Source: United Nations War Crimes Commission. Law Reports of Trials of War Criminals. Volume VIII, 1949

CASE No. 47

THE HOSTAGES TRIAL

TRIAL OF WILHELM LIST AND OTHERS

UNITED STATES MILITARY TRIBUNAL, NUREMBERG

Part IV

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

The Judgment of the Tribunal

The Plea of Military Necessity

The Extent of Responsibility of the Commanding General of Occupied Territory

The Legal Position of Italian Troops who Resisted German Demands for Surrender

The Legal Status of the "Croatian Government."

General Remarks on the Mitigation of Punishment

The Findings of the Tribunal

Notes on the Case

The Law Relating to Hostages and Reprisals

p.66

(ix) The Plea of Military Necessity

The Judgment dealt with this plea as follows :

“ Military necessity has been invoked by the defendants as justifying the killing of innocent members of the population and the destruction of villages and towns in the occupied territory. Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money. In general, it sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war ; it allows the capturing of armed enemies and others of peculiar danger, but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of International Law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. It is lawful to destroy railways, lines of communication or any other property that might be utilised by the enemy. Private homes and churches even may be destroyed if necessary for military operations.  It does not admit of wanton devastation of a district or the wilful infliction of suffering upon its inhabitants for the sake of suffering alone. . . .

“ It is apparent from the evidence of these defendants that they considered military necessity, a matter to be determined by them, a complete justification of their acts. We do not concur in the view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules. International Law is prohibitive law. Articles 46, 47 and 50 of the Hague Regulations of 1907 make no such exceptions to its enforcement. The rights of the innocent population therein set forth.

p.67

must be respected even if military necessity or expediency decree otherwise.”

At a later point, in a section of its Judgment dealing with the individual acused, the Tribunal made the following remarks regarding List :

“ The record shows that after the capitulation of Yugoslavia and Greece, the defendant List remained as the commanding general of the occupied territory. As the resistance movement developed, it became more and more apparent that the occupying. forces were insufficient to deal with it. Repeated appeals to the High Command of the Armed Forces for additional forces were refused with the demand for a  pacification of the occupied territory by more draconic measures. These orders were protested by List without avail. He contends that although such orders were in all respects lawful, he protested from a humanitarian viewpoint. It is quite evident that the High Command insisted upon a campaign of intimidation and terrorism as a substitute for additional troops. Here again the German theory of expediency and military necessity (Kriegsraeson geht vor Kriegsmanier) superseded established rules of International Law. As we have previously stated in this opinion, the rules of International Law must be followed even if it results in the loss of a battle or even a war. Expediency or necessity cannot warrant their violation. What then was the duty of the Armed Forces Commander South-east ? We think his duty was plain. He was authorised to pacify the country with military force; he was entitled to punish those who attacked his troops or sabotaged his transportation and communication lines as francs tireurs; he was entitled to take precautions against those suspected of participation in the resistance movement, such as registration, limitations of movement, curfew regulations, and other measures hereinbefore set forth in this opinion. As a last resort, hostages and reprisal prisoners may be shot in accordance with international custom and practice. If adequate troops were not available or if the lawful measures against the population failed in their purpose, the occupant could limit its operations or withdraw from the country in whole or in part, but no right existed to pursue a policy in violation of International Law.”

Of the accused Rendulic, however, it was said :

“ The defendant is charged with the wanton destruction of private and public property in the province of Finnmark, Norway, during the retreat of the XXth Mountain Army commanded by him. The defendant contends that military necessity required that he do as he did in view of the military situation as it then appeared to him. 

“ The evidence shows that in the spring of 1944, Finland had attempted to negotiate a peace treaty with Russia without success. This furnished a warning to Germany that Finland might at any time remove itself as an ally of the Germans. In June, 1944, the Russians commenced an offensive on the southern Finnish frontier that produced a number of successes and depressed Finnish morale. On 24th June, 1944, the defendant Rendulic was appointed commander-in-chief of the XXth Mountain Army in Lapland. This army was committed from the Arctic Ocean south to the middle of Finland along its eastern.

p.68

frontier. Two army corps were stationed in central Finland and one on the coast of the Arctic Ocean. The two groups were separated by 400 kilometres of terrain that was impassible for all practicable purposes.  

“ On 3rd September, 1944, Finland negotiated a separate peace with Russia and demanded that the German troops withdrew from Finland within fourteen days, a demand with which it was impossible to comply.  The result was that the two army corps to the south were obliged to fight their way out of Finland. This took three months’ time. The distance to the Norwegian border required about 1,000 kilometers of travel over very poor roads at a very inopportune time of year. The Russians attacked almost immediately and caused the Germans much trouble in extricating these troops. The XIXth Corps located on the Arctic coast was also attacked in its position about 150 kilometres east of Kirkenes, Norway. The retreat into Norway was successful in that all three army corps with their transport and equipment arrived there as planned. The difficulties were increased in middle October when the four best mountain divisions were recalled to Germany, thereby reducing the strength of the army by approximately one-half.  

“ The evidence shows that the Russians had very excellent troops in pursuit of the Germans. Two or three land routes were open to them as well as landings by sea behind the German lines. The defendant knew that ships were available to the Russians to make these landings and that the land routes were available to them. The information obtained concerning the intentions of the Russians was limited. The extreme cold and the short days made air reconnaissance almost impossible. It was with this situation confronting him that he carried out the ' scorched earth ' policy in the Norwegian province of Finnmark which provided the basis for this charge of the indictment.  

“ The record shows that the Germans removed the population from Finnmark, at least all except those who evaded the measures taken for their evacuation. The evidence does not indicate any loss of life directly due to the evacuation. Villages were destroyed. Isolated habitations met a similar fate. Bridges and highways were blasted.  Communication lines were destroyed. Port installations were wrecked.  A complete destruction of all housing, communication and transport facilities was had. This was not only true along the coast and highways, but in the interior sections as well. The destruction was as complete as an efficient army could do it. Three years after the completion of the operation, the extent of the devastation was discernible to the eye.  While the Russians did not follow up the retreat to the extent anticipated, there are physical evidences that they were expected to do so.  Gun emplacements, fox-holes, and other defence installations are still perceptible in the territory. In other words there are mute evidences that an attack was anticipated. 

“ There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in  retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it

p.69

cannot be said to be criminal. After giving careful consideration to all the evidence on the subject, we are convinced that the defendant cannot be held criminally responsible although when viewed in retrospect, the danger did not actually exist.

“ The Hague Regulations prohibited ‘ The destruction or seizure of enemy property except in cases where this destruction or seizure is urgently required by the necessities of war.’ Article 23 (g). The Hague Regulations are mandatory provisions of International Law.  The prohibitions therein contained control and are superior to military necessities of the most urgent nature except where the Regulations themselves specifically provide the contrary. The destructions of public and private property by retreating military forces which would give aid and comfort to the enemy, may constitute a situation coming within the exceptions contained in Article 23 (g). We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finnmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time. The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions. These things when considered with his own military situation provided the facts or want thereof which furnished the basis for the defendant’s decision to carry out the ‘ scorched earth ’ policy in Finnmark as a precautionary measure against an attack by superior forces. It is our considered opinion that the conditions as they appeared to the defendant at the time were sufficient, upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgment but he was guilty of no criminal act. We find the defendant not guilty on this portion of the charge.”

(x) The Extent of Responsibility of the Commanding General of Occupied Territory

On this point the Tribunal expressed its opinion in these words :

“ We have herein before pointed out that it is the duty of the commanding general in occupied territory to maintain peace and order, punish crime and protect lives and property. This duty extends not only to the inhabitants of the occupied territory but to his own troops and auxiliaries as well. The commanding general of occupied territory having executive authority as well as military command, will not be heard to say that a unit taking unlawful orders from someone other than himself, was responsible for the crime and that he is thereby absolved from responsibility. It is here claimed, for example, that certain SS units under the direct command of Heinrich Himmler committed certain of the atrocities herein charged without the knowledge, consent or approval of these defendants. But this cannot be a defence for the commanding general of occupied territory. The duty and

p.70 

responsibility for maintaining peace and order, and the prevention of crime rests upon the commanding general. He cannot ignore obvious facts and plead ignorance as a defence. The fact is that the reports of subordinate units almost without exception advised these defendants of the policy of terrorism and intimidation being carried out by units in the field. They requisitioned food supplies in excess of their local need and caused it to be shipped to Germany in direct violation of the laws of war. Innocent people were lodged in collection and concentration camps where they were mistreated to the everlasting shame of the German nation. Innocent inhabitants were forcibly taken to Germany and other points for use as slave labour. Jews, Gypsies and other racial groups were the victims of systematised murder or deportation for slave labour for no other reason than their race or religion, which is in violation of the express conventional rules of the Hague Regulations of 1907. The German theory that fear of reprisal is the only deterrent in the enforcement of the laws of war cannot be accepted here. That reprisals may be indulged to compel an enemy nation to comply with the rules of war must be conceded.

“ It is not, however, an exclusive remedy. If it were, the persons responsible would seldom, if ever, be brought to account. The only punishment would fall upon the reprisal victims who are usually innocent of wrong-doing. The prohibitions of the Hague Regulations of 1907 contemplate no such system of retribution. Those responsible for such crimes by ordering or authorising their commission, or by a failure to take effective steps to prevent their execution or recurrence, must be held to account if International Law is to be anything more than an ethical code, barren of any practical coercive deterrent.”

A little later, the Tribunal made the following ruling :

“ An army commander will not ordinarily be permitted to deny knowledge of reports received at his headquarters, they being sent there for his special benefit. (Footnote 1: Of the accused Kuntze, the Tribunal later ruled that : “ The collection of Jews and Gypsies in collection or concentration camps merely because they are such, is likewise criminal. The defendant claimed that he never heard of any such action against Jews or Gypsies in the Southeast. The reports in the record which were sent to him in his capacity as Wehrmacht Commander Southeast, charge him with knowledge of these acts. He cannot close his eyes to what is going on around him and claim immunity from punishment because he did not know that which he is obliged to know.”) Neither will he ordinarily be permitted to deny knowledge of happenings within the area of his command while he is present therein. It would strain the credulity of the Tribunal to believe that a high ranking military commander would permit himself to get out of touch with current happenings in the area of his command during war time. No doubt such occurrences result occasionally because of unexpected contingencies, but they are the unusual. With reference to statements that responsibility is lacking where temporary absence from headquarters for any cause is shown, the general rule to be applied is dual in character. As to events occurring in his absence resulting from orders, directions or a general prescribed policy formulated by him, a military commander will be held responsible in the absence of special circumstances. As to events, emergent in nature and presenting matters for original decision, such commander will not 

p.71

ordinarily be held responsible unless he approved of the action taken when it came to his knowledge.

“ The matter of subordination of units as a basis of fixing criminal responsibility becomes important in the case of a military commander having solely a tactical command. But as to the commanding general of occupied territory who is charged with maintaining peace and order, punishing crime and protecting lives and property, subordinations are relatively unimportant. His responsibility is general and not limited to a control of units directly under his command. Subordinate commanders in occupied territory are similarly responsible to the extent that executive authority has been delegated to them.”

Elsewhere the Judgment laid down that a commanding general  “ is charged with notice of occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprise him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defence. Absence from headquarters cannot and does not relieve one from responsibility for acts committed in accordance with a policy he instituted or in which he acquiesced. He may not, of course, be charged with acts committed on the order of someone else which is outside the basic orders which he has issued. If time permits he is required to rescind such illegal orders, otherwise he is required to take steps to prevent a recurrence of their issue.

“ Want of knowledge of the contents of reports made to him is not a defence. Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf.

“ The reports made to the defendant List as Wehrmacht Commander Southeast charge him with notice of the unlawful killing of thousands of innocent people in reprisal for acts of unknown members of the population who were not lawfully subject to such punishment. Not once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts.  His failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence, constitutes a serious breach of duty and imposes criminal responsibility.”

(xi)  The Legal Position of Italian Troops who Resisted German Demands for Surrender

In the course of its judgment, the Tribunal discussed the position of the Italian officers who were executed after resisting the Germans at Split.(Footnote 1: See p.45.) 

“ It is the contention of the defendant Rendulic that the surrender of the IXth Italian Army, commanded by General D’Almazzo, brought 

p.72

about ipso facto the surrender of the Bergamo Division in Split and that elements of this division by continuing to resist the German troops became francs tireurs and thereby subject to the death penalty upon capture. An analysis of the situation is required for clarification. . . .  

“ It must be observed that Italy was not at war with Germany, at least in so far as the Italian commanders were informed, and that the Germans were the aggressors in seeking the disarmament and surrender of the Italian forces. The Italian forces which continued to resist met all the requirements of the Hague Regulations as to belligerent status.  They were not francs tireurs in any sense of the word. Assuming the correctness of the position taken by the defendant that they became prisoners of war of the Germans upon the signing of the surrender terms, then the terms of the Geneva Convention of 1929, regulating the treatment of prisoners of war were violated. No representative neutral power was notified nor was a three months period allowed to elapse before the execution of the death sentences. Other provisions of the Geneva Convention were also violated. The coercion employed in securing the surrender, the unsettled status of the Italians after their unconditional surrender to the Allied forces and the lack of a declaration of war by Germany upon Italy creates grave doubts whether the members of the Bergamo Division became prisoners of war by virtue of the surrender negotiated by General D’Almazzo. Adopting either view advanced by the Defence, the execution of the Italian officers of the Bergamo Division was unlawful and wholly unjustified. It represents another instance of the German practice of killing as the exclusive remedy or redress for alleged wrongs. The execution of these Italian officers after the tense military situation had righted itself and the danger had passed cannot be described as anything but an act of vengeance.”

(xii)  The Legal Status of the “ Croatian Government.”

In dealing with the case against the accused von Leyser, formerly commander of the XXIst German Mountain Corps,(Footnote 1: See p. 45.) the Tribunal made the following remarks concerning the so-called independent state of Croatia :

“ The reprisal practice as carried out in this corps area and the alleged deportation of inhabitants for slave labour is so interwoven with the powers of the alleged independent state of Croatia that its status and relationship to the German Armed Forces must be examined.  Prior to the invasion of Yugoslavia by Germany on 6th April, 1941, Croatia was a part of the sovereign state of Yugoslavia and recognised as such by the nations of the world. Immediately after the occupation and on 10th April, 1941, Croatia was proclaimed an independent state and formally recognised as such by Germany on 15th April, 1941.In setting up the Croatian government, the Germans, instead of employing the services of the Farmers’ Party, which was predominant in the country, established an administration with Dr. Ante Pavelitch at its head. Dr. Pavelitch was brought in from Italy along with others

p. 73

of his group and established as the governmental head of the state of Croatia even though his group represented only an estimated five per cent of the population of the country. This government, on 15th June, 1941, joined the Three Power Pact and, on 25th November, 1941, joined the Anti-Comintern Pact. On 2nd July, 1941, Croatia entered the war actively against the Soviet Union and on 14th December, 1941, against the Allies. The Military Attaché became the German Plenipotentiary General in Croatia and was subordinated as such to the Chief of the High Command of the Armed Forces. The territorial boundaries of the new Croatia were arbitrarily established and included areas that were occupied by Serbians who were confirmed enemies of the Croats.

“ The Croatian government, thus established, proceeded to organise a national army, the troops of which are referred to in the record as Domobrans. Certain Ustasha units were also trained and used. The Ustasha in Croatia was a political party similar to the Nazi party of Germany. Similar to the Waffen SS Divisions of the general Ustasha were trained and used. In addition, by an alleged agreement between Germany and Croatia, the Croatian government conscripted men from its population for compulsory labour and military service. Many of these men were used in German organised Croat Divisions and became a part of the Wehrmacht under the command of German officers.  

“ It is further shown by the evidence that all matters of liaison were handled through the German Plenipotentiary General. It is evident that requests of the Germans were invariably acceded to by the Croatian government. It is quite evident that the answers to such requests were dictated by the German Plenipotentiary General. Whatever the form or the name given, the Croatian government during the German war-time occupation was a satellite under the control of the occupying power. It dissolved as quickly after the withdrawal of the Germans as it had arisen upon their occupation. Under such circumstances, the acts of the Croatian government were the acts of the occupation power.  Logic and reason dictate that the occupant could not lawfully do indirectly that which it could not do directly. The true facts must control irrespective of the form with which they may have been camouflaged.  Even International Law will cut through form to find the facts to which its rules will be applied. The conclusion reached is in accord with previous pronouncements of International Law that an occupying power is not the sovereign power although it is entitled to perform some acts of sovereignty. The Croatian government could exist only at the sufferance of the occupant. During the occupation, the German Military Government was supreme or its status as a military occupant of a belligerent enemy nation did not exist. Other than the rights of occupation conferred by International Law, no lawful authority could be exercised by the Germans. Hence, they had no legal right to create an independent sovereign state during the progress of the war. They could set up such a provisional government as was necessary to accomplish the purposes of the occupation but further than that they could not legally go. We are of the view that Croatia was at all times here

p.74 

involved an occupied country and that all the acts performed by it were those for which the occupying power was responsible. (Footnote 1: Compare a similar attitude adopted by the Tribunal which conducted the Milch Trial, towards the Vichy Government. See Vol. VII, pp. 38 and 46.) ”

Of the accused’s claim that the disposition of the men captured as a result of  “ Operation Panther (Footnote 2: See p.46.) was a matter for the “ Croatian Government and not his concern,” the Tribunal ruled as follows :

“ We point out that the Croatian government was a satellite government and whatever was done by them was done for the Germans.  The captured men fit for military service were turned over to the Croat administration and were undoubtedly conscripted into the Domobrans, the Waffen Ustasha, the Croat units of the Wehrmacht or shipped to Germany for compulsory labour just as the defendant well knew that they would be. The occupation forces have no authority to conscript military forces from the inhabitants of occupied territory. They cannot do it directly, nor can they do it indirectly. When the defendant as commanding general of the corps area participated in such an activity, he did so in violation of International Law. The result is identical if these captured inhabitants were sent to Germany for compulsory labour service. Such action is also plainly prohibited by International Law as the evidence shows. See Articles 6, 23, 46, Hague Regulations. We find the defendant von Leyser guilty on this charge.” (Footnote 3: The charge referred to was defined by the Tribunal as “ pertaining to the evacuation of large areas within the corps command for the. purpose of conscripting the physically fit into the Croatian military units and of conscripting others for compulsory labour service.”)

(xiii) General Remarks on the Mitigation of Punishment

Towards the end of its Judgment, the Tribunal made the following remark regarding the circumstances which might be considered in mitigation of punishment :

“ Throughout the course of this opinion we have had occasion to refer to matters properly to be considered in mitigation of punishment.  The degree of mitigation depends upon many factors including the nature of the crime, the age and experience of the person to whom it applies, the motives for the criminal act, the circumstances under which the crime was committed and the provocation, if any, that contributed to its commission. It must be observed, however, that mitigation of punishment does not in any sense of the word reduce the degree of the crime. It is more a matter of grace than of defence.  In other words, the punishment assessed is not a proper criterion to be considered in evaluating the findings of the Court with reference to the degree of magnitude of the crime.”

In dealing with the evidence against Dehner, the Tribunal said :

“ There is much that can be said, however, in mitigation of the punishment to be assessed from the standpoint of the defendant. Superior orders existed which directed the policy to be pursued in dealing with the killing of hostages and reprisal prisoners. Such

p.75

superior orders were known by his subordinate commanders, a situation that made it difficult for him to act. That the defendant recognised certain injustices and irregularities and attempted to correct them is evident from the record. . . . Such examples of conscientious efforts to comply with correct procedure warrant mitigation of the punishment.” (Footnote1:  The Tribunal dealt with the plea of superior orders more fully earlier in its Judgment. See pp. 50-2.)

4. THE FINDINGS OF THE TRIBUNAL

During. the course of its Judgment, the Tribunal found the accused not guilty of certain of the allegations made against them :

“ Much has been said about the participation of these defendants in a preconceived plan to decimate and destroy the populations of Yugoslavia and Greece. The evidence will not sustain such a charge and we so find. The only plan demonstrated by the evidence is one to suppress the bands by the use of severe and harsh measures. While these measures progressively increased as the situation became more chaotic, and appeared to have taken a more or less common course, we cannot say that there is any convincing evidence that these defendants participated in such measures for the preconceived purpose of exterminating the population generally.

“ Neither will the evidence sustain a finding that these defendants participated in a preconceived plan to destroy the economy of the Balkans. Naturally there was a disruption of the economy of these countries but such only as could be expected by a military occupation.  There were unlawful acts that had the effect of damaging the economy of Yugoslavia and Greece, possibly the result of a preconceived plan, but the evidence does not show the participation of these defendants therein.”

Of List the Tribunal said : “ The evidence shows that after the capitulation of the armies of Yugoslavia and Greece, both countries were occupied within the meaning of International Law. It shows further that they remained occupied during the period that List was Armed Forces Commander Southeast. It is clear from the record also that the guerrillas participating in the incidents shown by the evidence during this period were not entitled to be classed as lawful belligerents within the rules herein before announced.  We agree, therefore, with the contention of the defendant List that the guerrilla fighters with which he contended were not lawful belligerents entitling them to prisoner of war status upon capture. We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans in Yugoslavia and Greece during the time he was Armed Forces Commander Southeast.” List was also found not guilty of “ any crime in connection with the Commissar Order.“(Footnote 2: See p. 40.) He was, however, found guilty on Counts One and Three as a whole.

Kuntze and Rendulic were found guilty on Counts One, Three and Four.

Of Foertsch, the Tribunal concluded that “ the nature of the position of the defendant Foertsch as Chief of Staff, his entire want of command

p.76 

authority in the field, his attempts to procure the rescission of certain unlawful orders and the mitigation of others, as well as the want of direct evidence placing responsibility upon him, leads us to conclude that the Prosecution has failed to make a case against the defendant. No overt act from which a criminal intent could be inferred, has been established.  

“ That he had knowledge of the doing of acts which we have herein held to be unlawful under International Law cannot be doubted. It is not enough to say that he must have been a guilty participant. It must be shown by some responsible act that he was. Many of these acts were committed by organisations over which the Wehrmacht, with the exception of the commanding general, had no control at all. Many others were carried out through regular channels over his voiced objection or passive resistance. The evidence fails to show the commission of an unlawful act which was the result of any action, affirmative or, passive, on the part of this defendant. His mere knowledge of the happening of unlawful acts does not meet the requirements of criminal law. He must be one who orders, abets or takes a consenting part in the crime. We cannot say that the defendant met the foregoing requirements as to participation. We are required to say therefore that the evidence does not show beyond a reasonable doubt that the defendant Foertsch is guilty on any of the counts charged.”

Von Geitner was also found not guilty, on the grounds of his not having been shown to have taken any consenting part in illegal acts, “ coupled with the nature and responsibilities of his position and the want of authority on his part to prevent the execution of the unlawful acts charged.” 

Dehner was held  “ criminally responsible for permitting or tolerating ” the practice of illegally killing hostages and reprisal prisoners  “ on the part of his subordinate commanders. ” He was found guilty on Count One of the Indictment.

Von Leyser was found guilty on Counts Three and Four, Felmy on Counts One and Two, Lanz on Counts One and Three, and Speidel on Count One.

List and Kuntze were sentenced to life imprisonment, Rendulic and Speidel were sentenced to imprisonment for twenty years, Felmy for fifteen years, Lanz for twelve years, Leyser for ten years and Dehner for seven years.

At the time of going to press the sentences had not received the approval of the Military Governor.

B. NOTES ON THE CASE

1. THE LAW RELATING TO HOSTAGES AND REPRISALS

The most interesting passages in the Judgment of the Tribunal (Footnote l: See pp.55-56) are those dealing with the law concerning the taking and killing of hostages and the question of reprisals.

The Tribunal began by ruling that, at the relevant time, Yugoslavia, Albania, Greece and Norway were occupied territories within the meaning of the Hague Convention No. IV of 1907, and that the partisan bands, 

p. 7 7 

many of whose members were victims of the accused’s acts, were not lawful belligerents within the terms of Article 1 of the Convention, (Footnote l: Article 1 provides : “ The laws, rights and duties of war apply not only to the army, but also to militia and volunteer corps fulfilling all the following conditions : (1) they must be commanded by a person responsible for his subordinates ; (2)  they must have a fixed distinctive sign recognizable at a distance ; (3) they must carry arms openly ; and (4)   they must 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 ' armv '.”) but guerrillas liable to be shot on capture.

It would seem that in the Tribunal’s opinion, it would be possible for a fighting group to be entitled to belligerent status under Article 1 of the Convention, even though not “ supported by an organised government ”; and “ where room exists for an honest error in judgment,” the opposing commander “ is entitled to the benefit thereof by virtue of. the presumption of his innocence.” (Footnote 2: See p.58 )

The Tribunal laid down further that the rights and duties of an occupying power were not altered by his having become such an occupant as the result of aggressive warfare.

Turning to the question of hostages and reprisals, the Tribunal pointed out that it restricted its enquiry to “ the right to take hostages from the innocent civilian population of occupied territory as a guarantee against attacks by unlawful resistance forces, acts of sabotage and the unlawful acts of unknown persons and the further right to execute them if the unilateral guarantee is violated”; the taking of hostages to compel armed forces to respect the laws of war would not be discussed. (Footnote 3: In the next paragraph, the Tribunal said that it was concerned only with hostages taken “ to ensure against unlawful acts by enemy forces or people.” This second reference to “ enemy forces ” must, however, be taken to mean guerrilla units not falling within the category of the legal belligerents.)

In the opinion of the Tribunal the taking and shooting of hostages in order to guarantee the peaceful conduct in the future of the populations of occupied territories, may in certain circumstances be legal under International Law. The Tribunal based its opinion upon the “ available evidence,” which was said earlier to consist of “ certain rules of customary law and certain inferences legitimately to be drawn from existing conventional law.“(Footnote 4: See pp.60 and 61.) At a later point (Footnote 5: See p.63.) the Tribunal drew attention to the fact that the British Manual of Military Law permitted the taking of reprisals against a civilian population (putting to death is not mentioned), and the United States Basic Field Manual (Rules of Land Warfare) even the putting to death of hostages; and claimed that the killing of hostages was not prohibited under international agreement: but added : “ The taking of reprisals against the civilian population by killing members thereof in retaliation for hostile acts against the armed forces or military operations of the occupant seems to have been originated by Germany in modern times. It has been invoked by Germany in the France-Prussian War, World War I and in World War II. No other nation has resorted to the killing of members

p.78

of the civilian population to secure peace and order in so far as our investigation has revealed.”

The Tribunal stated that “ the taking of hostages is based fundamentally on a theory of collective responsibility,” and, in its consideration, of Article 50 of the Hague Regulations, it may have been influenced by the report of the Hague Conference of 1899 (page 151) which stated that the Article was “ without prejudice of the question of reprisals ” (Quoted in footnote 2 to paragraph 452 of Chapter XIV of the British Manual of Military Law). Article 50 provides as follows :

“ Article 50. No collective penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which it cannot be regarded as collectively responsible.” 

The conditions under which hostages may be taken and killed were said to be the following :

(i)  the step should be taken only “ as a last resort ” and only after regulations such as those elaborated by the Tribunal (Footnote l: see p. 62.) had first been enforced;

(ii) the hostages may not be taken or executed as a matter of military expediency;

(iii)  “ The population generally ” must be a party “ either actively or passively,” to the offences whose cessation is aimed at.

(The Tribunal did not define the nature of “ active ” or “ passive ” participation, but stated that “ some connection ” must be shown “ between the population from whom the hostages are taken and the crime committed.” (Footnote 2: Elsewhere, however, the Tribunal pointed out that there was “ nothing to infer that the population of Topola [from whom certain hostages had been taken and shot] supported or shielded the guilty persons.” See p. 65.))

(iv)  It must have proved impossible to find the actual perpetrators of the offences complained of;

(v) a proclamation must be made, “ giving the names and addresses of hostages taken, notifying the population that upon the recurrence of stated acts of war treason the hostages will be shot ”;

(vi) “ the number of hostages shot must not exceed in severity the offences the shooting is designed to deter.”

(The Tribunal did not, however, suggest any tests whereby such measures could be related to offences whose perpetration was expected); and

(vii) “ Unless the necessity for immediate action is affirmatively shown, the execution of hostages or reprisal prisoners without a judicial hearing is unlawful.“(Footnote 3: See pp. 64-5.)

(It was not stated on what charges hostages would be tried and what would be the nature of proceedings taken against them; a passage in the judgment, however, suggests that what was meant was not a trial in the

p.79

usual sense but “ a judicial fiding that the necessary conditions exist and the essential steps have been taken to give validity to such action.” (Footnote 1: See p.64l) 

The Tribunal next turned its attention to the taking and killing of  “reprisal prisoners ” whom it defined as “ those individuals who are taken from the civilian population to be killed in retaliation for offences committed by unknown persons within the occupied area.” It may be thought that, according to the stress placed by the Tribunal, such prisoners differ from hostages in that they are killed after, and not in anticipation of, offences on the part of the civilian population;(Footnote 2: See p.61) but, in practice, the difference is not likely to be great, since reprisals are essentially steps taken to prevent future illegal acts, just as are the taking and killing of hostages according to the Tribunal’s definition. (Footnote 3: See p.61) Indeed the latter pointed out that “ the most common reason for holding them [i.e., reprisal prisoners] is for the general purpose of securing the good behaviour and obedience of the civil population in occupied territory,” (Footnote 4: See p.63) and spoke of the deterrent effect of the shooting of reprisal prisoners, (Footnote 4: See p.63-4) and the conditions under which, according to the Tribunal, it is legal to take and shoot hostages on the one hand and reprisal prisoners on the other are much the same. (Footnote 6: Compare pp. 61-2 with pp. 63-6.) In fact, the only practical difference between “ hostages ” and “ reprisal prisoners ” seems to be that the former are taken into custody before, and the latter only after, the offences as a result of which they are executed.  

It will be noted that, in its investigation of the question of the legality of the shooting of hostages and reprisal prisoners, the Tribunal preferred to express an opinion on the position as it appeared to it to exist under customary International Law, and left out any reference to Control Council Law No. 10 and the Charter of the Nurenberg International Military Tribunal, both of which include “ killing of hostages ” in their definition of  “ war crimes.” On the other hand, an examination of the judgment shows that the Tribunal’s conclusion that the killing of hostages and reprisal prisoners may in certain circumstances be legal has not been the reason for a finding of not guilty regarding any of the accused in the trial with the possible exception of the defendant von Leyser, of whom the Tribunal said : “ The evidence concerning the killing of hostages and reprisal prisoners within the corps area is so fragmentary that we cannot say that the evidence is sufficient to support a finding that the measures taken were unlawful.  The killing of hostages and reprisal prisoners is entirely lawful under certain circumstances. The evidence does not satisfactorily show in what respect, if any, the law was violated. This is a burden cast upon the prosecution which it has failed to sustain.” This accused was, therefore, found not guilty under Count One of the Indictment, but guilty on other counts.

While its conclusion on the question of hostages and reprisals was not, therefore, of any great practical importance as far as the findings on the 

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

Stuart.Stein@uwe.ac.uk
Last Updated 29/01/07 18:37:02
©S D Stein
 
Faculty of Humanities, Languages and Social Science