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

• Court: Special Criminal Court (Netherlands)
• Date: 06 Diciembre 1948
• Docket Number: Case No. 122

Holland, Special Court (War Criminals) of First Instance,1 Amsterdam, First Chamber.

Special Court of Cassation, Second Chamber.

(Professor Verzijl, President; Veegens, Barrister-at-Law; Scholten, Judge of Appeal; Professor Kernkamp; Vice-Admiral Vos, Judges.)

Case No. 122

In re Zuhlke.

War — In General — War of Aggression — Illegality of War — Case Question of Legality of Acts Committed by the Aggressor State.

The Facts.—Zuhlke, a member of the German Waffen-SS. and attached from the beginning of 1941 until September 1944 to the German police in charge of the guarding and administration of civil prisoners in a gaol in Amsterdam, was prosecuted after the war for having himself taken part in the persecution and ill-treatment of Jews and for acts of terrorism and inhumane behaviour against defenceless prisoners in general, including physical maltreatment, and for deliberately permitting similar behaviour by his subordinates. The case, simple in itself, came up to the Special Court of Cassation more or less as a test case and was the occasion of the first full-length judgment concerning war crimes under Article 27 (a) of the Dutch Special Criminal Law Decree of December 22, 1943.2 As a result, this judgment deals with several aspects of the prosecution of war criminals in Holland, which are set out in this volume under various headings: see Case Nos. 123, 156, 157, 158 and 175.

Held (by the lower Court): that the accused must be convicted as a war criminal. Apart from other considerations, the illegal character of the war of aggression waged by Germany against Holland was, in itself, sufficient to render illegal all war-like acts performed by Germans serving with the German Army and, therefore, made their perpetrators liable to punishment as war criminals.

Held (on appeal): that the conviction must be quashed. Although the illegality of the German war of aggression would have entitled Holland to answer Germany's crime by reprisals, even to the extent of suspending the normal operation of the laws of war on land, at sea and in the air,1 it would be going too far to consider as war crimes all war-like acts, including those which were in accordance with the laws and customs of war, performed against Holland or against Dutch subjects by Germany's military forces or other State organs on the sole ground of the illegality of her war of aggression.2 Article 27 (a) of the Special Criminal Law Decree was intended to apply to acts which, apart from the fact that the...