BRITISH MILITARY COURT, LUNEBURG,
17TH SEPTEMBER-17TH NOVEMBER, 1945

Foreword  Part I  Part II  Part III  Part IV Part V Part VI Part VII Part VIII  Part IX Part X  Part XI Part XII 

Hearsay Evidence
Group Ciminality and the Scope of Regulation 8 (ii)

Other Procedural Questions

The Application by the Defence for the Severing of the Two Charges
Right of Accused to Have Evidence Translated
Presence of Witness in the Court Room
Illness of an Accused and its Influence on the Proceedings
The Recording of Special Finding

Questions of Substantive Law

The Sources of Substantive Law Regarding War Crimes
Responsibility of State and Individual for Breaches of International Law
The Nationality of the Accused
The Nationality of the Victims
Civilians as War Criminals
The Defence of Superior Orders

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Hearsay, or secondhand, evidence was admitted throughout the trial, both in the witness box and in the affidavits entered. In English Civil Courts, subject to exceptions, a statement, whether oral or written, made by a person who is not called as a witness, is not admissible to prove the truth of any matter contained in that statement.(Footnote 1: See Harris and Wilshere’s Criminal Law, Seventeenth Edition, p. 482)  Such evidence is rendered permissible by Regulation 8 (i) provided that it satisfies the conditions laid down therein. (Footnote 2:  See also the Report on the Dreierwalde Trial, on p. 85 of Volume I of this series)

Much discussion during the trial turned on the scope of Regulation 8 (ii) which was claimed by the Prosecution to be in point and which, as amended, provides :

" Where there is evidence that a war crime has been the result of concerted action upon the part of a unit or group of men, then evidence given upon any charge relating to that crime against any member of such unit or group may be received as prima facie evidence of the responsibility of each member of that unit or group for that crime. In any such case all or any members of any such unit or group may be tried jointly in respect of any such war crime and no application by any of them to be tried separately shall be allowed by the Court ".

One of the striking features of the type of warfare waged by the Axis Powers in general and by the Nazi Regime in particular was the phenomenon of mass criminality for which certain organisations were responsible. In a great number of official and non-official statements, programmes and recommendations, attention was drawn to this fact, which was bound to confront the authorities charged with the meting out of just retribution with a formidable task and with great difficulties of a procedural and perhaps also of a substantive legal nature. For instance, the United Nations War Crimes Commission adopted on 16^th May, 1945, a recommendation to its Member 

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Governments in which it was said that the Commission had "ascertained that countless crimes have been committed during the war by organised gangs, Gestapo groups, S.S. or Military Units, sometimes entire formations." In order to secure the punishment of the guilty, the Commission recommended, inter alia, the committing for trial, either jointly or individually, of all those who, as members of these criminal gangs, had taken part in any way in the carrying out of crimes committed collectively by groups, formations and units.

The British authorities, by enacting Regulation 8 (ii), would seem to have acted along the lines recommended as far as the burden of proof was concerned. Later, the Four Great Powers, in agreeing upon the Charter of the International Military Tribunal annexed to the Four Power Agreement of 8^th August, 1945, went still farther by enacting the provisions of Articles 9 and 10 of the Charter concerning criminal groups and organisations. It is to be noted, however, that the judgment of the International Military Tribunal placed a restrictive interpretation on these provisions and made important recommendations with regard to them. (Footnote: The Judgment of the International Military Tribunal, British Command Paper Cmd. 6964, p. 67)

In the Belsen Trial, each defendant was charged not only with taking part in the concerted action but also with offences personally committed and the Prosecutor stated in his opening speech (see Part I, p. 9) that, lest there should be the slightest shadow of doubt, no person had been brought before the court against whom the Prosecution would not produce some evidence of personal acts of deliberate cruelty and in many cases of murder. It is impossible to state whether and how far the court acted on Regulation 8 (ii) in convicting various accused. Reference may profitably be made, however, to the interpretations placed on this provision by Counsel.

Certain Defence Counsel claimed that the Prosecution were arguing that Regulation 8 (ii) made everyone who worked on the staff of Belsen or Auschwitz guilty of a war crime, ipso facto.

Both Defence and Prosecution were, however, agreed in fact that, before this provision could operate against any individual accused, it must have been proved that he knowingly took part in a common plan to ill-treat the prisoners in the two camps. The Prosecution claimed that, if such participation were proved, the insignificance of the accused’s part, or the lateness of his arrival, would not serve to excuse him. For example, anyone taking part in the selection parades, knowing their purpose, took part in deliberately organised murder. The Prosecutor admitted that, if participation in only a limited ill-treatment were proved, then the responsibility would be less. On the other hand he claimed that proof of a conspiracy could be deduced from the acts of the accused and could well arise between persons who had never seen each other and had never corresponded together. Furthermore, the accused were as guilty if they joined in conspiracy already formed as they would have been had they originated it.

Major Cranfield and Captain Phillips pointed out that it could not be said that some of the accused had any power at all to control conditions at Belsen. Major Munro suggested that, if Regulation 8 (ii) were applied, the 

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accused would only be held collectively responsible for acts of a type similar to their own offences. Proof that an accused beat prisoners would not make him responsible for another’s murder. Captain Roberts pointed out that common action was not the same as concerted action ; the latter involved prior planning with a definite end in view and full knowledge of the plan and of the end by the accused.

The Judge Advocate reminded the Court that, when they considered the question of guilt and responsibility under Regulation 8 (ii), the strongest case must be against Kramer, and then down the list of accused according to the positions they held.

At one point in the trial evidence was admitted by a witness as to acts of a person not identified by him. This incident illustrates both the application of Regulation 8 (ii), and the possible operation against Kramer of the principle of vicarious liability.

During the interrogation of the witness Abraham Glinowieski, the Prosecutor put to him a question concerning a person named Erich whom the witness had mentioned in his affidavit but whom he had not identified among the accused. Captain Corbally submitted that the Court ought not to hear this evidence. This witness had failed to identify Erich ; therefore this evidence was worthless, and not only against Erich himself. As it was a joint trial, Counsel considered himself entitled to object to it on behalf of the other prisoners whom he represented, and he thought that the other Defending Officers too would be entitled to object to it on those grounds. If the witness could not identify the man to whom he referred, the evidence was clearly worthless and it could only prejudice the whole mass of the prisoners before the Court.

The Prosecutor maintained that he was entitled to ask the question. He had a right to call evidence of cruelty and ill-treatment which went on at both camps, whether by the accused or not, so long as Kramer was the Kommandant of the camp and responsible for their behaviour. The accused were some of a group of people who set out to ill-treat and kill persons under their charge and evidence against other members of the group became evidence against them. That was the Prosecution’s case, and on that ground alone, the Prosecutor would submit that, even if it were quite impossible to say who Erich was, or even if he did not know his name, the fact that he was one of the guards under Kramer and was permitted. to behave in a way which the witness might say he behaved, made evidence of his acts admissible. 

Addressing Captain Corbally, the Judge Advocate said : " I would be prepared to advise the Court that if this witness does not identify the accused whom you represent, then I shall tell the Court in my summing up exactly what you are saying now, but I am bound to tell the Court that in my view it is allowed to hear this evidence on the grounds that the Prosecutor has put forward. So far as you are concerned unless he is identified I agree, you are entitled to say there is no evidence against the man you represent ".

Unless the accused was identified, the Judge Advocate agreed that Captain Corbally was entitled to say that there was no evidence against the man whom he represented.  (Footnote: In point of fact, Zoddel. See pp. 15 and 18) The Prosecutor said that he had made, up to then, 

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no attempt to connect offences with any particular person because the witness had not recognised anybody.

Captain Phillips pointed out that ordinarily this evidence would be in admissible as irrelevant and that it was only admitted by the special provision of Regulation 8, on the grounds that any one accused was to be held responsible for all the atrocities alleged to have been committed at Belsen. Before the Prosecutor could justify the inclusion of this evidence, however, he must satisfy the Court that, in the case of every one of the accused, there was at the moment sufficient evidence of concerted action to justify the admission of the evidence. Certain of the accused were only in Belsen for a very short period. Therefore, Counsel submitted that unless this evidence related or was shown to relate to specific accused, it was inadmissible on the grounds of irrelevance.

The Judge Advocate said he did not imagine for a moment that the Court would convict any of the accused merely because they happened to be at Belsen during the period charged. What the Judge Advocate thought the Prosecutor was going to say was : " If I establish that this camp was, in effect, itself a war crime in the way it was run, and I then show that one of the accused had an official position and was taking an active part in what was going on, then the Court will consider that ". The Judge Advocate did not quite see the relevancy of the Defending Officer’s remarks on this particular point because the Prosecutor was offering a picture of the camp and at any rate the evidence would be relevant as regards Kramer, the Kommandant. 

The Court decided to overrule the objection made by the Defence and invited the Prosecutor to continue with his examination.

The inclusion of this discussion on the effect of Regulation 8 (ii) in a section dealing with questions of evidence, and not in the later section on questions of substantive law, seems justified, despite the references made by the Prosecutor to the English law of conspiracy. (Footnote 1: See pp. 108-9.) Such arguments were intended simply to elucidate the meaning of the term " concerted action ", and Regulation 8 (ii) as a whole appears to be relevant only for purposes of assessing evidence. What is to be proved or disproved remains " the responsibility of each member of that unit or group for that crime ".(Footnote 2: Italics inserted) Evidence rendered admissible by the Regulation is not more than prima facie evidence. 

The Regulation, on the face of it, bears a resemblance to the rule of English criminal law that, after proof of a conspiracy between a number of persons, any act or statement by any one of them in futherance of the common design may be given in evidence against them all. (Footnote 3: See Archbold, Pleading, Evidence and Practice in Criminal Cases, p. 1419 ; ‘Kenny, Outlines of Criminal Law, 15^th Edition, pp. 99, 161 and 341 ; Harris and Wilshere, Criminal Law, 17^th Edition, p. 47) But the reason for this rule is that each of the parties to a conspiracy has, by entering into it, adopted all his confederates as agents to assist him in carrying it out. Consequently, it would not be safe to assume without further enquiry that this rule of English criminal law is an exact model for Regulation 8 (ii).

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On 3^rd October, 1945, Captain Corbally, in agreement with Captain Fielden, objected to a part of the affidavit of Bohumil Gromann because it alleged crimes commited by Dorr and Stofel on the march from the camp Klein-Bodungen to Belsen. No part of the evidence given in the affidavit was, in the submission of the Defence, connected with Belsen camp itself, and therefore it must be irrelevant on a charge which alleged that war crimes were committed by the accused whilst members of the staff of the Belsen camp. The accused were not at that time on the staff of Belsen. 

The Judge Advocate, in summing up the ensuing argument, advised the Court that if they were satisfied that these men were on the staff of Belsen Concentration Camp at the time stated in the charge (between 1^st October, 1942, and 30^th April, 1945), and that they were responsible for the well-being of persons interned there, it would be within the Court’s province to say that they did not find the charge bad because the crime occurred on the way to Belsen and not in Belsen itself.

The Judge Advocate reminded the Court that according to the Prosecution, although physically the accused were not at Belsen, they were going there. They had to deliver their convoy there and, claimed the Prosecution, it was reasonable for the Court to say that in substance the charge had been made out and that the two accused were on the staff of Belsen concentration camp. If they were not on that staff, on whose staff were they ? It was a matter for the Court to decide. As regards the victims, the Judge Advocate said that it was for the Court to decide whether it was proper to hold that they were persons interned in Belsen. They were undoubtedly going there and that is where they would have arrived if they had continued to the end of their journey. He advised the Court to examine the evidence in order to determine these questions.

The Court decided to admit the evidence. It was still open to the Defence to attack the weight thereof.

In his summing up, the Judge Advocate said, in this connection, that a man could not be convicted upon a charge which was not before the Court, but that if the Court were satisfied that the substance of the charge was proved they might find a person guilty though of an offence differing from the particulars set out in the charge. He did not think that it mattered very much, looking at the substance of the charge and not the shadow, whether the people in a convoy on its way to Belsen had already reached and become internees in Belsen. Both Stofel and Dorr were found guilty. 

On the 4^th October, 1945, Major Munro, on behalf of Ehlert, objected to part of an affidavit by Irene Loffler which did not refer either to Auschwitz or Belsen but to an incident which happened at Plaschau. Colonel Backhouse said that he was seeking to show that the accused were ill-treating prisoners before reaching Belsen, since it seemed from the cross-examination that the Defence intended to prove that conditions at Belsen were beyond their control. The Judge Advocate said that Ehlert appeared in both charges as an accused person, the suggestion being that the two concentration camps were in themselves a war crime and that this woman.

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was, along with others, a perpetrator of that war crime, This evidence was introduced to show she was systematically carrying out a course of conduct of this kind.

The Judge Advocate advised the Court that the law did admit evidence of that kind, and that if the Court decided to admit it it was legally in order. On the other hand, the Judge Advocate tended to the view of the Defence that it was not necessary to accept this evidence. The Court decided to omit the paragraph in question.

Nevertheless, at subsequent dates, evidence was admitted concerning the actions of various accused at camps other than Belsen and Auschwitz. For instance, Jutta and Inga Madlung bore witness to the good behaviour of Ehlert at Ravensbruck,(Footnote: See p. 46) and evidence of Burgraf’s misconduct at Drütte Camp contained in Kobriner’s affidavit was admitted. In connection with the second instance, the Prosecutor again explained that the course of the cross-examination had shown that the Defence intended to claim that conditions at Belsen compelled the accused to behave roughly. This evidence of an accused’s actions previously was intended to show that he was in fact acting in precisely the same way in a camp where those conditions had not arisen. (Footnote 2: See pp. 29 and 115) Again, Kramer admitted under cross-examination that he gassed persons at Natzweiller. (Footnote 3: See pp. 40 and 112)

D. OTHER PROCEDURAL QUESTIONS

1. The Application by the Defence for the Severing of the Two Charges  (Footnote 4: See pp. 5-6.)

The Defence applied for the trial of the two charges separately, quoting in their favour Rules of Procedure 16 and 108, and pointing out that their request was not the same as an application for a separate trial of individual accused such as was forbidden by Regulation 8 (ii) of the Royal Warrant. 

Rule of Procedure 16, intended for proceedings by District Courts Martial is made to some degree applicable to Field General Courts Martial by Rule 109 which provides as follows :

" The court may be sworn at one time to try any number of accused persons then present before it, but except so far as the convening officer has directed otherwise the trial of each accused person will be separate. The convening officer should only direct persons to be tried together in cases where the circumstances are similar to those mentioned in Rule 16, and the provisions of that rule will be complied with as far as practicable."

Rule 16, which was quoted in part by the Defence, runs in full as follows :

" Any number of accused persons may be charged jointly and tried together for an offence alleged to have been committed by them collectively. Where so charged any one or more of such persons may at the same time be charged and tried for any other offence alleged to have been committed by him or them individually or collectively, provided that all the said offences are founded on the same facts, or form or are 

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part of a series of offences of the same or similar character. In any such case notice of intention to try the accused persons together should be given to each of the accused at the time of his being informed of the charge, and any accused person may claim, either by notice to the authority convening the court, or, when arraigned before the court, by notice to the court, to be tried separately, on the ground that the evidence of one or more of the other accused persons proposed to be tried together with him will be material to his defence ; the convening authority or court, if satisfied that .the evidence will be material, and if the nature of the charge admits of it, shall allow the claim, and the person making the claim shall be tried separately."

’ On behalf of those accused who appeared on both charges, reference was made by the Defence to Rule of Procedure 108, which in full reads as follows :

" The statement of an offence may be made briefly in any language ’ sufficient to describe or disclose an offence under the Army Act. No formal charge-sheet shall be necessary, but the convening officer may nevertheless direct the separate trial of two or more charges preferred against an accused ; or the accused, before pleading, may apply to be tried separately on any one or more of such charges on the ground that he will be embarrassed in his defence if not so tried separately, and the court shall accede to his application unless they think it to be un-reasonable. If such charges are separately tried, the provisions of Rule 62 shall apply as if the Field General Court Martial were a District Court Martial." .

Rule 62 lays down certain rules which are applicable when the charges against an accused before a District Court Martial are inserted in different charge-sheets and which would presumably have been followed had the application for the severing of the two charges been granted. Rule 62 (A) states that the accused shall be " arraigned, and until after the finding tried, upon each charge-sheet separately, and accordingly the procedure in Rules 31 to 44, both inclusive, shall, until after the finding, be followed in respect of each charge-sheet, as if it contained the whole of the charges against the accused." (Rules 31 to 44 make provisions governing the course of trial from the arraignment of the accused to the finding of guilty or not guilty). Inter alia, Rule 62 also provides, in clause (B), that the " trials upon the several charge-sheets shall be in such order as the convening officer directs." The Convening Officer may, according to clause (D), direct that " in the event of the conviction of an accused person upon a charge in any charge-sheet, he need not be tried upon the subsequent charge-sheets." In an explanatory footnote, the Manual of Military Law states that " Most of the ordinary cases which come before courts-martial are so simple in their facts that an accused person is not likely to be embarrassed. by being tried upon several charges at the same time. But if the charges are complicated, or if the alleged offences were committed at different times, or if different sets of witnesses are required to prove the different charges, embarrassment is likely to arise." The Manual points out further that " after the finding of the court upon all the charge-sheets has been arrived at, the procedure will be the same as if all the charges had been inserted in one charge-sheet. Unless, therefore, the convening officer directs that the accused need not be

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tried upon any subsequent charge-sheet, the court will not proceed to sentence until they have arrived at a finding on all the charge-sheets, and will then award one sentence in respect of them all. A finding of " not guilty " on any one or more charges in a charge-sheet (whether alternative or not) will be announced in open court."

It will be noted that even such a separation of the charges would not have entitled the trial of the two charges by different courts, which was also requested, though less strongly, by the Defence.

Footnote 1A to Rule of Procedure 16 states that " Where the offence of murder is charged, no other offence should be included in the same charge sheet." Rule 109, however, lays down only that Rule 16 shall apply to trials by Field General Courts Martial in the given circumstances " as far as practicable, " and a footnote to the Rules could in any case have no legal authority. In claiming that the accused whom he represented could only be held " collectively responsible for other acts of a similar type " as those proved against them, " and nothing higher, " Major Munro made no reference to this footnote. (Footnote 1: see p. 83)

2. Right of Accused to Have Evidence Translated (Footnote 2: For a discussion on the same point see the Report on the Scuttled U-Boats Case, on pp. 65-66 of Volume I of this series)

Immediately before Dr. Ada Bimko gave evidence, Lieutenant Jedrzejowicz said that, if the witness gave evidence in German, he would not require it to be translated into Polish.

The Judge Advocate felt bound to advise the Court that in his view, in this particular kind of Court, the accused must hear the evidence in the language which they could understand. Counsel could not possibly know how to cross-examine except on instructions from the accused whom he represented and his instructions must necessarily be determined by the evidence. The Judge Advocate advised the Court that he did not think that anybody should waive the rights of a person who did not understand a language when serious accusations of fact were being made. The Defending Officers were no doubt endeavouring to shorten the proceedings but he thought that the suggestion would be wrong in law.

The Court decided that the evidence must be translated into Polish so that the Polish accused would understand it, except in any case where a particular witness was called to make a specific accusation against one or two of the German accused and there was no question of that witness raising any point against the Polish accused. In cases where the Polish accused might be implicated by the witness, however, the evidence must be translated into Polish.

3. Presence of Witnesses in the Court Room

On 26^th September, one of the Defending Officers mentioned that it had been brought to his notice that, while a witness was giving evidence, four other Prosecution witnesses, who had already been called, were in the public

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gallery taking notes. Though admitting that it was not against the regulations for the witnesses to be there, the Defending Officer applied for the Prosecution witnesses to be excluded from the Court until the case for the Prosecution was closed. 

The Prosecutor said he did not really object to this course, but added that, once the Prosecution witnesses had given evidence, normally they did remain in court. What the Defending Officers were afraid of was that the witnesses were acting as spies, taking notes of the accused’s numbers and so on ; but it. would be just as easy for somebody who was not a witness to do so on their behalf. The real answer would be to exclude the whole of the general public.

The Judge Advocate referred to the Rule of Procedure 81 which said :

" During the trial a witness other than the prosecutor or accused ought not, except by special leave of the court, to be in court while not under examination and if while he is under examination a discussion arises as to the allowance of a question or the sufficiency of his answers, or otherwise as to his evidence, he may be directed to withdraw." 

The Judge Advocate added that the Rule of Procedure was one which affected General Courts Martial and it did not seem to apply to Field General Courts Martial and therefore not to a Military Court ; but the spirit remained and it was, in the Judge Advocate’s opinion, entirely a matter for the Court to decide. (Footnote: It may be mentioned that Regulation 13 and Rule of Procedure 132 both lay down that a Court shall, in cases not foreseen by the legal provisions contained in the Regulations and Rules, do what " appears best calculated to do justice.")

The Court decided to uphold the Defending Officers’ application and not to allow the Prosecution witnesses in Court after they had given evidence.

4. Illness of an Accused and its Influence on the Proceedings

On the 23^rd October, the accused Gura fell ill and the question arose whether the trial could be continued in his absence or whether the charge against him would have to be dropped and the accused tried at some later stage.

After a consideration of the legal position the Judge Advocate, in his summing up, stated that Rule of Procedure 119 (C) made it imperative for an accused to be present throughout his trial. Even if Gura had been able to come back after a short absence the trial would still not have been in order if it had continued in his case. The Judge Advocate said that the position was that Gura would not be found either guilty or innocent of this charge, but that the Court would regard the matter as " Not proceeded with to a conclusion ". Then it would be left to the appropriate military authorities to decide whether or not to bring him to trial again, starting afresh upon any charges they might consider appropriate.

Rule of Procedure 119 (C) states : " The proceedings shall be held in open court, in the presence of the accused, except on any deliberation among the members, and the Judge Advocate (if any), when the court may be closed ". Rule 67 provides : " In case of the death of the accused or of such illness of

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the accused as renders it impossible to continue the trial, the court will ascertain the fact of the death or illness by evidence, and record the same, and adjourn, and transmit the proceedings to the convening authority ". This Rule, however, even if it could have been held applicable in the case of Gura, is not one of those provisions, applicable to a District Court Martial, which are made applicable to a Field General Court Martial by other Rules of Procedure, mainly 121, and so to a Military Court.

Probably as a result of the difficulties which arose out of the absence of Gura, an amendment to the Regulations for the Trial of War Criminals was made by Army Order 8/46, whereby the following words were added at the end of Regulation 3 :

" Notwithstanding the provisions of Rule of Procedure 119 (C) a Court may, after his arraignment, proceed with the trial of an accused in his absence, if satisfied that so doing involves no injustice to such accused ".

5. The Recording of Special Finding

Rule of Procedure 121 makes Rule 44 among others applicable, " so far as practicable ", to a Field General Court Martial. Clauses (D) and (E) of the latter provision run as follows :

" (D) Where the court are of opinion as regards any charge that the facts which they find to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is not so material as to have prejudiced the accused in his defence, they may instead of a finding of ‘ Not guilty ‘, record a special finding.

" (E) The special finding may find the accused guilty on a charge, subject to the statement of exceptions or variations specified therein ". 

During the examination of the accused Kopper, the Judge Advocate announced that the Court recognised that the person named " Korperova " in the Belsen charge must be the accused. At the beginning of his Closing Address, (Footnote: see p. 104) the Prosecutor also made some remarks on the contents of the charges.

At the end of his summing up of the evidence relating to the offences alleged to have been committed at Auschwitz, the Judge Advocate said that the main allegations related to Allied nationals unknown. It was not necessary to prove everything in a charge. It was the substance which must be proved and if the Court were satisfied that there was substantial ill-treatment, causing death or physical suffering, to people whose names the Prosecution were not able to put forward that would allow the Court to convict the accused, even though they were not satisfied of the death of any named person.

As a result of the statements referred to in the last two paragraphs, the 

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Court recorded a special finding in that it stated that certain details would be deleted from the charges. (Footnote: See p. 122. In this connection it is interesting to refer to the trial of a Japanese alleged war criminal, Sjt. Aoki Toshio, by a British Military Court at Singapore on 11^th February, 1946. Toshio was charged with " committing a war crime in that he at Sonkurai Camp in the month of November 1943 in violation of the laws and usages of war by forcing some three hundred British prisoners of war at that time in his custody the majority of whom were sick and injured to enter a train containing no sufficient or suitable accommodation and by allowing Korean soldiers under his command to beat, kick and otherwise maltreat the said prisoners, causing the death of seven of the said prisoners and further injured the health of the remainder."  The Court recorded a special finding of guilty, omitting the words, " causing the death of seven of the said prisoners." The sentence of three years imprisonment was confirmed by higher military authority. The Court thus removed the most serious details from the charge, and so made a more sweeping application of Rule of Procedure 44 than did the Court in the Belsen Trial)

E. QUESTIONS OF SUBSTANTIVE LAW

Colonel Smith claimed that the Military Court trying the accused applied International Law and did not take its substantive law, as distinct from its procedure, either from the Crown or from Parliament. The Court was given its rules of procedure by the Royal Warrant but in deciding cases before it the former was not bound by, for instance, the British Manual of Military Law

It is true that Regulation 1 of the Royal Warrant states : " ‘ War Crime ’ means a violation of the laws and usages of war committed during any war in which His Majesty had been or may be engaged at any time since the 2^nd September, 1939 ", and that Regulation 8 (iii) provides that : " The Court shall take judicial notice of the laws and usages of war ". It is also true that much substantive law on the matter of war crimes has been created or codified by international agreements such as the Hague Convention No. IV of 1907 (on the rules of land warfare) and the Geneva Prisoners of War Convention of 1929. On the other hand Regulation 9 of the Royal Warrant provides that the punishment of a war crime consists in any one or more of the following :-

1) Death (either by hanging or shooting) ;

(2) Imprisonment for life or for any less term ;

(3) Confiscation ;

(4) A fine.

The Court may also order the restitution of money or property taken or destroyed by the accused. It would not be easy to maintain the proposition that provisions regarding punishment were mere matters of procedure. Further, there are spheres in which International Law is vague, and state practice is a very important source of law. The defence of superior orders is a case in point.

Chapter XIV (The Laws and Usages of War on Land) of the British Manual of Military Law is intended as a guide for the use of the military forces. It has not therefore the authority as a statement of International Law which attaches to an international treaty.

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Such publications, prepared for the benefit of the armed forces of various nations, are frequently used in argument in the same way as other interpretations of International Law, and, in so far as their provisions are acted upon, they mould state practice, which is itself a source of International Law.

At another point in his speech Colonel Smith set out to prove that the individual’s first allegiance was to his national laws. Counsel’s position would seem to be that, whereas the accusing state is bound by International Law on questions of substance, the accused must look first to his own laws. It could be argued, however, that the very fact that a Military Court did administer International Law would preclude an alleged war criminal from pleading on his behalf Municipal Law precedents such as Mortensen v. Peters and Fong Yare Ting v. United States. (Footnote 1: see pp. 74-5)

Colonel Smith stressed that in International Law the general principle was that the State and not the individual was responsible for breaches of that law. There has not been universal agreement on the extent to which an individual can be held personally liable for breaches of such international agreements as the Hague Convention No, IV (Rules of Land Warfare) and the Geneva Prisoners of War Convention of 1929, according to the strict letter of which the responsibility for breach thereof lies on the State authority to which the perpetrator owes allegiance. The trend of opinion (Footnote 2: See for instance Professor H. Lauterpacht, in the British Year Book of International Low, 1944, p. 64 ; Lord Wright in the Law Quarterly Review, January, 1946, p. 42 ; and Professor A. L. Goodhart in The Juridical Review, April, 1946, pp. 14-15) and the practice followed by the Courts, however, has been to make the individual responsible for his acts in breach of international conventions, and this trend was illustrated on a high level by the decision pronounced by the International Military Tribunal at Nuremberg, that certain accused had made themselves criminals by waging war in breach of the terms of an inter-governmental agreement renouncing war undertaken as an instrument of national policy, the Briand-Kellogg Pact. (Footnote 3: " Treaty Series, No. 29 (1929) " British Command Paper Cmd. 3410) Indeed, the International Military Tribunal made use of the fact that the Hague Convention No. IV of 1907 had been enforced personally against its violators. The judgment on this point runs :

" But it is argued that the Pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention ; but since 1907 they have certainly been crimes, punishable as offences against the laws of war ; yet the Hague Convention nowhere designates such 

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practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention ".(Footnote 1: British Command Paper Cmd. 6964, p. 40)

3. The Nationality of the Accused

The Court held five Poles guilty of war crimes against Allied nationals, thus approving the argument of the Prosecution that by identifying themselves with the S.S. the Polish accused had made themselves as guilty as they. The Court thus acted on the principle that its jurisdiction extended to the trial of Allied nationals alleged to have committed war crimes, their nationality being irrelevant in this connection.

On the 3^rd October, Captain Brown objected to part of Dora Almaleh’s affidavit and submitted that the facts set out were completely irrelevant. The charge referred to a war crime and to the ill-treatment and death of Allied nationals. Paragraph 3 of the affidavit in question referred to a Hungarian girl and Counsel thought that it was within the knowledge of the Court that a war crime could not be committed by a German against a Hungarian. The Prosecutor made two points in replying. Hungary, he said, left the Axis before April, 1945, and had come on to the Allied side ; at that time, therefore, the Hungarians were at least some form of Allies, though Counsel did not know to what extent. (Footnote 2: The paragraph alleged that Egersdorf shot a Hungarian girl in April, 1945)  A more general point made by the Prosecutor was that what he was trying to prove was the treatment of the Allied inmates of the camp. He thought that he was perfectly entitled to put before the Court evidence of the treatment of other persons in the camp. If there were 10 people and he wanted to prove that one of them was badly treated, in the Prosecutor’s submission, he was perfectly entitled to prove that the 10 were badly treated. The treatment of all the inmates in the camp was relevant to show the treatment of any individual inmate. 

The Court decided that the paragraph be included in the evidence before the Court.

Colonel Smith claimed that only offences against Allied nationals could be regarded by the Court as war crimes, and that " Allied nationals " meant nations of the United Nations. The term therefore excluded Hungarians and Italians. As has been seen, the Prosecutor himself in effect disclaimed any intention of charging the accused of crimes against persons other than Allied nationals. Both Prosecution and Defence therefore recognised that, under the Royal Warrant, the jurisdiction of British Military Courts is limited to the trial of war crimes proper and excludes crimes against humanity as defined by Article 6(c) of the Charter of the International Military

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Tribunal. (Footnote 1: Article 6(c) of the Charter enumerates among the crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility :

" Art. 6(c). Crimes against humanity : namely, murder, extermination, enslavement, deportation,, and other inhumane acts commttted against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated." For some provisions which govern United States Military Commissions set up for the trial of war criminals and which do reflect the influence of Article 6(c), see Volume I, pp. 113-115) 

British Military Courts deal with such crimes only if they are also violations of the laws and usages of war.

A second question relating to the nationality of the victims of atrocities committed in the two camps arose out of Colonel Smith’s claim that numbers of them had ceased to be Allied nationals, and had become German subjects, as a result of the annexation of their homelands by Germany. The Prosecutor replied that before it was possible for a country to be annexed the war must be ended. While the war was still in progress the citizens were entitled to the protection of the Hague Convention.

Oppenheim-Lauterpacht, International Law, Vol I, fifth edition, p. 450, states that the act of forcibly taking possession of a part of an enemy’s territory during-the continuance of war, " although the conqueror may intend to keep the conquered territory and therefore to annex it, does not confer a title so long as the war has not terminated either through simple cessation of hostilities or by a treaty of peace. Therefore, the practice, which sometimes prevails, of annexing during a war a conquered part of enemy territory cannot be approved. For annexation of conquered enemy territory, whether of the whole or of part, confers a title only after a firmly established conquest, and so long as war continues, conquest is not firmly established. For this reason the annexation of the Orange Free State in May 1900, and of the South African Republic in September 1900, by Great Britain during the Boer War, was premature."

This doctrine was underlined in the judgment of the International Military Tribunal at Nuremberg where it was stated :

" A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were part of Germany. In the view of the Tribunal it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after the 1^st September, 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them." (Footnote 2: British Command Paper Cmd. 6964, p. 65)

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5. Civilians as War Criminals

Colonel Smith assumed that the accused could not be regarded as members of the armed forces. The Prosecutor claimed that the S.S. were members of the German armed forces.

It would be harder to prove that the camp prisoners who were given minor official positions by the authorities were anything more than civilians. In meeting the argument that no war crime could be committed by Poles against other Allied nationals, the Prosecutor said that by identifying themselves with the authorities the Polish accused had made themselves as much responsible as the S.S. themselves. Perhaps it could be claimed that by the same process they could be regarded as having approximated to membership of the armed forces of Germany.

In any case subsequent court decisions have made it quite clear that civilians can commit war crimes. For example, in the Zyklon B Case (Footnote 1: See pp. 93-103 of Volume I of this series.) two German industrialists, undoubtedly civilians, were sentenced to death as war criminals for having been instrumental in the supply of poison gas to Auschwitz, knowing of its use there in murdering Allied nationals. Another instance among many is provided by the Essen Lynching Case (Footnote 2: Ibid, pp. 88-92) where civilians appeared among persons found guilty of being concerned in the killing of three British prisoners of war. The Hadamar Trial (Footnote 3: Ibid, pp. 46-54) provides an example from among the trials held before United States Military Commissions ; here the civilian personnel of a medical institution were found guilty of unlawfully putting to death Russian and Polish nationals.

There was some argument during the trial as to the extent to which the accused could plead the defence of superior orders. (Footnote 4:,See pp. 75-6, 79, 95-6 108 and 117-8.) It is not proposed here to set out at length the law and practice relating to superior orders in trials of war criminals since this task has already been performed in Volume I of this series, at pages 18-20 and 31-33. It will suffice to quote one legal text and one judicial utterance which are relevant to the issue and which have not appeared in the volume already published.

The Charter of the International Military Tribunal, in Article 8, provides that: " The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires " ; and on this the Tribunal made the following comment : " The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible." (Footnote 5: British Command Paper Cmd. 6964,. p.42)

[Editorial Note: On pp. 153-54 is included a table listing the accused, the charges against them, their position in the camp, and the sentence imposed. This table has been omitted here.]

Foreword  Part I  Part II  Part III  Part IV Part V Part VI Part VII Part VIII  Part IX Part X  Part XI Part XII