The Condition of Illegality in Transitional Settings

In Germany, the situation was that the Nazi takeover of power in 1933 had been undertaken by what was considered legal means. This was the result of a conscious and cleverly designed and executed strategy by the Nazi Party.¹ The regime was perceived as legal according to the German constitution by contemporary society, both within Germany and abroad.² Virtually, a whole generation of German legal scholars gave support to the legality of the new regime.³ Despite the fact that “the constitutional basis on which the reconstruction of Germany on National Socialist lines rested was created mainly by fraud and terrorization”, serious reservations against the regime’s legality were not raised by the critics of the regime either.⁴ The regime and its legislative measures were applied as legal by the German courts right from the beginning. As a consequence of this perception of legality of the Nazi regime, the issue of legal responsibility and criminal liability for judges and other legal officials for applying the law raised difficult questions concerning the legal basis for such responsibility after the breakdown of the Nazi regime.

The issue of a legal basis for responsibility was raised shortly after the capitulation of Germany by leading scholars who had been in opposition to the regime. It was first addressed by professor and former Minister of Justice for the Social Democratic Party under the Weimar Republic Gustav Radbruch in his much-acclaimed article, Gesetzliches Unrecht und Übergesetzliches recht.⁵ In this article, he claimed that laws that lack the fundamental requirements of justice cannot be regarded as law. Such laws therefore are legally void from the moment of their enactment.

Contrary to positivism, law must be defined by its very essence, which according to Radbruch is to create an order aiming for justice. This does not mean that any unjust law lacks the character of law. But when the injustice reaches an unbearable level, it can no longer be recognised as law. Radbruch acknowledges that drawing a line between injustice and unbearable injustice is impossible. He therefore suggests that where achieving justice is not even an aim of the legislator and where the legislator consciously challenges the claim to equality, which is the core of justice, then the resulting legislation lacks the character of law. From this he concludes that racial legislation—legislation that treated some humans as subhumans—and legislation that demanded harsh punishments without regard to the circumstances of the case were examples of legislation of the Nazi period that lacked the character of law. Such legislation should be disregarded by judges, and judgments made accordingly should be deemed unlawful.

Many of the laws of the Weimar era enacted for the protection of human rights were never repealed by the Nazis. Many acts defined as war crimes or crimes against humanity under international law were committed or permitted in direct violation of the provisions of German criminal law. If one were to disregard the Nazi legal rules that permitted such acts, they would also be illegal according to German law at the time. In Radbruch’s view, this meant that judges who had based their sentences on such laws and imposed penalties such as death or imprisonment objectively committed the crimes of murder or illegal detention. The grounds for punishing a judge for following unjust legislation and orders can, in other words, be found in the existing prohibitions against illegally depriving of a person of his liberty, murder, discrimination, etc., according to the circumstances of the case. Whereas a judge is undertaking such acts legally when he is doing it in the course of his administration of justice, his acts will be illegal once the legality of the rule that he is applying is taken away. Enforcing oppressive laws is thus an illegal act to the extent that the enforcement leads to violations of rights.

Radbruch thus resorted to extralegal norms in order to hold judges responsible for their contribution to the Nazi oppression. He did not, however, advocate using natural law as a basis for determining whether a judge objectively had committed an offence. The basis for this should be sought in positive law. Natural law was used to remove the unjust law that otherwise made such invasions in the life and liberty of others legal judicial acts.

German professor in Roman and civil laws Helmut Coing addressed Radbruch’s argument on the responsibility of the judge in an article from 1947.⁶ He held that the judge is committed to follow both positive law and justice. When the legislator consciously and manifestly departs from justice, the judge is bound to disregard the legislation or to step down from his office.

This does not mean, however, that the judge can be held criminally responsible for applying the law, even if it leads to the taking of another person’s life or depriving him of his freedom. The law must reconcile two conflicting aims: on one hand, the aim of supporting justice by punishing those who depart from it and, on the other hand, the principle of nulla poena sine lege. Criminal sanctions may only be used to uphold positive law, i.e. law as social order, and not to uphold morality, i.e. law as justice. Coing disputed the construction that removing the legality of the basis of a judge’s verdict in a capital case would make him guilty of murder. This construction supposes that judges are engaged in illegal acts when they deprive persons of their liberty by sentencing them to prison, but for the fact that exercising a judicial function is seen as a justification. But the judge’s verdict is not murder made legal by exception but something totally different. This leads to, according to Coing, punishing a judge for upholding laws that are invalid because of their unjustness, amounting to punishing him for breaking a rule based on natural law and not for breaking a positive legal rule. The basic principle of nulla poene sin lege is even more relevant to the situation of the judge who acted in obedience to positive law.

Coing, on the other hand, states that a judge who departs from justice when justice is openly disregarded by the legislator is unfit to continue as a judge. He also points out that a judge who departs from the positive law by following an illegal order may be punished. He mentions as an example a situation where a judge secretly is told by superiors how to decide a case. German courts, after the war, used this construction to convict persons engaged in euthanasia, pursuant to Hitler’s secret order of September 1939.

Coing’s argument, based on natural law, led him to the same conclusion drawn by H.L.A. Hart a few years later from a positivist point of view. Hart also concluded that imposing punishments for obedience to a positive law would require the use of laws enacted after the act was committed changing its status from legal to criminal.⁷ But Hart construed the issue of applying punishment as a choice between two moral requirements: the demand that atrocious acts be punished and the demand that criminal laws should not be applied retroactively. As one cannot conform to both, one has to choose to break one of them.

The Radbruch formula was accepted by the courts and employed in cases against defendants accused of participation in the Holocaust, the killing of Soviet prisoners of war and participation in the euthanasia programme.⁸ In these cases, the regulations and orders sanctioning the acts were brushed aside, with the argument that they were contrary to a core of justice present in the minds of all civilised people. Persons engaged in enacting orders and directives from the Führer could therefore be convicted of murder or accessory to murder under the criminal laws in force during the Nazi regime. The orders and directives were regarded as illegal by the courts of the Federal Republic since they challenged any conception possible of a common core of justice in the minds of civilised people. These were not, however, cases against judges, so the courts did not have to deal with the legal issue of a ruling of legality pronounced by a competent court. The successor courts could thus base themselves on an assessment on the illegality of these acts also under the Nazi regime itself without having to set aside specific legal authorities from the time.

Formally, the approach of the German courts was different from that taken by the Allied Military Tribunal since they based their decisions on national law interpreting the law of the Nazi time and not on international law and customs. When it comes to the heart of the matter, there were, nevertheless, similarities in the legal basis. Nazi law was reinterpreted by the German courts of the Federal Republic in light of a core of justice based on the minds of “all civilized people”.⁹ In the same way, “fundamental rules of justice which have been adopted or accepted by nations generally” was an important basis for the war crime trials, both by the international tribunals and by municipal courts after the war.¹⁰