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

(xii) The Interpretation and Applicability of the Hague and Geneva Conventions

The Tribunal pointed out that : “ Another question of general interest in this case concerns the applicability of the Hague Convention and the Geneva Convention as between Germany and Russia.” The Judgment continues : “ In determining the applicability of the Hague Convention, it must be borne in mind, first, that Russia ratified this Convention, but

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Bulgaria and Italy did not. The binding effect of the Hague Convention upon Germany was considered by the IMT in the trial against Goering, et al. On page 253 of that Judgment, it is stated : 

‘ But it is argued that the Hague Convention does not apply in this case, because of the “ general participation ” clause in Article 2 of the Hague Convention of‘1907. That clause provided :

‘ The provisions contained in the regulations (Rules of Land Warfare) referred to in Article I as well as in the present Convention, do not apply except between contracting Powers, and then only if all the belligerents are parties to the Convention.’

‘ Several of the belligerents in the recent war were not parties to this Convention.

‘ In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing International Law at the time of their adoption. But the Convention expressly stated that it was an attempt “ to revise the general laws and customs of war,” which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and’ customs of war which are referred to in Article 6 (b) of the Charter.’

“ It is apparent from the above quotation that the view adopted by the IMT in that case as to the Hague Conventions was that they were declaratory of existing International Law, and therefore binding upon Germany. In this connection it is further pointed out that the defence in this case, particularly as regards partisan warfare, primarily is based upon the fact that partisans could be shot or hanged since under the Hague Convention they were not lawful belligerents. The defence can hardly contend that Germany was in a position to sort out as binding on her only those provisions of these Conventions which suited her own purposes. Like the IMT, we do not feel called upon in this case to determine whether or not the Hague Conventions were binding upon Germany as an international agreement. We adopt the principle outlined in that case to the effect that in substance these provisions were binding as declaratory of International Law. ” 

Of the applicability of the Geneva Convention, the Tribunal said that : “It is to be borne in mind that Russia was not a signatory Power to this Convention. There is evidence in this case derived from a divisional order of a German division that Russia had signified her intention to be so bound. However, there is no authoritative document in this record upon which to base such a conclusion. In the case of Goering, et al., above cited, the IMT, on page 232, stated as follows : 

‘ The argument in defence of the charge with regard to the murder and ill-treatment of Soviet prisoners of war, that the U.S.S.R. was not a party to the Geneva Convention, is quite without foundation. On 15th September, 1941, Admiral Canaris protested against the regulations for the treatment of Soviet prisoners of war, signed by General Reinecke on 8th September, 1941. He then stated : 

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“ The Geneva Convention for the treatment of prisoners of war is not binding in the relationship between Germany and the U.S.S.R. Therefore only the principles of general International Law on the treatment of prisoners of war apply. Since the eighteenth century these have gradually been established along the lines that war captivity is neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war. This principle was developed in accordance with the view held by all armies that it is contrary to military tradition to kill or injure helpless people . . . The decrees for the treatment of Soviet prisoners of war enclosed are based on a fundamentally different viewpoint.”

‘ Article 6 (b) of the Charter provides that “ ill-treatment . . . of civilian population of or in occupied territory. . . killing of hostages . . . wanton destruction of cities, towns, or villages ” shall be a war crime. In the main, these provisions are merely declaratory of the existing laws of war as expressed by the Hague Convention, Article 46, which stated : “ Family honour and rights, the lives of persons and private property, as well as religious convictions and practice, must be respected.”

" It would appear from the above quotation that that Tribunal accepted as International Law the statement of Admiral Canaris to the effect that the Geneva Convention was not binding as between Germany and Russia as a contractual agreement, but that the general principles of International Law as outlined in those Conventions were applicable. In other words, it would appear that the IMT in the case above cited, followed the same lines of thought with regard to the Geneva Convention as with respect to the Hague Convention to the effect that they were binding insofar as they were in substance an expression of International Law as accepted by the civilized nations of the world, and this Tribunal adopts this viewpoint.”

The Tribunal next dealt with two points of interpretation as follows :

“ One serious question that confronts us arises as to the use of prisoners of war for the construction of fortifications. It is pointed out that the Hague Convention specifically prohibited the use of prisoners of war for any work in connection with the operations of war, whereas the later Geneva Conventions provided that there shall be no direct connection with the operations of war. This situation is further complicated by the fact that when the proposal was made to definitely specify the exclusion of the building of fortifications, objection was made before the conference to that limitation, and such definite exclusion of the use of prisoners, was not adopted. It is no defence in the view of this Tribunal to assert that international crimes were committed by an adversary, but as evidence given to the interpretation of what constituted accepted use of prisoners of war under International Law, such evidence is pertinent. At any rate, it appears that the illegality of such use was by no means clear. The use of prisoners of war in the construction of fortifications is a charge directed against the field commanders on trial here. This Tribunal is of the opinion that in view of the uncertainty of International Law as to this matter, orders providing for such use from superior authorities, not involving the use of prisoners of war

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in dangerous areas, were not criminal upon their face, but a matter which a field commander had the right to assume was properly determined by the legal authorities upon higher levels.

“ Another charge against the field commanders in this case is that of sending prisoners of war to the Reich for use in the armament industry. The term ‘ for the armament industry ’ appears in numerous documents. While there is some question as to the interpretation of this term, it would appear that it was used to cover the manufacture of arms and munitions. It was nevertheless legal for field commanders to transfer prisoners of war to the Reich and thereafter their control of such prisoners terminated. Communications and orders specifying that their use was desired by the armament industry, or that prisoners were transmitted for the armament industry are not in fact binding as to their ultimate use. Their use subsequent to transfer was a matter over which the field commander had no control. Russian prisoners of war were in fact used for many purposes outside the armament industry. Mere statements of this kind cannot be said to furnish irrefutable proof against the defendants for the illegal use of prisoners of war whom they transferred. In any event, if a defendant is to be held accountable for transmitting prisoners of war to the armament industry, the evidence would have to establish that prisoners of war shipped from his area were in fact so used.

“ Therefore, as to the field commanders in this case, it is our opinion that, upon the evidence, responsibility cannot be fixed upon the field commanders on trial before us for the use of prisoners of war in the armament industry.

” The Tribunal then returned to the question of the declaratory character of the Hague and Geneva Conventions :

“ In stating that the Hague and Geneva Conventions express accepted usages and customs of war, it must be noted that certain detailed provisions pertaining to the care and treatment of prisoners of war can hardly be so designated. Such details it is believed could be binding only by international agreement. But since the violation of these provisions is not in issue in this case, we make no comment thereon, other than to state that this judgment is in no way based on the violation of such provisions as to Russian prisoners of war.

“ Most of the prohibitions of both the Hague and Geneva Conventions, considered in substance, are clearly an expression of the accepted views of civilized nations and binding upon Germany and the defendants on trial before us in the conduct of the war against Russia. These concern (1) the treatment of prisoners of war ; (2) the treatment of civilians within occupied territories and spoliation and devastation of property therein ; and (3) the treatment of Red Army soldiers who, under the Hague Convention, were lawful belligerents.

“ We cite in this category the following rules from the Hague Rules of Land Warfare :

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“ Article 4 :

‘ Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them.

‘ They must be humanely treated . . . ’

“ That part of Article 6 which provides :

‘ . . . The tasks shall not be excessive . . . ’

“ That part of Article 8 which provides :

‘ . . . Escaped prisoners who are retaken before being able to rejoin their own army or before leaving the territory occupied by the army which captured them are liable to disciplinary punishment.

‘ Prisoners who, after succeeding in escaping, are again taken prisoners, are not liable to any punishment on account of the previous flight.’

“ From the Geneva Convention :

“ That part of Article 2 which provides :

‘ . . . They must at all times be humanely treated and protected, particularly against acts of violence, insults, and public curiosity . . .’

“ That part of Article 3 which provides :

‘ Prisoners of war have the right to have their person and their honour respected. Women shall be treated with all the regard due to their sex . . .’

“ Article 4, which provides :

‘ The power detaining prisoners of war is bound to provide for their maintenance. ‘

‘ Difference in treatment among prisoners is lawful only when it is based on the military rank, state of physical or mental health, professional qualifications, or sex of those who profit thereby.’

“ That part of Article 7 which provides :

‘ Prisoners of war shall be evacuated within the shortest possible period after their capture, to depots located in a region far enough from the zone of combat for them to be out of danger . . .’

“ Those parts of Article 9 which provide that :

‘ . . . Prisoners captured in unhealthful regions or where the climate is injurious for persons coming from temperate regions,.shall be transported, as soon as possible, to a more favourable climate ’ ;

and that :

‘ . . . No prisoner may, at any time, be sent into a region where he might be exposed to the fire of the combat zone, nor used to give protection from bombardment to certain points or certain regions by his presence.’

“ That part of Article 10 which provides :

‘ Prisoners of war shall be lodged in buildings or in barracks affording all possible guarantees of hygiene and healthfulness . . .

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“ Those parts of Article 11 which provide :

‘ The food ration of prisoners of war shall be equal in quantity and quality to that of troops at base camps . . .'

and that :

‘ . . . A sufficiency of potable water shall be furnished them . . .’

“ That part of Article 12 which provides that :

‘ Clothing, linen, and footwear shall be furnished prisoners of war by the detaining Power .'

“ That part of Article 13 which provides :

‘ Belligerents shall be bound to take all sanitary measures necessary to assure the cleanliness and healthfulness of camps and to prevent epidemics . . .’

“ Article 25 :

‘ Unless the conduct of military operations so requires, sick and wounded prisoners of war shall not be transferred as long as their recovery might be endangered by the trip.’

“ Article 29 :

‘ No prisoner of war may be employed at labours for which he is physically unfit.’

“ That part of Article 32 which provides :

‘ It is forbidden to use prisoners of war at unhealthful or dangerous work . . .’

“ That part of Article 46 which provides :

‘ . . . Any corporal punishment, any imprisonment in quarters without daylight and, in general, any form of cruelty, is forbidden . . .’

” Article 50, which provides :

‘ Escaped prisoners of war who are retaken before being able to rejoin their own army or to leave the territory occupied by the army which captured them shall be liable only to disciplinary punishment.

‘ Prisoners who, after having succeeded in rejoining their army or in leaving the territory occupied by the army which captured them, may again be taken prisoners shall not be liable to any punishment on account of their previous flight.’

" That part of Article 56 which provides :

‘ In no case may prisoners of war be transferred to penitentiary establishments (prison, penitentiaries, convict prisons, etc.) there to undergo disciplinary punishment . . .’

“ Under these provisions certain accepted principles of International Law are clearly stated. Among those applicable in this case are noted those provisions concerning the proper care and maintenance of prisoners of war. Also the provisions prohibiting their use in dangerous localities and employment, and in this connection it should be pointed out that we consider their

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use by combat troops in combat areas for the construction of field fortifications and otherwise to constitute dangerous employment under the conditions of modern war. Under those provisions it is also apparent that the execution of prisoners of war for attempts to escape was illegal and criminal.

“ Also, it is the opinion of this Tribunal that orders which provided for the turning over of prisoners of war to the SD, a civilian organization, wherein all accountability for them is shown by the evidence to have been lost, constituted a criminal act, particularly when from the surrounding circumstances and published orders, it must have been suspected or known that the ultimate fate of such prisoners of war was elimination by this murderous organization.

” The Judgment contains the follovving paragraphs concerning the compulsory use of civilian labour :

“ Concerning the compulsory use of the civilian population, spoliation, and devastation within occupied areas, the following provisions of the Hague Convention are likewise cited as applicable in this case :

‘Article 43 :

‘ The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the . country.

‘ Article 46 :

‘ Family honour and rights, to lives of persons, and private property, as well as religious convictions and practice, must be respected.

‘ Article 47 :

‘ Pillage is formally forbidden. ‘

‘ Article 49 :

‘ If, in addition to the taxes mentioned in the above Article, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in question.

‘ Article 50 :

‘ 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.’

“ That part of Article 52 which reads as follows :

‘ Requisitions in kind and service shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own ’ country . . .’

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“ That part of Article 53 which reads as follows :

‘ An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations . . .’

“ Under the Articles above quoted, it is apparent that the compulsory labour of the civilian population for the purpose of carrying out military operations against their own country was illegal. "

“ Under the same Articles, the compulsory recruitment from the population of an occupied country for labour in the Reich was illegal." (Footnote 1: Elsewhere, in dealing with Reinhardt’s responsibility the Tribunal said that “ there is no international law that permits the deportation or the use of civilians against their will for other than on reasonable requisitions for the needs of the army, either within the area of the army or after deportation to rear areas or to the homeland of the occupying power. This is the holding of the I.M.T. judgment, and this consistently has been the holding of all the Nuremberg Tribunals. . . . There is no military necessity to justify the use of civilians in such manner by an occupying force. If they were forced to labour against their will, it matters not whether they were given extra rations or extra privileges, for such matters could be considered, if at all, only in mitigation of punishment and not as a defence to the crime.” Of Hollidt, it was said : “ The evidence in this case establishes without question the illegal use of civilian labour by units under the defendant’s command with his knowledge and consent. This labour was not voluntary and involved the use of civilians in the construction of field fortifications contrary to international law.” Regarding the deportation and slave labour as an offence against civilians, see also Vol. VII, pp. 53-8. On the question of war crimes committed against property rights, see Vol. IX, pp. 39-43, and Vol. X, pp. 159-66. )

It was pointed out, however, by the Tribunal that “ the doctrine of military necessity has been widely urged. In the various treatises on International Law there has been much discussion on this question. It has been the viewpoint of many German writers and to a certain extent has been contended in this case that military necessity includes the right to do anything that contributes to the winning of a war.”

The Tribunal expressed itself as follows :

“ We content ourselves on this subject with stating that such a view would eliminate all humanity and decency and all law from the conduct of war and it is a contention which this Tribunal repudiates as contrary to the accepted usages of civilized nations. Nor does military necessity justify the compulsory recruitment of labour from an occupied territory either for use in military operations or for transfer to the Reich, nor does it justify the seizure of property or goods beyond that which is necessary for the use of the army of occupation. Looting and spoliation are none the less criminal in that they were conducted, not by individuals, but by the army and the State.

“ The devastation prohibited by the Hague Rules and the usages of war is that not warranted by military necessity. This rule is clear enough but the factual determination as to what constitutes military necessity is difficult. Defendants in this case were in many-instances in retreat under arduous conditions wherein their commands were in serious danger of being cut off. Under such circumstances, a commander must necessarily make quick decisions to meet the particular situation of his command. A great deal

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of latitude must be accorded to him under such circumstances. What constitutes devastation beyond military necessity in these situations requires detailed proof of an operational and tactical nature. We do not feel that in this case the proof is ample to establish the guilt of any defendant herein on this charge. ” 

The Tribunal then made the following remark :

“ Concerning the treatment of Red Army soldiers, the Hague Conventions provide :

'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 “.’

“ This Article defines what constitutes a lawful belligerent. (Footnote 1: Regarding the status of belligerent, see also Vol. V, pp.27-30) Orders to the effect that Red Army soldiers who did not turn themselves over to the German authorities would suffer penalty of being treated as guerrillas, and similar orders, and the execution of Red Army soldiers thereunder, are in contravention of the rights of lawful belligerents and contrary to International Law.

“ It has been stated in this case that American occupational commanders issued similar orders. This Tribunal is not here to try Allied occupational commanders but it should be pointed out that subsequent to the unconditional surrender of Germany, she has had no lawful belligerents in the field.”

(xiii) The Findings on Counts II and III

The findings of the Tribunal as to von Leeb were as follows :

“ For the reasons above stated we find this defendant guilty under Count III of the Indictment for criminal responsibility in connection with the transmittal and application of the Barbarossa Jurisdiction Order. Under Control Council Law No. 10 it is provided that superior orders do not constitute a defence but may be considered in mitigation of an offence.

“ We believe that there is much to be said for the defendant von Leeb by way of mitigation. He was not a friend or follower of the Nazi Party or its ideology. He was a soldier and engaged in a stupendous campaign with responsibility for hundreds of thousands of soldiers, and a large indigenous population spread over a vast area. It is not without significance that no criminal order has been introduced in evidence which bears his signature or the stamp of his approval.

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“ We find on the evidence in the record, and for the reasons above stated, the defendant is guilty under Count III of the Indictment, and not guilty under Count II thereof.

” Sperrle and Schniewind were found not guilty under Counts II and III. Von Kuechler, Hoth, Reinhardt, von Salmuth, Hollidt, von Roques, Rienecke, Warlimont, Woehler and Lehmann were found guilty under Counts II and III.

(xiv) The Sentences

The Tribunal, before meting out sentence, said that : “ Each defendant receiving a sentence for a term of years shall receive credit upon the sentence imposed upon him for such a period or periods of time as he has been in confinement, whether as a prisoner of war or otherwise, since 7th May, 1-945. ” 

The sentences passed upon the accused found guilty were as follows :

To life imprisonment : Heimann Reinecke and Walter Warlimont.

To twenty years’ imprisonment : Georg Karl Friedrich Wilhelm von Kuechler, Hans von Salmuth and Karl von Roques.

To fifteen years’ imprisonment : Hermann Hoth and Hans Reinhardt.

To eight years’ imprisonment : Otto Woehler.

To seven years’ imprisonment : Rudolf Lehmann.

To five years’ imprisonment : Karl Hollidt, and

To three years’ imprisonment : Wilhelm von Leeb.

At the time of going to press these sentences had not been confirmed.

(xv) A Defence Motion

After the passing of sentences one of the Defence Counsel rose and spoke as follows :

“ Your Honours, on behalf of the entire defence, I should like to make a brief statement. The defence has ascertained that the judgment just pronounced is in contradiction with the decisions of other military tribunals in Nuremberg with respect to basic and important legal points. In accordance with Ordinance No. XI, (Footnote 1: See Vol. IX, pp. 58-9) the defence asks the military tribunals to make a decision on that point by calling plenary session of all Tribunals. The substantiation of this motion will be handed in later in view of the time period allowed in that Ordinance.” 

On the following day the President of the Tribunal ruled on this motion :

“ The Tribunal considered the judgments of other tribunals heretofore rendered in arriving at the judgment in this case and is of the opinion there is no conflict with them and does not desire to hear argument on the motion. Accordingly, the motion for a plenary session filed on behalf of all of the defendants is overruled without prejudice to such further rights in the matter as defendants may have.“(Footnote 2: This finding illustrates the comment made in the notes to the Flick Report (in Vol. IX, p. 59) that “ the convening of a joint session is within the discretion of the presiding judge and it is not obligatory that a joint session should be held upon a motion being received from Counsel.” )

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