Source: Law Reports of Trials of War Criminals. Selected and Prepared by the United Nations War Crimes Commission. Volume IV. London: HMSO, 1948






Part VI

Part I  Part II  Part III  Part IV  Part V  Part VI



The dissenting judgments of Mr. Justice Rutledge and Mr. Justice Murphy claimed that the trial of Yamashita had been conducted with undue haste and quoted as proof, inter alia, the attitude taken by the Commission to


the Defence’s repeated requests for a continuance. (Footnote 1: See pp.10, 15, 50, 54 and 62) The Commission made no secret of its desire to conduct the trial as expeditiously as possible, and the following statement made by the President of the Commission on 12th November, 1945, is worth quoting as an indication of this wish :

“ The Commission will grant a continuance only for the most urgent and unavoidable reasons. The trial has now consumed two weeks of time. The Prosecution indicates that this week will be required to finish its presentation. Early in the trial the Commission invited Senior Defence Counsel to apply for additional assistants in such numbers as necessary to avoid the necessity for a continuance. The offer has been extended from time to time throughout the trial. The Commission is still willing to ask that additional counsel be provided for we do not wish to entertain a request for a continuance. The Commission questions either the necessity or desirability for all members of counsel being present during all of the presentation of the case for the Prosecution. We feel that one or two members of the Defence staff in the courtroom is adequate and that the remaining member or members should be out of the courtroom performing specific missions for Senior Counsel. It directs both Prosecution and Defence to so organise and direct the preparation and presentation of their cases, including the use of assistants, to the end that need to request a continuance may not arise.

“ As a further means of saving time both Prosecution and Defence are directed to institute procedures by which the Commission is provided essential facts without a mass of non-essentials and immaterial details. We want to know (1) what was done, (2) where it was done, (3) when it was done, (4) who was involved. Go swiftly and directly to the target so the Commission can obtain a clear-cut and accurate understanding of essential facts. Cross-examination must be limited to essentials and avoid useless repetition of questions and answers already before the Commission. We are not interested in trivialities or minutia: of events or opinions. Except in unusual or extremely important matters the Commission will itself determine the credibility of witnesses. Extended cross-examinations which savour of fishing expeditions to determine possible attacks upon the credibility of witnesses serve no useful purpose and will be avoided.”

The Pacific Regulations of 24th September, 1945, which governed the proceedings of the Commission, provide, in Regulation 13 (a) and (b) that :

“ 13. CONDUCT OF THE TRIAL. A Commission shall:

(a) Confine each trial strictly to a fair, expeditious hearing on the issues raised by the charges, excluding irrelevant issues or evidence and preventing any unnecessary delay or interference.
(b) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor." (Footnote 2: Substantially the same provisions are made by the United States Pacific December Regulations and China Theatre Regulations and by Ordinance No. 7 of the Military Government of the United States Zone of Germany. (Regarding the United States war crimes law and practice in general, see Volume III of this series, pp. 103-20).) Substantially the same provisions are made by the United States Pacific December Regulations and China Theatre Regulations and by Ordinance No. 7 of the Military Government of the United States Zone of Germany. (Regarding the United States war crimes law and practice in general, see Volume III of this series, pp. 103-20).


Like the introduction of more elastic rules of evidence into the proceedings of the Commission, this desire for expedition is again not without parallel in other systems of war crime courts ; indeed it may be regarded as a characteristic of trials by military tribunals. Article 18 of the Charter of the Nuremberg International Military Tribunal makes the following provisions, which are substantially the same as those of Article 12 (a)-(c) of the Charter of the International Military Tribunal for the Far East :

“ Art. 18. The Tribunal shall
(a) confine the Trial strictly to an expeditious hearing of the issues raised by the charges,
(6) take strict measures to prevent any action which will cause unreasonable delay, and rule out irrelevant issues and statements of any kind whatsoever,
(c) deal summarily with any contumacy, imposing appropriate punishment, including exclusion of any Defendant or his Counsel from some or all further proceedings, but without prejudice to the determination of the charges.”

No analogous provisions are made in the Regulations governing war crime trials held before British Military Courts, but the following statement made by the Judge Advocate just before the opening of the case for the Prosecution in the Trial of Heinrich Klein and 15 others by a British Military Court at Wuppertal, 22nd-25th May, 1946, shows the existence of the same underlying desire to continue justice with expedition :

“ Experience of these courts has shown that trials are taking too long. It is not suggested that there has been any obstruction ; on the contrary, the court has much appreciated the assistance and co-operation which it has received from counsel for the defence. It happens, however, inevitably that a large number of accused usually means that there is a considerable amount of repetition. It is therefore necessary for the main defence to be conducted by one counsel on behalf of all. Other counsel will, of course, be permitted to add where they so wish, but it must be clearly understood that the main burden must fall on one counsel, whoever counsel for the defence like to select among themselves. Any further questions or speeches after the leading counsel must be limited to the sole question of the participation of their particular client or degree of responsibility.

“ No attempt made, of course, to prevent anything being said which is in the interests of justice, but we wish to proceed with the greatest possible speed, because there are large numbers of other persons awaiting trial, and it is unfair that they should be kept in custody without trial longer than can be helped.

“ The court feel, therefore, that they can rely upon the help of counsel for the defence in disposing of these cases as quickly as possible.”


(i) The Issue in the Yamashita Trial

Immediately after the hearing of the evidence for the Prosecution, the Defence put forward a plea of no case to answer and asked the Commission


to find the accused not guilty. During the ensuing argument, the Prosecutor stated : “ The record itself strongly supports the contention or conclusion that Yamashita not only permitted but ordered the commission of these atrocities. However, our case does not depend upon any direct orders from the accused. It is sufficient that we show that the accused “ permitted ” these atrocities . . . With respect to the accused having permitted atrocities, there is no question that the atrocities were committed in the Philippines on a widespread scale ; notorious, tremendous atrocities ; thousands of people massacred ; men, women and children ; babes in arms ; defenceless, unquestionably non-combatants. Who permitted them ? Obviously the man whose duty it was to prevent such an orgy of planned and obviously deliberate murder, rape and arson-the commander of those troops ! ”

The main allegation of the Prosecution therefore was that Yamashita was guilty of a breach of the Laws of War in that he permitted the perpetration of certain offences. As has been seen, the Defence denied that this charge constituted an accusation of a breach of the Laws of War, (Footnote 1: See pp. 7 and 11) and the discussion in the Supreme Court, in so far as it turned on matters of substantive law, constituted on examination of that denial. (Footnote 2: See pp.42-4, 51-4, 57 and 548-61)

(ii) Liability of Oficers for Offences Shown to have been Ordered by Them

There have been many trials in which an officer who has been shown to have ordered the commission of an offence has been held guilty of its perpetration.

One example among many is the trial of General Anton Dostler, by a United States Military Commission, Rome, 8th-12th October, 1945, in which the accused was found guilty of having ordered the illegal shooting of fifteen prisoners of war. (Footnote 3: See Volume I of this series, pp. 22-34)

While the principle of the responsibility of such officers is not in doubt, it is nevertheless interesting to note that it has even been specifically laid down in certain texts which have been used as authorities in war crime trials. For instance, paragraph 345 of the United States Basic Field Manual, F.M. 27-10, in dealing with the admissibility of the defence of Superior Orders, ends with the words : “ . . . The person giving such orders may also be punished.”

(iii) Liability of a Commander for Offences Not Shown to have been Ordered by Him

The more interesting question, however, is the extent to which a commander of troops can be held liable for offences committed by troops under his command which he has not been shown to have ordered, on the grounds that he ought to have used his authority to prevent their being committed or their continued perpetration, or that he must, taking into account all the circumstances, be presumed to have either ordered or condoned the offences. The extent to which such liability can be admitted is not easy to lay down, either legally or morally.


(iv) A Classification of the Relevant Trials and Legal Provisions

The law on this matter is still developing and it would be wrong to expect to find hard and fast rules in universal application. In the circumstances it is inevitable that considerable discretion is left in the hands of the Courts to decide how far it is reasonable to hold a commander responsible for such offence of his troops as he has not been explicitly proved to have ordered. The relevant trials and municipal law enactments may be classified under the following two categories :

(i) material illustrating how, on proof of certain circumstances, the burden of proof is shifted, so as to place on an accused the task of showing to the satisfaction of the Court that he was not responsible for the offences committed by his troops,
(ii) material actually defining the extent to which a commander may be held responsible for his troops’ offences.

The first type of material relates to a matter of evidence, the second type to a matter of substantive law.

(v) Trials and Provisions Relevant to the Question of the Burden of Proof

Of interest in connection with the shifting of the burden of proof are Regulations 10 (3) (4) and (5) of the War Crimes Regulations (Canada), (Footnote 1: See pp.128-9) and Regulation 8 (ii) of the British Royal Warrant which makes a provision similar to Article 10 (3) of the Canadian provisions :

“ Where there is evidence that a war crime has been the result of concerted action upon the part of a unit or group of men, then evidence given upon any charge relating to that crime against any member of such unit or group may be received as prima facie evidence of the responsibility of each member of that unit or group for that crime.”

The three reports which follow the present report in this Volume are also of interest. During the Trial of Kurt Meyer the Court heard not only a discussion of the effect of Regulation 10 (3) (4) and (5),(Footnote 2: See pp. 107-8 and 110-11) but also some remarks on the part of the Judge Advocate on the proving by circumstantial evidence of the giving of a direct order.(Footnote 3: See p.108) The arguments quoted on pp. 123-4, from the Trial of Kurt Student are of the same kind. Of particular interest is the stress placed on the repeated occurrence of offences by troops under one command as prima facie evidence of the responsibility of the commander for those offences. (Footnote 4: See p.123, and compare Regulation 10 (4) of the Canadian Regulations, cited on p.128. For an example of the same line of thought in the Yamashita Trial, see pp.17 and 34) The Trial of Karl Rauer and Six Others (Footnote 5: See pp.113-17) seems to suggest that responsibility may be inferred from surrounding circumstances, including the prevailing state of discipline in an army. It is also worthy of note that the participation in offences of officers standing in the chain of command between an accused commander and the main body


of his troops may be regarded as some evidence of the responsibility of the commander for the offences of those troops. (Compare the words of the Commission which tried Yamashita, set out on pages 34 and 35). Regulation 10 (5) of the Canadian Regulations makes it possible for a Court to regard even the presence of an officer at the scene of the war crime, either at or immediately before its commission, as prima facie evidence of the responsibility not merely of the officer but also of the commander of the formation, unit, body or group whose members committed the crime. (Footnote 1: See p.129)

Regulation 8 (ii) of the British Royal Warrant, like Regulation 10 (3) of the Canadian Regulations, may be applied so as to enable suitable evidence to be introduced as prima facie evidence of a commander’s responsibility in the same way as it may be as evidence of the responsibility of any other member of a unit or group. For a discussion during the Belsen Trial of the application of Regulation 8 (ii) and of the possible operation against Kramer, Kommandant of Belsen Concentration Camp, reference should be made to pages 140-141 of Volume II of this series.

(vi) Trials and Provisions Relevant to the Question of Substantive Law

It is clearly established that a responsibility may arise in the absence of any direct proof of the giving of an order for the commission of crimes. Three trials by United States Military Commissions in the Far East illustrate the principle that a duty rests on a commander to prevent his troops from committing crimes, the omission to fulfil which would give rise to liability. Shiyoku Kou was sentenced to death by a Military Commission in Manila, on 18th April, 1946, after being found guilty of “ unlawfully and wilfully ” disregarding, neglecting and failing to discharge his duties as Major-General and Lieutenant-General by “ permitting and sanctioning ” the commission of murder and other offences against prisoners of war and civilian internees.

The second relevant United States Trial is that of Yuicki Sakamoto, held at Yokohama, Japan, on 13th February, 1946. The accused was sentenced to life imprisonment after being found guilty on a charge alleging that he “ between 1st January, 1943, and 1st September, 1945, at a prisoner-of- war camp Fukuoka 1, Fukuoka, Kyushu, Japan, did commit cruel and brutal atrocities and failed to discharge his duty as Commanding Officer in that he permitted members of his command to commit cruel and brutal atrocities.”

A charge entitled Neglect of Duty in Violation of the Laws and Customs of War was brought against Lt.-General Yoshio Tachibana and Major Sueo Matoba of the Imperial Japanese Army and against Vice-Admiral Kunizo Mori, Captain Shizuo Yoshii and Lt. Jisuro Sujeyoshi of the Imperial Japanese Navy, in their trial by a United States Military Commission at Guam, Marianas Islands, in August, 1946. The Specifications appearing under this charge alleged that various of the above accused unlawfully disregarded, neglected and failed to discharge their duty, as Commanding General and other respective ranks, to control members of their commands and others under their control, or properly to protect prisoners of war, in that they permitted the unlawful killing of prisoners of war, or permitted persons under their control unlawfully to prevent the honourable burial of prisoners of war by mutilating their bodies or causing them to be mutilated or by eating flesh from their bodies. The Prosecution


claimed that there had been an intentional omission to discharge a legal duty. All of the accused mentioned above were found guilty of the charge alleging neglect of duty, and although a sentence of life imprisonment was the highest penalty imposed by the Commission on an accused sentenced on this charge alone, the trial does serve as further proof that neglect on the part of a higher officer of a duty to restrain troops and other persons under his control can render the officer himself guilty of a war crime when his omission has lead to the commission of such a crime.

Appearing before Australian Military Courts sitting at Rabaul, General Hitoshi Imamura and Lt.-General Masao Baba were found guilty of committing war crimes in that each “ unlawfully disregarded and failed to discharge his duty as a Commander to control the members of his command, whereby they committed brutal atrocities and other high crimes against the people of the Commonwealth of Australia and its Allies.” The former accused was sentenced to imprisonment for ten years by a Military Court sitting from 1st to 16th May, 1947 ; the latter to death by a similar Court sitting from 28th May to 2nd June, 1947. Terms of imprisonment have also been awarded in various other trials before Australian Military Courts in which alleged war criminals were found guilty of offences of the same category.

The principles governing this type of liability, however, are not yet settled. The question seems to have three aspects :

(i) How far can a commander be held liable for not taking steps befbre the committing of offences, to prevent their possible perpetration ?
(ii) How far must he be shown to have known of the committing of offences in order to be made liable for not intervening to stop offences already being perpetrated ?
(iii) How far has he a duty to discover whether offences are being coinmitted ?

Certain relevant provisions of municipal law exist. Thus, Article 4 of the French Ordinance of 28th August, 1944, Concerning the Suppression of War Crimes, (Footnote 1) provides that :

“ Where a subordinate is prosecuted as the actual perpetrator of a war crime, and his superiors cannot be indicted as being equally responsible, they shall be considered as accomplices in so far as they have organised or tolerated the criminal acts of their subordinates.”

In a similar manner, Article 3 of Law of 2nd August, 1947, of the Grand Duchy of Luxemberg, on the Suppression of War Crimes, reads as follows :

“ Without prejudice to the provisions of Articles 66 and 67 of the Code Pénal, the following may be charged, according to the circumstances, as co-authors or as accomplices in the crimes and delicts set out in Article 1 of the present Law : superiors in rank who have tolerated the criminal activities of their subordinates, and those who, without being the superiors in rank of the principal authors, have aided these crimes or delicts.”

(1) Regarding the French Law concerning trials of war criminals by Military Tribunals and Military Governmeht Courts in the French Zone of Germany, see Volume III of this series, pp. 93-102.


Article IX of the Chinese Law of 24th October, 1946, Governing the Trial of War Criminals, states that :

“ Persons who occupy a supervisory or commanding position in relation to war criminals and in their capacity as such have not fulfilled their duty to prevent crimes from being committed by their subordinates shall be treated as the accomplices of such war criminals.”

A special provision was also made in the Netherlands relating to the responsibility of a superior for war crimes committed by his subordinates. The Law of July 1947, adds, inter alia, the following provision to the Extraordinary Penal Law Decree of 22nd December, 1943 :

Article 27 (a) (3) : Any superior who deliberately permits a subordinate to be guilty of such a crime shall be punished with a similar punishment as laid down in paragraphs 1 and 2.”

It will be seen that the French enactment mentions only crimes “ organised or tolerated,” the Luxembourg provision only those “ tolerated ” and the Netherlands enactment only those “ deliberately permitted.” A reference to an element of knowledge enters into the drafting of each of these three texts.

The Chinese enactment does not define the extent of the duty of commanders “ to prevent crimes from being committed by their subordinates,” but the extent to which the Chinese Courts have been willing to go in pinning responsibility of this kind on to commanders was shown by the Trial of Takashi Sakai by the Chinese War Crimes Military Tribunal of the Ministry of National Defence, Nanking, 27th August, 1946. The accused was sentenced to death after having been found guilty, inter alia, of “ inciting or permitting his subordinates to murder prisoners of war, wounded soldiers and non-combatants ; to rape, plunder, deport civilians ; to indulge in cruel punishment and torture ; and to cause destruction of property.” The Tribunal expressed the opinion that it was an accepted principle that a field Commander must hold himself responsible for the discipline of his subordinates. It was inconceivable that he should not have been aware of the acts of atrocity committed by his subordinates during the two years when he directed military operations in Kwantung and Hong Kong. This fact had been borne out by the English statement made by a Japanese officer to the effect that the order that all prisoners of war should be killed, was strictly enforced. Even the defendant, during the trial, had admitted a knowledge of murder of prisoners of war in the Stevensons Hospital, Hong Kong. All the evidence, said the Tribunal, went to show that the defendant knew of the atrocities committed by his subordinates and deliberately let loose savagery upon civilians and prisoners of war.

It will be noted that the Tribunal pointed out that the accused must have known of the acts of atrocities committed by his subordinates ; the question is therefore left open whether he would have been held guilty of breach of duty in relation to acts of which he had no knowledge.

A British Military Court at Wuppertal, 10th and 11th July, 1946, sentenced General Victor Seeger to imprisonment for three years on a charge of being concerned in the killing of a number of Allied prisoners of war ; the Judge Advocate said of this accused : “ The point you will


have to carefully consider - he is not part of any organisation at all - is : was he concerned in the killing, in the sense that he had a duty and had the power to prevent these people being dealt with in a way which he must inevitably have known would result in their death . . . it is for you with your members, using your military knowledge going into the whole of this evidence to say whether it is right to hold that General Seeger, in this period between, let us say the middle of August or towards the end of August, was holding a military position which required him to do things which he failed to do and which amounted to a war crime in the sense that they were in breach of the Laws and Usages of War.” The Judge Advocate thus made it clear that a commander could be held to have occupied a military position which required him to take certain measures, the failure to take which would amount to a war crime. Yet it seems implicit in the Judge Advocate’s words that some kind of knowledge on the accused’s part was necessary to make him guilty.

The three trials reported later in this Volume also provide, inter alia, some evidence that an accused must have had knowledge of the offences of his troops.

Thus, in the Trial of Student, Counsel and the Judge Advocate spoke in terms of “ General Student’s general policy,” of no bomb being dropped “ without Student knowing why ” and of the troops believing either that the offences had been ordered by the commander or that their offences would be “ condoned and appreciated." (Footnote 1: See pp. 123-4) It is to be noted that the possibility of Student being made liable in the absence of knowledge, on the grounds that he ought to have found out whether offences were being committed or were likely to be committed, or that he ought to have effectively prevented their occurrence, is not mentioned.

In the Trial of Kurt Meyer, the Judge Advocate stated that anything relating to the question whether the accused either ordered, encouraged or verbally or tacitly acquiesced in the killing of prisoners, or wilfully failed in his duty as a military commander to prevent, or to take such action as the circumstances required to endeavour to prevent, the killing of prisoners, were matters affecting the question of the accused’s responsibility.(Footnote 2: See p.108)

Here it will be noted that the possibility of a commander being held responsible for offences on the grounds that he ought to have provided against them before their commission is not ruled out.

The Judge Advocate in the Trial of Rauer and Others, however, stated that the words, contained in the charge against Rauer, “ concerned in the killing ” were a direct allegation that he either instigated murder or condoned it. The charge did not envisage negligence. (Footnote 3: See p. 116)

The Trial of Field Marshal Erhard Milch by a United States Military Tribunal at Nuremberg, (Footnote 4: To be reported in greater detail in a subsequent volume of these reports.) from 2nd January, 1947, to 17th April, 1947, is also of interest in this connection.

The Judgment of the Court on count two, which alleged that the defendant was a principal in, accessory to, ordered, abetted, took a consenting part in and was connected with, plans and enterprises involving


medical experiments without the subjects’ consent, in the course of which experiments, the defendant, with others, perpetrated murders, brutalities, cruelties, tortures and other inhuman acts, includes the following passage :

“ In approaching a judicial solution of the questions involved in this phase of the case, it may be well to set down seriatim the controlling legal questions to be answered by an analysis of the proof:

(1) Were low-pressure and freezing experiments carried on at Dachau?
(2) Were they of a character to inflict torture and death on the subjects ?
(The answer to these two questions may be said to involve the establishment of the corpus delicti.)
(3) Did the defendant personally participate in them ?
(4) Were they conducted under his direction or command ?
(5) Were they conducted with prior knowledge on his part that they might be excessive or inhuman ?
(6) Did he have the power or opportunity to prevent or stop them ?
(7) If so, did he fail to act, thereby becoming particeps criminis and accessory to them ? ”

The Court later expressed the following conclusions, having declared the corpus delicti to be proved :

“ (3) The Prosecution does not claim (and there is no evidence) that the defendant personally participated in the conduct of these experiments.

“ (4) There is no evidence that the defendant instituted the experiments or that they were conducted or continued under his specific direction or command. . . .

“ (5) Assuming that the defendant was aware that experiments of some character were to be launched, it cannot be said that the evidence shows any knowledge on his part that unwilling subjects would be forced to submit them or that the experiments would be painful and dangerous to human life. It is quite apparent from an over-all survey of the proof that the defendant concerned himself very little with the details of these experiments. It was quite natural that this should be so. His most pressing problem involved the procurement of labour and materials,for the manufacture of airplanes. . .

“ (6) Did the defendant have the power or opportunity to prevent or stop the experiments ? It cannot be gainsaid that he had the authority to either prevent or stop them in so far as they were being conducted under the auspices of the Luftwaffe. It seems extremely probable, however, that, in spite of him, they would have continued under Himmler and the S.S. But certainly he had no opportunity to prevent or stop them, unless it can be found that he had guilty knowledge of them, a fact which has already been determined in the negative. . . .

“ (7) In view of the above findings, it is obvious that the defendant never became particeps criminis and accessory in the low-pressure experiments set forth in the second count of the indictment.


“ As to the other experiments, involving subjecting human being to extreme low temperatures both in the open air and in water, the responsibility of the defendant is even less apparent than in the case of the low-pressure experiments. . . .”

It will be seen that the accused was held not guilty of being implicated in the conducting of the illegal experiments referred to because the Tribunal was not satisfied that he knew of their illegal nature ; no duty to find whether they had such a nature is mentioned.

Some support is given, however, to the view that a commander has a duty, not only to prevent crimes of which he has knowledge or which seem to him likely to occur, but also to take reasonable steps to discover the standard of conduct of his troops, and it may be that this view will gain ground.

The Supreme Court of the United States held that General Yamashita had a duty to “ take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population,” that is to say to prevent offences against them from being committed. The use of the terms “ appropriate in the circumstances ” serves to underline the remark made previously, namely, that a great discretion is left to the Court to decide exactly where the responsibility of the commander shall cease, since no international agreement or usage lays down what these measures are. The Commission which tried Yamashita seemed to assume that he had had a duty to “ discover and control ” the acts of his. subordinates, (see p. 35), and the majority judgment of the Supreme Court would appear to have left open the possibility that, in certain circumstances, such a duty could exist. In dissenting, Mr. Justice Murphy expressed the opinion that : “ Had there been some element of knowledge or direct connection with the atrocities the problem would be entirely different.”

Some passages from the judgment of the United States Military Tribunal which tried Karl Brandt and Others at Nuremberg, from 9th December, 1946, to 20th August, 1947, are relevant here. (Footnote 1: "The Doctors Trial," to be reported in a later volume of this report.) The evidence before the Tribunal had shown that, by a decree dated 28th July, 1942, and signed by Hitler, Keitel and LammersBrandt was appointed Hitler’s Plenipotentiary for Health and Medical Services, with high authority over the medical services, military and civilian, in Germany. The judgment states :

“ Certain Sulfanilamide experiments were conducted at Ravensbruck for a period of about a year prior to August 1943. These experiments were carried on by the defendants Gebhardt, Fischer, and Oberhauser-Gebhardt being in charge of the project. At the third meeting of the consulting physicians of the Wehrmacht held at the Military Medical Academy in Berlin from 24th to 26th May, 1943, Gebhardt and Fischer made a complete report concerning these experiments. Karl Brandt was present and heard the reports. Gebhardt testified that he made a full statement concerning what he had done, stating that experiments had been carried out on human beings. The evidence is convincing that statements were also made that the persons experimented upon were concentration camp inmates. It was stated that 75 persons had


been experimented upon, that the subjects had been deliberately infected, and that different drugs had been used in treating the infections to determine their respective efficacy. It was also stated that three of the subjects died. It nowhere appears that Karl Brandt made any objection to such experiments or that he made any investigation whatever concerning the experiments reported upon, or to gain any information as to whether other human subjects would be subjected to experiments in the future. Had he made the slightest investigation, he could have ascertained that such experiments were being conducted on non-German nationals, without their consent, and in flagrant disregard of their personal rights ; and that such experiments were planned for the future.

“ In the medical field Karl Brandt held a position of the highest rank directly under Hitler. He was in a position to intervene with authority on all medical matters ; indeed, it appears that such was his positive duty. It does not appear that at any time he took any steps to check medical experiments upon human subjects. During the war he visited several concentration camps. Occupying the position he did and being a physician of ability and experience, the duty rested upon him to make some adequate investigation concerning the medical experiments which he knew had been, were being, and doubtless would continue to be, conducted in the concentration camps." (Footnote 1: Italics inserted.)

Similarly, of the accused Handloser, who had been Chief of the Wehrmacht Medical Services and Army Medical Inspector, it is said :

“ The entries in the Ding Diary clearly indicate an effective liaison between the Army Medical Inspectorate and the experiments which Ding was conducting at Buchenwald. There is also credible evidence that the Inspectorate was informed of medical research carried on by the Luftwaffe. These experiments at Buchenwald continued after Handloser had gained actual knowledge of the fact that concentration camp inmates had been killed at Dachau as the result of freezing ; and that inmates at Ravensbruck had died as victims of the sulfanilamide experiments conducted by Gebhardt and Fischer. Yet with this knowledge Handloser in his superior medical position made no efort to investigate the situation of the human subjects or to exercise any proper degree of control over those conducting experiments within his field of authority and competence.

Had the slightest inquiry been made the facts would have revealed that in vaccine experiments already conducted at Buchenwald, deaths had occurred - both as a result of artificial infections by the lice which had been imported from the Typhus and Virus Institutes of the OKH at Cracow or Lemberg, or from infections by a virulent virus given to subjects after they had first been vaccinated with either the Weigl, Cox-Haagen-Gildemeister, or other vaccines, whose efficacy was being tested. Had this step been taken, and had Handloser exercised his authority, later deaths would have been prevented in these particular experiments which were originally set in motion through the offices of the Medical Inspectorate and which were being conducted for the benefit of the German armed forces.


“ These deaths not only occurred with German nationals, but also among non-German nationals who had not consented to becoming experimental subjects." (Footnote 1: Italics inserted.)

In like manner it is said that the accused Genzken, who was Gruppenfuehrer and Generalleutnant in the Waffen S.S., “ knew the nature and scope of the activities of his subordinates, Mrugowsky and Ding, in the field of typhus research ; yet he did nothing to ensure that such research would be conducted within permissible legal limits. He knew that concentration camp inmates were being subjected to cruel medical experiments in the course of which deaths were occurring ; yet he took no steps to ascertain the status of the subjects or the circumstances under which they were being sent to the experimental block. Had he made the slightest inquiry he would have discovered that many of the human subjects used were non-German nationals who had not given their consent to the experiments.

“ As the Tribunal has already pointed out in this Judgment, ‘ the duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs, or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.’ ”

For these and other reasons, each of the three accused named above was found guilty of war crimes and crimes against humanity. Brandt was sentenced to death and the other two to imprisonment for life.

More generally, in connection with the guilt of Handloser and the accused Schroeder (who was also found guilty of war crimes and crimes against humanity and sentenced to life imprisonment) it was recalled that, for the reasons given by the Supreme Court in the Yamashita proceedings, “ the Law of War imposes on a military officer in a position of command an affirmative duty to take such steps as are within his power and appropriate to the circumstances to control those under his command for the prevention of acts which are violations of the Law of War.”

Basing their argument on the words of the Tribunal in the Trial of Karl Brandt and Others, which are quoted above in relation to the guilt of Brandt, Handloser and Genzken, the Prosecution in its opening statement in the Trial of Carl Krauch and Others before a United States Military Tribunal in Nuremberg (The I.G. Farben Trial) (Footnote 2) made the following claim :

“ Moreover, even where a defendant may claim lack of actual knowledge of certain details, there can be no doubt that he could have found out had he, in the words of Military Tribunal No. 1, made ‘ the slightest investigation.’ Each of the defendants, with the possible exception of the four who were not Vorstand members, was in such a position that he either knew what Farben was doing in Leuna, Bitterfeld, Berlin, Auschwitz, and elsewhere, or, if he had no actual knowledge of some particular activity, again in the words of Military Tribunal

(2) This trial began on 27th August, 1947, and will be reported in a later volume of these reports.


No. 1, ‘ occupying the position that he did, the duty rested upon him to make some adequate investigation. ‘(Footnote 1: Italics inserted.) One cannot accept the prerogatives of authority without shouldering responsibility.”

It has also been said that an accused may not always rely on the fact that battle conditions prevented him from maintaining control over his troops ; their previous training should be such as to ensure discipline. In his editorial comment on the Yamashita proceedings,(Footnote 2: Loc.cit. p.404) Professor Quincy Wright has said :

“ The isssue is a close one, but it would appear that International Law holds commanders to a high degree of responsibility for the action of their forces. They are obliged to so discipline their forces that members of those forces will behave in accordance with the rules of war even when military circumstances in considerable measure eliminate the practical capacity of the commander to control them.”

Yamashita’s long years of experience may have constituted a damning factor. Had he been an inexperienced officer or immature in years, his liability may have been considered as being proportionately less.

However that may be, there can be no doubt that the widespread nature of the crimes committed by the troops under Yamashita’s command was a factor which weighed heavily against the accused. An occasional or solitary act of brutality, rape or murder might, through the exigencies of combat conditions, be easily overlooked by even the most zealous of disciplinarians, and his failure to note or punish that act would not necessarily be considered as showing a lack of diligence on his part. It proved impossible, however, to escape the conclusion that accused either knew or had the means of knowing of the widespread commission of atrocities by members and units of his command ; his failure to inform himself through the official means available to him of what was common knowledge throughout his command and throughout the civilian population, could only be considered as a criminal dereliction of duty on his part. The crimes which were shown to have been committed by Yamashita’s troops were so widespread, both in space and in time, that they could be regarded as providing either prima facie evidence that the accused knew of their perpetration, (Footnote 3: Cf. p. 85 concerning the burden of proof in such cases as this.) or evidence that he must have failed to fulfil a duty to discover the standard of conduct of his troops. (Cf. p. 91)

Short of maintaining that a Commander has a duty to discover the state of discipline prevailing among his troops, Courts dealing with cases such as those at present under discussion may in suitable instances have regarded means of knowledge as being the same as knowledge itself. This presumption has been defined as follows :

“ Means of knowledge and knowledge itself are, in legal effect, the same thing where there is enough to put a party on inquiry. Knowledge which one has or ought to have under the circumstances is imputed to him. . . . In other words, whatever fairly puts a person on inquiry is


sufficient notice where the means of knowledge are at hand ; and if he omits to inquire, he is then chargeable with all the facts which, by a proper inquiry, he might have ascertained. A person has no right to shut his eyes or his ears to avoid information, and then say that he had no notice ; he does wrong not to heed to ‘ signs and signals ’ seen by him.” (39 Am. Jur., pp. 236-237, Sec. 12.)

It is clear that the knowledge that he might be made liable for offences committed by his subordinates even if he did not order their perpetration would in most cases act as a spur to a commander who might otherwise permit the continuance of such crimes of which he was aware, or be insufficiently careful to prevent such crimes from being committed. It is evident, however, that the law on this point awaits further elucidation and consolidation.

(vii) The Problem of the Degree of Punishment to be Applied

Under International Law, any war crime is punishable with death, but a lesser penalty may also be imposed. Thus even where a superior has been held responsible for the crimes of his subordinates he has not always been condemned to death. The punishment meted out, like the question of guilt itself, will depend upon the circumstances of each case. The Convening Authority who reviewed the Trial of Kurt Meyer commuted the death sentence passed on him to one of life imprisonment, on the grounds that Meyer’s responsibility did not warrant the extreme penalty. (Footnote 1: See p. 109) The sentence of death passed on Karl Rauer was also commuted to one of life imprisonment, (Footnote 2: See p. 114) and the sentence passed on Kurt Student (which was not confirmed) was one of five years’ imprisonment. (Footnote 3: See p. 120) Again, the highest penalty imposed for breach of duty alone in the Trial of Lt.-General Yoshio Tachibana (Footnote 4: See pp. 86-7) was the sentence of life imprisonment passed on Vice-Admiral Mori.

In the Trial of Oberregierungsrat Ernst Weimann and Others, the Supreme Court of Norway decided that a police chief, who knew that the torture inflicted by his subordinates on Norwegian prisoners was causing deaths, should suffer not death but penal servitude for life on the grounds that he himself took no part in the ill-treatment of prisoners and that the district under his jurisdiction was too wide to allow him to follow each individual case personally. The defendant Weimann came to Norway in July 1944, as chief of the German Sipo in Bergen. He was also in charge of the Aussendienststellen of Hoyanger in Odda, Aardalstangen and Fiord. He was charged before the Gulating Lagmannsrett in September 1946, with having given permission for the employment of the method of “ verschärfte Vernehmung, ” an illegal form of torture, in the interrogation of 23 named Norwegian prisoners, one of whom was a woman. In two cases the torture was so severe that the prisoners died from the after-effects of the ill-treatment. The Court found that though he himself had not taken part in the ill-treatment of prisoners, he was a judge by profession and ought to


have realised more than anyone how wrong it was to tolerate torture when interrogating prisoners. The Court considered it a particularly aggravating circumstance that despite the fact that two prisoners had died as a result of  “ verschärfte Vernehmung,” the defendant neither changed his methods nor denied his subordinates the use of torture. The Lagmannsrett sentenced this accused to death.

The Supreme Court on appeal (August 1947) altered the sentence to one of penal servitude for life. Judge Berger, delivering the opinion of the majority of the judges, said that though it had been found by the Lagmannsrett that the appellant had been aware of what his subordinates were doing, he himself had never ill-treated any of the prisoners. The appellant was chief of a large district where he was unable to follow each individual case personally. He had been apparently intent on following his own country’s interests to the best of his understanding.

Part I  Part II  Part III  Part IV  Part V  Part VI

Document compiled by Dr S D Stein
Last update 10/10/01 07:24:05
©S D Stein

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