This is, remarkably, the question raised by yesterday’s judgment of the Grand Chamber of the European Court of Human Rights in Kononov v. Latvia, App. No. 36376/04. In short, the applicant was a former Soviet partisan convicted by a Latvian court for war crimes, because during World War II he and the unit under his command killed a group of Latvian villagers who collaborated with the Germans. The case raised many issues of the law of armed conflict/IHL, such as combatant and civilian status – but importantly, how the law applied inter-temporally, i.e. what the law was in 1944, when the alleged crime was committed.
The Chamber 4:3 judgment in favour of Kononov was much criticized for various methodological reasons, and not just for its ultimate result. The Grand Chamber reversed the Chamber’s judgment, finding in favour of Latvia by 14:3, and is technically of significantly better quality. The ultimate result of the case and some nitpicking I would have with certain elements of the Grand Chamber’s reasoning aside, what interests me the most is its basic approach, and the broader implications that it might have.
That approach was this: (1) the GC assumed that the villagers were combatants or civilians taking a direct part in hostilities – the position in principle the most favourable to Kononov; (2) it then concluded that the extrajudicial killing of combatants who were hors de combat is not only undoubtedly a violation of the law of war today, but that it was a violation of the law as it stood in 1944 (paras. 202-204); (3) finally, the GC held that at the time the violation incurred individual criminal responsibility (at paras. 205 ff). The most interesting paragraph is 207 in fine:
The Charter of the IMT Nuremberg provided a non-exhaustive definition of war crimes for which individual criminal responsibility was retained and the judgment of the IMT Nuremberg opined that the humanitarian rules in the Hague Convention and Regulations 1907 were “recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war” by 1939 and that violations of those provisions constituted crimes for which individuals were punishable. There was agreement in contemporary doctrine that international law had already defined war crimes and required individuals to be prosecuted. In consequence, the Charter of the IMT Nuremberg was not ex post facto criminal legislation. The later Nuremberg principles, drawn from the Nuremberg Charter and judgment, reiterated the definition of war crimes set out in the Charter and that anyone committing a crime under international law was responsible and liable to punishment.
The Court thus relied on Nuremberg as evidence of what the law was in 1944. The three dissenters, Judges Costa, Kalaydjieva and Poalelungi, thought otherwise (paras. 13 &1 14):
With regard to “Nuremberg” (the Charter, the trial and the principles), it should be noted at the outset that the whole process began more than a year after the events of the present case. The London Agreement setting up the International Military Tribunal dates from 8 August 1945. The Charter of the Tribunal, annexed to the Agreement, empowered it to try and to punish persons who, acting in the interests of the European Axis countries, had committed certain crimes, including war crimes. Article 6 (b) of the Charter provided the first legal definition of war crimes, and as has been noted in paragraph 6 of this opinion, the national courts took the view that these provisions applied to the applicant. The judgment of the Tribunal asserts that the classification of such crimes does not result solely from Article 6 (b) of the Charter, but also from pre-existing international law (in particular, the 1907 Hague Convention and the 1929 Geneva Convention); however, the question arises whether this declaratory sentence, which is clearly retroactive in effect, should be construed as having erga omnes effect for the past or whether its scope should, on the contrary, be limited to the Tribunal’s general jurisdiction ratione personae, or even to its jurisdiction solely in respect of persons tried by it. This question is crucial, for while the applicant was indeed prosecuted for acts he had allegedly committed or been an accomplice to, he was clearly not acting in the interests of the “European Axis countries” as he was fighting against them. If we rule out the possibility of applying the criminal law extensively and by analogy, it is difficult to accept without some hesitation that the “Nuremberg principles” may serve as a legal basis here.
Historically, then, as is again noted by Judge Myjer in his opinion cited above, it was the Nuremberg trial “which for the first time made it clear to the outside world that anyone who might commit similar crimes in future could be held personally responsible”. Accordingly, we consider that it was not until after the facts of the present case that international law laid down the rules of jus in bello with sufficient precision. The fact that the Nuremberg trial punished ex post facto the persons brought before the Tribunal does not mean that all crimes committed during the Second World War could be covered retroactively, for the purposes of Article 7 § 2 of the Convention, by the definition of war crimes and the penalties attached to them. The “general principles of law recognised by civilised nations” were, in our opinion, clearly set forth at Nuremberg, and not before – unless one were to assume on principle that they pre-existed. If so, from what point did they exist? The Second World War? The First? The War of Secession and the Lieber Code? Is it not, with all due respect, somewhat speculative to determine the matter in a judgment delivered at the start of the twenty-first century? This is a question worth asking.
As Bill Schabas, who was counsel for Latvia in the case, well points out, the three dissenting judges in effect consider that the London Charter was ex post facto legislation and that the IMT would have been a violation of Art. 7(1) ECHR if it were in force at the time. (See also Antoine Buyse’s analysis at the ECHR Blog).
So, would it have been? Logically, the London Charter was either declaratory of pre-existing custom, or a substantive retroactive imposition of criminal responsibility. The position of the IMT itself on this point is ambiguous, as it both stated that the Charter ‘it is the expression of international law existing at the time of its creation,’ and that nullum crimen was a ‘principle of justice’ that was satisfied merely on the count that the defendants knew that what that they were doing was wrong – IMT judgment, at 38-40. In effect, the IMT held that nullum crimen did NOT necessarily mean what the Latin says – that there has to be law criminalizing specific conduct at the time of the offense. This, however, is not an interpretation of the principle that seems to be open under Art. 7 ECHR – and therein lies the rub.
There has always been a tension in international criminal law between the requirements of strict legality and considerations of substantive justice. Time and again, the positive law has proven inadequate precisely when it was most needed. This, in turn, lead judges either to downgrade nullum crimen to a mere ‘principle of justice,’ as was arguably done by the IMT, that would be satisfied even by a showing that the perpetrators of heinous acts knew that what they were doing was wrongful – if not illegal – or to creatively ‘discover’ supposedly pre-existing law to fill in the gap between the factual and the normative, as was done on so many occasions by the ICTY and the ICTR.
To my mind, Kononov is fascinating precisely because it raises the same tension, but this time in a purely human rights context. And thus, though I certainly find the majority’s approach to be pragmatically far more palatable, I wonder whether it is the minority’s opinion which is actually the more intellectually honest.