Over the past decade, memorialisation has become linked to the emerging field of transitional justice. Focused on “facilitating a transition to democracy”, transitional justice encompasses a range of interventions promoting truthseeking, justice and reparations for victims, including symbolic reparations in the form of memorials, public apologies and other public memory initiatives. Increasingly, transitional justice and memorialisation involve outside actors – individuals from other societies who provide specialised expertise through organisations operating at the regional and international levels. Some ‘outsiders’ also get drawn inadvertently into memorialisation through their work as peacekeepers or development practitioners involved in post-conflict peace building or reconstruction initiatives, as central to this chapter. But, despite growing interest in the role of historical memory in societies experiencing conflict and undergoing transitions, the contribution of memorialisation to transitional justice remains under-studied, especially the impact of outsiders involved in memorialisation. This gap reflects the fact that efforts to assess the impact of transitional justice more broadly are relatively recent and inconclusive.

In 2006, the United States Institute of Peace organised the Memorialisation Working Group to engage practitioners in reflective examination of the challenges they have faced with respect to memorialisation. This chapter shares insights from those discussions, as well as perspectives from other practitioners engaged in memorialisation since then. It focuses on practical questions with which practitioners continue to grapple: what is memorialisation, and what forms does it take? Who is involved and what are their motivations? How do different forms of memorials reflect different types of conflict? How is memorialisation connected to transitional justice? What specific roles can and do outsiders play in memorialisation, and what pitfalls should they anticipate?

DEFINING MEMORIALISATION: FORMS, TIMING, INITIATORS AND INTENTIONS

The urge to remember violence and repression is as prevalent as the impulse to eradicate terrible memories and move on. Memorialisation encompasses a wide range of forms and processes to honour and commemorate victims and survivors. While some initiatives are designed to reduce conflict and promote reconciliation and social reconstruction, others aim at the opposite effect by valorising polarising figures and historical narratives.

After the experience of mass violence communities and individuals alike have to come to terms with these violent histories which reverberate into the present and future. On the societal and political level, mechanisms commonly referred to as transitional justice are being deployed to deal with the legacy of repressive regimes and violent conflicts. Memorialisation – understood as the practice of remembrance such as through commemorations, the writing of history text books and the establishment of memorials – has become part of this wider transitional justice tool-box, although it has garnered much less attention than legal and truth-telling mechanisms. Memorials as one form of memorialisation can be understood as symbolic reparation for the victims and survivors of mass violence since they acknowledge their suffering and grief and pay respect to the dead. Therefore, after mass violence memorials can be understood as physical loci of recognition and the imperative not to forget the atrocities of the past.

Memorials to mass violence restore the violent past in the present moment and try to rewrite it by making the event intelligible to the onlooker. For the society which suffered the violence it is a steady reminder of its past and thus also forms a ‘point of connection’. In this sense, memorials move remembrance as a cultural practice beyond the boundaries of the individual, or as William Booth calls it, beyond the personal “thick memory” of one's mind. As a ‘point of connection’ memorials serve as a focal point for remembering the past, for the fight against the oblivion of injustice and inhumanity. At the same time, memorials constitute a medium to conserve the past (Speichermedium) and to ensure that personal memories are bonded to the cultural memory practices of the community. Thus, according to Maurice Halbwachs, memories must be tied to a physical presence in the world in order to recall the past and to contextualize it in the present. Memorials therefore serve to preserve that which might otherwise be at risk of being forgotten and eradicated from a community's memory.

The end of the war in Bosnia and Herzegovina marked the beginning of a transition from a society at war to a peaceful multi-ethnic society, a transition that is still on-going. One aspect of this transition is the question of dealing with the atrocities committed in the war of the early 1990s. How can a divided society address the massive human rights abuses in a manner that supports its transition to a future without violence?

In the context of an increased global emphasis on reckoning with past wrongs, post-war Bosnia and Herzegovina has witnessed the implementation of many transitional justice mechanisms, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, international lustration measures or the vetting of state employees, just to name a few. Moreover, a number of memorials have been erected to commemorate the dead, which is in line with a tendency to include memorials in the toolkit of transitional justice, even though they are sometimes seen as instruments that promote narratives of enmity and revenge.

To understand the nexus between transitional justice in divided societies and memorials the town of Srebrenica serves as a good example, as it witnessed massive human rights violations during the war (1992–95) and today hosts the largest memorial in Bosnia and Herzegovina. The town's population consists of two dominant ethnic groups and former enemies, the Serbs and the Bosniaks which, today, live together without physical violence and at a first glance in harmony. However, if one stays in town longer, tensions between the groups become apparent, with the ethnic division rooted in the recent – and some will say the overall – history of Srebrenica. The war reached its climax in this little former tourist town when, in 1995, the Serb army of the so-called Republika Srpska committed genocide against the local Bosniaks and refugees who had sought refuge under the protection of the UN peacekeepers in a ‘safe area’. Approximately 40,000 Bosniaks were expelled and 8,500 killed. These incidents which happened in the context of the fall of the town in July 1995 made Srebrenica infamous throughout the world.

Today, only around 3,500 of previously 8,000 inhabitants remain in the town. As a consequence of the war the ethnic composition of the town has changed. Before, one third of the population was Serb and two-thirds Bosniak; during the war, while it was a Bosniak enclave, the number of inhabitants rose up to 70,000, due to a refugee influx from other parts of eastern Bosnia.

The Great Famine of 1932–33, also known in Ukraine as the Holodomor, is one of the most tragic pages in the country's modern history. Mass starvation caused by Stalin's policy of forced collectivisation took the lives of almost four million people in less than two years. Draconian requisitions of grain were followed by repressive measures which prohibited starving peasants from leaving their villages. The Famine was silenced by Soviet officials, but is remembered in many Ukrainian families. It was only since the end of the 1980's that this tragic event has become a subject of open discussion and public commemoration. This upsurge in the memory of the Famine contributed to the delegitimation of Soviet rule in Ukraine and helped to mobilise public opinion in favour of national independence. With the collapse of the Soviet Union the narrative of the Great Famine as one of the biggest crimes of Stalin's regime, i.e. the deliberate policy of ‘terror by hunger’ with the aim of suppressing the national aspirations of the Ukrainian peasants and their resistance to Sovietisation, became an important pillar of nation building. To the end of the 1990s, despite the resistance of the Ukrainian Communists, the Holodomor entered the official canon of national memory. However, compared to other post-communist countries Ukraine's record of coping with its difficult past is rather ambivalent. The former KGB archives have remained under the control of the Security Service of Ukraine (SBU), until 2010 no legal qualification was given to the crimes of the former regime, and no lustration law has been adopted. Although there were some civic initiatives aimed at documenting communist crimes and memorialising their victims (most notably, the Memorial association), Ukraine until recently had no national memorial or national museum devoted to the Famine and mass political repressions of the Stalin's era.

The Orange Revolution in 2004 marked a new era in Ukrainian politics of memory. President Viktor Yushchenko, elected on a pro-European platform, declared a break with the Soviet past and made national memory his top political priority. It was during his presidency that the commemoration of the Holodomor entered a new dimension.

THE LEGACY OF EARLIER EXPERIENCES

Since France experienced almost fifteen regimes between 1789 and the effective installment of a parliamentary Republic some 90 years later, she got used to political/military coups, purges, successive and always betrayed oaths and the rest – such as criminal punishment of followers of the fallen regime. So it happened during the French Revolution, when the guillotine was invented and much used, as it did after the revolution of July 1830 (High Court trial of Charles X's ministers in 1832), in 1852 following Louis-Napoleon Bonaparte's 2 December 1851 coup or in the bloody spring of 1871 aft er the decimation of the Paris’ Commune.

In this respect, the period of WWI may seem quieter. Certainly, real or supposed spies were executed, as were soldiers accused of cowardice, desertion or mutiny. In 1917, Clemenceau's government decided to have former Premier Caillaux and former Home Secretary Malvy judged by the Senate meeting as a High Court for having expressed defeatist – i.e. pacifist – opinions. What happened after the end of the war, including trials for “collaboration” in occupied northeastern France or départements of Alsace and Moselle that had belonged to the German Reich since 1871 is not sufficiently known to the larger public to demonstrate any kind of collective trauma.

If we search for the influence of earlier experiences on post-WWII transitional justice, we should therefore not look at the aftermath of the preceding conflict. It has both older and newer predecessors. As has been magnificently shown by Anne Simonin in her habilitation thesis, the main “innovation” of France's TJ after 1945, National Indignity (Indignité nationale, NI) has a long history in French criminal law, stemming from both revolutionary political justice of the 1790s and the Revolution of 1848 – and even further from Roman law civil death (civiliter mortuus). It should be remembered – as it was, for instance, by the public prosecution during the High Court trial of Vichy Premier Pierre Laval – that civil death could lead to actual death, since anyone could kill or injure such an ex-felon with impunity.

THE ANTECEDENTS: THE AUTHORITARIAN REGIME

Portugal experienced a right-wing dictatorship that lasted from 1926, the year in which a military coup d'etat overthrew the First Republic, until 25 April 1974, when the dictatorship was overthrown by another military coup. There were two different political regimes during this long experience of authoritarianism. Crises and movements calling for the restoration of liberal order blighted the Military Dictatorship established in 1926. Having failed to institutionalise itself, in the beginning of the 1930s, the Military Dictatorship gave way to Salazar's “New State”. António de Oliveira Salazar was a conservative Catholic politician and university professor who remained Portugal's dictator until he was incapacitated in 1968. His replacement was one of his disciples, the law professor Marcello Caetano. After a brief period of “liberalisation”, the New State was overthrown by the military coup that set Portugal on the path to democracy.

With the restoration of democracy, political scientists found themselves divided between those who classed the New State as “authoritarian”, based in the typology developed by Juan J. Linz, or as a type of “fascism without a fascist movement”. The Salazarist institutions, created by the 1933 Constitution, formally maintained fundamental freedoms; however, they were successively eliminated by decree. The Constitution retained a directly elected head of state and a parliament (AN – Assembleia Nacional) to which deputies were elected from a single list prepared by the single-party, the National Union (UN – Uniao Nacional), as well as a corporatist chamber (Camara Corporativa).

According to the 1933 constitution, political crimes were excepted from the prohibition of imprisonment without trial (Article 8); it also permitted “security measures”, that is, the extension of prison sentences by administrative decision. With the dictatorship's consolidation, political repression came under the auspices of the regime's political police, the Vigilance and State Defense Police (PVDE – Policia de Vigilancia e Defesa do Estado), which was created in 1933 out of the unification of police forces inherited from the Military Dictatorship. Despite two name changes, Salazar's political police maintained a constant presence, and was not abolished until the restoration of democracy in 1974. While formally under the control of the Interior Ministry, its independence increased, dominating throughout the investigation and presentation of cases to the political courts. The PVDE became the spine of the system of repression, arresting, torturing and, occasionally, murdering opponents of the regime.

THE CENTRAL PHASE OF TRANSITIONAL JUSTICE POLICIES (1944–1951)

Belgium experienced transitional justice from September 1944 to 1951, after the country had been occupied by the Germans. Belgium had also experienced the punishment of collaboration after the First World War, when the country lived almost completely under German occupation and was split up politically and administratively on linguistic lines (in the northern part, Flanders, most people spoke Dutch, Wallonia, the southern part, was French-speaking; French was also the high status language throughout the country). Legislation, jurisprudence, judicial doctrines as well as the experience with this first punishment of collaboration have left their mark on transitional justice after 1944. In order to facilitate the comparison with the other countries under review in this book, and to be able to point out what is to be considered as a “judicial innovation”, we will start with transitional justice after the Second World War and then indicate where and to what extent the punishment of collaboration after the First World War has had an impact on the post-1944 transitional justice process and to what extent measures taken for the post-1944 period were judicial innovations.

THE OCCUPATION REGIME

Belgium was invaded by Nazi Germany on 10 May 1940. The entire territory was occupied by German troops, except a small German-speaking part in the East (received as compensation from Germany after 1918), which was annexed to the Reich. Belgium was ruled by a military government (Militarverwaltung) until July 1944, when a civil government (Zivilverwaltung) took over until the Liberation in September 1944. The King preferred to stay in Belgium, officially as a POW (he was the commander-in-chief of the Belgian army), but tried to play a political role, without much success. The government left the country, established itself in London and was considered by the Allies as the legitimate Belgian government. With the invasion, the Belgian parliament delegated powers of the ministers within the occupied territory itself to the highest-ranking civil servants, the secretaries-general. They formed a committee, governed the country and became the political interlocutors of the German authorities.

In an 2007 article Elizabeth Cole wrote that “history is still to some extent a missing piece in the planning for transitional justice processes”. This statement surprises for several reasons. History, both as an academic discipline or in its broader sense, seems to hold an obvious value for the field of Transitional Justice (TJ). To look at past cases and see what policies have (not) achieved the desired effects seems unavoidable for any kind of efficient policy evaluation. Many post conflict societies today struggle with questions on the intergenerational consequences of certain policies, on the long-lived effects of the sequencing of measures or how and when certain challenges recur. The broad temporal space is precisely what is oft en lacking in policy evaluation. Many key works in the field are explicitly historical in their approach. The work of sociologist Luc Huyse, this project's initiator, is a prime example. The two volumes edited by Neil J. Kritz offer national historical case studies, not unlike the ones presented in this volume, while the report edited by C.M. Carlos also uses a systematic comparative framework of historical European cases. Jon Elster explicitly writes in his reference work Closing the Books: “The main task of this book is to discuss why processes of transitional justice have taken different forms in different transitions and why they have sometimes been absent altogether”. Comparative pattern seeking – sometimes labelled “transitology” – or longer term outcome evaluation by definition needs a historical dimension. Truth and Reconciliation Commissions (TRCs) and memorial policies (commemorations) are today considered essential parts of the TJ toolkit. Increasingly, historians are engaged as experts in different types of “truth finding” initiatives.

Nevertheless, Cole's statement rings true. Although in her article, she specifically referred to the absence of history education as a part of the TJ field, her analysis is transferable to the historic profession (from now on, “history” in this introduction refers to the profession and academic discipline). Arguably the most essential developments of the TJ field in the last decades have been its remarkably successful interdisciplinarity – law, sociology, political sciences, anthropology, psychology – and its integration of many different angles (democratisation, legal approaches, victim reparation etc.).

INTRODUCTION

On 23 July 1974 in a meeting between the head of the state at the time, General Phaedon Gizikis, and the country's military leadership (Grigorios Bonanos, Chief of the National Defence General Staff, Andreas Galatsanos, chief of the Army General Staff, Petros Arapakis, chief of the Navy General Staff and Alexandros Papanikolaou, chief of Greek Airforce), it was decided to transfer power to the country's political leadership. The dictator, Dimitrios Ioannidis, was invited to the meeting and was forced to accept the decisions taken by the other members of the meeting. The decision marked the end of the seven year and three month dictatorship in Greece (21 April 1967 – 23/24 July 1974) and the country's transition to the period of democratisation.

An hour later Phaedon Gizikis invited Panagiotis Kanellopoulos, Georgios Mavros, Evangelos Averof, Georgios Mavros, Evangelos Averof, Georgios Novas, Stefanos Stefanopoulos, Spyros Markezinis, Panagiotis Garoufalias and Xenofontas Zolotas, all prominent right-wing and centrist politicians of the pre-dictatorship period, in a meeting to discuss the procedure for the transition. They decided to proceed with the formation of a government of “National Unity” under the leadership of the ex-Prime Minister Konstantinos Karamanlis, who after his disagreement over constitutional reforms with King Paul in 1963, leading to his resignation as Prime Minister, left the country and was living in Paris. The decision was made known to Karamanlis who accepted the offer and returned to Athens in the early hours of 24 July by an airplane which the President of the France, Valéry Giscard d'Estaing, used for state visits. A government of “National Unity” was sworn into office in the early hours of 24 July 1974 under the premiership of Konstantinos Karamanlis with the mandate to prepare the country for a smooth transition to a democratic regime, organise general elections and take the necessary diplomatic steps for managing the crisis in Cyprus after the Turkish invasion of the island on 20 July 1974.

The invasion, which resulted after the junta regime's interference with Cypriot politics, was the main reason for the regime's collapse. The national army regarded itself as the guardian of the country's sovereignty, a view which had oft en prompted its engagement in Greek politics.

INTRODUCTION: THE “THREE PHASES” IN THE HUNGARIAN CONTEXT

In the case of post-Communist regimes, such as Hungary, the “three phases approach” as envisioned by this book might be somewhat more challenging to conceptualise than for those Western European democracies which did not undergo a regime change after WWII. Therefore, before commencing a detailed analysis, a caveat is necessary.

Hungary began its democratic existence in 1989. At the time, it had two repressive, authoritarian periods to account for (the so-called actual repression phase, phase 1): the older one which was responsible for Hungary's part in the holocaust during WWII, and a more recent one, the communist regime which in addition to being a deeply authoritarian regime was also responsible for at least two major waves of grave injustice: one following the stabilisation of the communist regime after its settling in, and another wave of repression aiming to suppress the 1956 revolution. The period of transitional justice falling between 1989 and 2000 is a dense and intense stretch of two decades wherein the qualities of the central phase (phase 2) and the long-term effects (phase 3) as understood by the project concept often merge. This overlap between the central phase and the long-term effects is far from being over. The incompleteness of the transition project is partly due to the fact that transitional justice measures (including retroactive criminal justice measures, amnesties and rehabilitations) came in waves after 1989, as a result of an intense dialogue between the political branches of the state and the Constitutional Court. Nonetheless, despite the adoption of a wide range of legal instruments, as the politics following the 2010 elections demonstrate, the quest to achieve justice for the past continues.

In order to demonstrate that reconciliation over authoritarian regimes and grave injustices perpetrated by them is far from complete in Hungary, suffice it to mention that the conservative-Christian coalition which won a constitution making majority in 2010, in the fi ft h regular democratic election since 1989, declared that the elections amount to a “revolution in the voting booth” which will finally bring so-called “true transition” to Hungary.

HOW TO APPROACH TRANSITIONAL JUSTICE AND MEMORY?

Henry Rousso marks the post-Nuremberg period as the era of the “judicialisation” of the past, in which the legal domain became one of the dominant “vectors of memory”. I agree, but the essential question remains how the judicial vector of memory interacted with the other vectors. This conclusive chapter considers the impact of transitional justice (TJ) policies on longer term memory development. These are oft en perceived to be separate. It is assumed that states in transition first entered a TJ phase to “turn the page” and aft erwards developed a politics of memory to consolidate the status-quo their TJ policies had created. I would like to connect TJ policies and longer term memory development by assuming that TJ policies have had a profound impact on the way societies dealt with the legacy of the dictatorial/war past on the longer intergenerational term. The nature of TJ measures – their broadness/inclusiveness, their timing, the specific nature of the measures, their long-lived effects, their political use (instrumentalisation, etc.) – had a lasting impact on subsequent memorial regimes. The historic European TJ policies are in this sense part of a larger societal settlement that continues to shape collective memories today.

I will use the national chapters in order to detect, analyse and explain certain longer term patterns. This is not an easy feat for several reasons. First, because of the heterogeneity and specificity of our historic cases. There are three groups of case studies (post 1945, the 1970s and post-1989), each with different temporal contexts and lengths. Several authors stress the “uniqueness” of their case. Indeed and by definition, national specificities predominate in these national case studies. A second problem simply lies in the fact that international pattern-analysis spanning several decades involves a staggering amount of potentially relevant variables and tropes, such as the politics of memory, public history, private and public memorialisation, the role of the media and the influence of scholarly research, the role of civil society and self-organising mnemonic communities, developments in judicial contexts and changing public norms. These (and other) aspects all operate within autonomous (and therefore sometimes contradicting) dynamics. Yet they are all relevant to some degree.

INTERNATIONAL LAW AND 20TH CENTURY GERMANY

THE “LONGUE DUREE” OF THE GERMAN “STRUGGLE TO COME TO TERMS”

One of the most extraordinary criminal trials in recent German judicial history ended in Munich in May 2011. There is much reason to believe that this will be the last trial of its kind in the Federal Republic. After fourteen months and more than 90 days of proceedings a court jury delivered a verdict against John (Ivan) Demjanjuk. In July 2009, the former Trawniki guard had been extradited to Germany from the United States, and shortly aft erwards the Central office for prosecuting Nazi crimes, located in the state of Baden-Württemberg, had cited him in the course of its investigations into the extermination camp at Sobibór. The Bavarian state attorney's office brought charges against him, not for genocide but for participation in 28,000 simple counts of “murder”. On the basis of a legal rationale that is surely unique in the history of German criminal justice for Nazi cases, the court sentenced the 91-year-old defendant to five years imprisonment as an accessory to murder, with the term suspended due to the man's advanced age.

Like in a magnifying glass, the Demjanjuk trial allows us to focus on issues that continue to connect the Second World War with the post-war era down to this day. Covered by the neologism of “transitional justice”, these issues now belong to the basic inventory of an enlightened and self-reflective treatment of a dictatorial and violent history. Can a liberal constitutional state take up the mission of atoning for the state-sanctioned injustices of a defunct predecessor regime by punishing the perpetrators and rehabilitating their victims? By what means can the state assure that the rule of law is not derailed, that the fragile balance is kept between the victims’ expectations of justice and the principles of a legitimate legal system? Can the interests of a democracy in consolidation be protected when the institutions of the state itself provide the primary means for pursuing the difficult mission of overcoming the former dictatorship's consequences?

This comparative analysis of policies of dealing with the past is based on ten cases of transition to democracy: Belgium, France, (West-)Germany, and the Netherlands after WWII; Greece, Portugal, and Spain in the 1970s; and Germany, Hungary, and Poland in the post-1989 era (Hungary and Poland after WWII experienced the rise of a dictatorial regime which puts these cases outside the current transitional justice paradigm. They are for the greater part left out of the comparison).

This chapter first compares policies through the description of a number of recurring turning-points in transitional justice decision-making. All countries that are part of the book have gone through episodes where crucial decisions had to be taken in extremely intricate matters. The challenges were common, but did the answers vary? Five such crossroad issues and the multiplicity of responses they generated are discussed. The second section then presents four contextual factors that have shaped both homogeneity and heterogeneity in policy making and implementation. The third section argues that similarities in content and form of policies are more prominent than has oft en been thought.

SAME CHALLENGES, BUT DIFFERENT ANSWERS?

Since the 1990s, practice and scholarship have led to the conclusion that almost all cases of justice after transition are unique. This section tests the alleged diversity through the discussion of a number of recurring turning-points in European transitional justice decision-making. The primary choice bears upon the question of accountability: to punish or close the books. If a policy of prosecutions is developed, new options arrive. Dealing with the perpetrators of state crimes, of collaboration with an occupying army, or with the repressive order requires a choice between two logics: the first leads to their exclusion, the other to inclusion and/or reintegration. That is the second issue. Criminal justice after transition differs from ordinary justice because it addresses simultaneously a political and a legal agenda. Blending the two is a third challenge. Then, there is the question of who should receive privileged attention in tackling the pain of the past: those who are responsible for the sorrow, or the victims. Finally, finding an acceptable balance between forgetting and remembering is a fifth critical challenge.

Within comparative political sciences, the Spanish transition has been oft en praised as a model to follow. Spain's democratisation process has been presented as one of the most peaceful and successful democratic transitions in the recent decades. The traumatic memory of the population after a cruel civil war and a long-lasting dictatorship was not easy to overcome. However, for many authors, the democratisation process facilitated ‘national reconciliation’ among Spaniards. According to the same thesis, the basis for the peaceful and successful stabilisation of democracy in Spain was precisely the decision to leave behind the thorniest aspects of the past.

In the last years, however, different voices have been increasingly claiming that the Spanish transition was not as exemplary as it has been portrayed, mainly because it failed to provide justice and truth to the victims of Francoism. Moreover, and contrary to the most accepted version, it was not a peaceful process either; indeed, political violence was among the features of the democratisation period. Beyond mere description, many of those who defend this new reading of the Spanish transition also claim that it is still necessary today to correct the deficiencies inherited from that period in terms of accountability, truth, and reparations.

In this chapter, we examine in detail the origins and later evolution of transitional justice (hereafter, TJ) in Spain, with the aim of contributing to this discussion by looking into how such TJ framework has been progressively evolving in the Spanish case. In the first section we will present the most relevant historical and legal antecedents of TJ policies in Spain before Francoism. In the second section, we will discuss the irruption of TJ policies during the Spanish democratic regime established from Franco's death in 1975 until the creation of the Association for the Recovery of Historical Memory (Asociacion para la Recuperacion de la Memoria Historica, ARMH) in 2000. In the third section, we will deal with what have been called the post-TJ period, which started in 2000, reaching a peak in 2007 with the approval of the so-called “Historical Memory Law” and remains open until today. In the fourth section, we will offer an overview of the state of Spanish political culture regarding the past. Finally, we will end the chapter with a conclusive summary section.

PHASE I (BEFORE 10 MAY 1940): PRE-WAR LEGAL FRAMEWORK

A policy of neutrality, adopted in 1839, helped keep the Netherlands out of the First World War. In 1918, there was a general sense of relief that the fear of warfare on Dutch territory had not come true. In the second half of the thirties, that fear returned as a result of German rearmament and Adolf Hitler's confrontational politics. As before and during the First World War, the Dutch government had to prepare for possible war and occupation. Especially in regard to economic war preparations, it reverted to the experiences and the emergency measures of 1914–1918. Deliberations on the character of a possible German occupation were influenced heavily by memories of the particularly stringent German occupation regime in neighboring Belgium during the First World War. The Dutch government saw no alternative to looking into the settlements of international law regarding the mutual rights and duties in the relation between an occupying power and the interior administration of an occupied country (the Laws and Customs of War on Land, as formulated at the Hague Convention of 1907).

As the general legal framework for the penalisation of civilian collaboration with occupying forces, article 102 of the Dutch penal code forbade “assisting the enemy”. The article included as “assistance” services to the enemy like espionage and acting as a guide. There was a similar article regarding collaboration in the military penal code. The position of civil servants under a possible occupation was not legally regulated, but directives regarding this problem were issued. In May 1937, the government formulated a set of “Instructions” (Aanwijzingen), which contained rules concerning the correct attitude of governing bodies and civil servants in the case of an enemy attack. The Instructions were similar in meaning to a 1915 memorandum on the same matter. The basic principle was that governmental services should keep on functioning as well as possible in the interest of the general population. The civil servants were instructed to decide for themselves in good conscience if a certain measure served the occupier more than the population. At the municipal level in particular, civil servants were explicitly instructed to refuse cooperation to measures that could directly benefit the enemy's war effort.