Category Archives: Right to fair trial

Secret trial defendant pleads guilty to possessing terrorist document

Secret trial defendant pleads guilty to possessing terrorist document

The Guardian, October 9, 2014

Mounir Rarmoul-Bouhadjar was due to face charges in Old Bailey trial, much of which was to take place in secret

One of the defendants due to face charges in a partly secret trial has pleaded guilty to possessing a terrorist document.

Mounir Rarmoul-Bouhadjar, 26, entered the plea at the Old Bailey on Tuesday, but it was only reported on Thursday after reporting restrictions were lifted.

Rarmoul-Bouhadjar was due to go on trial next week with co-defendant Erol Incedal, also 26, with much of the case being heard behind closed doors.

Mr Justice Nicol had originally ruled that the trial should take place entirely in private with the identity of both defendants withheld and a permanent prohibition on reporting the case.

After media organisations challenged his “unprecedented” decision, three appeal judges overruled the ban on naming the defendants, both from London, who were previously known only as AB and CD.

They ruled in favour of the core of the trial being held “in camera”.

At the Old Bailey hearing on Tuesday the court was told that Rarmoul-Bouhadjar admitted possessing a “document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism, namely a document entitled Bomb making”. A second charge of improperly obtaining an identity document was dropped.

Rarmoul-Bouhadjar was in court for Tuesday’s hearing, and Incedal appeared via videolink.

Incedal will now stand trial alone next week accused of an offence contrary to section 5 of the Terrorism Act 2006 (preparation of terrorist acts) and an offence contrary to section 58 of the Terrorism Act 2000 (collection of information).

Rarmoul-Bouhadjar will be sentenced after Incedal’s trial.

What can we learn from court testimonies?

What can we learn from court testimonies?

by Elias Davidsson, 26 July 2015

In order to assess the fairness of a trial, it is essential to hear what the defendant has to say, and how it was said. Does the defendant deny the charges, express regret, sound aggressive, ask for pity, get entangled in contradictions?

An interesting case is that of Mohammed Junaid Babar who appeared on June 3, 2004 before the United States District Court at the Southern District of New York, charged inter alia by the United States of America with conspiracy to provide material support to a foreign terrorist organisation (see  As he made a plea agreement, the court asked him numerous questions, to which he answered either Yes or No. Thereafter, the learned judge said: “Mr. Babar, I would like you to tell me in your own words what you did in connection with the crimes which you’re entering a plea of guilty. Please state when the crimes occurred, where, what happened, and what your involvement in the crimes was. Please begin with the crimes set forth in count one of the information.”

Here is, according to the court transcript, what Babar said (emphasis added):

“Starting the summer of ’03, your Honor, summer of ’03, I — that’s when I first started providing, you know, funding, material support to Al Qaeda, you know, for the war in Afghanistan. And from summer ’03 to about March of ’04, I provided night vision goggles, sleeping bags, water proof socks, water proof ponchos, and money to a high ranking Al Qaeda official in South Waziristan. In summer of ’03, I handed off to someone else, you know, to send it to South Waziristan. Then in January and February ’04, I went myself, personally, to South Waziristan and handed over money to, and supplies to a high ranking Al Qaeda official.”

Thereupon the Court asked him a few questions, to which he answered with a short Yes. He then continued:

“The agreement that I with others was, A, was, you know, concerning people was, A, to provide funding that would — then I would then transport, you know, to, you know, to South Waziristan, Al Qaeda, and also to provide supplies, you know, you know, when I would give them a list of anything that I needed, and they would provide the supplies that I would need that I would then pass over in South Waziristan.”

“I just — I understood that the money and supplies that I had given to al Qaeda was supposed to be used in Afghanistan, you know, against U.S. or International, International Forces or against the Northern Alliance.”
“The activities are basically the same. It was the same. We got together with a couple of people to provide funding and to provide supplies for A1 Qaeda, and we knew what the supplies where, the supplies and weapons were going — what they were going to be used for, and we know who they were going to, and that’s what we did. We got together with people, tried to raise money and supplies and tried to give them to high ranking a1 Qaeda official to be used with the ongoing war inside of Afghanistan.”

“Count three, one of the things that we did was I set up a jihad training camp where those who wanted to go into Afghanistan where they could learn how to use weapons, and also, you know, any explosive devices that they wanted to test out over there. And I also provided lodging and transportation in Pakistan for them, and I transported them to and from the training camp. At the same time, I was aware that some of the people who attended the jihad training camp had ideas about, you know, plotting against some targets in the United Kingdom, and I provided some of the materials, like I mentioned, aluminum nitrate, ammonium nitrate and aluminum powder for them in the use of explosive devices that was then tested out at the training camp.”

“As far as the aluminum powder goes, I knew purchasing aluminum powder, what it was going to be used for, and they had told me, you know, what it would be used for, explosive device, and they wanted to, you know, plot or target some targets in the UK, and I knew purchase of aluminum powder, that’s what I was purchasing it for. And the ammonium nitrate was the same thing. Although I never purchased it, I tried to get it, but at that time I couldn’t get it. So I was able to get the aluminum powder, which I then passed along to them, which I knew where it was going to, what it was going to be used for, eventually.”

“Count four is the same as count three and I — it’s the same. You know, they wanted to set up a jihad training camp, and I provided — I, you know, provided the area and the weapons for them where they can get the training, and also provided some of the materials like aluminum powder and ammonium nitrate for the explosive devices that were used at the training camp. Also same thing, also I purchased aluminum powder, ammonium nitrate knowing it was going to be eventually be used — well, not the nitrate, the aluminum powder I purchased with the knowledge that it was going to be used for a plot somewhere in the UK, and the ammonium nitrate which I tried to purchase but wasn’t able to.”

“Count five is the same as count one and two. I tried to raise money with other people, money and gear which I mentioned before, like night vision goggles, sleeping bags, water proof socks, water proof ponchos and other military gear to then pass it onto a high ranking a1 Qaeda official in South Waziristan. And the timeframe is same with the spring, summer of ’03, up to ’04, March of ’04. And it was sometimes I passed it along to someone else. And in the beginning of ’04 I personally went to South Waziristan and I gave money and gear, the gear I just mentioned, to a high ranking a1 Qaeda official, which I knew was going to be used in the ongoing war in Afghanistan against U. S. and International forces and Northern Alliance in military operations.”
”I understood that it was involved in ongoing military operations within Afghanistan, and also that A1 Qaeda was involved in military organizations outside of Afghanistan, namely, bombings and highjackings and kidnappings outside of Afghanistan, so that’s what I understood that A1 Qaeda was involved in, those kinds of military operations.”

A casual reading of the above text reveals that Babar was not at all reporting real events or personal experience, but repeating terms he learned from the charge sheet and from those who prepared him for the trial.  Leaving aside the hesitations, duly transcribed above, a genuine account of personal experience normally includes specifics, such as locations, names, times, and other incidental information that put an action in context. The account here lacks all specifics. It is entirely abstract, smacks of a written report. Note also the repeated use of the word “provided”, a term not used colloquially, or his use of the expression “with the knowledge that”, that is only used in legal texts.

An experienced judge – and defense counsel – would hardly be oblivious to the manifestly bogus account. But perhaps they were not interested in the truth of his account, for Babar was actually working as an informant for the US government. The point here is though not the guilt or innocence of Babar, but the importance of studying testimonies. While in this case, the transcript alone reveals the scam, sometimes court attendance, where body language can be observed, is necessary to gauge whether a witness or defendant spoke the truth.  The bottom line is that in order to assess the fairness of criminal trials, particularly where political issues are involved, such as terrorism, it is incumbent to obtain access to verbatim court transcripts and if possible, to audio or video recordings of such proceedings.  Any attempts to restrict such access in this type of cases must be regarded as an attempt to corrupt the course of justice.

Discovering secret dockets

Discovering secret dockets

Reporters Committee for Freedom of the Press

Reporters check court dockets to find out what cases have been filed in courts across the country. The docket reveals the case number assigned by the court, the parties’ names, and a brief entry of each document filed or action taken in the case. Normally, all of this information is public record and can be obtained either from the court clerk’s office, the court’s public inquiry computer terminals, the court’s Web site, or through PACER, an electronic public access service where federal court docket information can be accessed for a fee. The information on the docket is evidence that a particular case exists and allows someone to track the case through the judicial system.

According to a survey by The Reporters Committee for Freedom of the Press for this guide, federal courts and many state courts allow for “super-secret” cases, which never appear on the public docket or are hidden using pseudonyms, such as “Sealed v. Sealed” or “John Doe v. Jane Doe.” Courts that maintain these secret dockets will neither confirm nor deny the existence of such cases. As a result, these cases proceed through the court system undetected.

Terrorism “outside the orbit”

The most recent examples of secret dockets involve cases against accused terrorists. On May 1, Iyman Faris pleaded guilty to providing material support to al Qaida, including researching ultralight airplanes, procuring lightweight sleeping bags, plane tickets and cell phones, and assisting in a plan to destroy the Brooklyn Bridge for the terrorist organization. But his arrest, indictment and, ultimately, his plea bargain with the Justice Department proceeded in absolute secrecy.

Faris’ case may have remained a secret were it not for two Newsweek reporters, Michael Isikoff and Mark Hosenball, who discovered through intelligence documents that Faris was suspected of working for key al Qaida operative Khalid Shaikh Mohammed. In a June 18, 2003 article, the reporters speculated whether Faris was on the run, had disappeared or had been captured. For individuals such as Faris, there is “a new category that seems to be evolving outside the orbit of the criminal-justice system,” the Newsweek reporters wrote.

Only after Newsweek reported on Faris did Attorney General John Ashcroft reveal that Faris had pleaded guilty to terrorist charges more than a month earlier. The Justice Department denied that the Newsweek story had anything to do with Ashcoft’s June 19 press conference in which he first announced the capture of Faris and his plea agreement.

“Our need to keep it secret had dissipated,” said Mark Corallo, a spokesperson for the Justice Department.

The Justice Department will not divulge how many other individuals are being held in secret on terrorism charges. “We have been very consistent in not discussing exact numbers,” Corallo said. “Even though it seems like innocuous information, it is not.”

Corallo claimed that providing numbers of individuals arrested on terrorism charges would “give a road map to the terrorists.” Terrorist organizations could determine how many terrorists the Justice Department has captured and monitor the government’s progress, he explained.

But the government never has explained how a terrorist operative could be in U.S. control for months and why the terrorist organization with which he is allegedly involved could not determine that its operative was missing, said Lee Gelernt, an attorney for the American Civil Liberties Union.

This debate raises the question: Is such secrecy really needed to protect national security or is it being used to protect the government from scrutiny?

It was only through a court clerk’s mistake that the Miami Daily Business Review discovered the case of Mohamed Kamel Bellahouel, who apparently filed suit in a federal court in Florida against Monica S. Wetzel, a former warden at the Federal Correctional Institution in South Miami-Dade County.

According to the Business Review, Bellahouel “was once mistakenly suspected of involvement with terrorists” and appears to have filed a petition seeking freedom from unlawful imprisonment.However, the public docket will not reveal that Bellahouel’s case even exists or why his case is pending before the U.S. Court of Appeals in Atlanta (11th Cir.).

While no one knows how many cases such as Bellahouel’s exist, secret dockets are not limited to cases involving terrorism.

Secret crimes

Attorneys for alleged Columbian drug trafficker Fabio Ochoa-Vasquez discovered an entire system of “dual docketing” in U.S. District Court in Florida that deprived them of information for their client’s defense.

Ochoa alleges that a government informant bribed him and that for $30 million he would receive no more than a five-year sentence. Ochoa also alleges that another government informant told him that a U.S. program existed in which drug traffickers could pay their way to a reduced sentence and that two traffickers, Nicholas Bergonzoli and Julio Correa, had already participated in the program.

Even though Bergonzoli pleaded guilty to importing cocaine and an attorney acknowledged representing Correa in “a cooperation agreement with the government,” the Florida federal court docket does not reflect that these cases even exist, according to attorneys for Ochoa, who in May 2003 filed a brief requesting the elimination of the “dual docketing” system and disclosure of sealed proceedings to the Eleventh Circuit.

Not only does this type of secrecy deprive Ochoa of his due process rights, it is a violation of the First Amendment and common law rights of access to judicial proceedings, Ochoa’s attorneys argued.

The use of secret dockets by the federal Southern District of Florida conflicts with a decision issued by the Eleventh Circuit ten years earlier in United States v. Valenti. In that case, the government charged criminal defense attorney Charles Corces and state prosecutor John Valenti with conspiring to obtain favorable treatment for criminal defendants who paid Valenti. After the two were indicted, the state dismissed the case; however, a secret docket prevented the public from learning about closed pretrial bench conferences and the filing of in-camera pretrial motions. A reporter from the St. Petersburg Times learned about the secret docket when he observed a closed-bench conference and sought access to the transcripts.

On appeal to the Eleventh Circuit, the court held that the “maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings.”

According to Ochoa’s attorneys, this holding “is consistent with every circuit that has decided a similar question.”

However, while the law disfavors secret dockets, they are still used by federal and state courts to hide sealed cases. When an entire case is sealed, rather than individual documents, federal courts either remove the case from the public docket or replace the parties’ names with anonymous pseudonyms such as “Sealed v. Sealed.” At least 46 U.S. district courts across the country allow for these types of secret docketing procedures. Such a system makes it virtually impossible for the public and press to know what types of cases are being sealed or to challenge the constitutionality of the sealing orders.

– See more at:

John O. Brennan, Assistant to the President for Homeland Security, justifies drone attacks

The White House  Office of the Press Secretary
June 29, 2011

Remarks of John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, on Ensuring al-Qa’ida’s Demise –

As Prepared for Delivery
Paul H. Nitze School of Advanced International Studies, Washington, D.C.

Good afternoon.  Thank you, Dean Einhorn, for your very warm welcome and for your decades of service—in government, global institutions and here at SAIS.  And it’s a special pleasure to be introduced by John McLaughlin, a friend and colleague of many years and one of our nation’s great intelligence professionals.

It’s a pleasure to be here at the Paul H. Nitze School of Advanced International Studies, an institution that has instilled in generations of public servants the pragmatic approach to problem-solving that is essential for the effective conduct of foreign policy.  I especially want to thank the Merrill Center for Strategic Studies for its emphasis on national security and for joining with the Office of the Director of National Intelligence to introduce students to our Intelligence Community and inspiring the next generation of intelligence professionals.     

It’s wonderful to see so many friends and colleagues who I’ve had the privilege to work with over many years.  You have devoted your lives to protecting our nation from many threats, including the one that brings me here today, and one that has claimed the lives of some of our friends and colleagues—that is the continued terrorist threat from al-Qa’ida.  

Today, we are releasing President Obama’s National Strategy for Counterterrorism, which formalizes the approach that we’ve been pursuing and adapting for the past two and half years to prevent terrorist attacks and to ensure al-Qa’ida’s demise.  I’m pleased that we are joined today by dedicated professionals from across the federal government who helped to shape our strategy and who work tirelessly every day to keep our country safe.  Thank you for being here.

An unclassified summary of our strategy is being posted today to the White House website,   In the time I have with you, I’d like to put our strategy in context, outline its key goals and principals, and describe how we’re putting these principles into practice to protect the American people.    

I want to begin with the larger strategic environment that shapes our counterterrorism efforts.  This starts with the recognition that this counterterrorism strategy is only one part of President Obama’s larger National Security Strategy.  This is very important.  Our counterterrorism policies do not define our entire foreign policy; rather, they are a vital part of—and are designed to reinforce—our broader national security interests.

Since taking office, President Obama has worked to restore a positive vision of American leadership in the world—leadership defined, not by the threats and dangers that we will oppose, but by the security, opportunity and dignity that America advances in partnership with people around the world.  This has enhanced our national security in many areas against many threats.  

At the same time, many of the President’s broader foreign policy and national security initiatives also help to achieve our more focused counterterrorism goals.  They do so by addressing the political, economic and social conditions that can sometimes fuel violent extremism and push certain individuals into the arms of al-Qa’ida.

For instance, when our diplomats promote the peaceful resolution of political disputes and grievances, when our trade and economic policies generate growth that lifts people out of poverty, when our development experts support good governance that addresses people’s basic needs, when we stand up for universal human rights—all of this can also help undermine violent extremists and terrorists like al-Qa’ida.  Peaceful political, economic, and social progress undermines the claim that the only way to achieve change is through violence.  It can be a powerful antidote to the disillusionment and sense of powerlessness that can make some individuals more susceptible to violent ideologies.

Our strategy recognizes that our counterterrorism efforts clearly benefit from—and at times depend on—broader foreign policy efforts, even as our CT strategy focuses more narrowly on preventing terrorist attacks against our interests, at home and abroad.

This, obviously, is also the first counterterrorism strategy to reflect the extraordinary political changes that are sweeping the Middle East and North Africa.  It’s true that these changes may bring new challenges and uncertainty in the short-term, as we are seeing in Yemen.  It also is true that terrorist organizations, and nations that support them, will seek to capitalize on the instability that change can sometimes bring.  That is why we are working closely with allies and partners to make sure that these malevolent actors do not succeed in hijacking this moment of hope for their own violent ends.  

But as President Obama has said, these dramatic changes also mark an historic moment of opportunity.  So too for our counterterrorism efforts.  For decades, terrorist organizations like al-Qa’ida have preached that the only way to affect change is through violence.  Now, that claim has been thoroughly repudiated, and it has been repudiated by ordinary citizens, in Tunisia and Egypt and beyond, who are changing and challenging their governments through peaceful protest, even as they are sometimes met with horrific brutality, as in Libya and Syria.  Moreover, these citizens have rejected the medieval ideology of al-Qa’ida that divides people by faith and gender, opting instead to work together—Muslims and Christians, men and women, secular and religious.

It is the most profound change in the modern history of the Arab world, and al-Qa’ida and its ilk have been left on the sidelines, watching history pass them by.  Meanwhile, President Obama has placed the United States on the right side of history, pledging our support for the political and economic reforms and universal human rights that people in the region are demanding.  This, too, has profound implications for our counterterrorism efforts.

Against this backdrop, our strategy is very precise about the threat we face and the goals we seek.  Paul Nitze once observed that “one of the most dangerous forms of human error is forgetting what one is trying to achieve.”  President Obama is adamant that we never forget who we’re fighting or what we’re trying to achieve.

Let me start by saying that our strategy is not designed to combat directly every single terrorist organization in every corner of the world, many of which have neither the intent nor the capability to ever attack the United States or our citizens.

Our strategy of course recognizes that there are numerous nations and groups that support terrorism in order to oppose U.S. interests.  Iran and Syria remain leading state sponsors of terrorism.  Hezbollah and HAMAS are terrorist organizations that threaten Israel and our interests in the Middle East.  We will therefore continue to use the full range of our foreign policy tools to prevent these regimes and terrorist organizations from endangering our national security.

For example, President Obama has made it clear that the United States is determined to prevent Iran from acquiring nuclear weapons.  And we will continue working closely with allies and partners, including sharing and acting upon intelligence, to prevent the flow of weapons and funds to Hezbollah and HAMAS and to prevent attacks against our allies, citizens or interests.

But the principal focus of this counterterrorism strategy—and the focus of our CT efforts since President Obama took office—is the network that poses the most direct and significant threat to the United States, and that is al-Qa’ida, its affiliates and its adherents.  We use these terms deliberately.

It is al-Qa’ida, the core group founded by Usama bin Laden, that has murdered our citizens, from the bombings of our embassies in Kenya and Tanzania to the attack on the U.S.S. Cole to the attacks of September 11th, which also killed citizens of more than 90 other countries.

It is al-Qa’ida’s affiliates—groups that are part of its network or share its goals—that have also attempted to attack our homeland.  It was al-Qa’ida in the Arabian Peninsula (AQAP), based in Yemen, that attempted to bring down that airliner over Detroit and which put explosives on cargo planes bound for the United States.  It was the Pakistani Taliban that sent Faisal Shahzad on his failed attempt to blow up an SUV in Times Square.

And it is al-Qa’ida’s adherents—individuals, sometimes with little or no direct physical contact with al-Qa’ida, who have succumbed to its hateful ideology and who have engaged in, or facilitated, terrorist activities here in the United States.  These misguided individuals are spurred on by the likes of al-Qaida’s Adam Gadahn and Anwar al-Awlaki in Yemen, who speak English and preach violence in slick videos over the Internet.  And we have seen the tragic results, with the murder of a military recruiter in Arkansas two years ago and the attack on our servicemen and women at Fort Hood.

This is the first counterterrorism strategy that focuses on the ability of al-Qa’ida and its network to inspire people in the United States to attack us from within.  Indeed, this is the first counterterrorism strategy that designates the homeland as a primary area of emphasis in our counterterrorism efforts.       

Our strategy is also shaped by a deeper understanding of al-Qa’ida’s goals, strategy, and tactics. I’m not talking about al-Qa’ida’s grandiose vision of global domination through a violent Islamic caliphate.  That vision is absurd, and we are not going to organize our counterterrorism policies against a feckless delusion that is never going to happen.  We are not going to elevate these thugs and their murderous aspirations into something larger than they are.

Rather, President Obama is determined that our foreign and national security policies not play into al-Qa’ida’s strategy or its warped ideology.  Al-Qa’ida seeks to terrorize us into retreating from the world stage.  But President Obama has made it a priority to renew American leadership in the world, strengthening our alliances and deepening partnerships.  Al-Qa’ida seeks to portray America as an enemy of the world’s Muslims.  But President Obama has made it clear that the United States is not, and never will be, at war with Islam.   

Al-Qa’ida seeks to bleed us financially by drawing us into long, costly wars that also inflame anti-American sentiment.  Under President Obama, we are working to end the wars in Iraq and Afghanistan responsibly, even as we keep unrelenting pressure on al-Qa’ida.  Going forward, we will be mindful that if our nation is threatened, our best offense won’t always be deploying large armies abroad but delivering targeted, surgical pressure to the groups that threaten us.

Al-Qa’ida seeks to portray itself as a religious movement defending the rights of Muslims, but the United States will continue to expose al-Qa’ida as nothing more than murderers.  They purport to be Islamic, but they are neither religious leaders nor scholars; indeed, there is nothing Islamic or holy about slaughtering innocent men, women, and children.  They claim to protect Muslims, but the vast majority of al-Qa’ida’s victims are, in fact, innocent Muslim men, women, and children.  It is no wonder that the overwhelmingly majority of the world’s Muslims have rejected al-Qa’ida and why its ranks of supporters continue to decline.

Just as our strategy is precise about who our enemy is, it is clear about our posture and our goal.  This is a war—a broad, sustained, integrated and relentless campaign that harnesses every element of American power.  And we seek nothing less than the utter destruction of this evil that calls itself al-Qa’ida.

To achieve this goal, we need to dismantle the core of al-Qa’ida—its leadership in the tribal regions of Pakistan—and prevent its ability to reestablish a safe haven in the Pakistan–Afghanistan region.  In other words, we aim to render the heart of al-Qa’ida incapable of launching attacks against our homeland, our citizens, or our allies, as well as preventing the group from inspiring its affiliates and adherents to do so.

At the same time, ultimately defeating al-Qa’ida also means addressing the serious threat posed by its affiliates and adherents operating outside South Asia.  This does not require a “global” war, but it does require a focus on specific regions, including what we might call the periphery—places like Yemen, Somalia, Iraq, and the Maghreb.  This is another important distinction that characterizes this strategy.  As the al-Qa’ida core has weakened under our unyielding pressure, it has looked increasingly to these other groups and individuals to take up its cause, including its goal of striking the United States.

To destroy al-Qa’ida, we are pursuing specific and focused counterterrorism objectives.  
For example:

    We are protecting our homeland by constantly reducing our vulnerabilities and adapting and updating our defenses.
    We are taking the fight to wherever the cancer of al-Qa’ida manifests itself, degrading its capabilities and disrupting its operations.
    We are degrading the ability of al-Qa’ida’s senior leadership to inspire, communicate with, and direct the operations of its adherents around the world.
    We are denying al-Qa’ida any safe haven—the physical sanctuary that it needs to train, plot and launch attacks against us.
    We are aggressively confronting al-Qa’ida’s ideology, which attempts to exploit local—and often legitimate—grievances in an attempt to justify violence.
    We are depriving al-Qa’ida of its enabling means, including the illicit financing, logistical support, and online communications that sustain its network.
    And we are working to prevent al-Qa’ida from acquiring or developing weapons of mass destruction, which is why President Obama is leading the global effort to secure the world’s vulnerable materials in four years.

In many respects, these specific counterterrorism goals are not new.  In fact, they track closely with the goals of the previous administration.  Yet this illustrates another important characteristic of our strategy.  It neither represents a wholesale overhaul—nor a wholesale retention—of previous policies.

President Obama’s approach to counterterrorism is pragmatic, not ideological.  It’s based on what works.  It builds upon policies and practices that have been instituted and refined over the past decade, in partnership with Congress—a partnership we will continue.  And it reflects an evolution in our understanding of the threat, in the capabilities of our government, the capacity of our partners, and the tools and technologies at our disposal.        

What is new—and what I believe distinguishes this strategy—is the principles that are guiding our efforts to destroy al-Qa’ida.

First, we are using every lawful tool and authority available.  No single agency or department has sole responsibility for this fight because no single department or agency possesses all the capabilities needed for this fight.  This is—and must be—a whole-of-government effort, and it’s why the Obama Administration has strengthened the tools we need.

We’ve strengthened intelligence, expanding human intelligence and linguistic skills, and we’re constantly working to improve our capabilities and learn from our experiences.  For example, following the attack at Fort Hood and the failed attack over Detroit, we’ve improved the analytic process, created new groups to track threat information, and enhanced cooperation among our intelligence agencies, including better information sharing so that all threats are acted upon quickly.  

We’ve strengthened our military capabilities. We increased the size of our Special Forces, sped up the deployment of unique assets so that al-Qa’ida enjoys no safe haven, and ensured that our military and intelligence professionals are working more closely than ever before.

We’ve strengthened homeland security with a multi-layered defense, bolstering security at our borders, ports and airports; improving partnerships with state and local governments and allies and partners, including sharing more information; increasing the capacity of our first responders; and preparing for bioterrorism.  In taking these steps, we are finally fulfilling key recommendations of the 9/11 Commission.

Learning the lessons of recent plots and attempted attacks, we’ve increased aviation security by strengthening watchlist procedures and sharing information in real-time; enhancing screening of cargo; and—for the first time—ensuring 100 percent screening of all passengers traveling in, to, and from the United States, which was another recommendation of the 9/11 Commission.  And we are constantly assessing and improving our defenses, as we did in replacing the old color-coded threat system with a more targeted approach that provides detailed information about specific, credible threats and suggested protective measures.

In addition, we are using the full range of law enforcement tools as part of our effort to build an effective and durable legal framework for the war against al-Qa’ida.  This includes our single most effective tool for prosecuting, convicting, and sentencing suspected terrorists—and a proven tool for gathering intelligence and preventing attacks—our Article III courts.  It includes reformed military commissions, which at times offer unique advantages.  And this framework includes the recently renewed PATRIOT Act.  In short, we must have a legal framework that provides our extraordinary intelligence, counterterrorism, and law enforcement professionals with all the lawful tools they need to do their job and keep our country safe.  We must not tie their hands.

For all these tools to work properly, departments and agencies across the federal government must work cooperatively.  Today, our personnel are working more closely together than ever before, as we saw in the operation that killed Usama bin Laden.  That success was not due to any one single person or single piece of information.  It was the result of many people in many organizations working together over many years.  And that is what we will continue to do.

Even as we use every tool in our government, we are guided by a second principle—the need for partnership with institutions and countries around the world, as we recognize that no one nation alone can bring about al-Qa’ida’s demise.  Over the past decade, we have made enormous progress in building and strengthening an international architecture to confront the threat from al-Qa’ida.  This includes greater cooperation with multilateral institutions such as the United Nations, our NATO allies, and regional organizations such as the Association of Southeast Asian Nations and the African Union.

Over the past two and a half years, we have also increased our efforts to build the capacity of partners so they can take the fight to al-Qa’ida in their own countries.  That is why a key element of the President’s strategy in Afghanistan is growing Afghan security forces.  It’s why we’ll soon begin a transition so that Afghans can take responsibility for their own security.  And it’s why we must continue our cooperation with Pakistan.

In recent weeks we’ve been reminded that our relationship with Pakistan is not without tension or frustration.  We are now working with our Pakistani partners to overcome differences and continue our efforts against our common enemies.  It is essential that we do so.  As frustrating as this relationship can sometimes be, Pakistan has been critical to many of our most significant successes against al-Qa’ida.  Tens of thousands of Pakistanis—military and civilian—have given their lives in the fight against militancy.  And despite recent tensions, I am confident that Pakistan will remain one of our most important counterterrorism partners.

These kinds of security partnerships are absolutely vital.  The critical intelligence that allowed us to discover the explosives that AQAP was shipping to the United States in those cargo planes was provided by our Saudi Arabian partners.   Al-Qa’ida in Iraq has suffered major losses at the hands of Iraqi security forces, trained by the United States.  Despite the ongoing instability, our counterterrorism cooperation with Yemen continues, and I would argue that the recent territorial gains made by militants linked to AQAP only makes our CT partnership with Yemen more important.

Around the world, we will deepen our security cooperation with partners wherever al-Qa’ida attempts to take root, be it Somalia, the Sahel or Southeast Asia.  For while al-Qa’ida seeks to depict this fight as one between the world’s Muslims and the United States, it is actually the opposite—the international community, including Muslim-majority nations and Muslim communities, united against al-Qa’ida.

This leads to the third principle of our strategy—rather than pursuing a one-size fits-all approach, we recognize that different threats in different places demand different tools.  So even as we use all the resources at our disposal against al-Qa’ida, we will apply the right tools in the right way and in the right place, with laser focus.

In some places, such as the tribal regions between Afghanistan and Pakistan, we will deliver precise and overwhelming force against al-Qa’ida.  Whenever possible, our efforts around the world will be in close coordination with our partners.  And, when necessary, as the President has said repeatedly, if we have information about the whereabouts of al-Qa’ida, we will do what is required to protect the United States—as we did with bin Laden.

In some places, as I’ve described, our efforts will focus on training foreign security services.  In others, as with our Saudi Arabian and Gulf state partners, our focus will include shutting down al-Qa’ida’s financial pipelines.  With longtime allies and partners, as in Europe, we’ll thwart attacks through close intelligence cooperation.  Here in the United States—where the rule of law is paramount—it’s our federal, state, and local law enforcement and homeland security professionals who rightly take the lead.  Around the world, including here at home, we will continue to show that the United States offers a vision of progress and justice, while al-Qa’ida offers nothing but death and destruction.

Related to our counterterrorism strategy, I would also note that keeping our nation secure also depends on strong partnerships between government and communities here at home, including Muslim and Arab Americans, some of whom join us today.  These Americans have worked to protect their communities from al-Qa’ida’s violent ideology and they have helped to prevent terrorist attacks in our country.  Later this summer, the Obama Administration will unveil its approach for partnering with communities to prevent violent extremism in the United States.  And a key tenet of this approach is that when it comes to protecting our country, Muslim Americans are not part of the problem, they’re part of the solution.    

This relates to our fourth principle—building a culture of resilience here at home.  We are doing everything in our power to prevent another terrorist attack on our soil.  At the same time, a responsible, effective counterterrorism strategy recognizes that no nation, no matter how powerful—including a free and open society of 300 million Americans—can prevent every single threat from every single individual who wishes to do us harm.  It’s not enough to simply be prepared for attacks, we have to be resilient and recover quickly should an attack occur.

So, as a resilient nation, we are constantly improving our ability to withstand any attack—especially our critical infrastructure, including cyber—thereby denying al-Qa’ida the economic damage and disruption it seeks.  As a resilient government, we’re strengthening the partnerships that help states and localities recover quickly.  And as a resilient people, we must remember that every one of us can help deprive al-Qa’ida of the success it seeks.  Al-Qa’ida wants to terrorize us, so we must not give in to fear.  They want to change us, so we must stay true to who we are.

Which brings me to our final principle, in fact, the one that guides all the others—in all our actions, we will uphold the core values that define us as Americans.  I have spent more than thirty years working on behalf of our nation’s security.  I understand the truly breathtaking capabilities of our intelligence and counterterrorism communities.  But I also know that the most powerful weapons of all—which we must never forsake—are the values and ideals that America represents to the world.

When we fail to abide by our values, we play right into the hands of al-Qa’ida, which falsely tries to portray us as a people of hypocrisy and decadence.  Conversely, when we uphold these values it sends a message to the people around the world that it is America—not al-Qa’ida—that represents opportunity, dignity, and justice.  In other words, living our values helps keep us safe.

So, as Americans, we stand for human rights.  That is why, in his first days in office, President Obama made it clear that the United States of America does not torture, and it’s why he banned the use of enhanced interrogation techniques, which did not work.  As Americans, we will uphold the rule of law at home, including the privacy, civil rights, and civil liberties of all Americans.  And it’s because of our commitment to the rule of law and to our national security that we will never waver in our conviction that the United States will be more secure the day that the prison at Guantanamo Bay is ultimately closed.

Living our values—and communicating to the world what America represents—also directly undermines al-Qa’ida’s twisted ideology.  When we remember that diversity of faith and background is not a weakness in America but a strength, and when we show that Muslim Americans are part of our American family, we expose al-Qa’ida’s lie that cultures must clash.  When we remember that Islam is part of America, we show that America could never possibly be at war with Islam.

These are our principles, and this is the strategy that has enabled us to put al-Qa’ida under more pressure than at any time since 9/11.  With allies and partners, we have thwarted attacks around the world.  We have disrupted plots here at home, including the plan of Najibullah Zazi, trained by al-Qa’ida to bomb the New York subway.

We have affected al-Qa’ida’s ability to attract new recruits.  We’ve made it harder for them to hide and transfer money, and pushed al-Qa’ida’s finances to its weakest point in years.  Along with our partners, in Pakistan and Yemen, we’ve shown al-Qa’ida that it will enjoy no safe haven, and we have made it harder than ever for them to move, to communicate, to train, and to plot.

Al-Qa’ida’s leadership ranks have been decimated, with more key leaders eliminated in rapid succession than at any time since 9/11.  For example, al-Qa’ida’s third-ranking leader, Sheik Saeed al-Masri—killed.  Ilyas Kashmiri, one of al-Qa’ida’s most dangerous commanders—reportedly killed.  Operatives of AQAP in Yemen, including Ammar al-Wa’ili, Abu Ali al-Harithi, and Ali Saleh Farhan—all killed.  Baitullah Mahsud, the leader of the Pakistani Taliban—killed.  Harun Fazul, the leader of al-Qa’ida in East Africa and the mastermind of the bombings of our embassies in Africa—killed by Somali security forces.

All told, over the past two and half years, virtually every major al-Qa’ida affiliate has lost its key leader or operational commander, and more than half of al-Qa’ida’s top leadership has been eliminated.  Yes, al-Qa’ida is adaptive and resilient and has sought to replace these leaders, but it has been forced to do so with less experienced individuals.  That’s another reason why we and our partners have stepped up our efforts.  Because if we hit al-Qa’ida hard enough and often enough, there will come a time when they simply can no longer replenish their ranks with the skilled leaders they need to sustain their operations.  And that is the direction in which we’re headed today.

Now, with the death of Usama bin Laden, we have struck our biggest blow against al-Qa’ida yet.  We have taken out al-Qa’ida’s founder, an operational commander who continued to direct his followers to attack the United States and, perhaps most significantly, al-Qa’ida’s symbolic figure who has inspired so many others to violence.  In his place, the organization is left with Ayman al-Zawahiri, an aging doctor who lacks bin Laden’s charisma and perhaps the loyalty and respect of many in al-Qa’ida.  Indeed, the fact that it took so many weeks for al-Qa’ida to settle on Zawahiri as its new leader suggests possible divisions and disarray at the highest levels.

Taken together, the progress I’ve described allows us—for the first time—to envision the demise of al-Qa’ida’s core leadership in the coming years.  It will take time, but make no mistake, al-Qa’ida is in its decline.  This is by no means meant to suggest that the serious threat from al-Qa’ida has passed; not at all.  Zawahiri may attempt to demonstrate his leadership, and al-Qa’ida may try to show its relevance, through new attacks.  Lone individuals may seek to avenge bin Laden’s death.  More innocent people may tragically lose their lives.

Nor would the destruction of its leadership mean the destruction of the al-Qa’ida network.  AQAP remains the most operationally active affiliate in the network and poses a direct threat to the United States.  From the territory it controls in Somalia, Al-Shabaab continues to call for strikes against the United States.  As a result, we cannot and we will not let down our guard.  We will continue to pummel al-Qa’ida and its ilk, and we will remain vigilant at home.

Still, as we approach the 10th anniversary of the 9/11 attacks, as Americans seek to understand where we stand a decade later, we need look no further than that compound where bin Laden spent his final days.  There he was, holed-up for years, behind high prison-like walls, isolated from the world.  But even he understood the sorry state of his organization and its ideology.

Information seized from that compound reveals bin Laden’s concerns about al-Qa’ida’s long-term viability.  He called for more large-scale attacks against America, but encountered resistance from his followers and he went for years without seeing any spectacular attacks.  He saw his senior leaders being taken down, one by one, and worried about the ability to replace them effectively.

Perhaps most importantly, bin Laden clearly sensed that al-Qa’ida is losing the larger battle for hearts and minds.  He knew that al-Qa’ida’s murder of so many innocent civilians, most of them Muslims, had deeply and perhaps permanently tarnished al-Qa’ida’s image in the world.  He knew that he had failed to portray America as being at war with Islam.  In fact, he worried that our recent focus on al-Qa’ida as our enemy had prevented more Muslims from rallying to his cause, so much so that he even considered changing al-Qa’ida’s name.  We are left with that final image seen around the world—an old terrorist, alone, hunched over in a blanket, flipping through old videos of a man and a movement that history is leaving behind.

This fight is not over.  But guided by the strategy we’re releasing today, we will never waver in our efforts to protect the American people.  We will continue to be clear and precise about our enemy.  We will continue to use every tool at our disposal, and apply them wisely.  We will continue to forge strong partnerships around the world and build a culture of resilience here at home.  And as Americans, we will continue to uphold the ideals and core values that inspire the world, define us as people and help keep us safe.  

President Obama said it best last week—we have put al-Qa’ida on a path to defeat, and we will not relent until the job is done.  Thank you all very much.

The case of Muhammad Haidar Zammar


The case of Muhammad Haidar Zammar1

By Elias Davidsson (January 2014)

How German leaders conspired with the U.S. and Syria in covering-up a secret operation

1. Who is Zammar?

Muhammad Haidar Zammar (also written Mohammad or Mohammed Haydar) was born in Aleppo, Syria in 1961. He moved to Germany with his family when he was ten years old and became a German citizen in 1982. According to intelligence services, he participated in the war against the occupation of Afghanistan by Soviet forces and in the civil war in ex-Yugoslavia, on the Bosnian side. According to these sources, Zammar decided in 1991 to dedicate himself fully to “jihad”, whatever that means.

2. Why is Zammar’s case relevant for understanding the conduct of Mohammed El Amir Atta?

The reason for examining thoroughly the case of Zammar, is that he reportedly claimed to have recruited Mohamed Atta, Marwan Alshehhi and Ziad Jarrah, three of the alleged suicide-pilots of 9/11,into the Al Qaeda network and induced them go to Afghanistan for military training.1While Zammar’s claims have not been confirmed independently, U.S. and German authorities have not denied these claims. According to unnamed U.S. investigators, Zammar is indeed believed to have recruited Mohamed Atta and his Hamburg group to become “suicide attackers”.2

Should that have been the case, the question would arise whether he acted on his own or as an operative for “higher-ups”. In the latter case, discovering the identity of these “higher-ups” would help explain the role played by Mohamed El Amir Atta and his friends, in relation to 9/11.

The present study demonstrates that Zammar was no marginal figure in relation to the group around Mohamed Atta; that the German government was aware of his key role long before 9/11; that it facilitated his departure from Germany after 9/11; and that it remains determined to hide the true function of Zammar.

3. Zammar was monitored by German intelligence long before 9/11

According to the German weekly Der Spiegel, unnamed officials said that Zammar, who obtained a German passport in 1982, had been already known to Germany’s Federal Office of the Protection of the Constitution (Bundesamt für Verfassungsschutz, or BfV) since the end of the 1980s as a militant Muslim and recruiter for “jihad”.3 According to diverse mainstream sources, German and U.S. intelligence services had Zammar under extensive observation at least since 19984, probably earlier.5They reportedly interceptedhis phone calls6, monitored his meetings7 and surveilled his movements.8 Information about the surveillance of Zammar “from the files of various German police and intelligence agencies”, was provided to the New York Times “by someone with official access to the files of the continuing investigation into the events leading to the Sept. 11 attacks.”9 German officials did not dispute the authenticity of these documents.

According to the German weekly Der Spiegel,10 the newspaper Stuttgarter Nachrichten11 and a later Spiegel article12, Turkish authorities informed their German colleagues already in 1996 that Zammar had flown more than 40 times through Istanbul and Ankara on the way to, or back from war zones. This fact was withheld from the Commission of Inquiry of the Bundestag (COI) and was not mentioned in the commission’s final report.Yet, such extensive travel by an unemployed person who depended on welfare payments, should have raised immediate alarms.

A German investigator, EKHK Kröschel, was asked by the Commission of Inquiry what was known to German intelligence about Zammar before 9/11. As part of his answer, he read from a dossier on Zammar from the Hamburg Office for the Protection of the Constitution (LfV), that predates 9/11:

“On the base of numerous information, Zammar is known to the Hamburg Office of the Protection of the Constitution as a follower of Osama bin Laden and is considered as belonging to the network of ‘Arab Afghans’. According to his own wish, Zammar underwent already in 1991 military training as a Mujahedeen in the use of infantry weapons and explosives in Pakistan and participated thereafter in combat in Afghanistan. He had presumably personal contact to Osama bin Laden, whom he admires.”

According to an unnamed investigator quoted by Der Spiegel, Zammar acted as a kind of “travel agency to Afghanistan.”Long before 9/11, it was suspected by German intelligence that Zammar organized military training for wanabee German “jihadists” in Bin Laden’s camps. According to Azam Irschid, deputy director of the Al-Muhadjirin mosque in Hamburg, Zammar was known within the Islamic community in Hamburg as a full-fledged apostle of “jihad”.13

According to Der Spiegel, the BfV tried to recruit Zammar in 1996 as an informant, an offer he supposedly declined: He was said not to serve Westerners, “only Allah and the jihad.”14He reportedly claimed to have been militarily trained in a “mujahedeen” camp already in 1991 and had got to know Bin Laden personally. Zammar, however, supposedly said that Al Qaeda considered him of little value.15 His statements cannot be independently verified. No open-source evidence exists regarding the period of surveillance, its extent, purpose and nature. There is, however, no plausible reason why mainstream media would fabricate evidence of Zammar’s surveillance by intelligence agencies, nor why such agencies would wish to promote Zammar’s bluster. In fact, when reports appeared about pre-9/11 surveillance of the Hamburg group in general and that of Zammar in particular, Germany’s intelligence agencies tried to downplay the significance of its surveillance. Yet, according to the German weekly STERN, German investigators informed the CIA about their surveillance of Zammar, suggesting thereby that they considered his activities sufficiently significant to report them to their U.S. colleagues.16

The name of Haydar Zammar did never appear in German media prior to 9/11. Public evidence of his existence appeared in German media only after he left Germany with the knowledge of the German authorities in the end of October 2001.

4.  What was the purpose of monitoring Zammar?

There is no public evidence that Zammar was questioned by German criminal investigators prior to 9/11. Had he been considered as a security threat – as later claimed by German authorities – they would have possessed at least five good reasons to invite him for questioning prior to 9/11: (1)Three Yemeni men, suspected of being members of Islamic Jihad, were arrested in Torino, Italy, on October 2, 1998, alleged to have prepared attacks on U.S. facilities in Europe. On their address list, Italian authorities found contacts of Mohamed Haydar Zammar;17 (2) The arrest of Al Qaeda suspect Mamduh Mahmud Salim in Munich in the fall of 1998, equally led to Zammar;18 (3) Zammar’s modest financial means (he was on welfare) were not commensurate with his extensive international travel of which intelligence agencies were aware; (4) After he was detained in Jordan in July 2001 and expelled from there to Germany, there existed ample grounds to debrief him;19 (5) other known “suspected extremists” or “Al Qaeda sympathizers” among Hamburg’s Muslims, monitored from as early as 1996,20 included the group around Mohamed Atta and were in permanent contact with Zammar.21If such questioning or debriefing did not take place, German intelligence and investigative authorities owe the public an explanation. Was it the result of gross negligence, or were they ordered to leave him alone? If such questioning or debriefing had taken place before 9/11, the question would arise why this fact is being suppressed and what did these interrogations reveal.

After mainstream media revealed the extensive surveillance of Zammar by German intelligence agencies prior to 9/11, German officials did not issue a denial but rather tried to downplay the significance and the extent of the surveillance. They claimed that Zammar was then not considered as an “extremist”; that “what we did not see, were concrete signs for such a violent act as occurred in New York”;22 that the surveillance had been a “routine operation,”23that intercepted phone calls did not allow to determine the identities of the later “9/11 terrorists” because callers used only first names;24 that at the time, German officials were not overly concerned of a threat emanating from Osama bin Laden25; and that nothing Zammar did was illegal at the time. As a “final proof” of Zammar’s benign intentions, Spiegel’s journalists presented the fact that he did not attempt to flee from Germany after 9/11.26

The above explanations revealed themselves later as contrived: According to Der Spiegel 45/2002, Zammar admitted in interrogations conducted in Syria, that he planned in 1998, together with several other “Islamists”, to carry out a bombing attack in Hamburg, Germany. He and his colleaguesreportedly surveilled the target to be bombed but ultimately found the attacks too risky to carry out because of security considerations. If he actually made this admission, it is surprising that nothing of these plans had transpired in the massive surveillance to which he was subjected. If his statement was the result of torture, the question arises why it was presented by Der Spiegel as a genuine admission.

5. Why was Zammar detained in Jordan in July 2001?

The German authorities reportedly knew that Zammar had been detained in July 2001 in Jordan for several days and expelled to Germany.27 He most probably was debriefed by German officials upon his return to Germany. It is, therefore, surprising that the German authorities did never mention such debriefing (or explained the lack thereof).The reasons for his detention in Jordan have never been clarified. Surprisingly, the 1460-page report by the Commission of Inquiry of the Bundestag (COI), does neither mention Zammar’s detention in Jordan nor his alleged admission to have planned a terrorist attack in Hamburg.

6. Zammar was interrogated after 9/11 in Germany and released immediately

The German authorities interrogated Zammar already six days after 9/1128. He reportedly admitted to a German judge that he had previously distributed Osama bin Laden’s “Declaration of War against the Americans” to Muslims in Germany.29 It was not clear why he was presented to a judge. According to Der Spiegel journalist Holger Stark, this was no mere interrogation but actually a “trial”, which was “not open to the public”.30 At the time he made the aforementioned admission, Osama bin Laden was already widely considered as the instigator of the 9/11 attacks. German officials knew after 9/11 that Zammar had in the past entertained “intensive contacts” with the alleged perpetrators of 9/11, i.e. to Atta, Alshehhi and Jarrah, as well as to the fugitive Ramzi Binalshibh.31 The authorities also knew that Zammar travelled extensively but had not the financial means to pay for his travel himself. The fact that Zammar was interrogated shortly after 9/11 was not reported at the time in German media. Yet, Der Spiegel was apparently informed of Zammar’s interrogation, for it interviewed Zammar four days later.32 But Der Spiegel mentioned its interview only in 2002. In its extensive report regarding the Hamburg group published on October 15, 2001, Der Spiegel did not mention Zammar at all.33 The contents of Der Spiegel’s interview with Zammar were never published.

It took four weeks after Zammar’s interrogation for Germany’s Attorney General’s Office to initiate a criminal investigation of Zammar as a suspected supporter of a terrorist organisation. The evidence prompting this criminal investigation included – in addition to what the authorities knew before 9/11 –incomplete and untrue statements made by Zammar to the judge on September 17, particularly about his contacts withthe alleged perpetrators of 9/11.34 It was revealed in 2007 that the investigation of Zammar, initiated in 2001, had not yet been closed.35

It was revealed in the report of the Commission of Inquiry of the Bundestag, that merely hours after the 9/11 attacks, the decision was adopted by the German Federal Criminal Police (BKA) to establish a special unit, entitled “Besondere Aufbauorganisation USA” (BAO USA) – a peculiar name given to that unit – whose role was to “take the appropriate measures regarding the investigations by the Office of the Attorney General in relation to the attacks of 9/11 and to ensure national and international obligations of informational cooperation.”36The unit employed at times more than 600 people37, and hosted at one time fifteen FBI agents.38 The then director of the Office of the Chancellor, Frank-Walter Steinmeier, told to the Commission of Inquiry: “It was and remains for me entirely self-evident that we cooperate – within our law – with the USA.The USA together with our European partners are and remain allies, also and particularly in the struggle against international terrorism.”39

Manfred Klink, who headed in 2001 the BAO-USA task force, informed the Commission of Inquiry, that Zammar was considered at the time “a very dangerous islamist fundamentalist, who could be expected at any time to participate in plotting new terrorist attacks.”40 Due to the alleged dangerousness of Zammar, the Office of the Attorney General also instituted after 9/11 a covert and systematic observation of Zammar. On the base of this observation, German officials learned that Zammar had booked a flight to Morocco.The Attorney General kept Germany’s Chancellor’s Office informed about both the investigation and the surveillance.41 Germany’s leaders manifestly considered Zammar as a key player in a murky operation.

Yet, officials explained later that the evidence on Zammar they possessed was not sufficient for detaining him as a suspect.Transcripts of his interrogations by German officials have not been released to the public, though The New York Times somehow obtained a copy of one such transcript from which it selectively quoted certain phrases.42

7. Officials allowed Zammar to leave Germany while he was under investigation

Germany’s Office of the Attorney General (OAG) was aware early on, that Zammar, while being investigated in relation to 9/11,planned to travel abroad, allegedly for personal reasons.On the base of surveillance, the OAG knew that Zammar inquired on October 17, 2001 about travel plans at the Hamburg airport.The OAG was also aware that on October 18, Zammar – claiming that he had lost his passport43 – attempted to obtain a temporary replacement passport, booked on October 24 a return flight from Hamburg to Casablanca and applied and obtained on that same day a temporary passport. The chief of the Customer Service Center at Hamburg North, Ms. Wolter, whose competence includes the issuance of passports, testified before the Commission of Inquiry that immediately after Zammar left the Center, a police officer came and told her that Zammar was under police observation. The officer wanted to know what Zammar was doing there.44

The authorities admit that they did not attempt to impede or at least delay Zammar’s travel, although he was under criminal investigation in relation to the mass-murder of 9/11. The German Federal Criminal Police Office (BKA) was actually advised by the OAG that in the case of Zammar’s departure from Germany, he should not be arrested,45 suggesting thereby the need to override an existing injunction to ban Zammar’s departure from Germany.

According to Kay Nehm, who served in 2001 as Germany’s Attorney General, he claimed before the Commission of Inquiry, that the authorities possessed in 2001 no legal means to prevent Zammar’s departure from the country.46 His claim was endorsed by the former head of the German “FBI” (BKA), Dr. Ulrich Kersten.47 This claim was, however, rejected as ludicrous by members of the opposition.48 Mounir el-Motassadeq, for example, who in the fall of 2001 was also designated by German authorities as a suspect by virtue of his friendship with Mohamed Atta and Marwan Alshehhi, was actually arrested and detained in order to prevent him from leaving Germany. Yet, in his case, no evidence existed at the time – or at any time later – of any connections between him and Osama bin Laden or Al Qaeda. The differential treatment of Mounir el Motassadeq and Zammar suggests that German authorities were not truthful about their alleged inability to prevent or delay Zammar’s departure from Germany.

The President of the BfV (Germany’s domestic intelligence service), Heinz Fromm, asked by members of the Commission of Inquiry why the authorities let Zammar, a “dangerous suspect”, leave Germany, gave the curious answer that “when he is not here, he cannot do much damage.”49 It was not reported whether the Commission’s members sniggered.

According to the German newspaper Welt Online, Zammar left Germany for Morocco on October 27, 2001. His car was reportedly found abandoned in a [Hamburg] street.50

Dr. Hansjörg Geiger, who at the time served as the Chief of the Ministry of Justice, told the Commission of Inquiry that Kay Nehm informed him on October 25, 2001 of the impending departure of Zammar from Germany scheduled two days later.51 In parallel, the coordinator of the German BND (Federal intelligence service),, Ernst Uhrlau, informed the Office of the Chancellor on October 22 or 23 about Zammar’s plans to leave Germany.52 A discussion about Zammar’s impending departure from Germany took place on October 26, 2001 at the Office of the Chancellor.53 Such high level interest in the movements of Zammar and the reluctance to arrest him, suggests that he was as a key government asset.

Another person connected to the group surrounding Mohamed Atta, who was also under surveillance by German intelligence, was Sa’eed Bahaji. He also left Germany while under observation. An unidenfied official of the BfV, using the pseudonym Jürgen Lindweiler, testified in Mounir el Motassadeq’s trial in 2003, that border control officials had to notify the BfV, should Bahaji leave Germany. He was not to be arrested but his departure date had to be immediately notified to the BfV. Yet, when Bahaji left Germany, the system surprisingly failed because the BfV was not notified about his departure.54 Was Bahaji’s departure from Germany also facilitated by the authorities?

8. German officials informed Dutch, Moroccan and U.S. intelligence services in advance about Zammar’s travels

The German authorities informed on October 26, 2001, Dutch55, Moroccan56 and U.S. authorities57 about Zammar’s travel plans, flight numbers, etc., and requested that they check whether he actually carried out his flights.58 The Moroccan authorities were reportedly informed by their German counterparts that Zammar was under criminal investigation in Germany for allegedly supporting a terrorist organisation and that he was known to have had contact with the fugitives Bahaji, Binalshibh and Essebar, accused to have been indirectly involved in the mass-murder of 9/11.59 Mr. Kröschel, who testified before the Commission of Inquiry, claimed that the main reason for informing the Moroccan authorities of Zammar’s travel was to warn the Moroccans: “Beware, here comes someone who is suspected here to have had strong contacts with the perpetrators of 9/11! He is suspected and accused here to be a supporter. Beware!”60 On November 26, 2001, German officials transmitted to the FBI information about Zammar’s family circumstances, in addition to travel details.61 It is not known what was the purpose of providing such information to the FBI.

German officials claim that they could not have envisaged at the time that, should Zammar leave Germany, he might be abducted by U.S. officials and “rendered” to a third country.62 Yet, according to a report by the Special Expert of the European Council on U.S. renditions, Dick Marty, U.S. allies were informed at a secret meeting held at the fringe of the NATO Council, as early as on October 2, 2001, about the U.S.rendition practice.63 The European chief of the CIA, Tyler Drumheller, corroborated in an interview with the German weekly STERN of March 11, 2008, that European governments and intelligence services were aware of the renditions’ practice already in the fall of 2001.64 He emphasized that he knows both Ernst Uhrlau, the then President of the BND and Dr. Steinmeier, personally, whom he said he met in the Chancellor’s Office in the fall of 2001. According to him the Germans expressed their displeasure at the time about unilateral U.S. “renditions” of terrorists from European soil, carried out without the permission of the respective governments. The CIA had then, according to Drumheller, “promised to involve our allies in the operations.” German officials, including Uhrlau and Steinmeier, emphatically rejected Drumheller’s allegations. Uhrlau said he “does not remember” having met Drumheller in the fall of 2001 but remembers having met him in Russia during a conference in 2002.65 However, he denied to have discussed renditions with him. Dr. Steinmeier, for his part, denied to have ever known, let alone met, Mr. Drumheller.66 Due to the status of Tyler Drumheller,as the chief of CIA in Europe,it is difficult to take these denials at face value.

9. Zammar disappears

Zammar was supposed to return from Morocco to Germany on December 8th, 2001. However, he did not show up to his flight. He later, when he was in Syrian detention, told a German consular official that he had been arrested in Morocco on December 8th, 2001, held there for 23 days and moved to Syria in the beginning of 2002.67

On December 13, 2001, an official of the BKA, Mr. Calame, learned that Zammar had been arrested by the Moroccan authorities.68 Yet, upon requests for information, the Moroccan authorities lied repeatedly to their German counterparts about Zammar’s fate: First, they denied that Zammar entered Morocco on October 27, 2001.69 Then they told the Germans that Zammar had left Morocco on August 15, 2001, i.e.long before his current entry into Morocco (there was no evidence that Zammar had at all traveled to Morocco in August 2001).70 Zammar was then said to have left Morocco through Agadir airport.71 Another time, that he left for Spain.72 A third time that he was expelled to Spain.73 A fourth time that he left for an “unknown destination.”74 Although aware of Morocco’s lies regarding Zammar, German officials refrained from asking their Moroccan counterparts about the circumstances of Zammar’s arrest.75 German leaders – previously anxious to be informed about the movements of that particular individual – allegedly refrained to inquire about Zammar’s fate.76 On June 5, 2002 – five months after his “rendition” – the Moroccan authorities informed the BKA that Zammar was expelled to Spain on December 27, 2001 and was now in Syria.77

According to a Spiegel report of January 8, 2007, based on a memorandum from the German embassy in Washington, D.C., representatives of the State Department told German embassy officials that Germany “should not undertake steps against Morocco regarding Zammar because Morocco had acted expressly at the request of the United States.“78 Asked whether to his opinion Germany had been lied to by ”friendly partners”, Mr. Uhrlau admitted that this had been the case.79 He added that one cannot always expect from partners truthful answers to questions.80 Indeed, “friendly partners” are not necessarily true friends.

At this point, it might be useful to recall that Zammar was a German citizen who was at the time under investigation in Germany as a extremist Muslim with an Al Qaeda background, and a friend of the alleged perpetrators of 9/11.The officially displayed disinterest in seeking information about the fate of Zammar was therefore most likely contrived.

At no time then or thereafter, did German officials criticize Morocco for the arrest and the kidnapping of Zammar.Not in the least offended by Moroccan lies, a delegation of the BKA that comprised the vice-president of the agency, Bernard Falk, visited Morocco between April 8 and 12, 2002 in order to strengthen the cooperation between the BKA and the respective Moroccan agency.81 Between May 14 and 17, 2002, a delegation of the Moroccan DGST (the Moroccan secret services), visited the headquarters of the BKA in Meckenheim (Germany), to further develop intelligence cooperation.82 These meetings did not – according to testimonies before the Commission of Inquiry – yield information about the fate of Zammar.83 Officials of the DGST claimed they had no idea of hisfate.

10. Zammar was “rendered” by the CIA to Syria

In June 2002, it was reported for the first time that Zammar had been “rendered” by the CIA from Morocco to Syria after being detained by the Moroccan authorities. The exact circumstances of his transfer to Syria were not revealed. The Commission of Inquiry of the Bundestag concluded in their final report that, in spite of questioning hundreds of witnesses, including high officials, it could not determine when and where Zammar was arrested and when and how he was transferred to Syria.84 Were German officials unable to obtain this information from Morocco and the U.S. or did they suppress their knowledge while testifying before a parliamentary commission?

Yet, three months earlier, in March 2002, a delegation of the BND visited Syria and was given a five-page “study” on Zammar. The “study” was not released to the Commission of Inquiry because its release would – so the German government – endanger Germany’s the state’s welfare (Staatswohl).85 One may be justified in asking what prompted the BND to travel to Syria in March 2002, and what prompted the Syrian government to hand such a “study” to the BND. According to a BKA memorandum of June 20, 2002, cited in the Commission’s report, the Zammar “study” contains “detailed information to his personal surroundings, in relation to his presence in Hamburg and his contacts there. The study also designates Zammar as a recruiter of the 9/11 perpetrators and their supporters who lived in Hamburg.”86 No further details of the “study” are included in the Commission’s report. German officials, interviewed by the Commission, purported not to know who compiled the Zammar” study” and on which basis it was compiled.

Another delegation, headed by the President of the BND, visited Syria on May 16/17, 2002 to further develop intelligence cooperation.87 This was followed by a week-long visit in Germany between July 6 to July 13, 2002, by a Syrian delegation headed by General Asef Shaukat, vice-chairman of Syria’s military intelligence service, who is apparently also the brother-in-law of Syria’s president.88 At this meeting, the German side did not request to obtain access to Zammar. Those who participated in the meeting said that the case of Zammar was not discussed.89

Shortly thereafter, a delegation headed by Dr. Kersten, president of the BKA, visited Damascus between July 29 to 31, 2002. The declared purpose of the visit was to ameliorate the cooperation between the countries in the fight against illegal migration and the struggle against “islamist terrorism”.90 The case Zammar was only mentioned as an aside.Cooperation between Germany and Syria in police and security matters began decades ago and continued at least until the year 2012:Syrian refugees in Germany, including teenagers, were routinely deported to Syria, in the knowledge that they might be arrested and tortured in their home country.91 According to a CIA official, cited by Dick Marty, “when one wishes to have prisoner seriously interrogated, one sends him to Jordan. When one wants him to be tortured, one sends him to Syria.When one wishes him to disappear from this earth, one sends him to Egypt.”92 The German BND, incidentally, cooperates also with the Egyptian secret services.

Another delegation from Germany, composed of representatives from the BND, the BfV and the BKA, visited Syria weeks later, in order to continue its discussions on intelligence cooperation between the countries.93Not much is known about the real purpose of that particular visit.Asked whether the German delegation requested from the Syrian side that Zammar be allowed to be questioned in Germany, Fromm told the Commission of Inquiry that he does not remember whether this was mentioned. He said: “I guess that this issue was not pursued, perhaps the idea did not even occur [to us], because it appeared unrealistic at this juncture to make this demand.”94

According to media reports that appeared in 2002, possibly based on the Zammar “study”, Zammar claimed to have recruited Mohamed Atta and other members of the “Hamburg group” as volunteers for training in Osama bin Laden’s camps in Afghanistan.95 On that ground alone, Germany’s judicial authorities should have possessed a vital interest in having him testify before a German court. Their aversion to such a deposition indicates that, on the contrary, their vital interest(and that of the German leadership) resided in keeping Zammar beyond the reach of German courts and media.

Indeed, after learning that Zammar was detained in Syria, German authorities undertook no efforts to have this German citizen returned to Germany, even in the knowledge that he might be tortured and could be sentenced to death.

At the time, Germany held in custody two Syrian nationals, who were arrested in December 200196 and accused of spying on Syrian nationals living in Germany.97 Under pressure from Syria, the German government waived criminal charges against these two Syrian intelligence agents and accepted to upgrade its intelligence cooperation with Syria. German officials emphatically denied that their decision to free these agents had anything to do with Syria’s cooperation regarding Zammar (whatever the nature of this cooperation!)98, Germany Ministry of Justice advised on July 22, 2002, that lifting the charges against the Syrians agents was related to the “geopolitical situation concerning the war on terrorism”, whatever that meant.99 The former Director of the Ministry of Justice, Dr. Geiger, testified before the Commission of Inquiry that the decision not to press the charges against the Syrian agents was based on an “overriding public interest”, whatever that meant.100 He said that the Zammar case did not play any role in lifting the charges. The sole reason for doing so were “the security considerations of the German Federal Republic”, whatever that meant.101

11. Germany acquiesces to Zammar’s incarceration and torture in Syria

German authorities knew that political detainees in Syria are routinely tortured but did not ask the Syrian authorities to spare Zammar from torture. They accepted to interview Zammar in the knowledge that he may have been tortured. Before they met to interview Zammar in November 2002, they Syrian authorities had for three days “prepared Zammar for questioning to make him sufficiently cooperative.”102 as formulated in the report of the Commission of Inquiry. German officials were allowed to meet him on November 21, 22 and 23, 2002 for a total of 13 hours and 20 minutes in the presence of a Syrian official.103 The report by the Commission does not explain what was the nature of Zammar’s three-day “preparation” and apparently no Commission member was curious to know. German officials interviewed by the Commission conceded that torture is practiced routinely in Syria, but argued that Germany must also cooperate, including on intelligence and police matters, with countries that practice torture.104 According to Dr. Hanning, the only possibility to interrogate Zammar was that provided by the Syrians on Syrian soil:“Zammar was deemed one of the main threats in the Hamburg environment and we possessed therefore an overriding interest, from a security perspective, to access Zammar and question him.” German officials did not provide details about the content of their questioning of Zammar; in their testimony to the Commission of Inquiry the mainly described Zammar’s outward appearance, demeanor and willingness to talk, and the logistics surrounding the interrogations.105

According to Amnesty International, Zammar was described in October 2004 in a “skeletal” physical condition as a result of “three years’ incommunicado detention in Far’ Falastin without charge, in prolonged, solitary confinement in cruel, inhuman and degrading conditions.”106 In 2006, the Syrian Higher State Security Court sentenced Zammar to life imprisonment, commuted to 12 years, accused of being a member of the banned Muslim Brotherhood.107 Apparently the Syrian prosecutors used information provided by German services, including evidence of Zammar’s stints in training camps in Afghanistan and Bosnia, to convict Zammar.108 According to German officials, they did not attend Zammar’s trial. According to a report by Amnesty International from 2005, Zammar has not been seen by any outsider, including family members and representatives of the International Committee of the Red Cross, after German officials saw him last in November 2002.109

12.German court is denied protocols of Zammar’s interrogations

The BND sent to the Syrian secret service on July 20, 2002, a catalogue of questions to submit to Zammar and repeatedly received results from interrogations carried out by Syrian officials.110

On January 29, 2003, counsel for Mounir el Motassadeq, who was standing trial in Hamburg, requested that (1) Zammar be allowed to testify as witness for the defense and that (2) the protocols of the interrogations of Zammar as well as the answers to the catalogue of questions submitted to the Syrian interrogators, be entered as exhibits to the trial.111 Counsel argued that Zammar’s testimonies might exculpate their client.

On February 3, 2003, the Office of the German Chancellor sent to the Attorney General, the Ministry of the Interior, Ministry of Justice and the BND, a declaration in which it justifies its endorsement of BND’s refusal to release to the court evidence and documents relative to Zammar.112 The main justification for the refusal was that it would cause “disadvantage to the welfare of the Federal Republic of Germany”, whatever that means. According to the Chancellor’s Office, the BND is entitled to withhold from the court information about the whereabouts of Zammar, as well as the contents and the source of documents about him. On the same day, the Ministry of Interior issued a similar paper.113

One day later, on February 4, 2003, the Hamburg court– having presumably been informed of the above documents –issued two Decisions. In its first Decision,114 it rejected the request by defense counsel for the protocols of Zammar’s interrogations that took place in Morocco.The court claimed that such protocols do not exist.

In its second Decision,115 the court rejected the request by defense counsel to produce Zammar as a witness and to produce the protocols of Zammar’s interrogations in Germany and Syria. The court claimed that Zammar’s testimony is not necessary for establishing the truth in the case before trial. The court also argued that it is unlikely that Syria would permit Zammar to testify, even if this were done through a simultaneous video transmission. The court based its conclusion on the decisions by Germany’s Office of the Chancellor and by the Ministry of Interior of January 30, 2003 and February 3, 2003 to refuse access to documents concerning the interrogations of Zammar in Syria.The court added that, on the base of Zammar’s interrogation of September 17, 2001 in Germany, it appears unlikely that Zammar, even if he were allowed to testify, would provide new information relevant to the present trial, for in theinterrogation of September 17, 2001, Zammar refused to answer questions regarding Mohamed Atta, Marwan Alshehhi and Ziad Jarrah, three of the alleged suicide-pilots of 9/11. In that interrogation – according to the court’s Decision – Zammar claimed that he did not know Binalshibh and Essabar.Should he have lied about these facts in October 2001 – so the court – he would certainly refuse to contradict his former statements and thus incriminate himself in perjury.It was therefore unlikely, so the court, that Zammar would make any statements that might exculpate the accused. The court thus reasoned, that his appearance before the court would be superfluous!

On appeal by defense counsel to the Federal Administrative Court (FAC), the FAC upheld on February 10, 2003116 the lower court’s refusal to ask for the appearance of Zammar and for the release of the protocols of his interrogations, arguing that the German authorities had pledged to the Syrian services strict confidentiality. The FAC uncritically espoused the government’s position that releasing such information to the court would “significantly harm the “welfare of the Federal Republic of Germany”, whatever that means.117 The FAC argued that if the confidentiality promise were breached, Germany would be excluded from further information exchange between intelligence services in the so-called war on terrorism and particularly from cooperation with Syria.118 The FAC did not explain in its ruling how the release of protocols of Zammar’s interrogation, in so far as they relate to the particular court case, could harm the welfare of the nation.The decision by the FAC did not, incidentally, spell out the limits beyond which it would be unlawful or even treasonous for German government officials to promise foreign governments total confidentiality and thereby undermine their democratic accountability to their own citizens.

13. Zammar and Germany’s alleged national interest

A central argument proffered by the German government in support of its suppression of information obtained from Zammar, was that it pledged to the Syrian government not to reveal this information. To violate this pledge would endanger intelligence cooperation with Syria and more generally the credibility of German intelligence agencies. Syria, said Dr. Steinmeier, “belonged at the time to the allies of the West in the war on terror” and was no longer a “rogue state” because it condemned the 9/11 attacks and announced its readiness to participate in the “war against terrorism”. “We needed Syria’s active cooperation,“ said Steinmeier, “because the perpetrators of 9/11 maintained contacts to members of the Syrian Muslim brothers” and “we needed Syria as a constructive partner to prevent an explosion of the Middle East conflict after 9/11.”119The former president of the BND, Dr. Hanning, also emphasized to the Commission of Inquiry the importance of intelligence cooperation with Syria in the war on terror. Syria played a very important role in this matter, he said.120 He did not specify the nature of that “very important role.”

More generally, the German administration, through its various departments, argued that intelligence cooperation with other countries would suffer grave damage, if information transmitted confidentially by foreign services to German intelligence agencies, would be provided to “third parties”, including judicial authorities.

The Commission of Inquiry repeatedly requested, through the Syrian Embassy in Germany, to be allowed to interview Zammar. The Embassy reportedly did not answer a single request. Was this refusal solely based on Syrian domestic considerations or did the governments of the United States and Germany ask Syria to ignore these requests”The fact that the United States kidnapped Zammar and forcefully transferred him to Syria and that German authorities did not press for his return to Germany, suggests, however, a collusion between the three governments.

14. Why do German authorities want Zammar outside the reach of German courts?

As shown above, every move by the German authorities in relation to Zammar demonstrates the existence of a policy, adopted at the highest echelons of German politics, to remove Zammar from the reach of German courts and media. The interest shown by the highest echelons of German politics to the case of Zammar indicates that he was certainly not a “marginal figure” from their perspective.

If Zammar was no “marginal figure”, what was his role? He either was an Al Qaeda operative believed by the German authorities to be highly dangerous, or an asset of German and/or American intelligence services, whose role was to induce Muslims to become “jihadists” and spend some time in an alleged Al Qaeda training camp in Afghanistan or Pakistan. After their return home, they would become ideal targets for a media-savvy “war on terrorism.”

Had Zammar been regarded by the German authorities as a highly dangerous Al Qaeda operative, the question would arise why they did not interrogate or detain him before 9/11 and why they let him leave Germany after 9/11, although they had known virtually everything about him for years, including his alleged radical views, his contacts with suspected terrorists, his trips to Afghanistan and his lack of means to finance his frequent trips. Apologists for the German government, such as journalists of Der Spiegel, argue that before 9/11 “no one was concerned about Al Qaeda” and that those who listened to Zammar’s phone calls before 9/11 did not “connect the dots”. This explanation is tenuous and does not explain why he was not arrested after 9/11, when it transpired that he may have facilitated the travel of the alleged perpetrators of 9/11 to Afghanistan.After the bombings of the U.S. embassies in East Africa in 1998 – the largest terrorist attacks committed anywhere in that year – the U.S. designated Osama bin Laden as the main suspect for these attacks. As a U.S. ally, the German authorities would have certainly been asked to cooperate in the investigation by monitoring and interrogating individuals residing in Germany suspected of connections to Al Qaeda and Osama bin Laden. Zammar was known at the time as one of the most prominent contacts to Al Qaeda living in Germany. His contacts to other “jihadists”, as mentioned above, provided further reasons for the German authorities to consider him, even before 9/11, a dangerous person, had he been a genuine “jihadist.”

The failure of the German authorities to act on Zammar’s alleged menace, both before and after 9/11, strongly suggests that Zammar played a radically different role from that attributed to him by government officials.

Is it possible, for instance, that Zammar actually accepted the reported proposal of the German BfV in 1996 to act as an informant (see above)”In that case, he would have been an asset in a covert strategy managed by U.S. and German intelligence and abetted by Moroccan and Syrian services. His role would have been to pose as a true “jihadist” and induce young Muslims to go for training to Pakistan or Afghanistan in camps led by Osama bin Laden. In order to understand the rationale for such a policy, we must briefly digress from our subject and point out what strategical benefits the West would gain by such a policy.

Around 1990, the Soviet bloc imploded. For over 40 years, the Warsaw Pact, led by Moscow, served as the main threat to the West, contributed to NATO’s political cohesion and justified a high level of military expenditures by the United States and its allies. The disappearance of that external perceived threat threatened to make NATO redundant and severely affect the revenues of the extremely profitable military-industrial complex. While the majority of ordinary people could then hope to enjoy the “peace dividend”, those dependent upon an external threat for their profit, searched for a new epochal threat that would maintain their revenues. In addition, the United States – now the sole remaining super-power – faced a unique historical opportunity to secure its long-term global hegemony. To do so, however, required the support of the American public and such support depended upon public perception of an external existential threat. It was thus both imperative and urgent for U.S. strategists to find a credible “threat” that would profitably supplant the Red Threat. No single state or group of states could at that time be credibly regarded as fulfilling this role. An alternative was therefore sought. It was found in the guise of an “Islamic global terrorist network” that would be manufactured and nurtured.121 This invention was a genial – and Machiavellian – strike of the mind:As most oil resources in the world lie under the feet of Muslims, the quest to control these resources by military means could be usefully be concealed behind policing efforts to battle “Islamic terrorists” hosted in such countries. Another advantage of this mythical construction was that authorities in Western nations could justify increased “security” measures, such as mass surveillance of telephone and internet communications, by the need to discover potential “Islamic terrorists” among the Muslims living in the particular country.

To successfully implement this strategy, Western intelligence agencies need to maintain an large pool of wannabe terrorists, agents provocateurs, hate preachers and big-mouthed jihadists, whose mainly verbal feats are useful media feed and help to promote the myth of Islamic terrorism. The initial “raw material” for that mythical network – trade-marked Al Qaeda – were the so-called Arab Afghans, who after the withdrawal of Soviet troops from Afghanistan, found themselves unemployed and looking for new sponsors. Their new sponsors were Western intelligence agencies, acting behind the façade of Saudi and Pakistani handlers, in order to conceal their own hands.122 In order to maintain the supply of such “jihadists”, recruiters ensure a continuous flow of wannabe fighters to training camps in Afghanistan and Pakistan, who could later be arrested as terrorist suspects and ensure regular media coverage of the “terrorist threat.”It is beyond the scope of this study to elaborate upon this development. This network – financed and managed by Saudi and Pakistani intelligence services, but ultimately serving a Western strategical concept – is now operating globally in furtherance of imperial design (the most recent example being Syria).

The conduct of German officials strongly suggests that Mohammad Haydar Zammar played a role within this covert strategy.He reportedly said he ensured that Mohamed Atta, Marwan Alshehhi and Ziad Jarrah would go to Afghanistan for training. These three persons were famously accused by the United States authorities to have flown three of the four aircraft that allegedly crashed on 9/11. There is, however, no evidence whatsoever, that they boarded these aircraft.123

For two of them – Atta and Alshehhi – there is no reliable evidence, that they ever went to the United States.124 By inducing them to make a stint in a training camp in Afghanistan, they could later be linked to Al Qaeda. Their presence in Afghanistan was indeed relied upon by the Hamburg Higher Regional Court (Oberlandsgericht) in the case of Mounir el Motassadeq in order to “prove”, as it were, their terrorist inclination.125 Had this been one of Zammar’s roles, it would explain why he had to be removed from German jurisdiction, maintained outside the reach of German courts and media and why the intercepts of his phone calls, surveillance logs and protocols of his interrogations are kept secret.

The present case provides a glimpse into the systematic deception of the tax-paying public carried by German intelligence agencies, the absence of effective parliamentary control of these agencies, the lack of independence of German judicial authorities, and the deplorable deference of German leaders to Washington’s imperial strategy.


1. Acronyms used in this chapter:

BAO USA: Besondere Aufbauorganisation USA

BfV: Bundesamt für Verfassungsschutz

BKA: Bundeskriminalamt (German Federal Criminal Police Office)


COI: Commission of Inquiry of the German Parliament (Bundestag) set up to investigate the cooperation of German government bodies with CIA “renditions” of alleged terror suspects

FAC:Bundesverwaltungsgericht (Federal Administrative Court)

OAG:Bundesstaatsanwalt (Germany’s Office of the Attorney General)

1. Klaus Brinkbäumer et al, “Attas Armee”, Der Spiegel, 2 September 2002, p. 9

2. DW, “Plante er den 11. September?”Welt Online, 13 June 2002

3. Andreas Ulrich, “Operation Zartheit”, Spiegel Online, 15. July 2002

4. Desmond Butler, “Germans were tracking Sept. 11 conspirators as early as 1998, documents disclose”, The New York Times, January 18, 2003

5. According to Ulrich – supra n. 3 –, German officials started already in 1997a monitoring operation of Zammar and his contacts, entitled Operation Tenderness (Operation Zartheit). According to Dominik Cziesche, Georg Mascolo and Holger Stark, “Das Puzzle lag auf dem Tisch”, Der Spiegel, 3 February 2003, the German BfV intercepted telephone communications of the group surrounding Mohamed Atta since 1996.According to Peter Finn (“Hamburg’s Cauldron of Terror”, Washington Post, 11 September 2002), Brinkbäumer (supra n. 1) and Ulrich (supra n. 3), German intelligence placed Zammar under surveillance after being tipped by Turkish authorities that he had passed Istanbul and Ankara on his way to various war zones over 40 times. According to Vanity Fair (“The Price of Failure”, November 2004), the BfV was tipped off by Turkish intelligence in 1996 that Zammar had been traveling the globe to trouble spots: more than 40 journeys in all, to such places as Bosnia and Chechnya.

6. Butler, supra n. 4

7. Ibid.

8. Ibid.

9. Ibid.

10. Ulrich, supra n. 3

11. Franz Feyder, “11. September Geheimdienst – Operation Zartheit”, Stuttgarter Nachrichten, 8 September 2011

12. Klaus Brinkbäumer et al, “Atta’s Army”, Der Spiegel Online, 23 November 2006

13. Peter Finn, Hamburg’s Cauldron of Terror, Washington Post, 11 September 2002

14. Dominik Cziesche, Georg Mascolo and Holger Stark, “Das Puzzle lag auf dem Tisch”, Der Spiegel, 3 February 2003; and Feyder, supra n. 11

15. Cziesche et al, supra n. 14

16. Finn, supra n. 13

17. Feyder, supra n. 11

18. “Früher Verdacht”, Der Spiegel, 29 October 2001

19. DW, supra n. 2

20. Cziesche et al, supra n. 14

21. Butler, supra n. 4

22. Comment by Peter Frisch, former head of the German Office for the Protection of the Constitution (BfV); and Finn, supra n. 13

23. Cziesche et al, supra n. 14

24. Ibid.

25. Ibid.

26. Brinkbäumer, supra n. 1

27. “Atta von Deutsch-Syrer angeworben”, Frankfurter Allgemeine Zeitung, 13 June 2002; also DW, supra n. 2

28. According to Butler (supra n. 4), “10 days after the attacks” of 9/11.According to DW (supra n. 2) “in the middle of October [2001]”.Ultimately, it was revealed in an address to the German parliamentary commission that Zammar was made to appear before a judge on September 17, 2001, that is six days after 9/11.See infra n. 29, p. 217.

29. Final Report of the Commission of Inquiry of the Bundestag (“Beschlussempfehlung und Bericht des 1. Untersuchungsausschusses nach Artikel 44 des Grundgesetzes”)Berlin, 18 June2009, Document 16/13400, p. 217

30. Private communication to the author of June 8, 2012

31. Final Report (…),supra n. 29, p. 217

32. Dominik Cziesche, Georg Mascolo and Gerhard Spörl, “Die zweite Welle”, Der Spiegel, 24 June 2002

33. Klaus Brinkbäumer et al, Anschläge ohne Auftrag, Der Spiegel, 15 October 2001

34. Final Report (…),supra n. 29, p. 218

35. N/A

36. Final Report (…),supra n. 29, p. 58

37. Final Report (…),supra n. 29, p. 58.In October 2001 that number had already reached 615 (source: Brinkbäumer, supra n. 33)

38. Final Report (…),supra n. 29, p. 222

39. Final Report (…),supra n. 29, p. 59

40. Final Report (…),supra n. 29, p. 218

41. Final Report (…),supra n. 29,p. 218

42. Butler, supra n. 4

43. “Geheimdienste: Ausser Kontrolle”, Stern, 8 Mai 2006

44. Final Report (…),supra n. 29, p. 220

45. Final Report (…),supra n. 29, p. 218

46. Final Report (…),supra n. 29, p. 218-219

47. Final Report (…),supra n. 29, p. 219

48. Final Report (…),supra n. 29, p. 442-3

49. Final Report (…),supra n. 29, p. 866

50. DW, supra n. 2

51. Final Report (…),supra n. 29, p. 219

52. Final Report (…),supra n. 29, p. 866

53. Final Report (…),supra n. 29, p. 221

54. Oliver Schröm and Dirk Laabs, “Unser Mann in der Moschee”, Frankfurter Allgemeine Sonntagszeitung, 2 February 2003

55. Final Report (…),supra n. 29, p. 443

56. “Geheimdienste: Ausser Kontrolle”, supra n. 43; and, Final Report (…),supra n. 29, p. 443

57. The BKA informed a FBI investigator about Zammar’s return date, two weeks in advance (“Geheimdienste: Ausser Kontrolle”, supra n. 43)

58. Final Report (…),supra n. 29, p. 221-222. The U.S. authorities were informed about Zammar’s travel plans on the day on which he booked his flight (p. 925)

59. Final Report (…),supra n. 29, p.444

60. Final Report (…),supra n. 29, p. 222

61. Final Report (…),supra n. 29, p. 926

62. Renditions is the term used for the practice by the CIA to abduct alleged terror suspects and transfer them to various secret prisons around the world, or deliver them to certain states in order to be tortured or “eliminated.”This unlawful and criminal practice has called forth widespread outrage.

63. Final Report (…),supra n. 29, p. 445

64. Final Report (…),supra n. 29, p. 445; also Uli Rauss and Oliver Schröm, “Ex-CIA Mann belastet deutsche Kollegen”, Stern, 11 März, 2008

65. Final Report (…),supra n. 29, p. 62

66. Final Report (…),supra n. 29, p. 457

67. Final Report (…),supra n. 29, p. 925

68. Final Report (…),supra n. 29, p. 867

69. Final Report (…),supra n. 29, p. 225

70. Final Report (…),supra n. 29, p. 228

71. Final Report (…),supra n. 29, p. 867

72. Final Report (…),supra n. 29,p. 228; and DW, supra n. 2

73. Final Report (…),supra n. 29, p. 228.In a latter communication from the Moroccan Ministry of Interior, January 22, 2002, Zammar was said to have been “deported” from Morocco, but the destination was not anymore given as Spain.It was unspecified; see also Georg Mascolo and Holger Stark, “Mysteriöse Auskunft”, Der Spiegel, 15 April 2002

74. Mascolo et al, supra n. 731

75. Final Report (…),supra n. 29, p. 868

76. Final Report (…),supra n. 29, p. 867

77. Final Report (…),supra n. 29, p. 232

78. Final Report (…),supra n. 29, p. 932

79. Final Report (…),supra n. 29, p. 229

80. Final Report (…),supra n. 29, p. 232

81. Final Report (…),supra n. 29, p. 231

82. Final Report (…),supra n. 29, p. 231

83. Final Report (…),supra n. 29, p. 231-2

84. Final Report (…),supra n. 29, p. 226

85. Final Report (…),supra n. 29, p. 230

86. Final Report (…),supra n. 295, p. 230

87. Final Report (…),supra n. 29, p. 238

88. “Geheimdienste: Ausser Kontrolle”, supra n. 43

89. Final Report (…),supra n. 29, p. 239

90. Final Report (…),supra n. 29, p. 242

91. Hans Georg, “Deutsch-syrische Kooperation begann schon in den frühen 50er Jahren”, Neue Rheinische Zeitung, 6 April 2011

92. Ibid,footnote 16

93. Final Report (…),supra n. 29, p. 243

94. Final Report (…),supra n. 29, p. 245

95. “Atta von Deutsch-Syrer angeworben”, supra n. 27; also DW, supra n. 2

96. Final Report (…),supra n. 29, p. 239

97. Final Report (…),supra n. 29, p. 446

98. Final Report (…),supra n. 29, p. 238

99. Final Report (…),supra n. 29, p. 240

100. Final Report (…),supra n. 29, p. 240

101. Final Report (…),supra n. 29, p. 241

102. Final Report (…),supra n. 29, p. 931

103. Final Report (…),supra n. 29, p. 250

104. Final Report (…),supra n. 29, p. 245

105. Final Report (…),supra n. 29, p. 250-256

106. Amnesty International: Muhammad Haydar Zammar

107. “Terror suspect Zammar gets twelve years”, Der Spiegel, 12 February 2007

108. Final Report (…),supra n. 29, p. 934

109. Amnesty International: Muhammad Haydar Zammar

110. Final Report (…),supra n. 29, p. 927

111. Antrag des Strafverteidiger von el Motassadeq vom 29. Januar 2003

112. Bundeskanzleramt, Sperrerklärung, 3 Februar 2003

113. Bundesministerium des Inneren, Sperrerklärung, 3 Februar 2003

114. Beschluss des OLG Hamburg, Anlage 96, 4. Februar 2003

115. Beschluss des OLG Hamburg, Anlage 95, 4. Februar 2003

116. Antrage auf Übergabe von Akten des BND and das OLG Hamburg im Motassadeq-Prozess abgelehnt, Pressemitteilung des Bundesverwaltungsgerichts, 10. Februar 2003

117. Ibid.

118. Ibid.

119. Final Report (…),supra n. 29, p. 235

120. Final Report (…),supra n. 29, p. 236

121. No empirical evidence has ever been produced by NATO, the United Nations and Western governments, that international terrorism is a serious threat to any Western nation, let alone to “world peace”. More people did in the Western world from lightning strikes than in terrorist attacks.More people are killed yearly in the U.S. alone than worldwide in terror attacks.In Germany, home to approximately four million Muslims, no German national has ever been killed in Islamic terrorism. Yet, the myth of the terrorist threat is regularly promoted by the authorities and by complying media.

122. See, for example, Nafeez Mosaddeq Ahmed, “The War on Truth: 9/11, Disinformation and the Anatomy of Terrorism”, Interlink Pub Group (2005)

123. See, in particular, Elias Davidsson, “Hijacking America’s Mind on 9/11”, Algora Publishers (New York, 2013), pp. 29-58

124. Ziad Jarrah, however, credibly pursued flight training in the United States prior to 9/11.

125. Court documents in the case of Mounir El Motassadeq (in German)


General Comment 32, Art. 14 (right to equality before courts)

Ninetieth session

Geneva, 9 to 27 July 2007


General Comment No. 32

Article 14: Right to equality before courts and tribunals and to a fair trial


I. General remarks

This general comment replaces general comment No. 13 (twenty-first session).

The right to equality before the courts and tribunals and to a fair trial is a key element of human rights protection and serves as a procedural means to safeguard the rule of law. Article 14 of the Covenant aims at ensuring the proper administration of justice, and to this end guarantees a series of specific rights.

Article 14 is of a particularly complex nature, combining various guarantees with different scopes of application. The first sentence of paragraph 1 sets out a general guarantee of equality before courts and tribunals that applies regardless of the nature of proceedings before such bodies. The second sentence of the same paragraph entitles individuals to a fair and public hearing by a competent, independent and impartial tribunal established by law, if they face any criminal charges or if their rights and obligations are determined in a suit at law. In such proceedings the media and the public may be excluded from the hearing only in the cases specified in the third sentence of paragraph 1. Paragraphs 2 – 5 of the article contain procedural guarantees available to persons charged with a criminal offence. Paragraph 6 secures a substantive right to compensation in cases of miscarriage of justice in criminal cases. Paragraph 7 prohibits double jeopardy and thus guarantees a substantive freedom, namely the right to remain free from being tried or punished again for an offence for which an individual has already been finally convicted or acquitted. States parties to the Covenant, in their reports, should clearly distinguish between these different aspects of the right to a fair trial.

Article 14 contains guarantees that States parties must respect, regardless of their legal traditions and their domestic law. While they should report on how these guarantees are interpreted in relation to their respective legal systems, the Committee notes that it cannot be left to the sole discretion of domestic law to determine the essential content of Covenant guarantees.

While reservations to particular clauses of article 14 may be acceptable, a general reservation to the right to a fair trial would be incompatible with the object and purpose of the Covenant. 1

While article 14 is not included in the list of non-derogable rights of article 4, paragraph 2 of the Covenant, States derogating from normal procedures required under article 14 in circumstances of a public emergency should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation. The guarantees of fair trial may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights. Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of article 14. 2 Similarly, as article 7 is also non-derogable in its entirety, no statements or confessions or, in principle, other evidence obtained in violation of this provision may be invoked as evidence in any proceedings covered by article 14, including during a state of emergency,3 except if a statement or confession obtained in violation of article 7 is used as evidence that torture or other treatment prohibited by this provision occurred. 4 Deviating from fundamental principles of fair trial, including the presumption of innocence, is prohibited at all times. 5

II. Equality before courts and tribunals

The first sentence of article 14, paragraph 1 guarantees in general terms the right to equality before courts and tribunals. This guarantee not only applies to courts and tribunals addressed in the second sentence of this paragraph of article 14, but must also be respected whenever domestic law entrusts a judicial body with a judicial task.6

The right to equality before courts and tribunals, in general terms, guarantees, in addition to the principles mentioned in the second sentence of Article 14, paragraph 1, those of equal access and equality of arms, and ensures that the parties to the proceedings in question are treated without any discrimination.

Article 14 encompasses the right of access to the courts in cases of determination of criminal charges and rights and obligations in a suit at law. Access to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice. The right of access to courts and tribunals and equality before them is not limited to citizens of States parties, but must also be available to all individuals, regardless of nationality or statelessness, or whatever their status, whether asylum seekers, refugees, migrant workers, unaccompanied children or other persons, who may find themselves in the territory or subject to the jurisdiction of the State party. A situation in which an individual ’s attempts to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter to the guarantee of article 14, paragraph 1, first sentence. 7 This guarantee also prohibits any distinctions regarding access to courts and tribunals that are not based on law and cannot be justified on objective and reasonable grounds. The guarantee is violated if certain persons are barred from bringing suit against any other persons such as by reason of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 8

The availability or absence of legal assistance often determines whether or not a person can access the relevant proceedings or participate in them in a meaningful way. While article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings in paragraph 3 (d), States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so. For instance, where a person sentenced to death seeks available constitutional review of irregularities in a criminal trial but does not have sufficient means to meet the costs of legal assistance in order to pursue such remedy, the State is obliged to provide legal assistance in accordance with article 14, paragraph 1, in conjunction with the right to an effective remedy as enshrined in article 2, paragraph 3 of the Covenant. 9

Similarly, the imposition of fees on the parties to proceedings that would de facto prevent their access to justice might give rise to issues under article 14, paragraph 1. 10 In particular, a rigid duty under law to award costs to a winning party without consideration of the implications thereof or without providing legal aid may have a deterrent effect on the ability of persons to pursue the vindication of their rights under the Covenant in proceedings available to them. 11

The right of equal access to a court, embodied in article 14, paragraph 1, concerns access to first instance procedures and does not address the issue of the right to appeal or other remedies. 12
The right to equality before courts and tribunals also ensures equality of arms. This means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.13 There is no equality of arms if, for instance, only the prosecutor, but not the defendant, is allowed to appeal a certain decision.14 The principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.15 In exceptional cases, it also might require that the free assistance of an interpreter be provided where otherwise an indigent party could not participate in the proceedings on equal terms or witnesses produced by it be examined.

Equality before courts and tribunals also requires that similar cases are dealt with in similar proceedings. If, for example, exceptional criminal procedures or specially constituted courts or tribunals apply in the determination of certain categories of cases,16 objective and reasonable grounds must be provided to justify the distinction.

III. Fair and public hearing by a competent, independent and impartial tribunal

The right to a fair and public hearing by a competent, independent and impartial tribunal established by law is guaranteed, according to the second sentence of article 14, paragraph 1, in cases regarding the determination of criminal charges against individuals or of their rights and obligations in a suit at law. Criminal charges relate in principle to acts declared to be punishable under domestic criminal law. The notion may also extend to acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must be regarded as penal because of their purpose, character or severity. 17

The concept of determination of rights and obligations “in a suit at law” (de caractère civil/de carácter civil) is more complex. It is formulated differently in the various languages of the Covenant that, according to article 53 of the Covenant, are equally authentic, and the travaux préparatoires do not resolve the discrepancies in the various language texts. The Committee notes that the concept of a “suit at law” or its equivalents in other language texts is based on the nature of the right in question rather than on the status of one of the parties or the particular forum provided by domestic legal systems for the determination of particular rights.18 The concept encompasses (a) judicial procedures aimed at determining rights and obligations pertaining to the areas of contract, property and torts in the area of private law, as well as (b) equivalent notions in the area of administrative law such as the termination of employment of civil servants for other than disciplinary reasons,19 the determination of social security benefits20 or the pension rights of soldiers, 21 or procedures regarding the use of public land 22 or the taking of private property. In addition, it may (c) cover other procedures which, however, must be assessed on a case by case basis in the light of the nature of the right in question.

On the other hand, the right to access a court or tribunal as provided for by article 14, paragraph 1, second sentence, does not apply where domestic law does not grant any entitlement to the person concerned. For this reason, the Committee held this provision to be inapplicable in cases where domestic law did not confer any right to be promoted to a higher position in the civil service, 23 to be appointed as a judge 24 or to have a death sentence commuted by an executive body. 25 Furthermore, there is no determination of rights and obligations in a suit at law where the persons concerned are confronted with measures taken against them in their capacity as persons subordinated to a high degree of administrative control, such as disciplinary measures not amounting to penal sanctions being taken against a civil servant, 26 a member of the armed forces, or a prisoner. This guarantee furthermore does not apply to extradition, expulsion and deportation procedures.27 Although there is no right of access to a court or tribunal as provided for by article 14, paragraph 1, second sentence, in these and similar cases, other procedural guarantees may still apply. 28

The notion of a “tribunal” in article 14, paragraph 1 designates a body, regardless of its denomination, that is established by law, is independent of the executive and legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature. Article 14, paragraph 1, second sentence, guarantees access to such tribunals to all who have criminal charges brought against them. This right cannot be limited, and any criminal conviction by a body not constituting a tribunal is incompatible with this provision. Similarly, whenever rights and obligations in a suit at law are determined, this must be done at least at one stage of the proceedings by a tribunal within the meaning of this sentence. The failure of a State party to establish a competent tribunal to determine such rights and obligations or to allow access to such a tribunal in specific cases would amount to a violation of article 14 if such limitations are not based on domestic legislation, are not necessary to pursue legitimate aims such as the proper administration of justice, or are based on exceptions from jurisdiction deriving from international law such, for example, as immunities, or if the access left to an individual would be limited to an extent that would undermine the very essence of the right.

The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. 29 The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. 30 A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. 31 It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. 32 The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law. 33

The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. 34 Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial. 35

The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized, civilian or military. The Committee notes the existence, in many countries, of military or special courts which try civilians. While the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned. The Committee also notes that the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned. Therefore, it is important to take all necessary measures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in article 14. Trials of civilians by military or special courts should be exceptional,36 i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.37

Some countries have resorted to special tribunals of “faceless judges” composed of anonymous judges, e.g. within measures taken to fight terrorist activities. Such courts, even if the identity and status of such judges has been verified by an independent authority, often suffer not only from the fact that the identity and status of the judges is not made known to the accused persons but also from irregularities such as exclusion of the public or even the accused or their representatives 38 from the proceedings; 39 restrictions of the right to a lawyer of their own choice; 40 severe restrictions or denial of the right to communicate with their lawyers, particularly when held incommunicado; 41 threats to the lawyers;42 inadequate time for preparation of the case; 43 or severe restrictions or denial of the right to summon and examine or have examined witnesses, including prohibitions on cross-examining certain categories of witnesses, e.g. police officers responsible for the arrest and interrogation of the defendant. 44 Tribunals with or without faceless judges, in circumstances such as these, do not satisfy basic standards of fair trial and, in particular, the requirement that the tribunal must be independent and impartial. 45

Article 14 is also relevant where a State, in its legal order, recognizes courts based on customary law, or religious courts, to carry out or entrusts them with judicial tasks. It must be ensured that such courts cannot hand down binding judgments recognized by the State, unless the following requirements are met: proceedings before such courts are limited to minor civil and criminal matters, meet the basic requirements of fair trial and other relevant guarantees of the Covenant, and their judgments are validated by State courts in light of the guarantees set out in the Covenant and can be challenged by the parties concerned in a procedure meeting the requirements of article 14 of the Covenant. These principles are notwithstanding the general obligation of the State to protect the rights under the Covenant of any persons affected by the operation of customary and religious courts.

The notion of fair trial includes the guarantee of a fair and public hearing. Fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive. A hearing is not fair if, for instance, the defendant in criminal proceedings is faced with the expression of a hostile attitude from the public or support for one party in the courtroom that is tolerated by the court, thereby impinging on the right to defence, 46 or is exposed to other manifestations of hostility with similar effects. Expressions of racist attitudes by a jury 47 that are tolerated by the tribunal, or a racially biased jury selection are other instances which adversely affect the fairness of the procedure.
Article 14 guarantees procedural equality and fairness only and cannot be interpreted as ensuring the absence of error on the part of the competent tribunal. 48 It is generally for the courts of States parties to the Covenant to review facts and evidence, or the application of domestic legislation, in a particular case, unless it can be shown that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice, or that the court otherwise violated its obligation of independence and impartiality. 49 The same standard applies to specific instructions to the jury by the judge in a trial by jury. 50

An important aspect of the fairness of a hearing is its expeditiousness. While the issue of undue delays in criminal proceedings is explicitly addressed in paragraph 3 (c) of article 14, delays in civil proceedings that cannot be justified by the complexity of the case or the behaviour of the parties detract from the principle of a fair hearing enshrined in paragraph 1 of this provision. 51 Where such delays are caused by a lack of resources and chronic under-funding, to the extent possible supplementary budgeta ry resources should be allocated for the administration of justice. 52

All trials in criminal matters or related to a suit at law must in principle be conducted orally and publicly. The publicity of hearings ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large. Courts must make information regarding the time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, inter alia, the potential interest in the case and the duration of the oral hearing. 53 The requirement of a public hearing does not necessarily apply to all appellate proceedings which may take place on the basis of written presentations, 54 or to pre-trial decisions made by prosecutors and other public authorities. 55

Article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice. Apart from such exceptional circumstances, a hearing must be open to the general public, including members of the media, and must not, for instance, be limited to a particular category of persons. Even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public, except where the interest of juvenile persons otherwise requires, or the proceedings concern matrimonial disputes or the guardianship of children.

IV. Presumption of innocence

According to article 14, paragraph 2 everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle. It is a duty for all public authorities to refrain from prejudging the outcome of a trial, e.g. by abstaining from making public statements affirming the guilt of the accused. 56 Defendants should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals. The media should avoid news coverage undermining the presumption of innocence. Furthermore, the length of pre-trial detention should never be taken as an indication of guilt and its degree. 57 The denial of bail 58 or findings of liability in civil proceedings 59 do not affect the presumption of innocence.

V. Rights of persons charged with a criminal offence

The right of all persons charged with a criminal offence to be informed promptly and in detail in a language which they understand of the nature and cause of criminal charges brought against them, enshrined in paragraph 3 (a), is the first of the minimum guarantees in criminal proceedings of article 14. This guarantee applies to all cases of criminal charges, including those of persons not in detention, but not to criminal investigations preceding the laying of charges. 60 Notice of the reasons for an arrest is separately guaranteed in article 9, paragraph 2 of the Covenant. 61 The right to be informed of the charge “promptly” requires that information be given as soon as the person concerned is formally charged with a criminal offence under domestic law, 62 or the individual is publicly named as such. The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally – if later confirmed in writing – or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based. In the case of trials in absentia, article 14, paragraph 3 (a) requires that, notwithstanding the absence of the accused, all due steps have been taken to inform accused persons of the charges and to notify them of the proceedings. 63

Subparagraph 3 (b) provides that accused persons must have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing. This provision is an important element of the guarantee of a fair trial and an application of the principle of equality of arms. 64 In cases of an indigent defendant, communication with counsel might only be assured if a free interpreter is provided during the pre-trial and trial phase.65 What counts as “adequate time” depends on the circumstances of each case. If counsel reasonably feel that the time for the preparation of the defence is insufficient, it is incumbent on them to request the adjournment of the trial. 66 A State party is not to be held responsible for the conduct of a defence lawyer, unless it was, or should have been, manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. 67 There is an obligation to grant reasonable requests for adjournment, in particular, when the accused is charged with a serious criminal offence and additional time for preparation of the defence is needed. 68

“Adequate facilities” must include access to documents and other evidence; this access must include all materials 69 that the prosecution plans to offer in court against the accused or that are exculpatory. Exculpatory material should be understood as including not only material establishing innocence but also other evidence that could assist the defence (e.g. indications that a confession was not voluntary). In cases of a claim that evidence was obtained in violation of article 7 of the Covenant, information about the circumstances in which such evidence was obtained must be made available to allow an assessment of such a claim. If the accused does not speak the language in which the proceedings are held, but is represented by counsel who is familiar with the language, it may be sufficient that the relevant documents in the case file are made available to counsel 70

The right to communicate with counsel requires that the accused is granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. 71 Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter.

The right of the accused to be tried without undue delay, provided for by article 14, paragraph 3 (c), is not only designed to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice. What is reasonable has to be assessed in the circumstances of each case, 72 taking into account mainly the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities. In cases where the accused are denied bail by the court, they must be tried as expeditiously as possible. 73 This guarantee relates not only to the time between the formal charging of the accused and the time by which a trial should commence, but also the time until the final judgement on appeal.74 All stages, whether in first instance or on appeal must take place “without undue delay.”

Article 14, paragraph 3 (d) contains three distinct guarantees. First, the provision requires that accused persons are entitled to be present during their trial. Proceedings in the absence of the accused may in some circumstances be permissible in the interest of the proper administration of justice, i.e. when accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present. Consequently, such trials are only compatible with article 14, paragraph 3 (d) if the necessary steps are taken to summon accused persons in a timely manner and to inform them beforehand about the date and place of their trial and to request their attendance. 75

Second, the right of all accused of a criminal charge to defend themselves in person or through legal counsel of their own choosing and to be informed of this right, as provided for by article 14, paragraph 3 (d), refers to two types of defence which are not mutually exclusive. Persons assisted by a lawyer have the right to instruct their lawyer on the conduct of their case, within the limits of professional responsibility, and to testify on their own behalf. At the same time, the wording of the Covenant is clear in all official languages, in that it provides for a defence to be conducted in person “or” with legal assistance of one’s own choosing, thus providing the possibility for the accused to reject being assisted by any counsel. This right to defend oneself without a lawyer is, however not absolute. The interests of justice may, in the case of a specific trial, require the assignment of a lawyer against the wishes of the accused, particularly in cases of persons substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in their own interests, or where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused. However, any restriction of the wish of accused persons to defend themselves must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice. Therefore, domestic law should avoid any absolute bar against the right to defend oneself in criminal proceedings without the assistance of counsel. 76

Third, article 14, paragraph 3 (d) guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it. The gravity of the offence is important in deciding whether counsel should be assigned “in the interest of justice” 77 as is the existence of some objective chance of success at the appeals stage. 78 In cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. 79 Counsel provided by the competent authorities on the basis of this provision must be effective in the representation of the accused. Unlike in the case of privately retained lawyers, 80 blatant misbehaviour or incompetence, for example the withdrawal of an appeal without consultation in a death penalty case, 81 or absence during the hearing of a witness in such cases 82 may entail the responsibility of the State concerned for a violation of article 14, paragraph 3 (d), provided that it was manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice.83 There is also a violation of this provision if the court or other relevant authorities hinder appointed lawyers from fulfilling their task effectively. 84

Paragraph 3 (e) of article 14 guarantees the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. As an application of the principle of equality of arms, this guarantee is important for ensuring an effective defence by the accused and their counsel and thus guarantees the accused the same legal powers of compelling the attendance of witnesses and of examining or cross‑examining any witnesses as are available to the prosecution. It does not, however, provide an unlimited right to obtain the attendance of any witness requested by the accused or their counsel, but only a right to have witnesses admitted that are relevant for the defence, and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings. Within these limits, and subject to the limitations on the use of statements, confessions and other evidence obtained in violation of article 7, 85 it is primarily for the domestic legislatures of States parties to determine the admissibility of evidence and how their courts assess it.

The right to have the free assistance of an interpreter if the accused cannot understand or speak the language used in court as provided for by article 14, paragraph 3 (f) enshrines another aspect of the principles of fairness and equality of arms in criminal proceedings. 86 This right arises at all stages of the oral proceedings. It applies to aliens as well as to nationals. However, accused persons whose mother tongue differs from the official court language are, in principle, not entitled to the free assistance of an interpreter if they know the official language sufficiently to defend themselves effectively. 87

Finally, article 14, paragraph 3 (g), guarantees the right not to be compelled to testify against oneself or to confess guilt. This safeguard must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. A fortiori, it is unacceptable to treat an accused person in a manner contrary to article 7 of the Covenant in order to extract a confession. 88 Domestic law must ensure that statements or confessions obtained in violation of article 7 of the Covenant are excluded from the evidence, except if such material is used as evidence that torture or other treatment prohibited by this provision occurred, 89 and that in such cases the burden is on the State to prove that statements made by the accused have been given of their own free will. 90

VI. Juvenile persons

Article 14, paragraph 4, provides that in the case of juvenile persons, procedures should take account of their age and the desirability of promoting their rehabilitation. Juveniles are to enjoy at least the same guarantees and protection as are accorded to adults under article 14 of the Covenant. In addition, juveniles need special protection. In criminal proceedings they should, in particular, be informed directly of the charges against them and, if appropriate, through their parents or legal guardians, be provided with appropriate assistance in the preparation and presentation of their defence; be tried as soon as possible in a fair hearing in the presence of legal counsel, other appropriate assistance and their parents or legal guardians, unless it is considered not to be in the best interest of the child, in particular taking into account their age or situation. Detention before and during the trial should be avoided to the extent possible. 91
States should take measures to establish an appropriate juvenile criminal justice system, in order to ensure that juveniles are treated in a manner commensurate with their age. It is important to establish a minimum age below which children and juveniles shall not be put on trial for criminal offences; that age should take into account their physical and mental immaturity.
Whenever appropriate, in particular where the rehabilitation of juveniles alleged to have committed acts prohibited under penal law would be fostered, measures other than criminal proceedings, such as mediation between the perpetrator and the victim, conferences with the family of the perpetrator, c ounselling or community service or educational programmes, should be considered, provided they are compatible with the requirements of this Covenant and other relevant human rights standards.

VII. Review by a higher tribunal

Article 14, paragraph 5 of the Covenant provides that anyone convicted of a crime shall have the right to have their conviction and sentence reviewed by a higher tribunal according to law. As the different language versions (crime, infraction, delito) show, the guarantee is not confined to the most serious offences. The expression “according to law” in this provision is not intended to leave the very existence of the right of review to the discretion of the States parties, since this right is recognised by the Covenant, and not merely by domestic law. The term according to law rather relates to the determination of the modalities by which the review by a higher tribunal is to be carried out, 92 as well as which court is responsible for carrying out a review in accordance with the Covenant. Article 14, paragraph 5 does not require States parties to provide for several instances of appeal. 93 However, the reference to domestic law in this provision is to be interpreted to mean that if domestic law provides for further instances of appeal, the convicted person must have effective access to each of them. 94

Article 14, paragraph 5 does not apply to procedures determining rights and obligations in a suit at law 95 or any other procedure not being part of a criminal appeal process, such as constitutional motions. 96

Article 14, paragraph 5 is violated not only if the decision by the court of first instance is final, but also where a conviction imposed by an appeal court 97 or a court of final instance, 98 following acquittal by a lower court, according to domestic law, cannot be reviewed by a higher court. Where the highest court of a country acts as first and only instance, the absence of any right to review by a higher tribunal is not offset by the fact of being tried by the supreme tribunal of the State party concerned; rather, such a system is incompatible with the Covenant, unless the State party concerned has made a reservation to this effect. 99

The right to have one’s conviction and sentence reviewed by a higher tribunal established under article 14, paragraph 5, imposes on the State party a duty to review substantively, both on the basis of sufficiency of the evidence and of the law, the conviction and sentence, such that the procedure allows for due consideration of the nature of the case. 100 A review that is limited to the formal or legal aspects of the conviction without any consideration whatsoever of the facts is not sufficient under the Covenant. 101 However, article 14, paragraph 5 does not require a full retrial or a “hearing”, 102 as long as the tribunal carrying out the review can look at the factual dimensions of the case. Thus, for instance, where a higher instance court looks at the allegations against a convicted person in great detail, considers the evidence submitted at the trial and referred to in the appeal, and finds that there was sufficient incriminating evidence to justify a finding of guilt in the specific case, the Covenant is not violated. 103

The right to have one’s conviction reviewed can only be exercised effectively if the convicted person is entitled to have access to a duly reasoned, written judgement of the trial court, and, at least in the court of first appeal where domestic law provides for several instances of appeal, 104 also to other documents, such as trial transcripts, necessary to enjoy the effective exercise of the right to appeal. 105 The effectiveness of this right is also impaired, and article 14, paragraph 5 violated, if the review by the higher instance court is unduly delayed in violation of paragraph 3 (c) of the same provision. 106

A system of supervisory review that only applies to sentences whose execution has commenced does not meet the requirements of article 14, paragraph 5, regardless of whether such review can be requested by the convicted person or is dependent on the discretionary power of a judge or prosecutor. 107

The right of appeal is of particular importance in death penalty cases. A denial of legal aid by the court reviewing the death sentence of an indigent convicted person constitutes not only a violation of article 14, paragraph 3 (d), but at the same time also of article 14, paragraph 5, as in such cases the denial of legal aid for an appeal effectively precludes an effective review of the conviction and sentence by the higher instance court. 108 The right to have one’s conviction reviewed is also violated if defendants are not informed of the intention of their counsel not to put any arguments to the court, thereby depriving them of the opportunity to seek alternative representation, in order that their concerns may be ventilated at the appeal level. 109

VIII. Compensation in cases of miscarriage of justice

According to paragraph 6 of article 14 of the Covenant, compensation according to the law shall be paid to persons who have been convicted of a criminal offence by a final decision and have suffered punishment as a consequence of such conviction, if their conviction has been reversed or they have been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. 110 It is necessary that States parties enact legislation ensuring that compensation as required by this provision can in fact be paid and that the payment is made within a reasonable period of time.

This guarantee does not apply if it is proved that the non-disclosure of such a material fact in good time is wholly or partly attributable to the accused; in such cases, the burden of proof rests on the State. Furthermore, no compensation is due if the conviction is set aside upon appeal, i.e. before the judgement becomes final, 111 or by a pardon that is humanitarian or discretionary in nature, or motivated by considerations of equity, not implying that there has been a miscarriage of justice. 112

IX. Ne bis in idem

Article 14, paragraph 7 of the Covenant, providing that no one shall be liable to be tried or punished again for an offence of which they have already been finally convicted or acquitted in accordance with the law and penal procedure of each country, embodies the principle of ne bis in idem. This provision prohibits bringing a person, once convicted or acquitted of a certain offence, either before the same court again or before another tribunal again for the same offence; thus, for instance, someone acquitted by a civilian court cannot be tried again for the same offence by a military or special tribunal. Article 14, paragraph 7 does not prohibit retrial of a person convicted in absentia who requests it, but applies to the second conviction.
Repeated punishment of conscientious objectors for not having obeyed a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience. 113

The prohibition of article 14, paragraph 7, is not at issue if a higher court quashes a conviction and orders a retrial. 114 Furthermore, it does not prohibit the resumption of a criminal trial justified by exceptional circumstances, such as the discovery of evidence which was not available or known at the time of the acquittal.

This guarantee applies to criminal offences only and not to disciplinary measures that do not amount to a sanction for a criminal offence within the meaning of article 14 of the Covenant. 115 Furthermore, it does not guarantee ne bis in idem with respect to the national jurisdictions of two or more States. 116 This understanding should not, however, undermine efforts by States to prevent retrial for the same criminal offence through international conventions. 117

X. Relationship of article 14 with other provisions of the Covenant

As a set of procedural guarantees, article 14 of the Covenant often plays an important role in the implementation of the more substantive guarantees of the Covenant that must be taken into account in the context of determining criminal charges and rights and obligations of a person in a suit at law. In procedural terms, the relationship with the right to an effective remedy provided for by article 2, paragraph 3 of the Covenant is relevant. In general, this provision needs to be respected whenever any guarantee of article 14 has been violated. 118 However, as regards the right to have one’s conviction and sentence reviewed by a higher tribunal, article 14, paragraph 5 of the Covenant is a lex specialis in relation to article 2, paragraph 3 when invoking the right to access a tribunal at the appeals level. 119

In cases of trials leading to the imposition of the death penalty scrupulous respect of the guarantees of fair trial is particularly important. The imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life (article 6 of the Covenant). 120

To ill-treat persons against whom criminal charges are brought and to force them to make or sign, under duress, a confession admitting guilt violates both article 7 of the Covenant prohibiting torture and inhuman, cruel or degrading treatment and article 14, paragraph 3 (g) prohibiting compulsion to testify against oneself or confess guilt.121

If someone suspected of a crime and detained on the basis of article 9 of the Covenant is charged with an offence but not brought to trial, the prohibitions of unduly delaying trials as provided for by articles 9, paragraph 3, and 14, paragraph 3 (c) of the Covenant may be violated at the same time. 122

The procedural guarantees of article 13 of the Covenant incorporate notions of due process also reflected in article 14 123 and thus should be interpreted in the light of this latter provision. Insofar as domestic law entrusts a judicial body with the task of deciding about expulsions or deportations, the guarantee of equality of all persons before the courts and tribunals as enshrined in article 14, paragraph 1, and the principles of impartiality, fairness and equality of arms implicit in this guarantee are applicable. 124 All relevant guarantees of article 14, however, apply where expulsion takes the form of a penal sanction or where violations of expulsion orders are punished under criminal law.

The way criminal proceedings are handled may affect the exercise and enjoyment of rights and guarantees of the Covenant unrelated to article 14. Thus, for instance, to keep pending, for several years, indictments for the criminal offence of defamation brought against a journalist for having published certain articles, in violation of article 14, paragraph 3 (c), may leave the accused in a situation of uncertainty and intimidation and thus have a chilling effect which unduly restricts the exercise of his right to freedom of expression (article 19 of the Covenant). 125 Similarly, delays of criminal proceedings for several years in contravention of article 14, paragraph 3 (c), may violate the right of a person to leave one’s own country as guaranteed in article 12, paragraph 2 of the Covenant, if the accused has to remain in that country as long as proceedings are pending. 126

As regards the right to have access to public service on general terms of equality as provided for in article 25 (c) of the Covenant, a dismissal of judges in violation of this provision may amount to a violation of this guarantee, read in conjunction with article 14, paragraph 1 providing for the independence of the judiciary. 127

Procedural laws or their application that make distinctions based on any of the criteria listed in article 2, paragraph 1 or article 26, or disregard the equal right of men and women, in accordance with article 3, to the enjoyment of the guarantees set forth in article 14 of the Covenant, not only violate the requirement of paragraph 1 of this provision that “all persons shall be equal before the courts and tribunals,” but may also amount to discrimination. 128



1 General comment, No. 24 (1994) on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, para. 8.

2 General comment No. 29 (2001) on article 4: Derogations during a state of emergency, para. 15.

3 Ibid, paras. 7 and 15.

4 Cf. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 15.

5 General comment No. 29 (2001) on article 4: Derogations during a state of emergency, para. 11.

6 Communication No. 1015/2001, Perterer v. Austria, para. 9.2 (disciplinary proceedings against a civil servant); Communication No. 961/2000, Everett v. Spain, para. 6.4 (extradition).

7 Communication No. 468/1991, Oló Bahamonde v. Equatorial Guinea, para. 9.4.

8 Communication No. 202/1986, Ato del Avellanal v. Peru, para. 10.2 (limitation of the right to represent matrimonial property before courts to the husband, thus excluding married women from suing in court). See also general comment No. 18 (1989) on non-discrimination, para. 7.

9 Communications No. 377/1989, Currie v. Jamaica, para. 13.4; No. 704/1996, Shaw v. Jamaica, para. 7.6; No. 707/1996, Taylor v. Jamaica, para. 8.2; No. 752/1997, Henry v. Trinidad and Tobago, para. 7.6; No. 845/1998, Kennedy v. Trinidad and Tobago, para. 7.10.

10 Communication No. 646/1995, Lindon v. Australia , para. 6.4.

11 Communication No. 779/1997, Äärelä and Näkkäläjärvi v. Finland, para. 7.2.

12 Communication No. 450/1991, I.P. v. Finland, para. 6.2.

13 Communication No. 1347/2005, Dudko v. Australia, para. 7.4.

14 Communication No. 1086/2002, Weiss v. Austria, para. 9.6. For another example of a violation of the principle of equality of arms see Communication No. 223/1987, Robinson v. Jamaica, para. 10.4 (adjournment of hearing).

15 Communication No. 846/1999, Jansen-Gielen v. The Netherlands , para. 8.2 and No. 779/1997, Äärelä and Näkkäläjärvi v. Finland, para. 7.4.

16 E.g. if jury trials are excluded for certain categories of offenders (see concluding observations, United Kingdom of Great Britain and Northern Ireland, CCPR/CO/73/UK (2001), para. 18) or offences.

17 Communication No. 1015/2001, Perterer v. Austria, para. 9.2.

18 Communication No. 112/1981, Y.L. v. Canada, paras. 9.1 and 9.2.

19 Communication No. 441/1990, Casanovas v. France, para. 5.2.

20 Communication No. 454/1991, Garcia Pons v. Spain, para. 9.3

21 Communication No. 112/1981, Y.L. v. Canada, para. 9.3.

22 Communication No. 779/1997, Äärelä and Näkkäläjätvi v. Finland, paras. 7.2 – 7.4.

23 Communication No. 837/1998, Kolanowski v. Poland, para. 6.4.

24 Communications No. 972/2001, Kazantzis v. Cyprus, para. 6.5; No. 943/2000, Jacobs v. Belgium, para. 8.7, and No. 1396/2005, Rivera Fernández v. Spain, para. 6.3.

25 Communication No. 845/1998, Kennedy v. Trinidad and Tobago, para. 7.4.

26 Communication No. 1015/2001, Perterer v. Austria, para. 9.2 (disciplinary dismissal).

27 Communications No. 1341/2005, Zundel v. Canada, para. 6.8, No. 1359/2005, Esposito v. Spain, para. 7.6.

28 See para. 62 below.

29 Communication No. 263/1987, Gonzalez del Rio v. Peru, para. 5.2.

30 Concluding observations, Slovakia, CCPR/C/79/Add.79 (1997), para. 18.

31 Communication No. 468/1991, Oló Bahamonde v. Equatorial Guinea, para. 9.4.

32 Communication No. 814/1998, Pastukhov v. Belarus, para. 7.3.

33 Communication No. 933/2000, Mundyo Busyo et al v. Democratic Republic of Congo, para. 5.2.

34 Communication No. 387/1989, Karttunen v. Finland, para. 7.2.

35 Idem.

36 Also see Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, art. 64 and general comment No. 31 (2004) on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 11.

37 See communication No. 1172/2003, Madani v. Algeria, para. 8.7.

38 Communication No. 1298/2004, Becerra Barney v. Colombia, para.7.2.

39 Communications No. 577/1994, Polay Campos v. Peru, para. 8.8; No. 678/1996, Gutiérrez Vivanco v. Peru, para. 7.1; No. 1126/2002, Carranza Alegre v. Peru, para. 7.5.

40 Communication No. 678/1996, Gutiérrez Vivanco v. Peru, para. 7.1.

41 Communication No.577/1994, Polay Campos v. Peru, para. 8.8; Communication No. 1126/2002, Carranza Alegre v. Peru, para.7.5.

42 Communication No. 1058/2002, Vargas Mas v. Peru, para. 6.4.

43 Communication No. 1125/2002, Quispe Roque v. Peru, para. 7.3.

44 Communication No. 678/1996, Gutiérrez Vivanco v. Peru, para. 7.1; Communication No. 1126/2002, Carranza Alegre v. Peru, para.7.5; Communication No. 1125/2002, Quispe Roque v. Peru, para. 7.3; Communication No. 1058/2002, Vargas Mas v. Peru, para. 6.4.

45 Communications No. 577/1994, Polay Campos v. Peru, para. 8.8 ; No. 678/1996, Gutiérrez Vivanco v. Peru, para. 7.1.

46 Communication No. 770/1997, Gridin v. Russian Federation, para. 8.2.

47 See Committee on the Elimination of Racial Discrimination, communication No. 3/1991, Narrainen v. Norway, para. 9.3.

48 Communications No. 273/1988, B.d.B. v. The Netherlands, para. 6.3; No. 1097/2002, Martínez Mercader et al v. Spain, para. 6.3.

49 Communication No. 1188/2003, Riedl-Riedenstein et al. v. Germany, para. 7.3; No. 886/1999, Bondarenko v. Belarus, para. 9.3; No. 1138/2002, Arenz et al. v. Germany, admissibility decision, para. 8.6.

50 Communication No. 253/1987, Kelly v. Jamaica, para. 5.13; No. 349/1989, Wright v. Jamaica, para. 8.3.

51 Communication No. 203/1986, M*noz Hermoza v. Peru, para. 11.3 ; No. 514/1992, Fei v. Colombia, para. 8.4 .

52 See e.g. Concluding observations, Democratic Republic of Congo, CCPR/C/COD/CO/3 (2006), para. 21, Central African Republic, CCPR//C/CAF/CO/2 (2006), para. 16.

53 Communication No. 215/1986, Van Meurs v. The Netherlands, para. 6.2.

54 Communication No. 301/1988, R.M. v. Finland, para. 6.4.

55 Communication No. 819/1998, Kavanagh v. Ireland, para. 10.4.

56 Communication No. 770/1997, Gridin v. Russian Federation, paras. 3.5 and 8.3.

57 On the relationship between article 14, paragraph 2 and article 9 of the Covenant (pre-trial detention) see, e.g. concluding observations, Italy, CCPR/C/ITA/CO/5 (2006), para. 14 and Argentina, CCPR/CO/70/ARG (2000), para. 10.

58 Communication No. 788/1997, Cagas, Butin and Astillero v. Philippines, para. 7.3.

59 Communication No. 207/1986, Morael v. France, para. 9.5; No. 408/1990, W.J.H. v. The Netherlands, para. 6.2; No. 432/1990, W.B.E. v. The Netherlands, para. 6.6.

60 Communication No. 1056/2002, Khachatrian v. Armenia, para. 6.4.

61 Communication No. 253/1987, Kelly v. Jamaica, para. 5.8.

62 Communications No. 1128/2002, Márques de Morais v. Angola, para. 5.4 and 253/1987, Kelly v. Jamaica, para. 5.8.

63 Communication No. 16/1977, Mbenge v. Zaire, para. 14.1.

64 Communications No. 282/1988, Smith v. Jamaica , para. 10.4; Nos. 226/1987 and 256/1987, Sawyers, Mclean and Mclean v. Jamaica , para. 13.6.

65 See communication No. 451/1991, Harward v. Norway, para. 9.5.

66 Communication No. 1128/2002, Morais v. Angola, para. 5.6. Similarly Communications No. 349/1989, Wright v. Jamaica, para. 8.4; No. 272/1988, Thomas v. Jamaica, para. 11.4; No. 230/87, Henry v. Jamaica, para. 8.2; Nos. 226/1987 and 256/1987, Sawyers, Mclean and Mclean v. Jamaica, para. 13.6.

67 Communication No. 1128/2002, Márques de Morais v. Angola, para. 5.4.

68 Communications No. 913/2000, Chan v. Guyana, para. 6.3; No. 594/1992, Phillip v. Trinidad and Tobago, para. 7.2.

69 See concluding observations, Canada, CCPR/C/CAN/CO/5 (2005), para. 13.

70 Communication No. 451/1991, Harward v. Norway, para. 9.5.

71 Communications No. 1117/2002, Khomidova v. Tajikistan, para. 6.4; No. 907/2000, Siragev v. Uzbekistan, para. 6.3; No. 770/1997, Gridin v. Russian Federation, para. 8.5.

72 See e.g. communication No. 818/1998, Sextus v Trinidad and Tobago, para. 7.2 regarding a delay of 22 months between the charging of the accused with a crime carrying the death penalty and the beginning of the trial without specific circumstances justifying the delay. In communication No. 537/1993, Kelly v. Jamaica, para. 5.11, an 18 months delay between charges and beginning of the trial did not violate art. 14, para. 3 (c). See also communication No. 676/1996, Yasseen and Thomas v. Guyana, para. 7.11 (delay of two years between a decision by the Court of Appeal and the beginning of a retrial) and communication No. 938/2000, Siewpersaud, Sukhram, and Persaud v. Trinidad v Tobago, para. 6.2 (total duration of criminal proceedings of almost five years in the absence of any explanation from the State party justifying the delay).

73 Communication No. 818/1998, Sextus v. Trinidad and Tobago, para. 7.2.

74 Communications No. 1089/2002, Rouse v. Philippines, para.7.4; No. 1085/2002, Taright, Touadi, Remli and Yousfi v. Algeria, para. 8.5.

75 Communications No. 16/1977, Mbenge v. Zaire, para. 14.1; No. 699/1996, Maleki v. Italy, para. 9.3.

76 Communication No. 1123/2002, Correia de Matos v. Portugal, paras. 7.4 and 7.5.

77 Communication No. 646/1995, Lindon v. Australia, para. 6.5.

78 Communication No. 341/1988, Z.P. v. Canada, para. 5.4.

79 Communications No. 985/2001, Aliboeva v. Tajikistan, para. 6.4; No. 964/2001, Saidova v. Tajikistan, para. 6.8; No. 781/1997, Aliev v. Ukraine, para. 7.3; No. 554/1993, LaVende v. Trinidad and Tobago, para. 58.

80 Communication No. 383/1989, H.C. v. Jamaica, para. 6.3.

81 Communication No. 253/1987, Kelly v. Jamaica, para. 9.5.

82 Communication No. 838/1998, Hendricks v. Guyana, para. 6.4. For the case of an absence of an author’s legal representative during the hearing of a witness in a preliminary hearing see Communication No. 775/1997, Brown v. Jamaica, para. 6.6.

83 Communications No. 705/1996, Taylor v. Jamaica, para. 6.2 ; No. 913/2000, Chan v. Guyana, para. 6.2; No. 980/2001, Hussain v. Mauritius, para. 6.3.

84 Communication No. 917/2000, Arutyunyan v. Uzbekistan, para. 6.3.

85 See para. 6 above.

86 Communication No. 219/1986, Guesdon v. France, para. 10.2.

87 Idem.

88 Communications No. 1208/2003, Kurbonov v. Tajikistan, paras. 6.2 – 6.4; No. 1044/2002, Shukurova v. Tajikistan , paras. 8.2 – 8.3; No. 1033/2001, Singarasa v. Sri Lanka, para. 7.4; ; No. 912/2000, Deolall v. Guyana, para. 5.1; No. 253/1987, Kelly v. Jamaica, para. 5.5.

89 Cf. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 15. On the use of other evidence obtained in violation of article 7 of the Covenant, see paragraph 6 above.

90 Communications No. 1033/2001, Singarasa v. Sri Lanka, para. 7.4; No. 253/1987, Kelly v. Jamaica, para. 7.4.

91 See general comment No. 17 (1989) on article 24 (Rights of the child), para. 4.

92 Communications No. 1095/2002, Gomaríz Valera v. Spain, para. 7.1; No. 64/1979, Salgar de Montejo v. Colombia, para.10.4.

93 Communication No. 1089/2002, Rouse v. Philippines, para. 7.6.

94 Communication No. 230/1987, Henry v. Jamaica, para. 8.4.

95 Communication No. 450/1991, I.P. v. Finland, para. 6.2.

96 Communication No. 352/1989, Douglas, Gentles, Kerr v. Jamaica, para. 11.2.

97 Communication No. 1095/2002, Gomariz Valera v. Spain, para. 7.1.

98 Communication No. 1073/2002, Terrón v Spain, para. 7.4.

99 Idem.

100 Communications No. 1100/2002, Bandajevsky v. Belarus, para. 10.13; No. 985/2001, Aliboeva v. Tajikistan, para. 6.5; No. 973/2001, Khalilova v. Tajikistan , para. 7.5; No. 623-627/1995, Domukovsky et al. v. Georgia, para.18.11; No. 964/2001, Saidova v. Tajikistan, para. 6.5; No. 802/1998, Rogerson v. Australia, para. 7.5; No. 662/1995, Lumley v. Jamaica, para. 7.3.

101 Communication No. 701/1996, Gómez Vázquez v. Spain, para. 11.1.

102 Communication No. 1110/2002, Rolando v. Philippines, para. 4.5; No. 984/2001, Juma v. Australia, para. 7.5; No. 536/1993, Perera v. Australia, para. 6.4.

103 E.g. communications No. 1156/2003, Pérez Escolar v. Spain, para. 3; No. 1389/2005, Bertelli Gálvez v. Spain, para. 4.5.

104 Communications No. 903/1999, Van Hulst v. Netherlands, para. 6.4; No. 709/1996, Bailey v. Jamaica, para. 7.2; No. 663/1995, Morrison v. Jamaica , para. 8.5.

105 Communication No. 662/1995, Lumley v. Jamaica, para. 7.5.

106 Communications No. 845/1998, Kennedy v. Trinidad and Tobago , para. 7.5; No. 818/1998, Sextus v. Trinidad and Tobago, para. 7.3; No. 750/1997, Daley v. Jamaica, para. 7.4; No. 665/1995, Brown and Parish v. Jamaica, para. 9.5; No. 614/1995, Thomas v. Jamaica, para. 9.5; No. 590/1994, Bennet v. Jamaica, para. 10.5.

107 Communications No. 1100/2002, Bandajevsky v. Belarus, para. 10.13; No. 836/1998, Gelazauskas v. Lithuania, para. 7.2.

108 Communication No. 554/1993, LaVende v. Trinidad and Tobago, para. 5.8.

109 See communications No. 750/1997, Daley v Jamaica, para. 7.5; No. 680/1996, Gallimore v Jamaica, para. 7.4; No. 668/1995, Smith and Stewart v. Jamaica , para.7.3. See also Communication No. 928/2000, Sooklal v. Trinidad and Tobago, para. 4.10.

110 Communications No. 963/2001, Uebergang v. Australia, para. 4.2; No. 880/1999, Irving v. Australia, para. 8.3; No. 408/1990, W.J.H. v. Netherlands, para. 6.3.

111 Communications No. 880/1999; Irving v. Australia, para. 8.4; No. 868/1999, Wilson v. Philippines, para. 6.6.

112 Communication No. 89/1981, Muhonen v. Finland, para. 11.2.

113 See United Nations Working Group on Arbitrary Detention, Opinion No. 36/1999 (Turkey), E./CN.4/2001/14/Add. 1, para. 9 and Opinion No. 24/2003 (Israel), E/CN.4/2005/6/Add. 1, para. 30.

114 Communication No. 277/1988, Terán Jijón v. Ecuador, para. 5.4.

115 Communication No. 1001/2001, Gerardus Strik v. The Netherlands, para. 7.3.

116 Communications No. 692/1996, A.R.J. v. Australia, para. 6.4; No. 204/1986, A.P. v. Italy, para. 7.3.

117 See, e.g. Rome Statute of the International Criminal Court, article 20, para. 3.

118 E.g. Communications No. 1033/2001, Singarasa v. Sri Lanka, para. 7.4; No. 823/1998, Czernin v. Czech Republic, para. 7.5.

119 Communication No. 1073/2002, Terrón v. Spain , para. 6.6.

120 E.g. communications No. 1044/2002, Shakurova v. Tajikistan, para. 8.5 (violation of art. 14 para. 1 and 3 (b), (d) and (g)); No. 915/2000, Ruzmetov v. Uzbekistan, para.7.6 (violation of art. 14, para. 1, 2 and 3 (b), (d), (e) and (g)); No. 913/2000, Chan v. Guyana, para. 5.4 (violation of art. 14 para. 3 (b) and (d)); No. 1167/2003, Rayos v. Philippines, para. 7.3 (violation of art. 14 para. 3(b)).

121 Communications No. 1044/2002, Shakurova v. Tajikistan, para. 8.2; No. 915/2000, Ruzmetov v. Uzbekistan, paras. 7.2 and 7.3; No. 1042/2001, Boimurodov v. Tajikistan, para. 7.2, and many others. On the prohibition to admit evidence in violation of article 7, see paragraphs. 6 and 41 above.

122 Communications No. 908/2000, Evans v. Trinidad and Tobago, para. 6.2; No. 838/1998, Hendricks v. Guayana, para. 6.3, and many more.

123 Communication No. 1051/2002 Ahani v. Canada, para. 10.9. See also communication No. 961/2000, Everett v. Spain, para. 6.4 (extradition), 1438/2005, Taghi Khadje v. Netherlands, para. 6.3.

124 See communication No. 961/2000, Everett v. Spain, para. 6.4.

125 Communication No. 909/2000, Mujuwana Kankanamge v. Sri Lanka, para. 9.4.

126 Communication No. 263/1987, Gonzales del Rio v. Peru, paras. 5.2 and 5.3.

127 Communications No. 933/2000, Mundyo Busyo et al. v. Democratic Republic of Congo, para. 5.2.; No. 814/1998, Pastukhov v. Belarus, para. 7.3.

128 Communication No. 202/1986, Ato del Avellanal v. Peru, paras. 10.1 and 10.2.

General Comment 13, Art. 14 (ICCPR) (Right to due process)

Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994).

1. The Committee notes that article 14 of the Covenant is of a complex nature and that different aspects of its provisions will need specific comments. All of these provisions are aimed at ensuring the proper administration of justice, and to this end uphold a series of individual rights such as equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. Not all reports provided details on the legislative or other measures adopted specifically to implement each of the provisions of article 14.

2. In general, the reports of States parties fail to recognize that article 14 applies not only to procedures for the determination of criminal charges against individuals but also to procedures to determine their rights and obligations in a suit at law. Laws and practices dealing with these matters vary widely from State to State. This diversity makes it all the more necessary for States parties to provide all relevant information and to explain in greater detail how the concepts of “criminal charge” and “rights and obligations in a suit at law” are interpreted in relation to their respective legal systems.

3. The Committee would find it useful if, in their future reports, States parties could provide more detailed information on the steps taken to ensure that equality before the courts, including equal access to courts, fair and public hearings and competence, impartiality and independence of the judiciary are established by law and guaranteed in practice. In particular, States parties should specify the relevant constitutional and legislative texts which provide for the establishment of the courts and ensure that they are independent, impartial and competent, in particular with regard to the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office; the condition governing promotion, transfer and cessation of their functions and the actual independence of the judiciary from the executive branch and the legislative.

4. The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. The Committee has noted a serious lack of information in this regard in the reports of some States parties whose judicial institutions include such courts for the trying of civilians. In some countries such military and special courts do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of article 14 which are essential for the effective protection of human rights. If States parties decide in circumstances of a public emergency as contemplated by article 4 to derogate from normal procedures required under article 14, they should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation, and respect the other conditions in paragraph 1 of article 14.

5. The second sentence of article 14, paragraph 1, provides that “everyone shall be entitled to a fair and public hearing”. Paragraph 3 of the article elaborates on the requirements of a “fair hearing” in regard to the determination of criminal charges. However, the requirements of paragraph 3 are minimum guarantees, the observance of which is not always sufficient to ensure the fairness of a hearing as required by paragraph 1.

6. The publicity of hearings is an important safeguard in the interest of the individual and of society at large. At the same time article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons spelt out in that paragraph. It should be noted that, apart from such exceptional circumstances, the Committee considers that a hearing must be open to the public in general, including members of the press, and must not, for instance, be limited only to a particular category of persons. It should be noted that, even in cases in which the public is excluded from the trial, the judgement must, with certain strictly defined exceptions, be made public.

7. The Committee has noted a lack of information regarding article 14, paragraph 2 and, in some cases, has even observed that the presumption of innocence, which is fundamental to the protection of human rights, is expressed in very ambiguous terms or entails conditions which render it ineffective. By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial.

8. Among the minimum guarantees in criminal proceedings prescribed by paragraph 3, the first concerns the right of everyone to be informed in a language which he understands of the charge against him (subpara. (a)). The Committee notes that State reports often do not explain how this right is respected and ensured. Article 14 (3) (a) applies to all cases of criminal charges, including those of persons not in detention. The Committee notes further that the right to be informed of the charge “promptly” requires that information is given in the manner described as soon as the charge is first made by a competent authority. In the opinion of the Committee this right must arise when in the course of an investigation a court or an authority of the prosecution decides to take procedural steps against a person suspected of a crime or publicly names him as such. The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally or in writing, provided that the information indicates both the law and the alleged facts on which it is based.

9. Subparagraph 3 (b) provides that the accused must have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. What is “adequate time” depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel. When the accused does not want to defend himself in person or request a person or an association of his choice, he should be able to have recourse to a lawyer. Furthermore, this subparagraph requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter.

10. Subparagraph 3 (c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place “without undue delay”. To make this right effective, a procedure must be available in order to ensure that the trial will proceed “without undue delay”, both in first instance and on appeal.

11. Not all reports have dealt with all aspects of the right of defence as defined in subparagraph 3 (d). The Committee has not always received sufficient information concerning the protection of the right of the accused to be present during the determination of any charge against him nor how the legal system assures his right either to defend himself in person or to be assisted by counsel of his own choosing, or what arrangements are made if a person does not have sufficient means to pay for legal assistance. The accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defences and the right to challenge the conduct of the case if they believe it to be unfair. When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary.

12. Subparagraph 3 (e) states that the accused shall be entitled to examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. This provision is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.

13. Subparagraph 3 (f) provides that if the accused cannot understand or speak the language used in court he is entitled to the assistance of an interpreter free of any charge. This right is independent of the outcome of the proceedings and applies to aliens as well as to nationals. It is of basic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obstacle to the right of defence.

14. Subparagraph 3 (g) provides that the accused may not be compelled to testify against himself or to confess guilt. In considering this safeguard the provisions of article 7 and article 10, paragraph 1, should be borne in mind. In order to compel the accused to confess or to testify against himself, frequently methods which violate these provisions are used. The law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable.

15. In order to safeguard the rights of the accused under paragraphs 1 and 3 of article 14, judges should have authority to consider any allegations made of violations of the rights of the accused during any stage of the prosecution.

16. Article 14, paragraph 4, provides that in the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. Not many reports have furnished sufficient information concerning such relevant matters as the minimum age at which a juvenile may be charged with a criminal offence, the maximum age at which a person is still considered to be a juvenile, the existence of special courts and procedures, the laws governing procedures against juveniles and how all these special arrangements for juveniles take account of “the desirability of promoting their rehabilitation”. Juveniles are to enjoy at least the same guarantees and protection as are accorded to adults under article 14.

17. Article 14, paragraph 5, provides that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. Particular attention is drawn to the other language versions of the word “crime” (“infraction”, “delito”, “prestuplenie”) which show that the guarantee is not confined only to the most serious offences. In this connection, not enough information has been provided concerning the procedures of appeal, in particular the access to and the powers of reviewing tribunals, what requirements must be satisfied to appeal against a judgement, and the way in which the procedures before review tribunals take account of the fair and public hearing requirements of paragraph 1 of article 14.

18. Article 14, paragraph 6, provides for compensation according to law in certain cases of a miscarriage of justice as described therein. It seems from many State reports that this right is often not observed or insufficiently guaranteed by domestic legislation. States should, where necessary, supplement their legislation in this area in order to bring it into line with the provisions of the Covenant.

19. In considering State reports differing views have often been expressed as to the scope of paragraph 7 of article 14. Some States parties have even felt the need to make reservations in relation to procedures for the resumption of criminal cases. It seems to the Committee that most States parties make a clear distinction between a resumption of a trial justified by exceptional circumstances and a re-trial prohibited pursuant to the principle of ne bis in idem as contained in paragraph 7. This understanding of the meaning of ne bis in idem may encourage States parties to reconsider their reservations to article 14, paragraph 7.

The Right to Access to Court under the Caselaw of the European Court of HR

The Right to Access to Court under the Caselaw of the European Court of Human Rights —
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The right to access to court is one of the components of the right to fair trial protected by Article 6 of the European Convention on Human Rights. Although the text of the Convention alone does not contain a specific reference to the right to access the court it is established by the caselaw of the European Court of Human Rights that the right to access to court is an inherent part of the fair trial guarantees provided by Article 6. In one of its early decisions, Golder v. UK, the Court held that Article 6 “secures to everyone the right to have any claim related to his civil rights and obligations brought before a court or tribunal.”

The right to access to court is not an absolute right and some limitations of this right may be compatible with the Convention if they have a legitimate purpose and are proportional to the goal they aim to achieve. The Convention guarantees however “rights that are practical and effective and not theoretical and illusory” and therefore under Article 6.1 the states are obliged to secure to everybody an effective right to access to court. Legal or factual limitations of this right may be found to be in violation of the Convention if they impede applicant’s effective right to access the court.

One of the potential factual limitations of the right to access to court is the question of excessive court fees. In the case of Kreuz v. Poland the Court held that while the requirement to pay court fees in civil cases does not violate Article 6, para.1 per se, any restriction of the right to access to court should meet several requirements. To be compatible with Article 6, para. 1, a restriction on the right to access should pursue a legitimate aim and there should be a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved. In Kreuz the issue at stake was the refusal of the domestic courts to grant an exemption from court fees amounting to the average annual salary in the country. Considering the amount of the fee and the fact that the refusal to grant a waiver in this case has resulted in discontinuing the claim, the Court found that the domestic authorities had failed to secure a proper balance between the interest of the state in collecting court fees and the interest of the applicant in bringing his claim to the courts. In these circumstances and in the absence of evidence of applicant’s ability to pay, the Court found the fee excessive and the refusal to grant exemption in violation of the applicant’s right to access to court.

In some cases, states’ obligations under Article 6.1 may require the state to take some positive steps in order to secure an effective right to access to court to everyone. In the case of Airey v. Ireland , the European Court held that although the Convention does not explicitly provide for a right to free legal assistance in civil cases, in some circumstances it may oblige the state to provide legal aid in civil disputes. Article 6.1 may require the states to provide free legal assistance when such assistance proves indispensable for securing an effective access to court either because legal representation is mandatory under the domestic law or because of the complexity of the procedure or the case.

In this case the Court held that the mere possibility to appear in person in the proceedings would not satisfy the requirements of the Convention if it cannot be reasonably expected that the person will be able to effectively represent her/himself. The Court rejected the government’s argument that the Convention guarantees civil and political and not social and economic rights and therefore the obligation to provide legal aid is beyond the scope of the Convention and held that fulfillment of a duty under the Convention may sometimes require “positive action on the part of the State.” In such circumstances the state “cannot simply remain passive” and “there is no room to distinguish between acts and omissions.”

While the Convention obliges the states to secure an effective right to access to court, the states may select the method of securing this right, whether by providing legal aid in civil cases, by simplifying the procedural requirements or through other means. Legal aid might be required if legal representation is mandatory, or if there are complex issues of law and fact. In Airey, the applicant was seeking legal aid in order to obtain a decree of judicial separation from her abusive husband in a relatively complicated procedure.

In contrast, in the criminal law context, the Convention provides for a number of specific fair trial rights for persons charged with criminal offenses in addition to the general fair trial guarantees of Article 6.1. The European Court has focused on the right to access to free legal assistance, provided by Article 6.3(c) of the Convention, as the primary means of securing access to court for defendants in criminal proceedings.

Article 6.3(c) of the Convention guarantees to persons charged with a criminal offense the right to have legal representation, including the right to access to free legal assistance if “he has no sufficient means” and “the interests of justice so require.” Through interpretation of this provision, the European Court of Human Rights has established that the states are obliged to provide free legal representation if two conditions are met: the defendant does not have enough means (financial criterion), and free legal assistance is required by “the interests of justice” (substantive criterion).

First, the Convention requires a state to provide free legal assistance to a person charged with a criminal offense only if that person lacks sufficient means to retain a lawyer independently. Neither the Convention nor the Court’s jurisprudence indicates a specific quantity of money defining what constitutes sufficient means. While the Court decides on the specific circumstances in every case whether or not a person falls within this requirement, the burden of proof to demonstrate lack of sufficient means falls on the person charged with the offense. The defendant is not required to prove lack of sufficient means beyond all doubt and an offer to prove lack of means in the absence of clear indications to the contrary satisfies the means test of Article 6.3(c).

Second, under the Convention a state is required to provide free legal assistance to an indigent defendant only if this is necessary in the “interests of justice.” To determine whether the interests of justice invoke the state’s obligation, the European Court takes several factors into consideration: the complexity of the case as a matter of law and as a matter of fact, the ability of the accused to understand the case, and the accused’s ability to defend himself in person. But probably the most weight in the Court’s decision has the factor what is “at stake” for the defendant, specifically the severity of the potential sentence, as a factor that alone can trigger a state’s obligation to provide free legal assistance.

In the case of Quaranta v. Switzerland (1991), for example, the applicant was subject to a maximum sentence of three years for drug trafficking. Even though he was sentenced to only 6 months for the crime, “free legal assistance should have been afforded by the mere fact that so much was at stake.” Moreover, in Benham v. UK (1996), the European Court held that “where deprivation of liberty is at stake the interests of justice in principle call for legal representation.” In that particular case, the applicant was subject to a deprivation of liberty of up to three months for non-payment of community charge. This principle was confirmed in Perks and others v UK (1999).

If the financial and the substantive criteria are met the state is under an obligation to provide free legal assistance to the defendant and the question of whether the lack of legal assistance has prejudiced the actual proceedings is irrelevant for finding a violation of Article 6.3(c). Under the Convention the states are obliged to guarantee an effective right to free legal representation; therefore failure to provide enough time and facilities for the state appointed lawyer to prepare for the case constitutes a violation of the Convention. Although a state cannot be held responsible for every shortcoming of the defense of the court appointed lawyer, a state will be found in violation of the Convention if it fails to ensure that the defendant enjoys effectively the right to free legal representation. Thus, in Artico, for instance, the state’s failure to replace a less than diligent court appointed lawyer, or to oblige him to fulfil his duties, was found to be in violation of the applicant’s effective right to free legal representation.

The right to free legal assistance applies to the proceedings as a whole, including the pretrial proceedings, the trial stage, the appellate proceedings and the cassation proceedings if applicable. Factors to consider in determining whether the interests of justice require free legal assistance in appellate or cassation proceedings include the nature of the proceedings, the powers of the appellate court (or the court of cassation, respectively), the capacity of an unrepresented appellant to present legal argument and the importance of the issue at stake in view of the severity of the sentence.

The Court addressed the question of reimbursement of the costs for the state appointed lawyer after conviction in the case of Croissant v. Germany. The general requirement for reimbursement of trial related fees, including the costs of the state appointed lawyer, was found per se compatible with Article 6.3(c) of the Convention because the enforcement proceedings generally follow the criminal proceedings and cannot affect their fairness. The question of a possible post conviction reimbursement of the attorney’s fees by an indigent defendant, however, was not decided in this case.

The European Court of Human Rights through interpretation of the Convention has established a number of specific guarantees to the right to access to court in civil cases and the right to free legal representation in criminal cases, which aim to secure that the fair trial provisions will be applied equally to everybody, irrespective of their financial situation. These guarantees have been developed over the time and the Council of Europe jurisprudence reflects an increasing concern with access to justice.

A Commentary on Nazi criminal justice

A Commentary on the Justice Case

by Doug Linder (c) 2000

No one contends, of course, that German judges and prosecutors destroyed as many lives as did the SS, Gestapo, or other agencies of the Nazi machine.  Their victims number in the thousands, not the millions.  A judge who knowingly sentenced even one innocent Jew or Pole to death was, however, guilty in the eyes of the prosecutors and judges at the Justice Trial in Nuremberg.  There would be no “only a couple of atrocities” defense.

Ingo Muller, in Hitler’s Justice: The Courts of the Third Reich, provides a penetrating picture of the workings of the criminal justice system in Nazi Germany.  Muller’s analysis of the evidence suggests that most German judges–contrary to common opinion–were ultraconservative nationalists who were largely sympathetic to Nazi goals.  The “Nazification” of German law occurred with the willing and enthusiatic help of judges, rather than over their principled objections.

Many judges appointed before the Nazi rise to power–because of the economic and social circles that judges were drawn from–had views that were quite compatible with the Nazi party.  A few Jewish judges sat on the bench when the Nazis assumed power–but only a very few.  A 1933 law removed those few Jewish judges from officee.

Only a handful of the non-Jewish judges demonstrated real courage in the face of Nazi persecution and violations of civil liberties.  One who did was Lothar Kressig, a county court judge who issued injunctions agains sending hospital patients to extermination camps.  When ordered to withdraw his injunctions, Kreyssig refused.  He also attempted to initiate a prosecution of Nazis for their role in the program.  Kreyssig, under pressure, eventually resigned.

In the Justice trial, American prosecutors sought to demonstrate a pattern of judicial and prosecutorial support for Nazi programs of persecution, sterilization, extermination, and other gross violations of human rights.  In order to prove an individual defendant guilty, prosecutors had to show that the defendant consciously furthered these human rights abuses.

The violations of human rights progressively worsened as the Nazis solidified power and began their wars of aggression.  In 1938, laws were adopted that imposed different levels of punishment for the same crime–a tougher punishment for Jews, a lighter one for other Germans.  By 1940, sterilization programs were underway.  By 1942, the “Final Solution,” the wholesale extermination of Jews and other persons deemed undesirable, was in full swing.

Two features of German law combined to facilitate the Nazi’s evil schemes.  The first was that German law, unlike the law of the United States and many other nations, lacked “higher law” (constitutional or ethical standards) that might be resorted to by judges to avoid the harsh effects of discriminatory laws adopted by the Nazi regime.  The second difficulty was that there was no separation of powers between the executive and judicial branches of government.  Hitler declared, and the Reichstag agreed, had the power “to intervene in any case.”  This was done, legally, through what was called “an extraordinary appeal for nullification of sentence.”  The nullification invariably resulted in a sentence the Nazis thought was too light being replaced by a more severe sentence, often death.  If these features of German law weren’t enough, the Nazis also assigned a member of the Security Service to each judge to funnel secret information about the judges back to Hitler and his henchmen.

The excerpt from the decision of the tribunal (printed on this page) includes the judgments for two of the Justice trial defendants, Franz Schlegelberger and Oswald Rothaug.  In the movie Judgment at Nuremberg, Burt Lancaster played the role of a German judge (Ernst Janning) that was based loosely on the prosecution of Schlegelberger.

Schlegelberger is the more sympathetic of the two defendants.  He served in the Ministry of Justice from 1931-1942.  For the last seventeen months of his service, Schlegelberger was Director of the Ministry of Justice.  He wrote several books on the law and was called at the time of his retirement, “the last of the German jurists.”  Schlegelberger argued in his defense that he was bound to follow the orders of Hitler, the “Supreme Judge” of Germany, but that he did so only reluctantly.  Schlegelberger pointed out that he did not join the Nazis until 1938, and then only because he was ordered to do so by Hitler.  Schlegelberger claimed to have harbored no ill-will toward the Jews.  His personal physician, in fact, was Jewish.  In his defense, he also stresses that he resisted the proposal that sent “half Jews” to concentration camps.  Schlegelberger suggested giving “half Jews” a choice between sterilization and evacuation.  He also argued that he continued to serve as long as he did because “if I had resigned, a worse man would have taken by place.”  Indeed, once Schlegelberger did resign, brutality increased.

In its decision, the Justice trial tribunal considered what it called Schlegelberger’s “hesitant injustices.”  The tribunal concluded that Schlegelberger “loathed the evil that he did” and that his real love was for the “life of the intellect, the work of the scholar.”  In the end he resigned because “the cruelties of the system were too much for him.”  Despite its obvious sympathy with Schlegelberger’s plight, the tribunal finds him guilty.  It pointed out that the decision of a man of his stature to remain in office lent credibilty to the Nazi regime.  Moreover, Schegelberger did sign his name to orders that, in the tribunal’s judgment, constituted crimes.  One case described in the decision involved the prosecution in 1941 of a Jew (Luftgas) accused of “hoarding eggs.”  Schlegelberger gave Luftgas a two-and-a-half-year sentence, but then Hitler indicated that he wanted the convicted man executed.  Although Schlegelberger may well have protested, he signed his name to the order that led to the execution of Luftgas.  Another case cited by the tribunal concerned a remission-of-sentence order signed by Schlegelberger.  Scheleberger explained in his decision that the sentence imposed against a police officer who was convicted of beating a Jewish milking hand would have been bad for the morale of officers.

Although Sclegelberger received a life sentence in Nuremberg, he was released from prison in 1951 and received a generous monthly pension until his death.

The tribunal found “no mitigating circumstances” in the case of Oswald Rothaug.  In its decision, the tribunal calls Rothaug “a sadistic and evil man.” Rothaug, unlike Schlegelberger, had no reservations about enthusiatically supporting the Nazi pattern of human rights abuses.  One case used by the tribunal to illustrate Rothaug’s guilt involved a sixty-eight-year-old Leo Katzenberger, head of the Nuremberg Jewish community.  Katzenberger stood accused of violating Article 2 of the Law for the Protection of German Blood.  The law forbid sexual intercourse between Jews and other German nationals.  Katzenberger was accused of having sexual intercouse with a nineteen-year-old German photographer, Seillor.  Both Katzenberger and Seillor denied the charge.  Katzenberger described the relationship between the two of them as “fatherly.”  The most incriminating evidence the prosecution produced was that Seiler was seen sitting on Katzenberger’s lap.  That, in Rothaug’s view, was enough: “It is sufficinet for me that the swine said that a German girl sat upon his lap!”  Rothaug arranged to have Katzenberger’s trial transferred to a special court.  In the special court, high-ranking Nazi officials–in uniform–took the stand to express their opinions that Katzenberger was guilty.  Rothaug’s real trick, however, was getting Katzenberger’s punishment increased from life in prison (the normal punishment for violations of Article 2) to death.  This he did by a creative construction of a law that prescribed death for breaking certain laws “to take advantage of the war effort.”  Rothaug argued that death was the appropriate punishment for Katzenberger because he exploited the lights-out situation provided by air raid precautions to develop his “romance” with Seiler.

Most German judges over-identified with the Nazi regime.  They came to see themselves as fighters on the internal battlefront, with the responsibilty to punish “the enemy within.”

Richard A. Posner, federal court of appeals judge and one of the most astute observers of the legal scene, has noted that it is not only German judges that might over-identify with popular causes.  In the New Republic, Posner writes:

Perhaps in the fullness of time the growing of marijuana plants, the “manipulation” of financial markets, the bribery of foreign government officials, the facilitating of the suicide by the terminally ill, and the violation of arcane regulations governing the financing of political campaigns will come to be no more appropriate objects of criminal punishment  than “dishonoring the race.”  Perhaps not; but [the story of the German judges] can in any event help us to see that judges should not be eager enlisters in popular movements of the day, or allow themselves to become so immersed in a professional culture that they are oblivious to the human consequences of their decisions.”


U.S.A. v. ALSTOETTER ET AL (The Justice Cases): Excerpts from the Decision

[Note: The movie Judgment at Nuremberg was based on this set of cases.]

War Crimes and Crimes Against Humanity

We next approach the problem of the construction of C.C. Law 10, for whatever the scope of international common law may be, the power to enforce it in this case is defined and limited by the terms of the jurisdictional act.

The first penal provision of Control Council Law No. 10, with which we are concerned is as follows:

Article II, l.”Each of the following acts is recognized as a crime: . . . (b) War crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

The scope of inquiry as to war crimes is, of course, limited by the provisions, properly construed, of the Charter and C.C. Law 10.  In this particular, the two enactments are in substantial harmony.  Both indicate by inclusion and exclusion the intent that the term “war crime” shall be employed to cover acts in violation of the laws and customs of war directed against non-Germans, and shall not include atrocities committed by Germans against their own nationals.  It will be observed that Article VI of the Charter enumerates as war crimes acts against prisoners of war, persons on the seas, hostages, wanton destruction of cities and the like, devastation not justified by military necessity, plunder of public or private property (obviously not property of Germany or Germans), and “ill treatment or deportation to slave labor, or for any other purpose, of civilian population of, or in, occupied territory”.  C.C. Law 10, supra, employs similar language. It reads:

. . . ill treatment or deportation to slave labor or for any other purpose of civilian population from occupied territory“.

This legislative intent becomes more manifest when we consider the provisions of the Charter and of C.C. Law 10 which deal with crimes against humanity.  Article VI of the Charter defines crimes against humanity, as follows:

. . . murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

C.C. Law 10 defines as criminal:

. . . Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other acts committed against any civilian population, or persecutions on political, racial or religious groups whether or not in violation of the domestic laws of the country where perpetrated.

Obviously, these sections are not surplusage. They supplement the preceding sections on war crimes and include within their prohibition not only war crimes, but also acts not included within the preceding definitions of war crimes. In place of atrocities committed against civilians of or in or from occupied territory, those sections prohibit atrocities against any civilian population”.Again, persecutions on racial, religious, or political grounds are within our jurisdiction “whether or not in violation of the domestic laws of the country where perpetrated”. We have already demonstrated that C.C. Law 10 is specifically directed to the punishment of German criminals. It is, therefore, clear that the intent of the statute on crimes against humanity is to punish for persecutions and the like, whether in accord with or in violation of the domestic laws of the country where perpetrated, to wit: Germany. The intent was to provide that compliance with German law should be no defense. Article III of C.C. Law 10 clearly demonstrates that acts by Germans against German nationals may constitute crimes against humanity within the jurisdiction of this Tribunal to punish. That Article provides that each occupying authority within its zone of occupation shall have the right to cause persons suspected of having committed a crime to be arrested and . . . (d) shall have the right to cause all persons so arrested . . . to be brought to trial . . . . Such Tribunal may, in case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German court, if authorized by the occupying authorities.

As recently asserted by General Telford Taylor before Tribunal No. IV, in the case of the United States vs. Flick, et al.:

This constitutes an explicit recognition that acts committed by Germans against other Germans are punishable as crimes under Law No. 10, according to the definitions contained therein, since only such crimes may be tried by German courts, in the discretion of the occupying power. If the occupying power fails to authorize German courts to try crimes committed by Germans against other Germans (and in the American Zone of Occupation no such authorization has been given), then these cases are tried only before non-German tribunals, such as these Military Tribunals.

Our jurisdiction to try persons charged with crimes against humanity is limited in scope, both by definition and illustration, as appears from C.C. Law 10. It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual”. The provision is directed against offenses and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.

The opinion of the first International Military Tribunal in the case against Goering, et al., lends apport [sic] to our conclusion. That opinion recognized the distinction between war crimes and crimes against humanity, and said:

. . . in so far as the inhumane acts charged in the indictment and committed after the beginning of the war did not constitute war crimes, they were all committed in execution of, or in connection with, aggressive war and, therefore, constituted crimes against humanity.” (Trial of major war criminals, Vol. I, pp. 254-255).

The Ex Post Facto Principle

The defendants claim protection under the principle nullum crimen sine lege, though they withheld from others the benefit of that rule during the Hitler regime. Obviously the principle in question constitutes no limitation upon the power or right of the Tribunal to punish acts which can properly be held to have been violations of international law when committed. By way of illustration, we observe that C.C. Law 10, Article II, 1 (b), “War Crimes”, has by reference incorporated the rules by which war crimes are to be identified. In all such cases it remains only for the Tribunal, after the manner of the common law, to determine the content of those rules under the impact of changing conditions.

Whatever view may be held as to the nature and source of our authority under C.C. Law 10 and under common international law, the ex post facto rule, properly understood, constitutes no legal nor moral barrier to prosecution in this case.

Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decisions of common law courts, though the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the event. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth . . . .

As a principle of justice and fair play, the rule in question will be given full effect. As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught. Whether it be considered codification or substantive legislation, no person who knowingly committed the acts made punishable by C.C. Law 10 can assert that he did not know that he would be brought to account for his acts. Notice of intent to punish was repeatedly given by the only means available in international affairs, namely, the solemn warning of the governments of the States at war with Germany.

The Law in Action

We pass now from the forgoing incomplete summary of Nazi legislation to a consideration of the law in action, and of the influence of the “Fuehrer principle” as it affected the officials of the Ministry of Justice, prosecutor, and judges. Two basic principles controlled conduct within the Ministry of Justice. The first concerned the absolute power of Hitler in person or by delegated authority to enact, enforce, and adjudicate law. The second concerned the incontestability of such law. Both principles were expounded by the learned Professor Jahrreiss, a witness for all of the defendants. Concerning this first principle, Dr. Jahrreiss said:

If now in the European meaning one asks about legal restrictions, and first of all one asks about restrictions of the German law, one will have to say that restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. Anybody who said something different expresses a wish that does not describe the actual legal facts.

Concerning the second principle, Jahrreiss supported the opinion of Gerhard Anschuetz, “Crown Jurist of the Weimar Republic”, who holds that if German laws were enacted by regular procedure, judicial authorities were without power to challenge them on Constitutional or ethical grounds. Under the Nazi system, and even prior thereto, German judges were also bound to apply German law even when in violation of the principles of international law, As stated by Professor Jahrreiss:

To express it differently, whether the law has been passed by the State in such a way that it was inconsistent with international law on purpose or not, that could not play any part at all; and that was the legal state of affairs, regrettable as it may be.

This, however, is not to deny the superior authority of international law. Again we quote a statement of extraordinary candor by Professor Jahrreiss:

On the other hand, certainly there were local restrictions for Hitler under international law. He was bound by international law. Therefore, he could commit acts violating international law. Therefore, he could issue orders violating international law to the Germans.

The conclusion to be drawn from the evidence, presented by the defendants themselves is clear: In German legal theory Hitler”s law was a shield to those who acted under it, but before a Tribunal authorized to enforce international law, Hitler’s decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations.
In German legal theory, Hitler was not only the Supreme Legislator, he was also the Supreme Judge. On 26 April 1942 Hitler addressed the Reichstag in part as follows:

I do expect one thing: that the nation gives me the right to intervene immediately and to take action myself whenever a person has failed to render unqualified obedience….

I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position without regard for his person or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty….

From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.

On the same day the Greater German Reichstag resolved in part as follows:

 . . . the Fuehrer must have all the rights postulated by him which serve to further or achieve victory. Therefore”without being bound by existing legal regulations”in his capacity as leader of the nation, Supreme Commander of the Armed Forces, governmental chief and supreme executive chief, as supreme justice, and leader of the Party”the Fuehrer must be in a position to force with all means at his disposal every German, if necessary, whether he be common soldier or officer, low or high official or judge, leading or subordinate official of the Party, worker or employee, to fulfill his duties. In case of violation of these duties, the Fuehrer is entitled after conscientious examination, regardless of so-called well-deserved rights, to mete out due punishment, and to remove the offender from his post, rank and position, without introducing prescribed procedures.

The assumption by Hitler of supreme governmental power in all departments did not represent a new development based on the emergency of war. The declaration of the Reichstag was only an echo of Hitler”s declaration of 13 July 1934. After the mass murders of that date (the Roehm purge) which were committed by Hitler”s express orders, he said:

Whenever someone reproaches me with not having used ordinary court for their sentencing, I can only say: “In this hour I am responsible for the fate of the German nation and hence the supreme law lord of the German people”.

The conception of Hitler as the Supreme Judge was supported by the defendant Rothenberger. We quote:

However, something entirely different has occurred; with the Fuehrer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge”first of all, of course, as “judge” over their fate in general, but also as “supreme magistrate and judge”.

In the same document the defendant Rothenberger expounded the National Socialist theory of judicial independence. He said:
Upon the fact that the judge can use his own discretion is founded the magic of the word “judge”.
He asserted that “every private and Party official must abstain from all interference or influence upon the judgment”, but this statement appears to be mere window-dressing, for after his assertion that a judge “must judge like the Fuehrer”, he said:

In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the “Judge of the Fuehrer”. He is to convey to the German judge the will of the Fuehrer by authentic explanation of the laws and regulations. At the same time he must upon the request of the judge give binding information in current trials concerning fundamental political, economic, or legal problems which cannot be surveyed by the individual judge.

Thus it becomes clear that the Nazi theory of the judicial independence was based upon the supreme independence of the Fuehrer, which was to be channelized through the proposed liaison officer from Fuehrer to judge.
On 13 November 1934, Goering, in an address before the Academy for German Law, expressed similar sentiments concerning the position of Hitler.

Gentlemen, for the German nation this matter was settled by the words of the judge in this hour, the Fuehrer, who stated that in this hour of uttermost danger he alone, the Fuehrer elected by the people, was the supreme and only judge of the German nation.

The defendant Schlegelberger, on 10 March 1936, said:

It should be emphasized, however, that in the sphere of the law, also, it is the Fuehrer and he alone who sets the pace of development.

To the same effect we quote Reich Minister of Justice Dr. Thierack, who, on 5 January 1943, said:

So also with as the conviction has grown in these ten years in which the Fuehrer has led the German people that the Fuehrer is the Chief Justice and the Supreme Judge of the German people.

On17 February 1943 the defendant Under-Secretary Dr. Rothenberger summed up his legal philosophy with the words:

The judge is on principle bound by the law. The laws are the orders of the Fuehrer.

As will be seen, the foregoing pronouncements by the leaders in the field of Nazi jurisprudence were not mere idle theories. Hitler did, in fact, exercise the right assumed by him to act as Supreme Judge, and in that capacity in many instances he controlled the decision of the individual criminal cases.
The evidence demonstrates that Hitler and his top-ranking associates were by no means content with the issuance of general directives for the guidance of the judicial process. They tenaciously insisted upon the right to interfere in individual criminal sentences. In discussing the right to refuse confirmation of sentences imposed by criminal courts, Martin Bormann, as Chief of the Party Chancellery, wrote to Dr, Lammers, Chief of the Reich Chancellery, as follows:

When the Fuehrer has expressly requested the right of direct interference over all formal legal provisions, this is emphasizing the very importance of the modification of a judicial sentence.”‘
The Ministry of Justice was acutely conscious of the interference by Hitler in the administration of criminal law. On 10 March 1941 Schlegelberger wrote to Reich Minister Lammers in part as follows:

It has come to my knowledge that just recently a number of sentences passed have roused the strong disapproval of the Fuehrer. I do not know exactly which sentences are concerned, but I have ascertained for myself that now and then sentences are pronounced, which are quite untenable. In such cases I shall act with the utmost energy and decision. It is, however, of vital importance for justice and its standing in the Reich, that the head of the Ministry of Justice should know to which sentences the Fuehrer objects, . . . .

On the same date Schlegelberger wrote to Hitler in part as follows:

In the course of the verdicts pronounced daily there are still judgments which do not entirely comply with the necessary requirements. In such cases I will take the necessary steps . . . . Apart from this it is desirable to educate the judges more and more to a correct way of thinking, conscious of the national destiny. For this purpose it would be invaluable, if you, my Fuehrer, could let me know if a verdict does not meet with your approval. The judges are responsible to you, my Fuehrer; they are conscious of this responsibility and are firmly resolved to discharge their duties accordingly. Heil, my Fuehrer!

Hitler not only complied with the foregoing request, but proceeded beyond it. Upon his personal orders persons who been sentenced to prison terms were turned over to the Gestapo for execution. We quote briefly from the testimony of Dr. Hans Gramm, who for many years was personal referent to the defendant Schlegelberger, and who testified in his behalf.

Q: Do you know anything about transfers of condemned persons to the police, or to the Gestapo

A: I know that it frequently occurred that Hitler gave orders to the police to call for people who had been sentenced to prison terms. To be sure, it was an order from Hitler directed to the police to the effect that the police had to take such and such a man into their custody. Those orders had rather short limits. As a rule, there was only a time limit of 24 hours before execution by the police, after which the police had to report that it had been executed. These transfers, as far as I can remember, took place only during the war.

This procedure was well-known in the ministry of Justice. Gramm was informed by the defendant Schlegelberger that the previous Reich Minister Justice, Dr. Guertner, had protested to Dr. Lammers against this procedure and had received the reply:

That the courts could not stand up to the special requirements of the war, and that therefore these transfers would have to continue.

The only net result of the protest was that “from that time on in every individual case when such a transfer had been ordered, the Ministry of Justice was informed about that.
The witness, Dr. Lammers, former Chief of the Reich Chancellery whose hostility toward the prosecution, and evasiveness, were obvious, conceded that the practice was continued under Schlegelberger, though Lammers stated that Schlegelberger never agreed to it.
By reference to case histories we will illustrate three different methods by which Hitler, through the Ministry of Justice, imposed his will in disregard of judicial proceedings. One Schlitt had been sentenced to a prison term, as a result of which Schlegelberger received a telephone call from Hitler protesting the sentence. In response the defendant Schlegelberger on 24 March 1942 wrote in part as follows:

I entirely agree with your demand, my Fuehrer, for very severe punishment for crime, and I assure you that the judges honestly wish to comply with your demand. Constant instructions in order to strengthen them in this intention, and the increase of threats of legal punishment, have resulted in a considerable decrease of the number of sentences to which objections have been wade from this point of view, out of a total annual number of more than 300,000.
I shall continue to try to reduce this number still more, and if necessary, I shall not shrink from personal measures, as before.In the criminal case against the building technician Ewald Schlitt from Wilhelmshaven, I have applied through the Public Prosecutor for an extraordinary plea for nullification against the sentence, at the Special Senate of the Reich Court. I will inform you of the verdict of the Special Senate immediately it has been given.

On 6 May 1942, Schlegelberger informed Hitler that the ten year sentence against Schlitt was “quashed within ten days and that Schlitt was sentenced to death and executed at once”.
In the case against Anton Scharff, the sentence of ten years penal servitude had been imposed. Thereupon, on 25 May 1941,Bormann wrote to Dr. Lammers: “The Fuehrer believes this sentence entirely incomprehensible * * *. The Fuehrer requests that you inform State Secretary Schlegelberger again of his point of view.
On 28 June 1941 defendant Schlegelberger wrote Dr. Lammers:

I am very obliged to the Fuehrer for informing me, on my request, of his conception of atonements of blackout crimes in reference to the sentence of the Munich Special Court against Anton Scharff. I shall re-instruct the presidents of the courts of appeal and the Chief Public Prosecutors of this conception of the Fuehrer as soon as possible.

As a final illustration of a general practice, we refer to the case of the Jew Luftgas, who had been sentenced to two and one-half years imprisonment for hoarding eggs. On 25 October 1941 Lammers notified Schlegelberger: “The Fuehrer wishes that Luftgas be sentenced to death”. On 29 October 1941 Schlegelberger wrote Lammers: “***I have handed over to the Gestapo for the purpose of execution the Jew Marcus Luftgas who had been sentenced to two and one-half years imprisonment ***”.
Although Hilter”s personal intervention in criminal cases was a matter of common occurrence, his chief control over the judiciary was exercised by the delegation of his power to the Reich Minister of Justice, who, on 20 August 1942, was expressly authorized “to deviate from any existing law”.
Among those of the Ministry of Justice who joined in the constant pressure upon the judges in favor of more severe or more discriminatory administration of justice, we find Thierack, Schlegelberger, Klemm, Rothenberger, and Joel. Neither the threat of removal nor the sporadic control of criminal justice in individual cases was sufficient to satisfy the requirements of the Ministry of Justice. As stated by the defendant Rothaug, “only during 1942, after Thierack took over the Ministry, the “guidance” of justice was begun. ***There was an attempt to guide the administration of justice uniformly from above.
In September 1942 Thierack commenced the systematic distribution to the German judges of Richterbriefs. The first letter to the judges under date of 1 October 1942 called their attention to the fact that Hitler was the Supreme Judge and that “leadership and judgeship have related characters”. We quote:

A corps of judges like this will not slavishly use the crutches of law. It will not anxiously search for support by the law, but, with a satisfaction in its responsibility, it will find within the limits of the law the decision which is the most satisfactory for the life of the community.

In the judges” letters Thierack discussed particular decisions which had been made in the various courts and which failed to conform to National Socialist ideology. As an illustration of the type of guidance which was furnished by the Ministry of Justice to the German judiciary, we cite a few instances from the Richterbriefs:
A letter to the judges of 1 October 1942 discusses a case decided in a district court on 24 November 1941. A special coffee ration had been distributed to the population of a certain town. A number of Jews applied for the coffee ration but did not receive it, being “excluded from the distribution per se”. The food authorities imposed fines upon the Jews for making the unsuccessful application. In 500 cases the Jews appealed to the court and the judge informed the food authorities that the imposition of a fine could not be upheld for legal reasons, one of which was the statute of limitations. In deciding favorably to the Jews, the court wrote a lengthy opinion stating that the interpretation on the part of the food authorities was absolutely incompatible with the established facts. We quote, without comment, the discussion of the Reich Minister of Justice concerning the manner in which the case was decided:

The ruling of the district court, in form and content matter, borders on embarrassing a German administrative authority to the advantage of Jewry. The judge should have asked himself the question: What is the reaction of the Jew to this 20-page long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority, and does not devote one word to the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which under any circumstances avoided harming the prestige of the food office and thus putting the Jew expressly in the right toward it.

A Richterbrief also discusses the case of a Jew who, after the “Aryanization of his firm, attempted to get funds transferred to Holland without a permit. He also attempted to conceal some of his assets. Concerning this case the judges of Germany received the following “guidance”:

The court applies the same criteria for the award of punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people. Not only is he of different but he is also of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment.

Space does not permit the citation of other instances of this form of perverted political guidance of the courts. Notwithstanding solemn protestations on the part of the Minister that the interdependence of the judge was not to be affected, the evidence satisfies us beyond a reasonable doubt that the purpose of the judicial guidance was sinister and was known to be such by the Ministry of Justice and by the judges who received the directions. If the letters had been written in good faith with the honest purpose of aiding independent judges in the performance of their duties, there would have been no occasion for the carefully guarded secrecy with which the letters were distributed. A letter of 17 November 1942 instructs the judges that the letters are to be “carefully locked up to avoid that they get into the hands of unauthorized persons. The receivers are subject to official secrecy as far as the contents of the judges”letters are concerned”.
In a letter of 17 November 1942 Thierack instructs the judges that “in cases where judges and prosecutors are suspected of political unreliability they are to be excluded in a suitable manner from the list of subscribers to the judges” letters.
Not being content with regimenting the judges and Chief Prosecutors and making them subservient to the National Socialist administration of justice, Dr. Thierack next took up the regimentation of the lawyers. On 11 March 1943 he wrote to the various judges and prosecutors announcing the proposed distribution of confidential lawyers” letters. An examination of these letters convinced the Tribunal that the actual, though undeclared purpose, was to suggest to defense counsel that they avoid any criticism of National Socialist justice and refrain from too much ardor in the defense of persons charged with political crimes.
Not only did Thierack exert direct influence upon the judges, but he employed as his representative the most sinister, brutal and bloody judge in the entire German judicial system. In a letter to Freisler, President of the People’s Court, Thierack said that the judgment of the People’s Court must be “in harmony with the leadership of the State”. He urges Freisler to have every charge submitted to him and to recognize the cases in which it was necessary “in confidential and convincing discussion with the judge competent for the verdict to emphasize what is necessary from the point of view of the State”. He continues:

As a general rule, the judge of the People”s Court must get used to regarding the ideas and intentions of the State leadership as the primary factor and the individual fate which depends on him as only a secondary factor.

He continues:

I will try to illustrate this with individual cases:
1. If a Jew”and a leading Jew at that”is charged with high treason”even if he is only an accomplice therein”, he has behind him the hate and the will of Jewry to exterminate the German people. As a rule this will therefore be high treason and must be punished by the death penalty.

He concludes with the following admonition to Freisler, which appears to have been wholly unnecessary:

In case you should ever be in doubt as to which line to follow or which political necessities to take into consideration, please address yourself to me in all confidence.

It will be recalled that on 26 April 1942 Hitler stated that he would remove from office “those judges who evidently do not understand the demand of the hour.” The effect of this pronouncement upon such judges as still retained ideals of judicial independence can scarcely be over-estimated. The defendant Rothenberger stated that it was “absolutely crushing”.
In a private letter to his brother, the defendant Oeschey expressed his view of the situation created by Hitler’s interference in the following words:

After the well-known Fuehrer speech things developed in a frightful manner. I was never a supporter of the stubborn doctrine of the independence of the judge which granted the judge within the frame of the law the position of a public servant, only subordinated to his conscience but otherwise “neutral”, that is, politically completely independent. * * * Now it is an absurdity to tell the judge in an individual case which is subject to his decision how he has to decide. Such a system would make the judge superfluous; such things have now com to pass. Naturally it was not done in an open manner; but even the most camouflaged form could not hide the fact that a directive was to be given. Thereby the office of judge is naturally abolished and the procedures in a trial become a farce. I will not discuss who bears the guilt of such a development.

The threat alone of the removal was sufficient to impair the independence of the judges, but the evidence discloses that measures were actually carried out for the removal or transfer of judges who proved unsatisfactory from the Party standpoint.On 29 March 1941 Schlegelberger received a letter from the Chief of the Reich Chancellery protesting against the sentence which had been imposed against the Polish farmhand Wojciesk. The court at Luenburg had recognized some extenuating circumstances in the case.
Schlegelberger was advised as follows:

The Fuehrer urges you to take immediately the steps necessary to preclude repetition in other courts of the view of the Luenburg court.

The final degradation of the judiciary is disclosed in a secret communication by Ministerial Director Letz of the Reich Ministry of Justice to Dr. Vollmer, also a Ministerial Director in the Department. Not only were the judges “guided” and at times coerced; they wore also spied upon. We quote:

Moreover, I know from documents, which the Minister produces from time to time out of his private files, that the Security Service takes up special problems of the administration of justice with thoroughness and makes summarized situation reports about them. As far as I am informed, a member of the Security Service is attached to each judicial authority. This member is obliged to give information under the seal of secrecy. This procedure is secret and the person who gives the information is not named. In this way we get, so to say, anonymous reports. Reasons given for this procedure are of State political interest. As long as the direct interests of the State security are concerned, nothing can be said against it, especially in wartime.

In view of the conclusive proof of the sinister influences which were in constant interplay between Hitler, his Ministers, the Ministry of Justice, the Party, the Gestapo, and the courts, we see no merit in the suggestion that Nazi judges are entitled to the benefit of the Anglo-American doctrine of judicial immunity. The doctrine that judges are not personally liable for their judicial actions is based on the concept of an independent judiciary administering impartial justice. Furthermore, it has never prevented the prosecution of a judge for malfeasance in office. If the evidence cited supra does not demonstrate the utter destruction of judicial independence and impartiality, then we “never writ nor no man ever”proved. The function of the Nazi courts was judicial only in a limited sense. They more closely resembled administrative tribunals acting under directives from above in a quasi-judicial manner.
In operation the Nazi system forced the judges into one of two categories. In the first we find the judges who still retained ideals of judicial independence and who administered justice with a measure of impartiality and moderation. Judgments which they rendered were act aside by the employment of the nullity plan and the extraordinary objection. The defendants they sentenced were frequently transferred to the Gestapo on completion of prison terms and were then shot or sent to concentration camps. The judges themselves were threatened and criticized and sometimes removed from office. To this group the defendant Ouhorst belonged. In the other category were the judges who with fanatical zeal enforced the will of the Party with such severity that they experienced no difficulties and little interference from Party officials. To this group the defendants Rothaug and Oeschey belonged.
Racial Persecution

The record contains innumerable acts of persecution of individual Poles and Jews, but to consider these cases as isolated and unrelated instances of perversion of justice would be to overlook the very essence of the offense charged in the indictment.The defendants are not now charged with conspiracy as a separate and substantive offense, but it is alleged that they participated in carrying out a governmental plan and program for the persecution and extermination of Jews and Poles, a plan which transcended territorial boundaries as well as the bounds of human decency. Some of the defendants took part in the enactment of laws and decrees the purpose of which was the extermination of Poles and Jews in Germany and throughout Europe. Others, in executive positions, actively participated in the enforcement of those laws and in atrocities, illegal even under German law, in furtherance of the declared national purpose. Others, as judges, distorted and then applied the laws and decrees against Poles and Jews as such in disregard of every principle of judicial behavior. The over 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 discriminatory laws themselves formed the subject matter of war crimes and crimes against humanity with which the defendants are charged. The material facts which must be proved in any case are: (1) the fact of the great pattern or plan of racial persecution and extermination; and (2) specific conduct of the individual defendant in furtherance of the plan. This is but an application of general concepts of criminal law. The person who persuades another to commit murder, the person who furnishes the lethal weapon for the purpose of its commission, and the person who pulls the trigger are all principals or accessories to the crime.

 We turn to the national pattern or plan for racial extermination.

Fundamentally, the program was one for the actual extermination of Jews and Poles, either by means of killing or by confinement in concentration camps, which merely made death slower and more painful. But lesser forms of racial persecution were universally practiced by governmental authority and constituted an integral part in the general policy of the Reich. We have already noted the decree by which Jews were excluded from the legal profession. Intermarriage between Jews and persons of German blood was prohibited. Sexual intercourse between Jews and German nationals was punished with extreme severity by the courts. By other decrees Jews were almost completely expelled from public service, from educational institutions, and from many business enterprises. Upon the death of a Jew his property was confiscated. Under the provisions for confiscation under the 11th amendment to the German Citizenship Law, supra, the decision as to confiscation of the property of living Jews was left to the Chief of the Security Police and the SD. The law against Poles and Jews, cited supra (4 December 1941), was rigorously enforced. Poles and Jews convicted of specific crimes were subjected to different types of punishment from that imposed upon Germans who had committed the same crimes. Their rights as defendants in court were severely circumscribed. Courts were empowered to impose death sentences on Poles and Jews even where such punishment was not prescribed by law, if the evidence showed “particularly objectionable motives”. And, finally, the police were given carte blanche to punish all “criminal” acts committed by Jews without any employment of the judicial process. From the great mass of evidence we can only cite a few illustrations of the character and operation of the program.

On 30 January 1939, in an address before the Reichstag, Hitler, who was at that very time perfecting his plot for aggressive war, said:

If the international Jewish financiers within and without Europe succeed in plunging the nations once more into a world war, then the result will not be the Bolshevization of the world and thereby the victory of Jewry, but the obliteration of the Jewish race in Europe.

We quote from the writings of Alfred Rosenberg (since hanged), “High Priest of the Nazi Racial Theory and Herald of the Master Race”:

A new faith is arising today: the myth of the blood, the faith to defend with the blood the divine essence of man. The faith, embodied in clearest knowledge, that the Nordic blood represents that mysterium which has replaced and overcome the old sacraments.” (Rosenberg, Der Mythus des 20. Jahrhunderts, (Munich, 1935), page 114 (1st ed., 1930)). (National Socialism, page 31, Department of State Bulletin).
The Rosenberg philosophy strongly supported the program of the Nazi party, which reads as follows:

None but members of the nation (Volk) may be citizens of the State. None but those of German blood, whatever their creed, may be members of the nation. No Jew, therefore, may be a member of the nation.

It was to implement this program that the disciminatory [sic] laws against Poles and Jews were enacted as herinabove set forth.
A directive of the Reich Ministry of Justice, signed by Freisler, dated 7 August 1942, addressed to prosecutors and judges, sets forth the broad general purposes which were to govern the application of the law against Poles and Jews and the specific application of that law in the trial of cases. We quote:

The penal law ordinance of 4 December 1941 concerning Poles, was intended not only to serve as a criminal law against Poles and Jews but beyond that, also to provide general principles for the German administration of law to adopt in all its judicial dealings with Poles and Jews, irrespective of the role which the Poles and Jews play in the individual proceedings.The regulations of Article IX for instance, according to which Poles and Jews are not to be sworn in, apply to proceedings against Germans as well.* * *

1. Proceedings against Germans should be carried on whenever possible without calling Poles and Jews as witnesses. If, however, such a testimony cannot be evaded, the Pole or Jew must not appear as a witness against the German during the main trial. He must always be interrogated by a judge who has been appointed or requested to do so, * * *.

2. Evidence given by Poles and Jews during proceedings against Germans must be received with the utmost caution especially in those cases where other evidence is lacking.

On 13 October 1942 the Reich Minister of Justice Thierack wrote to Reichsleiter Bormann, in part as follows:

With a view to freeing the German people of Poles, Russians, Jews, and gypsies and with a view to making the Eastern territories which have been incorporated into the Reich available for settlements for German nationals, I intend to turn over criminal proceedings against Poles, Russians, Jews, and gypsies to the Reichsfuehrer SS. In so doing I base myself on the principle that the administration of justice can only make a small contribution to the extermination of members of these peoples. The Justice Administration undoubtedly pronounces very severe sentences on such persons, but that is not enough to constitute any material contribution towards the realization of the above-mentioned aim.

With few exceptions Jews were wholly excluded from the administration of justice. In a speech before the NSDAP Congress on 14 September 1934, Hans Frank stated:

It is unbearable to us to permit Jews to play any role whatsoever in the German Administration of Justice. * * * It will, therefore, be our firm aim to exclude Jews increasingly from the administration of the law as time goes on.

On another occasion Frank, as President of the Academy for German Law, directed: For all future time it will be impossible that Jews will act in the name of German law. * * *”. In an order reminiscent of the “burning of the books” in medieval days, Frank also directed that the works of Jewish authors should be removed from all public or study libraries whenever possible. On 5 April 1933, the defendant, Barnickel made an entry in his diary:

Today it is said in the newspaper that in Berlin there are about 3,500 attorneys and more than half of them are Jewish. Only 35 of them are to be admitted as-lawyers. * * * To exclude these Jewish attorneys from one day to the next means terrible brutality.

The defense witness, Fritz Walentin, stated that in general all non-Aryan judges were removed from the administration of penal justice very soon after 30 January 1933. The evacuation of Jews to the East for extermination was in full swing at least as early as November 1941, and continued through the war years thereafter. As an illustration of the nature of this program as carried out throughout the Reich, we cite the report of the Secret State Police Main Office, Nuremberg-Furth; Branch Office Wurzburg. This report refers to the deportation from, a comparatively small area around the city of Wurzburg and shows evacuations of Jews to the East in the following numbers: On 27 July 1941, 202 persons; on 24 March 1942, 208 persons; on 25 April 1942, 850 persons; on 10 September 1942 (to Theresienstadt) 177 persons; on 23 September 1942 (to Theresienstadt), 562 persons; on 17 June 1943 (to Theresienstadt), seven persons; on 17 June 1943, 57 Jews were evacuated to the East. The report continues: “With this last transport, all the Jews who had to be evacuated according to instructions issued have left Main Franken.”The report shows that the total number of 2,063 Jews were evacuated from the Main Franken area alone. The furniture, clothing, and laundry items left by the Jews were given to the Finance Offices of Main Franken and turned into cash by them.
 Even before transfers to the Gestapo had been substituted for judicial procedure the position of a Pole or a Jew who was tried by the courts was not a happy, one. The right of self defense on the part of a Pole was specifically limited. Poles and Jews could not challenge a German judge for prejudice. Other limitations upon the right of appeal and the like are set forth, supra (Law Against Poles and Jews, 4 December 1941).
On 22 July 1942 Reich Minister Goebbels stated that “it was an untenable situation that still today a Jew could protest against the charge of the president of the police, who was an old Party member and a high SS leader. The Jew should not be granted any legal remedy at all nor any right of protest.”

The defendant Lautz testified that according to the provisions of a decree which antedated the war and by reason of the general regulations of the law in every case it had to be pointed out in the indictment if the person was a Jew or of mixed race.

On 23 January 1943 the Oberlandesgerichts President at Koenigsberg wrote to the Minister of Justice concerning defense of Poles before tribunals in incorporated Eastern territories. We quote:

The decree of 21 May 1942 states that in accordance with the order on penal justice in Poland of 4 December 1941 attorneys are not (to) undertake the defense of Polish persons before tribunals in the incorporated Eastern territories. This decree has been received with satisfaction by all the judges and prosecutors in the whole of my district.

These directives by the authorities in the Reich under Hitler were not mere idle threats. The policies and laws were rigorously enforced. We quote from a sworn statement of former defendant Karl Engert as follows:

The handing over to the Gestapo of Jews, Poles, and gypsies was not under my supervision, but under that of Mr. Hecker, who worked under me in my division. However, he was not responsible to me, but directly to the Minister Thierack.

Again, he said:

About 12,000 inmates of the correction houses were assigned for transfer to the Gestapo. * * * Out of the total 12,000, my division assigned 3,000 for transfer in 1942. How many Jews, Poles, and gypsies were assigned I do not know; that must be in the statistics.

Reich Minister Goebbels, in an address to the judges of the People”s Court, on 22 July 1942, stated that “if still more than 40,000 Jews, whom we considered enemies of the State, could freely go about in Berlin, this was solely due to the lack of sufficient means of transportation. Otherwise the Jews would have been in the East long ago.
Between 9 and 11 November 1938, a pogrom was carried out against the Jews throughout the Reich, and upon direct orders from Berlin. Defense witness Peter Eiffe testified that he heard rumors of the proposed pogrom on the night of 8 November and called at the Ministry of Propaganda where he was told “somebody has let the cat out of the bag again.” During the three-day period Jewish property was destroyed throughout the Reich and thousands of Jews were arrested.
In Berlin the destruction of Jewish property was particularly great. To cap the climax on 12 November 1938 Field Marshall Goering issued the following decree:

Article 1.”All damage done due to the indignation of the people at the incitement of international Jewry against National Socialist Germany carried out on the 8, 9, and 10 November 1938, on Jewish enterprises and living quarters is to be removed by the Jewish owners immediately. (RGB1. 1938 I. page 1581).

Article II. “The costs of restoration are to be borne by the owner of the Jewish business concerned * * *.

Section 2. “Insurance claims of Jews of German nationality will be confiscated in favor of the Reich.

For this purpose a fine of one billion marks wells imposed upon the Jews. The witness Eiffe, who was an attorney in Berlin, acted in behalf of Frau Liebermann, the widow of the internationally known artist, Max Liebermann. Frau Liebermann was at that time eighty years old and the share of the fine imposed upon her was 280,000 marks. Ultimately orders. were issued for her deportation to East. She, however, died, either from heart failure or poison, as she descended the steps to be carried away.
The Roman Catholic chaplain at Amberg prison stated under oath that a large proportion of the inmates of that prison were Poles who had been sentenced under the “Poles Act”. Many of them died from under-nourishment. They were forced to eat potato peelings and hunt through the rubbish heaps for eatable refuse. From this prison “a-social elements” were picked out and sent in batches to the Mauthausen concentration camp. All of the first batch was said to have perished. Among the prisoners were Jews who had been sentenced for race pollution.
 The witness Hecker stated under oath that after Thierack” s “doubtful decree” concerning the transfer of Jews, Poles, and gypsies, prisoners in protective custody, and a-social elements from the Justice prisons to the RSHA in the autumn of 1942, the Jews as a whole were immediately handed over. The work was carried out by Department V of the Ministry of Justice. Lists were prepared monthly and sent to Minister Thierack through the chief of the department.

 On 22 October 1942 a directive under the letterhead of the Reich Minister of Justice was issued to various prosecuting officers in which it was stated that “by agreement with the Reich Fuehrer SS, lawfully sentenced prisoners confined in penal institutions will be transferred to the custody of the Reich Leader SS.” Those designated for transfer to the SS included “Jews, men and women, detained under arrest, protective custody, or in the workhouse, * * * and Poles, residing in the former Polish State territory on 1 September 1939, men and women, sentenced to penal camps or subsequently turned over for penal execution, if sentence is above three years, * * *. With completion of the transfer to the police, the penal term is considered interrupted. Transfer to the police is to be reported to the penal authority and is cases of custody to the superior executive authority, with the information that the interruption of the penal term has been ordered by the Reich Ministry of Justice.” The directive is signed “Dr. Crohne”.

As a crowning example of fanatical imbecility, we cite the following document issued in April 1943, which was sent to the desk of the defendant Rothenberger for his attention and was initialed by him.

 “The Reich Minister of Justice

Information for the Fuehrer
1943 No.

After the birth of her child, a full-blooded Jewess sold her mother”s milk to a pediatrician and concealed that she vas a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage, for mother”s a milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for so that the parents, who are unaware of the true facts, need not subsequently be worried.

I shall discuss with the Reich Health Leader the racial-hygenic aspect of the case.

Berlin, April 1943.

The witness Lammers, former Chief of the Reich Chancellery, testified as follows:

Q:* * * Now, you answered Dr. Kubuschok that the subject of sterilization of half-Jews was an alternative to their being moved to the East and that it had been raised by half-Jews themselves in 1942 or prior thereto.

A: Yes. I said so.

He testified further that the half-Jews were not subject to any compulsion. He was apparently of the opinion that a person was a free agent if he had a choice between sterilization and deportation to a concentration camp.
While the part played by the Ministry of Justice in the extermination of Poles and Jews was small compared to the mass extermination of millions by the SS and Gestapo in concentration camps, nevertheless the courts contributed greatly to the “final solution” of the problem. From a secret report from the office of the Reich Minister of Justice to the judges and prosecutors, including the defendant Lautz, it appears that 189 persons were sentenced under the law for the protection of German blood and honor in 1941, and 109 in 1942. In the year 1942, 61,836 persons were convicted under the law against Poles and Jews. This figure includes persons convicted in the incorporated Eastern territories, and also convictions for crimes committed in “other districts of the German Reich by Jews and Poles who on 1 September 1939 had their residence or permanent place of abode in territory of the former Polish State”. These figures, of course, do not include any cases in which Jews were convicted of other crimes in which the law of 4 December 1943 was not involved.
 The defendants contend that they were unaware of the atrocities committed by the Gestapo and in concentration camps. This contention is subject to serious question. Dr. Behl testified that he considered it impossible that anyone, particularly in Berlin, should have been ignorant of the brutalities of the SS and the Gestapo. He said: “In Berlin it would have been hardly possible for anybody not to know about it, and certainly not for anybody who was a lawyer and who dealt with the administration of justice.” He testified specifically that he could not imagine that any person in the Ministry of Justice or in the Party Chancellery or as a practicing attorney or a judge of a special (or) Peoples Court could be in ignorance of the facts of common knowledge concerning the treatment of prisoners in concentration camps. It has been repeatedly urged by and in behalf of various defendants that they remained in the Ministry of Justice because they feared that if they should retire, control of the matters pertaining to the Ministry of Justice would be transferred to Himmler and the Gestapo. In short, they claim that they were withstanding the evil encroachments of Himmler upon the Justice Administration, and yet we are asked to believe that they were ignorant of the character of the forces which they say they were opposing. We concur in the finding of the first Tribunal in the case of United States et al. vs. Goering, et al., concerning the use of concentration camps. We quote:
 “Their original purpose was to imprison without trial all those persons who were opposed to the Government, or who were in any way obnoxious to German authority. With the aid of a secret police force, this practice was widely extended, and in course of time concentration camps became places of organized and systematic murder, where millions of people were destroyed. * * *

A certain number of the concentration camps were equipped with gas chambers for the wholesale destruction of the inmates, and with furnaces for the burning of the bodies. Some of them were in fact used for the extermination of Jews as part of the “final solution” of the Jewish problem. * * *

In Poland and the Soviet Union these crimes were part of a plan to get rid of whole native populations by exclusion and annihilation, in order that their territory could be used for colonization by Germans. Hitler had written in “Mein Kampf” on these lines, and the plan was clearly stated by Himmler in July 1942, when he wrote:

It is not our task to Germanize the East in the old sense, that is, to teach the people there the German language and the German law, but to see to it that only people of purely Germanic blood live in the East.”(IT Judgment, pages, 234, 235, 237).
A large proportion of all of the Jews in Germany were transported to the East. Millions of persons disappeared from Germany and the occupied territory without a trace. They were herded into concentration camps within and within [sic] Germany. Thousands of soldiers and members of the Gestapo and the SS must have been instrumental in the processes of deportation, torture, and extermination. The mere task of disposal of mountainous piles of corpses, (evidence of which we have seen), became a serious problem and the subject of disagreement between the various organizations involved. The thousands of Germans who took part in the atrocities must have returned from time to time to their homes in the Reich. The atrocities were of a magnitude unprecedented in the history of the world. Are we to believe that no whisper reached the ears of the public or of those officials who were most concerned” Did the defendants think that the nationwide pogrom of November 1938, officially directed from Berlin, and Hitler’s announcement to the Reichstag threatening the obliteration of the Jewish race in Europe were unrelated” At least they cannot plead ignorance concerning the decrees which were published in their official organ “The Reichsgesetzblatt”. Therefore, they knew that Jews were to be punished by the police in Germany and in Bohemia and Moravia. They knew that the property of Jews was confiscated on death of the owner. They knew that the law against Poles and Jews had been extended to occupied territories and they knew that the Chief of the Security Police was the official authorized to determine whether or not Jewish property was subject to confiscation. They could hardly be ignorant of the fact that the infamous law against Poles and Jews of 4 December 1941 directed the Reich Minister of Justice himself, together with the Minister of the Interior, to issue legal and administrative regulations for “implementation of the decree”. They read “The Stuermer”. They listened to the radio. They received and sent directives. They heard and delivered lectures. This Tribunal is not so gullible as to believe these defendants so stupid that they did not know what was going on. One man can keep a secret, two men may, but thousands never.
The evidence conclusively establishes the adoption and application of systematic governmentally-organized and approved procedures amounting to atrocities and offenses of the kind made punishable by C.C. Law 10 and committed against “populations” and amounting to persecution on racial grounds. These procedures when carried out in occupied territory constituted war crimes and crimes against humanity. When enforced in the Alt Reich against German nationals they constituted crimes against humanity.
The pattern and plan of racial persecution has been made clear. General knowledge of the broad outlines thereof, in all its immonsity, has been brought home to the defendants.  The remaining question is whether or not the evidence proves beyond a reasonable doubt in the case of the individual defendants that they each consciously participated in the plan or took a consenting part therein.

The Defendant Rothaug

Oswald Rothaug was born 17 May 1897. His education was interrupted from 1916 to 1918 while he was in the army. He passed the final law examination in 1922 and the State examination for the higher administration of justice in 1925.

He joined the NSDAP in the spring of 1938 and the membership was made effective from May 1937.

Rothaug was a member of the National Socialist Jurists” League and the National Socialist Public Welfare Association. In his affidavit he denies belonging to the SD. However, the testimony of Elkar and his own admission on the witness stand establishes that he was an “honorary collaborator” for the SD on legal matters.

 In December 1925 he began his career as a jurist, first as an assistant to an attorney in Ansbach and later as assistant judge at various courts. In 1927 he became Public Prosecutor in Hof in charge of criminal cases. From 1929 to 1933 he officiated as Counsellor at the Local Court in Nuernberg. In June 1933 he became Senior Public Prosecutor in the Public Prosecution in Nuernberg. Here he was the official in charge of general criminal cases, assistant of the chief public prosecutor handling examination of suspensions of proceedings and of petitions for pardon. From November to April 1937 he officiated as Counsellor of the District Court in Schweinfurt. He was legal advisor in the Civil and Penal Chamber and at the Court of Assizes, as well as Chairman of the lay assessor”s court from April 1937 to May 1943 he was Director of the District Court in Nuernberg, except for a period in August and September of 1939 when he was in the Wehrmacht. During this time he was Chairman of the Court of Assizes, of a penal chamber, and of the special court.

From May 1943 to April 1945 he was Public Prosecutor of the Public Prosecution at the People”s Court in Berlin. Here, as head of Department I he handled for a time cases of high treason in the Southern Reich territory, and from January 1944, cases concerning the undermining of public morale in the Reich territory.

 Crimes charged in the indictment, as heretofore stated in this opinion, have been established by the evidence in this case. The questions, therefore, to be determined as to the defendant Rothaug are: first, whether he had knowledge of any crime so established and, second, whether he was a participant in or took a consenting part in its commission.

 Rothaug”s sources of knowledge have, with those of all the defendants, already been pointed out. But Rothaug”s knowledge was not limited to those general sources. Rothaug was an official of considerable importance in Nuernberg. He had many political and official contacts; among these—he was the friend of Haberkern, Gau Inspector of the Gau Franconia; he was the friend and associate of Oeschy, Gau Legal Advisor for the Gau Franconia; and was himself Gauwalter of the Lawyer”s League. He was the “honorary collaborator” for the SD. According to the witness Elkar, the agent of the SD for Nuernberg and vicinity, this position was more important than that of a confidential agent, and an honorary collaborator was active in SD affairs. He testifies that Rothaug took the SD oath of secrecy.

 Whether Rothaug knew of all the aspects of the crimes alleged, we need not determine. He knew of crimes as established by the evidence, and it is the function of this Tribunal to determine his connection, if any, therewith.

 The defendant is charged under Counts two, three, and four of the indictment. Under Count four he is charged with being a member of the Party Leadership Corps. He is not charged with membership in the SD. The proof as to Count four establishes that he was Gauwalter of the Lawyers” League. The Lawyers”League was a formation of the Party and not a part of the Leadership Corps as determined by the International Military Tribunal in the case against Goering, et al.

 As to Counts two and four of the indictment, from the evidence submitted, the Tribunal finds the defendant not guilty. The question of the defendant”s guilt as to Count three of the indictment remains to be determined.

The evidence as to the character and activities of the defendant is voluminous. We shall confine ourselves to the question as to whether or not he took a consenting part in the plan for the persecution, oppression, and extermination of Poles and Jews.

 His attitude of virulent hostility towards these races is proved from many Sources and is in no wise shaken by the affidavits he has submitted on his own behalf.

The evidence in this regard comes from his own associates—the judges, prosecutors, defense counsel, medical experts, and others with whom he dealt. Among, but not limited to these, we cite the evidence of Doebig, Ferber, Bauer, Derfmueller, Elkar, Engert, Greben(sp”), and Markl. In particular the testimony of Father Schosser is important. He testified as to many statements made by the defendant Rothaug during the trial of his own case, showing the defendant”s hostility to Poles and his general attitude toward them. He stated that concerning the Poles in general, Rothaug expressed himself in the following manner:

 “If he (Rothaug) had his way, then no Pole would be buried in a German cemetery, and then he went on to make the remark which everybody heard in that courtroom—that he would get up from his coffin if near to him there was a Pole being buried. Rothaug himself had to laugh because of this mean joke, and he went on to say, “You have to be able to hate, because according to the Bible, God is a hating God.”

 The testimony of Elkar is even more significant. He testified that Rothaug believed in severe measures against foreigners and particularly against Poles and Jews, whom he felt should be treated differently from German transgressors. Rothaug felt there was a gap in the law in this respect. He states that Rothaug asserted that in his own court he achieved this discrimination by interpretation of existing laws but that other courts failed to do so. Such a gap, according to Rothaug, should be closed by singling out Poles and Jews for special treatment. Elkar testifies that recommendations were made by the defendant Rothaug, through the witness, to higher levels and that the subsequent decree of 1941 against Poles and Jews conformed to Rothaug”s ideas as expressed and forwarded by the witness Elkar through SD channels to the RSHA.
This animosity of the defendant to these races is further established by documents in this case which show that his discrimination against these races encompassed others who he felt lacked the necessary harshness to carry out the policy of the Nazi State and Party to these people.
In this connection the communication of Oeschey to Deputy Gauleiter Holz, concerning Doobig, is worthy of note. In this communication many charges were made against Doobig for his failure to take action against officials under him who had failed to carry out the Nazi programs against Jews and Poles. Oeschey testified that these charges were copied from a letter submitted to him by the defendant Rothaug and that the defendant assumed responsibility for these charges. Rothaug denies that he assumed responsibility or had anything do with the charges made, except in one immaterial instance. However, in the light of the circumstances themselves, the Tribunal accepts Oeschey”s testimony in this regard, particularly in view of the unimpeached affidavit of Oeschey”s secretary to the effect that these charges were copied directly by her from a letter of Rothaug”s.

 Documentary proof of Rothaug”s attitude in this respect is further found in the records of cases tried by him which will hereafter be considered.

The third case to be considered is that of Leo Katzenberger.The record in this case shows that Lehman Israel Katzenberger, commonly called Leo Katzenberger, was a merchant and head of the Jewish community in Nuernberg; that he was “sentenced to death for an offense under paragraph two legally identical with an offense under paragraph four of the Decree Against Public Enemies in connection with the offense of racial pollution”. The trial was held in the public session on 13 March 1942. Katzenberger”s age at that time was over 68 years.

The offense of racial pollution with which he was charged comes under Article 2 of the Law for the Protection of German Blood and Honor. This section reads as follows:

Sexual intercourse (except in marriage) between Jews and German nationals of German or German related blood is forbidden.

The applicable sections of the Decree Against Public Enemies reads as follows:

Section 2
“Crimes During Air Raids

Whoever commits a crime or offense against the body, life, or property, taking advantage of air raid protection measures, is punishable by hard labor of up to fifteen (15) years or for life, and in particularly severe cases, punishable by death.

* * * * * * * * *

“Section 4

“Exploitation of the State of War a Reason

Cause for More Severe Punishment

Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of up to fifteen (15) years or for life, or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable.

The evidence in this case, aside from the record, is based primarily upon the testimony of Hans Groben, the investigating judge who first investigated the case; Hermann Markl, the official who prosecuted the ease; Karl Ferber, who was one of the associate judges in the trial; Heinz Hoffman, who was the other associate judge in the trial; Armin Bauer, who was medical expert in the trial; Georg Engert, who dealt with clemency proceedings; and Otto Ankenbrand, another investigating judge.
The salient facts established in connection with this case are in substance as follows: Some time in the first half of the year 1941 the witness Groben issued a warrant of arrest against Katzenberger, who was accused of having had intimate relations with the photographer Seiler. According to the results of the police inquiry, actual intercourse had not been proved, and Katzenberger denied the charge. Upon Groben”s advice, Katzenberger agreed that he would not move against the warrant of arrest at that time but would wait the results of further investigation. These further investigations were very lengthy, although Groben pressed the public prosecutor for speed. The police, in spite of their efforts, were unable to get further material evidence, and it became apparent that the way to clarify the situation was to take take the sworn statement of Seiler, and this was done.
In her sworn statement she said that Katzenberger had known both her and her family for many years before she had come to Nuernberg and that his relationship to her was a friendly and fatherly one and denied the charge of sexual intercourse. The evidence also showed that Katzenberger had given Seiler financial assistance on various occasions and that he was administrator of the property where Seiler lived, which was owned by a firm of which he was a partner. Upon Seiler”s statement, Groben informed Dr. Herz, counsel for Katzenberger, of the result and suggested that it was the right time to move against the warrant of arrest.

When this was done, Rothaug learned of it and ordered that the Katzenberger case be transferred from the Criminal Division Court to the Special Court. The first indictment was withdrawn, and another indictment was prepared for the Special Court.

The witness Markl states that Rothaug dominated the prosecution, especially through his close friendship with the Senior Public Prosecutor, Dr. Schroeder, who was the superior of Markl.

The indictment before the Special Court was prepared according to the orders of Rothaug, and Katzenberger was not charged only with race defilement in this new indictment, but there was also an additional charge under the Decree Against Public Enemies, which made the death sentence permissible. The new indictment also joined the Seiler woman on a charge of perjury. The effect of joining Seiler in the charge against Katzenberger was to preclude her from being a witness for the defendant, and such a combination was contrary to established practice. Rothaug at this time told Markl that there was sufficient proof of sexual intercourse between Seiler and Katzenberger to convince him, and that he was prepared to condemn Katzenberger to death. Markl informed the Ministry of Justice of Rothaug”s intended procedure against Katzenberger and was told that if Rothaug so desired it, the procedure would be approved.

Prior to the trial, the defendant Rothaug called on Dr. Armin Baur, medical Counsellor for the Nuernberg Court, as the medical expert for the Katzenberger case. He stated to Bauer that he wanted to pronounce a death sentence and that it was, therefore, necessary for the defendant to be examined. This examination, Rothaug stated, was a mere formality since Katzenberger “would be beheaded anyhow”. To the doctor”s reproach that Katzenberger was old and it seemed questionable whether he could be charged with race defilement, Rothaug stated:

It is sufficient for me that the swine said that a German girl had sat upon his lap.

The trial itself, as testified to by many witnesses, was in the nature of a political demonstration. High Party officials attended, including Reich Inspector Oexle. Part of the group of Party officials appeared in uniform.
During the proceedings, Rothaug tried with all his power to encourage the witnesses to make incriminating statements against the defendants. Both defendants were hardly heard by the court. Their statements were passed over or disregarded. During the course of the trial, Rothaug took the opportunity to give the audience a National Socialist lecture on the subject of the Jewish question. The witnesses found great difficulty in giving testimony because of the way in which the trial was conducted, since Rothaug constantly anticipated the evaluation of the facts and gave expression to his own opinions.
Because of the way the trial was conducted, it was apparent that the sentence which would be imposed was the death sentence.

After the introduction of evidence was concluded, a recess was taken, during which time the prosecutor Markl appeared in the consultation room and Rothaug made it clear to him that he expected the prosecution to ask for a death sentence against Katzenberger and a term in the penitentiary for Seiler. Rothaug at this time also gave him suggestions as to what he should include in his arguments.

 The reasons for the verdict were drawn up by Ferber. They were based upon the notes of Rothaug as to what should be included. Considerable space is given to Katzenberger”s ancestry and the fact that he was of the Mosaic faith, although that fact was admitted by Katzenberger. Much space is also given to the relationship between Katzenberger and Seiler. That there was no proof of actual sexual intercourse is clear from the opinion. The proof seems to have gone little farther than the fact that the defendant Seiler had at times sat upon Katzenberger”s lap and that he had kissed her, which facts were also admitted. Many assumptions were made in the reasons stated which obviously are not borne out by the evidence. The court even goes back to the time prior to the passing of the Law for the Protection of German Blood and Honor, during which Katzenberger had known Seiler. It draws the conclusion apparently without evidence, that their relationship for a period of approximately ten years, had always been of a sexual nature. The opinion undertakes to bring the case under the decision of the Reich Supreme Court that actual sexual intercourse need not be proved, provided the acts are sexual in nature.

Having wandered far afield from the proof to arrive at this conclusion as to the matter of racial pollution, the court then proceeds to go far afield in order to bring the case under the Decree Against Public Enemies. Here the essential facts proved were that the defendant Seiler”s husband was at the front and that Katzenberger, on one or possibly two occasions, had visited her after dark. On both points the following paragraphs of the opinion are enlightening:

 “Looked at from this point of view, Katzenberger”s conduct is particularly contemptible. Together with his offense of racial pollution he is also guilty of an offence under paragraph 4 of the ordinance against people”s parasites. It should be noted here that the national community is in need of increased legal protection from all crimes attempting to destroy or undermine its inner cohesion.
 “On several occasions since the outbreak of war the defendant Katzenberger crept into Seiler”s flat after dark. In those cases the defendant exploited the measures taken for the protection in air raids. His chances were further improved by the absence of the bright street lighting which exists in the street along Spittlertorgraben in peacetime. He exploited this fact fully aware of its significance because thus he instinctively escaped during his excursions being observed by people in the street.
 “The visits by Katzenberger to Seiler under the protection of the blackout served at least the purpose of keeping relations going. It does not matter whether during these visits extra-marital sexual relations took place or whether they only conversed as when the husband was present, as Katzenberger claims. The request to interrogate the husband was therefore overruled. The court holds the view the defendant”s actions, done with a purpose within a definite plan, amount to a crime against the body according to paragraph 2 of the ordinance against people’s parasites. The law of 15 September,1935, has been passed to protect German blood and German honor. The Jew’s racial pollution amounts to a grave attack on the purity of German blood, the object of the attack being the body of a German woman. The general need for protection, therefore, makes appear as unimportant the behavior of the other partner in racial pollution who anyway is not liable to prosecution. The fact that racial pollution occurred up to at least 1939-1940 becomes clear from statements made by the witness Zouschel to whom the defendant repeatedly and consistently admitted that up to the end of 1939 and the beginning of 1940 she was used to sitting on the Jews lap and exchanging caresses as described above.

Thus the defendant committed an offense also under paragraph 2 of the ordinance against people’s parasites.”The personal character of the male defendant also stamps him as a people”s parasite. The racial pollution practiced by him through many years grew, by exploiting war time conditions, into an attitude inimical to the nation, into an attack on the security of the national community, during an emergency. “This is was why the defendant Katzenberger had to be sentenced both on a charge of racial pollution and of an offense under paragraphs 2 and 4 of the ordinance against people”s parasites, the two charges being taken in conjunction according to paragraph 73 of the criminal code.* * * * *”In passing sentence the court was guided by these considerations: the political life of the German people under National Socialism is based on the community. One fundamental factor of the life of the national community is race. If a Jew commits racial pollution with a German woman, this amounts to polluting the German race and, by polluting a German woman, to a grave attack on the purity of German blood. The need for protection is particularly strong.
Katzenberger has been practicing pollution for years. He was well acquainted with the point of view taken by patriotic German men and women as regards racial questions and he knew that by this conduct he insulted the patriotic feelings of the German people. Nor did he mend his ways after the National Socialist revolution of 1933, after the passing, of the Law for the Protection of German Blood, in 1935, after the action against Jews in 1938, or the outbreak of war in 1939.
The court therefore regards it as indicted, as the only feasible answer to the frivolous conduct of the defendant, to pass death sentence, as the heaviest punishment provided by paragraph 4 of the Decree against Public Enemies. His case takes on the complexion of a Particularly grave crime as he was to be sentenced in connection with the offense of committing racial pollution, under paragraph 2 of the Decree Against Public Enemies, especially if one takes into consideration the defendant”s character and the accumulative nature of commission. This is why the defendant is liable to the death penalty which the law provides for only such cases. Dr. Bauer, the medical expert, describes the defendant as fully responsible.
We have gone to some extent into the evidence of this case to show the nature of the proceedings and the animus of the defendant Rothaug. One undisputed fact, however, is sufficient to establish this case as being an act in furtherance of the Nazi program to persecute and exterminate Jews. That fact is that nobody but a Jew could have been tried for racial pollution. To this offense was added the charge that it was committed by Katzenberger through exploiting war conditions and the blackout. This brought the offense under the Ordinance Against Public Enemies and made the offense capital. Katzenberger was tried and executed only because he was a Jew. As stated by Elkar in his testimony, Rothaug achieved the final result by interpretations of existing laws as he boasted to Elkar he was able to do.

This Tribunal is not concerned with the legal incontestability under German law of these cases above discussed. The evidence establishes beyond a reasonable doubt that Katzenberger was condemned and executed because he was a Jew; and Durka, Struss, and Lopata met the same fate because they were Poles. Their execution was in conformity with the policy of the Nazi State of persecution, torture, and extermination of these races. The defendant Rothaug was the knowing and willing instrument in that program of persecution and extermination.

 From the evidence it is clear that these trials lacked the essential elements of legality. In these cases the defendant”s court, in spite of the legal sophistries which he employed, was merely an instrument in the program of the leaders of the Nazi State of persecution and extermination. That the number the defendant could wipe out within his competency was smaller than the number involved in the mass persecutions and exterminations by the leaders whom he served, does not mitigate his contribution to the program of those leaders. His acts were more terrible in that those who might have hoped for a last refuge in the institutions of justice found these institutions turned against them and a part of the program of terror and oppression.

 The individual cases in which Rothaug applied the cruel and discriminatory law against Poles and Jews cannot be considered in isolation. It is of the essence of the charges against him that he participated in the national program of racial persecution. It is of the essence of the proof that he identified himself with this national program and gave himself utterly to its accomplishment. He participated in the crime of genocide.

 Again, in determining the degree of guilt the Tribunal has considered the entire record of his activities, not alone under the head of racial persecution but in other respects also. Despite protestations that his judgments were based solely upon evidence introduced in court, we are firmly convinced that in numberless cases Rothaug”s opinions were formed and decisions made, and in many instances publicly or privately announced before the trial had even commenced and certainly before it was concluded. He was in constant contact with his confidential assistant Elkar, a member of the criminal SD, who sat with him in weekly conferences in the chambers of the court. He formed his opinions from dubious records submitted to him before trial. By his manner and methods he made his court an instrumentality of terror and won the fear and hatred of the population. From the evidence of his closest associates as well as his victims, we find that Oswald Rothaug represented in Germany the personification of the secret Nazi intrigue and cruelty. He was and is a sadistic and evil man. Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance in office on account of the scheming malevolence with which he administered injustice.

Upon the evidence in this case it is the judgment of this Tribunal that the defendant Rothaug is guilty under Count three of the indictment. In his case we find no mitigating circumstances; no extenuation.

The Defendant Schlegelberger

The defendant Schlegelberger was born on 23 October 1875 in Koenigsberg. He received the degree of Doctor of Law at the University of Leipzig in 1899 and passed the higher State law examination in 1901. He is the author of several law books. His first employment was as an assistant judge at the Local Court in Koenigsberg. In 1904 he became judge at the District Court at Lyck. In 1908 he was appointed judge of the Local Court in Berlin and in the fall of the same year was appointed as an assistant judge of the Berlin Court of Appeals. He was then appointed Councillor of the Berlin Court of Appeals in 1914, where he worked until 1918. During the first World War, on 1 April 1918 he became an assistant to the Reich Board of Justice. On 1 October 1918 he was appointed Privy Government Councillor and department chief. In 1927 he was appointed Ministerial Director in the Reich Ministry of Justice. On 10 October 1931 he was appointed Secretary of State in the Reich Ministry of Justice under Ministe of Justice Guertner, which position he held until Guertner”s death. Upon Guertner”s death on 29 January 1941 Schlegelberger was put in charge of the Reich Ministry of Justice as Administrative Secretary of State. When Thierack became the new Minister of Justice on 20 August 1942, Schlegelberger resigned from the Ministry.

In 1938 Hitler ordered Schlegelberger to join the NSDAP. Schlegelberger testified that he made no use of the Party, that he never attended a Party meeting, that none of his family belonged to the Party, and that Party attitudes often rendered his position difficult. However, upon his retirement as Acting Minister of Justice on 20 August 1942, Schlegelberger received a letter of appreciation from Hitler together with a gift of 100,00 RM.

Later, in 1944, Hitler gave Schlegelberger the special privilege to use the 100,000 RM to purchase a farm, which under the rule then prevailing could have been purchased only be an expert agriculturist. Schlegelberger states that the 100,000 RM were on deposit in a Berlin German bank to his account when the collapse came. Thus it is shown that Hitler and Schlegelberger were not too objectionable to each other. These transactions also show that Hitler was at least attempting to reward Schlegelberger for good and fathful service rendered, in the performance of some of which Schlegelberger committed both war crimes and crimes against humanity as charged in the indiectment.

We have already adverted to his speech at the University of Rosteck on 10 March 1936, on the subject “A Nation Beholds Its Rightful Law”. In this speech Schlegelberger declared:

In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the New Reich has been opened uop by a new wording of Section 2 of the Criminal Code, whereby a person is also (to) be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto.

As amended, Section 2 remained in effect until repealed by Law No. 11 of the Allied Control Council. The term “the sound people”s sentiment” as used in amended Section 2 has been the subject of much discussion and difference of view as to both its proper translation and interpretation. We regard the statute as furnishing no objective standards “by which the people”s sound sentiment may be measured”. In application and in fact this expression became the “healthy instincts” of Hitler and his co-conspirators.
What has been said with regard to the amendment to Section 2 of the Criminal Code is equally true of the amendment of Section 170a of the Code by the decree of Hitler of 28 June 1935, which is also signed by Minister Guertner and which provides:

If an act deserves punishment according to the common sense of the people but is not declared punishable in the Code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of the penal law.

This new conception of criminal law was a definite encroachment upon the rights of the individual citizen because it subjected him to the arbitrary opinion of the judge as to what constituted an offense. It destroyed the feeling of legal security and created an atmosphere of terrorism. This principle of treating crimes by analogy provided an expedient instrumentality for the enforcement of Nazi principles in the occupied countries. German criminal law was therefore introduced in the incorporated areas and also in the non-incorporated territories, and German criminal law was thereafter applied by German courts in the trial of inhabitants of occupied countries though the inhabitants of those countries could have no possible conception of the acts which would constitute criminal offenses.

In the earlier portions of this opinion we have repeatedly referred to the actions of the defendant Schlegelberger. Repetition would serve no good purpose.  By way of summary we may say that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitler”s Night and Fog. For this he must be charged with primary responsibility.
He was guilty of instituting and supporting procedures for the wholesale persecution of Jews and Poles. Concerning Jews, his ideas were less brutal than those of his associates, but they can scarcely be called humane. When the “final solution of the Jewish question” was under discussion, the question arose as to the disposition of half-Jews. The deportation of full Jews to the East was then in full swing throughout Germany.  Schlegelberger was unwilling to extend the system to half-Jews. He therefore proposed to Reich Minister Lammers, by secret letter on 5 April 1942:

The measures for the final solution of the Jewish question should extend only to full Jews and descendants of mixed marriages of the first degree, but should not apply to descendants of mixed marriages of the second degree.

With regard to the treatment of Jewish descendants of mixed marriages of the first degree, I agree with the conception of the Reich Minister of the Interior which he expressed in his letter of 16 February 1942, to the effect that the prevention of propagation of these descendants of mixed marriages is to be preferred to their being thrown in with the Jews and evacuated.  It follows therefrom that the evacuation of those half-Jews who are no more capable of propagation is obviated from the beginning.  There is no national interest in dissolving the marriage between such half-Jews and a full-blooded German.
Those half-Jews who are capable of propagation should be given the choice to submit to sterilization or to be evacuated in the same manner as Jews.

Schlegelberger knew of the pending procedures for the evacuation of  Jews and acquiesced in them. As to half-Jews his only suggestion wts that they be given the frne choice of either one of the impaling horns of a dilemma. On 17 April 1941 Schlegelberger wrote to Lammars as follows:
“On being informed of the Fuehrer’s intention to discriminate in the sphere of penal law between the Poles (and probably tho Jews as well), and the Germans, I prepared., after preliminary discussions with the presidents of the courts of appeal and the attorney-generals of the annexed Eastern territories, the attached draft concerning the administration of the penal law against the Poles and Jews in the annexed Eastern territories anel in the territory of the former Free City of Danzig.
The draft of a proposed ordincance concerning the administration of justice regarding the Poles and Jews in the incorporated Eastern territories” was attached to his letter and is in evidence. A comparison of its phraseology with the phraseology contained in the notorious law against Poles and Jews of 4 December 1941 discloses beyond question that Schlegelberger’s draft constituted the basis on which, with certain modifications and changes, the law against Poles and Jews was enacted. In this respoct he was not only guilty of participation in the racial persecution of Poles and Jews; he was also guilty of violation of the laws and customs of war by establishing that  legislation in the occupied territories of the East. The extension of this type of law into occupied territories was in direct violation of the limitations imposed by The Hague Convention, which we have previously cited.
It is of interest to note that on 31 January 1942 Schlegelberger issued a decree providing that the provisions of the law against Poles and Jews “will be equally applicable with the consent of the public prosecutor to offenses committed before the decree came into force”. We doubt if the defendant would contend that the extension of this discriminatory and retroactive law into occupied territory was based on military necessity.
Schlegelberger divorced his inclinations from his conduct. He disapproved “of the revision of sentences” by the police, yet he personally ordered the murder of the Jew Luftgas on the request of Hitler. and assured the Fuehrer thatt he would himself take action if the Fuehrer would inform him of other sentences which were disapproved.

Schlegelberger’s attitude toward atrocities committed by the police must be inferred from his conduct. A milking hand, Bloodling, was sentenced to death in October 1940, and during the trial he insisted his purported confession had been obtained as a result of beatings imposed upon him by the police officer Klinzmann.  A courageous judge tried Klinzmann and convicted him of brutality and sentenced him to a few months imprisonment. Himmler protested against the sentence of Klinzmann and stated that he was going “to take the action of the Hauptwachtmeister of the police Klinzmann as an occasion to express gratitude for hiss farsighted conduct which was only beneficial to the community.” He said further:

“I must reward his action because otherwise the joy of serving in the police would be destroyed by such verdicts.  But finally K has to be rehabilitated in public because his being sentenced by a court is known in public.”
On 10 December 1941 Schlegelberger wrote to the Chief of the Reich Chancellery stating that he was unable to understand the sentence passed against Klinzmann. We quote:
No sooner had the verdict passed on Klinzmann become known here, orders were for this reason to be given to the effect that the sentence, in case of its validation, should not be carried out for the time beign. Instead, reports concerning the granting of a pardon should be made as soon as possible. In the meantime, however, the sentence passed on Klinzmann became valid, by decision of the Reich Court of  24 November 1941, which abandoned the procedure of revision as apparently unfounded. Taking into regard also the opinion you expressed on the sentence, Sir, I now ordered the remission of the sentcnce and of the costs of proceedings by by way of pardon as well as sking out of the penalty note in the criminal records.”
On 24 December 1941 Schlegelberger wrote to Lammers that he had quashed the proceedings.  In February 1942 Himmler wrote expressing appreciation of the efforts in quashing the proceedings against Klinzmann and stated that he had since promoted him to Minister of the Municipal Police.
Schlegelberger presents an interesting defense, which is also claimed in some measure by most of the defendants. He asserts that the administration of justice was undcr persistent assault by Himmler and other advocates of the police state. This is true. He contends that if the functions of the administration of justice were usurped by the lawless forces unler Hitler and Himmler, the last state of the nation would be worse than the first. He feared that if he were to resign, a worse man would take his place. As the event proved, there is much truth in this also. Under Thierack the police did usurp the functions of the administration of justice and murdered untold thousands of Jews and political prisoners. Upon analysis this plausible claim of the defense squares neither with the truth, logic, or the circumstances.

The evidence conclusively shows that in order to maintain the Ministry of Justice in the good graces of Hitler and to prevent its utter defeat by Himmler’s police, Schlegleberger and the other defendants who joined in this claim of justification took over the dirty work which the leaders of the State demanded, and employed the Ministry of Justice as a means for exterminating the Jewish and Polish populations, terrorizing the inhabitants of occupied countries, and wiping out political opposition at home. That their program of racial extermination under the guise of law failed to attain the proportions which were reached by the pogroms, deportations, and mass murders by the police, is cold comfort to the survivors of the “judicial” process and constitutes a poor excuse before this Tribunal. The. prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.