Introduction

Summary

RETROACTIVITY, JUSTICE, AND SOVEREIGNTY

The English-language version of the Nuremberg Judgment observes,

[T]he maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice.

This statement – that “nothing is criminal except by law [existing at the time of the act]” is a mere nonbinding principle of justice – has a cynical ring to it. It implies that judges can and should ignore principles of justice in service of the sovereign powers that created their court. This was pointed out rather explicitly in the dissent to the Tokyo Judgment by Justice Radhabinod Pal of India, who argued that the International Military Tribunal for the Far East should not create crimes that did not exist at the time a defendant acted: “for otherwise the Tribunal will not be a ‘judicial tribunal’ but a mere tool for the manifestation of power.” The depth of the disagreement over the issue of retroactivity might be judged by Justice Pal's use of this statement. It refers to – and perhaps parodies – a similar passage by Lord Wright. Wright had argued that all the crimes in the Nuremberg Charter (and hence in the Tokyo Charter) were, at the time, crimes under international law, a position with which Justice Pal violently disagreed.

In the French version of the Nuremberg Judgment, even the reference to justice disappeared: '[N]ullum crimen sine lege ne limite pas la souveraineté des États; elle ne formule qu'une règle généralement suivie.