Legality: Positivistic Foundation of the Penal Institutions in International Law

Positivism is distinct from natural law theories in that it holds that there is no necessary conceptual connection between law and morality, but Positivism sometimes has been diminished into pure formalism. While Formal procedures of formation of the rules and institutions in international law could be considered as a formalistic aspect of positivism, positivism may also enter into foundational frameworks in which the norms and the procedures could be formed. In this context the positivistic aspect of creation of legal institutions in international criminal law could be considered as an important element in evaluation of the legality of institutions. The principle of non-retroactivity of obligations, doctrine of act of State and the superior order are some of the relevant examples. In this article by focusing on the legal foundations for formation of the criminal institutions in international law, we will consider whether the Nuremberg was a legal criminal institution in international criminal law and how it is possible to generalize the criteria of legality to other international criminal institutions.