1. The Law Library of Congress Slide 1 The Nullum Crimen Principle and the Trial of Saddam Hussein Issam Michael Saliba March 2, 2006 The Law Library of Congress Serving the United States Congress Since 1832

2. The Law Library of Congress Slide 2 Basic Facts Saddam Hussein is charged with crimes against humanity committed during 1982-83. “Crimes against humanity” is an international offense. There was no Iraqi law addressing crimes against humanity. The 2003 CPA statute is the first Iraqi law addressing crimes against humanity. Law No. 10/05 replaced the 2003 statute. Can the court convict under law No. 10 for acts committed in 1982/83 without violating the legality principle? What is the legality principle?

3. The Law Library of Congress Slide 3 The Nullum Crimen Principle in International Law Universal Declaration of Human Rights, Article 11.2 (1948): No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal 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 penal offence was committed.

4. The Law Library of Congress Slide 4 The Nullum Crimen Principle in International Law (continued) International Covenant on Civil and Political Rights, Article 15, sec. 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 when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

5. The Law Library of Congress Slide 5 The Nullum Crimen Principle in International Law (continued) European Convention on the Protection of Human Rights and Fundamental Freedoms, Article 7, sec. 1 (1950). 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.

6. The Law Library of Congress Slide 6 The Nullum Crimen Principle in National Law United States, sections 9 and 10 of Article I of the Constitution Iraq, section 2 of Article 19 of present Constitution: There shall be no crime and no punishment without a stipulation [by law]; there shall be no punishment except for an act the law considers a crime at the time of its commission; and no punishment shall be imposed that is more severe than the punishment in effect at the time of the commission of the crime. Iraq, Article 1 of the Penal Code: There shall be no punishment for an act or omission except on the basis of a law so stipulating at the time of its occurrence. And no penalties or precautionary measures shall be imposed without being prescribed by law.

7. The Law Library of Congress Slide 7 Can a National law Incorporating an International crime Apply Retrospectively? There are are four major court decisions from different countries on the issue, with two differing points of view Canada and Spain United Kingdom and France

8. The Law Library of Congress Slide 8 Canada: The Finta Case A 1987 law gave Canadian courts extra-territorial jurisdiction for crimes against humanity. Imre Finta was charged for crimes against humanity committed in 1944. Finta was acquitted by a jury trial, but the case reached the Supreme Court. Did the 1987 law violate the nullum crimen principle of the Canadian Charter? Court adopted the notion of an act "illegal but not criminal" at the time it was committed.

9. The Law Library of Congress Slide 9 Spain: The Scilingo Case In 2001, Adolfo Scilingo was arrested in Spain and charged with international offenses committed in Argentina. In 2004, the Supreme Court (Tribunal Supremo) confirmed the jurisdiction of the National Court (Audiencia Nacional) to try Scilingo. In April 2005, Scilingo was convicted and sentenced to 640 years in prison. The conviction relied on article 607 bis of the Spanish penal code. Article 607 bis was added to the Spanish Penal Code in 2004. How did the Court justify its decision?

10. The Law Library of Congress Slide 10 United Kingdom: The Pinochet Decision (Regina v. Bartle, et al.) Universal jurisdiction for local courts was granted in the UK by the Criminal Justice Act, 1988. Spain requested the extradition of Pinochet, while he was in London, to stand trial for torture and conspiracy to torture committed in Chile. Double criminality rule requirements. The House of Lords held that the alleged acts must be crimes under UK law at the date of commission. Were the alleged acts extraditable?

11. The Law Library of Congress Slide 11 France: Decision on Crimes Committed During the Algerian War France amended article 211 of its penal code to incorporate crimes against humanity into French law in 1994. A subsequent complaint alleged commission of crimes against humanity in Algeria between 1955 and 1957. Could the investigation proceed on the basis of article 211? Could the investigation proceed on the basis of the charter of the Nuremberg Tribunal? Could principles of international customary law provide a legal basis for proceeding in the investigation?