The Perils of Progressive Jurisprudence: The Nullum Crimen Sine Lege Principle in International Criminal Law

Abstract

Abstract The nullum crimen sine lege principle is a fundamental principle of human rights, prohibiting both retroactive application of crimes as well as expansive interpretations and extensions by analogy. Yet throughout its historical evolution, from the emergence of novel crimes in the Charters of the International Military Tribunals at Nuremberg and Tokyo, to the expansive interpretations of such crimes by contemporary jurisdictions such as the ICTY, ICTR and ICC, international criminal law has been characterized by a privileging of substantive justice over the principle of legality. From filling normative lacunae to evolutionary adaptation of existing norms, the humanitarian interests underlying the criminalization of atrocities is often invoked to justify progressive jurisprudence. The paper considers whether this sensibility is a cause for celebration or a cause for concern, and whether the nullum crimen sine lege principle should be applied less strictly in the context of international criminal law.