The Differing Application of the Principle of Nullum Crimen Sine Lege in International Criminal Tribunals and Human Rights Bodies

Abstract

The international legal system is fragmented and pluralistic. Due to this, the same legal principle can be interpreted and applied differently across specialised legal fields. In the fields of international criminal law and international human rights law, adjudicatory bodies have applied the legality principle in a manner which is inconsistent, often leading to the creation of new international criminal offences and an expansive understanding of existing offences. However, such actions are inappropriate given the legality principle’s peremptory status as a jus cogens norm. A lack of uniformity can detrimentally interfere with the clarity of the principle and produce negative impacts for individuals, usually defendants, appearing before international courts. The thesis employs a doctrinal research methodology to ascertain the extent to which the principle has been applied inconsistently by international criminal tribunals and human rights bodies, as well as to gain an understanding of the rationale behind this treatment.

The thesis also explores the viability of a potential resolution technique. The thesis suggests that the process of judicial dialogue, producing cross-fertilisation across legal fields, could provide resolution when implemented in a manner which is organised and widespread by judicial actors. Judicial dialogue often occurs within a particular legal field, especially its courts. However, it can occur across legal denominations transferring principles between fields via cross-fertilisation. Cross-fertilisation is beneficial, creating a greater sense of consistency and reliability within the international legal system. In recent times, there has been a growing pattern of judicial dialogue and cross-fertilisation within the jurisprudence of international courts, with a greater willingness to apply decisions of neighbouring courts being shown.

Therefore, this thesis seeks to encourage members of the international judiciary, and more widely, legal practitioners, to look to the jurisprudence of neighbouring institutions to bolster consistency in the application and interpretation of the legality principle.

Date of Award	15 May 2024
Original language	English
Awarding Institution	Edge Hill University
Supervisor	ANDREW MILLIE (Director of Studies), PATRICK BUTCHARD (Supervisor) & TRIESTINO MARINIELLO (Supervisor)