TwitterFacebookPinterest

Tag Archives: Retrospective

Rethinking Retrospective Criminality in the Context of War Crimes Trials

Susan Twist

2006

Volume: 27
Liverpool Law Review

This article focuses upon the deficits inherent within the hitherto undifferentiated concept of ‘retrospectivity’ and the formulation of an appropriate typography of the retrospective strands within it, against the backcloth of the Trial of the Major War Criminals, 1945–1946, conducted at Nuremberg in the immediate aftermath of World War II. Following a brief description of the historical provenance and significance of the doctrine, nullum crimen sine lege praevia; nulla poena sine lege praevia; no crime and no punishment without previously established law, it seeks to explore and evaluate the salient provisions of the Nuremberg Charter, unilaterally enacted by the Allies on 8th August, 1945, under which the entire trial proceedings were subsequently governed. The segments of the Charter, ostensibly reliant upon the deployment of ex post facto criminal law are extrapolated, analysed and linked to the relevant strands of retrospectivity, identified within the postulated typography. This elucidation of the notion of ‘retrospectivity’ may not only provide keener insight into the historical utilisation of ex post facto law but also intensify awareness of any prospective violation of the nulla poena doctrine.…

Read more

The True Meaning of the Constitutional Prohibition of Ex-Post Facto Laws

William Winslow Crosskey

1946-47

Volume: 14 Issue: 4
U. Chi. L. Rev.

The “ex-post-facto” clause of section io of Article I of the Constitution provides flatly that “no State shall pass any ex post facto Law.” In the ninth section of the same article, there is a similar provision which applies to Congress. It is thus evident that “ex post facto Laws,” whatever they are, were thoroughly disapproved by the framers of our government and were intended by them to be completely impossible under our system. Literally, “an ex post facto Law” is simply a law that is retrospective; that is, a law made after the doing of the thing to which it relates, and retroacting upon it. Such laws are generally deemed unfair, because, in the nature of the case, the person, or persons, involved in the behavior to which such a law relates, can have had no notice, when the behavior took place, of such an after-made law which applies to it. The unfairness varies, however, from case to case. It is non-existent in cases of the doing of heinous things in reliance on legal technicalities; in other cases, supervening unforeseen events may give rise to equities which wipe any unfairness out; and the public welfare sometimes demands that legislation be passed, which, in some measure, disregards individuals’ strict antecedent rights.…

Read more

The Ex Post Facto Prohibition and the Exercise of Universal Jurisdiction over International Crimes

Eric S Kobrick

1987

Volume: 87 Issue: 7 (Nov., 1987)
Columbia Law Review

This article argues that the ex post facto clause only prevents a state from exercising jurisdiction if at an earlier date it could not have exercised universal jurisdiction as a matter of customary law over terrorist acts against diplomats. Part I of the article explores the ex post facto clause and universal jurisdiction over international crimes. Part II argues that if a person commits an international crime over which universal jurisdiction could be exercised as a matter of customary law and not solely as a result of an international agreement at the time of commission, and the United States subsequently passes a federal statute making that activity a crime, the statute can be applied retroactively because it is not an ex post facto law with regard to the act in question. Part III suggests that when the United States has the right to prosecute a perpetrator of an international crime subject to universal jurisdiction over whom it obtains custody, it should exercise its right to do so.…

Read more

A Note on Some Aspects of the Nuremberg Debate

Bernard D Meltzer

1947

Volume: 14 Issue: 3 (Apr., 1947)
The University of Chicago Law Review

History has not and cannot for a long time render its verdict on the Nuremberg trials. This verdict will, it is clear, depend less on Nuremberg and on the events which preceded it than on events which are to come. But debate on the issues raised by the trial is in full swing. It has been hailed as a significant contribution to international law, order, and justice.’ It has been attacked with a variety of objections: ex post facto, novelty and confusion, threat to the great traditions of Anglo-American justice, disrepute for the judiciary, the power of the victors masquerading as law, a barrier to the development of a democratic legal order in Germany. Professor Max Rheinstein in the February issue of this Review joined the men who have attacked the legal and moral foundations of this trial. His views are representative of the whole current of criticism. Certain issues raised by the debate may be clarified by an examination of his position and the problems which it suggests. This article examines some of the core arguments put forward by Rheinstein.…

Read more

It’s No Defense: ‘Nullem Crimen’, International Crime and the Gingerbread Man

Jordan Paust

1996

Volume: 60
Albany Law Review

The primary focus of this article is on certain alleged claims of defense or immunity concerning prosecution of international crime. Many authors have raised questions concerning the meaning of the principles ‘nullum crimen sine lege’ and ‘nulla poena sine lege’. Are they legal principles, and do they constitute a defense to prosecution of violations of customary international law or treaties? If domestic or international statutes or charters incorporate such international law by reference, are the ‘nullem crimen’ principles necessarily violated? Moreover, are such incorporations violative of ex post facto prohibitions?…

Read more

Tribulation before Trial in Cambodia: Confronting Autogenocide

Nalini Vittal

2001

The human, political and economic catastrophe Cambodia witnessed during the Khmer Rouge years continues to haunt the country. Even as the trial of the former leaders of Khmer Rouge awaits royal assent, the controversy over bringing the criminals to book remains mired in political wrangles, legal concerns, divisions
among the survivors and new interventions by the UN and foreign governments. The saga of the trials also exposes the value, perversions and uncertainties that accompany retrospective justice for mass murder.…

Read more

Ex Post Facto Limitations on Changes in Evidentiary Law: Repeal of Accomplice Corroboration Requirements

Derek J T Adler

1986

Volume: 55
Fordham L. Rev. 1191 1986-1987

This Note proposes that retroactive application of an evidentiary change does not violate the ex post facto prohibition unless it acts in such a way as to change the substantive elements of a crime. Judged by this standard, the repeal of an accomplice corroboration requirement does not violate the ex post facto clauses.…

Read more

Archive I: Media Archive

Archives news reports, opinions, editorials published in different media outlets from around the world on 1971, International Crimes Tribunal and the justice process.

Archive II: ICT Documentation

For the sake of ICT’s legacy this documentation project archives, and preserves proceeding-documents, e.g., judgments, orders, petitions, timelines.

Archive III: E-Library

Brings at fingertips academic materials in the areas of law, politics, and history to facilitate serious research on 1971, Bangladesh, ICT and international justice.

Archive IV: Memories

This archive records from memory the nine-month history of 1971 as experienced and perceived by individuals from all walks of life.