Rethinking Retrospective Criminality in the Context of War Crimes Trials

Abstract

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.