Re Rauter

• Jurisdiction: Holanda
• Date: 04 Mayo 1948
• Docket Number: Case No. 159
• Court: Special Criminal Court (Netherlands)

Holland, Special Court (War Criminals), The Hague.

Case No. 159

In re Rauter.

Capitulations — Capitulation of Rijsoord, May 15, 1940, between German and Dutch Forces — Legal Effects on Civilian Population — Resistance Contrary to Proclamation — Necessity for Ratification — Applicability of Hague Regulations in Occupied Territory despite Resistance Movement.

The Facts.—See also Case No. 131. Among various other grounds of defence the accused maintained that it followed from the terms of the military capitulation of Rijsoord that the Dutch Government in London were obliged to refrain from exhorting the Dutch population to oppose resistance to the enemy, and from providing them with weapons for that purpose. It was also maintained that the population was under a legal obligation to refrain from such resistance.

Held: that this defence must fail. It was true that certain clauses of the capitulation had a bearing on the conduct of the civilian population in occupied Holland. According to international law, however, a capitulation is a convention between commanders of belligerent armed forces and is concerned with the surrender of specified troops or specified regions, towns or fortresses. It ought to be fully implemented. However, a commander who concludes such a convention is not considered to be competent to bind his Government to a permanent cession of territory, to a cessation of hostilities occurring in regions not falling under his command, or, generally, to provisions of a political nature. As a result, such provisions in a capitulation would be binding only in so far as they might be ratified by the Governments of the belligerent parties.

It must be conceded that a capitulation might comprise provisions concerning the civilian population and the taking over of the civil administration. The title of the principal document, “Conditions for the Surrender of the Dutch Armed Forces”, coupled with its contents, put it beyond doubt that it was a genuine capitulation. This was confirmed by the following passage in the explanatory memorandum: “At Rijsoord [the German] General von Küchler asked if [the Dutch Commander-in-Chief] General Winkelman was empowered to speak in the name of the entire armed forces of the Netherlands and if his commands would be obeyed. General Winkelman declared himself entitled to act on behalf of all armed forces in the Netherlands territory in Europe with the exception of the province of Zeeland, and said that his commands would be...