The Rule of Law, the Principle of Legality and Due Process

Abstract

This chapter evaluates the rule of law, the principle of legality and due process. The creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the early 1990s marked the dawn of a new era in international law and opened the way for the founding of a host of international and hybrid criminal tribunals, including the world’s first permanent International Criminal Court (ICC). Over nearly three decades, these international criminal tribunals have not only demonstrated that just and fair trials of some of the worst crimes imaginable are possible, they have also striven to serve as an embodiment of rule of law ideals—as highly visible examples of rule of law principles put into practice. The chapter then looks at the legality principle and due process. The legality principle, as enshrined in the principal conventions on human rights, is a basic component of the rule of law and serves as a fundamental check on the ability of courts to push the progressive development of the law, no matter how much the Judges of that court might believe that certain conduct deserves punishment.