CASE No. 47
THE HOSTAGES TRIAL
TRIAL OF WILHELM LIST AND OTHERS
Law Reports of Trials of Major War Criminals Vol. VIII p.34
The accused were all former high-ranking German army officers and they were charged with responsibility for offences committed by troops under their command during the occupation of Greece, Yugoslavia, Albania and Norway, these offences being mainly so-called reprisal killings, purportedly taken in an attempt to maintain order in the occupied territories in the face of guerrilla opposition, or wanton destruction of property not justified by military necessity. The accused were charged with having thus committed war crimes and crimes against humanity.
One defendant committed suicide before the arraignment, and a second became too ill for trial against him to be continued. Of the remaining accused, two were found not guilty and eight guilty on various counts. Sentences imposed ranged from imprisonment for life to imprisonment for seven years. In its judgment the Tribunal dealt with a number of legal issues, including the legality of the killing of hostages and reprisal prisoners, the extent of responsibility of commanders for offences committed by their troops and the degree of effectiveness of the plea of superior orders.
The persons against whom the Indictment in this trial was drafted were the following: Wilhelm List, Maximilian von Weichs, Lothar Rendulic, Walter Kuntze, Hermann Foertsch, Franz Boehme, Helmuth Felmy, Hubert Lanz, Ernst Dehner, Ernst von Leyser, Wilhelm Speidel, and Kurt von Geitner.
The defendant Franz Boehme committed suicide prior to the arraignment ’ of the defendants, and the Tribunal ordered his name to be stricken from the list of defendants contained in the indictment. The defendant Maximillian von Weichs became ill during the course of the trial and, after it had been conclusively ascertained that he was physically unfit to appear in court before the conclusion of the trial, his motion that the proceedings be suspended as to him was sustained. The Tribunal ruled that “ This holding is without prejudice to a future trial of this defendant on the charges herein made against him if and when his physical condition permits.”
The defendants were accused of offences alleged to have been committed by them while acting in various military capacities. The Indictment drawn up against them was a relatively lengthy one, and may be summarised in the following words taken from the Judgment of the Tribunal :
“ In this case, the
“ Reduced to a minimum of words, these four counts charge :
“ 1. That defendants were principals or accessories to the murder of hundreds of thousands of persons from the civilian population of Greece, Yugoslavia and Albania by troops of the German Armed Forces ; that attacks by lawfully constituted enemy military forces and attacks by unknown persons, against German troops and installations, were followed by executions of large numbers of the civilian population by hanging or shooting without benefit of investigation or trial ; that thousands of non-combatants, arbitrarily designated as ‘ partisans,’ ‘ Communists,’ ‘ Communist suspects,’ ‘ bandit suspects ’ were terrorised, tortured and murdered in retaliation for such attacks by lawfully constituted enemy military forces and attacks by unknown persons ; and that defendants issued, distributed and executed orders for the execution of 100 ‘ hostages ’ in retaliation for each German soldier killed and fifty ‘ hostages.’ in retaliation for each German soldier wounded.
“ 2. That defendants were principals or accessories to the plundering and looting of public and private property, the wanton destruction of cities, towns and villages, frequently together with the murder of the inhabitants thereof, and the commission of other acts of devastation not warranted by military necessity, in the occupied territories of Greece: Yugoslavia, Albania and Norway, by troops of the German Armed Forces acting at the direction and order of these defendants ; that defendants ordered troops under their command to burn, level and destroy entire villages and towns and thereby making thousands of peaceful non-combatants homeless and destitute, thereby causing untold suffering, misery and death to large numbers of innocent civilians without any recognised military necessity for so doing.
“ 3. That defendants were principals or accessories to the drafting, distribution and execution of illegal orders to the troops of the German Armed Forces which commanded that enemy troops be refused quarter and be denied the status and rights of prisoners of war and surrendered members of enemy forces be summarily executed ; that defendants illegally ordered that regular members of the national armies of Greece, Yugoslavia and Italy be designated as ‘partisans,’ ‘ rebels,’ ‘ communists ’ and ‘ bandits,’ and that relatives of members of such national armies be held responsible for such members’ acts of warfare, resulting in the murder and ill-treatment of thousands of soldiers, prisoners of war and their non-combatant relatives.
“ 4. That defendants were principals or accessories to the murder, torture, and systematic terrorisation, imprisonment in concentration camps, forced labour on military installations, and deportation to slave labour, of the civilian populations of Greece, Yugoslavia and Albania by troops of the German Armed Forces acting pursuant to the orders of the defendants ; that large numbers of citizens-democrats, nationalists, Jews and Gypsies-were seized, thrown into concentration camps, beaten, tortured, ill-treated and murdered while other citizens were forcibly conscripted for labour in the Reich and occupied territories.
“ The acts charged in each of the four counts are alleged to have been committed wilfully, knowingly and unlawfully and constitute violations of international conventions, the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilised nations, the internal penal laws of the countries in which such crimes were committed, and were declared, recognised and defined as crimes by Article II of Control Council Law No. 10 adopted by the representatives of the United States of America, Great Britain, the Republic of France and the Soviet Union.”
The accused pleaded not guilty.
The Tribunal made the following remarks concerning the evidence placed before it :
“ The evidence in this case recites a record of killing and destruction seldom exceeded in modern history. . . . It is the determination of the connection of the defendants with the acts charged and the responsibility which attaches to them therefore, rather than the commission of the acts, that poses the chief issue to be here decided.”
The Tribunal continued :
The record is replete with testimony and exhibits which have been offered and
received in evidence without foundation as to their authenticity and, in many
cases where it is secondary in character, without proof of the usual conditions
precedent to the admission of such evidence. This is in accordance with the
provisions of Article VII, Ordinance No. 7, Military Government,
“ The trial was conducted in two languages, English and German, and consumed 117 trial days. The prosecution offered 678 exhibits and the defendants 1025 that were received in evidence. The transcript of the evidence taken consists of 9,556 pages. A careful consideration of this mass of evidence and its subsequent reduction into concise conclusions of fact, is one of the major tasks of the tribunal.
“ The prosecution has produced oral and documentary evidence to sustain the charges of the indictment. The documents consist mostly of orders, reports and war diaries which were captured by the Allied Armies at the time of the German collapse. Some of it is fragmentary and consequently not complete. Where excerpts of such documents were received in evidence, we have consistently required the production of the whole document whenever the Defence so demanded. The Tribunal and its administrative officials have made every effort to secure all known and available evidence. The Prosecution has repeatedly assured the tribunal that all available evidence, whether favourable or otherwise, has been produced pursuant to the Tribunal’s orders.
“ The reports offered consist generally of those made or received by the defendants and unit commanders in their chain of command.
By the general term ‘ orders ’ is meant primarily the orders, directives and instructions received by them or sent by them by virtue of their position. By war diaries is meant the records of events of the various units which were commanded by these defendants, such war diaries being kept by the commanding officer or under his direction. This evidence, together with the oral testimony of witnesses appearing at the trial provides the basis of the prosecution’s case.
“ The Defence produced much oral testimony including that of the defendants themselves. Hundreds of affidavits were received under the rules of the tribunal. All affidavits were received subject to a motion to strike if the affiants were not produced for cross-examination in open court upon demand of the opposite party made in open court.”
The following paragraphs contain a summary of the evidence relating to the individual accused :
List, was Commander-in-Chief of the Twelfth Army during
the German invasion of
The evidence showed that, soon after the occupation by
German forces of
By 5th September, 1941, the resistance movement had developed further and the defendant List issued an order on the subject of its suppression. In this order, he said in part : “ In regard to the above the following aspects are to be taken into consideration :
Ruthless and immediate measures against the insurgents, against their accomplices and their families. (Hanging, burning down of villages involved, seizure of more hostages, deportation of relatives, etc., into concentration camps.)”
On 16th September, 1941, Hitler, in a
personally signed order, charged the defendant List with the task of suppressing
the insurgent movement in the Southeast. This resulted in the commissioning of General
Franz Boehme with the handling of military affairs in
On 16th September, 1941, Fieldmarshal Keitel, Chief of the High Command of the Armed Forces, issued a directive pertaining to the suppression of the insurgent movement in occupied territories, which List caused to be distributed to his subordinate commanders. This order stated :
“ Measures taken up to now to counteract this general communist insurgent movement have proven themselves to be inadequate. The Führer now has ordered that severest means are to be employed in order to break down this movement in the shortest time possible. Only in this manner, which has always been applied successfully in the history of the extension of power of great peoples can quiet be restored.
“ The following directives are to be applied here : (a) Each incident of insurrection against the German Wehrmacht, regardless of individual circumstances, must be assumed to be of communist origin. (b) In order to stop these intrigues at their inception, severest measures are to be applied immediately at the first appearance, in order to demonstrate the authority of the occupying power, and in order to prevent further, progress. One must keep in mind that a human life frequently counts for naught in the affected countries and a deterring effect can only be achieved by unusual severity. In such a case the death penalty for 50 to 100 communists must in general be deemed appropriate as retaliation for the life of a German soldier. The manner of execution must increase the deterrent effect. The reverse procedure-to proceed at first with relatively easy punishment and to be satisfied with the threat of measures of increased severity as a deterrent does not correspond with these principles and is not to be applied.”
On 4th October, 1941, the defendant List directed the following order to General Bader, one of the Generals under his command :
“ The male population of the territories to be mopped
up of bandits is to be handled according to the following points of view :
“ Men who take part in combat are to be judged by court martial.
“ Men in the insurgent territories who were not encountered in battle, are to be examined and- -.
“ If a former participation in combat can be proven of them to be judged by court martial.
“ If they are only suspected of having taken part in combat, of having offered the bandits support of any sort, or of having acted against the Wehrmacht in any way, to be held in a special collecting camp. They are to serve as hostages in the event that bandits appear, or anything against the Wehrmacht is undertaken in the territory mopped up or in their home localities, and in such cases they are to be shot.”
After the issuance of the foregoing orders, the shooting of innocent members of the population increased and a large number of reprisals against the population were carried out on the basis of the 100 to 1 order. Among the evidence appeared facts relating to a reprisal shooting at a village near Topola, to which the Tribunal made reference in its judgment.(Footnote 1: See pp. 65-6) This instance of shooting was carried out by the orders of General Boehme issued on 4th October, 1941, and on 9th October, 1941. General Boehme informed the defendant List as follows : “ Execution by shooting of about 2,000 Communists and Jews in reprisal for 22 murdered of the Second Battalion of the 421st Army Signal Communication Regiment in progress.” Several reports of reprisal shootings were also made to List by the Security Police and S.D.
was no evidence, however, that the “ Commissar Order” of 6th
June, 1941, requiring the killing of all captured Commissars was issued,
distributed or executed in the occupied territory under the command of List
while he held the position of Armed Forces Commander Southeast, or that List was
in any way responsible for the killing of Commissars merely because they were
such. The evidence sustained the contentions of List that he never himself
signed an order for the killing of hostages or other inhabitants, or fixed a
ratio determining the number of persons to be put to death for each German
soldier killed or wounded, and that many of these executions were carried out by
units of the S.S., the S.D., and local police units which were not tactically
subordinated to him. That he was not in accord with many of the orders of the
High Command of the Armed Forces with reference to the pacification of
or about 24th October, 1941, the defendant Kuntze was appointed
Deputy Wehrmacht Commander Southeast and Commander-in-Chief of the 12th
Army. It was evident from the record that the appointment was intended as a
temporary one for the period of the illness of Fieldmarshal List. He assumed the
command on his arrival in the Balkans on 27th October, 1941. He was
superseded by General Alexander Liehr in June 1942 but remained in the position
until the arrival of General Loehr on 8th August, 1942.(Footnote 1:
In its Judgment the Tribunal pointed out that October, 1941 “ exceeded all
previous monthly records in killing innocent members of the population in
reprisal for the criminal acts of unknown persons,” and added : “ It seems
highly improbable that Kuntze could step into the
command in the Southeast in the midst of the carrying out and reporting of ’
these reprisal actions without gaining knowledge and approval.”.) Reports made
to the defendant Kuntze, which were shown in the evidence, revealed that on 29th
October, 1941,76 persons were shot in reprisal in
In a directive of 19th March, 1942, Kuntze
made the following order :
“ The more unequivocal and the harder reprisal measures are applied from the beginning the less it will become necessary to apply them at a later date. No false sentimentalities! It is preferable that 50 suspects are liquidated than one German soldier lose his life. Villages with Communist Administration are to be destroyed and men are to be taken along as hostages. If it is not possible to produce the people who have participated in any way in the insurrection or to seize them, reprisal measures of a general kind may be deemed advisable, for instance, the shooting to death of all male inhabitants from the nearest villages, according to a definite ratio (for instance, one German dead-100 Serbs, one German wounded-50 Serbs).” Further shootings of large numbers of reprisal prisoners and hostages were reported to Kuntze after the issuance of this directive.
Although he was advised of these killings of innocent persons in reprisal for the actions of bands or unknown members of the population, Kuntze not only failed to take steps to prevent their recurrence but urged more severe action upon his subordinate commanders. In many cases persons were shot in reprisal who were being held in collecting camps without there being any connection whatever with the crime committed, actual, geographical or otherwise. Reprisal orders were not grounded on judicial findings.
brought relating to the alleged ill-treatment of Jews and other racial groups
within the area commanded by the defendant Kuntze during the time he was Deputy
Wehrmacht Commander Southeast proved the collection of Jews in concentration
camps and the killing of one large group of Jews and Gypsies shortly after the
defendant assumed command in the Southeast by units that were subordinate to
him. The record did not show that the defendant ordered the shooting of Jews or
their transfer to a collecting camp. The evidence did show, however, that he
received reports that units subordinate to him carried out the shooting of a
large group of Jews and Gypsies. He had knowledge that troops subordinate to him
were collecting and transporting Jews to collecting camps, and it was not shown
that the defendant acted to stop such practices.
There was evidence that the offences proved against Kuntze were ordered
by his superiors and that, like List, he was impeded by the operations within
his area of command of organizations receiving their orders direct from
The whole period of Foertsch’s stay in the Southeast was in the capacity of Chief of Staff of the Army Group commanding the territory.
The Chief of Staff was in charge of the various departments of the staff and was the first advisor of the Commander-in-Chief. It was his duty to provide all basic information for decisions by the Commander-in-Chief and was responsible for the channelling of all reports and orders. He had no troop command authority. Neither did he have any control over the legal department which was directly subordinate to the Commander-in-Chief. As Chief of Staff he was authorised to sign orders on behalf of the Commander-in-Chief when they did not contain any fundamental decision and did not require the exercise of judgment by the subordinate to whom they were directed.
Furthermore, the accused was on leave at the time of the
issuing of List’s order of 5th September, 1941, the distribution of
the Keitel Order of 16th September, 1941, and the appointment of
Lieutenant-General Boehme as Commander of Military Operations in
It was the testimony of Foertsch that the Keitel Order of 16th September, 1941, fixing reprisal ratios from 50 up to 100 to 1, was the basic order under which reprisal measures were carried out in the Southeast. On the other hand the evidence showed many reprisal measures to have been executed prior to the Keitel order, on the reports of which appeared the signature or initials of Foertsch. For all practical purposes, the accused had the same information as the defendants List and Kuntze during their tenures as Wehrmacht Commanders Southeast. He knew of all the incidents described earlier in the outline of evidence dealing with the defendants List and Kuntze. The defendant Foertsch did not, however, participate in any of them. He gave no orders and had no power to do so had he so desired.
He did distribute some of the orders of the OKW, the OKH and of his commanding generals, including Fieldmarshal Keitel’s order of 28th September, 1941, wherein it was ordered that hostages of different political persuasions such as Nationalists, Democrats and Communists be kept available for reprisal purposes and shot in case of attack, and General Kuntze’s order of 19th March, 1942, wherein it was ordered that more severe reprisals be taken in accordance with a definite ratio “ for instance, 1 German dead-100 Serbs, 1 German wounded-50 Serbs.”
The Commando Order of 18th October, 1942, was distributed by Army Group E commanded by General Alexander Loehr and of which Foertsch was then Chief of Staff. Foertsch stated that he considered this order unlawful in that it called for the commission of offences and crimes under International Law but that he assumed that the issuing of the order was an answer to similar actions by the enemy in contravention of International Law. It was not shown that the defendant knew that this order was in fact carried out in the territory in which he served.
(iv) von Geitner
During the entire period of his service in the Balkans,
the defendant von Geitner served only as a chief of staff to the Commanding
The evidence showed that von Geitner initialed or signed orders issued by his commanding general for the shooting of hostages and reprisal prisoners.(Footnote 2: These orders were deemed by the Tribunal to be “ unlawful when viewed in the light of the applicable international law.") Applications for permission to take reprisal action were referred by the commanding general to a special legal officer who worked on them and submitted the result to the commander. The commander then made the decision and delivered a text to the defendant von Geitner for preparation and approval as to form. The order then was sent on its way through regular channels by von Geitner. No doubt existed that such an order was that of the military commander and that the defendant von Geitner lacked the authority to issue such an order on his own initiative. The accused claimed that the approval of the form of such orders was the full extent of his participation in the issuing and distributing of reprisal orders.
(v ) Rendulic
The defendant Rendulic became Commander-in-Chief of the Second Panzer Army on 26th August, 1943, and remained in the position until June 1944. In July 1944 he became the Commander-in-Chief of the Twentieth Mountain Army, a position which he held until January 1945. In December 1944 he became the Armed Forces Commander North in addition to that of Commander-in-Chief of the Twentieth Mountain Army. In January 1945 he became Commander-in-Chief of Army Group North, a position which he held until March 1945.
At the time he assumed command of the Second Panzer Army,
the head-quarters of the army was in
The Hitler order of 16th September, 1941, providing for the killing of 100 reprisal prisoners for each German soldier shot, had been distributed to the troops in the Southeast and, in many. instances, carried out before the defendant Rendulic assumed command of the Second Panzer Army. The accused did not attempt to suppress illegal reprisal actions, but instead on 15th September, 1943, he issued an order which in part stated : " Attacks on German members of the Wehrmacht and damages to war-important installations are to be answered in every case by the shooting or hanging of hostages and the destruction of surrounding villages, which later is to take place-if possible-after the arrest of the male population which is capable of bearing arms. Only then will the population inform the German authorities if bandits collect so as to avoid reprisal measures.
“ Unless in individual cases different orders are issued the rule for reprisal measures is : 1 German killed, 50 hostages ; 1 German wounded, 25 hostages shot or hanged. Kidnapping of a German will be considered equal to killing a German if the kidnapped person does not return within a definite period. According to the severity of the attack a hundred hostages will be hanged or shot for each attack against war-essential installations. These reprisal measures are to be executed if the culprit is not caught within 40 hours.”
The reports of the corps commanders subordinate to the defendant revealed that many acts of reprisals were taken in fact against the population by the 173rd and 187th Reserve Divisions for attacks upon troops and military installations. The defendant made no attempt to secure additional details of the killings or to apprehend the guilty. Public proclamations upon the taking of hostages were not made. Previous notice was not given the public that reprisals by shooting would be taken if unlawful acts were repeated. Court-martial proceedings were not held. Hostages, reprisal prisoners and partisans were killed without any semblance of a judicial hearing. There was no requirement that hostages or reprisal prisoners killed should be connected with the offence committed, either passively, or actively, or by proximity.
The accused’s order of 15th September, 1943, was as he maintained, consistent with the orders of Hitler and Keitel and the record did not indicate that he ever issued an order directing the killing of a specific number of hostages or reprisal prisoners as retaliation for any particular offence. The issuance of such orders was delegated to divisional commanders, whose activities were known to him through reports. He acquiesced in them and took no steps to shape the hostage and reprisal practices in conformity with the usages and practices of war.
The evidence further showed that on 3rd
The defendant was also shown to have passed on to troops subordinate to him the Führer Order of 6th June, 1941, providing that all Commissars captured must be shot, when he was in command of the 52nd Infantry Division on the Russian Front. He admitted that the legality and correctness of this order was discussed in army circles and that it was generally considered illegal. He testified that he considered the order as a reprisal measure, the purpose of which was unknown to him. (Footnote l: See p.46, note 2)
There was evidence that, during the retreat of the German troops under Rendulic from Finnmark, much physical destruction was carried out on the latter’s orders in an attempt to extricate the former from a strategically perilous situation arising out of the withdrawal from the war of Finland.
The defendant Dehner was assigned as the commander of the
LXIXth Reserve Corps in the last days of August 1943. He held this command until
15th March, 1944. The corps was stationed in
The 173rd and 187th Reserve Divisions, which have been mentioned above in the section setting out the evidence relating to the defendant Rendulic, were directly subordinated to Dehner. (Footnote 2: See p.44) Numerous other and similar offences were committed by troops under his command and the defendant appeared to have made no effort to require reports showing that hostages and reprisal prisoners were shot in accordance with International Law. The defendant attempted to excuse his indifference to these killings by saying that they were the responsibility of the division commanders. Dehner had knowledge of the offences; on the other hand, there was evidence of attempts on his part to correct certain irregularities connected with the taking of reprisals ; for example in an order of 19th December, 1943, his corps headquarters stated : “ Measures of the unit have repeatedly frustrated propaganda for the enemy as planned by the unit leadership. It must not happen that bandits who arrive at the unit with leaflets asking them to desert and which should be valid as passes, are shot out of hand. This makes any propaganda effort in this direction nonsensical. . . .”
(vii) von Leyser
The defendant von Leyser was appointed to command the
XXIst Mountain Corps on 1st August, 1944, and continued in the
position until April 1945. Immediately
previous thereto he had been in command of the XVth Mountain Corps, a position
which he had held since 1st November, 1943. Other former assignments
were his command of the 269th Infantry Division In Russia in 1941 and
his command of the XXVIth Corps in
There was evidence that innocent members of the civilian populations were killed in reprisal for attacks on troops and acts of sabotage committed by unknown persons by troops subordinate to the defendant von Leyser, who admitted that he knew of many such killings. He denied that he ever issued an order to carry out any specific reprisal measure, and contended that this was the responsibility of divisional commanders in conjunction with Croatian government authorities. The record disclosed, however, that on 10th August, 1944, the defendant issued an order containing the following :“ In case of repeated attacks in a certain road sector, Communist hostages are to be taken from the villages of the immediate vicinity, who are to be sentenced in case of new attacks. A connection between these Communists and the bandits may be assumed to exist in every case." (Footnote 1: Of this order the Tribunal said : “ This order is, of course, not lawful. Reprisals taken against a certain race, class or group irrespective of the circumstances of each case, sounds more like vengeance than an attempt to deter further criminal acts by the population. An assumption of guilt on the part of a particular race, class or group of people in all cases also contravenes established rules. This is a matter which a judicial proceeding should determine from available evidence.”)
Shortly after taking command of the XVth Corps, the defendant formulated a plan for the evacuation of the male population between the ages of 15 and 55 from the area between Una and Korana. This territory was supposed to contain about 7,000 to 8,000 men who were partly equipped with arms procured from the Italians. The area had been under the temporary control of the bands to such an extent that the Croat government had complained of its inability to conscript men for military-service from the area: It was planned to crush the bands and evacuate the men and turn them over to the Croatian government for use as soldiers and compulsory labour. The operation was designated as Operation “ Panther ” and was so referred to in the German Army reports. On 6th December, 1943, the Second Panzer Army approved Operation “ Panther.” The operation was carried out but only 96 men fit for military service were captured. The defendant attempted to justify his action by asserting that the primary purpose of the Operation “ Panther ” was the suppression of the bands, that the operation was purely a tactical one so far as he was concerned and that the disposition of the captured population fit for military service was for the decision of the Croatian government and not his concern.
The evidence also showed that the 269th
Infantry Division, commanded by the defendant von Leyser in
The defendant Felmy was appointed Commander Southern
Greece at about the middle of June 1941, and continued in the position until
August 1942. During this period he had three battalions of security and police
troops subordinate to him. On 10th May, 1943 the defendant became
commander of the LXVIIIth Corps and continued in that position until the corps
The evidence showed that the accused received and passed on an order of General Loehr, Commander-in-Chief Southeast, dated 10th August, 1943, which stated in part : “ In territories infested by the bandits, in which surprise attacks have been carried out, the arrest of hostages from all strata of the population remains a successful means of intimidation. Furthermore, it may be necessary, to seize the entire male population, in so far as it does not have to be shot or hung on account of participation in or support of the bandits, and in so far as it is incapable of work, and bring it to the prisoner collecting points for further transport into the Reich. Surprise attacks on German soldiers, damage to German property must be retaliated in every case with shooting or hanging of hostages, destruction of the surrounding localities, etc. Only then will the population announce to the German offices the collections of the bandits, in order to remain protected from reprisal measures.” The defendant also received and passed on the order regarding reprisal measures issued by General Loehr, deputising for Field Marshal von Weichs as Commander-in-Chief Southeast, under date of 22nd December, 1943, an order which has been previously quoted in this opinion. It says in part : “ Reprisal quotas are not fixed. The orders previously decreed concerning them are to be rescinded. The extent of the reprisal measures is to be established in advance in each individual case. . . . The procedure, of carrying out reprisal measures after a surprise attack or an act of sabotage at random on persons and dwellings, in the vicinity, close to the scene of the deed, shakes the confidence in the justice of the occupying power and also drives the loyal part of the population into the woods. This form of execution of reprisal measures is accordingly forbidden, If, I however, the investigation on the spot reveals concealed collaboration or a conscientiously passive attitude of certain persons concerning the perpetrators then these persons above all are to be shot as bandit helpers and their dwellings destroyed. . . . Such persons are co-responsible first of all who recognise Communism.”
The evidence showed many separate reprisal actions by troops subordinate to this defendant. In many instances there was no connection between the inhabitants shot and the offence committed. Reprisals were taken against special groups, such as “ Communists ” and “ bandit suspects ” without any relationship to the offence being established. Reprisal prisoners were taken from hostage camps generally and at points distant from the place where the offences occurred. It was also shown that in many reprisal actions destruction of property accompanied the mass shootings.
The defendant Lanz was appointed to command the XXIInd Mountain Corps on 25th August, 1943, and actually assumed the position on 9th September, 1943.
On 3rd October, 1943, the defendant issued an order reading in part as follows : “ On account of the repeated cable sabotage in the area of Arta, 10 distinguished citizens (Greeks) from Arta, 10 distinguished citizens (Greeks) from Filipias, are to be arrested and kept as hostages. The population is to be notified that for every further cable sabotage 10 of these 40 hostages will be shot to death.”
The defendant denied that any of these hostages were shot and there was no evidence to the contrary. On the other hand, there was proof of many reprisal actions, of the same general type as those already described, having been committed by troops under the accused’s command and with his knowledge and acquiescence.
There was also evidence that a number of Italian officers, whose troops had resisted German requests to surrender with their arms, were shot on the orders of Lanz. It was shown, however, that Lanz acted under orders from Hitler and that, by resisting a previous order, he reduced the number of persons whom he was required to have executed.
The defendant Speidel assumed the position of Military Commander Southern Greece in early October 1942, and remained in the position until September 1943. From September 1943 until May 1944 he occupied the position of Military Commander Greece.
That the Military Commander Greece could control the reprisal and hostage practice through the various sub-area headquarters which were subordinate to him was borne out by the testimony of the defendant himself and charts prepared by him. Nevertheless, there was evidence of numerous separate instances of reprisal killings by troops under his command and with his knowledge, the victims often having no connection with any offences committed against the German armed forces and having lived in other districts, and often no court-martial proceedings having been held.
In addition to summarising the evidence which had been placed before it, the Tribunal in its judgment dealt with a number of legal matters, as follows :
(i) The General Nature and the Sources of International Law
It seemed to the Tribunal advisable “ to briefly state the general nature of International Law and the sources from which its principles can be ascertained.” It added, however, that :
“ No attempt will be here made to give an all inclusive definition of International Law, in fact, there is justification for the assertion that it ought not to be circumscribed by strict definition in order that it may have ample room for growth. Any system of law that is obviously subject to growth by the crystallisation of generally prevailing custom and practice into law under the impact of common acceptance or consent, must not be confined within the limits of formal pronouncement or complete unanimity. For our purposes it is sufficient to say that International Law consists of the principles which control or govern relations between nations and their nationals. It is much more important to consider the sources from which these principles may be determined.”
The judgment then continued :
“ The sources of International Law which are usually enumerated are : (1) customs and practices accepted by civilised nations generally, (2) treaties, conventions and other forms of interstate agreements, (3) the decisions of international tribunals, (4) the decisions of national tribunals dealing with international questions, (5) the opinions of qualified text writers, and (6) diplomatic papers. These sources provide a frame upon which a system of International Law can be built but they cannot be deemed a complete legal system in themselves. Any system of jurisprudence, if it is to be effective, must be given an opportunity to grow and expand to meet changed conditions. The codification of principles is a helpful means of simplification, but it must not be treated as adding rigidity where resiliency is essential. To place the principles of International Law in a formalistic strait-jacket would ultimately destroy any effectiveness that it has acquired.
“ The tendency has been to apply the term ‘ customs and practices accepted by civilised nations generally’, as it is used in International Law, to the laws of war only. But the principle has no such restricted meaning. It applies as well to fundamental principles of justice which have been accepted and adopted by civilised nations generally. In determining whether such a fundamental rule of justice is entitled to be declared a principle of International Law, an examination of the municipal laws of states in the family of nations will reveal the answer. If it is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of International Law would seem to be fully justified. There is convincing evidence that this not only is but has been the rule. The rules applied in criminal trials regarding burden of proof, presumption of innocence, and the right of a defendant to appear personally to defend himself, are derived from this source. Can it be doubted that such a source of International Law would be applied to an insane defendant ? Obviously he would not be subjected to trial during his incompetency. Clearly, such a holding would be based upon a fundamental principle of criminal law accepted by nations generally. If the rights of nations and the rights of individuals who become involved in international relations are to be respected and preserved, fundamental rules of justice and right which have become commonly accepted by nations must be applied. But the yardstick to be used must in all cases be a finding that the principle involved is a fundamental rule of justice which has been adopted or accepted by nations generally as such.”
(ii) The Plea of Superior Orders
The Judgment then continued
“ The defendants invoke the defensive plea that the acts charged as crimes were carried out pursuant to orders of superior officers whom they were obliged to obey. This brings into operation the rule just announced. The rule that superior order is not a defence to a criminal act is a rule of fundamental criminal justice that has been adopted by civilized nations extensively. It is not disputed that the municipal law of civilised nations generally sustained the principle at the time the alleged criminal acts were committed. This being true, it properly may be declared as an applicable rule of International Law.
“ It cannot be questioned that acts done in time of war under the military authority of an enemy, cannot involve any criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war. Implicit obedience to orders of superior officers is almost indispensable to every military system. But this implies obedience to lawful orders only. If the act done pursuant to a superior’s orders be murder, the production of the order will not make it any less so. It may mitigate but it cannot justify the crime. We are of the view, however, that if the illegality of the order was not known to the inferior and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists and the inferior will be protected. But the general rule is that members of the armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command which violates International Law and outrages fundamental concepts of justice. In the German War Trials (1921), the German Supreme Court of Leipzig in The Llandovery Castle case (Footnote 1: See the notes to the Stalag Luft III Trial report, in Vol. XI.) said : ‘ Patzig’s order does not free the accused from guilt. It is true that according to para. 47 of the 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 No. 2, however, the subordinate obeying such an order is liable to punishment, if it was known to him that the order of the superior involved the infringement of civil or military law.’
“ It is true that the foregoing rule compels a commander to make a choice between possible punishment by his lawless government for the disobedience of the illegal order of his superior officer, or that of lawful punishment for the crime under the law of nations. To choose the former in the hope that victory will cleanse the act of its criminal characteristics manifests only weakness of character and adds nothing to the defence.
“ We concede the serious consequences of the choice especially by an officer in the army of a dictator. But the rule becomes one of necessity, for otherwise the opposing army would in many cases have no protection at all against criminal excesses ordered by superiors.
“ The defence relies heavily upon the writings of
Professor L. Oppenheim to sustain
their position. It is true that he advocated this principle throughout his
writings. As a co-author of the British Manual
of Military Law, he incorporated the principle there. It seems
also to have found its way into the
“ Those who hold to the view that superior order is a complete defence to an International Law crime, base it largely on a conflict in the articles of war promulgated by several leading nations. While we are of the opinion that army regulations are not a competent source of International Law, where a fundamental rule of justice is concerned, we submit that the conflict in any event does not sustain the position claimed for it. If, for example, one be charged with an act recognised as criminal under applicable principles of International Law and pleads superior order as a defence thereto, the duty devolves upon the Court to examine the sources of International Law to determine the merits of such a plea. If the Court finds that the army regulations of some members of the family of nations provide that superior order is a complete defence and that the army regulations of other nations express a contrary view, the Court would be obliged to hold, assuming for the sake of argument only that such regulations constitute a competent source of International Law, that general acceptation or consent was lacking among the family of nations. Inasmuch as a substantial conflict exists among the nations whether superior order is a defence to a criminal charge, it could only result in a further finding that the basis does not exist for declaring superior order to be a defence to an International Law crime. But, as we have already stated,. army regulations are not a competent source of International Law when a fundamental rule of justice is concerned. This leaves the way clear for the Court to affirmatively declare that superior order is not a defence to an International Law crime if it finds that the principle involved is a fundamental rule of justice and for that reason has found general acceptance.
“International Law has never approved the defensive plea of superior order as a mandatory bar to the prosecution of war criminals. This defensive plea is not available to the defendants in the present case, although if the circumstances warrant, it may be considered in mitigation of punishment under the express provisions of Control Council Law No. 10.”
(iii) The Ex Post Facto Principle Regarded as Inapplicable in the Present Instance
The following paragraphs set out the attitude of the Tribunal to the plea that Control Council Law No. 10 violated-the ex post facto principle:
“It is urged that Control Council Law No. 10 is an ex post facto act and retroactive in nature as to the crime charged in the indictment. The act was adopted on 20th December, 1945, a date subsequent to the dates of the Acts charged to be crimes. It is a fundamental principle of criminal jurisprudence that one may not be charged with crime for the doing of an act which was not a crime at the time of its commission. We think it could be said with justification that Article 23 (h) of the Hague Regulations of 1907 operates as a bar to retroactive action in criminal matters. In any event, we are of the opinion that a victorious nation may not lawfully enact legislation defining a new crime and make it effective as to acts previously occurring which were not at the time unlawful. It therefore becomes the duty of a Tribunal trying a case charging a crime under the provisions of Control Council Law No. 10, to determine if the acts charged were crimes at the time of their commission and that Control Council Law No. 10 is in fact declaratory of then existing International Law.
very question was passed upon by the International Military Tribunal in the case
“ The crimes specified in the London Charter and defined in Control Council Law No. 10 which have heretofore been set forth and with which these defendants are charged, merely restate the rules declared by the Hague Regulations of 1907 in Articles 43, 46, 47, 50 and 23 (h) of the regulations annexed thereto. . . .
“We conclude that pre-existing International Law has
declared the acts constituting the crimes herein charged and included in Control
Council Law No. 10 to be unlawful, both under the conventional law and the
practices and usages of land warfare that had ripened into recognised customs
which belligerents were bound to obey. Anything in excess of existing
International Law therein contained is a utilisation of power and not of law. It
is true, of course, that courts authorised to hear such cases were not
established nor the penalties to be imposed for violations set forth. But this
is not fatal to their validity. The acts prohibited are without deterrent effect
unless they are punishable as crimes. This subject was dealt with in the
International Military Trial in the following language : ‘ But it is argued
that the pact does not expressly enact that such (aggressive) wars are crimes,
or set up courts to try those who make such wars. To that extent the same is
true with regard to the laws of war contained in the Hague Convention. The Hague
Convention of 1907 prohibited resort to certain methods of waging war. These
included the inhumane treatment of prisoners, the employment of poisoned
weapons, the improper use of flags of truce and similar matters. Many of these
prohibitions had been enforced long before the date of the Convention ; but
since 1907 they have certainly been crimes ; punishable as offences against the
laws of war ; yet
“It is true, of course, that customary International Law is not static. It must be elastic enough to meet the new conditions that natural progress brings to the world. It might be argued that this requires a certain amount of retroactive application of new rules and that by conceding the existence of a customary International Law, one thereby concedes the legality of retroactive pronouncements. To a limited extent the argument is sound, but when it comes in conflict with a rule of fundamental right and justice, the latter must prevail. The rule that one may not be charged with crime for committing an act which was not a crime at the time of its commission is such a right. The fact that it might be found in a constitution or bill or rights does not detract from its status as a fundamental principle of justice. It cannot properly be changed by retroactive action to the prejudice of one charged with a violation of the laws of war.
“An international crime is such an act universally recognised as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances. The inherent nature of a war crime is ordinarily itself sufficient justification for jurisdiction to attach in the courts of the belligerent into whose hands the alleged criminal has fallen.
“Some war crimes, such as spying, are not common law crimes at all ; they being pure war crimes punishable as such during the war and, in this particular case, only if the offender is captured before he rejoins his army. But some other crimes, such as mass murder, are punishable during and after the war. But such crimes are also war crimes because they were committed under the authority or orders of the belligerent who, in ordering or permitting them, violated the rules of warfare. Such crimes are punishable by the country where the crime was committed or by the belligerent into whose hands the criminals have fallen, the jurisdiction being concurrent. There are many reasons why this must be so, not the least of which is that war is usually followed by political repercussions and upheavals which at times place persons in power who are not, for one reason or another, inclined to punish the offenders. The captor belligerent is not required to surrender the alleged war criminal when such surrender is equivalent to a passport to freedom. The only adequate remedy is the concurrent jurisdictional principle to which we have heretofore adverted. The captor belligerent may therefore surrender the alleged criminal to the state where the offense was committed, or, on the other hand, it may retain the alleged criminal for trial under its own legal processes.
“It cannot be doubted that the occupying powers have the right to set up
special courts to try those charged with the commission of War Crimes as they
are defined by International Law. Ex Parte Quirin, 317
The Tribunal then proceeded to reject a defence argument that the former had no jurisdiction to hear the case which could “ only be properly tried in accordance with the international principles laid down in Article 63 of the Geneva Convention of 1929 relative to the treatment of prisoners of war.” It was pointed out that the Convention “ applies only to crimes and offences committed while occupying the status of a prisoner of war and confers no jurisdiction over a violation of International Law committed prior to the time of becoming such,” and the opinion of the United States Supreme Court in the Yamashita Trial was cited in support of this ruling.
(iv) The Status of
The Judgment continued:
“It is essential to a proper understanding of the issues involved in the
present case, that the status,of
“The evidence shows that the invasion of
“The evidence shows that the population remained peaceful during the spring of 1941. In the early summer following, a resistance movement began to manifest itself. It increased progressively in intensity until it assumed the appearance of a military campaign. Partisan bands, composed of members of the population, roamed the territory, doing much damage to transportation and communication lines. German soldiers were the victims of surprise attacks by an enemy which they could not engage in open combat. After a surprise attack, the bands would hastily retreat or conceal their arms and mingle with the population with the appearance of being harmless members thereof. Ambushing of German troops was a common practice. Captured German soldiers were often tortured and killed. The terrain was favourable to this type of warfare and the inhabitants most adept in carrying it on.
“It is clear that the German Armed Forces were able to maintain control of
“These findings are consistent with Article 42 of the Hague Regulations of 1907 which provide : ‘ Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’
“It is the contention of the defendants that after the respective
capitulations a lawful belligerency never did exist in
“The evidence shows that the bands were sometimes designated as units common to military organization. They, however, had no common uniform. They generally wore civilian clothes although parts of German, Italian and Serbian uniforms were used to the extent they could be obtained. The Soviet Star was generally worn as insignia. The evidence will not sustain a finding that it was such that it could be seen at a distance. Neither did they carry their arms openly except when it was to their advantage to do so. There is some evidence that various groups of the resistance forces were commanded by a centralised command, such as the partisans of Marshal Tito, the Chetniks of Draja Mihailovitch and the Edes of General Zervas. It is evidence also that a few partisan bands met the requirements of lawful belligerency. The bands, however, with which we are dealing in this case were not shown by satisfactory evidence to have met the requirements. This means, of course, that captured members of these unlawful groups were not entitled to be treated as prisoners of war. No crime can be properly charged against the defendants for the killing of such captured members of the resistance forces, they being franc-tireurs.
“The status of an occupant of the territory of the enemy having been
achieved, International Law places the responsibility upon the commanding
general of preserving order, punishing crime and protecting lives and property
within the occupied territory. His power in accomplishing these ends is as great
as his responsibility. But he is definitely limited by recognised rules of
International Law, particularly the Hague Regulations of 1907. Article 43
thereof imposes a duty upon the occupant to respect the laws in force in the
country. Article 46 protects family honour and rights, the lives of individuals
and their private property as well as their religious convictions and the right
of public worship. Article 47 prohibits pillage. Article 50 prohibits collective
penalties. Article 51 regulates the appropriation of properties belonging to the
state or private individuals which may be useful in military operations. There
are other restrictive provisions not necessary to mention here. It is the
alleged violation of these rights of the inhabitants thus protected that furnish
the basis of the case against the defendants.“ The evidence is clear that
during the period of occupation in
“We think the rule is established that a civilian who aids, abets or participates in the fighting is liable to punishment as a war criminal under the laws of war. Fighting is legitimate only for the combatant personnel of a country. It is only this group that is entitled to treatment as prisoners of war and incurs no liability beyond detention after capture or surrender.
“It is contended by the prosecution that the so-called guerrillas were in fact irregular troops. A preliminary discussion of the subject is essential to a proper determination of the applicable law. Members of militia or a volunteer corps, even though they are not a part of the regular army, are lawful combatants if (a) they are commanded by a responsible person, (b) if they possess some distinctive insignia which can be observed at a distance, (c) if they carry arms openly, and (d) if they observe the laws and customs of war. See Chapter I, Article I, Hague Regulations of 1907. In considering the evidence adduced on this subject, the foregoing rules will be applied. The question whether a captured fighter is a guerrilla or an irregular is sometimes a close one that can be determined only by a careful evaluation of the evidence before the Court.
“The question of the right of the population of an invaded and occupied country to resist has been the subject of many conventional debates. (Brussels Conference of 1874; Hague Peace Conference of 1899). A review of the positions assumed by the various nations can serve no useful purpose here for the simple reason that a compromise (Hague Regulations, 1907) was reached which has remained the con-trolling authority in the fixing of a legal belligerency. If the requirements of the Hague Regulation, 1907, are met, a lawful belligerency exists; if they are not met, it is an unlawful one.”
(v) The Irrelevance to the Present Discussion of the Illegality of Aggressive War
The Judgment states:
“The Prosecution advances the contention that since
“For the purposes of this discussion, we accept the statement as true that
the wars against
“At the outset, we desire to point out that International Law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory. There is no reciprocal connection between the manner of the military occupation of territory and the rights and duties of the occupant and population to each other after the relationship has in fact been established. Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject.
“It must not be overlooked that International Law is prohibitive law. Where the nations have affirmatively acted, as in the case of the Hague Regulations, 1907, it prohibits conduct contradictory thereto. Its specific provisions control over general theories, however reasonable they may seem. We concur in the views expressed in the following text on the subject : ‘ Whatever may be the cause of a war that has broken out, and whether or no the cause be a so-called just cause, the same rules of International Law are valid as to what must not be done, and must be done by the belligerents themselves in making war against each other; and as between the belligerents and neutral States. This is so, even if the declaration of war is ipso facto a violation of International Law, as when a belligerent declares war upon a neutral State for refusing passage to its troops, or when a State goes to war in patent violation of its obligations under the Covenant of the League or of the General Treaty for the Renunciation of War. To say that, because such a declaration of war is ipso facto a violation of International Law, it is ‘ inoperative in law and without any judicial significance,’ is erroneous. The rules of International Law apply to war from whatever cause it originates. Oppenheim’s International Law, II Lauterpacht, p.174.”
(vi) The Question of Hostages and Reprisals raised by the Tribunal and its Field of Enquiry Delimited
The Judgment continued:
“The major issues involved in the present case gravitate around the claimed right of the German Armed Forces to take hostages from the innocent civilian population to guarantee the peaceful conduct of the whole of the civilian population and its claimed right to execute hostages, members of the civil population, and captured members of the resistance forces in reprisal for armed attacks by resistance forces, acts of sabotage and injuries committed by unknown persons.”
The Tribunal delimited its field of enquiry as follows:
“We wholly exclude from the following discussions of the subject of hostages the right of one nation to take them, to compel the armed forces of another nation to comply with the rules of war or the right to execute them if the enemy ignores the warning. We limit our discussion to the right to take hostages from the innocent civilian population of occupied territory as a guarantee against attacks by unlawful resistance forces, acts of sabotage and the unlawful acts of unknown persons and the further right to execute them if the unilateral guarantee is violated.
“Neither the Hague Convention of 1907, nor any other conventional law for that matter, says a word about hostages in the sense that we are to use the term in the following discussion. But certain rules of customary law and certain inferences legitimately to be drawn from existing conventional law lay down the rules applicable to the subject of hostages. In former times prominent persons were accepted as hostages as a means of insuring observance of treaties, armistices and other agreements, the performance of which depended on good faith. This practice is now obsolete. Hostages under the alleged modern practice of nations are taken (a) to protect individuals held by the enemy, (b) to force the payment of requisitions, contributions, and the like, and (c) to insure against unlawful acts by enemy forces or people. We are concerned here only with the last provision. That hostages may be taken for this purpose cannot be denied.
“The question of hostages is closely integrated with that of reprisals. A reprisal is a response to an enemy’s violation of the laws of war which would otherwise be a violation on one’s own side. It is a fundamental rule that a reprisal may not exceed the degree of the criminal act it is designed to correct. Where an excess is knowingly indulged, it in turn is criminal and may be punished. Where innocent individuals are seized and punished for a violation of the laws of war which has already occurred, no question of hostages is involved. It is nothing more than the infliction of a reprisal. Throughout the evidence in the present case, we find the term hostage applied where a reprisal only was involved.
“Under the ancient practice of taking hostages they were held responsible for the good faith of the persons who delivered them, even at the price of their lives. This barbarous practice was wholly abandoned by a more enlightened civilization. The idea that an innocent person may be killed for the criminal act of another is abhorrent to every natural law. We condemn the injustice of any such rule as a barbarous relic of ancient times. But it is not our province to write International Law as we would have it-we must apply it as we find it.
“For the purposes of this opinion the term ‘ hostages ’ will be considered as those persons of the civilian population who are taken into custody for the purpose of guaranteeing with their lives the future good conduct of the population of the community from which they were taken. The term ‘ reprisal prisoners ’ will be considered as those . individuals who are taken from the civilian population to be killed in retaliation for offences committed by unknown persons within the occupied area.”
(vii) The Tribunal’s Opinion on the Question of Hostages
The Judgment then expressed the following opinion:
“ An examination of the available evidence on the subject convinces us that hostages may be taken in order to guarantee the peaceful conduct of the populations of occupied territories and, when certain conditions exist and the necessary preliminaries have been taken, they may, as a last resort, be shot. The taking of hostages is based fundamentally on a theory of collective responsibility. The effect of an occupation is to confer upon the invading force the right of control for the period of the occupation within the limitations and prohibitions of International Law. The inhabitants owe a duty to carry on their ordinary peaceful pursuits and to refrain from all injurious acts toward the troops or in respect to their military operations. The occupant may properly insist upon compliance with regulations necessary to the security of the occupying forces and for the maintenance of law and order. In the accomplishment of this objective, the occupant may, only as a last resort, take and execute hostages.
“Hostages may not be taken or executed as a matter of military expediency. The occupant is required to use every available method to secure order and tranquility before resort may be had to the taking and execution of hostages. Regulations of all kinds must be imposed to secure peace and tranquility before the shooting of hostages may be indulged. These regulations may include one or more of the following measures : (1) the registration of the inhabitants, (2) the possession of passes or identification certificates, (3) the establishment of restricted areas, (4) limitations of movement, (5) the adoption of curfew regulations, (6) the prohibition of assembly, (7) the detention of suspected persons, (8) restrictions on communication, (9) the imposition of restrictions on food supplies, (10) the evacuation of troublesome areas, (11) the levying of monetary contributions, (12) compulsory labour to repair damage from sabotage, (13) the destruction of property in proximity to the place of the crime, and any other regulation not prohibited by International Law that would in all likelihood contribute to the desired result.
“If attacks upon troops and military installations occur regardless of the foregoing precautionary measures and the perpetrators cannot be apprehended, hostages may be taken from the population to deter similar acts in the future provided it can be shown that the population generally is a party to the offence, either actively or passively. Nationality or geographic proximity may under certain circumstances afford a basis for hostage selection, depending upon the circumstances of the situation. This arbitrary basis of selection may be deplored but it cannot be condemned as a violation of International Law, but there must be some connection between the population from whom the hostages are taken and the crime committed. If the act was committed by isolated persons or bands from distant localities without the knowledge or approval of the population or public authorities, and which, therefore, neither the authorities nor the population could have prevented, the basis for the taking of hostages, or the shooting of hostages already taken, does not exist.
“It is essential to a lawful taking of hostages under customary law that proclamation be made, giving the names and addresses of hostages taken, notifying the population that upon the recurrence of stated acts of war treason that the hostages will be shot. The number of hostages shot. must not exceed in severity the offences the shooting is designed to deter. Unless the foregoing requirements are met, the shooting of hostages is in contravention of International Law and is a war crime in itself. Whether such fundamental requirements have been met is a question determinable by court martial proceedings. A military commander may not arbitrarily determine such facts. An order of a military commander for the killing of hostages must be bottomed upon the finding of a competent court martial that necessary conditions exist and all preliminary steps have been taken which are essential to the issuance of a valid order. The taking of the lives of innocent persons arrested as hostages is a very serious step. The right to kill hostages may be lawfully exercised only after a meticulous compliance with the foregoing safeguards against vindictive or whimsical orders of military commanders.”
(viii) The Tribunal’s Opinion Regarding the Taking and Killing of "Reprisal Prisoners”
The Tribunal continued as follows:
“We are also concerned with the subject of reprisals and the detention of
members of the civilian population for the purpose of using them as the victims
of subsequent reprisal measures. The most common reason for holding them is for
the general purpose of securing the good behaviour and obedience of the civil
population in occupied territory. The taking of reprisals against the civilian
population by killing members thereof in retaliation for hostile acts against
the armed forces or military operations of the occupant seems to have been
“In two major wars within the last thirty years,
“International law is prohibitive law and no conventional prohibitions have been invoked to outlaw this barbarous practice. The extent to which the practice has been employed by the Germans exceeds the most elementary notions of humanity and justice. They invoke the plea of military necessity, a term which they confuse with convenience and strategical interests. Where legality and expediency have coincided, no fault can be found in so far as International Law is concerned. But where legality of action is absent, the shooting of innocent members of the population as a measure of reprisal is not only criminal but it has the effect of destroying the basic relationship between the occupant and the population. Such a condition can progressively degenerate into a reign of terror. Unlawful reprisals may bring on counter reprisals and create an endless cycle productive of chaos and crime. To prevent a distortion of the right into a barbarous method of repression, International Law provides a protective mantle against the abuse of the right.
“Generally it can be said that the taking of reprisal prisoners, as well as the taking of hostages, for the purpose of controlling the population involves a previous proclamation that if a certain type of act is committed, a certain number of reprisal prisoners will be shot if the perpetrators cannot be found. If the perpetrators are apprehended, there is no right to kill either hostages or reprisal prisoners.
“As in the case of the taking of hostages, reprisal prisoners may not be shot unless it can be shown that the population, as a whole is a party to the offence, either actively or passively. In other words, members of the population of one community cannot properly be shot in reprisal for an act against the occupation forces committed at some other place. To permit such a practice would conflict with the basic theory that sustains the practice in that there would be no deterrent effect upon the community where the offence was committed. Neither may the shooting of innocent members of the population as a reprisal measure exceed in severity the unlawful acts it is designed to correct. Excessive reprisals are in themselves criminal and guilt attaches to the persons responsible for their commission.
“It is a fundamental rule of justice that the lives of persons may not be arbitrarily taken. A fair trial before a judicial body affords the surest protection against arbitrary, vindictive or whimsical application of the right to shoot human beings in reprisal. It is a rule of International Law, based on these fundamental concepts of justice and the rights of individuals, that the lives of persons may not be taken in reprisal in the absence of a judicial finding that the necessary conditions exist and the essential steps have been taken to give validity to such action. The possibility is great, of course, that such judicial proceedings may become ritualistic and superficial when conducted in wartime but it appears to be the best available safeguard against cruelty and injustice. Judicial responsibility ordinarily restrains impetuous action and permits principles of justice and right to assert their humanitarian qualities. We have no hesitancy in holding that the killing of members of the population in reprisal without judicial sanction is itself unlawful. The only exception to this rule is where it appears that the necessity for the reprisal requires immediate reprisal action to accomplish the desired purpose and which would be otherwise defeated by the invocation of judicial inquiry. Unless the necessity for immediate action is affirmatively shown, the execution of hostages or reprisal prisoners without a judicial hearing is unlawful. The judicial proceeding not only affords a measure of protection to innocent members of the population, but it offers, if fairly and impartially conducted, a measure of protection to the military commander, charged with making the final decision.
“ It cannot be denied that the shooting of hostages or reprisal prisoners may under certain circumstances be justified as a last resort in procuring peace and tranquility in occupied territory and has the effect of strengthening the position of a law abiding occupant. The fact that the practice has been tortured beyond recognition by illegal and inhuman application cannot justify its prohibition by judicial fiat.”
The following remarks on the Keitl Order of 16th September, 1941, and its outcome will serve to illustrate the attitude taken by the Tribunal to the specific instances of reprisals which came before it :
“It is urged that the order was worded in such a way that literal compliance was not required. We do not deem it material whether the order was mandatory or directory. In either event, it authorised the killing of hostages and reprisal prisoners to an extent not permitted by International Law. An order to take reprisals at an arbitrarily fixed ratio under any and all circumstances constitutes a violation of International Law. Such an order appears to have been made more for purposes of revenge than as a deterrent to future illegal acts which would vary in degree in each particular instance. An order, directory or mandatory, which fixes a ratio for the killing of hostages or reprisal prisoners, or requires the killing of hostages or reprisal prisoners for every act committed against the occupation forces is unlawful. International Law places no such unrestrained and unlimited power in the hands of the commanding general of occupied territory. The reprisals taken under the authority of this order were clearly excessive. The shooting of 100 innocent persons for each German soldier killed at Topola, for instance, cannot be justified on any theory by the record. There is no evidence that the population of Topola were in any manner responsible for the act. In fact, the record shows that the responsible persons were an armed and officered band of partisans. There is nothing to infer that the population of Topola supported or shielded the guilty persons. Neither does the record show that the population had previously conducted themselves in such a manner as to have been subjected to previous reprisal actions. An order to shoot 100 persons for each German soldier killed under such circumstances is not only excessive but wholly unwarranted. We conclude that the reprisal measure taken for the ambushing and killing of 22 German soldiers at Topola were excessive and therefore criminal. It is urged that only 449 persons were actually shot in reprisal for the Topola incident. The evidence does not conclusively establish the shooting of more than 449 persons although it indicates the killing of a much greater number. But the killing of 20 reprisal prisoners for each German soldier killed was not warranted under the circumstances shown, Whether the number of innocent persons killed was 2,200 or 449, the killing was wholly unjustified and unlawful.
“The reprisal measures taken for the Topola incident were unlawful for
another reason. The reprisal prisoners killed were not taken from the community
where the attack on the German soldiers occurred. The record shows that
805 Jews and Gypsies were taken from the collection camp at Sabac and the rest
from the Jewish transit camp at
(ix) The Plea of Military Necessity
The Judgment dealt with this plea as follows:
“Military necessity has been invoked by the defendants as justifying the killing of innocent members of the population and the destruction of villages and towns in the occupied territory. Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money. In general, it sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war ; it allows the capturing of armed enemies and others of peculiar danger, but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of International Law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. It is lawful to destroy railways, lines of communication or any other property that might be utilised by the enemy. Private homes and churches even may be destroyed if necessary for military operations. It does not admit of wanton devastation of a district or the wilful infliction of suffering upon its inhabitants for the sake of suffering alone. . . .
“It is apparent from the evidence of these defendants that they considered military necessity, a matter to be determined by them, a complete justification of their acts. We do not concur in the view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules. International Law is prohibitive law. Articles 46, 47 and 50 of the Hague Regulations of 1907 make no such exceptions to its enforcement. The rights of the innocent population therein set forth must be respected even if military necessity or expediency decree otherwise.”
At a later point, in a section of its Judgment dealing with the individual acused, the Tribunal made the following remarks regarding List :
“The record shows that after the capitulation of
Of the accused Rendulic, however, it was said:
“The defendant is charged with the wanton destruction of private and public
property in the
“The evidence shows that in the spring of 1944,
“On 3rd September, 1944,
“The evidence shows that the Russians had very excellent troops in pursuit
of the Germans. Two or three land routes were open to them as well as landings
by sea behind the German lines. The defendant knew that ships were available to
the Russians to make these landings and that the land routes were available to
them. The information obtained concerning the intentions of the Russians was
limited. The extreme cold and the short days made air reconnaissance almost
impossible. It was with this situation confronting him that he carried out the '
scorched earth ' policy in the Norwegian
“The record shows that the Germans removed the population from Finnmark, at least all except those who evaded the measures taken for their evacuation. The evidence does not indicate any loss of life directly due to the evacuation. Villages were destroyed. Isolated habitations met a similar fate. Bridges and highways were blasted. Communication lines were destroyed. Port installations were wrecked. A complete destruction of all housing, communication and transport facilities was had. This was not only true along the coast and highways, but in the interior sections as well. The destruction was as complete as an efficient army could do it. Three years after the completion of the operation, the extent of the devastation was discernible to the eye. While the Russians did not follow up the retreat to the extent anticipated, there are physical evidences that they were expected to do so. Gun emplacements, fox-holes, and other defence installations are still perceptible in the territory. In other words there are mute evidences that an attack was anticipated.
“There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal. After giving careful consideration to all the evidence on the subject, we are convinced that the defendant cannot be held criminally responsible although when viewed in retrospect, the danger did not actually exist.
“The Hague Regulations prohibited ‘ The destruction or seizure of enemy
property except in cases where this destruction or seizure is urgently required
by the necessities of war.’ Article 23 (g). The Hague Regulations are
mandatory provisions of International Law. The prohibitions therein
contained control and are superior to military necessities of the most urgent
nature except where the Regulations themselves specifically provide the
contrary. The destructions of public and private property by retreating military
forces which would give aid and comfort to the enemy, may constitute a situation
coming within the exceptions contained in Article 23 (g). We are not called upon
to determine whether urgent military necessity for the devastation and
destruction in the
(x) The Extent of Responsibility of the Commanding General of Occupied Territory
On this point the Tribunal expressed its opinion in these words :
“ We have herein before pointed out that it is the duty of the commanding
general in occupied territory to maintain peace and order, punish crime and
protect lives and property. This duty extends not only to the inhabitants of the
occupied territory but to his own troops and auxiliaries as well. The commanding
general of occupied territory having executive authority as well as military
command, will not be heard to say that a unit taking unlawful orders from
someone other than himself, was responsible for the crime and that he is thereby
absolved from responsibility. It is here claimed, for example, that certain SS
units under the direct command of Heinrich Himmler committed certain of the
atrocities herein charged without the knowledge, consent or approval of these
defendants. But this cannot be a defence for the commanding general of occupied
territory. The duty and responsibility for maintaining peace and order, and the
prevention of crime rests upon the commanding general. He cannot ignore obvious
facts and plead ignorance as a defence. The fact is that the reports of
subordinate units almost without exception advised these defendants of the
policy of terrorism and intimidation being carried out by units in the field.
They requisitioned food supplies in excess of their local need and caused it to
be shipped to
“ It is not, however, an exclusive remedy. If it were, the persons responsible would seldom, if ever, be brought to account. The only punishment would fall upon the reprisal victims who are usually innocent of wrong-doing. The prohibitions of the Hague Regulations of 1907 contemplate no such system of retribution. Those responsible for such crimes by ordering or authorising their commission, or by a failure to take effective steps to prevent their execution or recurrence, must be held to account if International Law is to be anything more than an ethical code, barren of any practical coercive deterrent.”
A little later, the Tribunal made the following ruling:
“An army commander will not ordinarily be permitted to deny knowledge of reports received at his headquarters, they being sent there for his special benefit. (Footnote 1: Of the accused Kuntze, the Tribunal later ruled that : “ The collection of Jews and Gypsies in collection or concentration camps merely because they are such, is likewise criminal. The defendant claimed that he never heard of any such action against Jews or Gypsies in the Southeast. The reports in the record which were sent to him in his capacity as Wehrmacht Commander Southeast, charge him with knowledge of these acts. He cannot close his eyes to what is going on around him and claim immunity from punishment because he did not know that which he is obliged to know.”) Neither will he ordinarily be permitted to deny knowledge of happenings within the area of his command while he is present therein. It would strain the credulity of the Tribunal to believe that a high ranking military commander would permit himself to get out of touch with current happenings in the area of his command during war time. No doubt such occurrences result occasionally because of unexpected contingencies, but they are the unusual. With reference to statements that responsibility is lacking where temporary absence from headquarters for any cause is shown, the general rule to be applied is dual in character. As to events occurring in his absence resulting from orders, directions or a general prescribed policy formulated by him, a military commander will be held responsible in the absence of special circumstances. As to events, emergent in nature and presenting matters for original decision, such commander will not ordinarily be held responsible unless he approved of the action taken when it came to his knowledge.
“The matter of subordination of units as a basis of fixing criminal responsibility becomes important in the case of a military commander having solely a tactical command. But as to the commanding general of occupied territory who is charged with maintaining peace and order, punishing crime and protecting lives and property, subordinations are relatively unimportant. His responsibility is general and not limited to a control of units directly under his command. Subordinate commanders in occupied territory are similarly responsible to the extent that executive authority has been delegated to them.”
Elsewhere the Judgment laid down that a commanding general “ is charged with notice of occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprise him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defence. Absence from headquarters cannot and does not relieve one from responsibility for acts committed in accordance with a policy he instituted or in which he acquiesced. He may not, of course, be charged with acts committed on the order of someone else which is outside the basic orders which he has issued. If time permits he is required to rescind such illegal orders, otherwise he is required to take steps to prevent a recurrence of their issue.
“Want of knowledge of the contents of reports made to him is not a defence. Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf.
“The reports made to the defendant List as Wehrmacht Commander Southeast charge him with notice of the unlawful killing of thousands of innocent people in reprisal for acts of unknown members of the population who were not lawfully subject to such punishment. Not once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts. His failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence, constitutes a serious breach of duty and imposes criminal responsibility.”
(xi) The Legal Position of Italian Troops who Resisted German Demands for Surrender
In the course of its judgment, the Tribunal discussed the position of the Italian officers who were executed after resisting the Germans at Split.(Footnote 1: See p.45.)
“ It is the contention of the defendant Rendulic that the surrender of the
IXth Italian Army, commanded by General D’Almazzo, brought about ipso
facto the surrender of the Bergamo Division in
“It must be observed that
(xii) The Legal Status of the “ Croatian Government.”
In dealing with the case against the accused von Leyser, formerly commander
of the XXIst German Mountain Corps,(Footnote 1: See p. 45.) the Tribunal
made the following remarks concerning the so-called independent state of
“ The reprisal practice as carried out in this corps area and the alleged
deportation of inhabitants for slave labour is so interwoven with the powers of
the alleged independent state of
“The Croatian government, thus established, proceeded to organise a
national army, the troops of which are referred to in the record as Domobrans.
Certain Ustasha units were also trained and used. The Ustasha in
“It is further shown by the evidence that all matters of liaison were
handled through the German Plenipotentiary General. It is evident that requests
of the Germans were invariably acceded to by the Croatian government. It is
quite evident that the answers to such requests were dictated by the German
Plenipotentiary General. Whatever the form or the name given, the Croatian
government during the German war-time occupation was a satellite under the
control of the occupying power. It dissolved as quickly after the withdrawal of
the Germans as it had arisen upon their occupation. Under such circumstances,
the acts of the Croatian government were the acts of the occupation power.
Logic and reason dictate that the occupant could not lawfully do indirectly that
which it could not do directly. The true facts must control irrespective of the
form with which they may have been camouflaged. Even International Law
will cut through form to find the facts to which its rules will be applied. The
conclusion reached is in accord with previous pronouncements of International
Law that an occupying power is not the sovereign power although it is entitled
to perform some acts of sovereignty. The Croatian government could exist only at
the sufferance of the occupant. During the occupation, the German Military
Government was supreme or its status as a military occupant of a belligerent
enemy nation did not exist. Other than the rights of occupation conferred by
International Law, no lawful authority could be exercised by the Germans. Hence,
they had no legal right to create an independent sovereign state during the
progress of the war. They could set up such a provisional government as was
necessary to accomplish the purposes of the occupation but further than that
they could not legally go. We are of the view that
Of the accused’s claim that the disposition of the men captured as a result of “ Operation Panther ” (Footnote 2: See p.46.) was a matter for the “ Croatian Government and not his concern,” the Tribunal ruled as follows :
“We point out that the Croatian government was a satellite government and
whatever was done by them was done for the Germans. The captured men fit
for military service were turned over to the Croat administration and were
undoubtedly conscripted into the Domobrans, the Waffen Ustasha, the Croat units
of the Wehrmacht or shipped to
(xiii) General Remarks on the Mitigation of Punishment
Towards the end of its Judgment, the Tribunal made the following remark regarding the circumstances which might be considered in mitigation of punishment :
“Throughout the course of this opinion we have had occasion to refer to matters properly to be considered in mitigation of punishment. The degree of mitigation depends upon many factors including the nature of the crime, the age and experience of the person to whom it applies, the motives for the criminal act, the circumstances under which the crime was committed and the provocation, if any, that contributed to its commission. It must be observed, however, that mitigation of punishment does not in any sense of the word reduce the degree of the crime. It is more a matter of grace than of defence. In other words, the punishment assessed is not a proper criterion to be considered in evaluating the findings of the Court with reference to the degree of magnitude of the crime.”
In dealing with the evidence against Dehner, the Tribunal said:
“There is much that can be said, however, in mitigation of the punishment to be assessed from the standpoint of the defendant. Superior orders existed which directed the policy to be pursued in dealing with the killing of hostages and reprisal prisoners. Such superior orders were known by his subordinate commanders, a situation that made it difficult for him to act. That the defendant recognised certain injustices and irregularities and attempted to correct them is evident from the record. . . . Such examples of conscientious efforts to comply with correct procedure warrant mitigation of the punishment.”
During the course of its Judgment, the Tribunal found the accused not guilty of certain of the allegations made against them :
“Much has been said about the participation of these defendants in a
preconceived plan to decimate and destroy the populations of
“Neither will the evidence sustain a finding that these defendants
participated in a preconceived plan to destroy the economy of the Balkans.
Naturally there was a disruption of the economy of these countries but such only
as could be expected by a military occupation. There were unlawful acts
that had the effect of damaging the economy of
Of List the Tribunal said: “The evidence shows that after the capitulation
of the armies of
Kuntze and Rendulic were found guilty on Counts One, Three and Four.
Of Foertsch, the Tribunal concluded that “ the nature of the position of the defendant Foertsch as Chief of Staff, his entire want of command authority in the field, his attempts to procure the rescission of certain unlawful orders and the mitigation of others, as well as the want of direct evidence placing responsibility upon him, leads us to conclude that the Prosecution has failed to make a case against the defendant. No overt act from which a criminal intent could be inferred, has been established.
“That he had knowledge of the doing of acts which we have herein held to be unlawful under International Law cannot be doubted. It is not enough to say that he must have been a guilty participant. It must be shown by some responsible act that he was. Many of these acts were committed by organisations over which the Wehrmacht, with the exception of the commanding general, had no control at all. Many others were carried out through regular channels over his voiced objection or passive resistance. The evidence fails to show the commission of an unlawful act which was the result of any action, affirmative or, passive, on the part of this defendant. His mere knowledge of the happening of unlawful acts does not meet the requirements of criminal law. He must be one who orders, abets or takes a consenting part in the crime. We cannot say that the defendant met the foregoing requirements as to participation. We are required to say therefore that the evidence does not show beyond a reasonable doubt that the defendant Foertsch is guilty on any of the counts charged.”
Von Geitner was also found not guilty, on the grounds of his not having been shown to have taken any consenting part in illegal acts, “ coupled with the nature and responsibilities of his position and the want of authority on his part to prevent the execution of the unlawful acts charged.”
Dehner was held “criminally responsible for permitting or tolerating ” the practice of illegally killing hostages and reprisal prisoners “ on the part of his subordinate commanders. ” He was found guilty on Count One of the Indictment.
Von Leyser was found guilty on Counts Three and Four, Felmy on Counts One and Two, Lanz on Counts One and Three, and Speidel on Count One.
List and Kuntze were sentenced to life imprisonment, Rendulic and Speidel were sentenced to imprisonment for twenty years, Felmy for fifteen years, Lanz for twelve years, Leyser for ten years and Dehner for seven years.