Hans Petter Graver

The Sami People's Right to Land in Norway

Introductory note: This Journal presented in 2001 (Vol. 8, Issue 2–3) several articles on the Sami claim to land in Norway. In the spring of 2003 the Norwegian government proposed a new Finnmark Act (Proposition to the Odelsting No. 53 (2002–2003)), whereby the disputed area should be placed under a new legal entity, the Finnmark Estate (Finnmarkseiendommen). The Finnmark Estate should have a board consisting of seven members, where the Finnmark County Council and the Sami Parliament each should elect three members, and one non-voting member should be appointed by the government. The Norwegian Parliament (Stortinget) requested an expert opinion on the international law aspects of the Act. Hans Petter Graver and Geir Ulfstein were appointed by the Ministry of Justice to undertake this task, and the opinion is reproduced here in the translation provided by the Ministry (only subject to editorial adjustments). The government has since stated that it does not concur with all conclusions in the opinion, but it has indicated a willingness to consider supplemental measures to those proposed in the Act.

The Condition of Illegality and Failed Usurpations

When judges participate in a coup d’etat 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 Argument for Criminal Liability

Under international human rights law, states have an obligation to prosecute perpetrators of serious human rights violations. It has since long been shown that also judges can be responsible under international law for atrocities committed as part of the application and enforcement of municipal law. This was first established by the US Military Tribunal against leaders of the Nazi legal system and has since been confirmed by the European Court of Human Rights. Under municipal law, however, the picture is more complex. The legislation on judicial responsibility for unlawful judging varies from country to country, as do definitions of “unlawful” in relation to judicial activity.

Judges for Justice

Time has come to sum up the main findings of the book. In the introduction, I stated that the western legal tradition has common roots and a common history. This includes an ideology of law as something autonomous dedicated to protecting more general values such as justice, equality, and the rule of law that bind judges together across time and space. The book has shown how judges struggle to accommodate this ideology when it is under attack by the legislator and the executive, how they defend it, and how they depart from it. The bind is fragile and threadbare at times, at other times almost nonexistent. The fact that it is still there can, however, be seen in the way judges collaborating with authoritarian regimes still try to legitimise their actions with an appeal to this ideology. Some of them are even troubled by a bad conscience. Moreover, we must not forget that even in the deepest darkness of authoritarianism, there are judges who remain true to the ideology and work to counter the oppressive measures of the regime. Does the existence of this bind actually make life better for people living under such conditions subjected to its legal system? Unfortunately, in most cases, it does not. Nevertheless, the fact that it is there gives hope that we can improve the protection it offers. How this can be encouraged is what we turn to now.

The Judicial Role and the Rule of Law

The judge is under pressure when the legislator attacks the law. Should the judge enforce laws that intentionally and incessantly violate basic rights of individuals, deprive them of due process and the protection of the law, and submit them to draconic and disproportionate punishments? Should he contribute to turning the law into a systematic instrument of persecution on racial, political, or other grounds?

Alternative Approaches to Legal Interpretation

The increased authority of the legislator under authoritarian conditions has been studied in depth by David Dyzenhaus in his study of the South African Appellate Division under apartheid. Dyzenhaus rejects positivism as an explanation for judicial acquiescence of oppressive measures by the rulers in power. Instead, he accredits it to what he calls the “plain fact approach”. In the plain fact approach, law is applied as it exists and not according to what morality requires. The judge “looks to a pattern that exists as a matter of historical fact in the legal acts and decisions of the past, mainly those of the legislator”. The pattern to be applied is the result of an intentional design by the actual authors of the acts, the holders of power over legislation.

Judges in Special Courts

The establishment of special courts to deal with sensitive cases is common in authoritarian states. The more autonomy the regular courts enjoy, the more likely it is that the regime will establish such courts. And the less compliance the regime receives, the greater will the scope of jurisdiction be for the special courts.

The Condition of Illegality Under International Law

The basic definitions of crimes from the bench under international law were established by the US Military Tribunal in the Justice Case after the Second World War. Allied war crime tribunals based themselves on international law, and the judges were accused of the same crimes as other war criminals. The defendants were accused of participating in war crimes in their roles as leading officials in the Ministry of Justice and as prosecutors and judges in the German legal system. Some forms of war crimes were more relevant to their activities than others. Of specific importance in this respect was the development and execution of the “Night and Fog” programme, whereby civilians of occupied countries accused of alleged crimes in resistance activities against German occupying forces were spirited away for secret trial by special courts in Germany by order of the Ministry of Justice. A particular aspect of crimes against humanity is where acts were part of the extermination of a whole group of people, genocide, and where the acts were part of a systematic discrimination of a group. In addition to persecution and discrimination of own nationals on racial grounds, political persecution could also be regarded as a crime against humanity.

Holding Judges Responsible

The analysis has shown two contradictory inferences that can be drawn from historical and legal material. Nevertheless, it is clear that judges can be held responsible for exercising judicial functions within the law if by that they contribute to obvious and substantial infringements of individual rights. This is demanded by the rule of law even if it means that legislation is applied retroactively in order to achieve it and is also an obligation under international human rights regimes.

Beyond Legal Theory as Explanation

Legal positivism is the explanation that is most often suggested to explain why judges contribute to the atrocities of authoritarian regimes. A reason for this is that this explanation accords with two basic facts of judicial behaviour. The first is the tendency judges have, as everyone else, to adhere to authority. Obedience to authority is one of the most important factors that explain why people agree to commit the most horrible offences when ordered to. The second is more particular to judges and has to do with the ideology of not getting involved in politics. Particularly in situations with great political conflicts, taking a stand on the decisions and measures of the leaders of the government is perceived by judges as political action. Authority and avoidance of getting mixed up in politics are explanations of judicial complicity at the psychological and ideological levels.