The right to protection from retroactive criminal law

The Nuremberg trials

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Thirteen separate trials of war criminals were held in Nuremberg between 1945 and 1947. These trials were presided over by judges from all four major victorious allied powers: America, Britain, France and the Soviet Union. A total of 177 Germans and Austrians were indicted. All but 35 were found guilty: 25 were executed, 20 were sentenced to life imprisonment and 97 were sentenced to shorter prison terms.17

These trials represented a large-scale prosecution of Nazis, many of whom pleaded the defence of superior orders. In previous war trials, after previous wars, this defence was generally held to be available to subordinate soldiers. Before World War II, prosecutions for war crimes were limited to heads of State, and to high-ranking military commanders. The defence of superior orders was an accepted general principle of law recognised by the community of nations. In convicting lower-ranking soldiers the Nuremberg trials were, in a sense, applying international law retrospectively. Before the trials, lower-ranking soldiers could claim that in following orders from their superiors they were not breaking any law. At the trials they were told that their actions were crimes against humanity: that their actions were criminal even though they were not in breach of international law as settled at the time that their acts were committed.

According to Williams, a number of eminent jurists severely criticised the Nuremberg trials for providing for punishment of all crimes against humanity (whether or not in violation of the domestic law of the country where the acts were committed), and for declaring the waging of a war of aggression to be a crime. Both of these steps were said to go beyond existing international law.18

Despite these protestations, most jurists rationalised the behaviour of the Nuremberg court by claiming that the actions of the Nazis were so immoral as to be an exception to the principle of non-retroactivity. Williams claims:

No injustice was done at Nuremberg, because all the defendants there found guilty were clearly guilty of war crimes in the traditional sense.19
At this point, it is illustrative to quote from the law with which the Nazis altered the German Criminal Code in 1935:
Whoever commits an act which ... deserves punishment according to the principles of criminal law and to the sound feelings of the people, will be punished.20
This amendment brought condemnation from jurists around the world. Julius Stone referred, some thirty years later, to "[t]he frightfulness ... of fascist resorts to punishment of ex post facto 'crimes' ..."21

It is at least arguable that finding Nazis guilty of war crimes "in the traditional sense" is as much the application of an ex post facto law as the punishing of people who deserve punishment according to the "sound feelings of the people". Few would argue that the Nazis found guilty at Nuremberg were treated unfairly or unjustly, and jurists have been loath to admit that they were tried under a retroactive law. Yet it is clear that the principle of non-retroactivity was largely ignored.

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Last modified:  31 August 1989