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

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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

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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

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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. )

5.   THE PLEA OF SUPERIOR ORDERS

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

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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

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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

Stuart.Stein@uwe.ac.uk
Last Updated 10/09/01 10:01:00
S D Stein
 
Faculty of Economics and Social Science