Balancing the prosecution of crimes against humanity and non-retroactivity of criminal law: The Kolk and Kislyiy v. Estonia Case before the ECHR

Journal of International Criminal Justice

Volumn 4, Issue 2, 2006, Pages 410-418

  Cassese, Antonio ^a  

^a UNIVERSITY OF FLORENCE   (Italy)

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EID: 33744473819     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql016     Document Type: Article

References (27)

1. See X. c. Belgique, decision of 20 July 1957 (application no. 268/57), in Yearbook of the European Convention, Vol. 1, at 239-41
2. Touvier c. France, decision of 23 January 1997 (application no. 29420/ 95) (online: www.coe.int; visited 24 February 2006)
3. Papon v. France, decision of 15 December 2001 (online ibid.).
4. Applications no. 23052/04 and 24018/04, not yet published online.
5. GA Resolution 95(1), adopted on 11 December 1946.
6. Judgment of 1 April 1993, in Bulktin des arrêts de la Cour de Cassation, Chambre Criminelle, 1993, no. 143, at 354-55 (also in Revue générale de droit international public, 1994, at 471-74). The Court held that the IMT Charter as well as the UN General Assembly Resolution 3(1) adopted on 13 February 1946 (and recommending the extradition and punishment of persons accused of the crimes provided for in the Nuremberg Charter) only related to 'offences perpetrated on behalf of the Axis European States' and therefore, could not apply to atrocities committed elsewhere.
7. Although Control Council Law no. 10 of 20 December 1945, did not require the link with war crimes or crimes against humanity, such link was still envisaged in the principles adopted in 1950 by the International Law Commission. The Genocide Convention of 1948 provided for the prohibition of genocide in time of war or peace, but of course it only related to genocide. It is probably with the 1968 Convention on the Non-Applicability of Statutory Limitations that the process of a gradual crystallization in international customary law of a rule proscribing crimes against humanity even in time of peace was set in motion. This crystallization became indisputable after being established in 1995 by the Appeals Chamber of the ICTY: See, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1), 2 October 1995, §141.
8. See, for instance, P. Rolland, 'Art 7' in L.-E. Pettiti, E. Decaux and P.-H. Imbert, La Convention européenne des droits de l'homme - Commentaire article par article (Paris: Economica, 1995), at 299-301.
9. See also European Commission of Human Rights, decision of 20 July 1957 (X. c. Belgique), in Yearbook of the European Convention, 1, at 241
10. De Becker c. Belgique, decision of 9 June 1958 ibid., 2, at 227
11. X. c. Belgique, decision of 18 September 1961 ibid., 4, at 335-337.
12. 'No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal 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 criminal offence was committed' (emphasis added).
13. 'This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations'.
14. For the way general principles of criminal law recognized by the community of nations may be resorted to by international courts, see ICTY Judgment, Furundžija (IT-95-17/1), Trial Chamber, 10 December 1998, §§ 177-8
15. see also the author's volume, International Criminal Law (Oxford: Oxford University Press, 2003), at 32-35
16. G. Werle, Principles of International Criminal Law (The Hague: Asser Press, 2005), at 47-8.
17. According to authoritative commentators in the 1950s, 'general principles of law recognized by civilized nations'still included such principles as the duty of reparation for breach of a legal undertaking; litispendency; the duty to make reparation for both damnum emergens and lucrum cessans; estoppel; res judicata; the admissibility of indirect evidence; equality of parties in the administration of justice; the impossibility for a person to plead his own wrongful act (see e.g. L. Oppenheim and H. Lauterpacht, International Law - A Treatise, vol. 1 (8th edn, London-New York-Toronto: Longmans, Green and Co., 1955), at 29-30
18. M. Sørensen, 'Principes de droit international public', in 101 Hague Recueil, 1960-III, at 26-34
19. A. Verdross and B. Simma, Universelles Völkerrecht - Theorie und Praxis (3rd edn, Berlin: Duncker und Humblot, 1984), at 390-4.
20. It could therefore be said that, although usus (the existence of national laws punishing crimes against humanity and the prosecution of such crimes by many national courts) was not widespread, opinio juris (namely, the legal conviction at the international level that crimes against humanity must be proscribed and punished) was shared by most states.
21. For specific examples of how international criminal courts have recently relied on general principles of law recognized by the community of states, refer to the author's volume, International Law (2nd edn, Oxford: Oxford University Press, 2005), at 193-4.
22. Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946 (Nuremberg 1947), Vol. 1, at 223.
23. For instance, see Cantoni v. France, judgment of 15 November 1996, at 33-35 (online at: www.coe.int; visited 24 February 2006).
24. On these notions, refer to the author's volume, International Criminal Law, supra note 9, at 139-45.
25. Article 9 of the American Convention is not, however, as specific as the other two treaties: It simply provides that 'No one shall be convicted of any act or omission that did not constitute a criminal offence, under the applicable law, at the time it was committed'.
26. On the attack on and annexation of Estonia, see for instance, J.-B. Duroselle, Histoire diplomatique de 1919 à nos jours (8th edn, Paris: Dalloz, 1981), at 261 and 282.
27. Interestingly, as reported by W.A. Harriman (in WA. Harriman and E. Abel, Special Envoy to Churchill and Stalin 1941-1946 (London: Hutchinson, 1976), at 227 and 279), President Roosevelt did not oppose the invasion and incorporation into the USSR of the Baltic countries in 1940; however, following the German occupation of those countries (in 1941), he insisted that, after reoccupation by the Soviet troops, the populations should exercise their right to self-determination through plebiscites 'to give a colour of decency to the operation (at 227). Stalin did not pay much attention to such requests, also because at the Teheran Conference (held in November 1943) Roosevelt was ready to make concessions in exchange for Soviet support for the establishment of the United Nations (at 279).