This article traces the development of the foreseeability test in the context of the nullum crimen principle. While the European Court of Human Rights has introduced the ‘accessibility and foreseeability’ criteria long ago in the Sunday Times case, the Court has only recently started to apply this standard with respect to international crimes. In the Kononov case, judges of the European Court of Human Rights exhibited strongly divergent opinions on the question whether the punishment of alleged war crimes that had been committed in 1944 violated the nullum crimen principle. According to this author, the dissension of the judges demonstrates the lack of objective foreseeability, which should have served as a starting point for the assessment of the subjective foreseeability and a – potentially exculpating – mistake of law of the perpetrator. The Court should therefore have concluded that the nullum crimen principle had been violated.
Mariniellosupra note 11 pp. 234–237. He mentions in particular Korbely v. Hungary 19 September 2008 ECtHR no. 9174/02; Kononov v. Latvia 24 July 2007 ECtHR no. 36376/04 9 ehrc Vol. 11 129 with note by H. Van der Wilt; Kononov v. Latvia 17 May 2010 ECtHR no. 36376/04 11 ehrc Vol. 8 80 with note by H. Van der Wilt.