It is well known that the international law prohibits both the genocide and infringement against the humanity. The terms of the “genocide” and the “human right” are comprehensively defined in international agreements.

Civil associations of Circassian Nation use said terms when referring results of Circassian-Russian War. However it is responded through putting forward that when committing the Circassian Genocide during the 18th and 19th centuries by the Russian Empire,  the Universal Declaration of Human Rights were not adopted and the European Convention on Human Rights (ECHR) were not signed yet, thus it means that holding of non-retroactivity principle, as an universal principle of law, brings about distortions.

At the outset of this article, an introductory examining is needed for the prohibition of retroactive effect in law. Non-retroactive principle is actually is directed to legal certainty, since individuals should know their legal position before the commencing of their acts, otherwise they face unforeseen legal results. This principle is vital in criminal law since one can be imposed a sentence by enacted legislation afterwards for the acts those are not deemed as a crime when they are fulfilled. Said principle is denominated as "no crime, no punishment without a previous penal law” (nullum crimen nulla poena sine lege). Otherwise legal mechanism becomes a discretionary instrument to the governments in use of suppressing the opposition at least.

Identical principle is held in tax law as  “no taxation without legislation” (nullun tributum sine legis). The same logic is posed to behind of the principle.

Returning to the legal topics relevant to the Circassian Genocide, we come up against that the international humanitarian agreements were signed afterwards Circassian Genocide had been committed. We herewith seek to find the answers to the question that as the humanitarian agreements were signed after the Circassian Genocide, one is able to put forward that mentioned agreements can retroactively be applied.

Initially, the following statement should be read ; “…Legal motivation is not among its priorities. Otherwise, the resolution on “genocide” would have not contained obvious legal absurdities, such as retroactive application of law. For example, it denounces the Russian Empire’s policy in the Caucasus in the 18th-19th centuries in accordance with Hague Convention IV (October 18, 1907) “The Laws and Customs of War on Land” and with the UN Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948 – in other words, in accordance with legislation adopted much later than the Caucasian War. In addition, the Russian Federation is not the legal successor to the Russian Empire.” (http://eng.globalaffairs.ru/number/History-as-a-Weapon-15335)

In law, criminal courts have competence to decide relating a crime such as upholding acquittal of defendant owing to lack of evidence or upholding acquittal as defendant does not commit the accused crime or upholding acquittal of defendant due to non-retroactivity principle of criminal law etc. When we glance the statement, it gives the impression that defendant sincerely confesses the committing the crime but struggles to impose that the deeds were carried out beforehand than being signed of humanitarian agreements.

European Court of Human Rights holds the exception of the "continuing violation" or “continuing situation” in its case law to eliminate non-retroactivity principle.

The non-retroactivity principle is set out to the article 28 of the Vienna Convention on the Law of Treaties. It reads as it is ; "Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party."

Remarkable point of international agreements is that individuals are not the contracting party to the agreements. International agreements bind the states signing the agreements. States do not have rights of disposal relating the human rights which are naturally born with human being and they are solely belong to individuals. Even individuals do not have rights to waive or to dispose their natural rights coming from human being.

The non-retroactivity principle is not a dogma, not a norm of ius cogens namely it is not an inalterable rule, per contra it has exemptions. If there is “continuing situation” or “continuing violation”,  non-retroactivity principle is not applied even though the source of  “continuing situation” or “continuing violation” has been taken place before the enactment of humanitarian agreements. Parties of the agreement can also amend  the principle of nonretroactivity, even they can decide that the treaty shall retroactively be applied. (ANTOINE BUYSE, A Lifeline in Time - Non-retroactivity and Continuing Violations under the ECHR, Nordic Journal of International Law, 75: 63-88, 2006, page 65)

For instance, European Court of Human Rights handed down in Kalashnikov v. Russia that even court proceeding was started before accession of Russia to ECHR, 5 May 1998, if they were continued after that date and they breached the rules of  European Convention on Human Rights, Russia had liability as from date of participation. (BUYSE, page 66)

The European Court of Human Rights stated in the Loizidou case: "In the Court's view, the principles underlying the Convention cannot be interpreted and applied in a vacuum. Mindful of the Convention's special character as a human rights treaty, it must also take into account any relevant rules of international law when deciding on disputes concerning its jurisdiction . . ." (BUYSE, page 66)

This quotation denotes the duality of character of human rights treaties in general. Court here settle that ECHR brings a special character and has relationship with general frame of international law. (BUYSE, page 66)

The preamble of  the Vienna Convention, points out human rights: "Having in mind the principles of international law embodied in the Charter of the United Nations, such as . . . universal respect for and observance of, human rights treaties." From said preample it can be deduced that non-retroactivity principle should not jeopardize the individual's human rights. (BUYSE, page 67)

The article 31 of the Vienna Convention lays out the interpretation rules. Paragraph 2 of the article 31 reads: “The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes…” It is clearly drawn from this wording that preamble is included when interpretation is executed. In the course of interpretation pursuant to article 28, human rights referring to preamble can be resorted (BUYSE, page 67).

Additionally, according to the article 60 of paragraph 5 states: “Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.” (BUYSE, page 68).

According to aforementioned explanations, it is concluded that, the Vienna Convention is also applied to human right agreements for interpretation. Taking into account of article 28 of the Vienna Convention, If contracting parties intend to have retrospective effect of agreement, there is no hindrance to do it. If customary law is codified, retrospective effect is also naturally possible since legal relationship was established when customary law is in effect and the problem would have been solved accordingly. If “continuing situation” or “continuing violation” is present, European Court of Human Rights evolve the precedents wherein agreements have retroactive effects much as agreement is signed after launching the “continuing situation” or “continuing violation”. (BUYSE, page 70).

For the foregoing reasons, Circassians have natural rights as it is set out in the European Convention on Human Rights owing to committing the genocide and exile. As it is known, the Russian Federation ratified the European Convention on Human Rights in 1998 and recognize the competence of the European Court of Human Rights in 2010.

The discussions thus far are directed to the rights generated by civil law due to genocide. Below we go through criminal law dimensions.

International Criminal Court was permanently established to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. This court can not prosecute a state itself in terms of punishment, since the criminal responsibility is personal. Simply, a state, like other legal persons, can not be put in the prison. Additionally criminals of Circassian Genocide had already died, there is no individuals to sentence accordingly. It does not mean that, if a state commit the genocide, its results arising from civil law can not be prosecuted against that state. Therefore we need to obtain that the acts against Circassians was a genocide or not. Doubtless, acts against Circassians were definitely genocide and it can not be politically or legally discussed. Genocide is clearly defined in the article 6 of the Rome Statute  as it is ;“For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:(a)Killing members of the group;(b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d)Imposing measures intended to prevent births within the group;(e) Forcibly transferring children of the group to another group.”

As it is seen, crimes against the Circassians fall into the definiton of the genocide .Do you think that why Circassian-Russian War is called as Caucasus-Russian War ? It is claimed that not only Circassians were victims of war, but all Caucasians were. It is well known that the genocide was committed against Circassians and all remains were exiled. An identical or similar sample of “Circassian Genocide” and “Circassian Exile” can not be found in the North Caucasus at the time.  There is no a “Caucasian Genocide” or a “Caucasian Exile”,however even Circassians are confused with these terms especially in diaspora. It means a blurring and bedaubing endeavours to hush up the “Circassian Genocide” since if it is called as “Caucasian Genocide”,national and/or ethnical prerequisites of genocide definiton is collapsed. Therefore, Circassians should carefully avoid to use the terms of “Caucasian Genocide” and “Caucasian Exile”.

In terms of retroactive effect of agreements, when returning to the Nuremberg Trials, we saw the defences of criminals grounds for ex post facto punishment that is not possible in the criminal law. Really, as a first glance, acts fulfilled by German criminals were not defined as a crime before 1945 by both national and international laws.  It means that acts had been committed before the London Agreement, which established the International Military Tribunal carrying out the Nuremberg Trials, would not have been deemed as a crime and would not have been imposed a penalty. Tribunal replied this allegation as  ".. but the Convention (Hague 1907) expressly stated that it was an attempt 'to revise the general laws and customs of war,' which it thus recognised to be then existing…”

The USSR, predecessor of the Russia, was contracting party to the London Agreement signed on 08.08.1945. Do you still think that Circassian Genocide is “obvious legal absurdity, such as retroactive application of law” ?

Similarly the Convention Hague 1899 was an attempt “to revise the laws and general customs of war”. It means that prohibitions set forth in the 1899 Hague Convention was already known by international customary law when committing the Circassian Genocide. For instance : “The attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited.” or   “The pillage of a town or place, even when taken by assault, is prohibited.” or  “Besides the prohibitions provided by special Conventions, it is especially prohibited: …To kill or wound treacherously individuals belonging to the hostile nation or army;…To kill or wound an enemy who, having laid down arms, or having no longer means of defence, has surrendered at discretion; …To declare that no quarter will be given; …To employ arms, projectiles, or material of a nature to cause superfluous injury; …To make improper use of a flag of truce, the national flag, or military ensigns and the enemy's uniform, as well as the distinctive badges of the Geneva Convention; …To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war.” They all were held by international customary law at the time of Circassian Genocide.

Let’s look at the statement again : “For example, it denounces the Russian Empire’s policy in the Caucasus in the 18th-19th centuries in accordance with Hague Convention IV (October 18, 1907) “The Laws and Customs of War on Land” and with the UN Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948 – in other words, in accordance with legislation adopted much later than the Caucasian War.” In Nuremberg Trials, Hague Conventon of 1907 was rationalized since it was codified form of the customary law. When executing the Circassian Genocide, the customary law which codified by 1899 Hague Convention, was well known by the armies. It is clear that genocide was prohibited in the course of committing the Circassian Genocide by international customary law which was codified by 1899 Hague Convention later. Nuremberg Trials can retrospectively touch but Circassian Genocide is absurd since it is mentioned that genocide can restrospectively touch?

But still they remain an argument as ; “In addition, the Russian Federation is not the legal successor to the Russian Empire” . This trivial assertion does not need to discuss. Inheritors try to reject “damnosa hereditas” (ruinous legacy) only. Thus it is accepted that inheritance is really deep in debt and damned by inheritors. The principle of state continuity in the international public law is already evaporated?