1 Introduction
If you were to ask the average Belgian about their understanding of the ‘notion’ of war, they would likely answer with something like ‘an armed conflict between two different state actors’. They would claim that Belgium is not currently at war. However, in recent years, politicians have frequently invoked the terms ‘War on Terror’ and ‘War on Drugs’ to describe situations involving the Belgian state and society. These wars have a different meaning, which cannot be understood in the traditional sense of war. In these wars, the enemy does not themselves from the general population, as they manifest themselves in ‘criminals’, ‘terrorists’ or ‘migrants’. The ‘enemy’ this time is “presented simultaneously as being both ‘one of us’ yet somehow different or ‘other’ to us” (Greene Reference Greene2018, p. 36). Their presence in society forms a constant threat, consequently giving these wars no direct endpoint. Given this lack of endpoint, these wars tend to blur the lines between normalcy and emergency. At the same time, since they are framed as wars, policy-makers tend to respond with the means of war, blurring even further the lines between the means of normalcy and those of emergency. Although it is generally assumed that the Belgian Constitution prohibits the use of (exceptional) emergency regimes (Cercel Reference Cercel2022), a new debate emerged in Belgian politics about their use to tackle these wars. In 2016, in response to the terrorist attacks, the Flemish political party N-VA published its security memorandum called Niveau V, in which it explored the possible use of the state of siege in the fight against terrorism (N-VA 2016). The party argued that the Royal DecreeFootnote 1 that regulates the state of siegeFootnote 2 was granted the legal status by the Court of Cassation in 1919 and therefore was applicable. This creates a contradiction between the legality of the Royal Decree on the state of war and the state of siege, upheld by the Court of Cassation, and the traditional understanding of the relationship between exceptional emergency measures and the Belgian Constitution, as Article 130 of the 1831 Constitution explicitly states: ‘The Constitution cannot be suspended, either in whole or in part.’Footnote 3
However, this article must be put into context. First, based on his historical analysis of the article, Rochtus (Reference Rochtus2024) points out that this article should be understood as ‘the Constitution cannot be suspended, either in whole or in part, by the constitutional powers’. This, therefore, refers exclusively to ‘deliberate legal norms enacted by (one of) the constitutional powers, which explicitly aim to temporarily suspend the Constitution or part thereof’ (Rochtus Reference Rochtus2024, p. 397). Second, various legal scholars refer to the ambiguous nature of the term ‘suspend’. What exactly does ‘suspend’ mean, and how does this relate to violations and restrictions of fundamental rights? Although it is not possible to go into greater depth on the whole discussion surrounding the term ‘suspend’, these starting points generally offer opportunities to install ‘crisis regimes’ without conflicting with the Constitution. The two exceptions that find their basis in these starting points are ‘force majeure’ and ‘threat to the independence of the country’. In both cases, the constitutional powers are forced to deviate from the constitutional framework. In this situation, the ‘temporary suspension of a legal norm’ is not caused by another legal norm enacted by (one of) the constitutional powers, but by an external factor. The logic behind this is the logic of necessity. Consequently, it is argued here that this ‘necessity’ falls outside the scope of Article 130, because it no longer concerns a deliberate act by one of the constitutional powers temporarily suspending a legal norm. It should be noted that this reasoning can only be applied to the functioning of the institutions, and not to the suspension of fundamental rights. This is because the Belgian legal system allows for the restriction of fundamental rights. It is generally difficult to see how ‘such a situation could require the suspension of fundamental rights and, consequently, the circumvention of a posteriori judicial review, when there is the possibility of restricting fundamental rights’ (Van Haegenborgh and Verrijdt Reference Van Haegenborgh and Verrijdt2016, p. 19).
In its original form, the state of siege was a military measure designed to deal with a military post under siege, in which the military commander assumed emergency powers. In practice this meant that:
‘in the event of an actual attack on a military post or position, or when, due to their encirclement by enemy troops, communications to and from the location were intercepted at a distance of 1,800 toises from the crests of covered roads’ (Reinach Reference Reinach1885, p. 94), the full powers of the government were transferred to the general in command of the besieged fortress (Rossiter Reference Rossiter1948, p. 80). It was a solution to a problematic factual situation in which the constitutional means (of normalcy) would fall short. Over time, it gradually acquired a political character, in which the state could declare a state of siege upon an open, civil area in order to tackle internal and political turmoil. This shift from a factual situation to a ‘fictive’ declaration would lead the way to the abuses of emergency powers. It was therefore that the Belgian constitutional drafters decided that the French statutes in which the state of siege found its originFootnote 4 should be abolished (Huyttens Reference Huyttens1844, p. 465). A formal annulment did not occur; in addition, research (Dessantis Reference Dessantis2026) shows that the use of the state of siege as a public order measure did not end with the adoption of the Constitution: due to (1) the absence of a clear legislative framework, (2) a pragmatic approach to old legislation and (3) the underlying power dynamics among the elite, the army and the masses, the state of siege continued to be applied by both the government and the military until it was finally regulated by the Royal Decree of 1916 on the state of siege and the state of war.
Two significant issues arise regarding the Royal Decree of 11 October 1916 on the state of war and state of siege. First, the law grants the possibility to declare a state of siege during ‘times of war’.Footnote 5 The term ‘times of war’ is equated with ‘state of war’ as regulated by the royal decree. Although both terms have different definitions in the Belgian Constitution, both terms within the royal decree rely on the definition provided in Article 58 of the Military Criminal Procedure Act of 1899Footnote 6 , which refers to ‘the time beginning on the day determined by royal decree for the mobilisation of the army, and ending on the day the army is restored to peace by royal decree’ (Gerits Reference Gerits2019). The army can only be mobilised in the event of a threat of war or external danger. While political mobilisation should theoretically be ruled out, this does not guarantee against abuse (Ganshof van der Meersch and Diderich Reference Ganshof van der Meersch and Diderich1953; Gerits Reference Gerits2019). Consequently, the state of war, as defined in the royal decree, does not stem from an actual factual determination but from a declaration. Furthermore, the requirements for declaring a state of siege are not based on the factual ‘besiegement’ of the area. It has to be within ‘times of war’. The fundamental problem that emerges is that this creates the legal possibility for constitutional rights (such as freedom of the press) to be suspended based on a proclaimed rather than a factual situation, which contradicts the principle of actual necessity, ‘a principle that cannot be determined except from the circumstances for which they may serve’ (Romano Reference Romano1909, p. 364; Agamben Reference Agamben2005, p. 28). In addition, the measures restricting freedomFootnote 7 contained in the decree-law are generally considered to be ‘such a serious infringement of Title II of the Constitution as to amount to a de facto suspension of the provisions concerned’ (Van Haegenborgh and Verrijdt Reference Van Haegenborgh and Verrijdt2016).
This brings us to the core question of this article: if the law lacks a constitutional basis, why and how was it created? The logical answer is, of course, that it was enacted during wartime, when such measures were deemed necessary. However, as Monballyu’s research (Reference Monballyu2015) shows, the necessity of the measures included in the decree-law was never subject to judicial review. The Court of Cassation merely provided a justification for governing by decree-laws during World War I, thereby granting them the status of law. As a result, the Court held that judges could assess neither the appropriateness nor the constitutionality of the decree-law. Since the notion of necessity cannot be found in case law, and as this article seeks to go beyond the mere concept of ‘war’ as the sole motivation for the decree-law, its aim is to uncover what necessity actually means by examining the reasoning of the drafters of the decree-law. The research question will therefore be formulated as follows:
What were the reasons for the creation and declaration of this royal decree, and how was it justified by its drafters?
Since the law does not answer this question, as it is considered unconstitutional, this article will examine it from a socio-political-historical perspective, drawing on both the extensive literature on World War I and the archives. The dual concepts of agency and structure will be used as a focal point (Hay Reference Hay2002). The capacity of actors to take deliberate actions to achieve their goals (agency), and the context in which social, political and economic events occur, shaping and being shaped by those actions (structure), are central to this investigation. Who, and under what circumstances, decided on the creation of this royal decree? The challenge lies in estimating the extent to which the actor and the event were influenced by the structure, how the structure and the event are influenced by the actor and finally, how the structure and the actor are influenced by the event. Additionally, it is necessary to differentiate the ways in which the actor is aware of being influenced, as well as the speed and timing of these mutual influences. This difficulty arises because, despite the historian’s advantage of looking at the past with a reflective perspective, unlike the actor, who likely is not fully aware of the extent of the influence of their structure and how they influence it, it remains challenging to assess correlation and causality through historical research, particularly archival research. This is due to the inherent limitations of archival sources, which are both (likely) incomplete and (potentially) inaccurate.
In addition, the problem with the archives lies in their sheer volume, which necessitated deciding which archives would ultimately be consulted to make the study feasible. Based on the World War I literature, the main actors in the legislation on the state of siege were identified: the King, the Council of Ministers and the Commission responsible for examining the legal measures to be taken with a view to the reoccupation of the territory.Footnote 8 As a result, a number of specific archives were consulted at the National Archives and the Royal Palace Archives, including the personal archives of the then Prime Minister Charles De Broqueville, the then Minister of Justice Henri Carton de Wiart and the archives of the King’s Cabinet of Albert I. It became apparent that the minutes of the Council of Ministers, as well as the minutes of the Commission responsible for examining the legal measures to be taken with a view to the reoccupation of the territory, both found in the personal archives of Charles De Broqueville, were of particular interest. Although the Royal Palace Archives contained information on the legislation concerning the state of siege, this was not as detailed as the minutes of the Council of Ministers and the Commission.Footnote 9
As the name suggests, the minutes of the Council of Ministers refer to the various meetings of the Council, which were significant for the legislative process, since, with Parliament unable to convene due to the war, the Council of Ministers assumed this legislative role alongside the King. The minutes of the Commission responsible for examining the legal measures to be taken with a view to the reoccupation of the territory were drawn up by a committee established under the chairmanship of Carton de Wiart, Minister of Justice, to propose a draft that would later become the Royal Decree of 11 October 1916 (De Lichtervelde Reference De Lichtervelde, Yseux and Dejongh1918). During the first meeting, Carton de Wiart explains that the Commission’s role is to examine and prepare, for submission to the Government, draft legislative and administrative measures that should be kept in reserve with a view to the reoccupation of the territory. The Commission consisted of nine members from various ministries and cabinets, tasked with answering eight questions related to Belgium’s liberation.Footnote 10 The first question addressed the drafting of a royal decree concerning the state of war and the state of siege. The Commission decided to distribute these questions among its members, resulting in M. Dullaert (Director General of the Ministry of Justice), Chevalier Ernst (Head of the Cabinet of the Ministry of Justice), Cattoir (Head of the Cabinet of the Ministry of the Interior), Féron (Director of the Cabinet of Count Goblet d’Alviella, Minister of State), Commandant Chabeau (Secretary of the Cabinet of the Ministry of War) and Count de Lichtervelde (Secretary of the Cabinet of the Minister of War) overseeing the drafting of legislation concerning the state of war and the state of siege.Footnote 11 In this way, the relationship between the King, the Council of Ministers and the Commission is structured: the commission’s proposals were forwarded to the Council of Ministers, which amended the royal decree before submitting it to the King for final approval and promulgation.Footnote 12
2 Belgium during World War I: structure and key actors
2.1 King
World War I must be understood as a total war: the distinction between the military and civilian spheres faded, making the entire Belgian society deeply embedded in the war effort. Civilians were mobilised, resources were commandeered and individuals were, in essence, reduced to mere components of the wartime economy (Vrints Reference Vrints2024). This reduction was, in a sense, characterised by sacrifice, a recurring theme throughout the period. Everything revolved around serving the military objective: the liberation of Belgium. At the same time, it should not be overlooked that the themes of sacrifice and a non-political discourse were sometimes exploited, effectively putting political disputes on hold (Schepens Reference Schepens1982).
‘I have gathered you, Gentlemen, to allow the legislative Chambers to join in the momentum of the People with the same sense of sacrifice. You will know, Gentlemen, how to urgently take all the measures required by the situation, both for war and for public order.’Footnote 13
From a Belgian perspective, World War I can be divided into three phases: invasion, stabilisation and liberation (Grisard Reference Grisard1982). Each phase was characterised by different objectives in relation to the danger or the threat.Footnote 14 The invasion phase saw the state and civil society shocked and unprepared for an invasion. Overconfidence in Belgian neutrality and its independence, combined with years of anti-military sentiment, left Belgium unprepared for the reality of the German invasion (Draper Reference Draper2019). When the atrocity eventually happened, the members of the Chamber of Representatives and the Senate convened in Parliament to enact the law of 4 August 1914, concerning les mesures urgentes nécessitées par les éventualités de guerre (translated in English: the urgent measures required in the event of war). Footnote 15 The law aimed to grant the King and his government the necessary powers to manage the country during the war by giving them the power to legislate through decree-laws. It was aimed at dealing with ‘food, bank deposits, import and export of goods, and military aspects’, wherein the law wanted to give the King, for example, ‘the possibility to intervene in private law relationships by suspending the execution of civil and commercial obligations’ (Vandenbogaerde Reference Vandenbogaerde2018, p. 97). Eventually, this mode of operation persisted throughout the entire war, as the Parliament never convened during its duration (Monballyu Reference Monballyu2015). From that point onward, the government operated outside the regular constitutional framework, even though constitutional reasoning can be found within this modus operandi. It is within this deviation that the first and second declarations of the state of siege were proclaimed, with the first state of siege declared on the same day, 4 August 1914, as the enactment of the aforementioned law. The King issued a royal decree on 4 August placing the military strongholds of Antwerp, Liège and Namur under a state of war.Footnote 16 A second royal decree, also dated 4 August, declared the provinces of Limburg, Liège, Luxembourg and Namur to be under a state of siege.Footnote 17 On 7 August another royal decree declared the state of siege in the rest of the country.Footnote 18 This course of action was driven by the government’s intent to prevent military authority from being paralysed by unclear instructions and by the apparent contradiction between the regulations for fortress defence, which granted extensive powers to the governor of a fortress, and the silence of more recent legislation (Dejongh and Yseux Reference Dejongh and Yseux1918). In this context, Belgium drew inspiration from the French statutes of 1791 and 1811 (De Lichtervelde Reference De Lichtervelde, Yseux and Dejongh1918).
Having played a major role in declaring the state of siege and in general managing the country, as part of the legislative branch and as head of the Belgian Army, the King’s position during the war, and even in the postwar period, was a topic of significant debate. Known as the Soldier King for his closeness to the population (Philpott Reference Philpott, Rowbotham and Glencross2018), Albert I saw it as his constitutional duty to lead and protect Belgium during the war, which led to tensions with the Council of Ministers (Velaers Reference Velaers2009). Due to the unique position of the King within the Belgian legal system, he is inviolable, and his actions are subject to ministerial accountability.Footnote 19 This system was designed as a reaction to the monarchical absolutism of William I,Footnote 20 ensuring that Parliament held more power than the King (Van de Putte and Clement Reference Van de Putte and Clement2018). The problem arose when this principle of inviolability clashed with political responsibility after Albert I accepted a more concrete role as Supreme Commander of the Army and Navy.Footnote 21 Albert I, taking on this role as a constitutional obligation, was wary of the General Staff, which often tended to rely on French military doctrine. By assuming supreme command, he hoped to subordinate the General Staff to his authority (Velaers Reference Velaers2009, p. 196). This created a constitutional dilemma regarding ministerial accountability. The question of who bore political responsibility for military command became unclear. According to Article 63 of the Belgian Constitution, the King was inviolable, while Article 64 stipulated that no royal act could take effect without a minister’s countersignature, thereby transferring full responsibility to the minister.Footnote 22 The King and his advisors interpreted these provisions narrowly, applying countersignature only to official royal acts, not to military orders issued as Commander-in-Chief. Since these military orders were not formally signed by the King, they did not require ministerial countersignature. Consequently, the King accepted political responsibility only for decisions classified as war policy, such as declaring war, mobilisation, forming alliances, calling on guarantors for assistance and determining the general war plan. Purely military decisions were left to the King and the General Staff (Velaers Reference Velaers2009, p. 205). But what is truly counted as a military measure in the context of an all-encompassing war? Did not all decisions ultimately fall under the umbrella of military objectives? At the time, Prime MinisterFootnote 23 Charles de Broqueville sought to maintain oversight through his confidant, Antonin de Selliers de Moranville, who served as Chief of the General Staff and reported directly to the minister. Nonetheless, the King gradually marginalised Selliers, leading to the latter’s resignation and leaving the position of Chief of Staff temporarily vacant. In March 1915, Félix Wielemans was appointed Chief of the General Staff, but according to Selliers, Wielemans acted more as a ‘disciplined and faithful observer of Captain-Commander Galet’s suggestions’. Émile-Joseph Galet, a close military advisor to the King, was viewed by some as the de facto Chief of the General Staff (Velaers Reference Velaers2009, p. 218). Both Galet and Albert I felt a certain mistrust toward those who did not envision a higher purpose for the Belgian state or who did not prioritise its preservation. They sought to preserve sovereignty and resist undue foreign influence, which they considered essential for Belgium’s interests. This approach was evident in Albert’s diplomacy with the Allies and his opposition to those who did not share his vision of national unity. The King aimed to consolidate as much responsibility as possible, not out of a desire for power, but to safeguard the survival of the Belgian state and, more importantly, the Belgian nation as he envisioned it (Velaers Reference Velaers2009).
2.2 The government
In reality, the King did not govern alone, since the ministers were politically accountable to the King. The government had retreated to the French city of Le Havre during the war. The discourse adopted by the government was characterised by the concept of the Union Sacrée (Sacred Union), which was strongly encouraged by the King and was an idea inspired by the French and the British. The Union Sacrée was intended to suspend hostilities between the opposing three political parties (Catholics, Liberals and Socialists), to achieve the liberation of Belgium. This ‘national unity’ began with King Albert I, who decided on 2 August 1914 to grant the title of Minister of State to three opposition leaders: Count Eugène Goblet d’Alviella (Liberal), Paul Hymans (Liberal) and Émile Vandervelde (Socialist). Despite these appointments, the government initially remained predominantly Catholic, based on the belief that the war would be short-lived. However, as it became increasingly evident that the war would drag on, pressure grew to establish a true government of national unity, similar to those in England and France. Such a government would not only be more representative but also enhance its legitimacy among the population by symbolising national unity (Schepens Reference Schepens1982; Gerard and Verleden Reference Gerard and Verleden2019). On 18 January 1916, King Albert went even further by signing six royal decrees at his headquarters, including one that added Count Eugène Goblet d’Alviella, Paul Hymans and Émile Vandervelde as members of the Council of Ministers without portfolio. This completed the final step in transforming the symbolic Union Sacrée into an actual political reality, the first time in its history.Footnote 24 However, in the absence of Parliament, no new government could technically be formed. This was because the government from 1914 had received the confidence of the whole Parliament, and it was not possible to create a new government with the same legitimacy and authority as that granted in 1914 (Schepens Reference Schepens1982). In practice, the making of this unity transcended constitutional principles.
‘The moment when all of Belgium rose to defend its rights and honour, a national spirit was seen replacing party politics everywhere. In the face of danger, Parliament, united in thought, placed its utmost trust in the King’s Government.’Footnote 25
The justification was found in trust, consensus and unity. This justified the inclusion of socialists and liberals as a moral imperative to ensure national unity during the war and to prepare for postwar recovery. Additionally, the precedent of appointing ministers without portfolio, who were already part of the initial government, further provided a constitutional basis for this expansion. Moreover, King Albert I strongly supported these measures, interpreting the Constitution flexibly to safeguard national interests (Schepens Reference Schepens1982).
2.3 The population
Whether the same unity, though this unity must be nuanced,Footnote 26 existed in the occupied territories is debatable (Thielemans Reference Thielemans1991). Broadly speaking, there was a certain level of unity among the population, but it manifested differently across various social strata (Deruytter Reference Deruytter, Wouters and Van Ypersele2018). Furthermore, there were individuals who indeed adhered to discourses that diverged from the idea of Belgian unity. The year in which the second state of siege was proclaimed, 1916, is also described in history books as a turning point in the war for Belgium (De Schaepdrijver Reference De Schaepdrijver1999). Despite the dire economic conditions in the occupied territories, the Francqui Doctrine, the agreement between Belgian business elites and the occupier to resume industrial production in exchange for the safeguarding of Belgian food production, implemented through the National Committee for Relief and Food (NCRF), functioned relatively effectively until the summer of 1916. With the consent of the British, the committee was able to ship food to Belgium through an international, mainly American aid organisation chaired by future president Herbert Hoover (Vrints Reference Vrints2015). This contributed to keeping social tensions in Belgium relatively under control, preventing them from escalating into pronounced political or ideological conflicts (Majerus and Vrints Reference Majerus, Vrints, Vrints, Van Ginderachter and Aerts2014). Under the leadership of entrepreneur Emile Francqui, the NCRF emerged as a shadow government within the occupied territories, serving as a precursor to a government of national unity (Gerard and Verleden Reference Gerard and Verleden2019). This man, Francqui, was more than an entrepreneur; he was successively director, vice-governor and governor of the most powerful Belgian holding company, Société Générale de Belgique, and held several important positions in the financial and economic world during his lifetime. It was not for nothing that he was nicknamed ‘the viceroy of Belgium’ (Matheve Reference Matheve2016).
By the summer of 1916, the limits of the Francqui Doctrine were becoming increasingly clear. Tensions arose from material shortages, which sparked resentment about unequal distribution (Majerus and Vrints Reference Majerus, Vrints, Vrints, Van Ginderachter and Aerts2014). There arose an aversion to the so-called ‘profiteering’ in material terms, which was shared by the vast majority of the population (Vrints Reference Vrints2014). These material conditions also fuelled significant changes that the elite perceived as threats to social stability. These threats appeared not only as outright violence, manifesting as banditry, but also as (potentially revolutionary) political ideas, in the form of (hunger) protests (De Man Reference De Man1920; Majerus Reference Majerus, Chickering and Funck2004; Thielemans Reference Thielemans1991). These protests, which were predominantly targeted at local authorities, were constrained by limited mobility (Majerus Reference Majerus, Chickering and Funck2004). At the same time, the stance of the socialist workers’ movement played an important role in the absence of more organised, national actions, as it upheld the patriotic truce (Vrints Reference Vrints2015). Banditry was primarily carried out by members of the poorer classes. Leloup et al. (Reference Leloup, Rousseaux and Vrints2014) attempted to determine whether this banditry could be linked to a form of Hobsbawm’s (Reference Hobsbawm2000) ‘social banditry’. However, it quickly became evident that it lacked protection for the poorer classes and was primarily driven by material desperation. Nonetheless, it instilled fear among the elite of a violation of their established norms, fuelling anxiety about a potential regression into a state of ‘lawlessness’ (Leloup et al. Reference Leloup, Rousseaux and Vrints2014).
Tensions also arose regarding the attitude toward the occupier. German tactics as a wholeFootnote 27 led to two responses (Vandeweyer Reference Vandeweyer1996). First and foremost, there was an anti-German sentiment. This anti-German attitude logically developed as a result of the occupation and the repressive measures imposed on the Belgian population (Vrints Reference Vrints2011). However, the anti-German sentiment had a counterpart: the attitudes of Flemish, that is, Dutch-speaking, activists and passivists. Historical literature often describes World War I as the moment when the perceived incompatibility between Flemish and Belgian national identities emerged (De Schaepdrijver Reference De Schaepdrijver1999). While Belgian patriotism flourished during the war, Flemish nationalism also experienced a notable rise, partly facilitated by the German Flameningenpolitik. This policy sought to exploit Flemish grievances stemming from the dominant French-speaking position in Belgian society. The attitudes toward Flemish activists and passivists were complex. Schepens’s research (Reference Schepens1982) highlights that both the government and King Albert regarded the Flemish Question as a secondary issue. The government argued that, given the absence of Parliament, it lacked the legitimacy to address such matters and that the war was not the appropriate time to tackle political issues, effectively sidelining the question (Deckers Reference Deckers2002; Schepens Reference Schepens1982). Nevertheless, measures were taken during the war that, while not initially intended for this purpose, were used to address the problem. For instance, the Royal Decree of 8 April 1917 on crimes and offences against state security,Footnote 28 originally designed to combat espionage, was later repurposed to suppress Flemish activism (Deckers Reference Deckers2002). Although the harsh conditions in the trenches and the prolonged duration of the war likely played the most significant role in the declining morale among soldiers, it can be argued that this decline was further exacerbated by the Flemish grievances. While the exact Flemish-Walloon ratio within the army remains a topic of debate, it is evident that a majority of soldiers came from the Flemish countryside. The dominance of the French language among the officers only compounded the issue, contributing (with other factors) to dissatisfaction and low(er) morale (Spijkerman Reference Spijkerman2021; Vanacker Reference Vanacker2000). Recognising the importance of morale and cohesion, the Belgian government took the matter seriously. In 1916, it initiated efforts to coordinate propaganda campaigns aimed at portraying Belgium as a determined and valuable ally, seeking to bolster both the soldiers’ spirit and international support (Rochet Reference Rochet2016, p. 28).
2.4 Reflexion
The conclusion that can be drawn from the above description of the structure and the actors is not necessarily that there was a dichotomy present between, on the one hand, the elite, which included the King and the government, and on the other hand, the middle and lower classes. But at the same time, it is hard to argue that they were on the same level. The difference in material conditions and the territorial dispersion led to some tensions. With regard to the former, we have a difference between politicians who are shaping the policy from a ‘safe haven’, namely Le Havre, while others were fighting at the front or were suffering in the occupied area. At the same time, we see that a large amount of the population was dealing with hunger, where there was talk of unequal distribution. The collective cause tempered the frustrations, but at the same time, it became a root of the question: who is suffering the most for the collective cause? Therefore, the conditions could lead to a revolt, as we will see more in the next part, also perceived by the ‘elite’.
3 The path to the Royal Decree of 11 October 1916
I argue that within this atmosphere of uncertainty, the government felt compelled to act, primarily through legislative measures which gave them the means to suppress a possible revolt. Although the specific event that prompted this realisation remains unclear, de Lichtervelde notes that the need to amend the Royal Decrees of 4 and 7 August 1914 concerning the state of siege arose after disputes between citizens and military authorities in the unoccupied territory. As mentioned, the military violated constitutional rights under the legal framework established in the first declarations of the state of siege (De Lichtervelde Reference De Lichtervelde, Yseux and Dejongh1918; Monballyu Reference Monballyu2015). In addition, the stance of Francqui, as reflected in the King’s diaries, should not be overlooked regarding this matter. On 5 March 1916, in a meeting with the King, the Marquis de Villalobar, Spanish envoy and the banker Baron Léon Lambert, Francqui discussed the possibility of applying the state of siege after the war, given the contemporary situation in the occupied territory. He proposed postponing elections, implementing the state of siege and establishing a strong government in which the monarchy would assume a greater role, fearing an outbreak of social unrest among the unemployed after the war. In the same meeting, Baron Léon Lambert pointed out the possible changes in ‘agrarian Europe’: ‘(It) will have ceased to exist; a world will collapse. The war has, above all, depopulated the countryside. The workers have been employed in the armament factories; they will be strong and will demand their rights collectively and en masse’ (Thielemans Reference Thielemans1991, p. 65). On 17 March, the three envoys returned to De Panne from Brussels after a stay in Paris. This time, Francqui was more pessimistic about the fate of the Allied armies and believed that a revolution would break out when peace came (Thielemans Reference Thielemans1991, pp. 63–67).
On 16 July 1916, Minister of Justice Carton de Wiart came to visit the King with regard to a commission, composed of secretaries from the various ministries, which had just been set up to take urgent measures when the enemy had withdrawn and the Belgian authorities were not yet able to function. Carton de Wiart discussed with the King the idea of installing a state of siege or other exceptional measures after the war. The minister added that the magistrates he had spoken to were in favour of extreme measures to prevent unrest, but that the politicians thought that authority should be exercised with moderation and that we should not stray too far from the traditions to which the people are accustomed. Initially, the King opposed the idea of the state of siege since he did not want to use repressive measures against the Belgian population, nor did he want to create a division within the population (‘loyalists’ vs. ‘traitors’) (Thielemans Reference Thielemans1991, p. 275). Nonetheless, on 25 July 1916, although the commission’s minutes refer to 24 July, a special commission convened at the Hôtel de Sainte-Adresse under the chairmanship of Carton de Wiart, Minister of Justice, to propose a draft that would later become the Royal Decree of 11 October 1916 (De Lichtervelde Reference De Lichtervelde, Yseux and Dejongh1918).Footnote 29
To provide guidance in analysing the Royal Decree on the state of war and the state of siege, it is helpful to categorise the types of measures it established. First of all, the measures were connected to the contextual objectives of the war, which can be divided into two main goals: regulating the unoccupied territory and liberating (and subsequently maintaining control over) the occupied territory. Within these contextual objectives, a distinction must be made between measures that are practical in nature, referring to military measures, and those that are descriptive in nature, referring to political measures. Military measures refer to the means necessary to achieve military objectives, with the army, in its entirety, serving as a practical tool to accomplish the goals determined by those in power. The army is not regarded as an autonomous governing body but rather as an instrument essential for defending and liberating the country. Political measures, within the framework of the royal decree, pertain to the distribution of power. This concept can be approached broadly and involves assigning authority to the appropriate individuals, with the definition of appropriate and the extent of their power determined by those already in positions of authority. Central to this notion is the question of legitimacy: who has the right to act, who does not and who is perceived as an outsider or even a threat to the existing power structure. In this context, the law is viewed as a tool to legitimise and regulate the distribution of power, defining who decides, what they are permitted to do and the limits of their authority.
4 Occupied Belgium
Due to the war, the civil authorities were weakened and required to co-operate with military authorities. This necessitated clearer agreements to avoid conflicts to ensure maximum efficiency. This idea is expressed in Article 7, which states that during a state of war or state of siege, in the course of military operations, military authorities must, in cases of urgency and necessity, manage municipal affairs and provide for the population’s food supply.Footnote 30 A similar development can be observed in the replacement of regular courts with military tribunals. Regular courts ceased to function, and the Indictment Chamber and the Court of Assizes were located in enemy-occupied territory (Horvat Reference Horvat2009, p. 72). According to Article 20 of the law of 15 June 1899, military tribunals replaced regular courts in such cases.Footnote 31 In the same vein, measures deemed necessary for maintaining the external security of the army were implemented. During the state of war, the King was granted the authority to exercise all policing powers or delegate them to individuals appointed by royal decree.Footnote 32 This measure was expanded under the state of siege, where full authority was transferred to the Minister of War or, under his leadership and responsibility, to military authorities designated by the King.Footnote 33 These police powers are translated into ordinary powers and extraordinary police powers (Callebaut Reference Callebaut1959). Extraordinary police powers are found in Article 4, which granted the investigating officers of the military security service and gendarmerieFootnote 34 the authority to conduct searches, both day and night, in civilian residences or to carry out body searches.Footnote 35 Additionally, Article 4 allowed for the removal, by the specially designated military authorities under the leadership and responsibility of the Minister of War,Footnote 36 of individuals deemed harmful. These included repeat offenders, persons suspected of having relations with the enemy, foreigners and anyone whose presence could hinder military operations.Footnote 37 Similarly, censorship was introduced to counter two main threats: on the one hand, the dissemination of writings that could harm the morale of the army, and on the other, the dissemination of writings that could provide the enemy with information about military plans.Footnote 38
What stands out regarding the military measures is that the effectiveness of military operations legitimised the suspension of fundamental rights. The necessity of these measures was not really evaluated by the commission or the Council. A partial explanation for this might lie in the first declaration of the state of siege, which was implemented to prevent military authority from being paralysed by unclear instructions and by the apparent contradiction between the regulations for fortress defence. It therefore gave the power to decide what was seen as necessary to the army. However, this eventually clashed with the Constitution, as it not only involved a suspension of the constitutional framework but also a suspension based on French statutes.
‘The Chief of the General Staff declares that he must contradict the law daily while striving to remain within legality.’Footnote 39
The focus of the royal decree was therefore not on assessing the necessity of the measures. The military authorities held this power, while the government’s role was to justify the measures to the people and maintain control over the military authorities when providing these tools. The idea was that the declaration of the state of siege did not lead to regulation by the army, but to regulation of the army. It was the King and the government that still had the last say. The army may have had the power to assess what was needed, but it continued to act under the aegis of the government.
‘…the law is an instrument in the hands of the government. It will depend on them to apply it according to the demands of the moment, either with moderation or with rigor.’Footnote 40
The central idea behind this was that the King, through the Council of Ministers, had the right to legislate independently. This right was reaffirmed by the Court of Cassation in 1919. It linked the concept of the permanence of national sovereignty with the idea of the continuity of the legislative powerFootnote 41 when the two other branches of the legislature were unable to function (Monballyu Reference Monballyu2015). Consequently, the Court ruled that there was no difference between the laws established jointly by the King, the Chamber of Representatives and the Senate in times of peace and the laws that the King established independently in times of war. The Court of Cassation even stated:
‘…the King acted not by virtue of a delegation from the Nation, but embodied in his royal person all the attributes, all the powers, all the sovereignty of the Belgian people. It was the Nation that spoke through his voice.’Footnote 42
A fundamental distinction exists between the transfer of competences and the right to suspend fundamental rights. Since the Court equated decree-laws issued in wartime with laws established jointly by the King, the Chamber of Representatives and the Senate in peacetime, judges were unable to assess either the appropriateness or the constitutionality of these decree-laws. In addition, it argued that the King, in his capacity as the only remaining branch of the legislature, was competent to take the measures which he deemed necessary for the defence of the country and the safeguarding of its vital interests in the decree-laws of 11 October 1916, without properly assessing the necessity of the measures taken under these laws (Monballyu Reference Monballyu2015). In doing so, the decision granted legal form to his actions based on political reasoning rather than legal justification. Instead of questioning the government’s decision and measures, the Court supported the government, without providing proper justification for the suspension of certain fundamental rights. In this sense, the Court acted as an additional support to justify the measures taken in times of crisis, rather than functioning as an absolute guardian of the law. Even the King was aware that the measures taken were subject to dispute. This is evident from a letter exchanged between the King and his secretary, Max Leo Gérard. In this correspondence, Gérard sought to dissuade the King from following the proposals of de Broqueville made after the war, who aimed to amend Article 130 of the Constitution to prevent any conflict with the Royal Decree of 11 October 1916. Gérard feared that Parliament would not easily accept that the executive could act as it saw fit during wartime. A Pandora’s box threatened to open; controversy could arise, potentially implying that the government had overstepped its authority during the war (Van Drooghenbroeck and Velaers Reference Van Drooghenbroeck, Velaers and Vandenbossche2019).
It also has to be mentioned that, although the King remained the only functioning legal branch of the government, this did not mean that he acted alone. As the distinction between political and military matters became unclear during the war, the exact scope of the King’s ministerial responsibilityFootnote 43 remained unresolved. To address this uncertainty, the royal decree concerning the state of war and state of siege was used to clearly define the powers and limits of the military, thereby drawing a clearer boundary between military and political affairs. In doing so, the government sought to reduce the autonomy of both the King and the military, strengthening its own control.
‘Others,Footnote 44 considering that an organic conflict must be avoided through collaboration between the two concerned authorities, believe that the Royal Decree on the state of war and the state of siege will provide the Minister of War with a useful basis for achieving harmony in their relations.’Footnote 45
In its own way, the decree-law sought to provide a legal reasoning for the measures taken and establish a new form of political stability, one that was both resilient to the prevailing context and closely aligned with the former political status quo. The circumstances had reshuffled the political order: Parliament was out of the picture and the Constitution could no longer be followed. The Belgian state faced the dual challenge of ensuring its own survival while simultaneously preserving political and legal stability. The army acted according to what it deemed necessary, but it could not be granted the authority to define the boundaries of the law. At the same time, the government found itself in a position where it felt compelled to establish legal certainty for its actions. The decree-law was intended to solve this situation.
5 Liberated Belgium
Once again, the military-technical function is primarily concerned with ensuring the external security of the army and facilitating the military mission of liberation as efficiently as possible. The threat to the external security of the army extended to concerns about crimes and offences in cities and rural areas, as well as the unregulated use of weapons by civilians in the occupied territories.Footnote 46 There was uncertainty about the level of violence that might be present in the unoccupied areas, creating a sense of unease. From a military perspective, it was logical to minimise risks as much as possible. The army needed to be strengthened with additional powers and the full inclusion of the gendarmerie, which more or less possessed the technical capabilities to combat organised crime (Van Outrive et al. Reference Van Outrive, Cartuyvel and Ponsaers1991). As a military institution, the gendarmerie had followed the rest of the Belgian forces retreating beyond the Yser in the summer of 1914.Footnote 47 Therefore, their integration was pragmatically logical (Campion Reference Campion, Campion, López and Payen2019). Other measures included the centralisation of powers. This was driven by the weakening of local authorities and the desire to be prepared for possible liberation in the future. Additionally, the government wanted to ensure that it would not be dependent on the Allies.Footnote 48
However, the military ‘efficiency’ should not solely be examined through the availability of means or the military goals, but also through the political intended objectives of the makers of the decree-law. The King and the government sought to ensure the survival of the Belgian nation, with the notions of ‘national defence’ and the ‘restoration of order’ at the core of their reasoning. Yet, how should this be interpreted? Logically, the expulsion of German forces from Belgian territory was the immediate priority, but what followed thereafter? The transition to a conflict-free and secure Belgium did not end with military victory. Fragmentation and violence persisted, threatening the pre-war order. There was certainly a fear of revolution or a resurgence of social unrest. Moreover, it is crucial to recall that, before 1920, security was largely conceived as ‘the protection of the interests and property of a social elite’ (Campion Reference Campion, Campion, López and Payen2019). We can see this very clearly in the elite’s harboured anxieties about a descent into ‘lawlessness’.
How was this challenge addressed? Primarily through nation-building (Van den Berg Reference Van den Berg2018).Footnote 49 This was achieved by crafting a narrative in which the ruling institutions positioned themselves as the true guardians of Belgium’s national interests. The discourse of national unity and sacrifice was pivotal in this regard. The government and the King, for reasons they deemed legitimate, presented themselves as the central actors in the reconstruction of the Belgian nation. This required a centralisation of power. However, their authority also needed to be secured, which in turn necessitated consolidating the monopoly on violence through its formal and legitimate assertion. This was (partly) accomplished through the royal decree, which, although constitutionally questionable, derived its legal authority from the giving position of the King, providing a sufficient foundation of legitimacy. It is therefore unsurprising that the gendarmerie assumed a big role in the government’s policy of expanded powers. As Campion articulates:
‘they are excellent indicators of opposing tensions during end-of-war periods. They also have an active role in transitions, serving the State in its phase of restoration and standing up against its detractors in order to re-establish a monopoly on legitimate violence’ (Campion Reference Campion2015, p. 459). To return to, or rather reconstruct, the Belgium they envisioned, the ruling elite had to position itself as the legitimate representatives of the nation. This entailed not only defining the country’s postwar trajectory but also asserting the state’s exclusive right to exercise force within the occupied territories. By drafting the decree-law and pre-emptively declaring the state of siege in the soon-to-be-liberated regions, the King and the government effectively granted themselves the right and the means to deploy force, despite its evident deviation from the constitutional framework.
6 Conclusion
The leaders sought to save Belgium, in its broadest sense, from war as well as from instability. Their aim was not only to withstand the German invasion but also to address internal fragmentation and prevent a possible revolt. In doing so, they chose to relinquish part of what was once considered sacred: the Constitution.
The survival of the Constitution was no longer the central concern. The state powers no longer reasoned from the notion that their existence derived from the Constitution and that, without it, they would cease to exist. Instead, the focus shifted to the survival of the Belgian state itself. However, a distinction must be made between what attacks the state and what threatens it. The royal decree attempts to suggest that its primary focus is on addressing the external enemy, but this is not entirely accurate. It also derives its legitimacy from the perceived threat of the internal chaos or even of a possible revolt by the internal other, that the decree-law is meant to address/prevent. The state perceives an existential threat, whether real or imagined. It is through this fear that it asserts its sovereignty. In this context, the Constitution is no longer viewed as the state’s creator but rather as an obstacle to its survival. At the same time, the threat to the state also jeopardises political life. The survival of the state cannot be regarded as non-political, as the fear of internal chaos poses a direct threat to the political order. Francqui’s proposal that liberation should take place under the leadership of a strong government, with the monarchy at its centre, serves as an interesting example in this context. Within this context of survival, whether of the state or the political order, the government enacted measures to secure its authority, to preserve the status quo. To legitimise these actions, a legal framework was required, which took the form of the decree-law. Simultaneously, the royal decree had to ensure that the government retained the necessary means to enforce existing, or at least pre-war, norms that were under threat from the violence within the occupied territories. Thus, we must conclude that the raison d’être of the royal decree extends beyond the implementation of a purely military measure. It encompasses political elements, re-shaping the political landscape and entrusting its drafters with the necessary measures to ensure survival, whether of the state or the political order.
The relinquishment required legitimisation through something familiar and connected to the Constitution, namely, the law. This legitimisation took the form of the Royal Decree of 1916, which served a dual function: it was intended to legitimise the actions of its drafters by acquiring the status of law, while at the same time, its authority as a law derived precisely from the position of those same drafters. This created a self-referential legitimacy, where the executive power justified its own actions by issuing a legal framework that it itself had established. This raises the question of whether the royal decree, beyond its legal framework, could be applied in political disputes, much broader than the one discussed in this article. Must we see it as a tool that extends beyond the strict context of war? Could it serve the state in moments of turmoil by standing against its detractors, (re-)establishing a monopoly on legitimate violence and consequently suppressing political opposition?Footnote 50 At first glance, the blurring of the norm and the fact did not lead to arbitrary and dictatorial practices, since research (Horvat Reference Horvat2009; Simoens Reference Simoens, De Koster, Leuwers, Luyten and Rousseaux2012) demonstrates that the Belgian military judiciary did not indiscriminately prosecute or expel individuals. Yet, a closer examination of the royal decree seems necessary: how the daily lives of Belgian soldiers and civilians were subjected to the state of war and state of siege remains an open question, as law ultimately operates through practice. This article did not focus on its implementation but instead sought to explore the decree’s potential. By analysing its raison d’être and potential, this article gained deeper insight into the use and misuse of the state of siege within the Belgian context. It remains the most repressive and alien measure in Belgian constitutional history. From a distance, it evokes the very fear that was central to the creation of the Constitution: absolutism.
Acknowledgements
Views and opinions expressed are those of the author only and do not necessarily reflect those of the European Union or the European Research Council Executive Agency. Neither the European Union nor the granting authority can be held responsible for them. I am deeply grateful to my supervisors, Prof. Dr Cosmin C. Cercel and Prof. Dr Dirk Heirbaut, for their guidance and inspiration throughout the writing of this article. I am also sincerely thankful to my teammates – Dr Anna Piekarska, Louis Bremond, A. James Hannaford, Mihai-Claudiu Dragomirescu and Grigorij Tschernjawskyj – for their support and help with proofreading.
Funding statement
This study is part of the doctoral research project ‘Navigating Crisis: Emergency Legislation and Governance in Modern Belgium’, within the EMERGE research project (Grant agreement ID: 101087876), funded by the European Research Council.
Competing interests
No potential conflict of interest was reported by the author(s).
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