Ex Post Facto Laws

The current administration has refused to become part of the International Criminal Court, which is charged with prosecuting war crimes. Prior to the creation of the Court, the United Nations charged two International Criminal Tribunals to prosecute genocide, war crimes and crimes against humanity committed in the former Yugoslavia and Rwanda.

Some nations refused to sign the Treaty of Rome, which created the Court, in part because the Court sought to prosecute crimes that had occurred prior to the treaty being fully executed. In other words, it was argued that the treaty and the tribunals sought to prosecute crimes ex post facto. The United States Constitution prohibits the creation of ex post facto laws as do many other nations constitutions. However, the tribunals and the Court should be allowed to prosecute the crimes that occurred even if they occurred prior to the tribunals or the Court’s creation.

This same argument was made during the Nuremberg trials. People questioned whether the Nazis could be prosecuted under laws that were established after the Nazis had committed genocide. The Nuremberg trials went forward anyway and prosecutions were successful. The creation of the laws after the committing of the offense did not undermine the legitimacy of the trials or the convictions.

There are certain acts which laws need not be created for them to shock the conscience and be deemed to be criminal. Genocide and crimes against humanity, which includes murder, rape, forced deportation, and other acts, are just such acts that if committed, even in the course of war, people know were improper and illegal. These are the types of crimes that critics say should not be prosecuted because there were established after the genocide, murders, rapes and other acts occurred. No one committing such acts nor anyone learning of these acts could reasonably question that these actions are illegal. People do not need to open up law books or international treaties to determine this; rather, the perpetrator and the observers need only search themselves for right and wrong to understand that these actions are criminal. Therefore, it is appropriate for these actions to be prosecuted regardless of when the treaties were signed.

No reasonable person would argue that the Mi Lai massacre was reprehensible and criminal. There was no international court designed to prosecute crimes at the time the massacre occurred; however, under the criminal treaties that are currently in place, these actions would constitute criminal acts that could be prosecuted. When reports of the massacre became public, the nation and the world were outraged. Everyone understood that these actions were beyond the scope of war and constituted improper and illegal actions. Had a criminal tribunal been established at the end of the Vietnam War, the U.S. soldiers could have been and should have been prosecuted.

There is no difference between the Mi Lai massacre and the genocides that have occurred in Rwanda and the former Yugoslavia. Everyone who engaged in the acts knew that the actions were beyond permissible acts of war. Once someone has gone beyond that threshold, the action should be deemed criminal and should be prosecuted. When the natural law of right and wrong has been violated, it is permissible for those criminal acts to be prosecuted regardless of when the criminal statute and international treaties were formalized.