States V. Wilhelm von Leeb et al, 12 LRTWC 1 at 59 (1948)
THE JUDGMENT OF THE TRIBUNAL
The Tribunal in its Judgment summarized the progress of the trial and set out a very full summary of the evidence in the case. It also touched upon many legal matters, its words on which, along with its findings, are reproduced in the following pages
(i) The Basic Law Applying to the Case.
Under a heading : The Basic Law and Law of the Case, the Tribunal set out two sets of material headed respectively Control Council Law No. 10 and International Treaties. The paragraphs appearing under the first sub-heading begins :
"The preamble to Control Council Law No. 10 reads as follows :
‘ In order to give effect to the terms of the Moscow Declaration of 30th October, 1943, and the London Agreement of 8th August, 1945, and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the Inter-national Military Tribunal, the Control Council enacts as follows :
‘ The Moscow Declaration of 30th October, 1943, "
Concerning Responsibility of Hitlerites for Committed Atrocities " and the
London Agreement of 8th August, 1945, " Concerning Prosecution
and Punishment of Major War Criminals of the European Axis " are made
integral parts of this law. Adherence to the provisions of the London Agreement
by any of the United Nations, as provided for in Article V of that Agreement,
shall not entitle such nation to participate or interfere in the operation of
this Law within the Control Council area of authority in
‘ 1. Each of the following acts is recognized as a crime :
‘ (a) Crimes against Peace. Initiation of invasions of other countries and wars of aggression in violation of International Laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.
‘ (b) War Crimes. Atrocities or offences against persons or property constituting violations of the laws or customs of war, including, but not limited to, murder, ill-treatment or deportation to slave labour or for any other purpose, of civilian population from occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property ; wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
‘ (c) Crimes against Humanity. Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious ground whether or not in violation of the domestic laws of the country where perpetrated.
‘ (d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.
‘ 2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal, or (b) was an accessory to the commission of any such crime or ordered or abetted the same, or (c) took a consenting part therein, or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime, or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country.’ "
The Tribunal then quoted the entire section headed " The Law of the Charter " from the Judgment of the International Military Tribunal, (Footnote: See British Command Paper Cmd. 6964, pp. 38-42) in which the latter is mainly concerned to show that its Charter was " the expression of International Law existing at the time of its creation " and that " International Law imposes duties and liabilities upon individuals as well as upon States," in consequence of which the former may be made criminally responsible for their acts ; the International Military Tribunal took special pains to show that the provisions of the Charter as to crimes against peace did not violate the principle nullem crimen sine Iege [no crime without law-editor], nulla poena sine lege [no punishment without law-editor], even if that maxim were deemed applicable.
The Tribunal expressed the view that:
"This reasoning applies also to Control Council Law No. 10. The same authority creating the London Agreement created this Control Council Law. As was said by Tribunal 111 in the Justice Case :
‘ It can scarcely be argued that a Court which owes its existence and jurisdiction solely to the provisions of a given statute could assume to exercise that jurisdiction and then, in the exercise thereof, declare invalid the act to which it owes its existence. Except as an aid to construction we cannot and need not go behind the statute.’
" The Charter, supplemented by Control Council Law No. 10, is not an arbitrary exercise of power, but ' it is the expression of International Law existing at the time of its creation : and to that extent is itself a contribution to International Law.’ (Emphasis supplied, Judgment, IMT, supra.) As a matter of interest to students we might point out that this general principle is sustained by the following extract from Grotius, written in 1625 :
‘ It is proper also to observe that Kings and those who are possessed of
sovereign power have a right to exact punishment not only for injuries affecting
immediately themselves or their own subjects, but for gross violations of the
law of nature and of nations, done to other states and subjects.’ (Grotius,
The Rights of War and Peace, translated from the Latin by A. C. Campbell,
A.M. (1901) M. Walter Dume, publisher, Washington and
" We also refer to an article from the Manchester Guardian of 28th September, 1946, containing a .description of the trial of Sir Peter of Hagenbach held at Breisach in 1474. The charges against him were analogous to ‘Crimes against Humanity ’ in modern concept. He was convicted. "
However, these citations are of academic interest only, merely given to show the soundness of the Judgment of the IMT. We think it may be said the basic law before mentioned simply declared, developed, and implemented International Common Law.
" By so construing it, there is eliminated the assault made upon it as being an ex post facto enactment.
" Our view is fortified by the judgment rendered in Case No. 7, U.S. vs. Wilhelm List, et al, where (p. 10434) it is said:
‘ 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 recognized customs which belligerents were bound to obey. Anything in excess of existing International Law therein contained is a utilization of power and not of law. It is true, of course, that courts authorized to hear such cases were not established nor the penalties to be imposed for the violations set forth. But this is not fatal to their validity. The acts prohibited are without deterrent effect unless they are punishable as crimes.’ (Emphasis supplied.) . . .
" Many of the questions in the IMT case are presented in this case. The
same unlawful orders, acts, and practices are involved ; only the defendants are
different. Hitler was the very centre of vast expanding concentric rings of
influence that touched every person in
" The IMT Judgment contains an elaborate account of Hitler’s rise to
power, the plans and acts of aggression, and the barbarities and crimes
perpetrated upon the armed forces and civilians of the countries with which
Under the second subheading, INTERNATIONAL TREATIES, the Tribunal quoted the
section of the Judgment of the International Military Tribunal which appears
immediately before that last quoted, and which is headed " Violations of
International Treaties." Here the latter court, having pointed out that
" The Charter defines as a crime the planning or waging of war that is a
war of aggression or a war in violation of international treaties, refers
to violations by
(ii) Objections During the Trial
.Under this heading the Tribunal made the following remarks :
" The objection has been raised that this Tribunal is not a proper forum in which to try the defendants for the crimes charged. It is said that they were prisoners of war and that they are subject to trial only by a general court-martial. We find no merit in such contention.
" There is no doubt of the criminality of the acts with which the defendants are charged. They are based on violations of International Law well recognized and existing at the time of their commission. True no court had been set up for the trial of violations of International Law. A State having enacted a criminal law may set up one or any number of courts and vest each with jurisdiction to try an offender against its internal laws. Even after the crime is charged to have been committed we know of no principle of justice that would give the defendant a vested right to a trial only in an existing forum. In the exercise of its sovereignty the State has the right to set up a Tribunal at any time it sees fit and confer jurisdiction on it to try violators of its criminal laws. The only obligation a sovereign State owes to the violator of one of its laws is to give him a fair trial in a forum where he may have counsel to represent him-where he may produce witnesses in his behalf and where he may speak in his own defence. Similarly, a defendant charged with a violation of International Law is in no sense done an injustice if he is accorded the same rights and privileges. The defendants in this case have been accorded those rights and privileges.
"As regards the contention that the defendants are prisoners of war and
that the Geneva Convention, Article 63, requires that a prisoner of war be tried
by a general court-martial we call attention to the fact that this provision
referred to is found in an international agreement, that was entered into and to
which both the United States and Germany were signatories, to protect prisoners
of war after they acquire such status and not to extend to them any special
rights or prerogatives with respect to crimes they may have committed before
acquiring a prisoner-of-war status. Such is the reasoning of the Yamashita Case,
" Article 63 of the Geneva Convention provides :
‘ Sentence may be pronounced against a prisoner of war only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining power.’
Therefore, say defence counsel, the defendants must be tried by a general
court-martial since the defendants were prisoners of war taken by the United
States and members in the armed forces of the United States committing crimes
are tryable by court-martial. But the trial of men in the military forces of the
" Nor do we think it necessary that defendants be discharged as prisoners of war before being brought to trial. Certainly if a man is arrested for violating a municipal traffic ordinance which subjects him only to a civil penalty in a magistrate’s court and while he is in custody it is discovered that the day before he committed a murder, there is no violation of any principle of justice in holding him in custody and surrendering him to the officers of a court that has competency to try him for murder.
" We are not deciding whether the
" The crimes including the war crimes charged against the defendants are for violations of International Criminal Law. This Tribunal by Control Council Law No. 10 is vested with authority to try defendants for the crimes charged. That such jurisdiction possibly may be exercised by another military court also is of no consequence. If two courts have concurrent jurisdiction to try the same case the first court that exercises jurisdiction may properly dispose of the case.
" The IMT said :
‘ The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive, and binding upon the , Tribunal. . . .
‘ The Tribunal is of course bound by the Charter and the definition which it gives of war crimes and crimes against humanity ’ (Trial of the Major War Criminals, Vol. I, pp. 218, 253).
" What was held by the IMT with respect to the London Agreement and Charter, the basic laws under which it functioned, is authority for a similar holding by this Tribunal with respect to the basic law under which it was set up and under which it functions.
" We deem it unnecessary to discuss the objection that Control Council Law No. 10 is in violation of the maxim nullem crimen sine lege ; nulla poena sine Iege. We find it without merit. It has been passed upon so many times by the Nuremberg Tribunals and held without merit, that further comment here is unnecessary. (Footnote I: See especially Vol. IX, pp. 32-5)
" The further objection was made that one of the nations, namely the
" Various of the defendants by way of objection or motions have raised the question of the sufficiency of the evidence on the part of the prosecution to make out a prima facie case of the guilt of the respective defendants. Numbers of these motions were ruled upon during the course of the trial. As to such motions not heretofore ruled upon, the same are denied, inasmuch as the questions raised by such motions are involved in the final determination of the guilt or the innocence of the defendants."
(iii) The Dismissal of the Conspiracy Count
The Tribunal dealt with Count IV of the Indictment in the following words :
" In view of the conclusions presently to be announced, we think it proper now to dispose of this count.
" We have heretofore set out paragraph 2 of Article II of Control Council Law No. 10, which provides that any person who was an accessory to the commission. of Crimes against Peace, War Crimes, or Crimes against Humanity, as defined in said law by Article II, Sec. 1, paragraphs (a), (b), and (c), or who ordered or abetted such offence, or took a consenting part therein, or who was connected with any plans or enterprises involving its commission should be deemed guilty of the commission of said offences. It is difficult to see, as the facts have developed in this case, how a conspiracy charge can be of the slightest aid to the prosecution. If the defendants committed the acts charged in this conspiracy count, they are guilty of crimes charged under Counts I, II, and III and are punishable as principals.
" The conspiracy count has not resulted in the introduction of any evidence that is not admissible under the other counts, nor does it, as the evidence has developed in this case, impose any criminality not attached to a violation under such preceding counts.
" Inasmuch as we hold that under the facts of this case no separate substantive offence is shown under Count IV, we strike it as tendering no issue not contained in the preceding counts, and proceed to determine the guilt or innocence of the defendants under Counts I, II, and III of the Indictment.
" In so striking Count IV, we have reference only to the facts as they have been presented in this case and express no opinion as to whether in all cases and under all factual developments the charge of conspiracy should be disregarded. Such determination should depend upon the proof adduced in each case. (Footnote 1: See also a decision of a joint meeting of the Tribunals on the question of conspiracy to commit War Crimes and Crimes against Humanity viewed as a separate offence, reported in Vol. VI of these Reports, pp. 5-6 and 104-10)
" In this connection we desire to advert to the last paragraph of Section 2, Article II, Control Council Law No. 10, viz., ‘ or (f) with reference to paragraph 1 (a) if he held a high political, civil, or military (including General Staff) position . . . or held high position in the financial, industrial or economic life ’ in Germany, such person would be guilty under paragraph 1 (a) defining Crimes against Peace. (Footnote 2: For the complete text of Article 11 (2), see p. 60)
" The prosecution does not undertake to fix liability upon this basis and we need not notice it further than to observe that we may draw from any known facts such inferences as we deem they warrant."
(iv) Count I of the Indictment-Aggressive War : Finding of Not Guilty
The Tribunal pointed out that : " Count I of the Indictment, heretofore set out, charges the defendants with Crimes against Peace." The Judgment in dealing with this count, continues as follows :
" Before seeking to determine the law applicable it is necessary to determine with certainty the action which the defendants are alleged to have taken that constitutes the crime. As a preliminary to that we deem it necessary to give a brief consideration to the nature and characteristics of war. We need not attempt a definition that is all inclusive and all exclusive. It is sufficient to say that war is the exerting of violence by one state or politically organized body against another. In other words, it is the implementation of a political policy by means of violence. Wars are contests by force between political units but the policy that brings about their initiation is made and the actual waging of them is done by individuals. What we have said thus far is equally as applicable to a just as to an unjust war, to the initiation of an aggressive and, therefore, criminal war as to the waging of defensive and, therefore, legitimate war against criminal aggression. The point we stress is that war activity is the implementation of a predetermined national policy.
" Likewise, an invasion of one state by another is the implementation of the national policy of the invading state by force even though the invaded state, due to fear or a sense of the futility of resistance in the face of superior force, adopts a policy of non-resistance and thus prevents the occurrence of any actual combat.
" In the light of this general characterization and definition of war and invasions we now consider the charge contained in the Indictment. The essence of the charge is participation in the initiation of aggressive invasions and in the planning, preparation and waging of aggressive wars. The remaining parts of paragraph 1 are merely a statement of particular actions which are sufficient to constitute a commission of the crime charged. Paragraph 2 charges that the defendants were principals, or accessories to, or were in other ways involved in, the commission of the previously charged Crimes against Peace. These are charges as to the nature of their relationship to the crime otherwise charged in the Indictment, and add no new element to the criminality charged in paragraph 1. The reference in paragraph 2 to the high military positions formerly held by the defendants has relevance in the Indictment and in the law (Control Council Law No. 10, Art. II, Sec. 2), not to show or charge additional Crimes against Peace, but to show what persons may be included and what persons may not be excluded from being charged and convicted of the offence set forth in Sec. la.
"The prosecution does not seek, or contend that the law authorizes, a conviction of the defendants simply by reason of their positions as shown by the evidence, but it contends only that such positions may be considered by the Tribunal with all other evidence in the case for such light as they may shed on the personal guilt or innocence of the individual defendants. The prosecution does contend, and we think the contention sound, that the defendants are not relieved of responsibility for action which would be criminal in one who held no military position, simply by reason of their military positions. This is the clear holding of the Judgment of the IMT, and is so provided in Control Council Law No. 10, Art. II, Sec. 4a.
"The initiation of war or an invasion is a unilateral operation. When war is formally declared or the first shot is fired the initiation of the war has ended and from then on there is a waging of war between the two adversaries. Whether a war be lawful, or aggressive and therefore unlawful under International Law, is and can be determined only from a consideration of the factors that entered into its initiation. In the intent and purpose for which it is planned, prepared, initiated and waged is to be found its lawfulness or unlawfulness.
"As we have pointed out, war whether it be lawful or unlawful is the implementation of a national policy. If the policy under which it is initiated is criminal in its intent and purpose it is so because the individuals at the policy-making level had a criminal intent and purpose in determining the policy. If war is the means by which the criminal objective is to be attained then the waging of the war is but an implementation of the policy, and the criminality which attaches to the waging of an aggressive war should be confined to those who participate in it at the policy level.
" This does not mean that the Tribunal subscribes to the contention made in this trial that since Hitler was the Dictator of the Third Reich and that he was supreme in both the civil and military fields he alone must bear criminal responsibility for political and military policies. No matter how absolute his authority, Hitler alone could not formulate a policy of aggressive war and alone implement that policy by preparing, planning, and waging such a war. Somewhere between the Dictator and Supreme Commander of the Military Forces of the nation and the common soldier is the boundary between the criminal and the excusable participation in the waging of an aggressive war by an individual engaged in it. Control Council Law No. 10 does not definitely draw such a line. It points out in Sec. 2 of Article II certain fact situations and established relations that are or may be sufficient to constitute guilt and sets forth certain categories of activity that do not establish immunity from criminality. Since there has been no other prosecution under Control Council Law No. 10 with defendants in the same category as those in this case, no such definite line has been judicially drawn. This Tribunal is not required to fix a general rule but only to determine the guilt or innocence of the present defendants.
" The Judgment of the IMT held that (page 48) :
‘ The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in view of the Tribunal, as will be shown, it is the expression of International Law existing at the time of its creation ; and to that extent is itself a contribution to International Law.’
" We hold that Control Council Law No. 10 likewise is but an expression of International Law existing at the time of its creation. We cannot therefore construe it as extending the International Common Law as it existed at the time of the Charter to add thereto any new element of criminality, for so to do would give it an ex post facto effect which we do not construe it to have intended. Moreover, that this was not intended is indicated by the fact that the London Charter of 10th August, 1945, is made an integral part of the Control Council Law.
"Since International Common Law grows out of the common reactions and the composite thinking with respect to recurring situations by the various states composing the family of nations, it is pertinent to consider the general attitude of the citizens of states with respect to their military commanders and their obligations when their nations plan, prepare for and initiate or engage in war.
"While it is undoubtedly true that International Common Law in case of conflict with State Law takes precedence over it and while it is equally true that absolute unanimity among all the states in the family of nations is not required to bring an International Common Law into being, it is scarcely a tenable proposition that International Common Law will run counter to the consensus within any considerable number of nations.
"Furthermore, we must not confuse idealistic objectives with realities.
The world has not arrived at a state of civilization such that it can dispense
with fleets, armies, and air forces, nor has it arrived at a point where it can
safely outlaw war under any and all circumstances and situations. Inasmuch as
all war cannot be considered outlawed then armed forces are lawful
instrumentalities of state, which have internationally legitimate functions. An
unlawful war of aggression connotes of necessity a lawful war of defence against
aggression. There is no general criterion under International Common Law for
determining the extent to which a nation may arm and prepare for war. As long as
there is no aggressive intent, there is no evil inherent in a nation making
itself militarily strong. An example is
"There have been nations that have initiated and waged aggressive wars through long periods of history ; doubtless there are nations still disposed to do so ; and if not, judging in the light of history, there may be nations which to-morrow will be disposed so to do. Furthermore, situations may arise in which the question whether the war is or is not aggressive is doubtful and uncertain. We may safely assume that the general and considered opinions of the people within states--the source from which International Common Law springs--are not such as to hamper or render them impotent to do the things they deem necessary for their national protection.
"We are of the opinion that as in ordinary criminal cases, so in the crime denominated aggressive war, the same elements must all be present to constitute criminality. There first must be actual knowledge that an aggressive war is intended and that if launched it will be an aggressive war. But mere knowledge is not sufficient to make participation even by high-ranking military officers in the war criminal. It requires in addition that the possessor of such knowledge, after he acquires it shall be in a position to shape or influence the policy that brings about its initiation or its continuance after initiation, either by furthering, or by hindering or preventing it. If he then does the former, he becomes criminally responsible; if he does the latter to the extent of his ability, then his action shows the lack of criminal intent with respect to such policy.
"If a defendant did not know that the planning and preparation for invasions and wars in which he was involved were concrete plans and preparations for aggressive wars and for wars otherwise in violation of international laws and treaties, then he cannot be guilty of an offence. If, however, after the policy to initiate and wage aggressive wars was formulated, a defendant came into possession of knowledge that the invasions and wars to be waged were aggressive and unlawful, then he will be criminally responsible if he, being on the policy level, could have influenced such policy and failed to do so.
"If and as long as a member of the armed forces does not participate in the preparation, planning, initiating or waging of aggressive war on a policy level, his war activities do not fall under the definition of Crimes against Peace. It is not a person’s rank or status, but his power to shape or influence the policy of his State, which is the relevant issue for determining his criminality under the charge of Crimes against Peace.
"International Law condemns those who, due to their actual power to shape and influence the policy of their nation, prepare for, or lead their country into or in an aggressive war. But we do not find that, at the present stage of development, International Law declares as criminals those below that level who, in the execution of this war policy, act as the instruments of the policy makers. Anybody who is on the policy level and participates in the war policy is liable to punishment. But those under them cannot be punished for the crimes of others. The misdeed of the policy makers is all the greater in as much as they use the great mass of the soldiers and officers to carry out an international crime ; however, the individual soldier or officer below the policy level is but the policy makers’ instrument, finding himself, as he does, under the rigid discipline which is necessary for and peculiar to military organization.
"We do not hesitate to state that it would have been eminently desirable had the Commanders of the German Armed Forces refused to implement the policy of the Third Reich by means of aggressive war. It would have been creditable to them not to contribute to the cataclysmic catastrophe. This would have been the honourable and righteous thing to do; it would have been in the interest of their State. Had they done so they would have served their fatherland and humanity also. But however much their failure is morally reprimandable, we are of the opinion and hold that International Common Law, at the time they so acted, had not developed to the point of making the participation of military officers below the policy-making or policy-influencing level into a criminal offence in and of itself.
"International Law operates as a restriction and limitation on the sovereignty of nations. It may also limit the obligations which individuals owe to their states, and create for them international obligations which are binding upon them to an extent that they must be carried out even if to do so violates a positive law or directive of state. But the limitation which International Common Law imposes on national sovereignty, or on individual obligations, is a limitation self-imposed or imposed by the composite thinking in the international community, for it is by such democratic processes that Common Law comes into being. If there is no generality of opinion among the nations of the world as to a particular restriction on national sovereignty or on the obligations of individuals toward their own state, then there is no International Common Law on such matter.
"By the Kellogg-Briand
Pact the sixty-three signatory nations including
‘. . . persuaded that the time has come when . . . all changes in their relationships with one another should be sought only by pacific means.’
"This is a declaration that from that time forward each of the signatory nations should be deemed to possess and to have the right to exercise all the privileges and powers of a sovereign nation within the limitations of International Law, free from all interference by force on the part of any other nation. As a corollary to this, the changing or attempting to change the international relationships by force of arms is an act of aggression and if the aggression results in war, the war is an aggressive war. It is, therefore, aggressive war that is renounced by the pact. It is aggressive war that is criminal under International Law.
"The crime denounced by the law is the use of war as an instrument of national policy. Those who commit the crime are those who participate at the policy-making level in planning, preparing, or in initiating war. After war is initiated, and is being waged, the policy question then involved becomes one of extending, continuing or discontinuing the war. The crime at this stage likewise must be committed at the policy-making level.
"The making of a national policy is essentially political, though it may require, and of necessity does require, if war is to be one element of that policy, a consideration of matters military as well as matters political.
"It is self evident that national policies are made by men. When men make a policy that is criminal under International Law, they are criminally responsible for so doing. This is the logical and inescapable conclusion.
"The acts of Commanders and Staff Officers below the policy level, in planning campaigns, preparing means for carrying them out, moving against a country on orders and fighting a war after it has been instituted, do not constitute the planning, preparation, initiation and waging of war or the initiation of invasion that International Law denounces as criminal.
"Under the record we find the defendants were not on the policy level, and are not guilty under Count I of the Indictment. With crimes charged to have been committed by them in the manner in which they behaved in the waging of war, we deal in other parts of this Judgment.".
(v) Responsibility of the
Wehrmacht for War Crimes
The Tribunal pointed out that war crimes had been committed by the Wehrmacht
which were "deliberate, gross and continued violations of the customs and
usages of war as well as of
(vi) The Plea of Superior Orders (Footnote 4: See also Vol. V of these Reports, pp. 13-22, Vol. VII, p. 65, Vol. VIII, pp. 90-2, and Vol. X, pp. 174-6)
The Tribunal dealt with this plea as follows:
"Control Council Law No. 10, Art. II, Sets. 4 (a) and 4 (b), provides:
‘ 4 (a) The official position of any person, whether as Head of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.
(b) The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.’
These two paragraphs are clear and definite. They relate to the crimes defined in Control Council Law No. 10, Art. II, Sets. 1 (a), 1 (b), and 1 (c). All of the defendants in this case held official positions in the armed forces of the Third Reich. Hitler from 1938 on was Commander-in-Chief of the Armed Forces and was the Supreme Civil and Military Authority in the Third Reich, whose personal decrees had the force and effect of law. Under such circumstances to recognize as a defence to the crimes set forth in Control Council Law No. 10 that a defendant acted pursuant to the order of his government or of a superior would be in practical effect to say that all the guilt charged in the Indictment was the guilt of Hitler alone because he alone possessed the law-making power of the State and the supreme authority to issue civil and military directives. To recognize such a contention would be to recognize an absurdity.
"It is not necessary to support the provision of Control Council Law No. 10, Art. II, Sets. 4 (a) and (b), by reason, for we are bound by it as one of the basic authorities under which we function as a Judicial Tribunal. Reason is not lacking.
"Inasmuch as one of the reiterated arguments advanced is the injustice of even charging these defendants with being guilty of the crimes set forth in the Indictment, when they were, it is said, merely soldiers and acted under governmental directives and superior orders which they were bound to obey, we shall briefly note what we consider sound reasons for the rejection of such a defence.
"The rejection of the defence of superior orders without its being incorporated in Control Council Law No. 10 that such defence shall not exculpate would follow of necessity from our holding that the acts set forth in Control Council Law No. 10 are criminal not because they are therein set forth as crimes but because they then were crimes under International Common Law. International Common Law must be superior to and, where it conflicts with, take precedence over National Law or directives issued by any national governmental authority. A directive to violate International Criminal Common Law is therefore void and can afford no protection to one who violates such law in reliance on such a directive.
"The purpose and effect of all law, national or international, is to restrict or channelize the action of the citizen or subject. International Law has for its purpose and effect the restricting and channelizing of the action of nations. Since nations are corporate entities, a composite of a multitude of human beings, and since a nation can plan and act only through its agents and representatives, there can be no effective restriction or channelizing of national action except through control of the agents and representatives of the nation, who form its policies and carry them out in action.
"The State being but an inanimate corporate entity or concept, it cannot as such make plans, determine policies, exercise judgment, experience fear or be restrained or deterred from action except through its animate agents and representatives. It would be an utter disregard of reality and but legal shadow-boxing to say that only the State, the inanimate entity, can have guilt, and that no guilt can be attributed to its animate agents who devise and execute its policies. Nor can it be permitted even in a dictatorship that the dictator, absolute though he may be, shall be the scapegoat on whom the sins of all his governmental and military subordinates are wished ; and that, when he is driven into a bunker and presumably destroyed, all the sins and guilt of his subordinates shall be considered to have been destroyed with him.
" The defendants in this case who received obviously criminal orders were placed in a difficult position but servile compliance with orders clearly criminal for fear of some disadvantage or punishment not immediately . threatened cannot be recognized as a defence. To establish the defence of coercion or necessity in the face of danger there must be a showing of circumstances such that a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong. No such situation has been shown in this case.
" Furthermore, it is not a new concept that superior orders are no defence for criminal action. Article 47 of the German Military Penal Code, adopted in 1872, was as follows :
‘ If through the execution of an order pertaining to the service, a penal law is violated, then the superior giving the order is alone responsible. However, the obeying subordinate shall be punished as accomplice (Teilnehmer) :
‘ (1) if he went beyond the order given to him, or
‘ (2) if he knew that the order of the superior concerned an act which aimed at a civil or military crime or offence.’
The amendment of this in 1940 omitted the last two words "to him " in Section 1 above and in Section 2 changed the words, " civil or military crime or offence," to " general or military crime or offence." If this amendment had any effect, it extended rather than restricted the scope of the preceding act.
" It is interesting to note that an article by Goebbels, the Reich Propaganda Minister, which appeared in the Voelkischer Beobachter, the official Nazi publication, on 28th May, 1944, contained the following correct statement of the law :
‘ It is not provided in any military law that a soldier in the case of a despicable crime is exempt from punishment because he passes the responsibility to his superior, especially if the orders of the latter are in evident contradiction to all human morality and every international usage of warfare.’
"Turning to the specific problem of responsibility for passing on illegal orders, the Tribunal said :
"It is urged that a commander becomes responsible for the transmittal in any manner whatsoever of a criminal order. Such a conclusion this Tribunal considers too far reaching. The transmittal through the chain of command constitutes an implementation of an order. Such orders carry the authoritative weight of the superior who issues them and of the subordinate commanders who pass them on for compliance. The mere intermediate administrative function of transmitting an order directed by a superior authority to subordinate units, however, is not considered to amount to such implementation by the commander through whose headquarters such orders pass. Such transmittal is a routine function which in many instances would be handled by the staff of the commander without being called to his attention. The commander is not in a position to screen orders to transmitted. His headquarters, as an implementing agency, has been by-passed by the superior command.
"Furthermore, a distinction must be drawn as to the nature of a criminal order itself. Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders are issued to be carried out. Its discipline is built upon this principle. Without it, no army can be effective and it is certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the State which he serves and which are issued to him are in conformity with International Law.
"Many of the defendants here were field commanders and were charged with heavy responsibilities in active combat. Their legal facilities were limited. They were soldiers-not lawyers. Military commanders in the field with far reaching military responsibilities cannot be charged under International Law with criminal participation in issuing orders which are not obviously criminal or which they are not shown to have known to be criminal under International Law. Such a commander cannot be expected to draw fine distinctions and conclusions as to legality in connection with orders issued by his superiors. He has the right to presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance. He cannot be held criminally responsible for a mere error in judgment as to disputable legal questions.
“ It is therefore considered that to find a field commander criminally responsible for the transmittal of such an order, he must have passed the order to the chain of command and the order must be one that is criminal upon its face, or one which he is shown to have known was criminal.”
(vii) Responsibility of a Commanding Officer for Acts not Ordered by Him
The Tribunal continued:
“While, as stated, a commanding officer can be criminally responsible for implementing an illegal order of his superiors, the question arises as to whether or not he becomes responsible for actions committed within his command pursuant to criminal orders passed down independent of him. The choices which he has for opposition in this case are few : (1) he can issue an order countermanding the order ; (2) he can resign ; (3) he can sabotage the enforcement of the order within a somewhat limited sphere.
“As to countermanding the order of his superiors, he has no legal status or
power. A countermanding order would not only subject him to the severest
punishment, but would be utterly futile and in
“His second choice-resignation-was not much better. Resignation in war-time
is not a privilege generally accorded to officers in an army. This is true in
the army of the
“Another field of opposition was to sabotage the order. This he could do only verbally by personal contacts. Such verbal repudiation could never be of sufficient scope to annul its enforcement.
“A fourth decision he could make was to do nothing.
“Control Council Law No. 10, Article 2, paragraph 2, provides in pertinent part as follows :
‘ Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this article, if he. . . (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein, or (d) was connected with plans or enterprises involving its commission. . . .’ (emphasis supplied).
“As heretofore stated, his “ connection ” is construed as requiring a personal breach of a moral obligation. Viewed from an international standpoint, such has been the interpretation of preceding Tribunals. This connection may however be negative. Under basic principles of command authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal, violates a moral obligation under International Law. By doing nothing he cannot wash his hands of international responsibility. His only defence lies in the fact that the order was from a superior which Control Council Law No. 10 declares constitutes only a mitigating circumstance.
”At a later point in its Judgment, the Tribunal returned to the question of the responsibility of commanders of occupied territories for offences other than those ordered by them :
“The defence in this case as to the field commanders on trial has been partially based on the contention that while criminal acts may have occurred within the territories under their jurisdiction, that these criminal acts were committed by agencies of the State with which they were not connected and over whom they exercised no supervision or control. It is conceded that many of these defendants were endowed with executive power but it is asserted that the executive power of field commanders did not extend to the activities of certain economic and police agencies which operated within their areas ; that the activities of these agencies constituted limitations upon their exercise of executive power.
“In this connection it must be recognized that the responsibility of commanders of occupied territories is not unlimited. It is fixed according to the customs of war, international agreements, fundamental principles of humanity, and the authority of the commander which has been delegated to him by his own government. As pointed out heretofore, his criminal responsibility is personal. The act or neglect to act must be voluntary and criminal. The term “ voluntary ” does not exclude pressures or compulsions even to the extent of superior orders. That the choice was a difficult one does not alter either its voluntary nature of its criminality. From an international standpoint, criminality may arise by reason that the act is forbidden by international agreements or is inherently criminal and contrary to accepted principles of humanity as recognized and accepted by civilized nations. In the case of violations of international agreements, the criminality arises from violation of the agreement itself - in other cases, by the inherent nature of the act.
“War is human violence at its utmost. Under its impact, excesses of
individuals are not unknown in any army. The measure of such individual excesses
is the measure of the people who compose the army and the standard of discipline
of the army to which they belong. The German Army was, in general, a disciplined
army. The tragedy of the German Wehrmacht and these defendants is that the
crimes charged against them stem primarily from its highest leadership and the
leadership of the Third Reich itself.
subordination is a comprehensive but not conclusive factor in fixing criminal
responsibility. The authority, both administrative and military, of a commander
and his criminal responsibility are related but by no means co-extensive. Modern
war such as the last war, entails a large measure of de-centralization. A high
commander cannot keep completely informed of the details of military operations
of subordinates and most assuredly not of every administrative measure. He has
the right to assume that details entrusted to responsible subordinates will be
legally executed. The President of the
“Concerning the responsibility of a field commander for crimes committed within the area of his command, particularly as against the civilian population, it is urged by the prosecution that under the Hague Convention, a military commander of an occupied territory is per se responsible within the area of his occupation, regardless of orders, regulations, and the laws of his superiors limiting his authority and regardless of the fact that the crimes committed therein were due to the action of the State or superior military authorities which he did not initiate or in which he did not pa-ticipate. In this respect, however, it must be borne in mind that a military commander, whether it be of an occupied territory or otherwise, is subject both to the orders of his military superiors and the State itself as to his jurisdiction and functions. He is their agent and instrument for certain purposes in a position from which they can remove him at will.
“In this connection the Yamashita case has been cited. While not a decision binding upon this Tribunal, it is entitled to great respect because of the high court which rendered it. It is not, however, entirely applicable to the facts in this case for the reason that the authority of Yamashita in the field of his operations did not appear to have been restricted by either his military superiors or the State, and the crimes committed were by troops under his command, whereas in the case of the occupational commanders in these proceedings, the crimes charged were mainly committed at the instance of higher military and Reich authorities.
“ It is the opinion of this Tribunal that a State can, as to certain matters, under International Law, limit the exercise of sovereign powers by a military commander in an occupied area, but we are also of the opinion that under International Law and accepted usages of civilized nations, that he has certain responsibilities which he cannot set aside or ignore by reason of activities of his own State within his area. He is the instrument by which the occupancy exists. It is his army which holds the area in subjection. It is his might which keeps an occupied territory from reoccupancy by the armies of the nation to which it inherently belongs. It cannot be said that he exercises the power by which a civilian population is subject to his invading army while at the same time the State which he represents may come into the area which he holds and subject the population to murder of its citizens and to other inhuman treatment. The situation is somewhat analogous to the accepted principle of International Law that the army which captures the soldiers of its adversary has certain fixed responsibilities as to their care and treatment.
“ We are of the opinion, however, as above pointed out in other aspects of this case, that the occupying commander must have knowledge of these offences and acquiesce or participate or criminally neglect to interfere in their commission and that the offences committed must be patently criminal. But regardless of whether or not under International Law such responsibility is fixed upon him, under the particular facts in this case, responsibility of the commanders in question rests upon other factors. In this respect we quote certain provisions of the Handbook for the General Staff in War Time, pertinent to executive power :
‘(5) The exercising of executive power by military commanders is governed by No. 20-24 of Army Reg. 90 (of the Army in the Field).
‘ (6) If a Zone of Operation is determined, the Commander-in-Chief of the Army and the Commanders-in-Chief of the Armies receive at the declaration of a state of defence or at the declaration of a state of war, authority for exercising executive power in this territory, without further order (paragraphs 2 and 9 of the Reich Defence Law).
‘ In other cases, the Fuehrer and Supreme Commander of the Wehrmacht can transfer such authority for exercising executive power to the Commander-in-Chief of the Army and the Commanders-in-Chief of the Armies.
‘(7) The executive power comprises the entire State power including the right of issuing laws without prejudice to the independence of jurisdiction. Those persons invested with executive power can decree local orders affecting the territory in which authority for exercising has been turned over to them or transferred to them, set up special courts, and issue instructions to the authorities and offices competent in the territory named, with the exception of the Supreme Reich Authorities, the Supreme Prussian Provincial Authorities, and the Reichleitung of the NSDAP.
‘ (8) The Supreme Reich Authorities, Supreme Prussian Provincial Authorities, and the Reichleitung of the NSDAP can decree orders for the territory into which executive power has been transferred, only by agreement with the persons invested with executive power. Their right of issuing instructions to the authorities and offices subordinated to them remains intact. Nevertheless, the right of issuing instruction by the person invested with executive authority takes precedence.
‘ (9) Authority for exercising executive power is incumbent only on the persons invested. It can be transferred further only inasmuch as an authorization is ordered thereto actually or legally.
‘ Accordingly, persons invested with executive power are authorized to entrust subordinated offices with the execution of individual missions.
‘ (10) The laws, decrees, etc., which are valid at the transfer of the executive Power retain their validity so long as the person invested with executive power encounters no contrary order.
‘ (11) The Commander-in-Chief of the Army regulates the exercising of executive power through the Commanders-in-Chief of the Armies.
‘ The revision of questions which occur in the exercising of executive power does not fall into the realm of work of the Army judges. The civilian commissioner with the High Command of the Army is assigned for that purpose to the Commander-in-Chief of the Army ; the chiefs of the civil administration, to the Commanders-in-Chief of the Armies. Persons invested with executive power are authorized, however, to call in the Army judges assigned to them as counsellors, especially in the decreeing of legal orders of penal law content.’
“ It is therefore apparent that executive power under German law is the exercise of sovereign powers within an occupied area conferred upon a military commander by the State. The defence has undertaken to minimize to a large extent this wide authority, but in view of the above document, it does not appear to be the mere shadow of authority contended. In fact, these provisions fix upon an occupying commander certain responsibilities as to the preservation of law and order within his area.
“ The contention of defendants that the economic agencies were excluded from their exercise of executive power is disproved by various documents which will hereafter be cited in considering the guilt or innocence of defendants on trial. And regardless of that fact, the proof in this case also establishes a voluntary co-operation of defendants on trial with these economic agencies in the futherance of their illegal activities.
“ The defence contends that the activities of the Einsatzgruppen of the Security Police and SD were beyond their sphere of authority as occupational commanders, because the State had authorized the illegal activities of these police units and so limited the executive power of the occupational commanders. However, the occupational commanders in this case were bearers of executive power and, one and all, have denied receipt of any orders showing, or knowledge of, a State authorized programme providing for the illegal activities of the Einsatzgruppen.
“One of the functions of an occupational commander endowed with executive power, was to maintain order and protect the civilian population against illegal acts. In the absence of any official directives limiting his executive powers as to these illegal acts within his area, he had the right and duty to take action for their suppression. Certainly he is not in a position to contend that these activities were taken from his field of executive power by his superiors when he knew of no such action on their part.
“The sole question then as to such defendants in this case is whether or not they knew of the criminal activities of the Einsatzgruppen of the Security Police and SD and neglected to suppress them.
“It has been urged that all of the defendants in this case must have had knowledge of the illegal activities of the Einsatzgruppen. It has been argued that because of the extent of their murder programme in the occupational areas and by reason of the communications available to the high commanders, and the fact that they were in command of these areas, they must necessarily have known of this programme. . . .
“ It is true that extermination of such a large number of people must necessarily have come to the attention of many individuals, and also, it is established that soldiers in certain areas participated in some of these executions.
“ In many respects a high commander in the German Army was removed from information as to facts which may have been known to troops subordinate to him. In the first place, these troops were in many instances far removed from his headquarters. In addition, the common soldiers and junior officers do not have extensive contacts with the high commanders and staff officers.
“ Another factor must also be taken into consideration in connection with the activities of the Einsatzgruppen. This is the dual nature of its functions. On the one hand, it was charged with the criminal liquidation of certain elements ; on the other hand, it exercised legitimate police activities in connection with the security of the rear communications of the armies, in which capacity it operated largely against guerillas.
“ Another factor was the effort made to keep the criminal activities of these police units from the Wehrmacht.
” After some further discussion of the reasons why the accused did not know the full extent of the activities of the Einsatzgruppen, the Tribunal concluded :
“ Other factors to be considered as to the knowledge of criminal acts of the SIP0 and SD by defendants is the time, the localities, the combat situation, the extent of the activities, and the nature of the command.
“ This, in brief, summarizes the main factor considered and the sources of knowledge appraised in determining the criminal responsibility of the defendants in this case in connection with activities of the Einsatzgruppen of the SIP0 and SD. From this discussion it is apparent we can draw no general presumption as to their knowledge in this matter and must necessarily go to the evidence pertaining to the various defendants to make a determination of this question.
“ And it is further pointed out that to establish the guilt of a defendant from connection with acts of the SIP0 and SD by acquiescence, not only must knowledge be established, but the time of such knowledge must be established.”
(viii) The Responsibility of Staff Officers
The Tribunal said :
“There has also been much evidence and discussion in this case concerning the duties and responsibilities of staff officers in connection with the preparation and transmittal of illegal orders. In regard to the responsibility of the Chief-of-Staff of a field command, the finding of Tribunal V in Case No. 7 as to certain defendants has been brought to the attention of the Tribunal. (Footnote 1: See Vol.VIII. pp. 34-92, and particularly pp. 89-90) It is pointed out that the decision as to Chiefs of Staff in that case was a factual determination and constitutes a legal determination only insofar as it pertains to the particular facts therein involved. We adopt as sound law the finding therein made, but we do not give that finding the scope that is urged by defence counsel in this case to the effect that all criminal acts within a command are the sole responsibility of the commanding general, and that his Chief-of-Staff is absolved from all criminal responsibility merely by reason of the fact that his commanding general may be charged with responsibility therefore. It is further pointed out that the facts in that case are not applicable to any defendant on trial in this case.
“The testimony of various defendants in this case as to the functions of staff officers and chiefs of staff has not been entirely consistent. Commanding generals on trial have pointed out that there were certain functions which they necessarily left to the chiefs of staff, and that at times they did not know of orders which might be issued under authority of their command. Staff officers on trial have urged that a commanding officer was solely responsible for what was done in his name. Both contentions are subject to some scrutiny.
“ In regard to the functions of staff officers in general as derived from various documents and the testimony of witnesses, it is established that the duties and functions of such officers in the German Army did not differ widely from the duties and functions in other armies of the world. Ideas and general directives must be translated into properly prepared orders if they are to become effective in a military organization. To prepare orders is the function of staff officers. Staff officers are an indispensable link in the chain of their final execution. If the basic idea is criminal under International Law, the staff officer who puts that idea into the form of a military order, either himself or through subordinates under him, or takes personal action to see that it is properly distributed to these units where it becomes effective, commits a criminal act under International Law.
“ Staff officers, except in limited fields, are not endowed with command authority. Subordinate staff officers normally function through the chiefs of staff. The chief of staff in any command is the closest officer, officially at least, to the commanding officer. It is his function to see that the wishes, of his commanding officer are carried out. It is his duty to keep his commanding officer informed of the activities which take place within the field of his command. It is his function to see that the commanding officer is relieved of certain details and routine matters, that a policy having been announced the methods and procedures for carrying out such policy are properly executed. His sphere and personal activities vary according to the nature and interests of his commanding officer and increase in scope dependent upon the position and responsibilities of such commander.
“ Since a chief of staff does not have command authority in the chain of command, an order over his own signature does not have authority for subordinates in the chain of command. As shown by the record in this case, however, he signs orders for and by order of his commanding officer. In practice, a commanding officer may or may not have seen these orders. However, they are presumed to express the wishes of the commanding officer. While the commanding officer may not and frequently does not see these orders, in the normal process of command, he is informed of them and they are presumed to represent his will unless repudiated by him. A failure. to properly exercise command authority is not the responsibility of a chief of staff.
“In the absence of participation in criminal orders or their execution within a command, a chief of staff does not become criminally responsible for criminal acts occurring therein. He has no command authority over subordinate units. All he can do in such cases is call these matters to the attention of his commanding general. Command authority and responsibility for its exercise rest definitely upon his commander.
“Under normal military procedure, a commanding officer signs communications to higher commanders. He also in certain cases signs orders to subordinates which are considered to establish basic policy or whose importance he wishes to emphasize ; but the majority of orders issued in a command, as shown by the record, are issued ‘ for ’ or ‘ by order ’ and signed only by the chief of staff. All such orders are binding on subordinates. How far a chief of staff can go in issuing orders without previous authorization or without calling them to the attention of his commander depends upon many factors, including his own qualifications, his rank, the nature of the headquarters, his personal relationship with his commander, and primarily upon the personality of the commander. A chief of staff does not hold a clerical position. In the German Army, chiefs of staff were not used below an army corps. The rank and care with which staff officers were selected show in itself the wide scope of their responsibilities which could, and in, many instances undoubtedly did, result in the chief of staff assuming many command and executive responsibilities which he exercised in the name of his commander.
“One of his main duties was to relieve his commander of certain responsibilities so that such commander could confine himself to those matters considered by him of major importance. It was of course the duty of a chief of staff to keep such commander informed of the activities which took place within the field of his command insofar at least as they were considered of sufficient importance by such commander. Another well accepted function of chiefs of staff and of all staff officers is, within the field of their activities, to prepare orders and directives which they consider necessary and appropriate in that field and which are submitted to their superiors for approval.
“ As stated heretofore, the responsibility allowed a chief of staff to issue orders and directives in the name of his commander varied widely and his independent powers for exercising initiative therefore also varied widely in practice. The field for personal initiative as to other staff officers also varied widely. That such a field did exist, however, is apparent from the testimony of the various defendants who held staff positions and in their testimony have pointed out various cases in which they modified the specific desires of their superiors in the interests of legality and humanity. If they were able to do this, the same power could be exercised for other ends and purposes and they were not mere transcribers of orders.
“ Surely the staff officers of the OKW did not hold their high ranks and positions and did not bask in the bright sunlight of official favour of the Third and Thousand Year Reich by merely impeding and annulling the wishes of the Nazi masters whom they served.
“ It over-taxes the credulity of this Tribunal to believe that Hitler or Keitel or Jodl, or all three of these dead men, in addition to their many activities as to both military matters and matters of State, were responsible for the details of so many orders, words spoken in conferences, and even speeches which were made. We are aware that many of the evil and inhumane acts of the last war may have originated in the minds of these men. But it is equally true that the evil they originated and sponsored did not spread to the far-flung troops of the Wehrmacht of itself. Staff officers were indispensable to that end and cannot escape criminal responsibility for their essential contribution to the final execution of such orders on the plea that they were complying with the orders of a superior who was more criminal.”
(ix) The Criminality of Certain Orders
The Tribunal specifically declared to be criminal certain orders, particularly the following : the Commissar Order, with supplements, the Barbarossa Jurisdiction Order, the Commando Order, and the Night and Fog Decree.
Speaking of that part of the Barbarossa order which dispensed with court-martial jurisdiction over the civilian population of occupied territory, the Tribunal said : “ court-martial jurisdiction of civilians is not considered under International Law an inherent right of a civilian population and is not an inherent prerogative of a military commander. The obligation towards civilian populations concerns their fair treatment. Court-martial jurisdiction of a military commander and its extent are determined by his superiors. It has been urged in this trial that there is no rule of International Law that guerillas be brought to trial before a court and that this order authorizing their disposition on the arbitrary decision of an officer is therefore not illegal. There may be some doubt that trial before a court is in fact required under International Law.
“ But in considering this order, it must be borne in mind that it was not solely applicable to guerrillas, and that it is an obligation upon an occupying force to provide for the fair treatment of the civilians within the occupied area. Whatever may be said as to the summary proceedings against guerrillas, the allowing of such summary proceedings in the discretion of a junior officer, in the case of the wide variety of offences that were left open to him, is considered criminal.
“ Furthermore, the fourth paragraph of Section I above, in its most favourable construction is at best ambiguous, but the logical inference to be drawn from this section goes further in the opinion of the Tribunal and provides that suspected franc-tireurs may be shot, which is also considered illegal.
“ The fourth paragraph of Section I also provides for collective coercive measures to be applied immediately upon the order of an officer of at ' least a battalion, etc., commander,’ and is considered illegal in that it places no limitations upon such collective actions whatsoever.
“ For these reasons the first part of this order is considered illegal and we so find.
” The Tribunal then continued :
“ With regard to the second aspect of this order, that is the obligation to prosecute soldiers who commit offences against the indigenous population, this obligation as a matter of International Law is considered doubtful, The duty imposed upon a military commander is the protection of the civilian population. Whether this protection be assured by the prosecution of soldiers charged with offences against the civilian population, or whether it be assured by disciplinary measures or otherwise, is immaterial from an international standpoint. This order in this respect . . . was subject to the interpretation that unwarranted acts against civilians constituted a breach of discipline. The illegal application of the order, therefore, rested to a marked extent with the commanders in the field.” Moreover, section 6 of paragraph I of the order “ left the door open for commanders-in-chiefs of army groups opposed to the arbitrary provisions of the order as to civilians, to take action to eliminate it from their areas. This the record shows none of them did.
” The Tribunal completed its treatment of the Barbarossa Jurisdiction Order with the following words :
“ This Tribunal does not hold field commanders guilty for a failure to
properly appraise the fine distinctions of International Law, nor for failure to
execute court-martial jurisdiction which had been taken away from them, but it
does consider them criminally responsible for the transmission of an order that
could, and from its terms would, be illegally applied where they have
transmitted such an order without proper safeguards as to its application. For
that failure on their part they must accept criminal responsibility for its
misapplication within subordinate units to which they transmitted it. And in
view of the relation of this order to franc-tireurs, it takes the view that
while commanding generals might not be able under the provisions of the
Barbarossa Jurisdiction Order to establish courts-martial to try them, such
commanders were nevertheless responsible, within the areas of their commands,
for the summary execution of persons who were merely suspects or those who, from
their acts, were not in fact franc-tireurs at all, such as the execution of the
nineteen-year-old girl who wrote a song derogatory of the German invader of her
On the other hand, the Judgment contains the following passage in the course of the treatment of the responsibility of von Leeb :
“ ‘ A belligerent commander may lawfully lay siege to a place controlled by the enemy and endeavour by a process of isolation to cause its surrender. The propriety of attempting to reduce it by starvation is not questioned. Hence the cutting off of every source of sustenance from without is deemed legitimate. It is said that if the commander of a besieged place expels the .non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten the surrender.’ (Hyde, Vol. 3, Sec. 656, pp. 1802-1803.)
“ We might wish the law were otherwise, but we must administer it as we find it. Consequently, we hold no criminality attaches on this charge.”
(x) Hostages and Reprisals
As to this point, the Judgment states :
“ In the Southeast Case, United
States v. Wilhelm List, et al. (Case No. 7), the Tribunal had
occasion to consider at considerable length the law relating to hostages and
reprisals. It was therein held that under certain very restrictive conditions
and subject to certain rather extensive safeguards, hostages may be taken, and
after a judicial finding of strict compliance with all pre-conditions, and as a
last desperate remedy, hostages may even be sentenced to death. It was held
further that similar drastic safeguards, restrictions, and judicial
pre-conditions apply to so-called ‘ reprisal prisoners.’ If so inhumane a
measure as the killing of innocent persons for offences of others, even when
drastically safeguarded and limited, is ever permissible under any theory of
International Law, killing without full compliance with all requirements would
If killing is not permissible under any circumstances, than a killing with full compliance with all the mentioned prerequisites still would be murder.
“In the case here presented, we find it unnecessary to approve or disapprove the conclusions of law announced in said Judgment as to the permissibility of such killings. In the instances of so-called hostage taking and killing, and the so-called reprisal killings with which we have to deal in this case, the safeguards and pre-conditions required to be observed by the Southeast Judgment were not even attempted to be met, or even suggested as necessary. Killings without full compliance with such pre-conditions are merely terror murders. If the law is in fact that hostage and reprisal killings are never permissible at all, then also the so-called hostage and reprisal killings in this case are merely terror murders.”
(xi) Partisan Warfare
On this point the Judgment begins :
“The execution of partisans as franc-tireurs is connected with the Barbarossa Jurisdiction Decree in that it involves the treatment of civilians by the occupying and invading forces.
“The record in this case contains much testimony, and among the numerous exhibits are many documents dealing with so-called partisan warfare. We deem it desirable to make some comment on the law relating thereto before considering the cases of the individual defendants.
“Articles 1 and 2 of the Annex to the Hague Convention are as follows :
‘ Article 1
‘The laws, rights, and duties of war apply not only to armies, but also to
militia and volunteer corps fulfilling the following conditions :
‘ (1) To be commanded by a person responsible for his subordinates;
‘ (2) To have a fixed distinctive emblem recognizable at a distance ;
‘ (3) To carry arms openly ; and
‘ (4) To conduct their operations in accordance with the laws and customs of war.
‘ In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination “ army.”
‘ Article 2
‘ The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.’
“A failure to meet these requirements deprives one so failing on capture of a prisoner-of-war status.
“We have a strong suspicion from the record in this case that anti-partisan warfare was used by the German Reich as a pretext for the extermination of many thousands of innocent persons.
The Tribunal ruled that an order reading : “ Every civilian who impedes or incites others to impede the German Wehrmacht is also to be considered a guerrilla (for instance : instigators, persons who distribute leaflets, non-observance of German orders, arsonists, destroying of road signs, supplies, etc.),” clearly opened the way for “ arbitrary and blood implementation.” The Judgment continued : “ Those falling into the various classifications were summarily executed as partisans, and so classified in the reports. There is no warrant in the Rules of War or in International Law for dealing with such persons as franc-tireurs, guerillas, or bandits. Red Army soldiers in uniform were in some instances shot as so-called partisans. There is, of course, no warrant in International Law for such action.”
The Tribunal pointed out that the executions of “ ‘ partisan suspects ’ were a regular routine, and their executions were reported along with those of the so-called partisans.” It expressed the following view on such executions :
“Suspicion is a state of mind of the accuser and not a state of mind or an act by the one accused. It is a monstrous proposition containing the very essence of license that the state of mind of the accuser shall be the determining factor, in the absence of evidence of guilt, whether the accused shall or shall not be summarily executed. But it is said that when those accused were captured they were interrogated and some were not executed, but released or sent to prison camps. But this is no defence, for it does not necessarily mean that those who were executed as suspects had been found guilty even by the informal interrogation by an officer, but only that the interrogator had not had his suspicion that they were guilty removed, so, under the order, they, being still suspected, were executed. This does not amount to even the minimum of judicial protection required before an execution.
“The classification of the victims in the numerous reports in the record as partisan suspects is a natural and proper one to be made under the order for execution on mere suspicion of partisan activity. If, as defendants have contended, no suspects were executed until they were lawfully found and adjudged to be guilty, there was no need whatsoever for the distinction made in the classification. We find from the evidence that there were great numbers of persons executed in the areas of various of these defendants, who, under no stretch of the imagination were franc-tireurs, and great numbers of others executed solely on suspicion, without any proof or lawful determination that they were in fact guilty of the offences of which they were suspected. The orders to execute such persons and mere suspects on suspicion only and without proof, were criminal on their face. Executions pursuant thereto were criminal. Those who gave or passed down such orders must bear criminal responsibility for passing them down and for their implementation by the units subordinate to them.”
(xii) The Interpretation and Applicability of the Hague and Geneva Conventions
The Tribunal pointed out that : “ Another question of general interest in
this case concerns the applicability of
‘ But it is argued that the Hague Convention does not apply in this case, because of the “ general participation ” clause in Article 2 of the Hague Convention of‘1907. That clause provided :
‘ The provisions contained in the regulations (Rules of Land Warfare) referred to in Article I as well as in the present Convention, do not apply except between contracting Powers, and then only if all the belligerents are parties to the Convention.’
‘Several of the belligerents in the recent war were not parties to this Convention.
‘In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing International Law at the time of their adoption. But the Convention expressly stated that it was an attempt “to revise the general laws and customs of war,” which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and’ customs of war which are referred to in Article 6 (b) of the Charter.’
“ It is apparent from the above quotation that the view adopted by the IMT
in that case as to the Hague Conventions was that they were declaratory of
existing International Law, and therefore binding upon Germany. In this
connection it is further pointed out that the defence in this case, particularly
as regards partisan warfare, primarily is based upon the fact that partisans
could be shot or hanged since under the Hague Convention they were not lawful
belligerents. The defence can hardly contend that
Of the applicability of the Geneva Convention, the Tribunal said that : “It
is to be borne in mind that
‘ The argument in defence of the charge with regard to the murder and ill-treatment of Soviet prisoners of war, that the U.S.S.R. was not a party to the Geneva Convention, is quite without foundation. On 15th September, 1941, Admiral Canaris protested against the regulations for the treatment of Soviet prisoners of war, signed by General Reinecke on 8th September, 1941. He then stated:
“The Geneva Convention for the
treatment of prisoners of war is not binding in the relationship between
‘Article 6 (b) of the Charter provides that “ ill-treatment . . . of civilian population of or in occupied territory. . . killing of hostages . . . wanton destruction of cities, towns, or villages ” shall be a war crime. In the main, these provisions are merely declaratory of the existing laws of war as expressed by the Hague Convention, Article 46, which stated : “ Family honour and rights, the lives of persons and private property, as well as religious convictions and practice, must be respected.”
"It would appear from the above quotation that that Tribunal accepted as
International Law the statement of Admiral Canaris to the effect that the Geneva
Convention was not binding as between
The Tribunal next dealt with two points of interpretation as follows :
“One serious question that confronts us arises as to the use of prisoners of war for the construction of fortifications. It is pointed out that the Hague Convention specifically prohibited the use of prisoners of war for any work in connection with the operations of war, whereas the later Geneva Conventions provided that there shall be no direct connection with the operations of war. This situation is further complicated by the fact that when the proposal was made to definitely specify the exclusion of the building of fortifications, objection was made before the conference to that limitation, and such definite exclusion of the use of prisoners, was not adopted. It is no defence in the view of this Tribunal to assert that international crimes were committed by an adversary, but as evidence given to the interpretation of what constituted accepted use of prisoners of war under International Law, such evidence is pertinent. At any rate, it appears that the illegality of such use was by no means clear. The use of prisoners of war in the construction of fortifications is a charge directed against the field commanders on trial here. This Tribunal is of the opinion that in view of the uncertainty of International Law as to this matter, orders providing for such use from superior authorities, not involving the use of prisoners of war in dangerous areas, were not criminal upon their face, but a matter which a field commander had the right to assume was properly determined by the legal authorities upon higher levels.
“Another charge against the field commanders in this case is that of sending prisoners of war to the Reich for use in the armament industry. The term ‘ for the armament industry ’ appears in numerous documents. While there is some question as to the interpretation of this term, it would appear that it was used to cover the manufacture of arms and munitions. It was nevertheless legal for field commanders to transfer prisoners of war to the Reich and thereafter their control of such prisoners terminated. Communications and orders specifying that their use was desired by the armament industry, or that prisoners were transmitted for the armament industry are not in fact binding as to their ultimate use. Their use subsequent to transfer was a matter over which the field commander had no control. Russian prisoners of war were in fact used for many purposes outside the armament industry. Mere statements of this kind cannot be said to furnish irrefutable proof against the defendants for the illegal use of prisoners of war whom they transferred. In any event, if a defendant is to be held accountable for transmitting prisoners of war to the armament industry, the evidence would have to establish that prisoners of war shipped from his area were in fact so used.
“Therefore, as to the field commanders in this case, it is our opinion that, upon the evidence, responsibility cannot be fixed upon the field commanders on trial before us for the use of prisoners of war in the armament industry.
” The Tribunal then returned to the question of the declaratory character
“In stating that
“Most of the prohibitions of both
“We cite in this category the following rules from the Hague Rules of Land Warfare :
“Article 4 :
‘Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them.
‘They must be humanely treated . . . ’
“That part of Article 6 which provides :
‘ . . . The tasks shall not be excessive . . . ’
“That part of Article 8 which provides :
‘ . . . Escaped prisoners who are retaken before being able to rejoin their own army or before leaving the territory occupied by the army which captured them are liable to disciplinary punishment.
‘Prisoners who, after succeeding in escaping, are again taken prisoners, are not liable to any punishment on account of the previous flight.’
“From the Geneva Convention :
“That part of Article 2 which provides :
‘ . . . They must at all times be humanely treated and protected, particularly against acts of violence, insults, and public curiosity . . .’
“That part of Article 3 which provides :
‘Prisoners of war have the right to have their person and their honour respected. Women shall be treated with all the regard due to their sex . . .’
“Article 4, which provides :
‘The power detaining prisoners of war is bound to provide for their maintenance. ‘
‘Difference in treatment among prisoners is lawful only when it is based on the military rank, state of physical or mental health, professional qualifications, or sex of those who profit thereby.’
“That part of Article 7 which provides :
‘Prisoners of war shall be evacuated within the shortest possible period after their capture, to depots located in a region far enough from the zone of combat for them to be out of danger . . .’
“Those parts of Article 9 which provide that :
‘ . . . Prisoners captured in unhealthful regions or where the climate is injurious for persons coming from temperate regions,.shall be transported, as soon as possible, to a more favourable climate ’ ;
and that :
‘ . . . No prisoner may, at any time, be sent into a region where he might be exposed to the fire of the combat zone, nor used to give protection from bombardment to certain points or certain regions by his presence.’
“That part of Article 10 which provides :
‘Prisoners of war shall be lodged in buildings or in barracks affording all possible guarantees of hygiene and healthfulness . . .
“ Those parts of Article 11 which provide :
‘The food ration of prisoners of war shall be equal in quantity and quality to that of troops at base camps . . .'
and that :
‘ . . . A sufficiency of potable water shall be furnished them . . .’
“That part of Article 12 which provides that :
‘Clothing, linen, and footwear shall be furnished prisoners of war by the detaining Power .'
“That part of Article 13 which provides :
‘Belligerents shall be bound to take all sanitary measures necessary to assure the cleanliness and healthfulness of camps and to prevent epidemics . . .’
“Article 25 :
‘Unless the conduct of military operations so requires, sick and wounded prisoners of war shall not be transferred as long as their recovery might be endangered by the trip.’
“Article 29 :
‘No prisoner of war may be employed at labours for which he is physically unfit.’
“That part of Article 32 which provides :
‘It is forbidden to use prisoners of war at unhealthful or dangerous work . . .’
“That part of Article 46 which provides :
‘ . . . Any corporal punishment, any imprisonment in quarters without daylight and, in general, any form of cruelty, is forbidden . . .’
” Article 50, which provides :
‘ Escaped prisoners of war who are retaken before being able to rejoin their own army or to leave the territory occupied by the army which captured them shall be liable only to disciplinary punishment.
‘ Prisoners who, after having succeeded in rejoining their army or in leaving the territory occupied by the army which captured them, may again be taken prisoners shall not be liable to any punishment on account of their previous flight.’
"That part of Article 56 which provides :
‘In no case may prisoners of war be transferred to penitentiary establishments (prison, penitentiaries, convict prisons, etc.) there to undergo disciplinary punishment . . .’
“Under these provisions certain accepted principles of International Law are clearly stated. Among those applicable in this case are noted those provisions concerning the proper care and maintenance of prisoners of war. Also the provisions prohibiting their use in dangerous localities and employment, and in this connection it should be pointed out that we consider their use by combat troops in combat areas for the construction of field fortifications and otherwise to constitute dangerous employment under the conditions of modern war. Under those provisions it is also apparent that the execution of prisoners of war for attempts to escape was illegal and criminal.
“Also, it is the opinion of this Tribunal that orders which provided for the turning over of prisoners of war to the SD, a civilian organization, wherein all accountability for them is shown by the evidence to have been lost, constituted a criminal act, particularly when from the surrounding circumstances and published orders, it must have been suspected or known that the ultimate fate of such prisoners of war was elimination by this murderous organization.
” The Judgment contains the following paragraphs concerning the compulsory use of civilian labour :
“ Concerning the compulsory use of the civilian population, spoliation, and devastation within occupied areas, the following provisions of the Hague Convention are likewise cited as applicable in this case :
‘Article 43 :
‘ The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
‘Article 46 :
‘Family honour and rights, to lives of persons, and private property, as well as religious convictions and practice, must be respected.
‘Article 47 :
‘Pillage is formally forbidden. ‘
‘Article 49 :
‘If, in addition to the taxes mentioned in the above Article, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in question.
‘Article 50 :
‘ No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.’
“That part of Article 52 which reads as follows :
‘Requisitions in kind and service shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country . . .’
“That part of Article 53 which reads as follows:
‘ An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations . . .’
“Under the Articles above quoted, it is apparent that the compulsory labour of the civilian population for the purpose of carrying out military operations against their own country was illegal. "
“Under the same Articles, the compulsory recruitment from the population of an occupied country for labour in the Reich was illegal."
It was pointed out, however, by the Tribunal that “ the doctrine of military necessity has been widely urged. In the various treatises on International Law there has been much discussion on this question. It has been the viewpoint of many German writers and to a certain extent has been contended in this case that military necessity includes the right to do anything that contributes to the winning of a war.”
The Tribunal expressed itself as follows :
“ We content ourselves on this subject with stating that such a view would eliminate all humanity and decency and all law from the conduct of war and it is a contention which this Tribunal repudiates as contrary to the accepted usages of civilized nations. Nor does military necessity justify the compulsory recruitment of labour from an occupied territory either for use in military operations or for transfer to the Reich, nor does it justify the seizure of property or goods beyond that which is necessary for the use of the army of occupation. Looting and spoliation are none the less criminal in that they were conducted, not by individuals, but by the army and the State.
“ The devastation prohibited by the Hague Rules and the usages of war is that not warranted by military necessity. This rule is clear enough but the factual determination as to what constitutes military necessity is difficult. Defendants in this case were in many-instances in retreat under arduous conditions wherein their commands were in serious danger of being cut off. Under such circumstances, a commander must necessarily make quick decisions to meet the particular situation of his command. A great deal of latitude must be accorded to him under such circumstances. What constitutes devastation beyond military necessity in these situations requires detailed proof of an operational and tactical nature. We do not feel that in this case the proof is ample to establish the guilt of any defendant herein on this charge. ”
The Tribunal then made the following remark :
“ Concerning the treatment of Red Army soldiers, the Hague Conventions provide :
‘ Article 1
'The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions :
(1) To be commanded by a person responsible for his subordinates ;
(2) To have a fixed distinctive emblem recognizable at a distance ;
(3) To carry arms openly ; and
(4) To conduct their operations in accordance with the laws and customs of war.
‘ In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination “ army “.’
“This Article defines what constitutes a lawful belligerent. Orders to the effect that Red Army soldiers who did not turn themselves over to the German authorities would suffer penalty of being treated as guerrillas, and similar orders, and the execution of Red Army soldiers thereunder, are in contravention of the rights of lawful belligerents and contrary to International Law.
“It has been stated in this case that American occupational commanders
issued similar orders. This Tribunal is not here to try Allied occupational
commanders but it should be pointed out that subsequent to the unconditional
(xiii) The Findings on Counts II and III
The findings of the Tribunal as to von Leeb were as follows :
“For the reasons above stated we find this defendant guilty under Count III of the Indictment for criminal responsibility in connection with the transmittal and application of the Barbarossa Jurisdiction Order. Under Control Council Law No. 10 it is provided that superior orders do not constitute a defence but may be considered in mitigation of an offence.
“We believe that there is much to be said for the defendant von Leeb by way of mitigation. He was not a friend or follower of the Nazi Party or its ideology. He was a soldier and engaged in a stupendous campaign with responsibility for hundreds of thousands of soldiers, and a large indigenous population spread over a vast area. It is not without significance that no criminal order has been introduced in evidence which bears his signature or the stamp of his approval.
“ We find on the evidence in the record, and for the reasons above stated, the defendant is guilty under Count III of the Indictment, and not guilty under Count II thereof.
” Sperrle and Schniewind were found not guilty under Counts II and III. Von Kuechler, Hoth, Reinhardt, von Salmuth, Hollidt, von Roques, Rienecke, Warlimont, Woehler and Lehmann were found guilty under Counts II and III.
(xiv) The Sentences
The Tribunal, before meting out sentence, said that : “ Each defendant receiving a sentence for a term of years shall receive credit upon the sentence imposed upon him for such a period or periods of time as he has been in confinement, whether as a prisoner of war or otherwise, since 7th May, 1-945. ”
The sentences passed upon the accused found guilty were as follows :
To life imprisonment : Heimann Reinecke and Walter Warlimont.
To twenty years’ imprisonment : Georg Karl Friedrich Wilhelm von Kuechler, Hans von Salmuth and Karl von Roques.
To fifteen years’ imprisonment : Hermann Hoth and Hans Reinhardt.
To eight years’ imprisonment : Otto Woehler.
To seven years’ imprisonment : Rudolf Lehmann.
To five years’ imprisonment : Karl Hollidt, and
To three years’ imprisonment : Wilhelm von Leeb.