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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.

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Copyright © T.M.C. Asser Press 2001

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References

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.

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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.

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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

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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.

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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.

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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).

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

103. Idem.

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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.’

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

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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

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

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

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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.

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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

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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.