Faculty of Law, University of Oslo, Oslo, Norway
A Fixed Core of Justice
The analysis has shown two contradictory inferences that can be drawn from historical and legal material. On one hand, judges can be held responsible for exercising judicial functions within the law if by that they contribute to obvious and substantial infringements of individual rights. This is demanded by the rule of law even if it means that legislation is applied retroactively in order to achieve it and is also an obligation under international human rights regimes.1
On the other hand, judges almost never are brought to account for their misdeeds under oppressive settings. Indulgence towards the judiciary was not only a German phenomenon. In contrast to most other countries, Germany at least had a debate where even the Supreme Court at one point stated that disproportional punishments were against an unwritten basic assumption of German criminal law, opening up the door for the view that it could be illegal for courts to apply formally valid legislation. This was not to be the final word of the Supreme Court in its dealing with Nazi judges. But the debate left the door open for the next stage.
When German courts were asked to consider judicial crimes again after the breakdown of the GDR, they answered differently. This time they did accept that a judge could be performing an illegal act when applying laws in the way envisaged by the legislator and the rulers. They reached this result partly by including ratified international human rights instruments in their reasoning, arguing that when ratified these also form part of the positive law that the judge has to take into account. But they went one step further than this by not limiting the argument to treaty-based international obligations, thus reasoning also from basic elements of justice. International human rights are hence an expression of justice and not its only source.
The finding that judges in the GDR were breaking the law when applying valid statutes in contradiction of basic elements of justice would probably not have been possible without the existence of case law on judicial responsibility and the discussions this instigated. The case of the Nazi judges, how they judged and how they were later judged, thus has a significant bearing on the question of the responsibility of judges for contributions to oppression and oppressive regimes. The German experience shows that judges can be held accountable by successor regimes and transition trials for their judicial functions in upholding oppressive laws.
The Nuremberg trials showed that judges can be held responsible under international law, not only for war crimes but also for administering the law against a country’s own nationals. The Military Tribunal established that it was a crime for judges to administer laws that were part of the regime’s discriminatory policy and extermination of Jews and Poles and to undertake an arbitrary and brutal enforcement of oppressive laws “shocking to the conscience of mankind”.
As a result of the findings of the Tribunal, even judges may be held accountable under the Rome Statute of the International Criminal Court. Based on the statute, judges can be guilty of genocide and crimes against humanity also when applying and enforcing municipal law. According to Article 7(2)a, an attack against any civilian population means a course of conduct “pursuant to or in furtherance of a State or organizational policy to commit such attack”. Thus, enforcing the laws of the regime cannot be a defence but is, on the contrary, an argument to substantiate that the condition of furtherance of a state policy is fulfilled.2
International law is, as we know, not directly applicable in municipal law in all jurisdictions, at least not as a sufficient legal basis for applying criminal sanctions or to supplant rules of domestic law. Whether judges can be held responsible by national courts must therefore be answered within each legal order according to its own legal principles and rules. But the German experiences, together with the fact that judges can be punished by international courts and tribunals, give valuable insights and arguments to be considered when addressing this question in national legal contexts.
It seems at the outset quite reasonable that there exists a core of justice, present in the minds of “all civilized people”, and that to this core belong substantial and manifest human rights violations, intolerable disproportionate punishments, and substantial violations of the right to a fair trial. On the other hand, the words of the US Military Tribunal on the draconic punishments meted out by German courts during the war, with the minimum of procedural guarantees, are a note of caution to finding self-evident requirements of justice:
“Every nation recognizes the absolute necessity of more stringent enforcement of the criminal law in times of great emergency” and “in the face of a real and present danger, freedom of speech may be somewhat restricted even in America. Can we then say that in the throes of total war and in the presence of impending disaster those officials who enforced these savage laws in a last desperate effort to stave off defeat were guilty of crimes against humanity?”3
What seems beyond question to many people today may not be so straightforward to people in a totally different setting tomorrow. At least, it was not so to the defenders of democracy and the rule of law in 1948. On the other hand, for a practice to become a rule of international law, it need not be a universally recognised practice but only one accepted by civilised nations in general.4
It appears to be very difficult to find a fixed core of justice that can be seen as intuitively valid as law under all conditions and at all times. Regimes may decide to depart from international obligations in their own internal law, and judges may be put under an obligation to enforce these laws. Morally, they may be under an obligation to refuse, resign, or find ways to bend the law, but to say they are guilty of crimes under their own law is a different question. At the same time, however, they may be committing criminal acts from the perspective of international law.
Why Are Not Judges Punished?
A pressing question is why judges are acquitted even when there are no compelling legal arguments against convicting them. One probable reason has more to do with transitional justice in general. It is rather the exception than the rule that dictators and their supporters are punished after a change of political system.5 Often, amnesty is part of the deal for surrendering power to democratic forces. There is also often a social need for reconciliation and looking forward. The extent of implication in the workings of the old regime might have been so far-reaching that looking for accomplices may have deep and rupturing effects for social stability.6 International relations, politics, and a perceived need to balance between peace and justice often lead to the non-enforcement of criminal liability.7
But as we have seen, even in cases where perpetrators of oppression and terror are punished, judges often go free. After Nazi Germany, the most obvious explanation to this is that it was the judges of the old regime who continued into the new regime.8 They punished guards and soldiers, and to a certain extent doctors, officers, and bureaucrats, but let their own off.9 Another factor is that the cases against the judges came rather late and not until the late 1940s and the early 1950s. By this time, the prosecution of Nazis in Germany and in the rest of Europe was on the wane.10 This, however, does not explain why judges were not prosecuted earlier.
One thing is how the leniency towards the judges in general came about being accepted by society. The need for experienced judges when building democracy based on the rule of law may have prohibited a general purge of all judges with a Nazi background. This was different in the Soviet Occupied Zone, where they started from scratch with a new type of lawyers schooled in Marxist–Leninist ideology.
Another matter is why even the obvious Nazis were not put on trial and convicted. Once it was accepted that it was necessary to maintain a large number of the judges from the Nazi regime, the path was laid out: under these circumstances, it was more important to infuse into the judges the new ideology of the rule of law than to purge the Nazis. They had all, more or less, been involved in the crimes of Hitler. A crusade mounted by the judges who had kept clear of the worst crimes of the system would easily have antagonised many colleagues and created deep rifts in the judiciary. When only a few are truly innocent, the exculpation of even the most profoundly guilty is the most convenient for all.11 This also created a need to “normalize” the judicial practice of the Nazi time—it would have been difficult to integrate the judges into the new order of the Federal Republic while simultaneously stating they had been responsible for a practice amounting to illegality by the standards of the same Federal Republic.12 Judging for the future of the Federal Republic may, in this light, have seemed more important. Better to close the ranks and forget.
Similar reasons may explain the leniency with which judges have been treated in other situations. The Norwegian Supreme Court showed a great deal of professional courtesy towards the German judges of the special courts under the occupation. Several of the procedures they directed could easily have been said to not satisfy even the minimum requirements of a fair trial and thus treated as war crimes. Many participated as prosecutors in sending Norwegians to the “Night and Fog” programme, an act that was characterised as a war crime by the US Military Tribunal. In Norway, they were acquitted.13
The remarks by the US Military Tribunal on the use of harsh laws and draconic punishments during war are also very empathetic towards the predicaments of their German colleagues.14 They demonstrate that a judge on trial could maybe expect an understanding from the bench not so readily available to others. But not only judges were extended this kind of sympathy: South African judges got away with boycotting the Reconciliation and Truth Commission.
The Commission addressed the balance between the need to integrate all judges in the undertaking of building the rule of law under the new order against the justice of accountability in the following way:
The Commission has a good deal of understanding for the ‘collegiality’ argument, which says that the non-appearance by those judges willing in principle to appear will create greater mutual trust among the ‘old order’ and the ‘new order’ judges and so advance the cause of constitutional democracy. However, such benefits, if achieved in this way, are outweighed by the powerful symbolic effect of the judiciary showing themselves publicly and humbly to be accountable. For this is what the hearing was about and what the Constitution demands of a judiciary that is granted the onerous power of constitutional review. It is required that the judiciary display some sense of being able to balance its necessary and justifiable demand for independence with a measure of accountability to the South African nation it serves.15
Surprisingly, it does not seem to harm the social acceptance of the judiciary that many judges have a tainted past of betraying the rule of law under oppressive times. People’s faith in the courts seems independent of the extent to which it contributes to oppression. Under apartheid in South Africa, the confidence in the legal system among the blacks and the coloured was on a level with the confidence among the whites.16 Those most sceptical, maybe with a cynical view, where the ones with the closest knowledge of the system, namely the black lawyers who regarded the system as “morally bankrupt”.
Based on such experiences, it does not appear that it is necessary to restore faith in the legal system to punish judges who have applied and enforced oppressive laws, even with appalling results. Under some circumstances, it may even seem more important to concentrate on marshalling authentic and sound support among the judiciary for democracy and the rule of law and the new values of the future society. This cannot, however, cover the truth that justice demands equal treatment of judges and others who violate rights for the purpose of political oppression.
The Hurdle of Retroactivity
The approach that the German Supreme Court took in the cases against the GDR judiciary has been criticised as overly formal when the Court stated that the judges did have a scope of interpreting the GDR law under the authority of international human rights and a common core of justice. Although this might be correct from reading textbooks of legal interpretation, it is far from how the law was perceived in the GDR at the time.17 From this point of view, the German Supreme Court undertook a new reading of the law of the GDR and applied its reading retroactively to the GDR judges.
Certainly, from a legal realist point of view, this seems correct. It is, in my opinion, more satisfying to the way society and judges perceive the role of the judiciary to say that a successor regime that punishes past judges for manifest violations of human rights, intolerable disproportionate punishments, and substantial violations of the right to a fair trial is enacting a new legal regime that it is applying the law retroactively, at least if the oppressive regime has lasted for so long that it would be a fiction to say that one is applying the law previous to this regime.
On the other hand, I believe that a transitional justice should allow for such retroactivity.18 This is in accordance with the view taken by the European Court of Human Rights.19 In the case brought by Streletz, Kessler, and Krenz against Germany, the Court stated:
The Court considers that it is legitimate for a State governed by the rule of law to bring criminal proceedings against persons who have committed crimes under a former regime; similarly, the courts of such a State, having taken the place of those which existed previously, cannot be criticised for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a State subject to the rule of law.20
The applicants had occupied senior positions in the GDR’s state apparatus and the Socialist Unity Party leadership. They had been members of the National Defence Council, the body whose decisions were a necessary precondition for the issuing of orders concerning the GDR’s border-policing regime, where 264 people were killed trying to escape to West Germany. The European Court of Human Rights thus accepted the German courts’ interpretation of GDR law, by explicitly accepting that a successor regime applies general principles of rule of law when interpreting the laws in force under oppressive circumstances. Technically, the courts are engaging in a reformulation of the law by legal interpretation parallel to what happened in Germany in the transition from the Weimar Republic to the Third Reich. Substantially, however, the courts now are engaged in protecting the rule of law, whereas the courts then were engaged in breaking it down. This makes the whole difference from the point of view of the rule of law.