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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 IV
Part I Part II
Part III Part IV
Part V Part VI
The Judgment of the Tribunal
The Plea of Military Necessity
The Extent of Responsibility
of the Commanding General of Occupied Territory
The Legal Position of Italian
Troops who Resisted German Demands for Surrender
The Legal Status of the
"Croatian Government."
General Remarks on the Mitigation
of Punishment
The Findings of the Tribunal
Notes on the Case
The Law
Relating to Hostages and Reprisals
p.66
(ix) The Plea of Military Necessity
The
Judgment dealt with this plea as follows :
“
Military necessity has been invoked by the defendants as justifying the
killing of innocent members of the population and the destruction of
villages and towns in the occupied territory. Military necessity permits
a belligerent, subject to the laws of war, to apply any amount and kind
of force to compel the complete submission of the enemy with the least
possible expenditure of time, life and money. In general, it sanctions
measures by an occupant necessary to protect the safety of his forces
and to facilitate the success of his operations. It permits the
destruction of life of armed enemies and other persons whose destruction
is incidentally unavoidable by the armed conflicts of the war ; it
allows the capturing of armed enemies and others of peculiar danger, but
it does not permit the killing of innocent inhabitants for purposes of
revenge or the satisfaction of a lust to kill. The destruction of
property to be lawful must be imperatively demanded by the necessities
of war. Destruction as an end in itself is a violation of International
Law. There must be some reasonable connection between the destruction of
property and the overcoming of the enemy forces. It is lawful to destroy
railways, lines of communication or any other property that might be
utilised by the enemy. Private homes and churches even may be destroyed
if necessary for military operations. It does not admit of wanton devastation of a district or the
wilful infliction of suffering upon its inhabitants for the sake of
suffering alone. . . .
“
It is apparent from the evidence of these defendants that they
considered military necessity, a matter to be determined by them, a
complete justification of their acts. We do not concur in the view that
the rules of warfare are anything less than they purport to be. Military
necessity or expediency do not justify a violation of positive rules.
International Law is prohibitive law. Articles 46, 47 and 50 of
the Hague Regulations of 1907 make no such exceptions to its enforcement.
The rights of the innocent population therein set forth.
p.67
must
be respected even if military necessity or expediency decree
otherwise.”
At
a later point, in a section of its Judgment dealing with the individual
acused, the Tribunal made the following remarks regarding List :
“
The record shows that after the capitulation of Yugoslavia and Greece,
the defendant List remained as the commanding general of the occupied
territory. As the resistance movement developed, it became more
and more apparent that the occupying. forces were insufficient to
deal with it. Repeated appeals to the High Command of the Armed Forces
for additional forces were refused with the demand for a
pacification of
the occupied territory by more draconic measures. These orders
were protested by List without avail. He contends that although such
orders were in all respects lawful, he protested from a humanitarian viewpoint.
It is quite evident that the High Command insisted upon
a campaign of intimidation and terrorism as a substitute for additional
troops. Here again the German theory of expediency and military
necessity (Kriegsraeson geht vor Kriegsmanier) superseded established
rules of International Law. As we have previously stated in this
opinion, the rules of International Law must be followed even if it
results in the loss of a battle or even a war. Expediency or necessity
cannot warrant their violation. What then was the duty of the Armed
Forces Commander South-east ? We think his duty was plain. He was
authorised to pacify the country with military force; he was entitled to
punish those who attacked his troops or sabotaged his transportation and
communication lines as francs tireurs; he
was entitled to take precautions against those suspected of
participation in the resistance movement, such as registration,
limitations of movement, curfew regulations, and other measures
hereinbefore set forth in this opinion. As a last resort, hostages and
reprisal prisoners may be shot in accordance with international custom
and practice. If adequate troops were not available or if the lawful
measures against the population failed in their purpose, the occupant
could limit its operations or withdraw from the country in whole or in
part, but no right existed to pursue a policy in violation of
International Law.”
Of
the accused Rendulic, however, it was said :
“
The defendant is charged with the wanton destruction of private and
public property in the province of Finnmark, Norway, during the retreat
of the XXth Mountain Army commanded by him. The defendant contends that
military necessity required that he do as he did in view of the military
situation as it then appeared to him.
“ The evidence shows that in the spring of 1944, Finland had
attempted to negotiate a peace treaty with Russia without success. This
furnished a warning to Germany that Finland might at any time remove
itself as an ally of the Germans. In June, 1944, the Russians commenced
an offensive on the southern Finnish frontier that produced a
number of successes and depressed Finnish morale. On 24th
June, 1944,
the defendant Rendulic was appointed commander-in-chief of the XXth
Mountain Army in Lapland. This army was committed from the
Arctic Ocean south to the middle of Finland along its eastern.
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frontier.
Two army corps were stationed in central Finland and one on the coast of
the Arctic Ocean. The two groups were separated by 400 kilometres of
terrain that was impassible for all practicable purposes.
“ On 3rd September, 1944, Finland negotiated a
separate peace with Russia and demanded that the German troops withdrew
from Finland within fourteen days, a demand with which it was impossible
to comply. The result was
that the two army corps to the south were obliged to fight their way out
of Finland. This took three months’ time. The distance to the
Norwegian border required about 1,000 kilometers of travel over very
poor roads at a very inopportune time of year. The Russians attacked
almost immediately and caused the Germans much trouble in extricating
these troops. The XIXth Corps located on the Arctic coast was also
attacked in its position about 150 kilometres east of Kirkenes, Norway.
The retreat into Norway was successful in that all three army corps with
their transport and equipment arrived there as planned. The difficulties
were increased in middle October when the four best mountain divisions
were recalled to Germany, thereby reducing the strength of the army by
approximately one-half.
“
The evidence shows that the Russians had very excellent troops in
pursuit of the Germans. Two or three land routes were open to them as
well as landings by sea behind the German lines. The defendant knew that
ships were available to the Russians to make these landings and that the
land routes were available to them. The information obtained concerning
the intentions of the Russians was limited. The extreme cold and the
short days made air reconnaissance almost impossible. It was with this
situation confronting him that he carried out the ' scorched earth ' policy in the Norwegian province of Finnmark which provided the basis
for this charge of the indictment.
“ The record shows that the Germans removed the population
from Finnmark, at least all except those who evaded the measures taken
for their evacuation. The evidence does not indicate any loss of life
directly due to the evacuation. Villages were destroyed. Isolated
habitations met a similar fate. Bridges and highways were blasted.
Communication lines were destroyed. Port installations were
wrecked. A complete
destruction of all housing, communication and transport facilities was
had. This was not only true along the coast and highways, but in the
interior sections as well. The destruction was as complete as an
efficient army could do it. Three years after the completion of the
operation, the extent of the devastation was discernible to the eye.
While the Russians did not follow up the retreat to the extent
anticipated, there are physical evidences that they were expected to do
so. Gun emplacements,
fox-holes, and other defence installations are still perceptible in the
territory. In other words there are mute evidences that an attack was
anticipated.
“
There is evidence in the record that there was no military necessity for
this destruction and devastation. An examination of the facts in retrospect
can well sustain this conclusion. But we are obliged to judge
the situation as it appeared to the defendant at the time. If the
facts were such as would justify the action by the exercise of judgment,
after
giving consideration to all the factors and existing possibilities, even
though the conclusion reached may have been faulty, it
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cannot
be said to be criminal. After giving careful consideration to all the
evidence on the subject, we are convinced that the defendant cannot be
held criminally responsible although when viewed in retrospect, the
danger did not actually exist.
“
The Hague Regulations prohibited ‘ The destruction or seizure of enemy
property except in cases where this destruction or seizure is urgently
required by the necessities of war.’ Article 23 (g). The Hague
Regulations are mandatory provisions of International Law.
The prohibitions therein contained control and are superior to
military necessities of the most urgent nature except where the
Regulations themselves specifically provide the contrary. The
destructions of public and private property by retreating military
forces which would give aid and comfort to the enemy, may constitute a
situation coming within the exceptions contained in Article 23 (g). We
are not called upon to determine whether urgent military necessity for
the devastation and destruction in the province of Finnmark actually
existed. We are concerned with the question whether the defendant at the
time of its occurrence acted within the limits of honest judgment on the
basis of the conditions prevailing at the time. The course of a military
operation by the enemy is loaded with uncertainties, such as the
numerical strength of the enemy, the quality of his equipment, his
fighting spirit, the efficiency and daring of his commanders, and the
uncertainty of his intentions. These things when considered with his own
military situation provided the facts or want thereof which furnished
the basis for the defendant’s decision to carry out the ‘ scorched
earth ’ policy in Finnmark as a precautionary measure against an
attack by superior forces. It is our considered opinion that the
conditions as they appeared to the defendant at the time were
sufficient, upon which he could honestly conclude that urgent military
necessity warranted the decision made. This being true, the defendant
may have erred in the exercise of his judgment but he was guilty of
no criminal act. We find the defendant not guilty on this portion of the
charge.”
(x) The Extent of Responsibility of the Commanding General of Occupied Territory
On
this point the Tribunal expressed its opinion in these words :
“
We have herein before pointed out that it is the duty of the
commanding general
in occupied territory to maintain peace and order, punish
crime and protect lives and property. This duty extends not only
to the inhabitants of the occupied territory but to his own troops and
auxiliaries as well. The commanding general of occupied territory having
executive authority as well as military command, will not be
heard to say that a unit taking unlawful orders from someone other than
himself, was responsible for the crime and that he is thereby absolved
from responsibility. It is here claimed, for example, that certain
SS units under the direct command of Heinrich Himmler committed certain
of the atrocities herein charged without the knowledge, consent
or approval of these defendants. But this cannot be a defence for
the commanding general of occupied territory. The duty and
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responsibility
for maintaining peace and order, and the prevention of crime rests upon
the commanding general. He cannot ignore obvious facts and plead
ignorance as a defence. The fact is that the reports of subordinate
units almost without exception advised these defendants of the policy of
terrorism and intimidation being carried out by units in the field. They
requisitioned food supplies in excess of their local need and caused it
to be shipped to Germany in direct violation of the laws of war.
Innocent people were lodged in collection and concentration camps where
they were mistreated to the everlasting shame of the German nation.
Innocent inhabitants were forcibly taken to Germany and other points for
use as slave labour. Jews, Gypsies and other racial groups were the
victims of systematised murder or deportation for slave labour for no
other reason than their race or religion, which is in violation of the
express conventional rules of the Hague Regulations of 1907. The German
theory that fear of reprisal is the only deterrent in the enforcement of
the laws of war cannot be accepted here. That reprisals may be indulged
to compel an enemy nation to comply with the rules of war must be
conceded.
“
It is not, however, an exclusive remedy. If it were, the persons
responsible would seldom, if ever, be brought to account. The only
punishment would fall upon the reprisal victims who are usually innocent
of wrong-doing. The prohibitions of the Hague Regulations of 1907
contemplate no such system of retribution. Those responsible for such
crimes by ordering or authorising their commission, or by a failure to
take effective steps to prevent their execution or recurrence, must be
held to account if International Law is to be anything more than an
ethical code, barren of any practical coercive deterrent.”
A
little later, the Tribunal made the following ruling :
“
An army commander will not ordinarily be permitted to deny knowledge
of reports received at his headquarters, they being sent there for
his special benefit. (Footnote 1:
Of the accused Kuntze, the Tribunal later ruled that : “ The
collection of Jews and Gypsies in collection or concentration camps
merely because they are such, is likewise criminal.
The defendant claimed that he never heard of any such action against
Jews or Gypsies in the Southeast. The reports in the record which
were sent to him in his capacity as
Wehrmacht Commander Southeast, charge him with knowledge of these acts.
He cannot
close his eyes to what is going on around him and claim immunity from
punishment because he did not know that which he is obliged to know.”) Neither will he ordinarily be permitted to
deny
knowledge of happenings within the area of his command while he
is present therein. It would strain the credulity of the Tribunal to believe
that a high ranking military commander would permit himself to
get out of touch with current happenings in the area of his command during
war time. No doubt such occurrences result occasionally because
of unexpected contingencies, but they are the unusual. With reference
to statements that responsibility is lacking where temporary absence
from headquarters for any cause is shown, the general rule to be
applied is dual in character. As to events occurring in his absence resulting
from orders, directions or a general prescribed policy formulated by
him, a military commander will be held responsible in the absence
of special circumstances. As to events, emergent in nature and
presenting matters for original decision, such commander will not
p.71
ordinarily
be held responsible unless he approved of the action taken when it came
to his knowledge.
“
The matter of subordination of units as a basis of fixing criminal
responsibility becomes important in the case of a military commander
having solely a tactical command. But as to the commanding general of
occupied territory who is charged with maintaining peace and order,
punishing crime and protecting lives and property, subordinations are
relatively unimportant. His responsibility is general and not limited to
a control of units directly under his command. Subordinate commanders
in occupied territory are similarly responsible to the extent that
executive authority has been delegated to them.”
Elsewhere
the Judgment laid down that a commanding general “ is charged with
notice of occurrences taking place within that territory. He may require
adequate reports of all occurrences that come within the scope of his
power and, if such reports are incomplete or otherwise inadequate, he is
obliged to require supplementary reports to apprise him of all the
pertinent facts. If he fails to require and obtain complete information,
the dereliction of duty rests upon him and he is in no position to plead
his own dereliction as a defence. Absence from headquarters cannot and
does not relieve one from responsibility for acts committed in
accordance with a policy he instituted or in which he acquiesced. He may
not, of course, be charged with acts committed on the order of someone
else which is outside the basic orders which he has issued. If time
permits he is required to rescind such illegal orders, otherwise he is
required to take steps to prevent a recurrence of their issue.
“
Want of knowledge of the contents of reports made to him is not a
defence. Reports to commanding generals are made for their special
benefit. Any failure to acquaint themselves with the contents of such
reports, or a failure to require additional reports where inadequacy
appears on their face, constitutes a dereliction of duty which he cannot
use in his own behalf.
“
The reports made to the defendant List as Wehrmacht Commander Southeast
charge him with notice of the unlawful killing of thousands of innocent
people in reprisal for acts of unknown members of the population who
were not lawfully subject to such punishment. Not once did he condemn
such acts as unlawful. Not once did he call to account those responsible
for these inhumane and barbarous acts.
His failure to terminate these unlawful killings and to take
adequate steps to prevent their recurrence, constitutes a serious breach
of duty and imposes criminal responsibility.”
(xi) The Legal Position of Italian
Troops who Resisted German Demands for Surrender
In
the course of its judgment, the Tribunal discussed the position of the
Italian officers who were executed after resisting the Germans at
Split.(Footnote 1: See p.45.)
“ It is the contention of the defendant Rendulic that the
surrender of the IXth Italian Army, commanded by General D’Almazzo,
brought
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about ipso facto the surrender of the Bergamo Division in Split and
that elements of this division by continuing to resist the German troops
became francs tireurs and thereby subject to the death penalty
upon capture. An analysis of the situation is required for
clarification. . . .
“ It must be observed that Italy was not at war with
Germany, at least in so
far as the Italian commanders were informed, and that the Germans were
the aggressors in seeking the disarmament and surrender of the Italian
forces. The Italian forces which continued to resist met all the
requirements of the Hague Regulations as to belligerent status.
They were not francs tireurs in any sense of the word.
Assuming the correctness of the position taken by the defendant that
they became prisoners of war of the Germans upon the signing of the
surrender terms, then the terms of the Geneva Convention of 1929,
regulating the treatment of prisoners of war were violated. No
representative neutral power was notified nor was a three months period
allowed to elapse before the execution of the death sentences. Other
provisions of the Geneva Convention were also violated. The coercion
employed in securing the surrender, the unsettled status of the Italians
after their unconditional surrender to the Allied forces and the lack of
a declaration of war by Germany upon Italy creates grave doubts whether
the members of the Bergamo Division became prisoners of war by virtue of
the surrender negotiated by General D’Almazzo. Adopting either view
advanced by the Defence, the execution of the Italian officers of the
Bergamo Division was unlawful and wholly unjustified. It represents another instance of the German practice of killing as the exclusive
remedy or redress for alleged wrongs. The execution of these Italian
officers after the tense military situation had righted itself and the
danger had passed cannot be described as anything but an act of
vengeance.”
(xii) The Legal Status of the “ Croatian
Government.”
In dealing with the case against the accused von Leyser, formerly
commander of the XXIst German Mountain Corps,(Footnote 1: See p.
45.) the Tribunal made the
following remarks concerning the so-called independent state of Croatia
:
“
The reprisal practice as carried out in this corps area and the alleged
deportation of inhabitants for slave labour is so interwoven with the
powers of the alleged independent state of Croatia that its status and
relationship to the German Armed Forces must be examined.
Prior to the invasion of Yugoslavia by Germany on 6th
April, 1941, Croatia was a part of the sovereign state of Yugoslavia and
recognised as such by the nations of the world. Immediately after the
occupation and on 10th April, 1941, Croatia was proclaimed an
independent state and formally recognised as such by Germany on 15th
April, 1941.In
setting up the Croatian government, the Germans, instead of employing
the services of the Farmers’ Party, which was predominant in
the country, established an administration with Dr. Ante Pavelitch
at
its head. Dr. Pavelitch was brought in from Italy along with others
p. 73
of
his group and established as the governmental head of the state of
Croatia even though his group represented only an estimated five per
cent of the population of the country. This government, on 15th
June, 1941, joined the Three Power Pact and, on 25th
November, 1941, joined the Anti-Comintern Pact. On 2nd July,
1941, Croatia entered the war actively against the Soviet Union and on
14th December, 1941, against the Allies. The Military Attaché
became the German Plenipotentiary General in Croatia and was
subordinated as such to the Chief of the High Command of the Armed
Forces. The territorial boundaries of the new Croatia were arbitrarily
established and included areas that were occupied by Serbians who were
confirmed enemies of the Croats.
“
The Croatian government, thus established, proceeded to organise a
national army, the troops of which are referred to in the record as
Domobrans. Certain Ustasha units were also trained and used. The
Ustasha in Croatia was a political party similar to the Nazi party of
Germany. Similar to the Waffen SS Divisions of the general Ustasha were
trained and used. In addition, by an alleged agreement between Germany
and Croatia, the Croatian government conscripted men from its population
for compulsory labour and military service. Many of these men were used
in German organised Croat Divisions and became a part of the Wehrmacht
under the command of German officers.
“ It is further shown by the evidence that all matters of
liaison were handled through the German Plenipotentiary General. It is
evident that requests of the Germans were invariably acceded to by the
Croatian government. It is quite evident that the answers to such
requests were dictated by the German Plenipotentiary General. Whatever
the form or the name given, the Croatian government during the German
war-time occupation was a satellite under the control of the occupying
power. It dissolved as quickly after the withdrawal of the Germans as it
had arisen upon their occupation. Under such circumstances, the acts of
the Croatian government were the acts of the occupation power.
Logic and reason dictate that the occupant could not lawfully do
indirectly that which it could not do directly. The true facts must
control irrespective of the form with which they may have been
camouflaged. Even
International Law will cut through form to find the facts to
which its rules will be applied. The conclusion reached is in accord with
previous pronouncements of International Law that an occupying power
is not the sovereign power although it is entitled to perform some acts of sovereignty. The Croatian government could exist only
at
the sufferance of the occupant. During the occupation, the German Military
Government was supreme or its status as a military occupant of
a belligerent enemy nation did not exist. Other than the rights of occupation
conferred by International Law, no lawful authority could be
exercised by the Germans. Hence, they had no legal right to create an
independent sovereign state during the progress of the war. They could
set up such a provisional government as was necessary to accomplish the
purposes of the occupation but further than that they could not
legally go. We are of the view that Croatia was at all times here
p.74
involved
an occupied country and that all the acts performed by it were those for
which the occupying power was responsible. (Footnote 1:
Compare a similar attitude adopted by the Tribunal which conducted the Milch
Trial, towards the Vichy Government.
See Vol. VII, pp. 38 and 46.) ”
Of
the accused’s claim that the disposition of the men captured as a
result of “ Operation Panther ” (Footnote 2: See
p.46.) was a matter for the “ Croatian Government and not his concern,” the Tribunal ruled as follows :
“
We point out that the Croatian government was a satellite government
and whatever was done by them was done for the Germans.
The captured men fit for military service were turned over to the
Croat administration and were undoubtedly conscripted into the
Domobrans, the Waffen Ustasha, the Croat units of the Wehrmacht or
shipped to Germany for compulsory labour just as the defendant well knew
that they would be. The occupation forces have no authority to conscript
military forces from the inhabitants of occupied territory. They cannot
do it directly, nor can they do it indirectly. When the defendant as
commanding general of the corps area participated in such an activity,
he did so in violation of International Law. The result is identical if
these captured inhabitants were sent to Germany for compulsory labour
service. Such action is also plainly prohibited by International Law as
the evidence shows. See Articles 6, 23, 46, Hague Regulations. We find
the defendant von Leyser guilty on this charge.” (Footnote 3: The charge referred to was defined by the Tribunal as
“ pertaining to the evacuation of large areas within the corps command
for the. purpose of conscripting the physically fit into the Croatian
military units and of conscripting others for compulsory labour
service.”)
(xiii) General
Remarks on the Mitigation of
Punishment
Towards
the end of its Judgment, the Tribunal made the following remark
regarding the circumstances which might be considered in mitigation of
punishment :
“
Throughout the course of this opinion we have had occasion to refer to
matters properly to be considered in mitigation of punishment.
The degree of mitigation depends upon many factors including the
nature of the crime, the age and experience of the person to whom it
applies, the motives for the criminal act, the circumstances under which
the crime was committed and the provocation, if any, that contributed
to its commission. It must be observed, however, that mitigation of
punishment does not in any sense of the word reduce the degree of the
crime. It is more a matter of grace than of defence.
In other words, the punishment assessed is not a proper criterion
to be considered in evaluating the findings of the Court with reference
to the degree of magnitude of the crime.”
In
dealing with the evidence against Dehner, the Tribunal said :
“
There is much that can be said, however, in mitigation of the punishment
to be assessed from the standpoint of the defendant. Superior
orders existed which directed the policy to be pursued in dealing
with the killing of hostages and reprisal prisoners. Such
p.75
superior
orders were known by his subordinate commanders, a situation that made
it difficult for him to act. That the defendant recognised certain
injustices and irregularities and attempted to correct them is evident
from the record. . . . Such examples of conscientious efforts to comply
with correct procedure warrant mitigation of the punishment.” (Footnote1:
The Tribunal dealt with the plea of superior orders more fully earlier
in its Judgment. See pp. 50-2.)
4.
THE FINDINGS
OF THE TRIBUNAL
During.
the course of its Judgment, the Tribunal found the accused not guilty of
certain of the allegations made against them :
“
Much has been said about the participation of these defendants in a
preconceived plan to decimate and destroy the populations of Yugoslavia
and Greece. The evidence will not sustain such a charge and we so find.
The only plan demonstrated by the evidence is one to suppress the bands
by the use of severe and harsh measures. While these measures
progressively increased as the situation became more chaotic, and
appeared to have taken a more or less common course, we cannot say that
there is any convincing evidence that these defendants participated in
such measures for the preconceived purpose of exterminating the
population generally.
“
Neither will the evidence sustain a finding that these defendants
participated in a preconceived plan to destroy the economy of the
Balkans. Naturally there was a disruption of the economy of these
countries but such only as could be expected by a military occupation.
There were unlawful acts that had the effect of damaging the
economy of Yugoslavia and Greece, possibly the result of a preconceived
plan, but the evidence does not show the participation of these
defendants therein.”
Of
List the Tribunal said : “ The evidence shows that after the capitulation
of the armies of Yugoslavia and Greece, both countries
were occupied within the meaning of International Law. It shows further
that they remained occupied during the period that List was Armed Forces
Commander Southeast. It is clear from the record also that the
guerrillas participating in the incidents shown by the evidence during
this period were not entitled to be classed as lawful belligerents
within the rules herein before announced.
We agree, therefore, with the contention of the defendant List
that the guerrilla fighters with which he contended were not lawful
belligerents entitling them to prisoner of war status upon capture. We
are obliged to hold that such guerrillas were francs tireurs who,
upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of
the execution of captured partisans in Yugoslavia and Greece during the
time he was Armed Forces Commander Southeast.” List was also found not
guilty of “ any crime in connection with the Commissar Order.“(Footnote
2: See p. 40.) He
was, however, found guilty on Counts One and Three as a whole.
Kuntze
and Rendulic were found guilty on Counts One, Three and Four.
Of
Foertsch, the Tribunal concluded that “ the nature of the position of
the defendant Foertsch as Chief of Staff, his entire want of command
p.76
authority
in the field, his attempts to procure the rescission of certain unlawful
orders and the mitigation of others, as well as the want of direct
evidence placing responsibility upon him, leads us to conclude that the
Prosecution has failed to make a case against the defendant. No overt
act from which a criminal intent could be inferred, has been
established.
“ That he
had knowledge of the doing of acts which we have herein held to be
unlawful under International Law cannot be doubted. It is not enough to
say that he must have been a guilty participant. It must be shown by
some responsible act that he was. Many of these acts were committed by
organisations over which the Wehrmacht, with the exception of the
commanding general, had no control at all. Many others were carried out
through regular channels over his voiced objection or passive
resistance. The evidence fails to show the commission of an unlawful
act which was the result of any action, affirmative or, passive, on the
part of this defendant. His mere knowledge of the happening of unlawful
acts does not meet the requirements of criminal law. He must be one who
orders, abets or takes a consenting part in the crime. We cannot say
that the defendant met the foregoing requirements as to participation.
We are required to say therefore that the evidence does not show beyond
a reasonable doubt that the defendant Foertsch is guilty on any of the
counts charged.”
Von
Geitner was also found not guilty, on the grounds of his not having been
shown to have taken any consenting part in illegal acts, “ coupled
with the nature and responsibilities of his position and the want of
authority on his part to prevent the execution of the unlawful acts
charged.”
Dehner was held “ criminally responsible for permitting or
tolerating ” the practice of illegally killing hostages and
reprisal prisoners “ on the part of his subordinate
commanders. ” He was found
guilty on Count One of
the Indictment.
Von
Leyser was found guilty on Counts Three and Four, Felmy on Counts One
and Two, Lanz on Counts One and Three, and Speidel on Count One.
List
and Kuntze were sentenced to life imprisonment, Rendulic and Speidel
were sentenced to imprisonment for twenty years, Felmy for fifteen
years, Lanz for twelve years, Leyser for ten years and Dehner for seven
years.
At
the time of going to press the sentences had not received the approval
of the Military Governor.
B. NOTES ON THE
CASE
The
most interesting passages in the Judgment of the Tribunal (Footnote l: See
pp.55-56) are those
dealing with the law concerning the taking and killing of hostages and
the question of reprisals.
The
Tribunal began by ruling that, at the relevant time, Yugoslavia,
Albania, Greece and Norway were occupied territories within the meaning
of the Hague Convention No. IV of 1907, and that the partisan bands,
p. 7 7
many
of whose members were victims of the accused’s acts, were not lawful
belligerents within the terms of Article 1 of the Convention, (Footnote
l:
Article 1 provides : “ The laws, rights and duties of war apply
not only to the army, but
also to militia and volunteer corps fulfilling all the following
conditions : (1) they must be commanded by a person responsible for his
subordinates ; (2)
they must have a fixed distinctive sign recognizable at a
distance ; (3) they must carry arms openly ; and (4)
they must conduct their operations in accordance with the laws
and customs of war. In countries where militia or volunteer corps
constitute the army, or form part of it they are included under the
denomination ' armv '.”) but
guerrillas liable to be shot on capture.
It
would seem that in the Tribunal’s opinion, it would be possible for a
fighting group to be entitled to belligerent status under Article 1 of
the Convention, even though not “ supported by an organised government
”; and “ where room exists for an honest error in judgment,” the
opposing commander “ is entitled to the benefit thereof by virtue
of. the presumption of his innocence.” (Footnote 2: See p.58
)
The
Tribunal laid down further that the rights and duties of an occupying
power were not altered by his having become such an occupant as the
result of aggressive warfare.
Turning
to the question of hostages and reprisals, the Tribunal pointed out that
it restricted its enquiry to “ the right to take hostages from the
innocent civilian population of occupied territory as a guarantee
against attacks by unlawful resistance forces, acts of sabotage and the
unlawful acts of unknown persons and the further right to execute them
if the unilateral guarantee is violated”; the taking of hostages to
compel armed forces to respect the laws of war would not be discussed.
(Footnote 3:
In the next paragraph, the Tribunal said that it was concerned only with
hostages taken
“ to ensure against unlawful acts by enemy
forces or
people.” This second reference to “ enemy forces ” must, however,
be taken to mean guerrilla units not falling within the
category of the legal belligerents.)
In
the opinion of the Tribunal the taking and shooting of hostages in order
to guarantee the peaceful conduct in the future of the populations of occupied
territories, may in certain circumstances be legal under International Law.
The Tribunal based its opinion upon the “ available evidence,”
which
was said earlier to consist of “ certain rules of customary law and
certain
inferences legitimately to be drawn from existing conventional law.“(Footnote
4: See pp.60 and 61.)
At a later point (Footnote 5: See p.63.) the Tribunal drew attention to the fact that
the
British Manual of Military Law permitted
the taking of
reprisals against a
civilian population (putting to death is not mentioned), and the United States
Basic Field
Manual (Rules of Land Warfare) even the putting to death
of hostages; and claimed that the killing of hostages was not prohibited
under
international agreement: but added : “ The taking of reprisals against
the civilian population by killing members thereof in retaliation for hostile
acts against the armed forces or military operations of the occupant seems
to have been originated by Germany in modern times. It has been invoked
by Germany in the France-Prussian War, World War I and in World
War II. No other nation has resorted to the killing of members
p.78
of
the civilian population to secure peace and order in so far as our
investigation has revealed.”
The
Tribunal stated that “ the taking of hostages is based fundamentally
on
a theory of collective responsibility,” and, in its consideration, of
Article 50 of the Hague Regulations, it may have been influenced by the report
of the Hague Conference of 1899 (page 151) which stated that the Article
was “ without prejudice of the question of reprisals ” (Quoted in
footnote
2 to paragraph 452 of Chapter XIV of the British Manual
of Military Law). Article
50 provides as follows :
“
Article 50. No collective penalty, pecuniary or otherwise, shall be
inflicted upon the population on account of the acts of individuals for
which it cannot be regarded as collectively responsible.”
The
conditions under which hostages may be taken and killed were said to be
the following :
(i)
the step should be taken only “ as a last resort ” and only
after regulations such as those elaborated by the Tribunal (Footnote l: see
p. 62.) had first
been enforced;
(ii)
the hostages may not be taken or executed as a matter of military
expediency;
(iii) “ The population generally ” must be a party “ either
actively or passively,” to the offences whose cessation is aimed at.
(The
Tribunal did not define the nature of “ active ” or “ passive ”
participation, but stated that “ some connection ” must be shown “
between the population from whom the hostages are taken and the crime
committed.” (Footnote 2:
Elsewhere, however, the Tribunal pointed out that there was “ nothing
to infer that
the population of Topola [from whom certain hostages had been taken and
shot] supported or shielded the guilty persons.” See p. 65.))
(iv) It must have proved impossible to find the actual perpetrators of
the offences complained of;
(v)
a proclamation must be made, “ giving the names and addresses
of hostages taken, notifying the population that upon the recurrence of
stated acts of war treason the hostages will be shot ”;
(vi) “ the number of hostages shot must not exceed in severity the
offences the shooting is designed to deter.”
(The
Tribunal did not, however, suggest any tests whereby such measures could
be related to offences whose perpetration was expected); and
(vii) “ Unless the necessity for immediate action is affirmatively
shown, the execution of hostages or reprisal prisoners without a
judicial hearing is unlawful.“(Footnote 3: See pp. 64-5.)
(It
was not stated on what charges hostages would be tried and what would
be the nature of proceedings taken against them; a passage in the judgment,
however, suggests that what was meant was not a trial in the
p.79
usual
sense but “ a judicial fiding that the necessary conditions exist and
the essential steps have been taken to give validity to such
action.” (Footnote 1: See p.64l)
The Tribunal next turned its attention to the taking and
killing of “reprisal prisoners ” whom it defined as “ those
individuals who are taken from the civilian population to be killed in
retaliation for offences committed by unknown persons within the
occupied area.” It may be thought that, according to the stress placed
by the Tribunal, such prisoners differ from hostages in that they are
killed after, and not in anticipation of, offences on the part of the
civilian population;(Footnote 2: See p.61) but, in practice, the difference is not likely
to be great, since reprisals are essentially steps taken to prevent
future illegal acts, just as are the taking and killing of hostages
according to the Tribunal’s definition. (Footnote 3: See p.61) Indeed the latter pointed
out that “ the most common reason for holding them [i.e., reprisal
prisoners] is for the general purpose of securing the good behaviour and
obedience of the civil population in occupied territory,” (Footnote
4: See p.63) and spoke
of the deterrent effect of the shooting of reprisal prisoners, (Footnote
4: See p.63-4) and the conditions under which, according to the Tribunal, it is legal
to take and shoot hostages on the one hand and reprisal prisoners on the
other are much the same. (Footnote 6: Compare pp. 61-2 with pp.
63-6.) In fact, the only practical difference
between “ hostages ” and “ reprisal prisoners ” seems to be that
the former are taken into custody before, and the latter only after, the
offences as a result of which they are executed.
It will be noted that, in its investigation of the question of
the legality of the shooting of hostages and reprisal prisoners, the
Tribunal preferred to express an opinion on the position as it appeared
to it to exist under customary International Law, and left out any
reference to Control Council Law No. 10 and the
Charter of the Nurenberg International Military
Tribunal, both of which include “
killing of hostages ” in their definition of “ war crimes.” On the
other hand, an examination of the judgment shows that the Tribunal’s
conclusion that the killing of hostages and reprisal prisoners may in
certain circumstances be legal has not been the reason for a finding of
not guilty regarding any of the accused in the trial with the possible
exception of the defendant von Leyser, of whom the Tribunal said : “
The evidence concerning the killing of hostages and reprisal prisoners
within the corps area is so fragmentary that we cannot say that the
evidence is sufficient to support a finding that the measures taken were
unlawful. The killing of
hostages and reprisal prisoners is entirely lawful under certain
circumstances. The evidence does not satisfactorily show in what
respect, if any, the law was violated. This is a burden cast upon the
prosecution which it has failed to sustain.” This accused was,
therefore, found not guilty under Count One of the Indictment, but
guilty on other counts.
While
its conclusion on the question of hostages and reprisals was not, therefore,
of any great practical importance as far as the findings on the
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Part III Part IV
Part V Part VI
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