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"Legality in international criminal law; a human rights standard?"

Verbeek, Joris (2006)
Department of Law
Abstract
The principle of legality is a fundamental principle of criminal law. It grants the defendant in a criminal trial protection from the arbitrary use of state power by binding the state to certain rules and guarantees. The exercise of state power in criminal prosecutions is bound by the separation of powers, the rule of law and the idea that criminal law should provide fair warning to the individual. These principles require a level of quality in the enactment of law by the legislator as well as limit the discretion of the judiciary in the application and interpretation of criminal laws. The basic idea is that criminal laws provide for a level legal certainty so that the individual can be sufficiently aware of them and adapt his conduct... (More)
The principle of legality is a fundamental principle of criminal law. It grants the defendant in a criminal trial protection from the arbitrary use of state power by binding the state to certain rules and guarantees. The exercise of state power in criminal prosecutions is bound by the separation of powers, the rule of law and the idea that criminal law should provide fair warning to the individual. These principles require a level of quality in the enactment of law by the legislator as well as limit the discretion of the judiciary in the application and interpretation of criminal laws. The basic idea is that criminal laws provide for a level legal certainty so that the individual can be sufficiently aware of them and adapt his conduct accordingly. What specific requirements are included in the principle of legality depends on the nature of the underlying legal system. Differences in the application of the principle can be identified, for example, in common law and civil law countries. Different doctrines regarding the principle can also be identified. Where the doctrine of strict legality focuses on the close adherence to positive law, substantive justice takes a less formalistic approach, incorporating an element of justice into the principle. However, the underlying philosophical idea and purpose of the principle is very similar, even in basically different legal systems. Accordingly, the level of protection the principle provides in national jurisdictions is essentially the same. The existence of such a common standard is further established by human rights standards concerning the principle, in particular the case law of the European Court of Human Rights. The standard set by the ECHR, based on the accessibility and forseeability of rules of criminal law effectively reconciles different perceptions of the principle in one standard. The status the principle of legality has received in human rights law (a non-derogable right) confirms its status in national law as a fundamental principle of any criminal law system. The principle of legality is also part of the system of international criminal law, but in this context it has often been disregarded. Both the purpose of international tribunals (achieving justice) and the character of international criminal law (an incomplete system incorporating many rules of customary law) have made it difficult to effectively implement an acceptable standard of legality. In particular the role of customary law, as a largely undefined and often unknown source of law, has proven to create complications when trying to achieve the principle purposes of the principle of legality, those of legal certainty and fair warning. As a consequence, findings of international tribunals have often failed to live up to the human rights standard of the principle of legality. It is essential though, that such tribunals do live up to this standard. Though not formally bound by human rights treaties and the guarantees they provide, there is no logical reasons why the application of due process rights in general and the principle of legality in particular should fail to live up to this standard. If anything, the great impact on a person of being held individually criminally responsible before an international tribunal should be accompanied by the recognition of certain fundamental rights. After initial difficulties in this regard, international criminal tribunals have proven to be susceptible to the human rights standard for the principle of legality. In the case law of the ICTY, the incorporation of the standard set by the ECHR has proven invaluable. It has provided the possibility of bringing together the inherent limitations of international criminal law and the required sensitivity to the principle of legality, without relinquishing what remains the primary purpose of international criminal tribunals: the achievement of justice. (Less)
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author
Verbeek, Joris
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
International Human Rights Law
language
English
id
1555025
date added to LUP
2010-03-08 15:22:52
date last changed
2010-03-08 15:22:52
@misc{1555025,
  abstract     = {The principle of legality is a fundamental principle of criminal law. It grants the defendant in a criminal trial protection from the arbitrary use of state power by binding the state to certain rules and guarantees. The exercise of state power in criminal prosecutions is bound by the separation of powers, the rule of law and the idea that criminal law should provide fair warning to the individual. These principles require a level of quality in the enactment of law by the legislator as well as limit the discretion of the judiciary in the application and interpretation of criminal laws. The basic idea is that criminal laws provide for a level legal certainty so that the individual can be sufficiently aware of them and adapt his conduct accordingly. What specific requirements are included in the principle of legality depends on the nature of the underlying legal system. Differences in the application of the principle can be identified, for example, in common law and civil law countries. Different doctrines regarding the principle can also be identified. Where the doctrine of strict legality focuses on the close adherence to positive law, substantive justice takes a less formalistic approach, incorporating an element of justice into the principle. However, the underlying philosophical idea and purpose of the principle is very similar, even in basically different legal systems. Accordingly, the level of protection the principle provides in national jurisdictions is essentially the same. The existence of such a common standard is further established by human rights standards concerning the principle, in particular the case law of the European Court of Human Rights. The standard set by the ECHR, based on the accessibility and forseeability of rules of criminal law effectively reconciles different perceptions of the principle in one standard. The status the principle of legality has received in human rights law (a non-derogable right) confirms its status in national law as a fundamental principle of any criminal law system. The principle of legality is also part of the system of international criminal law, but in this context it has often been disregarded. Both the purpose of international tribunals (achieving justice) and the character of international criminal law (an incomplete system incorporating many rules of customary law) have made it difficult to effectively implement an acceptable standard of legality. In particular the role of customary law, as a largely undefined and often unknown source of law, has proven to create complications when trying to achieve the principle purposes of the principle of legality, those of legal certainty and fair warning. As a consequence, findings of international tribunals have often failed to live up to the human rights standard of the principle of legality. It is essential though, that such tribunals do live up to this standard. Though not formally bound by human rights treaties and the guarantees they provide, there is no logical reasons why the application of due process rights in general and the principle of legality in particular should fail to live up to this standard. If anything, the great impact on a person of being held individually criminally responsible before an international tribunal should be accompanied by the recognition of certain fundamental rights. After initial difficulties in this regard, international criminal tribunals have proven to be susceptible to the human rights standard for the principle of legality. In the case law of the ICTY, the incorporation of the standard set by the ECHR has proven invaluable. It has provided the possibility of bringing together the inherent limitations of international criminal law and the required sensitivity to the principle of legality, without relinquishing what remains the primary purpose of international criminal tribunals: the achievement of justice.},
  author       = {Verbeek, Joris},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {"Legality in international criminal law; a human rights standard?"},
  year         = {2006},
}