On the Purposes of Legality and its Applicability to International Law

Abstract

Kenneth Gallant's book is a very welcome one and surely one of the better analyses, if not the best, of the principle of legality. It goes without saying that the principle of legality has moved into the centre of international criminal law (and human rights law) and is a mandatory subject to address in any discussion. Despite this fact, it is usually discussed in only a topical manner, as if its existence as a principle of justice is natural and can be assumed as fundamental, rather than whether and how it exists as a specific protection and limitation in particular cases. This oversight may have been because the work of researching the topic was simply too daunting for many legal scholars. In their stead, Gallant has been brave enough to undertake this study. Gallant's book comprises seven sections beginning with the role and purposes of legality in criminal law and philosophies competing with it, and provides an historical description before and after Nuremberg and Tokyo (the coverage of Tokyo being especially welcome since Nuremberg often overshadows it). Gallant then proposes the first portion of his thesis: that legality was not yet a principle of international criminal law at the time of the two International Military Tribunals. Following this discussion, he continues with an impressive survey of the development of legality in the post-War era, including human rights law, multilateral treaties, national constitutions and legislation, and the international and hybrid international criminal tribunals and United Nations administered territories, attaching appendices comprising almost one-third of the book detailing non-retroactivity and legality provisions in national criminal laws and constitutions, with one survey specifically focusing on the pre-1947 era. Included in this analysis, this author was pleased to find a detailed discussion of the contemporary challenges to legality that enriches the debate. Then, Gallant concludes with the second portion of his thesis: that legality in criminal law, especially its most important constituent, the non-retroactivity of crimes and punishments, applies in both national and international criminal law, as a matter of customary international human rights law. The ‘stronger’ versions of legality, however, have not become customary international law, partly because of the diversity of legal systems and the differing ways that legality is articulated in each.