Faculty of Law, University of Oslo, Oslo, Norway
Judges may find themselves in situations where they contribute to or are the direct perpetrators of substantial and obvious infringements of individual rights. Despite this, it may not always be just to prosecute them and hold them criminally responsible for this. As we have seen, judges are under pressure from different values and ideals when it comes to their duty to uphold the law. The decision of whether to stay on the bench, giving support to the regime while trying to do justice as far as possible, or to resign is not an easy decision. Since open defiance often will undermine the effective role of the judiciary as a modifying factor, it is also hard to know to what extent it serves justice to apply techniques to modify suppressive measures. For such reasons, judicial responsibility must be confined to the more obvious infringements of fundamental rights. But even in these cases, there may be circumstances excluding individual criminal responsibility for the judge. Such circumstances may be found under the principle of culpability under the general principles of the ICC Statute, Articles 30–33.
According to the principle of culpability, punishment presupposes that the court is convinced that the defendant is personally reproachable for the crime he has committed.1 This entails that a person is responsible only if the material elements of a crime are committed with intent and knowledge [Article 30 (1)]. In addition, Article 33 excludes responsibility for crimes committed under superior orders unless the orders are manifestly unlawful. But since crimes against humanity and genocide per se are manifestly unlawful, superior orders will never exclude responsibility of judges as I have defined the material elements here. Culpability is excluded under Article 32 where there is a mistake of fact on the side of the defendant. Mistake of law shall, in general, not be a ground for excluding criminal responsibility. It may exclude liability “if it negates the mental element required by such a crime”. But it is only a ground for mitigation of punishment if the defendant should have known the unlawfulness of the act.2 Article 31 (1)(d) excludes liability where the act “has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided”.
The Eilifsen Case
To punish a person for an offence, it is normally not sufficient to establish that an offence has been committed. Normally, it also has to be established that the accused committed the offence with the necessary criminal intent. The Military Tribunal expressed the requirement of criminal intent in the following way:
As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught. Whether it be considered codification or substantive legislation, no person who knowingly committed the acts made punishable by C. C. Law 10 can assert that he did not know that he would be brought to account for his acts. Notice of intent to punish was repeatedly given by the only means available in international affairs, namely, the solemn warning of the governments of the states at war with Germany. Not only were the defendants warned of swift retribution by the express declaration of the Allies at Moscow of 30 October 1943. Long prior to the Second World War the principle of personal responsibility had been recognized.3
The requirement of criminal intent is more specific when applied to particular acts of judicial oppression. In such cases, the judge must know not only that he is participating in an organised system of injustice but also that the particular verdict for which he is accused was illegal and would lead to consequences prohibited by the law. The following case from Norway gives an illustration of this. The case was one against two Norwegian judges in the special court set up to try Gunnar Eilifsen.4 As Chief Superintendent of the Police, Eilifsen supported five of his subordinate police officers who, in August 1943, refused to carry out orders to arrest three women for refusing to assemble to work duty under the Nazi authorities. The refusal was reported to Reichskommissar Terboven, who decided that it was necessary to set an example and demanded that Eilifsen be sentenced to death. To accommodate this, Quisling signed a law that retroactively made it possible to punish Eilifsen’s offence by death and established a special court to try Eilifsen.
The Court was set up with three members: Justice of the Supreme Court Egil Reichborn Kjennerud, Chief of the State Police Karl Martinsen, and Head of the Department of the Order Police in the Ministry of Justice Egil Yngvar Olbjørn. The members of the Court were told by the Minister of Justice and the Chief of Police that the Germans demanded Eilifsen be sentenced to death but that the sentence would be commuted to a prison term by Quisling.
In spite of this, Reichborn Kjennerud and Olbjørn voted for a prison sentence. When the judgment was brought to the Minister for his signature, the Minister and the Chief of Police were furious and demanded that the Court reconsider its sentence. The two judges were told that they would be shot in addition to Eilifsen if they did not return with a death sentence, and they were also reassured that Eilifsen would be pardoned if sentenced to death. The Court reassumed its deliberations, and Olbjørn gave in to the pressure with the result that the Court returned with a 2–1 vote for the death punishment. Eilifsen was not pardoned, and the execution took place later on the same night.
In the subsequent case against Olbjørn, the trial court stated that participation in the special court in itself was an act of criminal collaboration with the enemy. The proceedings were therefore illegal, and Olbjørn was charged with accessory to murder. On the charge of murder, the Court held that since Olbjørn was told that Eilifsen would be pardoned, he could not be found guilty of deliberate murder due to lack of criminal intent. On the other hand, it was seen as negligent of him to place his trust in this promise, so he could be convicted for manslaughter.
Ignorance of Law
The basic barrier against punishing judges is not to establish that an offence has been committed but to establish that the act has been committed with the necessary guilty state of mind. The problematic issue is not with judges who consciously disregard the law to further the oppressive aims of the state he is serving. As stated above, it is not the “monsters” we are concerned with but the good judges and the extent to which they can be held accountable for their participation.
Many of the instances of departures from basic elements of the rule of law are undertaken by honest judges performing their duties as they perceive them under the law and without malicious intent. In the words of high judges from the apartheid regime of South Africa:
There were certainly a significant number of cases with a high public profile which it can be argued could have been decided differently quite legitimately without any violation of the judicial oath of office. What compounded the disappointment of many was that some of those decisions were decisions of the Appellate Division. But that does not necessarily mean that those who decided them did so perversely, knowing that their conclusion was not the right one, simply in order to please the government of the day, or to give vent consciously to their own ideological positions. Any assertion to the contrary is a grave assertion indeed and clear evidence would be required to support it.5
In his famous article on statutory non-law and supra-statutory law, Radbruch posed the question: can a person, educated in the legal belief in positivism, be blamed for regarding the laws of the regime as binding law? He does not answer his question but leaves the answer hanging in the air: justice may have been wronged by these judges, but their ignorance may exonerate them. In later works, he is more elaborate to the fact that the positivistic outlook should exonerate judges who committed evil by applying the law in a situation where they knew no alternative.6
Helmut Coing offered a slightly different track. Referring to Radbruch’s article, he emphasised that the German judges were unprepared for the situation they were faced with under the Nazis and that legal theory did not offer them any tools with which they could defend themselves when the state required them to apply laws that gravely contradicted any notion of justice. He pointed the finger not at any particular legal theory as such but at the lack of institutions and doctrines of legal review and standards by which to judge legislation and other orders of the state. Coing employs the lack of tools and standards to perform a judicial review of the statutes the judges were required to apply as an excuse for their actions. Because they had no tools of resistance, they could not be expected to resist.
The importance of positivism as an explanation for the development of German law in the Nazi period was overrated by Radbruch and his followers.7 Despite the weaknesses in this position, this was the explanation that was established as the accepted explanation in postwar German legal theory and understanding. There is of course a vast difference between using a factor as an explanation and using it as an excuse. One may explain the acts of a criminal with reference to his desire for the stolen object and lack of impulse control, but few would accept such an explanation as an excuse for his behaviour, and certainly not as a justification.
In his great thesis in defence of the judges who remained “true to their people” during the Nazi period, Hubert Schorn surveys positivism as an excuse and states that “their traditional approach to application and assessment of legislation was not without influence as a cause for the attitude of the judiciary towards National Socialism”.8 He maintains that the attitude to legislation formed a favourable ground for National Socialism, together with the fact that most judges lacked schooling in legal philosophy. They were therefore not equipped to evaluate the Nazi laws against general legal principles and the rule of law. Many judges applied Nazi laws because they believed that enacted laws were expressions of the law and that they therefore were obliged to follow them.9
Over several pages, Schorn describes various theoretical and practical relationships between legal positivism and the legitimacy of the state and the legislator before he draws the conclusion: “One cannot deny many of the judges who applied NS Criminal law the defence of good faith, when they judged what they thought was the law, as they believed it was just to apply the law”.10