NMT II Case 9

From time to time the word "reprisals" has appeared in the Einsatzgruppen reports. Reprisals in war are the commission of acts which, although illegal in themselves, may, under the specific circumstances of the given case, become justified because the guilty adversary has himself behaved illegally, and the action is taken in the last resort, in order to prevent the adversary from behaving illegally in the future. Thus, the first prerequisite to the introduction of this most extraordinary remedy is proof that the enemy has behaved illegally. While generally the persons who become victims of the reprisal are admittedly innocent of the acts against which the reprisal is to retaliate, there must at least be such close connection between these persons and these acts as to constitute a joint responsibility.

Article 50 of the Hague Regulations states unequivocally:

"No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible."
Thus when, as one report says, 859 out of 2,100 Jews shot in alleged reprisal for the killing of 21 German soldiers near Topola, were taken from concentration camps in Yugoslavia, hundreds of miles away, it is obvious that a flagrant violation of International Law occurred and outright murder resulted. That 2,100 people were killed in retaliation for 21 deaths only further magnifies the criminality of this savage and inhuman so-called reprisal.
Hyde, International Law, Vol. III, page 35, has this to say of reprisals:

"A belligerent which is contemptuous of conventional or customary prohibitions is not in a position to claim that its adversary when responding with like for like, lacks the requisite excuse."
If it is assumed that some of the resistance units in Russia or members of the population did commit acts which were in themselves unlawful under the rules of war, it would still have to be shown that these acts were not in legitimate defense against wrongs perpetrated upon them by the invader. Under International Law, as in Domestic Law, there can be no reprisal against reprisal. The assassin who is being repulsed by his intended victim may not slay him and then, in turn, plead self defense.
Reprisals, if allowed, may not be disproportionate to the wrong for which they are to retaliate. The British Manual of Warfare, after insisting that reprisals must be taken only in last resort, states:

"459.....Acts done by way of reprisals must not, however, be excessive and must not exceed the degree of violation committed by the enemy."
Similarly, Article 358 of the American Manual states:

"(b) When and how employed:
Reprisals are never adopted merely for revenge, but only as an unavoidable last resort to induce the enemy

to desist from illegitimate practices.....
(c) Form of reprisals:
The acts resorted to by way of reprisals.....should not be excessive or exceed the degree of violations committed by the enemy."

Stowell, in the American Journal of International Law, quotes General Halleck on this subject:

"Retaliation is limited in extent by the same rule which limits punishment in all civilized governments and among Christian people -- it must never degenerate into savage or barbarous cruelty." (Stowell American Journal of International Law, Vol. 36, p. 671)

The Einsatzgruppen reports have spoken for themselves as to the extent to which they respected the limitations laid down by International Law on reprisals in warfare.

MILITARY TRIBUNAL II

SITTING IN THE PALACE OF JUSTICE

NUREMBERG, GERMANY

Reprisals