The Principle of Legitimacy (Legality) in International Criminal Law
Prof. Ali Al-Kahwaji
Professor of Criminal Law – Kuwait International Law School
Abstract:
International Criminal Law is a recent and important branch of Public International Law. Although International Criminal Law is closely related to Public International Law, it is technically linked with domestic criminal law from which it generates its legal principles – after accommodating these principles – to build its rules and become independent.
One of the important principles of International Criminal Law is the principle of “legitimacy” of crimes and penalties. This is because the understanding of this principle is essential to match the principles of this law.
International customs play a substantial and direct role in identifying international crimes, and showing their principles and the elements of each principle. It has become necessary to amend this notion in order to make it easier for paraphrasing the law. According to such wording, it will be logically and legally acceptable to say that the legal principle that is appropriate to be a source of punishment and criminalization can be either a written or customary rule. Consequently, it will be interpreted in a specific and limited way in the light of this result. It also should not act retroactively, whether it is a written or customary rule. Based on this comparative study, the rule of punishment and criminalization can have a retroactive effect if it is for the benefit of the accused people.