Regional human rights instruments

The most prominent regional human rights treaties comprise the principle of legality. However, the provisions establishing nullum crimen significantly vary responding to regional specificities and depending on the moment of adoption, reflecting the progressive evolution of the principle in the international arena from the end of World War II to nowadays. An analysis of the elements of the legality principle enshrined in the regional human rights treaties is provided in this section. The interpretation and application of these provisions by the regional human rights courts will be studied below in Chapter 5.

3.1.4.1 European Convention on Human Rights

In the aftermath of the Second World War, and deeply influenced by the atrocities committed during the conflict and by the new international context of the Cold War, some European countries agreed to create in 1949 the Council of Europe.⁷⁵¹ According to its Statute, the main objectives of the organization are the pursuit of peace through international cooperation and the promotion of the principles grounding a ”genuine” democracy, as individual freedom, political liberty and the rule of law.⁷⁵² The ECHR was enacted to make effective and to give a concrete content to the obligations assumed by the member States regarding the protection of human rights.⁷⁵³ The prohibition of retroactive crimes and punishments is included in Article 7, entitled

“No punishment without law”. The Article contains the Nuremberg provision, an

750 Gallant, The Principle of Legality in International and Comparative Criminal Law, 202.

751 Originally founded by ten States (Belgium, Denmark, France, Ireland, Italy, Luxemburg, the Netherlands, Norway, Sweden and the United Kingdom), the Council of Europe is currently composed by forty-seven member States.

752 Council of Europe, Statute of the Council of Europe, Preamble and Art. 15, May 1949, ETS 1.

753 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.

The Convention came into force the 3 September 1953. Currently, the Convention has been ratified by the forty-seven member States of the Council of Europe have ratified the Convention. In addition, the European Union, as an international organization, is negotiating its accession to the Convention, what would be an interesting novelty in international law.

express reference to international law as a source of criminalization and the nullum poena principle, but it remains silent regarding lex mitior.

“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 recognised by civilised nations.”⁷⁵⁴ The negotiations and the final text of the Convention were deeply influenced by the recently approved UDHR and by the ICCPR Draft.⁷⁵⁵ This was especially true regarding the principle of legality since in the first ECHR drafts the non-retroactivity provision was just an express reference to UDHR Article 11.⁷⁵⁶ Even though the final version of the Convention incorporates a separate nullum crimen article, its wording is almost identical to the corresponding provision in the Draft International Covenant at the time the ECHR was adopted.⁷⁵⁷

Article 7 of the ECHR includes an express reference to international law as source of criminalization, considering that the nullum crimen rule would be respected if the punishable action was prohibited at the time of commission by either national, or international law. However, it is interesting to mention that the Swedish delegation forced the inclusion of the following phrase in the statements of reason of the Report of the Committee of Experts: “(…) the Convention does not compel Member States to

754 ECHR, Art. 7.

755 In fact, the Committee of Ministers of the Council of Europe opposed at first the drafting of an European Convention to avoid duplicating and interfering with the United Nations works for the International Covenants. For a detailed analysis of the negotiations and the preparatory works for the ECHR, see Lledó, ‘El Principio de Legalidad En El Derecho Penal Internacional’, 101–10.

756 Council of Europe, ‘Preparatory Work on Article 7 of the European Convention on Human

Rights’ (Strasbourg, 21 May 1957), 2,

https://www.echr.coe.int/LibraryDocs/Travaux/ECHRTravaux-ART7-DH(57)6- BIL1674978.pdf.

757 Lledó, ‘El Principio de Legalidad En El Derecho Penal Internacional’, 104; Gallant, The Principle of Legality in International and Comparative Criminal Law, 187.

apply, as a criminal measure, a rule of international law which is not incorporated in the national law.”⁷⁵⁸

As mentioned above, Article 7 of the ECHR includes the so-called Nuremberg clause.⁷⁵⁹ The United Kingdom proposed the addition of this second paragraph claiming that without it, the “article might be thought to impugn the validity of the judgements of the Nuremberg Tribunal.”⁷⁶⁰ Despite the provision was only incorporated to the text in the final stages of the negotiations, the concern about the effect of the legality Article on the post-World War II trials was very present throughout the travaux preparatoires.

In this respect, it is interesting to comment the amendment presented by Luxemburg arguing that the provision prohibiting retroactivity “appears to be too absolute.”⁷⁶¹ It was claimed that, “in international law, the principle that penal law cannot be retrospective does not apply.”⁷⁶² Similarly, the delegation of Luxemburg argued that in the aftermath of World War II many national and international laws were passed rejecting both the nullum crimen and the nulla poena rules. While the prohibition of retroactive laws was a general principle shared by all nations, it was not

“universally admitted that there are no possible exceptions to this rule.”⁷⁶³

Indeed, it was claimed that under certain circumstances States are forced to have recourse to retroactive criminal laws, as it was the case after Second World War.

Accordingly, Luxemburg considered that the incorporation in the ECHR of an article on retroactivity in the same terms than the UDHR Article 11 “could be considered as a moral condemnation of those laws.”⁷⁶⁴ Thereby, the delegate proposed an “attenuated”

version of the Article, with a “more supple phraseology”, and referring as sources of

758 Council of Europe, ‘Preparatory Work on Article 7 of the European Convention on Human Rights’, 6.

759 ECHR, Art. 7(2). A similar paragraph was finally discarded from the UDHR, but less than two years latter it was incorporated to the ICCPR Draft. Draft First International Covenant on Human Rights, Art. 11, E/1681, Annex I, p.17, as cited in Gallant, The Principle of Legality in International and Comparative Criminal Law, 187. In fact, at the time the ECHR was approved, the ICCPR Draft already included the Nuremberg clause.

760 Council of Europe, ‘Preparatory Work on Article 7 of the European Convention on Human Rights’, 4.

761 Ibid., 5.

762 Ibid.

763 Ibid.

764 Ibid.

criminalization to national and international law, and to the general principles of law as recognised by civilised nations.⁷⁶⁵

The concerns of Luxemburg were clearly reflected in the Report of the Committee of Experts on Human Rights to the Committee of Ministers: “(…) the Committee stressed that this text did not affect laws which, under the very exceptional circumstances at the end of the second world war, were passed in order to supress war- crimes, treasons and collaboration with the enemy, and did not aim at any legal or moral condemnation of these laws.”⁷⁶⁶

Together with the amendment to incorporate the Nuremberg provision to the legality Article, the United Kingdom proposed as well the removal of the nullum poena rule.⁷⁶⁷ Not considering the protection against retroactive increased punishments a fundamental human right, the British delegation had proposed as well the suppression of nullum poena from the UDHR and the ICCPR. The amendment was finally rejected, and Article 7 of the ECHR was adopted including nullum poena.

3.1.4.2 The American Convention on Human Rights

The American Convention on Human Rights (ACHR), also known as the Pact of San José, was adopted on 22 November 1969 and came into force in 1978.⁷⁶⁸ An Article establishing the traditional legality principle was present since the Convention’s first discussions and negotiations, but it was not the object of much debate or dispute during any of the drafting phases of the treaty.⁷⁶⁹ Finally, three separated Articles of the Convention (Articles 7, 8 and 9) contained different aspect of the legality principle.

765 “No one shall be held guilty of any act or omission which, at the time when it was committed, did not constitute a delinquent act, either under national or international law, nor according to the general principles of law as recognised by civilised nations.” As cited in Council of Europe, 6.

766 Council of Europe, 10.

767 Ibid., 8.

768 Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November 1969, 1114 UNTS 123, available at: https://bit.ly/3hkLjaf.

769 Federico Andreu Guzmán, Retroactividad Penal de Crímenes Internacionales, ed. Comisión Colombiana de Juristas (Bogotá, Colombia: Opciones Gráficas Editores Ltda., 2012), 24. See, Organization of American States (OAS), Actas y Documentos de la Conferencia Especializada Interamericana sobre Derechos Humanos, San José, Costa Rica, 7-22 November 1969,

OEA/Ser.K/XVI/1.2, p. 206, available at:

https://www.oas.org/es/cidh/mandato/basicos/actas-conferencia-interamericana-derechos- humanos-1969.pdf.

Article 9, entitled “Freedom from Ex Post Facto Laws”, establishes the usual nullum crimen, nulla poena rule:

“No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.”⁷⁷⁰

Article 7, on the right to personal liberty, establishes a broader and more procedural version of the legality principle. The provision can be interpreted as extending the prohibition of retroactivity to non-criminal reasons for imprisonment, as could be mental incompetence.⁷⁷¹

“No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.”⁷⁷²

As it will be closely examined in Chapter 5, the Inter-American Court of Human Rights (IACtHR) has interpreted the ACHR legality provisions in a rather expansive manner, broadening the scope of the principle further than required by the wording of the Convention.⁷⁷³ Contrary to the ECHR or the international criminal tribunals other than the ICC, the IACHR has interpreted the legality principle as including the lex praevia, scripta, certa and stricta requirements.⁷⁷⁴ It is also worth noting that the ACHR grants special protection to the legality principle considering it as a non-derogable human right.⁷⁷⁵

ACHR Article 9 establishes that no one should be condemned for a conduct that at the moment of commission was not considered criminal under “the applicable law”. Contrary to the legality provisions in the treaties and conventions studied above,

770 ACHR, Art. 9. In the Spanish version Article 9 is entitled Principio de Legalidad y de Retroactividad (Principle of Legality and Retroactivity).

771 Gallant, The Principle of Legality in International and Comparative Criminal Law, 204.

772 ACHR, Art. 7(2).

773 Héctor Olásolo, ‘El Principio Nullum Crimen Sine Iure y El Elemento Contextual Del Delito de Genocidio’, in La Evolución de La Definición y La Aplicación Del Delito de Genocidio. La Contribución Iberoamericana y El Legado Del Tribunal Penal Internacional Para La Ex- Yugoslavia, vol. 9 (Valencia, Spain: Tirant lo Blanch, 2019), 440; Olásolo, ‘El Principio Nullum Crimen Sine Iure En El Derecho Internacional Contemporáneo’, 20.

774 For an analysis of the case law of the international criminal tribunals, see below, Chapter 4.

775 ACHR, Art. 27.

ACHR Article 9 does not refer to crimes under national or international law, but to the applicable law. The Article does not mention neither the crimes under the general principles of law.

To clarify the scope of the expression “the applicable law” we should refer to the ACHR’s travaux préparatoires. Despite Article 9 was not the object of much debate or dispute during the drafting and negotiating phases of the treaty, some statements of the Ambassador Gonzalo García Bustillos, Chairman of the negotiating Commission I, are of significant relevance.⁷⁷⁶ Responding to an amendment aiming to clarify the scope of the notion “applicable law”, García Bustillos expressed that it was not necessary to specify “national or international law” since the expression “applicable law” included both.⁷⁷⁷ Likewise, the doctrine considers that international law is to be accepted as a source of criminalization.⁷⁷⁸ Thus, the prosecution of conducts that at the time of commission were considered criminal under international law but not under domestic legislation, would respect the legality principle as established in Article 9.⁷⁷⁹

The ACHR establishes in its Article 8, on the right to a fair trial, the prohibition of ex post facto created courts. Responding to an historical experience of retroactively created courts in many American States, the ACHR contains the stronger protection against ex post facto jurisdiction of all human rights treaties.⁷⁸⁰ This way, Article 8 establishes that:

776 Andreu Guzmán, Retroactividad Penal de Crímenes Internacionales, 24.

777 Organization of American States (OAS), Records and Documents of the Inter-American Specialized Conference on Human Rights, Records of the 8^th Session of Commission I, Costa Rica, 13 November 1969, OEA/Ser.K/XVI/1.2, p. 206, available at:

https://www.oas.org/es/cidh/mandato/basicos/actas-conferencia-interamericana-derechos- humanos-1969.pdf.

778 Among others, Héctor Faúnez Ledesma, Administración de Justicia y Derecho Internacional de los Derechos Humanos (El Derecho a un juicio Justo) (Caracas: Ed. Universidad Central de Venezuela – Facultad de Ciencias Jurídicas y Políticas, 1992), 361; Daniel O’Donnell, Protección internacional de los derechos humanos, 2a ed. (Lima: Comisión Andina de Juristas, 1989), 131, as cited in Andreu Guzmán, Retroactividad Penal de Crímenes Internacionales, 24.

According to Gallant nothing indicates that international law should be excluded as a source of criminalization. Gallant, The Principle of Legality in International and Comparative Criminal Law, 204.

779 Sergio García Ramírez and Julieta Morales Sánchez, ‘Consideraciones sobre el principio de legalidad penal en la jurisprudencia de la Corte Interamericana de Derechos Humanos’, Cuestiones constitucionales, no. 24 (2011): 221.

780 Gallant, The Principle of Legality in International and Comparative Criminal Law, 205.

Scholars as De Souza Dias consider this as part of a trend towards an expansion of the scope of the legality principle to cover certain procedural human rights. Despite admitting that this approach is not yet widespread the author claims that, as international criminal law develops, it

“Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law (…).”⁷⁸¹

This general prohibition of retroactively created courts faces a rather complex situation when a tribunal prosecutes permanent or continuous crimes, as enforced disappearances, very frequent in the American experience.⁷⁸² The IACHR has faced this problem regarding its own competence ratione temporis when addressing permanent crimes originated before its establishment or before the relevant Member State granted competence to the Court. The IACHR has considered that its jurisdiction ratione temporis over these continuous or permanent crimes is consistent with Article 8 if the crimes persisted after the State’s recognition of the Court’s jurisdiction.⁷⁸³

The second part of ACHR Article 9 establishes, in a similar language to that used in other human right treaties, the prohibition of imposing a heavier penalty “that the one that was applicable at the time the criminal offense was committed”.⁷⁸⁴ It should be noted that contrary to the ECHR and the UDHR, and following the novelty introduced by the ICCPR adopted only three years before, ACHR Article 9 includes the mandatory retroactivity of lighter penalties (lex mitior). Thus, it establishes that

“If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.”⁷⁸⁵

becomes less and less justifiable to apply procedural rules retrospectively. Talita De Souza Dias,

‘Retroactive Recharacterisation of Crimes and the Principles of Legality and Fair Labelling in International Criminal Law’ (University of Oxford, 2019), 80.

781 ACHR, Art. 8(1).

782 The compatibility of ACHR Article 8 and the prosecution of continuous crimes as enforced disappearance is analysed in García Ramírez and Morales Sánchez, ‘Consideraciones sobre el principio de legalidad penal en la jurisprudencia de la Corte Interamericana de Derechos Humanos’, 223–24.

783 Heliodoro Portugal v. Panama, Preliminary Objection, Merits, Reparations and Costs, 12

August 2008, para. 25, available at:

https://www.corteidh.or.cr/docs/casos/articulos/seriec_186_ing.pdf; Ticona Estrada et al. v.

Bolivia, Merits, Reparations and Costs, 27 November 2008, paras 29-30, available at:

https://www.corteidh.or.cr/docs/casos/articulos/seriec_191_ing.pdf. As analysed in García Ramírez and Morales Sánchez, 224.

784 ACHR, Art. 9. Shahram Dana, ‘Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Law Sentencing’, Journal of Criminal Law and Criminology 99 (2009): 867; De Souza Dias, ‘Retroactive Recharacterisation of Crimes and the Principles of Legality and Fair Labelling in International Criminal Law’, 60.

785 ACHR, Art. 9. An analysis of the application of the ACHR lex mitior rule in Mokhtar,

‘Nullum Crimen, Nulla Poena Sine Lege: Aspects and Prospects’, 49.

3.1.4.3 The African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples’ Rights (ACHPR), also known as the Banjul Charter, was adopted on 27 June 1981 and came into force in 1986.⁷⁸⁶ Its Article 7(2) contains the nullum crimen, nulla poena principle, but the wording is significantly different compared to the legality provisions of other human rights instruments. Anyhow, despite lex mitior is not included, the non-retroactivity rule in the ACHPR is at least as broad as in the UDHR or the ICCPR.⁷⁸⁷

“No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.”⁷⁸⁸ The drafters of the Charter were concerned about putting an end to existing abuses of certain authoritarian States. Article 7(2) was an instrument to that end, forbidding for example the use of analogies, except when it is to the benefit of the accused (analogy in favorem).⁷⁸⁹ It should be noted that despite a rather different wording, ACHPR Article 7(2), as ACHR Article 9, does not contain a specific reference to national or international law as acceptable sources of criminalization.

A novelty in the ACHPR legality provision compared to other human rights instruments is the express recognition of the principle of the individual nature of penalties, establishing that “(…) Punishment is personal and can be imposed only on the offender.”⁷⁹⁰ While collective, communal or family punishments are explicitly prohibited in some humanitarian law treaties, it is not the case in human rights

786 Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev.5, 21 I.L.M. 58 (1982), available at:

https://www.achpr.org/legalinstruments/detail?id=49.

787 Gallant, The Principle of Legality in International and Comparative Criminal Law, 205.

788 ACHPR, Art. 7(2). In the same sense, ACHPR Article 6 also includes the non-retroactivity rule:

“Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”

789 Solange Ngono, ‘Article 7.2’, in La Charte Africaine Des Droits de l’homme et Des Peuples et Le Protocole y Relatif Portant Création de La Cour Africaine Des Droits de l’homme:

Commentaire Article Par Article, by Maurice Kamto, Collection de Droit International 67 (Bruxelles: Editions Bruylant Editions de l’Université de Bruxelles, 2011), 197.

790 ACHPR, Art. 7(2).