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Beyond Imperfect Justice
Legality and Fair Labelling in International Criminal Law
Series: - International Humanitarian Law Series, Volume: 63
Author:
This book explores how the principles of legality and fair labelling have developed in international criminal law, from Nuremberg to the International Criminal Court and beyond. It features a comprehensive survey of domestic and international case law, treaties, and other materials, carefully unpacking the different rationales and elements of each principle and the various rules to which they apply. The book invites you to revisit landmark cases, such as those involving atrocities in the Former Yugoslavia, Rwanda, Sierra Leone, Darfur, and Palestine, through a distinctive lens: the finding that all rules substantively affecting the human rights of the accused – from crimes and penalties to labels – must be sufficiently accessible and foreseeable to the ordinary person.
Dr Talita Dias is the Shaw Foundation Junior Research Fellow in Law at Jesus College, University of Oxford, where she teaches criminal law. She holds a doctorate and a master’s degree in law from the University of Oxford.
Abbreviations
Table of Cases
Table of Statutes
Table of Other Primary Legal Sources
Introduction
1 A Legacy of Imperfect Justice
2 How Can the Principle of Legality Advance International Criminal Justice?
3 What Does Fair Labelling Have to Do With Any of It?
4 What About the icc?
5 This Book’s Outline
part 1
Retroactivity, Legality and Fair Labelling in International Law
1 Legality and Fair Labelling at Stake Retroactive Recharacterisation of Crimes and Related Phenomena
1 Introduction
2 The Origins of Retroactive Recharacterisation of Crimes
3 Retroactive Recharacterisation of Crimes in Practice
4 A Taxonomy of Retroactive Recharacterisation of Crimes
a Recharacterisation of Elements Essential for Criminal Liability
b Recharacterisation of Penalties
c Recharacterisation of Other Decisive Rules of Criminal Law
d Recharacterisation of Labels
5 The Recharacterised Rules: Domestic and International Law
6 Related Phenomena
a Ehhxpansive Interpretation
b Legal Recharacterisation of Facts
7 Conclusion
2 The Principle of Legality in International Law
1 Introduction
2 Identifying and Interpreting the Principle of Legality in General International Law: Relevant Texts
a The Elements of the Principle of Legality in General International Law
i Nullum crimen, nulla poena sine lege
ii In dubio pro reo
iii Specificity
iv Accessibility and Foreseeability?
v Lex mitior, stricta et scripta?
vi Exceptions?
b The Requirement of ‘Some Source of Law’ and the Interchangeable Application of Domestic and International Criminal Law
c The Scope of the Principle of Legality
3 Other Instances of Formative State Practice, Opinio Juris and Article 31(3)(b)-(c) vclt
a Universal Jurisdiction
b Vicarious Jurisdiction and Double Criminality
c Fair Labelling
4 The Object and Purpose of the Principle of Legality
5 Conclusion
3 The Principle of Fair Labelling in International Law
1 Introduction
2 Brief History
3 What Is in a Name? The General Definition and Justifications of Fair Labelling
4 Justifications for Fair Labelling in International Criminal Law
5 Legal Status and Sources of Fair Labelling in International Law
a Fair Labelling as a General Principle of Criminal Law
b Fair Labelling as a General Principle of International Criminal Law
c Fair Labelling as a Rule of Customary International Law
6 Identifying and Interpreting the Principle of Fair Labelling in International Criminal Law
a Deduction
i Mens rea and Correspondence
ii Personal Culpability
iii Ne bis in idem and Cumulative Convictions
iv Proportionality of Punishment
v The Principle of Legality
b Induction from State Practice and Opinio Juris
i Universal Jurisdiction
ii Domestic Implementation of International Crimes under Other Jurisdictional Bases
iii Vicarious Jurisdiction
7 Interpretative Outcome and Practical Implications
a Fair Labelling in the Different Operational Stages of International Criminal Law
b Fair Labelling and the Relabelling of Crimes or Facts
i Retroactive Recharacterisation of Crimes
ii Legal Recharacterisation of Facts
8 Conclusion
part 2
Retroactive Recharacterisation of Crimes in the Rome Statute
4 The Retroactive Application of the Rome Statute Explained
1 Introduction
2 Article 11 and Retrospective Jurisdiction
3 The Four Retrospective Scenarios
a Ad hoc Declarations
b unsc Referrals
c Retroactive Withdrawal of Opt-out Declarations for War crimes
d The Retroactive Application of the Crime of Aggression
4 Article 21(1): Applicable Law and Retroactivity
5 The Retroactive Application of the Rome Statute and the Principles of Legality and Fair Labelling: A Problem for the icc?
6 Conclusion
5 The Existing Views on the Retroactive Application of the Rome Statute A Critical Appraisal
1 Introduction
2 Identifying the Existing Views
a Retroactivity Issues Overlooked or Rejected
i ‘The Court is Bound by the Statute’
ii The ‘Universal Conception’ of the Rome Statute
iii The Rome Statute was Accessible and Foreseeable Worldwide
b Existing Solutions to the Retroactive Application of the Rome Statute
i Compatibility Check Solutions
ii Interpretative Solutions
iii Displacement Solution
3 Evaluating Existing Solutions
i The Nature of the Rome Statute
ii Retroactive Recharacterisation of Crimes
iii Nulla poena sine lege
iv Domestic Law
4 Conclusion
part 3
Addressing the Retroactive Application of the Rome Statute: Alternative Approaches to Retroactive Recharacterisation of Crimes
6 The Nature of the Rome Statute
1 Introduction
2 Situations Involving a State Party: The Rome Statute as ‘An International Code of Crimes
3 Ad hoc Declarations: Ad hoc Accessions to Rome Statute?
4 unsc Referrals Involving Non-State Parties: The icc as an ‘Ad hoc Permanent Tribunal’?
5 Norm Conflicts in Situations Involving States Parties, Ad hoc Declarations and unsc Referrals: Apparent or Genuine?
6 Conclusion
7 Article 21(3) of the Rome Statute and the Application of Criminal Law in Accordance with ‘Internationally Recognized Human Rights’
1 Introduction
2 To What Extent Are the Principles of Legality and Fair Labelling ‘Internationally Recognized Human Rights’?
3 The Legal Effect of Article 21(3) of the Rome Statute: ‘Supra-Legality’ of Human Rights and Application of External Sources of Law?
4 How Should the icc Apply External Sources of Law to Ensure Consistency with the Principles of Legality and Fair Labelling?
a Double Criminality
b The Application of Pre-Existing International Law ‘As Such’
i The Overlap between Subject-matter Jurisdiction and Substantive Criminal Law
ii What Does Application ‘As Such’ Mean in Practical Terms?
5 Conclusion
Conclusion
Bibliography
Index
Table of Cases
Table of Statutes
Table of Other Primary Legal Sources
Introduction
1 A Legacy of Imperfect Justice
2 How Can the Principle of Legality Advance International Criminal Justice?
3 What Does Fair Labelling Have to Do With Any of It?
4 What About the icc?
5 This Book’s Outline
part 1
Retroactivity, Legality and Fair Labelling in International Law
1 Legality and Fair Labelling at Stake Retroactive Recharacterisation of Crimes and Related Phenomena
1 Introduction
2 The Origins of Retroactive Recharacterisation of Crimes
3 Retroactive Recharacterisation of Crimes in Practice
4 A Taxonomy of Retroactive Recharacterisation of Crimes
a Recharacterisation of Elements Essential for Criminal Liability
b Recharacterisation of Penalties
c Recharacterisation of Other Decisive Rules of Criminal Law
d Recharacterisation of Labels
5 The Recharacterised Rules: Domestic and International Law
6 Related Phenomena
a Ehhxpansive Interpretation
b Legal Recharacterisation of Facts
7 Conclusion
2 The Principle of Legality in International Law
1 Introduction
2 Identifying and Interpreting the Principle of Legality in General International Law: Relevant Texts
a The Elements of the Principle of Legality in General International Law
i Nullum crimen, nulla poena sine lege
ii In dubio pro reo
iii Specificity
iv Accessibility and Foreseeability?
v Lex mitior, stricta et scripta?
vi Exceptions?
b The Requirement of ‘Some Source of Law’ and the Interchangeable Application of Domestic and International Criminal Law
c The Scope of the Principle of Legality
3 Other Instances of Formative State Practice, Opinio Juris and Article 31(3)(b)-(c) vclt
a Universal Jurisdiction
b Vicarious Jurisdiction and Double Criminality
c Fair Labelling
4 The Object and Purpose of the Principle of Legality
5 Conclusion
3 The Principle of Fair Labelling in International Law
1 Introduction
2 Brief History
3 What Is in a Name? The General Definition and Justifications of Fair Labelling
4 Justifications for Fair Labelling in International Criminal Law
5 Legal Status and Sources of Fair Labelling in International Law
a Fair Labelling as a General Principle of Criminal Law
b Fair Labelling as a General Principle of International Criminal Law
c Fair Labelling as a Rule of Customary International Law
6 Identifying and Interpreting the Principle of Fair Labelling in International Criminal Law
a Deduction
i Mens rea and Correspondence
ii Personal Culpability
iii Ne bis in idem and Cumulative Convictions
iv Proportionality of Punishment
v The Principle of Legality
b Induction from State Practice and Opinio Juris
i Universal Jurisdiction
ii Domestic Implementation of International Crimes under Other Jurisdictional Bases
iii Vicarious Jurisdiction
7 Interpretative Outcome and Practical Implications
a Fair Labelling in the Different Operational Stages of International Criminal Law
b Fair Labelling and the Relabelling of Crimes or Facts
i Retroactive Recharacterisation of Crimes
ii Legal Recharacterisation of Facts
8 Conclusion
part 2
Retroactive Recharacterisation of Crimes in the Rome Statute
4 The Retroactive Application of the Rome Statute Explained
1 Introduction
2 Article 11 and Retrospective Jurisdiction
3 The Four Retrospective Scenarios
a Ad hoc Declarations
b unsc Referrals
c Retroactive Withdrawal of Opt-out Declarations for War crimes
d The Retroactive Application of the Crime of Aggression
4 Article 21(1): Applicable Law and Retroactivity
5 The Retroactive Application of the Rome Statute and the Principles of Legality and Fair Labelling: A Problem for the icc?
6 Conclusion
5 The Existing Views on the Retroactive Application of the Rome Statute A Critical Appraisal
1 Introduction
2 Identifying the Existing Views
a Retroactivity Issues Overlooked or Rejected
i ‘The Court is Bound by the Statute’
ii The ‘Universal Conception’ of the Rome Statute
iii The Rome Statute was Accessible and Foreseeable Worldwide
b Existing Solutions to the Retroactive Application of the Rome Statute
i Compatibility Check Solutions
ii Interpretative Solutions
iii Displacement Solution
3 Evaluating Existing Solutions
i The Nature of the Rome Statute
ii Retroactive Recharacterisation of Crimes
iii Nulla poena sine lege
iv Domestic Law
4 Conclusion
part 3
Addressing the Retroactive Application of the Rome Statute: Alternative Approaches to Retroactive Recharacterisation of Crimes
6 The Nature of the Rome Statute
1 Introduction
2 Situations Involving a State Party: The Rome Statute as ‘An International Code of Crimes
3 Ad hoc Declarations: Ad hoc Accessions to Rome Statute?
4 unsc Referrals Involving Non-State Parties: The icc as an ‘Ad hoc Permanent Tribunal’?
5 Norm Conflicts in Situations Involving States Parties, Ad hoc Declarations and unsc Referrals: Apparent or Genuine?
6 Conclusion
7 Article 21(3) of the Rome Statute and the Application of Criminal Law in Accordance with ‘Internationally Recognized Human Rights’
1 Introduction
2 To What Extent Are the Principles of Legality and Fair Labelling ‘Internationally Recognized Human Rights’?
3 The Legal Effect of Article 21(3) of the Rome Statute: ‘Supra-Legality’ of Human Rights and Application of External Sources of Law?
4 How Should the icc Apply External Sources of Law to Ensure Consistency with the Principles of Legality and Fair Labelling?
a Double Criminality
b The Application of Pre-Existing International Law ‘As Such’
i The Overlap between Subject-matter Jurisdiction and Substantive Criminal Law
ii What Does Application ‘As Such’ Mean in Practical Terms?
5 Conclusion
Conclusion
Bibliography
Index
This book is addressed to academics, practitioners, as well as post-graduate and undergraduate students in the areas of public international law, human rights, and criminal law.