Commemoration address, delivered by prof. mr. G.J.M. Corstens,
Former president of the Supreme Court of the Netherlands
Oranjehotel, Scheveningen 75 years
Constitutional state, violation of justice and reconciliation
A prison is a place where injustice is retaliated. Where burglars, murderers, rapists, arsonists and frauds serve their just sentence. Where legal order is confirmed by execution of sentence. Where to offenders and others is made clear what principles hold good here and now and what values we stand for. Where convicts by settling can also regain their place in society. Where hopefully prisoners learn something, although we know that in this respect we should not be too optimistic. Where the blows caused by crime to legal order are restored. At least, that is what a prison ought to be.
But how different this all was here in the years of war. Here also those who had just stood up for freedom were imprisoned. Those who resisted against the violation of justice by the occupying power. Those who actually opposed the deprivation of justice of fellow-citizins who were Jewish or belonged to another group that the occupying power had declared to be its enemy. Those who had stood up for the right of the suppressed. Those who just stood for the values underlying our society before the occupying power appeared on the scene. Locking them up confirmed the order of injustice that had entered. Then a prison becomes something horrible; a symbol of the unbridled power of the state, a place that takes your breath away.
This gathering here today is all about remembering, commemorating and contemplation. That means: not forgetting. Not even after seventy years of liberation. On the civil cemetary in Oosterbeek on the copper band along the graves of unknown civil victims of the September days of 1944 there are the words of the Jewish mystic Baal Sjem Tov, “forgetting is exile, remembering is liberation”. To this I would say in addition: also reconciliation and forgiveness can liberate. I will come back to that later on. But first I want to say something about the situation of deprivation of justice, violation of justice and next set those against the ideal of the constitutional state.
Violation of justice
Dictatorships are not so much characterized by absence of rules of law. Competences that interfere in the rights of civilians are limited there especially differently than in a society like ours. There is often one leader with much competence that is not shared or due to only a limited group. I mention Hitler, Mussolini and Mao. There is no or little democratic control on handling that competence. Supervision by independant judges of the exercise of that competence is lacking completely or largely. Often certain points of departure by us considered self-evident are not shared. It already begins with the first article of our Constitution. All that are in the Netherlands are treated equally in equal cases. Now that just was not the point of departure of the order that with the occupation descended on the Netherlands: Jewish fellow-citizens were repudiated. One of my predecessors as president of the Supreme Court, Mr. Lodewijk Visser, was put aside on 1st March 1944, solely because he was a Jew. A public protest on the part of the sitting members of the Supreme Court or of his advisors, the office of Counsel, did not follow. Naturally reluctantly the measure was accepted. In a study executed on my request those and other episodes from the history of the Supreme Court were disclosed in detail. The attitude of the Supreme Court disappointed and led to the expressing of regret and giving evidence of deep sadness. The Supreme Court, which should have functioned as the cathedral of the law, as the keeper of righteousness, appeared not to be up to the extremely heavy task which the occupation faced it with.
The measures against fellow-citizens who belonged to a repudiated group, like the Jews, got more and more severe. It did not end there. What was punishable was in the course of 1943 not only anymore decided by the letter of the law, but also by what according to sound feeling of justice was deserving of punishment if it did not come under the text but did so under the basic idea of a legal penal provision. The judicial supervision on supplementary decisions was omitted partially. Since one of the first things the occupying power did was do away with the possibility for victims to complain about not prosecuting those who had done something to them. So that meant that crimes, like ill-treatment by German soldiers or other pro-German people, which by the under the influence of the occupying power operating public prosecutor were not prosecuted, could not be put to a court of justice to have judged whether no prosecution was appropriate. By order of 22nd October 1940 that possibility of control in defiance of the authoritarian political theory of the occupying power was abrogated. So the authorities of prosecution did not have to take this into account anymore.
Furthermore the occupying power created room for the appointment of new, pro-German judges by, even irrespective of the dismissal of Jewish judges, reducing the retirement age of judges from 70 to the age of 65 taking effect from 1st September 1941. Another way of getting pro-German judges was found by the introduction of the institute of the jurisdiction of peace, created to try offences committed against Dutch nazis. Article 17 of the present Constitution ordains that nobody may against their will be kept from the judge that the law adjudges to them. A comparable provision was in the old Constitution. This was seen as a guarantee against the creation of particular judges for special cases. One may think of regimes that have a need of trying rebels by – let us say – judges friendly to the government. The dismissal of judges and appointment of your friends instead is indeed a very brute infringement of the independance of the judicature. The creation of a new court of justice is in a certain way a more elegant solution but is as disastrous in its effects.
Here in Scheveningen violence with interrogations was the rule and there were corporal punishments, even without any reason. With all the appearances the occupying power kept up of a legal system a prisoner was here subjected to absolute lack of rights. This did not only happen here. In conclusion of this part on violence of justice in the time of occupation I also mention the execution of imprisonment in camp Erica in Ommen in an inhumane and degrading manner. The execution of punishment in this camp was considered barbaric. At the time the situation in Ommen was described in the Parool as follows: “The treatment there is completely in the nature of maltreatment. The prisoners are harassed and tortured in such a way by starvation, endless drills and hard labour, but especially by thrashing and kicking, that the stay of a few months makes a healthy man a crock. There have already occurred pitiable deaths.” Fortunately this led to protests, by amongst others councellors of the Court of Leeuwarden. In a decree the councellors said that they sentenced someone (an ordinary thief) who deserved more than three months imprisonment yet to less, because he would, if the imprisonment lasted longer than three months, end up in Camp Erica in Ommen. Sentences of a shorter length than three months were not served in Ommen. So a sentence to less than three months led to the effect that the convict was not transferred to Ommen. Two out of three councellors were subsequently dismissed. Again a case of pure violation of justice. The executive power ought not to dismiss judges. The examples given are only elements of an order based on fundamentally objectional points of departure. Here in the Oranjehotel in Scheveningen there was violation of justice too. Here good patriots were systematically deprived of their rights.
The constitutional state
How contrary this all is to the idea of the constitutional state, an idea that lately fortunately has also emerged in the public debate rather more than once. We observed that the occupying power did not respect the fundamental principle of equality of all citizens in the state. That it threw aside the principle that the law and not a vague notion ought to be leading as a sound sense of justice. That it deprived the judge of his authority to control decisions to prosecute on the one hand and on the other got round him by appointing new pro-German judges. That it made a mockery of the prohibition from dismissing judges. These are only a few examples from a range of measures that, however exquisitely embedded in regulations and therefore regular in a formal sense, are indicative of violation of law, of deprivation of justice.
Opposite to that violation of law are the points of departure of what we now call the constitutional state and is elsewhere called the rule of law. I mention four elements. In the first place the submission to the law. That goes for everybody. No one is allowed to evade the law. Also kings, ministers, governors and judges are subject to the law. That is an important starting-point which is also connected with the equality of us all. The British judge Lord Bingham once put this starting-point into words in a funny way by writing: “So, if you maltreat a penguin in the London Zoo, you do not escape prosecution because you are the archbishop of Canterbury” It is a somewhat bizarre example from Lord Bingham, formerly one of the Law Lords of the British House of Lords. However, it renders the essence well. Nobody is above the law. And when after the Second Worldwar the tribunals of Neurenberg and Tokyo start functioning, then with it this starting-point is underlined once more. Fortunately that thought, submission of all to the law, is, by setting up new tribunals, established here in the Hague, underlined once more. Impunity of offenders of the most severe criminal offences is no longer the starting-point. As you might know there are here and now, so on this ground and at this very moment, people detained who are tried by another international court, the Yugoslavia tribunal.
Secondly: Acknowledgement of fundamental rights of people, such as freedom of speech, of religion, of movement, of living is a next element of the idea of a constitutional state. You cannot be locked up just like that, e.g. because you do something the authorities do not like, you may say what you think you should say. This year’s commemoration of 800 years Magna Carta, the ancient British document of freedom, confirms this element of the idea of the constitutional state.
With that I come to the third and also very essential element, that of access to the judge. It is a nice thing to have all sorts of rights on paper, but with the independable and impartial judge you should indeed be able to get your right if need be. That means that there are judges who are not directed by the authority, who again and again, every day again, are fresh in their approach, give you a fair chance. Who must also bestow rights on displaced persons, prisoners and dangerous madmen, if necessary contrary to the public opinion. In the end he will enjoy more confidence by that than by setting his sail to the prevailing wind.
And, as fourth cornerstone of the constitutional state: the separation of the powers of the state. By this a balance comes into existance, like also in firms and other organisations internal supervision is executed to prevent one from getting too much power. The legislator lays down the main lines, the government work those out and put those into effect and the judge is called for giving an independant and impartial judgement in case of conflicts or prosecution. That idea of separation of powers ultimately conduces to guaranteeing the freedom of us all. That is what it is about. That we can live in freedom with one another. That is why not the law of the jungle should count, but the law be strong.
A commemoration like today’s can contribute, by the confrontation with the injustice of that time, to our realizing the great value of these four elements of the constitutional state even better. Since commemorating, the word already says so: reflecting anew, is at the same time looking at the future. The mondial formulation of human rights in the Charter of the United Nations of 1948 is directly related to the horrors of the Second World-war. It was and has become a guide also focussed on the future for all of us. Never again! Quite important in this respect is the European Convention on Human Rights of 1950. In it fundamental rights were laid down and the access to the judge was anchored. This Convention, to which also the injustice done to the prisoners here inspired, is under pressure nowadays. Governments that do not want to accept certain decisions of this court and threaten to step out of the convention consequently. This gives cause for much anxiety. This makes even clearer that we have to remain alert continuously also in the present Europe. In that way human rights or guarantees can stealthily, or quite boldly be jeopardized. A poignant example of infringement upon the judicial independence I experienced a few years ago as president of the Supreme Court. In Hungary – where leader Orbán strives after a so-called “illiberal democracy” – my colleague András Baka was set aside, because he had criticized the government and where the retirement age of judges, like the occupying power had done here too, was suddenly reduced. Why was that? To be rid of critics and be able to appoint friends.
A while ago I already mentioned the importance of recollecting, also seventy years after the ending of the Second World-war and with 75 years of Oranjehotel, of not forgetting and of commemorating. Or perhaps you should say that it is good to recall the happenings of that time just after seventy years, because perhaps with the long course of time signals that things are going wrong with the constitutional state are not picked up anymore. We may after so many years of peace not understand so well anymore what it means not to live in peace and in want of freedom. That realization must be kept alive. The constitutional state is not a matter of course. The constitutional state is an attainment. The darkest periods and the hardest lessons from our history laid the foundation of that. We must be willing to fight for the maintenance of the constitutional state.
Now I come back to the words of the Jewish mystic Baal Sjem Tov: “forgetting is exile, remembering is liberation”. We ought not to forget. That will not succeed for that matter anyway. Like Cees Nooteboom at one time wrote: memory is a dog that lies down where it wants. When we speak about remembering, not forgetting, about retaliating and about commemorating and about liberating, then also the question about reconciliation rises.
Perhaps seventy years after the liberation the time has come to go in for reconciliation even a little more. Recently, in the framework of the problems the European Union has been facing sometimes anti-German sentiments evoked by the horrors of the Second World-war re-emerge. It is advisable not to relapse into that, but to approach the ideas about the manner of dealing with the Euro-crisis as rationally as possible, not to in advance make a connection between now and then. We must not chain ourselves and others to the past. Children should neither be punished for their parents’ mistakes. Besides it does not do to keep the daughter or the son of the father that was afflicted with nazi-ideas responsible for their father‘s wrong ideas.
And who does not, with this theme of reconciliation, think then of the liberation from the cruel apartheid regime based on inequality in South Africa. In the new South Africa Nelson Mandela and Desmond Tutu had after the horrors of apartheid the way to the liberation go via the Committee for Truth and Reconciliation. That way went via truth-finding and from the beginning it aimed at reconciliation. Numerous are the examples, also elsewhere, of people that in spite of the misdeeds done to them, still appeared to be able to live on with the offenders on reasonable terms. For that is what the the words reconciliation and forgiveness point to.
An extremely moving and at the same time hopeful example of the power of reconciliation and forgiveness I saw a few years ago in a lecture by Jean Paul Samputu, a musician from Rwanda.
He spoke under the title “Forgiveness – the unpopular weapon”. Samputu told that in 1994, during the Rwandese genocide his parents, three of his brothers and his sister were murdered. When after the outrages he returned to his village he wanted to know what had happened, also to be able to comprehend a little more of it. From witnesses he then learnt who was the offender. Samputu’s world collapsed completely: the murderer of his family turned out to be his best friend from his childhood. Samputu told he was no longer able to make music. He did not see any value in life anymore, indulged in drugs and excessive drinking to deaden the pain. His life consisted of nothing but waiting for death: “I was waiting to die”, Samputu says literally. At the instance of friends who could not bear to see how he was pining away, he tried anything. He saw regular doctors and “witch-doctors”, nothing helped.
Samputu said that he ultimately in his desperate situation as a last straw started praying. With an attitude which in Dutch may be best described as: ‘if it does not do any good, it does not do any harm’. Samputu told that during that praying to have heard a voice that told him that he could only be healed if he forgave the murderer of his parents and brothers and sister. However difficult that was: he listened to that voice. He returned to his village and there in front of the community he declared that he forgave the friend of his youth his crimes.
That way he got in contact again with that friend of his youth. In the end that resulted in their travelling through Rwanda together with the message that reconciliation is the only way to prevent one war from following the other. With the message that a ‘culture of revenge’ only presents more misery and that on the contrary forgiveness is not a popular, but much stronger weapon. “Forgiveness is to leave from the prison of hatred.”
Reconciling and forgiving mean making a break between past and future: we are going on, abstract the past, do not let the past carry on endlessly, even though we will not forget and thus keep remembering. By reconciling and forgiving we break the chain of revenge, retaliation and endless grudges and create not only for the other, but also for ourselves room for the future. As a variant to a remark by the Louvain former professor Burggraeve I say: With reconciliation you put a comma, not a full stop.
A prison is a place of reflection, usually reflection of misdeeds. Their stay in constraint reminds the convicts of those each day again. But here and today we remember those who just stood up for justice, who in the daily chaos of occurrences and abundance of information about what is going on here and elsewhere in the world remind us of the values of freedom and justice. Such a commemoration contributes to the realization that those values of justice and of freedom had to be fought for at the time and as a price had to be paid for with want of freedom and even often with death and that with that imprisonment also other rights were affected. Hopefully that commemoration will lead to our cherishing freedom and justice even more. Modesty in this respect may not be in the way of standing up for freedom and justice. I hope that this year during the short halt at Death-cell 601 beside the sorrow that you feel those two words – justice and freedom – will dance round in your heads.