Legality Matters: Crimes Against Humanity and the Legitimacy of the Las Through a Fullerian Lens
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The prohibition on retroactive law is a fundamental principle of international criminal law. It is also a fundamental principle in many domestic legal systems. The principle prohibits authorities from convicting individuals for acts (or omissions) which were not criminal at the time they were committed. In international law, the prohibition is stated in absolute terms. Crimes against humanity are undoubtedly crimes but, they began their life as retroactive criminal law. Currently, the crimes against humanity prohibition on unspecified “other inhumane acts” seems to invite the continued articulation and application of new types of crimes against humanity. If this is accepted, it calls into question our commitment to the absolute prohibition on retroactive criminal law. In this thesis, I use the theories of Lon L. Fuller and the crimes against humanity prohibition on other inhumane acts to explore the prohibition on retroactive law. The theories of Fuller and the example of crimes against humanity suggest that the prohibition on retroactive law is not as absolute as assumed. Equally, the prohibition and the theories of Fuller show problematic shortcomings in the current approach to the crimes against humanity prohibition on other inhumane acts. In this thesis, I explore how these two criminal law prohibitions can illuminate and inform each other and contribute to the legitimacy of international criminal law.