DISSENTING OPINION OF JUDGE COSTA JOINED BY JUDGES KALAYDJIEVA AND POALELUNGI

(Translation)

1 . We have concluded, like the Chamber but unlike the majority of the Grand Chamber, that Article 7 of the Convention has been breached by the respondent State on account of the applicant ’ s prosecution and conviction for war crimes. We shall attempt to set out our position on this issue.

2 . A preliminary observation needs to be made in relation to the very structure of Article 7 of the Convention.

3 . As is well known, the first of the two paragraphs of this Article lay down in general terms the principle that offences and penalties must be defined by law, which implies, in particular, that they should not be retrospective ; the second paragraph (in a sense, a lex specialis ) provides for an exception to that principle in cases where the act or omission, at the time when it was committed, was criminal according to “the general principles of law recognised by civilised nations”. (This expression is exactly the same as the one used in Article 38 of the Statute of the International Court of Justice, which clearly inspired it.)

4 . The Grand Chamber rightly observed in paragraph 186 of the judgment, citing Tess v. Latvia ((dec.), no. 34854/02, 12 December 2002), that the two paragraphs of Article 7 must be interpreted in a concordant manner. Similarly, the judgment was correct in our opinion in concluding, in paragraphs 245 and 246, that since the applicant ’ s conviction did not constitute a violation of Article 7 § 1, it was not necessary to examine the conviction under Article 7 § 2. In fact, the lines of reasoning pursued must not only be concordant, but they are closely linked. If we reject the legal basis for the offence under national law, we must have regard to international treaty law or customary international law. And if that does not provide a sufficient basis either, Article 7 as a whole will be breached.

5 . With regard to the facts, as our colleague Egbert Myjer observed in his concurring opinion appended to the Chamber judgment finding a violation, it is in principle not the Court ’ s task to substitute its view for that of the domestic courts, except in cases of manifest arbitrariness. The Court is not a fourth-instance body, or indeed an international criminal tribunal. It is not called upon to retry the applicant for the events that occurred on 27 May 1944 in Mazie Bati. A final decision delivered by the Court on 20 September 2007 dismissed the applicant ’ s complaint of a violation of his right to a fair trial under Article 6 of the Convention. The discussion of the merits of the case was therefore limited to Article 7, as the Grand Chamber noted in paragraph 184 of the judgment. That being so, however, the Court must, without taking the place of the domestic courts, review the application of the Convention provisions in question, in other words ensure that the criminal penalties imposed on the applicant were prescribed by law and were not retrospective . It is, moreover, apparent that in relation to the seriousness of the charges against the applicant, those penalties were not very severe, in view of the fact that he was aged, infirm and harmless (see paragraph 39 of the judgment); however, the clemency shown towards the accused has no direct bearing on the merits of the complaint of a breach of Article 7 of the Convention.

6. The first question to consider is that of national law. At the time of the events, the 1926 Soviet Criminal Code, which became applicable in Latvian territory by a decree of 6 November 1940 (see paragraph 41 of the judgment), did not contain any provisions on war crimes as such. The Code was replaced on 6 January 1961 by the 1961 Criminal Code, after the events in issue, and a L aw passed on 6 April 1993, after Latvia had regained its independence in 1991, inserted provisions on war crimes into the 1961 Criminal Code, permitting the retrospective application of the criminal law in respect of such crimes and exempting them from limitation ( section s 6-1, 45-1 and 68-3 inserted into the 1961 Criminal Code – see paragraphs 48 to 50 of the judgment). In these circumstances , it is difficult to find a legal basis existing in national law at the time of the events and, if we are correct in our understanding of the judgment, in particular paragraphs 196 to 227, the majority found such a legal basis only by reference to international law, even after taking into account the enactment of the 1993 L aw (see paragraph 196 especially). This was also the approach taken by the domestic courts, at least by the Supreme Court Senate in its judgment of 28 September 2004, the final decision in the case at national level. The decision was chiefly based on Article 6 (b) of the Charter of the International Military Tribunal at Nuremberg, and on the 1968 United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes a gainst Humanity (for the reasoning of the Supreme Court Senate ’ s decision, see paragraph 40 of the judgment).

7 . The question of the legal basis in international law, however, is much more complex. It raises a large number of problematic issues: whether such a legal basis actually existed, whether, if appropriate, the charges of war crimes against the applicant were statute-barred or not subject to statutory limitation, and lastly, whether the prosecution of the applicant (from 1998 onwards) and his conviction (in the final instance in 2004) were foreseeable, and could have been foreseen by him.

8 . In our view, a distinction must be made between international law as in force at the material time and as it subsequently emerged and gradually became established, mainly from the time of the Nuremberg trial, which began in November 1945, and was, and continues to be, of vital importance in many respects.

9 . The judgment, to its great credit, contains a lengthy and careful analysis of international humanitarian law, and especially jus in bello , prior to 1944. It is true that both treaty law and customary law in this field developed in particular as a result of the Lieber Code 1863 and subsequently the 1907 Hague Convention (IV) and Regulations. Reference may also be made to the declaration, or “Martens C lause”, inserted into the P reamble to the 1899 Hague Convention (II) and reproduced in the P reamble to the 1907 Hague Convention (IV) (see paragraphs 86 and 87 of the judgment).

10 . However, we are not persuaded, even when viewing them in 2010 through the prism of the many subsequent positive developments, that those instruments could, in 1944, have formed a sufficiently sound and acknowledged legal basis for war crimes to be regarded as having been precisely defined at that time, and for their definition to have been foreseeable. As Egbert Myjer rightly notes in his concurring opinion cited above, not all crimes committed during wars can be considered “war crimes”; the criminal law must be rigorous, and the Court has often observed that it must not be extensively construed to an accused ’ s detriment, for instance by analogy, since this would run counter to the nullum crimen, nulla poena sine lege principle (see, for example, Kokkinakis v. Greece , 25 May 1993, § 52, Series A no. 260 - A ). The applicant was prosecuted, tried and convicted more than half a century after the events in question, on the basis of a criminal law alleged to have existed at that time – a state of affairs that is clearly problematic.

11 . Admittedly, paragraphs 97 to 103 of the judgment also refer to practical examples from before the Second World War of prosecutions for violations of the laws of war ( US court s martial for the Philippines, the “ Leipzig ” trials and the prosecutions of Turkish officers). These isolated and embryonic examples by no means indicate the existence of a sufficiently established body of customary law. We are more inclined to share the view expressed by Professor Georges Abi-Saab and Mrs Rosemary Abi-Saab in their chapter entitled “ Les crimes de guerre” (“ W ar crimes”) in the collective work Droit i nternational p énal (Paris : Pedone, 2000), edited by Professors Hervé Ascensio, Emmanuel Decaux and Alain Pellet (p. 269):

“13. Thus, until the end of the Second World War, the criminalisation of breaches of the rules of jus in bello , in other words the definition of war crimes and the penalties attached to them, was left to the belligerent State and its domestic law (although this power could be exercised only by reference to and within the limits of the rules of jus in bello , and was sometimes exercised by virtue of a treaty obligation). A leap in quality occurred when international law directly defined war crimes and no longer left the definition to the domestic law of individual States.”

(The authors then cite the Nuremberg trial as the starting-point of this “leap in quality”.)

12 . Before reaching a conclusion on the law and practice prior to the events in issue in the present case, it should be pointed out that unfortunately, the many atrocities committed, particularly during the two w orld w ars, did not generally result in prosecution and punishment, until Nuremberg, precisely, changed the situation. This bears out the opinion of Professor and Mrs Abi-Saab , as quoted above.

13 . With regard to “Nuremberg” (the Charter, the trial and the P rinciples), it should be noted at the outset that the whole process began more than a year after the events of the present case. The London Agreement setting up the International Military Tribunal (IMT) dates from 8 August 1945. The Charter of the IMT Nuremberg, annexed to the London Agreement, empowered it to try and to punish persons who, acting in the interests of the European Axis countries, had committed certain crimes, including war crimes. Article 6 (b) of the Charter provided the first legal definition of war crimes, and as has been noted in paragraph 6 of this opinion, the national courts took the view that these provisions applied to the applicant. The judgment of the IMT Nuremberg asserts that the classification of such crimes does not result solely from Article 6 (b) of the Charter, but also from pre-existing international law (in particular, the 1907 Hague Convention (IV) and the 1929 Geneva Convention); however, the question arises whether this declaratory sentence, which is clearly retrospective in effect, should be construed as having erga omnes effect for the past or whether its scope should, on the contrary, be limited to the IMT ’ s general jurisdiction ratione personae , or even to its jurisdiction solely in respect of persons tried by it. This question is crucial, for while the applicant was indeed prosecuted for acts he had allegedly committed or been an accomplice to, he was clearly not acting in the interests of the “European Axis countries” as he was fighting against them. If we rule out the possibility of applying the criminal law extensively and by analogy, it is difficult to accept without some hesitation that the “Nuremberg P rinciples” may serve as a legal basis here.

14 . Historically, then, as is again noted by Egbert Myjer in his opinion cited above, it was the Nuremberg trial “which for the first time made it clear to the outside world that anyone who might commit similar crimes in future could be held personally responsible”. Accordingly, we consider that it was not until after the facts of the present case that international law laid down the rules of jus in bello with sufficient precision. The fact that the Nuremberg trial punished ex post facto the persons brought before the IMT does not mean that all crimes committed during the Second World War could be covered retrospectively , for the purposes of Article 7 § 2 of the Convention, by the definition of war crimes and the penalties attached to them. The “general principles of law recognised by civilised nations” were, in our opinion, clearly set forth at Nuremberg , and not before – unless one were to assume on principle that they pre-existed. If so, from what point did they exist? The Second World War? The First? The War of Secession and the Lieber Code? Is it not, with all due respect, somewhat speculative to determine the matter in a judgment delivered at the start of the twenty-first century? This is a question worth asking.

15 . A fortiori , neither the four Geneva Conventions of 12 August 1949 nor the United Nations Convention of November 1968 on the Non ‑ Applicability of Statutory Limitations to War Crimes and Crimes against Humanity , which came into force on 11 November 1970, appear to provide a legal basis retrospectively for the proceedings instituted against the applicant in 1998, especially as under national law, prosecution of the offence had been statute-barred since 1954 (see paragraph 18 below).

16 . All these considerations lead us to conclude that, at the material time, neither domestic nor international law was sufficiently clear in relation to war crimes, n or the distinction between war crimes and ordinary crimes, however serious such crimes may have been. And the acts carried out on 27 May 1944 (regardless of their perpetrators and/or accomplices) were indeed extremely serious, to judge from the facts as established by the domestic courts.

17 . As well as being unclear, was the applicable law also, and perhaps in the alternative, still in force or did a limitation period apply, thus precluding the institution of proceedings against the applicant for war crimes, and a fortiori his conviction as a result of such proceedings?

18 . In our opinion, the applicant ’ s prosecution had been statute-barred since 1954, under the domestic law in force, because the 1926 Criminal Code provided for a limitation period of ten years from the commission of the offence. Only when the L aw of 6 April 1993 was passed – almost fifty years after the events – was the (1961) Criminal Code amended so that the statutory limitation of criminal liability did not apply to persons found guilty of war crimes. We therefore consider that the non-applicability of this limitation in the applicant ’ s case entailed retrospective application of the criminal law, which in our view is not normally compatible with Article 7.

19 . The majority admittedly conclude (see paragraphs 232 and 233 of the judgment) that in 1944 no limitation period was fixed by international law as regards the prosecution of war crimes. Firstly, though, as stated above, we consider that the acts in issue could not be classified as war crimes in 1944 in the absence of a sufficiently clear and precise legal basis, and , secondly, prosecution in respect of those acts was statute-barred from 1954. We are therefore not persuaded by this reasoning, which amounts to finding that the non-applicability of statutory limitations to criminal offences is the rule and limitation the exception, whereas in our view, the reverse should be true. Exempting the most serious crimes from limitation is a clear sign of progress, as it curbs impunity and permits punishment. International criminal justice has developed significantly, particularly since the setting up of ad hoc international tribunals, followed by the International Criminal Court. However, without a clear basis in law it is difficult to decide ex post facto that a statutory limitation should not apply.

20 . Lastly, and perhaps most importantly, we need to consider the foreseeability , in 1944, of a prosecution brought in 1998, on the basis of an instrument dating from 1993, for acts committed in 1944. Could the applicant have foreseen at that time that more than half a century later, those acts could be found by a court to constitute a basis for his conviction, for a crime which, moreover, was not subject to statutory limitation?

21 . We do not wish to enter into the debate on the foreseeability of the historical and legal changes occurring after, and sometimes a long time after, the events (the Nuremberg trial, the Geneva Conventions of 1949 , the 1968 United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity , the 1993 L aw passed following the restoration of Latvia ’ s independence in 1991). We would simply note that the applicant ’ s conviction was based on international law. In that regard, the analogy drawn in the judgment (paragraph 236) with K.-H.W. v. Germany ( [GC], no. 37201/97, 22 March 2001 ) does not seem decisive to us either. That case concerned facts occurring in 1972 which were punishable under the national legislation applicable at that time, and the Court found that they should also be assessed from the standpoint of international law – that is, however, as existing in 1972 and not 1944. Similarly , in Korbely v. Hungary ( [GC], no. 9174/02, ECHR 2008) , the facts, dating back to 1956, were in any event subsequent to the Geneva Conventions of 1949 in particular.

22 . All in all, we would emphasise that the aim here is not to retry the applicant, to determine his individual responsibility as perpetrator, instigator or accomplice, or to confirm or refute the national courts ’ assessment of the facts. Nor is there any question of minimising the seriousness of the acts carried out on 27 May 1944 in Mazie Bati. What is at issue is the interpretation and application of Article 7 of the European Convention on Human Rights. This Article is not inconsequential but is extremely important, as is illustrated in particular by the fact that no derogation from it is permissible under Article 15 of the Convention.

23 . In conclusion, we consider that, in respect of Article 7:

(a) the legal basis of the applicant ’ s prosecution and conviction was not sufficiently clear in 1944;

(b) it was not reasonably foreseeable at that time either, particularly by the applicant himself;

(c) prosecution of the offence was, moreover, statute-barred from 1954 under the applicable domestic legislation;

(d) and, as a consequence, the finding that the applicant ’ s acts were not subject to statutory limitation, thus resulting in his conviction, amounted to retrospective application of the criminal law to his detriment.

For all these reasons, we consider that Article 7 has been breached.

[1] . Trial of the Major War Criminals before the International Military Tribunal , Nuremberg , 14 November 1945 – 1 October 1946 (Nuremberg, Germany), 1947, vol. XXII, p. 494.

[2] . G. Mettraux , “ US Courts Martial and the Armed Conflict in the Philippines (1899 ‑ 1902): Their Contribution to the National Case Law on War Crimes ” , Journal of International Criminal Justice 1, 2003, pp. 135-50 , with case citations therein.

[3] . Judgment in the case of Lieutenants Dithmar and Boldt , Hospital S hip “Llandovery Castle” , 16 July 1921.

[4] . V.N. D adrian , “ Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications” , 14 Yale Journal of International Law , 1989 , pp. 221-334 .

[5] . History of the United Nations War Crimes Commission and the Development of the Laws of War , (London: His Majesty ’ s Stationery Office) , 1948 , p. 91.

[6] . C. B assiouni , “ L’expérience des Premières Juridictions Pénales Internationales ”, in H. Ascensio, E. Decaux and A. Pellet, Droit International Pénal (Paris : Pedone ), 2000 , pp. 635-59 , at p p . 640 et seq .

[7] . See, i nter alia , the Diplomatic Notes of 7 November 1941 , 6 January 1942 and 27 April 1942.

[8] . G. G insburgs, “ The Nuremberg Trial: Background” , in G. G insburgs and V.N. K udriavtsev, The Nuremberg Trial and International Law , (Dordrecht: Martinus Ni j hoff Publishers ) , 1990 , pp. 9-37 , at pp. 20 et s eq .

[9] . I.F. Kladov , The People ’ s Verdict: A Full Report of the Proceedings at the Krasnodar and Kharkov German Atrocity Trials , ( London , New York : Hutchinson & Co. , Ltd. ), 1944 , at pp. 113 et seq.

[10] . G. Ginsburgs , op. cit. , p p . 28 et seq.

[11] . G. G insburgs, “ Moscow and International Legal Cooperation in the Pursuit of War Criminals” , 21 Review of Central and East European Law , No. 1, 1995 , pp. 1-40 , at p. 10.

[12] . Trial of the Major War Criminals before the International Military Tribunal , Nuremberg , 14 November 1945 – 1 October 1946 (Nuremberg, Germany), 1947; judgment delivered on 30 September and 1 October 1946 .

[13] . The United States of America v. Wilhelm List , et al. , in UNWCC Law Reports of Trials of War Criminals (LRTWC), vol. VIII , 1949 (“the Hostages case”).

[14] . Trial of Shigeru Ohashi and O the rs , Australian Military Court , 1946 , LRTWC , vol. V; Trial of Yamamoto Chusaburo , British Military Court , 1946 , LRTWC , vol. III; Trial of Eikichi Kato , Australian Military Court , 1946 , LRTWC , vol. I; Trial of Eitaro Shinohara and O the rs , Australian Military Court , 1946 , LRTWC , vol. V; Re Yamashita 327 US 1 (1946); Trial of Karl - Hans Hermann Klinge , Supreme Court of Norway, 1946 , LRTWC , vol. III; Trial of Franz Holstein and O the rs , French Military Tribunal , 1947 , LRTWC , vol. VIII; Trial of Otto Skorzeny and Others , American Military Tribunal, 1947 , LRTWC , vol. IX; The Dostler c ase , US Military Commission , 194 5 , LRTWC , vol. I ; The Almelo Trial , British Military Court , 194 5 , LRTWC , vol. I ; The Drei e rwalde case , British Military Court, 194 6 , LRTWC , vol. I ; The Abbaye Ardenne case , Canadian Military Court , 194 5 , LRTWC, vol. IV ; Trial of Bauer , Schrameck and Falten , French Military Tribunal , 194 5 , LRTWC , vol. VIII; Trial of Takashi Sakai , Chinese Military Tribunal , 1946 , LRTWC , vol. III; Trial of Hans Szabados , French Permanent Military Tribunal , 1946 , LRTWC , vol. IX; Trial of Franz Schonfeld et al. , British Military Court , 1946 , LRTWC , vol. XI ( the dates are the dates of the trial or judgment).

[15] . These referenced provisions concern entitlement to “ prisoner of war ” status and define armed forces.

[16] . See Oppenheim & Lauterpacht, Oppenheim’s International Law Vol. II : Disputes , War and Neutrality , 6th ed ition, (London: Longmans Green and Co. ), 1944 , p. 454 , cited with approval in the Trial of Shigeru O hashi and O thers , cited at paragraph 129 above.

[17] . See the Hostages case , cited at paragraphs 125 to 128 above .

[18] . The Lieber Code 1863 (Article 51); the Draft Brussels Declaration 1874 (Article 10); the Oxford Manual 1880 (Article 2 § 4); and the Hague Regulations (Article 2).

[19] . The Lieber Code 1863 (Articles 49 , 57 and 63-65); the Draft Brussels Declaration 1874 (Article 9); and the Oxford Manual 1880 (Article 2).

[20] . Article 1 of the Hague Regulations ( see paragraph 90 above).

[21] . The Hague Regulations were found to be declaratory of laws and customs of war at least by 1939 in the judgment of the IMT Nuremberg (see paragraphs 88 and 118 above and 207 below ).

[22] . The Lieber Code 1863 (Article 65).

[23] . Ibid. (Article 57).

[24] . See, i nter alia , t he Lieber Code 1863 (Articles 16 , 63 , 6 5 and 101) ; the Draft Brussels Declaration 1874 (Article 13 (b) and (f)); t he Oxford Manual 1880 (Article 8 (b) and (d) ) ; and the Hague Regulations (Article 23 (b) and (f) ). See also the Trial of Otto Skorzeny and Others , cited at paragraph 129 above , which court cited with approval Oppenheim & Lauterpacht, op. cit., at p. 335.

[25] . See “Geneva law” (at paragraphs 53-62 above); the Lieber Code 1863 (Articles 49 , 76 and 77); the Draft Brussels Declaration 1874 (Articles 23 and 28); the Oxford Manual 1880 (Article 21 and Chapter III); the Hague Regulations (Chapter II and , notably , Article 4); the International Commission Report 1919; the Charter of the IMT Nuremberg (Article 6 (b)); and Control Council Law No. 10 (Article II).

[26] . The Hostages case , Re Yamashita and the Trial of Takashi Sakai , all cited at paragraphs 125 to 129 above.

[27] . The Draft Brussels Declaration 1874 (Article 28); the Oxford Manual 1880 (Article 68); and the Hague Regulations (Article 8).

[28] . Legality of the Threat or Use of Nuclear Weapons , A dvisory O pinion of 8 July 1996 , ICJ Reports , §§ 74-87.

[29] . The Lieber Code 1863 (Article 22); the Oxford Manual 1880 (Article 1); the Draft Brussels Declaration 1874 (Article 9); the Draft Tokyo Convention 1934 (Article 1); and the Amsterdam Convention 1938 (Article 1 ). See also US Field Manual: Rules of Land Warfare , 1940, § 8, and ex parte Quirin 317 US 1 (1942).

[30] . Ex p arte Milligan 71 US 2 (1866) , and Oppenheim & Lauterpacht, op. cit., at p. 277 (“ ... in the eighteenth century it became a universally recognised customary rule of the Law of Nations that private enemy individuals should not be killed or attacked. In so far as they do not take part in the fighting , they may not be directly attacked and killed or wounded.”)

[31] . As to the right to a trial before punishment for war crimes , see the Hostages case . As to the right to try prisoners of war for war crimes , see the 1929 Geneva Convention (Article 46). As to the right to a trial for those suspected of spying , see the Draft Brussels Declaration 1874 (Article 20); the Oxford Manual 1880 (Articles 23-26); the Hague Regulations (Articles 29-31) , and the US Field Manual: Rules of Land Warfare , 1940 , p. 60. As to the right to a trial for those accused of war treason , see the US Field Manual: Rules of Land Warfare , 1940 , p. 59. As to contemporary practice , see e x parte Qui ri n ; the “ Krasnodar ” trials as well as the Trial of S higeru Ohashi and Others , the Trial of Yamamoto Chusaburo , the Trial of Eikichi Kato and the Trial of Eitaro Shinohara and O the rs (cited at paragraphs 106 -10 , 11 4 and 129 above).

[32] . See , in particular , the title of the 1907 Hague Convention (IV) ; Article 6 (b) of the Charter of the IMT Nuremberg ; Article 5 (b) of the Charter of the IMT Tokyo and the judgments of those IMTs. See also Oppenheim & Lauterpacht, op. cit., at p. 451, and L achs, War Crimes – An Attempt to Define the Issues (London: Stevens & Sons ), 1945, pp. 100 et seq.

[33] . Notably in Article s 47 , 59 and 71.

[34] . Lauterpacht , “ The Law of Nations and the Punishment of War Crimes ” , 21 BYIL , 1944, pp. 58-95 at p p . 65 et seq. , and Kelsen , “ The Rule Against Ex Post Facto Laws and the Prosecution of the Axis War Criminals” , 2 The Judge Advocate Journal , 1945, pp. 8-12 , at p. 10.

[35] . See also Article II (b) of the Control Council Law No. 10 , and the Hostages case , cited at paragraphs 125 to 128 above.

[36] . See , for example , Article 3 of the 1907 Hague Convention (IV) .

[37] . The Treaty of Versailles (Article 229); the Moscow Declaration 1943 and the “ Kharkov ” trials; the London Agreement 1945 (Article 6); and the Nuremberg Principles ( Principle II). The US courts martial in the Philippines , notably the Trial of Lieutenant Brown ; the Llandovery Castle case a nd the Trial of Karl - Hans Herman Klinge , all cited at paragraphs 97 to 100 , 102 and 129 above; Lauterpacht , op. cit., p. 65; Kelsen , op. cit., pp . 10-11; Lachs , op. cit., p p . 8 , 22 and 60 et seq.; and G. Manner , “ The Legal Nature and Punishment of Criminal Acts of Violence C ontrary to the Laws of War ” , American Journal of International Law ( AJIL ) , vol. 37 , no. 3 , Jul y 1943, pp. 407-35.

[38] . T. Meron , “ Reflections on the Prosecution of War Crimes by International Tribunals ” , AJIL , vol. 100 , 2006, p. 558.

[39] . G. Mettraux , op. cit., pp. 135-50.

[40] . The St James Declaration 1942 (notably , Article 3); the Diplomatic Notes of the USSR 1941-42 and the USSR Decree of 2 November 1942; the Moscow Declaration 1943; and the Potsdam Agreement 1945 .

[41] . The UNWCC established in 1943; the London Agreement 1945 (Article 6) ; the judgment of the IMT Nuremberg; and the Nuremberg Principles (Principle II).

[42] . See p aragraphs 106 to 110 above (“Prosecution of war crimes by the USSR” , including the “ Krasnodar ” and “ Kharkov ” trials) and paragraph 114 above ( ex parte Quirin ).

[43] . See p aragraphs 123 to 129 above.

[44] . Lachs , op. cit., p p. 100 et seq. , and the Hostages case , cited at paragraphs 12 5 to 12 8 above .

[45] . See Re Yamashita and the Trial of Takashi Sakai , cited at paragraph 129 above.

[46] . “ German War Trials: Judgment in the Case of Emil Müller ” , AJIL , vol. 16 , n o. 4 , 1922, pp. 684-96.

[47] . The St James Declaration 1942 (Article 3); the Moscow Declaration 1943; the Potsdam Agreement 1945 ; t he London Agreement 1945 ( P reamble); the Charter of the IMT Nuremberg (Article 6); and the Charter of the IMT Tokyo (Article 5 (c)).

[48] . See the Trial of Takashi Sakai , cited at paragraph 129 above ; Control Council Law No. 10 (Article II § 2) applied in the Hostages case ; and Re Yamashita , cited at paragraph 129 above.

[49] . Prosecutor v. Delalic et al . , IT-96-21-A , judgment of 20 February 2001 , § 195 , Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) ; D. Sarooshi , “ Command Responsibility and the Bla Å¡ ki ć Case ” , International and Comparative Law Quarterly , vol. 50 , n o. 2 , 2001, p. 460; and Prosecutor v. Bla Å¡ ki ć , IT ‑ 95 ‑ 14 ‑ T , judgment of 3 March 2000, Trial Chamber of the ICTY , § 290 .

[50] . T he Statute of the ICTY (Article 7 § 3) ; the Statute of the International Criminal Tribunal for Rwanda (Article 6) ; the Rome Statute of the International Criminal Court (Article 25) ; and the Statute of the Special Court for Sierra Leone (Article 6).

[51] . The Lieber Code 1863 (Article 47); the Oxford Manual 1880 (Article 84); Lauterpacht , op. cit., p. 62; and Lachs , op. cit., p p . 63 et seq.

[52] . Corfu Channel case , j udgment of 9 April 1949 , ICJ Reports 1949 , p. 4 , at p. 22. See also the US Field Manual: Rules of Land Warfare , 1940, ( the description of the “Basic principles”).

[53] . Legality of the Threat or Use of Nuclear Weapons , cited above , §§ 74-87.

[54] . Ibid. , §§ 74-87. More specifically , see the Lieber Code 1863 (Articles 15 and 16); the St Petersburg Declaration 1868 (Preamble); the Oxford M anual 1880 (Preface and Article 4); and the 1907 Hague Convention (IV) (Preamble).

[55] . Legality of the Threat or Use of Nuclear Weapons , cited above, at § 87; Prosecutor v. Kupre š ki ć and Others , IT-95-16-T , judgment of 14 January 2000 , Trial Chamber of the ICTY, §§ 521-36; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , advisory opinion of 7 July 2004 , ICJ Reports 2004 , at § 157.

[56] . See, inter alia , the Lieber Code 1863 (Article 71); the St Petersburg Declaration 1868; the Draft Brussels Declaration 1874 (Articles 13 (c) and 23); the Oxford Manual 1880 (Article 9 (b)); and the Hague Regulations (Article 23 (c)). See also the Trial of Major Waller , cited at paragraph 98 above , and Article 41 of the Protocol Additional 1977 .

[57] . See , in particular , Article 3 of the 1929 Geneva Convention.

[58] . The Lieber Code 1863 (Articles 15 , 16 and 38); the Draft Brussels Declaration 1874 (Article 13 (g)); the Oxford Manual 1880 (Article 32 (b)); the Hague Regulations ( Article 23 ( g)); the International Commission Report 1919; the Charter of the IMT Nuremberg (Article 6 (b)); and Control Council Law No. 10 (Article II). See also the Trial of Hans Szabados , cited at paragraph 129 above, and Oppenheim & Lauterpacht, op. cit., at p. 321.

[59] . T he Oxford Manual 1880 (Article 84) ; the Draft Tokyo Convention 1934 (Article s 9 and 10) ; the US Field Manual: Rules of Land Warfare , 1940 ; t he Hostages case and the Trial of Eikichi Kato , cited at paragraphs 125 to 129 above , as well as Kupreškić and Others , cited above. See also Oppenheim & Lauterpacht , op. cit., pp. 44 6 - 50.

[60] . The USSR Fundamental Principles of Criminal Law and Procedure , 1924; and M. Ancel , “ Les Codes P énaux E uropéens ”, vol. IV, ( Paris : CFDC ) , 1971 .

[61] . Including the St James Declaration 1942; the Moscow Declaration 1943; and the Charters of the IMTs Nuremberg and Tokyo.

[62] . Preamble to the 1968 Convention .

[63] . U nited N ations Commission on Human Rights , Question of the N on- A pplicability of Statutory Limitation to War Crimes and Crimes against Humanity: Study S ubmitted by the Secretary - General , UN Doc. E/CN.4/906 , 1966, at p. 104; the 1968 Convention ; Robert H. Miller, “ The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity ” , AJIL , vol. 65 , no. 3, July 1971, pp. 476-501 , and further references therein; the 1974 Convention ; the Rome Statute of the Inter national Criminal Court; and R. Kok, Statutory Limitations in International Criminal Law (The Hague: TMC Asser Press), 2001, pp. 346-82.