The gist of his case is that the Act contravenes the most basic element of our system of justice - including the requirement of fairness - which it is the purpose of the rule of law to protect. It is precisely because of the rule of law that we must pass legislation such as the War Crimes Act.
It is not the case that the Act is 'a flagrant case of retroactive legislation'. Retroactivity refers to the subsequent criminalisation of an act that was lawful at the time it was committed. To be fair to Mr Wheatcroft, he prefers to think of genocidal crimes as merely 'revolting deeds', thus implying that the cold-blooded and systematic murder of thousands of innocent people was not a crime at the time such deeds were committed. Quite the contrary, both by the domestic laws of all civilised countries and by contemporary international law, war crimes of the kind committed by the Nazis and their willing collaborators were unlawful and constituted murder.
Second, he asserts that the Act in some way changes the rules of evidence and identification. Again incorrect: there is nothing in the Act to support such a bizarre contention. To the contrary, the Act introduces safeguards for the accused - thus prosecutions require the consent of the Attorney General, and where a notice of transfer had been issued the defence have a right of appeal (to the Crown Court) for the case to be dismissed for want of sufficient evidence.
However, the principled objection to the Act is said to concern the rule of law, understood as a set of juristic precepts guaranteeing fairness to the accused. In the light of the above points Wheatcroft's argument finally fails. But there is a deeper meaning to the rule of law: it can also be characterised as representing the ideals underpinning our system of justice as a whole.
In this sense, the purpose of law is not only to guarantee basic rights but also obligations to each other as civilised human beings. For the system of justice to fail to respond to crimes such as those involved in the Holocaust seriously undermines the integrity of the whole system. It also sends a message to the perpetrators of such unspeakable crimes - past, present and future - that their misdeeds will go unpunished by civilised legal orders.
Lecturer in Law
University of Sheffield
15 DecemberReuse content