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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 VI
Part I Part
II Part III Part
IV Part V Part
VI
Notes on the Case
The Extent of
the Responsibility of Commanding Generals
The Limitations on the
Responsibility of a Chief of Staff
Liability for Unexecuted
Orders
The Plea of
Superior Orders
Other Factors Which
May be Considered in Mitigation of Punishment
p.88
The
judgment in the Hostages Trial includes
a similar passage. (Footnote l: See p.64)
The attitude taken to the question of the shooting
of hostages and reprisal prisoners by the Tribunals which tried on the
one hand the Hostages Trial and on the other the Einsatzgruppen
Trial can
be reconciled if the statement of the former, that the population
against whom action is taken must be a party to the offences whose
cessation is aimed at, is interpreted strictly, so as to ensure
observance of Article 50 of the Hague Convention. (Footnote 2: Persons who hid or otherwise shielded illegal belligerents could
probably be regarded as parties to their offences.
) This provision
received no treatment in the judgment in the Hostages Trial ; except in so far as it was said that the Convention made no provision
regarding hostages (Footnote 3: See p. 60) and, since the great bulk, if not the entirety, of
the killings of hostages or reprisal prisoners which were proved to have
taken place were held by the Tribunal to fall outside the range of legal
executions, there is no indication of the degree of connection between
the victims of the killings and the original or the feared offences
which the Tribunal would have regarded as sufficient to make these
victims “ parties ” to those offences.
On
the other hand, if persons are jointly responsible for an offence,
action
may
be taken against them irrespective of any law of reprisals, and this
suggests
that if a law of reprisals in occupied territories is to be preserved at
all, (Footnote 4: There is a feeling that the possibility of the taking
of some kind of reprisals is such a strong weapon in the hands of an
administrator of occupied territories that to abolish it altogether is
impracticable.
See Hammer and Salvin, op cit., p.33) three possible courses are open to the codifying agent
:-
(i)
to insist that the victims be in some way connected with the
offences but not necessarily so closely as to make them “ parties ”
in the usual legal sense;
(ii) to insist that the strict rules as to complicity should apply but
to permit more severe action to be taken where the complicity was
trivial than would have been permissible but for a law of reprisals; or
(iii.) to rule that in no event may actual executions appear among
the reprisal
acts taken against persons not “ parties ” to the offences in the strict sense of the word.
2. THE
EXTENT OF THE RESPONSIBILITY OF COMMANDING GENERALS
The
passages quoted above (Footnote 5: See pp. 69-71) from the judgment of the Tribunal indicate
the
attitude of the latter to the extent to which a commanding general in
occupied
territory may be held liable for the offence of troops under his
command.
Three points in particular are worthy of note : (a) a commander having
executive authority over occupied territory-in effect the person on whom
rests principally the obligations laid down in Section III
(Military
Authority
over the Territory of the Hostile State) of Hague
Convention
No.
IV of 1907-shall not be able to plead that offences were committed, within
the occupied territory under his authority, by persons taking orders
from
authorities other than himself, as the S.S. took orders directly from
Himmler,
and the same applies to subordinate commanders to whom executive
powers have been delegated; (b) such a commander-and indeed
p.89
any
commander-will not usually. be permitted to deny knowledge of the
contents of reports made specially for his benefit; and (c) a commanding
general will usually be held liable for events during his temporary
absence from headquarters
which arise out of a “ general prescribed policy formulated by
him.”
The
judgment elsewhere reinforced the first principle by stating that a
commanding general of occupied territory “ cannot escape
responsibility by a claim of a want of authority. The authority is
inherent in his position as commanding general of occupied territory.
The primary responsibility for the prevention and punishment of crime
lies with the commanding general, a responsibility from which he cannot
escape by denying his authority over the perpetrators.” From this rule
it follows that a commanding general cannot hide behind a “ puppet
government ” and plead that he is not responsible for their acts; the
Tribunal applied this conclusion to the accused von Leyser who was
commanding general of a corps area. (Footnote 1: See pp. 72-4)
Elsewhere, the Tribunal
repeated : “ We must assert again, in view of the defendant’s
statement that the responsibility for the taking of reprisal measures
rested with the divisional commanders and the Croatian government, that
a corps commander must be held responsible for the acts of his
subordinate commanders in carrying out his orders and for acts which the
corps commander knew or ought to have known about.”
The
facts of the present case are similar in many respects to those of the Yamashita
Trial (Footnote 2: See Vol IV of this series, pp.
1-96) and the remarks made in the preceding paragraphs on the
extent of a commander’s responsibility are to be read together with
those made on the same topic in the notes to that trial.(Footnote 3: Ibid,
pp. 83-96) Perhaps the
most interesting issue in this connection is the question to what extent
the accused’s knowledge of offences being committed by his troops must
be proved in order to make him responsible for their acts. The task of
the Prosecution in the Hostages Trial was made easier by
the fact that reprisal actions were often reported by lesser officials
to various of the accused, and many such reports were quoted in the
Judgment, in which appears also the ruling that a commander would not
usually be permitted to deny knowledge of such reports. In the Yamashita
Trial few if any reports of atrocities committed were made to
the accused and here it is probable that the widespread nature of the
offences proved was an important factor in so far as it may have convinced
his judges either that the accused must have known or must be deemed to
have known of their perpetration, or that he failed to fulfil a duty to
discover the standard of conduct of his troops.(Footnote 4: Ibid.,
p. 94.
On the general question of a commander’s responsibility and the
element of knowledge, see also Vol.
VII, pp. 61-4.)
3. THE
LIMITATIONS ON THE RESPONSIBILITY OF A CHIEF OF STAFF
A comparison of the evidence relating to the accused
Foertsch and von
Geitner (Footnote 5: See pp. 42-3)
and the findings of the Tribunal upon them (Footnote 6: See pp.
75-6) indicates the limits beyond
which the Tribunal found it impossible to hold a chief of staff liable
for the acts of the subordinates of his commander. The Tribunal took the view, for instance, that a chief of staff could not be held
responsible
p.90
for
the outcome of his commander’s orders which he approved from the point
of view of form, and issued on the latter’s behalf.
On
the other hand, two trials reported in an earlier volume of this series
have shown that a Chief of Staff may be held guilty of committing war
crimes. (Footnote 1: See Vol. V, p.79) Certainly the position of Chief of Staff provides no immunity
upon its holder and the responsibility of such a person for war crimes
must be judged upon the facts of each case. An examination of the
relevant facts of the two trials mentioned above shows that the chiefs
of staff who were held guilty took a closer and more willing and active
part in the offences charged than did Foertsch and von Geitner. (Footnote
2: Cf. Vol. V, pp. 62, 63, 67, 68 and 69 with
pp. 42-3 of the present volume.
)
4. LIABILITY
FOR UNEXECUTED ORDERS
In
dealing with the Prosecution’s allegation that the accused Rendulic
passed on to troops subordinate to him the “ Commissar Order ” of 6th
June, 1941, the Tribunal made the following remark : “ The order was
clearly unlawful and so recognised by the defendant. He contends,
however, that no captured Commissars were shot by troops under his
command. This is, of course, a mitigating circumstance but it does not
free him of the crime of knowingly and intentionally passing on a
criminal order.” This constitutes recognition that the mere passing on
of an illegal order, even if it is not obeyed, may constitute a crime
under International Law; and a rule which applies to an order passed on
by a defendant would certainly apply to an order originating with him.
This question receives further treatment at other points in these
volumes.(Footnote 3: See the notes to the reports on
the Moehle
Trial in
Vol. IX and the Falkenhorst
Trial
in
Vol. XI, and the High Command Trial in
Vol. XII.
)
The
Tribunal’s treatment of the law relating to the plea of superior orders
(Footnote 4: See pp. 50-2) is interesting as the most exhaustive judicial
examination of the
question so far reported in these volumes. It will be seen that the
Tribunal’s opinion regarding the extent of effectiveness of the plea
corresponds to the approach thereto which has been generally adopted in
war crime trials arising out of the Second World War. (Footnote 5:
See Vol. V of these Reports, pp. 13-22, and the references to earlier
volumes set out on p. 14 thereof, footnote
2.
)
Furthermore,
it is possible that the relatively light sentences passed upon some of
the accused in the trial at present under examination were partly the
result of a recognition by the Tribunal that the accused were acting
under orders which they had received from Hitler, Keitel or others of
their superiors, and which their subordinates often knew them to have
received.
The
Tribunal before which the Trial of Otto Ohlendorf and others (the
Einsatzgruppen
Trial) was
held (Nuremberg, September, 1947-April, 1948), dealt
even more extensively with the plea of superior orders than did the Tribunal
which conducted the Hostages Trial, and it may be of interest to quote
certain passages from the judgment of the former which supplement
p. 91
or elaborate the words of the latter on this question and what has
been said in Volume V in then same connection.
It
was said that : “ If one claims duress in the execution of an illegal
order it must be shown that the harm caused by obeying the illegal order
is not disproportionally greater than the harm which would result from
not obeying the illegal order. It would not be an adequate excuse, for
example, if a subordinate, under orders, killed a person known to be
innocent, because by not obeying it he would himself risk a few days of
confinement. Nor if one acts under duress, may he without culpability,
commit the illegal act once the duress ceases.”
Again,
the Tribunal ruled that : “ To plead superior orders one must show an
excusable ignorance of their illegality. The sailor who voluntarily
ships on a pirate craft may not be heard to answer that he was ignorant
of the probability he would be called upon to help in the robbing and
sinking of other vessels. He who willingly joins an illegal enterprise
is charged with the natural development of that unlawful undertaking.
What S.S. man could say that he was unaware of the attitude of Hitler
toward Jewry ? ” It added later that “ if the cognizance of the doer
has been such, prior to the receipt of the illegal order, that the order
is obviously but one further logical step in the development of a
programme which he knew to be illegal in its very inception, he may not
excuse himself from responsibility for an illegal act which could have
been foreseen by the application of the simple law of cause and effect.
: . . One who embarks on a criminal enterprise of obvious magnitude is
expected to anticipate what the enterprise will logically lead to.”
Under
a heading Duress needed for Plea of Superior Orders, the
Tribunal expressed the following opinion : “ But it is stated that in
military law even if the subordinate realises that the act he is called
upon to perform is a crime, he may not refuse its execution without
incurring serious consequences, and that this, therefore, constitutes
duress. Let it be said at once that there is no law which requires that
an innocent man must forfeit his life or suffer serious harm in order to
avoid committing a crime which he condemns.
The threat, however, must be imminent, real and inevitable. No
court will punish a man who, with a loaded pistol at his head, is
compelled to pull a lethal lever.
“
Nor need the peril be that imminent in order to escape punishment.” On
the other hand “ the doer may not plead innocence to a criminal act
ordered by his superior if he is in accord with the principle and intent
of the superior. . . . In order successfully to plead the defence of
Superior Orders the opposition of the doer must be constant. It is not
enough that he mentally rebel at the time the order is received. If at
any time after receiving the order he acquiesces in its illegal
character, the defence of Superior Orders is closed to him.”
The
Tribunal added that “ superior means superior in capacity and power to
force a certain act. It does not mean superiority only in rank. It could
easily happen in an illegal enterprise that the captain guides the
major, in which case the captain could not be heard to plead Superior
Orders in defence of his crime.”
As
to the effectiveness of the plea when validly argued, the Tribunal’s
general
conclusion was that now most commonly adopted, namely that
p.92
while
superior orders do not constitute a defence they may be taken into
consideration in mitigation of punishment.
6. OTHER
FACTORS WHICH MAY BE CONSIDERED IN MITIGATION OF
PUNISHMENT
Certain
passages from the judgment of the Tribunal on the factors which may be
considered in mitigation of punishment have already been quoted; they
form a useful summary of the considerations which the Tribunal found
relevant in this connection. (Footnote 1: See pp. 74-5) It may be added that in dealing with the
guilt of the accused List, the Tribunal said : “ The failure of the
nations of
the world to
deal specifically with the problem of hostages and reprisals by
convention, treaty, or otherwise, after the close of World War I,
creates a situation that mitigates to some extent the seriousness of the
offence. These facts may not be employed, however, to free the defendant
from the responsibility for crimes committed. They are material only to
the extent that they bear upon the question of mitigation of
punishment.”
It
would seem that the relatively uncodified nature of the law on hostages
and reprisals also is here regarded as a mitigating circumstance; the
Tribunal is not claiming that the accused could be held guilty in the
absence of any law on the point.
Part I Part
II Part III Part
IV Part V Part
VI
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