Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume XI, London, HMSO, 1949
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CASE NO. 62
1ST JULY-3RD SEPTEMBER, 1947
The Prosecutor alleged that all 18 accused had joined in a general conspiracy to kill 50 officers. (Footnote 1: It should be noted that none of the charges in this trial were charges of conspiracy as such. It is worth recalling that in his summing up in the trial of Georg Tyrolt and others, before a British Military Court, Helmstedt, Germany, from 20th May-24th June, 1946, the Judge Advocate said that : " There is nothing magic about a joint charge except that it enables you to try more than one person at one time. . . .") He rested his case on the notoriety of the Sagan escape in view of the nation-wide hue and cry, on the publication of it in the Police Gazette and on the uniformity of the orders received by the various Commanding Officers of the regional headquarters. The two main arguments for the defence were a legal and a factual one (i) that there could be no conspiracy between military superiors and their subordinates, and (ii) that there was no evidence of any connection between the accused or of any co-operation between their various regional headquarters.
The Judge Advocate did not deal with these arguments or give any reason for his advice to the court to disregard the first two charges, but it is clear that the first argument is not sound. This argument was rejected in the Nuremberg judgment when dealing with the conspiracy between major war criminals :
As to the second argument, it seems that the court found that though there was evidence that the members of every group of accused were together concerned in the killing of the officers handed over to them, and were therefore guilty of one of the charges (iii)-(ix), there was not enough evidence beyond that to show that they knew what had been planned in Berlin or what was happening outside their region and therefore, a fortiori, not enough evidence that they were together concerned in the killing of 50 out of the 80 escaped officers.
In the case of Max Wielen, unlike that of the other 17 accused, there was evidence of his participation both in the preparation and in the concealment of the crime. It seems that, basing its conclusions on this additional evidence which was not available against the other accused, the court found him guilty of being concerned, together with Generals Nebe and Mueller, in the killing of the 50 officers.
Regarding charges (iii)-(ix), the Judge Advocate thus defined the term " concerned in the killing " : " I do not think the prosecution can ask you to consider a case of a minor official who was concerned with some administrative matter. What they had in mind is that the persons concerned must have been part of the machine doing some duty, carrying out some performance which went on directly to achieve the killing, that it had some real bearing on the killing, would not have been so effective or been done so expeditiously if that person had not contributed his willing aid."
By finding the accused Schimmel and Gmeiner guilty, the court indicated that being " concerned in the killing " does not necessarily require the presence of the accused on the scene of the crime, since both Schimmel and Gmeiner gave instructions to their subordinates but were not present at the shooting. This has been held by the courts in previous war crimes trials. (Footnote 1: See for instance Volume V of this series, pp. 45-53)
The degree of participation may vary within the term " concerned in the killing." Whereas all participants were found guilty whether they had given the order or fired the fatal shot themselves or acted as an escort or kept off the public, the prominence of the part they played found expression in the sentences. Whereas the Commanding Officer who gave the order and the men who fired the shots or acted as escorts were sentenced to death, the two drivers, Struve and Detikmann, were sentenced to imprisonment for 10 years. (Footnote 2: For a similar case on degrees of participation, see the Almelo Trial, Volume I, p. 43)
This defence was relied on by all accused in view of the order from Hitler. It was also relied upon by some of the junior ranks amongst the accused, who pleaded that they acted under orders from their Commanding Officers.
The defence quoted paragraph 47 of the German Military Penal Code :
Counsel argued that paragraph 47, sub-paragraph (2) required positive knowledge of the illegality of the order on the part of the accused, and that the accused in this case had no such positive knowledge, though they may have had doubts as to the legality of the order.
The Judge Advocate, after quoting extensively from Professor Lauterpachts article in the British Year Book of International Law, 1944, read paragraph 433 of Chapter 14 of the Manual of Military Law ; (Footnote 3: See Volume I, p. 18) and with regard to the last sentence of that paragraph that the accused could not escape liability " if in obedience to a command they committed acts which both violated unchallenged rules of warfare and outraged the general sentiment of
humanity ", the Judge Advocate said : " I think there can be no doubt apart from any other matter, that none of the accused in this case would be outside those concluding words, if he really knew that he was taking part in the killing of recaptured prisoners of war who had done nothing else but escape." (Footnote 1: As to the defence of Superior Orders generally, see p. 24, note 2.)
This case seems to furnish a practical illustration of the contention that if any other interpretation of the plea of superior orders were to prevail only a very small number of high ranking persons, if anyone at all, could be. punished for flagrant breaches of international law. Since the orders for the killing in this case were given by the Head of the State himself, only he could have been punished for the murder of the 50 officers.
Counsel for the defence submitted that to support a plea of duress the threat need not be immediate but may be one of future injury. Counsel quoted a case before the German High Court (R.G.E. 66, page 98) where two defendants charged with perjury pleaded that before giving evidence in criminal proceedings against a political organisation, they had been threatened by the members of that organisation with serious physical injury at some future date if they told the truth. The plea was successful and the two accused were acquitted.
The Prosecutor in his closing address quoted paragraph 10, Chapter 7, of the Manual of Military Law :
He argued that with the exception of the two drivers it could not be said that any of the accused had played a strictly subordinate part.
The Judge Advocate, quoting from Archbolds Criminal Pleadings (1943 Edition, page 19), said : " The same principle which excuses those who have no mental will in the prepetration of offences protects from the punishment of the law those who commit crimes in subjection to the power of others and not as a result of an uncontrolled free action proceeding from themselves. But if a merely moral force is used as threats, duress of imprisonment, or even an assault to the peril of his life in order to compel the accused to kill, this is no excuse in law."
In this trial, as well as in many other war crimes trials (Footnote 2: See also Volume I, p. 19 ; Volume II, pp. 106 and 107.) the decision in the above case was quoted, both by the Prosecutor and by the defence.
The case was cited by the prosecution to support the proposition that the plea of superior orders provides no excuse in international law, but
only goes to mitigation of punishment. The defence tried to distinguish the Llandovery Castle Case by saying that in that case the court found " as a fact " that the accused were fully aware that the firing on survivors by a U-boat was a crime, and therefore the court held that they were responsible under paragraph 47/2 of the German Military Penal Code. If, however, the accused, as in the Stalag Luft III case, had no such positive knowledge of the criminality of their action, they must be acquitted.
It may thus prove useful to analyse shortly the judgment in the Llandovery Castle Case which was tried before the German Supreme Court at Leipzig in July, 1921. The judgment is in its entirety based on German municipal law.
(i) The Facts
The " Llandovery Castle " was a British hospital ship which was sunk by a German submarine. The submarine commander, in an attempt to eliminate all traces of the sinking, gave orders to fire on the life boats. All persons in two of the three lifeboats were killed. The Commander, Patzig, was not on trial, the two accused being both lieutenants on board the submarine.
(ii) The PIea of Superior Orders
The court, applying paragraph 47 of the German Military Penal Code, (Footnote: See p. 46.) said in its judgment : " Patzigs order does not free the accused from guilt. It is true that according to paragraph 47 of the German Military Penal Code, if the execution of an order in the ordinary course of duty involves such a violation of the law as is punishable the superior officer issuing such an order is alone responsible. According to sub-paragraph (2), however, a subordinate obeying such an order is liable to punishment if it was known to him that the order of his superior involved the infringement of civil or military law. This applies in the case of the accused. It is certainly to be urged in favour of the military subordinates that they are under no obligation to question the order of a superior officer and they can count upon its legality, but no such confidence can be held to exist if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law. This happens only in rare and exceptional cases, but this case was precisely one of them for in the present instance it was perfectly clear to the accused that killing defenceless people in the lifeboats could be nothing else but a breach of the law."
" In estimating the punishment, it is in the first place to be borne in mind that the principal guilt rests with the commander, Patzig, under whose orders the accused acted. They should certainly have refused to obey the order. This would have required a specially high degree of resolution. This justifies the recognition of mitigating circumstances in determining the punishment under paragraphs 213, 49 and 244 of the State Penal Code. A severe sentence must, however, be passed "
(iii) Absence of Mens Rea as a Defence
The court pointed out that any violation of the law of nations in warfare is a punishable offence, so far as in general a penalty is attached to the deed.
The killing of enemies in war is in accordance with the will of the State that makes war (whose laws as to the legality or illegality on the question of killing are decisive) only insofar as such killing is in accordance with the conditions and limitations imposed by the law of nations. The fact that his deed is a violation of international law, must be well known to the doer, apart from acts of carelessness in which careless ignorance is a sufficient excuse. In examining the question of the existence of this knowledge, the ambiguity of many of the rules of international. law, as well as the actual circumstances of the case, must be borne in mind because in war time decisions of great importance have frequently to be made on very insufficient information. This consideration, however, cannot be applied to the case at present before the court. The rule of international law which is here involved is simple and is universally known.
(iv) The Defence of Duress
This defence was rejected in the judgment in the following words : " The defence finally points out that the accused must have considered that Patzig would have enforced his orders? weapon in hand, if they had not obeyed them. This possibility is rejected. If Patzig had been faced by a refusal on the part of his subordinates he would have been compelled to desist from his purpose as then it would have been impossible for him to attain his object, the concealment of the torpedoing of the Llandovery Castle. This was quite well known to the accused who had witnessed the affair. From the point of view of necessity (paragraph 52 of the Penal Code) they could not then claim to be acquitted."
It would seem therefore that the decision supports two propositions : (1) that according to German law the maxim Respondeat superior does not apply to cases where the order involves the violation of a rule of international law, if that rule is " simple and universally known " ; (2) that the plea of duress or necessity will not succeed if the accused, by refusing the orders of his superior officer could have forced him to desist from his illegal purpose. .
The first proposition shows that on the question of superior orders German law is roughly in line with international law as conceived in other countries, and thus serves to refute the argument put forward by several counsel in the Stalag Luft III case that by applying paragraph 443 of the British Manual of Military Law, British Military Courts apply ex post facto legislation, if there were indeed any force in this argument at all, in view of the fact that the Manual of Military Law is not a legislative instrument, but a War Office publication intended to acquaint army officers with those branches of the law with which they may have to deal in the execution of their duty.
The second proposition seems to be a valuable one. The judgment leaves the question open whether in a case where the military superior forces the military subordinate at pistol point to obey his illegal orders, the combined defences of superior orders and duress would avail the accused. But the court made it clear that these two defences will not avail the accused if no such threat has actually been uttered and where the accused by refusing the illegal order could have frustrated the intention of his superior officer to keep the crime that has been or is about to be committed secret. This secrecy and the absence of actual threats from [sic/form] essential elements of most cases of clandestine.
killings of prisoners of war or enemy civilians on orders of a higher authority which so frequently are the subject of trials before military courts. (Footnote 1: See Almelo Trial, Volume I, p. 35 ; Jaluit Atoll Case, Volume I, p. 21, Dreierwalde Case, Volume I, p. 81.) It would appear from the judgment in this case that also acording to German law-not only according to English law-the defence of duress does not avail the accused in such cases.
The defence argued that according to the law prevailing at the time of the offence in Germany, any order emanating from the Head of the State was a legal order. Disobeying this Hitler order would have been a criminal offence according to German law. On the other hand, obeying the order was an offence according to international law. International law must not place the subject in an insoluable dilemma where he has only two possible courses of action, both of which are criminal, thus leaving him no " way out ". In order to be able to say that a person has committed an offence, there must be an alternative course open to him which does not constitute an offence. Some writers, according to counsel, take the view that in any conflict between municipal law and international law, municipal law is supreme and commands the undivided loyalty of all citizens, but - whatever view is taken of this question - in the sphere of criminal law, the individual must be protected and a man who has no " way out " cannot be punished.
The Judge Advocate did not deal with this argument and the court by finding all accused guilty, obviously held it invalid. It would seem that whatever view is taken once the conflict between municipal and international law arises, the main weakness of the argument lies in the fact that one of its premises, i.e. that the action of the accused were legal under German law, is very doubtful. Though some of the philosophers and propagandists of Hitler Germany insisted that the Führers word was law, there does not seem to be any statute or decree-and there was no evidence produced in this trial-to the effect that a spoken command of the Head of the State had legal force or, as some counsel suggested, could replace the finding and sentence of a court of law. Assuming the legality under municipal law was established, the trend of legal opinion is that international law must prevail over municipal law and courts in recent years have treated this defence in a way similar to that of superior orders. (Footnote 2 : See Volume V, pp. 22-4. Cf. for instance Article 6 of the Charter of the International Military Tribunal : " The following acts or any of them are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility . . . (c) crimes against humanity . . . whether or not in violation of the domestic law of the country where perpetrated." As to an attempt to reconcile the dilemma in which the subordinate is placed, see Gluck, War Crimes, Their Prosecution and Punishment, pp. 155-l 56, and Volume III of this series, p. 64)
This defence was raised in two different ways : (1) amounting to a mistake of Iaw, i.e. the defendants were not aware of the illegality of their action. In a case like this the maxim ignorantia iuris non excusat certainly applies.
Professor Lauterpacht in the British Year Book of International
Law, 1944, page 76, says : " No person can be allowed to plead that he
was unaware of the prohibition of killing prisoners of war who had
surrendered at discretion ; " (2) amounting to mistake of fact,
i.e. the accused did not realise that the prisoners were prisoners of
war, they thought that they were spies and saboteurs. The Prosecutor
in his closing address said that if the court found that the accused
acted in such a belief they should acquit them. The Prosecutor in
this trial obviously felt confident that he had proved beyond
reasonable doubt that the defendants knew these prisoners to be
prisoners of war and therefore apparently to facilitate the argument,
reduced it to an issue of fact : "Did the defendants know or did they not know that the
prisoners they killed were prisoners of war ? " The implication,
however, that the accused would have been entitled to an acquittal if
they had reasonable grounds to believe that the persons they killed
were spies or saboteurs, is not correct. Even a spy is entitled to a
trial. In case these prisoners had been spies, the relevant question
would have been whether they had been given a regular trial. It was
said by the Judge Advocate in the Almelo Trial that the decisive
question was " whether the accused honestly believed that the men
they shot had been tried according to law and that they therefore
believed that in shooting them they carried out a lawful execution
".(Footnote 1: See Volume I of this series, p.
The Judge Advocate, in summing up, pointed out that in this case it must have been obvious from the circumstances to the meanest intelligence that this was not a lawful execution.
Counsel for the defence argued that war crimes could only be committed by combatants or, in exceptional cases, by non-combatants when they exercise governmental functions in occupied territories. Against this argument the Prosecutor quoted paragraph 441 of Chapter 14 of the Manual of Military Law : " The term war crime is a technical expression for such an act of enemy soldiers and enemy civilians as may be visited by punishment or capture of the offenders."
The decision of the court supports the rule that anybody who commits a war crime can be punished by a military court, regardless of his status (Footnote 2 : For other examples see Zyklon B. Case, Volume I, p. 103 ; Essen Lynching Case, Volume I, pp. 82-92, and Hadamar Trial, Volume I, pp. 46-52)
Both the Prosecutor and the Judge Advocate pointed out that the prosecutions case was to a large extent based on the uncorroborated evidence of an accomplice or of accomplices and that one accused cannot corroborate another. Both warned the court of the danger of acting on the uncorroborated testimony of an accomplice, but added that the court could convict on such evidence if they were clearly satisfied that the evidence given was true. By so doing, the Judge Advocate applied mutatis mutandis, and on the plane of international law a rule of practice followed in English criminal courts, that it is the duty of the Judge to caution the jury as to the danger of conviction
on the evidence of an accomplice without some corroboration in a
material particular which connects the prisoner with the witnesss
story. (Footnote 1: R. v. Baskerville (1916),
Counsel for the accused Zacharias objected to a deposition made by his client being admitted as evidence on the grounds that it was obtained by duress. The accused Zacharias alleged that he was put in fear of severe physical .injury as well as struck by an interrogating officer.
The Judge Advocate quoted Regulation 8 (i) of the Royal Warrant (A.0./81,ix1945) : " . . . A military court convened under these regulations may take into consideration any oral statement or any document appearing on the face of it to be authentic, provided the statement or document appears to the court to be of assistance in proving or disproving the charge, and notwithstanding such statement or document would not be admissible as evidence in proceedings before a Field General Court Martial."
He went on to say : " In view of this, I am prepared to advise the court that if they are satisfied by the evidence of Lieutenant-Colonel Scotland that a confession was in fact made and you think to examine it will assist in proving or disproving the charge, against Zacharias, then you may admit it ". "At a later stage in my view, it would be proper if Zacharias wishes to do so, to give his version of how this confession was obtained, and when you have heard him, that may detract or add to the weight of the statement."
The decision of the court to admit Zacharias statement is in line with other decisions by military courts. (Footnote 2: See Volume III, p. 71 and Volume II, pp. 135) In practice in trials under the Royal Warrant the defence cannot object to the court receiving in evidence a confession by an accused on the grounds that it was not made voluntarily. The defence is, however, entitled to call evidence to prove the involuntary nature of the confession and it is thus left to the court to decide what weight they eventually place on such a confession.