Procedural Legality in International Human Rights Law

Suppose the law criminalizes an act but does not lay the procedure for prosecuting such an act. Is the Principle of Legality implicated under international human rights law if the legislature subsequently passes a retroactive procedural law to prosecute the action? Human rights scholarship does not appear to answer this question with specificity. In Justice Kabineh Ja’neh v. Liberia, the Economic Community of Western African States (“ECOWAS”) Community Court of Justice (ECCJ) faced this question. In the absence of precedent and international human rights legal scholarship to guide the ECCJ on this question, the ECCJ adopted conflicting views. This Article argues that (with the exception of the American Declaration of the Rights and Duties of Man) under the Principle of Legality in international human rights instruments, what is safeguarded is the foreseeability and nonretroactivity of substantive law prohibiting conduct and prescribing a punishment. It should be noted that this protection is non-derogable. <br><br>This Article refers to this as “Substantive Legality.” It further argues that the rationale for the Principle of Substantive Legality— prohibition of surprise, partiality, and unpredictability of what constitutes a crime and its punishment—may not be implicated by a retroactive procedural rule. If it is, States have a legitimate interest in punishing offenders aware of the consequences of their action, or inaction, even when they do not know the procedural rules to be used for their prosecution. <br><br>However, human rights advocates might find the foregoing discomforting because unfair and stringent retroactive procedural rules can affect substantive rights. Such practices can impact Substantive Legality guaranteed under international human rights law, which is non-derogable. United States House of Representatives member John Dingell once stated: “I’ll let you write the substance . . . you let me write the procedure, and I’ll screw you every time.” Just like the legitimate interest of the State, offenders have a legitimate right of protection from retroactive procedural rules that seek to tacitly “take away” their Substantive Legality right. Human rights law should not allow this violation under the guise that the Principle of Legality in the international human rights instruments seems to protect only against retroactive substantive law. <br><br>This Article aims to balance the State’s legitimate interest and the offender’s non-derogable Principle of Substantive Legality right that may be unfairly prejudiced by retroactive procedural rules. It introduces the concept of “Procedural Legality”—prospective or retroactive procedural laws consistent with the fourteen components of the Principles of Fair Trial—and argues that a retroactive procedural rule should be tested under Procedural Legality rather than the Substantive Legality. This Article contends that procedural rules could substantially impact the offender’s overall trial. Substantive Legality seeks to protect the foreseeability of crimes and their punishments, whereas Procedural Legality affects the stages of the trial. <br><br>This Article argues that if the retroactive procedural rule is considered part of and tested under the Principle of Substantive Legality, the trial will be impaired by violating a non-derogable right. Yet, States might find this interpretation offensive to their legitimate interest in punishing offenders if offenders could foresee the consequence of their (in)action by substantive law. But suppose the retroactive procedural rule is considered part of and tested under Procedural Legality. This ensures a balance: courts can determine whether the retroactive procedural rule implicates the components of Procedural Legality, and thus, substantially affects the trial. If it does not, there is no policy reason for vitiating the trial.