Legality as Inhibitor: The Special Place of Nullum Crimen Sine Lege in the Jurisprudence of the International Criminal Tribunals’

The specific nature, application and applicability of the principle of legality in international criminal law could be described as one of the features which distinguish this branch of the law from municipal law and even from international law. The principle of legality, expressed in the formulation nullum crimen, nulla poena sine praevia lege poenali - no crime and no punishment without previous law - is one of the leading principles of criminal law and has been described by the European Court of Human Rights as an 'essential element of the rule of law'. From the practice of the international criminal tribunals, and from the writings of important scholars in this field, there appears to be general consensus that the context of international criminal law calls for a more lenient and flexible approach to the application of this principle than would be the case in municipal systems. This article deals with the place of the principle of legality in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). If it is accepted that the judges at these tribunals not only declare international criminal law, but to some extent make new law, it is important that the principle of legality should act as an inhibitor.