Cameron Miranda
The concept of ex post facto laws, or retroactive laws, is a complex and controversial topic in criminal justice and international law. It refers to the practice of applying a law to events that occurred before the law was enacted, which is generally prohibited in criminal law. The principle of nulla poena sine lege, or no punishment without a prior law, underpins the rejection of ex post facto laws. However, there are exceptions and nuances to this principle, such as when the retroactive application benefits the accused or when new laws are applied to ongoing behaviours. Notable examples of ex post facto laws include the Nuremberg Trials following World War II and the trials of East German border troops in the 1990s. The legality and ethical implications of ex post facto laws continue to be debated, with some arguing that they undermine the rule of law and violate human rights.
| Characteristics | Values |
|---|---|
| Ex post facto laws | Prohibited in the US, Germany, France, and India |
| Permitted in England under special circumstances | |
| Nuremberg Trials | Considered by some to be ex post facto |
| Rejected by the tribunal | |
| Argued by others to be based on earlier treaties | |
| Established the International Military Tribunal | |
| Ex post facto sanctions | Forbidden in criminal law as per Article 112-1 of the French Penal Code |
| Permitted if the retroactive application benefits the accused person | |
| Ex post facto prohibition | Applies only to legislative decisions |
| Does not attach as strictly to judicial decisions | |
| Ex post facto laws | Do not invalidate subsequent offences |
| Do not invalidate laws that penalize the continuance of conduct begun before the law's passage | |
| Do not invalidate laws that deny future privileges to past offenders |
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What You'll Learn
The Nuremberg Trials
The indictment against 24 major war criminals and seven organizations was filed on October 18, 1945, by the four chief prosecutors of the International Military Tribunal (IMT). The IMT was composed of judges from the United States, Great Britain, France, and the Soviet Union. The defendants included high-ranking physicians, judges, industrialists, SS commanders, police commanders, military personnel, civil servants, and diplomats. The crimes charged before the Nuremberg courts were crimes against peace, war crimes, crimes against humanity, and conspiracy to commit any of the foregoing crimes. The IMT defined crimes against humanity as "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecution on political, racial, or religious grounds."
In total, 199 defendants were tried at Nuremberg, with 161 convictions and 37 death sentences. Many of the prisoners were released early in the 1950s as a result of pardons. The Nuremberg Trials played a significant role in shaping international law, history, and global geopolitics, particularly in the understanding of mass violence and the concept of genocide.
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GDR Trials
The GDR Trials, or the Mauerschützen-Prozesse (Wall-shooters'/ -guards' trials), were a series of trials held in Germany in the 1990s that tried former East German border troops for killing fugitives attempting to cross the Inner-German border. These trials posed a unique challenge as the acts committed were likely legal under GDR law at the time. This situation is known as an ex post facto law, where an act that was not illegal at the time is tried as though it were.
In the GDR Trials, the defendants were tried under the Grundgesetz, or Basic Law, which was already law in West Germany and arguably could have been applied in East Germany as well. The German courts in these cases used the Radbruch formula, which states that an act may be punished only if it was already punishable by law at the time it was committed. This formula is also found in Article 11, paragraph 2 of the Universal Declaration of Human Rights, which states that no person can be held guilty of a criminal law that did not exist at the time of the offence.
The GDR Trials are similar to other post-war trials, such as the Nuremberg Trials, which also faced the challenge of trying individuals for acts that may not have been illegal at the time they were committed. In the case of the Nuremberg Trials, the tribunal rejected the defence of ex post facto, arguing that the charges derived from earlier treaties.
The concept of ex post facto laws is generally prohibited in criminal law, as seen in Article 112-1 of the French Penal Code and Article 8 of the Declaration of the Rights of Man and of the Citizen. In the United States, the Supreme Court has defined the scope of ex post facto laws, prohibiting any statute that punishes an act that was innocent when done or that increases the punishment for a crime after its commission.
While the GDR Trials are a notable example of the challenges posed by ex post facto laws, they also highlight the complexity of transitional justice and the pursuit of accountability in the face of changing legal landscapes.
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US Ex Post Facto Laws
Ex post facto laws are laws that retroactively criminalise actions that were legal when committed. In the US, ex post facto laws are prohibited by the Constitution. This is based on the legal principle of nulla poena sine lege praevia, or "no punishment without prior law".
The US Constitution's prohibition of ex post facto laws applies only to penal and criminal legislation, and not to civil laws that adversely affect private rights. The Supreme Court has held that an amendment that impacts someone currently imprisoned does not violate the ex post facto prohibition if it does not increase the punishment for their crime. For example, in California Dep't of Corrections v. Morales (1995), California amended a law to allow the California Board of Prison Terms to defer parole hearings for up to three years for prisoners convicted of multiple homicide offences. The respondent, Morales, was imprisoned before the law was amended and was affected by it when he applied for a parole hearing. Morales claimed that the amendment violated the ex post facto prohibition, but the Supreme Court held that it did not, as the amendment did not impact Morales's sentence or his ability to be granted parole.
The ex post facto prohibition also applies to legislative decisions, such as bills of attainder, which declare that a specific act is illegal after the fact. However, it does not attach as strictly to judicial decisions. For example, in Rogers v. Tennessee (2000), the Supreme Court held that the abolition of the Year and a Day Rule by the Tennessee Court of Criminal Appeals was not an ex post facto law, as it was a "routine exercise of common law decision-making that brought the law into conformity with reason and common sense".
The prohibition of ex post facto laws is not limited to the US. For example, Article 112-1 of the French Penal Code forbids ex post facto sanctions, except when the retroactive application benefits the accused person. Similarly, Article 11, paragraph 2 of the Universal Declaration of Human Rights provides that no person shall be held guilty of any criminal law that did not exist at the time of the offence, nor suffer any penalty heavier than what existed at the time.
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Finnish Amnesty Laws
Ex post facto laws are laws that are passed after an act has already been committed, retroactively criminalising behaviour. In criminal law, ex post facto sanctions are forbidden as per Article 112-1 of the French Penal Code, except when the retroactive application benefits the accused person. Article 103 of the German basic law expresses a similar sentiment, stating that an act may only be punished if it was already punishable by law at the time it was committed. Article 11, paragraph 2 of the Universal Declaration of Human Rights also provides that no person may be held guilty of any criminal law that did not exist at the time of the offence.
Following the Finnish Civil War of 1918, the Parliament of Finland passed a law setting up tribunals to try suspected rebels. These tribunals issued death sentences in many cases, even though the accused could not have committed a crime that carried the death penalty under Finnish law during the war. Once the civil war ended, amnesty laws were passed, meaning that the legality of the actions of the government or the participants of either side of the war could not be legally contested.
Finland has also been the subject of criticism from Amnesty International, a non-governmental organisation focused on human rights. Amnesty International has criticised Finland for its definition of rape, which is not based on a lack of consent. Instead, the Finnish legal definition of rape is based on whether physical violence, or the threat of violence is involved, or if the victim is unable to resist due to sleep or intoxication. Amnesty International has also criticised Finland for its use of unnecessary force to disperse peaceful climate protests, and for failing to include legislative measures to combat racism, hate speech, and hate crimes in its action plan. However, Finland has also been praised by Amnesty International for passing legislation that abolishes invasive requirements for trans people to have their gender legally recognised.
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French Ex Post Facto Exceptions
In French, the term "ex post facto" is translated as "rétroactif" or "a posteriori".
In criminal law, ex post facto sanctions are effectively forbidden as per Article 112-1 of the French Penal Code, except in cases where the retroactive application benefits the accused person (called retroactivity in mitius). They are also considered unconstitutional, since the principle of non-retroactivity is laid down in Article 8 of the Declaration of the Rights of Man and of the Citizen, which has constitutional status under French law.
The épuration légale trials held after the 1944 liberation of France introduced the status of indignité nationale for Nazi collaborators as a way to avoid ex post facto law.
In France, there is an exception to the prohibition of ex post facto laws when retroactive criminal laws benefit the accused person. This is similar to the concept of "retroactivity in mitius" in French law, which allows for the retroactive application of a lighter penalty if it has been enacted after the offence was committed.
French activists have raised concerns about the ex post facto nature of certain laws, and committees have voted against ex post facto amendments. Citizens have also expressed worries about the implications of ex post facto legislation on their rights.
In some cases, French courts have ruled against the application of ex post facto laws to cases that have already been decided or closed.
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Frequently asked questions
This refers to the concept of ex post facto law, which prohibits the application of a new law to events that occurred before its enactment. In other words, it is not permissible to punish someone for an action that was legal when they performed it but has since been made illegal.
In certain jurisdictions and under special circumstances, ex post facto laws may be applied. For instance, in Germany during the 1990s, GDR border guards were tried and convicted for killing fugitive GDR citizens, despite this action potentially being legal under GDR law at the time.
After World War II, Finland faced pressure to convict political leaders responsible for the country's involvement in the war. The Nuremberg Trials, which tried Nazi collaborators, were also criticized as being based on ex post facto law.
The US Constitution specifically prohibits ex post facto laws, and the Supreme Court has provided guidelines for determining whether a law is considered ex post facto. The Beazell standard, for instance, states that an amendment impacting a currently imprisoned individual does not violate ex post facto if it does not increase their punishment.
