Retroactivity Revisited: Justice after Normalised Violence

• Author: Stephanie A. Barbour
• Position: Senior Sophister LLB Candidate, Trinity College Dublin
• Pages: 28-48

RETROACTIVITY

REVISITED:

JUSTICE

AFTER

NORMALISED

VIOLENCE

STEPHANIE

A.

BARBOUR*

That order

did not come from

God.

Justice

That

dwells with

the

gods

below,

knows

no such

law.

I did not think

your

edicts strong enough

To

overrule

the

unwritten unalterable

laws

Of

God

and

heaven,

you

being

only

a

man.

They

were

not

of

yesterday

or today,

but

everlasting,

Though

where

they

came

from,

none

of

us can

tell.

Sophocles,

Antigone'

In

the

Nuremburg

Trials

in

the

wake

of

World

War

II

the

defence

of

'obeying

the

positive

written

law'

to

charges

of

war

crimes

was

resoundingly

rejected.

Since

then,

it

has

seemed

that

international

criminal

law

is

immune

from

the well

established principle

of

criminal

justice,

nullum

crimen

sine

lege.

2

More

recent

situations

of

mass violence,

ongoing

processes

of

democratisation

and calls

from

world

leaders

to

bring

an

end

to

the

culture

of

impunity

have

led

to

the

creation

of

several

ad

hoc

international criminal tribunals,

such

as

those

in

Rwanda

and

the

Former

Yugoslavia.

Frequently

these

institutions

impose

an

international

standard

that

differs entirely

from

the domestic standard under

which

the

accused

was

normatively

acting.

Retroactivity

at

Nuremberg

was

'pure retroactivity'

in

the

sense

that

a

new

law

displaced

the

positive

laws

of

Nazi

Germany

after

the

fact.

The

retroactivity

problem

has

evolved

and

changed

in

tandem

with

the

Senior

Sophister

LLB

Candidate, Trinity College Dublin.

Sophocles,

The

Thebean

Plays,

Watling

tr.

(Penguin Books,

1975),

at line

138.

2

Nullum

crimen

sine

lege

or

nullum

crimen,

nulla

poena

sine

praevia

lege

poenali

as

it

is

more correctly known -

"No crime

committed,

and no

punishment meted

out,

without

a

violation

of

penal

law

as

it

existed

at

the

time."

First

authored

in

1813

by

Paul

Johann

Anselm

Ritter

von

Feuerbach

in

the

Bavarian

Code.

©

2006 Stephanie

A.

Barbour

and

Dublin University

Law

Society

Retroactivity

Revisited

evolution

of

international humanitarian

and

criminal

law.

The

retroactivity

of

present

day

international

criminal

law

may not

be

'pure',

as

the

domestic

law

indeed

condemned

these

crimes,

but

a

defence

of

obeying

positive

law

is

retroactively

denied.

This

is

unjust because

as

a

result

of

a

climate

of

lawlessness,

the rule

of

law

was

not operational

at

the time. The

monstrous

nature

of

the

crimes

tends

to

eclipse

the

problem

of

denying a

retroactivity

defence

to

perpetrators.'

As long

as

due

process

is

observed in

proving

individual responsibility,

the

fundamental

fairness

of

the

proceedings

is

presumed

to be

beyond questioning. However,

when

not a

few

but thousands

of

people

are

awaiting

trial

for

human

rights

violations

the

problem

becomes

too

big

to

ignore.

4

It is

sadly

the case

that

states,

once

gripped

by

genocidal regimes, now offer prime

examples

of

this

new

version

of

the

retroactivity dilemma

in

the

age

of

universal human

rights.

The

discourse

of

criminal

law

reverberates

with

the

belief

that

law

must

be

'fair'

if

it

is

to be

legitimate.5 Therefore,

we

must

ask

why

retroactive

application

of

the

international

criminal

law

is

not

fatal

to

its

operation.

It

has been

argued

that retroactive

sanctions

are

permissible

in

cases

of

mass violence because the natural

law,

justice,

international

law

or

even

the

re-interpreted

domestic

positive

law

allows

them.

This article

examines

the

theories underlying

the

rejection

of

positive

law

defences

in

the

context

of

normalised

mass

violence and

considers whether

it

is

just

that

international

criminal law

retroactively

denies

such

a

defence

to

every

defendant,

regardless

of

the

size

of

the role

they

played.

By

departing

from

the rule

against

ex

post

facto

laws

in

order

to

secure

the

convictions

of

genocidaires

and

war

criminals

has

the

law

departed

too

wildly

from

the

dictates

of

justice?

It

may

be

that

disregard

for

the

nullum

crimen

principle

is

justified

in

some cases

of

mass

atrocity.

However, this

article

argues

that

a

defence

of

positive

law

should

exist

when

a

defendant

could

not

have

anticipated

punishment

according

to

international

law.

Indeed,

the

only

punishment

that could

have

been

contemplated

was

that meted

out

for

deviating

from

the

'lawlessness'

that

prevailed.

This

article

concludes that although

it

would

be

unjust

to

seek

retributive

justice

in

every case, this

does

not mean

that

a

post-conflict

3

Roth,

"Retrospective

Justice

or

Retroactive

Standards?

Human

Rights

as

a

Sword

in

the

East

German Leaders

Case" (2004)

50(1)

Wayne

L.

Rev.

37,

at

39.

Prior

to the release

of

some

40,000

prisoners

when

the

Gacaca

courts were

established, it

was

estimated that

130,000

people

were

being detained

in

Rwandan

prisons

charged

with

genocide

and

other

crimes related

to

the events

of

1994.

See

Drumbl,

"Rule

of

Law Amid

Lawlessness:

Counseling

the

Accused

in

Rwanda's

Domestic

Genocide Trials"

(1998)

29

Colum.

Hum.

Rts

L.

Rev.

545,

at

571-572.

5

Duff,

"A

Non-Instrumentalist

View

of

Trials" in

Duff,

Trial

and

Punishments

(Cambridge

University Press,

1986),

at

110.

2006]