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The Individual Criminal Responsibility of Judicial Organs in International Law in the Light of International Practice

Published online by Cambridge University Press:  21 May 2009

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In 1918, Belgian magistrates working under German occupation during the First World War, were presented with the dilemma of the coexistence on their territory of both Belgian and German legislation. In regard to such situation, Articles 43 and 23(h) of the 18 October 1907 Hague Convention hold: while it is possible for the occupant to take measures considered necessary to achieve legitimate purposes – including the creation of their own courts – national law should nevertheless be maintained and respected. Belgian magistrates – and in particular Mr R. de Rickère, judge at the Tribunal de première instance in Brussels – gave those rules their own interpretation: their constitutional duty excluded any collaboration, or contribution, to the enforcement of the occupant's laws; any deviation, even under duress, would engage their personal responsibility. In other words, they would resist to the point of bringing justice to a halt. This is in fact what happened in February 1918 following the proclamation, by the German inspired ‘Conseil des Flandres’ of a new Flemish State, on 21 January 1918. On 7 February, in compliance with Brussels Courd'appel's injunction that all members of the self-defined ‘Conseil’ should be prosecuted for violation of the constitutional guarantee of the equality of all Belgians citizens, two Flemish activists were held: German authorities responded by arresting four magistrates. On 11 February, all magistrates ceased their activities and were joined on that same day by lawyers. The ‘grève des magistrals’, as it became known, was largely followed all over the country. Several among the strikers were deported. It ended on 25 November 1918.

Copyright © T.M.C. Asser Press 2001

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2. I am particularly grateful to Dr Steven Neff of Edinburgh University for the invaluable help he has given me in the preparation of this article. I alone, however, am responsible for the opinions it contains.

3. Freeman, A. V., ‘War Crimes by Enemy Nationals Administering Justice in Occupied Territory’, 41 AJIL (1947) pp. 579610 on interpretation and practice in regard to this disposition.CrossRefGoogle Scholar

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5. Idem, at pp. 546–547.

6. I am very grateful to Mr Dominique Feron, docteur en droit, legal researcher and translator, for allowing me to benefit from his present research into Scandinavian Legal Systems and for giving me permission to make use of his translation of the speeches of the members of the Norwegian Supreme Court on the occasion of the resumption of their functions on 14 May 1945, as well as of the correspondence between German occupying authorities and Norwegian magistrates.

7. Idem, Letter of the Supreme Court of 12 December 1940 to Interim Minister Riisnaes.

8. ‘Jus Cogens’ or ‘Peremptory Norms of General International Law’: Bernhardt, R. et al. , eds., Encyclopedia of Public International Law, Vol. III (Amsterdam, Elsevier 1992) pp. 6569.Google Scholar

9. See Law Reports of Trials of War Criminals, selected and prepared by The United Nations War Commission (London 1948) (hereafter: Law Reports) Vol. IX, pp. 1718: ‘It is asserted that international law is a matter wholly outside the work, interest and knowledge of private individuals. The distinction is unsound. International law, as such binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the Government are criminal also when done by a private individual. The guilt differs only in magnitude …’ See also Arts. 25–27 Rome Statute, ICC.Google Scholar

10. International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda.

11. Law Reports, Vol. XV, pp. 5863: industrialists, business men, doctors, nurses, camp wardens, camp inmates and executioners have also been prosecuted for a direct and unequivocal involvement in some crimes against humanity.Google Scholar

12. ‘… Issued … in order to establish a uniform legal basis in Germany for the prosecution of criminals and other similar offenders, other than those dealt with by the International Military Tribunal…’, Law Reports, Vol. XV, p. 39.Google Scholar

13. Law Reports, Vol. XV, p. 42.Google Scholar

14. Miller, R. L., Nazi Justiz (Westport, Conn., Praeger 1995), lists innumerable instances of such participation which took the most varied forms and affected all aspects of social life.Google Scholar

15. The Rome Statute of the ICC on the question of prosecution gives competence to the Prosecutor (Art. 15), the Security Council (Art. 13(b)) and the Court (Art. 13).

16. Bassiouni, M. Cherif, Crimes against Humanity in International Law (Dordrecht, Nijhoff 1992) pp. 208216.Google Scholar

17. According to Bassiouni, M. Cherif, op. cit. n. 16, p. 226, from 1946 to 1990 some 60,000 such prosecutions have been reported. However, R.L. Miller, op. cit. n. 14, p. 274 says: ‘Before the mass of prosecutions of Nazi criminals came to an abrupt halt in the 1950s, German postwar judges had managed to sentence 5,288 people. Members of their own profession were not among them, however, although there was no lack of damning opinions from even the highest place concerning the role played by the legal profession from 1933 to 1945.Google Scholar

18. Muller, I., Hitler's Justice, The Courts of the Third Reich, transl. Schneider, D.L. (London, Tauris 1991) chs. 22 and 23, pp. 192218.Google Scholar

19. Idem, at p. 250.

20. Idem, at pp. 256 et seq.

21. United States Military Tribunal, Nuremberg, 17 February-4 December 1947, Law Reports, Vol. VI. The accused were all high-ranking officials, presidents of tribunals or chief prosecutors. They all had a record of voluntary, enthusiastic membership of the Nazi Party, of the SS or other official institutions discharging party duties at the same time as serving as government officials. All were involved in the Nacht und Nebel plan.

22. Proceedings by the United States Military Commission in Shanghai were brought for violation by Japanese military leaders of laws of war in relation to justice administration, Law Reports, Vol. V, pp. 65 et seq.Google Scholar

23. Law Reports, Vol. VI, p. 8.Google Scholar

24. See also Muller, op. cit. n. 18, at ch. 9, pp. 270 et seq.

25. It must be noted that at the time of the trial, the two Reich Ministers of Justice Gurtner and Thierack were already dead, as were two other senior officials.

26. Law Reports, Vol. VI, p. 16.Google Scholar

27. On the difference between a charge of conspiracy and one of acting in pursuance of a common design, see Law Reports, Vol. XV, pp. 9899. See also infra nn. 52 and 53.Google Scholar

28. Law Reports, Vol. VI, pp. 104105.Google Scholar

29. ‘It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, the Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offence …’, Law Reports, Vol. VI, p. 5. See on the question of conspiracy as an artifice to extend the IMT jurisdiction, C. Grynfogel, ‘De Touvier a Papon, la complicity de crime contre Phumanite’, 78 Rev.dr.pén. et crim. (1998) pp. 758–779 at p. 760.Google Scholar

30. Law Reports, Vol. XV, p. 90.Google Scholar

31. See infra nn. 52 and 53.

32. Law Reports, Vol. VI, p. 73.Google Scholar

33. According to the Law Reports' commentator ‘[i]t would appear that to prove guilt under a charge of acting in pursuance of a common design it must be shown (i) that there was a system in force to commit certain offences; (ii) that the accused was aware of the system and (iii) that the accused participated in operating the system’. Law Reports, Vol. XV, p. 95.Google Scholar

34. It is difficult to infer anything significant from the substitution with connection with plans and enterprises (notion used in the Justice Trial) to that of common plan (IMT Statute Art. 6 in fine, a notion not used in the Justice Trial); it might want to put the accent on the execution rather than in the preparation of the crime, though most of the accused here had also participated in setting the plan into place.

35. See infra section 4.2 for knowledge and intention: ‘The essential elements to prove a defendant guilty under the indictment in this case are that a defendant had knowledge of an offence charged with the indictment and established by the evidence, and that he was connected with the commission of that offence’, Law Reports, Vol. VI, p. 84 and Vol. XV, p. 96. See the further ‘negative element’ as defined by the ICTY in the Tadic case, i.e., the requirement for the act not to have been undertaken for ‘purely personal reasons unrelated to the armed conflict’, S.C. Neff, ‘Past and Future Lessons from the ad hoc Tribunals for the Former Yugoslavia and Rwanda’, inGoogle ScholarCullen, P.J. and Gilmore, W.C., eds., Crimes sans Frontières: International and European legal approaches (Edinburgh, Edinburgh University Press 1998) pp. 5872 at p. 65.Google Scholar

36. Klemm and Rothenberger had participated in drafting iniquitous laws and policies; as chief Public Prosecutor, Lautz had provided active cooperation in the enforcement of the Nacht und Nebel plan from 1942 to 1944; Mettgenberg had formulated secret, general and circular directives as had Von Ammon, in his quality of counsellor to the Ministry of Justice; as was the case with Joel who, as ministerial counsellor and chief Public Prosecutor of the Court of Appeals in Hamm (Westphalia) had reviewed 16 death sentences; Rothaug, chairman of the Court of Assizes, had made recommendations regarding treatment of Poles and Jews. Altstötter had been chief of the civil law and procedure division. See Law Reports, Vol. VI, pp. 1026.Google Scholar

37. Law Reports, Vol. VI, p. 62.Google Scholar

38. Idem, at p. 73.

39. Evidence of participation in the Nazi policy of persecution and extermination of Rothaug, Director of the District Court of Nuremberg from April 1937 to May 1943 and Public Prosecutor at the People's Court in Berlin, was found in relation to three cases where he had acted as Presiding Judge (p. 23). Oeschey, section chief of the Franconia Gau, had acted in an arbitrary manner in his functions as a judge and this appeared clearly from various trials when he did not take advantage of possible avenues of clemency. Given the choice, he chose the evil solution (p. 25).

40. Law Reports, Vol. VI, p. 50.Google Scholar

41. Vol. VI, p. 64; see also the commentator's remarks p. 88.

42. It might be that Courts acting upon the jurisdiction of Control Council Law No. 10 have given it, overall, the same interpretation as that which the ICTY panel in the Tadic (Merits) have given to their own Statute, which is that any crime against humanity should imply discriminatory conduct. See Neff, op. cit. n. 35, at p. 66.

43. According to the Trial's commentator, for instance, had the arbitrary behaviour in court been non-discriminatory, it would not have been constitutive of a crime against humanity in the eyes of the US Court; he quotes further a court's statement to the effect that the discriminatory element is indeed a characteristic of such crimes.

44. Law Reports, Vol. VI, p. 83, fn. 3.Google Scholar

45. Law Reports, Vol. VI, p. 53.Google Scholar

46. See infra section 4.4.

47. See comments in Law Reports, Vol. VI, p. 90.Google Scholar

48. Law Reports, Vol. VI, pp. 97 et seq., and pp. 103–104.Google Scholar

49. Contra Law Reports, Vol. VI pp. 102103.Google Scholar

50. Law Reports, Vol. VI, pp. 96 et seq.Google Scholar

51. Law Reports, Vol. VI, p. 106.Google Scholar

52. Paust, J. J., ‘Lai, My and Vietnam, ’, 57 Mil. L Rev. (1972) p. 99187 at pp. 165–169, speaks of ‘efforts at defining the international standards of complicity’ and relates that ‘during the Diplomatic Conference on the 1949 Geneva Conventions it was even decided that such matters “should be left to the judges who would apply the national laws” enacted to punish grave breaches of the Conventions'. Paust quotes J. Pictet on the subject and gives several examples of judicial practice offering no specific ‘guidelines used’ to determine complicity.Google Scholar

53. Grynfogel, C., ‘Les limites de la complicité de crime contre l'humanité’, (1998) pp. 523562 at pp. 525–527. Contrary to the commentator's opinion in theGoogle ScholarLaw Reports, Vol. XV, p. 90, continental law and in particular French and Italian laws, do not include any crimes of conspiracy. French law knows the ‘complot’ (résolution arrêtee entre plusieurs personnes, Art. 412–2 CP), the ‘association de malfaiteurs’ (Art. 450–1), the ‘bande organisée’ (Art. 132–71) and the ‘concertation’ (Art. 431–1); these are however much more narrow notions, either because they are only aggravating circumstances or because their application is subject to very strict conditions. As for ‘complicity’, again it is not an autonomous concept and no charge of complicity can be brought separately from a crime which has not been actually committed or at least somehow planned and initiated: ‘L'article 121–7 en effet, saisit ces activités individuelles multiples pour les rattacher, sous la qualification d'actes de complicité, à l'infraction qu'elles tendaient à commettre, créant ainsi un lien étroit entre les agissements des auteurs principaux et ceux des autres intervenants’ (p. 526).Google Scholar

54. Prosecutor v. Furundzija, 338 ILM (1999) pp. 356 et seq. The accused was charged ‘with torture and outrages upon personal dignity, including rape’.

55. See Paust, J. J. et al. , International Criminal Law: Cases and Materials (Durham, NC, Carolina Academic Press 1996) p. 29, for differences in vocabulary used in various international documents. The term ‘complicity’ is used in all legal doctrine as a general one covering aspects of participation to the principal's crime, while international law appears to have adopted those of ‘aiding’ and ‘abetting'. The expression ‘concerned in the murder’ (or other offences) used by British military courts for war criminals seems to cover similar concepts (Furundzija case, at p. 357). Art. 4(1) of the Convention against Torture, however, speaks of ‘complicity of participation in torture’.Google Scholar

56. Furundzija case, para. 230, p. 363.

57. Furundzija case, p. 365.

58. Furundzija case, p. 365.

59. Furundzija case, p. 365.

60. To take the example of parricide, quoted by Grynfogel, loc. cit. n. 29, at p. 759: murder (general intention) on the person of the father (particular intention).

61. Grynfogel, loc. cit. n. 29, at pp. 767 et seq.

62. Grynfogel, loc. cit. n. 29, at p. 778.

63. For example Pohl Trial, Law Reports, Vol. XV, pp. 5253.Google Scholar

64. Law Reports, Vol. VI, p. 50.Google Scholar

65. Bonnard, H., ‘La jurisprudence pénale’, in Le Droit antisémite de Vichy, op. cit. n. 4, pp. 385396, at p. 395.Google Scholar

66. Grynfogel, loc. cit. n. 53, at pp. 523–533.

67. Grynfogel, loc. cit. n. 29, at pp. 772–773.

68. See also Paust, et al., op. cit. n. 55, at p. 25.

69. Torture is included in the list of crimes against humanity of the ICC Rome Statute, Art. 7(f).

70. Reg. v. Bow Street Magistrate, Ex. p. Pinochet (No. 3) (H.L.), [1999] WLR 9.4.1999, pp. 825 et seq. at p. 847.

71. Idem, at p. 861. Lord Goff, recalling the support which a section of the USA public opinion gives to some claims of the IRA says: ‘It is not beyond the bounds of possibility that a state whose government is imbued with this opinion might seek to extradite from a third country, where he or she happens to be, a responsible Minister of the Crown, or even a more humble public official such as a police inspector, on the ground that he or she has acquiesced in a single act of physical or mental torture in Northern Ireland.'

72. ‘It is true, as defendants contend, that German courts under the Third Reich were required to follow German law even when it was contrary to international law’, Law Reports, Vol. VI, p. 49.Google Scholar

73. Art. 13 Draft Declaration on Rights and Duties of States, 1949. See also Exchange of Greek and Turkish Populations case, Advisory Opinion, PCIJ, Series B, No. 10, p. 20 (1925).

74. Law Reports, Vol. VI, p. 100.Google Scholar

75. See Bobbio, N., Giusnaturalismo e Positivismo Giuridico, 2nd edn. (Milano, Comunita 1972) pp. 1921; among others,Google ScholarOrecchia, R., ‘La legge ingiusta’, 29 Rivista di filosofia del diritto (1952) pp. 478491.Google Scholar More recently, see Camy, O., ‘La doctrine italienne’, in Le droit antisémite de Vichy, op. cit. n. 4, at pp. 497539.Google Scholar

76. Troper, M., ‘La doctrine et le positivisme (à propos d'un article de Danièle Lochak)’, in D., Lochak et al. , Les usages sociaux du droit (Paris, PUF 1989) pp. 286292;Google ScholarChomienne, C. et al. , Juger sous Vichy, Le genre humain, No. 28 (Paris, Seuil 1994), in part.Google ScholarLochak, D., ‘Le juge doit-il appliquer la lot inique?’; Le droit antisémite de Vichy, op. cit. n. 4, 4th part, ‘L'antisémitisme magistral’, pp. 399497.Google Scholar

77. Among others Dugard, J., Human Rights and the South African Legal Order (Princeton, Princeton University Press 1978).Google Scholar

78. See in general Freeman, M.D.A., Lloyd's Introduction to Jurisprudence, 6th edn. (London, Stevens and Sons 1994).Google Scholar

79. Friedmann, V.W., Legal Theory (London, Stevens and Sons 1949) pp. 125 et seq.; Bobbio, op. cit. n. 75, at pp. 101–126; Troper, op. cit. n. 76.Google Scholar

80. Lochak, D., ‘Écrire, se taire … Réflexions sur l'attitude de la doctrine française’, in Le droit antisémite de Vichy, op. cit. n. 4, at pp. 433–462.Google Scholar

81. Bobbio, op. cit. n. 75, at pp. 106–107.

82. Troper, op. cit. n. 76, at p. 290.

83. For the three principles which dominate Ehrlich's theory in Die jurislische Logik (Tubingen, Mohr 1918), see Bobbio, op. cit n. 75, at p. 107.Google Scholar

84. Virally, M., La pensée juridique (Paris, LGDJ 1960) pp. VI–VII.Google Scholar

85. ‘If a Law exists independently of the will of the State and, accordingly, cannot be abolished or modified even by its constitution, because it is deeply rooted in the conscience of mankind and of any reasonable man, it may be called “natural law” in contrast to “positive law'”, South West Africa case, ICJ Judgment of 1966, ICJ Rep. (1966), Dissenting opinion of Judge Tanaka, para. 298.

86. For municipal codes which provide for the application of the general principles of law, equity or natural law, see Cheng, Bin, General Principles of Law (London, Stevens and Sons 1987) Appendix 2, pp. 400 et seq. A study would be, of course necessary to find out what those principles include and even more to the point, what they do not include.Google Scholar

87. ‘One of the objectives of the TRC (Truth and Reconciliation Commission) was the promotion of national unity and reconciliation in a spirit of understanding transcending the conflicts and divisions of the past, through investigating and establishing “gross violations of human rights” from 1 March 1960 to a cut-off date (which became 10 May 1994)’, ‘The Truth and Reconciliation Commission, and the Bench, Legal Practitioners and Legal Academics’, 114 SALJ (1997) pp. 15–110.

88. TRC, loc. cit. n. 87, atp. 31.

89. Idem, at p. 59, Justice G. Friedman says: ‘The common law of South Africa, the Roman-Dutch law, is basically a just system of law which incorporates the rules of natural justice.

90. ProfFuller, (infra n. 95) in the introduction to his article, ‘Positivism and Fidelity to Law – A Reply to Professor Hart’, 71 HLR (1958) p. 630 at pp. 633–634, speaks of this deficit of clarity.Google Scholar

91. Dyzenhaus, D., Hard Cases in Wicked Legal Systems. South African Law in the Perspective of Legal Philosophy (Oxford, Clarendon Press 1991). For this research, Dyzenhaus conducted a survey of adjudication in South Africa over a period of about 60 years.Google Scholar

92. Hartney, M., ‘Dyzenhaus on Positivism and Judicial Obligation’, 7 Ratio Juris (1994) pp. 4457.CrossRefGoogle Scholar

93. Shiner, R.A., ‘David Dyzenhaus and the Holy Grail’, 7 Ratio Juris (1994) pp. 5671.CrossRefGoogle Scholar

94. Hartney, loc. cit. n. 92, at p. 48: ‘There is no evidence that any of the South African Judges believed that Common Law was ever immune to displacement by statute law’.

95. Hart, H.L.A., ‘Positivism and the Separation of Law and Morals’, 71 HLR (1958) pp. 593 et seq.,CrossRefGoogle ScholarFuller, L.L., ‘Positivism and Fidelity to Law – A Reply to Professor Hart’, 71 HLR (1958) pp. 630 et seq.CrossRefGoogle Scholar

96. Hart, loc. cit. n. 95, at p. 617 on the German legal philosopher G. Radbruch's rethinking of his own positivist position when confronted with reconciling Reich ‘justice’ and the reconstruction of a new German legal system.

97. Hart, H.L.A., The Concept of Law, 2nd edn. (Oxford, Clarlendon Press 1994) p. 210.Google Scholar

98. Hart, loc. cit. n. 95, at p. 603. For a contrast between these ‘rules’ and Kelsen's ‘basic norm’, see The Concept of Law, op. cit. n. 97, at p. 292.

99. Fuller, loc. cit. n. 95, at pp. 652 and 660.

100. Fuller, loc. cit. n. 95, at p. 655. However, Fuller would also have preferred, in specific cases, a retroactive statute, but not for the same reasons as Hart and Radbruch: ‘Rather I would see such a statute as a way of symbolizing a sharp break with the past, as a means of isolating a kind of cleanup operation from the normal functioning of the judicial process’ (p. 661).

101. Hart, loc. cit. n. 95, at pp. 606–615 and Fuller, loc. cit. n. 95, at pp. 661–669.

102. TRC, loc. cit. n. 87, at p. 22.

103. Idem.

104. Dugard, J., ‘The South African Judiciary and International Law in the Apartheid Era’, 14 SAJHR (1998) pp. 110126 at p. 111. The author explains further: ‘Inspired by the Roman-Dutch writers they drew no distinction between international law and municipal law and applied rules from both legal orders with equal facility in domestic disputes with an international dimension.’Google Scholar

105. ‘Judicial antagonism to international law was largely confined t o those areas of international law that affected the political interests of the apartheid state. Politically neutral subjects with an international dimension were sometimes treated more positively.’ Idem, at p. 113.

106. Hart, loc. cit. n. 97, at pp. 213–216.

107. South-West Africa case, 18 July 1966, ICJ Rep. (1966) p. 6 at p. 287; and p. 306: ‘There is no doubt that the principle of equality is binding upon administrative organs. The discretionary power exercised on considerations of expediency by the administrative organs is restricted by the norm of equality and the infringement of this norm make an administrative measure illegal. The judicial power also is subjected to this principles.’

108. Bobbio, N., La consuetudine come fatto normativo (Padova, CEDAM 1942) p. 81, speaks of ‘valid natural law'. In international law, G. Barile speaks of ‘natural law in force’: ‘ll diritto internazionale non scritto dell 'epoca attuale potrebbe chiamarsi “diritto naturale vigente ” intendendo tale frase, in sé equivoca, non gia nel senso che detto diritto non sia una realta storica, ma nell 'altro, ben diverso, che esso vige allo stato di fenomeno giuridico puro, immediatamente legato all 'intera realtà storica et non costretto in regole formalmente poste’, ‘Diritto intemazionale e diritto interno’, Part III, La rilevazione e l'integrazione del diritto intemazionale non scritto e la libertà di apprezzamento del giudice,40 RDI (1957)pp. 141–229 at p. 155.Google Scholar

109. South-West Africa case, 18 July 1966, ICJ Rep. (1966) p. 6, Judge Tanaka ‘ s dissenting opinion, p. 298: ‘As an interpretation of Article 38, paragraph I(c), we consider that the concept of human rights and of their protection is included in the general principles mentioned in that Article. Such an interpretation would necessarily be open to the criticism of falling into the error of natural law dogma. But it is undeniable that in Article 38, paragraph I(c), some natural law elements are inherent. It extends the concept of the source of international law beyond the limit of legal positivism according t o which, the States being bound only by their own will, international is nothing but the law of the consent and auto-limitation of the State. But this viewpoint, we believe, was clearly overruled by Article 38, paragraph I(c), by the fact that this provision does not require the consent of States as a condition of the recognition of the general principles. States which do not recognise this principle or even deny its validity are nevertheless subject to its rule.

110. This plea was put forward in other trials in relation to laws of war, see Law Reports, Vol. XV, pp. 185186.Google Scholar

111. See infra, 5. 4.

112. Dubois, J.-P., ‘La jurisprudence administrative’, in Le droit antisémite de Vichy, op. cit. n. 4, pp. 339362 at p. 343.Google Scholar

113. Dugard, loc. cit. n. 104, at pp. 110–126.

114. TRC, loc. cit. n. 87, at p. 62.

115. Miller, op. cit. n. 14, at p. 112–113. See also Falk, R.A., The Role of Domestic Courts in the International Legal Order (Syracuse, NY, Syracuse University Press 1964) p. 104.Google Scholar

116. Fritz, G. and Fritz, J.-C., ‘“Indigenes“ et “métis” sous la Ille République’, in Le droit antisémite de Vichy, op. cit. n. 4, at p. 74.Google Scholar

117. Camy, O., ‘La doctrine italienne’, in Le droit antisémite de Vichy, op. cit. n. 4, pp. 497539, at p. 505.Google ScholarBelloni, G.A., ‘La legge penale etiopica’, 53 Schweizerische Zeitschrift für Strafrecht (1939) pp. 154164.Google Scholar

118. BVerwG, 22 March 1994, ZaöRV (1996) pp. 471–472, where the German Administrative Federal Court declares that there is no doubt as to the fact that no international rule forbids a state t o send back a refugee who tries to flee a civil war.

119. Law Reports, Vol. VI, pp. 91 et seq.Google Scholar

120. Law Reports, Vol. XV, pp. 161 et seq.Google Scholar

121. Law Reports, Vol. XV, p. 165.Google Scholar

122. See HR Committee General Comment 13 to Art. 14 ICCPR, in Bassiouni, M. Cherif, ed., The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (Irvington, NY, Transnational Publishers 1994) pp. 132139. See also Arts. 6, 15 and 16, 1966 ICCPR, from which derogation is not allowed under any circumstance (Art. 4). See also Art. 6 ECHR, Art. 8 American Convention on Human Rigths and Art. 7 of the Rome Statute of the ICC: para, (e) speaks more generally of ‘[i]mprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law’ as a crime against humanity ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.Google Scholar

123. Law Reports, Vol. XIV, pp. 4985.Google Scholar

124. Law Reports, Vol. XIV, pp. 5660.Google Scholar

125. Law Reports, Vol. XIV, pp. 57, 63 et seq., in part. pp. 67 et seq.Google Scholar

126. This point comes through particularly well in the submissions made by magistrates to the Truth and Reconciliation Commission established in 1993 to examine violations of human rights which occurred in the Apartheid years in South Africa. These submissions are of great interest as they represent a unique example of an effort originating from the judiciary itself, to analyse and explain – with various degrees of good will – their own administration of justice through a tormented period of history: ‘Submission on the Role of the Judiciary under Apartheid’, 115 SALJ (1998) pp. 436–438; Dugard, loc. cit. n. 104, at pp. 110–126; TCR, loc. cit. n. 87, at pp. 15–110, p. 18.

127. Law Reports, Vol. XV, p. 160.Google Scholar

128. Law Reports, Vol. XV, pp. 157 et seq.Google Scholar

129. Law Reports, Vol. VI, p. 60.Google Scholar

130. Brand, G., author of the systematic summary, in Vol. XV, of the Law Reports, remarks that ‘[c]ourts have been less willing to punish persons accused of committing war crimes purely in the capacity of a prosecutor than they have been in the case of judges. This may arise out of a feeling that, while a judge has a duty to be impartial, a prosecutor is of course expected to do his best within certain limits, to secure a conviction. It may also be the result of a feeling that the acts of a prosecutor are more remote from the carrying out of sentence than are those of a judge’ (p. 61).Google Scholar

131. See Control Council Law No. 10, Art. II, 4(b), Law Reports, Vol. XV, p. 160, fn. 3.Google Scholar

132. See Latza case, supra and Wagner case, infra. In the Wagner case, Ludwig Luger, a Public Prosecutor accused of complicity in judicial murders, was acquitted because he had acted under superior orders under circumstances which the Court appreciated favourably.

133. While the gravity of crimes against humanity is somehow included in their qualification as such, the question of the relative gravity of the crime of war is not easily solved. See Gaeta, P., ‘La rilevanza dell'ordine superiore nel diritto internazionale penale’, 81 RDI (1998) pp. 6985 at pp. 79–82.Google Scholar

134. Law Reports, Vol. VI, pp. 6162.Google Scholar

135. Law Reports, Vol. VI, p. 78.Google Scholar

136. Permanent Military Tribunal at Strasbourg, 23 April to 3 May 1946, and Court of Appeal, 24 July 1946, Law Reports, Vol. III, pp. 2355.Google Scholar

137. Law Reports, Vol. III, Annex II, pp. 93 et seq.Google Scholar

138. Proceedings against Semar were however separated from those against the five other accused, see Law Reports, Vol. III, p. 27.Google Scholar

139. Law Reports, Vol. III, pp. 93 et seq.Google Scholar

140. Law Reports, Vol. III, pp. 50 et seq. Applicable French Law was the Code de Justice Militaire, Code d'instruction criminelle and Code Pénal.Google Scholar

141. Law Reports, Vol. III, p. 27.Google Scholar

142. Law Reports, Vol. III, pp. 5455.Google Scholar

143. In the Autumn of 1944, Nacht und Nebel proceedings were withdrawn from courts and the whole operation transferred to the Gestapo.

144. Prosecutor v. Furundzija, 38 ILM (1999) p. 363.Google Scholar

145. This point is powerfully made by South African magistrates, see TRC, loc. cit. n. 87, at p. 45. It is also worth remembering that, as it was possibly the case in France, in Belgium and in Chile, ‘95% of the judicial work which we would be called upon to do was likely to be (and so it proved to be) work which would not involve us in “political” cases …’

146. TRC, loc. cit. n. 87, at p. 33 quoted from ‘No shelter for Judges’, Sunday Tribune 3 April 1983.

147. TRC, loc. cit. n. 87, at p. 43: ‘… Not surprisingly, South African lawyers and the public at large, irrespective of colour, were at one in requiring courts and in requiring them to be, and to remain, independent…’

148. Rome ICC Statute Art. 31 refers to necessary and reasonable action to avoid a threat of imminent death or of continuing or imminent serious bodily harm.

149. As Gustav Heiberg, Advocate at the Norwegian Supreme Court, explains: ‘Maintaining the Supreme Court and submitting it, as a Norwegian Court, to German interests, would have represented the greatest of evils.’ D. Feron's translation of various speeches on occasion of the reopening of the Supreme Court on 14 May 1945.

150. A point which appears from D. Feron's research on the Norwegian Supreme Court's course of action during the war, see supra n. 6.

151. In the Rome ICC Statute, exclusion of criminal responsibility could be determined under Art. 31, para. 2 in accordance with Art. 21.