This Article investigates how the European Court of Human Rights becomes competent to make decisions in cases concerning (or taking roots in) “historical situations” preceding the ratiﬁ cation of the European Convention by a given Member State or even the enactment of the Convention. “Historical situations” refer to events that occurred in the period of Second World War or shortly thereafter. In all such cases, the preliminary question arises whether the Court is competent temporally (ratione temporis) to deal with the application. This group of cases concerned usually allegations touching upon the right to life and the right to property. The Court had to decide if the allegation in question related to a temporally closed event (making the Court not competent) or rather to a continuous violation (where the Court could adjudicate). A speciﬁ c set of legal questions arose vis-à-vis the right to life, ﬁ rst of all that of the autonomy of the procedural obligation to conduct an eﬃ cient investigation. The Strasbourg case law did not provide a clear answer. However, following two crucial judgements rendered by the Grand Chamber, the Court has established an interesting legal framework. Article analyses also two other situations having a historical dimension: bringing to justice those accused of war crimes or other crimes under international law (in light of the alleged conﬂ ict with the principle of nullum crimes sine lege) and pursuing authors of pro-Nazi statements or speech denying the reality of Nazi atrocities.
Article 51 of the UN Charter, in aﬃ rming the inherent right of self-defence of each UN Member State “against which an armed attack has occurred”, clearly indicates that the concept of armed attack plays a key role in delineating the right of self-defence. The concept in question was not, however, deﬁ ned in the UN Charter, and no universally acceptable deﬁ nition has yet emerged either in practice or in doctrine. One of the fundamental questions to be addressed in this context is who must engage in armed activity for it to qualify as an armed attack. This question is of particular relevance today because of the threat of international terrorism and the expansion of the concept of armed attack through the inclusion of an act of terrorism. The article discusses in some detail the emerging legal framework for attribution of actions undertaken by non-state actors to states.
Historic title is just one of many legal instruments which may be raised by parties and used by judges to decide a territorial dispute. If a claim of historic title in given circumstances may be deemed to have been extinguished as a result of its relative weakness, the elements advanced in support of its construction, for example uti possidetis or eﬀ ective occupation, may be used to support other types of legal claims. Taking into account its construction and its systemic conditional criteria, historic title gains maximum eﬀ ectiveness when conditions exist which would support a ﬁ nding of its incremental consolidation. This involves a multi-dimensional interpretation in reliance on particular elements which, taken together, create a complicated factual state in a particular territorial dispute. On the other hand, consolidation of historic title is not an argument which can be used by the indigenous native inhabitants of a territory, since their arguments are not based on claims of sovereignty.
In its Judgment of 17 February 2016, the Polish Supreme Court adjudicated the case of Polish soldiers accused of crimes committed in the village of Nangar Khel in Afghanistan in 2007. Ultimately, the Supreme Court found that Polish soldiers were guilty of, inter alia, breach of Article 318 of the Polish Penal Code, which stipulates that a soldier commits a crime even when executing an order if he is aware of this crime. However, the part of the judgment devoted to the problem of unlawful orders is very limited and almost completely lacks references to international law. The Supreme Court could have referred to a number of international legal acts, starting from the beginning of 20th century and up to the more recent regulations, including those in the Rome Statute. Moreover, the Supreme Court did not use international case law. As a result, the argumentation of the Supreme Court should be assessed as limited and unconvincing.