[David Fraser, Law After Auschwitz: Towards a Jurisprudence of the Holocaust; Carolina Academic Press: Durham, North Carolina (2005); ISBN-10 0-89089-243-1; 464 pp.; $48.00]

The following story, from the Netherlands, would fit very well the general thesis Fraser defends in his remarkable book Law After Auschwitz: Towards a Jurisprudence of the Holocaust. In May 1941, a merchant bought a substantial quantity of pork meat without the necessary valid licence. This was a criminal offence according to the legal measures issued by the German occupation authority. Subsequently, the merchant was prosecuted and convicted by a special court for economic crimes established by the Germans. The merchant appealed his conviction and, in the last instance, the Dutch High Court had to decide whether his conviction would stand. The merchant’s legal complaint was that the establishment of the economic court was itself a violation of Article 43 of the International Hague Convention of 1907 and that his conviction was thus void. Article 43 determines how an occupying force should deal with the existing law in an occupied territory. It declares clearly that it should respect existing legal institutions, “unless absolutely prevented.” The merchant argued that the occupier should have respected the existing statute on the organisation of the judiciary and the code of criminal procedural. The establishment of the economic court was not absolutely necessary, the merchant contended; and thus the appeal amounted to a request for a review of the regulation in light of the higher law of Article 43 Hague Convention. This is exactly what the High Court did, but not with the result the merchant hoped for. The Hoge Raad held:

(…), the promulgation of the Decree ( … ) concerning the trial of criminal cases affecting the economic life, published in the Verordnungsblatt for the occupied Netherlands territory (No. 71 of 1941), is to be considered a legislative measure of the occupying Power. In the prevailing circumstances such regulations cannot be denied the character of a wet...