- The Principle of Legality in International and Comparative Criminal Law
At its core, the principle of legality refers to the non-retroactivity of crimes and punishments (nullum crimen sine lege and nulla poena sine lege, respectively). This principle means that an individual can only be prosecuted and punished for conduct that was defined as a crime, and for which a punishment was recognized, at the time when the impugned conduct occurred.1 Although the principle of legality is a manifestation of the broader notion of rule of law,2 it has received limited attention within international and comparative criminal law. Kenneth Gallant’s monumental effort steps into and amply fills this gap in the literature. In The Principle of Legality in International and Comparative Criminal Law, which was published in the prestigious Cambridge Studies in International and Comparative Law series, Gallant delivers the first book-length study of the principle of legality in international criminal law. He also conducts the first survey on the status of the principle of legality in all national constitutions. On all scores, Gallant, who serves as Professor of Law at the University of Arkansas-Little Rock, provides a masterful tour-de-force.
In the book, Gallant assesses the status of the principle of legality and advances several normative arguments. In particular, he argues the following:
1. “Reasonably strong versions”3 of nullum crimen and nulla poena have become rules of customary international law. These rules bind states and international organizations and apply in national and international criminal law.4 The community of nations also recognizes these rules as general principles of law.
2. Nullum crimen and nulla poena “truly apply in international criminal law.”5
3. “The exercise of criminal jurisdiction in violation of the rule of non-retroactivity of crimes and punishments is a violation of an international human right of the accused.”6 [End Page 801]
4. The requirement of individual criminal responsibility and the prohibition of collective punishment are rules of customary international law, binding states and international organizations, and also constitute general principles of law recognized by the community of nations. However, Gallant notes that the evidence for this proposition is not quite as broad as for the status of the non-retroactivity of crimes and punishments.7
The Principle of Legality is meticulously researched and well-structured. Gallant provides a coherent organizational framework in which the subject-matter is scientifically analyzed in carefully designed sections and subsections. Furthmore, his writing is very clear and accessible.
Chapter 1 introduces nullum crimen, nulla poena sine lege. Gallant identifies four purposes for the principle of legality: the protection of individual human rights, legitimacy of governance, assigning lawmaking authority to the correct organ of government, and promoting the purposes of criminalization. In this regard, Gallant also introduces related themes, such as the requirement of individual criminal responsibility, the prohibition of collective punishment, and doctrines that could erode the principle of legality.
Chapters 2 and 3 offer a historical review of the principle of legality in criminal law from before World War II to the Nuremberg and Tokyo trials. Gallant’s analysis of the status of legality in the Nuremberg and Tokyo trials is fascinating. Through a careful combing of the historical record, the counsels’ arguments, and the negotiations among parties, Gallant concludes that although nullum crimen was not a formal principle that limited national sovereignty at the time, it certainly was a principle of justice. Gallant’s discussion of Nuremberg—specifically the claims of defense counsel and the divisions among the judges—is gripping reading;8 his argument that the views of the French participants on legality were extremely important is a novel contribution to the literature; and his discussion on the status of legality at the Tokyo Tribunals is detailed and instructive.9
Chapter 4 covers activities following the Nuremberg and Tokyo trials. Gallant concludes that this is the period in which nullum crimen, nulla poena sine lege moved from the level of a principle of justice to the level of binding law. In this regard...