. NMT05-T1011
Volume V · Page 1011
| its period of training and
activation, moved into the area of Lublin in Poland. Tschentscher actively
engaged in the first Russian campaign, from about the first of July until 31
December 1941, when he was transferred to Obersalzberg. During this campaign, he was battalion commander of the supply column, as well as company commander, and directly subordinate to the defendant Fanslau. While his command was in the area of eastern Poland and in the Ukraine, thousands of Jewish civilians and other noncombatants were ruthlessly murdered and exterminated. There is evidence to the effect that members of Tschentscher's command engaged in this program, together with Einsatzkommandos. These murders and atrocities took place particularly in the vicinity of the Ukraine. There is hearsay evidence that Tschentscher personally participated in these crimes, but there is no direct evidence to this effect. There is some evidence that he had constructive knowledge of the participation of members of his command, but absolutely no evidence that he had actual knowledge of such facts. He emphatically denies participation in and all knowledge of these matters. 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. The Supreme Court of the United States pointed out in a decision entitled, "Application of Yamashita," 66 Supreme Court 340-347, the following: |
"It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates." |
| The reason for the rule is plain and
understandable, but what has been said in this decision does not apply to the
defendant Tschentscher. Conceding the evidence of the prosecution to be true as to the participation of subordinates under his command, such participation by them was not of sufficient magnitude or duration to constitute notice to the defendant, and thus give him an opportunity to control their actions. Therefore, the Tribunal finds and adjudges |
887136 — 50 — 65
