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Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume III, London, HMSO. 1948 [Some sections have been highlighted provisionally until hyperlinks can be added to appropriate files. Page numbers precede text] CASE No. 13 Trial of ROBERT
WAGNER, Part III PERMANENT MILITARY TRIBUNAL AT STRASBOURG, 23RD APRIL TO 3RD MAY, 1946, AND COURT OF APPEAL, 24TH JULY, 1946 Recourse to And Decisions of the Court of Appeal
p.42 Wagner, Röhn, Schuppel and Gädeke were sentenced to death and confiscation of their entire property for the benefit of the nation. Grüner and Huber were sentenced to death. The sentence on Huber was pronounced in his absence. Luger was acquitted. All accused, including Luger, were declared to be jointly and severally liable for the costs of the proceedings. 9. RECOURSE TO AND
DECISIONS OF THE COURT 0F APPEAL (Cour de Cassation)
(Footnote 1: See p. 100.) (i) The Composition of the Military Tribunal (Footnote 2: See p. 94.) The Court of Appeal first decided on a plea put forward by Wagner, Röhn and Schuppel, and based upon the alleged violation of Art. 156 of the Code de Justice Militaire, claiming that the Military Tribunal was irregularly composed because Wagner had the rank of a General commanding an Army Corps and the Tribunal could not, therefore, properly be presided over by a Colonel. The judgment of the Court of Appeal pointed out that, according to Art. 5 of the Ordinance of 28th August, 1944, " For adjudicating on war crimes the Military Tribunal shall be constituted in the way laid down in the Code de Justice Militaire." The provisions of Arts. 10 et seq. and 156 of the Code de Justice Militaire, which varied the composition of Military Tribunals according to the rank of the accused, applied only to French military personnel and to persons treated as such. p.43 Paragraph 13 of Art. 10, according to which Military Tribunals called upon to try prisoners of war are composed in the same way as for the trial of French military personnel, that is according to rank, would not be applied to Wagner, who was not sent before a Military Court as a prisoner of war. It was therefore right that the appellants were brought before a Military Tribunal composed in accordance with Arts. 156 and 186 of the Code de Justice Militaire. (ii) Four Pleas Based upon Alleged Infringements of the Procedural Rights of the Accused (Footnote: See pp. 97-9). (a) The Court of Appeal had next to decide on a plea put forward by Wagner, Röhn, Schuppel and Gädeke, alleging a violation of Art. 65 of the Code de Justice Militaire in that the Order for Trial had been issued on the 6th April, 1946, before the return of a Commission of Enquiry sent by the juge d’instruction on 14th March, 1946, to hear Ribbentrop, Keitel and Lammers, and that Counsel for the accused had not been furnished with the evidence of these witnesses before the close of the preliminary hearing. The Court of Appeal rejected this plea. According to the terms of Art. 81 of the Code de Justice Militaire, which were applicable to the proceedings of Military Tribunals established in territorial districts in a state of war in virtue of the provisions of paragraph 3 of Art. 179, the accused should have formulated their complaint before the Military Tribunal. In the absence of such steps the plea could not be brought up for the first time before the Court of Appeal. (b) The Court of Appeal also rejected a plea put forward in two parts, the first by Wagner, Röhn, Schuppel and Gädeke and the second by all the appellants, the plea as a whole being based on an alleged violation of Art. 71, paragraph 1, and Arts. 172 and 179 of the Code de Justice Militaire, and Art. 1 of the Ordinance of the 28th August, 1944, relating to the rights of the defence. The first part of the plea claimed that the indictment had not been delivered to the appellants three days at least before the meeting of the Tribunal, along with the text of the law applicable and the Christian names and surnames, professions and residences of the witnesses. The second part of the plea alleged that the order to appear which was delivered to the accused did not contain among the texts of the law applicable that of the Ordinance of 28th August, 1944, despite the fact that such notification was expressly required by the above-mentioned texts and the fact that the Ordinance, which bestowed upon the alleged acts the character of war crimes and furnished the basis for the proceedings and alone provided legal jurisdiction to the French Military Tribunal to try belligerent persons belonging to an enemy nation, was pre-eminently a legal text applicable to the proceedings and which ought therefore to have been notified to the accused. In its decision on this plea the Court of Appeal laid down that the combined effect of Arts. 172 and 179 of the Code de Justice Militaire was that the provisions of Art. 71, paragraph 1, of the same code were not applicable to proceedings held by Military Tribunals established in territorial districts in a state of war. According to Art. 179, an accused ordered to appear p.44 before such a tribunal must, 24 hours at least before the meeting thereof, receive notification of the summons containing the order of convocation of the Court as well as the indication of the crime or delict alleged, the text of the law applicable and the names of the witnesses which the prosecution proposed to produced. The summons was duly notified to the accused on the 6th April, 1946. It was true that it was maintained that the summons did not make mention of the Ordinance of 28th August, 1944, which gave to the alleged acts the character of war crimes and provided a basis for the jurisdiction of the Military Tribunal, and therefore did not satisfy the requirements of Art. 179 of the Code de Justice Militaire. Nevertheless, since the provisions of this article, which were relied upon in the second part of the plea, envisaged only the texts of the law which laid down the penalties applicable to the crimes committed, and since this category did not include the Ordinance of 28th August, 1944, the complaints contained in both parts of this plea were not substantiated. (c) The Court of Appeal had next to decide upon a plea put forward by Wagner, based upon alleged violations of the rights of the defence, and claiming that the Military Tribunal had rejected the arguments of the appellant in favour of hearing further witnesses. The Court of Appeal recalled that the Military Tribunal had decided on 3rd May, 1946, to reject the arguments of the appellant in favour of hearing several witnesses because it was for the accused to arrange for the appearance of all witnesses whom they judged necessary for their defence. In deciding thus, the Military Tribunal had made an exact application of the provisions of paragraph 3 of Art. 179 of the Code de Justice Militaire the language of which was as follows : " . . . The accused has the right, without formality or previous notification, to arrange for the hearing on his behalf of all witnesses of whom he has notified the Prosecutor before the opening of the proceedings, provided they are present at the hearing." Therefore the plea was rejected. (d) The court rejected the plea of Röhn, based upon an alleged violation of the rights of the defence, and claiming that the Memoranda of the appellant dated 28th January, 1st June and 14th September, 1943, which had not been submitted as evidence at the preliminary hearing, were made the subject of argument at the main hearing and were used as a basis for the verdict. The documents referred to in the plea, said the Court of Appeal, appeared in the dossier of the preliminary enquiry and were made the subject of interrogations of the accused Röhn on the 18th June and 5th October, 1945. Furthermore, they had been made the subject of discussion between the parties in the course of the main hearing without the appellant having raised any objection. It followed that the plea must fail. (iii) The Alleged Retroactive Application of the Ordinance of 28th August, 1944 The Court of Appeal had next to decide on a plea put forward by Wagner, based upon the alleged violation of Art. 4 of the Code Pénal (Footnote: " No misdemeanour, delict or crime can be punished except by penalties laid down by law before the perpetration thereof.") and of the p.45 principle of the non-retroactivity of the criminal law, claiming that the Ordinance of the 28th August, 1944, had been applied against the appellant despite the fact that the Ordinance, which was aimed at punishing acts committed before its promulgation, did not respect Art. 4 and the principle just mentioned. The judgment of the Court of Appeal recalled that the Ordinance laid down that the crimes and delicts set out in its Art. 1, "which have been committed since the beginning of hostilities," shall be prosecuted before French Military Tribunals and tried in accordance with the French laws in force and with its own provisions. This legal text, duly promulgated, became binding on the Tribunals and could not be questioned before them on grounds of its unconstitutional nature. The plea could not, therefore, be upheld. Wagner put forward a plea based upon an alleged violation by false application of the Ordinance of 28th August, 1944, claiming that the acts alleged were committed in Alsace, which was annexed by Germany, and on territory over which French sovereignty had ceased to operate. The purported declaration of annexation of Alsace by Germany on which reliance was placed in the plea was deemed by the Court of Appeal to be nothing more than a unilateral act which could not legally modify the clauses of the treaty signed at Versailles on 28th June, 1919, by the representatives of Germany. Therefore the acts alleged to have been committed by Wagner were committed in Alsace, French territory, and constituted war crimes in the sense of Art. 1 of the Ordinance of 28th August, 1944. (v) A Plea based on the Fact that the Judges were not asked whether the Acts charged were Justified by the Laws and Customs of War. (Footnote: And see pp. 53-4.) The Court of Appeal had next to decide on a plea put forward by all appellants and based upon an alleged violation of Arts. 88, 90 and 172 of the Code de Justice Militaire, Art. 1 of the Ordinance of 28th August, 1944, and Art. 7 of the Law of 20th April, 1810, and upon an alleged lack of legal basis. The appellants claimed that, since the prosecution arose out of crimes and delicts committed by persons belonging to an enemy nation and whose acts were of a belligerent nature, the questions put to the military judges should have aimed at making it clear that the alleged crimes were within their competence and should be punished with the penalties laid down in the Ordinance of 28th August, 1944, because they were not justified by the laws and customs of war. In fact, however, none of the questions put to the military judges had asked whether the acts charged were or were not justified by the laws and customs of war. The silence of the questions on this point resulted in the judges not taking a decision on an essential element of the war crimes alleged against the appellants. The Court of Appeal pointed out that the war crimes set out in Art. 1 of the Ordinance must, in the language of that Article, be punished by p.46 French Military Tribunals, in accordance with French law, " when such offences even if committed at the time or under the pretext of an existing state of war, are not justified by the laws and customs of war." The effect of these provisions was that justification by the laws and customs of war of the alleged acts would, if established, take away their criminality. Distinct questions regarding the existence of this justifying element were not, therefore, necessary, since they were implicitly included in the questions regarding guilt. It followed that the plea must be rejected. (vi)
Five Pleas relating to the Application of Provisions
of French Law regarding Enrolments on Behalf of an
Enemy Power, and relating to
Superior Orders.
(Footnote 1: And see pp. 51-4.)
The Court then had to decide on pleas put forward by Wagner, Röhn, Schuppel and Gädeke alleging violation of Arts. 75 and 77 of the Code Pénal and of Art. 24 of the Law of 29th July, 1881, (Footnote 2: See p. 53 ) and failure by the Tribunal to answer Counsel’s arguments. It was pleaded :
Dealing with the first part of the plea, the Court of Appeal pointed out that the first paragraph of Art. 77 of the Code Pénal declaring guilty of espionage " any foreigner who commits one of the acts set out in Art. 75, paragraph 4," and which is aimed especially against enrolment for a foreign power at war with France, made no distinction between foreigners coming from an enemy nation and those who do not. Moreover, paragraph 2 of Art. 77, according to the language of which " provocation to permit or proposal to commit one of the crimes set out in Arts. 75 and 76 and by the present article shall be punished in the same way as the crime itself," makes no exception in favour of persons coming from an enemy country. Therefore, in declaring Wagner, Röhn, Schuppel and Gädeke guilty of having carried out enrolment for a power at war with France and the first three of having encouraged Frenchmen to bear arms against France, the Military Tribunal, far from violating Arts. 75 and 77 of the Criminal Code, on the contrary, made an exact application thereof. On the second part of the plea, the Court of Appeal laid down that it was of no importance that the infractions mentioned in the plea did not p.47 appear in the enumeration, contained in paragraph 2 of Art 1. of the Ordinance, of offences which must in particular be punished as war crimes, since this enumeration had not an exhaustive character. On the third part of the plea, the Court of Appeal recalled that Wagner, Röhn and Schuppel had been accused of offences against Arts. 75 and 77 of the Code Pénal for having incited Frenchmen to bear arms against France. In view of the affirmative answers to the questions regarding guilt in this connection, it was in order for the Military Tribunal to pronounce the penalty laid down by the above-mentioned articles. It was for the defence to request that subsidiary questions should be asked as to whether the provocations alleged had been committed in one of the ways set out in Art. 23 of the Law of 29th July, 1881, and had not had any effect ; but no use had been made of this right and consequently Art. 24, paragraph 1, of the said law of 29th July, 1881, had no application in this connection. On the 4th and 5th items of the plea, the Court of Appeal pointed out that, in connection with each of the infractions of Arts. 75 and 77 of the Code Pénal, set out in the charge against Schuppel and Gädeke, the Military Tribunal had been asked whether the accused " had acted under order of his superiors for purposes within the jurisdiction of the latter and on which he owed them obedience due to rank." The putting of these questions gave satisfaction to the request formulated in the arguments put forward by Gädeke and set out in his plea. Further, the Tribunal had answered in the negative to each of these questions. The answers duly given to these questions were irrevocable. Therefore the plea must fail. (vii) The Jurisdiction of the Military Tribunal (Footnote: And see p. 49) The Court of Appeal had then to decide on the joint pleas put forward on the one hand by Grüner and on the other hand by Rohn and Schuppel, founded upon the alleged violation of Art. 81 of the Code de Justice Militaire and of Art. 1 of the Ordinance of 28th August, 1944. They pointed out that the Military Tribunal, in its decision of the 23rd April, 1946, had rejected the arguments based on lack of jurisdiction put forward by Grüner, on the ground that the competence of the Military Tribunal, being based on the Order for Trial, could not be questioned. The appellants pleaded that, according to the terms of Art. 81 of the Code de Justice Militaire, the question of lack of jurisdiction could be brought up at any time before the hearing of witnesses, and that the voluntary homicides alleged in the charge against Grüner had been committed on German territory against an English prisoner of war. The terms of the Ordinance of the 28th August, 1944, could not, therefore, be applied in this instance. In its decision on this plea, the Court of Appeal recalled that the terms of Art. 81 of the Code de Justice Militaire stated that " if the accused or the Prosecutor has pleas based on lack of jurisdiction to put forward, such a plea must be put forward before the hearing of witnesses and the submission must be decided upon immediately." The provisions of this article were applicable in proceedings before a Military Tribunal established in territorial districts in a state of war, in virtue of Art. 179, paragraph 3 of the same p.48 Code. Counsel for Grüner, before the hearing of witnesses, had claimed that the Military Tribunal lacked jurisdiction in view of the fact that the acts had not been committed either in France or in territory under the authority of France or against or to the prejudice of any of the persons mentioned in paragraph 1 of Art. 1, of the Ordinance of 28th August, 1944. The Military Tribunal in its decision of 23rd April, 1946, had rejected his arguments on the ground that the formal act of sending the case to trial had bestowed jurisdiction on the Tribunal, the Order of Trial had become final in the absence of any opposition and the competence of the Tribunal could not, therefore, be put into question. The Court of Appeal ruled that in deciding thus, the Military Tribunal had violated the provisions of Art. 81 of the Code de Justice Militaire. Moreover the Court of Appeal pointed out that paragraph 1 of Art. 1 of the Ordinance of 28th August, 1944, laid down that :
The Tribunal’s decision of the 3rd May, 1946, stated that Grüner was, by the answers made to the questions Nos. 146 to 153, declared guilty of four acts of voluntary homicide, each specified by questions Nos. 31-38 in the following terms : " Is it proved that on the 7th October, 1944, at Reinweiler (Baden), a homicide was voluntarily committed against the person of an English prisoner of war of unknown address ? " " Did this murder immediately precede, accompany or follow the murder set out in the -th question ? " (Footnote: See pp. 97 and 99) The crimes set out in the charge against Grüner were shown by the answers made to the above-mentioned questions to have been committed in Germany against the persons of soldiers of an Allied army and were not among those which, according to the terms of the Ordinance of 28th August, 1944, could be prosecuted before French Military Tribunals and tried according to French laws. It followed that, in applying to Grüner provisions of the said Ordinance, the decision which was challenged violated these provisions and had no legal basis. Finally, since the Military Tribunal. had answered in the negative thequestion whether Röhn and Schuppel were accomplices to the crime of voluntary homicide committed by Grüner, the accused were without interest in making a complaint based on the violation of the law on which reliance p.49 was placed in the plea. Accordingly, the plea in so far as they were concerned could not be received. There was, according to the Court of Appeal, no need to decide on the plea put forward by Gädeke based on an alleged violation of Art. 60 of the Code Pénal, concerning complicity in the acts of premeditated murder specified in questions 1-28 of which he had been declared guilty by the answers to questions 118-144, since the penalty inflicted upon him was legally justified having regard to the dispositions of Arts. 75 and 77 of the Code Pénal, which was aimed at punishing the crime of recruiting for the benefit of a foreign power, and the provisions of Art. 411 of the Code d’lnstruction Criminelle. (viii) The General Outcome of the Appeal For the reasons set out above the Court of Appeal rejected the appeals lodged by Wagner, Röhn, Schuppel and Gädeke and condemned them collectively to pay costs. The Court quashed the ruling of 23rd April, 1946, which rejected the arguments of Grüner based on lack of competence, together with the judgment of 3rd May, 1946, as far as it related to Grüner. Since the acts contained in the charge against Grüner did not fall within the jurisdiction of the existing French Courts, the Court stated that a reference back for re-trial was not possible and that Grüner was to be freed if he was not detained for another reason or required by an Allied authority. (Footnote 1: Grüner was subsequently handed over to the British Authorities for trial by British Military Court (which has jurisdiction to try all war crimes committed against Allied victims). Grüner succeeded in escaping on the eve of his trial and at the date of going to press of this Volume he had not been recaptured. ) 1. THE LEGAL BASIS OF THE TRIBUNAL AND ITS JURISDICTION The Tribunal was convened by virtue of the French Ordinance of 28th
August, 1944, Concerning the Prosecution of War Criminals. (Footnote
2: See p. 93. )
Article 68 lays down the exclusive authority of the Indictments
Division (Chambre des mises en accusation) of
the Court of Appeal to commit cases to a Military Tribunal for tria1.
(Footnote 3: See p. 97.) The Court of Appeal, however, ruled that an accused was, despite the provisions of Art. 177, still entitled, under Art. 81 (Footnote 4: See p. 47), to question the jurisdiction of the Tribunal at any time before the hearing of witnesses. The p.50 Court of Appeal went on to state that the Tribunal had in fact been without jurisdiction to try Grüner, whose crimes were committed in Germany against Allied prisoners and were therefore outside the scope of Art.1 of the Ordinance of 28th August, 1944. (Footnote 1: See p. 48.) As will be seen, Grüner could properly have been tried by a
Military Government Tribunal in the French Zone of Germany. (Footnote
2: See p. 101.) At the time of the trial (April, 1946), fighting between France and the ex-enemy countries had ceased. The question whether, under International Law, in view of the fact that no treaty of peace had been signed with Germany, the war against Germany must still be regarded as being in progress, is, however, of no relevance to provisions of municipal law such as Art. 68 of the Code de Justice Militaire. Each country is free to appoint, for its own internal legal purposes, an official date at which the war is to be deemed to have ended. For the French legal system, the date so appointed was 1st June, 1946, for that of the United States, 31st December, 1946. (Footnote 3: President Truman, in a proclamation on 31st December, 1946, announced with immediate effect the official termination of hostilities of the Second World War. At a news conference he pointed out that his proclamation did not officially end the state of emergency proclaimed by President Roosevelt in 1939 and 1941 nor formally end the state of war itself and that such action could only be taken by the U.S. Congress. The termination of hostilities meant the immediate ending of 20 war-time statutes, and the cessation of 33 others within six months.) On the other hand, the British Government has taken the view that, no treaty of peace or declaration of the Allied Powers terminating the state of war with Germany having been made, the United Kingdom is still in a state of war with Germany, although, as provided in the Declaration of Surrender of 5th June, 1945, all active hostilities have ceased. (R. v. Bottril, exparte Küchenmeister [1946] 1 All England Reports, p. 635). 2. PRISONERS OF WAR RIGHTS NOT GRANTED TO PERSONS ACCUSED OF WAR CRIMES It is a recognised rule that a person accused of having committed war crimes is not entitled to the rights in connection with his trial laid down for the benefit of prisoners of war by the Geneva Prisoners of War Convention of 1929.(Footnote 4: See War Crime Trial Law Reports, Vol. I, pp. 29-31 and also a Report on the trial of General Yamashita by a United States Military Commission, to be contained in Volume IV of this series. ) An interesting corollary is provided by the decision of the French Court of Appeal that Wagner was not entitled to the rights provided for a prisoner of war under French Law. (Footnote: See pp.2-3.) 3. THE CHARGES AGAINST THE ACCUSED Article 1 of the Ordinance makes certain persons punishable for breaches of French law in respect of specified persons and property, provided that their acts are not justified by the laws and customs of war. (Footnote 5: See p. 94.) p.51 In the Wagner trial the legal provisions describing the offences which the accused were alleged by the Prosecution to have committed, were those contained in Arts. 75, 77, 295, 296 and 297 of the Code Pénal and in the Ordinance of 28th August, 1944. It is interesting to examine these in turn. (a) Art. 77 of the Code provides that any foreigner who commits any of the acts referred to in Art.75 (2), (3), (4) and (5) and in Art. 76 thereof shall be guilty of espionage and punished by death. Provocation to commit, or proposal to commit, one of the crimes set out in these paragraphs of Art. 75, or in Arts. 76 or 77 itself, shall also be punished as espionage. The only provision referred to in Art. 77 which is relevant to the present discussion is the following paragraph from Art. 75 :
These provisions were the basis of the charges of inciting Frenchmen to bear arms against France which were made against Wagner, Röhn and Schuppel.
It will be recalled that Wagner was charged with attempts against individual liberty. It should be noted that under Art. 35 of the Code Pénal the penalty of " civic degradation " must, in the case of an alien, be accompanied by a sentence of imprisonment for a term not exceeding five years. (c) The remaining three Articles of the Code Pénal which were referred to in the Act d’accusation and in the judgment of the Tribunal, as describing the alleged offences, were as follows :
p.52
It will be recalled that Hugo Grüner was charged with having committed premeditated murder, and Wagner, Röhn, Schuppel, Gädeke, Luger, Semar and Huber with having been accomplices thereto. (As to complicity, see p. 17.) (d) Reference was also made to the Ordinance of 28th August, 1944. Article 2(l) thereof states that illegal recruitment of armed forces, as specified in Art. 92 of the Code Pénal, shall include all recruitment by the enemy or his agents. The provisions of Art. 92 are as follows :
These provisions would provide a basis for the charges against Wagner, Röhn, Schuppel and Gädeke, alleging recruitment for the benefit of a foreign power at war with France. Art. 2(4) of the Ordinance provides that :
Art. 2 (5) of the Ordinance states that :
The wording of Art. 341 is as follows :
Arts. 342 and 343 set out the circumstances in which sentences of penal servitude for life, or imprisonment for from two to five years may be delivered for the commission of this offence. These provisions would provide the basis for the charge of attempts against individual! liberty, brought against Wagner. Art. 23 and the first paragraph of Art. 24 of the Law of 29th July, 1881, on the liberty of the Press, on which a plea was based by Wagner, Röhn, Schuppel and Gädeke, run as follows : Anyone who by speech, shouts or threats uttered in public places or meetings, either by writing or printed matter sold or distributed, placed on sale or displayed in public places or meetings, or by placards or posters displayed to the public eye, has directly provoked the author p.53
As has been seen, (Footnote 1: See p. 47.) the Court of Appeal ruled that Counsel for Wagner; Röhn and Schuppel should have requested that a subsidiary question be put to the judges of the Military Tribunal asking whether the accused came within the terms of Article 24, but, since they had failed to do so, that Article had no application to the case. Art. 88 and 90 of the Code de Justice Militaire, to which reference was made by the Defence in connection with their plea based on the fact that the judges were not asked whether the acts charged were justified by the laws and customs of war, (Footnote 2: See p. 45.) make the following provisions, regarding the questions which the President of a Military Tribunal must or may put to the judges thereof ; they elucidate also the plea of the Defence, based on Arts. 23 and 24 of the Law on the Freedom of the Press, referred to in the last paragraph : 88. The President shall ask the questions arising out of the Indictment and the proceedings in Court which must be put to the Judges. " He may also, acting ex officio, put to them subsidiary questions, if the proceedings have shown that the principal act can be considered either as an offence punishable by a different penalty or as a crime or delict under the general law ; but in this case he must declare his intentions in public sitting before the closing of the proceedings, in order to put the public prosecutor, the accused and his Counsel, in a position to give their observations in due course. " Art. 90. The questions shall be put by the President
in the following order for each accused : The investigation attempted in the previous paragraphs of the specific offences which the accused were alleged to have committed and of various provisions of French law relied upon by both Counsel and the Tribunal is of value, since it illustrates French state practice in the matter of war crimes, p.54 as do also, for instance, the provisions relating to the defence of superior orders, to be discussed later. The emphasis placed on breach of provisions of French law and defences based upon the same law does not signify, however, that the accused were not tried also for offences against the laws and customs of war. The French practice is merely an example of the prevailing continental approach to war crimes and their punishment, according to which the accused must be shown to have committed some breach of municipal law which was at the same time not justified by the laws and customs of war. In many trials of alleged war criminals by French Military Tribunal, the judges are specifically asked whether the acts proved against the accused were justified by the laws and customs of war. The Court of Appeal had to decide upon a plea based upon the fact that this step had not been taken in the Wagner Trial, and rule that it was not necessary that the Judges should be asked this specific question, because Art. 1 of the Ordinance of 28th August 1944, made it clear that the legality of an accused’s acts under the laws and customs of war would render him not guilty of an offence. It was not, therefore, necessary to ask the judges whether this element of justification existed. 4. THE DEFENCE OF SUPERIOR ORDERS Wagner occasionally referred to orders he had received from Hitler. All other accused claimed to have acted on orders from Wagner, either in the latter’s capacity as Head of the Civil Administration or as Gauleiter. Only in Luger’s case, however, was the plea of superior orders successful in securing an acquittal. The Judgment of the Tribunal states that Luger was acquitted in virtue of Art. 3 of the Ordinance, which lays down broadly that superior orders, while they " cannot be pleaded as justification within the meaning of Art. 327 of the Code Pénal ," may, in suitable cases, be pleaded as an extenuating or exculpating circumstance. Art. 327 of the Code Pénal provides :
The Judges answered in the affirmative the question whether, in committing the acts proved against him, Luger had "acted under the orders of his superiors, for objects which were within their province, and concerning which he owed them obedience due to rank." On the other hand, whenever the Judges were asked whether any of the other accused had acted under similar circumstances, their answers were in the negative. The Prosecution, and the Tribunal, made reference, in the Acte d’dccusation and in the judgment respectively, to Art. 114 of the Code Pénal, and, in view of the wording of Art. 3 of the Ordinance, it is interesting to examine the former provision. (Footnote: See also earlier in these notes, p. 51) The first paragraph thereof states that any public official who has ordered or committed an arbitrary act against, or an attempt against, individual liberty, the civic rights of one or more citizens, or the Constitution, shall suffer civic degradation. The second paragraph, however, states that if he p.55 pleads that he acted under the orders of his superiors, for objects which were within their province, and concerning which he owed them obedience due to rank, he shall not suffer this punishment, which shall be applied only to the superiors who gave the order. The similarity between the wording of this second paragraph and that of the question put to the Judges whether Luger acted under superior orders (see above) is evident. The position seems to be that the defence of superior orders, when pleaded in war crime trials before French Military Tribunals, does not constitute an absolute defence such as is envisaged in Art. 327, but that circumstances similar to those described in the second paragraph of Art. 114 may constitute an extenuating or exculpating circumstance. It is left to the Tribunal to decide in each case, whether and to what extent the plea is to be heeded. (Footnote: See Michel de Juglart, Méthodique de la Jurisprudence Militaire. (Paris, 1946), pp. 242-5.) |