Editing Nulla poena sine lege (section)

==In cases of universal jurisdiction==
The question of [[jurisdiction]] may sometimes come to contradict this principle. For example, [[customary international law]] allows the prosecution of [[pirate]]s by any country (applying [[universal jurisdiction]]), even if they did not commit crimes at the area that falls under this country's law. A similar principle has appeared in the recent decades with regard to crimes of [[genocide]] (see [[genocide#Crime|genocide as a crime under domestic law]]); and [[UN Security Council Resolution 1674]] "reaffirms the provisions of paragraphs 138 and 139 of the 2005 [[World Summit Outcome Document]] regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity"<ref>[http://domino.un.org/UNISPAl.NSF/361eea1cc08301c485256cf600606959/e529762befa456f8852571610045ebef!OpenDocument Resolution 1674 (2006)]  {{webarchive |url=https://web.archive.org/web/20090223154915/http://domino.un.org/UNISPAl.NSF/361eea1cc08301c485256cf600606959/e529762befa456f8852571610045ebef!OpenDocument |date=February 23, 2009 }}</ref> even if the State in which the population is being assaulted does not recognise these assaults as a breach of domestic law. However, it seems that universal jurisdiction is not to be expanded substantially to other crimes, so as to satisfy ''Nulla poena sine lege''.

Since the [[Nuremberg Trials]], [[penal law]] is taken to include the prohibitions of international criminal law, in addition to those of [[domestic law]].<ref>The [https://ssrn.com/abstract=1347126 normative content of nulla poena] in international law is developed by Shahram Dana in "Beyond Retroactivity to Realizing Justice: The Principle of Legality in International Criminal Law Sentencing" published in 99 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 857 (2009).</ref>  Thus, prosecutions have been possible of such individuals as [[Nazism|Nazi]] [[war criminal]]s<ref>[[Nuremberg Principles]] I & II state; "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." and "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law" respectively.</ref> and officials of the [[German Democratic Republic]] responsible for the [[Berlin Wall]],<ref>Case of Streletz, Kessler and Krenz v. Germany (Applications nos. 34044/96, 35532/97 and 44801/98) (2001) 33 E.H.R.R. 31</ref> even though their deeds may have been allowed or even ordered by domestic law. Also, courts when dealing with such cases will tend to look to the letter of the law at the time, even in regimes where the law as it was written was generally disregarded in practice by its own authors.{{citation needed|date=October 2021}}

However, some legal scholars criticize this,{{who|date=October 2021}} because generally, in the legal systems of mainland Europe where the maxim was first developed, "penal law" was taken to mean [[Statutory law|statutory]] penal law, so as to create a guarantee to the individual, considered as a fundamental right, that he would not be prosecuted for an action or omission that was not considered a crime according to the statutes passed by the legislators in force at the time of the action or omission, and that only those penalties that were in place when the infringement took place would be applied.{{citation needed|date=October 2021}} Also, even if one considers that certain actions are prohibited under general principles of international law, critics{{who|date=October 2021}} point out that a prohibition in a general principle does not amount to the establishment of a crime, and that the rules of international law also do not stipulate specific penalties for the violations.

In an attempt to address those criticisms, the statute of the recently established [[International Criminal Court]] provides for a system in which crimes and penalties are expressly set out in written law, that shall only be applied to future cases. See Article 22 of the [[Rome Statute of the International Criminal Court|Rome Statute]], however this is under the proviso, in Article 22(3) that this only applies to the ICC, and "doesn't affect the characterization of any conduct as criminal under international law independently of [the Rome Statute]".<ref>{{Cite book|url=https://en.wikisource.org/wiki/Rome_Statute_of_the_International_Criminal_Court#Article_22:_Nullum_crimen_sine_lege|title=Rome Statute of the International Criminal Court|last=Nations|first=United}}</ref>

The principle of nulla poena sine lege, insofar as it applies to general criminal law, is enshrined in several national constitutions, and international instruments, see [[European Convention on Human Rights]], article 7(1). However, when applied to international criminal/humanitarian law, the same legal instruments often allow for ex post facto application of the law. See ECHR, article 7(2), which states that article 7(1) "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."<ref>See also {{cite journal|last=Popple|first=James|author-link=James Popple|year=1989|title=The right to protection from retroactive criminal law|url=http://cs.anu.edu.au/~James.Popple/publications/articles/retroactive/clj.pdf|journal=Criminal Law Journal|volume=13|pages=251–62|issn=0314-1160|access-date=5 August 2014|number=4}}</ref>