Faculty of Law, University of Oslo, Oslo, Norway
Authoritarian Regimes and Special Courts
The establishment of special courts to deal with sensitive cases is common in authoritarian states.1 The more autonomy the regular courts enjoy, the more likely it is that the regime will establish such courts. And the less compliance the regime receives, the greater will the scope of jurisdiction be for the special courts.2
The UN Basic Principles on the Independence of the Judiciary state in paragraph 5:
Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
A question to be raised is whether one should expect judges to refuse appointments to positions as judge under such circumstances. The UN Economic and Social Council declared in 1989 that “no judge shall accept an appointment or act in a fashion that is inconsistent with the Principles”.3
Helmut Coing stated in his article on the responsibility of the judges from 1947 that a judge has a moral duty to refuse to participate in a special court. A failure to refuse would, in Coing’s opinion, make the judge unsuitable to be used as a judge in a successor regime and make him a political accomplice to the political rulers of the oppressive regime.4 Otto Kirchheimer holds that a legitimate yardstick by which to measure the acts of complicity to evil is the withdrawal from significant participation in public life. By this yardstick, it must be obvious that a judge should refuse to accept positions that are offered by the regime in order to increase the efficiency of the policies of the regime. It is, alas, as Kirchheimer states, also a fact that “many men show a fatal proclivity toward pushing themselves, or allowing themselves to be pushed, into positions where they know in advance the honors and rewards will entail corresponding entanglement and responsibility”.5 Regimes therefore unfortunately do not seem to have difficulties in recruiting judges to their special courts.
The US Military Tribunal and Special Courts
Judges of the special courts and the People’s Court of Nazi Germany were singled out by the Allies after the war as “Class II offenders (activists, militarists, and profiteers)”.6 The initial view of the Allies after the Second World War was, in other words, that judges in the special courts and the People’s Court were to be investigated as war criminals in line with activists, militarists, and profiteers. This does not mean, however, that these judges were treated as criminals just from the fact that they had agreed to serve on the special courts established by the regime. The classification was open to rebuttal in the individual case. In the Justice Case, the prosecution initially indicted defendants on the basis of their having served as judges in the special courts or in the People’s Court. The Tribunal did not convict anyone purely on this basis.
The Justice Case involved several defendants who had served as judges or prosecutors in the special courts or the People’s Court. In the indictment, serving on the special courts was regarded as a war crime by their use for the purpose of and in fact creating a reign of terror to suppress political opposition to the Nazi regime. The special courts subjected certain German civilians and nationals of occupied countries to discriminatory and special penal laws and trials and denied them all semblance of judicial process. The opening statement of the prosecution framed the accusation in this way:
The third group is the cases where, under alleged trials, in the People’s Court, special courts, and civilian courts martial, certain of these defendants, by the use of the prescribed procedures or those actually practiced, the fixing of penalties which outrage the universal moral judgment of mankind, and through convictions based only upon the subjective conclusions of the prosecutor or judge, which we describe now only as examples, give rise to the legal conclusion that the defendants thus convicted were murdered or unlawfully enslaved under the guise of exercising a judicial process.7
It seems a subtle point to make that, according to this, it was not the acceptance of the position as a judge in a special court or the People’s Court that was an offence but the serving as a prosecutor or judge that, by necessity, entailed committing crimes because of the nature of the proceedings taking place.
In the words of Chief Prosecutor Telford Taylor:
The defendants and their colleagues distorted, perverted, and finally accomplished the complete overthrow of justice and law in Germany. They made the system of courts an integral part of dictatorship. They established and operated special tribunals obedient only to the political dictates of the Hitler regime. They abolished all semblance of judicial independence. They brow-beat, bullied, and denied fundamental rights to those who came before the courts. The “trials” they conducted became horrible farces, with vestigial remnants of legal procedure which only served to mock the hapless victims.8
The Military Tribunal, however, only considered the guilt of the defendants under international law and was not concerned with violation of constitutional guaranties or withholding of due process of law. The Tribunal did not share the prosecution’s view on the criminality of serving on the special courts. This can be seen by its treatment of the defendants who were charged with participation in the special court system. Four of the defendants were judges of the People’s Courts, three of the defendants were judges of the special courts, and four of the defendants were prosecutors.
The most important prosecutor among these defendants was Ernst Lautz, Chief Public Prosecutor of the Reich. In this capacity, Lautz prosecuted many important cases before the People’s Court. He was not convicted for his function as chief prosecutor in the People’s Court as such.
Defendant Rothaug served as president of the Special Court of Nuremberg. This was not in itself a reason for his conviction. He was convicted based on his specific conduct on the bench. The Military Tribunal characterised him as “a sadistic and evil man” who could have been impeached and removed from office or convicted of malfeasance in office under any civilised judicial system. After reviewing three of the cases that Rothaug had presided, the Military Tribunal stated:
From the evidence it is clear that these trials lacked the essential elements of legality. In these cases the defendant’s court, in spite of the legal sophistries which he employed, was merely an instrument in the program of the leaders of the Nazi State of persecution and extermination. That the number the defendant could wipe out within his competency was smaller than the number involved in the mass persecutions and exterminations by the leaders whom he served, does not mitigate his contribution to the program of those leaders. His acts were more terrible in that those who might have hoped for a last refuge in the institutions of justice found these institutions turned against them and a part of the program of terror and oppression.
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