Retroactive recharacterisation of crimes: the principles of legality and fair labelling in international criminal law

de Souza Dias, T

Abstract:: The principle of legality is one of the most fundamental principles of criminal law. It requires crimes and penalties to be established by law at the time of the conduct. In international criminal law, it applies as a rule of custom, treaty and a general principle of law. Nonetheless, the principle sits uneasily with some unique features of the international legal order, particularly its multiple adjudicative and prescriptive authorities. This has led to a frequent but overlooked practice known as ‘retroactive recharacterisation of crimes’. This occurs when, upon charging, convicting or sentencing the accused, an international or domestic tribunal substitutes new rules of criminal law for those applying at the time of the conduct. Retroactive recharacterisation of crimes has been justified on the basis of a cursory reading of the principle of legality in general international law, which, on closer look, does not seem to accommodate some of its problematic outcomes. It is also unclear whether this phenomenon is consistent with the principle of fair labelling, which necessitates criminal labels to be representative of the accused’s blameworthiness. This thesis seeks to answer two principal research questions. First, how are the principles of legality and fair labelling to be applied in international criminal law generally and in the specific context of the International Criminal Court? Second, to what extent is the phenomenon of retroactive recharacterisation of crimes consistent with them, bearing in mind their elements, scope and rationales? Its central claim is that, although not per se contrary to both principles, changes in the applicable criminal law which substantively affect the fundamental rights of the accused, including the imposition of more stigmatising labels, may be unlawful. To address this, the substantive criminal law binding on the accused at the crime of the conduct ought to be applied as such.

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APA Style

de Souza Dias, T. (2019). Retroactive recharacterisation of crimes: the principles of legality and fair labelling in international criminal law [PhD thesis]. University of Oxford.

MLA Style

de Souza Dias, T. Retroactive Recharacterisation of Crimes: the Principles of Legality and Fair Labelling in International Criminal Law. University of Oxford, 2019.

Chicago Style

Souza Dias, T de. 2019. “Retroactive Recharacterisation of Crimes: the Principles of Legality and Fair Labelling in International Criminal Law.” PhD thesis, University of Oxford.
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Files:: DPhil Thesis_Final_Talita de Souza Dias.pdf

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Authors

+ de Souza Dias, T More by this author

Institution:: University of Oxford
Division:: SSD
Department:: Blavatnik School of Government
Role:: Author

Contributors

+ Akande, D

Institution:: University of Oxford
Division:: SSD
Department:: Blavatnik School of Government
Role:: Supervisor

+ Jackson, M

Institution:: University of Oxford
Oxford college:: Jesus College
Role:: Examiner

+ Jessberger, F

Department:: University of Hamburg
Role:: Examiner

+ Planethood Foundation More from this funder

Funding agency for:: de Souza Dias, T

+ Faculty of Law, University of Oxford More from this funder

Funding agency for:: de Souza Dias, T

DOI:: 10.5287/ora-zgb2xnexx
Type of award:: DPhil
Level of award:: Doctoral
Awarding institution:: University of Oxford

Language:: English, Old (ca.450-1100)
Keywords:: International Criminal Law

Fair Labelling

Legality

Non-retroactivity

International Criminal Court
Subjects:: Criminal Theory

International Criminal Law

International law

International Human Rights Law
UUID:: uuid:1a0b5a4b-4033-4db7-9834-aa320c871c02
Deposit date:: 2020-02-13

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Retroactive recharacterisation of crimes: the principles of legality and fair labelling in international criminal law

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