Practice Relating to Rule 101. The Principle of Legality
In its judgment in the Al-Dujail case in 2006, the Iraqi High Tribunal stated:
Is the principle of criminal legality (Crimes and Penalties according to legal provisions) applied in international criminal law as the fact is in the internal law of each country? Is it not permissible in international law to punish only for actions given the nature of crime by international law at the time those actions were committed?
The answer to these questions requires more efforts to reach the truth from the legal side. In 1948 and specifically on September 10 of the same year, the Universal Declaration of Human Rights was issued, adopted and published publicly by the U.N. general assembly resolution n° 217 thousand (D-3) stipulated in article February 11 therein that “any person shall not be condemned by a crime because of any action or refraining from action that was not in due time considered a crime by virtue of the national or international law, also no penalty is imposed thereon more intensive than the penalty in force at the time the criminal action was committed”.
This Universal Declaration of Human Rights is very important in adopting and determining the concept of the principle of the legality of crimes and penalties and the principle of non-retroactivity in international criminal law. The concept of these principles by virtue of the declaration is not limited to what is adopted by the internal laws of the different countries as a necessity that the action should be stipulated as a punishable crime when committed in the national laws of their countries, but instead the concept of this principle in international criminal law extends to comprise international crimes.
So the action or prevention should form an international crime punishable by virtue of international law, also this action or refraining from action shall be considered (an international crime) when committed, and the same if the origin of this crime and penalty exists in international customs or in international conventions and treaties.
Our court believes that what is stated in the Universal Declaration of Human Rights is at least obligatory for the member countries of the U.N. and Iraq is a constituent member in this international organization and therefore it is obligatory according to the principles stated in this proclamation without the need to stipulate it in the interior law.
This opinion endorses the provisions of article 15 (of the International Covenant on Civil and Political Rights) which was adopted and presented for signature and ratification and enrolment by the UN General Assembly resolution (2200) dated December 16, 1966 effective as of March 23, 1976 ratified by Iraq in 1971.
The aforementioned article stipulated that:
“1) any person shall not be condemned by a crime because of any action or refraining from action that at the time did not constitute a crime by virtue of the national or international law, also no penalty is imposed thereon more intensive than the penalty in force at the time the criminal action was committed, and if it happened after the committed crime, since the law stipulates a less commuted penalty, then the perpetrator of the crime shall benefit from the commutation.
2) Nothing in this article infringes on the trial and the punishment of any person for any action or refraining from action upon committing a crime according to the general principles of law adopted by the U.N.”
It goes without saying, that the Universal Declaration of Human Rights and the special International Covenant on Civil and Political Rights have an international nature and Iraq is committed to the provisions stated therein for the aforementioned reasons.
However, we see in international criminal law acts considered as international crimes having another aspect differing from what is stated in the interior law, this is because the nature of international law being a customary law (unwritten), while the principle of the crimes and legal penalties and what results therefrom, did not develop except under the light of the written law. And the outcome is that the principle disagrees with the custom law, thus pursuant to this principle, the act may become subject to punishment if the said principle is stipulated in the legislation, for it is based on the written law, and therefore it is impossible to apply this principle on the customary regulations. But this does not mean that this principle cannot be absolutely applied in international criminal law.
It is true that this law is originally a customary law (based on customs), but nonetheless, it can be applied in this law in a way that differs from the way it is applied in national laws. For it is difficult to imagine that international law includes previous provisions by which the crimes and penalties are determined similarly as they are determined in the domestic law, i.e. it is difficult to find legal specimen outlined in specified formulas in international criminal law because it differs from the interior law of the various countries from several aspects.
It is true that international criminal law and international humanitarian law have developed towards codification, and significant efforts were exerted in this direction; especially post-Geneva Conventions and the Convention on the Prevention and Punishment of the Crime of Genocide, and finally after sanctioning the basic system of the International Criminal Court (Rome Statute). However, the fact indicates till now, to a large extent, especially concerning crimes against humanity, that bestowing the nature of crimes upon acts which are international crimes is done in the same way as the setting rules of international law are generally formed.
Moreover, the definition of crimes in international law is not precise as the definition of crimes in the national laws of different countries.
For to know which actions are considered crimes in international criminal law, we should rely on international custom which is the fundamental source of international law, and so in light of this basis we can discover the nature of the action and criminalize it.
On the other hand, it may happen, especially in the recent decades, that the criminal property of the action in international criminal law is revealed in writing, and this is the case of crimes stipulated in treaties, especially those named the obligatory legislative treaties even to countries which did not sign or join said treaties, taking into consideration that the terms of these treaties are originally international customary regulations, for the conventions of the Hague and Geneva are but a group of customary regulations known before being finalized in written provisions.
The noticeable matter is that the conventional international law, in respect to international crimes and others, does not decide the rules of international law, for there are other international rules originating from the obligatory international law.
On the other hand the conventional international law decides only the legal regulations already found and decided by virtue of international custom.
As a consequence, for the consideration of some actions punished by international law, it is not enough to refer to international treaties and conventions, but we should rely at first on international customary law.
For there are many actions deriving its properties directly from international custom without the interference of international conventional law, and therefore they are international crimes despite the fact that they are not stipulated in a treaty or convention. Although before year 1958 there did not exist any treaty deciding its criminal property, the same goes to the violations committed against humanity are considered international crimes before international conventional law decided this property in London convention of 1945.
Here we may ask if the principle of crime and penalty legality connects firmly to legislation (written law). Does this mean that it is not applied in international law which is originally a custom law? and does this mean that the results of this principle as the non-retroactive criminal law, and adhering to the limited explanation, do not apply on the crimes of international nature?
This court believes that despite the fact that international law is originally a customary law and despite the fact that the principle of the Crimes and Penalties according to legal provisions is related firmly to legislation, however, the requirements of justice and prevention of injustice and guarantee of individual freedom all require the applying of said principle in the scope of international crimes.
Thus, how can we apply this principle in the scope of international crimes? We can apply it through verifying that the action or prevention forms an international crime not necessarily originating from international conventions and treaties, whereas most of these crimes originate from international custom. Therefore, we have to assure from the existence of an international legal custom regulation criminalizing this action or prevention as being considered an international crime, at the time of attributing the committing of a crime to a person, or its existence (legal regulation) in a general international convention (legislative) or a special international convention in which Iraq is a member.
Consequently, the principle of the crimes and penalties legality is also applied in international criminal law. In international law it is impermissible to punish but for actions given the nature of a crime by international law at the time of committing it.
In its judgment in the Al-Anfal case in 2007, the Iraqi High Tribunal stated:
… no act or abstention of action is sentenced if no legal description is available. [The] French had adopted, after their revolution, the crimes and sentences legislative principle … [This] principle had been reinforced via [the] International Human Rights Declaration issued by the UN General Assembly, on 1948 September 10, becoming a pattern to be followed by all countries. Its final form showed up in Article [11/ 2], as follows: “No person must be convicted due to an act or abstention of action unless the following is considered a crime as per national or international law at the time of perpetration. As well, no sentence heavier than that supposed to be issued at the time of perpetration must be given”. This statement expresses the opinion … that no crime or sentence must be applied unless it was previously documented in a text which defines it clearly, at a date previous to that of perpetration. This means that to consider an act as penalized crime, it must be defined by law at a time previous to its perpetration …
All Iraqi constitutions, excluding the monarchy constitution of 1925, clearly declared this principle which is available in the last Iraqi Permanent Constitution of 2005 and valid Iraqi Penal Code No  for the year 1969. It is worth mentioning though that Baghdadi Penal Code did not include this principle.
The International Human Rights’ Declaration is highly important in adopting and defining crimes legitimacy principle and sentences, as well as the refusal of retroactivity in International Tribunal Law. The aim of such principles, as per this declaration, is not limited to what nations’ internal laws adopt in different states for the importance of the act being stipulated as a crime, and punishable in the national laws when they were committed. Rather, it stretches within the International Tribunal Law to include international crimes. The act or refrain must be considered as international crime sentenced as per International Tribunal Law, and at the time of its commitment, whether the origin of such incrimination or sentence is available in international agreements and accords or internationally agreed upon.
Our court acknowledges that what occurred in Universal Declaration of Human Rights is obligatory to all countries, at least those members in the U.N., and due to the fact that Iraq is one of its founders, which impose on it to abide by such laws without the necessity to be mentioned in internal legal texts. What confirms the advanced opinion is Article  of Special International Convention for Civil and Political Rights, issued following a U.N. Resolution No [2200 A] on 1966 Dec 16, valid starting 1976 March 23, and approved by Iraq in 1976. Article  of the aforementioned convention stated:
“1. No individual is charged for acts or refrains which were not considered as crimes at the time of implementation, as per national or international law. Also, it is not allowed to impose a sentence which is more severe than that applicable at the time of implementation. If, after the crime’s perpetration, a legal text had been issued stating new lighter sentences, convicts must get the benefit of such mitigation.
2. This Article does not include any point that breaches the trial or sentence of any individual, for an act or refrain which was considered as a crime at the time of implementation, as per general laws recognized by International Community”.
There is no doubt that both the International Human Rights’ Declaration and the Special International Convention for Political and Civil Rights are characterized by [an] international feature abiding all member countries in the United Nations, including Iraq, due to the aforementioned reasons.
Article  of the Iraqi Penal Code stipulated “no punishment over an act or refrain, unless based on a law which stipulates its incrimination at the time of occurrence, as no verdicts or precautionary measures must be signed unless laid down by law”.