The so-called Barbarossa Jurisdiction Order is in a different category from the Commissar and Commando Orders and its consideration is somewhat more complicated. This order was issued by Keitel on 13 May 1941 as "Decree on Exercising Military Jurisdiction in the Area of Barbarossa and Special Measures by the Troops", and reads as follows (C-50, Pros. Ex. 594):
"The Wehrmacht's application of its laws (Wehrmachtgerichtsbarkeit) place at maintaining discipline.
"The vast extent of the operational areas in the East, the fighting methods necessitated thereby and the peculiarity of the enemy give the Wehrmacht courts jobs which - in view of their limited personnel - they can only solve during war operations and until some degree of pacification has been obtained in the conquered area if they limit themselves at first to their main task.
"This is possible only if the troops themselves oppose ruthlessly any threat from the enemy population.
"For these reasons herewith the following is ordered for the area 'Barbarossa' (area of operations, army group rear area, and area of political administration).
I. "Treatment of crimes committed by enemy civilians
"1. Until further order the military courts and the courts martial will not be competent for crimes committed by enemy civilians.
"2. Francs-tireurs will be liquidated ruthlessly by the troops in combat or while fleeing.
"3. Also all other attacks by enemy civilians against the armed forces, its members, and auxiliaries will be suppressed on the spot by the troops with the most rigorous methods until the assailants are finished (niederkaempfen)
"4. Where such measures were not taken or at least were not possible, persons suspected of the act will be brought before an officer at once. This officer will decide whether they are to be shot.
"Against localities from which troops have been attacked in or treacherous manner, collective coercive measures be applied immediately upon the order of an officer of the rank of at least battalion etc., commander, if the circumstances do not permit a quick identification of individual perpetrators
"5. It is strictly forbidden to keep suspects in custody in order to put them at the disposal of the courts after the reinstatement of jurisdiction over indigenous inhabitants.
"6. The commanders in chief of the army groups can - by agreement with the competent commanders of the Luftwaffe and the navy - reinstate jurisdiction of the Wehrmacht courts for civilians, in areas sufficiently pacified.
"For the area of the political administration this order will be given by the Chief of the OKW.
II. "Treatment of crimes committed against inhabitants by members of the Wehrmacht and its auxiliaries
"1. With regard to offenses committed against enemy civilians by members of the Wehrmacht or by its auxiliaries prosecution is not obligatory, even where the deed is at the same time a military crime or misdemeanor.
"2. When judging such offenses, it will be taken into consideration in any type of procedure that the collapse of Germany in 1918, the subsequent sufferings of the German people and the fight against national socialism which cost the blood of innumerable followers of the movement were caused primarily by Bolshevist influence and that no German has forgotten this fact.
"3. Therefore the judiciary will decide in such case whether disciplinary punishment will be appropriate, or whether prosecution in court is necessary. In the case of offenses against indigenous inhabitants the judiciary will order a prosecution before the military courts only if the maintenance of discipline or the security of the forces call for such a measure. This applies for instance to serious deeds due to lack of self-control in sexual matters, which originate from a criminal disposition and which indicates that the discipline of the troops is threatening to deteriorate seriously. Crimes which have resulted in senseless destruction of billets or stores or any other kind of captured material, to the disadvantage of our forces will be judged, as a rule, not less severely.
"The order to start investigation procedure requires in every single case the signature of the judicial authority.
"4. Extreme caution is required in judging the credibility of statements made by enemy civilians.
III. "Responsibility of the Troop Commanders
"In as far as they are competent, it is the personal responsibility of the troop commanders to see to it:
"1. That all officers of the units under their command are instructed in time and in the most emphatic manner about the principles set out under I above.
"2. That their legal advisers are informed in time of these rules and of the verbal communications in which the political intentions of the Supreme Command (Fuehrung) were explained to the commanders in chief.
"3. That only those sentences will be confirmed which correspond to the political intentions of the Supreme Command (Fuehrung).
IV. "Protection as secret matter
"Once the camouflage is lifted this decree will merely have the classification of Top Secret."
It is divided into two main parts: first, it dispensed with court martial jurisdiction over the civilian population and provided that civilians in the occupied areas would be subjected to arbitrary punishment upon the decision of an officer. The second part provided that there was no obligation to prosecute members of the Wehrmacht or its auxiliaries who committed crimes against enemy civilians except in cases involving discipline which were restricted to certain types of offenses.
As to the first phase, court martial jurisdiction of civilians is not considered under international law an inherent right of a civilian population and is not an inherent prerogative of a military commander. The obligation towards civilian populations concerns their fair treatment. Court martial jurisdiction of a military commander and its extent are determined by his superiors. It has been urged in this trial that there is no rule of international law that guerrillas be brought to trial before a court and that this order authorizing their disposition on the arbitrary decision of an officer is therefore not illegal. There may be some doubt that trial before a court is in fact required under international law.
But in considering this order it must be borne in mind that it was not solely applicable to guerrillas and that it is an obligation upon an occupying force to provide for the fair treatment of the civilians within the occupied area. Whatever may be said as to the summary proceedings against guerrillas, the allowing of such summary proceedings in the discretion of a junior officer, in the case of the wide variety of offenses that were left open to him, is considered criminal.
Furthermore the fourth paragraph of section I above in its most favorable construction is at best ambiguous but the logical inference to be drawn from this section goes further in the opinion of the Tribunal and provides that suspected francs-tireurs may be shot, which is also considered illegal.
The fourth paragraph of section I also provides for collective coercive measures to be applied immediately upon the order of an officer of at "least battalion, etc., commander" and is considered illegal in that it places no limitations upon such collective actions whatsoever.
For these reasons the first part of this order is considered illegal and we so find.
With regard to the second aspect of this order, that is the obligation to prosecute soldiers who commit offenses against the indigenous population, this obligation as a matter of international law is considered doubtful. The duty imposed upon a military commander is the protection of the civilian population. Whether this protection be assured by the prosecution of soldiers charged with offenses against the civilian population, or whether it be assured by disciplinary measures or otherwise, is immaterial from an international standpoint. This order in this respect is subject to interpretation. It surely opened the door to serious infractions of discipline. The German Army was concerned with the discipline of its troops. That discipline could not be maintained without punishment. Unwarranted acts of a soldier against a civilian constituted a breach of discipline. As a matter of fact, practically any offense against civilians could be construed as a breach of discipline. The provisions of the act itself recognize in part this situation. Recognition of this fact in the order was further strengthened by the von Brauchitsch so-called disciplinary order. This order was issued on 5/21/1941, practically coincident with the Barbarossa Jurisdiction Order, and was quoted above in connection with the Commissar Order.
This order was apparently given wide distribution and it is considered not without merit that the military authorities in the issuance of this order had substantially limited section II of the Barbarossa Jurisdiction Order insofar as that order did away with the obligation to prosecute. At any rate, as far as the acts of a soldier against the civilian population were concerned, practically any act might be interpreted as an act against discipline.
This disciplinary order by von Brauchitsch, however, was virtually canceled by certain subsequent orders issued by Keitel which will be hereafter noted in this opinion.
As regards the first part of the Barbarossa Jurisdiction Order, commanders were merely deprived of jurisdiction. It was not a positive order to do some act. It was merely an order which took away part of their powers. It is difficult to see how courts martial could have been established to try civilians under such circumstances and the actions of such courts would have been illegal and futile. As regards the second part of the order, as heretofore stated, it was subject to the interpretation that unwarranted acts against civilians constituted a breach of discipline. The illegal application of the order, therefore, rested to a marked extent with the commanders in the field.
Another provision of this order must be given consideration in this regard. Paragraph 6 of section I provides that the commander in chief of the army groups can by agreement with the competent commanders of the Luftwaffe and the navy "reinstate jurisdiction of the Wehrmacht courts for civilians, in areas sufficiently pacified." While the limitation is placed upon this provision that the areas must be sufficiently pacified before the jurisdiction of the Wehrmacht courts could be reinstated, this provision nevertheless left the door open for commanders in chief of army groups opposed to the arbitrary provisions of the order as to civilians, to take action to eliminate it from their areas. This the record shows none of them did.
This Tribunal does not hold field commanders guilty for a failure to properly appraise the fine distinctions of international law, nor for failure to execute courts martial jurisdiction which had been taken away from them, but it does consider them criminally responsible for the transmission of an order that could, and from its terms would, be illegally applied where they have transmitted such an order without proper safeguards as to its application. For that failure on their part they must accept criminal responsibility for its misapplication within subordinate units to which they transmitted it. And in view of the relation of this order to francs-tireurs, it takes the view that while commanding generals might not be able under the provisions of the Barbarossa Jurisdiction Order to establish courts martial to try them, that such commanders were nevertheless responsible, within the areas of their commands, for the summary execution of persons who were merely suspects or those who, from their acts, were not in fact francs-tireurs at all, such as the execution of the nineteen year old girl who wrote asong derogatory of the German invader of her country.