Resolution 2178 is not in itself the
basis for criminalising the behaviour it seeks to suppress. On the
contrary, it resembles the classic suppression conventions, i.e.
international treaties imposing the obligation on contracting parties to
prohibit individual forms of conduct in their national law and, where
applicable, to criminalise and punish them.
So no foreign fighter-suspect could be
tried and sentenced on the legal basis of Res. 2178 alone. But the
reason is not, I submit, that a Security Council resolution could never –
from the perspective of international law − function as a “lex” in the
sense of the principle nulla poena sine lege. The reason is
that the “lex” here does not in itself explicitly establish the crime,
but on the contrary explicitly asks states to do to, through their
domestic criminal law. Res. 2178 makes it amply clear in its wording
that it does not intend to establish the criminal offence directly. It
may well be that under the domestic law of some countries, the
understanding of nulla poena is stricter. However, if we want
to uphold a functioning system of global governance, states and scholars
must develop an “internationalised” principle of legality that need not
consist only in the lowest common denominator but which is informed by
values of global constitutionalism.
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