. INTRODUCTION

   Only the innocent deserve the benefits of the principle of legality. This statement naturally offends our notions of justice. It would be unacceptable for a legal system to institutionalize such an approach. Yet, in the context of prosecuting mass atrocities, genocide, crimes against humanity, and war crimes, international criminal law appears to be resigned to such a principle, if not openly embracing it. Although ranking among the most fundamental principles of criminal law, nulla poena sine lege (no punishment without law) has received surprisingly little attention in international criminal justice. So little, in fact, that it may be considered the poor cousin of nullum crimen sine lege (no crime without law) which has attracted far greater consideration in scholarship and jurisprudence. (1) Whereas nullum crimen sine lege addresses the punishability of the conduct in question, nulla poena sine lege deals with the legality of the actual punishment or penalty itself. Given that both are at the core of the principle of legality, (2) the neglect of nulla poena is difficult to justify, although not entirely without explanation. (3) As prominent legal scholar Jerome Hall observed, nulla poena sine lege "affects only proven criminals" while nullum crimen sine lege "protects the mass of respectable citizens." (4) Commenting on the traditional approach of strict adherence to nullum crimen combined with a cavalier attitude towards nulla poena, eminent criminal law professor Paul Robinson observed that such a practice "bestows the benefits of legality on innocent people and denies it only to the criminals." (5) While most national criminal justice systems have made considerable efforts over the years to close this gap, international criminal justice has not. The potential contribution of nulla poena has been largely overlooked on the international level 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 prosecution and punishment.

   This Article aims to redress this lacuna by (1) developing the normative content of nulla poena under international law; (2) critically evaluating the statutes of international criminal courts and their sentencing jurisprudence on genocide, crimes against humanity, and war crimes; and (3) advancing a theory for understanding the role and potential contribution of nulla poena to international justice. The Article argues for an understanding of nulla poena in international law that goes beyond its simple caricature as a principle of negative rights, designed merely to prevent retroactive punishment, to one that captures its role as a quality of justice principle, aimed at realizing justice in the distribution of punishment. This understanding of nulla poena is more in tune with its role in national systems.

   The study's methodology deconstructs the nulla poena maxim into its underlying legal principles, examines sources of international law pertaining to each principle, and then reconstructs an international nulla poena maxim. The Article hypothesizes that a fuller appreciation of the function and purpose of nulla poena, gained through an elucidation of its underlying legal principles, can facilitate a more penetrating analysis of its normative development in international law. Accordingly, Part II examines the purpose of and interests protected by nulla poena and draws attention to its modern function. (6) The analysis then connects underlying attributes of the maxim, formulated as legal principles, with its previously identified function and purpose. This Part argues that the goal of nulla poena is not merely to prevent retroactive punishment or abuse of power but also to realize equality before the law and consistency in sentencing. The former reflects a narrow understanding of nulla poena whereas the latter manifests a modern approach. (7)

   Part III investigates sources of international law in order to determine the international standard for nulla poena through an analysis of international and regional conventions, customary international law, general principles of law, and international judicial precedent. Rather than giving a blanket treatment of nulla poena under international law, this Part examines sources of international law as they pertain to each underlying attribute. Drawing upon this analysis, the Article advances an international standard for nulla poena integrating the particularities of international law with the requirements of criminal justice.

   In Part IV, the Article moves its examination of nulla poena into the context of international criminal justice. This Part begins with a critical analysis of the statute and case law of the International Criminal Tribunal for the former Yugoslavia (ICTY). (8) The treatment of nulla poena by the ICTY is examined against the backdrop of the analysis developed in Parts II and III. Next, the Article critiques the provisions of the Rome Statute of the International Criminal Court (ICC) (9) pertaining to nulla poena and sentencing. Here, the Article elucidates the strengths and weaknesses of the ICC Statute in light of the international standard for nulla poena and its potential contribution to international criminal justice. The Article concludes that while one of the rationales underlying nulla poena, for example preventing retroactive punishment, may not raise serious concerns for international punishment of individuals guilty of war crimes, crimes against humanity, and genocide, this does not mean that nulla poena has lost relevance to international criminal justice. Other rationales underlying the maxim, in particular those connected with its positive justice function, such as equal treatment before the law, consistency in sentencing, and improving the quality of justice, continue to require a rethinking of the role of nulla poena in advancing international law and justice.

2. THE NATURE OF NULLA POENA SINE LEGE

   1. VALUES: INTERESTS PROTECTED AND PURPOSES SERVED

      Nulla poena sine lege and its counterpart, nullum crimen sine lege, serve as the bedrock of the principle of legality. They protect one of the most treasured individual rights of all--the right to liberty. In legal positivism, their emergence is connected with the struggle against the dangers of unbridled and absolute power. (10) They developed alongside other doctrines, such as trias politica, that were likewise designed to curb abuses of centralized power, although their application is not theoretically limited to that particular form of government. (11) In a trias politica system, the principle of legality places obligations and limitations on the powers of all three branches of the government. For example, they oblige the lawmaking body to define as precisely and clearly as possible the penalty applicable to a particular crime, including the form and severity of the punishment. They place on the judiciary the obligation to limit sanctions to those explicitly provided for by the legislature and prohibit judges from applying penalties retroactively. It may even be argued that nulla poena requires the judiciary to articulate reasons in support of the selected penalty. (12)

      Nulla poena protects interests similar to those protected by nullum crimen. (13) First, it protects an individual's interest in being free from abuse of power leading to loss of life, liberty, or property. For example, nulla poena protects an individual's right to liberty by requiring codified limits on the length of imprisonment. Second, it safeguards the principle of fair notice. Fairness and justice in the administration of criminal law demand that individuals know, or at least have the opportunity to know, the specific consequence for violating a particular law. Nulla poena serves this purpose by making the punishment for a crime foreseeable. In most national systems, this is expressed through codified penalty ranges for each crime.

      Another interest protected by nulla poena is legal certainty. Legal certainty may be considered the sum of the first two interests. However, society's interest in legal certainty and modern justifications for respecting nulla poena are broader than the goals of providing notice and preventing abuse of power, and include, for example, justice in the distribution of punishment and consistency in sentencing. (14) The fact that nulla poena sine lege has outgrown its "negative" justice dimension (15) and developed a "positive" justice attribute (16) is evidenced by movements in various countries to reform sentencing laws, which began in the 1970s and built momentum over the last two decades. (17) Undertaken in both civil law and common law countries, these reforms in sentencing policy transcend the traditional dichotomy between adversarial and inquisitorial legal systems. (18) One common element emerging from the movements is that, in undertaking these reforms, the concern of policymakers is not that the state has abusively employed its power against individuals, but rather the concern has been to achieve justice and equal treatment in sentencing. (19) This reflects a broader approach to nulla poena sine lege.

      Accordingly, a modern approach to the principle of legality appreciates nulla poena's utility for not only limiting judicial authority, but also safeguarding it by preventing factors such as popular prejudice, political pressure, or immediate public opinion from influencing the sentence. It partly restrains these potential...