(Heering, A. H., 'Het openbaar bestuur onder vreemde bezetting', Bestuurswetenschappen, april/mei 1983, nr 4. Translated by Dorothy Simons, with editorial assistance by Mary Cawte.)
How should ministers, secretaries of state [permanent heads of government departments], administrators of provinces, local councils and organisations dealing with dykes and bridges, as well as the public servants of all these bodies, conduct themselves if our country is occupied by a foreign power? This is the question we will address. The above list of functionaries shows that, for the sake of limiting this complex set of problems, we are leaving out other categories of functionaries such as parliamentarians and other elected representatives, judges, etc., and will concentrate on the actual administrators.
The term 'foreign power' also requires some explanation. First of all, we assume this to be a power from outside the country. Situations can arise, however, where it is not a matter of 'foreign powers', but of a regime which is foreign to us, imposed on us by a minority which had at its disposal forces of superior strength. In such a situation the regime does not rest on a legal, constitutional basis, nor on the confidence of a majority of the population. Here one should keep in mind specifically a regime which has come to power through a coup d'état. It may well be supported by a foreign power; otherwise the normal government authorities would have prevented the coup. In this case, it is therefore a matter of a kind of 'fifth column' in collusion with an enemy power. Later in this paper we will use, for the sake of convenience, the words 'occupation' and 'occupier' when we mean one of the situations indicated above.
It is typical of a situation in which a country is occupied that the (illegal) authorities try to force on our people their views and practices, in short their political will, and attempt to use us for their interests. This can be done in a number of ways: by persuasion, indoctrination, wonderful promises, coercive measures, bribes, violence and terror. For tactical reasons, the occupier will use as much as possible existing structures - including the government apparatus - because not only must the appearance of respect for the occupied population be kept up, but also there is a better chance of controlling the occupied country when the structures are kept intact - as long as the people who work in those structures do not obstruct the management.
How should persons who are part of that government apparatus react? As servants of a government which has been made virtually powerless by the occupier, but is still legal, they must remain loyal to that government. Keeping in mind the undemocratic and violent way in which the occupier has come to power, it can be demanded from all Netherlands public servants that, irrespective of their political views and personal interests, they challenge the authority of the occupier.
This is where the problems start, however. From the moment of the coup d'état, all administrators, public servants and representatives of the government are exposed to pressure to adapt their conduct to the wishes of the occupier. Should they give in to those wishes, particularly when the occupier's intentions are in diametrical opposition to Netherlands laws and democratic standards? We will deal later with the legal arguments against giving in.
From an ethical and democratic point of view, we think it is as clear as the light of day that such giving in deserves strong disapproval unless special arguments by way of excuse can be put forward. For example, these could be that one's own safety or that of others is in danger.
In every case, one should always weigh the importance of these reasons against the consequences of yielding to the occupier. In this respect the position of the authorities differs from that of the ordinary citizen: the former will need to give more weight to the general interest and the law. Serving those, one should remember, is the central task, in fact the only material legitimate basis, of the authority. If a measure determined by the occupier goes against the national interest of the occupied country, or violates its laws, every administrator or public servant is obliged to resist. In addition the Netherlands Criminal Code contains a number of penal clauses (s. 355 and following) concerning administrators and public servants who are guilty of violating the Constitution or other laws; in principle, no exception is made for the cases where the officials were under pressure from the occupying power when they committed the offence. In short: the struggle against a usurping power is by no means settled when the country is occupied, it has only just started and the public of the legal government are the first called upon to enter into that struggle.
The way in which that struggle is conducted will depend very much on the nature of the measures taken by the occupier, and on the particular circumstances. A number of responses are possible: open refusal to carry out instructions, silent obstruction, instruction of subordinates to obstruct also, to mention a few. It is certain that the occupier will not tolerate such obstruction just like that. Strong sanctions and reprisals against the particular public servant may result. That public servant then faces a difficult choice: standing firm, with all the risks this entails; giving in after all; or resigning and perhaps going into hiding.
This choice may have grave consequences for them, not only because of what is done by the occupier to them or their families now. They need to take into account also what may happen to them after the occupier has been ousted: the possibility of being dismissed and prosecuted by the legal Netherlands government because of professional misconduct. Moreover, under certain circumstances it is conceivable that a 'judicial court' of resistance fighters will convict and punish them accordingly.
We need to expand on the importance for the Netherlands society of the conduct of the Netherlands government apparatus during occupation. First of all, we should mention the responsibility of our ministers and public servants to protect the Netherlands legal system which is threatened with destruction by the occupier. Secondly they have a responsibility to protect those members of the population who resist the occupier or its measures. In both respects they should try with all available, permissible and effective means to thwart the occupier. In the nature of things, the responsibility for those attempts rests primarily on those persons who, because of their positions, support the legal system in normal times - in other words the government apparatus. Thus, the question we will try to answer in the following sections is whether it is possible to draw up rules, or rather criteria, for their conduct under foreign occupation.
It is characteristic that during occupation the occupied country's own legal government is no longer in power. Real administrative power is in the hands of the occupier. In legal terms, also, it exercises that power in accordance with the laws of war, even though bound by those laws to adhere to certain rules; it cannot be forced to follow those rules, however. It will use that power as one of the means to restrain the functioning of authorities or persons who may be 'difficult', or to put them aside entirely.
This applies first of all to the representative bodies, because they express the will of the people. But administrators who show resistance will also soon feel the consequences.
In addition, the occupier will want to establish all kinds of measures to secure its economic and military interests, in the areas of production, distribution, import and export; if necessary also by requisition of goods and services, forced labour and by forcing people to go and work in its own country. It will try to achieve its ideological aims by infiltrating existing institutions and by setting up new organisations. In order to make all this seem legal, the occupier will amend, or set aside entirely, existing laws. In short, public administration and public life will increasingly be adapted to the occupier's aims and views.
Because this will no doubt meet with resistance from sections of the government apparatus, measures of criminal and administrative law - often in violation of relevant legal clauses - will be issued and applied against officials who dare to resist. They will be thwarted, slandered, transferred, dismissed, and, in 'serious cases', imprisoned, deported or even executed. As a result positions will become vacant; also, gaps will appear in the government apparatus because officials will resign or go into hiding. Of course the occupier will try to fill these vacancies as quickly as possible with political supporters or fellow travellers. To what extent this tactic succeeds will depend on the one hand on whether enough competent collaborators are available, and on the other hand on possible countermeasures from loyal government authorities. We will return to this later.
Another consequence of the pressure of the occupation on public administration will be the inclination of administrators and public servants to slip through the meshes of regulations or even to completely ignore them, supposedly by mistake. The history of the German occupation of our country during 1940-1945 provides numerous examples, notably in connection with forced labour in Germany. This silent obstruction was made easier by the hurry and occasional incompetence with which the occupier often issued regulations so that loopholes often occurred. Moreover, the contrary interests of the various German authorities occasionally made it possible to play off one against another.
In addition, the fact that the carrying out of many measures was entrusted to more than a thousand local councils, which could not really be supervised properly, played into the hands of those administrators and public servants who were loyal. Their stand was difficult, however, if not impossible, when there were people in a government department who sympathised with the occupying power and who were watching other administrators and public servants. The latter were often 'dobbed in' [informed against]. In the case - which it is to be hoped will never occur - of a future occupation of our country, these sorts of problems would have to be taken into account.
We also have to consider another consequence of the disruption experienced during occupation, namely the greater independence of lower ranking officials versus higher ranking officials, and of local authorities with respect to central authorities. Our administrative law recognises a threefold hierarchy. The first is that of the nation, province, municipality and organisations dealing with dykes and bridges; the second is that of the administrator versus public servant; the third that of the higher ranking versus the lower ranking public servant. The extent and boundaries of those hierarchies are set out in the Constitution and the laws flowing from the Constitution as well as the Public Servants Act. Under occupation this system becomes 'jammed'.
The head of state (the queen) and the lawful government are then either abroad, or under supervision, or deposed. Local councillors are not free to act either; they have been sent home or have gone into hiding, and their positions have been filled by politically suspect persons. Thus the normal lines of communication are blocked. The rule that an instruction 'from above' is legally and morally binding no longer applies. In principle the recipients of an instruction, if they wish to carry out their duties as public servants, need to examine every instruction to determine whether it is formally and materially legal. If the latter is not the case, they are supposed not to carry out that instruction, overtly or covertly. In other words, they are required to think and act much more independently than in normal times.
It was found during the German occupation that many officials found this difficult. This is understandable, because officials need to have a conception of their role fundamentally different from that which they had learned and to which they were accustomed. In addition, it requires a strength of character which unfortunately not everyone possesses, particularly if additional risks are connected with the new 'role'. Under occupation it is therefore all the more important to have thoroughly prepared administrators and public servants from the most senior level to the lowest ranking.
In those circumstances the people who give the instructions also need to realise, need in fact to expect, that their instructions will not always be carried out. It may even be one of their duties to secretly encourage their non-execution. Their responsibilities, in the case where they must give an immoral instruction, will be lightened to the extent that the people who receive the order will know that it need not be taken seriously.
It will be clear, however, that not only differences in circumstances but also differences in judging what is meant by responsible action in a given situation will lead to diverging decisions and behaviour patterns.
When we consider the far-reaching consequences the conduct of administrators and public servants may have for the community under occupation, one can imagine that our Constitution would contain regulations that deal with that situation. This is not the case, however, neither in the old Constitution nor in the new one which came into force on 17 February of this year [1983]. According to experts, at one time during preparatory discussions in Parliament on the new Constitution, a connection was made between an 'exceptional situation' (s. 103) and the question of how our public administration should act under occupation. We understand the government took the position that the Constitution is not the appropriate instrument for regulating that material, so that the idea of drawing up regulations was abandoned.
All clauses in the tenth section of the old Constitution which deal with defence were left unchanged, apart from some editorial changes during that year's revision. Thus one still finds in the new clause 97 the provision: 'All Netherlands nationals who are able to do so must contribute to maintaining the country's independence and to defending its territory'. In the light of present insights into the responsibility of the citizen, one could ask whether cooperation in maintaining the independence of the country could possibly include resistance against unlawful measures taken by the occupier. On the basis of an historical interpretation, this is definitely not the case. However, is a different kind of interpretation possible? This is an interesting question which I think deserves closer study. The answer may be of great significance not only for public administration but also for citizens generally.
In Section 1 we have already mentioned criminal sanctions against public servants who, by certain conduct defined in the law, infringe the Constitution or other laws (the so-called 'official misdemeanour' clauses 355-380 Criminal Code). These relate, above all, to acts by 'heads of ministerial departments', in other words, ministers and nowadays, presumably, secretaries of state.
They are liable to punishment if they decide to co-sign decisions or collaborate with the making of decisions which go against these laws; if they deliberately refrain from executing the law; or are guilty of not carrying it out (clauses 355 and 356). It is quite clear that in times of occupation ministers who are involved must keep this penal clause - which carries a penalty of three years' imprisonment - very much in mind when they are carrying out 'occupier's' legislation.
The misdemeanours defined in clauses 356 to 380 are very specific and refer to certain kinds of conduct which the legislature obviously considered particularly harmful to the community: for example, bribery, embezzlement and extortion. Under an occupation regime these will occur more often than at present, specifically if the occupier encourages or forces a public official into such actions.
For that matter, it is clear that ordinary criminal legislation has not been written for occupation situations and provides totally insufficient sanctions against the abuse and injustice which occur in those situations. This became obvious in a very painful way when, after the 1945 liberation, our country was faced with the necessary task of belatedly punishing, as justly as possible, the many people - including many officials - who had been guilty of gross abuse of power and obvious crimes against humanity.
By means of a kind of emergency criminal legislation and the introduction of a special administration of justice, the government of the time managed as well as it could. The fact that in order to do this it was necessary to violate the classical rule, that an act is punishable only by virtue of a penal clause which precedes it, aroused in many people a scruple difficult to overcome. Soon afterwards, efforts were made to prevent a repetition of the 1945 situation.
This led to the 1952 Act (Criminal Code 408) dealing with criminal law in time of war. This made punishable a great number of types of conduct which occur in war-time. These include: deliberately exposing another person to persecution, deprivation of liberty or 'any other measure taken by the enemy or its helpers; committing a crime using power, opportunity or means provided by the enemy'; and the infringement of the rules and customs of war. The notorious 'Befehl-ist-Befehl' principle ('A command is a command') is eliminated for a large part from these offences by the clause that the people who commit them cannot excuse themselves by referring to a legal regulation or an official instruction.
To judge the legitimacy of an act carried out by an official body or by an ordinary citizen during occupation, it is of course important to know what the rules of war allow or proscribe in that respect. It would be difficult to blame an official for cooperating when there is a requisition, if the laws give the occupier the right to carry out such a requisition. Particularly relevant to our study are 'The Hague Regulations on Land Warfare' (HRLW) of 1907 [2]. Section III deals with 'military power in the territory of the enemy state'. According to the regulations the occupier must take all possible measures to restore and preserve order and public life, still with respect to laws in force in the (possibly partially) occupied territory. An exception is made to this last proviso: respecting the laws is not compulsory in the case of absolute hindrance - in other words, if the occupier can do nothing but violate the law. Moreover, it may not force the population to swear allegiance to the enemy power.
The rights of the family, life and private property, as well as religious belief and worship, must be respected. New taxes may be used only for the needs of the army or of the administration in the occupied territory. 'Collective punishment' may not be inflicted on the population if only certain individuals are responsible for an offence. Goods and services may be requisitioned only for the needs of the occupying army. The population must never be forced to fight against its native country. The occupier may indeed confiscate the property of the state, including weapons, ammunition, means of transport and other movable stock intended for the conduct of war; the same applies to the apparatus of the news media. Goods which belong to local councils, churches, schools, artistic and scientific institutions must be respected, the same as private property.
When we compare this list - rather incomplete - of prescriptions and prohibitions for the occupier with the practices of the German occupation during the Second World War, it is soon obvious that few of those have not been violated. During the occupation, the Germans shamelessly committed more and more terrible deeds and established a regime of worse and worse oppression. Nevertheless they made a point of maintaining at least some semblance of legitimacy. From time to time one could find in the (tamed) press expert expositions justifying their administration in terms of international law.
Looking at the regulations of Section III of the HRLW, one finds that the occupier is given much formal latitude. For example, as we saw, it must protect order and the public life. Admittedly it must also respect the prevailing laws, but immediately the cases of 'empêchement absolu' (absolute hindrance) are excepted - to be judged by the occupier himself! Keeping in mind those horrific practices committed by the Nazi regime and those still being carried out by authoritarian governments in our world, under the cloak of maintaining law and order, it is easy to understand what happens to respect for existing laws in an occupied territory. This means that for the population there will be plenty of reasons to resist. The laws of war, as embodied in the Hague Regulations on Land Warfare, do not forbid resistance, except when it is a matter of armed resistance by irregular forces (snipers, guerrillas), but do not encourage it either.
In this context a judgement in 1948 by the Special Court of The Hague (charged with judging political crimes committed during the occupation) is not without significance. It established that the occupier exercises only de facto, not legitimate, power, so that the population of the occupied territory generally need not obey, neither from an ethical nor a legal point of view [3]. Armed resistance from a Netherlands point of view can therefore certainly be permitted. With still more reason, therefore, nonviolent resistance! The 1948 judgement does not mention the latter, however.
From the above it is clear that the HRLW is of great significance to Netherlands government officials, precisely when the occupier is trampling over the regulations. Remember, where the occupier imposes a number of commands and prohibitions, the HRLW indicates implicitly with what kind of measures a Netherlands government authority may not cooperate. The importance of this becomes clear when one realises that an occupier is very dependent for the execution of its decisions on the existing government apparatus in the occupied territory. This gives ministers and public servants the opportunity to make a stand against its transgressions, insofar as these can be demonstrated on the basis of international law - which in many cases is not difficult. As for their duty of recourse to this means in order to protest and if possible prevent execution of such orders, they must have been instructed previously by our legitimate government. Here we touch on an aspect of the question which we address particularly from now on: should the government give prior directions concerning the conduct of government officials in the case of a possible occupation of the country?
Obviously inspired by the idea that Netherlands government authorities would carry a particular responsibility with respect to the consequences of a possible occupation, and in order to better enlighten the public service and their staff as to their rights and duties 'in case of enemy invasion', the Netherlands government published 'instructions' in 1937. As well as administrators and officials, these instructions were to apply also to railway and tramway staff.
Very soon the German occupation provided the opportunity to test their effect in practice. A great obstacle to their application was immediately obvious: the fact that at the time of the invasion the instructions were known to only a few of those involved. On this subject, the parliamentary commission charged with examining government policy from 1940 to 1945 noted in its report that the instructions were covered in a 'veil of secrecy' [4]. In those circumstances, little came of compliance with those instructions, let alone of unanimous, coordinated application. Added to that, they were on several points quite vague and open to more than one interpretation.
This applied particularly to the contents of article 31, which dealt with the difficult question: under occupation, should officials continue to carry out their duties or not? The reason for remaining in their positions - which international law does not demand - is contained in the second paragraph of point 31, which states 'that it is a question of the interests of the population ... However, if by staying in his position, the public servant would render services to the enemy greater than the benefit to the population, then he would have to leave his position'.
The investigation after the war has revealed that generally it was assumed far too often that staying in one's position was of more benefit to the population than to the occupying force, and that this attitude led to many public servants, from fear of dismissal, being too cautious in their opposition to certain measures instituted by the occupier, such as the hunt for Jews, forced labour and other oppressive measures.
In 1943, some prominent people (Bosch van Rosenthal the dismissed representative of the Queen in Utrecht, Van Holthe tot Echten, and the professor of international law Verzijl) attempted, by drawing up a 'Commentary' - necessarily secret [published in the underground press] - on the Instructions, to make the latter better known and also to resolve certain problems which had arisen in practice. This commentary was very necessary, given the prevailing confusion, specifically with regard to 'staying on'.
It did not always work out well, however, particularly on this issue. Public servants were advised not to resign in cases of conflict with the occupier about a measure, because their positions would then probably be filled by people who would be friendly to the Germans. Instead of resigning, they should refuse to carry out the measure. According to some, many officials 'stayed on to the limit' as a result of this advice. Nevertheless, the Committee of Enquiry was of the opinion that generally the commentary worked out well. The fact that the Dutch government, based in England, officially approved of it - they saw the draft before it was distributed - helped also. To what extent the commentary, which strongly disapproved of cooperation with the pursuit of the Jews, forced labour, the requisition of goods and raw materials, and the taking of hostages, had any effect is unclear, however.
After the liberation of our country, there was silence for a long time about the Instructions. It seemed as if nobody was interested any longer. Finally, in 1980, the Minister for the Interior, Wiegel, on the advice of the Van Stegeren Commission, revealed that already on March 16 1962 new Instructions had been drawn up by the De Quay Ministry, and that Cabinet had now decided not to consider them as secret any longer. Thus the first Van Agt Cabinet had at long last learnt from the tragic consequences of the 'fog of secrecy' over the 1937 Instructions. What were the contents of the 1962 Instructions? One glance shows: very little, quantitatively and qualitatively. Where the old Instructions consisted of 31 detailed points, running to several printed pages, the new ones comprised only four rather short directions which took not even half a page in the Netherlands Government Gazette, apart from two appendices with the text of the Hague Regulations for Land War and the Geneva Accord of 1949, entered into in the meantime, dealing with the protection of citizens in time of war. While in 1937 the government was still striving to deal as thoroughly as possible with situations which might occur, the De Quay Cabinet - like the Van Agt Cabinet following in its track - obviously abandoned the attempt. In addition, railway and tramway staff were no longer included along with government staff. Probably the most important passages are found in points 2 and 3. In point 2, the government instructs 'the authorities and officials of the realm, the provinces, the municipalities, the organisations administering bridges, dykes etc. and those dealing with peat land and polders to be guided, in the case of enemy occupation, in accordance with honour and conscience and with subordinating one's own interests to the nation's real interests'. The instructions continue that, generally speaking, one will have to remain at one's post. However, if one is convinced that 'further carrying out one's duties will only or mainly serve the enemy's interests and harm the Netherlands cause', one should resign from office.
If the occupier takes decisions or gives instructions which contravene the laws of war, 'the Netherlands authorities and officials involved must protest'. There is no mention of the risk that, in case of dismissal, collaborators will take up the vacant positions, from which one might conclude that the government does not expect the protest to be very effective. The suggestion made in the 1943 Commentary, namely to stay in one's position but refuse to execute the occupier's decision, was not taken up. Of other forms of resistance, apart from the 'protest' already mentioned, nothing is said either.
In our view the present Instructions are not satisfactory. Two reservations in particular come to mind:
1. The current instructions - like the preceding instructions of 1937 - obviously assume that the fight against the occupier is conducted exclusively on the battlefield, and that what happens in our (occupied) country before that battle is of little or no importance. Resistance is therefore not expected from a minister or public servant, but protest at the most. There is obviously a strong taboo embedded in the duty of obedience which all public servants owe their superiors; so strong in fact that even if the official administration is dominated by an oppressor, submissive docility remains its first duty.
It is true that the officials are expected firstly to serve 'the real interest of the Netherlands people', which must constitute the criterion for response to the question: in the case of an unlawful instruction, should they stay on or resign from their positions? In this choice, according to the Instructions there is no role for asking which of these alternatives provides the most favourable possibilities for resistance.
The absence of any encouragement to resist is all the more remarkable because in the former Instructions (of 1937), officials are at least told several times to refuse certain actions, and because the 1943 Commentary mentions a great number of actions which, according to the authors, should be deemed to be prohibited. Moreover, one would expect the government to have learnt the lesson of the many shameful experiences in regard to public servants under the German occupation, starting with their acceptance, without exception, of the so-called 'Aryan declaration' (the declaration that one did not have Jewish grandparents). Whoever reads the current Instructions in the light of that declaration would only get the impression that the government does not believe in any form of resistance by administrators or officials, and thus does not take its own Instructions seriously.
In any case it is clear that the Instructions and their underlying conceptions are unacceptable from the standpoint of Netherlands law and its upholding by the apparatus of public administration. As we have already argued in section 1, this apparatus has a duty to resist any conduct of the occupier which clashes with the public interest and the law. By such resistance, the ministers and public servants concerned will at the same time greatly strengthen the population's morale. Remember, we must expect that many well-intentioned but fearful and hesitant citizens, when deciding their attitude, will be led to a great extent by the conduct of government bodies.
2. Obviously those who drew up the Instructions were not aware of the fundamental change in the role of a government representative as a result of occupation which we indicated in section 2. While before the occupation they were in principle cooperative and obedient cogs in the large administrative machinery, obliged according to the regulations 'to fulfil, accurately and diligently, the duties which result from their function and to conduct themselves in the way they should as good public servants' (clause 50 of the General Regulations for public servants), as soon as the foreign domination is a fact, they must bear a much heavier responsibility.
This change of role goes much further than one would think at first sight. In normal times it goes without saying that officials do their work in accordance with the prevailing regulations. Under occupation, however, they need to assess critically whether this 'normal' behaviour is still correct. It might cause problems for certain fellow citizens, or it might unintentionally support the occupier in its oppressive policies. Routine actions also should not escape such examination.
With regard to instructions from senior levels, public servants must always ask themselves whether the authority issuing the instruction is competent to do so according to Netherlands law and also whether its contents are in accordance with that law and with the prevailing values and standards of our country. If this is not the case, or if there is real reason for doubt, they will need to assess their attitudes according to their duty. To the extent that the case demands it, they must gather further information, warn possible victims and either carry out the order under protest, pretend to carry it out (in other words, quietly practise obstruction), or not carry it out at all. Closely connected with this, they will also have to establish what consequences result from their conduct choice: staying on or resigning, going into hiding without further ado, (continuing) to resist or not.
In short, the relative security which a ministerial position or public service function provides - thanks to a job description, service instructions in the line of duty, and the possibilities for consultation - is greatly diminished. What remains is a function which is in every respect uncertain, and which is connected to an uncertain position. Of course, this applies more strongly to one function than to another: the engineer on a government ferry will usually experience less trouble than the managing director of a press service. But essentially they have to contend with the same difficulty. This is of course not easy, certainly not for people who have fulfilled the same function for many years, and who have become used to a certain way of doing things. It requires a considerable degree of flexibility, as well as a sense of responsibility and courage to a degree which is rarely required in normal times.
Is it possible, however, to prepare our administration for its change of role and special responsibilities under occupation? We believe that it is. But more will be needed than the issuing of the present Instructions. Thorough reflection is needed on the demands made of public administration under occupation and on their consequences for the organisation, the internal relationships and the functioning of the government apparatus, as well as on the legal position of the people involved. That study must lead to legislation with occupation in mind, because the provisions which need to be made will no doubt be of a far-reaching nature. New 'Instructions' must be the result.
Two aspects are particularly important: (a) resistance against the undermining of the constitutional state. (b) decentralisation of the government apparatus.
(a) Resistance against the undermining of the constitutional state [5]. One of the most important achievements of Netherlands society - in which it specifically differs from societies with dictatorial or authoritarian regimes - is that we live in a constitutional state, that is to say a state based on the rules of written law, which came into being and are maintained in accordance with specific, democratic procedures. Its principles also assume that those rules are drawn up by an elected parliament or, with that body's agreement, by the government; that their observance is supervised by that same parliament; and that infringement is corrected by an independent judge.
Well then, it is of the utmost importance that under occupation, also, that constitutional state be maintained intact as much as possible. That means among other things that legal rules must be drawn up in case the occupier issues regulations, instructions or commands in conflict with Netherlands laws. To what extent may a minister or public servant carry out such regulations, instructions or commands? When should one protest, when obstruct secretly, when resist openly?
Upholding the laws as they are set out in our Constitution and have been interpreted in the administration of justice deserves special vigilance. It is obvious that the occupier will be intent on curtailing in various ways the freedom of expression, religion, association and assembly etc., and will not be particular about the legal rules against oppression and arbitrary deprivation of freedom.
The regulations and instructions issued by the occupier which would not formally be at odds with the rules of written Netherlands law constitute a difficult category. From the point of view of maintaining the economy and social life in the special circumstances of the occupation (and perhaps war), certain of them would be necessary, or at least acceptable. Thus, the food supply must be regulated, distribution of scarce goods organised, the position of the occupying troops recorded, etc. On the other hand, the new rules would be intended - and perhaps carefully camouflaged - to support the occupier's attempts to force the population to do its will. Often, it would be very difficult to distinguish between measures which were pursuing one or other of these objectives.
As a rule, it could indeed be established that the origin of the new regulations and instructions was at odds with legal rules of procedure. For example the representative authorities would not have been involved, or they would have been issued by new authorities (that is, which do not occur in our legislation). Usually, however, the illegal origin of these orders would by itself constitute sufficient reason to boycott their execution, because our own population could suffer as a result. On the other hand a valid reason would be that the new regulations are glaringly at odds with the values and norms generally recognised in our country.
Once it had been established that the occupier's measure was based on a violation of the law, the question arises what position should be taken by the administrators and public servants concerned. This is the most difficult question of all, as became very obvious during the German occupation. Remember, in this case their position and even their safety would be at stake. Therefore, regulations and guidelines need to be drawn up which provide support to government officials. The situations in which they might find themselves as a result of measures announced by the occupier need to be indicated: for example, measures which affect the personal freedom of the citizens, which restrict freedom of conscience and the like; and also measures which run counter to the legal position of representative bodies and other government authorities, to judicial procedure, to judicial independence, to legal equality and protection, and many other elements of the constitutional state. Broad outlines should be drawn concerning what is expected from the official involved in every situation.
We will have to consider to what extent we can go into detail. It will be clear, however, that much must be left to the judgement of the official who is confronted by an illegal regulation or order from the occupier.
(b) Decentralisation of the administration. How should the administration be organised if it is to function in the best way possible? Whereas in the above we emphasised the attitude of the individual administrator or public servant, in the following we stress the structural conditions which also serve to create the necessary space for the correct attitude of the administrators and public servants involved. We are thinking here of the general condition that to a great extent the administration is decentralised.
This can be done by the transfer of tasks and powers, namely:
Decentralisation of public administration serves to prevent the occupying power from manipulating the administration by occupying a few key positions. It is difficult to determine in advance which tasks and powers need to be transferred. Remember, every government act can, as a result of the abnormal political situation, unexpectedly carry within it a decision on what is just and what is not. Usually it will therefore be best to draw up a legal provision which, in certain circumstances (for example, inadequate communication or endangered security of people), circumscribed as much as possible, will transfer tasks and powers, automatically or after a special decision, to a lower ranking administration.
The arrangement of this transfer will require in many cases detailed preparation. One should guard against the confusion which can result from uncertainty whether the transfer has occurred, that is whether the circumstances indicated by the law do indeed occur.
Doubt in this respect must be excluded as much as possible. This is all the more necessary since because of this transfer officials are charged with responsibilities they do not bear in normal times, which will therefore often be difficult for them - doubly difficult, because of the pressures of the occupation! In the nature of things, uncertainty can never be eliminated completely, but this risk of confusion provides an added incentive for drawing up a good and clear regulation of the transfer.
Also indispensable are the psychological preparation and effective training of the government officials with a view to this shift of responsibilities and powers. If in such a situation an administrator or public servant is expected to transfer responsibilities or on the other hand assumes greater responsibilities, they need sufficient opportunity to prepare themselves, theoretically and if possible - through role playing, for example - practically.
Perhaps it could be objected that the need for such preparation could be avoided by reforming present constitutional and administrative law in such a way that the spread of responsibilities and powers is not reserved for occupation situations but is applied generally and therefore incorporated in normal law. The 'breach' between the normal and the occupation situations would no longer exist in a formal sense. Such a reform, however, would be very far-reaching and mean that a great number of regulations, directions for their execution and unwritten rules would need to be adapted. Formally, this is of course possible. The actual opportunity to achieve this, however, is limited, and this is so for two reasons. The first is that modern society, in all its sections, is complicated and interconnected, requiring a great deal of central coordination and concern for legal regularity. The second limitation is the widespread fear of giving too much power to public servants, the 'fourth' power. One finds this fear among administrators (who are apprehensive about their policies being thwarted by a too independent public service) as well as among citizens (who often assume that the cause of government mistakes and shortcomings can be found in what they suppose to be the highhandedness, if not arbitrariness, of the public service).
This resistance against a shift of responsibilities and powers to, in this case, lower local levels certainly needs to be taken into account. This does not mean that no adjustment of administrative law and practice is possible or desirable.
One of the points in favour is the need for less interference [literally, busybodying] by higher authorities, as well as a better adaptation of policy decisions to circumstances and local or regional aspirations. Here and there, work in that direction is already being undertaken, for example the establishment of district councils and steps to decentralise large sections of welfare and public health policy into provinces and local councils, as well as attempts to give the lower authorities more financial independence. On the whole, however, it must be agreed that valid arguments for decentralisation, delegation and deconcentration under the circumstances of occupation apply scarcely or not at all in normal times, since they carry less weight than the related disadvantages.
Need for emergency legislation
A more efficient way of creating the provisions dealing with constitutional and administrative law which are needed in an occupation situation is probably the introduction of emergency legislation. By this term we mean that the clauses set out under this heading become valid only when an 'emergency' occurs, that is when the country is occupied. In many cases the situation is then no longer normal, as may have become clear from the above. In times of occupation, whoever wanted to adhere strictly to normal methods and regulations would inevitably run into grave problems or create them for others.
In existing legislation, we already recognise forms of emergency laws which are somewhat comparable, namely in the Extraordinary Powers of Civilian Authority Act and the War Criminal Code for the Netherlands. The former, when there are systematic and large-scale attacks on national and social authority, makes a distinction between two 'exceptional circumstances', namely: (1) the situation of increased vigilance; (2) the civilian exceptional situation. The War Code also deals with two exceptional circumstances: (1) the state of siege; (2) the state of war.
The first Act, under certain circumscribed circumstances, provides civilian authorities with special powers in, among other things, the area of information gathering and the prohibition or restriction of certain gatherings or of residence in certain places or of publications, etc.; also of establishing postal and telephone censorship; internment of persons, etc. The War Code contains similar provisions but also gives far-reaching powers in the civilian domain to military authorities [6].
From this short description it will be clear that specifically the Extraordinary Powers of Civilian Authority Act can probably be useful in case of occupation for resistance by the government apparatus. Thus, on the basis of that Act the occupier's accomplices can under certain circumstances be stood aside. In addition, however, regulations need to be drawn up for several other issues. To give some idea here is a concise list of the most important questions that must be answered. It goes without saying, however, that we do not claim this list to be complete.
I. Concerning Structural Adaptations
a. If normal channels of communication between higher and lower ranking administrative bodies are obstructed for a long period (for example, as a result of infiltration by unreliable elements, or by tapping of telephone conservations), which tasks and powers should pass from central bodies to lower decentralised bodies?
b. Should administrators and public servants deliberate, as far as the situation permits, with (reliable) managers, colleagues and/or fellow workers before taking decisions which are extremely dangerous for the community or for certain persons?
c. If part of an administration can no longer function properly because of infiltration by unreliable elements, should a parallel apparatus of reliable persons be formed underground to take over the task of that part as much as possible?
d. If normal financing methods for government bodies are blocked, should emergency financing come into operation, and how should this be arranged?
II. Concerning Special Legal Protection of Administrators and Public Servants
a. If administrators or public servants take decisions because of values and norms generally recognised in our community, which they are not formally authorised to do, do they then still act legally?
b. If, by acting in accordance with the above, they endanger their personal safety or that of their families, are they then entitled to resign from their positions and disappear?
c. May they also do this on the basis of their wish to join the resistance?
d. Should illegal dismissals and appointments be ignored as much as possible, so that one does not cooperate with the official who has been illegally appointed?
III. Administrative Actions
a. Should administrators and public servants be prohibited from cooperating with the drawing up and carrying out of measures which are at odds with Netherlands law, with international law, or with generally prevailing values and norms in Netherlands society?
b. Should the same prohibition apply regarding cooperation with the changing of powers and procedures, which would give the occupier more opportunity to commit an injustice?
c. Should administrators and public servants resist, overtly or covertly, illegal or immoral measures, for example in the form of protest, obstruction or other means to make those measures ineffective?
d. May exceptions be made to a, b and c above, if more important interests of other citizens or the community would be endangered?
e. Should, for that matter, government functionaries, including the head of state, stay in their posts?
f. Should secret lists be made of functionaries deemed to be unreliable?
IV. Other Questions
a. Should records and lists which contain personal details be brought to safety or destroyed in certain circumstances?
b. When the normal supply of food and other indispensable goods for the population breaks down, should alternative measures still be taken to guarantee that provision as much as possible, for example on a regional basis?
With respect to the drafting of emergency power aimed at public administration it would be a good beginning for the government to establish quickly an official committee in order to draw up the emergency legislation for public administration which we discussed earlier. Such a committee could use the report put out by the Niezing work group on the study of nonviolent conflict resolution and social defence [7]. In that way, it seems possible to help prevent the destruction of the strength and democratic character of the Netherlands people in the case of occupation.
FOOTNOTES
1. This article was written in consultation with a small group of interested people to whom the author is very grateful. They are: W Domburg, E A Huisman, J J Hut, M de Jonge, H Stegehuis and G de Valk.
2. The Regulations are an appendix of the Fourth Convention agreed to during the second The Hague Peace Conference of 1907.
3. Report of the Committee of Enquiry into Government Administration 1940-1945, parts 7A and B (published by the Government Printers and Publishers, 1955), p. 25.
4. Report of the Committee of Enquiry, p. 64.
5. This study is limited to public administration, as was stated in the beginning, that is (in terms of threefold politics') limited to the executive power. However, much of this discussion can be applied, analogously, to the legislature and the judiciary. There are in these areas specific points which need attention. Thus, as regards the legislature, it must be assumed that under occupation it can only be limited in range and significance. As regards the judiciary, it is specially important to prevent its dismantling.
When a non-collaborating judiciary can hold its own, this also has consequences for the functioning of the executive (the administration). In the context of our topic, the administration of justice regarding the bureaucracy, specifically, is of importance. By declaring unacceptable amendments not binding, which an occupier introduces in public service regulations and the like, the judge dealing with public service matters can provide public servants with important protection. The legal questions which arise from all this therefore deserve further study.
6. On both laws, see Wetten en noodwetten civiele verdiging (Laws and emergency laws for civilian defence), a brochure from the Ministry for the Interior.
7. Published by the Government Publishing Office, February 9 1982. The sixth study proposal of the workgroup refers to 'instructions to public servants as a policy condition for an effective social defence system in the case of occupation'. The seventh proposal deals with 'social defence and social organisation: an explorative study of the relationship between centralisation and decentralisation in a social defence system'. [Editor's note: See Research on Civilian-based Defence, Proposals for research projects by the Netherlands 'Steering Committee Social Defence', by Giliam de Valk in cooperation with Johan Niezing. Amsterdam, SISWO, 1993. 85 pp.]