This page intentionally left blank the principle of legality in international and comparative criminal law This book fills a major gap in the scholarly literature concerning international criminal law, comparative criminal law, and human rights law The principle of legality (non-retroactivity of crimes and punishments and related doctrines) is fundamental to criminal law and human rights law Yet this is the first booklength study of the status of legality in international law – in international criminal law, international human rights law, and international humanitarian law This is also the first book to survey legality and non-retroactivity in all national constitutions, developing the patterns of implementation of legality in the various legal systems (e.g., common law, civil law, Islamic law, Asian law) around the world This is a necessary book for any scholar, practitioner, and library in the area of international, criminal, comparative, human rights, or international humanitarian law Kenneth S Gallant is a professor at the University of Arkansas at Little Rock William H Bowen School of Law His previous positions include professor at the University of Idaho, prosecutor with the district attorney of Philadelphia, and clerk for the Hon Louis H Pollak of the U.S District Court, Eastern District of Pennsylvania and for the Hon Samuel J Roberts of the Supreme Court of Pennsylvania He has been a Fulbright Scholar at the National Law School of India University and Tribhuvan University in Nepal He was elected as the first representative of counsel on the Advisory Committee on Legal Texts of the International Criminal Court, was a founding member of the International Criminal Bar, and was on its first governing council cambridge studies in international and comparative law Established in 1946, this series produces high-quality scholarship in the fields of public and private international law and comparative law Although these are distinct legal sub-disciplines, developments since 1946 confirm their interrelation Comparative law is increasingly used as a tool in the making of law at national, regional, and international levels Private international law is now often affected by international conventions, and the issues faced by classical conflict rules are frequently dealt with by substantive harmonization of law under international auspices Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees, and international criminal law) international and national systems interact National constitutional arrangements relating to “foreign affairs,” and to the implementation of international norms, are a focus of attention The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on the new approaches to international or comparative law or conflicts of law Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages General Editors James Crawford SC FBA Whewell Professor of International Law, Faculty of Law, and Director, Lauterpacht Research Centre for International Law, University of Cambridge John S Bell FBA Professor of Law, Faculty of Law, University of Cambridge Editorial Board Professor Hilary Charlesworth Australian National University Professor Lori Damrosch Columbia University Law School Professor John Dugard Universiteit Leiden Professor Mary-Ann Glendon Harvard Law School Professor Christopher Greenwood London School of Economics Professor David Johnston University of Edinburgh Professor Hein Kăotz Max-Planck-lnstitut, Hamburg Professor Donald McRae University of Ottawa Professor Onuma Yasuaki University of Tokyo Professor Reinhard Zimmermann Universităat Regensburg Advisory Committee Professor D W Bowett QC Judge Rosalyn Higgins QC Professor J A Jolowicz QC Professor Sir Elihu Lauterpacht CBE QC Judge Stephen Schwebel A list of books in the series can be found at the end of this volume The Principle of Legality in International and Comparative Criminal Law KENNETH S GALLANT University of Arkansas at Little Rock CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521886482 © Kenneth S Gallant 2009 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2009 ISBN-13 978-0-511-48059-1 eBook (NetLibrary) ISBN-13 978-0-521-88648-2 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate To the rule of law as a just and certain guide to human conduct Brief Contents Explanatory Note on Spelling page xix Acknowledgments xxi Introduction 1 Legality in Criminal Law, Its Purposes, and Its Competitors 11 A Partial History to World War II 46 Nuremberg, Tokyo, and Other Postwar Cases 67 Modern Development of International Human Rights Law: Practice Involving Multilateral Treaties and the Universal Declaration of Human Rights 156 Modern Comparative Law Development: National Provisions Concerning Legality 231 Legality in the Modern International and Internationalized Criminal Courts and in the UN Trust Territories 303 Legality in Customary International Law Today 352 Conclusion: The Endurance of Legality in National and International Criminal Law 404 Appendix A: Chart of Non-retroactivity Provisions in Criminal Law by Nations 411 Appendix B: Legality and Non-retroactivity Provisions as of 1946–47 425 Appendix C: Constitutional and Other National Provisions Implementing the Principle of Legality Today 438 Bibliography 541 Table of Authorities 553 Index 579 Afterword and Update 599 viii 594 Index Purposes of criminalization (cont.) reconciliation, 30–31 restorative justice, 30–31 retribution, 28–29 Purposes of legality human rights accessibility of law, 20–21 arbitrariness, protection against, 21, 22–23 innocence, protection of, 22 liberty, protection of, 21–22 notice requirement, 20, 22 overview, 20 legitimacy, 23–24 overview, 19–20 separation of powers bills of attainder, prohibition against, 25 common law, in, 25 democracy, promotion of, 25 jurisdiction, limitation on, 26 legislative action requirement, 24–25 liberty, protection of, 25–26 overview, 24 states, informing of duties, 26 Qu’ran, 51–52, 53–54 Raeder, Erich, 110 Ramadan, Hisham M., 52–53 Rawls, John, 16 Readoption of legality, 265–271 Re-characterization of crimes, retroactive abuse, danger of, 369 analogy and, 322 applicable international law, 367–368 atrocities, 323–324 direct application of international criminal law in national courts and, 369–370 end of, 406 ICC, in, 340, 369, 406 ICTR, in, 322, 324, 390 ICTY, in, 320–321, 324, 390 infrequency of, 367 law binding actors, 368 legality and, 322 moral wrongs, of, 134–135 national criminal law, of, 130–134, 322–323, 367–369, 389–390 new crimes, limitation to, 368–369 non-criminal violations, of, 134–135 overview, 367 penalties, 322–323 preclusion of, 369 representation jurisdiction and, 371–372 SCSL, in, 320–321, 324 sentencing considerations, 368 universal jurisdiction over international criminal law and, 370–371 war crimes, of, 123, 130–134, 367 weakness of requirements, 321–322 Reconciliation, legality and, 30–31 Reismann, W Michael, 408 Representation jurisdiction application of, 284–286 civil law nations, in, 283 double criminality requirement, 372 infrequency of, 286–287 motivations for, 283–284 nulla poena and, 286, 391 nullum crimen and, 286 overview, 41, 42, 282–283 retroactive re-characterization of crimes and, 371–372 Restorative justice, legality and, 30–31 Retribution accountability and, 30 legality and, 28–29 Reydams, Luc, 283 Right not to be prosecuted, 376378 Răoling, Bernard Victor Aloysius, 3, 143147, 151, 152–153 Rome Statute See International Criminal Court Roosevelt, Eleanor, 161, 162–163, 167, 170–171, 173, 180, 186–187, 191, 251–252, 275 Roosevelt, Franklin D., 73–75, 80–81 Rosenberg, Alfred, 105 Rudenko, Roman Andreevich, 96–97 Rule of law arbitrariness, protection against, 17 collective punishment, rejection of, 17 connection with legality, 15 defenses and, 18 fairness, 17 generality of enactments, 17 individual freedom, protection of, 18–19 individuality of guilt, 17 joint criminal responsibility and, 17–18 minimum requirements for, 15 overview, 14–15 personality of punishment, 17 policy-based law and, 19 process-based law and, 19 Index Rules of law defined, 6–7 first order rules, principles of law distinguished, 6, second order rules, Russia Czarist Russia, legality in, 64–65 readoption of legality in, 267–268, 401 Soviet Union (See Soviet Union) Rwanda See International Criminal Tribunal for Rwanda Sauckel, Fritz, 102, 109 Saudi Arabia, Basic System of the Consultative Council, 247 Sauter, Fritz, 110 Schabas, William A., 314, 316, 317, 342–343 SCSL See Special Court for Sierra Leone Security Council See United Nations Seidl, Alfred, 105–106 Servatius, Robert, 102, 109 S`evres, Treaty of, 72 Seychelles, non-retroactivity in, 262–263 Shawcross, Hartley, 94, 97–99, 122–123, 134–135 Siemers, Walter, 110 Sierra Leone See Special Court for Sierra Leone Singapore, retroactive penalties in, 280–281 Slovenia international criminal law, incorporation of, 263 non-retroactivity in, 258 Soviet Union Fundamental Principles of Criminal Legislation, 266–267 German prisoners of war, prosecution of, 69–70 legality in acceptance of, 64 Marxism–Leninism and, 64–65, 66 political instrumentality, law as, 66, 80–81 rejection of, 45, 64–66, 240, 266–267 London Conference, at aggressive war, position on, 79–80 punishment, position on, 79 non-retroactivity in, 199–200 Spain, non-retroactivity in, 200 Special Court for Sierra Leone (SCSL) arbitrary detention and, 377–378 customary international law in, 306–307, 402 595 individual claims based on legality overview, 311–312 recruitment of child soldiers, 313 subject matter jurisdiction, issue of, 312–313 international humanitarian law in, 308 international organization, as, 344–345 legality in, 304 new jurisdiction, retroactive creation of, 319–320 nullum crimen in, 355–356 overview, 303–304 retroactive creation of court, as, 317, 394 retroactive re-characterization of crimes, 320–321, 324 sentencing, 308 Special Tribunal for Lebanon, 304, 319–320, 324–325 Special tribunals, retroactive creation of, 291–293 Speer, Albert, 108–109 Sri Lanka, general principles of law in, 261–262 SS (Schutzstaffeln), Stahmer, Otto, 100–102, 103, 107–108 Stalin, Josef, 73, 80–81, 266–267 Statutes of limitations, 398 Statutory interpretation common law compared, 35–36 foreseeability and, 360–362 impossibility of pure non-retroactivity resulting from (See Impossibility of pure non-retroactivity) limits on legality from, 217–218 Statutory law See Comparative law analysis of legality Streicher, Julius, 119–121 Subsidiary universal jurisdiction See Representation jurisdiction Subversive acts, 279–281 Suharto, 270–271 Summary executions, 73–76 Taiwan, legality in, 55, 270 Taleban, 278 Taylor, Telford, 122, 126–127 Terrorism, 295–296 Thailand, readoption of legality in, 271 Third Reich See Germany Thoma, Alfred, 105 Togo, accomplices and conspiracy in, 295 596 Index Tokyo Tribunal aggressive war and, 145–147, 152 customary international law, legitimation through, 152–153 death penalty at, 144, 147 ex post facto laws and, 145, 147–148 general principles of law, legitimation through, 154 IMTFE Charter, 139–141, 144–145, 147–150, 151, 152–153 Instrument of Surrender, 139–141 judges at, 141 legality and, 142–143 London Conference compared, 149 majority judgment, 142–143 new jurisdiction, retroactive creation of, 319–320 Nuremberg Trial compared, 139, 142–143 overview, 139, 155 precedential value of, 153 prescriptive force of, 152 retroactive creation of court, as, 394 separate opinions crimes, retroactive creation of, 150–152 natural law not retroactive, 147–150 overview, 141, 143 political disposition, retroactivity permissible as alternative to, 144–147 retroactivity is permissible, 143–144 retroactivity may be permissible, 144 tribunal, retroactive creation of, 150–152 summary executions, proposals for, 75–76 treaties, legitimation through, 152–154 violation of legality in, 156 war crimes and, 151–152 Torture Convention, 264, 370 Traditional law, 259–260, 279 Trainin, A.N., 79–80 Transformation of legality since World War II, 301–302 Treaties See also specific treaty comparative law analysis, 233–235 customary international law, transformed into, 229 detention, challenging, 318 ICC, in, 340 ICTY and, 306 individual claims based on legality ACHR, under, 226 African Charter of Human and Peoples’ Rights, under, 227–228 ECHR, under, 226 ICCPR, under, 227, 228 legality in, 156, 157 limits on legality analogy, from, 223 common law, from, 217–218, 220 statutory interpretation, from, 217–218 non-derogability of legality, 206–207 non-participation in internal rules of non-retroactivity in non-participating nations, 225 island nations, 224 overview, 224 small nations, 224–225 nulla poena in, 378, 379 Nuremberg Trial, legitimation of, 152–154 regional treaties, 202–203 retroactive creation of crimes under, 401 state claims based on legality, 225–226, 228 ta’azir crimes, reservations in treaties for, 214–217 Tokyo Tribunal, legitimation of, 152–154 widespread acceptance of, 228–229, 230 Trust Territories, 304, 330–331 Turkey, atrocities in, 72 UDHR See Universal Declaration of Human Rights United Kingdom British Military Courts, 134 German nationals, prosecution of, 69–70 Human Rights Act, 247 legality in, 49–50 London Conference, position on ex post facto laws, 86–87 marital rape in, 218–220, 361–362, 375–376 retroactive expansion of jurisdiction, 277–278 United Nations Charter, 300–301, 316–317, 355 Commission on Human Rights ICCPR, role in, 178, 179–180, 184, 186–188, 189–190, 192–193, 196–198 opinio juris and, 229 UDHR, role in, 161–163, 167–170, 171–172 customary international law, role in, 402 Division of Human Rights, 163–164 Documented Outline, 232, 235, 237, 239 Economic and Social Council (ECOSOC) ICCPR, role in, 179–180, 187–188, 196–198 UDHR, role in, 161–163, 169, 172 Index Human Rights Council, 225–226 Security Council authority of, 316–317 challenges to, 317 ICC, referrals to, 333, 334, 336, 337–338, 342–343 international organization, as, 347 retroactive non-punishment, 393 Trust Territories, 304, 330–331 War Crimes Commission, 72 War Crimes Commission (UNWCC), 70–71 Yearbook of Human Rights, 232, 237, 240, 289, 330–331 United States Constitution, 47–48 ex post facto laws in, 256–257 German saboteurs, prosecution of, 69–70 international criminal law, incorporation of, 263–264 London Conference, position on aggressive war, 78–79 Military Court, 131–132, 138 national court jurisdiction, retroactive expansion of, 135–136 retroactive expansion of jurisdiction, 278 retroactive non-punishment, 393 Universal Declaration of Human Rights (UDHR) adoption of, 174–175 ambiguous nature of, 229–230 Commission on Human Rights, role of, 161–163, 167–170, 171–172 comparative law analysis, 252–253, 260, 262 Convention on the Rights of the Child, incorporation by, 325–326 criminal law, limitation to, 173–174 definition of crimes in, 160–161, 172 Division of Human Rights, role of, 163–164 Drafting Committee, 162–164, 166–167, 169–171 ECOSOC, role of, 161–163, 169, 172 ICC compared, 331–332, 334–335 impact of, 159 legal force of, 158–159, 160 lex certa in, 274–275 non-retroactivity in, 164–169, 171, 172 nulla poena in, 158, 160, 166, 169–170, 171–173, 379–380 nullum crimen in, 158, 160, 169–171 Nuremberg Trial, impact of, 154–155, 167–170, 174 597 opinio juris and, 229 outlines, 163–165 provisions of, 159–160 sources of law, 173, 174 Tokyo Tribunal, impact of, 154–155, 167–170, 174 unrestricted documents, 161–162 Working Groups, 167 Universal jurisdiction over international criminal law, 370–371, 390 UNMIK See Kosovo Special Tribunal UNTAET See East Timor Special Tribunal Uruguay, political parties in, 260 USSR See Soviet Union Vatican, non-acceptance of legality in, 241–242, 250–251, 281 Venezuela, retroactive penalties in, 279 Versailles, Treaty of aggressive war and, 128, 146 Austrian Anschluss and, 122 Danzig (Free City) under, 62–63 Kaiser William II, lack of prosecution, 58–59, 115, 128, 146 legality under international criminal law, resistance to, 57–58 national criminal law, incorporation of, 56–57 new jurisdiction, necessity of, 58 overview, 56 tribunal, lack of, 58 prosecutions under, 58 war crimes and, 118 war, laws and customs of, 69 Vicarious jurisdiction See Representation jurisdiction Void for vagueness doctrine, 362363 von Lăudinghausen, Otto Freiherr, 103, 106–107, 109–110 von Neurath, Constantin, 103, 106–107, 109–110 von Ribbentrop, Joachim, 108 von Schirach, Baldur, 110, 119–120, 121–122 War crimes crimes against humanity and distinguished, 121–122 retroactive re-characterization as, 123, 130–134, 367 customary international law, under, 118–119 Geneva Conventions, under, 77–78, 92, 343 598 War crimes (cont.) ICC, in, 339, 343 Nuremberg Charter, under, 118–119 Nuremberg Trial defense arguments, 104–110 divisions within tribunal regarding, 129 indictments, 92 judgments of, 117–119 penalties, 382–383, 385–388 retroactive expansion of jurisdiction over, 277 sources of, 41–42 Tokyo Tribunal and, 151–152 Versailles Treaty and, 118 Warnotte, Daniel, 289 Index Webb, William, 142, 144, 147, 151 William II (Kaiser), 58–59, 115, 128, 146 Wilson, Geoffrey, 171–172 Wilson, Woodrow, 161–162 Wright, Lord, 1–2 Yugoslavia See International Criminal Tribunal for the Former Yugoslavia Zambia military forces, discipline of, 279 retroactive penalties in, Zappal`a, Salvatore, 383, 387, 388 Zimbabwe, discipline of military forces in, 279 Afterword and Update No book on current law is ever really finished Any practicing lawyer who uses this book knows that its citations must always be checked for postpublication developments Several developments concerning legality in national constitutional law have occurred since the completion of the main text of this book These have occurred in both generally recognized states (Senegal and Myanmar) and entities seeking recognition as states (Abkhazia, Kosovo, and South Ossetia) They generally conform to trends noted in the main text They are organized next according to the sections of Chapter (Modern Comparative Law Development: National Provisions Concerning Legality) in which the developments would have been noted These developments generally confirm the conclusions reached in Chapter and provide further evidence for the overall conclusions of the book discussed in Chapter (Legality in Customary International Law Today) 5.c.i Sources of the Requirement of Non-Retroactivity of Crimes and Punishments in National Law The trend toward including non-retroactivity in criminal law as a national constitutional protection continues in entities seeking to be recognized as states, but which have not yet gained universal recognition or United Nations membership – specifically Kosovo, South Ossetia, and Abkhazia The Constitution of Kosovo, with non-retroactivity of crimes and punishments and a lex mitior provision, noted as a proposal in the main text, took effect 15 June 2008 The President of Serbia has stated that Serbia “does not accept the proclamation of Kosovo’s constitution as a legal fact.”1 Kosovo Const art 33, at www.kosovoconstitution.info (text as proposal in Appendix C); for entry into force and Serbia’s objection, see AFP, Newly Independent Kosovo’s Constitution Enters into Force (15 June 2008) 599 600 Afterword and Update Both South Ossetia and Abkhazia have constitutions that endorse nonretroactivity of crimes and punishments The South Ossetian Constitution, in an article whose other sections deal only with criminal law, states, “Laws establishing or increasing liability shall not be retroactive.”2 The Abkhazian Constitution appears to have a similar provision, though the available translation is questionable: “A law which establishes or aggravates the responsibility may not be retroactive.”3 These two constitutions are not new, but recent events have emphasized the position of South Ossetia and Abkhazia as entities claiming statehood Both of these entities have claimed independence from Georgia since shortly after the breakup of the Soviet Union As a result of the long-standing conflict between Russia and Georgia over these areas, which erupted into war in August 2008, Russia recognized the independence of South Ossetia and Abkhazia At this writing, it is uncertain whether these two entities will seek permanent independence or seek union with Russia It is also uncertain what Georgia will concerning its claim to sovereignty in these areas 5.c.ii Non-Retroactivity in the Constitutional Texts: Act Focus and Law Focus There have been new constitutional texts involving non-retroactivity of substantive criminal law both in a generally recognized state, Myanmar (Burma), and in other entities, Kosovo, South Ossetia, and Abkhazia They follow three of the patterns discussed in the main text The first pattern focuses on whether the charged act was criminal or a given penalty applied to it at the time the act was committed, similar to the provisions of the International Covenant on Civil and Political Rights (ICCPR) and many national constitutions Kosovo’s constitutional nonretroactivity provisions prohibit punishing a given act if it was not a “penal South Ossetia Const art 38(4) (trans Maryna O Jackson), available in Russian through the Web site of the State Committee on Information and Press of the Republic of South Ossetia, cominf.org Abkhazia Const art 25, as translated at http://en.wikisource.org/w/index.php?title= Constitution_of_Abkhazia&oldid=751353 (as of September 2008) This immediately follows articles concerning rights in criminal cases The translation cannot be considered definitive both because it is unidiomatic and because of the Wikisource policy of allowing almost anyone to change it Nonetheless, I have no reason to believe that it is fundamentally misleading Afterword and Update 601 offense under law” at the time committed.4 They also prohibit punishments that “exceed the penalty provided by law at the time the criminal act was committed.5 The second pattern prohibits the legislature from enacting retroactive criminal laws or retroactive laws generally The constitutions of South Ossetia and Abkhazia, quoted as earlier, prohibit the retroactivity of criminal law,6 rather than focus on the act The third pattern focuses on both the protection of the individual actor and the prohibition of legislative power, and those states that follow it generally have two non-retroactivity provisions in their constitutions The development here comes from an extremely authoritarian state, Myanmar (Burma), which is not a party to the ICCPR This emphasizes the universality of the non-retroactivity of crimes and punishments Myanmar held a constitutional referendum in May 2008 and declared a new constitution to be “ratified and promulgated.”7 I have not yet found a definitive postreferendum text of the new constitution or been able to obtain a translation However, in 2007, Myanmar’s National Convention adopted a document entitled “Fundamental Principles and Detailed General Principles,” and published an English translation.8 The 2008 Draft Constitution approved in the referendum was mostly based on this document “The Fundamental Principles and Detailed General Principles” contains two prohibitions of retroactivity in criminal law One, in the chapter on state fundamental principles, prohibits retroactivity of laws directly.9 Later, the Kosovo Const art 33(1) Id art 33(2) Abkhazia Const art 25; South Ossetia Const art 38(4) Myanmar State Peace and Development Council Announcement No 7/2008 (29 May 2008), published in The New Light of Myanmar, Vol 16, No 42, p (30 May 2008) (daily English newspaper published by Myanmar Ministry of Information) Myanmar Fundamental Principles and Detailed General Principles (National Convention, adopted September 2007, portions published on various dates from 27 August – September 2007) in trans in The New Light of Myanmar, Vol 15, Nos 134– 41 (28 August – September 2007), Burmese text and consolidation of the English text by Khin Kyaw Han available at www.burmalibrary.org/show.php?cat=1140&lo=d&sl=0 (along with Burmese text) Copies of the relevant issues of The New Light of Myanmar also available at www.burmalibrary.org (all Internet references as of September 2008) Myanmar Fundamental Principles and Detailed General Principles, Chap 1, art 30(a) (“In connection with punishments, it is laid down that – (a) there is no right for any penal law to provide for retrospective effect; ”) (bold typeface and line break omitted), trans in The New Light of Myanmar, Vol 15, No 134, pp 4, (28 August 2007) 602 Afterword and Update chapter on fundamental rights and duties of citizens contains a provision that is focused on what is prohibited at the time of the act charged.10 This double prohibition of retroactivity in criminal law follows the pattern of about a dozen states noted in the main text 5.c.iii Crimes According to International Law and General Principles of Law in the Constitutional Non-Retroactivity Provisions and in National Judicial Practice Two newly effective constitutional provisions provide for prosecutions of core international crimes, so long as the acts were criminal under international law at the time committed One is from a generally recognized state, Senegal, and the other from an entity recognized by many but not all states, Kosovo In July 2008, Senegal adopted a constitutional amendment allowing for prosecution of acts “which, when they were committed, were criminal according to the rules of international law relating to genocide, crimes against humanity and war crimes.”11 Kosovo’s new constitution permits prosecutions for “acts that at the time they were committed constituted genocide, war crimes or crimes against humanity according to international law.”12 Neither of these texts refers specifically to crimes under “general principles of law.” Neither, however, prohibits the use of already-existing general principles in the definition of these core international crimes 10 Myanmar Fundamental Principles and Detailed General Principles, Chap 8, art 32 (“No person shall be convicted of crime except for violation of a law in force at the time of the commission of the act charged as an offence Moreover, he shall not be subject to a penalty greater than that is applicable.”), trans in The New Light of Myanmar, Vol 15, No 139, pp 5, 16 (2 September 2007) This translation does not make the non-retroactivity of punishments crystal clear, though it is implied by the provision in Chap 1, art 30(a), as earlier 11 Senegal Const art as amended through August 2008, available at www.gouv.sn/ texts/Constitution_sn.pdf (as of 10 September 2008), adds the following French text as the third unnumbered sentence of the following article: “Toutefois, les dispositions de l’alin´ea pr´ec´edent ne s’opposent pas a` la poursuite, au jugement et a` la condamnation de tout individu en raison d’actes ou omissions qui, au moment ou` ils ont e´ t´e commis, e´ taient tenus pour criminels d’apr`es les r`egles du droit international relatives aux faits de g´enocide, crimes contre l’humanit´e, crimes de guerre.” The first two sentences appear in translation in Appendix C of the main text The translation here is from Human Rights Watch, Senegal: Government Amends Constitution to Pave Way for Hiss`ene Habr´e Trial (23 July 2008), at hrw.org/english/docs/2008/07/23/senega19438.htm 12 Kosovo Const art 33(1) Afterword and Update 603 5.c.v.E Retroactive Expansion of National Jurisdiction: Domestic Incorporation of Crimes under the Law of Another State or Crimes under International Law – A Current Version of Retroactive Re-Characterization? In July 2008, Senegal joined the ranks of nations whose constitutions allow retrospective assertion of jurisdiction over acts “which, when they were committed, were criminal according to the rules of international law relating to genocide, crimes against humanity and war crimes.”13 This was done in order to allow for the trial of former Chadian dictator Hiss`ene Habr´e, at the request of the African Union.14 This appears to be consistent with the view that jurisdiction may be asserted retrospectively only over acts that were crimes under law applicable to the accused when they were committed 10 September 2008 13 Senegal Const art (third unnumbered sentence), as amended 14 Human Rights Watch, supra note 11 cambridge studies in international and comparative law Books in the series International Courts and Environmental Protection Tim Stephens Legal Principles in WTO Dispute Andrew D Mitchell War Crimes in Internal Armed Conflicts Eve La Haye Humanitarian Occupation Gregory H Fox The 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of International Law Donald R Rothwell Fragmentation and the International Relations of Micro-States Self-Determination and Statehood Jorri Duursma Principles of the Institutional Law of International Organizations C F Amerasinghe ... purposes of legality in criminal law The purposes of the principle of legality in criminal law can be divided into four sets The first set includes the protection of individual human rights The second... Chapter examines the principle of legality in the international and internationalized courts and tribunals from the International Criminal Tribunal for the Former Yugoslavia (ICTY) through the International. .. in the technical phrase “general principles of law, ” one of the canonical sources of international law listed in the Statute of the International Court of Justice and the earlier Statute of the