Hello, I'm Roger Clark
and I have taught for several decades at
Rutgers Law School
in the United States
You will quickly realize, however
that I don't have an American accent
I have never lost the vowel sounds
of the land of my birth
That land was known to the
European explorers and settlers
who came there from the 1600s onward
as New Zealand, and
known by the Tangata Whenua
the people of the land, who came
much earlier as Aotearoa
the Land of the Long White Cloud
If you don't like my
Latin pronunciation
please bear in mind that I learned
that in the South Pacific too
although my Latin teacher
studied at Oxford
Article 22
the subject of today's discussion
is entitled
'Nullemcrimen sine lege'
It has has three paragraphs
which provide:
1. A person shall not be
criminally responsible under this
Statute unless the conduct
in question constitutes
at the time it takes place
a crime within the
jurisdiction of the Court
2. The definition of a
crime shall be strictly
construed and shall not be
extended by analogy
In case of ambiguity
the definition shall be
interpreted in favour
of the person being investigated
prosecuted or convicted
3. This article
shall not affect the characterization of
any conduct as criminal
under international law
independently of
this Statute"
A striking feature of the
Rome Statute is that
for the first time in
an international criminal law treaty
it contains a collection
of what it calls,
"General Principles of Criminal Law"
These "general part" provisions
which constitute Part 3
of the Statute
supplement the
"special part" provisions
the definitions of the crimes
in Articles 6, 7, 8 and 8 bis
of the Statute
The "general part" principles
represent default rules
applicable to each particular crime
in the Statute unless
otherwise excluded in some fashion
typically by another
more specific provision
in the Statute itself
I shall be discussing with you
a total of eight of the twelve
"general part" articles
in the Statute
beginning with this
the first one in the Part
and concluding with the
last article in Part 3
of the Statute
article 33
which deals with the defense of
superior orders
Article 22, along with
its companions
articles 23 and 24
asserts various
aspects of the principle
of legality
the principle that no one
may be punished for conduct
that was not criminal
when it was carried out
Article 22 asserts
that there can be no crime
under the Statute
without a law which was
in existence before
the crime took place
In particular, conduct
may not be made criminal
after the event, or
"retroactively"
In many ways, the article's
general proposition is redundant
in the present context
since "lege" or law
is satisfied in the Statute
by the definitions in the
"special part"
itself far more detailed
than in previous
international criminal law instruments
Yet the drafters felt it
important to reiterate
the principle
This is because earlier
international criminal law prosecutions
like those in Nuremberg and
Tokyo relied,
at least in respect of crimes against peace
and crimes against humanity
on the existence of those crimes
under international customary law
or under general principles
of law accepted by
most nations
Those crimes had not been codified
at the time of the
Second World War
The Nuremberg and Tokyo Tribunals
did not regard this as a
bar to their exercising jurisdiction
since, as a matter of simple justice
people engaged in acts of
unimaginable cruelty
could hardly be heard to
deny that the acts in
question were wrong
In human rights instruments
adopted in the post-war years
there was often an acknowledgement
that the requirement that there be no
crime without law
could be achieved through
customary law or general principles
as well as by written law
Nonetheless, in the Rome Statute,
all the elements of the
crimes are spelled out
As I shall explain later
however, customary law status
may, on occasion, be relevant
The basic obligation in
Article 22(1)
is that a person shall not be
criminally responsible under the Statute
unless the conduct in question
constitutes, at the time
it takes place
a crime within the jurisdiction
of the Court
"Conduct", the word conduct
is used here to include
an omission, a failure to act,
and also other elements of
a crime
such as circumstance
and consequence elements
as are contemplated in
article 30 of the structure
contained in the Statute
As a practical matter
this means that there can be
no prosecution for events
occurring before 1 July 2002
when the Statute came into force
although this point is underscored
also in article 24
Moreover, the conduct
must normally have occurred after
the date on which the Statute
became effective
either for the state where the events
took place
(the territorial state)
or the state of the
accused's nationality
As a result of the language
of article 121
paragraph (5) of the Statute
dealing with amendments
changes in the definitions
of the crimes mentioned
in articles 5, 6, 7, 8 and 8 bis
will apply only
to those States Parties
to the amendments whose
territory or nationals
are implicated -
not to events involving those
not ratifying the amendments
Such is the case in relation to the
amendments to article 8
of the Statute agreed
upon in Kampala in 2010
Those amendments extend the
prohibitions on the use of
certain weapons in international
armed conflict to their
use in non-international conflict
Many writers on article 22
assume that there is
no nullemcrimen problem
when the Security Council
refers events concerning
non-party States to the Court
After all, the Rome Statute's
prohibitions are notice
to the whole world about what is
unacceptable
One distinguished commentator
Professor Bruce Broomhall
however, suggests in the most prestigious
Commentary on the Statute
that edited by Triffterer and Ambos
that it might be necessary to
examine the customary law status
of the crime in question
in some cases
He writes:
As a matter of fairness
the need to determine the
customary nature of Rome Statute
crimes
would arise where the Court was
called upon to exercise
its jurisdiction over crimes
allegedly committed
on the territory and
by the nationals of
non-States Parties
in the case of a Security Council referral
In such scenarios, [he adds,]
the only legitimate basis
for establishing the criminal responsibility
of individuals would presumably
in the absence of relevant
national prohibitions at the time
of the alleged conduct
be that of customary law
[He adds,] While the Statute
does not expressly require this
the interests of justice
the human rights of the accused
and the reputation of the
Court all arguably rely on it
Do you agree or is
Professor Broomhall too sensitive?
Is the existence of the
Statute warning enough
even to the citizens of
non-States Parties
to the statute?
Paragraph 2 of article 22
contains two overlapping corollaries
of the general principle
in paragraph 1
It provides first
that the definition of a crime
shall be strictly construed
and shall not be extended
by analogy
Secondly, it states that
in the case of ambiguity
the definition shall be interpreted
in favor of the person
being investigated
prosecuted or convicted
Extension of proscriptions
by analogy
was a feature of Nazi
and Soviet jurisprudence
and is seen by human rights
stalwarts as anathema
This abhorrence is reflected here
As for ambiguity
an important aspect of the principle
of legality
is that a person should be able
to understand criminal
prohibitions
either by his or her own reading
or by taking legal advice
An obscure law
or one open to infinite expansion
is subject to selective
and unfair prosecution
Not all legal systems go as far as
interpreting ambiguity
in favor of the accused
characterized by the Latin
maximin dubio pro reo
but the Rome Statute is
clearly in this camp
The final provision in article 22
is paragraph 3
which insists that this article
shall not affect the characterization
of any conduct as criminal
under international law
independently of the Statute
This is to much the same effect
as article 10 of the Statute
but the principle is especially
applicable to criminalization provisions
in the Statute
The Rome Statute is not a
complete code of international crimes
Not all the war crimes contained
in the Geneva Conventions
and their 1977 Protocols
are found in the Statute;
the offence of inchoate or
preparatory conspiracy to commit
genocide is contained in the
Genocide Convention but
not in the Rome Statute
And of course, many
international crimes
such as those under the drug and
terrorism suppression conventions
that are not in the Statute
at least at this time
and it is important that the
Statute not undermine the legitimacy
of such proscriptions
Paragraph 3 protects such
treaty and customary law
from being undercut
by their absence from
the Rome Statute
Well that's all on article 22
Next is article 23
which deals with the related principle of
Nulla Poena Sine Lege