Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals

Schaack argues that the methodology developed by the European Court of Human Rights to enforce the articulation of the nullumn crimen sine lege, nulla poena sine lege ("no crime without law, no punishment without law") (NCSL) principle in its constitutive document--the European Convention for the Protection of Human Rights and Fundamental Freedoms--suggests that the NCSL jurisprudence has not compromised the fundamental fairness of international criminal law (ICL). Today's defendants were on sufficient notice of the foreseeability of ICL jurisprudential innovations in light of extant domestic penal law, universal moral values expressed in international human rights law, developments in international humanitarian law and the circumstances in which it has been invoked, and other dramatic changes to the international order and to international law brought about in the postwar period. Schaack argues that any lingering concerns about the rights of the defendants can and should be mitigated by sentencing practices--to a certain extent already in place and employed by the ad hoc criminal tribunals--that are closely tethered to extant domestic sentencing rules governing analogous domestic crimes.