The Principle of Legality in International and Comparative Criminal Law

By Kenneth S. Gallant
Cambridge & New York: Cambridge University Press, 2009

The account of the international criminal law in Kenneth Gallant’s The Principle of Legality is rooted in legal positivism. Gallant follows the lead of H.L.A. Hart and fails to recognize that the real push for an effective international criminal law comes from Hart’s competitors, who argue that the criminal law is grounded in universal moral precepts rather than statutes.

The main body of Gallant’s book comes in four parts: 1) an introduction that provides the “plan” and “argument” of the book; 2) a more philosophical chapter that sets out the principle of legality; 3) two chapters that review the history of the principle in the international law, mostly in the aftermath of World War II; 4) and four chapters that discuss the place of the principle in international human rights law, comparative law, the practice of international criminal courts, and the customary law. This is followed by a miscellany of appendices and supporting material.

The philosophical chapter is disappointing. Although the word “legality” may mean many things, it clearly refers, in the particular context of the book, to the primacy of the rule of law and the idea that the courts will not enforce the prescriptions of those in political authority, free of the constraints of law and legal principle. Gallant is content, however, to identify some of the legal stipulations that flow from such an idea. These include the stipulation that the law be certain, that courts be properly instituted, and more importantly, that the law be applied prospectively. It follows that there is a general prohibition against ex post facto or retroactive laws.

The heart of the book lies in the historical chapters. Gallant has a journalistic style, and these chapters make better reading than most academic texts. There is a price, however, and the book lacks the rigour of scholarly work. The author casually mentions his “European friends and colleagues” (p. 8) and provides a half-page account of Japanese and Chinese law, relying in a note on those “who read about the civil law in English” (p. 55).

The reading is nevertheless lively. Gallant describes Winston Churchill’s attempt to have the leaders of German, Italy and Japan declared “outlaws” at the end of World War II, a practice more in keeping with the past than he seems to realize. In the end, the allied powers agreed that those responsible for the worst excesses of the war should be brought before the Nuremberg and Tokyo tribunals on charges of “aggressive war” and “conspiracy to commit aggressive war”. These were new crimes. Thus there was an argument that they contravened the principle of legality.

Gallant seems to be preoccupied with the statement by one of the Nuremberg judges that legality is not a binding principle in the international law. This clearly rankles him, as well it should. The obvious legal rebuttal, however, is that this remark was obiter dicta. As Justice Bernard recognized, in the Tokyo tials, there is no reason to believe that the principle of legality was threatened by the introduction of these crimes. This is evident in the fact that the scope of charges like “aggressive war” or “crimes against humanity” is inherently uncertain and encompasses any number of atrocities and unconscionable excesses that contravene the standards of civilized life. These actions are and always have been crimes “in the eyes of reason and universal conscience” (p. 148).   

The remaining chapters canvass many technical issues. Is it possible, for example, to judicially create an international crime by “analogy” to an existing crime? The last chapter discusses “foreseeability”, the rule against vagaries, and universal jurisdiction – but it is a disconnected discussion, and Gallant does not provide the synthesis that he promises at the beginning. The positivism in the book makes it difficult to place the necessary limits on political actors and Gallant merely concludes, rather weakly, that the “deliberate retroactive creation of new crimes and increased punishments” (p. 355) is implausible. 

Other matters aside, readers will discover that the book makes use of an idiosyncratic system of headings that mixes numbers, letters and lower case Roman numerals. The numeral “0” is accordingly assigned to the introduction, which is numbered “o.a.”; other headings are numbered 5.c.v.E., or 7.b.i.D. I wondered if this was one of the more arcane aspects of the analytic style that has become popular in studies of the international law – but the person that I contacted at Cambridge University Press could not explain it.