15 January 2008

Derk Venema on Dutch Judges in Wartime (1940-1945)

Derk Venema of Nijmegen's Radboud University in the Netherlands, has just published his phd-thesis on the Dutch judiciary under German occupation in book form with Boom Publishers (The Hague). As Venema said recently in an interview, "surprisingly little" has been published on this topic (an observation that, at least until very recently, was true for Germany itself as well, see our recent post on Ruether's Postscript, in the sidebar). This dearth of research, of course, makes Venema's book all the more valuable. With the author's very kind permission, here is the book's English summary (I've highlighted a few passages that I found particularly interesting):

During the German occupation of the Netherlands (1940-1945) the Dutch judiciary largely remained in office. This book tells the story of the judges’ professional conduct under the five-year national-socialist dictatorship.

In the first chapter, the historiographic problem of writing about National Socialism and the Second World War is addressed. In the Netherlands, the German occupation has become a canonical point of moral reference. This is expressed in the terms, used since the beginning of the occupation, for National Socialists and collaborators on the one hand: ‘bad’, and patriotic democrats on the other hand: ‘good’. National-socialist ideology is therefore still often taken to be an intellectually weak disguise for a malicious will to power. The second chapter shows that this is not necessarily the case, and that there was a serious attempt in the Netherlands to create a coherent national-socialist theory of law. This book aims to explain the way the judges acted under enemy rule, and not to pass moral judgement on the judges’ behaviour. Five main explanatory factors are investigated throughout the book: first, the traditional method judges used to decide cases and the judges’ professional self-image (chapters 1 and 3); second, the role national-socialist ideology played in and towards the judiciary; third, national and international law concerning the positions of judges and occupiers; fourth, the often conflicting interests judges had to take into account in deciding court cases, and in other professional matters such as possible protest or even resignation; and finally, the legal and other measures the occupier took that affected the judiciary.

Chapter 2 offers a brief outline of Dutch national-socialist ideology, and a comprehensive description of Dutch national-socialist jurisprudence. Special attention is given to the role of Hegelian philosophy and Hegelian philosophers who especially in the beginning (1931-1936) had a strong influence on Dutch national-socialist philosophy of law and politics. Some Hegelian philosophers even attained high posts in the government and in the judiciary during the occupation. Main features of Dutch national-socialist jurisprudence were: antiformalism, ethnic solidarity, the leadership principle, upholding public order and morals, and a strong emphasis on intentions rather than actions. I shall expand on this briefly. The presumed traditionally formalist methods of the Dutch judiciary were attacked by the National Socialists. They argued that formalism did not allow judges to arrive at a just outcome. Judges should therefore not be bound to the exact wording of statutory law, but they should be allowed to interpret the law freely, and even, if necessary, decide contrary to statutory law. According to Nazi law theory the ideal judge knows and applies local traditions and national-socialist theory rather than positive law. Anti-Semitism only gradually became a prominent feature of Dutch National Socialism after 1936. Jewish lawyers were given the blame for the formalist tradition of adjudication. A stronger hierarchy was deemed necessary for successful Nazi adjudication: leadership and responsibility in the court should rest on individuals rather than groups. Prioritising the interests of society over individual interests was the leading national-socialist principle, which was expressed, for example, in the cry for higher penalties for minor unlawful actions with selfish motives. Consequently, National Socialists demanded lower penalties or even acquittal for unlawful actions that were conducted with the intent of promoting the (nationalsocialist vision of) interests of society.

Chapter 3 gives a detailed account of the national and international laws of occupation and how they applied to Dutch judges. Central to this chapter is a ruling by the Dutch Supreme Court concerning the right to review the occupier’s ordinances in the light of international law (Annual Digest 1919-1942, case 161). The Court ruled that under the circumstances of the occupation Dutch judges could not review the occupier’s ordinances in the light of international law (the so-called Hague Rules attached to the Hague Convention on the Laws of War on Land from 1907). Article 42 of the Hague Rules states that the occupier:

takes all measures […] to restore and ensure public order and public life, and such, unless absolutely prevented, respecting the laws of the country.

One of the problems with the laws on occupation is that the applicable law is unclear on the question whether Dutch judges have the right or even a duty of judicial review. The Supreme Court decision that Dutch courts did not have this right (let alone duty) has been much debated since 1942. Those who support it, argue that it was a sensible ruling, because it avoided a probable confrontation with the occupier, who would not appreciate his ordinances being reviewed for compliance with the Hague Rules (and possibly deemed unlawful). Supreme Court judges would possibly have been replaced by Nazi’s, as had happened in Norway. Others criticise the ruling for its lack of principle. They regard it as a legal submission to an illegal regime, which damaged patriotic morale and heavily disappointed the resistance. Before the ruling on judicial review was given, Dutch courts had already applied many ordinances without checking their validity in any way. The Supreme Court thus supported this practice and made it law. In the Court’s post-war defence of its 1942 ruling the risk of replacement of all Supreme Court judges by Nazi’s outweighed the anti-Nazi signal that judicial review of the occupier’s ordinances would have given the Dutch people. The people were better served by a non nazified judiciary than by a protesting and subsequently nazified Supreme Court. Elements of an explanation for this attitude, which has been called legalistic as well as pragmatic, include the following. Judges were used to obeying the law-giver, to uphold the law and public order, to keep the justice system working, and not to rebel. Judges strived to make their judgements predictable and to protect the unity of the law. This meant that judges were not inclined to take risks or act heroically. Finally, it is very difficult to establish for certain whether reviewing the occupier’s ordinances would have had more desirable consequences: that would be speculative ‘what-if history’. My estimate is, however, that, ultimately, reviewing the ordinances probably would not have been of more benefit to the Dutch people than not reviewing them.

Chapter 4 deals with the occupier’s policies and measures relevant for the judiciary. During the first year and a half of the occupation, new courts were introduced. German military and civil criminal courts were set up to deal with crimes committed by German soldiers and civilians. These courts were also competent to hear cases involving hostile acts committed by Dutch citizens against Germans, the German army or the German Nazi Party, and cases concerning acts against general interests. The German occupation saw an enormous rise in ‘economic’ criminality, especially with respect to laws that had been issued during the economic depression in the 1930’s, and also increasing black market trade and fraud concerning new distribution rules. To diminish the workload of the regular criminal courts, a Dutch economic criminal court was introduced. Very controversial was the introduction of a so-called ‘justice of the peace’. These judges (hearing cases in 5 of the 19 district courts) were all Nazi’s. They ruled in criminal cases involving ‘political’ motivations, and the main aim of these ‘peace courts’ was to restore and protect the ‘political peace’. The most important reason the Germans allowed the creation of the justice of the peace was a complaint by the Dutch National Socialist Movement (Nationaal-Socialistische Beweging, NSB). According to the NSB, Dutch judges did not punish people severely enough who offended members of the Dutch Nazi-party by calling them ‘traitors to their country’. Justices of the peace gave higher penalties for these offences and acquitted members of the NSB who had reacted to them with physical violence. In order to accomplish this, these judges had to assume a vast discretionary power in order to interpret those assaults as self defence. In many other ways the occupier and the NSB interfered with the administration of justice. Courts and individual judges sometimes protested, but in general they complied with the occupier’s measures in order to keep the justice system functioning, and to keep it in the hand of ‘good’ judges, for the benefit of the Dutch people. In this chapter several new laws are also discussed, as well as the German and NSB influence on legislative procedures. The best known wartime addition to the Criminal Code was a Dutch version of the German law that allowed judges to apply criminal laws analogously, that is, to acts that were not covered by them, but were deemed worthy of punishment according to ‘sound feeling of justice’.

The most successful way the NSB exerted its influence on the justice system was through the personnel policy. This is the subject of chapter 5. NSB members, members of the Rechtsfront (the national-socialist organisation for jurists and policemen) and sympathising lawyers could apply for a court function at one of these organisations or at the Justice Department. In 1943, 13% of all judges were members of the NSB or the Rechtsfront or sympathised with National Socialism. To make room for them, the occupier together with the NSB had several means of dismissing judges. First, all nine Jewish judges were dismissed and a new mandatory retirement age was introduced: 65 instead of 70.
Also, 21 judges resigned and 12 were dismissed for political reasons. This created a total of 63 vacancies. Only a third were filled by ‘bad’ (‘foute’) judges and because not enough National Socialists could be found, many of the other vacancies were filled by ‘good’ (‘goede’) judges, but shortages of judges as well as lower court personnel increased over time. Towards the end of the occupation, a number of national-socialist judges fled to Germany, but some later returned to Holland. All judges, ‘good’ and ‘bad’ appointed during the occupation were dismissed upon the return of the lawful government in 1945. After a process of ‘purification’ of the judiciary, the ‘good’ judges were appointed again and the ‘bad’ ones punished in various ways.

In Chapter 6, six categories of court cases are discussed in which the occupation played a significant role. Cases involving political antagonism before and after the introduction of the justices of the peace are compared. Applications of several of the occupier’s ordinances are presented, and the influence of the Supreme Court’s ruling on judicial review is evaluated. A number of pharmacists filed suits against the national-socialist pharmacists organisation. They had refused to pay their mandatory membership fees to this organisation that was forced upon them, and consequently attachment of their possessions was levied. In court they demanded that the attachments be released. In order to achieve that release, they argued that the national-socialist nature of the organisation presented them with a conflict of conscience, so that they could not be forced to be a member or to pay any membership fees. In one case in September 1944, the judge criticized the Supreme Court’s ruling on judicial review and expressed the opinion that a different Supreme Court chamber might very well rule differently.
In Amsterdam, there were many cases involving Jews who wanted their official status as Jew altered. Persons with two Jewish grandparents were officially regarded as Jews if at the start of the German occupation they were married to a Jew or registered as a member of a synagogue. When the deportations started, many of these persons demanded the court to declare their marriage or their membership of the synagogue legally void. Judges, spouses and synagogues usually complied, if the case seemed legally sound. The last two categories discussed are court decisions that show judicial partiality towards one of the political camps and the treatment of German nationals in the Dutch courts.

In the concluding chapter, the influence of the different factors introduced in the first chapter is evaluated. Traditional judicial method and self-image contributed to a critical but careful stance towards the occupier. National Socialism was rejected by the majority of the judges, and protests against some ideologically motivated ordinances were filed. The judiciary was not ‘nazified’, and the vast majority of court cases had nothing to do with the occupation and the majority of the national-socialist judges did not or could not express their political ideology in the courtroom. National and international laws of occupation assumed that the judiciary in an occupied country would remain in office and that an occupier would uphold the words and spirit of international law. National law demanded that judges remain in office as long as that would serve the people. This contributed to the legally correct and pragmatic attitude most judges showed during the occupation. It was the occupier’s policy to take all politically relevant cases away from the regular courts. This meant that very few 'good’ judges were put in a position where they could make politically relevant decisions. The Supreme Court in the case concerning judicial review was an exception. And even there, the Court decided to exert as little political influence as possible. The interests judges could weigh in making their professional decisions were principles of law on the one hand and the material well-being of the people on the other. Overall, public order and the material well-being of the people weighed heavier in their considerations, which does not mean that principles were discarded altogether. Moreover, both the pragmatic and the principled attitude can be strongly morally motivated: the same legal or moral principles can inspire people to very different courses of action: defying the oppressor or accommodating to the occupational government. It seems difficult to maintain that law is something inherently moral. The legal system can be used by different people for different purposes, and can not guarantee that it will be used only for ‘just’ purposes. It is impossible to predict or to control all the ways in which laws are interpreted and applied. Even specific methods of interpretation cannot guarantee ‘just’ outcomes. In continuing their work in the courts, judges were serving the people, but by upholding public order they also were unavoidably assisting the occupier. The judges’ dilemmas were unsolvable, a certain level of accommodation to the occupier was inevitable. It seems that ultimately not the law itself, but those with enough power to use it for their own purposes determine what is legal and whose concept of justice is served by the law.

Many thanks - and congratulations - to Derk Venema.

For those interested in more information on the Dutch legal community during the Second World War, here are some key publications (in Dutch) by Professor C. Jansen (also of Nijmegen's Radboud University):

Jansen, C.J.H. (2005). De spagaat van de leden van de Hoge Raad in de Tweede Wereldoorlog. Nederlands Juristenblad, 880-886.

Jansen, C.J.H. (2005). De zes Nederlandse juridische faculteiten en haar hoogleraren in de Tweede Wereldoorlog. Nederlands Juristenblad, 1937-1943.

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