Re Gerbsch

• Jurisdiction: Holanda
• Docket Number: Case No. 155
• Date: 28 Abril 1948
• Court: Special Criminal Court (Netherlands)

Holland, Special Court at Amsterdam, First Chamber.

Case No. 155

In re Gerbsch.

Individuals — Position in International Law — Rights of Individuals as Independent of the Law of the State — Crimes against Humanity.

Nationality — In General — So-called Passive Nationality — Jurisdiction of National Tribunals with regard to War Crimes and Crimes against Humanity Committed against Allied Nationals in Enemy Territory.

War Crimes — Authors of — Individual Responsibility for the Commission of War Crimes.

War Crimes and Crimes against Humanity — Punishment of — Effect of State Policy on Degree of Culpability.

Belligerent Occupation — Civilian Inhabitants — Treatment of — Ill-treatment of Civilian Inhabitants Deported from their Countries and Interned in German Concentration Camps.

War Crimes and Crimes against Humanity — Nature and Punishment of — Jurisdiction of National Tribunals with regard to War Crimes and Crimes against Humanity Committed against Allied Nationals in Enemy Territory — Principle of So-called “Passive Nationality”— Belligerent Occupation — Civilian Inhabitants — Ill-treatment of Allied Nationals Deported from their Countries and Interned in German Concentration Camps — Effect of State Policy on Degree of Culpability of Individual Criminal.

The Facts.—The accused Gerbsch was, between 1944 and 1945, a guard at a penal camp in Zoeschen, Germany, in which allied nationals deported from occupied territory were interned. He was charged with causing “serious ill-treatment, of which Netherlanders, at any rate persons deported or transferred from the Netherlands to Germany” and detained in the camp, were the victims. An alternative charge was that the accused committed ill-treatment “as an official in the State or public service of the enemy” and by so doing “intentionally acted contrary to the laws and customs of war, or at any rate of humanity”. It was established by the evidence that the accused frequently beat allied nationals, including Dutch subjects, interned in the camp with a rubber truncheon, a spade and other implements so as to cause severe bodily injury and in several instances death.

The defence submitted that the Court had no jurisdiction to try the accused on the grounds that he was a German subject, that the offences charged constituted war crimes committed within German territory, and that in committing them the accused had acted in the public service of the German State. This plea was rejected under Article 4 of the Extraordinary...