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Retroactive Application of International Criminal Law

at the Domestic Level

- The case of Iceland -

Johann Thorvardarson

LL.M. Thesis, International and European Law: Public International Law Supervisor: Professor Harmen van der Wilt

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Abstract

This thesis examines what difficulties may arise when international criminal law is implemented in domestic law. The focus point is a recently introduced draft parliamentary bill in Iceland on punishment for genocide, crimes against humanity, war crimes and the crime of aggression (hereinafter the Draft Bill). According to the Draft Bill, perpetrators of acts committed prior to the entry into force of the legislation shall be punished in accordance with what is laid down there, under the condition that the acts were criminal in national law at the time of the commission and would constitute international crimes in international law. Questions that are addressed are whether the Draft Bill can be applied retroactively and if that is in accord with the nullum crimen sine lege principle, as well as if retroactive application of the law is in conformity with the Constitution of Iceland? Furthermore, the applicability of international criminal law in national legislation and its effect on the question on non-retroactivity and nullum crimen sine lege considerations, is examined.

Chapter two gives an overview of international criminal law in Icelandic legislation. The situation in Iceland is briefly compared to the other Nordic countries, the Draft Bill is discussed and main issues brought forward. Chapter three provides an account of the nullum crimen sine

lege principle, or the principle of legality. The principle is examined from the perspective of

domestic law and human rights perspective. To shed light on the retroactive nature of the Draft Bill, a judgment by the Supreme Court of Norway is examined, dealing with retroactive application of new legislation. This gives some indication on how Icelandic courts might handle similar issues when applying the Draft Bill. Further, the constitutionality of retroactive application of law in Icelandic legislation is considered. Article 69 of the Constitution of Iceland states that no one can be criminally responsible unless found guilty of conduct that was a crime according to the law at the time when it was committed, or totally analogous to such conduct. Chapter four deals with the applicability of international law in Iceland and several Supreme Court judgments are examined as well as how the status of international criminal law in Icelandic legislation affects the principle of legality. Through these judgments, the capability of the Supreme Court of Iceland to apply consistent interpretation when dealing with rules of international law that are not incorporated in Icelandic law is evident. This thesis argues that there are several indicators of the fact that Icelandic courts could in fact apply the Draft Bill to crimes committed prior to the entry into force of the proposed legislation. Those include Article 69 of the Constitution of Iceland, the international obligations at stake and the need to comply with them, along with the precedents of the Supreme Court of Iceland.

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Table of Contents

1 Introduction ... 4

2 International Crimes in Icelandic Legislation ... 5

2.1 Overview of International Obligations of Iceland Regarding International Crimes ... 5

2.2 International Criminal Law Legislation in the Nordic countries ... 8

2.3 An overview of the Icelandic Draft Bill on International Crimes ... 10

3 Nullum Crimen Sine Lege – The Principle of Non-Retroactivity of Criminal Law ... 12

3.1 Nullum Crimen Sine Lege and Domestic Law ... 13

3.2 Nullum Crimen Sine Lege in Human Rights Treaties ... 17

3.3 The 2005 Norwegian Legislation and the Aftermath ... 20

3.4 Is the Draft Bill in Conformity with the Constitution of Iceland? ... 23

4 Effect of International law in National Law ... 24

4.1 Iceland’s Approach ... 26

4.2 Icelandic Supreme Court Judgments and Applicability of International Law ... 27

4.3 How Does the Status of International Criminal Law in Icelandic Law Affect the National Principle of Legality? ... 29

5 Conclusion ... 30

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1 Introduction

The international community has identified certain types of grave and horrendous acts and given the international criminal tribunals jurisdiction over them, since these are acts that threaten the values of the international community. International criminal law deals with these threats and the field has been growing rapidly in recent years. With the emergence of various international criminal tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and most recently the International Criminal Court (ICC), the substantive law of international criminal law has been clarified and evolved by the interpretation of the tribunals as well as by the international treaties establishing them. Various international conventions are relevant to the field of international criminal law according to which states have obligations to criminalize in their own national legal system and prosecute international crimes before their domestic courts. In this essay, the term international crimes will be used when referring to the crime of genocide, crimes against humanity, war crimes and the crime of aggression.1

This essay will examine what difficulties may arise when international criminal law is implemented in domestic law. To shed light on this, the focus point will be Iceland and a draft parliamentary bill on punishment for genocide, crimes against humanity, war crimes and the crime of aggression (hereinafter the Draft Bill) that has recently been introduced in the Icelandic Ministry of Justice. According to Article 10 of the Draft Bill, perpetrators of acts committed prior to the entry into force of the legislation shall be punished in accordance with what is laid down there, under the condition that the acts were criminal in national law at the time of the commission and would constitute international crimes in international law. The main question that will be addressed is whether national legislation regarding international crimes can be applied retroactively, covering crimes committed before the entry of the legislation and whether such application can be considered in conformity with the nullum

crimen sine lege principle? Would the retroactive application of the law constitute a violation

of the Constitution of the Republic of Iceland No. 33/1944 (hereinafter the Constitution of Iceland)? How does the applicability of international criminal law in national legislation affect the question on non-retroactivity and nullum crimen sine lege considerations? When countries do not have proper legislation in place to investigate, prosecute and punish for international crimes, it is evident that they risk becoming a safe haven for perpetrators.

1 According to Article 5 of the Rome Statute, the ICC has jurisdiction over these crimes which are further defined

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Chapter two will give an overview of the state of international criminal law in Icelandic legislation. The situation in Iceland will briefly be compared to the other Nordic countries and the Draft Bill will be discussed and key issues pointed out.2 Chapter three will provide an account of the nullum crimen sine lege principle, or the principle of legality. The principle will be examined from the perspective of domestic law as well as from human rights perspective. To shed light on the retroactivity of the Draft Bill, a judgment by the Supreme Court of Norway will be examined, where the accused was prosecuted based on a new legislation on international crimes that entered into force in 2008, for acts committed prior to that date. This might provide an indication on how Icelandic courts might handle similar issues when applying the Draft Bill. Further, the constitutionality of retroactive application of law in Icelandic legislation will be examined. Chapter four will deal with the applicability of international law in Iceland3 and several Supreme Court judgments will be examined as well as considering how the status of international criminal law in Icelandic legislation affects the principle of legality. Although only one of the Supreme Court judgments are in the field of criminal law they shed light on the issue at hand.

2 International Crimes in Icelandic Legislation

Before going into the main subject of this thesis, it is important to look at how Iceland has fulfilled its international obligations in the field of international criminal law and the measures that have been taken to bring national legislation into conformity with international law. Given the close cooperation in legislative matters that the Nordic countries have had over the years, it can furthermore prove useful to look at the situation in those countries.

2.1 Overview of International Obligations of Iceland Regarding International Crimes Iceland is a party to a multitude of international treaties, many of them relating to international criminal law in one way or another. The international instruments relevant for the present purposes, that Iceland is a party to, are the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the Genocide Convention), adopted by the General

2 The main problem that this thesis deals with is the proposed application of the Draft Bill to crimes committed

prior to its entry into force, since these crimes have never been criminalized as specific crimes before. It is evident that more issues stemming from the Draft Bill could be, and should be, examined, such as retroactive application of universal jurisdiction. For lack of space this problem will not be addressed here.

3 As chapter four deals with, states can be said to be predominantly either monist or dualist. It is acknowledged

that there is always a grey area and this should be viewed as a spectrum rather than two distinct approaches. Many states are somewhere between the two. Some scholars have said this classification to have lost its practical value since the two doctrines do not express the world as it is. However, for practical reasons, states will be referred to as either monist or dualist throughout the thesis. See infra notes 109 and 117.

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Assembly of the United Nations on 9 December 1948, the four Geneva Conventions of 12 August 1949 (hereinafter the Geneva Conventions) and the Protocols additional to them from 1977 (hereinafter the Protocols), as well as the Rome Statute of the International Criminal Court that entered into force on 1 July 2002 (hereinafter the Rome Statute).4

Iceland signed the Genocide Convention on 14 May 1949 and ratified it on 29 August 1949. In 1965 Iceland ratified the four Geneva Conventions from 1949 and the Additional Protocols were ratified in 1987. The Geneva Conventions and the Additional Protocols were not translated into Icelandic until 2004. At the time of ratification of these conventions there were no further efforts taken to adapt domestic legislation to these new international obligations.5

As a party to those international conventions, Iceland is obliged to introduce and criminalize genocide according to the Genocide Convention and grave breaches of the Geneva Conventions.6 Article 49 of the first Geneva Convention states that the contracting parties “undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed,”7 grave breaches of the convention. Each State Party is under an obligation to search for such persons and prosecute before its own courts or, if preferred, to extradite such person to another State party. The Article therefore introduces the

aut dedere aut judicare principle in the grave breaches regime. Furthermore, each State party

must ensure the suppression of acts contrary to the convention.8 The same obligations apply to State parties in the other Geneva Conventions.9 As for the Genocide Convention, Article 5 obliges the contracting states to enact the necessary legislation to describe and criminalize the crime of genocide and to provide effective penalties to those guilty of genocide. Regarding aut

dedere aut judicare in the Genocide Convention, it has been argued that the principle is found

in the Convention, but it is not explicitly stated in the text.10 Although the Rome Statute does not carry the same obligation to enact appropriate legislation and criminalize international crimes it does create incentive for states to do so, for if appropriate legislation is not in place

4 Thórdís Ingadóttir, ‘Innleiðing helstu sáttmála á sviði alþjóðlegs refsiréttar í íslenskan rétt: Sáttmáli um

ráðstafanir gegn og refsingar fyrir hópmorð frá 1948, Genfarsamningar frá 1949, ásamt viðaukum frá 1977 og Rómarsamþykkt um alþjóðlega sakamáladómstólinn frá 1998’ in Ragnheidur Bragadóttir et. al. (eds), Afmælisrit,

Jónatan Þórmundsson sjötugur (CODEX, Reykjavik 2007), p. 619-620.

5 Thórdís Ingadóttir, ‘Innleiðing helstu sáttmála á sviði alþjóðlegs refsiréttar í íslenskan rétt: Sáttmáli um

ráðstafanir gegn og refsingar fyrir hópmorð frá 1948, Genfarsamningar frá 1949, ásamt viðaukum frá 1977 og Rómarsamþykkt um alþjóðlega sakamáladómstólinn frá 1998’, p. 626-638.

6 Jónatan Thórmundsson, ‘Inngangur að alþjóðlegum refsirétti’ [2015] Tímarit lögfræðinga 1, p. 42. 7 The Geneva Conventions of 12 August 1949, International Committee of the Red Cross, p. 52. 8 The Geneva Conventions of 12 August 1949, International Committee of the Red Cross, p. 52.

9 See Article 50 of the second Geneva Convention, Article 129 of the Third Geneva Convention and Article 146

of the Fourth Geneva Convention.

10 R. Cryer, and others., An Introduction to International Criminal Law and Procedure (3rd edn Cambridge

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in a state, it runs the risk of not being able to prosecute and punish for crimes for which it has jurisdiction over.11

Failing to introduce and implement international obligations on the domestic level, when such duty is imposed by international law, is a violation of international law.12 When states commit an internationally wrongful act in the sense of Article 2 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) it entails the responsibility of that state.13 Action or omission, attributable to a state, and constituting a breach of an international obligation of the same state, constitutes an internationally wrongful act by that state, according to Article 2 ARSIWA.14 State parties can therefore be internationally responsible for violations of the above-mentioned conventions, as was the case in the Genocide Convention (Bosnia v. Serbia) case of the International Court of Justice (ICJ).15 Not implementing international obligations stemming from the Conventions mentioned can entail international responsibility.

The efforts of the Icelandic government to fulfil the international obligations stemming from the Geneva Conventions and the additional protocols and the Genocide Convention have been limited to signing and ratifying them, but as will be discussed in Chapter 4, this is not enough for the conventions to have effect before Icelandic courts, as it is a dualist country. Up until now there have been no provisions in Icelandic legislation that specially criminalize the crime of genocide or provide for universal jurisdiction in cases concerning such crimes.16 The view of the Icelandic government on this matter and why such provisions have never been introduced is not entirely clear. According to the comments to the Draft Bill, the view of the government was for a long period that the general penal code provided sufficient guarantees and covered the conduct described according to the international obligations and that international crimes were not delictum sui generis to Icelandic law.17 A further indication

11 This stems from the principle of complementarity that is enshrined in Article 17 of the Rome Statute.

12 Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (1st

edn Cambridge University Press, Cambridge 2005), p. 118.

13 Malcolm N. Shaw, International Law (7th edn Cambridge University Press, Cambridge 2014), p. 566. 14 ILC Articles on Responsibility of States for Internationally Wrongful Acts, Article 2.

15 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007. The Court found, i.a., that Serbia and

Montenegro had violated its obligations under the Genocide Convention to prevent genocide as well as by “having failed to transfer Ratko Mladic´, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia” (paragraph 471).

16 Thórdís Ingadóttir, ‘The Implementation of the Rome Statute of the International Criminal Court in the Nordic

Countries: A New Approach to Criminalization of International Crimes’ in Astrid Kjeldgaard (ed), Nordic

Approaches to International Law (Brill Publishers, estimated publication 2017) [unpublished, draft article], p. 7.

17 Draft Parliamentary Bill for Act No. [xx] on punishment for genocide, crimes against humanity, war crimes

and the crime of aggression <https://www.innanrikisraduneyti.is/frettir-irr/drog-ad-frumvarpi-um-refsingar-fyrir-hopmord-glaepi-gegn-mannud-og-fleira-til-umsagnar> accessed 10 May 2017, p. 9.

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supporting this view may be found in the case of Edvald Hinriksson from 1992 which concerned alleged crimes committed during World War II. It was asserted that Mr. Hinriksson could be prosecuted for the crime of genocide, relying on the provisions on murder in the Icelandic general penal code.18 As a result, international crimes have never been specifically criminalized in Icelandic legislation. Prosecuting for ordinary crimes has been seen as sufficient compliance with international obligations. By not doing so, the Icelandic government has not entirely taken the necessary steps to fully comply with the Genocide Convention and the Geneva Conventions and the additional protocols.

When ratifying the Rome Statute, the Icelandic Althingi passed Act No. 43/2001 on the implementation of the Rome Statute. That act contains provisions necessary for Icelandic courts and authorities to enforce the Rome Statute, in accordance with international obligations. However, the act is confined to cooperation with the ICC and enforcement of the Courts sentences.19 This was a good step forward, but still did not introduce international crimes as specific crimes into Icelandic legislation.

2.2 International Criminal Law Legislation in the Nordic countries

The Nordic countries do not all take the same approach when it comes to criminalizing international crimes. However, given the close cooperation that exists between the Nordic countries in legislative matters, it is useful, when looking at Icelandic legislation, to examine how Denmark, Sweden, Norway and Finland have incorporated international crimes in their legislation.

Denmark, Finland and Sweden adopted legislation which defined and criminalized the crime of genocide, while Norway and Iceland did not. The latter two had held that prosecution of the crime was available by relying on provisions of murder in their general penal code. As to war crimes, all countries except Iceland took some measures to enact provisions criminalizing grave breaches. The Danish military code criminalizes war crimes with a broad reference to international law. Likewise, Sweden criminalized serious international crimes by a broad reference to international law. In Finland, a specific conduct in war was criminalized by similar broad reference.20

18 Thórdís Ingadóttir, ‘The Implementation of the Rome Statute of the International Criminal Court in the Nordic

Countries: A New Approach to Criminalization of International Crimes’, p. 8. Mr. Hinriksson, an Icelandic citizen, passed away during the investigations and the case did not go to trial.

19 Draft Parliamentary Bill, p. 9.

20 Thórdís Ingadóttir, ‘The Implementation of the Rome Statute of the International Criminal Court in the Nordic

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After the Rome Statute came into force, all the Nordic countries undertook a review of their legislation that was necessary in light of the ratification of the statute. This review essentially dealt with two issues, firstly cooperation with the ICC, and secondly the substantive part of the Rome Statute. All the Nordic countries implemented legislation to enable cooperation with the ICC, like Act No. 43/2001 in Iceland that was mentioned in chapter 2.1, as the Rome Statute requires in chapter 9. As to the substantive part, most of the countries initiated a study of its national legislation to ensure that its criminal law would be in conformity with the principle of complementarity. Norway adopted, in its general penal code, a new chapter on genocide, crimes against humanity and war crimes in 2008, as will be further discussed in chapter 3.3. Finland followed suit and adopted a chapter in the general penal code on crimes against humanity and war crimes the same year. Sweden drafted a legislation in 2002 which was presented but postponed. A separate act on genocide, crimes against humanity and war crimes was adopted in 2014. Denmark upholds the view that the military code and the general penal code provide the grounds for prosecution of international crimes and has not undertaken reform of its legislation like the other countries.21 However, Denmark has a special act on genocide.22

The new legislations in the Nordic countries are similar to each other to some extent. A common characteristic is that the legislation is extensive and comprehensive. Sweden discarded altogether the general reference to international crimes regarding criminalization, while Finland still maintains such a reference in the case of violation of law of war under international law. Norway, Sweden and Finland have all simplified the definitions of the Rome Statute on war crimes.23

As will be discussed in the next chapter, a study of Icelandic legislation was carried out. Following that, in the beginning of the year 2017, a legislative bill on international crimes was drafted and handed to the Ministry of the Interior at its request.24 The Draft Bill introduces international crimes in a special act, closely following the wording and structure of the Rome Statute. Harmonization of practice and international criminal law in domestic legislation is one of the key arguments for that approach.25

21 Thórdís Ingadóttir, ‘The Implementation of the Rome Statute of the International Criminal Court in the Nordic

Countries: A New Approach to Criminalization of International Crimes’, p. 6.

22 Draft Parliamentary Bill, p. 13.

23 Thórdís Ingadóttir, ‘The Implementation of the Rome Statute of the International Criminal Court in the Nordic

Countries: A New Approach to Criminalization of International Crimes’, p. 7.

24 Draft Parliamentary Bill, p. 7. The Ministry of Interior is now the Ministry of Justice.

25 Thórdís Ingadóttir, ‘The Implementation of the Rome Statute of the International Criminal Court in the Nordic

Countries: A New Approach to Criminalization of International Crimes’, p. 7. See also Draft Parliamentary Bill, p. 9. The authors of the bill assert that this approach is taken by many other States and is meant to provide

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2.3 An overview of the Icelandic Draft Bill on International Crimes

The two main objectives of the draft bill are firstly to fulfil international obligations stemming from the Genocide Convention and the four Geneva Conventions along with the additional Protocols thereto. The second objective is to ensure that, in accordance with the complementarity principle, Icelandic authorities can effectively exercise jurisdiction and investigate crimes falling under the jurisdiction of the Rome Statute.26 This Draft Bill ensures that Icelandic authorities can not only cooperate with the ICC and enforce its sentences, but also investigate and prosecute international crimes effectively before Icelandic courts.

In drafting the bill, the authors sought guidance in the recent legislation of the Nordic countries discussed in chapter 2.2.27 The criminal provisions of the Draft Bill rely entirely upon current international criminal law. The text of the bill is practically unanimous to the Rome Statute.28

Genocide is described in Article 1, crimes against humanity in Article 2, war crimes committed in international armed conflict in Article 3, war crimes committed in non-international armed conflict in Article 4 and crime of aggression in Article 5. Responsibility of commanders and other supervisors is laid down in Article 6 and is identical to Article 28 (a) and (b) of the Rome Statute. Superior orders and prescription of law finds its place in Article 7 of the Draft Bill and is identical to Article 33 of the Rome Statute. Article 8 Draft Bill criminalizes attempt and complicity with a reference to chapter III of the General Penal Code No. 19/1940, titled ‘attempts and capacity as a complicit’.29 Article 9 Draft Bill introduces the non-applicability of statute of limitations for international crimes. According to Article 10(1) the legislation enters immediately into force. Article 10(2) then states that the legislation will apply to crimes committed prior to its entry into force, provided that the act was criminal according to the General Penal Code No. 19/1940 at the time of its commission as well as

conformity in interpretation of international criminal law by domestic courts and the ICC. Furthermore, this approach provides clarity in domestic legislation.

26 Draft Parliamentary Bill, p. 7. 27 Ibid, p. 12.

28 Ibid, p. 13.

29 General Penal Code No. 19, February 12, 1940 - Article 20(1) General Penal Code states that “[a]ny person

who has resolved to commit an act punishable under this Act and has clearly demonstrated this resolve by an act aimed at commission or designed as such is, if the offence has not been brought to completion, guilty of an attempted offence”. Article 21 states that punishment shall be waived if a person abandons the effort to commit a crime and does so completely and voluntarily. On accessory, Article 22(1) says that “[a]ny person who, by assisting in word or deed, through persuasion, encouragement or in any other manner, contributes to the commission of an offence under this Act shall incur the punishment prescribed for the offence”. This corresponds to Article 25(3) (c) and (d) Rome Statue. There is therefore no reference to criminal responsibility in respect of direct and public incitement of the crime of genocide in the Draft Bill. Additionally, it is not entirely clear if Art. 22(1) General Penal Code covers ordering, soliciting or inducing the commission of international crimes, but this matter will not be dealt with in this thesis as lack of space does not allow it.

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constituting an international crime according to international law. Punishment shall not exceed the limit imposed at the time of the commission. Article 11 concerns changes of other legislation. Paragraph 1 adds a sentence to Article 5(3) General Penal Code which will allow punishment to be imposed “according to the Icelandic Penal Code for offences committed abroad by Icelandic citizens or by persons resident in Iceland”30 in the case of acts falling under the scope of the Draft Bill, “even if the deed is not considered a punishable offence under the laws of the state involved”.31 Dual criminality requirement is therefore abolished. Paragraph 2 adds a new section to Article 6 General Penal Code, which orders that “punishment shall be imposed according to the Icelandic Penal Code for the following offences even if they are committed outside the Icelandic state and irrespective of the identity of the perpetrator”32 and enumerates 23 offences. Article 11(3) will add the 24th offence to that list: “On grounds of Act No. [xx] on punishment for genocide, crimes against humanity, war crimes and crimes of aggression. The offence shall also constitute genocide, crime against humanity, war crime or crime of aggression under international law. Actions aimed towards prosecution according to this section shall only be initiated if the person intended to prosecute is present in Iceland”.33 Lastly, Article 11(3) introduces change in wording of Article 1(2) of Ministerial Accountability Act No. 4/1963 to include offences described in the Draft Bill.

This Draft Bill introduces several things that are a novelty in Icelandic criminal legislation. First, it is the introduction of international crimes to domestic legislation. Until now there have never been any measures taken to do so. Second, the responsibility of commanders and other supervisors, as well as superior orders and prescription of law. Thirdly, up until now, international crimes have not been subject to the non-applicability of statute of limitations. Fourthly, with the entry into force of the new legislation, Icelandic authorities will be able to exercise conditional universal jurisdiction. Lastly, the main subject of this thesis, the Draft Bill proposes that it will apply to offences committed prior to the legislations entry into force. This means that the Draft Bill would be applied retroactively.

Such retroactive application of criminal legislation raises questions regarding its legality, such as if this application is in conformity with the nullum crimen sine lege principle and if it violates the Constitution of Iceland? The applicability of international law in Icelandic legislation has to be addressed, since up until the Draft Bill, international crimes have never

30 General Penal Code No. 19/1940, Article 5(1). 31 Ibid, Article 5(3).

32 Ibid, Article 6.

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been criminalized in Icelandic legislation. The interplay between international and domestic law can be decisive to determine if in fact there is retroactive application or not. Icelandic authorities have been obligated to criminalize international crimes and to punish perpetrators and Icelandic courts might have to consider those international obligations when determining whether the application of the Draft Bill would in fact be retroactive.

3 Nullum Crimen Sine Lege – The Principle of Non-Retroactivity of

Criminal Law

Is it in conformity with the nullum crimen sine lege principle to have the Draft Bill apply to offences committed before the entry of the legislation? Before entry into force of the proposed legislation, it has not been possible under Icelandic law to prosecute and try for international crimes as specific crimes. The only possibility was to try for regular crimes. According to the Draft Bill, when the new legislation comes into force, it will be possible for Icelandic authorities to try and prosecute for international crimes committed prior to its entry into force, under certain conditions.34

According to the commentary to Article 10, the conditions for retroactive application of the Draft Bill are strict. An offence must have been criminal according to Icelandic law at the time of commission. As an example, to convict for genocide committed prior to the entry into force of the new legislation, the underlying offences, such as murder, must be present, as well as all material and mental elements. The condition for application of law by analogy according to Article 69(1) of the Constitution of Iceland35 must be fulfilled.36 According to Article 7 of the European Convention on Human Rights (ECHR) and Article 15 of the International Covenant on Civil and Political Rights (ICCPR), the offence must have constituted a criminal offence under international law at the time when it was committed. Furthermore, it is not allowed to impose more severe punishment then legislation at the time of the commission prescribed for

34 Draft Parliamentary Bill, p. 28.

35 Constitution of the Republic of Iceland No. 33, 17 June 1944 (as amended 30 May 1984, 31 May 1991, 28 June

1995 and 24 June 1999), Article 69.

36 Further, Article 2 General Penal Code No. 19/1940 provides the following: “Where penal legislation is amended

between the commission of a deed and the delivery of judgment, the case shall be judged according to the newer legislation, both as regards the criminality of the deed and the punishment. At no time, however, may punishment be imposed unless it was authorised in law at the time when the deed was committed; nor may a more severe punishment be imposed than would have been imposed under that law. If penal provisions in law have ceased to apply for reasons that do not indicate a change in the legislature’s assessment of the criminality of the deed, the case shall be judged according to the law applying when the offence was committed.”

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the offence, which is in accordance with Article 69(1) of the Constitution of Iceland, Article 2(1) of the General Penal Code No. 19/1940, Article 15(1) ICCPR and Article 7 ECHR.37

The authors of the Draft Bill provide five arguments to sustain the claim that retroactive application of the proposed legislation is in fact in conformity with the provisions in the Constitution of Iceland. First, the authors note the graveness of the crimes and how foreseeable is that the behaviour of the offender would induce liability. Iceland has ratified the international conventions criminalizing international crimes, as well as having ratified and published the Rome Statute. The culpability is therefore foreseeable.38 Second, in light of the aforementioned, the purpose of Article 69 Constitution of Iceland should be kept in mind, i.e. that criminal law is foreseeable and not arbitrarily applied.39 Third, it should be recognized that perpetrators of international crimes could be present on Icelandic territory without the Icelandic authorities being able to effectively prosecute or extradite them.40 Fourth, retroactive application of law is not explicitly prohibited in the Constitution of Iceland, as is the case in Norway.41 Lastly, the international obligations of Iceland, in the field of human rights law, international humanitarian law as well as international criminal law, should be kept in mind when interpreting Article 69 of the Constitution of Iceland.42

3.1 Nullum Crimen Sine Lege and Domestic Law

To determine if Article 10 of the Draft Bill, allowing retroactive application of the proposed legislation, is in conformity with the nullum crimen sine lege principle, it must be examined what this principle entails in domestic law. This is a fundamental principle of criminal law, stating “that individuals can only be held accountable for acts which were criminal at the time of their commission”43 and that law applied retroactively, criminalizing acts ex post facto, is considered to be a serious violation of human rights.44 The principle is also referred to as the principle of legality and functions as a safeguard for the rights of individuals against the state, exercising arbitrary authority.45 The principle is closely linked to its counterpart, nulla poena

37 Draft Parliamentary Bill, p. 28. 38 Ibid.

39 Ibid, p. 28-29. 40 Ibid, p. 29. 41 Ibid. 42 Ibid.

43 Amicus Curiae Brief on the case Santiago Bryson de la Barra et al. (on crimes against humanity) for the

Constitutional Court of Peru, CDL-AD(2011)041, 14/15 Oct. 2011, p. 12.

44 Ibid, p. 13.

45 Machteld Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal

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sine lege, i.e. that there can be no punishment without law.46 There are two aspects to the nullum

crimen principle, non-retroactivity and clarity of law.47

According to Antonio Cassese, the doctrine of strict legality, or the strict interpretation of the legality principle,upheld by most democratic civil law countries, expresses four main notions.48 First, the source of criminal law must be written law, either legislation passed by Parliament or secondary legislation coming from the executive power, not customary law (nullum crimen sine lege scripta). Second, rules criminalizing certain behaviour in society must be as clear and specific as possible (nullum crimen sine stricta). Third, criminal law may not be applied retroactively, i.e. it is only possible to punish for behaviour that was criminal of the time of commission (nullum crimen sine praevia lege). Fourth, resorting to analogy when applying criminal law is prohibited.49 The foundation of this principle is that it is in favour of the accused (favor rei), as opposed to being in favour of society (favor societatis).50

The principle of non-retroactivity of criminal law is derived from the nullum crimen principle. On the international level the principle has been interpreted by various international tribunals, ever since the Nuremberg trials, where a strict interpretation of the principle was rejected51 as it would be unjust to allow the atrocities to go unpunished.52 National courts have over the years dealt with issues arising because of retroactive application of legislation on international crimes, especially crimes against humanity, as well as questions regarding foreseeability and the clarity of law.53 Some domestic courts have followed the interpretation of the Nuremberg trials while other courts have refused to apply recent legislation to acts committed in the past.

In a few cases regarding crimes against humanity before French courts, Barbie from 1987,

Touvier from 1994 and Papon from 1998, the objection of retroactivity was rejected by the

courts. Legislation on crimes against humanity was enacted in 1964 and, for example, in the

46 Franz von Liszt descripted the two principles, nullum crimen sine lege, nulla poena sine lege, as “the citizen’s

bulwark against the State’s omnipotence; they protect the individual against the ruthless power of the majority, against Leviathan”. Franz von Liszt, ‘The Rationale for the Nullum Crimen Principle’ (2007) 5 Journal of International Criminal Justice 1009, p. 1010.

47 Robert Cryer and others, An Introduction to International Criminal Law and Procedure, p. 18.

48 Considering the legality principle in Icelandic law, it is appropriate to refer to the work of Cassese on the

principle. Jónatan Thórmundsson has written about the legality principle in Icelandic law and it expresses the same notions, aside from the unconditional ban on resorting to analogy. See Jónatan Thórmundsson, Afbrot og

refsiábyrgð I (Háskólaútgáfan 1999), p. 167.

49 Antonio Cassese, International Criminal Law (2nd edn Oxford University Press, New York 2008), p. 37-38. 50 Ibid, p. 38.

51 Harmen van der Wilt, ‘Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability

Test’ (2015) 84 Nordic Journal of International Law 515, p. 516.

52 Ibid, p. 517.

53 Amicus Curiae Brief on the case Santiago Bryson de la Barra et al. (on crimes against humanity) for the

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Touvier case, the events occurred over 20 years before that. The courts invoked Article 7(2) of

the ECHR and claimed that this provision provided both for the future and past.54 The same approach was followed by the three Baltic states after 1990 in cases concerning crimes committed during the Soviet era. As will be further discussed in relation to nullum crimen in human rights treaties, Estonian Court of Appeal rejected objections raised regarding retroactivity, by applying both a new provision on crimes against humanity retroactively as well as Article 7(2) ECHR.55

However, this approach is not employed by all states. Many domestic courts have rejected retroactive application of new criminal legislation. Further, many judicial authorities have showed hesitation to rely on international law to justify such application. The Supreme Court of the Netherlands in the Bouterse case found that sentencing Desi Bouterse, former leader in Suriname and now the current president, on grounds of the 1988 Act Implementing the Torture Convention by the Amsterdam Court of Appeal for acts committed in 1982 was in violation of the principle of legality in the Dutch Constitution.56 The Supreme Court of Norway went along the same lines and found that applying a legislation on international crimes that came into effect in 2008 to acts committed in 1992 violated Article 97 of the Norwegian Constitution that prohibits retroactive application of laws. Since the Norwegian legal system and the Icelandic legal system are similar to each other, this judgment of the Norwegian Supreme Court deserves a closer look in chapter 3.3.

Alicia Gil Gil criticised a judgment of the Spanish National Court (Audiencia Nacional, AN) in the case of Adolfo Scilingo, where a provision in the Spanish legal system, which came into force on 1 October 2004 was applied retroactively to the crimes committed by Mr Scilingo 30 years earlier.57 The Spanish Constitution requires that offences and penalties must be provided by law passed by Parliament, that the law must be precise and that unfavourable law must not be applied retroactively. Customary international law could therefore not be applied without violating the Constitution, unless it is incorporated in domestic law by parliament.58 According to Gil Gil, since the relevant international rules were not directly applicable in the Spanish legal system, the AN violated the nullum crimen principle when sentencing Mr Scilingo for crimes against humanity.59

54 Amicus Curiae Brief on the case Santiago Bryson de la Barra et al. (on crimes against humanity) for the

Constitutional Court of Peru, CDL-AD(2011)041, 14/15 Oct. 2011, p. 13.

55 Ibid, p. 13-14.

56 In re Bouterse, Supreme Court, 18 September 2001.

57 Alicia Gil Gil, ‘The Flaws of the Scilingo Judgment’ (2005) 3 J Int Criminal Justice 1082, p. 1082-1084. 58 Ibid, p. 1085.

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The nature of international crimes and the fact that the international community has collectively agreed “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”,60 i.e. end the possibility of states becoming safe havens for perpetrators of such crimes, has been used as an argument for retroactive application of new legislation on international crimes, for example by the authors of the Draft Bill. An often-quoted passage from the International Military Tribunal at Nuremberg (IMT) deserves to be taken up here as well:

In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.61

By this, the IMT sought to justify the punishment of the accused despite their conduct to not have been explicitly criminalized at the time of commission.62 It has to be noted that in the case of the Nuremberg trials, the tribunal was dealing with the nullum crimen principle in international law, and not domestic law. The principle of legality has to some extent different content in domestic law as opposed to international law or is interpreted in a stricter manner by national courts. This is in particular because of the requirement of criminal legislation to be written law, making customary law an insufficient basis for punishment. In the cases of dualistic countries, as will be discussed in chapter 4, international law must be implemented by parliament to be a ground for criminal responsibility in national law.

The matter of retroactive application of international criminal law on the domestic level clearly touches upon fundamental human rights of the accused, as is described in Article 7 ECHR and Article 15 ICCPR, weighed against the interests of the international community to prevent and prosecute for international crimes. The ECtHR has on few occasions discussed if domestic courts have violated the nullum crimen enshrined in Article 7 ECHR when sentencing for international crimes.

60 Preamble to Rome Statute of the International Criminal Court.

61 France et al. v. Göring et al. (1948), 22 Trial of the Major War Criminals before the International Military

Tribunal, 14 November 1945-1 October 1946 (IMT) 203, p. 462.

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3.2 Nullum Crimen Sine Lege in Human Rights Treaties

The nullum crimen sine lege principle is a fundamental one and aims to protect the rights of the accused against arbitrary use of power by the state. The principle can be found in various international and regional human rights treaties.63 For present purposes, the focus will be on Article 7(1) ECHR, which reads:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.64

Article 7(2) contains an exception to the prohibition on retroactive application of criminal law, and says that the “Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations”.65 The purpose of this article is, according to Antonio Cassese, to make sure that when behaviour has not been criminalized by either treaty or customary law, it may still be criminal and punishable with general principles of law, which is a subsidiary source, as a foundation.66 Article 15 ICCPR is almost identical in wording to Article 7 ECHR.

According to the above provisions of ECHR and ICCPR, in the absence of domestic criminalization of international crimes, the principle of nullum crimen sine lege is not violated if an act or an omission is criminalized by national law, international law or general principles of law recognized by the community of nations. It is therefore possible to prosecute for international crimes before a domestic court in the absence of national legislation thereto, if the court has jurisdiction over those crimes.67 Valentina Spiga describes that three conditions must be met in order to impose criminal responsibility before domestic courts based on international law or general principles of law. First, the state must have ratified an international treaty or convention creating criminal responsibility, or there is a customary rule present. Second, the criminal responsibility must be foreseeable and accessible to the accused and third,

63 Jonas Nilsson, ‘The Principle Nullum Crimen Sine Lege’ in Olaoluwa Olusanya (ed), Rethinking International

Criminal Law: The Substantive Part (Europa Law Publishing, Groningen 2007), p. 42.

64 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human

Rights, as amended) (ECHR), art 7(1).

65 Ibid, art 7(2).

66 Antonio Cassese, ‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal

Law: The Kolk and Kislyiy v. Estonia Case before the ECHR’ (2006) 4 J Int Criminal Justice 410, p. 415.

67 Valentina Spiga, ‘Non-Retroactivity of Criminal Law: A New Chapter in the Hissène Habré Saga’ (2011) 9 J

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the state must have legislation incorporating substantive and procedural rules for international crimes in its legislation, either by specific incorporation or allowing direct application.68

The ECtHR has followed the approach in the Nuremberg trials, and subsequently the domestic courts of France, Germany and the Baltic states, in its findings that prima facie retroactive application of law criminalizing international crimes is not in violation of Article 7 ECHR.69 In K. – H. W. v. Germany70 and Streletz, Kessler and Krenz v. Germany,71 the Court found that removing the justification for the shootings of people trying to flee the German Democratic Republic and subsequently prosecuting the offenders, would not fall under the protection of Article 7(1) ECHR.72 The Court stated in Kolk and Kislyiy v. Estonia that “even if the acts committed by the applicants could have been regarded as lawful under the Soviet law at the material time, they were nevertheless found by the Estonian courts to constitute crimes against humanity under international law at the time of their commission. The Court sees no reason to come to a different conclusion”.73 Antonio Cassese has criticised the legal reasoning of the Court in this case although agreeing on the outcome.74 In the case of Korbely

v. Hungary the ECtHR held that there was a violation of Article 7 ECHR. However, the Court

noted that Common Article 3 was at the time accessible and foreseeable.75

The ECtHR has emphasized, when determining if a retroactive application of law violates the nullum crimen principle, whether the rule criminalising certain acts or omission can be considered foreseeable and accessible to the accused. The Court dealt with this for the first time in Sunday Times v. The United Kingdom.76 In that case the court elaborated on notion “prescribed by law” and stated that there were two requirements that need to be fulfilled for law to be sufficiently accessible and foreseeable:

68 Valentina Spiga, ‘Non-Retroactivity of Criminal Law: A New Chapter in the Hissène Habré Saga’, p. 16. 69 Amicus Curiae Brief on the case Santiago Bryson de la Barra et al. (on crimes against humanity) for the

Constitutional Court of Peru, CDL-AD(2011)041, 14/15 Oct. 2011, p. 15.

70 ECtHR, K. – H. W. v. Germany, Application No. 37201/97, Judgment, 22 March 2001.

71 ECtHR, Streletz, Kessler and Krenz v. Germany, Applications No. 34044/96, 35532/97, 44801/98, Judgment,

22 March 2001.

72 Amicus Curiae Brief on the case Santiago Bryson de la Barra et al. (on crimes against humanity) for the

Constitutional Court of Peru, CDL-AD(2011)041, 14/15 Oct. 2011, p. 15.

73 ECtHR, Kolk and Kislyiy v. Estonia, Applications No. 23052/04 and 24018/04, Judgment, 17 January 2006, 9. 74 See Antonio Cassese, ‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of

Criminal Law: The Kolk and Kislyiy v. Estonia Case before the ECHR’ (2006) 4 J Int Criminal Justice 410. Cassese states, inter alia, that “when only international criminal rules are at stake, or when those rules conflict with national criminal law, the requirements of accessibility and foreseeability may legitimately diminish to the point of fading away. Thus, the need to make international values upholding human dignity (and the legal rules enshrining those values) prevail over diverging national legislation, tips the balance in favour of international law, to the detriment of the accessibility and foreseeability of criminal law”.

75 ECtHR, Korbely v. Hungary, Application No. 9174/02, Judgment, 19 September 2008.

76 ECtHR, Sunday Times v. The United Kingdom, 26 April 1979, no. 6538/74. See Harmen van der Wilt, ‘Nullum

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Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.77

In Kononov v. Latvia, the Court ruled that prosecution of the applicant by Latvian authorities for crimes committed in 1944 on the basis of international law at the time, did not violate Article 7 ECHR. The main considerations by the ECtHR were if there was a persuasive legal basis existing to base conviction of war crime and whether the applicant could have reasonably foreseen his criminal responsibility.78 The Grand Chamber addressed the legal issues at hand in a systematic manner. First, it confirmed that individual criminal responsibility for war crimes under international law existed in 1944.79 Second, the Grand Chamber affirmed that the offences of the applicant had been considered war crimes under international law at the time of commission.80 Finally, the Grand Chamber had to assess whether the applicant could foresee his criminal responsibility and found it so to be, since individual criminal responsibility existed already in 1944 and considering the graveness of his acts as well as his status as a commander. There was therefore, according to the court, no ex post facto law.81

In the decision, as to the admissibility of an application by Frans Cornelis Adrianus van Anraat against the Netherlands (van Anraat v. the Netherlands), the ECtHR concluded that it could not “be maintained that, at the time when the applicant was committing the acts which ultimately led to his prosecution, there was anything unclear about the criminal nature of the use of mustard gas […]. The applicant could therefore reasonably have been expected to be aware of the state of the law and if need be to take appropriate advice”.82

It is crystal clear that the relevant provisions in international law on international crimes are, in most cases, reasonably accessible and foreseeable, so it can be applied to conduct of persons at the domestic level, if domestic law allows for it. The fundamental issue with the Draft Bill is the applicability of international law in Icelandic legislation. As is stated in the

77 ECtHR, Sunday Times v. The United Kingdom, 26 April 1979, ECtHR, no. 6538/74, para. 49. A legal theory

approach is taken by Harmen van der Wilt in his article, see supra note 73.

78 Harmen van der Wilt, ‘Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability

Test’, 523. See ECtHR, Kononov v. Latvia, 17 May 2010, No. 36376/04, para. 145.

79 ECtHR, Kononov v. Latvia, 17 May 2010, No. 36376/04, para. 213. 80 Ibid, para. 227.

81 Ibid, para. 234-239.

82 Van Anraat v. the Netherlands, Application no. 65389/09, Council of Europe: European Court of Human

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Amicus Curiae Brief on the Case Santiago Brysón de la Barra et al., prosecuting for

international crimes based prima facie on retroactive application of legislation is not unlawful, “yet, it can only be applied in countries which allow for prosecutions based on international law”.83 Before examining the constitutionality of the Draft Bill and the interplay between international law and domestic law in Iceland, the Norwegian legislation from 2005 and the Supreme Court Judgment that followed will be analysed, since the situation was very similar to the one proposed in the Draft Bill.

3.3 The 2005 Norwegian Legislation and the Aftermath

Norway completed a revision of its Penal Code in 2005 which resulted in the incorporation of substantive provisions on international crimes that entered into force on the 7 March 2008.84 According to the new legislation, it applied to crimes committed prior to the legislations entry into force, which is the approach the authors of the Icelandic Draft Bill adopted.85 The Supreme Court of Norway dealt with the question whether this retroactive application violated Article 97 of the Norwegian Constitution. That article simply states that “no law must be given retroactive effect”.86

The Norwegian courts dealt with the issue whether the provisions on crimes against humanity and war crimes in the amended Penal Code, could be applied to acts that took place in Bosnia-Herzegovina in 1992. The defendant was prosecuted for “crimes punishable pursuant to the Penal Code 2005 section 102 (1) (e) (crime against humanity) and section 103 (1) (b), (d) and (h) (war crimes against individuals)”.87 Before the District Court, the main question of the proceedings was whether the new provisions on international crimes could be applied retroactively or if that would violate Article 97 of the Norwegian Constitution. The District Court found that it would constitute a violation with regards to the charges of crimes against humanity according to section 102 of the General Penal Code, but not concerning war crime charges according to section 103.88

83 Amicus Curiae Brief on the case Santiago Bryson de la Barra et al. (on crimes against humanity) for the

Constitutional Court of Peru, CDL-AD(2011)041, 14/15 Oct. 2011, p. 15.

84 Simon O’Connor, ‘War Crimes before the Norwegian Supreme Court: The Obligation to Prosecute and the

Principle of Legality – An Incumbrance or Opportunity?’ (2013) Oxford Institute for Ethics, Law, and Armed Conflict Working Paper, p. 3.

85 Thórdís Ingadóttir, ‘The Implementation of the Rome Statute of the International Criminal Court in the Nordic

Countries: A New Approach to Criminalization of International Crimes’, p. 7.

86 Article 97 of the Constitution of the Kingdom of Norway. English translation can be found at

<https://www.stortinget.no/en/Grunnlovsjubileet/In-English/The-Constitution---Complete-text/>

87 Supreme Court of Norway HR-2011-00808-A, (case no. 2010/934), para. 2. 88 Ibid, para. 5.

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The Supreme Court of Norway delivered a judgment on 3 December 2010 in a case regarding the question whether application of the Penal Code 2005 section 102 would constitute unlawful retroactive legislation. A majority of 11 judges held “that sections 102 and 103 of the Penal Code 2005 could not be applied because this would contravene Article 97 of the Norwegian Constitution, which prohibits laws from being given retroactive effect”.89 The majority stated that “developments in international law and Norway’s interest in assisting international criminal courts could not undermine the fundamental requirement that a criminal conviction must have an authority in Norwegian law”.90 The minority, six judges, took the view “that conviction pursuant to sections 102 and 103 of the Penal Code 2005 would not be manifestly more onerous than conviction pursuant to section 223 of the Penal Code 1902, which applied at the time, coupled with the possibility of trial before an international court”,91 and found that convicting the defendant on the basis of the provisions in question would not be a violation of Article 97. The Court further ruled that the acts should be subsumed under relevant articles in the Penal Code 1902 that were in effect at the time of the commission, i.e. ordinary crimes.

On 13 April 2011, the Supreme Court delivered a judgement, were the defendant was convicted “for crimes in breach of the Penal Code section 223 (1) and (2)”92 and was sentenced to 8 years of imprisonment. In its judgment, the Court states that the crimes committed by the defendant were clearly contrary to international humanitarian law, and referred to Article 147 “of the Geneva Convention of 12 August 1949”.93 There was therefore no dispute in the minds of the judges over the criminal nature of the acts of the defendant in international law at the time of the commission.

Simon O’Connor criticised the findings of the Supreme Court. In his article, he states that the Court was not ruling on criminal nature of the act in international law but whether it was possible to punish the defendant for war crimes according to Norwegian legislation.94 According to him, the Court failed to address the question whether it was foreseeable and accessible to the defendant that he would incur criminal responsibility by his acts. He further states that “if that were the case then there is an argument that this would not, properly

89 Supreme Court of Norway HR-2011-00808-A, (case no. 2010/934), para. 15.

90 Supreme Court of Norway (22 December 2010), ‘Summary of Recent Supreme Court Decisions 2010 (case no.

2010/934)’.

91 Ibid.

92 Supreme Court of Norway HR-2011-00808-A, (case no. 2010/934), para. 109. 93 Ibid, para 89.

94 Simon O’Connor, ‘War Crimes before the Norwegian Supreme Court: The Obligation to Prosecute and the

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considered, constitute a retroactive application of law”95 and refers to the Kononov v. Latvia case of the ECtHR.96 Concluding, he states that the prohibition on retroactivity serves to prevent prosecution of acts that were lawful at the time of commission, but not preventing authorities from prosecuting perpetrators of manifestly unlawful acts.97 In his opinion, section 3(2) of the Norwegian Penal Code does not give retroactive effect to laws, since the laws prohibiting the acts of the defendant were existing at the time of the commission and long before that. His view is that the Supreme Court of Norway missed a chance to contribute to international justice by its judgment.98

A good argument for the strict approach of the Supreme Court of Norway, and which addresses O’Connor’s critique regarding the foreseeability and accessibility, is one made by Alicia Gil Gil in relations to her criticism of the AN judgment in the case of Scilingo. She states that the court forgets, when making the judgment, “that it is not an international tribunal applying international norms, or even a domestic tribunal applying international law. As it recognized, the relevant international rules were not self-executing and the AN was acting as a domestic court, applying domestic law in a state based on a civil-law system, which recognizes the rule of law”.99 O’Connor fails to take this into consideration.

Further, Arnfinn Bårdsen described at a seminar held by the EFTA Court and the Norwegian Supreme Court in 2014, that despite Article 7 ECHR serving as a sufficient legal basis for criminal responsibility, Article 96 requires that for establishing criminal responsibility, there must be a violation of law criminalizing such breach.100 By law Article 96 is referring to Norwegian legislation and therefore international criminal law could not “as such be applied directly by Norwegian courts”.101

To understand how the Icelandic Draft bill and its retroactive application would succeed before Icelandic courts, the relevant provisions of the Constitution of Iceland, as well as some provisions of the General Penal Code No. 19/1940, must be examined.

95 Simon O’Connor, ‘War Crimes before the Norwegian Supreme Court: The Obligation to Prosecute and the

Principle of Legality – An Incumbrance or Opportunity?’, p. 23.

96 Ibid. 97 Ibid, p. 34. 98 Ibid, p. 35.

99 Alicia Gil Gil, ‘The Flaws of the Scilingo Judgment’, p. 1087.

100 Arnfinn Bårdsen, ‘The Norwegian Supreme Court and the Internationalisation of Law’, Seminar for the EFTA

Court and the Norwegian Supreme Court, (7 and 8 October 2014), para. 16.

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3.4 Is the Draft Bill in Conformity with the Constitution of Iceland?

The authors of the Draft Bill state, that when examining whether the Icelandic courts would follow the same approach as the Supreme Court of Norway did in its judgment, it must be kept in mind that the provisions prohibiting laws being given retroactive effect in the two constitutions are different in scope and wording.102 Article 69(1) of the Constitution of Iceland reads:

No one may be subjected to punishment unless found guilty of conduct that constituted a criminal offence according to the law at the time when it was committed, or is totally analogous to such conduct. The sanctions may not be more severe than the law permitted at the time of commission.103

Thórdís Ingadóttir takes the view that the retroactive application of the Draft Bill would not violate Article 69(1), since it allows for punishment for conduct totally analogous104 to a conduct that constituted a criminal offence according to the law at the time of commission, and states that there lies the difference between the Icelandic and the Norwegian Constitutions.105 The wording of the Constitution of Iceland gives room for a more lenient approach to the legality principle then the Norwegian one, by allowing application by total analogy. Article 97 of the Norwegian Constitution is without reservation, while that is not the case with Article 69(1) of the Constitution of Iceland. In that sense, there is a possibility that Icelandic courts might not consider it in violation of the Constitution to apply the Draft Bill to acts committed prior to its entry into force. Some acts constituting international crimes might be totally analogous to conduct criminalized by the General Penal Code, such as murder, rape and grievous bodily harm. This is not the case with all international crimes, as many war crimes or genocide, since the special intent is absent from the general provisions, would not find its counterpart in the pre-existing criminal legislation in Iceland. Furthermore, Icelandic courts have interpreted relevant provisions of Icelandic legislation in light of international obligations on numerous occasions.

Article 1 of the General Penal Code No. 19/1940 states that “no person shall be punished without being convicted of conduct which is punishable according to law or can be regarded

102 Draft Parliamentary Bill, p. 29.

103 Constitution of the Republic of Iceland No. 33/1944, Article 69.

104 Analogy is an exception to the principle of legality in Icelandic law, c.f. Article 1 of the General Penal Code

No. 19/1940. This is referred to as total analogy, i.e. that a person can be punished for a conduct if that conduct can be considered to be completely comparable to the criminal conduct. See Jónatan Thórmundsson, Afbrot og

refsiábyrgð I, p. 195-208.

105 Thórdís Ingadóttir, ‘The Implementation of the Rome Statute of the International Criminal Court in the Nordic

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as fully equivalent to conduct that is considered an offence according to law.”106 Further, Article 2(1) of the General Penal Code contains a prohibition of retroactive application of criminal law provisions that are unfavourable for the accused:

Where penal legislation is amended between the commission of a deed and the delivery of judgment, the case shall be judged according to the newer legislation, both as regards the criminality of the deed and the punishment. At no time, however, may punishment be imposed unless it was authorised in law at the time when the deed was committed; nor may a more severe punishment be imposed than would have been imposed under that law. If penal provisions in law have ceased to apply for reasons that do not indicate a change in the legislature’s assessment of the criminality of the deed, the case shall be judged according to the law applying when the offence was committed.107

Law in the sense of the above provisions means written law of the legislature. A person that has committed acts described as criminal in international law, either treaty or custom, will not be prosecuted nor punished for that act before Icelandic courts, unless a provision describing that same act as criminal has been adopted or implemented in national legislation by the Althingi. This implementation has to have taken place prior to the commission of the criminal act.108 As is evident from chapter 2, the Draft Bill will introduce for the first time international crimes as specific crimes in Icelandic legislation.

Therefore, there is a possibility that Icelandic courts will not be willing to apply the new legislation retroactively, since that will clearly be unfavourable for the accused. As will be discussed in the following chapter, international law has no direct applicability in Icelandic law and the Althingi must implement international law for Icelandic courts to be able to incur criminal responsibility on its basis. Considering the lack of substantive international criminal law in Icelandic criminal legislation up until now, Icelandic courts might be inclined to follow the same line of argument as the Norwegian Supreme Court and favour the requirement that criminal conviction must find its authority in Icelandic law. However, Icelandic courts will have to take into consideration the relevant international law in this regard.

4 Effect of International law in National Law

How does the applicability of international law in domestic law affect the principle of legality? The substantive law of neither the relevant conventions, discussed in chapter two, nor the relevant customary international law has, up until the Draft Bill, been implemented in Icelandic legislation, but has placed obligations on Icelandic authorities to comply with them.

106 General Penal Code No. 19/1940, Article 1. 107 General Penal Code No. 19/1940, Article 2(1).

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