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Source:
United
Nations War Crimes Commission. Law Reports of Trials of War Criminals.
Volume VIII, 1949
CASE No. 47
THE
HOSTAGES TRIAL
TRIAL
OF WILHELM LIST AND OTHERS
UNITED STATES
MILITARY TRIBUNAL, NUREMBERG
Part II
Part I Part II
Part III Part IV
Part V Part VI
The Evidence Before the Tribunal
Foertsch
von Geitner
Rendulic
Dehner
von Leyser
Felmy
Lanz
Speidel
The Judgment of the Tribunal
The General Nature and Sources of
International Law
The Plea of Superior Orders
p.42
(iii)
Foertsch
The
whole period of Foertsch’s stay in the Southeast was in the capacity
of Chief of Staff of the Army Group commanding the territory.
The Chief of Staff was in charge of the various departments
of the staff and was the first advisor of the Commander-in-Chief. It was
his duty to provide all basic information for decisions by the
Commander-in-Chief and was responsible for the channelling of all
reports and orders. He had no troop command authority. Neither did he
have any control over the legal department which was directly
subordinate to the Commander-in-Chief.
As Chief of Staff he was authorised to sign orders on behalf of
the Commander-in-Chief when they did not contain any fundamental
decision and did not require the exercise of judgment by the subordinate
to whom they were directed.
Furthermore,
the accused was on leave at the time of the issuing of List’s order of
5th September, 1941, the distribution of the Keitel Order of
16th September, 1941, and the appointment of
Lieutenant-General Boehme as Commander of Military Operations in Serbia.
It
was the testimony of Foertsch that the Keitel Order of 16th
September, 1941, fixing reprisal ratios from 50 up to 100 to 1, was the
basic order under which reprisal measures were carried out in the
Southeast. On the other hand the evidence showed many reprisal measures
to have been executed prior to the Keitel order, on the reports of
which appeared the signature or initials of Foertsch. For all practical
purposes, the accused had the same information as the defendants List
and Kuntze during their tenures as Wehrmacht Commanders Southeast. He
knew of all the incidents described earlier in the outline of evidence
dealing with the defendants List and Kuntze. The defendant Foertsch did
not, however, participate in any of them. He gave no orders and had
no power to do so had he so desired.
He did distribute some of the orders of the
OKW, the OKH and of
his commanding generals, including Fieldmarshal Keitel’s order of 28th
September, 1941, wherein it was ordered that hostages of different
political persuasions such as Nationalists, Democrats and Communists be
kept available for reprisal purposes and shot in case of attack, and
General Kuntze’s order of 19th March, 1942, wherein it was
ordered that more severe reprisals be taken in accordance with a
definite ratio “ for instance, 1 German dead-100 Serbs, 1 German
wounded-50 Serbs.”
The
Commando Order of 18th October, 1942, was distributed by Army
Group
E commanded by General Alexander Loehr and of which Foertsch was
then Chief of Staff. Foertsch stated that he considered this order unlawful
in that it called for the commission of offences and crimes under International
Law but that he assumed that the issuing of the order was an
p.43
answer
to similar actions by the enemy in contravention of International Law.
It was not shown that the defendant knew that this order was in fact
carried out in the territory in which he served. (Footnote 1: According to
the Tribunal’s judgment, “ By this order, issued by Hitler in
person, all
sabotage
troops generally referred to as commandos, were to be shot immediately
upon capture.” A text of the Order is reproduced in Vol. I of these
Reports, pp. 32-3.
)
(iv) von
Geitner
During
the entire period of his service in the Balkans, the defendant von
Geitner served only as a chief of staff to the Commanding General in
Serbia or to the Military Commander in Serbia and Military Commander in
Southeast. His duties generally concerned operations, supplies, training
and organization of troops.
The
evidence showed that von Geitner initialed or signed orders issued by
his commanding general for the shooting of hostages and reprisal
prisoners.(Footnote 2:
These orders were deemed by the Tribunal to be “ unlawful when viewed
in the light
of the applicable international law.") Applications for permission to take reprisal action were
referred by the commanding general to a special legal officer who worked
on them and submitted the result to the commander. The commander then
made the decision and delivered a text to the defendant von Geitner for
preparation and approval as to form. The order then was sent on its way
through regular channels by von Geitner. No doubt existed that such an
order was that of the military commander and that the defendant von
Geitner lacked the authority to issue such an order on his own
initiative. The accused
claimed that the approval of the form of such orders was the full extent
of his participation in the issuing and distributing of reprisal orders.
(v
) Rendulic
The
defendant Rendulic became Commander-in-Chief of the Second Panzer Army
on 26th August, 1943, and remained in the position until June
1944. In July 1944 he became the Commander-in-Chief of the Twentieth
Mountain Army, a position
which he held until January 1945. In
December 1944 he became the Armed Forces Commander North in addition to
that of Commander-in-Chief of the Twentieth Mountain Army. In January 1945 he became Commander-in-Chief of Army Group
North, a position which he held until March 1945.
At
the time he assumed command of the Second Panzer Army, the head-quarters
of the army was in Croatia and its principal task was the guarding of
the coast against enemy attacks and the suppression of band warfare in
the occupied area. The Italians also had several army corps stationed in
the immediately adjacent territory. The danger of the collapse of the
Italian government and the possibility that the Italians might
thereafter fight on the side of the Allies was a constant threat at the
time of his assumption of the command of the Second Panzer Army.
The
Hitler order of 16th September, 1941, providing for the
killing of
100
reprisal prisoners for each German soldier shot, had been distributed to
the troops in the Southeast and, in many. instances, carried out before
p.44
the
defendant Rendulic assumed command of the Second Panzer Army.
The accused did not attempt to suppress illegal reprisal actions,
but instead on 15th September, 1943, he issued an order which
in part stated : " Attacks on German members of the Wehrmacht and
damages to war-important installations are to be answered in every case
by the shooting or hanging of hostages and the destruction of
surrounding villages, which later is to take place-if possible-after the
arrest of the male population which is capable of bearing arms. Only
then will the population inform the German authorities if bandits
collect so as to avoid reprisal measures.
“
Unless in individual cases different orders are issued the rule for
reprisal measures is : 1 German killed, 50 hostages ; 1 German wounded,
25 hostages shot or hanged. Kidnapping of a German will be considered
equal to killing a German if the kidnapped person does not return within
a definite period. According to the severity of the attack a hundred
hostages will be hanged or shot for each attack against war-essential
installations. These reprisal measures are to be executed if the culprit
is not caught within 40 hours.”
The
reports of the corps commanders subordinate to the defendant revealed
that many acts of reprisals were taken in fact against the population by
the 173rd and 187th Reserve Divisions for attacks
upon troops and military installations. The defendant made no attempt to
secure additional details of the killings or to apprehend the guilty.
Public proclamations upon the taking of hostages were not made. Previous
notice was not given the public that reprisals by shooting would be
taken if unlawful acts were repeated. Court-martial proceedings were not
held. Hostages, reprisal prisoners and partisans were killed without any
semblance of a judicial hearing. There was no requirement that hostages
or reprisal prisoners killed should be connected with the offence
committed, either passively, or actively, or by proximity.
The
accused’s order of 15th September, 1943, was as he
maintained, consistent with the orders of Hitler and Keitel and the
record did not indicate that he ever issued an order directing the
killing of a specific number of hostages or reprisal prisoners as
retaliation for any particular offence.
The issuance of such orders was delegated to divisional
commanders, whose activities were known to him through reports. He
acquiesced in them and took no steps to shape the hostage and reprisal
practices in conformity with the usages and practices of war.
The
evidence further showed that on 3rd September, 1943, Italy
surrendered unconditionally to the Allies. The surrender was announced
publicly on 8th September, 1943. The defendant testified that
this event was anticipated by him as well as the possibility that Italy
would become an enemy of the Germans. His testimony was to the effect
that the German Army, in performing its task of guarding the coast to
prevent an Allied landing, could not tolerate the presence of hostile
Italians in these coastal areas. Holding
these definite views of the necessities of the situation, the defendant
set about removing the Italians from the coastal areas by making them
prisoners of war. He forced General D’Almazzo, Commander of the
Italian IXth Army, to sign an armistice with him ; the former had no
orders to do this. The accused then received Führer Orders directing
that the
p.45
officers
of all Italian units who had co-operated with insurgents or permitted
their arms to fall into the hands of insurgents, were to be shot and
that the officers of resisting units who continued their resistance
after receipt of a short ultimatum, were also to be shot. The record
disclosed that the defendant Rendulic was insistent that his corps
commanders carry out these orders “ without any scruples.” Several
Italian officers were subsequently shot ; for instance, certain officers
of the Bergamo Division of the IXth Army, which had resisted the Germans
at Split, were executed after summary court-martial proceedings.
The
defendant was also shown to have passed on to troops subordinate to him
the Führer Order of 6th June, 1941, providing that all
Commissars captured must be shot, when he was in command of the 52nd
Infantry Division on the Russian Front. He admitted that the legality
and correctness of this order was discussed in army circles and that it
was generally considered illegal. He testified that he considered the
order as a reprisal measure, the purpose of which was unknown to him.
(Footnote l: See p.46, note 2)
There
was evidence that, during the retreat of the German troops under
Rendulic from Finnmark, much physical destruction was carried out on the
latter’s orders in an attempt to extricate the former from a
strategically perilous situation arising out of the withdrawal from the
war of Finland.
(vi)
Dehner
The
defendant Dehner was assigned as the commander of the LXIXth Reserve
Corps in the last days of August 1943. He held this command until 15th
March, 1944. The corps was stationed in Northern Croatia and occupied
about one-third of that country. The chief task of this corps was to
suppress the guerrilla bands operating in the territory and particularly
to guard the Zagreb-Belgrade railroad and the communication lines in the
assigned area.
The
173rd and 187th Reserve Divisions, which have been
mentioned above in the section setting out the evidence relating to the
defendant Rendulic, were directly subordinated to Dehner. (Footnote 2: See
p.44) Numerous
other and similar offences were committed by troops under his command
and the defendant appeared to have made no effort to require reports
showing that hostages and reprisal prisoners were shot in accordance
with International Law. The defendant attempted to excuse his
indifference to these killings by saying that they were the
responsibility of the division commanders.
Dehner had knowledge of the offences; on the other hand, there
was evidence of attempts on his part to correct certain irregularities
connected with the taking of reprisals ; for example in an order of 19th
December, 1943, his corps headquarters stated : “ Measures of the
unit have repeatedly frustrated propaganda for the enemy as planned by
the unit leadership. It must not happen that bandits who arrive at the
unit with leaflets asking them to desert and which should be valid as
passes, are shot out of hand. This makes any propaganda effort in this
direction nonsensical. . . .”
p.46
(vii)
von Leyser
The
defendant von Leyser was appointed to command the XXIst Mountain Corps on
1st August, 1944, and continued in the position until April
1945. Immediately previous
thereto he had been in command of the XVth Mountain Corps, a position
which he had held since 1st November, 1943. Other former
assignments were his command of the 269th Infantry Division In Russia in 1941 and his command of the XXVIth Corps in Russia in 1942.
There
was evidence that innocent members of the civilian populations were
killed in reprisal for attacks on troops and acts of sabotage committed
by unknown persons by troops subordinate to the defendant von Leyser,
who admitted that he knew of many such killings. He denied that he ever
issued an order to carry out any specific reprisal measure, and
contended that this was the responsibility of divisional commanders in
conjunction with Croatian government authorities. The record disclosed,
however, that on 10th August, 1944, the defendant issued an
order containing the following :“ In case of repeated attacks in a
certain road sector, Communist hostages are to be taken from the
villages of the immediate vicinity, who are to be sentenced in case of
new attacks. A connection between these Communists and the bandits may
be assumed to exist in every case." (Footnote 1:
Of this order the Tribunal said : “ This order is, of course, not
lawful. Reprisals
taken
against a certain race, class or group irrespective of the circumstances
of each case,
sounds
more like vengeance than an attempt to deter further criminal acts by
the population. An assumption of guilt on the part of a particular race,
class or group of people
in all cases also contravenes established rules. This is a matter which
a judicial
proceeding
should determine from available evidence.”)
Shortly after taking command of
the XVth Corps, the defendant formulated a plan for the evacuation of
the male population between the ages of 15 and 55 from the area between
Una and Korana. This territory was supposed to contain about 7,000 to
8,000 men who were partly equipped with arms procured from the Italians.
The area had been under the temporary control of the bands to such an
extent that the Croat government had complained of its inability to
conscript men for military-service from the area: It was planned to
crush the bands and evacuate the men and turn them over to the Croatian
government for use as soldiers and compulsory labour. The operation was
designated as Operation “ Panther ” and was so referred to in the
German Army reports. On 6th December, 1943, the Second Panzer
Army approved Operation “ Panther.” The operation was carried out
but only 96 men fit for military service were captured. The defendant
attempted to justify his action by asserting that the primary purpose of
the Operation “ Panther ” was the suppression of the bands, that the
operation was purely a tactical one so far as he was concerned and that
the disposition of the captured population fit for military service was
for the decision of the Croatian government and not his concern.
The
evidence also showed that the 269th Infantry Division,
commanded by the defendant von Leyser in Russia, killed Commissars
pursuant to the Commissar Order.(Footnote 2: The Tribunal said : “
This was a criminal order and all killings committed pursuant
to
it were likewise criminal. We find the defendant guilty on this
charge.” The charge referred
to was said to be one of “ issuing the Commissar order of 6th
June, 194l,.and causing the same to be carried out while he was in
command of the 269th Infantry Division in
Russia in 1941.” It would appear from an examination of the
Indictment, and of the
Tribunal’s
summary thereof, that allegations regarding offences committed in Russia
would,
technically, fall outside its terms.)
p.47
(viii)
Felmy
The
defendant Felmy was appointed Commander Southern Greece at about the
middle of June 1941, and continued in the position until August 1942.
During this period he had three battalions of security and police troops
subordinate to him. On 10th May, 1943 the defendant became
commander of the LXVIIIth Corps and continued in that position until the
corps withdrew from Greece, an operation which was completed on 22nd
October, 1944. In addition thereto on 9th September, 1943, he
assumed command of Army Group Southern Greece. He had subordinate to him
the 1st Panzer Division, 117th Rifle Division, and
a number of fortress battalions. Until the collapse of Italy, two
Italian divisions were subordinate to him. The defendant admitted having
ordered reprisal measures but denied that they were unlawful. Many other
reprisal actions on the part of his troops were brought to his notice in
reports made to him.
The
evidence showed that the accused received and passed on an order of
General Loehr, Commander-in-Chief Southeast, dated 10th
August, 1943, which stated in part : “ In territories infested by the
bandits, in which surprise attacks have been carried out, the arrest of
hostages from all strata of the population remains a successful means of
intimidation. Furthermore, it may be necessary, to seize the entire male
population, in so far as it does not have to be shot or hung on account
of participation in or support of the bandits, and in so far as it is
incapable of work, and bring it to the prisoner collecting points for
further transport into the Reich. Surprise attacks on German soldiers,
damage to German property must be retaliated in every case with shooting
or hanging of hostages, destruction of the surrounding localities,
etc. Only then will the population announce to the German offices the
collections of the bandits, in order to remain protected from reprisal
measures.”
The
defendant also received and passed on the order
regarding
reprisal measures issued by General Loehr, deputising for Field Marshal
von Weichs as Commander-in-Chief Southeast, under date of 22nd
December, 1943, an order which has been previously quoted in this
opinion. It says in part : “ Reprisal quotas are not fixed. The orders
previously decreed concerning them are to be rescinded. The extent of
the reprisal measures is to be established in advance in each
individual case. . . . The
procedure, of carrying out reprisal measures after a surprise attack or
an act of sabotage at random on persons and dwellings, in the vicinity,
close to the scene of the deed, shakes the confidence in the justice
of the occupying power and also drives the loyal part of the
population into the woods. This
form of execution of reprisal measures is accordingly forbidden, If, I
however, the investigation on the spot reveals concealed collaboration
or a conscientiously passive attitude of certain persons concerning the
perpetrators then these persons above all are to be shot as bandit
helpers and their dwellings destroyed. . . . Such persons are
co-responsible first of all who recognise Communism.”
The evidence
showed many separate reprisal actions by troops subordinate to this
defendant. In many instances there was no connection between the
inhabitants shot and the offence committed. Reprisals were taken against
special groups, such as “ Communists ” and “ bandit suspects ”
p.48
without
any relationship to the offence being established. Reprisal prisoners
were taken from hostage camps generally and at points distant from the
place where the offences occurred. It was also shown that in many
reprisal actions destruction of property accompanied the mass shootings.
(ix) Lanz
The
defendant Lanz was appointed to command the XXIInd Mountain Corps on 25th
August, 1943, and actually assumed the position on 9th
September, 1943.
On
3rd October, 1943, the defendant issued an order reading in
part as follows : “ On account of the repeated cable sabotage in the
area of Arta, 10 distinguished citizens (Greeks) from Arta, 10 distinguished citizens
(Greeks) from Filipias, are to be arrested and kept as hostages. The
population is to be notified that for every further cable sabotage 10 of
these 40 hostages will be shot to death.”
The
defendant denied that any of these hostages were shot and there was no
evidence to the contrary. On the other hand, there was proof of many
reprisal actions, of the same general type as those already described,
having been committed by troops under the accused’s command and with
his knowledge and acquiescence.
There was also evidence that a number
of Italian officers, whose troops had resisted German requests to
surrender with their arms, were shot on the orders of Lanz. It was
shown, however, that Lanz acted under orders from Hitler and that, by
resisting a previous order, he reduced the number of persons whom he was
required to have executed.
(x)
Speidel
The
defendant Speidel assumed the position of Military Commander Southern
Greece in early October 1942, and remained in the position until
September 1943. From September 1943 until May 1944 he occupied the
position of Military Commander Greece.
That
the Military Commander Greece could control the reprisal and hostage
practice through the various sub-area headquarters which were
subordinate to him was borne out by the testimony of the defendant
himself and charts prepared by him. Nevertheless, there was evidence of
numerous separate instances of reprisal killings by troops under his
command and with his knowledge, the victims often having no connection
with any offences committed against the German armed forces and having
lived in other districts, and often no court-martial proceedings having
been held.
3. THE
JUDGMENT OF THE TRIBUNAL
In
addition to summarising the evidence which had been placed before
it,
the Tribunal in its judgment dealt with a number of legal matters, as
follows :
p.49
(i) The
General Nature and the Sources of International
Law (Footnote
1:
The reader may find it of interest to compare the Tribunal's remarks
on these matters with some observations of the Tribunal which conducted
the Justice
Trial,
which
are set out in Vol. VI of this series, pp. 34-8)
It
seemed to the Tribunal advisable “ to briefly state the general nature
of International Law and the sources from which its principles can be
ascertained.” It added, however, that :
“
No attempt will be here made to give an all inclusive definition of
International Law, in fact, there is justification for the assertion
that it ought not to be circumscribed by strict definition in order that
it may have ample room for growth. Any system of law that is obviously
subject to growth by the crystallisation of generally prevailing custom
and practice into law under the impact of common acceptance or consent,
must not be confined within the limits of formal pronouncement or
complete unanimity. For our purposes it is sufficient to say that
International Law consists of the principles which control or govern
relations between nations and their nationals. It is much more important
to consider the sources from which these principles may be
determined.”
The
judgment then continued :
“
The sources of International Law which are usually enumerated are : (1)
customs and practices accepted by civilised nations generally, (2)
treaties, conventions and other forms of interstate agreements, (3) the
decisions of international tribunals, (4) the decisions of national
tribunals dealing with international questions, (5) the opinions of
qualified text writers, and (6) diplomatic papers. These sources
provide a frame upon which a system of International Law can be built
but they cannot be deemed a complete legal system in themselves.
Any system of jurisprudence, if it is to be effective, must be
given an opportunity to grow and expand to meet changed conditions. The
codification of principles is a helpful means of simplification, but it
must not be treated as adding rigidity where resiliency is essential.
To place the principles of International Law in a formalistic
strait-jacket would ultimately destroy any effectiveness that it has
acquired.
“ The tendency
has been to apply the term ‘ customs and practices accepted by
civilised nations generally’, as it is used in International Law, to
the laws of war only. But the principle has no such restricted meaning.
It applies as well to fundamental principles of justice which have been
accepted and adopted by civilised nations generally. In determining
whether such a fundamental rule of justice is entitled to be declared a
principle of International Law, an examination of the municipal laws of
states in the family of nations will reveal the answer. If
it is found to have been accepted generally as a fundamental rule of
justice by most nations in their municipal law, its declaration as a rule
of International Law would seem to be fully justified. There is convincing
evidence that this not only is but has been the rule. The rules
applied in criminal trials regarding burden of proof, presumption of
innocence, and the right of a defendant to appear personally to defend
himself, are derived from this source. Can it be doubted that
p.50
such
a source of International Law would be applied to an insane defendant ?
Obviously he would not be subjected to trial during his incompetency.
Clearly, such a holding would be based upon a fundamental principle of
criminal law accepted by nations generally.
If the rights of nations and the rights of individuals who become
involved in international relations are to be respected and preserved,
fundamental rules of justice and right which have become commonly
accepted by nations must be applied. But the yardstick to be used must
in all cases be a finding that the principle involved is a fundamental
rule of justice which has been adopted or accepted by nations generally
as such.”
(ii) The
Plea of Superior Orders
The
Judgment then continued
“
The defendants invoke the defensive plea that the acts charged as crimes
were carried out pursuant to orders of superior officers whom they were
obliged to obey. This brings into operation the rule just announced. The
rule that superior order is not a defence to a criminal act is a rule of
fundamental criminal justice that has been adopted by civilized nations
extensively. It is not disputed that the municipal law of civilised
nations generally sustained the principle at the time the alleged
criminal acts were committed. This being true, it properly may be
declared as an applicable rule of International Law.
“ It cannot be questioned that acts done in time of war under
the military authority of an enemy, cannot involve any criminal
liability on the part of officers or soldiers if the acts are not
prohibited by the conventional or customary rules of war. Implicit
obedience to orders of superior officers is almost indispensable to
every military system. But
this implies obedience to lawful orders only. If the act done pursuant
to a superior’s orders be murder, the production of the order will not
make it any less so. It may mitigate but it cannot justify the crime. We
are of the view, however, that if the illegality of the order was not
known to the inferior and he could not reasonably have been expected to
know of its illegality, no wrongful intent necessary to the commission
of a crime exists and the inferior will be protected. But
the general rule is that members of the armed forces are bound to
obey only the lawful orders of their commanding officers and they cannot
escape criminal liability by obeying a command which violates International
Law and outrages fundamental concepts of justice. In the
German War Trials (1921), the German Supreme Court of Leipzig in
The Llandovery Castle case (Footnote 1:
See the notes to the Stalag Luft III Trial report, in Vol. XI.) said : ‘ Patzig’s order does not free the
accused from guilt. It is true that according to para. 47 of the Military
Penal Code, if the execution of an order in the ordinary course of
duty involves such a violation of the law as is punishable, the superior
officer issuing such an order is alone responsible. According to
No. 2, however, the subordinate obeying such an order is liable to
p.51
punishment,
if it was known to him that the order of the superior involved the
infringement of civil or military law.’
“
It is true that the foregoing rule compels a commander to make a choice
between possible punishment by his lawless government for the
disobedience of the illegal order of his superior officer, or that of
lawful punishment for the crime under the law of nations. To choose the
former in the hope that victory will cleanse the act of its criminal
characteristics manifests only weakness of character and adds nothing to
the defence.
“
We concede the serious consequences of the choice especially by an
officer in the army of a dictator. But the rule becomes one of
necessity, for otherwise the opposing army would in many cases have no
protection at all against criminal excesses ordered by superiors.
“ The defence relies heavily upon the writings of Professor L.
Oppenheim to sustain their position. It is true that he advocated
this principle throughout his writings. As a co-author of the British Manual of Military Law, he
incorporated the principle there. It seems also to have found its way
into the United States Rules
of Land Warfare (1940).
We think Professor Oppenheim espoused a decidedly minority view. It is
based upon the following rationale : ‘ The law cannot require an
individual to be punished for an act which he was compelled by law to
commit.’ The statement completely overlooks the fact that an illegal
order is in no sense of the word a valid law which one is obliged to
obey. The fact that the British and American armies may have adopted it
for the regulations of its own armies as a matter of policy, does not
have the effect of enthroning it as a rule of International Law. We
point out that army regulations are not a competent source of
International Law. They are neither legislative nor judicial
pronouncements. They are not competent for any purpose in determining
whether a fundamental principle of justice has been accepted by
civilised nations generally. It is possible, however, that such
regulations, as they bear upon a question of custom and practice in the
conduct of war, might have evidentiary value, particularly if the
applicable portions had been put into general practice. It will be
observed that the determination, whether a custom or practice exists, is
a question of fact. Whether a fundamental principle of justice has
been accepted, is a question of judicial or legislative declaration. In
determining the former, military regulations may play an important role
but, in the latter, they do not constitute an authoritative precedent.
“ Those who hold to the view that superior order is a
complete defence to an International Law crime, base it largely on a
conflict in the articles of war promulgated by several leading nations.
While we are of the opinion that army regulations are not a competent
source of International Law, where a fundamental rule of justice is
concerned, we submit that the conflict in any event does not sustain the
position claimed for it. If, for example, one be charged with an act
recognised as criminal under applicable principles of International Law
and pleads superior order as a defence thereto, the duty devolves upon
the Court to examine the sources of International Law to determine the
merits
p.52
of
such a plea. If the Court finds that the army regulations of some
members of the family of nations provide that superior order is a
complete
defence and that the army regulations of other nations express a
contrary view, the Court would be obliged to hold, assuming for the sake
of argument only that such regulations constitute a competent source of
International Law, that general acceptation or consent was lacking among
the family of nations. Inasmuch as a substantial conflict exists among
the nations whether superior order is a defence to a criminal charge, it
could only result in a further finding that the basis does not exist for
declaring superior order to be a defence to an International Law crime.
But, as we have already stated,. army regulations are not a competent
source of International Law when a fundamental rule of justice is
concerned. This leaves the way clear for the Court to affirmatively
declare that superior order is not a defence to an International Law crime if
it finds that the principle involved is a fundamental rule of
justice and for that reason has found general acceptance.
“
International Law has never approved the defensive plea of superior
order as a mandatory bar to the prosecution of war criminals. This
defensive plea is not available to the defendants in the present case,
although if the circumstances warrant, it may be considered in
mitigation of punishment under the express provisions of Control Council
Law No. 10.”
Part I Part
II Part III Part
IV Part V Part
VI
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