ABSTRACT
This chapter analyzes whether judges exercising their duty to sustain the regime installed by unconstitutional usurpation of power have any valid defence against prosecution in a domestic court of their own country after a regime change, a competent international/ad hoc/hybrid criminal court or a foreign domestic court exercising universal jurisdiction. After extra-constitutional usurpations, judges may be required to take a new oath of allegiance to the new ‘constitutional’ order and the judges who refuse to do so are removed from office. The question is how taking the new oath impacts judicial responsibility, including the well-established doctrine of independence of judiciary. The chapter also considers whether the judges can claim they act under superior orders or under duress, and whether the doctrine of judicial immunity is applicable to the situation brought about by a coup. The judgment of the post–Second World War US Military Tribunal in the Justice case is illustrative of how judges could be held criminally liable for their respective judicial roles in a repressive regime.
