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

CourtSpecial Criminal Court (Netherlands)
Docket NumberCase No. 175
Date06 Diciembre 1948
Holland, Special Court of Cassation, Second Chamber.
Case No. 175
In re Zuhlke.

Belligerent Occupation — Act Constituting a Crime but Lying Outside Official Duties Performed by a Member of a Belligerent Army in Occupied Territory — Whether a War Crime — Applicability of Both National and International Criminal Law — The Law of Holland.

The Facts.—See Case No. 122. The Court below had in its judgment raised the question whether Article 27a1 of the

Special Criminal Law Decree of December 22, 1943 (Official Journal, London, No. D 61), was applicable in every case where the accused was a person in the military or other State service of the enemy or only where the crime had been committed by that person in his official capacity. The importance of this question lay in the fact that in the latter case crimes committed by a member of the German Army or any other German State service in his private capacity and not in the execution of his official duties might be tried and punished not only under the new Article 27a (War Crimes) but also under ordinary Dutch (military or civil) criminal law. This question was connected with a difference of views between the Government and the Special Court of Cassation and with the wider question of international law as to whether members of a belligerent army, or other State officials, who acted outside the limits of their official functions did not thereby deprive themselves of the status of enemy soldiers or other State officials, who could only be punished by the adversary into whose power they might fall, for violation of the laws of war. A similar question arose with regard to a German official who, in a purely private capacity and quite apart from his official duties, was guilty not of a war crime but of a common swindle. The text of Article 27a1 being ambiguous, and the question being of considerable theoretical interest, the Special Court of Cassation went into the case in some detail

Held (in cassation): that in such cases the criminal could be punished under both international and national law. The question was whether the words “in the military, State or public service of the enemy” occurring in the first paragraph of Article 27a of the Special Criminal Law Decree should be read with the preceding words: “Any person who during the [war of 1940]”, and, in consequence, referred only to service during the war, or whether the words first quoted should be read with the words following: “commits any war crime”, etc., and...

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