Crimes against humanity and international legality in legal theory after Nuremberg
2007; Taylor & Francis; Volume: 9; Issue: 1 Linguagem: Inglês
10.1080/14623520601163020
ISSN1469-9494
Autores Tópico(s)Global Peace and Security Dynamics
ResumoClick to increase image sizeClick to decrease image size Notes 1. The Nuremberg IMT is the first ad hoc international criminal jurisdiction. It was created by the August 8, 1945 London Agreement signed between the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics. The trials took place from November 20, 1945 to August 31, 1946. The judgments were pronounced on September 30 and October 1, of 1946. 2. He explains that the purpose of the doctrine that there are non-legal, or political, disputes "is not to interpret the law in an objective way but to justify the attempt to exclude the application of existing law … The doctrine thus is not a scientific theory, but an instrument of politics": Hans Kelsen, "Science and politics," The American Political Science Review, Vol XLV, No 3, 1951, pp 659–661. 3. Hans Kelsen, Peace Through Law (Chapel Hill: University of North Carolina Press, 1944), pp 28 ff, and "Théorie du droit international public," Recueil des Cours de l'Académie de Droit International, Vol III, 1953, p 175 ff. 4. Hans Kelsen, "The legal process and international order," The New Commonwealth Research Bureau Publications, Vol 5, 1934, p 20 and "Science and politics," p 661. 5. This would of course be "a value judgment of a highly subjective character" referring to a "value different from the legal value": Hans Kelsen, "Science and politics," ibid. 6. Hans Kelsen, "Théorie du droit international public," p 180. 7. The Charter of the IMT was annexed to the August 8, 1945 London Agreement. 8. Article 6 (c) of the Nuremberg Charter reads: "Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated." The others crimes falling under the jurisdiction of the Nuremberg Tribunal were crimes against peace (Article 6 (a)) and war crimes (Article 6 (c)). 9. The concept of crime against humanity originated in 1915, but was not legally defined prior to Nuremberg. In reaction to the massacres and systematic extermination of Armenians by the Turks, France, Great Britain and Russia denounced, on May 24, of 1915, these "new crimes against humanity and civilization" in a joint Declaration, warning that all members of the Ottoman Government as well as its agents implicated in the massacres would be held responsible for their acts. After World War I, in 1919, the Allies established a Commission to investigate war crimes, which came to the conclusion that the killing of Armenians in the Ottoman Empire constituted "crimes against the laws of humanity." Thereafter the Treaty of Sèvres (Peace Treaty between the Allied Powers and Turkey, August 10, 1920) stipulating that those responsible for such crimes be judged by an international jurisdiction (Article 230 of the Treaty) was cancelled by the Treaty of Lausanne (Peace Treaty between the Allied Powers and Turkey, July 24, 1923), which included no such provision and amnesties the Turks responsible for the crimes. The Armenian Question was thus buried, as was the hope of implementing the newborn concept of crime against humanity. On this subject, see Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd edn (The Hague, London and Boston: Kluwer Law International, 1999), p 62 ff, and Sévane Garibian, "Génocide arménien et conceptualisation du crime contre l'humanité. De l'intervention pour cause d'humanité à l'intervention pour violation des lois de l'humanité," in Ailleurs, hier, autrement: connaissance et reconnaissance du génocide des Arméniens (numéro spécial de la Revue d'Histoire de la Shoah) (Paris: Centre de Documentation Juive Contemporaine, 2003), pp 274–294. 10. Grounding its arguments on classical positivism, the defence at Nuremberg invoked respect for the principle of non-retroactivity, derived from the principle of legality. This principle constituted, the argument ran, the logical limit on the Tribunal's competence to apply the Nuremberg Charter. The defence lawyers considered the principle of non-retroactivity to be a corollary of the Austinian principle of law as the command of the sovereign [see J. Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995/1832), p 18 ff], using classical positivist theory as their implicit justification. See, on this point, the detailed study by Stanley L. Paulson, "Classical legal positivism at Nuremberg," Philosophy & Public Affairs, Vol 4, No 2, 1975, pp 132–158. Let us further note that classical legal positivism "à la Austin" is the less applicable to the Nuremberg Tribunal in that it does not recognize existing international law as law properly speaking (Austin calls it "law in the improper sense"). Bassiouni makes an interesting observation in this connection. He points out that, while the Nuremberg Charter is generally perceived as a defeat for classical legal positivism (confirmed, notably, by the exclusion, in Article 8 of the IMT Charter, of the traditional justification based on the claim that one was following "higher orders"), some have construed it as, precisely, an expression of the Austinian principle of law as the sovereign's command. The Charter, they say, resulted from the victory of might over right: "The Law of the Charter can, however, also be described as the embodiment of might makes right because it enacted a new law based on the power derived from victory" (Cherif Bassiouni, Crimes Against Humanity, p 114). 11. For convenience' sake, we shall hereafter use this generic term to refer to all the various principles of legality (legality of delicts, legality of sanctions, and non-retroactivity). 12. For a detailed study of the judges' reasoning, see Sévane Garibian, "Souveraineté et légalité en droit pénal international: le concept de crime contre l'humanité dans le discours des juges à Nuremberg," in Marc Henzelin and Robert Roth, eds, Le droit pénal à l'épreuve de l'internationalisation (Paris, Geneva and Brussels: LGDJ, Georg, Bruylant, 2002), pp 29–45. 13. On this point, see Hans Kelsen's opinion, for whom the fiction according to which the Charter is merely the expression of pre-existing norms of international law is a "typical fiction of the problematical doctrine whose purpose is to veil the arbitrary character of the acts of a sovereign law-maker." Hans Kelsen, "Will the judgment in the Nuremberg trial constitute a precedent in international law?," International Law Quarterly, Vol 153, 1947, pp 161–162. 14. The authors met at the London Conference (June 26–August 8, 1945). For the preliminary documents, see Report of Robert H. Jackson United States Representative to the International Conference on Military Trials, London 1945 (Washington, DC: Department of State, Division of Publications Office of Public Affairs, 1949). In Bassiouni's opinion, the authors were fully conscious of the weakness of their task on this point (Cherif Bassiouni, Crimes Against Humanity, p 137). 15. See Sévane Garibian, "Souveraineté et légalité en droit pénal international," p 2, and Cherif Bassiouni, ibid, p 122. 16. According to this fundamental principle, the basis for international law, there can be no restriction of the state by, or subordination of the state to, any other power, since the sovereign state depends only on its own will and is alone competent to judge the individuals on its territory. It follows that to sanction those state acts which constitute crimes, whether committed outside a war context, or in such a context but against citizens of the state that commits them, amounts to interference in the internal affairs of a sovereign state and thus constitutes a violation of the principle of sovereignty (see also infra, note 25). Note that, at the 1919 Paris Peace Conference, respect for the principles of legality and sovereignty was identified, particularly by the Americans, as an obstacle to the application of international criminal sanctions to crimes committed during World War I. See Violation of the Laws and Customs of War (Reports of Majority and Dissenting Reports of American and Japanese Members of the Commission of Responsibilities), Conference of Paris (Washington, DC: Carnegie Endowment for International Peace, 1919). 17. These scholars acknowledge the IMT judges' naturalist approach (see Sévane Garibian, "Souveraineté et légalité en droit pénal international" p 41). Esp. Sidney E. Jaffe, "Natural law and the Nurnberg trials," Nebraska Law Review, 1946, pp 90–95; Paul Reuter, "Le jugement du Tribunal militaire international de Nuremberg," Recueil Dalloz, 1946, pp 77–80; Willis Smith, "The Nuremberg trials," American Bar Association Journal, 1946, pp 390–396; M. Teitgen, "Le jugement de Nuremberg," Revue de droit international, de sciences diplomatiques et politiques, 1946, pp 161–173; R. A. W. Wright, "War crimes under international law," The Law Quarterly Review, 1946, pp 40–52; Henry L. Stimson, "The Nuremberg trial: landmark in law," Foreign Affairs, 1947, pp 179–189. 18. For example: Nathan April, "An inquiry into the juridical basis for the Nuremberg war crimes trial," Minnesota Law Review, Vol 30, No 5, 1946, pp 315–331; F. Neumann, "The Nuremberg confusion," Fortune Magazine, December 1946, pp 120–121, 256, 259–264; F. B. Schick, "The Nuremberg trial and the development of an international criminal law," Juridical Review, 1947, pp 192–207 and "The Nuremberg trial and the international law of the future," AJIL, 1947, pp 770–794; Ilhan Lutem, "Some controversial aspects of war crimes," Annales de la Faculté de Droit d'Istanbul, 1953, pp 146–169. 19. Such as Jean Graven, "De la justice internationale à la paix. Les enseignements de Nuremberg (suite)," Revue de droit international, de sciences diplomatiques et politiques, Vol 3, 1947, p 13 ff. Let us note that Jean Graven would later revise his position. In a 1950 text, he contended that international law had to be brought into conformity with the principle of legality, arguing that the respect for this principle affirmed at the First International Congress on Criminal Law (held in Brussels in 1926) must also prevail in international law ("Les crimes contre l'humanité," 427 Recueil des Cours, Vol 76, 1950, p 540 ff). See also his draft of a penal code for crimes against the peace and security of mankind in Revue de droit international, de sciences diplomatiques et politiques, 1950, pp 173–204. See also Bernard D. Meltzer, "A note on some aspects of the Nuremberg debate," University of Chicago Law Review, Vol 455, 1946–47, p 456 ff. 20. Hans Kelsen, "La technique du droit international et l'organisation de la paix," Revue de droit international et de législation comparée, Vol 5, 1934, p 9. Also Hans Kelsen, Théorie générale du Droit et de l'Etat, trans. Béatrice Laroche (Paris and Brussels: LGDJ, Bruylant, 1997/1945), p 386 ff. 21. For example, Robert B. Walkinshaw, "The Nuremberg and Tokyo trials: another step toward international justice," American Bar Association Journal, Vol 299, 1949, p 363: "International criminal law, in comparison with national criminal law, is still in its early stages. As the idea of civil wrongs and remedies came early into the national consciousness and the idea of crimes and punishments much later, so have these ideas come into the international consciousness." 22. Hans Kelsen, "La technique du droit international et l'organisation de la paix," p 10. On centralization/decentralization, see Hans Kelsen, Théorie générale du Droit et de l'Etat, p 373 ff and "Théorie du droit international public," pp 18–19. 23. On this point, see in particular Hans Kelsen, "La technique du droit international et l'organisation de la paix," ibid, pp 5–24. 24. See notably Hans Kelsen, "The legal process and international order," p 18 and R. A. W. Wright, "War crimes under international law," p 40. On the importance of the concept of international community (or community of nations), within the framework of Nuremberg, see R. A. W. Wright, ibid, pp 41, 48: "International Law represents the imperfect endeavour to develop a body of rules and principles which will go towards establishing a rule of law among the nations, not dissimilar in character from the rule of law which is established in greater or lesser degree inside each separate sovereign nation"; "[The concept of community of nations] is, it is true, an ideal, but, though it may seem to have merely an inchoate and imperfect realization, the concept itself is vital and has a definite reality." 25. Article 2 (1) of the United Nations Charter reads: "The Organization is based on the principle of the sovereign equality of all its Members." The principle of sovereign equality is clarified in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States (Resolution 2625 (XXV) of the United Nations General Assembly, October 24, 1970) and, according to some scholars, finds its origin in the 1943 Declaration of Moscow (for example, Hans Kelsen, Peace Through Law, p 35 ff). Note that in 1945, international case law had already likened sovereignty to independence: see Permanent Court of International Justice (PCIJ), August 17, 1923, Vapeur Wimbledon case (first judgment of the Court); PCIJ, September 7, 1927, Lotus case; Permanent Court of Arbitration, Max Huber, April 4, 1928, Iles de Palmes case. On the principle of sovereign equality, see Colin Warbrick, "The principle of sovereign equality," in Vaughan Lowe and Colin Warbrick, eds, The United Nations and the Principles of International Law. Essays in Memory of Michael Akehurst (London and New York: Routledge, 1994), pp 204–229. 26. The scholars for whom classical positivism remained a theoretical premise even after World War II are exceptions here. Such scholars regard the concept of state sovereignty as absolute. They are therefore highly critical of the August 8, 1945 London Agreement; it was ill founded, in their view, because it was a unilateral act on the part of the victorious powers. Hence Germany, in their estimation, was in so sense bound by the Agreement, which gave rise, in its turn, to the Nuremberg Charter. See notably Nathan April, "An inquiry into the juridical basis for the Nuremberg war crimes trial," p 316 ff; F. B. Schick, "The Nuremberg trial and the development of an international criminal law," p 203 ff and "The Nuremberg trial and the international law of the future," p 778 ff; Ilhan Lutem, "Some controversial aspects of war crimes," p 151 ff. 27. See Hans Kelsen, "The legal status of Germany according to the Declaration of Berlin," AJIL, 1945, pp 518–526; Jacques Descheemaeker, "Le Tribunal militaire international des grands criminels de guerre," Revue générale de droit international public, Vol 210, 1946, p 222; Alwyn V. Freeman, "War crimes by enemy nationals administering justice in occupied territory," AJIL, 1947, pp 579–610; Georg Schwarzenberger, "The judgment of Nuremberg," Tulane Law Review, Vol 329, 1947, p 339; Quincy Wright, "The law of the Nuremberg trial," AJIL, Vol 38, 1947, p 47 ff; James T. Brand, "Crimes against humanity and the Nuremberg trials," Oregon Law Review, Vol 93, 1949, p 95 ff. 28. Hans Kelsen, "La technique du droit international et l'organisation de la paix," p 12. For further details on this point, see in particular Hans Kelsen, "The legal process and international order," p 15 ff and Peace Through Law, p 19 ff. See also Hans Kelsen, Théorie générale du Droit et de l'Etat, p 373 ff. 29. R. A. W. Wright, "War crimes under international law," p 40. 30. Judge Robert H. Jackson (United States representative at the London Conference and Chief of Counsel for the United States at Nuremberg) also published an article in 1949 on "continental concept of criminal trial versus common law concept": "The fallacy of the idea that law is found only in [law embraced in a sovereign command] appears from the fact that crimes were punished by courts under our common law philosophy long before there were legislatures. … The common law judge is less text-bound. Common law depends less on what is commanded by authority and more on what is indicated by reason. … [The judge] applies what has sometimes been called a natural law that binds each man to refrain from acts so inherently wrong and injurious to others that he must know they will be treated as criminal. Unless International law is to be deprived of this common law method of birth and growth, and confined wholly to progression by authoritarian command, then the judges at Nuremberg were fully warranted in reaching a judicial judgment of criminal guilt." Robert H. Jackson, "Nuremberg in retrospect: legal answer to international lawlessness," American Bar Association Journal, Vol 813, No 35, 1949, p 885. See also James T. Brand, "Crimes against humanity and the Nurnberg trials," p 108; Robert B. Walkinshaw, "The Nuremberg and Tokyo trials: another step toward international justice," p 299 ff. 31. While it is true that this essay cites only those sources to which the ICJ appeals for its authority, it is nevertheless granted that, because the Court was the expression of a general consensus, its sources are also those of international law in general. See Bruno Simma and Andreas Paulus, "Le rôle relatif des différentes sources du droit international pénal (dont les principes généraux de droit)," in Hervé Ascencio, Emmanuel Decaux and Alain Pellet, eds, Droit international pénal (Paris: Pedone, 2000), p 55 ff. It should be recalled that there exists no general hierarchy among the sources of international law; the only hierarchy is that which subordinates certain concrete norms to others. 32. Notably: Quincy Wright, "The law of the Nuremberg trial," pp 58–59; James T. Brand, "Crimes against humanity and the Nuremberg trials," p 114; Edward F. Carter, "The Nuremberg trials: a turning point in the enforcement of international law," Nebraska Law Review, Vol 370, 1949, p 373. 33. See note 12. 34. Stephan Glaser, "Le principe de légalité des délits et des peines et les procès de criminels de guerre," Revue de droit pénal et de criminologie, Vol 230, 1947–48, p 232. 35. For example, Mégalos A. Caloyanni, "Le procès de Nuremberg et l'avenir de la justice pénale internationale," Revue de droit international, de sciences diplomatiques et politiques, Vol 174, 1946, p 177; R. A. W. Wright, "War crimes under international law," p 41; William Eldred Jackson, "Putting the law of Nuremberg to work," Foreign Affairs, Vol 550, 1947, p 556; Florence E. Allen, "Nuremberg trial implements world law," Women Lawyers Journal, Vol 6, 1948, p 26; Robert H. Jackson, "Nuremberg in retrospect: legal answer to international lawlessness," p 886. 36. Conventions for the Pacific Settlement of International Disputes. 37. Peace Treaty between the Allied and Associated Powers and Germany. 38. General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg–Briand Pact). 39. Declaration signed by President Roosevelt, Marshal Stalin and Prime Minister Churchill. This Declaration is considered, politically speaking, the most important instrument prior to the 1945 London Agreement. 40. Esp. Mégalos A. Caloyanni, "Le procès de Nuremberg et l'avenir de la justice pénale internationale," p 174 ff; Quincy Wright, "The law of the Nuremberg trial," p 54; Florence E. Allen, "Nuremberg trial implements world law," p 26; Robert H. Jackson, "Nuremberg in retrospect: legal answer to international lawlessness," p 814. 41. M. C. Bernays, "Legal basis of the Nuremberg trials," Survey Graphic, January 1946, pp 5–9; Mégalos A. Caloyanni, "Le procès de Nuremberg et l'avenir de la justice pénale internationale," ibid, p 175; Robert H. Jackson, "Nuremberg in retrospect: legal answer to international lawlessness," ibid, p 886. Quincy Wright suggests the following definition of a crime against international law: "A crime against international law is an act committed with intent to violate a fundamental interest protected by international law or with knowledge that the act will probably violate such an interest, and which may not be adequately punished by the exercise of the normal criminal jurisdiction of any state." Quincy Wright, "The law of the Nuremberg trial," p 56. 42. Robert G. Storey, "The Nuremberg trials," Tennessee Law Review, Vol 517, 1946, pp 523–524; Emilio von Hofmannsthal, "War crimes not tried under retroactive law," New York University Law Quarterly Review, Vol 93, 1947, p 94 ff; Stephan Glaser, "Le principe de légalité des délits et des peines et les procès de criminels de guerre," p 236. 43. William Elfred Jackson, "Putting the law of Nuremberg to work," p 564: "That document is the repository of the crystallized conscience of mankind." 44. R. A. W. Wright, "War crimes under international law," p 49: "I cannot agree that crimes against humanity are too vague to be the subject of penal action. International Law does not deal with border-line cases or with subtle distinctions. What is meant in this context by crime against humanity is sufficiently clear." Quincy Wright, "The Nuremberg trial," The Annals of the American Academy, 1946, p 79: "The novelty is not in the crimes but in the setting up of a new jurisdiction to try them"; and "The law of the Nuremberg trial," p 62: "The Tribunal had no difficulty in assuming that war crimes and crimes against humanity in the narrow sense of the Charter were crimes under customary international at the time the acts were committed and felt it unnecessary to give to this question the elaborate discussion which it devoted to the 'crimes against peace'"; William Elfred Jackson, "Putting the law of Nuremberg to work," ibid, p 556: "… the Charter of London was in itself a codification of the treaties, rules and customs of international law previously existing on crimes against peace, war crimes and crimes against humanity." 45. Louis C. Bial, "The Nurnberg judgment and international law," Brooklyn Law Review, Vol 23, 1947, p 38: "… the Judgment is not based on ex post facto law, and the dictum that ex post facto law might have been applied should not be given too much weight." 46. Stephan Glaser, "Le principe de légalité des délits et des peines et les procès de criminels de guerre," p 234 ff. 47. Mégalos A. Caloyanni, "Le procès de Nuremberg et l'avenir de la justice pénale internationale," p 174; Louis C. Bial, "The Nurnberg judgment and international law," p 49; William Elfred Jackson, "Putting the law of Nuremberg to work," p 558. 48. The question of legality had been raised only once before, in 1935, by the Permanent Court of International Justice (Advisory Opinion on the Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, December 4, 1935). Nevertheless, the Court at the time did not come to a decision on the meaning of legality in international law. Furthermore, this Court's case law does not have force of precedent. For further details, see Cherif Bassiouni, Crimes Against Humanity, pp 138–140. 49. For a summary of the monist and dualist approaches, see Hans Kelsen, "Les rapports de système entre le droit interne et le droit international public," Recueil des Cours, Vol IV, 1926, pp 231–329 and Théorie générale du Droit et de l'Etat, p 409 ff. For a critical study of those approaches: Michel Virally, "Sur un pont aux ânes: les rapports entre droit international et droits internes," in Mélanges en l'honneur d'Henri Rolin (Paris: Editions Pedone, 1964), pp 488–505. 50. On this point, see Cherif Bassiouni, Crimes Against Humanity, p 126. 51. See Cherif Bassiouni, ibid, p 137. 52. According to Bassiouni, the authors were, in particular, confronted with the following dilemma: they could either extend international criminal responsibility to include those guilty of crimes against humanity, thereby abandoning strict respect for the principle of legality, or else not extend it, thereby leaving unpunished acts that fell within the purview of the new inculpation (Cherif Bassiouni, ibid, p 108). In the end, they sidestepped all considerations of this sort and adopted a pragmatic compromise. The Nuremberg judges, moreover, followed their example, making the same compromise or even "reinforcing" it. See Cherif Bassiouni, ibid, p 122, and Sévane Garibian, "Souveraineté et légalité en droit pénal international," p 45. 53. For example: Jacques Descheemaeker, "Le Tribunal militaire international des grands criminels de guerre," p 226; A. L. Goodhart, "The legality of the Nuremberg trials," Juridical Review, Vol 1, 1946, pp 16–17; Henri Donnedieu de Vabres, "Le jugement de Nuremberg et le principe de légalité des délits et des peines," Revue de droit pénal et de criminologie, 1946–47, p 813; George A. Finch, "The Nuremberg trial and international law," AJIL, Vol 20, 1947, p 23; Hans Kelsen, Principles of International Law, 2nd edn (New York: Holt, Rinehart and Winston, 1966/1952), p 216; Joseph Camille Genton, "Le Tribunal militaire international," Revue de droit pénal et de criminologie, Vol 477, 1947–48, p 503; Hans Ehard, "The Nuremberg trial against the major war criminals and international law," AJIL, Vol 223, 1949, p 230; Marcel Merle, Le procès de Nuremberg et le châtiment des criminels de guerre (Paris: Pedone, 1949), p 81. 54. George Ginsburgs, "The Nuremberg trial: background," in G. Ginsburgs and V. N. Kudriavtsev, eds, The Nuremberg Trial and International Law (Dordrecht, The Netherlands: Martinus Nijhoff, 1990), p 32. 55. Henri Donnedieu de Vabres, "Le procès de Nuremberg devant les principes modernes du droit pénal international," Recueil des Cours, Vol 477, 1947, p 512. 56. It should be pointed out that the Third Reich amended Section 2 of the 1871 Criminal Code with a June 28, 1935 law (which went into effect on September 1, 1935) that replaced the guarantee of the principle of legality with the development of reasoning by analogy (which makes it possible to sanction acts that are not expressly foreseen by existing law). Article 116 of the Weimar Constitution was also repealed. Moreover, the National Socialist regime passed many retroactive laws, among them the March 29, 1933 law on capital punishment and the June 22, 1936 law on kidnapping (Hans Kelsen, "The rule against ex post facto laws and the prosecution of the Axis war criminals," The Judge Advocate Journal, Vol II, No 3, 1945, p 12). Ultimately, however, all the Nazi laws were in their turn repealed by a 1945 decree of the Allied Control Council that restored the German law in effect before 1935 (on this point, see Cherif Bassiouni, Crimes Against Humanity, p 107 ff). 57. See esp. Hans Kelsen, "The rule against ex post facto laws," ibid, pp 8, 12; Jacques Descheemaeker, "Le Tribunal militaire international des grands criminels de guerre," p 224; Marcel Merle, Le procès de Nuremberg, p 81 ff. Hans Kelsen quotes Blackstone in his paper: "All laws should be, therefore, made to commence in futuro and be notified before their commencement, which is implied in the term 'prescribed'." Hans Kelsen, "The rule against ex post facto laws," p 8. 58. Hans Kelsen, "Will the judgment in the Nuremberg trial," p 165. 59. "The opinion prevails that the Parliament always can pass a retroactive statute." Hans Kelsen, "The rule against ex post facto laws," p 8. 60. "The doctrine that custom is not a creation of law but merely evidence of a pre-existing law is the same fiction as the doctrine that tries to hide the retroactive character of a precedent by presenting the judicial decision as an interpretation rather than a creation of law." Hans Kelsen, "The rule against ex post facto laws," p 9. Also Hans Kelsen, "Will the judgment in the Nuremberg trial," p 165. 61. Hans Kelsen, "The rule against ex post facto laws," p 10 and Principles of International Law, p 216. 62. Hans Kelsen, "The rule against ex post facto laws," ibid. 63. Kelsen developed this argument only later. In Théorie générale des normes (1979), he states more clearly the reasons for his doubts as to the validity, in the field of international positive law in general, of the general principles of law recognized by civilized nations. If these general principles constitute norms of international law—inasmuch as they are cited in Article 38 of the ICJ Charter, which further stipulates that the Court shall resolve disputes in accordance with the norms of international law—just which international law is involved here? According to Kelsen, general principles of law became valid international law only after the promulgation of Article 38, cited above, and only in the framework of their application by the ICJ. Hans Kelsen, Théorie générale des norms, trans. Olivier Beaud and Fabrice Malkani (Paris: PUF, 1996/1979), p 160. 64. Esp. Jacques Descheemaeker, "Le Tribunal militaire international des grands criminels de guerre," p 224 ff; Henri Donnedieu de Vabres, "Le jugement de Nuremberg et le principe de légalité des délits et des peines," pp 815–816, and "Le procès de Nuremberg devant les principes modernes du droit pénal international," p 512; James T. Brand, "Crimes against humanity and the Nuremberg trials," p 115. 65. Henri Donnedieu de Vabres, "Le jugement de Nuremberg et le principe de légalité des délits et des peines," ibid, p 816. 66. On the link between the principle of legality and naturalism: Hans Kelsen, "The rule against ex post facto laws," pp 8–9. More generally, on the principle of legality as a principle of justice: A. L. Goodhart, "The le
Referência(s)