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The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

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Trying Communism through International Criminal Law? The Experiences of the Hungarian Historical Justice Trials

Trying Communism through International Criminal Law? The Experiences of the Hungarian Historical Justice Trials

Chapter:
(p.229) 11 Trying Communism through International Criminal Law? The Experiences of the Hungarian Historical Justice Trials
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Hoffmann Tamás

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0011

Abstract and Keywords

This chapter analyses the Hungarian historical trials which sought to address the mass atrocities committed against civilians during the communist regime. It shows that the Hungarian judiciary was unable to apply international criminal law to the events of the 1956 revolution. The main lesson learned from the trials, aside from the need to reform the legal education of judges, is that international criminal law cannot be a substitute for the ultimately political project of confronting past wrongs and trying to achieve national reconciliation.

Keywords:   Hungary, Hungarian jurisprudence, 1956 revolution, international criminal law

This chapter aims to critically analyse the attempts of the Hungarian judiciary to address crimes committed during the 1956 revolution through the use of international law.1 These so-called historical justice trials undertook to uncover the true history of the mass atrocities perpetrated against civilians suppressed during the communist regime and bring the perpetrators to justice. However, the Hungarian judiciary proved unable to apply international criminal law, which led to a series of contradictory judgments that left the general populace confused. Coupled with the absence of a popular desire to confront the country’s past, the predominantly technical approach of the trials not only could not fulfil their purpose but might have exacerbated the general indifference. This chapter will thus have a two-fold goal: to demonstrate the inherent problems associated with the direct application of international criminal law in a domestic legal environment, and to tell the story of an unsuccessful attempt to substitute criminal procedures for social reconciliation. In this sense, this is the untold story of the Hungarian historical justice trials that tried to confront the public with their hidden history of mass atrocity.

(I) Introduction—Crimes of Past, Dilemmas of Transition

Following a short period of unprecedented democracy between 1945 and 1949, Hungary became a communist country in 1949. The ensuing brutal oppression (p.230) under the leadership of Mátyás Rákosi was characterized by nationalizations, mass deportations, the persecution of ‘class enemies’ and show trials. Even though the repression subsided in 1953, after the death of Stalin, in 1955 the reformist prime minister, Imre Nagy, was dismissed and the coterie of Rákosi returned to power.2

On 23 October 1956 the population’s general disappointment with the Rákosi leadership manifested itself in peaceful demonstrations throughout the country. These rallies, however, escalated into violence prompting the spontaneous emergence of insurgent groups fighting against government troops. While these hostilities remained localized, with their main centre in Budapest, they ostensibly achieved their ambition: Imre Nagy took the helm again on 28 October. However, the intervention of the Soviet army on 4 November sealed the fate of the short-lived revolution and gave power to János Kádár, who controlled the country until 1988.3 The Kádár regime quickly consolidated its authority. Between 1957 and 1962 about 22,000 people were tried for participating in the revolution. Hundreds of revolutionaries were sentenced to death and executed, including Imre Nagy, and thousands were incarcerated. Yet despite the harsh and wide-ranging retribution, the communist leadership’s policy of gradually increasing the average standard of living resulted in general support for ‘goulash communism’. Until the economic hardships of the 1980s, the communist leadership was regarded as legitimate by the majority of the population.

The transition to democracy was peaceful and took place formally in the context of ‘Roundhouse Talks’, where representatives of the opposition and the ruling Hungarian Socialist Workers’ Party agreed on the design of the constitutional framework. In the meantime, the reburial of Imre Nagy turned out to be a massive anti-communist demonstration, which indicated the general desire of the people for regime change.4

In 1990, the first free election brought about victory for a right-wing coalition, which attempted to redress the injustices of the communist era. Beyond the limited restitution of nationalized property5 and the adoption of a lustration law,6 the ‘historical justice debate’ largely focused on the potential prosecution of persons responsible for crimes committed during the communist era.7 These debates had highly political overtones. The liberal opposition questioned the prudence of criminal (p.231) trials decades after the fact8 and feared that criminal prosecution could be used as a tool to engage in ‘decommunization’, effectively singling out persons holding influential positions in the previous regime.9 However, it was pointed out that punishing ‘comrades’ during the communist era was hardly feasible since the party exercised complete control over all legal accountability mechanisms, which went so far that ‘the chief prosecutor issued written ‘top secret’ orders requesting all law enforcement bodies to get approval from the Hungarian Socialist Workers’ Party before the arrest or prosecution of communist officials on any grounds.’10

In practice, the initiation of criminal investigations was hindered by the fact that substantive criminal provisions in force at the time of the commission of the acts, the Official Compilation of Penal Regulations in Force,11 and the subsequently adopted Criminal Codes12 specified a rule of prescription of fifteen years and later twenty years for voluntary manslaughter. Conventionally, statutory limitations serve the important role of preventing prosecutions that would involve significant resources and would present huge practical difficulties after a considerable passage of time.13 However, in the view of the parliamentary majority, the objective of ensuring the accountability of communist criminals warranted extraordinary measures. In an attempt to overcome this obstacle, the legislature adopted an act that stipulated that in case of treason, voluntary manslaughter and infliction of bodily harm resulting in death committed between December 1944 and May 1990, prescription resumes ‘provided that the state’s failure to prosecute said offences were due to political reasons’.

The law generated much controversy due to its vague language and the inclusion of the crime of treason. It was feared that the law would allow the courts to use it against the supporters of the previous regime. However, the proposal was found unconstitutional by the Constitutional Court, which interpreted the principle of legality as covering ‘every aspect of criminal liability’ and therefore concluded that the modification or reactivation of an already lapsed statute of limitation would violate this principle. The Court made clear that ‘conviction and punishment can only proceed according to the law in force at the time of the commission of the crime’.14

(p.232) To circumvent the problem of retroactive effect, legislators opted to rely on crimes under international law, where the statute of limitations was supposedly no longer an obstacle. The Parliament adopted a statute on 16 February 1993 entitled ‘The Procedure to Follow in Case of Certain Crimes Committed During the 1956 War of Independence and Revolution’. This draft law penalized a mixture of international and common crimes, including violation of personal freedom and terrorist acts, whose retroactive application had already been found unconstitutional by the Constitutional Court. Consequently, it did not come as a surprise when the Court reiterated its previous judgment regarding the effect of statutory limitations on common crimes and found that in that respect the statute of limitation had run out.15 Yet the Constitutional Court developed a line of argument that enabled the prosecution of international crimes. It relied on Article 7(1) of the Hungarian Constitution, which states that ‘[t]‌he legal system of the Republic of Hungary accepts the generally recognized principles of international law, and shall harmonise the country’s domestic law with the obligations assumed under international law’.16

According to this interpretation, customary law, jus cogens, and possibly general principles of law become part of the Hungarian legal system automatically, without any implementing legislation. Incorporation occurs via a rule of ‘general transformation’ prescribed by Article 7(1) of the Constitution.17 Other interpretations, however, assert that international treaties still have to be incorporated into the Hungarian legal order by way of publication upon ratification in the Official Gazette.18

The Constitutional Court declared that crimes against humanity and war crimes are ‘undoubtedly part of customary international law; they are general principles recognised by the community of nations’.19 As a result, the problem of statutory limitations is resolved, since:

International law applies the guarantee of nullum crimen sine lege to itself, and not to the domestic law. ‘Customary international law’, ‘legal principles recognised by civilised nations’, ‘the legal principles recognised by the community of nations’, is such a lex, or a body of written and unwritten laws, which classifies certain behaviour prosecutable and punishable according to the norms of the community of nations (via international organisations or membership in a given community of states), irrespective whether the domestic law contains a comparable criminal offence, and whether those offences have been integrated into an internal legal system by that country’s accession to the pertinent international agreements.20

(p.233) The Court concluded that since Hungary has ratified the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity,21 the perpetrators of crimes falling within the purview of the Convention could be prosecuted by the authorities; moreover, the authorities were under an obligation to carry out investigations.22 Even though this interpretation was not entirely free of constitutional difficulties,23 it offered a way out of the historical justice conundrum. The Court found that the prosecution of crimes concerning the 1956 revolution was constitutional if these acts qualified as crimes under international law, ie war crimes or crimes against humanity.24 Nevertheless, the legislature still could not cope with the task of drafting a law conforming to these parameters. Although the Parliament amended the text of the Act and eliminated the unconstitutional first paragraph on ordinary crimes, the new law still linked Article 130 of Geneva Convention III and Article 147 of Geneva Convention IV proscribing grave breaches of the Conventions, which can be committed in international armed conflict, to Common Article 3 of the Geneva Conventions regulating the minimum rules applicable to non-international armed conflicts.25

Inevitably, the Constitutional Court was compelled to examine the constitutionality of the re-enacted law and predictably quashed it for establishing these connections contrary to the clear language of the Conventions.26 Still, the Court declared that:

[w]‌ith the nullification of the law there is no obstacle preventing the state from pursuing the offender of war crimes and crimes against humanity as defined by international law…It is international law itself which defines the crimes to be persecuted and to be punished as well as all the conditions of their punishability.27

(p.234) This new interpretation precipitated a change of focus: instead of investigating the most significant political crimes of the Communist era, the criminal proceedings concentrated on war crimes and crimes against humanity allegedly committed during the 1956 Hungarian revolution and attempted to establish criminal responsibility based on international law. The prosecutors investigated forty potential cases and finally issued indictments in nine cases. However, only three persons were found guilty.28

(II) A Tragedy of Errors—Critical Analysis of the Hungarian Jurisprudence

In the following section, I will analyse the attempts of the Hungarian judiciary to apply international criminal law to the events of the 1956 revolution. Firstly, I present the applicable legal framework at the time of the commission of the acts,29 that is, the regulation of war crimes and crimes against humanity. In this regard, I will focus on the most problematic questions addressed by the Hungarian courts. Subsequently, I will turn to the actual judgments and will try to explain why the Hungarian judiciary came to a flawed conclusion.

(1) War crimes

It is uncontroversial to say that by World War II international law had attached individual criminal responsibility to serious violations of the laws and customs of war in international armed conflict.30 After the war, most of these offences were codified in the grave breaches provisions of the 1949 Geneva Conventions.31 The legal regulation of internal armed conflicts, however, was traditionally considered to belong to the domaine réservé of sovereign states. Accordingly, governments were given complete discretion to deal with rebels threatening their rule. The rules of the laws of armed conflict only became applicable when the state accorded recognition of insurgency or belligerency to the rebels in a high-intensity civil (p.235) war, accepting them as equal belligerents.32 Outside of this situation, the concept of international legal regulation pertaining to domestic armed conflicts was unintelligible.

Yet Common Article 3 of the 1949 Geneva Conventions enumerated a number of elementary norms applicable to ‘armed conflicts not of an international character’. Even though this rudimentary framework was certainly revolutionary in the sense of extending the protection of some elementary norms of international humanitarian law to non-international armed conflicts, the very definition of the notion of non-international armed conflict was conspicuously missing from the provision. This gave rise to much speculation about its scope of application. During the 1949 Diplomatic Conference, most states intended to set a very high threshold of application for Common Article 3, similar to the classic conditions of recognition of belligerency.33 It can be concluded that the drafters conceived the term ‘armed conflict not of an international character’ to refer to ‘situations of civil war, i.e. non-international armed conflict reaching the threshold of intensity associated with contemporaneous conventional international warfare’.34

In legal literature a number of criteria were adduced for the determination of the existence of non-international armed conflict, the most frequently mentioned ones being a certain level of organization and intensity of violence.35 Thus, Schindler suggests that hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces and that insurgents have to exhibit a minimum amount of organization, ie to be under responsible command and be capable of meeting minimal humanitarian requirements.36 Draper likewise emphasized that the ability of insurgents to comply with their obligations under Common Article 3 not only implies a modicum of organization, but also a degree of territorial control.37

In similar fashion, the International Committee of the Red Cross (ICRC) proposed during the consultations about the text of Additional Protocol II to the 1949 Geneva Conventions a draft definition of non-international armed conflict that (p.236) it considered sufficiently general and flexible to apply to all situations based on the criteria of ‘the existence of a collective confrontation “between armed forces or armed groups”, under a responsible command, which is to say with a minimum level of organisation’.38

The jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) also maintained that a certain level of organization and intensity of violence were indispensable for the determination of a non-international armed conflict. In the Tadić case the Appeals Chamber submitted that ‘[a]‌n armed conflict exists whenever there is…protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.39 This definition has generally been accepted as a restatement of customary international law, consistently reiterated by the ICTY,40 International Criminal Tribunal for Rwanda,41 the International Criminal Court,42 internationalized criminal courts,43 military law manuals44 and international expert reports.45 The customary status of the Tadić definition is also buttressed by its inclusion in Article 8(2) (f) of the Rome Statute of the International Criminal Court.46 Still, as pointed out above, contemporary consensus points to the conclusion that the threshold of non-international armed conflict was significantly higher in 1956 than it is today.

It must also be kept in mind that individual criminal responsibility does not automatically follow from the commission of a proscribed act. Before the 1990s, (p.237) almost unanimous opinion held that the concept of war crimes was confined to the field of international armed conflicts.47 The acceptance of individual criminal responsibility for crimes committed in non-international armed conflict was largely due to the ICTY’s revolutionary 1995 Tadić Interlocutory Appeals decision,48 which changed the perception of the international community on this question.49 Consequently, it can be concluded that international law did not criminalize violations of international humanitarian law committed during a non-international armed conflict as war crimes in 1956.

(2) Crimes against humanity

The category of crimes against humanity originally aimed to ensure that inhumane acts committed against the civilian population in connection with war were punished. Hence, it served as an ‘accompanying’ or ‘accessory’ crime to either crimes against peace or war crimes.50 In effect, the International Military Tribunal treated the concept as an extension of war crimes.51

Nevertheless, some crucial elements of this category—and especially its precise content in 1956—are subject to contradictory interpretations. The Charter of the International Military Tribunal required a nexus between crimes against humanity and other crimes within the jurisdiction of the Tribunal, that is, it linked crimes against humanity to an international armed conflict. Even though it is generally accepted that contemporary customary international law no longer requires this connection,52 there is disagreement as to when this bond was severed. While the European Court of Human Rights (ECtHR) contended in the Korbély case that nexus with an armed conflict ‘may no longer have been relevant by 1956’ for the determination of crimes against humanity,53 other authorities suggest that this transformation took place at a later date.54

(p.238) Another contentious issue is the substance of the contextual elements of the crime. There is general agreement that crimes against humanity require ‘widespread or systematic’ commission in which ‘the hallmark of “systematic” is the high degree of organisation, and that features such as patterns, continuous commission, use of resources, planning, and political objectives are important factors’.55 Widespread commission, on the other hand, is the quantitative aspect of crimes against humanity, which typically denotes numerous inhumane acts,56 but might also be satisfied by a singular massive act of extraordinary magnitude.57 However, the jurisprudence of international criminal courts and legal doctrine are divided over whether the attack against the civilian population must be carried out in pursuance of a state plan or policy. Since the adoption of the Kunarac judgment, the ad hoc tribunals have consistently rejected the existence of such an underlying plan or policy under customary international law,58 even though arguably the evidence adduced by the Tribunal to support this conclusion was far from satisfactory.59 While certain authors accept this proposition,60 the jurisprudence of the Nuremberg trials suggests that the post-war interpretation of crimes against humanity linked the commission of such acts to government organization or approval. In the Alstötter case, the US Military Tribunal thus pronounced that:

crimes against humanity as defined in C.C. Law 10 must be strictly construed to exclude isolated cases of atrocities or persecutions whether committed by private individuals or by a governmental authority. As we construe it, that section provides for the punishment (p.239) of crimes committed against German nationals only where there is proof of conscious participation in systematic governmentally organised or approved procedures, amounting to atrocities and offences of that kind specified in the act and committed against populations.61

Recently the ECtHR also deemed it important to analyse whether ‘the particular act committed by the applicant was to be regarded as forming part of this state policy, such as to bring it within the sphere of crimes against humanity, as this notion was to be understood in 1956’.62 Similarly, the Statute of the International Criminal Court prescribes that ‘“[a]‌ttack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack’.63

The codification of the policy requirement by the Statute of the International Criminal Court might be seen as ‘a weighty piece of evidence’ contrary to the position of the ad hoc tribunals.64 Nevertheless, even though the requirement of state plan or policy is disputed, there is widespread consensus that it is necessary that the act committed by the accused ‘objectively falls within the broader attack, and that the accused was aware of this broader context’.65 Accordingly, in order to commit the crime the acts of the accused must form part of the broader course of conduct.66

(3) Hungarian jurisprudence

The interpretative frame of reference for the application of international criminal law to the events of 1956 was set out by the Hungarian Constitutional Court. The Court pronounced that grave breaches of Geneva Convention IV and ‘prohibited acts in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties as determined by common Article 3’ are not subject to statutory limitations due to the 1968 UN Convention on the Non-Applicability of Statutory Limitations.67 The Constitutional Court opined that:

Acts defined in Article 3 common to the Geneva Conventions constitute crimes against humanity…Consequently the punishability of the acts prescribed in common Article 3 of the Geneva Conventions will not lapse, either. Provided these acts would not fall under the scope of war crimes defined in Article 1(a) of the New York Convention—either due to the (p.240) victim group or the actual conduct—they would still qualify as crimes against humanity defined in Article 1(b).68

The Court’s reasoning in this regard equates the category of crimes against humanity with violations committed in non-international armed conflict (ie war crimes) without clearly justifying this novel and unusual interpretation. The decision relies solely on the statement of the International Court of Justice in the Nicaragua case that the provisions of Common Article 3 embody ‘elementary considerations of humanity’69 and claims that ‘[i]‌n defining crimes against humanity, paragraph 47 of the Report on the Statute of the ICTY also makes reference to Common Article 3’.70 In reality, however, the International Court of Justice qualified the transgressions in the case at hand not as crimes against humanity but as violations of humanitarian law, while the Secretary-General’s Report simply affirms that crimes against humanity are prohibited ‘regardless of whether they are committed in an armed conflict, international or internal in character’ without alluding to a link between the violation of Common Article 3 and crimes against humanity.71 The Constitutional Court thus stretched the concept of crimes against humanity to the breaking point in an attempt to remedy the absence of Hungarian codification of this core crime by reading it into the category of war crimes.72 Only through this contorted approach could the Constitutional Court maintain that ‘the great majority of…crimes against humanity were punishable also under the Hungarian criminal law valid in 1956’.73

However contentious this decision might have been, it has become the template for Hungarian criminal courts. Therefore the only crucial question in the ensuing criminal proceedings that remained was the determination of the existence of a non-international armed conflict. Still, Hungarian courts were deeply divided. Although it became accepted that the events following the Soviet intervention on 4 November 1956 constituted an international armed conflict, there was disagreement between the courts on the question of whether the hostilities in the period between 23 October and 4 November reached the threshold of non-international armed conflict.

This problem seemed to have been resolved when the Supreme Court decided in 1998 that in the examined period the hostilities did not reach the level of non-international armed conflict.74 The Court ruled that the material scope of application of Additional Protocol II to the 1949 Geneva Conventions 75 should be (p.241) used to ascertain the existence of non-international armed conflict. Article 1 of Additional Protocol II prescribes a high threshold: it requires territorial control and high level of organization by the non-state armed groups, namely responsible command and the ability to carry out and sustain concerted military operations.

Yet the Review Bench of the Supreme Court overturned this decision and adopted a much broader interpretation that became the basis of all further decisions of the Hungarian judiciary in the ‘volley cases’. The Court argued that:

The community of nations sought to protect protected persons by Article 3 common to the Geneva Conventions in cases of civil war when the population of the state and the armed forces of the state are facing each other. No further criteria are specified in the text of the norm. Requiring further criteria might endanger the humanitarian character of the conventions…The Commentary to the 1949 Geneva Conventions edited by the International Committee of the Red Cross provides a tool for the interpretation of the notion of an armed conflict of non-international character (Commentaire IV. p. 23). Accordingly, de facto hostilities or the use of the armed forces of the state amount to a conflict of non-international character…

Independently of the findings of fact, it is common knowledge that, from 23 October 1956 onwards, the central power of the dictatorship made use of its armed forces against the unarmed population engaged in peaceful demonstrations and against armed revolutionary groups whose organisation was in progress. During this time, the armed forces employed significant military equipment, such as tanks and aircrafts, and their activities against the population opposed to the regime spread over the whole country. In practical terms, they waged war against the overwhelming majority of the population.76

The reasoning is noteworthy for several reasons. First of all, the Supreme Court apparently did not consider it crucial to determine the customary law definition of non-international armed conflict as it existed in 1956; it simply treated the question as if it was the outcome of a purposive interpretation of Common Article 3. Such reasoning is reminiscent of the jurisprudence of the ad hoc Tribunals, which attempted to ‘humanise humanitarian law’ by adopting innovative interpretations aiming at expanding the protective scope of humanitarian law.77 However, it is suggested that a criminal court—in line with the principle of strict construction—should adopt the interpretation of a norm that is the most favourable to the accused. In other words, the in dubio pro reo principle should prevail over the in dubio pro humanitate approach.

Even so, while the Court justifies the finding that the 1956 revolution was a non- international armed conflict (at least until 4 November 1956) by invoking the necessity of extending the humanitarian protection to the broadest possible scope, it gave a definition that on a narrow reading accepts armed hostilities as a non-international armed conflict only if they involve confrontation between the overwhelming majority of the population and the government—thus possibly excluding more isolated incidents. In effect, this definition simultaneously expands and limits the notion of non-international armed conflict spelt out in Tadić. The Hungarian Supreme (p.242) Court did not establish any level of organization for the non-state armed groups but demanded an exceptionally high requirement of intensity in the form of the participation of the predominance of the population. The use of the ICRC Commentary as an interpretative aid is also unconvincing. Even though the views of the only international organization specifically entrusted with a role in developing international humanitarian law holds a certain persuasive authority, it cannot contradict the will of the international community. Moreover, even the broad interpretation of the concept of non-international armed conflict proposed by the International Community of the Red Cross is significantly different from the Hungarian Supreme Court’s opinion. Although the Commentary sought to lower the threshold of the applicability of Common Article 3, it still maintained the requirement of a certain level of organization.78

The Constitutional Court and the Supreme Court together set the path for the criminal courts. Every criminal act before 4 November 1956 was to be regarded as a violation of Common Article 3 and hence a crime against humanity, while crimes committed after the critical date amounted to war crimes. Yet the confusion of war crimes and crimes against humanity was exacerbated when, in certain cases, the courts justified their conclusions with reference to other rules of Geneva Convention IV—particularly the grave breach regime. In the Kecskemét case, the Supreme Court held that the violation of Common Article 3 amounted to a grave breach specified in Article 147 of Geneva Convention IV and consequently a crime against humanity.79 In the Tiszakécske volley case the judgment declared that the peaceful demonstrators who fell victim to volleys fired from aeroplanes were protected persons under Article 3(1) of the Convention since they did not take direct part in hostilities, and that their intentional killing was thus a breach of Article 3(1)(a) and a crime against humanity.80 The most confusing judgment, however, was passed by the Budapest Metropolitan Court, which found that the shooting at the Kossuth Square on 25 October 1956 should be classified with reference to Articles 2, 3, 4 and 6 of Geneva Convention IV, making the criminal acts grave breaches under Articles 146 and 147 and thus crimes against humanity.81

The Hungarian judiciary was given a final chance to remedy its flawed application of international law. The ECtHR determined that the Hungarian Supreme Court’s judgment violated the principle of non-retroactivity.82 It rightly pointed out that

the [Hungarian] criminal courts focused on the question whether common Article 3 was to be applied alone or in conjunction with Protocol II. Yet this issue concerns only the definition of the categories of persons who are protected by common Article 3 and/or Protocol II (p.243) and the question whether the victim of the applicant’s shooting belonged to one of them; it has no bearing on whether the prohibited actions set out in common Article 3 are to be considered to constitute, as such, crimes against humanity.83

Consequently, the Supreme Court had to revisit the question. Yet, while the Korbély Review Bench seemingly made an effort to heed the analysis of the ECtHR by analysing whether the alleged criminal act formed part of a widespread and systematic attack against the civilian population, it concluded that the concept of armed conflict incorporates the widespread and systematic attack requirement and that the accused’s status as a captain in the Hungarian army established a direct connection to state policy.84 The Bench did not even attempt to prove the existence of widespread and systematic attack in furtherance of state policy, holding instead that a professional soldier at the time of the revolution was necessarily engaged in the commission of crimes against humanity.

It appears that such an outcome was almost unavoidable. In continental European jurisdictions, there is a natural reticence about the application of international law, and Hungarian courts are no exceptions in this respect. The judges’ diffidence can often be traced back to psychological factors. Continental legal education focuses upon domestic and black-letter law, which explains the insecurity about the determination and application of international law.85 The use of customary international law in domestic criminal proceedings is especially problematic. In the continental legal tradition, it is by no means obvious that customary norms can be used to establish criminal responsibility since the often vague content of a customary norm is difficult to reconcile with the requirements of foreseeability and strict construction of criminal law norms.86 Moreover, as a result of the jura novit curia principle, continental courts generally do not have recourse to international law experts to assist them in the determination of the applicable rules of international law. They are presumed to be aware of the content of every norm in the entire legal system—including the rules of international law. Inevitably, in such circumstances domestic courts tend to opt for a continuity of interpretation within their jurisdiction, which can result in construing international law in conformity with domestic legal norms. For instance, in the Touvier case, ‘the definition of a crime against humanity depended on that adopted by French domestic law, as it has been consistently interpreted by the Cour de Cassation’.87

(p.244) Even though re-characterization of national crimes as crimes under international law has been accepted in a number of jurisdictions,88 the court in question must still prove that the conduct has fulfilled all the criteria required by international law at the time of the commission of the act. However, in lieu of resorting to the challenging task of determining the exact scope of crimes against humanity under international law, it seems that the Hungarian courts simply deferred to Hungarian domestic law and interpreted the category of crimes against humanity as identical to the crimes defined in Chapter XI of the Hungarian Criminal Code, entitled ‘Crimes against humanity’.89 However, the Hungarian legal system has failed to codify crimes against humanity as defined under international law, and Chapter XI of the Criminal Code only proscribes war crimes and crimes against peace. This eventually resulted in substituting crimes against humanity with war crimes committed in non-international armed conflict.

Metalegal influences could have also played a role in the final outcome. Benvenisti argues that ‘the method of inquiry used by a national court in examining the existence of a custom is likely to reflect its national affiliation’.90 In the present case, the casual treatment of international law might suggest that the courts treated the determination of guilt of the accused as a retrospective affirmation of the legitimacy of the 1956 revolution. Tellingly, the ECtHR was recently criticized by a Hungarian author for not taking judicial notice of the fact that the communist regime used widespread and systematic violence against the people revolting against its oppressors. In this interpretation, the Korbély decision amounts to disputing the very existence of the revolution.91

(III) Conclusion—Back to Square One?

In Hungary, the peaceful, negotiated transition from communism to democracy resulted in legal and constitutional continuity with the totalitarian predecessor,92 preventing a real rupture with the past.93 The Constitutional Court emphasized this continuity by pronouncing that:

The politically revolutionary changes adopted by the Constitution and the fundamental laws were all enacted in a procedurally impeccable manner, in full compliance with the (p.245) old legal system’s regulations of the power to legislate, thereby gaining their binding force. The old law retained its validity. With respect to its validity, there is no distinction between ‘pre-Constitution’ and ‘post-Constitution’ law.94

The Constitutional Court’s decision was based on an interpretation of the concept of rule of law as security. However, Kis persuasively argues that the Constitutional Court’s jurisprudence was hitherto characterized by a moral reading of the principle of constitutionality and the sudden turn to a formal reading of the principle of legality was by no means inevitable.95 This change of heart was due to the Court’s belief in the necessity of reaffirming that the legal order of the communist era was valid.96 Kok suggests that this approach was ‘caused by the fact that in Hungary, the repression, apart from the period from 1956 to 1963, was considerably less severe than that in Czechoslovakia and former Eastern Germany’.97 Yet such formal reading of the rule of law principle inevitably led to repercussions. In certain segments of society it resulted in ‘widespread questioning of the whole existing establishment, including the rule of law and the judicial review of majoritarian decision-making’.98

In these circumstances, international criminal law was used to bypass the statute of limitations. However, international criminal law proved a poor substitute for political justice. As with the other Central and Eastern European countries, prosecutions under international law have produced very few tangible results.99 The dearth of convictions spurred the right-wing government in 2010 to return to ‘ordinary criminal law’ in dealing with the past. An amendment of the Criminal Code proscribed ‘denying, questioning or trivializing genocide and other crimes against humanity committed by national socialist or communist regimes’.100

In similar vein, the preamble to the newly adopted Fundamental Law of Hungary (in effect from 1 January 2012)—the so-called ‘National Avowal’—raised the prospect of reopening the prosecution of communist crimes by denying legal continuity with the previous regime. The Fundamental Law pronounces that:

We deny the any statute of limitations for the inhuman crimes committed against the Hungarian nation and its citizens under the national socialist and communist dictatorships.

We do not recognise the communist constitution of 1949, since it was the basis for tyrannical rule; therefore we proclaim it to be invalid…

We date the restoration of our country’s self-determination, lost on the nineteenth day of March 1944, from the second day of May 1990, when the first freely elected body of (p.246) popular representation was formed. We shall consider this date to be the beginning of our country’s new democracy and constitutional order.101

Coincidentally, at the time of the drafting of the Fundamental Law, the Office of the General Prosecutor declined to initiate proceedings against the last living communist leader, Béla Biszku, who had played a key role as a Minister of Interior between 1957 and 1961 in the reprisals against the participants of the 1956 revolution. The Prosecution heeded the settled jurisprudence of the Supreme Court and restricted its analysis to the applicability of Geneva Convention IV, concluding that the acts alleged to have been committed by Biszku did not amount to grave breaches of the Convention and therefore were subject to the statute of limitations.102 At the same time, however, Biszku was charged as the first person to violate the new amendment of the Criminal Code for publicly asserting that the 1956 revolution was a counterrevolution and that the sentences against revolutionaries, including about 235 death sentences, were justified.

Yet the Hungarian Parliament attempted one final time to reopen the prosecution of international crimes committed in connection to the 1956 revolution. With the avowed intention of recommencing the Biszku case, a new act translated the definition of crimes against humanity of the Nuremberg Statute into Hungarian and explicitly authorized the Hungarian courts to apply them.103 However, far from solving the predicament of the Hungarian judiciary, the new law actually compounded it, since it did not define the contextual elements of crimes against humanity and also criminalized the violation of Common Article 3 of the Geneva Conventions, in contravention to the nullum crimen principle.104

Worse still, the law introduced the category of ‘communist crimes’ and declared that the commission or aiding and abetting of serious crimes such as voluntary manslaughter, assault, torture, unlawful detention and coercive interrogation is not subject to prescription when committed on behalf, with the consent of, or in the interest of the party state. In the guise of enforcing international criminal law, this provision effectively replicates the regulation that was found unconstitutional by the Hungarian Constitutional Court in the first half of the 1990s.

In conclusion, Hungary seems to have abandoned its experiment with international criminal justice in a domestic setting and turned once again to a political solution. (p.247) This choice, however, has inevitably divided the people along party lines and effectively prevented any real prospects of finally facing the legacy of the communist past. If there is any moral in the story—apart from the necessity of reforming the legal education of judges—it is that international criminal law cannot in itself substitute for the ultimately political project of confronting past wrongs and trying to achieve national reconciliation. As long as the society is not ready to come to terms with its past, the application of international law will only serve as a fig-leaf to conceal deep-rooted enmities.

Notes:

(1) This chapter builds on and develops concepts set out in Tamás Hoffmann, ‘Individual Criminal Responsibility for Crimes Committed in Non-International Armed Conflicts—The Hungarian Jurisprudence on the 1956 Volley Cases’, in Stefano Manacorda, Adán Nieto (eds), Criminal Law Between War and Peace: Justice and Cooperation in Criminal Matters in International Military Interventions (Castilla-La Mancha: Cuenca, 2009), 735.

(2) Latvinia Stan, ‘Hungary’, in Latvinia Stan (ed), Transitional Justice in Eastern Europe and the Former Soviet Union (London: Routledge, 2009) 102, 104–7.

(3) For a more detailed background see Csaba Békés, Malcolm Byrne, János M. Rainer (eds), The 1956 Hungarian Revolution: A History in Documents (Budapest and New York, NY: CEU Press, 2002).

(4) Renáta Uitz, ‘Instead of Success: Hope for Truth—At Best’, in Peter Jambrek (ed), Crimes Committed by Totalitarian Regimes, (Slovenian Presidency of the Council of Europe, 2008) 286, 287. However, it must be pointed out that the burial of János Kádár, which took place just a few weeks after the Imre Nagy reburial, also attracted a huge crowd. Presumably many—if not most—people attended both events.

(5) See Csongor Kuti, Post-Communist Restitution and the Rule of Law (Budapest and New York, NY: CEU Press, 2009).

(6) Mark S. Ellis, ‘Purging the Past: The Current State of Lustration Laws in the Former Communist Bloc’,Law and Contemporary Problems, 59 (1996), 183–5.

(7) Other post-communist countries faced similar dilemmas. See for example Adrienne M. Quill, ‘To Prosecute or Not to Prosecute: Problems Encountered in the Prosecution of Former Communist Officials in Germany, Czechoslovakia and the Czech Republic’, Indiana International and Comparative Law Review, 7 (1996), 165.

(8) For the background of the historical justice debate and the moral implications involved see János Kis, ‘Töprengés az Időről—Sortűzperek Előtt’ [Meditation on Time—Before Firing Squad Trials], Kritika, 5 (1994), 5.

(9) Krisztina Morvai, ‘Retroactive Justice Based on International Law: A Recent Decision by the Hungarian Constitutional Court’, East European Constitutional Review, 3 (1994), 32.

(10) Morvai, above n 9, 33.

(11) In 1952, the Ministry of Justice published the Official Compilation of Penal Regulations in Force (Hatályos Büntetőjogi Szabályok Hivatalos Összeállítása), which compiled the existing laws concerning criminal acts. While it was not a statute, it was still utilized as such in the absence of a codified Criminal Code proscribing criminal offences.

(12) 1961. évi V. Törvény a Magyar Népköztársaság Büntető Törvénykönyvéről [Law No V of 1961 on the Criminal Code of the People’s Republic of Hungary] (Hungary) and 1978. évi IV. Törvény a Büntető Törvénykönyvről [Law No IV of 1978 on the Criminal Code] (Hungary) (Criminal Code).

(13) Ilias Bantekas, International Criminal Law (Oxford: Hart, 4th edn, 2011), 28.

(14) A Magyar Köztársaság Alkotmánybírósága [Constitutional Court of the Republic of Hungary], No 11/1992, 5 March 1992 (Decision 11/1992) [Hungarian Constitutional Court] (Hungary) (translation), <http://www.mkab.hu> (accessed 28 February 2013).

(15) Duc V. Trang, ‘Beyond the Historical Justice Debate: the Incorporation of International Law and the Impact on Constitutional Structures and Rights in Hungary’, Vanderbilt Journal of Transnational Law, 28 (1995), 1.

(16) 1949. évi XX. törvény a Magyar Köztársaság Alkotmányáról [Law No XX of 1949 on The Constitution of the Republic of Hungary] (Hungary) Article 7(1) [Hungarian Constitutional Court] (Hungary) (translation), <http://www.mkab.hu> (accessed 28 February 2013).

(17) A Magyar Köztársaság Alkotmánybírósága [Constitutional Court of the Republic of Hungary] (Hungary), No 53/1993, 13 October 1993. (Decision No 53/1993) [International Committee of the Red Cross] (translation), <http://www.icrc.org> (accessed 28 February 2013).

(18) See more in detail Pál Sonnevend, ‘Verjährung und Völkerrechtliche Verbrechen in der Rechtsprechung des Ungarischen Verfassungsgerichts’ [Statutory Limitations and the Prosecution of Violations of International Humanitarian Law in the Jurisprudence of the Hungarian Constitutional Court], Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, 57 (1997), 195.

(19) Decision No 53/1993, section V.

(20) Decision No 53/1993, section V.

(21) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, opened for signature 26 November 1968, 754 UNTS 73 (entered into force 11 November 1970).

(22) Decision No 53/1993, section V(2).

(23) Bragyova pointed out that even following the Court’s logic, the Constitution could only ‘transform’ customary international law into Hungarian domestic law from the date of the adoption of this constitutional norm. Article 7(1) was only adopted in 1989, before that date no similar constitutional provision existed regulating the relationship between international law and Hungarian law. Consequently, this constitutional provision cannot have retroactive effect. András Bragyova, ‘Igazságtétel és Nemzetközi Jog’ [Historical Justice and International Law], Állam- és Jogtudomány, 34 (1993), 233–9. Significantly, Article 4 of the 1968 Convention requires States Parties to adopt legislative measures to prevent the application of statute of limitations ‘in accordance with their respective constitutional processes.’ As a result, ‘neither practice nor opinio juris prohibits states from applying constitutional or statutory implementations of principles of legality stronger than those applying in international law’: Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009), 398.

(24) Nobody seriously suggested that the events should be qualified as genocide.

(25) 1993. évi XC. Törvény az 1956. Októberi Forradalom és Szabadságharc Során Elkövetett Egyes Bűncselekményekkel Kapcsolatos Eljárásról [Law No XC. of 1993 on the Procedure Applicable for Certain Criminal Offences Committed in the Course of the Revolution and War of Independence of 1956] (Hungary) Article 1, author’s translation.

(26) A Magyar Köztársaság Alkotmánybírósága [Constitutional Court of the Republic of Hungary], No 36/1996, 4 September 1996. Section II. (1). (Decision No 36/1996) Péter Kovács translation, ‘Correspondents’ Reports—Hungary’, Yearbook of International Humanitarian Law, 1 (1998), 453.

(27) Kovács, 454.

(28) For more details see Hoffmann, above n 1, 735–53.

(29) As it is demonstrated below, the Hungarian courts did not fully comply with the principle of intertemporality, which provides that ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at time when a dispute in regard to it arises or fails to be settled’: Island of Palmas (United States of America v Netherlands) (Decision) (Permanent Court of Arbitration) (1928) 2 RIAA 829, 845.

(30) See Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 47–62; Gerhard Werle, Principles of International Criminal Law (TMC Asser, 2009, 2nd edn), 344–54.

(31) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Article 50; Geneva Convention for the Amelioration of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) Article 51; Geneva Convention relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) Article 130; Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Article 147.

(32) Hersch Lauterpacht, Recognition in International Law (Cambridge: Cambridge University Press, 1947), 172–85.

(33) For a thorough perusal of the travaux préparatoires see Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (Cambridge: CUP, 2010), 27–49.

(34) Cullen, above n 33, 37.

(35) In fact, many experts argued that the threshold of applicability of Common Article 3 was actually high. In 1993, a UN Commission of Experts for instance stated that ‘The [Geneva] Conventions were designed to cover inter-State wars and large-scale civil wars’: See Report of the Secretary-General pursuant to Article 5 of Security Council Resolution 837 (1993), 3 May 1993, UN Doc. S/26351 [9]‌.

(36) Dietrich Schindler, ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Additional Protocols’, Recueil des Courts, 163 (1979), 147. Draper suggests that an Article 3 conflict takes place whenever ‘sustained troop action is undertaken against rebels, even though the rebel organisation and control of any area is minimal, and the situation is such that the police are not able to enforce the criminal law in a particular area by reason of rebel action’. Gerald I.A.D. Draper, ‘The Geneva Conventions of 1949’, Recueil des Cours, 114 (1965), 89–90.

(37) Draper, above n 36, 90.

(38) Sylvie Junod, ‘Additional Protocol II: History and Scope (1982–1983)’, The American University Law Review, 33 (1983), 32.

(39) Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-94-1-AR72, 2 October 1995) [70] (Tadić Interlocutory Appeals).

(40) See, inter alia, Prosecutor v Delalić et al (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-96-21-T, 16 November 1998) [183]; Prosecutor v Kordić and Čerkez (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-95-14/2-T, 26 February 2001) (Kordić Judgment) [24]; Prosecutor v Kunarac et al (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-96-23&IT-96-23/1-A, 12 June 2002) (Kunarac Appeal) [56]; Prosecutor v Milutinović et al (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-05-87-T, 26 February 2009) [125]; Prosecutor v Gotovina et al (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-06-90-T, 15 April 2011) [1674].

(41) Prosecutor v Akayesu (Judgment) (International Criminal Tribunal for Rwanda, Trial Chamber I, Case No ICTR-96-4-T, 2 September 1998) [619]; Prosecutor v Rutaganda, (Judgment) (International Criminal Tribunal for Rwanda, Trial Chamber I, Case No ICTR-96-3-T, 6 December 1999) [92].

(42) Prosecutor v Lubanga (Decision on the Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06, 29 January 2007) [233].

(43) Prosecutor v Eav (Judgment) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case No. 001/18-07-2007/ECCC/TC, 26 July 2010) (Eav Trial) [412].

(44) UK Ministry of Defence, Manual of the Law of Armed Conflict (Oxford: OUP, 2004), 29; Yoram Dinstein, Charles H.B. Garraway and Michael N. Schmitt, The Manual on the Law of Non-International Armed Conflict with Commentary (San Remo, 2006), 2.

(45) International Commission of Inquiry on Darfur, Report to the United Nations Secretary-General pursuant to Security Council Resolution 1564 of 18 September 2004, UN Doc. S/2005/60 (25 January 2005) [74]; Commission of Inquiry on Lebanon, Report Pursuant to Human Rights Council Resolution S-2/1, UN Doc. A/HRC/3/2 (23 November 2006) [51]; International Commission of Inquiry, Report on Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya, A/HRC/17/44 (1 June 2011) [63].

(46) Article 8(2)(f) provides that ‘[p]‌aragraph 2 (e) applies to armed conflicts not of an international character…that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.’ Rome Statute of the International Criminal Court, opened for signature 17 July 1988, 2187 UNTS 90 (entered into force 1 July 2002) Article 8(2)(f) (ICC Statute).

(47) For a review of contemporary jurisprudence see Tamás Hoffmann, ‘The Gentle Humaniser of Humanitarian Law—Antonio Cassese and the Creation of the Customary Law of Non-international Armed Conflict’, in Carsten Stahn and Larissa van den Herik (eds), Future Perspectives on International Criminal Justice (The Hague: TMC Asser, 2010), 58, 64 fn 59–60.

(48) Tadić Interlocutory Appeals, [128–36].

(49) Hoffmann, above n 47, 63–80.

(50) Egon Schwelb, ‘Crimes against Humanity’, British Yearbook of International Law, 23 (1946), 181.

(51) See especially Cherif M. Bassiouni, Crimes against Humanity—Historical Evolution and Contemporary Application (Cambridge: CUP, 2011), 136–44.

(52) Steven R. Ratner, Jason S. Abrams and James L. Bischoff, Accountability for Human Rights Atrocities in International Law—Beyond the Nuremberg Legacy (Oxford: OUP, 3rd edn, 2009), 59.

(53) Korbély v Hungary (European Court of Human Rights, Grand Chamber, Application No 9174/02, 19 September 2008) (Korbély Decision) [82]. It must be pointed out, however, that even this uncertain statement was merely based on the unadopted Draft Code of Offences against the Peace and Security of Mankind of the International Law Commission and the scholarship of two authors. Moreover, one of the cited authors, Egon Schwelb, did not actually make the claim attributed to him by the Court. See Schwelb, ‘Crimes against Humanity’, above n 50, 211.

(54) Generally, most authors agree that the independence of crimes against humanity from international armed conflict was the outcome of a gradual evolution. Antonio Cassese, International Criminal Law (Oxford: OUP, 2003), 73. Based on a thorough perusal of the relevant international legal instruments, Ford argues that the tipping point probably occurred between 1968 and 1984: Stuart Ford, ‘Crimes Against Humanity at the Extraordinary Chambers in the Courts of Cambodia: Is a Connection with Armed Conflict Required?’, UCLA Pacific Basin Law Journal, 24 (2007), 182–3. Ratner, Abrams and Bischoff suggest that this transformation was completed by 1975 but admit that ‘the issue is certainly open to debate’: Ratner, Abrams and Bischoff, above n 52, 323.

(55) Robert Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge: CUP, 2nd edn, 2010), 237.

(56) Cassese points out that ‘Crimes against humanity (CAH) have always been conceived, from the beginning, as crimes on an enormous scale. While early codifications of CAH did not explicitly contain a requirement that the attack on the civilian population be on a large scale, it was understood that this law was intended to address massive attacks’: Antonio Cassese et al, International Criminal Law—Cases and Commentary (Oxford: OUP, 2011), 180.

(57) Prosecutor v Blaškić (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-94-15-T, 3 March 2000) [206]; Kordić Judgment (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-95-14/2-T, 26 February 2001) [176].

(58) In the Kunarac case the Appeals Chamber pronounced that ‘[t]‌here was nothing in…customary international law at the time of the alleged attacks which required proof of the existence of a plan or policy to commit these crimes’: Kunarac Appeal (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-96-23&IT-96-23/1-A, 12 June 2002) [98]. Repeated inter alia in Prosecutor v Krstić (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-98-33-A, 19 April 2004) [225]; Prosecutor v Semanza (Judgment) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No ICTR-97-20-A, 20 May 2005) [269]. This finding was recently quoted with approval by the Extraordinary Chambers in the Courts of Cambodia. See Eav Trial (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case No. 001/18-07-2007/ECCC/TC, 26 July 2010) [412].

(59) William Schabas, ‘State Policy as an Element of International Crimes’, Journal of Criminal Law & Criminology, 98 (2008), 981.

(60) Werle, above n 30, 299.

(61) USA v Alstötter et al. (Judgment) 14 ILR 274, 320 (Military Tribunal III, 3–4 December 1947).

(62) Korbély Decision (European Court of Human Rights, Grand Chamber, Application No 9174/02, 19 September 2008) [84].

(63) ICC Statute, Article 7(2)(a).

(64) Claus Kress, ‘On the Outer Limits of Crimes against Humanity: The Concept of Organisation within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’, Leiden Journal of International Law, 23 (2010), 870.

(65) Prosecutor v Tadić (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-94-1-A, 15 July 1999) [271].

(66) Cryer et al, above n 55, 237.

(67) Decision No 53/1993, section II.

(68) Decision No 53/1993, section IV(4)(b).

(69) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 14, 114 [218].

(70) Decision No 53/1993, section IV(4)(b).

(71) See Boutros Boutros-Ghali, Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (3 May 1993) [47].

(72) The Hungarian Criminal Code does not explicitly criminalize violations of humanitarian law committed in a non-international armed conflict but the provisions on war crimes have been interpreted since the 1990s to also include situations of internal conflicts.

(73) Decision No 36/1996, section II(2).

(74) Legfelsőbb Bíróság [Hungarian Supreme Court] No. 1344/1998/3, 5 November 1998.

(75) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978).

(76) Legfelsőbb Bíróság [Hungarian Supreme Court] No X. 713/1999/3, 28 June 1999.

(77) Theodor Meron, ‘The Humanisation of Humanitarian Law’, American Journal of International Law, 94 (2000), 239.

(78) Jean Pictet (ed), Commentary—IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: International Committee of the Red Cross, 1958), 35–6.

(79) Legfelsőbb Bíróság [Hungarian Supreme Court] Case No I.1.534/1999/5, 13 September 2000.

(80) Legfelsőbb Bíróság [Hungarian Supreme Court] Case No I.1.535/1999/5, 20 September 2000.

(81) Fővárosi Bíróság [Budapest Metropolitan Court] Case No 13.B.563/2001/18, 2 October 2002.

(82) Korbély Decision (European Court of Human Rights, Grand Chamber, Application No 9174/02, 19 September 2008), [95].

(83) Korbély Decision, above n 82, [80]. For an analysis of this question see Károly Bárd, ‘The Difficulties of Writing the Past Through Law—Historical Trials Revisited at the European Court of Human Rights’, International Review of Penal Law, 81 (2010), 42.

(84) Legfelsőbb Bíróság [Hungarian Supreme Court] Case No X. 1.055/2008/5, 9 February 2009.

(85) Jan Wouters, ‘Customary International Law Before National Courts: Some Reflections From a Continental European Perspective’, Non-State Actors and International Law, 4 (2004), 31–2.

(86) Mark Klamberg, ‘International Criminal Law in Swedish Courts: The Principle of Legality in the Arklöv Case’, International Criminal Law Review, 9 (2009), 405.

(87) Simonetta Stirling-Zanda, ‘The Determination of Customary International Law in European Courts (France, Germany, Italy, The Netherlands, Spain, Switzerland)’, Non-State Actors and International Law, 4 (2004), 9.

(88) Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge: CUP, 2009), 276–7.

(89) In fact, the Hungarian term ‘emberiség elleni bűncselekmény’ can be translated either as crimes against humanity or crimes against mankind.

(90) Eyal Benvenisti, ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts’, European Journal of International Law, 4 (1993), 165.

(91) Péter Hack, ‘A Korbély-ügy—A Visszaható Hatály Tilalma és az Emberiség Elleni Bűncselekmények’ [The Korbély Case—The Prohibition of Retroactivity and Crimes against Humanity], Jogesetek Magyarázata, 1 (2010), 78–9.

(92) Uitz, above n 4, 289. The first democratically elected prime minister, József Antall once memorably replied to criticisms that the process of ‘decommunization’ was not sufficiently thorough that: ‘You should have made a revolution!’

(93) Rosenfeld pointed out that in case of a violent rupture with the past ‘the demands of political justice might be reconciled with those of constitutionalism by confining the operation of political justice to the revolutionary period separating the ancient regime from the new constitutional order’: Michael Rosenfeld, ‘Dilemmas of Justice’, East European Constitutional Law Review, 1 (1992), 20.

(94) Decision 11/1992, section V.

(95) János Kis, ‘Alkotmánybíróság a mérlegen (III. rész)’ [Constitutional Court on the Scales (Part III)], Fundamentum, 4 (2000), 35.

(96) Ruti G. Teitel, Transitional Justice (Oxford: OUP, 2000), 15.

(97) Ruth Kok, Statutory Limitations in International Criminal Law (Boston, MA and Leiden: Martinus Nijhoff, 2007), 210.

(98) Morvai, above n 9, 33.

(99) Cherif M. Bassiouni, International Criminal Law, Vol 3 (Boston, MA and Leiden: Brill Academic Publisher, 2008), 5.

(100) Criminal Code, Article 296(c), author’s translation.

(101) Magyarország Alaptörvénye [The Fundamental Law of Hungary], http://www.kormany.hu/download/4/c3/30000/THE%20FUNDAMENTAL%20LAW%20OF%20HUNGARY.pdf (accessed 15 April 2013).

(102) Legfőbb Ügyészség [Office of the General Prosecutor] No. NF. 10718/2010/5-I., 17 December 2010.

(103) 2011. évi CCX. Törvény az Emberiesség Elleni Bûncselekmények Büntetendõségérõl és Elévülésének Kizárásáról, valamint a Kommunista Diktatúrában Elkövetett Egyes Bûncselekmények Üldözésérõl [Law No CCX of 2011 on the Punishability and the Exclusion of the Statute of Limitations of Crimes Against Humanity and on the Prosecution of Certain Crimes Committed During the Communist Dictatorship] (Hungary).

(104) See more in detail Tamás Hoffmann (2011), ‘A Nemzetközi Szokásjog Szerepe a Magyar Büntetőbíróságok Joggyakorlatának Tükrében’ [The Role of International Customary Law in the Jurisprudence of the Hungarian Criminal Courts], Jogelméleti Szemle <http://jesz.ajk.elte.hu/hoffmann48.html> (accessed 28 February 2013).