Natural law as a precursor and upgrade of positive law was established in ancient Greek philosophy as the law of God and nature in order to protect the highest innate right of every living being, that is, the right to life from which all further rights such as freedom and dignity are derived.
The highest reference of natural law is therefore moral justice. In Book 5 of Nicomachean Ethics, Aristotle combined natural law with natural rights. According to the founding fathers of the American Constitution, however, natural rights are a right to life, liberty, property, and the pursuit of happiness created by God and not by any government.
The principle of substantive justice as a foundation
The principle of substantive justice as the foundation of law and its meaning gives law legitimacy. If a rule of law does not contain substantive justice, which means that it is contrary to universal human values and human nature or natural law, embodied by innate rights to life, liberty, property and the attainment of happiness and security, then it must be denied the nature of law and be recognized as wrong. Its “lack of law” is filled with natural law. The distinction between good and evil is implemented, if necessary, in the sanctioning of evil as well as in derived justice. Namely, natural law means the highest level of justice and general rules or principles applicable among civilized nations.
The General Civil Code (ODZ) of 1811, which is still used as a secondary source of law in Slovenia, gives a judge in paragraph 7 the right to judge under natural law in the case of legal gaps. Paragraph 16 of the ODZ, however, states: “Every human being has innate rights already visible to reason and is considered a person. Slavery or servitude and the exercise of their powers are not permitted in those lands.”
After World War II, Gustav Radbruch, a prominent German lawyer, compiled in response to Nazi crimes so called Radbruch’s formula containing the concept of meta-justice rooted in natural justice. The formula has been used by the constitutional courts in many post-communist countries in cases of human rights violations committed by former communist officials. In The Third Minute in Five Minutes of Philosophy (1973, pp. 667−669), Radbruch writes:
“The law is the will to justice. But justice means: to judge regardless of the person, to measure everything by the same criterion. When the killing of political opponents is honored, when the killing of people of another race is commanded, but the same act against one’s own sympathizers is punished with the most horrible and degrading punishments, then this is neither justice nor law. When laws consciously deny the will to justice, when, for example, they arbitrarily guarantee or deny human rights to people, then these laws have no force, then the people are not obliged to obey them, then lawyers must also gather the courage to deny them the nature of law.” Although Radbruch advocated a strong principle of non-retroactivity, he moved away from legal positivism by invoking higher justice.
Also at the post-war trial of Nazi criminals in Nuremberg, two fundamental legal principles collided, the principle of legality and the natural law principle of substantive justice. The principle that no one should be punished without the legal prohibition in force at the time of the commission of the crime and the principle of justice, which requires that crimes must be prosecuted and punished. The principle of justice prevailed, which means that the perpetrators of the worst crimes against humanity can be prosecuted on a legal basis adopted later, because it is the highest level of justice that corrects the law when necessary. Namely, many of the atrocities of Nazism were legally supported by Nazi law, which confirms the thesis that law and morality are not necessarily the same.
A perverted interpretation of natural law
In the Slovene political space, a perverted interpretation of natural law has “appeared” for the political and ideological needs of justifying crimes, which, due to their terrible nature and weight, never become obsolete. The statements of MEP Milan Brglez reflect not only a lack of understanding of the law, but above all the moral perversion of the spiritual, political and legal heirs of communist criminals and they grossly deny the constitutionally proclaimed Slovenia as a democratic and legal state. Denying European postulates of law and morals in a country and a nation that has not yet suffered the effects of the civil war could also legally mean a public incitement to intolerance. It certainly does not help to raise citizens’ low confidence in the rule of law.
The post-war extrajudicial killings were genocide
Post-war extrajudicial killings on Slovenian territory are today indisputably legally defined as genocide under domestic criminal law on the basis of Article 100 in conjunction with indent 8 of Article 101 of the Criminal Code of the Republic of Slovenia (KZ-1).
The victims were murdered because of an actual or attributed different worldview and political affiliation and a class status that was inconsistent with the formation of a future communist social order with a “classless society”.
Although the victims at the time of the killings had the legal status of prisoners of war, the wounded and civilians under international law, which recognized their right to life and human dignity, this was not taken into account. A special group of protected persons are the wounded, the sick and the disabled. These groups of people were also extrajudicially murdered after the war. The Geneva Convention relative to the Treatment of Prisoners of War of 1929 protects prisoners of war in the moment of disarmament, surrender and inability to fight in a way that they must be treated humanely and it is forbidden to execute, injure, insult, and expose them to public curiosity, or to declare that no one will be spared. In addition to the provisions of the Geneva Convention, all states are bound (with regard to matters not governed by the Convention) to the general legal principles of civilized nations (the so-called Martens Clause).
Since Ozna in the camps at Teharje, in Št. Vid above Ljubljana and in Škofja Loka interrogated and then classified home guards into one of three groups (A, B and C), some are trying to present this as a court proceeding and thus prove that there were in fact no extrajudicial killings at all. Such a position was mainly represented by Mitja Ribičič at a hearing before the Commission of Inquiry of the National Assembly of the Republic of Slovenia on the investigation of post-war mass murders, legally dubious trials and other such irregularities (the so called Pučnik Commission) on June 4th, 1996.
A clear position of the Constitutional Court of the Republic of Slovenia
The fact is that the possible individual criminal responsibility of the victims has not been established in court proceedings. Their classification into groups A (home guards born in 1927 or later; as they were mostly minors, they were not punished by execution), B (Home Guard members who joined the Home Guard after January 15th, 1945, regardless of age; most were murdered) and C (other home guards; the penalty was execution), there are no sources on the possible classification of civilians, was merely a categorization according to age and time of entry into Home Guard units, led by Ozna, who never had the status of a court, did not constitute an individual determination of criminal responsibility.
This was also confirmed by the Constitutional Court of the Republic of Slovenia (US Decision, ref. No. Up-133/96, June 15th, 1998, record sentence), when on June 15, 1998 it said: “The security intelligence service, which carried out so-called liquidations of persons during the Second World War, was not a court, so its decisions to execute a person are an expression of arbitrariness and do not have the legal nature of a criminal judgment,” which by legal analogy applies to Ozna.
About the author:
Boštjan Kolarič received his doctorate from the Faculty of State and European Studies in 2018 with the dissertation “Legal treatment of crimes against humanity and other systematic human rights violations after the end of the Second World War on Slovenian territory”.