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 In the Autumn of 1944, Nacht und Nebel proceedings were withdrawn from courts and the whole operation transferred to the Gestapo.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