36
Section 2:
Fundamental Principles
Article 2: Purpose and Limits of
Criminal Legislation
1. Criminal offenses and penalties must be prescribed only for acts threatening
or violating human rights and fundamental freedoms, as well as other rights
and social values guaranteed and protected by the constitution of [insert
name of state] or international law.
2. Criminal offenses and penalties must be prescribed only where the protec-
tion of human rights and fundamental freedoms, as well as other rights and
social values guaranteed and protected by the constitution of [insert name of
state] or international law, could not be realized without criminal justice
compulsion.
3. Criminal offenses, as well as the types and the range of penalties attached to
them, must be based upon:
(a) the necessity for criminal justice compulsion; and
(b) its proportionality with the degree and nature of the danger against
human rights and fundamental freedoms, as well as other rights and
social values guaranteed and protected by the constitution of [insert
name of state] or international law.
Commentary
In a post-conflict setting, the general public’s view of what the criminal law represents
is often shaped by unhappy past experiences, such as the law being used to oppress or
discriminate against the local population or to violate the fundamental rights and
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Article 2 • 37
freedoms of individuals or certain groups. The drafters thus considered it appropriate
to commence the MCC with a general affirmative statement of what the purpose of
criminal legislation is to be. This statement is a common feature of many criminal
codes around the world, and its inclusion is meant to signal a paradigm shift and an
affirmative statement of the manner in which the criminal law is to operate in the
future. Criminal law should no longer be able to be created at the whim of a govern-
ment, president, or legislature. It should serve a different and legally defined purpose.
The future promulgation of laws by the competent legislative body must be done
within the parameters of this article.
The rationale behind the criminal law is a complex philosophical question that has
been debated for centuries and is far beyond the scope of the present discussion. Arti-
cle 2 highlights a number of fundamental aspects of the criminal law that are particu-
larly important to emphasize in the context of a state emerging from conflict or in
states that have been ruled by oppressive regimes. First, the criminal law’s rationale is
to provide a framework to uphold the rights and maintain the security of society at
large through the criminalization and penalization of behavior that violates human
rights and fundamental freedoms—rights and values that are constitutionally guar-
anteed and rights that derive from international law.
Second, criminal offenses and penalties must not be prescribed where these rights
and values can be realized and protected through other means. The principle of
proportionality underlies this provision, meaning that use of the criminal justice sys-
tem is a measure of last resort and must be based upon necessity. This idea is some-
times known as the principle of minimum criminalization. The requirement that the
range of penalties be provided for by law is taken up later in the MCC. Reference
should be made to Section 12 of the General Part of the MCC and its accompanying
commentary.
Another point of note is that inherent in Article 2 is the notion that criminal law is
reflective of the particular society it governs and its mores or social values. Thus the
criminal law of each state, while it may be markedly similar to the law of other states,
will also have elements that are unique to its particular context.
Article 3: Principle of Legality
1. Criminal offenses and penalties must be prescribed only by law.
2. No penalty may be imposed upon any person for committing a criminal
offense that did not constitute a criminal offense prior to it being committed
and for which a penalty was not prescribed by law.
3. Paragraphs 1 and 2 do not prejudice the trial and punishment of any person
for any act or omission that, at the time when it was committed, was criminal
according to the general principles of law recognized by the community of
nations.
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38 • General Part, Section 2
4. The definition of criminal offense must be strictly construed, and the use of
analogy in the interpretation of a criminal offense is prohibited.
5. If the law was amended on one or more occasions after a criminal offense
was perpetrated, the law that most favors the accused must be applied.
6. A penalty that is heavier than the one that was applicable at the time a crimi-
nal offense was committed may not be imposed upon a person convicted of
that offense.
Commentary
The principle of legality is common to all legal systems and is based on the require-
ment of certainty of the law. Legal certainty is an inherent element of the general defi-
nition of the rule of law. While it is recognized by all legal systems, it is articulated in
a different manner in different systems, depending on the legal traditions to which
they adhere.
It is relevant to note that in applying the law, there cannot be a total absence of
judicial discretion. The MCC, for example, sets down the applicable defenses available
to a person who has committed a criminal offense, as required by the legality princi-
ple. Article 21, on necessity, sets out the interests that a person can protect by his or her
act of necessity, including “other protected interests.” This phrase requires judicial
interpretation to give it a legal meaning. The distinction between this discretion and
the sort of discretion found in systems that have a generally flexible attitude toward
judicial discretion, though, is that the discretion is limited and is defined by law, as
opposed to being a broad, open, and general one.
Article 3 articulates four elements that constitute the principle of legality: (1) the
law must not operate retroactively to prosecute and penalize a person for behavior that
was not classed as a criminal offense at the time the behavior was undertaken or where
no penalty was prescribed by law; (2) the law must be derived from a legislative act and
must be written; (3) the law must be specific and clear; (4) the use of analogy is pro-
hibited (this element includes the principle that where interpretations of the law con-
flict, they must be read in favor of the accused).
Paragraphs 1 and 2: These paragraphs are relatively self-explanatory and proclaim the
general principle of legality that criminal offenses and penalties must be prescribed by
law that is promulgated by the legislature. These principles are sometimes called nullum
crimen sine lege (no crime without law) and nulla poena sine lege (no punishment with-
out law). They are contained in the constitutions and criminal legislation of many
states and are included in international instruments such as the Universal Declaration
of Human Rights (Article 11), the International Covenant on Civil and Political Rights
(Article 15), the European Convention for the Protection of Human Rights and Fun-
damental Freedoms (Article 7), the African Charter of Human and Peoples’ Rights
(Article 7), and the American Convention on Human Rights (Article 9). The principles
contained in Paragraphs 1 and 2 provide a guarantee of protection from retroactive or
ex post facto laws, meaning that if a certain course of conduct was not contrary to
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Article 3 • 39
domestic criminal law at the time it was undertaken, then a person who engaged in
this conduct cannot subsequently be punished for it. The idea behind this right is that
individuals should have adequate notice of what the law is, what their legal rights and
obligations are, and what the consequences of their actions are. It also prevents arbitrary
use of power by the legislature and is a core component of the rule of law principle.
Criminal offenses must exist either in the criminal code or in another written
piece of legislation. This legislation must also set down specific penalties for each
criminal offense. Some states declare only maximum penalties for criminal offenses,
while other states declare both a minimum and a maximum penalty. Both approaches
comply with the principle of legality set out in the MCC. In some states that adopt a
more flexible approach to the principle of legality, penalties are often not set out in
legislation. This approach was not followed in the MCC. The drafters of the MCC
chose to follow a minimum-maximum penalty structure. Reference should be made
to Article 38 and its accompanying commentary.
Implicit in the principles set out in Paragraphs 1 and 2 lies the principle of specific-
ity, which holds that legislation on criminal offenses must be drafted clearly and in
such a way that a person may ascertain the legality of a particular course of conduct.
Legal provisions may not be overexpansive or imprecise. The International Covenant
on Civil and Political Rights (Article 15) states that “no one shall be held guilty of any
criminal offense on account of any act or omission which did not constitute a criminal
offense . . . at the time when it was committed.” The same wording is used in the Euro-
pean Convention for the Protection of Human Rights and Fundamental Freedoms
(Article 7), the African Charter on Human and Peoples’ Rights (Article 7), and the
American Convention on Human Rights (Article 9). In interpreting this provision,
the European Court of Human Rights held that implicit in this provision was the prin-
ciple that the law must be clear and certain (Baskaya and Okcuoglu v. Turkey, para-
graph 39). The court has also declared that a qualitative requirement of this provision
is that the law should be accessible and foreseeable. This requirement has implications
for a post-conflict environment, where new laws that are promulgated are often not
published in local languages or distributed to those who are to apply the law, such as
judges, lawyers, prosecutors, and police. During the course of the vetting process for
the Model Codes, many experts recounted instances in which laws drafted in the post-
conflict period were not even distributed to the judges who were to apply them. To
comply with the present article and international standards, efforts should be made to
publish the laws, in either an official journal or a collection, in print or electronically.
Public notices or awareness campaigns may also be required to inform the local popu-
lation of any changes in the law.
As regards the point discussed above about the degree of precision required for
criminal offenses, while the law must be sufficiently clear and precise, an element of
judicial interpretation will always remain. As stated by the European Court of Human
Rights, “However clearly drafted a legal provision may be, there is an inevitable ele-
ment of judicial interpretation. There will always be a need for elucidation of doubtful
points or for adaptation to changing circumstances” (Baskaya and Okcuoglu v. Turkey,
paragraph 39). This need for judicial discretion in interpreting the law is discussed
above, in the general commentary to Article 3.
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40 • General Part, Section 2
Paragraph 3: There is one exception to the general principle of nonretroactivity set out
in Paragraphs 1 and 2. It is contained in Article 15(2) of the International Covenant on
Civil and Political Rights, which provides that “[n]othing in this Article shall preju-
dice 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 recog-
nized by the community of nations.” Many commentators have interpreted this provi-
sion to mean that the criminal offenses of genocide, crimes against humanity, and war
crimes may be prosecuted even if they were not spelled out in national law at the time
of their commission because these acts have been recognized as criminal offenses in
international criminal law for many years. The definition of genocide was recognized
in international criminal law with adoption of the 1948 Genocide Convention. The
definitions of crimes against humanity and war crimes used in the MCC are based on
provisions in the Rome Statute of the International Criminal Court, adopted by gen-
eral agreement in July 1998. But the definition derived from the Rome Statute of the
International Criminal Court itself largely reflects customary international law and
“the general principles of law recognized by the community of nations.”
When these criminal offenses are prosecuted without recourse to a provision of
domestic law, consistent with Paragraph 3, instead of relying on domestic legal provi-
sions, recourse must be made to customary international law as the basis for the pros-
ecution. Just like international conventions, customary international law is recognized
as a source of international law (see Article 38 of the Rome Statute of the International
Court of Justice). In essence, a norm of customary international law is one that is rec-
ognized as general practice by states and that consequently creates obligations among
states. To mount a prosecution against a person in the absence of domestic criminal
provisions applicable at the time of commission of the criminal offense, the definitions
of the criminal offenses of genocide, crimes against humanity, and war crimes must
therefore be sourced from customary international law. The definition that should be
applied is the one that was recognized under customary international law at the time
the criminal offense was committed. Because the definitions of crimes against human-
ity have evolved considerably since they were first set out in the 1945 London Charter,
some care may be necessary in prosecuting cases that occurred before the Statute of
the International Criminal Court was adopted to ensure that texts are consistent with
customary international law in force at the time. If problems arise, reference for guid-
ance should be made to judgments of the ad hoc tribunals for Rwanda and the former
Yugoslavia, to national prosecutions and legislation, to work of authoritative bodies
such as the International Law Commission, and to academic commentators.
The prosecution of genocide, crimes against humanity, and war crimes may be
undertaken in a post-conflict environment where justice is sought for such criminal
offenses through the mechanism of the criminal justice system, even if these catego-
ries of crimes were not previously defined in national legislation. In the course of con-
sultation on the MCC, many experts highlighted the fact that the criminal codes of
many post-conflict states, such as Liberia and the Democratic Republic of the Congo
(DRC), often lacked any provisions defining these criminal offenses. Thus, if prosecu-
tions are to be brought against those accused of committing genocide, crimes against
humanity, or war crimes, those prosecutions must be based on customary interna-
tional law, as discussed above. This rule makes prosecutions much more complicated
IOP573A_ModelCodes_Part1.indd 40 6/25/07 10:13:11 AM
Article 3 • 41
than those based on provisions of domestic criminal law. In the alternative, a state
could introduce legislation criminalizing genocide, crimes against humanity, and war
crimes and prosecute these offenses retrospectively under this legislation without vio-
lating the principle of legality.
Paragraph 4: This paragraph sets forth the “strict construction” principle, a common
feature of the principles of interpretation of criminal law in many states. Related to
this principle is the ban on the use of analogy, an aspect of the principle of legality. The
ban on analogy applies to the interpretation of substantive provisions of law. It also
governs the manner in which evidence is assessed through the principle of in dubeo pro
reo, meaning that where there are doubts relating to evidence, the court should adopt
the interpretation most favorable to the accused person.
Paragraphs 5 and 6: Related to the ban on the use of analogy is the principle that where
interpretations of the law conflict, the one that most favors the accused should be
applied. Paragraph 5 sets out this general principle, while Paragraph 6 applies it to the
interpretation of penalties.
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