National Justice vs. Occupiers’ Justice? A conflict of competence in the Grand Duchy of Luxembourg during World War I

From the standpoint of international law, the entry of German troops on the territory of the Grand Duchy of Luxembourg in August 1914 violated the small state’s neutrality. While the occupying German authorities saw this act as an occupatio pacifica and the violation of its neutrality as a necessity in order to respond to a state of emergency, the Luxembourgish government and its justice administration had to cope with a new set of problems. The government, led by state minister Paul Eyschen, and the country’s monarchical leader Marie-Adélaïde pursued a strategy of appeasement towards the occupier, but also attempted to guard the sovereignty of their state as well as of their justice system. With the establishment of German military justice and a central police office in Luxembourg, the sovereignty of Luxembourg’s French-inspired justice was curtailed. However, German authorities made clear that they do not intend to challenge the spheres of local justice, unless cases of military relevance would arise. After all, Luxembourg was a country with close links to the Kaiserreich and an important industrial partner and therefore had to receive a privileged treatment compared to other occupied territories. However, with Luxembourgers being arrested by the German military and German soldiers committing crimes on Luxembourgish ground, the two justice systems, military and local, clashed. Since the status of the “friendly occupation” created legal misunderstandings, local judges, magistrates of the high court (cour supérieure) and German authorities stood in constant correspondence regarding a large amount of court cases and competence disputes. Consequently, in 1915, members of the high magistrate made their way to Frankfurt and Berlin to discuss the status of Luxembourgish justice. These discussions would eventually lead back to the question whether the country was truly to be considered a theater of war (Kriegsschauplatz). Overall, the discussion about the spheres of national and occupier justice became part of a much larger question: What is the legal nature of German occupation in Luxemburg? This paper explores how the two justice systems interacted and highlights court cases where their competences intertwined. These observations show how the local administration had to apply a mix of compromise and pertinacity in order to avoid open conflict but at the same time tried to keep Luxembourgish civilians out of the reach of German military justice. In doing so, several interesting observations can be made regarding the legal discussions between lawyers and prosecutors of both sides. Additionally, the paper offers an insight into a variety of local cases ranging from German soldiers marauding drunkenly on Luxemburgish streets to the arrest of a Luxembourgish judge and amateur historian. Overall, the presented paper attempts to show that while the local justice system was not altered by the occupier, it suffered a cut in its competence in certain spheres of civil justice. However, in comparison to the later Nazi occupation of Luxembourg, local justice administration and its personnel were kept in their place, but had to constantly negotiate certain aspects of civil and international law with the German authorities – often to their own disadvantage