The principle of legality in international lawa study towards the reconciliation of justice and legality

Abstract

The principle of legality is a fundamental element of domestic and international criminal law systems, requiring crimes and punishments to be established by law at the time of commission to provide protection and legal certainty to individuals. Within the framework of the rule of law, criminal prosecutions aim to render justice and punish those responsible, but also to rigorously respect the rights of the defendants. However, particularly when prosecuting past atrocities, these rights and principles collide, in what can be summarized as a conflict between justice and legality. The principle of legality is at the junction of this tension and can tilt the balance one way or another. Depending on how the principle is interpreted and applied, the results might be radically different. While the strongest versions of legality could prevent prosecutions and lead to impunity, the laxer or less exigent notions could involve convictions without fair trial guarantees. Considering the recent emergence of certain international rights of the victims and States obligations to prosecute serious human rights violations, the aim of this research is to determine the actual content and legal status of the international principle of legality, and to assess legal techniques and interpretations aiming the reconciliation of the competing demands of justice and legality.