Serbia and Montenegro
Practice Relating to Rule 101. The Principle of Legality
In 2003, in its initial report to the Human Rights Committee, Serbia and Montenegro stated:
151. According to Article 99, paragraph 11, of the Constitution of the Federal Republic of Yugoslavia, enactments adopted during a state of war may throughout the duration of the state of war restrict various rights and freedoms of man and the citizen, except specific rights and freedoms guaranteed by the Constitution (… protection from punishment for an act which did not constitute a criminal offence under the law at the time of commission …
153. Pursuant to the Charter of Human and Minority Rights and Civil Liberties [of the State Union of Serbia and Montenegro, adopted in 2003], derogation from human and minority rights guaranteed by this Charter is allowed following the declaration of a state of war or a state of emergency, if the existence of the State Union or a member State is threatened, but only to the extent necessary under the given circumstances. Measures of derogation from human and minority rights cease to have effect following the end of the state of war or the state of emergency. No derogation is permitted even during the state of war or the state of emergency from the … right to a fair trial; … ban on retroactivity.
In its oral pleadings before the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) in 2006, Serbia and Montenegro stated:
The rules of criminal procedure in all countries demand a strict interpretation of the relevant texts, according to the old maxim nullum crimen sine lege, nulla poena sine lege
(no crime can be committed and no punishment can be imposed without an existing law). The fact that international criminal law is to be interpreted strictly is borne out by Article 22.2 of the recent Statute of the International Criminal Court, which stipulates that “[t]he definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”