by David Thompson on 12 Jul 2004 18:30 [In the matter of the United States of America against Wilhelm List, et al., sitting at Nuernberg, Germany, on 2/1/1948, Justice Wennerstrum, presiding.]
PRESIDING JUDGE WENNERSTRUM: Judge Carter will read the first portion of the opinion.
JUDGE CARTER: In this case, the United States of America prosecutes each of the defendants on one or more of four counts of an indictment charging that each and all of said defendants unlawfully, willfully, and knowingly committed war crimes and crimes against humanity as such crimes are defined in Article ll of the Control Council Law No. 10. They are charged with being principals in and accessories to the murder of thousands of persons from the civilian population of Greece, Yugoslavia, Norway, and Albania between 9/1939 and 5/1945 by the use of troops of the German armed forces under the command of and acting pursuant to orders issued, distributed, and executed by the defendants at the bar. It is further charged that these defendants participated in a deliberate scheme of terrorism and intimidation, wholly unwarranted and unjustified by military necessity, by the murder, ill-treatment and deportation to slave labor of prisoners of war and members of the civilian populations in territories occupied by the German armed forces; by plundering and pillaging public and private property and wantonly destroying cities, towns, and villages for which there was no military necessity. Upon these charges, each of the defendants except the defendant Boehme has been formally arraigned and a plea of not guilty accepted.
The indictment alleges that the defendants committed the acts charged while occupying the positions hereafter shown during the periods of time indicated:
The defendant Wilhelm List was a Generalfeldmarschall [Field Marshal] (General of the Army) of the German armed forces, serving as commander in chief, 12th Army, from 4/1941 to 10/1941; Armed Forces Commander Southeast from 6/1941 to 10/1941; and as commander in chief, Army Group, from 7/1942 to 9/1942.
The defendant Maximilian von Weichs was a Generalfeldmarschall [Field Marshal] (General of the Army) of the German armed forces, serving as commander in chief, 2d Army, from 4/1941 to 7/1942; commander in chief, Army Group B, from 7/1942 to 2/1943; and commander in chief, Army Group F, and Supreme Commander Southeast from 8/1943 to 3/1945.
The defendant Lothar Rendulic was a Generaloberst (General) in the German armed forces, serving as commander in chief, 2d Panzer Army, from 8/1943 to 6/1944; commander in chief, 20th Mountain Army, from 7/1944 to 1/1945; Armed Forces Commander North from 12/1944 to 1/1945; commander in chief, Army Group North, from 1/1945 to 3/1945; commander in chief, Army Group Courland, from 3/1945 to 4/1945; and commander in chief, Army Group South, from 4/1945 to 5/1945.
The defendant Walter Kuntze was a General der Pioniere (Lieutenant General, Engineers) in the German armed forces, serving as acting commander in chief, 12th Army, from 10/1941 to 8/1942, and Deputy Armed Forces Commander Southeast during the same period.
The defendant Hermann Foertsch was a General der Infanterie (Lieutenant General, Infantry) in the German armed forces, serving as chief of staff, 12th Army, from 5/1941 to 8/1942; chief of staff, Army Group E, from 8/1942 to 8/1943; and chief of staff, Army Group F, from 8/1943 to 3/1944.
The defendant Franz Boehme was a General der Gebirgstruppen (Lieutenant General, Mountain Troops) in the German armed forces, serving as commander, XVIII Mountain Army Corps, from 4/1941 to 12/1941; Plenipotentiary Commanding General in Serbia from 9/1941 to 12/1941; and commander in chief, 2d Panzer Army, from 6/1944 to 7/1944.
The defendant Helmuth Felmy was a General der Flieger (Lieutenant General, Air Force) in the German armed forces, serving as commander Southern Greece, from 6/1941 to 8/1942; and commander LXVIII Army Corps, from 6/1943 to 10/1944.
The defendant Hubert Lanz was a General der Gebirgstruppen (Lieutenant General, Mountain Troops) in the German armed forces, serving as commander, 1st Mountain Division, from 10/1940 to 1/1943; and commander, XXII Mountain Army Corps, from 8/1943 to 10/1944
The defendant Ernst Dehner was a General der Infanterie (Lieutenant General, Infantry) in the German armed forces, serving as commander LXIX Army Reserve Corps from 8/1943 to 3/1944.
The defendant Ernst von Leyser was a General der Infanterie (Lieutenant General, Infantry) in the German armed forces, serving as commander, XV Mountain Army Corps, from 11/1943 to 7/1944; and commander, XXI Mountain Army Corps, from 7/1944 to 4/1945.
The defendant Wilhelm Speidel was a General der Flieger (Lieutenant General, Air Force) in the German armed forces, serving as commander, Southern Greece, from 10/1942 to 9/1943; and Military Commander Greece from 9/1943 to 6/1944.
The defendant Kurt von Geitner was a Generalmajor (Brigadier General) in the German armed forces, serving as chief of staff to the commanding general in Serbia from 7/1942 to 8/1943; and chief of staff to the Military Commander of Serbia and Military Commander Southeast from 8/1943 to 10/1944.
It is alleged in the indictment that the acts charged were violative of Control Council Law No. 10, duly enacted by the Allied Control Council on 12/20/1945. The portions of the law applicable to this case provide as follows [Article II]:"(b) War Crimes. Atrocities or offenses 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 labor 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 offenses, 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 grounds whether or not in violation of the domestic laws of the country where perpetrated.
"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 * * *.
"4. (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."
Pursuant to the provisions of Control Council Law No. 10, the pertinent parts of which are herein set out, the United States of America filed its indictment charging the defendants in four counts with war crimes and crimes against humanity in accordance with the definitions thereof contained. Reduced to a minimum of words, these four counts charge:
1. That defendants were principals or accessories to the murder of hundreds of thousands of persons from the civilian populations of Greece, Yugoslavia, and Albania by troops of the German armed forces; that attacks by lawfully constituted enemy military forces, and attacks by unknown persons, against German troops and installations, were followed by executions of large numbers of the civilian population by hanging or shooting without benefit of investigation or trial; that thousands of noncombatants, arbitrarily designated as "partisans," "Communists," "Communist suspects," "bandit suspects" were terrorized, tortured, and murdered in retaliation for such attacks by lawfully constituted enemy military forces and attacks by unknown persons; and that defendants issued, distributed, and executed orders for the execution of 100 "hostages" in retaliation for each German soldier killed and 50 "hostages" in retaliation for each German soldier wounded.
2. That defendants were principals or accessories to the plundering and looting of public and private property, the wanton destruction of cities, towns, and villages, frequently together with the murder of the inhabitants thereof, and the commission of other acts of devastation not warranted by military necessity in the occupied territories of Greece, Yugoslavia, Albania, and Norway by troops of the German armed forces acting at the direction and order of these defendants; that defendants ordered troops under their command to burn, level, and destroy entire villages and towns and thereby making thousands of peaceful noncombatants homeless and destitute; thereby causing untold suffering, misery, and death to large numbers of innocent civilians without any recognized military necessity for so doing.
3. That defendants were principals or accessories to the drafting, distribution and execution of illegal orders to the troops of the German armed forces which commanded that enemy troops be refused quarters and be denied the status and rights of prisoners of war and surrendered members of enemy forces be summarily executed; that the defendants illegally ordered that regular members of the national armies of Greece, Yugoslavia, and Italy be designated as "partisans," "rebels," "Communists," and "bandits," and that relatives of members of such national armies be held responsible for such members' acts of warfare, resulting in the murder and ill-treatment of thousands of soldiers, prisoners of war, and their noncombatant relatives.
4. That defendants were principals or accessories to the murder, torture, and systematic terrorization, imprisonment in concentration camps, forced labor on military installations, and deportation to slave labor of the civilian populations of Greece, Yugoslavia, and Albania by troops of the German armed forces acting pursuant to the orders of the defendants; that large numbers of citizens - democrats, Nationalists, Jews, and gypsies were seized, thrown into concentration camps, beaten, tortured, ill-treated, and murdered while other citizens were forcibly conscripted for labor in the Reich and occupied territories.
The acts charged in each of the four counts are alleged to have been committed willfully, knowingly, and unlawfully and constitute violations of international conventions, the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and were declared, recognized, and defined as crimes by Article II of Control Council Law No. 10 adopted by the representatives of the United States of America, Great Britain, the Republic of France, and the Soviet Union.
The defendant Franz Boehme committed suicide prior to the arraignment of the defendants, and the Tribunal has ordered his name stricken from the list of defendants contained in the indictment. The defendant Maximilian von Weichs became ill during the course of the trial and it having been conclusively ascertained that he is physically unfit and unable to appear in Court before the conclusion of the trial, his motion that the proceedings be suspended as to him was sustained. This holding is without prejudice to a future trial of this defendant on the charges herein made against him if and when his physical condition permits.
Before venturing into a discussion of specific issues, it seems advisable to briefly state the general nature of international law and the sources from which its principles can be ascertained. No attempt will be made here to give an all inclusive definition of international law, in fact, there is justification for the assertion that it ought not to be circumscribed by strict definition in order that it may have ample room for growth. Any system of law that is obviously subject to growth by the crystallization of generally prevailing custom and practice into law under the impact of common acceptance or consent must not be confined within the limits of formal pronouncement or complete unanimity. For our purposes it is sufficient to say that international law consists of the principles which control or govern relations between nations and their nationals. It is much more important to consider the sources from which these principles may be determined.
The sources of international law which are usually enumerated are (1) customs and practices accepted by civilized nations generally, (2) treaties, conventions, and other forms of interstate agreements, (3) the decisions of international tribunals, (4) the decisions of national tribunals dealing with international questions, (5) the opinions of qualified text writers, and (6) the diplomatic papers. These sources provide a frame upon which a system of international law can be built but they cannot be deemed a complete legal system in themselves. Any system of jurisprudence, if it is to be effective, must be given an opportunity to grow and expand to meet changed conditions. The codification of principles is a helpful means of simplification, but it must not be treated as adding rigidity where resiliency is essential. To place the principles of international law in a formalistic strait-jacket would ultimately destroy any effectiveness that it has acquired.
The tendency has been to apply the term "customs and practices accepted by civilized nations generally," as it is used in international law, to the laws of war only. But the principle has no such restricted meaning. It applies as well to fundamental principles of justice which have been accepted and adopted by civilized nations generally. In determining whether such a fundamental rule of justice is entitled to be declared a principle of international law, an examination of the municipal laws of states in the family of nations will reveal the answer. If it is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of international law would seem to be fully justified. There is convincing evidence that this not only is, but has been the rule. The rules applied in criminal trials regarding burden of proof, presumption of innocence, and the right of a defendant to appear personally to defend himself are derived from this source. Can it be doubted that such a source of international law would be applied to an insane defendant? Obviously he would not be subjected to trial during his incompetency. Clearly, such a holding would be based upon a fundamental principle of criminal law accepted by nations generally. If the rights of nations and the rights of individuals who become involved in international relations are to be respected and preserved, fundamental rules of justice and right which have become commonly accepted by nations must be applied. But the yardstick to be used must in all cases be a finding that the principle involved is a fundamental rule of justice which has been adopted or accepted by nations generally as such.
The defendants invoke the defensive plea that the acts charged as crimes were carried out pursuant to orders of superior officers whom they were obliged to obey. This brings into operation the rule just announced. The rule that superior order is not a defense to a criminal act is a rule of fundamental criminal justice that has been adopted by civilized nations extensively. It is not disputed that the municipal law of civilized nations generally sustained the principle at the time the alleged criminal acts were committed. This being true, it properly may be declared as an applicable rule of international law.
It cannot be questioned that acts done in time of war under the military authority of an enemy cannot involve any criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war. Implicit obedience to orders of superior officers is almost indispensable to every military system. But this implies obedience to lawful orders only. If the act done pursuant to a superior's orders be murder, the production of the order will not make it any less so. It may mitigate but it cannot justify the crime. We are of the view, however, that if the illegality of the order was not known to the inferior, and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists and the interior will be protected. But the general rule is that members of the armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command which violates international law and outrages fundamental concepts of justice. In the German War Trials (1921), the German Supreme Court of Leipzig in The Llandovery Castle case said, "Patzig's order does not free the accused from guilt. It is true that, according to paragraph 47 of the Military Penal Code, if the execution of an order in the ordinary course of duty involves such a violation of the law as is punishable, the superior officer issuing such an order is alone responsible. According to No. 2, however, the subordinate obeying such an order is liable to punishment, if it was known to him that the order of the superior involved the infringement of civil or military law."
It is true that the foregoing rule compels a commander to make a choice between possible punishment by his lawless government for the disobedience of the illegal order of his superior officer, or that of lawful punishment for the crime under the law of nations. To choose the former in the hope that victory will cleanse the act of its criminal characteristics manifests only weakness of character and adds nothing to the defense.
We concede the serious consequences of the choice especially by an officer in the army of a dictator. But the rule becomes one of necessity, for otherwise the opposing army would in many cases have no protection at all against criminal excesses ordered by superiors.
The defense relies heavily upon the writings of Professor L. Oppenheim to sustain their position. It is true that he advocated this principle throughout his writings. As a co-author of the British "Manual of Military Law," he incorporated the principle there. It seems also to have found its way into the United States "Rules of Land Warfare" (1940). We think Professor Oppenheim espoused a decidedly minority view. It is based upon the following rationale: "The law cannot require an individual to be punished for an act which he was compelled by law to commit." The statement completely overlooks the fact that an illegal order is in no sense of the word a valid law which one is obliged to obey. The fact that the British and American Armies may have adopted it for the regulations of its own armies as a matter of policy does not have the effect of enthroning it as a rule of international law. We point out that army regulations are not a competent source of international law. They are neither legislative nor judicial pronouncements. They are not competent for any purpose in determining whether a fundamental principle of justice has been accepted by civilized nations generally. It is possible, however, that such regulations, as they bear upon a question of custom and practice in the conduct of war, might have evidentiary value, particularly if the applicable portions had been put into general practice. It will be observed that the determination, whether a custom or practice exists, is a question of fact. Whether a fundamental principle of justice has been accepted, is a question of judicial or legislative declaration. In determining the former, military regulations may play an important role but in the latter they do not constitute an authoritative precedent.
Those who hold to the view that superior order is a complete defense to an international law crime, base it largely on a conflict in the articles of war promulgated by several leading nations. While we are of the opinion that army regulations are not a competent source of international law, where a fundamental rule of justice is concerned we submit that the conflict in any event does not sustain the position claimed for it. If, for example one be charged with an act recognized as criminal under applicable principles of international law and pleads superior orders as a defense thereto, the duty devolves upon the court to examine the sources of international law to determine the merits of such a plea. If the court finds that the army regulations of some members of the family of nations provide that superior order is a complete defense and that the army regulations of other nations express a contrary view, the court would be obliged to hold, assuming for the sake of argument only that such regulations constitute a competent source of international law, that general acceptation or consent was lacking among the family of nations. In as much as a substantial conflict exists among the nations whether superior order is a defense to a criminal charge, it could only result in a further finding that the basis does not exist for declaring superior order to be a defense to an international law crime. But, as we have already stated, army regulations are not a competent source of international law when a fundamental rule of justice is concerned. This leaves the way clear for the court to affirmatively declare that superior order is not a defense to an international law crime if it finds that the principle involved is a fundamental rule of justice and for that reason has found general acceptance.
International law has never approved the defensive plea of superior order as a mandatory bar to the prosecution of war criminals. This defensive plea is not available to the defendants in the present case, although, if the circumstances warrant, it may be considered in mitigation of punishment under the express provisions of Control Council Law No. 10.
It is urged that Control Council Law No. 10 is an ex post facto act and retroactive in nature as to the crime charged in the indictment. The act was adopted on 12/20/1945, a date subsequent to the dates of the acts charged to be crimes. It is a fundamental principle of criminal jurisprudence that one may not be charged with crime for the doing of an act which was not a crime at the time of its commission. We think it could be said with justification that Article 23h of the Hague Regulations of 1907 operates as a bar to retroactive action in criminal matters. In any event, we are of the opinion that a victorious nation may not lawfully enact legislation defining a new crime and make it effective as to acts previously occurring which were not at the time unlawful. It therefore becomes the duty of a tribunal trying a case charging a crime under the provisions of Control Council Law No. 10 to determine if the acts charged were crimes at the time of their commission and that Control Council Law No. 10 is in fact declaratory of then existing international law.
This very question was passed upon by the International Military Tribunal in the case of the United States vs. Hermann Wilhelm Goering in its judgment entered on 10/1/1946 [Trial of the Major War Criminals, op. cit. supra, judgment of the IMT, vol. I, p. 171 ff.]. Similar provisions appearing in the Charter creating the International Military Tribunal and defining the crimes over which it had jurisdiction were held to be devoid of retroactive features in the following language:"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 adopt this conclusion. Any doubts in our mind concerning the rule thus announced go to its application rather than to the correctness of its statement. The crimes defined in Control Council Law No. 10 which we have quoted herein were crimes under pre-existing rules of international law, some by conventional law such as that exemplified by the Hague Regulations of 1907 clearly make the war crimes herein quoted crimes under the proceedings of that convention. In any event, the practices and usages of war which gradually ripened into recognized customs with which belligerents were bound to comply recognized the crimes specified herein as crimes subject to punishment. It is not essential that a crime be specifically defined and charged in accordance with a particular ordinance, statute, or treaty if it is made a crime by international convention, recognized customs and usages of war, or the general principles of criminal justice common to civilized nations generally. If the acts charged were in fact crimes under international law when committed, they cannot be said to be ex post facto acts or retroactive pronouncements.
The crimes specified in the London Charter and defined in Control Council Law No. 10 which have heretofore been set forth and with which these defendants are charged merely restate the rules declared by the Hague Regulations of 1907 in Articles 43, 46, 7, 50 and 23h of the regulations annexed thereto which provide [Annex to Hague Convention No. IV]: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, the lives of person and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated."Article 47. "Pillage is formally forbidden."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."Article 23. "In addition to the prohibitions provided by special Conventions, it is especially forbidden -.
"h. To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."
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 violations set forth. But this is not fatal to their validity. The acts prohibited are without deterrent effect unless they are punishable as crimes. This subject was dealt with in the International Military Trial in the following language [Ibid., pp. 220-221.]:"But it is argued that the Pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes punishable as offenses against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing."
It is true, of course, that customary international law is not static. It must be elastic enough to meet the new conditions that natural progress brings to the world. It might be argued that this requires a certain amount of retroactive application of new rules and that by conceding the existence of a customary international law, one thereby concedes the legality of retroactive pronouncements. To a limited extent the argument is sound, but when it comes in conflict with a rule of fundamental right and justice, the latter must prevail. The rule that one may not be charged with crime for committing an act which was not a crime at the time of its commission is such a right. The fact that it might be found in a constitution or bill of rights does not detract from its status as a fundamental principle of justice. It cannot properly be changed by retroactive action to the prejudice of one charged with a violation of the laws of war.
An international crime is such an act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances. The inherent nature of a war crime is ordinarily itself sufficient justification for jurisdiction to attach in the courts of the belligerent into whose hands the alleged criminal has fallen.
Some war crimes, such as spying, are not common law crimes at all; they being pure war crimes punishable as such during the war and, in this particular case, only if the offender is captured before he rejoins his army. But some other crimes, such as mass murder, are punishable during and after the war. But such crimes are also war crimes because they were committed under the authority or orders of the belligerent who, in ordering or permitting them, violated the rules of warfare. Such crimes are punishable by the country where the crime was committed or by the belligerent into whose hands the criminals have fallen, the jurisdiction being concurrent. There are many reasons why this must be so, not the least of which is that war is usually followed by political repercussions and upheavals which at times place persons in power who are not, for one reason or another, inclined to punish the offenders. The captor belligerent is not required to surrender the alleged war criminal when such surrender is equivalent to a passport to freedom. The only adequate remedy is the concurrent jurisdictional principle to which we have heretofore adverted. The captor belligerent may therefore surrender the alleged criminal to the state where the offense was committed, or, on the other hand, it may retain the alleged criminal for trial under its own legal processes.
It cannot be doubted that the occupying powers have the right to set up special courts to try those charged with the commission of war crimes as they are defined by international law. Ex Parte Quirin, 317 US 1, In Re Yamashita, 327 US 1. Nor can it be said that the crimes herein charged are invalid as retroactive pronouncements, they being nothing more than restatements of the conventional and customary law of nations governing the rules of land warfare, restricted by charter provisions limiting the jurisdiction of the Tribunal by designating the class of cases it is authorized to hear. The elements of an ex post facto act or a retroactive pronouncement are not present insofar as the crimes charged in the instant case are concerned.
The argument that the defendants cannot be tried before this Tribunal is without force. It is urged they can only be properly tried in accordance with the international principles laid down in Article 63 of the Geneva Convention of 1929 relative to the treatment of prisoners of war. We submit that the provision applies only to crimes and offenses committed while occupying the status of a prisoner of war, and confers no jurisdiction over a violation of international law committed prior to the time of becoming such.
In the recent case of In Re Yamashita, 327 US I, 66 Sup. Ct. 348, the Supreme Court of the United States arrived at this conclusion in the following language:"But we think examination of article 63 in its setting in the Convention plainly shows that it refers to sentence 'pronounced against a prisoner of war' for an offense committed while a prisoner of war, and not for a violation of the law of war committed while a combatant."
The defendants at bar are charged only with crimes alleged to have been committed as combatants before they became prisoners of war. We hold, therefore, that no rights under Article 63 of the Geneva Convention of 1929 can accrue to them in the present case. The jurisdictional question raised is without merit.
It is essential to a proper understanding of the issues involved in the present case, that the status of Yugoslavia, Greece, and Norway be determined during the periods that the alleged criminal acts of these defendants were committed. The question of criminality in many cases may well hinge on whether an invasion was in progress or an occupation accomplished. Whether an invasion has developed into an occupation is a question of fact. The term invasion implies a military operation while an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organized resistance and the establishment of an administration to preserve law and order. To the extent that the occupant's control is maintained and that of the civil government eliminated, the area will be said to be occupied.
The evidence shows that the invasion of Yugoslavia was commenced on 4/6/1941. Nine days later the Yugoslav Government capitulated and on 4/16/1941, large scale military operations had come to an end. The powers of government passed into the hands of the German armed forces and Yugoslavia became an occupied country. The invasion of Yugoslavia followed through into Greece. On 4/22/1941, the Greek armed forces in the north were forced to surrender and on 4/28/1941, Athens fell to the invader. On and after that date Greece became an occupied country within the meaning of existing international law.
The evidence shows that the population remained peaceful during the spring of 1941. In the early summer following, a resistance movement began to manifest itself. It increased progressively in intensity until it assumed the appearance of a military campaign. Partisan bands, composed of members of the population, roamed the territory doing much damage to transportation and communication lines. German soldiers were the victims of surprise attacks by an enemy which they could not engage in open combat. After a surprise attack, the bands would hastily retreat or conceal their arms and mingle with the population with the appearance of being harmless members thereof. Ambushing of German troops was a common practice. Captured German soldiers were often tortured and killed. The terrain was favorable to this type of warfare and the inhabitants most adept in carrying it on.
It is clear that the German armed forces were able to maintain control of Greece and Yugoslavia until they evacuated them in the fall of 1944. While it is true that the partisans were able to control sections of these countries at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country. The control of the resistance forces was temporary only and not such as would deprive the German armed forces of its status of an occupant.
These findings are consistent with Article 4 of the Hague Regulations of 1907 which provide -"Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised."
It is the contention of the defendants that after the respective capitulations a lawful belligerency never did exist in Yugoslavia or Greece during the period here involved. The prosecution contends just as emphatically that it did. The evidence on the subject is fragmentary and consists primarily of admission contained in the reports, orders, and diaries of the German Army units involved. There is convincing evidence in the record that certain band units in both Yugoslavia and Greece complied with the requirements of international law entitling them to the status of a lawful belligerent. But the greater portion of the partisan bands failed to comply with the rules of war entitling them to be accorded the rights of a lawful belligerent. The evidence fails to establish beyond a reasonable doubt that the incidents involved in the present case concern partisan troops having the status of lawful belligerents.
The evidence shows that the bands were sometimes designated as units common to military organization. They, however, had no common uniform. They generally wore civilian clothes although parts of German, Italian, and Serbian uniforms were used to the extent they could be obtained. The Soviet star was generally worn as insignia. The evidence will not sustain a finding that it was such that it could be seen at a distance. Neither did they carry their arms openly except when it was to their advantage to do so. There is some evidence that various groups of the resistance forces were commanded by a centralized command, such as the partisans of Marshal Tito, the Chetniks of Draja Mihailovic and the Edes of General Zervas. It is evident also that a few partisan bands met the requirements of lawful belligerency. The bands, however, with which we are dealing in this case were not shown by satisfactory evidence to have met the requirements. This means, of course, that captured members of these unlawful groups were not entitled to be treated as prisoners of war. No crime can be properly charged against the defendants for the killing of such captured members of the resistance forces, they being francs-tireurs.
The status of an occupant of the territory of the enemy having been achieved, international law places the responsibility upon the commanding general of preserving order, punishing crime, and protecting lives and property within the occupied territory. His power in accomplishing these ends is as great as his responsibility. But he is definitely limited by recognized rules of international law, particularly the Hague Regulations of 1907. Article 48 thereof imposes a duty upon the occupant to respect the laws in force in the country. Article 46 protects family honor and rights, the lives of individuals and their private property as well as their religious convictions and the right of public worship. Article 47 prohibits pillage. Article 50 prohibits collective penalties, Article 51 regulates the appropriation of properties belonging to the state or private individuals which may be useful in military operations. There are other restrictive provisions not necessary to mention here. It is the alleged violation of these rights of the inhabitants thus protected that furnish the basis of the case against the defendants.
The evidence is clear that during the period of occupation in Yugoslavia and Greece, guerrilla warfare was carried on against the occupying power. Guerrilla warfare is said to exist where, after the capitulation of the main part of the armed forces, the surrender of the government and the occupation of its territory, the remnant of the defeated army or the inhabitants themselves continue hostilities by harassing the enemy with unorganized forces ordinarily not strong enough to meet the enemy in pitched battle. They are placed much in the same position as a spy. By the law of war it is lawful to use spies. Nevertheless, a spy when captured, may be shot because the belligerent has the right, by means of an effective deterrent punishment, to defend against the grave dangers of enemy spying. The principle therein involved applies to guerrillas who are not lawful belligerents. Just as the spy may act lawfully for his country and at the same time be a war criminal to the enemy, so guerrillas may render great service to their country and, in the event of success, become heroes even, still they remain war criminals in the eyes of the enemy and may be treated as such. In no other way can an army guard and protect itself from the gadfly tactics of such armed resistance. And, on the other hand, members of such resistance forces must accept the increased risks involved in this mode of fighting. Such forces are technically not lawful belligerents and are not entitled to protection as prisoners of war when captured. The rule is based on the theory that the forces of two states are no longer in the field and that a contention between organized armed forces longer exists. This implies that a resistance not supported by an organized government is criminal and deprives participants of belligerent status, an implication not justified since the adoption of chapter I, Article I of the Hague Regulations of 1907. In determining the guilt or innocence of an army when charged with a failure or refusal to accord a belligerent status to captured members of the resistance forces, the situation as it appeared to him must be given the first consideration. Such commander will not be permitted to ignore obvious facts in arriving at a conclusion. One trained in military science will ordinarily have no difficulty in arriving at a correct decision and, if he willfully refrains from so doing for any reason he will be held criminally responsible for wrongs committed against those entitled to the rights of a belligerent. Where room exists for an honest error in judgment, such army commander is entitled to the benefit thereof by virtue of the presumption of his innocence.
We think the rule is established that a civilian who aids, abets or participates in the fighting is liable to punishment as a war criminal under the laws of war. Fighting is legitimate only for the combatant personnel of a country. It is only this group that is entitled to treatment as prisoners of war and incurs no liability beyond detention after capture or surrender.
It is contended by the prosecution that the so-called guerrillas were in fact irregular troops. A preliminary discussion of the subject is essential to a proper determination of the applicable law. Members of a militia or a volunteer corps, even though they are not a part of the regular army, are lawful combatants if (a) they are commanded by a responsible person, (b) if they possess some distinctive insignia which can be observed at a distance, (c) if they carry arms openly, and (d) if they observe the laws and customs of war. (See chapter I, Article I, Hague Regulations of 1907.) In considering the evidence adduced on this subject, the foregoing rules will be applied. The question whether a captured fighter is a guerrilla or an irregular is sometimes a close
one that can be determined only by a careful evaluation of the evidence before the Court.
The question of the right of the population of an invaded and occupied country to resist has been the subject of many conventional debates. (Brussels Conference of 1874; Hague Peace Conference of 1899.) A review of the positions assumed by the various nations can serve no useful purpose here for the simple reason that a compromise (Hague Regulations, 1907) as reached which has remained the controlling authority in the fixing of a legal belligerency. If the requirements of the Hague Regulation, 1907, are met, a lawful belligerency exists; if they are not met, it is an unlawful one.
The prosecution advances the contention that since Germany's wars against Yugoslavia and Greece were aggressive wars, the German occupation troops were there unlawfully and gained no rights whatever as an occupant. It is further asserted as a corollary, that the duties owed by the populace to an occupying power which are normally imposed under the rules of international law, never became effective in the present case because of the criminal character of the invasion and occupation.
For the purposes of this discussion, we accept the statement as true that the wars against Yugoslavia and Greece were in direct violation of the Kellogg-Briand Pact and were therefore criminal in character. But it does not follow that every act by the German occupation forces against person or property is a crime or that any and every act undertaken by the population of the occupied country against the German occupation forces thereby became legitimate defense. The prosecution attempts to simplify the issue by posing it in the following words:"The sole issue here is whether German forces can with impunity violate international law by initiating and waging wars of aggression and at the same time demand meticulous observance by the victims of these crimes of duties and obligations owed only to a lawful occupant."
At the outset, we desire to point out that international law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory. There is no reciprocal connection between the manner of the military occupation of territory and the rights and duties of the occupant and population to each other after the relationship has in fact been established. Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject.
It must not be overlooked that international law is prohibitive law. Where the nations have affirmatively acted, as in the case of the Hague Regulations, 1907, it prohibits conduct contradictory thereto. Its specific provisions control over general theories, however reasonable they may seem. We concur in the views expressed in the following text on the subject [Oppenheim, op. cit. supra, p. 79.]: "Whatever may be the cause of a war that has broken out, and whether or no the cause be a so-called just cause, the same rules of international law are valid as to what must not be done, may be done, and must be done by the belligerents themselves in making war against each other, and as between the belligerents and neutral states. This is so, even if the declaration of war is ipso facto a violation of international law, as when a belligerent declares war upon a neutral state for refusing passage to its troops, or when a state goes to war in patent violation of its obligations under the Covenant of the League or of the General Treaty for the Renunciation of War [Ibid.]. To say that, because such a declaration of war is ipso facto a violation of neutrality and international law, it is 'inoperative in law and without any judicial significance' is erroneous. The rules of international law apply to war from whatever cause it originates."
The major issues involved in the present case gravitate around the claimed right of the German armed forces to take hostages from the innocent civilian population to guarantee the peaceful conduct of the whole of the civilian population and its claimed right to execute hostages, members of the civil population, and captured members of the resistance forces in reprisal for armed attacks by resistance forces, acts of sabotage and injuries committed by unknown persons.
We wholly exclude from the following discussion of the subject of hostages the right of one nation to take them, to compel the armed forces of another nation to comply with the rules of war or the right to execute them if the enemy ignores the warning. We limit our discussion to the right to take hostages from the innocent civilian population of occupied territory as a guaranty 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 guaranty is violated.
Neither the Hague Convention of 1907, nor any other conventional law for that matter, says a word about hostages in the sense that we are to use the term in the following discussion. But certain rules of customary law and certain inferences legitimately to be drawn from existing conventional law lay down the rules applicable to the subject of hostages. In former times prominent persons were accepted as hostages as a means of insuring observance of treaties, armistices, and other agreements, the performance of which depended on good faith. This practice is now obsolete. Hostages under the alleged modern practice of nations are taken (a) to protect individuals held by the enemy, (b) to force the payment of requisitions, contributions, and the like, and (c) to insure against unlawful acts by enemy forces or people. We are concerned here only with the last provision. That hostages may be taken for this purpose cannot be denied.
The question of hostages is closely integrated with that of reprisals. A reprisal is a response to an enemy's violation of the laws of war which would otherwise be a violation on one's own side. It is a fundamental rule that a reprisal may not exceed the degree of the criminal act it is designed to correct. Where an excess is knowingly indulged, it in turn is criminal and may be punished. Where innocent individuals are seized and punished for a violation of the laws of war which has already occurred, no question of hostages is involved. It is nothing more than the infliction of a reprisal. Throughout the evidence in the present case, we find the term hostage applied where a reprisal only was involved.
Under the ancient practice of taking hostages they were held responsible for the good faith of the persons who delivered them, even at the price of their lives. This barbarous practice was wholly abandoned by a more enlightened civilization. The idea at an innocent person may be killed for the criminal act of another is abhorrent to every natural law. We condemn the injustice of any such rule as a barbarous relic of ancient times. But it is not our province to write international law as we would have it; we must apply it as we find it.
For the purposes of this opinion the term "hostages" will be considered as those persons of the civilian population who are taken into custody for the purpose of guaranteeing with their lives the future good conduct of the population of the community from which they were taken. The term "reprisal prisoners" will be considered as those individuals who are taken from the civilian population to be killed in retaliation for offenses committed by unknown persons within the occupied area.
An examination of the available evidence on the subject convinces us that hostages may be taken in order to guarantee the peaceful conduct of the populations of occupied territories and, when certain conditions exist and the necessary preliminaries have been taken, they may, as a last resort, be shot. The taking of hostages is based fundamentally on a theory of collective responsibility. The effect of an occupation is to confer upon the invading force the right of control for the period of the occupation within the limitations and prohibitions of international law. The inhabitants owe a duty to carry on their ordinary peaceful pursuit and to refrain from all injurious acts toward the troops or in respect to their military operations. The occupant may properly insist upon compliance with regulations necessary to the security of the occupying forces and for the maintenance of law and order. In the accomplishment of this objective, the occupant may only, as a last resort, take and execute hostages.
Hostages may not be taken or executed as a matter of military expediency. The occupant is required to use every available method to secure order and tranquility before resort may be had to the taking and execution of hostages. Regulations of all kinds must be imposed to secure peace and tranquility before the shooting of hostages may be indulged. These regulations may include one or more of the following measures: (1) the registration of the inhabitants, (2) the possession of passes or identification certificates, (3) the establishment of restricted areas, (4) limitations of movement, (5) the adoption of curfew regulations, (6) the prohibition of assembly, (7) the detention of suspected persons, (8) restrictions on communication, (9) the imposition of restrictions on food supplies, (10) the evacuation of troublesome areas, (11) the levying of monetary contributions, (12) compulsory labor to repair damage from sabotage, (13) the destruction of property in proximity to the place of the crime, and any other regulation not prohibited by international law that would in all likelihood contribute to the desired result.
If attacks upon troops and military installations occur regardless of the foregoing precautionary measures and the perpetrator cannot be apprehended, hostages may be taken from the population to deter similar acts in the future provided it can be shown that the population generally is a party to the offense, either actively or passively. Nationality or geographic proximity may under certain circumstances afford a basis for hostage selection depending upon the circumstances of the situation. This arbitrary basis of selection may be deplored but it cannot be condemned as a violation of international law, but there must be some connection between the population from whom the hostages are taken and the crime committed. If the act was committed by isolated persons or bands from distant localities without the knowledge or approval of the population or public authorities, and which, therefore, neither the authorities nor the population could have prevented, the basis for the taking of hostages, or the shooting of hostages already taken, does not exist.
It is essential to a lawful taking of hostages under customary law that proclamation be made, giving the names and addresses of hostages taken, notifying the population that upon the recurrence of stated acts of war treason the hostages will be shot. The number of hostages shot must not exceed in severity the offenses the shooting is designed to deter. Unless the foregoing requirements are met, the shooting of hostages is in contravention of international law and is a war crime in itself. Whether such fundamental requirements have been met is a question determinable by court martial proceedings. A military commander may not arbitrarily determine such facts. An order of a military commander for the killing of hostages must be based upon the finding of a competent court martial that necessary conditions exist and all preliminary steps have been taken which are essential to the issuance of a valid order. The taking of the lives of innocent persons arrested as hostages is a very serious step. The right to kill hostages may be lawfully exercised only after a meticulous compliance with the foregoing safeguards against vindictive or whimsical orders of military commanders.
We are also concerned with the subject of reprisals and the detention of members of the civilian population for the purpose of using them as the victims of subsequent reprisal measures. The most common reason for holding them is for the general purpose of securing the good behavior and obedience of the civil population in occupied territory. The taking of reprisals against the civilian population by killing members thereof in retaliation for hostile acts against the armed forces or military operations of the occupant seems to have been originated by Germany in modern times. It has been invoked by Germany in the Franco-Prussian War, World War I, and in World War II. No other nation has resorted to the killing of members of the civilian population to secure peace and order insofar as our investigation has revealed. The evidence offered in this case on that point will be considered later in the opinion. While American, British and French manuals for armies in the field seem to permit the taking of such reprisals as a last resort, the provisions do not appear to have been given effect. The American manual provides in part [Rules of Land Warfare, US Army, Field Manual 27-10, op. cit. supra, par. 358d, p. 89-90.]:"The offending forces or populations generally may lawfully be subjected to appropriate reprisals. Hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy forces or people may be punished or put to death if the unlawful acts are nevertheless committed."
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