Source: United Nations War Crimes Commission. Law Reports of Trials of War Criminals. Volume VIII, 1949

CASE No. 47




Part V

Part I  Part II  Part III  Part IV  Part V  Part VI

Notes on the Case

The Law Relating to Hostages and Reprisals (Continued.)


individual accused were concerned, (Footnote 1: In similar circumstances the Tribunal which conducted the High Command Trial (Trial of Von Leeb and Others, to be reported in a later volume of this series), was content to state that: 

“ In the Southeast Case, United States v. Wilhelm List, et al (Case No. 7), the Tribunal had occasion to consider at considerable length the law relating to hostages and reprisals. It was therein held that under certain very restrictive conditions and subject to certain rather extensive safeguards, hostages may be taken, and after a judicial finding of strict compliance with all preconditions and as a last desperate remedy hostages may even be sentenced to death. It was held further that similar drastic safeguards, restrictions, and judicial pre-conditions apply to so-called ‘ reprisal prisoners ‘. If so inhumane a measure as the killing of innocent persons for offences of others, even when drastically safeguarded and limited, is ever permissible under any theory of international law, killing without full compliance with all requirements would be murder. If killing is not permissible under any circumstances, then a killing with full compliance with all the mentioned prerequisites still would be murder. 
“ In the case here presented, we find it unnecessary to approve or disapprove the conclusions of law announced in said Judgment as to the permissibility of such killings. In the instances of so-called hostage taking and killing; and the so-called reprisal killings with which we have to deal in this case, the safeguards and pre-conditions required to be observed by the Southeast Judgment were not even attempted to be met or even suggested as necessary. Killings without full compliance with such pre-conditions are merely terror murders. If the law is in fact that hostage and  reprisal killings are never permissible at all, then also the so-called hostage and reprisal killings in this case are merely terror murders.”) 

the Tribunal apparently considered that sufficient uncertainty existed in the law relating to hostages and reprisals to justify its ruling that the killing of hostages could be legal in certain circumstances and it took the opportunity to make clear its regret that the matter had not been dealt with by international agreement. (Footnote 2: See p. 63.) In this it was echoing the sentiments expressed in Oppenheim-Lauterpacht, International Law, Volume II, Sixth Edition, at page 461, as a result of the experiences of the first World War :

“ During the World War, Germany adopted a terrible practice of taking hostages in the territories occupied by her armies, and shooting them when she believed that civilians had fired upon German troops.  The experience of the World War shows that the taking of hostages is a matter urgently demanding regulation; the Hague Regulations do not mention it.”

On the question of reprisals, the same authority has said, on pages 449-50 :

“ In face of the arbitrariness with which, according to the present state of International Law, resort can be had to reprisals, it cannot be denied that an agreement upon some precise rules regarding them is an imperative necessity. The events of the World War illustrate the present condition of affairs. The atrocities committed by the German army in Belgium and France, if avowed at all, were always declared by the German Government to be justified as measures of reprisal. There is no doubt that Article 50 of the Hague Regulations, enacting that no general penalty, pecuniary or otherwise, may be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible, does not prevent the burning, by way of reprisals, of villages or even towns, for a treacherous attack committed there on enemy soldiers by unknown individuals, and, this being so, a brutal belligerent has his opportunity. It should, therefore, be expressly enacted that reprisals, like ordinary penalties, may not be 


inflicted on the whole population for acts of individuals for which it cannot be regarded as collectively responsible. The Convention of 1929 concerning the Treatment of Prisoners of War, in prohibiting altogether the use of reprisals against prisoners of war, showed, in another sphere, the feasibility of conventional regulation of this matter.  The potentialities of aerial warfare and the extreme vulnerability of non-combatants to its attacks tend to emphasise the urgency of agreements of this nature. In the absence of such agreements there remains the danger, clearly revealed during the World War, that reprisals instead of being a means of securing legitimate warfare may become an effective instrument of its wholesale and cynical violation in matters constituting the very basis of the law of war.”

The Tribunal has thus performed a service by pointing out the need for international regulation on the question of the taking of reprisals and the killing of hostages. It would be useful for any conference or other body called upon to perform that task to be supplied with a statement of the authorities upon which the Tribunal relied in coming to its decision as far as those can be ascertained. As has been seen, (Footnote 1: See p.77) the Tribunal itself did not state in detail what its authorities were; it would have been particularly useful to know the authorities on which the Tribunal relied in laying down the detailed  conditions on which hostages or reprisal prisoners may be killed.

An examination of the speeches of Counsel, however, throws some light on the possible authorities on which the Tribunal may have relied in arriving at certain of its conclusions. This is mainly true of the Defence speeches.

In their pleadings before the Tribunal, the Prosecution submitted that : “ The concepts of ‘ hostage ’ and ‘ reprisal ’ both derive from relations between nations, or between their opposing armed forces, and not from the relations between a nation or its armed forces on the one hand and the civilian population of an occupied territory on the other.”

It was added that, although the Hague Convention contained no “ express provisions concerning either the taking or the execution of hostages in occupied territory ” and even if Articles 43 and 46 thereof did not explicitly forbid such practices, “ full account must be taken of the preamble to the Convention which declared that ‘ until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity, and the dictates of the public conscience.’ ” The Prosecution continued : “ The majority of the text writers in the field of International Law,‘ ancient and modern, have determined, either from the unwritten usages of war, or by clear implication from the language of the Hague Convention, that the killings of hostages, under the circumstances and for the purposes with which we are here concerned, is unlawful, and that the continued confinement of hostages is as far as the occupying

p. 82.

power is permitted to go. For example, Oppenheim sanctions the taking of hostages by the occupying power only ‘ provided that he does not kill them.’ The classical statement by Grotius that ‘ hostages should not be put to death unless they have themselves done wrong ’ is in accordance with the views of other old authorities and has been echoed in more recent times not only by Oppenheim but by Garner, and others. As might be expected, in view of the German propensity for occupying the territory of neighbouring countries, and the sustained practice of the German Army in recent decades, German scholars take the contrary view, and defend the execution of hostages as a necessary measure in the event of continued civil disturbances, dangerous to the security of the occupying forces. A few English and American writers have expressed agreement with this view and argue, theoretically rather than practically, that there is a fundamental absurdity in taking hostages if they cannot be executed.” In dealing with the provisions of the British and United States Military Manuals on this point, the Prosecution observed that while “ the American manual states that ‘ hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy forces or people may be punished or put to death if the unlawful acts are nevertheless committed ’,” it added “ that ‘ when a hostage is accepted, he is treated as a prisoner of war ’ and that ‘ reprisals against prisoners of war are expressly forbidden by the Geneva Convention of 1929 ’.”

It was also pointed out by the Prosecution that “ ‘The London Charter’, in Article 6 (b), and Control Council Law No. 10, in paragraph 1 (b) of Article II, both recognise the ‘ killing of hostages ’ as a war crime. The opinion of the International Military Tribunal makes repeated reference to the. killing of hostages as a war crime. . . .(Footnote 1: See British Command Paper, Cmd. 6964, pp. 48 and 49-50) The provisions of Law No. 10 are not only binding upon the Tribunal, but are in accordance with the views which most authorities in the field have held for decades past.” 

These views of the Prosecution must be taken to have been overruled by the Tribunal and do not therefore throw light on the possible reasons for the Tribunal’s ruling.

Much of the arguments of the Defence were devoted to showing that the persons, on account of whose activities against the German army reprisal action was taken, were not entitled to recognition as legitimate belligerents.  As has been seen,(Footnote 2: See pp.55-9) the Tribunal decided that, while certain forces were active in the areas in question which were entitled to such recognition, they did not include the guerrilla forces whose activities were relevant in this trial.

The Defence made certain remarks also on the question of hostages and reprisals which may be dealt with, according to the conclusions of the Tribunal to which they relate, as follows :

(i) The Defence claimed the authority of, among others, Professor Lauterpacht for claiming that certain acts of reprisal were legal under International Law and could not therefore be regarded as war crimes.(Footnote 3: See pp. 3-4 of this volume. The Defence also quoted the passages from the British and United States Military Manuals which the Tribunal cited. See p. 63.)


Such legal acts of reprisal included acts taken by an occupying power with a view to forcing the civilian population to desist from illegal conduct.  At a later point, Defence Counsel quoted a statement made by the Judge Advocate in the Kesselring Trial (Footnote l: See pp. 12-13.) that : “ It cannot be excluded entirely that innocent persons may be shot by way of reprisals ; the International Law is very flexible.”

Counsel added that : “ neither in the London Statutes nor in the Control Council Law No. 10 is the killing of persons by way of reprisal designated as a war crime although this problem had no lesser practical importance during World War II than the problem of killing hostages.” The position of the Defence was that the killing of hostages which was prohibited by the Charter of the International Military Tribunal and Law No. 10, as by paragraph 461 of the British Manual, to which Counsel also made reference, (Footnote 2: “ 461. The practice of taking hostages as a means of securing legitimate warfare was in former times very common. To ensure the observance of treaties, armistices and other agreements depending on good faith, hostages were given or exchanged, whose lives were held responsible for any perfidy. This practice is now obsolete, and if hostages are nowadays taken at all they have to suffer in captivity, and not death, in case the enemy violates the agreements in question. The Hague Rules do not mention hostages, and it must be emphasized that in modern times it is deemed preferable to resort to territorial guarantees instead of taking hostages.” ) was the execution of hostages in the old sense of prisoners held as a guarantee of the observance of treaties, armistices or other agreements, or of persons taken by an occupying power as security for requisitions and contributions and not the killing of inhabitants of occupied territories with the aim of ensuring the observance of good order in such territories. (Footnote 3: The prosecution replied that it was inconceivable that, since thousands of hostages were executed in reprisal for hostile acts during the last two wars, this was not precisely the practice which the Charter and Control Council Law condemned. If these statutes were held not to include the execution of all kinds of hostages, they would be completely anachronistic and meaningless.) Of the latter, Counsel claimed : “ In the modern hostage form, however, the killing or other punishment of the hostages are at least preponderantly reprisals, that is, compulsory measures adopted against acts of the civilian population or the enemy forces committed contrary to International Law in order to force them to abide by martial law. The Prosecutor already said in his opening   statement that ‘ the purpose of taking hostages is to place oneself into a position of being able to adopt retaliatory measures.’ The nature of reprisals of the modern hostage practice has been recognised especially clearly in composing the American Rules of Land Warfare as follows from the incorporation of No. 358 (d), which deals with hostages, into the rules on reprisals.” It was prisoners of the former type, according to the Defence, who were entitled to prisoner of war rights and were guaranteed such rights by paragraph 359 of the United States Military Manual, Rules of Land Warfare, according to which “. . . when a hostage is accepted he is treated as a prisoner of war.”

(ii)       The Tribunal made clear its opinion that shooting of hostages or reprisal prisoners can only be legal as a last resort. Defence Counsel quoted paragraph 454 of the British Manual: “ Reprisals are an extreme measure because in most cases they inflict suffering upon innocent persons. In this, however, their coercive force exists, and they are indispensible as a


last resource,” and it may be added that paragraph 358 (b) of the United States Manual states that “ Reprisals are never adopted merely for revenge, but only as an unavoidable last resort. . . .”

The Tribunal set out a detailed list of the steps which must be taken before shooting hostages or reprisal prisoners, in an attempt to secure the cessation of offences. (Footnote 1: See p. 62.) These steps were not suggested in the pleas of Counsel, but it was perhaps open to the Tribunal to take judicial notice of the fact that certain courses were open to the administrator of occupied territory faced with attacks from illegal belligerents.

(iii) The Defence made no remarks which can be related to the Tribunal’s finding that reprisal action must not be taken as a matter of military expediency, but this conclusion would in any case command universal support.

(iv) As to the connection between reprisal victims and the offences whose recurrence it is hoped to prevent, Defence Counsel made the following submission : “ At times, a territorial connection between the hostages and the preceding action was demanded. However, no reasons can be given for such a demand, not even with Article 50 of the Hague Rules of Land Warfare-as is being attempted occasionally-because Article 50 does not refer to reprisal measures. From the nature of reprisal measures as coercive measures, a general principle results, which Professor Bonfils has formulated in the following way :

“ ‘ Reprisals have to be such as not to fail to impress those who are the authors and instigators of the excess in question.’  
“ Territorial connection between hostages and perpetrators might have played a part in earlier days when acts of resistance and sabotage against the occupation forces mostly emanated from a limited circle of persons. However, it was of no importance, whatsoever, in Yugoslavia and Greece, where the resistance activity emanated from forces which reached beyond all local frontiers. In such a situation only the spiritual connection between hostages and perpetrators could be taken into account, such as it becomes apparent from the membership in or support of the illegal resistance forces, or merely from the fact of a common national basis.”

It cannot be said that this submission of the Defence throws any great light on the problem of the relation which must be shown between offences and victims, and even the rather indefinite test applied by the Tribunal to this crucial point would not render legal reprisal action taken against innocent victims having only a common nationality with those responsible for breaches of order in occupied territories.

(v)  The rule that reprisals may not be taken if the actual perpetrators of offences can be found was suggested by, inter alia, Article 358 (c) of the United States Basic Field Manual, Rules of Land Warfare, which was quoted by the Defence and which states that :

“ Illegal acts of warfare justifying reprisals may be committed by a government, by its military commanders, or by a community or


individuals thereof, whom it is impossible to apprehend, try, and punish.” (Footnote 1: Italics inserted [in original])

Article 458 of the British Manual of Military Law makes the same proviso.(Footnote 2: See p. 63.)

(vi) Defence Counsel claimed that hostages could be shot “ if the unlawful acts are committed by the opposite side in spite of warnings “(Footnote 3: Counsel made reference to para. 358 (d) of the United States Manual, which speaks of “ Hostages taken and held for the declared  purpose of insuring against unlawful acts by the enemy forces or people.”) and as has been seen the Tribunal also pointed out the necessity to give the populace due warning that, if illegal acts continued, reprisal action would be taken.

(vii)  It is an accepted principle of reprisal law that the reprisal action shall be in some way proportionate to the acts anticipated, and this is laid down for instance in paragraph 459 of the British Manual, which the Defence cited :

“ What kinds of acts should be resorted to as reprisals is a matter for the consideration of the injured party. Acts done by way of reprisals must not, however, be excessive, and must not exceed the degree of violation committed by the enemy.”

(viii)  The Tribunal’s ruling that reprisal action may only follow a judicial proceeding could not, on the other hand, have been suggested by anything which Counsel said. The Defence claimed that there was no rule laying down that a commander less than a division commander may not order reprisals. Counsel referred to paragraph 358 (b) of the United States Manual according to which, if immediate action is demanded, as a matter of military necessity, “ a subordinate commander may order appropriate reprisals upon his own initiative.” (Footnote 4: See pp.1-8.)

The possibility remains that a comparison with other relevant trials may help in elucidating the law on these questions or in showing where lacunae exist therein.

Among others, three trials reported in this present volume apart from the Hostages Trial are relevant in this connection: the Trial of Von Mackensen and Melzer, (Footnote 4: See pp. 1-8) the Trial of Kesselring, (Footnote 5: See pp. 9-14) and the Trial of Franz Holstein and 23 Others. (Footnote 6: See pp. 22-23)

 The Judge Advocate acting on the second of these three trials expressed the opinion that there was “ nothing which makes it absolutely clear that in no circumstances-and especially in the circumstances which 1 think are agreed in this case-that an innocent person properly taken for the purpose of a reprisal cannot be executed.” Nevertheless, the British Military Courts which conducted the first two trials mentioned above must be taken, in finding the accused guilty, to have rejected the plea of legitimate reprisals on the facts of the two cases, and the confirming officer did not upset the findings of guilty passed on the accused. Nor did the accused in the third trial, which was conducted before a French Military Tribunal, benefit from any consideration that their acts might be justifiable as legitimate reprisals,


for here again the offences proved to have taken place went beyond what could be considered as legitimate even taking into account the unsettled state of the law on this point.

Two further trials may be mentioned. The Dostler case, illustrates the rule laid down in Article 2 of the Geneva Prisoners of War Convention, that there can be no legitimate reprisals against a prisoner of war. (Footnote l: See Vol. I of this series, pp. 28-31) The Trial of Bruns and two others provides evidence that, since the purpose of reprisal action is to coerce an adversary (or, it may be added, an inhabitant of occupied territory) to observe International Law, it is one test of the bonā fides of such action that its being taken should be publicly announced (Footnote 2: See Vol. III, pp. 21-2).  Finally, it is of interest to quote the contents of the section headed Reprisals of the Judgment in the Einsatzgruppen Trial (Footnote 3: See p. 90). It will be noted that the Tribunal which conducted this case had no hesitation in regarding Article 50 of the Hague Regulations as being applicable to the taking of reprisals and consequently ruled that reprisals may only be taken against persons who can be regarded as jointly responsible for the acts complained of:

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

“ Article 50 of the Hague Regulations states unequivocally :

“ ‘ No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.’

“ Thus, when, as one report says, 859 out of 2,100 Jews shot in alleged reprisal for the killing of twenty-one German soldiers near Topola, were taken from concentration camps in Yugoslavia, hundreds of miles away, it is obvious that a flagrant violation of International Law occurred and outright murder resulted. That 2,100 people were killed in retaliation for twenty-one deaths only further magnifies the criminality of this savage and inhuman so-called reprisal.

Hyde, International Law, Vol. III, page 35, has this to say on reprisals :

“ ‘A belligerent which is contemptuous of conventional or customary prohibitions is not in a position to claim that its adversary when responding with like for like, lacks the requisite excuse.’ 
 “If it is assumed that some of the resistance units in Russia or members of the population did commit acts which were in themselves  


unlawful under the rules of war, it would still have to be shown that these acts were not in legitimate defence against wrongs perpetrated upon them by the invader. Under International Law, as in domestic law, there can be no reprisal against reprisal. The assassin who is being repulsed by his intended victim may not slay him and then, in turn, plead self-defence.  

“ Reprisals, if allowed, may not be disproportionate to the wrong for which they are to retaliate. The British Manual of Warfare, after insisting that reprisals must be taken only in last resorts, states :  
“ ‘
459 . . . Acts done by way of reprisals must not, however, be excessive and must not exceed the degree of violation committed by the enemy.’

“ Similarly, Article 358 of the American Manual states :  
“ ‘ (b) When and how employed :  
Reprisals are never adopted merely for revenge, but only as an unavoidable last resort to induce the enemy to desist from illegitimate practices. . . .  
(c) Form of reprisals :  
The acts resorted to by way of reprisals. . . should not be excessive or exceed the degree of violations committed by the enemy.’

“ Stowell, in the American Journal of International Law, quoted General Halleck on this subject :  
“ ‘ Retaliation is limited in extent by the same rule which limits punishment in all civilised governments and among all Christian people-it must never degenerate into savage or barbarous cruelty.’ (Stowell,
American Journal of’ International Law, Vol. 36, p. 671.) 

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

The remark that “ under International Law, as in domestic law, there can be no reprisal against reprisal ” (since a legal reprisal cannot create the grounds for a legal counter-reprisal) suggests that the inhabitant of an occupied territory is not always bound to refrain from hostile acts against the occupying power and is reminiscent of a paragraph from an article by two learned authors which states that :

“ The Germans have violated every duty of the occupying power to the civilian population. Automatically then the oppressed populations are released from any obligation of obedience : they cannot be denied the right of self-defence. The taking of hostages by the Germans for the purposes of reprisal and, generally, to maintain order in Europe, can have no legal sanction. Where expediency and legality have coincided, acceptable examples of hostage-taking may be found. But these result more from circumstance than from deference to International Law. In no way do they mitigate the illegality of the German position.  By destroying the basic legal relationship between the occupant and the civilian, the Germany have created a reign of terror.(Footnote l: Ellen Hammer and Marina Salvin, “The Taking of Hostages in Theory and Practice,” in American Journal of International Law, January, 1944, pp. 20-33)

Part I  Part II  Part III  Part IV  Part V  Part VI
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©S D Stein
Faculty of Economics and Social Science