Van Schaack: Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals

Beth Van Schaack (Santa Clara Univ. - Law) has posted Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals. Here's the abstract:

This Article considers one of the most fundamental defenses to a criminal prosecution "nullum crimen sine lege, nulla poena sine lege" (no crime without law, no punishment without law) (NCSL). Notwithstanding that respect for NCSL is a hallmark of modern national legal systems and a recurrent refrain in the omnibus human rights instruments, international criminal law (ICL) has to date failed to fully implement this principle. Indeed, the absence of a rigorous manifestation of NCSL within ICL can be traced to the dawn of the field. Where states have failed to enact comprehensive ICL, judicial institutions have engaged in a full-scale refashioning of ICL through jurisprudence addressed to their own jurisdiction, the elements of international crimes, and applicable forms of responsibility. Along the way, courts have updated and expanded historical treaties and customary prohibitions, upset arrangements carefully negotiated between states, rejected political compromises made by states during multilateral drafting conferences, and added content to vaguely-worded provisions that were conceived more as retrospective condemnations of past horrors than as detailed codes for prospective penal enforcement.

This Article constructs a taxonomy of analytical claims made by tribunals adjudicating ICL to evade or neutralize the defense of NCSL. These arguments turn on a complex interplay of immorality, illegality, and criminality and depend in large part on the multiplicitous sources of international law. The Article demonstrates that the collective result of the NCSL jurisprudence is that today's defendants have been subjected to rules and standards that were not part of extant law at the time they acted. This result has the potential to raise acute concerns about the rights of criminal defendants before today's ICL tribunals. Nonetheless, by applying and adapting the methodology developed by the European Court of Human Rights to enforce the articulation of the NCSL principle in its constitutive document, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article demonstrates that the NCSL jurisprudence has not compromised the fundamental fairness of ICL. Indeed, defendants were on sufficient notice of the foreseeability of such jurisprudential innovations in light of extant domestic penal law, universal moral values expressed in international human rights law, developments in international humanitarian law and the circumstances in which it has been invoked, and other dramatic changes to the international order brought about in the post-World War II period. Any lingering concerns about the rights of the defendants can and should be mitigated by sentencing practices¿to a certain extent already in place and employed by the ad hoc criminal tribunals¿that are closely tethered to extant domestic sentencing rules relevant to analogous domestic crimes.

Although focused on the NCSL jurisprudence, this Article also presents a model of ICL formation, rhetoric, and evolution that finds resonance in the origins and gradual demise of the Anglo-American common law crime and that engages the perennial tension in international law between positivism and normativity.