The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Defence Submission 2
(Part 2 of 4)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
This development is most important because in respect of statutory law, even in Anglo-American jurisdictions the prohibition of retrospective application applies.[17] Therefore, Stone[18] is wrong in feeling himself entitled - in the discussion of the problem in the context of the Nuremberg Trials - to state, relying upon Radbruch, that the prohibition of retrospective application cannot be classified as a legally binding rule and that particularly in England it did not constitute a "rule of law," but only a "moral principle." In holding this view, not only the reliance upon Radbruch is erroneous, but the statement is also wrong on its merits.

In the passage quoted by Stone[19], Radbruch made the express reservation that only to "judge-made law" the prohibition of retrospective application could not be applied. In another passage too, Radbruch has upheld this view":

"The prohibition of retrospective application of criminal law cannot apply, it is true, inasfar as "judge-made law" is concerned...where the constitution of the USA (art. I sec. 9 paragraph 3 and art. I sec. 10 paragraph 1) prohibits "ex_post-facto laws," the meaning thereof, likewise, can only be statutes with retrospective effect, but not judge-made law."[20]
Moreover, there cannot be doubt that the prohibition of retrospective application applies also in the United States, at least in respect of statutory criminal law. What other construction could be given to the provisions of the Constitution of the United States which have just been mentioned![21]

It has therefore to be concluded that the prohibition of retrospective application applies as a legal principle also in the Anglo-American jurisdiction, at least inasfar as criminal law is statutory law.

III. Nulla poena sine lege - a principle of international law?

In this respect, opinions differ. However the "General Declaration of Human Rights" dated 10 December 1948 provides in art. 11 (2) as follows:

"No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal 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 penal offence was committed."
Now it is true that owing to the absence of binding character the meaning which can be attributed to this provision of the Declaration, is only a very narrow one. At any rate, by virtue of this provision the prohibition of retrospective application has not been promoted to the rank of a rule of international law.

Mention should also be made of the identically worded provision of art. 7 (1) of the European Convention for the Protection of Human Rights and Basic Liberties which at least has established the prohibition of retrospective application in a great number of European countries as an identical rule of municipal law. However, even the force of this provision is somewhat weakened by para. 2 which provides that by virtue of this article the conviction and punishment of a person shall not be excluded, if this person has been guilty of an act of omission which has been punishable at the time of their occurrence, according to legal principles generally recognized by civilized nations. Owing to the doubtful character of this legal provision, the Federal Government was perfectly correct in making a reservation under art. 64 of the Convention in respect of para. 2 of art. 7; therefore para.2 at any rate has not the force of law in Germany.

On the other hand, art. 65 of the Geneva Convention on the Protection of Civilian Persons in Time of War, of 12 August 1949, is stronger evidence for the force of the prohibition in international law. According to this provision, provisions of criminal law made by the occupying power will come into force only after they have been published and brought to the knowledge of the population in their own language; they cannot have retrospective effect.

The opinion of authors differ. Most of those who reject the proposition rely upon the assertion that the ex-post-facto prohibition, does not fit into the system of the Common Law.[22] However, they overlook the fact that in Common Law jurisdiction too, the prohibition of retrospective application applies at any rate to statute law. This kind of argumentation is, therefore, not very convincing.

However, greater weight has to be attributed to Radbruch's objection that the principle does not apply to international criminal law, this branch being to a large extent judge-made law.[23] Even assuming that this opinion is correct, nevertheless it must be emphasized that the exemption from the prohibition of retrospective application, recognized by Radbruch, applies only to jurisdiction based directly on international law but not to municipal jurisdiction based upon municipal statute law.

On the other hand, authors holding an affirmative view state that the prohibition of retrospective application is a general legal principle recognized by all civilized nations.[24] Smith, in particular, claims that the character of the prohibition of retrospective application as a rule of international law flows from its general recognition and from reference to art. 38 I(d) of the Statute of the International Court of Justice:

"If this rule was one of the `general principles recognized by civilized nations' it follows that it formed part of international law, and that a trial which violates the rule is illegal under the law of nations.[25]

It is beyond all doubt that any legislation in violation of this principle is an offence against international law."[26]

There are, however, authors who have expressed a view denying the existence of such a generally recognized principle of law,[27] so that it cannot be stated with absolute certainty that the prohibition of retrospective application has the nature of a rule of international law.

C: Objections to the rule of "nulla poena sine lege"

It stands to reason that objections to the rule "nulla poena sine lege" have been raised, and in fact they have been raised time and again.

Thus, for instance, an attempt could be made to raise doubt as to the axiomatic meaning of this principle having regard to the period when it came into existence. The prohibition of retrospective application stems from the period of enlightenment[28] and is therefore open to the objection of being the result of individualistic and liberalistic ways of thinking which have become obsolete long ago. Thus, the principle would disregard the primary object of criminal law, namely the protection of society, preferring the guarantee of liberty of the criminal. The "function of criminal law is a guarantee of the rights of the individual"[29] originating in the maxim "nulla poena sine lege" would therefore result necessarily in the perversion of the administration of criminal justice, if the primary object and purpose of criminal law would not be any more the protection of society threatened by the criminal, which has even been abused by his misdeed.

If, in order to stress the importance of the prohibition of retrospective application, it is emphasized that this principle from time immemorial is part and parcel of the "classic" guarantee of liberties under the rule of law,[30] the following objections are to be expected:

"The prohibition of retrospective application is a liberalistic principle of partly formalistic nature. In the first place, it prevents the punishment of deeds which are utterly immoral and ought to be punished. This can hardly be denied. However, at present, a State cannot be considered as respecting the rule of law, if it submits itself only to certain formal principles of law which can be called `legal-technical' guarantees. Rather substantial principles of justice characterizing the rule of law have come to the fore which the State ought to be bound to follow in the performance of all its functions, if it wishes to be called rightfully a `state respecting the rule of law.' This attribution of substantial elements to the idea of the rule of law has also taken place precisely after the war in the jurisprudence of the Federal Republic of Germany, so that the strong emphasis laid upon formal elements in the idea of the rule of law would even not be any more in conformity with the legal conception actually prevailing in Germany."
Indeed, the change, or the further development, of the idea of the rule of law in Germany cannot be denied.

Wintrich, the late President of the Federal Constitutional Court, following the Swiss scholar of constitutional law Kaegi, has given expression to that change by stating that the constitutional system of our liberal democracy is not merely a mechanism of majority indifferent to any values, but is the expression of a legal system determined and characterized by the hierarchy of its essential values.[31]

However, it has to be mentioned that recently salient opinions have been expressed in the Federal Republic,[32] stressing the dangers threatening the rule of law by underrating the formal elements, its guarantees of a legal-technical nature as compared with the attribution of substantial elements by reference to a so-called "supra-positive" law, to natural law, to inalienable ethical and moral values and by removing them to the second rank as being of secondary value. Forsthoff[33] has rightly recalled "that the rule of law is precisely characterized by carrying out its objects through strict wording and phrasing of the Constitution (separation of powers, independence of the judiciary, basic rights to which specific functions of guarantee classified by means of legal technicalities, are attached, the notion of statute law, etc.) and of the forms of activity of the State." This array of formal instruments in the rule of law affords a more efficient protection against the commission of wrong than "efforts directed towards a supra-positive strengthening of a Constitution based upon the rule of law."[34] For such an effort presupposes the existence of the extra-legal binding character of ideas based upon natural law or other rules of ethics. However, this will be meaningful only, if "these ideas have a chance of being effective in critical situations - and only these situations do matter."[35] Forsthoff[36] is not alone in holding this view that our era is characterized by its ability to produce in critical situations ideologies proclaimed as ethics or morals - in any form and for any purpose whatsoever - and to have them accepted (and the experience of the National-Socialist era is a clear-cut depressing example for the truth of this thesis). A solid awareness of values, which alone could make such supra_positive ideas binding and at the same time enforceable in law, does not exist at present - and not only in the national but also in the international sphere. Thus, for instance, Jescheck[37] has raised doubts "whether supreme legally protected interests of the community of international law, recognized by the whole of mankind as absolute values, do exist at all." Schwarzenberger has confirmed these doubts in his book "Power Politics."[38] At the outset, he emphasizes the religious origin of most ethical systems which, by a process of secularization, have developed, later on, a more or less greater degree of "autonomy" from their religious origin. Schwarzenberger then asks the following question:

"Does not this very origin of moral rules establish a presumption against the existence of an universal code of international morality? Do not necessarily Western, Soviet and Far Eastern statesmen mean very different things when they speak of justice, equity, honour or friendship between States?"[39]
In a survey of the views of the great religions in the question of "inter-state-relations," Schwarzenberger ascertains the existence of "fundamental divergences."[40] His sceptical reserve as to the meaning in law of "international morality" is therefore only a logical result.[41]


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