bodies, universities, the courts, members of the bar, and others.1 The protests, it may be added, emanated from Flemish persons and bodies as well as from those of Walloon nationality. It is certain that the voice of the overwhelming majority of the population representing both races was raised in opposition, but without effect. The German authorities also went to the length of attempting to suppress all manifestations of opposition to the measure. Thus the city of Antwerp was fined 1,000,000 francs because of rough treatment inflicted by the populace upon a group of Flemish "activists" who were engaged in a agitation in favor of the separation of Flanders from the rest of Belgium.2 It was also alleged that meetings of Flemish agitators were protected by the German authorities, while those of loyalists were not permitted. In March, 1918, the German authorities issued orders forbidding the provincial and communal councils to discuss the Flemish question, and notice was served upon them that such discussion would be repressed with the greatest severity. Henceforth protests against the dismemberment policy of the German government would not be tolerated.

1 The texts of these protests may be found in a book by M. Fernand Passalecq entitled La Magistrature Belge contre le Despotisme Allemand (1915), pp. 89 ff. The whole "Flemish Question," including German policy in respect to the division of Belgium, is treated more in detail by the same author in a book entitled La Question Flamande et l'Allemagne (Paris and Nancy, 1917). Cf. also a brochure entitled Ce que les Belges de la Belgique Envahie Pensent de la Séparation Administrative, with a preface by M. de Wiart, minister of justice. See also an article by de Visscher in 25 Revue Gén., 92 ff. where the German measure is criticised as being in violation of the fundamental rules of international law relative to the rights of military occupants. The real purpose, says de Visscher, was to conserve in Belgium a future sphere of influence for Germany.

2 The mayor of Antwerp was at the same time dismissed, and a Flemish alderman of the city and a deputy in parliament named Francke was fined 1000 francs by a German military tribunal and threatened with deportation for a speech in which he denounced the intrigues of the Flemish "activists."

3 Cf. the texts of a decree of October 25, 1917, in Passelecq's La Magistrature Belge, p. 19, which insured immunity to Flemish activists for forbidding the courts to take jurisdiction of conspiracy charges against them.

CHAPTER XXIV

MILITARY GOVERNMENT IN BELGIUM

(Continued)

8373. German Military Courts in Belgium; § 374. Creation of Special Civil Tribunals; § 375. Right of a Military Occupant to Establish Special Tribunals; § 376. German Practice Criticized; § 377. Measures against the Belgian Judiciary in 1918; § 378. The Germans Take over the Whole Administration of Justice in Belgium; § 379. The German Régime of Criminal Repression in Belgium; § 380. Criticism of the German Theory of War Treason; § 381. Condemnations by the German Tribunals; § 382. Execution of Women; Case of Edith Cavell; §383. Intervention of the American Legation in her Behalf; § 384. The German Defense; § 385. Past Practice as to the Execution of Women for War Crimes; $386. Observations on the Cavell Case.

§ 373. German Military Courts in Belgium. Upon their occupation of Belgium the German authorities invited the Belgian judges to remain at their posts, and promises were given that they would not be interfered with in the discharge of their functions. This invitation was accepted upon the advice of the minister of justice1 out of a sense of duty toward the Belgian people, and the courts continued to administer "ordinary" criminal and civil justice in the name of the king and in accordance with the laws of the country. Aside from an occasional interference with the execution of judgments when the rights of Germans were involved, there were no serious encroachments during the early years of the war upon the jurisdiction of the courts in the performance of their functions. From the outset, however, the administration of what the Germans regarded as "extraordinary" justice was withdrawn from the Belgian courts and conferred upon special tribunals organized by the German authorities.

1 44 Clunet, 1000. No oath of obedience was required of the judges, and it is quite certain in view of their subsequent attitude toward the German measures respecting the courts that they would not have taken such an oath. Cf. M. Gaston de Laval's address on Prussian Law as Applied in Belgium, delivered before the American Bar Association in 1917 (Reports of the Amer. Bar. Assoc., 1917; reprinted in 52 American Law Review, 235 ff.). It will be recalled that during their occupation of France in 1870-1871 the German authorities refused to allow the French courts to render their decisions in the name of the French Republic. VOL. II-6 81

Soon after the arrival of the Germans in Belgium they proceeded to establish in the larger towns military tribunals ( Kriegsgerichte), the judges of which were generally persons who had held the position of public prosecutor (Staatsanwalt) to the military courts in Germany. Gradually the system of military courts was extended to all the occupied territory, a chief military prosecutor (Ober Kriegsgerichtsrat) being placed at the head of the organization. In theory their jurisdiction was limited to offences against the safety of the military occupant and the security of the German forces, but in fact they were given jurisdiction of practically all cases arising under the numerous ordinances, decrees, and police regulations issued by the governorgeneral and his subordinates. Their jurisdiction was in consequence of the large number of such acts very extensive and in effect embraced a large field of ordinary criminal justice.

By an ordinance of April 26, 1916, the Belgian courts were prohibited from taking jurisdiction of actions against persons belonging to the armed forces of Germany or of her allies, or against the German civil authorities in Belgium. By the same ordinance they were prohibited from rendering judgments or decrees against foreigners (except subjects of powers at war with Germany) who in consequence of the war were prevented from safeguarding their rights.2 The result of these and other ordinances was to give to the German military tribunals jurisdiction of all cases in which Germans were parties and of all offences committed by Belgians which had any political or military character, or which were forbidden by the German military penal code or by the ordinances and proclamations issued by the military authorities. According to the imperial ordinance of August 2, 1914, the accused was allowed to defend himself before the military court or to be defended by a third

1 As to the German judicial system established in Belgium cf. Brand Whitlock's Belgium, Vol. I, ch. 61. Cf. also De Laval, "German Law in the Occupied Territory of Belgium," International Law Notes, February, 1916, p. 20; likewise his address referred to above, p. 253. It may further be remarked that the power to inflict penalties was not limited to the courts, but military governors and commandants had by virtue of their police power a considerable jurisdiction in this respect. They were, in fact, empowered to impose penalties up to three months' imprisonment and fines amounting to 1000 marks. 44 Clunet, 1369.

Text in Huberich and Speyer, VIII, pp. 214 ff.

GERMAN MILITARY COURTS

83

party. Trials, however, appear to have been secret, and counsel were not allowed to see the accused prior to his arraignment. The accused was permitted the last word, although he was allowed no right of appeal.

§ 374. Creation of Special Civil Tribunals. By an ordinance of February 3, 1915, provision was made for the creation in each province of exceptional tribunals to determine the amount of damages for which communes should be held responsible in case of violence, theft, and outbreaks on the part of the inhabitants.1 By another decree of February 10, provision was made for the creation of a new set of tribunals of exception to judge cases between landlords and tenants.2 These two decrees, constituting as they did a serious inroad upon the ordinary jurisdiction of the Belgian courts, evoked a spirited protest on the part of the Belgian bar and the public generally. On February 17, the council of the order of advocates of the Brussels court of appeal, headed by the bâtonnier, M. Théodor, addressed a protest to Governor-general von Bissing, in which it attacked the whole régime of exceptional courts established by the Germans, as illegal, contrary to the constitution of Belgium, and in violation of the Hague convention. The address further denounced the severity and arbitrariness of the newly established tribunals and protested against the occupation of the Palais de Justice by the German troops, who were using it as a caserne. The procedure of the tribunals, it was complained, did not permit the accused the right of public defence nor to have a copy of the charges or to consult his counsel prior to the arraignment. This, the protest went on to say, was "justice without control; the judge was left to himself, to his prejudices and his surroundings; the accused was abandoned to his fate alone, to grapple with his all-powerful adversary.' This régime, it added, might be excusable for armies in the field, but the Belgian army was far away, and such a régime was intolerable for civilians whose conduct was peaceable and

1 Huberich and Speyer, II, pp. 57-59. These courts were to be composed of a president appointed by the governor-general, one assessor appointed by the chief of the German civil administration in Belgium, and one appointed by the Belgian permanent deputation of the provincial council. The latter refused to serve, so that in fact the court consisted of two German members. 44 Clunet,

2 Text in Huberich and Speyer, II, pp. 82-86.

irreproachable.' The Belgian bar, regarding the whole judicial establishment set up by the Germans as illegal, refused to "associate itself in the illegality of the régime" and on February 19, 1915, the council of the order of advocates of the Brussels court of appeal adopted a resolution forbidding members of the bar to take cases which were to be tried before the German tribunals of exception. In transmitting the text of this resolution to General von Bissing, M. Théodor took occasion to say that the bar was not animated by any spirit of hostility toward the occupying power, but only by a desire to avoid the violation of their oaths of fidelity and obedience to the constitution and the laws of Belgium.2 The bars of other towns and cities adopted a similar attitude. For addressing this protest to the governor-general, M. Théodor was deported to Germany, where he was detained during the remainder of the war.3

The charges of the Belgians in respect to the procedure of the German special tribunals, and particularly as regards the right of defence, appear to have been well founded. It would also seem that the establishment of exceptional tribunals and the withdrawal from the Belgian courts of a large portion of their ordinary jurisdiction were not in accord with the rule of the Hague convention.

1 The French text of this protest may be found in the Journal de Droit International, Vol. 42, p. 288; and in Cahiers Documentaires, No. 68 (March 30, 1915). An English translation is printed in Beck's The War and Humanity, pp. 121–123. 2 Text in Cahiers Docs., No. 78 (April 12, 1915).

The case of M. Théodor is discussed in the London Solicitors' Journal and Weekly of December 4, 1915, pp. 99 and 110, and in the Journal de Droit Int., Vol. 42, pp. 1085-1087. Cf. also Whitlock, Belgium, Vol. I, ch. 63, and Vol. II, ch. 5.

4 Cf., for example, the procedure followed at the trial of Miss Cavell, infra, Sec. 382. Cf. also the description of the procedure followed in the trial of espionage cases in Williams, In the Claws of the German Eagle, chs. 2 and 9, and in Van der Essen, Petite Histoire, pp. 79 ff. Maitre de Laval, in the address referred to above, describes the procedure of the German courts in Belgium. While the right of defence was allowed, it was, he says, little more than a farce. No one but a German-speaking barrister could plead, and counsel was not permitted to see the accused before arraignment nor was he allowed to see a copy of the charges before the beginning of the trial. Under such circumstances Belgian members of the bar, he says, hesitated to defend the cases of Belgians, and in fact a goodly number declined to do it on the ground that it would have amounted to "taking part in the injustice meted out to the accused." "Prussian Law as Applied in Belgium," 52 Amer. Law Review, 255. Cf. also an article by a Swiss writer, DumontWilden, entitled Du Terrorisme Judiciaire en Pays d'Occupation Allemande, 44 Clunet, 516 ff.