The Nullum Crimen Principle and
The Trial of Saddam Hussein
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The purpose of this paper is to inform the public about some of the legal issues involved in the present trial of Saddam Hussein and to encourage discussion among scholars of international criminal law. The goal is to present the facts and the various viewpoints on a particular legal issue in a non-partisan manner. The issue under discussion is whether the Supreme Iraqi Criminal Tribunal may convict the defendants without violating the nullum crimen principle. The issue arises beginning with the uncontested facts in the case.
I. Uncontested Facts
Saddam Hussein is on trial for charges of having committed, early in the 1980s, acts constituting crimes against humanity, following a failed attempt on his life in the al-Dujail region of Iraq. At the time when the alleged acts took place the customary international offense of crimes against humanity was not a part of the criminal offenses prescribed by the Penal Code or any other Iraqi criminal law.
Crimes against humanity were introduced into Iraqi law in December 2003, when the American led occupation authority in Iraq issued, through a legislative order, a statute establishing an Iraqi special tribunal. The purpose of the tribunal was to prosecute those who had engaged in certain types of crimes during the reign of Saddam Hussein. The statute included an article defining crimes against humanity over which the newly established tribunal had jurisdiction.
In October 2005, Iraq issued Law Number 10 (PDF, 2.21MB) abolishing the 2003 statute but containing similar provisions establishing "The Supreme Iraqi Criminal Tribunal (SICT) المحكمة الجنائية العراقية العليا ". Section two of article 1 of Law Number 10 gave the SICT subject matter jurisdiction limited to prosecuting certain criminal offenses that may have occurred between July 17, 1968 and May 1, 2003. Among these offenses are crimes against humanity as defined in article 12 of that law. Article 40 stipulates that the law shall come into effect on the date of its publication in the official gazette. The law was published in the official gazette on October 18, 2005. In the present case the trial chamber of the SICT is being asked to convict Saddam Hussein and his co-defendants for crimes committed, according to the prosecution, about two decades before article 12 of Law Number 10 came into effect.
These facts raise an important legal question. May the SICT convict the defendants without violating the legal principle known in Latin as, nullum crimen sine lege, nulla poena sine lege?
III. The Nullum Crimen Principle
The Nullum Crimen principle or ex post facto rule means that no crime or punishment can be established unless created by a law that has been in existence prior to the commission of the crime. In other words, a statute criminalizing an act or creating a new offense or imposing a harsher punishment for an existing crime cannot be applied retroactively to acts committed prior to its enactment. The principle goes back to the time of the early Roman law and remains today firmly embedded in various legal systems of the world. The principle applies equally in domestic as well as in international law.
Article 15 of the International Covenant on Civil and Political Rights (external link) stipulates as follows:
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.
Similarly, and in addition to article 11.2 of the Universal Declaration of Human Rights (external link), article 7 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (external link)  provides the following:
Article 7 – No punishment without law
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations
Many countries have also adopted the principle as an integral part of their constitutions. The United States, for example, prohibits both the federal government and the various states from enacting laws with retroactive application. Article I.9 of the U.S. Constitution stipulates that no ex post facto laws shall be passed by Congress and article I.10 provides that no state shall enact any such laws.
From its inception, the modern Iraqi legal system has subscribed to the nullum crimen principle. Several legislative enactments have continuously affirmed that no one can be convicted for acts that did not constitute offenses at the time of their commission.
As an example, the recent Iraqi Constitution (external link) approved by a referendum held on October 15, 2005, stipulates the following:
Second - There shall be no crime and no punishment without a stipulation [by law]; there shall be no punishment except for an act the law considers a crime at the time of its commission; and no punishment shall be imposed that is more severe than the punishment in effect at the time of the commission of the crime.
Similar provisions were included in the Law of Administration (external link) for the State of Iraq for the Transitional Period (known by the acronym TAL), the Iraqi constitution of 1970, and the constitution of 1964. More specifically, Iraqi Penal Code Number 111 of 1969 stipulates as follows:
There shall be no punishment for an act or omission except on the basis of a law so stipulating at the time of its occurrence. And no penalties or precautionary measures shall be imposed without being prescribed by law.
(1) The law applicable to crimes is the law in force at the time of their commission …
(2) However, if a law or laws issued after the commission of the crime but before the judgment rendered in it has become final, the law most favorable to the accused shall apply.
(3) And if after the judgment has become final a law were issued decriminalizing the act or omission for which the accused was convicted, the execution of the judgment shall cease and its criminal consequences shall expire … .
As a result of these enactments, crimes and penalties in Iraq have to be prescribed or enacted by legislative instruments. They cannot be established by analogy, precedent or other novel means. The nullum crimen principle prevents the application of criminal laws retroactively to the detriment of the accused, even though the accused necessarily benefits from a new law more in his favor. The principle is expressed sometimes in terms of prohibition against enacting ex post facto laws or in terms of the non-retroactivity rule.
Despite the clarity of this principle, there is disagreement on how it may be applied by a domestic court to customary international crimes when such crimes are committed prior to their inclusion into the national domestic law. Should a domestic law apply retroactively to acts constituting crimes against humanity under customary international law, but committed prior to the enactment of the domestic law, as is the case in the present trial?
A quick survey of a sample of court decisions in various countries that faced the same question indicates that there are two legal views or opinions on this issue. One view regards the retroactive application of domestic law to international crimes, including crimes against humanity, not violative of the nullum crimen principle or ex post facto rule; another view regards the matter differently.
IV. Court Decisions Supporting Retroactive Application of Domestic Law to International Criminal Offenses
In support of the view that a statute incorporating into domestic law offenses recognized under customary international criminal law does not violate the nullum crimen principle or the ex post facto rule when applied retroactively, two court decisions will be discussed: one rendered by the Supreme Court of Canada and one by the Audencia Nacional of Spain.
In 1987 the Canadian Parliament amended certain sections of the penal code giving Canadian courts jurisdiction over crimes against humanity and war crimes committed outside Canadian territories. Pursuant to these amendments, criminal charges were brought in Canada against Imre Finta, a naturalized citizen, accusing him of having committed crimes against humanity in his native Hungry about fifty years prior to the effective date of the amendments.
Even though Finta was acquitted by a jury trial, his case was appealed and reached the Supreme Court of Canada. One of the legal issues brought before the High Court was whether or not the amended sections of the penal code violated the constitutional rule of non-retroactivity. In its decision rendered on March 24, 1994, (external link) the Canadian Supreme Court ruled that the amended sections of the penal code created two new offenses in Canada, crimes against humanity and war crimes, and tacitly acknowledged that the amended sections would have retroactive application. The Court, however, did not find the amended sections unconstitutional on the basis of their retroactivity. In its reasoning the Court cited and adopted the opinion expressed by Professor Hans Kelsen to the effect that the retroactive application of a criminal law to actions, illegal but not criminal at the time of their commission, constitutes an exception to the ex post facto rule. The summary holding of the court on this legal question was stated on page 5 of the judgment as follows:
The impugned sections do not violate sections 7 and 11(g) of the Charter [Canadian Charter of Rights and Freedoms (external link)] because of any allegedly retrospective character. The rules created by theCharter of the International Military Tribunal and applied by the Nuremberg Trial represented a “new law”. The rule against retroactive legislation is a principle of justice. A retroactive law providing individual punishment for acts which were illegal though not criminal at the time they were committed, however, is an exception to the rule against ex post facto laws. Individual criminal responsibility represents certainly a higher degree of justice than collective responsibility. Since the internationally illegal acts for which individual criminal responsibility has been established were also morally the most objectionable and the persons who committed them were certainly aware of their immoral character, the retroactivity of the law applied to them cannot be considered as incompatible with justice. Justice required the punishment of those committing such acts in spite of the fact that under positive law they were not punishable at the time they were performed. It was appropriate that the acts were made punishable with retroactive force.
The detailed ruling from pages 69 to 73 of the judgment quoted Professor Kelsen (external link) as follows:
A retroactive law providing individual punishment for acts which were illegal though not criminal at the time they were committed seems also to be an exception to the rule against ex post facto laws.
Adolfo Scilingo was a military officer in Argentina. He was arrested in Spain in 1997 allegedly for having committed international criminal offenses in his native country. On November 15, 2004, the Spanish Supreme Court, Tribunal Supremo, ruled that the Spanish special court, the Audiencia Nacional, had jurisdiction over the alleged charges.
On April 19, 2005, the Audiencia National (external link) convicted Scilingo for having committed crimes against humanity in Argentina and sentenced him to 640 year in prison. In reaching its decision the Spanish court relied on the newly enacted article 607 bis of the Spanish Penal Code, which made crimes against humanity a part of the Spanish legal system. Article 607 bis was enacted in November 2003 and took effect as of October 2004, long after the events for which Scilingo was convicted.
The Scilingo court being aware of the adoption by the Spanish legal system of the nullum crimen principle in articles 25 of the Spanish constitution and article 2 of the Spanish Penal Code justified its ruling by arguing that the application of article 607 bis of the Penal Code (external link) to actions committed before its enactment does not violate the retroactivity rule. Its reasoning was that article 607bis incorporates into the domestic Spanish law a crime that already existed into international criminal law and that the nature of the crime is such that it represents a jus cogens meaning a fundamental norm of international law that no country could ignore.
V. Court Decisions Denying the Retroactive Application of Domestic Law to Crimes Recognized by Customary International Law
Decisions rendered by the House of Lords in the United Kingdom and la Cour de Cassation in France do not subscribe to the idea that domestic laws incorporating international criminal offenses apply to acts committed prior to the enactment of these laws.
In 1998 while Senator Pinochet of Chile was present in the United Kingdom, Spain issued an arrest warrant and requested his extradition to face charges in Spain. The charges included allegations that Pinochet committed and conspired to commit torture over a period of time prior to September 28, 1988. The case reached the House of Lords, the Highest Court in the United Kingdom, which issued a judgment (external link) on March 24, 1999 relevant to the question discussed here. Lord Justice Browne-Wilkinson (external link) referred to the issue presented by Senator Pinochet’s counsel on page five of the opinion:
Certain of the charges, in particular those relating to torture and conspiracy to torture, were not "extradition crimes" because at the time the acts were done the acts were not criminal under the law of the United Kingdom.
Under the terms of the Extradition Act of 1989, which replaced the pre-existing common law rules, one of the requirements for a crime to be "an extradition crime" is for the conduct to constitute a crime under the law both of the United Kingdom and of the requesting state. This is known as the double criminality requirement.
The United Kingdom is signatory to the 1984 International Convention Against Torture (external link) (PDF) and subscribes to the proposition that torture is one of the most important international crimes. As Lord Justice Browne-Wilkinson (external link) (PDF) states in the opinion:
Since the Nazi atrocities and the Nuremberg trials, international law has recognized a number of offences as being international crimes … The most important of such international crimes for present purposes is torture.
In compliance with its obligations under the Convention, the United Kingdom, through section 134 of the Criminal Justice Act of 1988, incorporated into its domestic law the international crime of torture and permitted United Kingdom courts to exercise jurisdiction over the new crime irrespective of whether it was committed inside or outside United Kingdom territories. Because the conduct for which Spain sought extradition constituted, if true, the international crime of torture incorporated into Spanish domestic law, the High Court had to determine whether it also constituted a crime under the law of the United Kingdom.
The High Court first ruled that the double criminality requirement necessitates that the conduct be criminal in the United Kingdom at the time the conduct took place, not the date of the extradition request. Because section 134 of the Criminal Justice Act of 1988 (external link), which incorporated the international crime of torture into United Kingdom law, did not take effect until September 29, 1988, the High Court ruled that alleged conduct of Senator Pinochet committed prior to the effective date of section 134, does not constitute a crime under United Kingdom law and therefore can not serve as a basis for extradition. Even though the High Court considered the alleged conduct of Senator Pinochet to be a criminal offense under international law, it concluded that section 134 of the Criminal Justice Act of 1988 (external link) did not apply retroactively to such conduct.
In France the High Court, la Cour de Cassation, ruled in at least two relevant cases. In both cases the issue of the applicability of the international offense of crimes against humanity arose.
In the first case a complaint was filed on April 3, 1991 with the investigative judge, le juge d’istruction, against George Boudarel accusing him of having committed the offense of crimes against humanity in North Vietnam between October 1952 and August 1954. The investigative judge decided that the acts as alleged if true, would constitute the offense of crimes against humanity proscribed by article 6(c) of the Charter of the International Military Tribunal of Nuremberg annexed to the London Agreement of August 8, 1945 (external link) (PDF). Second, the judge decided that the French Amnesty Law of June 18, 1966 did not apply to the offense as alleged because of the supremacy of the international norms over domestic law. The investigative judge then allowed the complaint to proceed.
On appeal la chambre d’accusation, while agreeing with the investigative judge on the description and effect of the charges as international crimes that are not, pursuant to the law of December 26, 1964, subject to the statute of limitations, it reversed the ruling on the basis that the alleged crimes of which Boudarel stood accused are still covered by the amnesty law, which is applicable to the offense of crimes against humanity.
On further appeal the High Court, the Cour de Cassation, affirmed the appellate court's holding but rejected its legal reasoning. The High Court ruled that the provisions of the law of December 26, 1964, and of the Charter of the International Military Tribunal of Nuremberg, annexed to the London Agreement of August 8, 1945, are limited to the actions committed on behalf of the European countries of the Axis (during the War); and, therefore, that the actions committed subsequent to the Second World War can not be described as crimes against humanity; and concluded that the charges should be dismissed.
The High Court's decision, delivered on April 1, 1993, reads as follows in the original French:
Qu'en effet, les dispositions de la loi du 26 décembre 1964, et du statut du Tribunal militaire international de Nuremberg, annexé à l'accord de Londres du 8 août 1945, ne concernent que les faits commis pour le compte des pays européens de l'Axe ; que, par ailleurs, la Charte du Tribunal militaire international de Tokyo, qui n'a été ni ratifiée, ni publiée en France et qui n'est pas entrée dans les prévisions de la loi du 26 décembre 1964, ou de la résolution des Nations Unies du 13 février 1946, ne vise, en son article 5, que les exactions commises par les criminels de guerre japonais ou leurs complices ; qu'ainsi, les faits dénoncés par les parties civiles, postérieurs à la seconde guerre mondiale, n'étaient pas susceptibles de recevoir la qualification de crimes contre l'humanité au sens des textes précités ; …
D'où il suit que l'action publique a été à bon droit déclarée éteinte et que, le refus d'informer étant justifié, le moyen ne saurait être accueilli.
It should be noted that at the time the High Court rendered its decision in this case, there was no domestic law incorporating the offense of crimes against humanity into French criminal law.
In the second case a complaint alleging commission of crimes against humanity was filed subsequent to March 1, 1994, the effective date of articles 211-1 and 211-2 of the French Penal Code, which introduced the offense of crimes against humanity into French domestic law. When the case reached the High Court there were three legal issues to be resolved:
- whether the crimes against humanity, allegedly committed in Algeria between 1955 and 1957, were covered by the Charter of the International Military Tribunal of Nuremberg and the French law of December 26, 1964 by abolishing statutes of limitation from crimes covered by the Charter;
- whether the legality principle prevents the retroactive application of articles 211-1 and 211-2 of the Penal Code to cover the alleged crimes; and
- whether customary international law can supply a basis for criminalizing alleged acts committed prior to the effective date of articles 211-1 and 211-2 of the French Penal Code?
The holding of the High Court on the first issue was similar to its decision in the Boudarel case. On the second issue the High Court held that the legality principle regarding crimes and punishments, as well as the non-retroactivity of harsher criminal laws, prevented the retroactive application of articles 211-1 and 211-3 of the Penal Code to acts committed before the date on which these articles came into force. On the third issue the High Court held that customary international law cannot be used to supply a remedy in the in the absence of a law proscribing the offense of crimes against humanity.
The holding of the High Court, la Cour de Cassation, reads as follows in the original French language:
Que, par ailleurs, les principes de légalité des délits et des peines et de non rétroactivité de la loi pénale plus sévère, énoncés par les articles 8 de la Déclaration des droits de l'homme et du citoyen, 7-1 de la Convention européenne des droits de l'homme, 15-1 du Pacte international relatif aux droits civils et politiques, 111-3 et 112-1 du Code pénal, font obstacle à ce que les articles 211-1 à 212-3 de ce Code réprimant les crimes contre l'humanité s'appliquent aux faits commis avant la date de leur entrée en vigueur, le 1er mars 1994;
Qu'enfin, la coutume internationale ne saurait pallier l'absence de texte incriminant, sous la qualification de crimes contre l'humanité, les faits dénoncés par la partie civile; … .
VI. Concluding Remarks
As in all the cases discussed above, it is important to note that the trial chamber of the Supreme Iraqi Criminal Tribunal concerning the present case against Saddam Hussein is a domestic, not an international venue. There are, however, a number of differences worth mentioning between the Saddam Hussein case and the other cases. Unlike the cases discussed above,
- the Iraqi tribunal has been established outside the normal structure of the judicial system of Iraq;
- the Iraqi tribunal is a temporary, not a permanent entity. Its existence is limited in time by the finite number of crimes that may be brought before it. These crimes must have occurred between July 17, 1968, and May 1, 2003. Article 6 of Law Number 10 of 2005 recognizes the limited lifetime of the tribunal by providing that its judges and prosecutors shall, at the conclusion of its business, be transferred to the Iraqi Supreme Judicial Council; and
- acts constituting crimes against humanity under customary international law that may have occurred since May 1, 2003, or that may occur in the future are not crimes under present Iraqi law. Article 12 of Law Number 10 of 2005 defines crimes against humanity only for the limited purpose of application to a specific period of time in the past.
*Issam Saliba is a member of the Beirut Bar and serves at the Law Library of Congress as Foreign Law Specialist for the Middle East and North African Arab States.
- Alwaqai Aliraqiya [Official Gazette], The Supreme Iraqi Criminal Tribunal Law, Oct. 18, 2005, No. 10. [Back to Text]
- United Nations, International Covenant on Civil and Political Rights (external link), Art. 15, Mar. 23, 1976, 999 U.N.T.S. 171. [Back to Text]
- Universal Declaration of Human Rights (external link), G.A.Res. 217 A (III), U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810, Art. 11.2, (Dec. 10, 1948). [Back to Text]
- Council of Europe, European Convention on the Protection of Human Rights and Fundamental Freedoms (external link), art.7, as amended by Protocol No. 11, Nov. 1998, 213 U.N.T.S. 222. [Back to Text]
- U.S. Const. art.1, §§ 9 & 10. [Back to Text]
- Constitution of Iraq, art. 19, 1005. [Back to Text]
- Iraqi Penal Code No. 111, arts. 1 & 2, 1969. [Back to Text]
- Regina v. Finta,  1 S.C.R. 70. (Supreme Court of Canada). [Back to Text]
- Hans Kelsen, Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law? 1 Int'l L.Q. 153 (1947). [Back to Text]
- Id. at 8. [Back to Text]
- Id. at 9American Society for International Law, Audiencia Nacional of Spain: Sentence for Crimes Against Humanity in the Case of Adolfo Scilingo (Apr. 19, 2005), available at. [Back to Text]
- http://www.asil.org/ilib/2005/04/ilib050426.htm#j3 (external link). [Back to Text]
- Sentencia por crimenes contra la humanidad en el caso Adolfo Scilingo (Apr. 19, 2005), available at http://www.derechos.org/nizkor/espana/juicioral/doc/sentencia.html (external link). [Back to Text]
- Id. at 11. [Back to Text]
- See the opinion delivered by Lord Browne-Wilkinson, Regina v. Bartle, et al. (ex rel Pinochet),  2 WLR 825, 840, available at http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm (external link). [Back to Text]
- Cour de Cassation, pourvoi No: 92-82273, 1 avril 1993. [Back to Text]
- Cour de Cassation, pourvoi No: 02-80719, 17 juin 2003. [Back to Text]
Last Updated: 07/03/2007