Source: United Nations War Crimes Commission. London, HMSO, 1949

FOREWORD  

To
Volume VIII 

Law Reports of Trials of War Criminals

p.vii

This volume contains a very important judgment, namely that of the United States Military Tribunal at Nuremberg on the trial of General List and eleven others, known as the Hostages Trial. There are also Reports of two trials held before British Courts, one of Generals von Mackensen and Maelzer, and the other of Field Marshal Kesselring. These three cases are closely allied in their subject matter because all three severally raised the problem whether the practice of killing hostages (or reprisal victims) is a war crime. It has until recently been so regarded. The practice was followed by the Prussians in the France-Prussian War, and by the Germans in the war of 1914-18. In both instances it was resorted to in a considerable number of cases, but in the war of 1939-45 it was followed on an unprecedented scale. It is obviously on the. face of it an atrocious practice because it indiscriminately punishes men who are completely guiltless of any war crime. The practice as followed in World Wars I and II involves collective executions carried out on a great scale and almost as a routine operation. The numbers of innocent non-combatants who have been killed in this way cannot be computed but they must run into tens or hundreds of thousands. Lauterpacht well refers to the practice as a terrible practice.

The question here has reference to the killing of hostages, and it was submitted by the Prosecution in the trial of List that that was a war crime. The Prosecution further submitted that if hostages were taken they were entitled to at least the favourable treatment accorded to prisoners of war under the Geneva Conventions. The Tribunal, however, in the List case, has held that the killing of hostages was not in itself and in the abstract contrary to the International Law of war. It is true that the Tribunal imported a number of conditions but these conditions are not based on any recognised practice or any recognised rules, and if I may say so with respect, the defining of conditions of that character, if the legality of killing hostages were conceded, would be a matter of very great moment which would involve careful discussion on the expert evidence of military men, of diplomatists and of statesmen. I may add that there is nothing specifically mentioned about hostages in the Hague Regulations of 1907, though the Provisions of Article 50 directed against collective penalties, and of Article 46 requiring that individual life in the occupied countries must be protected,

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are definitely contrary to the slaughter of innocent non-combatants in occupied countries whether under the name of hostages or some such description.

It has not been the practice in these Reports to criticise the judgments which have been given, and the rapporteurs have been very careful to limit themselves to statements as precise and accurate as possible of what the actual decisions were. Mr. Brand, who has prepared the admirable précis of the List case has adhered most carefully to that rule, though he has pointed out that the Tribunal has not precisely referred to precedents or principles on which it may have acted, and he has carefully collected some of the most important authorities dealing with the slaughter of hostages of whatever species or qualification. For this purpose I do not think distinction between types can be drawn. But I have felt that a decision that one may slaughter innocent hostages so long as the number slaughtered is not excessive, even subject to the pre-conditions specified in the judgment, is retrograde, and is in my opinion contrary to the general course of humanitarian jurisprudence in regard to warfare which has been developed up to the present. I have accordingly felt myself bound, though with the greatest diffidence and respect, to enter this caveat. I need not repeat what is already well known, that in the law of war precedents have persuasive though not coercive force, but as they do tend to create a jurisprudence. I feel bound to say that I do not think that the views which, if I understand this judgment, have been laid down by the Tribunal, correctly stated the general law of war crimes on this very important issue.

Since the delivery of judgment in the List case, one of the Courts at Nuremberg, in the High Command Case, which will in due course be included in these Reports, has given its judgment, in the course of which it had to consider the judgment in the List case so far as it dealt with the question of hostages. A short passage from the judgment will explain the attitude of the Court in the High Command Case. I quote it:

“ 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 pre-conditions 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

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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 Court was content to avoid any approval of the List judgment. I may note in passing that it did not draw any distinction between one sort of hostages and another. That I thinks must be so. The essential feature is that innocent non-combatants are slaughtered. 

Recently also my attention has been drawn to an article on this question by a learned author, A. C. Melen : "La question des otages à la lumière du droit" (Revue de Droit International, de Sciences Diplomatiques et Politiques, Vol. 24, No. 1, Jan.-March, 1946, p. 17-25). The author is of the opinion that an occupying Power has no right to kill hostages, and that even the taking of hostages for the purpose of maintaining order in occupied territory is unlawful. In reaching this view he refers to the use of hostages as practised in the course of history. In the past hostages were used as a guarantee that international treaties would be observed and implemented. This practice disappeared entirely towards the end of the eighteenth century. The first time hostages were used again occurred during the 1870-71 war between Germany and France, and was introduced by the former. The purpose, however, was entirely different from what it used to be in the past:  hostages were taken by unilateral decision of the occupant in order to secure a. peaceful attitude of the inhabitants of occupied territory. Germany repeated this practice during World Wars I and II, and of all the great powers and civilised nations was the only one to do so systematically. From this the author reaches the conclusion that, as no other civilised nation resorted to the taking and killing of hostages for the purpose mentioned, such acts never became part of customary International Law. His. 

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ultimate conclusion is that both the taking and killing of hostages constitute a violation of International Law for the following reasons : (a) They are at variance with customary law; (b) they violate the rules of the IVth Hague Convention, namely the, spirit of Articles 46 and 50 of the Hague Regulations ; (c) they are contrary to general principles of law as recognised by civilised nations.

I agree with the views of that author. The legality of the practice will require and receive in due course a full discussion which cannot be undertaken here, but I venture with the greatest respect to the learned Tribunal to express my dissent from the view that the killing of hostages, using that term in the widest sense, is permissible. The taking of hostages in occupied countries is a different matter, but there again I think a breach is committed of Hague Convention IV. In any case they should at least have the same right of good treatment as prisoners of war. So far as the law depends on the opinion of writers on International Law, no doubt some diversity of opinion will be found. But Grotius, in his great work, De Jure Belli et Pacis, pronounced against the killing of hostages even in his time and under the practices and concepts then current. The question became acute in and after 1871, especially during World Wars I and II. Hostages were taken from occupied countries by the Germans. They were taken by a unilateral act of force. No other country adopted the practice. It is clear, I think, that unilateral practice cannot create customary International Law on such matters. If we turn to what may be called the statutory sources of International Law, the practice seems to find some support in the paragraph from the United States Basic Field Manual (Rules of Land Warfare), quoted by Mr. Brand, but it is pointed out by him that the paragraph may be difficult to reconcile with other parts of the Manual. But such Manuals do not constitute International Law, as we have seen in regard to “ superior orders.” The British Manual of Military Law does not contain similar statements though it does appear to sanction the taking of hostages. On the other hand, the Articles of the Hague Convention IV which have already been quoted lay down in specific terms general principles which are openly violated by the practice, which if permitted would be a gross instance of the enforcement of collective penalties and a gross violation of Article 46 which expressly provides that the lives of individuals are to be respected. How can this be reconciled with the arbitrary and irresponsible power claimed by the occupant to take as he thinks fit innocent inhabitants from their homes and confine or kill them ? It is true that the Hague Articles do not refer at all to hostages, but the Hague Conventions are drawn in general terms. There is certainly no reservation in favour of the occupant.

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in regard to hostages, and I can see no reason to supply one. It would be on the occupant to justify such a departure from basic principles.  

To descend to more particular definitions of the law, I may refer to the list of war crimes proposed by the Commission on Responsibilities of 1919.  This has always been regarded as authoritative and was the unanimous pronouncement of the Commission, including the United States representatives.  It included as a war crime the killing of hostages. The London Charter of 1945 to which nineteen nations acceded apart from the four major powers who were parties included the killing of hostages as a war crime : so did Control Law No. 10, under which the Tribunal in the Hostages Trial sat and exercised jurisdiction. The United Nations War Crimes Commission has consistently treated the killing of hostages as a war crime. All this striking testimony to the criminality of the killing of hostages does not appear to have been referred to by the Tribunal.

But at the back of the whole question lies the realisation that to claim to kill innocent non-combatants by calling them hostages is contrary to the whole spirit of the movement to protect non-combatants as far as may be from the evils of war. To permit the killing of hostages is a reversal of the whole humanitarian movement. It is certainly contrary to the famous clause in the preamble to the Hague Convention No. IV of 1907.  

In criticising the law proposed on this matter by the Tribunal, I am not abating one iota from the respect with which I regard the learned judges or the gratitude which all students of International Law feel for their work and the work of the other tribunals at Nuremberg (Subsequent Proceedings).  They have done a great work, the true value of which cannot be over-estimated. This makes it the more essential to examine, and if it seems necessary, criticise their work.

The British reports in the present volume are the work of Mr. Steward, and the French reports that of Dr. Zivkovic. The report on the Hostages Trial has been prepared by Mr. Brand, who has had the responsibility of the general editorship of the volume as on previous occasions.

WRIGHT.

London, November, 1948.