Re Zühlke [Holland, Special Court of Cassation, Second Chamber.]

• Jurisdiction: Holanda
• Date: 06 Diciembre 1948
• Docket Number: Case No. 157
• Court: Special Criminal Court (Netherlands)

Holland, Special Court of Cassation, Second Chamber.

Case No. 157

In re Zuhlke.

War Crimes — Plea of Superior Orders — Test of Law of Accused's Own Legal System — Admissibility of the Plea as Distinguished from its being Well-founded — International Military Tribunal — Article 8 of London Charter of August 8, 1945, and Minor War Criminals.

The Facts.—See Case No. 122. As has already been stated in the Note to the report of In re Heinemann (Annual Digest, 1946, Case No. 169), the choice between the various possible judicial attitudes towards the plea of superior orders put forward by German war criminals was only made by the Dutch courts in 1948. The several Special Courts of first instance had varied considerably in their interpretation and refutation of the plea. In the test case concerning the German prison warder Zuhlke, the Court below had begun by distinguishing between the admissibility (recevabilité) of the plea in the light of Article 8 of the Charter of the International Military Tribunal at Nuremberg, which it had affirmed, and the question of its being substantially well-founded, which it had denied on the basis of Article 43 of the Dutch Criminal Code. While coming to the same conclusion, the Special Court of Cassation followed a different line of reasoning.

Held (on appeal): that there was no reason for separate treatment of the admissibility of the plea and the question of its being well-founded. In fact, according to Dutch criminal law an accused had always the right to invoke superior orders as a ground for pleading non-culpability. This inherent right could be restricted or excluded only by a superior rule of law and, in the absence of a rule of customary international law generally recognized as obligatory during the Second World War, this could only be Article 8 of the Charter of London. That Article did not, however, contain anything to which, as a higher rule of law, Dutch law would have to be subordinated. As appeared from its context, it referred only to the “major” war criminals, for whose trial the International Military Tribunal had been set up, and not to other war criminals such as the accused. Article 8 was not, moreover, the expression of a principle of international law of a wider scope, applicable to all war criminals without exception; on the contrary, this provision found its justification in the exceptional position which those “major” war criminals had occupied in the general framework of the criminal policy of Germany...