The Trial of Adolf Eichmann
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":
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:
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:
It is beyond all doubt that any legislation in
violation of this principle is an offence against
international law."[26]
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:
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:
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Defence Submission 2
(Part 2 of 4)
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.
"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]
"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.
"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]
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.
"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.
"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]