The Argument for Criminal Liability

Faculty of Law, University of Oslo, Oslo, Norway



Under international human rights law, states have an obligation to prosecute perpetrators of serious human rights violations. It has since long been shown that also judges can be responsible under international law for atrocities committed as part of the application and enforcement of municipal law. This was first established by the US Military Tribunal against leaders of the Nazi legal system and has since been confirmed by the European Court of Human Rights. Under municipal law, however, the picture is more complex. The legislation on judicial responsibility for unlawful judging varies from country to country, as do definitions of “unlawful” in relation to judicial activity.

For the most part, judges are not brought to account for their contribution to uphold and enforce authoritarian regimes and evil institutions and laws, neither under international nor under national law. To my knowledge, apart from in Germany, no proceedings have been brought against judges for their action in their judicial capacity in cases of transitional justice after the Nazi war trials of the middle of the twentieth century. In South Africa, the judges and magistrates did not meet the Commission for Truth and Reconciliation; they got away with it. In Argentina, the military courts were stripped of their jurisdiction over civilians and the judges of the Supreme Court were replaced by the democratic regime.1 Judges were not included, however, among the officials of the military regime who were prosecuted. In Brazil, the judiciary continued to function under democracy largely as they had under military rule. The judges were not subject to any serious criticism despite their responsibility for thousands of persecutions during the dictatorship.2 In Chile, the judiciary was blamed for complicity by the Chilean National Commission on Truth and Reconciliation and the judicial system was reformed, but there was no criminal prosecution.3

The postwar trials in countries occupied by Germany during the war do give instances of how this situation was dealt with by the restored regimes after liberation. In many countries, the legitimate national institutions continued their business during the occupation under the dominance and control of the German occupying power. In some countries, notably in France and Norway, national political groups seized the opportunity to grasp power and establish themselves as illegitimate national rulers: the Petain regime of Vichy France and the Quisling regime of Norway.

Despite the fact that the German military courts and the SS court in occupied Norway during World War II were responsible for the execution of 231 members of the Norwegian resistance, not one single member of these courts was charged in the war crime proceedings after the war in Norway.4 A charge of murder was brought against three judges of a summary trail (Standgericht), but they were acquitted by the Norwegian Supreme Court. During the past decades, research on judicial conduct in authoritarian settings has increased, and we now have quite a bit of knowledge on how judges act and their reasons for doing so. But we still have a few facts and little knowledge about the extent to which they are made to answer for these acts.

Methodological Considerations

Most of the few available cases are still from the aftermath of Nazi Germany and World War II. This means that the cases are marked by their postwar setting: the military tribunals employed international law on war crimes and crimes against humanity, and national procedures took place in a settling of the accounts with wartime collaborators and traitors. This limits the consequences that can be drawn from the cases to transitory justice issues in other contexts. Also the development of international law and human rights law limits the validity of cases from the 1940s and 1950s in the present setting. There now are highly refined standards by which to judge judicial conduct, independent from the national law that judges employ. How these standards should play out in the questions of criminal and civil liabilities of individual judges under international and national laws must, however, remain a field of speculation, given the lack of cases and other legal materials.

The legal situation is therefore that the amount of positive legal sources is limited. Apart from a few national cases, the most important source is still the US Military Tribunal Justice Case. Surprisingly, given its central importance for the criminal responsibility of officials of the law, the literature on this case is scant. It was more or less ignored in Germany.5 A few articles have been written in English, which has become the focus of increased attention in the recent years, but it has hardly been analysed from a doctrinal point of view.6

The tenet that no one should be punished for an act that is not made punishable by law at the time it is committed—nulla poene sin lege—is a central principle of the rule of law. To a survey like this, it means that liability in municipal law can only be established through an investigation of the legal sources in each and every body of national law. What a general survey like the present can show is models for how to establish such liability, arguments against the most common reservations that are employed to reject responsibility, and examples of how these reservations are overcome. The actual conclusion in each jurisdiction must, however, be drawn on the basis of specific national sources. This study then, on the judicial responsibility under municipal law, can be seen as a study de lege ferenda, how the law ought to be, and de sententia ferenda, how the judges who are called upon to decide on the responsibility should reason in the case that national law gives them a scope of discretion.

The Counterarguments

The basic arguments against holding judges responsible for upholding and applying oppressive law are the following: if what the judge does is legal at the time, later legislators and courts should not judge him according to their new standards. For sanctions to be applied, a legal rule needs to be broken. And even if one should hold that a judge in an objective sense has broken some rule based on the rule of law, one should not punish a judge who has only been performing his function in the best possible way. In these cases, there is not the necessary criminal intent present for punishment to be applied. A judge who applies the law such as it is enacted by the legislator in power is bound by his role as a judge to enforce this law. In a sense, he is acting under an obligation. Any society needs judges, and the rule of law requires that judges can perform their function independently from any outside pressure. This also demands that judges are not later brought to answer for their judicial decisions. Immunity for judges is therefore a necessary part of the rule of law, not least in oppressive settings.

The answer to all these objections is that judges should be held responsible for enforcing laws that flagrantly infringe human rights and thereby commit substantial and obvious infringements of individual rights. That such acts are crimes is well established in international law, both in customary law and in the Rome Statute of the International Court of Criminal Justice. In most national legal orders, even criminal statutes can be interpreted in light of long-established principles of justice and in light of international human rights without violating basic principles of the rule of law. This means that it is possible to interpret national prohibitions against murder, deprivation of liberty, and other offences against the individual so that they override legislation passed by a regime that demands such obvious infringements.

Anyone arguing that he subjectively thought that substantial and obvious infringements of individual rights would go unpunished if the power relations changed can hardly be taken seriously. One can never commit gross violations of human rights with the legitimate expectation that one will not be punished, and the law should not protect such an expectation. Not even judicial immunity should offer this protection. Judicial immunity is important, not for the benefit of the individual judge but for the benefit of the rule of law. It must therefore not be construed in such a way as to become an obstacle to the rule of law and a protection of those who break it down.