Caught between International Law and National Constitution: The Legal Reckoning with Foreign War Criminals in Norway after 1945.

Abstract

This article examines the preparation of the much-debated War Criminals Decree (WCD) of 4 May 1945 by the Norwegian exile government in London and the courts’ later use of the law as the legal foundation for the reckoning with German war criminals. More specifically, we show how two central clauses in the Norwegian Constitution of 1814 were challenged by this decree, which combined national and international law in a hitherto unknown manner, and its use: The principle of legality (§ 96) and the prohibition of retroactivity (§ 97). Our article, based on unpublished documents from the Justice Department’s (JD) archives, argues that the government’s view 1942–1945 changed from defending these clauses to undermining them, by lowering the judicial bar for the passing of death sentences. It is, however, also argued that the courts, even if they did not challenge the WCD legally, nevertheless through their conscientious treatment of war crimes cases 1945–1949 drastically reduced the law’s intended harshening effect on sentences and thus also the significance of its controversial constitutional aspects.