The Condition of Illegality and Failed Usurpations

Faculty of Law, University of Oslo, Oslo, Norway


Judges and Revolution

When judges participate in a coup d’état or serve the leaders of such an attempt to establish a new regime, establishing the legal basis for holding them accountable is more straightforward. The revolutionaries can be held accountable according to the law of the regime that they tried to overthrow, which made their acts illegal at the time. To the extent that the revolutionaries establish new institutions such as special courts and tribunals, they will lack legitimacy, and their decisions need not be regarded as an exercise of judicial functions. In practice, though, they often are.

The issue of the legality of rebel courts was put before the United States Supreme Court after the civil war.1 The question arose in the context of a suit for compensation by a person who had been arrested and charged with treason in the District Court of the Confederate States of America for the Northern District of Alabama. The US Supreme Court ruled that the arrest had been illegal since the “Confederate States” were rebels without the power to establish courts of law on the territory of the United States. Justice Swayne stated:

The act of the Confederate Congress creating the tribunal in question was void. It was as if it were not. The court was a nullity, and could exercise no rightful jurisdiction. The forms of law with which it clothed its proceedings gave no protection to those who, assuming to be its officers, were the instruments by which it acted.

According to this view, persons who accept office in courts established by rebels are accomplices to the rebellion and cannot be accepted as officials of a system of justice. The same view was taken by the Norwegian courts regarding judges who had accepted appointment to the special courts established by the Quisling regime under the German occupation.

The situation of the collaboration of judges in the existing courts that are taken over by the revolutionaries is more complicated. These are already judges by virtue of the established constitution. Their acts can therefore not be dismissed offhand as nonjudicial, even if they are administrating laws passed by the rebelling regime. The courts will continue to exercise their normal functions to the extent that it is possible under the circumstances and may even be forced to apply and enforce laws issued by the revolutionaries. Sound arguments can be made for the holding of the courts outside of the conflict between the competing contenders of power over the state and not forcing them to choose sides. Lord Pearce put the argument in this way in his dissenting view in Madzimbamuto v. Lardner-Burke on the obligations of the judges in Rhodesia after the coup by the Smith government:

The practical factual situation in Rhodesia is this. The judges lawfully appointed under the 1961 constitution and representing its judicial power, have been entrusted by both sides with the duty of continuing to sit. They have continued to sit as judges under the 1961 Constitution although the country is in the control of an illegal government which does not acknowledge or obey that Constitution and does not acknowledge any right of appeal to their Lordships’ Board. This is an uneasy compromise which has been adopted by both sides from, no doubt, a consideration of many factors. The primary reason, one presumes, is the reasonable and humane desire of preserving law and order and avoiding chaos which would work great hardship on the citizens of all races and which would incidentally damage that part of the realm to the detriment of whoever is ultimately successful. This would accord with the common sense view expressed by Grotius [above]. For this reason it is clearly desirable to keep the courts out of the main area of dispute, so that, whatever be [sic.] the political battle, and whatever be [sic.] the sanctions or other pressures employed to end the rebellion, the courts can carry on their peaceful tasks of protecting the fabric of society and maintaining law and order.2

A difficult question under such circumstances is where the line goes “between merely keeping office in order to administer to the current needs of the population and action which implicitly involves recognition of the invader’s title”, as well as “what is the form and style of obedience which reflects acknowledgment of the power of coercion but avoids any move towards helping to transform naked power into authority?”3

Judges Under Foreign Occupation

Trials in occupied countries were based on the national law of each country. In the postwar trials outside of Germany, punishing collaborators was, by far, a much larger task and priority than punishing Germans, and the large number of charges concerned treason and collaboration with the enemy.4 These offences also applied to judges and other members of the legal profession. In Belgium, 29 judges were under investigation during the purges of Nazis in public service after the war and five were convicted for political collaboration.5 In Denmark, three judges were punished for collaboration.6 In Luxembourg, the Germans reorganised the courts. All but two of the judges joined the Nazi Party. The rulings of the courts were not recognised as rulings by Luxembourg courts after the war, with all the judgments rendered nonexistent by a Grand Ducal Decree. Disciplinary procedures were initiated against 19 judges, but the files have subsequently been lost, and the outcomes are unknown.7

In the Netherlands, the exiled government, upon its return, distrusted the courts because of their record during the occupation and appointed special courts to undertake the purge of Nazis and collaborators. All judges appointed under the German occupation were suspended. The members of the Supreme Court short of one were suspended too. After the suspension was lifted, the Minister of Justice wrote a letter to the Supreme Court criticising it for its actions during the occupation and requested the voluntary resignation of the judges. The justices refused on the ground that their resignation would be “contrary to (their) conscientiously conducted policy during the occupation and not solve the problem”.8 Negotiations between the Court and the government resulted in the establishment of a purge authority to purge the prewar members of the courts. The Supreme Court received an organisation of the purges that ensured that it would not have to go through the purge procedure and that respected the independence of the prewar appointees as much as possible.

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