The respect for nullum crimen sine lege is of upmost importance in the international criminal law context. NCSL is contiguous to the ECHR provisions on the prohibitions on slavery and torture. The principle is often associated with ensuring that all punishments are established before the commencement of any criminal prosecution and that the criminal action is penalized. Even though NCSL is the core of the rule of law in criminal law that is inalienable to every person some scholars have also associated the rule of NCSL to the pursuit of stifling governments, states, legal and judicial institutions from enacting ex post facto legislation. International criminal law has been criticized for ignoring this essential rule in times of emergency situations which many times the world has seen the ECtHR completely disregarding this Principle.
The absence in international criminal law of a rigorous manifestation of NCSL dates back to a time when the idea of individual criminal responsibility was from a tri-dimensional view: legal, moral and criminal. NCSL can be traced back to post-World War II (WWII) period, the victorious Allies essentially renounced suggestions from within that the Axis leaders and developed international criminal tribunals to prosecute German and Japanese suspects. Justice Robert Jackson said in the “Opening Statement for the United States of America, on the Subject of International Military Tribunal No. I” , “…one of the most significant tributes that power has ever paid to reason”. After the tribunals drew to a close, the international community began drafting rules to codify the Nuremberg Principles. The Nuremberg Principles which stated two fundamental rules:
1)“…the leaders, their advisors and helpers remain accountable for their crimes before mankind. Neither the sovereignty of the state they headed, nor their right to decide for themselves on how to run the state absolve them from this; 2)“…heads of state, their advisors and helpers were individually and personally made accountable for their particular contribution to a particular crime. They were not allowed to hide behind their functions within the state or their national law”. Unfortunately, many of these efforts were never fully implemented within domestic legal systems because they were either abandoned during the Cold War period or permanently compromised by polarized negotiations. Notwithstanding its abandonment the NCSL principle still find its place in the progressive positive international law. The question today is if it can still serve its initial purpose.
In international law the concept of the Principle of Legality or NCSL with nearly identical wording exists in many treaties such as the European Convention for the Protection of Human Rights and...