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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 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.)
p.80
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
p.81
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.)
p.83
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
p.84
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
p.85
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,
p.86
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
p.87
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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