LAWYERS IN THE DOCK: FROM NUREMBERG TO THE HAGUE ?
Bentham Presidential Lecture: U.C.L. Law Faculty: 9.3.23.
Mr. Bentham was no friend of the legal profession. He called it "a partnership, having for its object the extracting .. out of the pockets of the people, in the largest quantity possible, the produce of the industry of the people." He also wrote that a lawyer whose client was convicted, should be criminally liable as 'accessory after the fact'.
So the prospect of lawyers appearing in the dock, (our subject this evening), will probably bring a smile to his face: even in his detached state in the Cloisters now below us.
We will consider the circumstances in which a lawyer's work can incur criminal liability.
For this, there is no other starting-point than the so- called 'Nuremberg Justice' trial. Through most of 1947, fourteen German lawyers were tried for their roles under the Third Reich. Nine were convicted of war crimes and/or crimes against humanity. They were variously a Minister and senior officials in the Ministry of Justice, and prosecutors or Judges in the 'People's Courts' and 'Special Courts'. Four were sentenced to life imprisonment, and the others to terms between seven and ten years.
Trigger warning for any fans of the 1961 Hollywood film, 'Judgment at Nuremberg', based on this trial: we have no Marlene Dietrich or Burt Lancaster for you. This is a bleak and sometimes harrowing picture, of a system which perverted everything we value about our profession and the 'rule of law'.
The Prosecutor's Opening was highly rhetorical:
p. 31- 32 "... the root of the accusation here is that those men, leaders of the German judicial system, consciously and deliberately suppressed the law, engaged in an unholy masquerade of brutish tyranny disguised as justice, and converted the German judicial system to an engine of despotism, conquest, pillage, and slaughter..........."
The picture we all have in mind is of the 'International Military Tribunal' for the ‘Major War Criminals’, Goering et al. That had concluded in 1946. This 'Justice trial' [USA v Josef Altstoetter and ors.] was the third of twelve ‘successor’ trials, called the 'Nuremberg Military Tribunals' conducted by the American authorities, under a jurisdiction delegated by the four Occupying Powers. These trials were thematic and covered e.g. doctors, industrialists, top military figures etc. Though these were military Tribunals, American civilian Judges conducted them all. The accused had their choice of counsel, German or otherwise. The Tribunals applied international law, as then understood, and not German law, for obvious reasons. They are now regarded as the seed-bed for international criminal law.
The indictment sprawled across 34 long paragraphs. The convicted officials in the Ministry of Justice ranged from Acting Minister to Secretaries of State and heads of relevant departments. They were responsible for drafting and administering the laws and regulations, which we will consider: and, for example, approving prisoner transfers and executions, and refusing death penalty clemency applications. They corrupted the justice system by organised pressure upon trial judges. The convicted Judges and the prosecutor were responsible for applying these laws in the Special and People's Courts.
The convictions were under Count 2, 'war crimes', and 3, 'crimes against humanity'. These were defined by Control Council Law 10 (2) in terms familiar to us now through the ICC Rome Statute. 'Crime against humanity' was a new concept first applied in these trials. It included "Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds.." This conduct was required to be "systematically organized and conducted by or with the approval of government."
The Nazi legal system.
The conduct of these lawyers ranged widely across these definitions. We instinctively wonder how could they be responsible for such atrocities. Surely, they were nearly all normal, rational, trained people ... like us. The fate of German law and the legal profession after Hitler’s coming to power in January, 1933, gives some context.
Weimar Germany had a highly developed legal system with the Constitution of 1919. This included all our familiar human rights protections, and more. Article 102 guaranteed the independence of the judiciary. There were two vigorous independent associations of Judges. There was an independent Bar Association, founded in 1871, with 15,000 members.
With terrifying speed, all of this was dismantled.
By March, 1933, the Reichstag/ Parliament building had been burned down: and the so-called ‘Reichstag fire decree’ annulled constitutional rights, and declared a state of emergency. Then the ‘Enabling Act’ authorised government by decree, even overriding previous statute and the constitution. It was the end of constitutional government. The Confederation of German Judges promptly declared “its full trust in the Government.”
On 10.3.33., a Jewish lawyer, Dr Michael Siegel, went to the Munich Police HQ on behalf of a prominent Jewish businessman whose store had been attacked. Here he is [image 1], beaten up, stripped of his shoes and trousers and paraded through the streets. He had to wear this placard saying, “I will never again complain to the police.”
From early April, judges, prosecutors and law faculties were purged of Jews, non-Aryans and any socialists. Here is the letter dated 9.6.33. disbarring a lawyer named Finkelstein, in Tilsit, East Prussia. [Image 2]. It simply said ‘you are erased’ [‘geloscht worden’] from the approved list for the local and Regional Courts.
On 21.4.33., a Federation of National Socialist jurists was formed and the existing Bar Association forcibly dissolved. All independent legal publications were suppressed.
All this happened within four months.
In earlier times, Otto von Bismarck had reportedly said "lawyers are like sausages: it is better that one does not see how they are made." Well, we can literally see how Nazi lawyers were made.
From June, 1933, every Bar candidate had to undergo 6 weeks' training at a ‘community’ camp run by the military near Berlin, ‘to stimulate their National Socialist sentiment’. Here [Image 3] is their parade for the Prussian Minister of Justice, Hans Kerrl. He had no legal qualifications. Here is their version of a Bar dining night. [Image 4] The men in black are the tutors. [Image 5] Here the teachers are merrily showing off a gallows over the parade ground, in Monty Python style. The object suspended from the gallows is a paragraph punctuation mark, well known then as a symbol of German statute law. A Nazi legal theorist, Roland Freisler, had declared that national socialist judges ‘do not need the crutches of statutes’. This was a Nazi legal education, symbolically executing statute law.
Ultimately candidates for Call had to sign on their application form, that they had never had a Jewish tutor. These [images 6+ 7] show the national convention of the Bar Federation in October, 1933, in Leipzig: 10,000 lawyers were taking an oath of loyalty to the Fuhrer.
On 11.3.34. by decree the Gestapo were authorised to take anyone into ‘protective custody’ for political reasons. On 4.6.37., lawyers from the Ministry of Justice agreed with the Gestapo upon the permitted level of violence they could use in 'enhanced interrogations', using a standard form of ‘club'. [Our accused Herbert Klemm signed this decree].
At this time, a Court of Honour of the NS Bar Federation disbarred members for consulting a Jewish doctor, and for arguing political cases too strongly. Two notaries were prosecuted variously for not saluting properly in Court and in the streets: for voting the wrong way in a plebiscite: and for buying postcards for 10 pfennigs from a Jewish man. This was 'a failure to assimilate the importance of opposing world jewry.' [Our accused Schlegelberger was responsible for this]
The term ‘legal representative’ 'rechtsanwalt' was replaced by ‘rechtswahrer’: or ‘guardian of the law’. By 1938, all Jewish lawyers had been removed from practice.
By 1939, both the Gestapo and the SS had legal immunity before all the regular courts. By Hitler's decree of March, 1939, the courts were freed of the need to follow any precedent. By another of August, 1942, the Minister of Justice himself was authorised to "deviate from any existing law": a rather eye-watering oxymoron. So the ‘rule of law’ was destroyed.
Cases were not to be decided by ‘logical reasoning’, but by the ‘feel of the case’. Criminal convictions were founded upon analogy with existing laws. In 1935, Article 2 of the Penal Code was amended so as to read: [image 8]
“Whoever commits an act which the law declares as punishable or which deserves punishment according to the fundamental idea of a penal law or the sound sentiment of the people, shall be punished. If no specific penal law can be directly applied to this act, then it shall be punished according to the law whose underlying spirit can be most readily applied to the act.”
All of these measures, and very many others, required the close involvement of countless lawyers and judges for drafting and implementation. They were critical to the functioning of this dictatorship. In 1938, of all the local Gestapo chiefs, 87% had studied law: and 50% had doctorates in law. The notorious Hans Frank, governor of Occupied Poland, was a Doctor of Law, and had been President of the Academy of German Law.
You will search in vain for any recognisable Nazi jurisprudence. There were no principles, save the Fuhrer principle: by which AH was the supreme judge and source of all law. The law was purely instrumental, in that it served simply to protect the 'racial purity' of the people, the interests and security of the state, and to pursue its programme of persecution and annihilation.
Though legal education before 1933, and thus for most Third Reich lawyers, was 'positivist', Nazi legal thinking was hostile to 'positivism'. Hitler wrote in Mein Kampf condemning obedience to 'corrupt' Weimar law, and we have seen how 'statute' law was derided.
Goebbels in 1934, frankly set out the permitted role of the law and of the courts in a newspaper article: [Image 9] “We were not legal in order to be legal, but in order to rise to power. We rose to power legally in order to gain the possibility of acting illegally.”: and in a speech in 1942: “While making his decisions, the judge is to proceed less from the law than from the basic idea that the offender is to be eliminated from the community..... The idea that the Judge must be convinced of the Defendant’s guilt must be discredited completely.”
Carl Schmitt, the brilliant and dangerous Nazi legal and political philosopher, wrote ‘The law is there to protect the state from the individual.’
Paradoxically for such a totalitarian regime, the law mattered a great deal. There were well over 1,000 laws governing the treatment of Jewish people in Germany and the annexed territories. The spelling out of telegrams, when dictated on the telephone, was regulated, by forbidding the phrase ‘A as in Abraham’. As Victor Klemperer recorded in his famous Diaries, he was not allowed to possess a typewriter: and could not buy flowers or even shaving cream, since Jews were supposed to grow beards.
The elaborate laws of the Third Reich facilitated illegality, by means of opaque euphemisms and loopholes. The gaps were filled in with improvisations upon 'the will of the Fuhrer'.
The examples of resistance by lawyers through use of the law, were rare indeed. A brave Bavarian prosecutor, in 1933, Josef Hartinger, presented an indictment against named SS officers for murders in Dachau concentration camp. This was quickly suppressed, and he was moved to a provincial post. In 1940, one judge, Dr Lothar Kreysigg issued a criminal summons and an injunction against the head of the ongoing T4 euthanasia programme. He correctly, but impertinently, relied upon the lack of any apparent legal authority of any kind for these killings. The proceedings were quietly dropped, and he retired on medical grounds.
Significantly, both these men kept their freedom and survived the War. The alleged fear of retribution, as a post- war excuse for collaboration, was largely a fiction.
The criminal conduct.
The criminal conduct of these lawyers, is not clearly structured in the Tribunal judgment. So these are my headings.
1. the People's Courts and the Special Courts were used to create a reign of terror, especially by imposing the death sentence.
In 1933 and 1934, these Courts were established to dispense swift justice at lowest cost: with very limited defence rights and no appeals. In the latter, three of the five judges were military men. Overall, it is estimated that 60- 80,000 people were sentenced to death by the Courts under the Third Reich. By comparison in Fascist Italy, the courts passed 29 death sentences. According to Justice Freisler’s own figures for the calendar year 1943, 50% of the accused or 1,662 people were sentenced to death by the 6 ‘Senates’ of the People’s Court. Very few indeed were acquitted.
The death sentence was extended widely, even for trivial offences.
The Courts operated on an immense scale: in 1942, 457,129 people were sentenced for offences: 91.2% of accused persons were convicted: and another 2,449 acquitted persons were subject to 'corrective measures'. These are incomplete figures.
2 An abusive system was developed for prosecutors to 'annul' unsatisfactory trial verdicts and sentences, especially when Hitler personally disapproved. They were then re-listed before a more reliable Special or People's court. A Jewish man called Herr Luftglas allegedly stole a large number of eggs and was sentenced to 2 1/2 years' imprisonment. At Hitler's insistence this was nullified and he was sentenced to death. [Our accused Schlegelberger ordered his hand- over to the Gestapo for execution, as he did in two other similar cases.]
3 Enormous pressure was brought to bear upon trial judges. Liaison officers were allocated to each Judge to convey the 'will of the Fuhrer'. Secret intelligence was passed to judges pre- trial. Private 'Richterbriefe' or 'guidance letters' to the judges were sent from the M of J. Judges were spied upon and on 26.4.42. AH threatened removal of all recalcitrant judges. Advisory letters were sent to defence counsel warning them against excessive 'ardour'.
4 Jewish people and all nationalities of the eastern occupied territories were subjected to discriminatory laws, sham trials, and persecution. Quite apart from formal death sentences, such prisoners were 'handed over' to the SS or Gestapo for execution, even during, or at the end of prison sentences.
By a 1941 decree against Poles and Jews, the death penalty was extended, sometimes on a mandatory basis, to cover such as manifesting anti-german sentiments. By 1942, 62,000 people had been convicted of special 'blood and honour' offences, governing 'racial purity'. Jewish witnesses were forbidden from taking the oath, but would anyway be guilty of perjury if they lied.
Our accused Rothaug, chief justice of the Nuremberg special court, in half an hour, tried two young polish women for a minor arson which caused no damage and sentenced them to death. He would declare an accused to be a 'public enemy', as a device to justify the death penalty. In Court, he openly expressed virulent race hatred of polish and jewish defendants as sub-human.
5 German criminal offences were extended, especially 'treason' with its mandatory death sentence, so as to encompass non- german citizens and to the whole world. Trivial private remarks were deemed as 'undermining the defensive strength of the nation' and liable to the death penalty. At times there were 1,500 of such cases per month [p. 1119.] German criminal law was expanded retrospectively to the eastern occupied territories in 1941.
6. Elaborate fictions were applied to produce convictions. In over 150 such cases, escaping polish labourers had aimed for the Swiss border for obvious reasons. They were convicted of 'treason' and executed, because they might join fellow Poles, and fight against Germany in the future.
Some foreign youths engaged in a minor street fight with some Hitler Youth. They were tried and some were executed, because they were found to constitute a 'resistance movement'.
7. together with the Army and the Gestapo, the MOJ devised and administered the 'Nacht und Nabel' ['Night and Fog'] decree of 7.12.41. Most of the Justice trial accused participated in some way in this programme, and Schlegelberger signed it. Suspected resistance members in occupied western Europe were spirited away to Germany, and kept incommunicado. Secret court hearings were then held. There were no records kept, no defence witnesses, often no counsel, no effective notice of the charge and no appeals. Many were executed and given secret burial, or handed over for 'protective custody' by the Gestapo. No information of any kind was given to their families. By April, 1944, there were 8,600 victims.
8. hundreds of non- Germans in custody were 'handed over' for execution without any sentence or official orders at all, especially towards the end of the war. The victims were mainly political prisoners, and so-called 'asocials' or 'inferiors'. In 1945, for example, 800 political prisoners alone at Sonnenberg prison were murdered. The Gestapo actually asked the MOJ, if they had any objection! It was approved by our defendant Klemm.
9. Jewish people were persecuted by the restrictions of the Nuremberg laws, and by expulsion, cancellation of their citizenship and forfeiture of all their property. Ultimately, by decree on 25.11.41. all German Jews were deprived of German citizenship. [Hannah Arendt and Professor Tim Snyder have written..]
10. The MOJ participated in sterilisation programmes through 'Heredity' courts established by a 1933 decree. Forcible sterilisation could be ordered against so called mental or physical 'defectives' and vaguely defined 'asocials'.
11. Nazi party members were protected from accountability for murders and other serious crimes by the grant of immunity and pardons. The MOJ effectively suspended or quashed any criminal process, for the lynching of allied aircrew. The Nuremberg Tribunal held that this was tantamount to inciting further such murders.
Principles of criminal liability applied.
Applying the relevant Article II.2 of Control Council Law 10, the Tribunal held:
para. 984: " The charge, in brief, is that of conscious participation in a nation wide government-organized system of cruelty and injustice, perpetrated in the name of law by the authority of the Ministry of Justice, and through the instrumentality of the courts. "
para. 1063:".. The overt acts of the several defendants must be seen and understood as deliberate contributions toward the effectuation of the policy of the Party and State...."
The 'mental state' to found a conviction in nearly all the NMT cases was that of 'knowledge' rather than 'purpose' or 'motive.' This is best illustrated from the many instances of 'handing over' many persons to the Gestapo or SS, 'for special treatment'. Knowledge that this would normally result in execution or transfer to a concentration camp was quite sufficient. Proof that the accused wanted this outcome would be to confuse 'motive' with 'intent'.
What about just 'giving legal advice'? This arose in a different NMT successor case, the 'Ministries' Trial, called USA v Weizsacker and ors., which included senior officials in the Foreign Office of Third Reich.
In March, 1942, Adolf Eichmann of the SS asked them whether they had any objection to the proposed deportation of 6,000 French Jewish people to Auschwitz. The lawyers replied 'no objection: to be selected by the police.' when they knew exactly what the consequences would be. The Tribunal held: "When the SS inquired whether the Foreign Office had any objections, it was the defendant's duty to point them out." and "If the program was in violation of international law the duty was absolute to so inform the inquiring branch of the government.
Knowledge of 'illegality' would be perfectly obvious when advising upon the murder of defenceless civilians. What about 'mistaken' or 'grossly negligent' advice given in 'good faith', without more, in a less blatant case? We will return to this issue with George W. Bush's 'torture team' lawyers.
'Judicial immunity': was claimed by the Judges. This was dismissed as only applying where an independent court has administered impartial justice. Some even argued 'self defence/ necessity': to protect the State from the Bolshevik menace. As we have seen, 'duress' was an unrealistic defence since resignation was perfectly possible without serious adverse consequences.
More seriously, some argued, for example Schlegelberger, that they were protecting the justice system from worse, by preventing it being totally taken over by the Gestapo or SS. The Tribunal found that this was a real risk: p. 1086. There were proposals to exclude the court system entirely for any Jewish accused or litigant.
This argument was dismissed. The Ministries Tribunal held for example: p. 341 and 497- 8: ".. this, while it may and should be considered in mitigation, cannot constitute a defense.... One cannot give consent to or implement the commission of murder because by so doing he hopes eventually to be able to rid society of the chief murderer. The first is a crime of imminent actuality while the second is but a future hope. "
A complaint of 'retrospectivity' was made, about the term 'crime against humanity'. This was dismissed by the tribunal on many grounds: [ page 974 et seq..] It was held to be a principle of fair play/ justice, allowing for exceptions, rather than going to jurisdiction.
Proof that the accused either knew or should have known that his conduct was wrong at the time: and would be subject to punishment if caught, was held to be sufficient. This could be inferred from the secret nature of many orders: the concealment of evidence towards the end of the war, and the dispensations granted by Hitler from international law obligations. Warnings of prosecution had been broadcast during the war: not least by the joint Allied Moscow declaration, of November, 1943. All the conduct alleged amounted to conventional crime: but was only re-titled as a 'war crime' or 'crime against humanity' because of the enormity of their scale.
Reliance was also placed upon the following: [not to be read out] ....
[[the Hague Regulations of 1907, especially Articles 23(h), 43 and 46:
the 1929 Geneva Prisoner of War Convention, Arts 2, 3 and 4:
the laws and customs of war:
the general principles of criminal law of all civilised countries, including the locus of the crimes:
German domestic laws, including the Weimar Constitution, which was never wholly repealed:
the terms of the Paris Peace conference 1919: and Article 228 of the Versailles treaty.]]
The Law. This trial has made a significant contribution to the development of international criminal law.
The new concept of 'genocide' was cited for the first time in the Justice trial judgment and specifically in convicting Lautz and Rothaug. The new concept of 'crime against humanity' was also defined and effectively applied. They are both alive and well in Articles 5- 7 of the Rome Statute of the ICC.
The concept of 'common purpose' or 'joint enterprise' was also applied effectively, and appears now in Article 25(3)(d) of the Rome Statute and the judgments of the ICC.
To what extent were the wider aims of this prosecution fulfilled? The prosecutor's opening speech suggested that: "......[The accused] defiled the German temple of justice, and delivered Germany into the dictatorship of the Third Reich, .... The temple must be reconsecrated. We have here, I think, a special opportunity and grave responsibility to help achieve this goal."
For the moral regeneration of post-war Germany, this required reasonable legal accountability for Nazi crimes, even if limited by the immensity of the task and limited resources.
The sentences actually served after this and the other 11 trials, undermined any sense of justice. An array of individual and Board reviews were conducted by the American authorities. Only three of the Justice convicts remained in custody after 1951.
By 1955, of 117 sentenced to prison in these 12 successor trials, only seven remained in custody. Some life sentences were commuted to 'time served'. The great Hersch Lauterpacht protested to Robert H Jackson, the chief US prosecutor, that this was 'an indignity inflicted upon the memory .. " of the victims.
The trials met with organised hostility from the Evangelical and Catholic churches in Germany and the USA. American Republican politicians were concerned about trade with the reviving German economy: and about any appearance of 'jewish revenge'! They also wanted to bolster a German security alliance against Russian expansionism.
Before the post-war West German courts, no German judge, prosecutor or legal official was convicted of any offence [with two very minor exceptions]. In the 1990s the German Federal Supreme Court and the German Parliament apologised for its inaction.
At least a clean break with the Nazi legal regime could have been expected. There was instead widespread continuity. By 1948, after three years, 80- 90% of active judges had served under the Third Reich. Of the notorious People’s Courts, 98 Judges and prosecutors continued their legal careers. Of the 577 officials involved with the People's Courts, only three ever went to prison.
Post- war, one judge in Hamburg sat assessing compensation for some families of those Germans [emph.] sentenced to death by the Nazi Courts. That was fine, except that he had himself imposed those death sentences.
The law faculties largely welcomed back the teachers from the Nazi period, and excluded those who had been purged. In 1961, the West German government purged 140 serving judges and prosecutors because of their Nazi past. At that time, still about 40% of serving judges had served in some capacity under the Nazi regime.
Have any other lawyers who served oppressive legal orders since 1945, ended up 'in the dock'?
In South Africa, for 43 years, to 1991, a host of civil servants, legislators, lawyers and Judges maintained the inhumane system of apartheid: created and enforced with a plethora of discriminatory laws. South Africa had the highest rate of judicial executions in the western world by the mid- 1980s. 'Apartheid' undoubtedly constituted a 'crime against humanity' in international law at the time, as declared by the 1973 UN Convention and is now identified as such in Article 7 of the Rome Statute of the ICC, 1998.
The democratic choice in 1996 was made to pursue 'restorative justice' through the 'Truth and Reconciliation Commission'. There was a three day hearing dealing with the role of lawyers. Despite a reassuring general invitation, the judiciary and the magistracy refused to appear. Their written submissions were insubstantial and evasive. They claimed that they could have done nothing in the face of 'parliamentary sovereignty' and that to attend would have compromised 'judicial independence'. The 'Nuremberg' argument was deployed by some judges, that participation at least helped to ward off even worse. On the other hand, of course, this helped to maintain an appearance of the 'rule of law'. [This painful dilemma described in Professor Dyzenhaus' 'Judging the Judges, Judging Ourselves."]
The TRC Report was highly critical of the Judges. There was no legal accountability at all.
Similar exercises in 'transitional justice', combining Commissions with selective criminal trials were adopted after the fall of military dictatorships for example in Chile, Argentina, El Salvador and Guatemala. Obtaining some accountability just for those most directly responsible for atrocities, exhausted the limited available resources.
At least the Chile Commission report, severely criticised the Judges under the Pinochet dictatorship, for delaying habeas corpus proceedings, readily accepting mendacious official accounts, and not standing up for individual rights: but again without any accountability to the law.
There is one example of 'justice against the lawyers', but it is a rather 'rough' one. In 2006, the Iraqi High Tribunal convicted the President of Saddam Hussein's Revolutionary Court of a 'crime against humanity' and sentenced him to death. Two rifles had been fired at Saddam, in a small town called Dujail in 1982. Hundreds of residents were subsequently detained, and tortured and/ or killed. A Judge, Mr. Al-Bandar, tried 148 men and youths for involvement in the attempt, simultaneously over a few days and sentenced them all to death.
At least 46 had already died before the trial under interrogation, but were nevertheless tried and convicted: belt and braces, I suppose. Many others were not brought to attend the Court. Contrary to Iraqi law, 39 of those sentenced had been minors at the relevant time. No defence lawyer appeared.
The IHT held that this trial had been a 'sham' and part of a joint enterprise to take revenge by killing hundreds of residents of Dujail. The outcome was an order to kill, not a court sentence: and 'a crime against humanity' under the definition in the Rome Statute.
In late 2002, various legal memos were drafted within the Departments of Justice and Defence for the US President and the Defence Secretary. They considered the legality of various interrogation techniques, including waterboarding, against suspected terrorists in US custody. These lawyers were carefully selected and conventional sources for such advice were kept out of the loop. The deceptive mechanisms employed have been dissected by Professor Sands' masterpiece, and there is every reason to think that there was a conspiracy to provide legal cover for 'torture'.
Commentators upon these advices have enthusiastically proposed criminal liability for their authors. There was certainly sufficient proximity between the advices and the mistreatment. If those techniques amounted to 'torture' then could these lawyers have been criminally complicit?
It is important to note that the opinions in the Memos related to criminal liability for 'torture' under UNCAT 'as implemented' in US law. The relevant US domestic law was decidedly problematic. 'Specific intent' to cause severe pain or suffering had to be proved. Upon signing UNCAT an 'understanding' was entered by the US restricting the definition of 'torture'. The Memos offered a blizzard of tendentious definitions and analyses. These included the powers of the President as Commander in Chief. They advanced a potential defence of 'necessity', an echo of the Justice trial. Hardly any commentators have suggested a reasonable prospect of success for a US domestic prosecution. The Obama administration made a blanket choice not to prosecute anyone involved in treatment or interrogation at that time, so no ruling on criminality has been possible: a sort of 'truth and reconciliation'... without the 'truth' or the 'reconciliation'.
The Memos grossly misrepresented the gravity of the physical treatment, and the degree of physical or mental harm, required by any definition of 'torture' in international law. They were later excoriated by numerous distinguished legal experts.
But what is the necessary 'mens rea' to convict such a lawyer of complicity in torture for such an advice? There are really only three alternatives: either the prosecution has to prove that the advice was knowingly false. Or would some form of negligence, or recklessness, suffice? Or could there be absolute liability for an erroneous advice ? [ I can sense some shifting in your seats.] Let us put aside 'strict liability'.
Many of the commentators on the 'torture memos' blur this question in their enthusiasm. Any lawyer knowingly advising that illegal conduct is legal, plainly risks complicity in any consequent crime. A test requiring 'dishonesty' would allow for 'good faith' belief in the accuracy of the advice to be a complete defence. Obviously inferences as to 'good or bad faith' from all the circumstances, could be drawn by the Court.
This is a high hurdle for a prosecutor, but there are plenty of examples of lawyers being convicted on this basis. Lawyers of a certain kind had gathered around President Nixon like flies, before the Watergate scandal in 1972- 4. The offices of the Democratic Party were burgled to help Nixon. Many lawyers, including the Attorney- General John Mitchell, were convicted of obstruction of justice and perjury, on the basis that they knowingly contributed to a criminal enterprise and the cover- up.
Currently, some of Trump's lawyers have been referred to the DOJ for prosecution for various offences by the House Select Committee report on the Capitol Hill attack of 6.1.22. The reference is entirely on the basis that the lawyers acted corruptly, and knew that the purpose of overturning the 2021 election, and/or the means, were unlawful.
The Justice trial judgment does focus repeatedly upon knowledge of illegality for example of the Night and Fog decree [p. 1038]. Professor Kevin Heller reads this as then being a requirement and considers this would apply to any 'torture' memo prosecution. [ see 'The Nuremberg Trials and the Origins of International Criminal Law', p. 306- 8]
'Negligence liability' would be difficult to fit within 'Individual criminal responsibility' as defined by Art. 25.3 of the ICC Rome Statute. Knowledge and intent play the key role there. In English common law, a negligence standard for criminal complicity is quite exceptional.
Our distinguished Chair this evening in 'Torture Team' at p. 202 wrote: [Image 11] "What had to be shown to establish wrongdoing was that the lawyer had participated in the development, application or enforcement of a rule, and had done so in the knowledge that it would violate international law........... or at least that he had proceeded recklessly."
There are two arguments which could justify conviction on a negligence basis.
First, an acquittal on the basis of 'good faith': "I got the law wrong but acted honestly" would surely run the risk of giving to lawyers [of all people] a defence of 'ignorance of the law'? This would run contrary to 'common law': and to Article 32 of the Rome Statute of the ICC which excludes such a defence.
Secondly, in English law, a secondary party must have knowledge of the “essential facts” of the proposed conduct [Jogee [ UKSC 8, at paras. 9, 16 and 99], including those facts necessary to render it criminal: but that does not include knowledge that it would be a crime: NCB v Gamble  1 QB 11 at 25: and O'Neil v Gale  EWCA Civ. 1554. at paras. 11- 19.
If I went any deeper into this, I would risk subjecting you all to 'waterboredom'. So I am going to leave this as an open question.
Article 82 of the 1977 1st Protocol to 1949 Geneva Convention IV, requires that legal advisers are available to advise military commanders at all times, and especially during armed conflict. Hence, many armed forces now deploy 'embedded' legal advisers. British Brigadier Ginn has said [Law Society Gazette, [22.6.20.] 'I cannot stress enough. I would not go anywhere now on any operation without a lawyer by my side.'
Are these lawyers 'in the firing line' for criminal liability? The British Army Legal Service kindly met me and explained that this is highly unlikely, unless something goes very wrong indeed. In a combat situation, the lawyer's job is not to make a decision for example on the proportionality of an artillery strike. It is rather to ensure that the commander balances the correct factors in making that decision.
However, in other jurisdictions, a potential collateral motive may arise for these deployments. George Tenet, the CIA Director through the 'war on terror', wrote in his memoir: “In situations like this you don’t call in the tough guys; you call in the lawyers.” Why? Well, S. 1004 of the US Detainee Treatment Act, 2005, provides a defence for those directly engaged in detention or interrogations of aliens, that they did not know that any applied practice was unlawful: and includes as 'an important factor' 'good faith reliance upon advice of counsel'. These lawyers therefore provide a shield for the perpetrators.
Some embedded lawyers with Australian Special Forces in Afghanistan during 2012- 3 were criticised by the 2020 Brereton Report for having 'drunk the Koolaid' with their units. They mainly helped to cover up multiple unlawful killings of civilians. There is no sign yet of any prosecution.
I am afraid that I have been far too 'panoptic', in the spirit of Mr. Bentham. However in concluding, I feel obliged to consider the psychology of the 'Justice trial' accused, and of ourselves with our instinctive disbelief at their conduct.
Surprisingly, the 'Justice' Tribunal made some sympathetic remarks about the accused Franz Schlegelberger. Remember, he was Minister of Justice in 1941 and 42: had drafted the special laws against the 'jews and the poles': authorised the MOJ taking over of the 'Night and Fog' administration: handed over Herr Luftglas for execution after Hitler's intervention: and much else. He was convicted of war crimes and crimes against humanity and sentenced to life imprisonment. Here he is in the good times. [image 12]
He was 71 years old, and had been an appeal court judge, honorary professor of law, and author of many textbooks e.g on commercial law. He had worked for over 20 years at the highest levels of the MOJ, including through the Weimar Republic. He had refused to join the Nazi Party until ordered to do so in 1939 by Hitler personally. Finally, he resigned as Minister of Justice.
The Tribunal said of him: [IMAGE 13] "The cruelties of the system which he had helped to develop were too much for him, but he resigned too late. The damage was done. ... Schlegelberger had failed. His hesitant injustices no longer satisfied the urgent demands of the hour. He retired under fire..... We are under no misapprehension. Schlegelberger is a tragic character. He loved the life of an intellect, the work of the scholar. We believe that he loathed the evil that he did, but he sold that intellect and that scholarship to Hitler for a mess of political pottage and for the vain hope of personal security."
So, what Albert Speer did for German architecture, Schlegelberger did for German law. These are universal temptations, and perhaps, for once, a reference to Faust is not a cliche.
In Christopher Marlowe's Dr Faustus:
F. Philosophy is odious and obscure;
Both law and physic are for petty wits:
'Tis magic, magic that hath ravish'd me.
In Goethe's Faust:
I cannot reconcile myself to Jurisprudence.
Nor can I therefore greatly blame you students:
I know what science this has come to be.
All rights and laws are still transmitted
Like an eternal sickness of the race,—"
In Thomas Mann's Dr Faustus, Mephistopheles tempts the Faust figure, Leverkuhn, a composer:
"What uplifts you, what increases your feeling of power and might and domination, damn it, that is the truth... and an untruth of a kind that enhances power, holds its own against any ineffectively virtuous truth."
So these temptations are universal, and there was nothing unique about these German lawyers: no 'sonderweg'. We carry these illusions that 'normal, rational' people, trained lawyers, 'like us', cannot commit these offences. We protect ourselves by shutting away such heinous acts into a box, marked 'fanatics' or 'monsters'. An American psychiatrist, Douglas Kelley, observing the Nuremberg accused, found that, for the most part, they were 'extremely able, intelligent and high functioning people'.
In 1942, the Channel Island of Guernsey, a Crown dependency, was under German military occupation. Much of the administration, including the Courts and the police remained nominally in local hands. In June, 10 local policemen were convicted of theft in the Guernsey Royal Court. They were sentenced to imprisonment and suffered terribly in German camps. One was murdered.
This has been revealed as a 'show trial' to discredit their small acts of resistance. It was set up by the local law officers, in league with the Occupation forces. Bailiff Carey, a prominent Guernsey citizen was the Judge. [image 14] He was knighted after the war and here is his portrait, still today on the staircase of the Royal Court. The trial transcript records his ranting and abusing the accused during the trial, in terms worthy of the notorious Judge Freisler.
This same man authorised the expulsion of the few remaining Jews in Guernsey to their fate in Auschwitz, as commemorated here [image 15]. Is this not close enough to dispel our illusions?
c. Patrick O'Connor K.C.