Source: Law-Reports of Trials of War Ciminals, The United Nations War Crimes Commission, Volume XII, London, HMSO, 1949

field with far reaching military responsibilities cannot be charged under International Law with criminal participation in issuing orders which are not obviously criminal or which they are not shown to have known to be criminal under International Law. Such a commander cannot be expected to draw fine distinctions and conclusions as to legality in connection with orders issued by his superiors. He has the right to presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance. He cannot be held criminally responsible for a mere error in judgment as to disputable legal questions.

“ It is therefore considered that to find a field commander criminally responsible for the transmittal of such an order, he must have passed the order to the chain of command and the order must be one that is criminal upon its face, or one which he is shown to have known was criminal." (Footnote 1: This is the test applied as a rule to the plea of superior orders in general ; see Vol. V, pp. 19-22.)

(vii) Responsibility of a Commanding Officer for Acts not Ordered by Him

The Tribunal continued :

“ While, as stated, a commanding officer can be criminally responsible for implementing an illegal order of his superiors, the question arises as to whether or not he becomes responsible for actions committed within his command pursuant to criminal orders passed down independent of him. The choices which he has for opposition in this case are few : (1) he can issue an order countermanding the order ; (2) he can resign ; (3) he can sabotage the enforcement of the order within a somewhat limited sphere.

“ As to countermanding the order of his superiors, he has no legal status or power. A countermanding order would not only subject him to the severest punishment, but would be utterly futile and in Germany, it would undoubtedly have focused the eyes of Hitler on its rigorous enforcement.

“ His second choice-resignation-was not much better. Resignation in war-time is not a privilege generally accorded to officers in an army. This is true in the army of the United States. Disagreement with a State policy as expressed by an order affords slight grounds for resignation. In Germany, under Hitler, to assert such a ground for resignation probably would have entailed the most serious consequences for an officer.

“ Another field of opposition was to sabotage the order. This he could do only verbally by personal contacts. Such verbal repudiation could never be of sufficient scope to annul its enforcement.

“ A fourth decision he could make was to do nothing.

“ Control Council Law No. 10, Article 2, paragraph 2, provides in pertinent part as follows :

‘ Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this article, if he. . . (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein, or (d) was connected with plans or enterprises involving its commission. . . .’ (emphasis supplied).

p.75

“ As heretofore stated, (Footnote 1) his “ connection ” is construed as requiring a personal breach of a moral obligation. Viewed from an international standpoint, such has been the interpretation of preceding Tribunals. This connection may however be negative. Under basic principles of command authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal, violates a moral obligation under International Law. By doing nothing he cannot wash his hands of international responsibility. His only defence lies in the fact that the order was from a superior which Control Council Law No. 10 declares constitutes only a mitigating circumstance.

” At a later point in its Judgment, the Tribunal returned to the question of the responsibility of commanders of occupied territories for offences other than those ordered by them :

“ The defence in this case as to the field commanders on trial has been partially based on the contention that while criminal acts may have occurred within the territories under their jurisdiction, that these criminal acts were committed by agencies of the State with which they were not connected and over whom they exercised no supervision or control. It is conceded that many of these defendants were endowed with executive power but it is asserted that the executive power of field commanders did not extend to the activities of certain economic and police agencies which operated within their areas ; that the activities of these agencies constituted limitations upon their exercise of executive power.

“In this connection it must be recognized that the responsibility of commanders of occupied territories is not unlimited. It is fixed according to the customs of war, international agreements, fundamental principles of humanity, and the authority of the commander which has been delegated to him by his own government. As pointed out heretofore, his criminal responsibility is personal. The act or neglect to act must be voluntary and criminal. The term “ voluntary ” does not exclude pressures or compulsions even to the extent of superior orders. That the choice was a difficult one does not alter either its voluntary nature of its criminality. From an international standpoint, criminality may arise by reason that the act is forbidden by international agreements or is inherently criminal and contrary to accepted principles of humanity as recognized and accepted by civilized nations. In the case of violations of international agreements, the criminality arises from violation of the agreement itself - in other cases, by the inherent nature of the act.

“ War is human violence at its utmost. Under its impact, excesses of individuals are not unknown in any army. The measure of such individual excesses is the measure of the people who compose the army and the standard of discipline of the army to which they belong. The German Army was, in general, a disciplined army. The tragedy of the German Wehrmacht and these defendants is that the crimes charged against them stem primarily

(1) The Tribunal had ruled that : “ For a defendant to be held criminally responsible, there must be a breach of some moral obligation fixed by international law, a personal act voluntarily done with knowledge of its inherent criminality under international law.”

p.76

from its highest military leadership and the leadership of the Third Reich itself.

“ Military subordination is a comprehensive but not conclusive factor in fixing criminal responsibility. The authority, both administrative and military, of a commander and his criminal responsibility are related but by no means co-extensive. Modern war such as the last war, entails a large measure of de-centralization. A high commander cannot keep completely informed of the details of military operations of subordinates and most assuredly not of every administrative measure. He has the right to assume that details entrusted to responsible subordinates will be legally executed. The President of the United States is Commander-in-Chief of its military forces. Criminal acts committed by those forces cannot in themselves be charged to him on the theory of subordination. The same is true of other high commanders in the chain of command. Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of International Law would go far beyond the basic principles of criminal law as known to civilized nations.

“ Concerning the responsibility of a field commander for crimes committed within the area of his command, particularly as against the civilian population, it is urged by the prosecution that under the Hague Convention, a military commander of an occupied territory is per se responsible within the area of his occupation, regardless of orders, regulations, and the laws of his superiors limiting his authority and regardless of the fact that the crimes committed therein were due to the action of the State or superior military authorities which he did not initiate or in which he did not pa-ticipate. In this respect, however, it must be borne in mind that a military commander, whether it be of an occupied territory or otherwise, is subject both to the orders of his military superiors and the State itself as to his jurisdiction and functions. He is their agent and instrument for certain purposes in a position from which they can remove him at will.

“ In this connection the Yamashita case (Footnote 1: See Vol. IV of these Reports, pp.1-96) has been cited. While not a decision binding upon this Tribunal, it is entitled to great respect because of the high court which rendered it. It is not, however, entirely applicable to the facts in this case for the reason that the authority of Yamashita in the field of his operations did not appear to have been restricted by either his military superiors or the State, and the crimes committed were by troops under his command, whereas in the case of the occupational commanders in these proceedings, the crimes charged were mainly committed at the instance of higher military and Reich authorities.

“ It is the opinion of this Tribunal that a State can, as to certain matters, under International Law, limit the exercise of sovereign powers by a military commander in an occupied area, but we are also of the opinion that under

p.77

International Law and accepted usages of civilized nations, that he has certain responsibilities which he cannot set aside or ignore by reason of activities of his own State within his area. He is the instrument by which the occupancy exists. It is his army which holds the area in subjection. It is his might which keeps an occupied territory from reoccupancy by the armies of the nation to which it inherently belongs. It cannot be said that he exercises the power by which a civilian population is subject to his invading army while at the same time the State which he represents may come into the area which he holds and subject the population to murder of its citizens and to other inhuman treatment. The situation is somewhat analogous to the accepted principle of International Law that the army which captures the soldiers of its adversary has certain fixed responsibilities as to their care and treatment.

“ We are of the opinion, however, as above pointed out in other aspects of this case, that the occupying commander must have knowledge of these offences and acquiesce or participate or criminally neglect to interfere in their commission and that the offences committed must be patently criminal. But regardless of whether or not under International Law such responsibility is fixed upon him, under the particular facts in this case, responsibility of the commanders in question rests upon other factors. In this respect we quote certain provisions of the Handbook for the General Staff in War Time, pertinent to executive power :

‘ (5) The exercising of executive power by military commanders is governed by No. 20-24 of Army Reg. 90 (of the Army in the Field).

‘ (6) If a Zone of Operation is determined, the Commander-in-Chief of the Army and the Commanders-in-Chief of the Armies receive at the declaration of a state of defence or at the declaration of a state of war, authority for exercising executive power in this territory, without further order (paragraphs 2 and 9 of the Reich Defence Law).

‘ In other cases, the Fuehrer and Supreme Commander of the Wehrmacht can transfer such authority for exercising executive power to the Commander-in-Chief of the Army and the Commanders-in-Chief of the Armies.

‘ (7) The executive power comprises the entire State power including the right of issuing laws without prejudice to the independence of jurisdiction. Those persons invested with executive power can decree local orders affecting the territory in which authority for exercising has been turned over to them or transferred to them, set up special courts, and issue instructions to the authorities and offices competent in the territory named, with the exception of the Supreme Reich Authorities, the Supreme Prussian Provincial Authorities, and the Reichleitung of the NSDAP.

‘ (8) The Supreme Reich Authorities, Supreme Prussian Provincial Authorities, and the Reichleitung of the NSDAP can decree orders for the territory into which executive power has been transferred, only by agreement with the persons invested with executive power. Their right of issuing instructions to the authorities and offices subordinated to them remains intact. Nevertheless, the right of

p.78

issuing instruction by the person invested with executive authority takes precedence.

‘ (9) Authority for exercising executive power is incumbent only on the persons invested. It can be transferred further only inasmuch as an authorization is ordered thereto actually or legally.

‘ Accordingly, persons invested with executive power are authorized to entrust subordinated offices with the execution of individual missions.

‘ (10) The laws, decrees, etc., which are valid at the transfer of the executive Power retain their validity so long as the person invested with executive power encounters no contrary order.

‘ (11) The Commander-in-Chief of the Army regulates the exercising of executive power through the Commanders-in-Chief of the Armies.

‘ The revision of questions which occur in the exercising of executive power does not fall into the realm of work of the Army judges. The civilian commissioner with the High Command of the Army is assigned for that purpose to the Commander-in-Chief of the Army ; the chiefs of the civil administration, to the Commanders-in-Chief of the Armies. Persons invested with executive power are authorized, however, to call in the Army judges assigned to them as counsellors, especially in the decreeing of legal orders of penal law content.’

“ It is therefore apparent that executive power under German law is the exercise of sovereign powers within an occupied area conferred upon a military commander by the State. The defence has undertaken to minimize to a large extent this wide authority, but in view of the above document, it does not appear to be the mere shadow of authority contended. In fact, these provisions fix upon an occupying commander certain responsibilities as to the preservation of law and order within his area.

“ The contention of defendants that the economic agencies were excluded from their exercise of executive power is disproved by various documents which will hereafter be cited in considering the guilt or innocence of defendants on trial. And regardless of that fact, the proof in this case also establishes a voluntary co-operation of defendants on trial with these economic agencies in the futherance of their illegal activities.

“ The defence contends that the activities of the Einsatzgruppen of the Security Police and SD were beyond their sphere of authority as occupational commanders, because the State had authorized the illegal activities of these police units and so limited the executive power of the occupational commanders. However, the occupational commanders in this case were bearers of executive power and, one and all, have denied receipt of any orders showing, or knowledge of, a State authorized programme providing for the illegal activities of the Einsatzgruppen.

“ One of the functions of an occupational commander endowed with executive power, was to maintain order and protect the civilian population against illegal acts. In the absence of any official directives limiting his executive powers as to these illegal acts within his area, he had the right and duty to take action for their suppression. Certainly he is not in a position

p.79

to contend that these activities were taken from his field of executive power by his superiors when he knew of no such action on their part.

“ The sole question then as to such defendants in this case is whether or not they knew of the criminal activities of the Einsatzgruppen of the Security Police and SD and neglected to suppress them.

“ It has been urged that all of the defendants in this case must have had knowledge of the illegal activities of the Einsatzgruppen. It has been argued that because of the extent of their murder programme in the occupational areas and by reason of the communications available to the high commanders, and the fact that they were in command of these areas, they must necessarily have known of this programme. . . .

“ It is true that extermination of such a large number of people must necessarily have come to the attention of many individuals, and also, it is established that soldiers in certain areas participated in some of these executions.

“ In many respects a high commander in the German Army was removed from information as to facts which may have been known to troops subordinate to him. In the first place, these troops were in many instances far removed from his headquarters. In addition, the common soldiers and junior officers do not have extensive contacts with the high commanders and staff officers.

“ Another factor must also be taken into consideration in connection with the activities of the Einsatzgruppen. This is the dual nature of its functions. On the one hand, it was charged with the criminal liquidation of certain elements ; on the other hand, it exercised legitimate police activities in connection with the security of the rear communications of the armies, in which capacity it operated largely against guerillas.

“ Another factor was the effort made to keep the criminal activities of these police units from the Wehrmacht.

” After some further discussion of the reasons why the accused did not know the full extent of the activities of the Einsatzgruppen, the Tribunal concluded :

“ Other factors to be considered as to the knowledge of criminal acts of the SIP0 and SD by defendants is the time, the localities, the combat situation, the extent of the activities, and the nature of the command.

“ This, in brief, summarizes the main factor considered and the sources of knowledge appraised in determining the criminal responsibility of the defendants in this case in connection with activities of the Einsatzgruppen of the SIP0 and SD. From this discussion it is apparent we can draw no general presumption as to their knowledge in this matter and must necessarily go to the evidence pertaining to the various defendants to make a determination of this question.

“ And it is further pointed out that to establish the guilt of a defendant from connection with acts of the SIP0 and SD by acquiescence, not only

p.80

must knowledge be established, but the time of such knowledge must be established.”

(viii) The Responsibility of Staff Officers

The Tribunal said :

“ There has also been much evidence and discussion in this case concerning the duties and responsibilities of staff officers in connection with the preparation and transmittal of illegal orders. In regard to the responsibility of the Chief-of-Staff of a field command, the finding of Tribunal V in Case No. 7 [List] as to certain defendants has been brought to the attention of the Tribunal. (Footnote 1: See Vol.VIII. pp. 34-92, and particularly pp. 89-90) It is pointed out that the decision as to Chiefs of Staff in that case was a factual determination and constitutes a legal determination only insofar as it pertains to the particular facts therein involved. We adopt as sound law the finding therein made, but we do not give that finding the scope that is urged by defence counsel in this case to the effect that all criminal acts within a command are the sole responsibility of the commanding general, and that his Chief-of-Staff is absolved from all criminal responsibility merely by reason of the fact that his commanding general may be charged with responsibility therefore. It is further pointed out that the facts in that case are not applicable to any defendant on trial in this case.

“ The testimony of various defendants in this case as to the functions of staff officers and chiefs of staff has not been entirely consistent. Commanding generals on trial have pointed out that there were certain functions which they necessarily left to the chiefs of staff, and that at times they did not know of orders which might be issued under authority of their command. Staff officers on trial have urged that a commanding officer was solely responsible for what was done in his name. Both contentions are subject to some scrutiny.

“ In regard to the functions of staff officers in general as derived from various documents and the testimony of witnesses, it is established that the duties and functions of such officers in the German Army did not differ widely from the duties and functions in other armies of the world. Ideas and general directives must be translated into properly prepared orders if they are to become effective in a military organization. To prepare orders is the function of staff officers. Staff officers are an indispensable link in the chain of their final execution. If the basic idea is criminal under International Law, the staff officer who puts that idea into the form of a military order, either himself or through subordinates under him, or takes personal action to see that it is properly distributed to these units where it becomes effective, commits a criminal act under International Law.

“ Staff officers, except in limited fields, are not endowed with command authority. Subordinate staff officers normally function through the chiefs of staff. The chief of staff in any command is the closest officer, officially at least, to the commanding officer. It is his function to see that the wishes, of his commanding officer are carried out. It is his duty to keep his commanding officer informed of the activities which take place within the field of his command. It is his function to see that the commanding officer is

p.81

relieved of certain details and routine matters, that a policy having been announced the methods and procedures for carrying out such policy are properly executed. His sphere and personal activities vary according to the nature and interests of his commanding officer and increase in scope dependent upon the position and responsibilities of such commander.

“ Since a chief of staff does not have command authority in the chain of command, an order over his own signature does not have authority for subordinates in the chain of command. As shown by the record in this case, however, he signs orders for and by order of his commanding officer. In practice, a commanding officer may or may not have seen these orders. However, they are presumed to express the wishes of the commanding officer. While the commanding officer may not and frequently does not see these orders, in the normal process of command, he is informed of them and they are presumed to represent his will unless repudiated by him. A failure. to properly exercise command authority is not the responsibility of a chief of staff.

“In the absence of participation in criminal orders or their execution within a command, a chief of staff does not become criminally responsible for criminal acts occurring therein. He has no command authority over subordinate units. All he can do in such cases is call these matters to the attention of his commanding general. Command authority and responsibility for its exercise rest definitely upon his commander.

“ Under normal military procedure, a commanding officer signs communications to higher commanders. He also in certain cases signs orders to subordinates which are considered to establish basic policy or whose importance he wishes to emphasize ; but the majority of orders issued in a command, as shown by the record, are issued ‘ for ’ or ‘ by order ’ and signed only by the chief of staff. All such orders are binding on subordinates. How far a chief of staff can go in issuing orders without previous authorization or without calling them to the attention of his commander depends upon many factors, including his own qualifications, his rank, the nature of the headquarters, his personal relationship with his commander, and primarily upon the personality of the commander. A chief of staff does not hold a clerical position. In the German Army, chiefs of staff were not used below an army corps. The rank and care with which staff officers were selected show in itself the wide scope of their responsibilities which could, and in, many instances undoubtedly did, result in the chief of staff assuming many command and executive responsibilities which he exercised in the name of his commander.

“ One of his main duties was to relieve his commander of certain responsibilities so that such commander could confine himself to those matters considered by him of major importance. It was of course the duty of a chief of staff to keep such commander informed of the activities which took place within the field of his command insofar at least as they were considered of sufficient importance by such commander. Another well accepted function of chiefs of staff and of all staff officers is, within the field of their activities, to prepare orders and directives which they consider necessary and appropriate in that field and which are submitted to their superiors for approval.

p.82

“ As stated heretofore, the responsibility allowed a chief of staff to issue orders and directives in the name of his commander varied widely and his independent powers for exercising initiative therefore also varied widely in practice. The field for personal initiative as to other staff officers also varied widely. That such a field did exist, however, is apparent from the testimony of the various defendants who held staff positions and in their testimony have pointed out various cases in which they modified the specific desires of their superiors in the interests of legality and humanity. If they were able to do this, the same power could be exercised for other ends and purposes and they were not mere transcribers of orders.

“ Surely the staff officers of the OKW did not hold their high ranks and positions and did not bask in the bright sunlight of official favour of the Third and Thousand Year Reich by merely impeding and annulling the wishes of the Nazi masters whom they served.

“ It over-taxes the credulity of this Tribunal to believe that Hitler or Keitel or Jodl, or all three of these dead men, in addition to their many activities as to both military matters and matters of State, were responsible for the details of so many orders, words spoken in conferences, and even speeches which were made. We are aware that many of the evil and inhumane acts of the last war may have originated in the minds of these men. But it is equally true that the evil they originated and sponsored did not spread to the far-flung troops of the Wehrmacht of itself. Staff officers were indispensable to that end and cannot escape criminal responsibility for their essential contribution to the final execution of such orders on the plea that they were complying with the orders of a superior who was more criminal.” 

(ix) The Criminality of Certain Orders

The Tribunal specifically declared to be criminal certain orders, particularly the following : the Commissar Order, with supplements, (Footnote 1: See p. 23) the Barbarossa Jurisdiction Order, (Footnote 2: See p. 29) the Commando Order, (Footnote 3: See p. 34) and the Night and Fog Decree. (Footnote 4: See p. 37. The Tribunal also specifically declared criminal the order whose text appears on p. 38)

Speaking of that part of the Barbarossa order which dispensed with court-martial jurisdiction over the civilian population of occupied territory, (Footnote 5: See p. 30) the Tribunal said : “ court-martial jurisdiction of civilians is not considered under International Law an inherent right of a civilian population and is not an inherent prerogative of a military commander. The obligation towards civilian populations concerns their fair treatment. Court-martial jurisdiction of a military commander and its extent are determined by his superiors. It has been urged in this trial that there is no rule of International Law that guerillas be brought to trial before a court and that this order authorizing their disposition on the arbitrary decision of an officer is therefore not illegal. There may be some doubt that trial before a court is in fact required under International Law.

p.83

“ But in considering this order, it must be borne in mind that it was not solely applicable to guerrillas, and that it is an obligation upon an occupying force to provide for the fair treatment of the civilians within the occupied area. (Footnote 1) Whatever may be said as to the summary proceedings against guerrillas, the allowing of such summary proceedings in the discretion of a junior officer, in the case of the wide variety of offences that were left open to him, is considered criminal.

“ Furthermore, the fourth paragraph of Section I above, in its most favourable construction is at best ambiguous, but the logical inference to be drawn from this section goes further in the opinion of the Tribunal and provides that suspected franc-tireurs may be shot, which is also considered illegal.

“ The fourth paragraph of Section I also provides for collective coercive measures to be applied immediately upon the order of an officer of at ' least a battalion, etc., commander,’ and is considered illegal in that it places no limitations upon such collective actions whatsoever.

“ For these reasons the first part of this order is considered illegal and we so find.

” The Tribunal then continued :

“ With regard to the second aspect of this order, that is the obligation to prosecute soldiers who commit offences against the indigenous population, this obligation as a matter of International Law is considered doubtful, The duty imposed upon a military commander is the protection of the civilian population. Whether this protection be assured by the prosecution of soldiers charged with offences against the civilian population, or whether it be assured by disciplinary measures or otherwise, is immaterial from an international standpoint. This order in this respect . . . was subject to the interpretation that unwarranted acts against civilians constituted a breach of discipline. The illegal application of the order, therefore, rested to a marked extent with the commanders in the field.” Moreover, section 6 of paragraph I of the order “ left the door open for commanders-in-chiefs of army groups opposed to the arbitrary provisions of the order as to civilians, to take action to eliminate it from their areas. This the record shows none of them did.

” The Tribunal completed its treatment of the Barbarossa Jurisdiction Order with the following words :

“ This Tribunal does not hold field commanders guilty for a failure to properly appraise the fine distinctions of International Law, nor for failure to execute court-martial jurisdiction which had been taken away from them, but it does consider them criminally responsible for the transmission of an order that could, and from its terms would, be illegally applied where they have transmitted such an order without proper safeguards as to its application. For that failure on their part they must accept criminal

(1) On the other hand it could be argued that since guerrillas also are inhabitants of occupied territories they are entitled to a fair trial : in fact the weight of judicial authority has been in favour of requiring that all alleged war criminals or war traitors be granted a fair trial before execution. Regarding this question, and for the elements of the right to a fair trial, see Vol. V, pp. 70-81, and Vol. VI, pp. 96-104.

p.84

responsibility for its misapplication within subordinate units to which they transmitted it. And in view of the relation of this order to franc-tireurs, it takes the view that while commanding generals might not be able under the provisions of the Barbarossa Jurisdiction Order to establish courts-martial to try them, such commanders were nevertheless responsible, within the areas of their commands, for the summary execution of persons who were merely suspects (Footnote 1) or those who, from their acts, were not in fact franc-tireurs at all, such as the execution of the nineteen-year-old girl who wrote a song derogatory of the German invader of her country.”

On the other hand, the Judgment contains the following passage in the course of the treatment of the responsibility of von Leeb :

“ Leningrad was encircled and besieged. Its defenders and the civilian population were in great straits and it was feared the population would undertake to flee through the German lines. Orders were issued to use artillery to 'prevent any such attempt at the greatest possible distance from our own lines by opening fire as early as possible, so that the infantry, if possible, is spared shooting on civilians.’ We find this was known to and approved by von Leeb. Was it an unlawful order ?

“ ‘ A belligerent commander may lawfully lay siege to a place controlled by the enemy and endeavour by a process of isolation to cause its surrender. The propriety of attempting to reduce it by starvation is not questioned. Hence the cutting off of every source of sustenance from without is deemed legitimate. It is said that if the commander of a besieged place expels the .non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten the surrender.’ (Hyde, Vol. 3, Sec. 656, pp. 1802-1803.)

“ We might wish the law were otherwise, but we must administer it as we find it. Consequently, we hold no criminality attaches on this charge.”

(x) Hostages and Reprisals

As to this point, the Judgment states :

“ In the Southeast Case, United States v. Wilhelm List, et al. (Case No. 7), (Footnote 2: See Vol. VIII, pp. 34-92) 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 drastically safeguarded and limited, is ever permissible under any theory of International Law, killing without full compliance with all requirements would be murder.

(1) From this statement it seems that when stating that “ there may be some doubt that trial before a court is in fact required under international law,” the Tribunal was speaking of some category other than “ those who were merely suspects.” (See p. 83 and footnote (1) thereto.)

p.85

If killing is not permissible under any circumstances, than 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.”

(xi) Partisan Warfare

On this point the Judgment begins :

“ The execution of partisans as franc-tireurs is connected with the Barbarossa Jurisdiction Decree in that it involves the treatment of civilians by the occupying and invading forces.

“ The record in this case contains much testimony, and among the numerous exhibits are many documents dealing with so-called partisan warfare. We deem it desirable to make some comment on the law relating thereto before considering the cases of the individual defendants.

“ Articles 1 and 2 of the Annex to the Hague Convention are as follows :

‘ Article 1

‘ The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions :
‘ (1) To be commanded by a person responsible for his subordinates;
‘ (2) To have a fixed distinctive emblem recognizable at a distance ;
‘ (3) To carry arms openly ; and
‘ (4) To conduct their operations in accordance with the laws and customs of war.

‘ In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination “ army.”

‘ Article 2

‘ The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.’

“ A failure to meet these requirements deprives one so failing on capture of a prisoner-of-war status.

“ We have a strong suspicion from the record in this case that anti-partisan warfare was used by the German Reich as a pretext for the extermination of many thousands of innocent persons.

p.86

The Tribunal ruled that an order reading : “ Every civilian who impedes or incites others to impede the German Wehrmacht is also to be considered a guerrilla (for instance : instigators, persons who distribute leaflets, non-observance of German orders, arsonists, destroying of road signs, supplies, etc.),” clearly opened the way for “ arbitrary and blood implementation.” The Judgment continued : “ Those falling into the various classifications were summarily executed as partisans, and so classified in the reports. There is no warrant in the Rules of War or in International Law for dealing with such persons as franc-tireurs, guerillas, or bandits. Red Army soldiers in uniform were in some instances shot as so-called partisans. There is, of course, no warrant in International Law for such action.”

The Tribunal pointed out that the executions of “ ‘ partisan suspects ’ were a regular routine, and their executions were reported along with those of the so-called partisans.” It expressed the following view on such executions :

“ Suspicion is a state of mind of the accuser and not a state of mind or an act by the one accused. It is a monstrous proposition containing the very essence of license that the state of mind of the accuser shall be the determining factor, in the absence of evidence of guilt, whether the accused shall or shall not be summarily executed. But it is said that when those accused were captured they were interrogated and some were not executed, but released or sent to prison camps. But this is no defence, for it does not necessarily mean that those who were executed as suspects had been found guilty even by the informal interrogation by an officer, but only that the interrogator had not had his suspicion that they were guilty removed, so, under the order, they, being still suspected, were executed. This does not amount to even the minimum of judicial protection required before an execution.

“ The classification of the victims in the numerous reports in the record as partisan suspects is a natural and proper one to be made under the order for execution on mere suspicion of partisan activity. If, as defendants have contended, no suspects were executed until they were lawfully found and adjudged to be guilty, there was no need whatsoever for the distinction made in the classification. We find from the evidence that there were great numbers of persons executed in the areas of various of these defendants, who, under no stretch of the imagination were franc-tireurs, and great numbers of others executed solely on suspicion, without any proof or lawful determination that they were in fact guilty of the offences of which they were suspected. The orders to execute such persons and mere suspects on suspicion only and without proof, were criminal on their face. Executions pursuant thereto were criminal. Those who gave or passed down such orders must bear criminal responsibility for passing them down and for their implementation by the units subordinate to them.”

Part I Part II Part III Part IV Part V Part VI Part VII Part VIII