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This panel was convened at 10:45 a.m., Thursday, March 26, by its moderator, Sandesh Sivakumaran of the University of Nottingham, who introduced the panelists: Beth Van Schaack of Santa Clara Law School; Darryl Robinson of Queen's University; Brad Roth of Wayne State University; Elisa Massimino of Human Rights First;* and Theodor Meron of the International Criminal Tribunal for the Former Yugoslavia.
Introductory Remarks
By Sandesh Sivakumaran[dagger]
[dagger] Lecturer, School of Law, University of Nottingham; International Legal Advisor to the Appeals Chamber, Special Court for Sierra Leone.
The principle of nullum crimen sine lege is a fundamental principle of criminal law. It has particular resonance at the international level given the relative lack of clarity surrounding certain international legal norms. It was invoked before the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East and continues to be raised today, whether in relation to joint criminal enterprises before the International Criminal Tribunal for the Former Yugoslavia or "child soldiers" before the Special Court for Sierra Leone.
This panel is primarily about the nullum crimen sine lege principle; however, it is about more than just that principle. Panelists will consider broader ideas of legality in international criminal law, the legitimacy of international criminal law, and competing tensions within that body of law. They will address these issues from differing perspectives, and I expect they will take sharply contrasting views. In doing so, they will provide us with insight into international legal argumentation, interpretive attitudes of courts and tribunals, and competing philosophies of the nature of international criminal law. My thanks to each of them for taking the time to participate.
Legality & International Criminal Law[double dagger]
By Beth Van Schaack§
§ Associate Professor, Santa Clara Law School.
The principle of nullum crimen sine lege (hereinafter "NCSL") provides a fundamental defense to a criminal prosecution. In addition to protecting rule of law values, the principle also polices the separation of powers by ensuring legislative primacy, and thus democratic legitimacy, in substantive rulemaking. NCSL has constitutional significance in many national systems and is a feature of all of the omnibus human rights instruments. Nonetheless, starting with the post-World War II proceedings and continuing with the ad hoc international tribunals, international criminal law (ICL)...