An appraisal of the legality principles in relation to genocide and crimes against humanity in contemporary international law

Abstract

This study examines the principles of legality, enshrined in the maxim 'nullum crimen sine lege,' in relation to genocide and crimes against humanity in contemporary international law. In particular, it aims to assess the relevant provisions of the Statute of the International Criminal Court (ICC) with a view of ascertaining whether the principles of legality will stand in the way of the progressive development of international law with respect to the two mentioned crimes. The legality principles are discussed within the context of the historical and philosophical framework on which international criminal law has developed, and through an assessment of how the definitions of genocide and crimes against humanity have evolved and been reinterpreted since the aftermath of World War II The main questions addressed are : (i) whether the most effective mechanism within international criminal courts is achieved by adherence to the doctrine of substantive justice or that of strict legality, and (ii) how the ICC should deal with the legality principles in view of the Rome Statute's definitions of the mentioned crimes and the provisions in the Statute delineating the said principles. Answers to these questions throw light on how strictly the ICC should interpret and apply its statutory definitions of genocide and crimes against humanity, and on whether the legality principles stand in the way of an effective international mechanism and of the progressive development of international criminal law. The conclusions of this study are that, while the principles of legality, as incorporated in the Rome Statute, do not exclude judicial interpretation beyond the very essence of the crimes, such principles may nevertheless bar development of international law in so far as genocide and crimes against humanity are limited by their own definitional constraints and failings which may only be rectified if State Parties consent to legislative amendments.