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Justice in face of the enemy. Experiences of Belgian magistrates during 1914-1918

Judicial history has long been absent from historiography of the first German occupation. A PhD thesis recently defended at UCL by Mélanie Bost (researcher at Cegesoma) rediscovers the magistrates' roles during this period. This thesis, entitled “Traverser l'Occupation 1914-1918. Du modus vivendi à la grève, la magistrature belge face aux occupants allemands” (“Crossing the occupation 1914-1918. From modus vivendi to strike, the Belgian magistrates in face of the enemy”) sheds new light on the relationship between occupant and occupier between 1914 and 1918. In this short interview below, the author tackles the initial starting points as well as main conclusions of her research.


 

What was the initial starting point for your research ?

My thesis was carried out within the framework of the IAP “Justice and Society: The Sociopolitical History of Justice Administration in Belgium (1795-2005)”, funded by the Belgian federal ministry of science policy. The subject of this PAI programme grew out of the lack of scholarly knowledge on the history of the Belgian judiciary. This gap in our knowledge was especially significant where it concerned those at the very heart of the judiciary – the magistrates – who are traditionally discreet, although they are the so-called 'third power' within the state and as such play an essential political and societal role.

Nevertheless, there are two events from February 1918 that resonate throughout collective memory: the persecution for treason of the activists of the Raad Van Vlaanderen by the Brussels court of appeal and the general strike by the magistrates, provoked by the deportation of the heads of the court because of 'political expressions' ('manifestation politique'). In contrast, the co-habitation of the judiciary with the occupier during the preceding three years, although not free of incidents, remains largely unknown and is reduced to the most distinct abuses of the occupier.

This black-white narrative was in dire need of re-examination. Thanks to the National Archives who opened up the judicial archives of the First World War for research, the investigation of this relatively untouched field created exciting new ways to participate to the renewal of occupation-historiography as well as deepen our knowledge about the state's 'third power' during a time of crisis.

 

How would you describe the attitude of the Belgian magistrates after your research ?

Patriotic literature of the 1920s created the image of the resisting magistrates. However, sources revealed a completely different reality. Up until February 1918, the magistrates' main priority was to preserve the workings of the judicial apparatus, and to guarantee its autonomy, even at the price of certain unpleasant concessions to the occupier.

 

Official visit of King Albert I to the magisrates of the Cour de Cassation, at the palais de Justice in Brussels, 25 November 1918. (KB, Cabinet des Estampes / Prentenkabinet)
Official visit of King Albert I to the magisrates of the Cour de Cassation, at the palais de Justice in Brussels, 25 November 1918. (KB, Cabinet des Estampes / Prentenkabinet)
Several factors help to explain this strategic policy. At the end of 1914, magistrates were forced to sign a declaration of loyalty. They were allowed to continue their activities, on the condition they would refrain from any hostile action against the occupier. During the invasion, the Belgain government had issued directives that also favoured a neutral and loyal cooperation. These directives were directly influenced by international law, the legal texts (The Hague Convention IV, 1907) as well as legal doctrine, giving an occupier provisional administrative tasks within the territories fallen under its control. In the spirit of The Hague, the higher magistrates acknowledged the 'factual power' of the occupier, including legislative powers in order to withdraw certain competences from them, if the occupier would refrain from interventions and would not force certain concessions on them. Each would have its own sphere of influence. This was the negociated deal.

This narrow and exclusive focus on the issue of its specific autonomy falls back on the traditional strategy of the judiciary to guard its distance towards the other powers. Normally, the judiciary avoided all encroachment, even to the point of damaging its own power to better safeguard its own independance. This habitus existed well before the war, as Françoise Muller pointed out in a recent work on the Cour de Cassation. Understanding the attitude of the magistrates in wartime, necessitates taking into account a larger temporal framework.

In light of these judicial and sociological elements, it seems less relevant to phrase the interpretative framework of magistrates' behaviour in terms of resistance-collaboration.

 

Consequently, how can the events of February 1918 be explained?

Throughout the Occupation, it became more difficult to observe this position of neutrality and positions changed. The modus vivendi had become more fragile because of external factors on the one hand – the policy of the occupier which was increasingly in contradiction with international law (forced labour, administrative separation) – and the controversy which developed in the legal world as a reaction against the wait-and-see policy of the judiciary. These clashes of men and ideas that will be mainly disregarded after the war, explain in part the 1918 strike which demonstrated a total change in the attitude taken until then. The stroke of genius of the Belgian magistracy was to have taken a sensational action at the right moment which absolved it of the compromises of the previous years.

Jean Servais (1856-1946). He was counseler with the Cour de Cassation during the war, and as such in favour of a stronger opposition of the judicial power against the occupier’s policy. After the war, because of his qualities as a lawyer as well as his energetic personality, he was nominated as chief magistrate with the central public prosecutor’s office at the Brussels court of appeal. (Cour de cassation of Belgium)
Jean Servais (1856-1946). He was counseler with the Cour de Cassation during the war, and as such in favour of a stronger opposition of the judicial power against the occupier's policy. After the war, because of his qualities as a lawyer as well as his energetic personality, he was nominated as chief magistrate with the central public prosecutor's office at the Brussels court of appeal. (Cour de cassation of Belgium)

The singular nature of the strike in the light of the previous behaviour of the Belgian magistracy also enables us to assess what constituted their point of no return. It was ultimately less the defence of the national institutions, menaced by the declaration of self-governance of Flanders – the magistracy did not protest at the moment of the administrative separation of the country –, but the defence of this essential attribute of the magistracy – its independence – that made it choose resistance over cooperation.

It was not until the independence of the magistracy was disregarded, when the counsel of the Court of Appeal of Brussels was suspended and their chiefs of staff deported that the Court of Cassation decided its collective withdrawal. The trial of the war underlines the importance of the corporatist issues.

In your opinion, which are the principal contributions of this study to the historiography of the Occupation? I would like to mention two points.This study underlines the multiple and evolving nature of the concept of patriotism. Within the same professional universe, the policy of presence soon came in conflict with competing definitions of judiciary patriotism.Some lawyers, but also a number of magistrates, in particular Jean Servais who played a fundamental role in the post-war repression of collaboration, regretted the lack of fighting spirit of the magistracy and the fact that it refused to use judicial language to fuel the spirit of national resistance.

This study has also demonstrated the existence of manoeuvring space of the occupied population. In the historiography of military occupations the occupied territories are generally considered as lawless zones, where the affected populations are subjected to the brutal force of the occupation armies. It has revealed the coexistence of spaces for negotiation between the Belgian judiciary power and the German civil administration. A professional complicity and relatively balanced power relations could be established. The magistracy was a power and asserted itself as such in its relations with the occupier. Its juridical expertise puts it in a position of strength in the context of the symbolic battle between Justice and Power, in which international law was an ubiquitous reference.

 

Mélanie Bost / Editors of the site 

 

1 / 7 / 2013

 

 

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