Contents - Constitutional Court of Georgia

The Blank-Prose Crime of Aggression
criminal according to the general principles of law recognized by the community of nations.” 82 The
same prohibition and the same qualification appear in the European Convention on Human Rights 83
and a similar prohibition, not so qualified, appears in the American Convention on Human Rights. 84
The European Commission on Human Rights has noted that methods of statutory construction must
comport with the requirement that the meaning of a statute was reasonably certain at the time a
defendant’s conduct occurred. 85
The principle of nonretroactivity has now been so widely recognized internationally—“virtually all
states have accepted the rule of nonretroactivity of crimes and punishments” 86 — that it has come
to represent a general principle of law recognized by civilized nations. 87 Indeed, Theodor Meron has
written that it constitutes a peremptory norm: “The prohibition of retroactive penal measures is a
fundamental principle of criminal justice and a customary, even peremptory, norm of international
law that must be observed in all circumstances by national and international tribunals.” 88
The Rome Statute reflects the importance of these principles. In Article 22, entitled “Nullum crimen
sine lege,” the Statute provides that a “person shall not be criminally responsible under this
Statute unless the conduct in question constitutes, at the time it takes place, a crime within the
jurisdiction of the Court.” 89 The Statute also guarantees the right “not [to] be subjected to arbitrary
arrest or detention and . . . not [to] be deprived of liberty except on such grounds and in accordance
with such procedures as are established in th[e] Statute.” 90 As will later be seen, the norms
concerning retroactivity and vagueness are important because the Rome Statute requires that the
ICC’s interpretation and application of the law “be consistent with internationally recognized human
rights.” 91
82 Id. art. l5(2).
83 European Convention on Human Rights art. 7, Nov. 4, l950, 2l3 U.N.T.S. 22l.
84 American Convention on Human Rights art. 9, Nov. 22, l969, O.A.S.T.S. No. 36, ll44 U.N.T.S. l23.
85 X. Ltd. and Y v. United Kingdom, App. No. 87l0/79, 28 Eur. Comm’n H.R. Dec. & Rep. 77, 8l (l982).
86 GALLANT, supra note 20, at 24l.
87 Rome Statute, supra note 4, art. 24; see also GALLANT, supra note 20, at 243 (“More than four-fifths of United Nations members (l62 of
l92, or about 84 percent) recognize non-retroactivity of criminal definitions (nullum crimen) in their constitutions.”); M. Cherif Bassiouni,
Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National
Constitutions, 3 DUKE J. COMP. & INT’L L. 235, 29l (l993) (“The right to be protected from ex post facto laws is guaranteed in at least
ninety-six national constitutions.”).
88 THEODOR MERON, WAR CRIMES LAW COMES OF AGE 244 (l998); see also GALLANT, supra note 20, at 8-9 (arguing that nonretroactivity
of crimes and punishments is a rule of customary international law and also a general principle of law recognized by the community
of nations).
89 Rome Statute, supra note 4, art. 22(l). The principle was construed, however, as requiring only “that penalties be defined in the draft
statute of the Court as precisely as possible,” a far looser standard than required either by contemporary customary international law or
U.S. law. Report of the Preparatory Committee on the Establishment of an International Criminal Court, at 63, U.N. Doc. A/5l/22 (l996)
(emphasis added).
90 Rome Statute, supra note 4, art. 55(l)(d).
91 Id. art. 2l(3).
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