Foreseeability and accessibility

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Decision on Command Responsibility - 16.07.2003 HADŽIHASANOVIĆ et al.

34.     […] As to foreseeability, the conduct in question is the concrete conduct of the accused; he must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision. As to accessibility, in the case of an international tribunal such as this, accessibility does not exclude reliance being placed on a law which is based on custom.[1]

[1] See “Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction-Joint Criminal Enterprise”, Prosecutor v. Milan Milutinović et al, IT-99-37-AR72, 21 May 2003, paras. 37-39 (“Ojdanić Decision”).

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JCE Decision - 21.05.2003 MILUTINOVIĆ et al.

37.     Secondly, the principle nullum crimen sine lege is, as noted by the International Military Tribunal in Nuremberg, first and foremost, a “principle of justice”.[1]  It follows from this principle that a criminal conviction can only be based on a norm which existed at the time the acts or omission with which the accused is charged were committed.  The Tribunal must further be satisfied that the criminal liability in question was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time for it to warrant a criminal conviction and sentencing under the head of responsibility selected by the Prosecution. 

38.     This fundamental principle “does not prevent a court from interpreting and clarifying the elements of a particular crime”.[2]  Nor does it preclude the progressive development of the law by the court.[3]  But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification.  This Tribunal must therefore be satisfied that the crime or the form of liability with which an accused is charged was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time, taking into account the specificity of international law when making that assessment. 

39.     The meaning and scope of the concepts of “foreseeability” and “accessibility” of a norm will, as noted by the European Court of Human Rights,[4] depend a great deal on “the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed”.[5]  The specificity of international criminal law in that respect has been eloquently noted by one American Military Tribunal in Nuremberg in the Justice case:

Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field.  […] International law is not the product of statute for the simple reason that there is yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence.  It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the events. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth.[6]

40.     […] This Tribunal does not apply the law of the former Yugoslavia to the definition of the crimes and forms of liability within its jurisdiction.  It does, as pointed out above, apply customary international law in relation to its jurisdiction ratione materiae.  It may, however, have recourse to domestic law for the purpose of establishing that the accused could reasonably have known that the offence in question or the offence committed in the way charged in the indictment was prohibited and punishable.  […]

41.     Although domestic law (in particular the law of the country of the accused) may provide some notice to the effect that a given act is regarded as criminal under international law, it may not necessarily provide sufficient notice of that fact.  Customary law is not always represented by written law and its accessibility may not be as straightforward as would be the case had there been an international criminal code.  But rules of customary law may provide sufficient guidance as to the standard the violation of which could entail criminal liability.[7]  […]

42.     […] Although the immorality or appalling character of an act is not a sufficient factor to warrant its criminalisation under customary international law, it may in fact play a role in that respect, insofar as it may refute any claim by the Defence that it did not know of the criminal nature of the acts.[8] 

See also para. 10.

[1]    IMT Judgment [Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946, Vol 1, p 226], p 219.

[2]    Aleksovski Appeal Judgment, pars 126-127;  Delalić Appeal Judgment, par 173.

[3]    See, inter alia, Kokkinakis v Greece, Judgment, 25 May 1993, Ser A 260-A (1993), pars 36 and 40 (ECHR);  EV v Turkey, Judgment, 7 Feb 2002, par 52;  SW v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-B (1995), pars 35-36 (ECHR).  See also C.R  v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-C (1995), par 34 (ECHR): “However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation.  There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 (art. 7) of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.”

[4]    See references in previous footnote, including, Kokkinakis v Greece, Judgment, 25 May 1993, Ser A 260-A (1993), (ECHR);  EV v Turkey, Judgment, 7 Feb 2002;  SW v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-B (1995) (ECHR); C.R  v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-C (1995).

[5]    Groppera Radio AG and Others v Switzerland, Judgment, 28 Mar 1990, Ser A 173, par 68.

[6]    See, eg, Trials of War Criminals Before The Nuremberg Military Tribunals Under Control Council Law No 10, Vol III (“Justice case”), pp 974-975.  

[7]    See X Ltd and Y v United Kingdom, D and R 28 (1982), Appl 8710/79, pp 77, 80-81.

[8]    In the Delalić case, the Appeals Chamber referred to the ICCPR to state that certain acts could be regarded as “criminal according to the general principles of law recognized by the community of nations” (Delalić Appeals Chamber Judgment, par 173). The IMT used a similar formulation when addressing the criminalisation of aggressive war: “the attacker must know that he is doing wrong” (IMT Judgment, p 219)

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