THE

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BY

UNITED WAR

THE

HIS

TRIALS

Selected

MAJESTY’S

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NATIONS

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VOLUME

PUBLISHED

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OF

1949

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5s.

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XIV

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OF

k

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OFFICE 90 TRIAL OF HAND - reviewed include important findings which greatly contribute to the solu of certain problems which are of a complex nature in the sphere of0 iflter national law, such as the issue of legitimate and illegitimate reprisals.

II. PROCEEDINGS OF THE FIRST COURT

• The Indjciment The accused was charged with various offences, reviewed below, while being in the forces and the service of the enemy and entrusted with the care for public peace and order, the command over the Waffen-S.S. uaits and the German police units and organs, the supervision of and giving orders to the Netherlands police in the occupied Netherlands territory, and while being in the course of the occupation vested with egislative powers in the sphere of public order and safety.” He was charged with having committed the olfences concerned in violation of” the laws and customs of war and in connection with the war of aggression waged against, among others, the Netherlands.” The first charge concerned the persecution of Jews and was couched in the following terms “The accused intentionally, in the framework of the German policy of persecution of the Jews, the object of which was to eliminate the Jews from Europe and exterminate them or at least a large number of them, which policy was already begun in the occupied Netherlands in 1940, insofar as this depended on him, took measures considered officially necessary for the success of this policy in the Netherlands, namely by issuing statutory provisions and supervising and directing the activities of the police subordinated to him, the general object being the segrega tion, congregation and arrest of the Jews as part of their deportation across the German frontier which, as the accused must have foreseen, resulted for many in their death, since according to data produced by the Red Cross, of the approximately 110,000 Jews who were deported only about 6,000 returned.” The second charge dealt with the recruitment of Dutch subjects and their deportation to Germany for slave labour. The charge read as follows The accused intentionally, in the framework of the German policy of the mobilisation ot’labour (Arbeitseinsatz), in so far as this depended on him, took measures considered officially necessary for the success of this policy in the Netherlands, such as having round-ups and raids carried out by the police subordinated to him with the object of appre hending those liable to labour service (ordered 15th July, 1943), intro ducing control by means of new rations registration cards . . . and

setting up the ‘ Arbeitscontrolldienst’ • . . by which mobilisation of labour the workers seized from among the civilian population of the occupied Netherlands were deported to Germany with a view to slave labour, many of them dying as a result, at least 300,000 Netherlanders

• . . having been driven away to Germany for labour service during the German occupation, some 9,900 having been seized in round-ups and raids between 7th January and 1st September, 1944, only and sent to that countrY through the transit camp at Amersfoort.”

all

sisted

for

polizei

Territories

Netherlands the

Commissioner polizei”

des

the” documents

until branches such kommissar) ments,

2.

Police

92

The

The

It

His The

Facts

the

occupied

Waffen

(i)

was

Public

he

the

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position

of

Leader

evidence

classes

evidence

or

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accused’s

which number and

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knowledge next

including

Position was

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ascertained

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mitted

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the members Allied

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of

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removal

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of

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Police,

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territory.

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or

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Civilians purpose

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the

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treatment

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prepetrators

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labour

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entire deprived

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such

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involved

seventh

civilians

sought

Police Seyss-Inquart.

his

on

charged.

France

the

Police

that

arrested,

1943,

out,

(Netherlands)

Netherlands

took in

service

police

the

of

against

orders

received

custody

S.S. had

or

as

Police),

of

the

accused’s of

“

of

of

ALBIN

of

by

this

Holland,

the

after

or”

position

included

himself. statements

place

;

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(Kriminalpolizei charge,

reports,

the death

and

the

as

innocent

of

wide

been

für

their

and

decrees.

forces

by

mentioned

while

the being

“

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a

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the

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commonly

or

Reich

arrest,

for

in in

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reprisal

Belgium)

murder

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das

Police

heads

RAUTER

appointed

powers,

liberty

of

acts

guilt

the

civilians

carrying

the German

of

Rauter

Netherlands it

S.S.,

i.e., in

another

letters,

an

the many

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was

civilians

Commissioner of

Sicherheitswesen).

General

Holland, crimes

highest

mentioned

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Occupied or

arrangement

in of

policy

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State

in

Leader for

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witnesses

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including

than

people.”

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in

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Netherlands

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1945.

already charge)

was,

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out

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with

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for

As the

of

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as

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of baths, museums. use who Jews

or

of The Numerous It lirst

this

evidence

It

These

8

following (ii) was

and in policy Jews pursued issued the question

in one tion 10th Poland, Gestapo, 1941, attack condition of all were

was

p.m.

were

classified may uttermost. Court measures was

in

use

and the

“The

the any in Persecution

parks, to and

The “The German shown yellow

of repressive

various of

September,

were measures cabarets, shown

destroyed

however, of and persecution public, established

sent

remain orders

have was their

Gestapo

on gradually public the

letters the

eventual

A made

where

Nazi public plan during

in passage

Part was

cafes

6 was rounding

the required

to that special

star, up

consequences

in similar

all Jews.

a.m. for

being

that occupied

places.

the

for and TRIAL I under

or

persecution to reference the formed

Soviet from in

variety the

of were of of

as

they the places

will plans

and

in

under what and

the concentration

private from

1942,

exterminating extermination. 15th

by the or

the

segregated the

which Europe. of

curfew

following were test

gas it

Later detected

accused

to

to

restaurants, which up followed on the

were the

the make were

war was,

accused Jews

Union. They were

‘final

for is shows, OF

October,

Europe chambers of to the

that register,

Adolf

addressed

of

forbidden no to

accused

International

means

orders early Jews gone

life

carry

was of

amusement,

Nuremberg

to in

of HANS

used cannot the

the

Jews

made

and

account culminated

use which

and This

an terms solution’

or

be from by cinemas, the Jews

Eichmann.

introduced carried in

Jews general in is in

camps

were

of out

the banned

1942. death the outbreak of as

were were to

used the the and apprehended

lost. ‘

concentration for

to 1939 Jews occupied

ALBIN

transport.

final to compare, had

slave

in public

Jews

use

police

the the

is

fail

erection Netherlands.

Himmier, forced

the their

in

and take

Judgment produced subjected out Germany

for Military

recreation

. Nazi making

sports

was

Hitler

in dining

been them were solution The policy.

order

rest .

to

was labourers.

as for

of

systematic forces .

so slave the

libraries, final RAUTER

bodies

part

make the all

to policy

territories.

head

mixed

war,

developed however,

ordered of from in were of all

clubs,

had to

above

and

at live Tribunal who us

the

solution

gathering

in camps.

concentration to as force labour before was ‘ Jews be

the

under

or

a burnt.” meant

rack and use of

threatened

the

railway of

sleeping public

evidence. discriminatory in

accused deported

marriages information, were

including later

reading

taken

population, In

policy

round-ups Section

persecuting

between to ghettoes,

of inside

munition a

with him

our

shortly the

or

the

at ‘

Originally

the wear special

Their not

any

date

of

gatherings, of

yards into

exterminated. Nuremberg.

war, cars,

brains took spoke

in

summer

to extermina

the the

rooms fit Jews

Germany.

B4

swimming would influence

In camps a have

the

for Holland.

after account Germany

physical to

to

of

workers, section

Jewish Star and

severe active policy to to

of

a

Jews,

which

treat wear

work of hours

from to

slave

Jews,

letter

visit visit

the

been

93 the and the

be of

the

for

the

the of to

I 94

made

in fined the 1942, and been Zuid-Holland trict, to by Overijsell,

1944. the

relief

Two

The

The

In

deport

Poland.

decrees

areas

following

after diamond one and or ‘s-Hertogenhosch. in Jews, belonging the will of flight no shall pushed near Arvans found identity the be means

as

from Holland.

13th

an

apprehended

to

the where

and

Rauter

grip

results

“The Holland.

works

solved.

3

weeks Jew, assistant

taken

tso

earlier a

On

On

blow taken same

be

Everyone

in

Assen

trains April.

following

the have

few

that of Westerbork

5th

anywhere issued

to

on

Gelderland. that

who

which

ready,

oft’

camps.

he papers,

1st 15th unless

Jewish

the

camps,” cutters

Jews

spoke

achieved

and

data: including areas and to

later,

legally the

reside October.

into

is

time

account,

significantly

got

from

October

Within and per

hide police

1943,

Jews police

halt

October by a

By

Jews

TRIAL they

the

chiefly

Noord-Holland. were

a

one

the

knows

concentration

these report

where

problem will

in week

the of

[ and in

privileged

Vught Jews

that

or

1

in 1st

and

will

which same the

camp

am

will

two

were

action were

in another

Holland

the in

about

functions,

given

foreign I 1942.”

accused illegally

have

banned

the

Limburg,

the

October so

to 30,000

shall

time

Jewry the

or

Jews

of

then in

Westerbork

OF they harnessing

that

next large

start

used

near day

on,

described

allowed

Eastern

relief to in

help

has

their

place provinces

their

Netherlands

to

on

8.000

HANS

both one.

then could

Holland

have

the

were

ten ones

letter

will so

we

from

the on in to

his

newly

Jews

the started

‘s-Hertogenbosch.

them

the

a

onwards. camp

relatives.

works

and property

that Jewry

Holland

East.” days of

Northern

svill

12th

large

subordinates,

relatives

be the had

Europe, be

to

been Jews following The

forbidden

some

easily

up

announcements

to

one

ALBIN

by

assay 2.

near

over erected

anything reside. put

with able

properly

be

of

: big

on the

February, everything

camps

about

1-lirnmler.

general

will

Rauter scale

moved

soon

who all

province These

seen

of

in

seized,

Friesland,

the

be

a

Jewish will last

Assen

to

this

too

outside

that

In

I

the be

large whom

this

Brabant, Jewish

RAUTER words: caught.

hope

border,

to will

any

increased introduce

were

Those

this

full

will

be

speaking 140,000

put

anywhere

the in so from

policy

30,000 large

is

the

live

and

in

and

camps

1943,

declared

scale.”

dated

that

a to

longer Jews after connection

begin.

that

that be into

them great

we

I

detained

order accused camps

report

according

who extermination

in

Holland. and

Drente,

the svill camps.

one

occupied

of

Thus,

can

cannot

Zeeland,

Jews

29th

will

full

a

by another

Haarlem both

by can

40,000

24th

1

purge

perpetrators in

vilI

who . the

had

that

try

total

have

to

in

exercise circumscribing outlawed,

of in .

Christmas

be

Holland.

Jews be

March, had

will .

for

these

accused

in

Vught

prevent

Westerbork to

the

2nd

be

haveforged September, Groningen, not

get As

taken

Every looks

considered

can

Jews

of

to had

by

and

so-called

get disclosed

instance,

arrested

and

accused Utrecht,

now

a

already

here

bold March.

camps

50,000

which Police

camps

me

begin

result

built

1943,

away

hold near

con into

that

like

Jew

will was

dis

the

we

At

be

at

of

in and

with during

only lands,

policy,

in Dutch concerning the by

among

The

One

The

The for to industry Jews still that

of life. instead

have, the

the for seen pitilessly,

or to one

International

establishing (iii)

about

effort, the

German the Belgium,

obtain

accused the service propaganda

who the go mented international unemployment witness,

of the who lead accused

subjects Netherlands criminal streets in “The up

tenderness This 12,000

“Committees the

who more

inhabitants Slave historically, From

to within East Jews,

promise

During whom

that

occupation

to of

volunteered in is Germany or 6,000 facts

and references

is the

in

have

and date once,

German full

stressed by industry Jew these in :

he the Jews agriculture. Labour

not

took in April

Holland to

Germany.

nature a

I in the

necessary about TRIAL relating the

Military withdrawing the used

returned of the can

that measurable used we Germany head campaign

already

or

will a deporting

so reasons.

Special

fate times.

in also pity

of

nice Netherlands.”

will or sense 1st

first about have benefit weakness.

tell

that occupation were a made in the

of and the the remain in

of

100,000 by to

of

prisoner

we and

or OF to active job.

particular

you

have

the Tribunal this the police two been the

discharging we sent workers after that go occupied Court camps.

The

that silly agriculture. .

set 110,000 where’they hope

to was

at

or HANS

The

Norway, . space

it here—and Nazi Netherlands Jews can

respect the to

in years

And great 50,000 part we the least eliminated up

were is propaganda

scheme an the talk

forces of

begun as The to authorities Europe.” Germany. question

a deport

ration shall

in to at Nuremberg slave war on Jews of theneed opportunity

evidence. That dirty this in war. attain territories ALMN

5,000,000 about of

significance.

of Holland,

Nuremberg. the one encourage Jews them time,

a the

under however, were

would then

the . as

to

is please

Dutch were

voluntary labour

cards work, 12,000

brings

following

Red

from who a a carrying is what

humanism

induce

to

from

German no

campaign

greater wholo to did dispatch RAUTER

to to

him

In

taken

the

be to persons gave

Cross

The do

Judgment be of more does apply send nationality. but

the per scheme to is succeed

the

some their recruiting,

returned an work

to East .

not forcibly labourers workers going

were

basis. work following out the

The away . it language Netherlands month. speed

apprehend

lot Jewry attempt occupation department

not

a

Jews

jobs

and is measures

report included,

to

and for cases following There train

of

was a Tribunal’s taken in to

to

from understand elsewhere. Germany

.

for measure ideals, in the

and

the used

forcing freely in that to

about

happen.

and

twice established who

the Of it it passages We

every was is

its

slave

volunteer into German

denying the

outside—

and

was as for ruthlessly there

no

entrusted national of account a this removal entirety

is

hope walking

refused

a

67,000

Nether

workers

made many which, findings account vigorous

labourer to not example

labour France, week deport room

supple

this,

are total It

Not 95

serve were

to

them

war

fit

by was

for

of

to

to following classes polizei) the officials identity to certain labour other mander for lands inhabitants that 96 Holland (‘) It Later It the slave above ordered sheltered were brutal sent possible on inflicted that The countries heat, Sauckel, on picture and violent scription is territories. voluntary instructions “ rather ments requiring Plenipotentiary-General was Fritz Arbeitseinsatz’ categories. Special policy. raids within 1924 classes 1923 the who in of card the orders, The The With regarding treatment labour. under shown Sauckel drafting terms the sometimes food, categories Holland the were than by 20th houses, and and methods 21st draft had to evidence extent, and on evidence and prescribed the treatment Court and labour of the basis, Security a conscription of guard clothing work disclosed man-hunts was to the that, the April, The gone” March. scope degiading. labour view the inhabitants. who 1924 appeal These must treated TRIAL the be of even and found examined but at exception. workers. burnt service local of their sent to (mobilisation number in the showed before Nazi are the to of Police 1942, ere underground.” of or also by at dated Germany, inhabitants under was the included for hidden guilty in 1942, labourers the to in authorities prisoners churches upholding OF sanitary now down, lowest the shall Man-hunts the that if slave a in of a . provided initial such the volunteers to accomplished above . that (Befehishaber concentration letter . the of and necessary. 15th Germany HANS all labourers the occupying The that . living the . be foreign Tribunal Jews . Punishments labour and labourers conceivable a men evidence sentenced the often circumstances Concentration facilities. stages, Utilisation carried was and July, effect of of scheme way for first to the were that state illegally AL8IN workers ; the took the liable the labour) does at governed slave defendant Rauter’s packed students were labour as of policy. in 1943, that establishes authorities night That families Rauter’s instructed to accused out limits where, of authority in and der camp to these place to Germany not death to The published labour degree the of in RAUTER many destined exploit for extended decrees. be of in Sicherheits-und in conscription treatment should military All of suffice, instructions Labour(’) the by be not at camp in part orders however, evidence for private those taken trains Sauckel supplied addressed the orders their Ommen, the the Sauckel’s to the cases ; of resorted Netherlands.” were having in with them in taken Netherlands for meet be in commanders expenditure worst . persons streets, obligatory men fact without as the possession was service physical houses. many . that all were couched further the by recruited in directed was . regard hostages. ... to was these round-ups to and by was I that to to the must the to.” the instructions drastic Reich the kind order Ordnungs apprehend cases at limited appojnt belonging the Rauter the from Sauckei’ adequate deported occupied Occupied fixed the power.” the require Nether the showed Houses motion highest be to service in ‘ police of Com Rules effect on Such were were were Con slave that fed, was rule and the the the an by to to in a I I a

Decree provisions

special of commonly

this Soon

of days

sentenced other

each devises battalion In hunt.”

the intervention (‘) Reich () contract, With overstays

answer Exchanges

9th undertake person those

fuer

Leader)on General Reichskommissar lands

special

are now

a men seinsatzpolizei polizei nowadays for must

relating

after

It

Kaltenbrunaer “(4)

of

Nazi

(1) Reich letter

(2) “Arbeitseinsatzpolizei

police August, (3)

will

absolutely the Meanwhile

das

this.” That,

1944, for 400

refusing

methods

to

territories).”(’)

In all their The this,

being designated police underground.’ For

The

be police

being

death. worsening is

the

dated

Arbeitseinsatz

Commissioner Security his Sicherheitswesen to men

order

be

concerned. searches remembered battalion

clear. naturally,

the Rauters Arbeitseinsatzpolizei

an and this answers

call-up it 1944,

TRIAL person Arbeitseinsatzpolizei

branches,

leave,

looked

fetched.

to was

strong.

force: staff employed,

was

24th Arbeitseinsatzpolizei to

The all

that due purpose

nothing the

work

addressed carry

Main

dated Without as right

tried fuer

of

R.S.H.A. for

of of and

to June, refusing

orders carries

the control OF the there for

that R.S.H.A.), placed the

the

if

further

the labour

by The The

may

ideologically out

die

also the

Labour Office there sending for is 14th

HANS

German can, Reich the

the “

and will 1944,

und actual in

became

directly draconic

was out

to whole fellows (Police such members

of besetzten also

above

to Public those International April.

the extensions

service, are

be

Himmier, naturally,

that

in

the labour Commissioner

and Hoehere

has do one ALBIN

Rauter of Exchanges’ a

be raids

comes house good or position

under position Berlin great situation top

the Netherlands for have his

1944, to Netherlands (police)

sent further

energetically

and Safety man-hunt measures

supposed

of

and

co-ordinating

find

service in mobilisation more niederlandschen

grounds

labour

Himmler.

resistance concerned. this

gave RAUTER of

under Military Rauter received to S.S.-und

have and (Reichssicherheitshauptamt—

be

trains was

to

on

out

such

Kaltenbrunner,(2)

on is

(Higher Arbeitseinsatzpolizei the

call

wide take done.

contained

held the the

(Arbeitseinsatzpolizei) for

become being the and

service,

places the

per

the

for

Tribunal raids, referred as workers labour

police

for

Western promoted the a following them to otTce by

breaker Polizeifuehrer in

part without Generalkommissar supposing week, very Western

of

the

Rauter No formed.

scope. volunteers. occupied S.S.

Rauter of

the labour).

of

the to

the Commander power at of Gebiete

Arbeitseinsatz

good to

who

Netherlanders residence

the

front of the the terror Nuremberg

and

the a

himself. man following

account by the

front a

Gestapo conference

In formed

the

that Labour

do training, entire

labour Nether to

police man

in

Arbeit Police

a

The who of

beim

(The may head 97 the

not

They

letter those

the

calls

of

the

of and

and

is

declaration with

9$

about September. transported

of on landers

deport reported

serziehungslagern). loyalty. whom

place

the

them 34,000

property

The In

Special

All Evidence

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as 122 the punishable was accused. The provision preceding

suspension discussed the in suspension was both enable for or Military

and

of Cassation

In

A

An

particular

chiefly

the

Netherlands

plea lack To prohibitions preting improper in against resort international than guilty such treatment are tion. past, The law principles mention but and and cases adaptation reference tised

punishment

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27 or insufficiencies

Cassation

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attitude

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Decree

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liable

Law. crimen,

arranged

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the

Convention

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Paris

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the Netherlands ment relative 5. maxim

accused’s the the that reprisals him towards members to These less in to Netherlands violence authorities and whether Their occupied is the where,(3)

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(9 () (2) PERMISSIBILITY regard the It what

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Annex Vol. Court for against and,

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concerned instrument Penal customs which,

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VIII due

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defence,

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REPRISALS that held

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accused

pp. that

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OF

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in

crimes

and in

capitulation Courts’

effect war 27

for

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and the

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subject governing

Power. make

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89-90.

international preliminary

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act the

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fact

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to

humanity, war

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was with

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occupant competence. of conduct

in

no law.

ex explained could lawful pre-existent

the

trial

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was,

did than

the surrender, the

turn

connected the 3 any sine in RAUTER

crimes complete principle

that post to

of existing that were

as question

laws

legal 1940, indication

their resort offences

suspended.

under As civilian

lege, as of try

same act

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explained

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relationship upon

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population to as

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unlawful

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population occupying rules

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of

Vol. above,

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reported the given

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that Netherlands Art.

acts of granted

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importance approached

inhabitants

of as

Court

IX,

penalties,

reprisals to

abide neverthe

reprisals.

reprisals. law, in

tried.(2) with justified punish

against

at reprisals

27 of entitled

by that in of against

pp.

acts could Power Penal

in

spite

such

of

that

as

war 123

also (A),

the else

and the the

32-9, the

the of the

by by

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an

to of 124 TRIAL OF HANS ALBIN RAUTER in time of war has yet developed. The limitations of reprisals in time of war are still not well defined, and regarding the applicable rules, one has chiefly to rely on the opinion of learned publicists and on judicial precedents of a differing nature. The Netherlands courts gave, on the occasion of this trial, important views on the subject which will, undoubtedly, contribute to the gradual elimination of the existing uncertainty and difficulties.

(i) Effi’cr of an Act of Surrender (Capitulation) The accused’s plea in respect of the Instrument of Capitulation of the Netherlands Forces of 15th May, 1940, was, it will be recalled, that it im posed obligations upon the Netherlands civilian population to refrain from any hostile act, against the German occupying authorities, and also upon / the Netherlands Government to refrain from orders, or instructions in f violation of this obligation. The main argument used in this respect was that the said Instruments were in the nature of a Treaty and had therefore a binding effect upon the Netherlands Government and its subjects. The above Instrument, officially known as “Conditions for the Surrender of the Netherlands Forces “ (Bedingungen für die Uebergabe der Nieder landischen Wehrmacht), was signed by the Netherlands Commanderin-Chief of the Combined Army and Navy, General Winkelman. It contained among others, the following provision (Article 5): An order is to be issued(’) to the administration of towns and communes that every hostile action against the German Army, its members and establishments must be refrained from and that absolute peace and order must be maintained. It must be pointed out that actions to the contrary will be severely punished according to German law.” Recognition was made of a fact which was to be used by the Courts in their findings, that not the entire Netherlands territory was as yet occupied at the time of the surrender “German troops will not occupy that part of Netherlands territory not yet occupied by them.” It was also acknowledged that the settlement was not final, and that this was to be reached only by means of further negotiations. Provision was made that the occupation was to be assisted by the Netherlands authorities in every way.” The above Instrument was accom panied by two additional documents known as “ Points of Negotiations” (Verhandlungspunkte) and “ Appended Protocol” (Zusatzprotokoll) which were signed on behalf of the Netherlands Commander-in-Chief. The first contained a clause according to which all Netherlands police forces were to be “ retained in service.” The first Court made the following findings in regard to the accused’s plea as related to the above documents “The Court does not share the view of Counsel and the accused that from this it follows that it was the duty of the Netherlands Government in London to refrain from inciting the population in the Netherlands to resist the enemy. (1) By the Netherlandsauthorities, following

The (1)

commanders certain scrupulously on/v which a not, tion permanent and on same that were in occupying opinion these given now Netherlands which acts sibility.” which for particular

lands this

commanders tions to which ment of

receive May, tion

ttalics

political

“The this

Special the

the

acknowledge

According

These

this

On country, therefore

the however,

if and

treaty

pact

wishes

is pacts

terms

never

with

on Government population

to do

1940,

would are conviction

formed Land

the parts they

to

these

orders

Government

that

purpose

Capitulation

The

the keep

not

At the

In to

insred, be Article nature

Court

cession

pacts

Power

the from

Netherlands

with

are

there

made

to be fulfilled

and of population

of this

4.50

and carried Netherlands

oblige these come

various of pacts

Netherlands also

TRIAL

be to

absolute

invading

part

concluded,

from

attribute

belligerent

the

ratified

the

the

of

international

this were an

Sea

;

of considered it

meeting

by on

5,

could

p.m.

would

laid of

public

in

the pacts such

under

cannot to

country,

of the

German in

forces

agreement

Cassation out

the

the in forces territory,

happening occupied grounds

contains

London

OF

which

strictly

no

the

occupied

which

the

on

Netherlands peace,

by London

,...which enemy,

be

to

circumstance provisions Government

to

enemy

contained

never

obligations his

population

[with or

forces commander HANS and

population

in be

allied

the

no

14th keep

[General them.

towns

side empowered

the

command

it

this accompanied

law

reproached

the

adhered

was

question was

to not

the governments

concurred Netherlands

for territory.(’)

the

was

have

German was

May, as

defence only

calm,

for

during

war

a

a

Court ALBIN

country

justified

Commander-in-Chief

a

carried

capitulation

are cessation or

[Netherlands]

further a

the

laid

government

the single

acting on

Winkelman]

pacts

failed

that

lawful

in that

operations does

with

fortresses,

who

1940,

which to

binding

of

or,

the

implication

surrender also

the

down

appeals

connection

to

representatives]

for

with

on RAUTER

negotiations to it no

out. provision

in had

in

unlawfully, concludes

regulations Netherlands not of

by

regard

bind occupation to

territory

The capitulation. without

considers of must

having

lay

inciting

the in appeal

general,

both

that

in

do the

no treaty an

hostilities

bear

to

the

are

and

down

Court

against his

Commander-in-Chief

a gave

Netherlands

of

political

refrain

had

anything to admonition

above

an

belligerents.(

capitulation

which

had

circumstances purely

with which

was

government certain

a to

from

is

as

the such

the

to

order that

and

the over

as their

to previous a

is

it could

resistance(’) Government

such

arms

provisions

pact ever

Germany

held strengthened in

sole demonstrate the from

views

been occupant

to

a

order the

implication

the lays

aeroplanes, these a

a

territories

more

troops

arms. was pact

capitula V

how

must between

then

made dropped capitula

situation

Nether on side,

defence

respon

obliga to

hostile

of

treaty

in

) agree

to

pacts

to

can

to

than

125 15th

also

the

the the the

for be

the

or

the

of

or be

to

in

or

in

a V 126 TRJAL OF HANS ALBIN RAUTER which had arisen, and at the most could possibly protest against unlawful regulations, as in fact he did do with regard to certain provisions. The signing of the so-called Bedingungen für die Uebergabe der Niederlandischen Wchrmacht’ by the Commander-in-Chief and similarly afortiori the signing of the two documents following on this, respectively named ‘ Verhandlungspunkte ‘ and Zusatzprotokoll,’ by the commanders under him, did not thus hear the character of a pact with the enemy forces, but are simply to be considered as a proof of the receiving of orders given them.( ) These and subsequent orders were only legally valid insofar as they related to that part of the Kingdom of the Netherlands brought by the enemy under his power and those Netherlands forces present in that part, with the exception for a short time of Zeeland, and in so far as they were of a military nature. As is apparent from the contents of the documents mentioned above the proposition is also particularly incorrect that the so-called capitula tion pact was concluded by General Winkelman in his capacity as exceptional bearer of the Netherlands governmental authority in the occupied territory, and that his further measures for the putting into execution of the German orders were generally binding rules for the Netherlands population. “ Therefore there can be no talk of violation of a pact, and this also, as appellant has argued, by other authorities than those which con cluded it, and at the most there could possibly be a question of non compliance with enemy military orders by the Commander-in-Chief.

In particular, in accordance with Article 5 of the ‘ Bedingun

gen ‘ he [the Commander-in-Chief] had an order given to the municipal authorities and to the population to refrain from any hostile action against the German army, its members and institutions, and to remain unconditionally quiet—in which spirit also H.M. Queen Wilhelmina addressed herself immediately to the Netherlands population—and in accordance with Article I of the Bedingungen ‘ the Commander-in- Chief did his duty in handing in weapons and ammunition by the Netherlands forces. “With the carrying-out of these and other orders contained in the Bedingungen’ and its appended documents the immediate results of the capitulation were effected, and henceforth the occupied Netherlands territory came by rights under the régime of the military occupation described in Section III of the Rules of Land Warfare. Even if, as the appellant has shown he desired, the orders given by the German commander to the Netherlands forces after their capitulation were to be extended still further by considering the Nether lands Government as bound for the whole of the future duration of the war by obligations analogous to those laid by the enemy on the Commander-in-Chief, exclusively in that capacity, with temporary effect for the transition of a state of war into that of a military occupation,

(1) ita1ic are inserted. By using the term pact” in this context the Court presumab meant “Treaty “ binding as between States, (ii) clusion effect answer in from tion by which occupation were of right,

sidered

two the laws proper Occupying (1)

In

(2) The

Art.

the an

the status

Right

of

freedom

tions respect. which appellant’s the

occupation, could standpoint it

and differently, was forces diction territory not occupied from spy, hold lawful of Netherlands

to

This This

close

involved,

acts act

the

of

which

would first “Even

Court’s

“The

as

Court

29

to that resistance War,

obey trial.

appellant’s customs

To

a

therefore of the

is even Power

of is

Court of

to

in

such be

of

the

in of

connection

as legitimate place

be a weapon,

could a belligerent

are

in

violence,

avoid the

a

Resistance would accordance

a reference

the Surrender

not the Court

reference especially no is

to

prescribed violence

in

territory

findings

with considered spy,

spy this

Netherlands

acts essential

; exercises of

appeal the

because

Netherlands in

stressed,

illustrate

way

a as

that

orders

Hague conflict

did

it

by war.

be

justified any TRIAL

general trend belonging

and

because

ground

presuppose

of

death.” resistance

follows

while will

will is

to

retributive

applies and “

authority,(2)

not punishment to

on violence with misunderstanding

against

can a to recognised only Art. Arts.

in of

in

of Art. that the

grant

Regulations by

with

of be

however,

with

permissible

in

the

at

the fulfil

reprisals.”

as

Inhabitants

the OF

neither

in 1940,

the for

such

be a

thought

the point 30 the from

no they

occupying further 43 I

civilian the

to

to

subject tie

unlawful

acting issue

the and

in

the

case provides the

a him. HANS complaint

occupant

the

of

nevertheless

case facto

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conclusions

its action,

same carry

cases to

permissible

the

the

would

the 2 this

Rules

laws

of

ethically

so

that

accused

occupier irregular was opponent,

German

of

of requirements

innocent of

explained population against

were authority

contains

first Netherlands

weapon.” Hague

their

Resistance

view

that

of time

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of ALBIN

appear

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espionage

that

Power

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that

i.e.,

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of affect

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Land and,

Occupied Hague

would

no

expressed

arms Court

the

the combatants

this that,

resistance

nor Regulations, Land

customs gave himself sort

no

conduct

reached this by

Court

of

weapon violation in

people.

more

a as

has

only RAUTER

only Warfare,(’) openly,

belligerent population

hereunder

spy

espionage. Regulations,

the occupied

juridically

was

description matter the

still

such

resistance. came

viewed

to While

a

the

which

concerning

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to

the

can

consequence, Territory

here

exercises imposition living in

than

a

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under

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on not of

occupant ; the and under

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war.

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wishes

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instance legal certain

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to enemy

they is proved legal

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good

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legal

in the

punish

who

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factual the

to

during to his

and

no

considered

which

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to

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add

which

German

to right

accused

fighting implied without lack to obliga

contra

obliga terms

chosen such

in

is refrain

in of

Power of

in

guilty

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obey

con

such

con as

any that

gets

and 127

the

the the the

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the of

to

a

a Christiansen.() lands on violation a the the law as reply Holland ance. a legitimate and derive those of the 128 in attacks distinction war It The (‘) to war. accordance the occupant. oftènces case makes should between which in ment here. to exist on Common an legitimate popLilation, limits resistance, unthinkable. with impunity. with use which penalties Judgment the to courts who from and grounds relevant The law be the occupation acts (Wehrmachtsbefehlshaber), The Counsel As of of laws of If The What in on the or impunity that were illegal. no an counsel a army their espionage, inhabitants be spies. towards such set such long the with on to occupant of illegitimate Court the above belligerent to of rules distinction on with occupation noted Law and The that, parts senior it he must guilty be sense the by the be alleged attacks of as army has the which a if does illegitimate TRIAL could drawn observed Special of an considers Court rules should occupation, explanation wishes that International occasion international rule by insofar the of it that know spies commanding that certainly under international while illegitimate and were not of obligations the the considers the occupant and violates the occupation. the of does between similar Court between denied must OF the occupation,” themselves.” be occupied. ... findings subscribe as right that, international the in for opposing on accused civilian was ‘ the of civilian conducted, international HANS any exist in advanced resistance the the but be terms of to other no conclusions to the entitled Arnhem. in resistance Law, a occupation, law by the “ case to conducted officer itself duration other let the law act the in lawful right legitimate its general, existence was population refrain to acts population of ALBIN Both party, alleged the As trials. it may when in defence Court under concerning only so the occupational be pronounced hand to justified law. that charged, of committed of violation does a above or of that law lead committed do consequence the of known from the arguments be were regulating who counter-measures an meaning denies rule no once of resistance RAUTER a it In ‘‘ espionage the included is not The regulated German opposing the rule must and to taken unlawful is trial obligation would to the inimical drawn is war had illegitimate may of in espionage, a a the on discriminate as Court impose that occupant in by of read war trial the laws rule refrain committing 12th its between illegitimate is complete been in same against on the be that inflict the the Army such such may there laws by the conduct considered party that war, had the August. of as of and violating referred the to way argument penalties inhabitants other committed sort way consequences follows International Friedrjch from be “ a and according refrain present could as in started, was the regulations, belligerents or the grounds within them rule resistance, by a between agreement countered Occupied would ill 1948 occurred between towards customs war ‘‘ Nether acts severest neither making also civilian attacks a which resist would judg never upon from that duty case with and the the C. in in be to of of to

I a attitude guided between

legal hostile its situation of relieved that offenders, part having right should guilt. in It

(iii) In rcprisals.”(’)

are stressed, second that

State. The wherever time issue and entitled

including regarding

renunciation pulsive ception resorted delivered

Kelsen, however,

it

Inhabitants

a

sc/fdefencc In The arbitrary

In referred

conduct (‘) () such

thus justifiable

ions, one

of Legitimate

the obligation the

the

connection

emergence

of the to Judgment

In

as

by question

acts regard

be the

from

of towards being As an

collective latter eases, contradistinction peace, to appears

American to of offenders is defence,

United settlement()

on been one

theory to

in

the noted

negotiations

self-defence

reprisals.

inhabitants in that, the to

make

the towards occupying

revenge

such

towards

12th

whether, accordance

self-help the

of

affected

of of

following are of eases war of to

defence said

pacific and they and two

what

where

Nations, that difficulty the of concerning August, similar that, the the

with Securiri the occupied

Journal duty use they

permitted

and TRIAL

should

waged

Special

Illegitimate the

does against international

main where

constitute

the

right

occupant. by to one the are nature of of

The

according

after

the

Power entitle to are “ settlement that inhabitants

which

to or

Court, a

the the

compulsive

acts

1948. rules of

and with inhabitants.

is

legitimate

not,

occupant. of

abide military

a

has expressions

Court in in

OF

of be opinion

other

Netherlands

International an the

Charter violation territory

war

as not them.

the

reprisals the no of

Collective being

international

defence

war,”

the the given

in or and caused

the

a

answer HANS

a the

inhabitants

the at

of Reprisals

by

excessive

means Court

acceptance to

accompanied

law, This,

amicable

aggression, mode principles

occupant laws Anthem,

aggression, bodies, of

occupant

of committed

commit

inhabitants the acts has

and the

offence

of

as Breaches

means

fair

are

the

The

Self—Defence international in

of some prevent

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(. J 134 TR!AL OF HANS ALBIN RAUTER consideration to this end, whether these be the land, sea or air forces of the enemy, other organs of his, his territory, merchant navy or property, his subjects wherever they may be, or the laEter’s property. Among the limits referred to, the prohibition should especially be mentioned of taking reprisals against prisoners of war, as this was ex pressly prohibited by Art. 2 of 1929 Convention relating to this matter(’). The Court then entered into the question as to what was the nature of the specific relations that developed between Germany and Holland on account of the war. It reached the conclusion that no wrong had at any time originated from the Netherlands, but on the contrary from Germany, and that the latter had consequently never acquired the right to take reprisals against the Netherlands and its population. These findings were as follows The appeal to this, in principle recognised, right of a belligerent State to take reprisals, provided they are of a permissible nature— eventually also against the population of occupied territory—cannot be of any avail to the defendant, as there was no previous international offence committed by the Netherlands against the then German Reich, so that the Reich mentioned had absolutely no right to take genuine reprisals. It is indeed generally known all over the world and also con vincingly established by the International Military Tribunal in Nurent.. berg . . . that the former German Reich unleashed againt the Kingdom of the Netherlands, as it did against various other States in Europe, an unlawful war of aggression, and by so doing began on its part to violate International Law, an international offence which in itself the Kingdom of the Netherlands was already justified in answering by taking reprisals against the aggressor. The then German Reich made its guilt even greater by making use, in the course of its military operations during the few days in May, 1940, of treacherous means prohibited by the rules of war, such as in

seizing by surprise important strategical objects—bridges,—. . . by means of misuse of Netherlands uniforms, contrary to Art. 23 (f) of the Rules of Land Warfare ; by means of Netherlands traitors in its

service who were instructed how to achieve this result ; and by the bombing of a city—Rotterdam—before the expiration of a regular ultimatum.” “After the military operations proper the then German Reich con tinued consistently with the commission of new violations of Inter national Law, by, among other acts, withdrawing recognition to the

lawful head of the Netherlands State ; setting up in this country a civil administration which was made independent of a military commander;

carrying out systematic Nazification of the Netherlands ; increasingly persecuting Jewish Netherlanders ; compelling Dutch workers [to take

part] in the German war effort and industries ; and many other measures prohibited by International Law. “Thus the Kingdom of the Netherlands far from being by law liable to endure reprisals from the German side, would have, on the contrary

(1) Geneva Convention relative to the Treatment of Prisoners of War. from separate to called jn

findings

measures o[Tcnders imposed tirst habitants Regulations,

made

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Having

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Italics

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mesure

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50 financial

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accused,

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have resort

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1907

is question TRIAL towards aim

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ALI3IN

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Dutch

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reached RAUTER measures

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population

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the

Art.

in of of

same

part

The

the as These derive

the

it compatriots,

being

above

the

which

of

no

collective

individual from in

cannot

occupant, approached,

which shall

which prohibited

to or expressed

measures population,

50

point

of had

that

reprisal

population Conference, all case

in

Article

enemy time

as They

by

postulate

hostile

it of

the findings In

no

be

the as the

such

acts

they

of

undertaken

appears

be narrowly the

such jointly could

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view

according inflicted

the

the

legal

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German

matter penalties, regarded are so-called occupied

in

against

by civilians

50,

popula

acts

the left Hague

by

against should

acts

actual

only

Hague

of “

order

such

other as there were

title there that,

135

final

as

K2

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as

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(I,, ‘-7 1

s/i 136 TRIAL OF HANS ALBIN RAUTER expressly declared that this provision originally drafted only for fines, was applicable to all other collective penalties (Rolin Report of 1899 on Article 50). “The basic idea of this Article is apparently that an occupant of foreign territory—no more indeed than the lawful sovereign or the ) ,‘yI occupant in his own territory—may not take steps against the innocent / for deeds of others. In fact such a behaviour, both in the home country as well as in occupied territory, is contrary to all principles of justice and is in compatible with an international convention, in the Preamble of which it is expressly laid down that in the cases not included in the Rules \ appended to it the inhabitants . . . remain under the protection and governance of the principles of the laws of nations, derived from the usages established among civilised peoples, from the laws of humanity and from the dictates of the public conscience.”() The major point in the above detailed findings is the way in which the Court had treated the question as to where the original wrong lay. It took the view that a violation of international law could and had in fact been committed on the occasion of the opening of hostilities between the bel ligerent Powers concerned. In the solution adopted by the Court this included the issue as to which of the two Powers was guilty of a war of aggression against the other. This opinion was based upon the recent developments of International Law on the subject of aggressive wars. Since the enactment of the Nuremberg and Far Eastern Charters, and the judgments pronounced in the trials of major war criminals held by the International Military Tribunals at Nuremberg and Tokyo, it is an established rule that wars of aggression constitute an international crime, and that those respon sible are liable to penal proceedings and sanctions. This position furnished the grounds for the opinion that the launching and waging of a war of aggression against the Netherlands—which is also an established fact,()— was an illegal act which, on the one hand entitled the Netherlands State to resort to acts of retaliation, and on the other hand, deprived Germany and persons in its service of the right to answer this by what was alleged to constitute legitimate reprisals. It will be recalled that the Court referred also to violations incidental to the aggression and affecting rules of a proper conduct of military operations. It also made a strong point of the conduct of the occupant towards the inhabitants during the occupation, and thus strengthened the attitude taken on the subject of the initial wrong done by the enemy by launching a war of aggression. The violations mentioned in regard to the opening of hostilities concerned treacherous means of warfare, whereas those referred to in regard to the period of occupation included the improper establishment of civil administration, attempts at Nazifying the occupied territory, persecutions of the Jews, and the seizure and deportation of inhabitants to slave labour. These breaches of interhational law were referred to with a view to showing () Quoted from the preambleto the IVth Hague Convention concerning the Laws and Customs of War on Land, 1907. The “appended Rules” referred to by the Court are those of the Hague Regulations respecting the above laws and customs. () See Judgment of the International tvfilitnrv Trihu,,al Jr the Trial of German Major War Criminals, I-TM. Stationery Oce, London, 1946, pp. 30-31. customs that,

cannot population is vader of who consequence, members against stressed, a organs collectively affect The the actual implied not the the concurred as tions of root reprisals. and of mate the order therefore hostile of had Dutch population by findings With lands

(1) wrong

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hostages.

the

Art. any to

Hague

the

population

individuals

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as Court

is

See of should had no

even

committed

reprisals,

reference

scope

State. the to and

population only

offenders. premise

acts population, from

a

preliminary implicated

kind, the be

Netherlands 50, unlawful the

is of p.

right

be committed

result in

thereof.”(’) nothing

never

nature

Regulations

regardless was the with occupant The

regarded war, of 132

that findings

acts the general

“ guilty entitled bears

of

this

be to the

The responsible.” This when “pecuniary

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emergence

this to above.

of his that

so-called did to

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observed

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respect,

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no

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TRIAL

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take

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as Nether

persons

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civilian

against

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killing

to above

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viola legiti

50 “

As

well,

This acts, time

had and was

can

not 137

the

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it

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tt

t

Clarendon

specific

be conscience.

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principle

theNurembergChartershould

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Art.

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as

actual

in

invariably occupying

rule

of

1870-1871, 138

(3) ()

(1)

There

civilised

This

a

the

understood

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Italics

Grotius. civilised of

Vattel, the belligerents

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1925,

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742-743. ac

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