Following World War II, the Allied Powers prosecuted twenty-two high-ranking German officials before the International Military Tribunal at Nuremberg. Fn1 This was the prelude to an extensive program of prosecutions in Allied occupied Germany, Europe, and Asia. Fn2
Three of the most significant trials involved Nazi military and police officials. Fn3 These prosecutions clearly established that those who are cloaked in military uniforms are criminally culpable for conduct which contravenes the code of war. The legal interpretations and rules established in these cases continue to provide the guiding principles and procedures for the prosecution of those charged with violations of the humanitarian law of war and genocide. Fn4
Initially, the development and organization of the military under the Third Reich is sketched. This is followed by a review of the trials of Nazi militarists and police. The legal significance of these prosecutions then is capsulized and some concluding comments are offered.
Adolf Hitler articulated his territorial ambitions as early as 1925 in his rambling two-volume tract, Mein Kampf. Fn5 He envisioned a foreign policy based on three goals: The reunification of German territory; Fn6 the incorporation of ethnic Germans into a single homogeneous State; Fn7 and the expansion of "living space" in the East. Fn8 Hitler argued that these were the requisites for an autonomous and strong Germany which could defend itself against France and Russia, the courtesans of the international Jewish cabal. Fn9
According to Hitler, the Jewish conspiracy had insinuated itself into the Reich and was responsible for Germany's defeat in World War I and the imposition of the Versailles Treaty. Fn10 In Hitler's dystopia vision, Germany stood as the dominant domino in international Jewry's design to dominate the globe. The fall of Germany would lead to the inevitable collapse of every country and continent. Fn11 There was no alternative other than to rearm -"Germany will either be a world power or there will be Germany." Fn12
One of the primary pillars of Hitler's policy was expansion into Eastern Europe. Fn13 The incorporation of Russia and surrounding States was viewed as providing soil to support a strong and substantial peasant class Fn14 which, in turn, would serve to nurture and sustain an expanded population. Fn15 As "guardians of the highest humanity," Fn16 Hitler proclaimed that the Reich was obliged "to secure for the German people the land and soil to which they are entitled on this earth." Fn17 While Hitler was mindful that this might require the "sacrifice of blood," Fn18 the Fuehrer was confident that "[t]he soil on which some day German generations of peasants can beget powerful sons will sanction the investment of the sons of today, and will . . . acquit the responsible statesmen of blood-guilt and sacrifice of the people . . .." Fn19
In Hitler's cosmology, countries commanded no claim to the maintenance of their geographic boundaries. These were mere fortuitous frontiers which were subject to forceful transformation. Hitler admonished that "[s]tate boundaries are made by man and changed by man" Fn20 and that "we must not let political boundaries obscure for us the boundaries of eternal justice. . . . [L]et us be given the soil we need for our livelihood." Fn21 The primary propellant of this new policy was to be the armed forces, "the mightiest weapon serving the freedom of the German nation and the sustenance of its children." Fn22
Hitler envisioned that the populations of Eastern Europe would serve as beasts of burden for the superior Aryan settlers. Fn23 Such inferiors were "not of good race" and were mere "chaff." Fn24 Hitler, of course, possessed particular venom for the Jews, who if "were alone in this world . . . would stifle in filth and offal." Fn25 He concluded with the admonition that "there is only one holiest human right . . . and . . . holiest obligation . . . to see to it that the blood is preserved pure and, by preserving the best humanity, to create the possibility of a nobler development of these beings." Fn26
The Treaty of Versailles eviscerated the German military. Fn27 Precise limitations were established for the size and nature of German armaments and armed forces. Fn28 Compliance was to be supervised by Inter-Allied Commissions of Control. Fn29
In accordance with the terms of Versailles, in January 1921, Germany established a one hundred thousand person army and fifteen thousand person navy army and navy were put under the command of the President of Germany and the Cabinet. Fn30 The military claimed that they had been "'stabbed in the back'" by politicians and initiated a furtive rearmament effort. Fn31 A 1927 memorandum from the Reich Defense Ministry conceded "[t]he fact that the Treaty of Versailles has been made valid as a law in Germany results in the fact that preparations for mobilization have no sort of legal foundation." Fn32 Nevertheless, the military continued to take substantial steps towards rearmament up until Hitler's appointment as Chancellor on January 30, 1933. Fn33
Hitler took the unprecedented step of appointing a member of the military, General Werner von Blomberg, as Minister of Defense. General Walter von Reichenau, a Nazi sympathizer, was named Blomberg's deputy. Admiral Erich Raeder continued as Chief of the Naval Command and General Werner von Fritsch, the choice of the officers' corps, replaced General Curt Hammerstein as Army Commander. Fn34 In February 1933, Adolf Hitler addressed the high-ranking Reichswehr [regular army] officers and stressed the importance of a strong military. General von Reichenau assured the Fuehrer that "'[t]he armed forces were never more identical with the tasks of the State than today.'" Fn35
Following the death of President Paul von Hindenburg on August 2, 1934, Hitler assumed the positions of Chief of State and Supreme Commander of the Armed Forces. That same day, Blomberg ordered the Wehrmacht [armed forces] to swear an oath of personal loyalty "to the Fuehrer of the German Reich and of the German people, Adolf Hitler." Fn36 Hitler and the Wehrmacht had now entered into a mutually advantageous arrangement. General Hermann Reinecke observed that "[t]he two pillars of the Third Reich are the Party and the armed forces, and each is thrown back on the success or downfall of the other." Fn37
In March 1935, Hitler renounced the Versailles Treaty. He then implemented mandatory conscription with the aim of establishing a five hundred thousand person army and reorganized the defense establishment. Fn38 The military warmly welcomed the Fuehrer's announcements. Von Blomberg wrote that "[t]he National Socialist ideology and true community of the people will find their home in the Wehrmacht . . . . The general conscription . . . will be based upon the ideas of the National Socialist State." Fn39 Rearmament now proceeded at a torrid pace. Within seven months, twelve new submarines had been launched. Fn40 In March 1936, the last vestige of Versailles was swept aside when German troops entered the demilitarized zone in the Rhineland. Fn41 Senior officers saw National Socialism as a step towards the reassurance of traditional values, conservative politics, and nationalism while younger militarists envisioned the radical revitalization of the armed forces and society. Fn42 On the 125th anniversary of the German War Academy, which had been reopened in contravention of the Versailles Treaty, Lieutenant General Curt Liebmann, Commander of the Academy, greeted the Fuehrer:
We know, and we are convinced in our deepest being that we have solely your determined will and your infallible leadership to thank for our freedom, and - like the German people - we and the entire German Armed Forces will show our thanks to you, our Fuehrer, through unflinching faithfulness and devotion. Fn43
Lieutenant General Ludwig Beck, Chief of the Army General Staff, reminded the Academy of the
duty which they owe to the man who recreated and restrengthened the German Armed Forces, who finally took the fetters of Versailles from it, and to the new State which assures us a stronger foundation than ever in a united nation if some day again only the call to arms should be left for the defense of the Fatherland. Fn44
On January 30, 1936, the third anniversary of Hitler's ascendancy to power, Blomberg broke with the military's traditional non-partisan posture and issued a directive which stated that the armed forces can only fulfill its task of leadership . . . if it adopts the National Socialist ideology . . . and appropriates it intellectually totally and with conviction. Thus, I consider the uniform political education and instruction of the officer corps . . . to be particularly important. Fn45 The armed forces was quickly cleansed of Jews and other "undesirables." Fn46 On May 13, 1936, Hitler took the additional step of mandating the military "to select . . . soldiers, and . . . leaders . . . according to the strictest racial criteria going beyond the legal regulations . . . [so as] to maintain a selection of the best Germans." Fn47
Meanwhile, war was being planned. Fn48 As early as November 5, 1937, Hitler had confided to the military command that the "German future is . . . dependent . . . on the solution of the need for living space." Fn49 According to the Fuehrer, the necessary food and human fodder only could be guaranteed through the annexation of Czechoslovakia and Austria. Fn50
A crisis was created in January 1938, when Field Marshal Blomberg married a young women of questionable repute. On January 25, Hitler and Goering responded to pressure from the officers' corps and forced Blomberg to resign. Two days later, von Fritsch was removed as Commander of the Army. His dismissal was based on the false accusation that von Fritsch had engaged in homosexual conduct. Although von Fritsch was subsequently exonerated by a military court martial, he was not reinstated. Fn51
Hitler now seized the initiative and subordinated the military to his command. On January 27, the Fuehrer assumed personal command of the Wehrmacht and named Lieutenant General Wilhelm Keitel as his executive assistant. Fn52 These developments were memorialized in a February 4, 1938 order in which the Fuehrer proclaimed that:
From this time onward I personally assume the command of the entire armed forces.
The former Armed Forces Officer . . . will be known as the High Command of the Armed Forces and will come directly under my orders as my military staff.
. . .
It will be the bounden duty of the High Command of the Armed Forces in peacetime to prepare the unified defense of the Reich in all particulars under my direction. Fn53
The alliance between Hitler and the Wehrmacht was sufficiently strong to survive the von Fritsch affair. The armed forces had witnessed Hitler overthrow the Weimar Republic, establish a totalitarian State, place political opponents in prison, and undermine and humiliate the military leadership. Nevertheless, as the prosecution noted in the High Command Case :
[t]hey [the military] saw the factories of Germany humming and pouring out . . . armaments . . . . They had learned that Hitler, like themselves, had scant respect for the sanctity of treaties, and could be counted on to pursue a 'realistic' foreign policy. . . . [T]hey knew of and shared Hitler's ultimate intention to put the Wehrmacht to use. . . . Whatever differences they had with Hitler . . . there were no fundamental differences of purpose. Fn54
In February 1938, Hitler thus was positioned as Supreme Commander of the Armed Forces (Oberster Befehlshaber der Wehrmacht). Wilhelm Keitel, as noted, had been installed as Chief of the Armed Forces High Command (Oberkommando der Wehrmacht, referred to as OKW) which was vested with authority over all three branches of the armed forces. Fn55 Admiral Erich Raeder continued as Commander in Chief of the Navy (OKM) until 1943, when he was replaced by Admiral Karl Doenitz. Fn56 Reich Marshal Hermann Goering remained head of the Air Force (OKL) until the last month of the war. Fn57 General Walter von Brauchitsch had replaced von Fritsch as Supreme Commander of the Army (OKH). Fn58 Von Brauchitsch, in turn, was dismissed in December 1941, when Hitler took the additional title of Commander in Chief of the Army. This resulted in the de facto merging of the functions of the OKW and the OKH. Fn59
Hitler's destructive international policies ultimately provoked organized opposition. Fn60 An unsuccessful attempt to assassinate the Fuehrer resulted in the execution of hundreds of suspected conspirators, including two field marshals and sixteen generals. Fn61 Hitler reacted by assuming control of virtually every tactical decision and threatened officers who defied his decrees with draconian punishment. Fn62 On March 18, 1945, with Berlin reduced to rubble, Hitler dismissed demands that he abandon his "scorched earth" policy.
If the war is to be lost, then the nation, too will be lost. . . . There is no need to consider the basic requirements that a people need in order to continue to life a primitive live . . . . Those who remain alive after the battles are over are in any case only inferior persons, since the best have fallen. Fn63
In the end, the overwhelming mass of the military followed the Fuehrer. Fn64 They later rationalized that organized resistance would have violated their oath, led to domestic strive and battlefield defeat and would have improperly injected the armed forces into politics. Fn65
The extermination of the "enemies" of National Socialism did not only occur in concentration camp crematoriums. Many were killed in a measured and methodical fashion by the German military or killing squads. No clear distinction, thus, should be drawn between German combatants and killers. Fn66
Historian Omer Bartov argues that as the war dragged on the German military experienced a shortage of men, material, and ammunition. Discipline was maintained through a strict system of regimentation. The troops, in turn, were both required and permitted to vent their anger and frustration against enemy civilians and combatants. Fn67 These excesses also served to solidify the spirit of German troops. Fn68 This culminated in the ideological confrontation with Russia in which the army reverted to the crudest moral code of war, according to which everything which ensured one's survival was permitted (and thus considered moral), and everything even remotely suspect of threatening it must be destroyed (and was by definition immoral). Fn69 German troops were exposed to a continuous course of propaganda which shaped their perception of Russian civilians and combatants. Analysis of letters sent by German soldiers to their families reveals a "distortion of reality among the troops." Fn70 This include the dehumanization and demonization of the enemy on political and racial grounds, with a particular reference to the Jews as the lowest expression of human depravity; and . . . the deification of the Fuehrer as the only hope for Germany's salvation. Intermixed . . . were notions regarding . . . racial and cultural superiority, and a view of the war as a holy crusade for a better future and against an infernal host of enemies sanctioned by God. Fn71
Christopher R. Browning studied the affidavits of members of Reserve Police Battalion 101 which was responsible for the death of roughly eighty-three thousand Polish Jews. Fn72 The Battalion was unusual in that it was comprised of older working-class men from Hamburg, only twenty-five percent of whom were members of the Nazi Party. Fn73 The pressure towards conformity and maintenance of a masculine image motivated the men to engage in massacre. Fn74 Browning notes that "the men's concern for their standing in the eyes of their comrades was not matched by any sense of human ties with their victims. The Jews stood outside their circle of human obligation and responsibility." Fn75
Even the most eminent German officers were not above ordering and engaging in atrocities. Field Marshal Albert Kesselring is viewed by military historians as a supreme strategists and leader. Fn76 On March 23, 1944, a bomb exploded in Rome killing thirty-two German police. Hitler ordered Field Marshal Albert Kesselring, Commander of Army Group C in Italy, to execute ten Italian hostages for every German who had died in the attack. Kesselring was informed by the head of the Security Service in Rome that there were enough prisoners "worthy of death" to carry out the reprisal. Fn77 Kesselring issued an order to General Eberhart von Mackensen, Commander of the 14th Army, to "'[k]ill 10 Italians for every German. Carry out immediately.'" Fn78 The Security Service proceeded to assemble 335 detainees, ten more than required. This included a fourteen and seventy year-old as well as fifty-seven Jews, none of whom were connected with partisan activity. The group was herded into the Ardeatine Cave and shot in the back at close range as they kneeled on top or alongside the corpses of other victims. Following the executions, the cave was blown up. Fn79 Kesselring was subsequently convicted of two counts of War Crimes and sentenced to death by shooting. The sentence was commuted to life imprisonment and Kesselring was released after roughly five years. Fn80
Following World War I, the Allied Powers' plan to prosecute alleged German war criminals was abandoned in the interests of preserving stability within the politically precarious Weimar Republic. Germany compromised and agreed to conduct a limited number of trials before the Penal Senate of the Reichsgericht. However, the Germans possessed little enthusiasm for prosecuting their own combatants. Some were acquitted, others received lenient sentences and the vast majority of the charges were quashed. Those convicted eventually had their verdicts annulled. Fn81 The most significant development was the Reichsgericht's recognition in the Llandovery Castle Case that the international humanitarian law of war was binding upon German belligerents. Fn82
The Allied Powers refused to rely on the Germans to prosecute those accused of War Crimes during World War II. In October 30, 1943, the United Kingdom, the United States, and the Soviet Union vowed that those "who have been responsible for, or have taken a consenting part in . . . atrocities, massacres, and executions, will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished." Fn83 Those whose "offenses have no particular geographical localization . . . will be punished by the joint decision of the Governments of the Allies." Fn84
Twenty-two high-echelon Nazi officials were indicted at Nuremberg, five of whom were high-echelon military officers. The prosecution primarily focused on the aggressive war charge (Crimes Against Peace) and relatively limited attention was devoted to allegations of War Crimes and Crimes Against Humanity. Nevertheless, all five militarists were convicted of having violated the humanitarian law of war. Fn85 Reich Marshal Hermann Goering, for instance, was convicted of having been an animating force in the deployment of slave labor and the repression of occupied populations. In a July 31, 1941 decree, he directed the Security Police to "bring about a complete solution of the Jewish question in the German sphere of influence in Europe." Fn86 Field Marshal Wilhelm Keitel was found guilty of having issued a number of criminal orders to German troops. On September 8, 1941, Admiral Wilhelm Canaris wrote to Keitel protesting that the directive to execute Soviet prisoners of war was contrary to international law. Keitel initialed a reply: "'The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology [Communism]. Therefore I approve and back the measures.'" Fn87 The International Military Tribunal determined that the General Staff and High Command lacked coherence and could not be considered a criminal organization. However, the Tribunal urged that high-echelon German military officers should be brought before the bar of justice:
They have been responsible in large measure for the miseries and suffering that have fallen on millions of men, women, and children. They have been a disgrace to the honorable profession of arms. Without their military guidance the aggressive ambitions of Hitler and his fellow-Nazis would have been academic and sterile.. . . [T]hey were certainly a ruthless military caste.
Many of these men have made a mockery of the soldier's oath of obedience to military orders. When it suits their defense they say they had to obey; when confronted with Hitler's brutal crimes . . . they say the disobeyed. The truth is that they actively participated in all these crimes, or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world has ever had the misfortune to know. This must be said. Fn88
Nuremberg provided the legal foundation for the prosecution of the second tier of the Nazi bureaucracy. These trials primarily were carried out by Allied national tribunals within occupied Germany. Fn89 The Allied Control Council of Germany issued Control Council Law No. 10 in order to "establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal." Fn90 Defendants prosecuted under this statute were subject to liability as principals or accessories or for ordering or consenting to the commission of the Nuremberg offenses of Crimes Against Peace, War Crimes, and Crimes Against Humanity. Control Council Law No. 10 also imposed sweeping liability on those connected with plans or enterprises involved in the commission of Nuremberg crimes. In addition, individuals were subject to prosecution for membership in groups or organizations which had been declared criminal by the International Military Tribunal. Fn91 Defendants convicted under Control Council Law No. 10 were to be variously punished with death, life imprisonment, hard labor, fine, forfeiture of property, restitution, and deprivation of civil rights. Fn92 Control Council Law No. 10, like the Nuremberg Charter, abrogated act of state Fn93 and rejected the superior orders defense. Fn94 Other provisions addressed the statute of limitations and immunity from prosecution Fn95 as well as arrangements for the extradition of offenders and witnesses. Fn96
Control Council Law No. 10 provided the legal principles and procedures which guided the American prosecution of the remaining high-echelon leaders of the German military establishment.
German military strategy in the eastern campaign was based on the concept of "total war." Wilhelm Keitel, Chief of the High Command of the Armed Forces, proclaimed that:
This is . . . a matter of life and death. This struggle has nothing to do . . . with soldierly chivalry or the regulations of the Geneva Convention.
If this war . . . is not waged with the most brutal methods, the available forces will . . . no longer be sufficient to overcome this plague.
[T]he troops are justified and obliged . . . to resort to all measures - even against women and children - without leniency, as long as they are successful. Fn97
In a subsequent order, German soldiers were reminded that they were the "bearer of a ruthless national ideology and the avenger of all the bestialities which have been inflicted on the German and racially related nations." Fn98 They were admonished that "[e]very piece of bread given to the civilian population, will be missed at home." Fn99
This perverse philosophy was reflected in the Nazi's tactics and strategies. In response to the landing of uniformed and openly armed Allied troops behind German lines in France and Norway, Hitler issued the so-called Commando Order. The directive alleged that these units were engaged in illegal terrorist activity and directed that captured commandos were to be summarily executed. Fn100 A related order urged the population to retaliate against Allied airmen who parachuted from disabled aircraft. The airmen were accused of indiscriminately and illegally attacking civilians. Fn101
The Germans acted with particular ferocity against the political commissars who were attached to the Russian Army. The commissars were the representatives of the Communist Party who were responsible for the political indoctrination and morale of the Russian forces. They otherwise were indistinguishable from ordinary combatants - the commissars wore uniforms, openly carried arms and fought alongside the regular troops. Fn102 On March 30, 1941, Hitler addressed a gathering of generals in Berlin and urged the military to exterminate Bolshevist commissars and Communist intellectuals in order to severe Stalin's ideological stranglehold over the minds of the Russian people. Fn103 On June 8, 1941, two weeks prior to the invasion of Russia, Field Marshal Walter von Brauchitsch, Commander in Chief of the German Army, issued a directive ordering the execution of captured commissars. Fn104 In accordance with this order, commissars were routinely killed. An October 26, 1941 report by one of the divisions under the command of defendant Field Marshal Georg Karl Friedrich-Wilhelm Von Kuechler, Commander in Chief of the 18th Army, recorded, "'[n]othing particular to report. 16 commissars shot.'" Fn105
Russian prisoners were intensively interrogated in an effort to ferret out commissars. Suspected commissars, as well as those viewed as a threat to order and discipline, were turned over to the Security Police for execution. Fn106 Defendant Hermann Reinecke, head of the armed forces department concerned with prisoners of war, directed that insubordination was to be ruthlessly repressed: "Anyone . . . who does not use his weapons, or does so with insufficient energy is punishable. The use of arms against prisoners of war is as a rule legal." Fn107 Pursuant to these orders, thousands of Russian prisoners were killed. Fn108
The Nazi occupation forces deployed the same type of terror and violence against civilians. One of the pillars of this policy was the "Night and Fog" (Nacht und Nebel) Decree drafted by defendant Rudolf Lehmann, Chief of the Legal Department of the OKW. Pursuant to the this directive, civilians suspected of resistance activities were detained and deported for trial before special courts within the Reich. The entire process was shrouded in secrecy and silence. This served to spread trepidation and terror and permitted the swift disposition of defendants. Fn109 In a December 12, 1941 letter accompanying the "Night and Fog" Decree, Field Marshal Wilhelm Keitel wrote that "imprisonment, life imprisonment, too, are considered as signs of weakness. An efficient and lasting intimidation can only be obtained by death penalties or by measures keeping the relatives and the population in uncertainty about the offender's fate. The transfer to Germany serves this end." Fn110
The cornerstone of the Reich's policy in Russia was the Barbarossa Order, which authorized the summary execution of civilians suspected of defying the decrees of the German occupation forces. In those instances in which offenders could not be expeditiously identified, officers were empowered to order collective measures against localities thought to be complicit in criminal activity. The second portion of the order specified that officers were not obliged to prosecute German combatants for crimes committed against enemy civilians, unless such offenses were likely to undermine discipline. Fn111 The Barbarossa Order was ruthlessly implemented. Officers were directed "not [to] spare the bearer of enemy ideology, but kill him. Every civilian who impedes or incites others to impede the German Armed Forces is also to be considered a guerrilla (for instance-instigators, persons who distribute leaflets, nonobservance of German orders, incendiaries, destruction of road signs, supplies, etc.)." Fn112
Thousands were arbitrarily executed. A February 19, 1943 report from General Hans Reinhardt's 3d Panzer Army illustrates the broad interpretation which was given to the authorization for collective measures: "'In order to keep bands from resettling in this territory . . . the population of villages and farms in this area were killed without exception to the last baby. All homes were burned down. Cattle and victuals were confiscated and taken from this area.'" Fn113
Jews, of course, were singled out for persecution. In 1941, Field Marshal Keitel admonished German troops in Russia that "[t]he struggle against bolshevism demands ruthless and energetic measures, above all also against Jews, who are the main bearers of bolshevism." Fn114 Nearly one million were executed by Einsatzgruppen killing squads which were attached to German Army units. Fn115
The Germans also attacked Gypsies - alleging that these nomadic people were Bolshevist agents and terrorists. One typical report detailed the arbitrary killing of 128 Gypsies. The narrative concluded that "in spite of the existence of formal misgivings . . . the shooting of the gypsies must be regarded as . . . justified . . . especially since no more attacks have taken place in this area since the shooting was carried out." Fn116 The Nazis' also claimed the right to exterminate the residents of mental institutions in order to protect the local population and German troops from disease and danger. Fn117
By the summer of 1941, Germany was experiencing a labor shortage in the armament and construction industries. Nazi field commanders transferred thousands from the occupied territories to the Reich. Fn118 In France, all males between sixteen and fifty-five who assisted, or who were suspected of assisting or sympathizing with the partisans, were detained and deported to serve as slave labor. Fn119 Those who resisted or attempted to escape were shot and their relatives were conscripted to work in the Reich. Fn120 Russian prisoners were compelled to clear mine fields, dig trenches, construct fortifications and highways, and load ammunition. Fn121 Desperate for additional workers, in March 1943, defendant General Karl Hollidt ordered that "'Russian men and women have to be employed ruthlessly for the construction of defenses.'" Fn122 By June 1943, Hollidt had conscripted over fifty thousand civilians. Defendant Hans Reinhardt, Commanding General of the Third Panzer Army in Russia, in May 1943, directed that all males between the ages of sixteen and fifty, and women between sixteen and forty, should be pressed into the labor program. Fn123 Still, additional workers were required. In a secret order issued on January 2, 1944, General Hans Reinhardt urged that "'[a]ny measure is justified and urgently desirable if it produces a quick and considerable increase in the number of civilians working for us.'" Fn124 As a result, children as young as ten along with the elderly and seriously ill were involuntary subjected to servitude in the Reich. Fn125
The German armed forces which prided itself on professionalism, thus functioned as a ruthless occupying power which exploited and exterminated "undesirables" as well as civilians suspected of opposition to the Reich. The military also disregarded the elemental protections which were to be accorded to prisoners of war. The high-ranking defendants in the High Command Case , however, variously insisted that they had been unaware of these excesses or that they had unsuccessfully attempted to resist and undermine the Fuehrer's orders. In the end, most of these men of prestige and potency asked the Court to believe that they had been powerless pawns who had been driven to defer to the dictatorial demands of the Fuehrer, Adolf Hitler. Fn126
In the High Command Case , thirteen defendants stood trial for Crimes Against Peace, War Crimes, and Crimes Against Humanity. Of these convictions, eleven were convicted of War Crimes and of Crimes against Humanity. Two defendants were sentenced to life imprisonment, three to twenty years, two to fifteen and four to between three and eight years in prison. Fn127
The American Court dismissed the Crimes Against Peace charge. Fn128 The Tribunal ruled that only
the preparation, planning, initiating, or waging of aggressive war on a policy level . . . fall under the definition of crimes against peace. It is not a person's rank or status, but his power to shape or influence the policy of his state, which is the relevant issue for determining his criminality under the charge of crimes against peace. Fn129
The Court observed that international law had not evolved to the point where those below the policy-level were criminally culpable for participation in a war of aggression. The field commanders and staff officers who stood before the bar of justice in the High Command Case were the "policy makers' instrument" and were understandably required to comply with the "rigid discipline which is necessary for and peculiar to military organization." Fn130 The Court did admonish that it would have been "eminently desirable had the commanders of the German armed forces refused to implement the policy of the Third Reich . . . [t]his would have been the honorable and righteous thing to do . . . [h]ad they done so they would have served their fatherland and humanity also." Fn131
The Tribunal, however, was unwilling to absolve the defendants of War Crimes and Crimes against Humanity. The judges noted that the defendants had intentionally implemented the Nazi theory of "total war." Fn132 The abuse and murder of Soviet commissars, captured commandos and British pilots as well as other gross violations of the customs and usage of the code of conflict were core components of this strategy. Fn133 The Court observed that:
The record in the instant case is replete with horror. Never in the history of man's inhumanity to man have so many innocent people suffered so much.
Millions of people whose only offense was that they were of Jewish blood, or Soviet nationals, or gypsies, or Poles, designated as social inferiors, subhumans, and beasts received what the Hitlerites called "special treatment," or "liquidation," or "final solution" and were exterminated regardless of age or sex. No nation, no army, and its leaders of any time, civilized or uncivilized, labor under so great a load of guilt as do Hitler's Germany, its army and its leaders in their treatment of these unfortunate people.
In addition, the civilian population of the countries overrun by German arms were enslaved, deported for forced labor, starved, tortured, murdered, executed as hostages and, by way of reprisal, were compelled to erect fortifications and remove live mines; their property, public and private, was plundered and destroyed, and they suffered other crimes at the hands of their conquerors. Fn134
The Court refused to recognize the superior orders defense. Hitler was Commander in Chief of the Armed Forces and supreme civil and military authority and his decrees carried the force of law. Under such circumstances, to admit as a defense that a defendant had acted pursuant to the order of a superior would,
in practical effect to say that all the guilt charged in the indictment was the guilt of Hitler alone because he alone possessed the law-making power of the state and the supreme authority to issue civil and military directives. To recognize such a contention would be to recognize an absurdity. Fn135
What of the criminal responsibility of field commanders who transmitted and implemented the illegal orders of superiors? The prosecution urged that a commander should be held strictly liable for the conveyance of a criminal order. However, the Court noted that such transmittal was a routine matter which in most cases was handled by the staff. Fn136 Even in those instances in which battlefield commanders were cognizant of Hitler's directives, the Tribunal noted that these officers were soldiers rather than lawyers and should not be expected to engage in detailed juridical analysis. The Tribunal, however, did rule that field commanders were liable for the transmission of clearly criminal orders. Fn137 Participation in "implementing such orders, tacit or otherwise . . . [or] silent acquiescence in their enforcement by . . . subordinates, constitutes a criminal act." Fn138 .
What of staff officers? The Court noted that staff officers were an indispensable link in the chain of command. They were responsible for translating ideas and directives into properly prepared orders and transmitting the orders. The Tribunal ruled that a staff officer who complied with an order to draft, or who directed others to draft, a manifestly illegal order, or who personally distributed such an order to subordinate units, was criminally culpable under international law. In the absence of such involvement, a chief of staff was not legally culpable. Fn139
The Court observed that staff officers in the German Army invariably exercised substantial discretion and authority and were involved in the formulation of criminal orders. Fn140 While many of the demonic directives of the Third Reich originated in the minds of Hitler and his criminal cabal, "[s]taff officers were indispensable . . . and cannot escape criminal responsibility for their essential contribution to the final execution of such orders on the plea that they were complying with the orders of a superior who was more criminal." Fn141
The Tribunal next turned to the specific policies of the Third Reich. The Court characterized the Commissar Order as "one of the most obviously malevolent, vicious and criminal orders ever issued by any army of any time. It called for the murder of Russian political functionaries and, like so much of the evils of the Third Reich, originated in Hitler's fertile brain." Fn142 Some concededly sought to surreptitiously sabotage or evade the order. Nevertheless, the Court noted that the record contained numerous reports documenting the execution of commissars. While various defendants claimed that the these figures were exaggerated or fictitious, the fact remained that thousands had been executed in utter violation of the laws of war and humanity. Fn143
Commanders in Chief were not absolved from liability by the fact that the Commissar Order had originated at a higher level. Field commanders passed the order down to their subordinate units and were charged with actual or constructive knowledge of the reports documenting the death of political functionaries. Despite personal qualms, no officer lodged a protest. "The superior cannot absolve himself by the plea that his character was so well known that his subordinates should have had the courage to disobey the order which he himself in passing it down showed that he lacked. Such a plea is contemptible and constitutes no defense." Fn144
The Barbarossa Order dispensed with court martial jurisdiction over the civilian population and subjected civilians in the occupied territories to arbitrary punishment. The Tribunal noted that civilians were entitled to fair treatment. The summary punishment of "suspected" terrorists as well as various other offenders was criminal. In one case, the Court noted that German troops had executed a nineteen year old women who had written a song derogatory of Nazi invaders. Fn145 Equally as reprehensible was the authorization given to low-level officers to order collective punishment. Fn146
In addition, the Tribunal ruled that various defendants were liable for the abuse of prisoners of war. The Court conceded that many captured combatants were physically depleted. This, however, was not the cause of their death - they were compelled to work in harsh conditions and deprived of food, clothing, and hygiene. Such mistreatment violated a commander's responsibility to insure that prisoners received proper care and were not compelled to work in dangerous conditions. The summary execution of prisoners who allegedly had attempted to escape also was criminal. In addition, commanders were culpable for issuing and transmitting orders which transferred prisoners to the Security Police for "special treatment." Fn147
The Tribunal also ruled that the German's requisitioning of enemy civilians for work in the war industry as well as the looting and spoliation of property were in violation of international law. Fn148 The defense contended that the recruitment of labor from the occupied territories, as well as the seizure of property or goods beyond that which was necessary for the support of the German armed forces, were justified on the basis of military necessity. Under this doctrine, the Germans' claimed the right to engage in any conduct which contributed to the vindication of the Nazi cause. The Court repudiated this expansive notion of necessity on the grounds that it "would eliminate all humanity and decency and all law from the conduct of war and it is a contention which [the] Tribunal repudiates as contrary to the accepted usage of civilized nations." Fn149
The Tribunal next addressed the responsibility of field officers for the actions of Security Police. Commanders exercised executive authority over occupied territories and were responsible for the maintenance of safety and security. The Court rejected a strict liability theory which affixed responsibility on Commanders in Chief for actions committed within the scope of their territorial command. Fn150 However, the Tribunal did rule that commanders were obliged to suppress illegal acts of which they were aware or should have been aware. Fn151 The contention that the defendants were unaware of the activities of the killing squads was dismissed as disingenuous-ninety-thousand "so-called undesirable elements" had been liquidated within the area of the Eleventh Army alone. Fn152 Nevertheless, the Tribunal recognized that the killing program of the Einsatzgruppen squads was not embodied in a specific directive which passed through the chain of command. Reports of the killing of Jews, Gypsies, and others were routed through police channels and large-scale exterminations often were portrayed as pogroms which had been initiated by the local populace. As a result, the Tribunal declined to draw a "general presumption" as to the knowledge of specific defendants concerning the activities of killing squads. Fn153
The defense asserted in mitigation that there was substantial opposition to Hitler's orders and plans by high-echelon military leaders, including various defendants. Fn154 While the Tribunal recognized that there was some dissent, "the tragedy of it is that these men, in spite of their opposition, allowed themselves to be used by him [Hitler]." Fn155
To von Leeb, Hitler was a "demon . . . a devil," and to Halder he had "a complete absence of any ethical or moral obligation." The demands he made of the defendants may have been "in contrast to their principles and natures," and against their "humane and soldierly feelings," but the inescapable fact remains that in part, at least, if not to the whole, they permitted their consciences and opinions to become subordinate to his will, and it was this which has placed such great and ineradicable shame upon the German arms. Fn156
The Court ruled that while the pressures exerted upon the military command could not excuse the defendants' conduct, that it was "proper to consider and judge in any case the offenses charged in the light of their historical and psychological background and in their connections with all surrounding circumstances." Fn157
The Court seemingly strained to mitigate the guilt of the lead defendant, Field Marshal Wilhelm von Leeb. Von Leeb, as Commander in Chief of Army Group North in the Russian campaign, directed roughly six hundred thousand men. He had been present at the meeting in March 1941 at which the Fuehrer had ordered the extermination of Soviet commissars. Von Leeb, to his credit, was one of several officers who had confidentially contended that this order contravened international law and that the Russians would react by reliantly resisting capture. When approached, Hitler derisively dismissed these misgivings and directed the OKH to distribute the order. Fn158 Although von Leeb communicated his opposition to his subordinates, atrocities were committed by combatants under his command. Still, von Leeb was exonerated: "He protested against it [the Commissar Order] and opposed it in every way short of open and defiant refusal to obey it. If his subordinate commanders disseminated it and permitted its enforcement, that is their responsibility and not his." Fn159
Prisoners of war in von Leeb's area of command were the responsibility of the Quartermaster General and were not subject to von Leeb's legal control. The Tribunal determined that von Leeb had the right to assume that the officers in command of these units would properly perform their responsibilities. According to the Court, there was no substantial evidence that von Leeb was informed of the illegal deployment of prisoners in dangerous occupations or localities. Fn160 As to the contention that he must have been aware from the prisoner's appearance that they had been abused, "[t]he condition of these prisoners on the road . . . might well have been due to their condition when captured and not to any neglect of their captors at that time." Fn161 The Court also failed to find that von Leeb had received reports documenting the activities of killing squads within his territorial command. The one massacre of which he was aware had been deceptively described as a local Latvian pogrom. Fn162
The Tribunal did hold von Leeb liable for the transmission of the Barbarossa Jurisdiction Order. According to the Court, there was no indication that von Leeb had attempted to impede the enforcement of this directive. The order "carried the weight of his authority as well as that of his superiors . . . . Having set this instrument in motion, he must assume a measure of responsibility for its illegal application." Fn163 In explaining von Leeb's relatively modest three year sentence, the Court stressed that von Leeb
was not a friend or follower of the Nazi Party or ideology. He was a soldier and engaged in a stupendous campaign with responsibility for hundreds of thousands of soldiers, and a large indigenous population spread over a vast area. It is not without significance that no criminal order has been introduced in evidence which bears his signature or the stamp of his approval. Fn164
The Court adopted a different view of von Leeb's successor as Commander of Army Group North, Field Marshal Georg Karl Friedrich-Wilhelm von Kuechler. Von Kuechler was an experienced soldier who was described as "cold-blooded and ruthless." Fn165 Between 1941 and 1942, he commanded the 18th Army. Although von Kuechler both denied knowledge of and claimed that he had opposed the Commissar Order, "the cold, hard, inescapable fact remains that he distributed it, and that it was enforced by units subordinate to him in the 18th Army." Fn166 Although he received reports documenting the killing of commissars, von Kuechler made no effort to control the conduct of his subordinate units. The contention that "it would have endangered him as a disobedient commander if he had not carried out the order, is not a defense to, but may go in mitigation of, the crime charged." Fn167
The Court also determined that von Kuechler had received and disseminated the Barbarossa Jurisdiction Order. His subordinate units executed Communists and Gypsies along with those suspected of harboring an anti-German attitude or assisting partisans. Others were killed for listening to Radio Moscow, spreading rumors of atrocities or for refusing to work. While commander of the 18th Army, von Kuechler also assented to the extermination of 230 "insane and diseased women" who were not considered "lives worth living." Fn168
The Tribunal noted that von Kuechler's callous attitude was evidenced by his distribution of the Reichenau Order. This directive admonished the Nazi combatant that he was "'not merely a fighter according to the rules of the art of war but also a bearer of ruthless national ideology and the avenger of bestialities which have been inflicted upon Germany and racially related nations.'" Fn169 The order called for the execution of prisoners of war, the denial of food and cigarettes to civilians and prisoners as well as the destruction of all symbols of Bolshevist rule. Fn170 Collective retaliation was authorized against civilians who failed to impede or to report partisan attacks. The Tribunal queried, "[i]s it any wonder that persecutions followed when heads of armies were issuing such inflammatory and inciting orders?" Fn171 Von Kuechler was sentenced to twenty years in prison. Fn172
German Hermann Hoth was Commander of Panzer Group 3 during the Russian campaign. On October 10, 1941, Hoth was appointed Commander in Chief of the 17th Army attached to Army Group South. In May 1942, he was named Commander in Chief of the 4th Panzer Army. Fn173 Hoth noted that he had received the Commissar Order from his superior von Brauchitsch and that he had simply conveyed the directive through the chain of command. He explained that it was inconceivable that Hitler would request his commanders to violate the law. At any rate, Hoth observed that the Fuehrer was empowered to supersede the provisions of the German Military Penal Code. Fn174
Hoth also claimed that he had privately opposed the Commissar Order. He was "certain that his subordinates were sufficiently radar-minded to pick up the rejection impulses that radiated from his well-known high character and that he believed that they would have the courage that he lacked to disobey the order." Fn175 The panel pointed out that
the mere unexpressed hope that a criminal order given to a subordinate will not be carried out is neither a defense nor a ground for the mitigation of punishment. That the character impulses were too weak or the minds of the subordinates were too insensitive to pick them up is shown by the documents. Fn176
Hans Reinhardt commanded the XLI Panzer Corps during the initial portion of the Russian campaign. Reports indicated that Reinhardt's troops had executed close to two hundred commissars within a month following the issuance of the Commissar Order. The Tribunal dismissed Reinhardt's defense that these reports were fictitious. Fn177 The persistent accounts of killings suggested that the "defense of fictitious reports may itself be fictitious." Fn178 The Court also rejected the claim that the order had been conveyed through informal communication rather than through the command structure: "Unless the order had been communicated rather extensively . . . it is difficult to understand how it would sweep the entire Russian front. The obvious explanation . . . is that it became known because of its implementation." Fn179 The Tribunal concluded that Reinhardt had failed to fulfill his duty to oppose the implementation of the Commissar Order:
If international law is to have any effectiveness, high commanding officers, when they are directed to violate it by committing murder, must have the courage to act, in definite and unmistakable terms, so as to indicate their repudiation of such an order. The proper report to have been made from division to army group level when a request was made from the top level to report the number of commissars killed would have been that this unit does not murder enemy prisoners of war. Fn180
Reinhardt also authorized and countenanced the abuse and murder of prisoners of war, Fn181 turned prisoners over to the Security Police for extermination, Fn182 and ordered the forceful deportation and enslavement of men, women, and children for work at the front lines. Fn183 Reinhardt received fifteen years imprisonment. Fn184
General Hans von Salmuth, a World War I veteran, held a variety of command posts in the Polish and Russian campaigns. Fn185 The evidence established that units under his command illegally executed civilians. Fn186 In December 1942, von Salmuth distributed an OKW order which stipulated that the war should be waged with the "'most brutal methods.'" Fn187 The directive went on to proclaim that the "'troops [were] justified and obliged to resort in this combat to all measures - even against women and children - without leniency, as long as they are successful.'" Fn188 Von Salmuth added that "'all means have to be employed'" in the interrogation of bandits and women. Fn189
On August 7, 1941, while Commanding General of the XXX Corps during the Russian campaign, von Salmuth distributed an order authorizing collective punishment in cases in which saboteurs were not apprehended. This was followed in November 1941, with the dissemination of a directive calling for the wide-spread detention and execution of reprisal prisoners. Fn190
In August 1941, based on a report of a purported plot by Jews and Bolshevists in Koydama in the Ukraine to attack German troops, von Salmuth approved the arrest and interrogation of four hundred Jews. Roughly ninety-eight alleged Communists were executed and one hundred and seventy were taken hostage. Von Salmuth warned that the hostages would be shot in the event of an attack on German troops. Fn191 Shortly thereafter, he signed an order stating that the "fanatical intent of the members of the Communist party and of the Jews . . . must be broken under all circumstances . . . [I]t is . . . necessary to proceed with vigor." Fn192 The Tribunal also noted that von Salmuth had neither criticized nor protested the activities of the killing squads and that he had failed to request their removal or punishment. Fn193 Von Salmuth was sentenced to twenty years in prison. Fn194
Lieutenant Karl von Roques was Commander of the Rear Area Army Group South, and, in July 1942, he was appointed Commander of the Rear Area Army Group A (Caucasus). Fn195 The Tribunal determined that von Roques had failed to fulfill his duty to protect prisoners of war and civilians within the area of his command. Fn196 Von Roques tolerated "mopping-up" operations of Russian troops Fn197 and permitted killing squads to enter prisoner of war and transit camps and segregate and execute "unbearable elements." Fn198 He also issued an order that paratroopers were to be executed as guerrillas, explaining that "'[o]nly through ruthless measures can the paratrooper plague be opposed successfully.'" Fn199 Von Roques congratulated one of his infantry divisions for conducting a forced march of prisoners of war in which over one thousand were shot as a result of their failure to maintain the proper pace. Fn200 As a rear area commander, von Roques was responsible for guarding and securing prisoners of war. These camps experienced astronomical death rates as a result of malnutrition and poor hygiene. In January 1942, von Roques informed his superiors that all forty-six thousand likely, "'will have eliminated themselves in a few months by death and diseases.'" Fn201
Von Roques transmitted the Barbarossa Jurisdiction Order to the divisions under his command. Roughly three months later, in August 1941, he also directed that in those instances in which the population was suspected of involvement in partisan activity that an officer should "'order the execution of collective punishment, e.g., mass executions, or that villages be burnt to the ground partially or entirely . . . . [I]t is required that each superior exercises ruthless measures for the security of the unit.'" Fn202 On September 1, 1941, von Roques reiterated that "'[t]he troops . . . will liquidate on the spot . . . such natives as have been proved or are suspected of having committed hostile acts . . . .'" Fn203
The Tribunal noted that documents indicated "the complete subservience of the Wehrmacht in von Roques' area to the SD [Security Police] and its full cooperation with the SD program [killing squads], with knowledge of its debased and criminal character." Fn204 Von Roques received a sentence of twenty years in prison. Fn205
Lieutenant General Hermann Reinecke was Chief of the General Wehrmacht Office (AWA) and later was also appointed Chief of the National Socialist Guidance Staff of the High Command. Fn206 Reinecke drafted and issued orders on behalf of his superior Wilhelm Keitel pertaining to prisoner of war affairs. Many of these directives originated with Reinecke and were neither reviewed nor formally approved by Keitel. Fn207 Reinecke ordered, countenanced and participated in the segregation and liquidation of prisoners by the Security Police. Those killed included Russian commissars, Jews, the sick and disabled, escapees, and "undesirables" who were alleged to have had sexual relations with German women. Fn208
Reinecke also issued orders concerning the utilization of prisoners of war in work details. Insubordination or resistance was to be dealt with by "'a weapon (bayonet, gun butt, or firearms, no sticks). The decree . . . is to be interpreted strictly. Whoever does not use his weapon or does not use it energetically enough in seeing that an order is carried out is liable to punishment.'" Fn209 Five months later, in August 1944, a decree signed by Reinecke dictated that "'prisoners of war must definitely know at all times that they will be ruthlessly proceeded against, if necessary with weapons, if they slack in their work, offer passive resistance, or even rebel . . . . '" Fn210 The Tribunal concluded that "[f]or such inhuman orders and abandonment of prisoners of war . . . the defendant Reinecke is criminally responsible." Fn211 The Court's enhanced concern for Allied prisoners of war is indicated by the life sentence meted out to Reinecke. Fn212
Walter Warliamont served as Chief of the Section of National Defense, subsequently renamed the Armed Forces Operations Staff. In 1944, in recognition of his work in supervising the armed forces staff, Warliamont was promoted to lieutenant general of artillery. Fn213 Although the Commissar Order originated with Hitler, the Tribunal determined that Warliamont was central in drafting and refining the directive which was distributed under his signature. Fn214 Warliamont also submitted various proposed provisions for the Commando Order which was drawn up by Hitler. Fn215
Warliamont stressed to commanders that the Commando Order was to be vigorously enforced against enemy troops. The Tribunal rejected Warliamont's explanation that he believed that the order, along with his admonitions, would be ignored. Fn216 Warliamont also actively incited mob violence against Allied flyers. Fn217 In addition, he was involved in the deportation, enslavement and execution of civilian populations. Fn218 The Tribunal concluded that:
We have found the defendant guilty of participating in many criminal orders which permeated the conduct of war. He may not have furnished the basic ideas, but he contributed his part and was one of the most important figures of the group which formed them into the final product which, when distributed through the efficient agencies of the Wehrmacht and police, brought suffering and death to countless honorable soldiers and unfortunate civilians. Fn219
Warliamont was sentenced to life imprisonment. Fn220
In the Einsatzgruppen Case , the defendants were charged in Count One with Crimes against Humanity against German and foreign civilians, including persecutions on political, racial and religious grounds, murder, extermination, imprisonment, and other inhumane acts. Fn221 Count Two alleged that the defendants had committed violations of the laws and customs of war, including the murder and ill-treatment of prisoners of war and the civilian populations of occupied territories. Fn222 The defendants also were charged with membership in criminal organizations. Fn223
In anticipation of the German invasion of Russia, Hitler directed the Security Police and the Security Service to assist the Wehrmacht in maintaining order and combating resistance in the Soviet Union. The latter phrases were euphemisms for the extermination of Jews, Gypsies, and Communists. The security forces and the army agreed in the spring of 1941 to form Einsatzgruppen killing squads. These units were to be under the control of the Reich Security Main Office (RSHA), one of the twelve main offices of the Security Police (SS). However, while functioning in the field, the killing units were to be subordinate to the relevant military command which was responsible for providing food, housing, and transport. Fn224 Four Einsatzgruppen were established, each of which was assigned to a different army group. Einsatzgruppe A was seconded to Army Group North; Einsatzgruppe B was under the command of Army Group Center; Einsatzgruppe C was assigned to Army Group South; and Einsatzgruppe D was to accompany the 11th German Army. Fn225 The Nazi leadership was candid concerning the expendability of the Jews, Gypsies, Slavs, and Communists. Heinrich Himmler, head of the Security Service, clearly communicated to his officers that the Slavs were of little consequence:
What happens to a Russian, to a Czech does not interest me in the slightest . . . . Whether nations live in prosperity or starve to death interests me only so far as we need them as slaves for our Culture; otherwise, it is of no interest to me. Whether 10,000 Russian females fall down from exhaustion while digging an antitank ditch interests me only insofar as the antitank ditch for Germany is finished . . . . When somebody comes to me and says, "I cannot dig the antitank ditch with women and children it is inhuman, for it would kill them," then I have to say, "You are a murderer of your own blood because, if the antitank ditch is not dug, German soldiers will die, and they are the sons of German mothers. They are our own blood . . . . We can be indifferent to everything else." Fn226
Such insentient sentiments were shared by other German officials. Hans Frank, the Governor General of occupied Poland, addressed a cabinet session in December 1941: "Gentlemen, I must ask you to rid yourself of all feeling of pity. We must annihilate the Jews, wherever we find them and wherever it is possible, in order to maintain there the structure of the Reich as a whole." Fn227
On June 22, 1941, Germany invaded Russia. By December 1941, the eastern front extended from Leningrad in the north to the Crimean Peninsula in the south. The Baltic States, White Ruthenia, and most of the Ukraine were firmly under German control. The three thousand men who comprised the Einsatzgruppen units operated throughout this area for two years and were responsible for the deaths of roughly one million. Fn228
The activities of these units was typified by Einsatzgruppe D, commanded by Major General Otto Ohlendorf. During the first nine months of Ohlendorf's command, Einsatzgruppe D executed more than ninety thousand, an average of 340 deaths per day. Between November 16 and December 15, 1941, Einsatzgruppe D more than doubled this average daily death toll. Fn229 Ohlendorf testified that his men would typically enter a village, collect and require the Jews to hand over their clothing and valuables. The Jews then were transported to a remote and isolated site where they were executed while kneeling or standing adjacent to a ditch. The corpses fell into the ditch and were buried. The killing squads usually shot in unison so as to enable the men to avoid a sense of personal responsibility. By the spring of 1942, various units began to utilize gas vans rather than firing squads. Fn230 Other squads deployed experts "in the art of shooting in the neck." Fn231 By April 1942, Ohlendorf was able to report that "[t]he Crimea is freed of Jews . . . . In cases where single Jews [are able to] camouflage themselves . . . they will, nevertheless, be recognized sooner or later, as experience has taught. Fn232
Ohlendorf stated that, "[i]t was my wish that . . . executions be carried out in a manner and fashion which was military and suitably humane under the circumstances." Fn233 This benevolent sentiment was based on utility rather than humanity. Ohlendorf feared that forcing his men to engage in brutal executions would create a "moral strain." Fn234 Yet, he had little problem justifying the execution of children.
I believe that it is very simple . . . if one starts from the fact that this order did not only try to achieve security, but also permanent security because the children would grow up and surely, being the children of parents who had been killed, they would constitute a danger no smaller than that of their parents. Fn235
In some instances, Jews who were required for skilled labor were spared. As a result, the authorities in the Baltic States reluctantly reported that, "an annihilation of the Jews without leaving any traces could not be carried out, at least not at the present moment . . . . many Jewish craftsmen are indispensable . . . for repairing installations of vital importance, for the reconstruction of towns destroyed, and for work of military importance." Fn236 As the need for Jewish labor decreased, the Jews in the Baltics were gradually arrested and "executed in small batches." Fn237
The German military was perturbed over the policy of placing more importance on the labor demands of the Reich than on the security requirements of the occupied territories. General Wilhelm Kube, the General Commissioner of White Ruthenia, wrote that he "would certainly much prefer that the Jewish population in . . . White Ruthenia should be eliminated once and for all when the economic requirements of the Wehrmacht have fallen off." Fn238 He urged the termination of the transportation of workers to the Reich: "The Polish Jew is exactly like the Russian Jew, an enemy of all that is German. He represents a politically dangerous factor, the political danger of which exceeds by far his value as a specialized worker." Fn239
Within two years, the Einsatzgruppen were able to report that their mission was close to completion.
The systematic mopping up of the eastern territories embraced, in accordance with the basic orders, the complete removal, if possible, of Jewry. This goal has been substantially attained - with the exception of White Russia - as a result of the execution up to the present time of 229,052 Jews. The remainder still left in the Baltic Provinces is urgently required as labor and housed in ghettos. Fn240
This, of course, was a massacre of innocents. Fn241 Perhaps two percent of those who were executed had engaged in criminal activity. Fn242
All twenty-one defendants were convicted. Fourteen were sentenced to death by hanging, two to life imprisonment and three to twenty years in prison, and two to ten years. Fn243
The Einsatzgruppen Case constituted the "biggest murder trial in history" - an unprecedented prosecution of twenty-one individuals charged with "destroying over one million of their fellow human beings." Fn244 While mass murders had occurred in all eras, the Court noted that "it was left to the twentieth century to produce so extraordinary a killing that even a new word [genocide] had to be created to define it." Fn245 The defendants, unlike those prosecuted at Nuremberg, had not been ensconced in their offices thousands of miles from the front. Instead, these militarists were in the field, "actively superintending, controlling, directing, and taking an active part in the bloody harvest." Fn246
At a secret meeting conducted in May 1941, in Pretzsch and Dueben, Saxony, the Einsatzgruppen and Einsatzkommando leaders were introduced to the notorious Fuehrer Order. The Einsatzgruppen were instructed to liquidate Jews, Gypsies, Communists, the elderly and infirm, and other opponents of National Socialism. Children also were to be exterminated in order to eliminate potential political enemies. The Tribunal observed that under the guise of State security that these people were to be "hunted down like wild game." Fn247
The prosecution's presentation primarily was based on the official accounts prepared by the Einsatzgruppen leaders. Fn248 The Court observed that these documents described the Germans' efforts to "liquidate" and "execute" the Jews. Fn249 Opaque euphemisms often were employed to distance the defendants from the consequences of their actions. The Jews were "rendered harmless," "got rid of," "done away with," "solved," "taken care of," or subjected to "special treatment." Fn250 Additional reports recorded that areas, "'had been purged of Jews'" or that "'the Jewish question was solved.'" Fn251 The completion of the Einsatzgruppen's enterprise typically was marked by the proclamation that, "'[t]here is no longer any Jewish population.'" Fn252 In other instances, officers laconically recorded that an area had been "freed of Jews." Fn253
In the end, the defendants, as typified by Paul Blobel, Commander of Sonderkommando 4a of Einsatzgruppe C, seemingly demonstrated greater sympathy for the executioners than for the victims. Blobel noted that, "[h]uman life was not as valuable as it was with us. They did not care so much. They did not know their own human value. . . . [O]ur men who took part in these executions suffered more from nervous exhaustion than those who had to be shot." Fn254 The Germans also callously calculated that the exterminations yielded a "substantial material advantage. . . . [E]ven in the dread and grim business of mass slaughter, a definite profit was rung up on the Nazi cash register." Fn255 Money, jewelry, clothes, furniture, and houses were seized from "liquidated Jews." Fn256
The Tribunal rejected the proposition that the defendants were being prosecuted under a retroactive law. All nations were bound by the laws of war which had evolved through common usage, acknowledgment, and recognition. These rules universally condemned the wanton killing of noncombatants by an occupying power. Clearly, "no one can claim with the slightest pretense at reasoning that there is any taint of ex post factoism in the law of murder." Fn257
The fact that the Tribunal had not been established prior to the defendants' alleged criminal conduct also did not transform the trial into a retroactive prosecution. Russia had the right to prosecute those who had invaded her territory as well as those who had violated the humanitarian law of war. The Soviet Union, in the view of the Tribunal, also possessed the prerogative of joining with other Allied Powers in order to collectively exercise Russia's criminal jurisdiction. Fn258
The Court rejected the contention that international law did not apply to individuals: "Nations can act only through human beings, and when Germany signed, ratified, and promulgated the Hague and Geneva Conventions, she bound each one of her subjects to their observance." Fn259 Nor was this an example of the victors singling out the vanquished. The defendants, according to the Tribunal, were being prosecuted because they committed crimes, not because they fought for a defeated country. Fn260 "The doctrine that no member of a wronged community may try an accused would for all practical purposes spell the end of justice in every country. It is the essence of criminal justice that the offended community inquires into the offense involved." Fn261
The defendants claimed that their actions were undertaken in defense of the Reich and that they were entitled to engage in any acts which they reasonably believed were required to preserve the German nation. Fn262 The Court rejected this claim, reasoning that "any belligerent who is hard pressed would be allowed unilaterally to abrogate the laws and customs of war. And it takes no great amount of foresight to see that with such facile disregarding of restrictions the rules of war would quickly disappear." Fn263
International law did not authorize the assassination of civilians who were arbitrarily decreed to be dangerous. The defendants were unable to detail the imminent danger posed by Jews who adhered to Communism or the process through which Jews injected other Russians with Bolshevism. They also failed to explain why non-Communist European and Russian Jews were executed. The Tribunal observed that "when it came to a Jew, it did not matter whether he was a member of the Communist Party or not. He was killed simply because he was a Jew." Fn264
The Tribunal distinguished between the Allied aerial assaults on Berlin, Dresden, Hamburg, Cologne and other German cities and the Nazi's killing of civilians. These bombings were in reprisal for the German attacks on London, Coventry, Rotterdam, and other Allied cities. Even if the bombings had not been acts of reprisal, "there still is no parallelism between an act of legitimate warfare, namely the bombing of a city, with a concomitant loss of civilian life, and the premeditated killing of all members of certain categories of the civilian population in occupied territory." Fn265
The Tribunal noted that a city customarily was targeted in an effort to defeat the enemy. Once the enemy surrendered, the bombing was terminated. The killing of civilians during such attacks often was "an unavoidable corollary of battle action." Fn266 This differed from the Einsatzgruppen's deliberate and premeditated execution of non-combatants. The latter bore no relation to the pursuit of military objectives and continued long after the Germans had secured control over enemy territory. Fn267
The defendants also claimed that they had complied with superior orders and therefore lacked criminal intent. The Tribunal recognized that a solider is trained to follow orders and that the military depends upon the efficient carrying out of commands. However, the judges ruled that a subordinate is only bound to obey lawful orders. A subaltern who knowingly accepts and executes an illegal command may not plead superior orders in defense or mitigation of the offense. Fn268
Various defendants professed that they were involuntarily thrust into a situation in which they were required to engage in mass slaughter. Fn269 The Tribunal observed that the extermination order was the logical outgrowth of Nazi ideology. According to the Court, an individual who participates in a program which "he knew to be illegal in its very inception . . . may not excuse himself from responsibility for an illegal act which could have been foreseen by the application of the simple law of cause and effect." Fn270
The Tribunal ruled that a defendant invoking the defense of duress must satisfy the requirements of proportionality, imminence, and involuntariness. A defendant must demonstrate that the harm caused by obeying the illegal order was not disproportionately greater than the harm which would have resulted from not obeying the order. It would not be an adequate excuse to kill an innocent in order to avoid a few days confinement. The threat also must have been "imminent, real, and inevitable." Fn271 An individual may not plead duress once the threat is removed. Fn272 According to the Tribunal,
the test to be applied is whether the subordinate acted under coercion or whether he himself approved of the principle involved in the order . . . . The doer may not plead innocence to a criminal act ordered by his superior if he is in accord with the principle and intent of the superior. Fn273
The Tribunal noted that a Commando leader who declared that he was constitutionally incapable of engaging in mass exterminations, likely would have been assigned to other duties, sent back to Berlin or dismissed. Fn274 The defendants, thus, could not credibly contend that it was futile to request a release from their responsibilities. In the end, the panel dismissed the defense of duress and determined that the defendants had been driven by ambition and animus to engage in mass executions. While they may have found the executions unpleasant, the Court observed that the defendants were nonetheless able to kill with few qualms of conscience. Fn275
Several defendants asserted that there was no point in attempting to avoid involvement in the executions since others would have willingly assumed their positions on the firing line. However, the panel pointed out that the defendants could not confidently predict how others might react. One defiant dissent might have sparked a firestorm of opposition. In the end, the judges ruefully observed that the obligation to obey superior orders provided a fanciful and flimsy justification for "mass butchery." Fn276
The Tribunal analogize the Fuehrer Order to a directive which required the killing of all grey-eyed people, regardless of their age sex or position. Fn277 Although such an edict seemed "fantastic and incredible . . . [i]f one substitutes the word Jew for grey-eyed, the analogy is unassailable." Fn278 Yet, during the trial, the defendants uniformly praised Hitler as a great leader and statesman. They would have been elated had the Reich won the war, even at the cost of two million German lives and the physical destruction of Europe. Fn279 The Tribunal critically concluded that the defendants were among those who had made it possible for a "megalomaniac to achieve his ambition of putting the world beneath his heel or to bring it crashing in ruins about his head. . . . When Samuel Johnson uttered his cynical line that patriotism is the last refuge of a scoundrel, he could well have had in mind a Hitlerian patriotism." Fn280
The Tribunal applied these basic principles and pronounced each of the defendants guilty. SS General Otto Ohlendorf had led Einsatzgruppe D into the Crimea. Ohlendorf had studied law and political science, and had pursued careers as a barrister and economic analyst. Fn281 This self-professed humanist commanded a unit which, as Ohlendorf conceded, killed ninety thousand persons. He unsuccessfully sought exculpation under the self-defense and superior orders defenses. Fn282
The other defendants also attempted to rely on these defenses. When interrogated as to whether it was proper to shoot individuals for allegedly spreading Communist propaganda, SS Brigadier General and Major General of Police Heinz Jost, who commanded Einsatzgruppe A, which executed over one hundred thousand, succinctly stated: "'According to my orders these measures had to be carried out. . . . [I]t was correct and justified.'" Fn283 The Tribunal, however, noted that, "there is nothing in international law which justifies or legalizes the sentence of death for political opinion or propaganda." Fn284
Defendant Erich Naumann served as chief of Einsatzgruppe B from November 1941 until February or March 1943. Fn285 Naumann conceded that he was cognizant that executions were taking place. Fn286 He explained that, "'I considered the decree to be right because it was part of our aim of the war and, therefore, it was necessary.'" Fn287 When asked whether he "'saw nothing wrong with the order, even though it did involve the killing of defenseless human beings' . . . he replied 'yes.'" Fn288 Naumann asserted that the Fuehrer Order was already operative at the time he assumed command of Einsatzgruppe B and that he had not instructed his troops to carry out the command. The Tribunal ruled that Naumann nevertheless possessed an affirmative duty to take such steps as were within his power and appropriate under the circumstances to prevent violations of the laws of war. Fn289
Others, such as Ernst Biberstein, Chief of Sonderkommando 6 under Einsatzgruppe C, argued that every execution was preceded by an investigation and that only those guilty of War Crimes were killed. Yet, Biberstein testified that he had witnessed the extermination of sixty-five persons and conceded that he was not certain whether each had been adjudged guilty. Fn290 In the case of defendant SS Lieutenant Colonel Walter Haensch, the Court concluded that there was no evidence that investigations or trials had preceded the executions carried out by those under Haensch's command. The Tribunal reiterated that neither political belief nor religious affiliation constituted grounds for execution under the law of war. Fn291
SS Brigadier General Erwin Schulz commanded Einsatzkommando 5, which formed part of Einsatzgruppe C. Fn292 Schulz claimed that he was not responsible for the executions which had occurred while he was absent in Berlin. The Tribunal, however, noted that "[t]he man who places a bomb, lights the fuse, and rapidly takes himself to other regions is certainly absent when the explosion occurs, but his responsibility is no less because of that prudent nonpresence." Fn293
SS Colonel Walter Blume was commander of Sonderkommando 7a which was attached to Einsatzgruppe B. Fn294 Blume, like the other defendants, presented affidavits testifying to his "honesty, good nature, kindness, tolerance, and sense of justness." Fn295 The Tribunal bemoaned that a person of such moral stature had fallen under the influence of Adolf Hitler. Hitler, "with all his cunning and unmitigated evil would have remained as innocuous as a rambling crank if he did not have the Blumes, the Blobels, the Braunes, and the Bibersteins to do his bidding - to mention only the B's." Fn296
In the Hostage Case , twelve German officers were charged with War Crimes and Crimes against Humanity. Fn297 The first count alleged between September 1939 and May 1945, that the defendants had executed hundreds of thousands of Greek, Yugoslav, and Albanian hostages in reprisal for the wounding and killing of German combatants and persons under German protection. Fn298 Count Two charged that the defendants had unjustifiably looted and plundered public and private property and wantonly killed the inhabitants of cities, towns, and villages in the occupied territories of Norway, Greece, and Yugoslavia. Fn299 Count Three accused the defendants of initiating and drafting illegal orders which they then issued and distributed to the troops under their command. The troops subsequently carried out these orders which resulted in the ill-treatment and death of civilians, combatants and prisoners of war. Fn300 Count Four alleged that the defendants were involved in the imprisonment of civilians in concentration camps and that these internees were subsequently abused, tortured, subjected to involuntary servitude, and murdered. Fn301
In July 1939, as the plans for the invasion of Poland were being finalized, a series of directives were distributed which authorized field commanders to seize and execute hostages in reprisal for attacks on Germans troops. These killings were intended to intimidate and ensure the cooperation of Poles living under German occupation. By October 1939, hostages had been seized in virtually every village in which troops were billeted. In the event of an attack on the Wehrmacht or other Germans, division commanders were authorized to ruthlessly retaliate. Fn302
The practice of reprisals continued in France and grew increasingly savage as the Germans swept into the Balkans and Russia. On October 25, 1941, President Franklin D. Roosevelt admonished that:
The practice of executing scores of innocent hostages in reprisal for isolated attacks on Germans in countries temporarily under the Nazi heel revolts a world already inured to suffering and brutality. Civilized peoples long ago adopted the basic principle that no man should be punished for the deed of another. Fn303
The three principal military figures in the German campaign in southeast Europe were Wilhelm List, Heinrich von Kleist, and Maximilian von Weichs. Following the capitulation of Yugoslavia in 1941, List was appointed Armed Forces Commander Southeast. Kleist departed to head an armored group in the Russian campaign. Von Weichs and the 2d Army also were scheduled to be deployed on the Russian front, but remained in Yugoslavia while List completed the conquest of Greece and Crete. Prior to departing for Russia, von Weichs helped to recruit and organize Croatian militia units (Utasha) which were infamous for their savagery. Fn304
On April 28, 1941, von Weichs issued an order which established the twin touchstones of German occupation of Yugoslavia and Greece: a refusal to recognize partisan fighters and suspected sympathizers as either lawful belligerents or "protected persons;" and the execution of hostages in reprisal for the wounding and killing of Germans. Von Weich's directive specified that any armed individual clothed in a Serbian uniform "transgresses the bounds of international law and is to be shot to death immediately." Fn305 Men seized in the proximity of armed partisans also were to be executed "if it cannot immediately be ascertained with certainty that they were not connected with the band." Fn306 In the event of a surprise attack, hostages were to be detained and killed. Fn307 The bodies of those who had been shot were "to be hanged and left hanging." Fn308
Placards were posted in Serbian villages warning that one hundred inhabitants would be killed for every German soldier "who comes to harm as a result of a surprise attack conducted by Serbs." Fn309 Von Weich's specified that hostages were to be seized in advance of attacks. However, the Germans were unable to maintain a sufficient supply of reprisal prisoners and usually were forced to arbitrarily detain and summarily execute civilians. Fn310
By September 1941, the Reich had completed the occupations of Yugoslavia and Greece. Nevertheless, German forces continued to confront ferocious opposition. Hitler charged List, as Armed Forces Commander Southeast, with the task of suppressing the insurgent movement. In accordance with List's request, Franz Boehme was named Plenipotentiary Commanding General in Serbia. Fn311 One of Boehme's first initiatives was to disseminate an order which was to be destroyed after reading.
You are the avengers of [the] dead. An intimidating example must be created for the whole of Serbia which must hit the whole population most savagely.
Everyone who wishes to live charitably sins against the lives of his comrades. He will be called to account without regard for his person and placed before a court martial. Fn312
List requested license to initiate an even harsher repressive regime. Field Marshal Heinrich Keitel, Chief of the Armed Forces High Command, responded on September 16, 1941 by authorizing the "severest means" against "Communist" insurgents. Fn313
One must keep in mind that a human life frequently counts for naught in the affected countries and a deterring effect can only be achieved by unusual severity. . . . [T]he death penalty for 50 to 100 Communists must in general be deemed appropriate as retaliation for the life of a German soldier. The manner of execution must increase the deterrent effect. The reverse procedure - to proceed at first with relatively easy punishment and to be satisfied with the threat of measures of increased severity as a deterrent - does not correspond with these principles and is not to be applied. Fn314
On September 28, Keitel directed military commanders to detain nationalists, democrats, and Communists. He stressed that these hostages should be prominent personalities or members of leading families in order to enhance the impact of their detention and death. Fn315
Less than two weeks later, on October 10, 1941, Boehme pronounced that the rambunctious "Balkan mentality" only could be combatted through "[s]peedy and ruthless suppression." Fn316 Boehme specified that one hundred hostages were to be executed for each German soldier or ethnic German killed or murdered; fifty hostages were to be executed for each wounded German soldier or ethnic German. These reprisals, if possible, were to be carried out by the unit which had been the target of the attack and were to be publicized in the press. The corpses were to be buried at distant locales and no crosses or decorations were to adorn the graves. Despite List's stipulation that captured combatants were to receive a court martial, Boehme ordered that Communist combatants were to be subjected to summary execution. Villages which had been occupied by enemy troops or from which gun fire had emanated, were to be burned to the ground. Fn317
On October 4, 1941, Boehme ordered the execution of twenty-one thousand persons in retribution for the killing and torture of twenty-one German soldiers by "Communists bandits." Fn318 An earlier report recorded that an "unidentified Jew" reportedly had thrown a bottle of gasoline at a German motor vehicle. A sixteen year-old Serbian girl was arrested. She subsequently "admitted that she was incited to the deed by a Jew" and, in reprisal, one hundred Jews were summarily shot. Fn319
In late October 1941, a somewhat new cast of characters was scripted to direct German operations in the Southeast. Walter Kuntze replaced List and requested Boehme to supervise the suppression of partisans in Croatia and Serbia. Hans Bader was appointed to direct the daily details of the Serbian campaign and Herman Foertsch continued as Kuntze's chief of staff. Fn320 The measures which had been initiated by List were enforced with increased ferocity. Kuntze admonished his troops that "'[i]t is better to liquidate 50 suspects than lose one German soldier.'" Fn321 In a November 1941 order, Boehme decreed that all captured insurgents, even those who had deserted, were to be shot as partisans. Fn322 A February 6, 1942 order from Kuntze declared that prisoners taken in combat "cannot be innocent . . . and . . . must . . . be shot to death. The lenient attitude of the troops . . . is to combatted most vigorously!" Fn323 Those who "loiter in the combat terrain . . . and are not in their residence . . . must . . . be shot to death." Fn324 On March 19, 1942, Kuntze ordered the troops to deploy the Serbian population to clear the terrain in areas which had been mined. Fn325
Kuntze and the other commanding officers were well-aware that reprisal actions continued to be carried out. Fn326 A typical report, dated November 1941, detailed the shooting of Jews and Gypsies who had been seized from the prison camp at Belgrade. Fn327 The lieutenant in charge complained that the only trucks available were operated by civilian drivers and lacked tarpaulins and that, as a result, "secrecy [was] not assured." Fn328 He confirmed that the prisoners' valuables and luggage had been collected and had been turned over to the National Socialist Peoples' Welfare. While the prisoners took a substantial amount of time to dig their collective grave, the report noted that the actual executions "went very rapidly." Fn329 Kuntze vacated the post of Armed Forces Commander Southeast on August 8, 1942. In less than a year, his troops had killed forty-five thousand persons in Croatia and Serbia. Thousands of others had been deported to work as slave labor in Norway and in the Reich. Kuntze was replaced by Alexander Loehr. Hermann Foertsch, who had served as chief of staff under both List and Kuntze, remained in the same capacity throughout Loehr's twelve month tenure. General Bader continued as commanding general in Serbia. Kurt von Geitner served as Bader's chief of staff. Fn330
The reprisal procedure was well-established. The killing or wounding of occupation forces, the severing of telephone lines, the sabotage of railroad tracks, the igniting of mines or attacks on transport were met with an immediate response. A standardized reprisal protocol was formulated in order to insure uniform and expeditious reprisals. Fn331
For one German, or one Bulgarian occupational corps member, killed, 50 hostages are to be executed.
For one German or one Bulgarian occupational corps member wounded, 25 hostages are to be executed.
For the killing of a person in the service of the occupying power, regardless of his nationality, or a member of the Serbian Government, high Serbian official (district supervisor or mayor), official of the Serbian State Guard, or member of the Serbian Volunteer Corps, 10 hostages are to be executed.
For the wounding of any person in the previous categories, five hostages are to be executed. For an attack against important war installations, up to 100 hostages are to be shot to death, according to the seriousness of the case. Fn332
In less serious cases, various forms of collective punishment, such as the burning of houses or monetary fines, were to be imposed. Bader directed that hostages should be drawn from those who had cooperated with or had displayed "intentionally passive behavior toward the culprits" (so-called "bandit-helpers"). Fn333 In those instances in which "accomplices" were not apprehended, hostages were to be collected from among those who were "considered coresponsible, although they may not have any connection with the particular incident." Fn334
Faced with a dwindling supply of hostages, the Security Police was pressured to provide the human fodder required to fuel the machinery of extermination. The constabulary, with the assistance of collaborators, compiled lists of "suspects" who were to be detained. The inventory included the relatives of men who were inexplicably absent from a village, nonconformists, and individuals who had reportedly displayed a hostile or uncooperative attitude. This was an imprecise process and individuals frequently were arbitrarily included on the hostage list. Fn335 Hostages frequently had to be collected from areas far from the site of an attack in order to fulfill the execution quota. Fn336 Reprisals were even carried out in those instances in which the perpetrators of an attack were apprehended or killed. In December 1942, a twenty-year-old female assassin wounded two German officers and killed a member of the Serbian militia. The woman subsequently committed suicide. Nevertheless, over seventy-five hostages were executed in retaliation. Fn337
By the end of 1942, Tito had developed a militia of over one hundred thousand and had come to control a significant portion of Croatia. The Germans reacted by executing hostages, burning villages, and detaining those suspected of assisting Tito's forces. Loehr and Foertsch emphasized that "'individual soldiers should not be prosecuted for being too severe with the native inhabitants'" and warned that commanders who refused to resort to retaliatory measures would be held "responsible." Fn338
Despite the fact that the Reich intelligence service had concluded that Tito's units were formally organized and uniformed, the Wehrmacht refused to recognize the partisans as lawful combatants. Tito's forces were executed without hearing, trial, or court martial. A January 7, 1943 directive ordered: "'Execute and hang partisans, suspects, and civilians found with weapons. No formal proceedings are necessary.'" Fn339 Foertsch reported to the Army High Command in Berlin that, as of September 8, 1942, that 52,362 "insurrectionists" had been shot. Fn340
On July 10, 1943, the Allies landed in Sicily and quickly pushed into the Italian mainland. Five weeks later, the Italian armed forces unconditionally surrendered. Already having suffered devastating defeats in North Africa and Russia, the Germans were determined to invigorate their war effort in the Balkans. Fn341 Field Marshal Maximilian von Weichs was brought back from the Russian front to assume command over the newly-formed Army Group F which was assigned to southeastern Europe. Foertsch, who had served as chief of staff under List, Kuntze, and Loehr, continued in the same post under von Weichs. Loehr was placed under von Weichs' command and was assigned to head Army Group E, which was to operate in Greece and the Aegean Islands. Helmuth Felmy and Hubert Lanz were appointed corps commanders under Loehr. In order to combat the partisans, the headquarters of the 2d Panzer Army was shifted from Russia to Croatia. General Lothar Rendulic, an Austrian veteran of the Polish and French campaigns, was charged with spearheading the fight against Tito's forces in Croatia. Rendulic's two corps commanders were Ernst von Leyser and Ernst Dehner. Bader was thought to be too old and hesitant to continue as German commander in Serbia and was therefore, replaced by Hans Felber, who had established his reputation in occupied France. Kurt von Geitner continued as chief of staff. Fn342
Von Weichs' immediate challenge was to disarm and neutralize the Italian armed forces in Croatia, Montenegro, Albania, and Greece. Fn343 Under the terms of the armistice, the Italians were to cease hostilities against the United Nations and withdraw. Berlin ordered that Italian soldiers who desired to continue fighting should be permitted to retain their arms and should be provided the same rations and fifty percent of the compensation accorded to German combatants. The others were to be disarmed, imprisoned and turned over the Plenipotentiary for Labor Allocation and the Reich Minister for War Production and Armament. Officers who had permitted their unit's armaments to fall into the hands of insurgents or who had assisted or fought with the partisans were to be executed following a summary court martial. Fn344
The Fuehrer's order was savagely implemented. In Croatia, Italian divisions which had destroyed their arms and supplies suffered the execution of the divisional command, one staff officer and fifty soldiers. Combatants who had sold, given away, destroyed or who were not in possession of their weapons, also were shot. One officer and ten infantry men were killed for each motorized vehicle which had been sabotaged. Fn345
Once having disarmed and liquidated the remnants of the Italian Army, the Southeast Command once again turned to the pacification of Croatia. The partisans had been armed and equipped by the Allies and now were capable of launching full-scale attacks. Fn346 Overwhelmed, the Germans, in 1943 and 1944, deployed increasingly brutal terror tactics against the indigenous population. Having already detained and decimated the Jews as well as those who were considered democrats and nationalists, the Germans now seized the remaining "Communists," "bandit suspects," "bandit helpers," and relatives of "bandits." Fn347
The Wehrmacht entered villages, assembled the population, and demanded information concerning the size, location, and leadership of partisan bands as well as the names of new arrivals and those absent from the village. The entire male population of villages which refused to cooperate were deported to hostage camps. Fn348 In those instances in which shots were fired from a village, the hamlet was burned to the ground and the "'bandit suspects'" and "'bandit helpers'" were executed. Fn349 The other inhabitants were evacuated to work in the Reich. Fn350
By early summer 1943, the German grip on Greece had loosened and the country was slipping from the grasp of the Reich. Fn351 The Germans adopted the same terror tactics which had been employed in Yugoslavia. Fn352 In December 1943, partisans were alleged to have imprisoned and executed seventy-eight German soldiers. In reprisal, "Operation Kalavritha" was initiated - an eight day bloodbath in which twenty-four villages and three monasteries were destroyed and 696 people were executed. Fn353
In April 1944, two members of the German military were attacked and killed two miles from the village of Klissura. German troops from the 7th SS Panzer Grenadier Regiment entered the village and executed 223 persons, including fifty children under ten and 128 women. Von Weichs undertook an investigation and dismissed allegations of atrocity. Fn354 He disingenuously reported that, "'[t]he Greek witnesses cannot be believed. The village was taken by storm, the inhabitants killed by artillery fire. There was no retaliation action.'" Fn355
Two months following Klissura, the 7th SS Panzer Grenadier Regiment was purportedly fired upon near the village of Distomon. The Germans entered the village and executed over 270. Fn356 Berlin initiated an investigation which revealed that the regiment had issued a false combat report which recorded that the civilians had been killed during a hard-fought battle. Nevertheless, Field Marshal von Weichs and General Felmy agreed that the action had been justified and that headquarters would have approved the attack had a request been lodged. The reprisal had saved the time and resources which would have been required to send troops back into the village. Von Weichs and Felmy concluded that the officer's action was "'merely a transgression against formality and corresponded to a natural soldierly feeling.'" The officer was only subjected to disciplinary sanctions. Fn357
Charges of devastation and deportation also were lodged against various defendants stemming from the conduct of the 20th Mountain Army in northern Norway. On September 4, 1944, Finland surrendered to the Soviet forces and demanded that the Germans immediately withdraw their troops. Faced with a Russian advance, General Lothar Rendulic retreated across the northwestern Finnish frontier into Finmark and Troms, the two northern-most Norwegian provinces. The population of this area numbered roughly sixty-two thousand, most of whom lived in small sea-side villages and made their living fishing the nearby waters. Fn358
In late October 1944, in order to deny provisions and supplies to the advancing Russian troops, the German High Command ordered Rendulic to systematically destroy buildings and port facilities and to evacuate the population. Fn359 Rendulic commanded his subordinate units to "ruthlessly" implement the directive in order to insure that the Norwegians were "preserved from Bolshevism." Fn360 He stressed that "[p]ity for the civilian population is out of place." Fn361 Rendulic warned the Norwegian population that, "[h]e who does not comply with these unequivocal instructions exposes himself and his family to possible death in the arctic winter without house or food." Fn362
Northern Norway was transformed into an "Arctic desert." Fn363 Roughly forty-three thousand people - over two thirds of the population of an area roughly the size of Scotland - were crowded into small vessels and evacuated. Reports documented a pattern of persecution, including the separation of families, the burning of houses, and the shelling of villages. Fn364
The three judge panel convicted eight of the ten defendants. Fn365 Two received life imprisonment and the remainder were sentenced to between seven and twenty years in prison. Fn366
The Court recognized that the proceedings were vulnerable to the criticism that the presiding panel was comprised of judges who were drawn from a victor nation. In the absence of an international court, the Tribunal observed that there was no alternative other than to prosecute the defendants before an Allied tribunal. The judges recognized that their decision inevitably would be subject to scrutiny and pledged to provide a "fair, dispassionate, and impartial determination of the law and the facts." Fn367 They were acutely aware that "the victors of the present may be the vanquished of the future" and that "the hand of injustice may fall upon those who . . . vindictively contend for . . . far reaching pronouncements . . . ." Fn368 The panel also pledged to represent the interests of all peoples and proclaimed that it would endeavor to advance the aspiration of insuring peace through law. Fn369
The judges conceded that there were strong arguments in favor of foregoing prosecution. Strict discipline was required in a military organization and some believed that it was unfair to prosecute those who had dutifully discharged the dictates of their superiors. This sense of inequity was exacerbated by the fact that only the vanquished were being held to account. The passage of time and the return to peaceful pursuits also had diminished the demand to bring Nazi war criminals to trial. Nevertheless, the Tribunal concluded that such qualms should be quieted by the realization that "[u]nless civilization is to give way to barbarism in the conduct of war, crime must be punished . . . . If the laws of war are to have any beneficent effect, they must be enforced." Fn370
The Court crafted a cautious decision which was characterized by a conservative analysis. The text avoided bold pronouncements and strictly interpreted the relevant facts and applicable legal standards. Fn371 The Tribunal first addressed the defendants' contention that they had acted pursuant to superior orders and thus should be exonerated. Fn372
Although appreciative that discipline was essential to a military organization, the Court held that international law did not extend immunity to those who knowingly acted pursuant to an order which was unlawful under international law. Fn373 The panel recognized that this rule compelled a combatant to choose 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." Fn374 Nevertheless, the refusal to recognize the superior orders defense was intended to impede the ability of regimes to implement illegal policies which posed a peril to enemy civilians and combatants. Fn375
The Court ruled that Germany possessed the rights and privileges of a lawful occupant under international law in both Yugoslavia and Greece and that this occupancy persisted until the fall of 1944. Although the partisans assumed sporadic control of the countries, the Tribunal noted that this was transitory and tolerated by the Germans who, at various times, reasserted their authority. These temporary losses of control were not deemed to deprive the German armed forces of occupancy status. Fn376
The fact that the invasions of Yugoslavia and Greece were acts of aggression did not deprive Germany of the status of a lawful belligerent. The Tribunal noted that the reciprocal rights and duties of an occupant and the occupied population were not dependent upon the legality of the military incursion. As a result, the Court ruled that "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." Fn377
The Tribunal also concluded that most Yugoslav and Greek partisans had failed to comply with the rules of war and were not entitled to the status of lawful belligerents. Fn378 According to the Court, the guerrillas often were integrated into a military command structure, but possessed no common identifiable uniform and their insignia (e.g. the Soviet star) typically was not visible at a distance. In addition, the partisans did not openly carry arms. As a result, the Tribunal held 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 . . .." Fn379 Undoubtedly, in some instances, lawful belligerents were unjustifiably executed. Nevertheless, the judges ruled that the situation as it appeared to a military commander "must be given the first consideration . . . . Where room exists for an honest error in judgment, such army commander is entitled to the benefit thereof by virtue of the presumption of innocence." Fn380
The Tribunal ruled that the defendants were entitled under international law to seize and execute hostages in reprisal for violations of the law of war. Fn381 The justifiability of reprisals was based on the collective responsibility of the inhabitants of an occupied territory to conduct themselves in a peaceful and lawful fashion. A breach of this obligation entitled the occupant, as a last resort, to seize and execute hostages. Fn382
However, the Court ruled that a number of conditions must be satisfied. There must be a connection between the hostages and those responsible for the criminal attack. Fn383 A proclamation must be issued enumerating the names and addresses of the hostages; and the population is to be notified that a recurrence of the illegal conduct will result in reprisal. The seizure and subsequent execution of hostages only may be justified in those instances in which the perpetrators are not apprehended. The number killed is required to be proportionate to the provocation. Finally, a court-martial must certify that the required conditions have been satisfied. Fn384
Germany's arbitrary reprisal actions could not be justified on the basis of military necessity. According to the Tribunal, necessity permits the incidental and unavoidable destruction of civilian life and property during a lawful military operation. The devastation must be imperatively demanded by the exigencies of war and must not be disproportionate to the military objective. Military necessity, however, does not justify the indiscriminate and wanton devastation of property or innocents and does not provide a defense to the intentional violation of the prohibitive rules of the law of war. Fn385
Rather than committing additional manpower to the occupation of Greece and Yugoslavia, the German High Command adopted a campaign of intimidation and terrorism. However, the Tribunal stressed that international law must be followed, even at the risk of military defeat. Fn386 "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." Fn387
The Court also rejected the contention that the defendants were being prosecuted for the type of conduct which had been engaged in by the Allies. The judges failed to find a single instance in which the Allied forces had executed a reprisal prisoner. Nor did the bombings of Hiroshima and Nagasaki and the aerial raids against Dresden modify the rules of modern warfare and legitimize the Nazi's reprisal policies. These bombings were in response to the Reich's illegal aerial attacks on Rotterdam, Warsaw, Belgrade, Coventry, and Pearl Harbor. The Court observed that the Germans may not violate the law of war, invite retaliation, and then credibly claim that the standards governing the conduct of war were altered. Fn388
The central factual issue was whether it was clear beyond a reasonable doubt that the defendants were legally linked to the illegal reprisal policy. Fn389 The Court ruled that the German military commanders were presumed to be cognizant and culpable of criminal conduct within the scope of their territorial command. Military commanders also were responsible for events occurring in their absence which resulted from their orders, directions, or prescribed policies. However, they were not liable for criminal conduct occurring in their absence which did not result from their decisions and directives, unless they later ratified the action. Fn390
The lead defendant was Wilhelm List, the fifth ranking field marshal in the German military. List commanded the 12th Army during the invasions of Yugoslavia and Greece and, in June 1941, assumed command of the Armed Forces Southeast. He held this position until compelled to retire on account of illness in October 1941. As Commander Southeast headquartered in Salonika, List was the supreme representative of the armed forces in the Balkans and exercised executive authority over the territories occupied by German troops. Fn391
The Tribunal agreed that Tito's troops were not entitled to prisoners of war status and were subject to execution upon apprehension. Fn392 List also denied having ordered the killing of hostages. The Tribunal, however, determined that List had transmitted the Keitel order which established a 100-to-1 reprisal ratio. A command to take reprisals at such an arbitrarily fixed ratio, regardless of the provocation, clearly constituted a violation of international law. Fn393
Such an order appears to have been made more for purposes of revenge than as a deterrent to future illegal acts which would vary in degree in each particular instance . . . . The order for the killing in reprisal appears to have been arbitrarily issued and under the circumstances . . . is nothing less than plain murder. Fn394
List protested that he had merely distributed the Keitel order and should not be held culpable for the conduct of his subordinates. The Tribunal stressed that an officer who "distributes, issues, or carries out a criminal order becomes a criminal if he knew or should have known of its criminal character." Fn395 A field marshal, like List, with over forty years of military service, certainly knew or should have known of the criminal character of Keitel's command. List's purported opposition to the order evidenced his realization that the reprisal policy was violative of international law. Fn396 The Tribunal also rejected List's claim that he was absent from headquarters and was unaware of the illegal reprisals. List had distributed the reprisal order and was charged with notice of events within the scope of his command. "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 defense." Fn397
List was succeeded on October 27, 1941, by Walter Kuntze, who also was convicted of involvement in illegal reprisals. Fn398 Kuntze enthusiastically encouraged reprisals and ordered that "'[v]illages with Communist administration are to be destroyed and men taken . . . as hostages. If it is not possible to produce the people who have participated in any way in the insurrection or to seize them, reprisal measures of a general kind may be deemed advisable . . . .'" Fn399
Defendant Hermann Foertsch served as chief of staff during the German occupation. Fn400 Foertsch supervised various administrative departments and distributed orders and reports. Although he lacked command authority, Foertsch was authorized to sign routine directives. Fn401 Orders from Berlin and reports from the field were conveyed through and by Foertsch. He, thus, possessed the same information as did defendants List and Kuntze. Fn402 Nevertheless, the Tribunal failed to find that Foertsch had affirmatively engaged in criminal conduct - he neither ordered, abetted nor took a consenting part in illegal activity. Thus, "[n]o overt act from which a criminal intent could be inferred, has been established." Fn403
General Lothar Rendulic was named Commander in Chief of the 2d Panzer Army on August 26, 1943, and remained in that position until June 1944. In July 1944, Rendulic was appointed head of the 20th Mountain Army, a position which he held until January 1945. In December 1944, Rendulic also was designated as Armed Forces Commander North. Fn404
The 2d Panzer Army was headquartered in Croatia and was charged with suppressing partisan warfare and guarding the coast against enemy attacks. Fn405 According to the Tribunal, Rendulic condoned the illegal execution of hostages and made no effort to apprehend the guilty, provide public notice, or to conduct judicial hearings. Under Rendulic and the other defendants, the execution of hostages, "became so common that the German commanders became indifferent to the seriousness of the acts. They appear to have been accepted as legitimate acts of war with the extent of their use limited only by the whim or judgment of divisional commanders." Fn406
Following the September 8, 1943 surrender of Italian forces, Rendulic notified Italian commanders that those who refused to surrender would be shot as terrorists. Severe retaliations were ordered against troops engaging in sabotage or assisting the partisans. Soon thereafter, Rendulic received and distributed Hitler's directive requiring reprisal actions against Italian troops. On October 6, 1943, Rendulic's forces captured and executed three Italian generals and fifty-four officers for treason. Fn407 According to the Court, the Italian forces qualified as lawful belligerents and were entitled to be treated as prisoners of war. Fn408 The "execution of these Italian officers . . . cannot be described as anything but an act of vengeance." Fn409
Rendulic was acquitted of the wanton destruction of property in Norway during the retreat of the 20th Mountain Army. Fn410 The Tribunal noted that international law authorized the destruction or seizure of enemy property where imperatively demanded by the necessities of war. While there was no military necessity for the German demolition and devastation, considering the facts and circumstances as they appeared to Rendulic, his decision may have been "faulty, but it cannot be said to be criminal." Fn411
Helmuth Felmy was appointed Commander Southern Greece in June 1941 and continued in this position until August 1942. On May 10, 1943, Felmy became commander of the LXVIII Corps and, on September 9, 1943, Felmy was selected to command the Army Group Southern Greece. Fn412 Felmy, like the other commanding officers, received and transmitted reprisal orders. Fn413 Those executed often were distant from the site of attack or were selected based on their alleged Communist or terrorist sympathies. According to the Tribunal, "[i]t was more the case of an eye for an eye than an honest attempt to restrain the population by a use of hostage and reprisal measures as a last resort." Fn414
Felmy's lack of concern for innocents is illustrated by his investigation into the massacres at Klissura and Distomon [Greece]. At Klissura alone, German forces killed roughly 215 civilians, seventy-two of whom were under fifteen. Fn415 Felmy concluded that the commanding officer's unilateral decision to execute and then cover-up the killings was in violation of German policy. Felmy nevertheless recommended a minor disciplinary sanction. The Tribunal observed that Felmy
seems to have had no interest in bringing the guilty officer to justice. Two of the most vicious massacres of helpless men, women, and children appear to have met with complete indifference on his part. The falsification of the battle report by the regimental commander seems to have been deemed the major offense. Fn416
The prosecution of Nazi officers resulted in several seminal contributions to the doctrinal development of the humanitarian law of war. The trials affirmed that international law imposes personal penal responsibility on combatants. Such liability attaches to both the victors and vanquished. Fn417
The judges stressed that the excesses of the German Army were traceable to a failure of leadership and command. Nevertheless, the panels rejected the concept of collective bureaucratic culpability. Criminal liability was not solely premised on power or position. Personal dereliction also was required:
Criminality does not attach to every individual in [the] chain of command from that fact alone. There must be personal dereliction. That can occur only where the act is traceable to him [the defendant] or where his failure to properly supervise his subordinates constitutes criminal negligence . . . it must be a personal neglect amounting to . . . wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of international law would go far beyond the basic principles of criminal law as known to civilized nations. Fn418
The Court, in the High Command Case, ruled that only those at the policy-level who knowingly initiated or waged an aggressive war were liable for the planning, preparation, initiation and waging of such a conflict. Thus, the acts of field commanders and staff officers,
below the policy level, in planning campaigns, preparing means for carrying them out, moving against a country on orders and fighting a war after it has been instituted, do not constitute the planning, preparation, initiation, and waging of war or the initiation of invasion that international law denounces as criminal. Fn419
These lower level officers were understandably required to adhere to the "rigid discipline which is necessary for and peculiar to military organization" and were the mere "instruments" of those positioned at the top of the bureaucratic hierarchy. Fn420
Officers below the policy level, however, were held legally liable for War Crimes and Crimes Against Humanity. A cornerstone of the judgments was the imposition of liability upon the commanders in chiefs of occupied territories for manifestly criminal activity within the scope of their territorial command. Culpability was extended to commanders who knew or should have known of criminal conduct, who participated, acquiesced or neglected to interfere in the commission of such offenses. Fn421 Knowledge was presumed or imputed in those instances in which an officer issued Fn422 or transmitted a manifestly illegal order; Fn423 received reports at headquarters which recorded criminal conduct; Fn424 and in those cases in which the illicit activity was discussed during meetings, Fn425 was readily apparent, Fn426 or was common knowledge. Fn427 Absence from headquarters was not recognized as a justifiable basis for a lack of knowledge. Fn428
In the High Command Case , the Court was reluctant to impute knowledge to the defendants. Fn429 The Tribunal, for instance, failed to find that Wilhelm von Leeb possessed or should have possessed knowledge of the atrocities committed by the Einsatzgruppen. The reports were not routed through the Army Group North and there was no evidence that the killings were called to von Leeb's attention. Fn430 The prosecution also urged that von Leeb had passed prisoners of war on the highway and must have been apprised of their abuse and neglect. The Court determined that the "condition of . . . prisoners on the road . . . might well have been due to their condition when captured and not to any neglect of their captors at that time." Fn431 In contrast, in the Hostage Case , the Court appeared more willing to impute knowledge of criminal conduct to field commanders. However, the killing of hostages was an established policy which was exhaustively documented in military reports. Fn432
A commander of an occupied territory who received actual or constructive notice of illegal conduct was charged with a duty to intervene. Wilhelm List, as Armed Forces Commander Southeast, had received reports of unlawful reprisal killings. The Court, in the Hostage Case , ruled that List had a duty to condemn, prevent, and discipline those responsible for these atrocities. Fn433 Defendant Walter Kuntze assumed command of the Armed Forces Southeast in October 1941. Although informed of the execution of reprisal prisoners,
Kuntze not only failed to take steps to prevent their recurrence but he urged more severe action upon his subordinate commanders. Not once did he attempt to halt these disproportionate reprisals . . . . The orders he issued and his subsequent failure to take steps to end these unlawful killings after they had been reported to him makes him criminally responsible . . . . Fn434
Hermann Hoth commanded the 17th Army during the Russian campaign and was condemned for having turned prisoners over to the Security Police. "Notwithstanding his knowledge of the character and functions of the SD [Security Police], his possession of the power to curb them and his duty to do so, he washed his hands of his responsibility and let the SD take its unrestrained course in his area of command." Fn435 The Tribunal, in the High Command Case, approvingly noted that Wilhelm von Leeb, having received information concerning the mass liquidation at Kovno [Latvia], "took action to prevent any recurrence of a similar nature within the area of the 16th Army where Kovno was located." Fn436
Field commanders also were held liable for the transmittal of an order which "is criminal upon its face, or one which he is shown to have known was criminal." Fn437 Orders which satisfied this standard were those which, "[b]y any standard of civilized nations . . . were contrary to the customs of war and accepted standards of humanity. Any commanding officer of normal intelligence must see and understand their criminal nature." Fn438 Staff officers were held criminally culpable in those instances in which they assisted or supervised the drafting or refinement of a manifestly criminal order; or took special steps to distribute such an order. Fn439
The fact that a field commander was implementing the order of a superior did not constitute a defense. Soldiers only were obligated to obey a lawful command. Fn440 A subordinate who carried out an illegal order might invoke the defense of duress in those instances in which he or she acted in response to an "imminent, real and inevitable" threat of death or serious bodily harm. Fn441 In addition, the injury caused by carrying out the illegal order must not have been "disproportionally greater than the harm which would result from not obeying the illegal order." Fn442 The defense of duress also was not available where the illegal order was a logical step in the "development of a program which he [the defendant] knew to be illegal in its very inception . . . [and] which could have been foreseen by the application of the simple law of cause and effect." Fn443
The Tribunal, in the Einsatzgruppen Case , in dismissing the defense of duress, cited the case of defendant Gustav Nosske, head of Einsatzkommando 12. In 1944, Nosske successfully protested an order to detain and decimate all remaining "half-Jews" in Duesseldorf. The Tribunal noted that Nosske's
action in refusing categorically to obey the order, demonstrated, contrary to the argument advanced throughout the trial in behalf of the various defendants, that a member of the German Armed Forces could protest a superior order and not be shot in consequence. Though it is true the defendant suffered some inconveniences . . . he was not shot or even degraded. Fn444
Obedience to a criminal order was not justified on the grounds that others may have carried out the command. This was rejected as pure speculation. Fn445 Defendants were expected to engage in a good faith effort to impede the implementation of an illegal order. However, they were not required, in every instance, to openly oppose or demonstratively defy their superiors. The Commissar Order was distributed by central headquarters to the units under von Leeb's command. Von Leeb communicated his concern to subordinate officers, but neither revoked the order nor resigned. Despite the fact that many were murdered, von Leeb was absolved of responsibility. Fn446 In contrast, Hermann Hoth's silent opposition did not satisfy his legal obligation to impede the Commissar Order. Fn447 A central contribution of the cases was the clarification of military necessity. According to the Tribunal in the Hostage Case, military necessity permits damage to civilians and non-military targets which is incidental to an attack on enemy forces. However, innocents may not be targeted for retribution or repression. Fn448 Although property which may be utilized by the enemy may be destroyed where imperatively demanded by the necessities of war, wanton decimation is prohibited. Fn449
The Tribunal distinguished between the type of senseless and superfluous slaughter of non-combatants carried out by German troops and the Allies' aerial attacks on strategic sites. The bombardment of factories and railways may have incidentally incinerated civilians, but was intended to effect the surrender of the targeted territory. This, according to the Court, was distinct "in fact and in law, from an armed force . . . entering . . . houses . . . dragging out the men, women, and children and shooting them." Fn450 The Court, in the High Command Case, observed that the "right to do anything that contributes to the winning of a war . . . . would eliminate all humanity and decency and all law from the conduct of war and it is a contention which this Tribunal repudiates as contrary to the accepted usage of civilized nations." Fn451
The Germans contended that they lacked experienced troops and that the occupied territories could only be pacified through intimidation and terrorism. Fn452 The Tribunal, in the Hostage Case , however, held that the "rules of international law must be followed even if it results in the loss of a battle or even a war . . . . If adequate troops were not available or if . . . lawful measures against the population failed . . . 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." Fn453 The Court stressed that "[w]ar at its best is a business but under no circumstances can cold-blooded mass murder . . . be considered as related remotely . . . to the exigencies of war." Fn454
The Tribunal did recognize Lothar Rendulic's claim of military necessity. Rendulic commanded the German troops which destroyed housing, communication, and transportation facilities in Finmark [Norway] in order to deny these facilities to the advancing Russian troops. The Russians ultimately did not enter Finmark. Nevertheless, "the conditions, as they appeared to the defendant [Rendulic] 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." Fn455
The Court, in the Einsatzgruppen Case, dismissed the contention that the killing of Jews and other civilians was an act of self-defense on behalf of an endangered third party, the Reich. The intentional killing of defenseless civilians was contrary to the prohibitive principles of the humanitarian law of war. In any event, the defendants were unable to adequately articulate the imminent threat posed by Bolshevists or the rationale for executing those who did not adhere to the Communist catechism. Fn456 The ideological interests of Reich thus were not deemed to justify an attack on the citizens of a third party State. Under such a rationale, "any belligerent . . . would be allowed to unilaterally . . . abrogate the laws and customs of war . . . . [T]he rules of war would quickly disappear. Every belligerent could find a reason to assume that it had higher interests to protect." Fn457
The American judges were mindful that they were susceptible to the charge that the German defendants had been denied a fair trial and were reluctant to plow innovative doctrinal ground. The Tribunal, in the Hostage Case , approved the summary execution of partisans who had failed to comply with the requisites of the law of war. Fn458 The Court stressed that the obligation of resistance forces to adhere to legal standards applied in those instances in which the partisans confronted an invading aggressor force. Fn459
While some partisan bands in Yugoslavia and Greece concededly complied with the humanitarian law of war, the Tribunal determined that 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." Fn460
The Tribunal also approved the seizure of hostages, Fn461 as a last resort, where required to insure the security of occupation forces and the maintenance of law and order. Fn462 Some connection was required between the hostages and the crime committed. Thus,
[i]f 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 . . . neither the authorities nor the population could have prevented, the basis for the taking of hostages, or the shooting of hostages . . . does not exist. Fn463
The execution of hostages was to be accompanied by various procedural safeguards, including the proclamation of names and addresses, prior warnings, and an equivalence between the number executed and the severity of the offense. Fn464 A competent court martial was to certify that such protections had been provided. These concededly flawed procedures were considered to afford some shield against vindictive or capricious killings. Fn465 The Court, in the Hostage Case , determined that the defendants had failed to meet the requisite requirements and concluded that "[t]hose responsible for such crimes . . . must be held to account if international law is to be anything more than an ethical code, barren of any practical coercive deterrent . . . . The guilt of the German occupation forces . . . casts a pall of shame upon a once highly respected nation and its people." Fn466
In the end, the lasting contribution of the three prosecutions may have been to affirm that War Crimes and Crimes Against Humanity are matters of international concern. The arraignment of German officers before American tribunals conveyed that the defendants' crimes not only victimized the citizens of Eastern Europe, but breached global order and security. The judgments provide precedents for bringing military officials who grossly contravene the humanitarian law of war before the bar of international justice. Fn467
The American courts experienced difficulty in locating legal language which adequately captured the defendants' culpability. Genocide became reduced to the vocabulary of common law murder. As noted by the Tribunal, in the Einsatzgruppen Case , "[o]ne million human corpses is a concept too bizarre and too fantastical for normal mental comprehension . . . . [T]he mention of one million deaths produces no shock at all commensurate with its enormity because to the average brain one million is more a symbol than a quantitative measure." Fn468
The victims became reduced to distant and shadowy figures and only a hint of human pain and suffering penetrated the judicial decisions. This, of course, was the final insult, death without description or distinction. In the end, we are slowly seduced into the sinister stance of the Nazi bureaucrat and imperceptively begin to minimize the immensity of the defendants' crimes. Fn469 This distant psychological perspective helps to persuade us that the defendants deserved their relatively lenient sentences. Fn470
Despite the Courts' censorious comments, Fn471 the judges clearly harbored some sympathy for the defendants. These were professional military men with alleged loose loyalties to National Socialism who were portrayed as faithfully fulfilling their duty to fight for the German Fatherland. Fn472 The judges also were impressed by the defendants' achievements and attainments. Fn473 Yet, the descriptions of the defendants' "honesty, good nature, kindness, tolerance and sense of justness" masked that these were cold-blooded killers without whom Hitler "would have remained as innocuous as a rambling crank." Fn474 SS Lieutenant Adolf Ott, commander of Sonderkommando 7b, blandly recounted the killing of Jews.
Q. Some of them refused to talk?
A. That is so.
Q. And they were shot just the same?
A. They had to be shot if they were Jews.
Q. Well, then you did shoot some Jews because they were Jews?
A. I have already said, . . . every Jew who was apprehended had to be shot. Never mind whether he was a perpetrator or not. Fn475
Ernst Emil Heinrich Biberstein served as chief of Sonderkommando 6. Biberstein was questioned regarding the fate of Jews who had been apprehended: "If there were any Jews, Mr. Prosecutor, they were shot, just as the other Jews . . . . I believe that it has been made adequately clear . . . that under the order which has been issued there was no scope to hold trials of Jews." Fn476 Defendant Walter Kuntze, Deputy Armed Forces Commander Southeast and Commander in Chief of the 12th Army, urged his troops to engage in "'unequivocal and harder reprisal measures . . . [n]o false sentimentalities! It is preferable that 50 suspects are liquidated than one German soldier lose his life . . . .'" Fn477
The defendants willingly subordinated their consciences to Hitler's dictatorial demands. Field Marshal Wilhelm List explained that "[w]e were pledged by our oath and duty of obedience." Fn478 SS Brigadier General Erich Naumann, who served as Chief of Einsatzgruppen B, recounted that he harbored no moral qualms concerning the Fuehrer Order: "'I considered the decree to be right because it was part of our aim of the war and, therefore, it was necessary.'" Fn479 SS Lieutenant Colonel Gustav Nosske, commander of Einsatzkommando 12, when questioned as to whether he would have adhered to an order to kill "'500 innocent people, men, women, and children - Jews,'" replied, "'I would have probably done it.'" Fn480 SS Colonel Walter Blume antiseptically affirmed that he regarded a person who advised a farmer not to assist the occupying German forces as a "saboteur" who was "'worthy of the death sentence.'" Fn481 The defendants became inured to mass murder. Heinz Hermann Schubert, adjutant to Otto Ohlendorf, the Chief of Einsatzgruppe D, witnessed the arrest, deportation, and murder of a group of Gypsies. He reported to Ohlendorf that "he saw 'nothing unusual.'" Fn482
The German military meticulously documented their activities. The Court, in the Einsatzgruppen Case , noted that "[t]he reports and the statements of the defendants themselves verify what otherwise would be dismissed as the product of a disordered imagination." Fn483 Still, the defendants desired to deny their despicable deeds and employed euphemisms to distance themselves from the killing. Willy Seibert served as deputy to defendant Otto Ohlendorf. He was questioned whether "the settlement of the Jewish problem meant the execution of Jews?"
A. That did not have to be the case . . . because in the country Jews were not executed . . . they were assigned to labor . . . .
Q. Eventually they were executed?
A. Yes. That is probably the case . . . .
Q. And when you signed the report which contained the phrase, "The Crimea is freed of Jews," you knew what had happened to the Jews?
Q. Yes. I knew that. Fn484
The defendants stressed that German officers possessed a reputation for professionalism and prudence; and that it was incomprehensible that such militarists would have intentionally engaged in criminal conduct. Defendant, General Hermann Hoth, Commander in Chief of the 17th Army, and later of the 4th Panzer Army, observed that the German officer "is a soldier of the finest traditions [who] devoted himself completely to his profession . . . . It was not long before the ordinary soldier came to know him and to admire him . . . he had a warm heart for the soldiers and . . . he constantly endeavored to lessen their suffering." Fn485 Hoth insisted that German officers were fighters rather than fanatics, combatants rather than criminals. "Just as the decision to begin the war was not made by the army, so the fighting in the East - seen from the point of view of the German Wehrmacht - was not a political ideology, but a purely military matter." Fn486
Otto Ohlendorf argued that the defendants, like all soldiers, merely pursued the policies of the prestigious and powerful. Therefore, they lacked criminal intent. Fn487 Although portrayed as malevolent monsters, the defendants argued that they differed little from those who fought on the side of the Allied Powers. Defendant Erich Naumann noted that "[o]n both sides soldiers executed their orders, orders of their highest superiors, even if it was not in accordance with their conscience . . . with the reason that they were necessary in order to reach the war aim." Fn488
The defendants conceded that, at times, their conduct may have been cruel and inhumane. Yet, their actions were morally indistinguishable from the Allied pilots who by "pushing of a button . . . kill[ed] a much larger number of civilians, men, women, and children, even to hurt them for generations . . . ." Fn489 Western leaders approved these aerial attacks because, like the Germans, they believed that "through this terror . . . the people could be demoralized and under such blows the military power . . . would . . . also break down." Fn490 However, in contrast to the Germans, the Allies had been "credited with having acted in good faith, and it is assumed they considered that such an action was militarily necessary." Fn491
The defendants thus noted that they were not singularly sadistic in their willingness to subordinate the demands of morality and conscience to the dictates of duty. Fn492 They also alleged that they had been confronted with an aggressive Communist adversary which was willing to adopt any means to achieve global domination. Fn493 The so-called "eastern man" was described as "capable of . . . fanatical toughness . . . unlimited endurance, and . . . limitless faith. For him the fight . . . was a crusade. The idea of the Bolshevist state of the future was an idol . . . which he worshipped as he did the Icons in former times." Fn494 Field Marshal Wilhelm List, in the Hostage Case, contended that "[i]f harsh measures entailed . . . [t]he fault rests with those who waged this battle . . . cunningly and cruelly in the Balkan manner. We had only one aim, to pacify the country." Fn495
The operation of the murderous Nazi military machine was facilitated by the stereotyping of Jews, Gypsies and Slavs. A letter from a leader of the field police to his commanding general queried whether
you . . . have also seen in Poland such horrible figures of Jews. I thank the fate I saw this mongrel race . . . We surge ahead without pinges of conscience . . . [n]ow is the time . . . to create for our descendants a more beautiful and eternal Germany. We don't sleep here. Every week 3-4 actions, one time gypsies, the other time Jews, partisans, and other rabble. Fn496
Women and children were executed along with the men, "so that Jews, gypsies, and so-called asocials would be exterminated for all time." Fn497 Efficiency rather than humanity was the touchstone. Defendant Ernst Biberstein expressed satisfaction that "'gas execution guaranteed certain death.'" Fn498
Most defendants were inoculated with the view that Bolshevism was a Semitic ideology whose goal was "Jewish world domination." Fn499 The defeat of Bolshevist expansionism, in the minds of the German military, required "rendering Soviet Jewry harmless." Fn500 The defendants thus viewed the extermination of Jews as an act of national defense rather than murder. Fn501 Franz Six, Chief of Vorkommando Moscow, stated that the "killing of male Jews was proper because they were potential bearers of arms." Fn502 Defendant Otto Ohlendorf recalled that he witnessed three executions in which the Jews "went to their death singing the 'International' and hailing Stalin . . . . It was absolutely certain that by these persons the call of Stalin for ruthless partisan warfare would be followed without reservation." Fn503 Ohlendorf later conceded that most of the victims did not pose an immediate threat. However, he cautioned,
that does not change the fact that for us it meant a danger insofar as they were determined to be a danger, and none of us examined whether these persons at the moment, or in the future, would actually constitute danger, because this was outside our knowledge, and not part of our task. Fn504
The German troops were mere messengers of nature. Members of a superior race who were destined to eliminate the demented, disabled and undesirable. Defendant Paul Blobel pointed to the fact that his victims stoically succumbed to slaughter as evidence that the "victim is . . . inhuman while the executioner is to be pitied. . . . To these people 'human life was not as valuable as it was to us.'" Fn505 The Einsatzgruppen Tribunal observed that the "[t]he so-called Jewish problem was not a problem but a fixation based upon the doctrine that a self-styled 'master race' may exterminate a race which it considers inferior . . . . In fact, if it were not so tragic, the National Socialistic attitude toward the Jews could only be considered nonsensical." Fn506
Various defendants acknowledged that they had been manipulated by the master magician Adolf Hitler into believing that Germany was threatened by contiguous countries and surrounding States. Fn507 They portrayed themselves as overpowered by the Fuehrer's force and ferocity. Fn508 Some explained that it was inconceivable to distrust or doubt the legality of Hitler's directives. Defendant Hermann Hoth, in elaborating his reasons for carrying out the Commissar Order, stated that "it was quite impossible for me to assume that he [Hitler] intended a crime in issuing this order. Even today . . . I know his intention really was to protect the troops against commissars. I do not think that Hitler had any criminal intent." Fn509 Defendant Walter Warlimont, who signed and transmitted the Commissar Order to officers in the field, noted that "[i]t did not occur to an officer as I who, in 1941 had been a soldier for almost thirty years, that his head of the state and the supreme commander of his armed forces would issue a criminal order." Fn510 Some also pled that they were intellectually ill-equipped to evaluate the legality of Hitler's directives. Hans Reinhardt, Commander of Panzer Group 3, observed that
a Panzer general is not an international lawyer who during the war would be in a position to make investigations lasting several months, or to ask international lawyers for expert legal opinions about the correctness of his conception of law and whether it could also be maintained in face of the consequences of the lost war. Fn511
In any event, Dr. Rupprecht von Keller, counsel for defendant Rudolf Lehmann, argued that open resistance would have proven futile and likely would have led to severe retribution. A demonic dictator, such as Hitler, certainly would not have been deterred by such dissent. Resignation only would have resulted in replacement by an unscrupulous zealot. The defendants, according to von Keller, chose the most difficult, discerning and demanding course by deciding to remain in their positions and attempting to moderate and undermine the Fuehrer's orders. Fn512
Dr. von Keller stressed that it was difficult for an American judge to comprehend the complex calculus which confronted German officers. Those who undertake
to judge as to whether or not the captain of a ship acted correctly . . . cannot but examine in detail the circumstances to which this man had been subject . . . . He must visualize the roaring of the storm, the turbulence of the waves, the danger of suddenly running ashore, the necessity of immediate decisions . . . [t]he obligation to imagine this situation will be the greater, if he never experienced the force of the elements. Fn513
Von Keller concluded that, "[n]obody can be punished if, in case of a conflict of duties he chose that way which, weighing seriously all interests concerned, he considered the most just." Fn514
The Tribunals confined culpability to those with knowledge and authority to halt the commission of War Crimes and Crimes Against Humanity. Staff officers, such as Hermann Foertsch, Fn515 and Kurt von Geitner, Fn516 who turned a blind eye to murder were exonerated. The Court ruled that,
[t]he evidence fails to show the commission of an unlawful act which was the result of any action, affirmative or passive . . . mere knowledge of the happenings of unlawful acts does not meet the requirements of criminal law. He [the defendant] must be one who orders, abets, or takes a consenting part in the crime. Fn517
The fact remains that all the defendants voluntarily devoted themselves to the furtherance of National Socialism. The extermination programs were a logical extension of Nazi policies. As observed by the Tribunal in the Einsatzgruppen Case, "[o]ne who participated in that program which began with Jewish disenfranchisement and deportation and led, step by step, to deprivation of property and liberty, followed with beatings, whippings, and measures aimed at starvation, may not plead surprise when he learns that what has been done sporadically; namely, murder, now is officially declared policy." Fn518
Some possessed the resilience to resist National Socialism. They neither acquiesced nor cooperated with Hitler. As noted by the Tribunal in the prosecution of Field Marshal Erhard Milch:
Others with more courage and higher principles and with more loyalty to the ancient German ideals rebelled and withdrew from the brutal crew . . . . These men in high positions had the character to repudiate great evil, and if in so doing they took risks and made sacrifices, nevertheless, they made their choice to stand with decency and justice and honor. The defendant [Milch] had his opportunity to join those who refused to do the evil bidding of an evil master, but he cast it aside and his professed repentance now comes too late. Fn519
The defendants in the three prosecutions of German military and police officials prostituted themselves to the Nazi cause and grossly contravened the humanitarian law of war. They pointed their weapons at "protected persons" and performed a principal role in the Nazi's genocidal policies. As a result, these militarists were reduced to the status of murderers. In 1938, General Ludwig Beck resigned as Chief of the Army General Staff. Beck's letter of resignation prophetically predicted that, "'[h]istory will burden these [Army] leaders with blood-guilt if they do not act in accord with their . . . conscience. . . . [M]ilitary obedience has a limit . . . [e]xtraordinary times demand extraordinary measures.'" Fn520
The American prosecutions of German officers stands as one of the most significant international legal actions initiated against military and police officials. These trials explicitly established that high-ranking officers are liable for violations of the humanitarian law of war and are obligated to resist illegal orders. The High Command Case provided principles for adjudging the legal liability of military field and staff officers Fn521 and affirmed that various legal protections are to be accorded to civilians and prisoners of war. Fn522 The Einsatzgruppen Case also elaborated upon the doctrinal shield surrounding civilians Fn523 and clarified the contours of self-defense Fn524 and duress. Fn525 Lastly, the Hostage Case refined the international legal norms regulating occupying powers, Fn526 partisans, Fn527 reprisals, Fn528 and command responsibility. Fn529 The Tribunals also elaborated upon the scope of the superior orders defense Fn530 and military necessity. Fn531
The impact of World War II war crimes trials has faded. The Nazi concept of "total," ideologically motivated warfare unfortunately has become the model for modern conflicts. International law is in danger of degenerating into desuetude and the global community must once again develop the determination to prosecute and punish those who dare to defy the international norms against mass slaughter and genocide. Fn532
---- Begin EndNotes ----
* Professor, University of Illinois at Chicago, Department of Criminal Justice. (Ph.d., Northwestern; J.D., American; LL.M., Harvard). A portion of this research was undertaken during the author's service as "of counsel" for Bosnia and Hercegovina in its suit against "Yugoslavia (Serbia and Montenegro)" in the International Court of Justice. This article is dedicated with lasting love and devotion to Lidia Janus (June 9, 1958 - January 24, 1991) who lived with humanism, integrity, and passion and who longed for a Poland and a Europe free of perversity, prejudice and hate. Lidia continues to inspire us in death as she did in life. We will never forget . . .
Fn1 . See Matthew Lippman, Nuremberg and American Justice, 5 NOTRE DAME J.L. ETHICS & PUB. POL'Y 951 (1991); Matthew Lippman, Nuremberg: Forty Five Years Later, 7 CONN. J. INT'L L. 1 (1991).
Fn2 . See Matthew Lippman, The Other Nuremberg: American Prosecutions of Nazi War Criminals in Occupied Germany, 3 IND. INT'L & COMP. L. REV. 1 (1992). See also Matthew Lippman, The Nazi Doctors Trial And The International Prohibition On Medical Involvement In Torture, 15 LOY. L.A. INT'L & COMP. L.J. 395 (1993); Matthew Lippman, They Shoot Lawyers Don't They?: Law In The Third Reich And The Global Threat To The Independence Of The Judiciary, 23 CAL. W. INT'L L. J. 257 (1993).
Fn3 . See IV TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 411 (1950)[hereinafter EINSATZGRUPPEN JUDGMENT]; XI TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 462 (1950) [hereinafter HIGH COMMAND JUDGMENT]; XI TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 1230 (1950) [hereinafter HOSTAGE JUDGMENT].
Fn4 . See generally Matthew Lippman, The Denaturalization Of Nazi War Criminals In The United States: Is Justice Being Served? 7 HOUS. J. INT'L L. 169 (1985); Matthew Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 3 B.U. L.J. 1 (1994); Matthew Lippman, The Trial Of Adolf Eichmann And The Protection Of Universal Human Rights Under International Law , 5 HOUS J. INT'L L. 1 (1982).
Fn5 . See ADOLF HITLER, MEIN KAMPF (Ralph Manheim trans., Houghton Miffflin, 1975) (1925).
Fn6 . See id. at 611.
Fn7 . See id. at 3.
Fn8 . See id. at 642-43.
Fn9 . See id. at 662, 666.
Fn10 . See id. at 327, 679.
Fn11 . See id. at 623.
Fn12 . Id. at 654 (emphasis omitted). See also id. at 632.
Fn13 . See id. at 644-45, 652.
Fn14 . See id. at 138.
Fn15 . See id. at 643, 646.
Fn16 . Id. at 646.
Fn17 . Id. at 652 (emphasis omitted).
Fn18 . Id.
Fn19 . Id.
Just as our ancestors did not receive the soil on which we live today as a gift from Heaven, but had to fight for it at the risk of their lives, in the future no folkish grace will win soil for us and hence life for our people, but only the might of a victorious sword.
Id. at 653.
Fn20 . Id. at 653 (emphasis omitted).
Fn21 . Id. at 138.
Fn22 . Id. at 281.
Fn23 . Id. at 294-95. "If we were to divide mankind into three groups, the founders of culture, the bearers of culture, the destroyers of culture, only the Aryan could be considered as the representative of the first group." Id. at 290.
Fn24 . Id. at 296.
Fn25 . Id. at 302.
Fn26 . Id. at 402 (emphasis omitted).
Fn27 . Treaty Of Peace With Germany (Concluded at Versailles, June 28, 1919) 13 A.J.I.L. 151 (Supp. 1919) (hereinafter Treaty of Versailles).
Fn28 . See id. arts. 159-202.
Fn29 . See id. arts. 203-10.
Fn30 . Opening Statement of the Prosecution, TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 61, 65 (1951) [hereinafter HIGH COMMAND MATERIALS].
Fn31 . Id. at 66. The phrase "'stabbed in the back'" was invoked by Field Marshal von Hindenburg in an appearance before a legislative committee of inquiry in November 1919. Id.
Fn32 . Interoffice Memorandum Of Reich Defense Ministry, 18 January 1927, Concerning Illegality Of Mobilization Measures, supra note 30, at 427, 428 (emphasis omitted).
Fn33 . See Opening Statement of the Prosecution, id. at 70-71.
Fn34 . Id. at 72.
Fn35 . Extracts From "Voelkischer Beobachter" of 2 and 6 February 1933, Concerning Relations Between The Armed Forces And Hitler, supra note 30, at 468, 469.
Fn36 . Id. at 78. "I take this holy oath before God, that I will render unconditional obedience to the Fuehrer of the German Reich and of the German people, Adolf Hitler, and as a brave soldier will be prepared at any time to sacrifice my life for this oath." Extract From "Voelkischer Beobachter" of 3 August 1934, Reporting The Taking Of Oath Of Allegiance To Hitler By Armed Forces, id. at 473.
Fn37 . Quoted in Opening Statement of the Prosecution, id. at 77.
Fn38 . Id. at 74.
Fn39 . Extracts From Article By Reich Minister General Von Blomberg On "The German Conscription," Published In The "Voelkischer Beobachter," 20 March 1935, id. at 473-74.
Fn40 . Extracts From "The Fight Of The Navy Against Versailles, 1919-1935 Dealing Principally With Concealed Rearmament, id. at 432, 455. A secret history of the German Navy noted that "[o]nly when the Fuehrer had created the . . . condition for an effective rearmament, by the coordination of the whole nation and in the fusion of the political, financial, and intellectual forces, could the work of the soldier find its fulfillment." Id. at 433.
Fn41 . Opening Statement of the Prosecution, supra note 30, at 76-77. See Treaty of Versailles, supra note 27, at arts. 42-43. "In case Germany violates in any manner whatever the provisions of Articles 42 and 43, she shall be regarded as committing a hostile act against the Powers signatory of the present Treaty and as calculated to disturb the peace of the world." Id. at art. 44. See also Directive 2 May 1935 Concerning Preparation For The Reoccupation Of The Rhineland, supra note 30, at 474; Extracts From Hitler's Reichstag Speech, 21 May 1935, Published In "Voelkischer Beobachter," 22 May 1935, id. at 476; Order, 2 March 1936, For The Reoccupation Of The Rhineland, id. at 484.
On Hitler's birthday, April 20, 1936, he promoted Blomberg to field marshal, the first German to be appointed to this rank since World War I. Fritsch and Goering were made full generals and Raeder was appointed to Generaladmiral. See Extract From Hitler's Speech To Military Leaders On His Birthday, 20 April 1936; Published in "Voelkischer Beobachter," 21 April 1926, id. at 487.
Fn42 . II NAZISM 1919-1945 A HISTORY IN DOCUMENTS AND EYEWITNESS ACCOUNTS 637-638 (J. Noakes & G. Pridham, eds., 1988).
Fn43 . Extracts From Speeches By General Liebmann And Von Blomberg, 15 October 1935, Commemorating The 125th Anniversary Of The War Academy; Published In "Berliner Boersenzeitung," 16 October 1935, supra note 30, at 477, 478.
Fn44 . Extracts From Speech By The Chief Of The General Staff, Lieutenant General Beck, 15 October 1935, Commemorating The 125th Anniversary Of The War Academy; Published In "Berliner Boersenzeitung," 16 October 1935, id. at 483, 484.
Fn45 . Quoted in Noakes & Pridham, supra note 42, at 641.
Fn46 . Id. at 642.
Fn47 . Quoted in id. at 643-44. See also Draft Curriculum for the Academy of Naval Administration of 1938, reprinted in id. at 644.
Fn48 . See Letter From Von Blomberg To Commanders In Chief Of Army, Navy, And Air Force, 24 June 1937, Inclosing A Directive for The Unified Preparation For War By The Armed Forces, supra note 30, at 488.
Fn49 . Notes On Hitler Conference Of 5 November 1937, id. at 505, 506.
Fn50 . Id. at 512.
Fn51 . Opening Statement of the Prosecution, supra at note 30, 80-81.
Fn52 . Id. at 82.
Fn53 . Extract From "Voelkischer Beobachter," 6 February 1938, On Hitler Taking Over Command Of The German Armed Forces, id. at 516-17. The remainder of the order read as follows:
The former Chief of the Armed Forces Office will be at the head of the staff of the High Command of the Armed Forces and will be known as 'Chief of the High Command of the Armed Forces.' He will be equal in rank with the Reich Ministers.
The High Command of the Armed Forces assumes at the same time the activities of the Reich War Ministry; the Chief of the High Command of the Armed Forces will exercise all functions of the former Reich War Minister under my authority.
Fn54 . Opening Statement of the Prosecution, id. at 83-84.
Fn55 . HIGH COMMAND JUDGMENT, supra note 3, at 501-02.
Fn56 . Id. at 503.
Fn57 . Id.
Fn58 . Opening Statement of the Prosecution, supra note 30, at 82. The officer's Corps opposed the appointment of Reichenau as Commander in Chief of the Army. Hitler compromised and appointed Lieutenant General von Brauchitsch. Von Brauchitsch, however, lost the respect of his peers when he agreed to replace the martyred von Fritsch. Goering gained von Brauchitsch's gratitude by intervening to secure von Fritsch a divorce so as to permit him to remarry. Von Brauchitsch reciprocated by agreeing to accept a large number of modifications in the army leadership. Although promoted, von Brautchitsch was outranked and overshadowed by Goering who had been promoted to field marshall. Id.
Fn59 . See XI TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 793-95 (1950) [hereinafter HOSTAGE MATERIALS]. The largest field formation in the German Army was known as the "army group" which designated a headquarters controlling two or more armies. Army groups were commanded by either a field marshal or a Generaloberster, ranks which were equivalent to a five-star and four-star general respectively. Below the army group, in descending order, were the corps, the division and smaller units such as regiments, battalions and companies. There were several types of divisions - infantry, armored (Panzer) and motorized (Panzer Grenadier). In southeastern Europe mountain divisions also were formed. See id.
The field forces of the German Army were nominally under the OKH, but regularly received direction from the OKW. This frequently was the case in the occupied territories. In these territories, the Germans often appointed a senior "armed forces commander" (Wehrmachtsbefehlshaber) to whom the heads of the army, navy and air force were responsible. The administration of the region was customarily entrusted to an army general designated as "military commander" (Militaerbefehlshaber). The latter was responsible for security and order. See id. at 795-96.
The Einsatzgruppen were formed in the spring of 1941 as part of Heinrich Himmler's the security apparatus. These squads functioned in the rear operational areas and were charged with exterminating political "undesirables" and opponents of the Nazi regime. See IV Trials Of War Criminals Before The Nuernberg Military Tribunals Under Control Council Law No. 10 35-38 (1950) [hereinafter EINSATZGRUPPEN MATERIALS].
Fn60 . For a number of abortive attempts to assassinate and overthrow Hitler, see MATTHEW COOPER, THE GERMAN ARMY 1933-1945 532 (1978).
Fn61 . Id. at 534-36.
Fn62 . See "Schackling Order," reprinted in id. at 542.
Fn63 . Id. at 543. On April 18, Hitler declared, "'[i]f the German people loses the war, it will have proved itself unworthy of me.'" Id.
Fn64 . Id. at 554-556.
Fn65 . See id. at 546.
Fn66 . See CHRISTOPHER R. BROWNING, ORDINARY MEN RESERVE POLICE BATTALION 101 AND THE FINAL SOLUTION IN POLAND XV, XVI (1992).
Fn67 . OMER BARTOV, HITLER'S ARMY SOLDIERS, NAZIS AND WAR IN THE THIRD REICH 28, 61 (1991).
Fn68 . Id. at 71-72.
Fn69 . Id. at 70. The army assimilated the Nazi ideology "with all its social-darwinist, nihilist, expansionist, anti-Bolshevik, and racist attributes." Id. "The army did not simply pretend not to notice the criminal actions of the regime, it positively ordered its own troops to carry them out, and was distressed when breaches of discipline prevented their more efficient execution." Id.
Fn70 . Id. at 152.
Fn71 . Id.
Fn72 . BROWNING, supra note 66, at 142.
Fn73 . Id. at 47-48.
Fn74 . Id. at 71-72.
Fn75 . Id. at 73.
Fn76 . See Shelford Bidwell, Kesselring, in HITLER'S GENERALS 265, 276 (Correlli Barnett ed. 1989). "If the mark of an outstanding man is that he can cope with novel problems, whether of war, management or politics, without any previous experience or special education, by using sheer intellect, then Kesselring was such a man . . . ." Id. at 276.
Fn77 . The Trial Of Albert Kesselring (Brit. Milit Ct., Venice, Italy, 17 February-6th May, 1947), UNITED NATIONS WAR CRIMES COMMISSION, VIII LAW REPORTS OF TRIALS OF WAR CRIMINALS 9 (1949) [hereinafter KESSELRING CASE].
Fn78 . Id.
Fn79 . See Trial Of General Von Mackensen And General Maelzer (Brit Milit. Ct., Rome, Italy, 18th-30th November, 1945), UNITED NATIONS WAR CRIMES COMMISSION, VIII LAW REPORTS OF TRIALS OF WAR CRIMINALS 1 (1949). On June 17th, 1944, Kesselring issued the first of several orders on partisan warfare. The directive urged that the fight should be carried out
with all means at our disposal and with the utmost severity. I will protect any commander who exceeds our usual restraint in the . . . severity of the means he adopts . . . a mistake in the choice of the means to achieve is always better than failure to act or neglect . . . partisans must be attacked and destroyed.
KESSELRING CASE, supra note 77, at 10. Over a thousand Italians were arbitrarily executed by Kesselring's troops. Id. at 11.
Fn80 . See KESSELRING CASE, supra note 77, at 12. Bidwell, supra note 76, at 287. Bidwell typifies the tendency to minimize the War Crimes committed by the German military. He notes that Kesselring "was by nature genial. The troops nicknamed him 'Smiling Albert,' and he can be seen in his photographs always wearing a cheerful grin." Id.
Fn81 . See Lippman, Nuremberg: Forty Five Years Later, supra note 1, at 7-12 (1991).
Fn82 . See Case Of Lieutenants Dithmar And Boldt (RGSt July 16, 1921) (Germany), reprinted in 16 A.J.I.L. 708, 721 (1922).
Any violation of the law of nations in warfare is . . . a punishable offence, so far as . . . a penalty is attached to the deed. The killing of enemies in war is in accordance with the will of the State that makes war . . . only in so far as such killing is in accordance with the conditions and limitations imposed by the law of nations. The fact that his deed is a violation of international law must be well-known to the doer, apart from acts of carelessness, in which careless ignorance is a sufficient excuse . . . .
Fn83 . Declaration on German Atrocities (October 30, 1943) VI DOCUMENTS ON AMERICAN FOREIGN RELATIONS (July 1943-June 1944) 231, 232 (1945).
Fn84 . Id.
Fn85 . XXII TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNALS 534-89 (1948)(Judgment). The five military officials were Goering, Commander in Chief of the Luftwaffe, id. at 524, 527; Keitel, Chief of the High Command of the Armed Forces, id. at 533, 536; Donitz, Commander in Chief of the German Navy, id. at 556, 561; Raeder, Chief of Naval Command until succeeded by Donitz in 1943, id. at 561, 563; and Jodl, Chief of the Operations Staff of the High Command of the Armed Forces under Keitel, id. at 568, 571. All five the major militarists also were convicted on the aggressive war charge. See id.
Fn86 . Id. at 527.
Fn87 . Id. at 535.
Fn88 . Id. at 522-23.
Fn89 . The United States filed twelve major indictments. See Matthew Lippman, The Other Nuremberg: American Prosecutions of Nazi War Criminals in Occupied Germany, supra note 2.
Fn90 . PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES, CRIMES AGAINST PEACE AND AGAINST HUMANITY, CONTROL COUNCIL LAW No. 10 (December 20, 1945), reprinted in VI TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 XVIII (1952).
Fn91 . Id. art. II, para. (1)(2).
1. Each of the following acts is recognized as a crime:
(a) Crimes against Peace. Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.
(b) War Crimes. Atrocities or 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.
(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.
Id. art. II para. (1)(a)-(d).
Fn92 . Id. art. II, para 3. "Such punishment may consist of one or more of the following . . . ." Id.
Fn93 . Id. art. II, para 4(a). "The official position of any person, whether as Head of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment." Id.
Fn94 . See art. II, para. 4(b). Superior orders may be recognized in mitigation of punishment. Id.
Fn95 . Id. art. II, para. 5.
Fn96 . Id. arts. III-IV. See also ORGANIZATION AND POWERS OF CERTAIN MILITARY TRIBUNALS, ORDINANCE NO. 7 (October 18, 1946) reprinted in IV TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 XXXIII (1952), amended by ORDINANCE No. 11 reprinted in id. at XXIX (establishing the composition and procedure of United States tribunals).
Fn97 . Keitel, Order Concerning Anti-Band Warfare, 16 December 1942; Letter Of Transmittal And Distribution List, 29 December 1942, supra note 30, at 1166, 1168.
Fn98 . Letter Of Transmittal And "Reichenau Order", Of 10 October 1941, Distributed by XXVIII Army Corps Of The 18th Army, Commanded By Defendant Von Kuechler, id. at 1211, 1212.
Fn99 . Id.
Fn100 . Opening Statement of the Prosecution, Id. at 113. The Commando Order, which had been prepared by defendants Walter Warlimont Chief of the Armed Forces Operations Staff and Rudolf Lehmann, Chief of the Legal Division of the OKW, provided that:
For some time our enemies have been using in their warfare methods which are outside the international Geneva Convention. Especially brutal and treacherous is the behavior of the so-called commandos who, as is established, are partially recruited even from ex-convicts in enemy countries. Captured orders reveal that they are directed . . . to shackle prisoners . . . orders have been found in which the killing of prisoners has been required as a standard practice.
. . .
From now on all enemies on so-called commando missions in Europe or Africa challenged by German troops, even if they are to all appearances soldiers in uniform or demolition troops, whether armed or unarmed, in battle or in flight, are to be slaughtered to the last man . . . . Even if these individuals, when found should apparently be prepared to give themselves up, no pardon is to be granted them . . . .
If individual members of such commandos . . . fall into the hands of the military forces by some other means, through the police in occupied territories for instance, they are to be handed over immediately to the Security Service. Any imprisonment under military guard . . . is strictly prohibited, even if this is only intended for a short time.
Supra note 30 at 115.
The "Commando Order," 18 October 1942, signed by Hitler with a note by the defendant Warlimont concerning distribution of order, XI Trials Of War Criminals Before The Nuernberg Military Tribunals Under Control Council Law No. 10 73-74 (1951) [hereinafter HIGH COMMAND MATERIALS II].
Captured American, British, French, Norwegian and Greek commandos were executed pursuant to this order. Opening Statement of the Prosecution, supra note 30, at 115-116. Russian soldiers who were separated from their units and who were apprehended behind German lines in Russia also were executed. See Letter From XXX Army Corps (Commanded By Defendant Von Salmuth) To Subordinate Units, 7 August 1941, Transcribing Extracts From Army High Command Regulation Concerning Treatment Of Enemy Civilians And Russian Prisoners Of War, 25 July 1941, HIGH COMMAND MATERIALS II, supra note 100, at 66.
Fn101 . See Reich Minister Dr. Goebbels, A Word On The Enemy Air Terror, HIGH COMMAND MATERIALS II, supra note 100, at 166-169. The Reich claimed that the pilots had been deprived of the protections customarily accorded to prisoners of war. Walter Warlimont was primarily responsible for drafting the 1944 order which directed German officers to permit civilians to take punitive action against Allied pilots.
You will take immediate steps to ensure . . . that soldiers do not oppose the civilian population . . . by demanding that the enemy flyers be handed over . . . as prisoners, and . . . thus ostensibly siding with, the enemy terror flyers.
No fellow German can understand such an attitude on the part of our armed forces. The inhabitants of the occupied territories, too, must not be restrained from taking matters into their own hands because of their justified indignation against the Anglo-American terror flyers, or from giving other expressions of their justified resentment against captured members of the enemy forces . . . .
Order By General Schmidt, 11 December 1944, Transmitting Order Of Chief OKW Of 9 July 1944, Concerning Oral Instructions To Be Given To Soldiers Not To Protect Enemy "Terror" Flyers From The German Populace, id. at 179, 180.
Fn102 . Opening Statement of the Prosecution, supra note 30, at 123.
Fn103 . Id. at 124.
Fn104 . The Commissar Order With Distribution List, And Covering Letter By General Von Brauchitsch, Commander In Chief Of The Army, 8 June 1941, Containing Supplements To The Order, id. at 1055, 1056.
[I]t is wrong to treat such elements [commissars] with clemency and consideration in accordance with international law. They are a menace to our own safety and to the rapid pacification of the conquered territories.
[T]he originators of the Asiatic barbaric methods of fighting are the political commissars. They must be dealt with promptly and with the utmost severity.
Id. at 1056.
Commissars were identified by the fact that they displayed a red star with an inwoven gold hammer and sickle on their sleeves. The Germans refused to recognize the commissars as lawful combatants who were entitled to prisoner of war status. Suspected commissars were to be brought before officer charged with disciplinary power. After obtaining the concurrence of two other officers that the detainee was a political commissar, the officer was obliged to order the individual's summary execution. See Draft Of Commissar Order, Undated, Prepared According To Directives Of 31 March 1941, And Comment By Defendant Lehmann, 8 May 1941, Id. at 1060, 1061. The executions were to be carried out in camps located in the rear of the front line in order to avoid publicity. See Extract From Activity Report No. 2 Of Panzer Group 3, January-July 1941, Concerning Special Treatment Of Commissars, id. at 1085.
Fn105 . Opening Statement of the Prosecution, id. at 128.
Fn106 . Id. at 129. See Extract From Operational Order No. 8, By Heydrich, Chief Of The Security Police And SD, 17 July 1941, And Enclosures, On Segregation And Treatment Of Certain Categories In PW Camps, supra note 100, at 5-11; Letter Of 26 September 1941, From Heydrich's Office, Enclosing Letter Of Transmittal, Signed By Defendant Reinecke, And Directives For The Treatment Of Soviet Prisoners Of War, 8 September 1941, id. at 11-15.
Fn107 . Opening Statement of the Prosecution, HIGH COMMAND MATERIALS, supra note 30, at 130.
Fn108 . Id. Reports often listed those prisoners who were murdered as having been killed while attempting to escape. A September 14, 1941 report by one of the divisions under the command of defendant Lieutenant General Karl Von Roques recorded that, "'[n]umerous escapes of Russian prisoners of war from rail transports have been reported. Guard Battalion 703 captured 13 and shot them.'" Id. at 131.
Conditions in the prisoner of war camps were harsh and severe. See Excerpt From "Ten-Day Report," From Rear Area Army Group South (Commanded By The Defendant Von Roques) To The High Command Of The Army, 20 December 1941, Concerning PW Deaths In Transit Camps, And Remarks Of PW District Commander, 21 December 1941, On The Plan Concerning The Release Of Ukrainian Prisoners Of War, HIGH COMMAND MATERIALS II, supra note 100, at 31. A December 21, 1941 report from a prisoner of war district under Roques' command estimated that the persistence of existing mortality rates in four camps over the course of the next year would result in the death of between twenty-eight-to-eighty-seven percent of the prisoners. By 1944, nearly two of the five million prisoners in camps under the control of OKH and the OKW had died, not including those who had been summarily executed. See Opening Statement of the Prosecution, supra note 30, at 132.
Fn109 . Opening Statement of the Prosecution, supra note 30, at 118-119. Individuals were prosecuted in the occupied territories and were not subjected to deportation where "it appears probable that death sentences are going to be passed against the offenders . . . and if the trial and the execution of the death sentence can be carried out without delay." Id. at 119. See Night And Fog" Decree Of Hitler, Signed By Keitel, 7 December 1941, Concerning Measures To Be Taken Against Persons Offering Resistance To German Occupation, supra note 100, at 196.
Fn110 . Keitel Letter Of 12 December 1941, Transmitting The First Implementation Decree To The "Night And Fog" Decree, supra note 100, at 198. The so-called "NN" prisoners were incarcerated in death camps such as Dachau where they were starved, abused and tortured. Those acquitted as well as those who had completed their sentence were turned over to the Gestapo and frequently were subjected to additional ill-treatment and typically were summarily shot. Opening Statement of the Prosecution, supra note 30, at 120. In 1944, defendant Rudolf Lehmann, Ministerial Director in the OKW and Chief of the Legal Division, received a communique informing him that due to the large number of executions and cremations of "NN" prisoners that there were doubts whether "'the separation of the ashes of the individual dead is guaranteed.'" Id. at 121.
Fn111 . Opening Statement of the Prosecution, supra note 30, at 134-35. The Barbarossa Order had been drafted by defendants Walter Warlimont and Rudolf Lehmann and distributed on May 15, 1941, five weeks prior to the Nazi invasion of Russia. Id. See Army High Command Draft Of Barbarossa Order, May 1941, Addressed To Army And Army Group Commanders, id. at 1124.
Fn112 . Extracts From Activity Report NO. 2 Of Panzer Group 3, January-July 1941, Concerning Treatment Of Commissars, Partisans, ETC. id. at 1132, 1133.
Fn113 . Opening Statement of the Prosecution, id. at 136.
Fn114 . Covering Letter From 18th Army, 28 September 1941, Transmitting Keitel Order, 12 September 1941, Concerning Jews In The Occupied Territories, id. at 1210, 1211.
Fn115 . Opening Statement of the Prosecution, Id. at 139-141. A typical report was filed by the 454th Security Division from Kiev in October 1941.
The Jews of the city were ordered to present themselves at a certain place and time for the purpose of numerical registration and housing in a camp. About 34,000 reported, including women and children. After they had been made to give up their clothing and valuables, all were killed; this took several days.
Extract From Activity Report Of 454th Security Division For Period From 1-10 October 1941, id. at 1257, 1258.
An order from defendant, Lieutenant General Otto Woehler to his troops in the southern Ukraine noted that "the Jews are trying to buy clothing and canned food from the soldiers. I have ordered these creatures to be arrested. To sum up - the Jews must disappear." Extract Of Teletype From Defendant Woehler To Army Group Southern Ukraine, 31 May 1944, Concerning Treatment Of Jews, id. at 1264.
Fn116 . Extract From Report On Partisan Activities By The Commanding General Of Security Troops And Commander Of Rear Area Army Group North, 1-15 June 1942, Concerning The Shooting Of Gypsies, id. at 1192, 1193. See also Directive From 281st Security Division To Feldkommandatur 822, 24 March 1943, Concerning The Handing Over Of Gypsies And Jews To The SD, id. at 1194, 1195.
Fn117 . See Extracts From XXVIII Corps Activity Report And Correspondence For Period 7-26 December 1941, Pertaining To Liquidation Of Insane At Markarevskaaja Asylum, id. at 1196-1200. Ironically, German soldiers were prohibited from taking photographs of exterminations or detailing the deaths in letters. Defendant Woehler explained that such accounts "are looked upon as undermining the decency and discipline in the armed forces . . . [and that] [i]t is beneath the dignity of a German soldier to watch such incidents out of curiosity." Copy Of Letter, 22 July 1941, From 11th Army, Signed In Draft By Defendant Woehler, Concerning Photographs And Reports Of Executions, id. at 1209.
Fn118 . Opening Statement of the Prosecution, id. at 145.
Fn119 . Id. at 147-149.
Fn120 . Extracts from the Closing Statement of the Prosecution, supra note 100, at 331, 351-352.
Fn121 . Opening Statement of the Prosecution, supra note 30, at 145-46.
Fn122 . Id. at 146.
Fn123 . Id.
Fn124 . Id. at 147.
Fn125 . Id.
Fn126 . See infra notes 485-514 and accompanying texts.
Fn127 . HIGH COMMAND JUDGMENT, supra note 3, at 695-96. The disposition of the defendants was as follows: Otto Schniewind acquitted; Hugo Sperrle, acquitted; Wilhelm Von Leeb, three years imprisonment; Georg Karl Friedrich-Wilhelm Von Kuechler, twenty years imprisonment; Hermann Hoth, fifteen years imprisonment; Hans Reinhardt, fifteen years imprisonment; Hans Von Salmuth, twenty years imprisonment; Karl Hollidt, five years imprisonment; Hermann Reinecke, life imprisonment; Walter Warlimont, life imprisonment; Otto Woehler, eight years imprisonment; Rudolf Lehmann, seven years imprisonment. None of the defendants was convicted of Crimes against Peace. Id. The members of the Tribunal were Judge John C. Young, formerly Chief Justice of the Supreme Court of the State of Colorado; Judge Winfield B. Hale, Judge of the Court of Appeals of the State of Tennessee; and Judge Justin W. Harding, formerly District Judge of the First Division, Territory of Alaska. HIGH COMMAND MATERIALS, supra note 30, at 8.
Fn128 . HIGH COMMAND JUDGMENT, supra note 3, at 491.
Fn129 . Id. at 489.
Fn130 . Id. The Court noted that although Hitler possessed dictatorial control, that he had to depend upon others to prepare, plan and wage his aggressive wars.
Somewhere between the Dictator and Supreme Commander of the Military Forces of the nation and the common soldier is the boundary between the criminal and the excusable participation in the waging of an aggressive war by an individual engaged in it. Control Council Law No. 10 does not definitely draw such a line.
Id. at 486.
The Tribunal held that two elements were required to constitute criminal liability for involvement in an aggressive war. First, actual knowledge that an aggressive war is intended and that if launched that it will constitute an aggressive war. In addition, the individual who possesses such knowledge must be in a position to shape or influence the policy either by furthering or by hindering or preventing the war effort. "If he . . . does the former, he becomes criminally responsible; if he does the latter to the extent of his ability, then his action shows the lack of criminal intent with respect to such policy." Id. at 488. An individual at the policy-level who acquires knowledge of the illegal nature of such conflicts following the initiation of aggression also is liable to criminal punishment. Id. at 488-89.
The defendants claimed that the aggressive war charge was rendered a nullity by the fact that the Soviet Union, one of the signatories of Control Council Law No. 10, had initiated a war of aggression. However, "[u]nder general principles of law, an accused dies not exculpate himself from a crime by showing that another committed a similar crime, either before or after the alleged commission of the crime by the accused." Id. at 482.
Fn131 . Id. at 489.
Fn132 . See id. at 491.
Fn133 . Id. at 491-95.
Fn134 . Id. at 495-96.
Fn135 . Id. at 507-08. The Court observed that an order to violate international common law is void and affords no protection to an individual who acts pursuant to such a directive. It was observed that this is consistent with the purpose of international law which is to direct the actions of the citizen or subject. Id. at 508.
The Court conceded that those defendants who received criminal orders were placed in a difficult position. However, servile compliance based upon a fear of disadvantage or punishment does not constitute a justification. The defense of coercion or necessity required a "showing of circumstances such that a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong. No such situation has been shown in this case." Id. at 509.
Fn136 . Id. at 510-11.
Fn137 . Id. at 511.
Military commanders in the field with far reaching military responsibilities cannot be charged under international law with criminal participation in issuing orders which are not obviously criminal or which they are not shown to have known to be criminal under international law . . . . He, [the field commander], has the right to presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance. He cannot he held criminally responsible for a mere error in judgment as to disputable legal questions.
It is therefore considered that to find a field commander criminally responsible for the transmittal of such an order, he must have passed the order to the chain of command and the order must be one that is criminal upon its face, or one which he is shown to have known was criminal.
Fn138 . Id. at 512.
Fn139 . Id. at 513. A chief of staff in the German Army did not possess command authority and an order affixed with his signature did not carry authority for subordinates in the chain of command. A chief of staff customarily signed directives for and by order of his commanding officer. Such orders were presumed to express the desires of the commanding officer. Id. at 514.
Fn140 . Id. at 515.
Fn141 . Id.
Fn142 . Id.
Fn143 . Id. at 520.
Fn144 . Id. at 520-21.
Fn145 . Id. at 525. Innocent individuals were summarily executed under the pretext that they were guerrillas who failed to comply with the requirements of the humanitarian law of war. Id. at 531.
Fn146 . Id. at 523-24. The Commando Order also was considered "criminal on its face. It simply directed the slaughter of . . . troops." Id. at 527. The Night And Fog Decree "was another criminal order from Hitler's brain." Id. The "enforcement of this cruel and brutal order cost the lives of many innocent people and untold suffering and misery to their loved ones." Id. at 528.
Fn147 . Id. at 538-39.
Fn148 . Id. at 539-41.
Fn149 . Id. at 541.
Fn150 . Id. at 543-44.
Fn151 . Id. at 547.
Fn152 . Id. at 547. "[S]ome 40,000 Jewish women and children were liquidated in Riga which at that time was in the Commissariat Ostland, immediately to the rear of the Army Group North." Id.
Fn153 . Id. at 549.
Fn154 . Id. at 549-50. For instance, in October 1939, Wilhem von Leeb, Commander of Army Group North in the Russian campaign, wrote Commander-in-Chief von Brauchitsch that Germany's planned invasion of France likely would lead to protracted trench warfare. He also warned that Russia, the United States and the British Commonwealth might align and assist the French. Roughly three weeks later, von Leeb again wrote von Brauchitsch urging Hitler to accept the partitions of Czechoslovakia and Poland. Id. at 549-51. Von Leeb predicted that this would result in the Fuehrer being "'honored as a prince of peace, not only by the entire German people, but assuredly also by large parts of the world as well.'" Id. at 551.
Fn155 . Id. at 551.
Fn156 . Id. at 553.
Fn157 . Id.
We realize the feelings of professional pride, of ambition to succeed in their profession of arms, of fear for their personal safety or of reprisals against their families, their love of country, their soldiers' concept of obedience, and indeed, the ingrained respect of the German for those in authority over him, were factors in their decisions. We are aware of the tendency towards degeneration of "civilized" warfare in the modern concept of "total" war, and of the war madness that engulfs all people of belligerent powers.
Fn158 . Id. at 553-56. The evidence established that criminal orders were executed by units subordinate to von Leeb and that criminal acts were carried out by agencies within his command. But, criminal responsibility was not affixed on the theory of subordination and overall command. "He must be shown both to have had knowledge and to have been connected with such criminal acts, either by way of participation or criminal acquiescence." Id. at 555.
Fn159 . Id. at 557-58. Von Leeb's subordinate units were the 18th Army under von Kuechler, the 16th Army under Busch and the 4th Panzer Group under Hoepner. Id. at 557. "As a practical purpose, what other action was open to him? He could not revoke this order coming as it did from his superiors, even from the head of the state. Had he undertaken to do so, this would have been a flagrant disobedience of orders . . . ."
Fn160 . Id. at 560. But see note reporting the use of prisoners to clear land mines. Id. at 558.
Fn161 . Id. at 559.
Fn162 . Id. at 562.
Fn163 . Id. at 560-61.
Fn164 . Id. at 563.
Fn165 . Id. at 566.
Fn166 . Id. at 567.
Fn167 . Id.
Fn168 . Id. at 577.
Fn169 . Id. at 579.
Fn170 . Id.
Fn171 . Id. at 580.
Fn172 . Id. at 695.
Fn173 . Id. at 581.
Fn174 . Id. at 582.
Fn175 . Id. The German Military Penal Code provided that an officer was not required to carry out an order that was clearly criminal on its face and that a officer who carried out such an order was criminally liable. Id.
Fn176 . Id. at 582.
Fn177 . Id. at 596-97.
Fn178 . Id. at 598.
Fn179 . Id. at 598.
Fn180 . Id.
Fn181 . Id. at 599-602.
Fn182 . Id. at 601-02.
Fn183 . Id. at 606-07.
Fn184 . Id. at 696.
Fn185 . Id. at 614-15.
Fn186 . Id. at 618-19.
Fn187 . Id. at 619.
Fn188 . Id.
Fn189 . Id.
Fn190 . Id. at 619-20.
Fn191 . Id. at 621-22.
Fn192 . Id. at 623. In May 1942, while in command of the 17th Army, von Salmuth distributed an order requiring the registration of all citizens with the exception of Jews, foreigner and Red Army soldiers. Those who failed or were prohibited from registering were to be executed along with those who assisted them in avoiding apprehension. Id. at 625.
Fn193 . Id. at 623.
Fn194 . Id. at 696.
Fn195 . Id. at 630.
Fn196 . Id. at 632.
Fn197 . Id. at 634.
Fn198 . Id. at 636.
Fn199 . Id. at 639.
Fn200 . Id. at 641.
Fn201 . Id. at 644.
Fn202 . Id. at 645.
Fn203 . Id. at 646.
Fn204 . Id. at 648.
Fn205 . Id. at 696.
Fn206 . Id. at 648.
Fn207 . Id. at 651-54.
Fn208 . Id. at 655-56.
Fn209 . Id. at 657.
Fn210 . Id. at 658.
Fn211 . Id. at 659.
Fn212 . Id. at 696.
Fn213 . Id. at 662.
Fn214 . Id. at 665.
Fn215 . Id. at 669.
Fn216 . Id. at 670-71.
Fn217 . Id. at 679.
Fn218 . Id. at 680.
Fn219 . Id. at 683. Rudolf Lehmann was chief of the Legal Department of the OKW and was convicted of involvement in the drafting and refinement of various criminal directives, particularly the Barbarossa Jurisdiction Order:
Lehmann became the main factor in determining the final form into which the criminal ideas of Hitler were put . . . he modified those ideas within his own sphere up to a certain point and placed the whole into an effective military order which was transmitted to the troops and carried out.
Id. at 693.
Fn220 . Id. at 696.
Fn221 . EINSATZGRUPPEN MATERIALS, supra note 59, at 15-20 (1950).
Fn222 . Id. at 21-22.
Fn223 . Id. at 22.
Fn224 . Id. at 36-37. On the "complete solution" to the "Jewish question" see Letter From Goering To Heydrich Concerning Solution Of Jewish Question, 31 July 1941, id. at 132-133.
Fn225 . Opening Statement Of The Prosecution, id. at 30, 36. Einsatzgruppe A operated in Latvia, Lithuania and Estonia; Eninsatzgruppe B functioned adjacent to Einsatzgruppe A and its operations extended to Moscow; Einsatzgruppe C was stationed in Ukraine; and Einsatzgruppe D was responsible for portions of the Ukraine, the Crimean Peninsula and the Caucasus. See Affidavit Of Otto Ohlendorf, 24 April 1947, Concerning The Organization Of The Einsatzgruppen, id . at 92-93.
Fn226 . Opening Statement For The Prosecution, id. at 34. "We Germans who are the only people in the world who have a decent attitude towards animals will also assume a decent attitude towards these human animals." Id.
Fn227 . Id. Frank wrote in his diary that "'I cannot eliminate all lice and Jews in only a year's time.'" Id. at 35.
Fn228 . Id. at 38-39. The Einsatzgruppen also were assigned to exterminate suspected Bolsheviks who were detained in prisoner-of-war camps. See Extract From Operational Order NO. 8, 17 July 1941, id. at 123. Those who were killed were executed by firing squads. This method of killing later was replaced by enclosed trucks in which the victims were asphyxiated through the use of lethal gases. Opening Statement Of The Prosecution, Id. at 40-41. Some Jews were killed during pogroms organized by the Germans. See Extracts From Report Of Einsatzgruppe A Covering The period From 23 June 1941 to 15 October 1941, id. at 154, 155-156.
[T]he four Einsatzgruppen averaged some 1,350 murders per day during a 2-year period; 1,350 human beings slaughtered on the average day, 7 days a week for more than 100 weeks. That is 337 murders per average day by each group of 500 to 800 men during a 2-year period . . . . They had to be counted, stripped of possessions, shot, and buried . . . . [A]ll of the pitiful possessions taken from the dead had to be salvaged, crated, and shipped to the Reich . . . . Details of all these things had to be recorded and reported.
Opening Statement Of The Prosecution, id. at 39.
Fn229 . Opening Statement Of The Prosecution, id. at 45.
Fn230 . See Affidavit Of Otto Ohlendorf, 5 November 1945, Concerning The Extermination Program Of The Einsatzgruppen, id. at 205, 206.
Fn231 . Affidavit Of Walter Blume, 29 June 1947, id. at 139, 140.
Fn232 . Opening Statement Of The Prosecution, id. at 45.
Fn233 . Id.
Fn234 . Affidavit Of Hein Hermann Schubert, 24 February 1947, Concerning The Extermination Of Jews In Russia, id. at 207-08.
Fn235 . Extracts From The Testimony Of Defendant Ohlendorf, id. at 355, 356.
Fn236 . Extracts From Report Of Einsatzgruppe A Covering The Period From 23 June 1941 to 15 October 1941, id. at 154, 161.
Fn237 . Id. at 162.
Fn238 . Secret Memorandum From Kube, General Commissioner Of White Ruthenia, To Gauleiter Lohse, Reich Commissioner Of Ostland, 31 July 1942, Concerning Actions Against Partisans And Liquidation Of Jews In White Ruthenia, id. at 191, 193.
Fn239 . Id.
Fn240 . Extract From Draft Of Memorandum By Einsatzgruppe A, Concerning Liquidation Of Jews, id. at 197.
Fn241 . See Closing Statement Of The Prosecution, 13 February 1948, By Brigadier General Telford Taylor, id. at 369, 377, 381-382.
Fn242 . Opening Statement Of The Prosecution, id. at 42.
Fn243 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 587-89. Defendant Emil Haussmann committed suicide; and defendant Otto Rasch was severed due to Parkinsonism. Id. at 411. The three members of the judicial tribunal were Michael A. Musmanno, Presiding Judge, United States Naval Reserve on Military leave from Court of Common Plea, County of Allegheny, Pennsylvania; John J. Speight, Member of Alabama Bar; and Richard D. Dixon, Judge of Superior Court of North Carolina. EINSATZGRUPPEN MATERIALS, supra note 59, at 6.
Fn244 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 412.
Fn245 . Id.
Fn246 . Id. The International Military Tribunal at Nuremberg estimated that the Einsatzgruppen were responsible for the killing of two million. Id.
Fn247 . Id. at 415. Those to be summarily executed included "Jews, gypsies, insane people, Asiatic inferiors, Communist functions, and asocials." Id. at 416. The Krimchaks were a Turkish speaking minority in Crimea which had migrated from the southern Mediterranean. The Germans determined that they had "Jewish blood" and were to be systematically executed. Id. at 415. These exterminations extended to prisoners of war who were confined in concentration camps. Id. at 441-42.
Fn248 . Id. at 417.
Fn249 . Id. at 419.
Fn250 . Id.
Fn251 . Id. at 419-20.
Fn252 . Id. at 432.
Fn253 . Id.
Fn254 . Id. at 491.
Fn255 . Id. at 439. Despite the brutality of their acts, the defendants were not "untutored aborigines incapable of appreciation of the finer values of life and living." Eight were lawyers and among the others were a dentist, university professor, art expert, opera singer and a former minister. Id. at 500. Numerous witnesses testified as to the defendants' virtue, sensitivity and concern for others. Id. at 501.
Fn256 . Id. at 440.
Fn257 . Id. at 459 (emphasis omitted). "Control Council Law No. 10 is but the codification and systemization of already existing legal principles, rules, and customs." Id. at 458. Thus, "Control Council Law No. 10 is not only in conformity with international law but is in itself a highly significant contribution to written international law." Id. at 460.
Fn258 . Id. at 460. The Tribunal rejected the argument that Russia had ratified Germany's aggression against Poland and thus should be prohibited from assuming the status of a prosecuting power under Control Council Law No. 10. The Tribunal cited the conclusion of the International Military Tribunal at Nuremberg that Germany alone was responsible for precipitating the war in Europe and for committing countless crimes. The onset of the Cold War following the termination of World War II, in the view of the Tribunal, also did not disqualify Russia from serving as a Signatory Power. At any rate, the Tribunal noted that it was concerned with the liability of individuals rather than States. Id. at 456-58.
Fn259 . Id. at 460.
Fn260 . Id. at 461-62.
Fn261 . Id. at 462.
Fn262 . Id. at 462-63.
Fn263 . Id. at 463. The Tribunal offered a hypothetical scenario in which a citizen of Abyssinia travelled to Norway and killed a Norwegian whom he believed posed a threat to his country. If it later was revealed that the Abyssinian killed the wrong person, under the defendants' theory, he would be able to claim exoneration based upon his good faith error. Id. "The fact that this astounding proposition is advanced in all seriousness demonstrates how desperate is the need for a further revaluation of the sacredness of life and for emphasizing the difference between patriotism and murder." Id.
Fn264 . Id. at 464.
Fn265 . Id. at 467.
Fn266 . Id.
Fn267 . Id.
The annihilation of the Jews had nothing to do with the defense of Germany, the genocide program was in no way connected with the protection of the Vaterland, it was entirely foreign to the military issue. Thus, taking into consideration all that has been said in this particular phase of the defense, the Tribunal concludes that the argument that the Jews in themselves constituted an aggressive menace to Germany, a menace which called for their liquidation in self-defense, is untenable as being opposed to all facts, all logic and all law.
Id. at 469-470.
Fn268 . Id. at 470-71.
The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond like a piece of machinery. It is a fallacy of wide-spread consumption that a soldier is required to do everything his superior officer orders him to do . . . . Even if the order refers to a military subject it must be one which the superior is authorized, under the circumstances to give. If every military person were required, regardless of the nature of the command, to obey unconditionally, a sergeant could order the corporal to shoot the lieutenant, the lieutenant could order the sergeant to the shoot the captain, the captain could order the lieutenant to shoot the colonel, and in each instance the executioner would be absolved of blame. The mere statement of such a proposition is its own commentary . . . .
Id. at 470.
Fn269 . Id. at 480-81.
Fn270 . Id. at 480.
Fn271 . Id. at 480.
No court will punish a man who, with a loaded pistol at his head, is compelled to pull a lethal lever. Nor need the peril be that imminent in order to escape punishment. But were any of the defendants coerced into killing Jews under the threat of being killed themselves if they failed in their homicidal mission?
Fn272 . Id. at 471.
Fn273 . Id. at 480.
Fn274 . Id. at 481-82.
Fn275 . Id. at 482.
Fn276 . Id. at 485.
No soldier would be disgraced in asking to be excluded from so one-sided a battle. No soldier could be accused of cowardice in seeking relief from a duty which was, after all, not a soldier's duty. No soldier or officer attempting escape from such a task would be pleading avoidance of a military obligation. He would simply be requesting not to be made an assassin. And if the leaders of the Einsatzgruppen had all indicated their unwillingness to play the assassin's part, this black page in German history would not have been written.
Id. at 484-485.
Fn277 . Id. at 475.
Fn278 . Id. at 476.
Fn279 . Id. at 506-09.
Fn280 . Id. at 507.
Fn281 . Id. at 510.
Fn282 . Id. at 511.
Fn283 . Id. at 514.
Fn284 . Id.
Fn285 . Id. at 515.
Fn286 . Id. at 517.
Fn287 . Id. at 518.
Fn288 . Id.
Fn289 . Id. at 517.
Fn290 . Id. at 542-44.
Fn291 . Id. at 547, 549.
Fn292 . Id. at 518.
Fn293 . Id. at 519.
Fn294 . Id. at 529.
Fn295 . Id. at 532.
Fn296 . Id.
Fn297 . HOSTAGE JUDGMENT, supra note 3, at 764-77. The individuals indicted were Wilhelm List, Maximlian von Weichs, Lothar Rendulic, Walter Kuntze, Hermann Foertsch, Franz Boehme, Helmuth Felmy, Hubert Lanz, Ernst Dehner, Ernst von Leyser, Wilhelm Speidel and Kurt von Geitner. Id. at 776-77.
Fn298 . Id. at 765-69.
Fn299 . Id. at 769-72.
Fn300 . Id. at 772-74.
Fn301 . Id. at 774-76.
Fn302 . Extracts from Opening Statement of the Prosecution, HOSTAGE MATERIALS, supra note 59, at 785, 797. The clergy, intellectuals and members of the landed gentry were singled out for these retaliatory killings. Id. at 798.
Fn303 . Id. at 798.
Unable to apprehend the persons involved in these attacks, the Nazis characteristically slaughter fifty or a hundred innocent persons. Those who would 'collaborate' with Hitler or try to appease him cannot ignore this ghastly warning.
The Nazis might have learned from the last war the impossibility of breaking men's spirit by terrorism. Instead, they develop their 'Lebensraum' and 'new order' by depths of frightfulness which even they have never approached before. These are the acts of desperate men who know in their hearts that they cannot win. Frightfulness can never bring peace to Europe. It only sows the seeds of hatred which will one day bring fearful retribution.
Id. at 798-99.
Fn304 . Id. at 799.
Fn305 . Id. at 800.
Fn306 . Id.
Fn307 . Id.
Fn308 . Id.
Fn309 . Id. at 801.
Fn310 . Id.
Fn311 . See Hitler Order, 16 September 1941, Charging Defendants List And Boehme With The Task Of Suppressing The Insurgent Movement In Southeastern Area, id. at 969.
Fn312 . Extracts from Opening Statement of the Prosecution, Id. at 803.
Fn313 . Keitel Order, 16 September 1941, Concerning Suppression Of insurgents In Occupied Territories," id. at 971, 972 (emphasis omitted).
Fn314 . Id. at 972.
Fn315 . Keitel Order Concerning Taking Of Hostages, 28 September 1941, And Letter Of Transmittal Signed By Defendant Foertsch, 4 October 1941, id. at 973.
Fn316 . Order Of Commanding General Serbia, Boehme, 10 October 1941, Directing The Shooting Of 50 And 100 Prisoners Or Hostages For Each German, Or Ethnic German, Soldier Wounded or Killed, id. at 977.
Fn317 . Id. at 977-78. A directive was distributed to the German population:
1. Anyone who supports the insurgents or their accomplices, by means of arms and ammunition, by erecting road blocks, by destroying bridges, by transmitting information, by giving food, by providing transportation, or by any other manner, will be shot.
2. Anyone who carries fire arms, pointed weapons, hand grenades, or other weapons, will be shot.
3. Anyone who conceals arms and ammunition will be shot.
4. The communities - in whose areas arms and ammunition are found, in whose areas road blocks or destroyed bridges are found, without being prevented or immediately averted by you, in whose area other hostile acts occur - will be severely punished by the burning down of houses and shooting of inhabitants.
For every killed German soldier, 100 inhabitants will be shot.
. . .
Beware of heavy penalties! Keep peace!
German Proclamation To Serbian Population, October 1941, Announcing The 100: 1 Reprisal Ratio, id. at 979-80.
Fn318 . Order Of Commanding General In Serbia, 4 October 1941, Declaring that 2,100 Concentration Camp Inmates Be Shot For The Killing Of 21 German Soldiers, id. at 976. See also Extracts from Opening Statement of the Prosecution, id. at 805.
Fn319 . Extract From Situation Report U.S.S.R. NO.37, 29 July 1941, Concerning Reprisal Action Against Jews In Belgrade, Id. at 938.
Fn320 . Extracts from Opening Statement of the Prosecution, Id. at 807, 810.
Fn321 . Id. at 809.
Fn322 . Order Of General Boehme, 2 November 1941, Concerning Suppression Of Serbian Resistance, id. at 993, 994.
Fn323 . Draft Of Teletype From Armed Forces Commander Southeast To Commanding General Serbia, 6 February 1942, Requesting Reports On All Reprisal Measure, id. at 999, 1000.
Fn324 . Id. (emphasis omitted).
Fn325 . Extract from Opening Statement of the Prosecution, Id. at 809.
Fn326 . See Draft Of Teletype From Armed Forces Commander Southeast To Commanding General Serbia, 6 February 1942, Requesting Reports On All Reprisal Measures, id. at 999.
Fn327 . Report From 724th Infantry Regiment TO 704th Infantry Division, 4 November 1941, Enclosing Report Of The Shooting Of Jews And Gypsies, id. at 995, 996.
Fn328 . Id. at 996.
Fn329 . Id.
The shooting to death of Jews is simpler than that of gypsies. It must be admitted that the Jews accept death very calmly, they stand very quietly, while the gypsies cry, scream, and move continuously when they are already on the spot where they are to be shot to death. Some of them even jumped into the ditch before the firing and attempted to feign death.
Id. at 997.
Fn330 . Extracts from Opening Statement of the Prosecution, Id. at 810.
Fn331 . Id. at 811. In Serbia, the district command notified field headquarters of any incident. The field headquarters, in turn, notified Geitner, Bader's chief of staff, suggesting reprisal measures. Geitner and Bader would then either approve or revise the proposed measures. Once the reprisal had been carried out, reports were sent through the established channels. Id.
Fn332 . Id. at 811-812.
Fn333 . Order Of Commanding General Serbia, 28 February 1943, Concerning Reprisal Measures And Reducing Reprisal Ratios, id. at 1020, 1022.
Fn334 . Id. (emphasis omitted).
Fn335 . Extracts from Opening Statement of the Prosecution, id. at 814-815.
Fn336 . See Order Of Commanding General Serbia, 28 February 1943, Concerning Reprisal Measures And Reducing Reprisal Ratios, id. at 1020.
Fn337 . See Extracts from Opening Statement of the Prosecution, id. at 813.
Fn338 . Id. at 817.
Fn339 . Id.
Fn340 . Id.
Fn341 . Id. at 818-23.
Fn342 . Id. at 820-21.
Fn343 . Id. at 821-22.
Fn344 . Id. at 822. See Extracts From Basic Order, 15 September 1943, Signed By Keitel, Concerning Treatment Of Members Of Italian Army, id. at 1081, 1082.
Fn345 . Extracts from Opening Statement of the Prosecution, id. at 823. The prosecution characterized this "calculated slaughter" of captured and surrendered Italian officers as "one of the most lawless and dishonorable actions in the long history of armed combat." Id. at 824. Various reports documented the harsh treatment meted out to the Italian prisoners:
On 27 September 1943, from Split on the Dalmation coast - City and port occupied, 3 generals, 300 officers, 9,000 men of the Italian "Bergamo" Division taken prisoners; officers to be shot to death according to the Fuehrer order.
30 September and 1 October 1943 - 3 generals shot in Split after summary court martial; 45 more guilty Italian officers shot in Split.
. . .
From the XXI Mountain Corps on 9 October 1943 - Operations against the Italian 'Taurinense' Division concluded in the main, reprisal measures carried out against 18 officers.
From the XXII Mountain Corps on 23 September 1943 - General Gandin and all his staff captured, special treatment according to Fuehrer order. The following day - General Gandin and all officers have been shot.
Id. at 823.
Fn346 . Id. at 824.
Fn347 . Id. at 825.
Fn348 . Id.
Fn349 . Id. at 826.
Fn350 . Id. The prosecution noted that this "rampage of blood and cruelty . . . can only be duplicated in history by the orgies of Genghis Khan." Id. at 827.
Fn351 . Id. at 828-829. The Greek resistance was consolidated into two major organizations - the ten thousand partisans who belonged to "Edes" in the Epirus section of western Greece and the fifteen thousand strong "Elas" in eastern Greece, the Peloponnesus Peninsula, Crete and the islands. The Greek partisans were collectively known as "Andartes." Id.
Fn352 . Id. at 830.
Fn353 . Extracts From War Diary No. 3, LXVIII Army Corps, Concerning Operations In Peloponnesus, Greece, 28 November-14 December 1943, id. at 1030-33.
Fn354 . Extracts from Opening Statement of the Prosecution, id. at 831.
Fn355 . Id. at 832.
Fn356 . Id.
Fn357 . Id. at 833.
Fn358 . Id. at 834-835.
Fn359 . Id. at 835. See Extracts Of Teletype From Fuehrer Headquarters Signed By Jodl To 20th Mountain Army, 4 October 1944, Ordering Evacuation Of Northern Norway, id. at 1113, 1114 (emphasis omitted).
Fn360 . Teletype From 20th (Mountain) Army To Subordinate Units, 29 October 1944, Signed By The Defendant Rendulic, Concerning Evacuation Of Northern Norway, id. at 1114, 1115.
Fn361 . Id.
Fn362 . Proclamation To Norwegian Population Signed By Rendulic And Terboven, id. at 1117.
Fn363 . Extracts from Opening Statement of the Prosecution, id. at 839.
Fn364 . Id.
Fn365 . HOSTAGE JUDGMENT, supra note at 3. The sentences were: Wilhelm List, life imprisonment; Walter Kuntze, life imprisonment; Lothar Rendulic, twenty years in prison; Ernst Dehner, seven years in prison; Ernst von Leyser, ten years in prison; Hubert Lanz, twelve years in prison; Helmuth Felmy, fifteen years in prison; Wilhelm Speidel, twenty years in prison. The defendants Hermann Foertsch and Kurt von Geitner were acquitted. Id. at 1318-19. Franz Boehme committed suicide prior the arraignment and the case against the defendant von Weichs was severed for reasons of physical disability. HOSTAGE MATERIALS, supra note 59, at 759. The presiding Judge was Judge Charles E. Wennstrum of the Supreme Court of Iowa; Judge Edward F. Carter, Judge of the Supreme Court of Nebraska; and Judge George J. Burke, member of the Bar of the State of Michigan. Id. at 762.
Fn366 . HOSTAGE JUDGMENT, supra note 3, at 1318-19.
Fn367 . Id. at 1318. The Tribunal observed that it is a "reproach upon the initiative and intelligence of the civilized nations of the world that international law remains in many respects primitive in character." Id.
Fn368 . Id. at 1254.
Fn369 . Id.
Fn370 . Id.
Fn371 . See infra notes 378-86 and accompanying texts. According to the Court, the vesting of extraterritorial jurisdiction in belligerent States was based on the fact that the defendants's own government likely would be reluctant to bring the accused to trial. The American judges observed that a requirement that a belligerent must forego prosecution following the termination of hostilities would be "equivalent to a passport to freedom." Id. at 1242. The Tribunal also observed that "[i]t 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." Id.
Fn372 . See id. at 1236.
Fn373 . Id. The judges ruled that the municipal law of civilized nations generally had rejected the defense and that "it properly may be declared as an applicable rule of international law." Id. An individual was considered to possess the requisite criminal intent if he or she is knew of the illegality of an order or reasonably should have known of the illegality of an order. Id. at 1236.
Fn374 . Id. at 1237.
Fn375 . Id.
Fn376 . Id. at 1243.
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.
Fn377 . Id. at 1247. Once having assumed the authority of a lawful occupant, international law placed the responsibility upon the commanding general of the German armed forces to preserve order, punish crime, and to protect lives and property. At the same time, the occupying power is obligated to respect the laws in force in the country and was required to abide by international standards of conduct. Id. at 1244-45. An occupant also is to protect family honor and rights, the lives of individuals and their private property and religious convictions. Pillage, collective penalties and appropriation of property are prohibited. Id. at 1245.
Fn378 . Id. at 1245.
Fn379 . Id. at 1244.
Fn380 . Id. at 1246.
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.
Fn381 . Id. at 1248-49. Hostages under the alleged modern practice of nations are taken: to protect individuals held by the enemy; to force the payment of requisitions and contributions; and to deter unlawful acts by enemy forces or people. Id. at 1248. The Tribunal noted that in the modern period, the taking and execution of hostages, according to the Tribunal, was most frequently employed by Germany. The Germans took reprisals against hostages during the France-Prussian War, World War I and World War II. While recognizing the justifiability of this practice, neither the United States, Great Britain, France nor the Soviet Union reportedly seized or executed hostages. Id. at 1251.
Fn382 . Id. at 1249-50. One or more of the following measures are to be taken prior to a resort to reprisals:
(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.
Id. at 1250.
Fn383 . Id.
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.
Fn384 . Id. Judicial proceedings may become "ritualistic and superficial when conducted in wartime. However, the judges observed that such hearings appear to be the best available safeguard against cruelty and injustice." Id. at 1253. Judicial approval is not required where "it appears that the necessity for reprisal requires immediate reprisal action to accomplish the desired purpose and which would be otherwise defeated by the invocation of judicial inquiry." Id.
Fn385 . Id. at 1253-1254. See also id. at 1256.
Fn386 . Id. at 1272. The German theory of expediency and military necessity (Kriegsraeson geht vor Kriegsmanier) was invoked to justify the violation of the laws of war. Id.
Fn387 . Id. at 1273.
Fn388 . Id. at 1317. The Court emphasized that toleration of Illegal reprisals posed a threat to the civilized conduct of war. According to the judges, such unlawful reprisals inevitably led to counter reprisals and encouraged an "endless cycle productive of chaos and crime. To prevent a distortion of the right into a barbarous method of repression, international law provided a protective mantle against the abuse of the right." Id. at 1252. The Court did not take the bold step of prohibiting all reprisals against hostages. It stated that the fact that the practice of reprisals has been "tortured beyond recognition by illegal and inhuman application cannot justify its prohibition by judicial fiat." Id. at 1253.
Fn389 . Id. at 1257. The Tribunal stressed that those who ordered, authorized, committed or tolerated criminal reprisals must be held to account if international law is to be anything more than an "ethical code, barren of any practical coercive deterrent." Id.
Fn390 . Id. at 1260. Field officers also were considered to possess constructive knowledge of reports received at their headquarters. Id.
Fn391 . Id. at 1262-63. From July to September 1942, List was returned to active service as commander in chief of Army Group A, an army unit operating on the Russian front. Id. at 1263.
Fn392 . Id. at 1269.
Fn393 . Id. at 1269-70.
Fn394 . Id. at 1270.
Fn395 . Id. at 1271.
Fn396 . Id.
Fn397 . Id.
Want of knowledge of the contents of reports made to him is not a defense. 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.
Fn398 . Id. at 1276-77.
Fn399 . Id. at 1278.
Fn400 . Id. at 1281-82.
Fn401 . Id. at 1282.
Fn402 . Id. at 1284-85.
Fn403 . Id. at 1286. The Court engaged in a similar analysis in acquitting defendant Kurt von Geitner. Id. at 1286-88.
Fn404 . Id. at 1288.
Fn405 . Id. at 1289.
Fn406 . Id. at 1290. Defendant Ernst Dehner, commander of the LXIX Reserve Corps in northern Croatia, also was convicted of the commission of illegal reprisals and the forced conscription of Croatians into military service. Id. at 1297-1300.
Fn407 . Id. at 1292.
Fn408 . Id. at 1293.
Fn409 . Id. at 1294. The defendant Hubert Lanz, Commander of the XXII Mountain Corps in Greece, also was convicted of ordering and permitting the unlawful execution of Italian officers and soldiers as well as the commission of illegal reprisals. Id. at 1309-13.
Fn410 . Id. at 1296.
Fn411 . Id. at 1296. Military necessity may justify the destruction of public and private property by retreating military forces which would provide assistance and comfort to the enemy. Id. The applicable legal standard was whether the defendant reasonably believed under the circumstances that there was a necessity to destroy property.
The destruction 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 exception contained in Article 23g [of the Hague Regulations]. We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finmark 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 . . . . 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.
Id. at 1296-97.
Fn412 . Id. at 1305-06.
Fn413 . Id. at 1306-07.
Fn414 . Id. at 1308. Defendant Wilhelm Speidel, who served as Military Commander Southern Greece, also was convicted of excessive reprisals. Id. at 1313-17.
Fn415 . Id. at 1308.
Fn416 . Id. at 1309.
Fn417 . EINSATZGRUPPEN JUDGMENT supra note 3, at 460-62. The American judges were sensitive to the charge of "victor's justice."
It has been suggested in the course of the trial that an element of unfairness exists from the inherent nature of the organizational character of the Tribunal. It is true, of course, that the defendants are required to submit their case to a panel of judges from a victor nation. It is unfortunate that the nations of the world have taken no steps to remove the basis of this criticism. The lethargy of the world's statesmen in dealing with this matter, and many other problems of international relations, is well known. It is a reproach upon the initiative and intelligence of the civilized nations of the world that international law remains in many respects primitive in character. But it is a matter with which the Tribunal cannot deal, other than in justifying the confidence reposed in its members by insuring to the defendants a fair, dispassionate, and impartial determination of the law and the facts. A tribunal of this character should through its deliberations and judgment disclose that it represents all mankind in an effort to make contribution to a system of international law and procedure, devoid of nationalistic prejudices. This we have endeavored to do so. To some this may not appear to be sufficient protection against bias and prejudice. Any improvement, however, is dependent upon affirmative action by the nations of the world. It does not rest within the scope of the functions of the Tribunal.
HOSTAGE JUDGMENT, supra note 3, at 1318.
Fn418 . HIGH COMMAND JUDGMENT, supra note 3, at 543-44.
In determining the guilt or innocence of these defendants, we shall require proof of a causative, overt act or omission from which a guilty intent can be inferred before a verdict of guilty will be pronounced. Unless this be true, a crime could not be said to have been committed unlawfully, willfully, and knowingly as charged in the indictment.
HOSTAGE JUDGMENT, supra note 3, at 1261.
Fn419 . HIGH COMMAND JUDGMENT, supra note 3, at 491. See id. at 485-91.
Fn420 . Id. at 489.
Anybody who is on the policy level and participates in the war policy is liable to punishment. But those under them cannot be punished for the crimes of others. The misdeed of the policy makers is all the greater in as much as they use the great mass of the soldiers and officers to carry out an international crime; however, the individual soldier or officer below the policy level is but the policy makers' instrument, finding himself, as he does, under the rigid discipline which is necessary for and peculiar to military organization.
Fn421 . Id. at 545-46.
The defendant List also asserts that he had no knowledge of many of the unlawful killings of innocent inhabitants which took place because he was absent from his headquarters where the reports came in and that he gained no knowledge of the acts. A commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area of his command. His responsibility is coextensive with his area of command. He is charged with notice of occurrences taking place within that territory. . .
HOSTAGE JUDGMENT, supra note 3, at 1271. See also In Re Yamishita, 327 U.S. 1 (1945).
Fn422 . See HIGH COMMAND JUDGMENT, supra note 3, at 578-80 (von Kuechler), 632 (von Roques).
Fn423 . See id. at 560-61 (von Leeb), 581-82 (Hoth), 610 (Reinhardt).
Fn424 . Id. at 567-68 (von Kuechler); 603 (Reinhardt).
He [a field commander] 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 upplementary 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 defense
. . .
Want of knowledge of the contents of reports made to him is not a defense. 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.
HOSTAGE JUDGMENT, supra note 3, at 1271 (List).
The defendant says that he never heard of . . . action against Jews or gypsies in the Southeast. The reports in the record which were sent to him (Kuntze) in his capacity as Armed Forces 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 . . . .
Id. at 1281.
Fn425 . See HIGH COMMAND JUDGMENT, supra note 3, at 655 (Reinecke); EINSATZGRUPPEN JUDGMENT, supra note 3, at 554 (Haensch).
Fn426 . HIGH COMMAND JUDGMENT, supra note 3, at 654-55 (Reinecke). Hermann Reinecke was presumed to have knowledge of the segregation and liquidation program in the prisoner of war camps. "The evidence . . . discloses not only that it was the duty of the defendant to know what took place within them but that in fact from constant inspections by his subordinates and which he made himself, he could not have escaped such knowledge." Id. at 654. Otto Woehler was chief of staff of the 11th Army was presumed to have knowledge of the murder of 90,000 by killing squads. "Certainly the slaughter of 90,000 people by these police units under the circumstances could not have escaped the knowledge of the chief of staff of that army unless he was grossly incompetent." Id. at 687.
Fn427 . Id. at 614 (Reinhardt). The Court charged Reinhardt with knowledge of the involuntary labor program. "Slave hunting in his area was so general and long and continued that without the direct evidence pointed out, knowledge would be imputed to him." Id. Otto Woehler, while chief of staff of the 11th Army, was found to have knowledge of the murder of ninety thousand Jews by killing squads. This information was well-documented. Id. at 687-90. The army assisted, fed and sheltered the killing squads, "[c]ertainly the slaughter of 90,000 people by these police units under these circumstances could not have escaped the knowledge of the chief of staff of that army unless he was grossly incompetent." Id. at 687. Staff officers of the 11th Army over whom Woehler exercised supervision were aware of such activities, "[s]urely the knowledge of these staff officers was not kept from the chief of staff." Id. The activities of the SD within Hoth's territorial jurisdiction "came to his knowledge." Id. at 595. "Notwithstanding his knowledge of the character and functions of the SD, his possession of the power to curb them and his duty to do so, he washed his hands of his responsibility and let the SD take its unrestrained course in his area of command." Id. at 596.
Fn428 . HOSTAGE JUDGMENT, supra note 3, at 1271 (discussing List). Defendants were held liable for orders and policies which were in effect at the time at which they assumed command in those instances in which they later ratified the action. EINSATZGRUPPEN JUDGMENT, supra note 3, at 517.
Fn429 . HIGH COMMAND JUDGMENT, supra note 3, at 549.
[I]t is apparent we can draw no general presumption as to . . . knowledge . . . and must necessarily go to the evidence pertaining to the various defendants to make a determination . . . . And it is further pointed out that to establish the guilt of a defendant . . . not only must knowledge be established, but the time of such knowledge must be established.
Fn430 . Id. at 559-60 (von Leeb). Ambiguities in documents or in statements were resolved in favor of the defendant. Id. at 561 (von Leeb).
Fn431 . Id. at 559 (von Leeb). The Court was reluctant to impute knowledge to von Leeb, stressing that he was in command of five to six hundred thousand soldiers who were operating "over a vast territory under the arduous conditions of combat." Id. at 555.
Fn432 . See HOSTAGE JUDGMENT, supra note 3, at 1260.
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. 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 wartime. No doubt such occurrences result occasionally because of unexpected contingencies, but they are the unusual . . . .
Fn433 . HOSTAGE JUDGMENT, supra note 3, at 1272.
Not once did he [List] 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. Instead of taking corrective measures, he complacently permitted thousands of innocent people to die before the execution squads of the Wehrmacht and other armed units operating in the territory. He contends further that many of these executions were carried out by units of the SS, the SD, and local police units which were not tactically subordinated to him. The evidence sustains this contention but it must be borne in mind that in his capacity as commanding general of occupied territory, he was charged with the duty and responsibility of maintaining order and safety, the protection of lives and property of the population, and punishment of crime. This not only implies a control of the inhabitants in the accomplishment of these purposes, but the control and regulation of all other lawless persons or groups. He cannot escape responsibility by a claim of want of authority. The authority is inherent in his position as commanding general of occupied territory. The primary responsibility for the prevention and punishment of crime lies with the commanding general; a responsibility from which he cannot escape by denying his authority over the perpetrators.
Fn434 . Id. at 1278-79.
Fn435 . HIGH COMMAND JUDGMENT, supra note 3, at 596.
Fn436 . Id. at 562. "This action, apparently inspired by the Einsatzgruppen, was however, carried out as a pogrom, credited to a local self-defense organization of Latvians." Id. "It would be enough, in order to escape legal and moral stigmatization to show the order was parried every time there was a chance to do so." EINSATZGRUPPEN JUDGMENT, supra note 3, at 481. See Protocol Additional To The Geneva Conventions Of August 12, 1949, And Relating To The Protection Of Victims Of International Armed Conflicts, arts. 86(2), 87 (1)-(2) 1977 U.N. JURID. Y.B. 95, reprinted in 16 I.L.M. 1391 (1977).
Fn437 . HIGH COMMAND JUDGMENT, supra note 3, at 511.
Fn438 . Id. at 512. "Any participation in implementing such orders, tacit or otherwise, any silent acquiescence in their enforcement by his subordinates, constitutes a criminal act on his part." Id.
Fn439 . Id. at 513.
In the absence of participation in criminal orders or their execution within a command, a chief of staff does not become criminally responsible for criminal acts occurring therein. He has no command authority over subordinate units. All he can do in such cases is to call those matters to the attention of his commanding general. Command authority and responsibility for its exercise rest definitely upon his commander.
Id. at 514.
Fn440 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 470-71.
The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery. It is a fallacy of wide-spread consumption that a soldier is required to do everything his superior officer orders him to do.
Id. at 470.
[An individual who] accepts a criminal order and executes it with a malice of his own . . . may not plead superior orders in mitigation of his offense. If the nature of the ordered act is manifestly beyond the scope of the superior's authority, the subordinate may not plead ignorance to the criminality of the order.
Id at 471.
Fn441 . Id. at 480.
Fn442 . Id. at 471.
Fn443 . Id. at 480.
No court will punish a man who, with a loaded pistol at his head, is compelled to pull a lethal lever. Nor need the peril be that imminent in order to escape punishment. But were any of the defendants coerced into killing Jews under the threat of being killed themselves if they failed in their homicidal mission? The test to be applied is whether the subordinate acted under coercion or whether he himself approved of the principle involved in the order . . . . When the will of the doer merges with the will of the superior in the execution of the illegal act, the doer may not plead duress under superior orders.
Fn444 . Id. at 558-59.
The defendants in this case who received obviously criminal orders were placed in a difficult position, but servile compliance with orders clearly criminal for fear of some disadvantage or punishment not immediately threatened cannot be recognized as a defense. To establish the defense of coercion or necessity in the face of danger there must be a showing of circumstances such that a reasonable man would apprehend that he was in such imminent peril as to deprive him of freedom to choose the right and refrain from the wrong. No such situation has been shown in this case.
HIGH COMMAND JUDGMENT, supra note 1, at 509.
Fn445 . See EINSATZGRUPPEN JUDGMENT, supra note 3, at 485.
Fn446 . HIGH COMMAND JUDGMENT, supra note 3, at 557.
He could not revoke this order coming as it did from his superiors, even from the head of the state. Had he undertaken to do so,this would have been a flagrant disobedience of orders . . . . He did not disseminate the order. He protested against it and opposed it in every way short of open and defiant refusal to obey it.
In other portions of the opinion, the Tribunal required demonstrative dissent.
If international law is to have any effectiveness, high commanding officers, when they are directed to violate it by committing murder, must have the courage to act, in definite and unmistakable terms, so as to indicate their repudiation of such an order. The proper report to have been made from division to army group level when a request was made from top level to report the number of commissars killed would have been that this unit does not murder prisoners of war.
Id. at 598 (Hans Reinhardt). 446.
Fn447 . Id. at 582. See also id. at 566-67 (von Kuechler).
He [Hoth] was certain that his subordinates were sufficiently radar-minded to pick up the rejection impulses that radiated from his well-known high character and that he believed that they would have the courage he lacked to disobey the order . . . . That the character impulses were too weak or the minds of the subordinates were too insensitive to pick them up is shown by the documents.
Id. at 582.
Fn448 . HOSTAGE JUDGMENT supra note 3, at 1253-54.
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 . . . .
Id. at 1253.
Fn449 . Id. at 1254-55.
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 utilized by the enemy. Private homes and churches even may be destroyed if necessary for military operations. It does not admit the wanton devastation of a district or the willful infliction of suffering upon its inhabitants for the sake of suffering alone.
Fn450 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 467.
Fn451 . HIGH COMMAND JUDGMENT, supra note 3, at 541.
Nor does military necessity justify the compulsory recruitment of labor from an occupied territory either for use in military operations or for transfer to the Reich, nor does it justify the seizure of property or goods beyond that which is necessary for the use of the army of occupation. Looting and spoliation are none the less criminal in that they were conducted, not by individuals, but by the army and the state.
Id. at 541.
Fn452 . HOSTAGE JUDGMENT, supra note 3, at 1272.
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 . . . . The rights of the innocent population . . . must be respected even if military necessity or expediency decree otherwise.
Id. at 1255-56.
Fn453 . Id. at 1272-73. The Tribunal later observed that there are certain acts "which are proper when military necessity requires their doing, but the killing of great numbers of the population . . . is not one of them." Id. at 1281.
Fn454 . Id. at 1309.
Fn455 . Id. at 1297. It is significant that the humanitarian law of war recognizes that retreating military forces may destroy or seize property in those instances in which such demolition is imperatively demanded by the necessities of war. Id. at 1296. The Court adopted an objective test which was to be applied in light of the situation as it appeared to the defendant.
We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finmark 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 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 Finmark 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 no guilty on this portion of the charge.
Id. at 1297.
Fn456 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 462-63.
Fn457 . Id. at 463.
The annihilation of the Jews had nothing to do with the defense of Germany, the genocide program was in no way connected with the protection of the Vaterland, it was entirely foreign to the military issue. Thus, taking into consideration all that has been said in this particular phase of the defense, the Tribunal concludes that the argument that the Jews in themselves constituted an aggressive menace to Germany, a menace which called for their liquidation in self-defense, is untenable as being opposed to all facts, all logic and all law.
Id. at 470.
Fn458 . HOSTAGE JUDGMENT, supra note 3, at 1244-45.
Fn459 . Id. at 1247. See also id. at 1246.
It is evident . . . 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 the requirements. This means . . . that captured members . . . were not entitled to be treated as prisoners of war . . . .
Id. at 1244.
Fn460 . Id. at 1244. A military commander's decision whether to accord belligerent status was to be judged in accordance with the reasonable perception of the officer under the circumstances.
In determining the guilt or innocence of an army commander 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.
Id. at 1245-46.
Fn461 . Id. at 1248.
Fn462 . Id. at 1249.
Fn463 . Id. at 1250.
Fn464 . Id. at 1250-51.
Fn465 . Id. at 1252-53.
Fn466 . Id. at 1257. Despite the Tribunal's approval of reprisal killings, the judges remained critical of the "complete failure on the part of the nations of the world to limit or mitigate the practice [of executing hostages] by conventional rule . . . . That international agreement is badly needed in this field is self-evident." Id. at 1251-52. See Protocol Additional To The Geneva Conventions Of August 12, 1949, And Relating To The Protection Of Victims Of International Armed Conflicts, 1977, art. 75(2)(a)(ii)-(iv), XVI I.L.M. 1391 (1977) (prohibiting the taking of hostages; collective punishments; and threats to commit the foregoing acts); Protocol Additional To The Geneva Conventions Of August 12, 1949, And Relating To The Protection Of Victims Of Non-International Armed Conflicts, art. 4 (2)(b)-(c),(h), XVI I.L.M. 1442 (1977) (prohibiting the taking of hostages; collective punishments; and threats to commit the foregoing acts).
Fn467 . See HOSTAGE JUDGMENT, supra note 3, at 1317-18. The judges in the Hostage Case were conscious that they spoke for "all mankind" and were dedicated to the drafting a decision which would help to develop "a system of international law and procedure, devoid of nationalistic prejudices." Id. at 1318.
Fn468 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 427. The Tribunal rationalized that the defendants were in
court not as members of a defeated nation but because they are charged with crime . . . . The doctrine that no member of a wronged community may try an accused would . . . spell the end of justice . . . [i]t is the essence of criminal justice that the offended community inquires into the offense involved.
Id. at 462.
In the first place, the defendants are not being tried in any sense as "vanquished individuals" any more than it is to be assumed that a person taken into custody by police authorities is to be regarded as a "vanquished person." Wars are fought between nations as such and not between individuals as such. In war there is no legal entity such as a "defeated individual" just as there is no judicial concept of a "victorious individual." The defendants are in court not as members of a defeated nation but because they are charged with crime. They are being tried because they are accused of having offended against society itself, and society, as represented by international law, has summoned them for explanation.
Id. at 461-62.
Fn469 . The Tribunal in the Einsatzgruppen Case noted that:
The tragedy . . . is lost entirely on the executioner. He does his job as a job. So many persons are to be killed, just as a carpenter contemplates the construction of a shed. He must consider the material he has on hand, the possibilities of rain, etc. Only by psychologically adjusting oneself to such a state of affairs can one avoid a shock when one comes to a statement in a report very casually written, namely, "Until now, it was very difficult to carry out executions because of weather conditions."
Id. at 447.
Fn470 . In the High Command Case, two defendants were acquitted; four were sentenced to between three and eight years in prison; two to fifteen years and three to twenty years; and two to life imprisonment. HIGH COMMAND JUDGMENT, supra note 3, at 695-97. In the Hostage Case , two defendants were acquitted; three were sentenced to between fifteen and twenty years in prison; three to between seven and twelve years; and two were imprisoned for life. HOSTAGE JUDGMENT, supra note 3, at 1318-19. The Court in the Einsatzgruppen Case was the exception in meting out harsh sentences. Fourteen were sentenced to death; two to life imprisonment; and five to between ten and twenty years in prison. EINSATZGRUPPEN JUDGMENT, supra note 3, at 587-89. By January 1951, most of the harsher penalties had been moderated by American occupation authorities. See Announcement of Decisions by the United States High Commissioner for Germany, 31 January 1951, Upon Review of the Sentences Imposed by Tribunals Established Pursuant to Ordinance No. 7, XV TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 1180 (1950) (Procedure, Practice, And Administration). The Court in the Hostage Case discussed the standard for mitigation of punishment:
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 . . . that contributed to its commission. . . . [M]itigtion of punishment does not in any sense . . . reduce the degree of the crime. It is more a matter of grace than of defense. 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.
HOSTAGE JUDGMENT, supra note 3, at 1317.
Fn471 . HIGH COMMAND JUDGMENT, supra note 3, at 543. "The German Army was, in general, a disciplined army. The tragedy of the German Wehrmacht and these defendants is that the crimes charged against them stem primarily from its highest military leadership and the leadership of the Third Reich itself." Id.
Fn472 . HIGH COMMAND JUDGMENT, supra note 3, at 563 (von Leeb).
Fn473 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 500.
The defendants are not untutored aborigines incapable of appreciation of the finer values of life and living. Each man . . . has had the benefit of considerable schooling. Eight are lawyers, one a university professor, another a dental physician, still another an expert on art. One . . . an opera singer . . . . This group of educated and well-bred men does not even lack a former minister . . ..
. . .
Most of the defendants . . . came of devout parents. Some have told how they were born in the country . . . close to nature and at their mothers' knee, learned the virtues of goodness, charity, and mercy . . . .
Fn474 . Id. at 532.
Fn475 . Id. at 562.
Fn476 . Id. at 546-47.
Fn477 . HOSTAGE JUDGMENT, supra note 3, at 1278.
Fn478 . Final Statement Of Defendant List To The Tribunal On Behalf Of All Defendants, HOSTAGE MATERIALS, supra note 59, at 1228-29.
Fn479 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 518.
Fn480 . Id. at 555.
Fn481 . Id. at 531. Blume testified that he possessed a "bad conscience" and "regretted" not having faithfully and fully having implemented the Fuehrer Order. Id. at 532. One of the defendants testified that if he had witnessed an individual advocating Communism to four or five others that, "'I would have had him shot.'" Id. at 489.
Fn482 . Id. at 502. The defendants possessed a perverse sense of propriety. When queried why he did not release various Jewish internees, Adolf Ott testified, "I believe in such matters there is only one thing, namely consistency. Either I must shoot them all whom I capture or I have to release them all." Id. at 562. SS Colonel Walter Blume, who had ordered the execution of roughly a thousand Russians, reported that he had objected to the Fuehrer Order. However, he explained that he resisted evading the order by falsely reporting that he had executed Jews since, "he did not consider it worthy of himself to lie." Id. at 530.
Fn483 . Id. at 450.
Fn484 . Id. at 538. "Seibert admitted having witnessed two executions and stated that he did not exclude the possibility that Jews were among the executees." Id.
Fn485 . Extract from the Opening Statement for Defendant Hoth, HIGH COMMAND MATERIALS, supra. note 30, at 195, 196 (Dr. Heinz Mueller-Torgow counsel).
Fn486 . Id. at 197.
We were not entitled to demand enlightenment on the political reasons underlying a war and to refuse our services if such reasons should appear inadequate to us. We are not prepared to believe that the leading generals of any other state would have refused their services in the same situation.
Final Statement Of Defendant Von Leeb To The Tribunal On Behalf Of All Defendants, HIGH COMMAND MATERIALS (II), supra note 100, 458, 459.
Fn487 . Final Statement Of The Defendant Ohlendorf, EINSATZGRUPPEN MATERIALS, supra note 59, at 384, 389.
They were the same good average citizens as you find . . . by the millions in all countries. They never thought of criminal activities or criminal aims. They felt that they had been put into an inevitable, awful, and gigantic war which was to decide not only on the survival of their nation, their families and themselves, but they saw in themselves the protective shield guarding also other nationals against one common enemy [Russia]. They were in no position to judge the necessity and methods of this war. They were not responsible and could not be responsible for it . . . . They had to accept the methods and the orders in this war as did all soldiers in all countries . . . .
Fn488 . Final Statements Of the Defendants (Naumann), id. at 392, 394.
Fn489 . Extracts From The Testimony Of Defendant Ohlendorf, id. at 355.
Fn490 . Id. at 357.
Fn491 . Extracts from Closing Statement for Defendant List, HOSTAGE MATERIALS supra note 59, at 1172, 1227 (Dr. Hans Laternser was counsel for the defendant List).
Fn492 . See generally Final Statements Of The Defendants (Naumann), EINSATZGRUPPEN MATERIALS, supra note 59, at 392, 394.
Fn493 . Extracts From Expert Legal Opinion Presented On Behalf Of The Defense By Dr. Reinhard Maurach (Professor Of Criminal Law and East European Law), id. at 339, 344-46.
Fn494 . Extract From The Closing Statement For Defendant Sandberger By Dr. Von Stein, id. at 358, 360.
[It is] difficult to comprehend the ideas and mental processes of the Asiatic peoples and the peculiarities of the Bolshevist ideology and methods were for the European; and, add to this, the picture of a relentless ideological battle which used every means of warfare, from the methods and tricks of primitive tribes to the most modern weapons of technological war. These are the conditions under which one must consider the Russian campaign, and especially the partisan war, if one is to establish the boundaries of "military necessity."
Id. at 364.
Fn495 . The Final Statement Of Defendant List To The Tribunal On Behalf Of All Defendants, HOSTAGE MATERIALS, supra note 59, at 1229.
Fn496 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 426-27.
Fn497 . Id. at 448. "Women were to be slain with the men, and the children also were to be executed because, otherwise, they would grow up to oppose National Socialism and might even nurture a desire to avenge themselves on the slayers of their parents." Id. at 415.
Fn498 . Id. at 450. Biberstein noted that the faces of the dead were "'in no way distorted,'" and that there were no "'outward signs of spasms.'" Id. The gas van was developed and substituted for killing squads in order to spare the soldiers' sensitivities. The victims were loaded into vans, the doors were hermetically sealed and monoxide gas from the engine was directed into the truck. By the time that the vehicle reached its destination, the occupants had suffocated to death. Id. 448-49. Prior to the availability of the van, German officers alleged that they took special steps to insure that executions were carried out in a humane fashion.
The people were shot with submachine guns and rifles. I know that it was of greatest importance . . . to have the persons who were to be shot killed in the most humane and military manner possible because otherwise - in other methods of killing - the moral strain . . . would have been too great for the execution squad.
Id. at 582.
Fn499 . Extracts From Expert Legal Opinion Presented On Behalf Of The Defense By Dr. Reinhard Maurach, EINSATZGRUPPEN MATERIALS, supra note 59, at 348.
Fn500 . Id. at 349.
Fn501 . See id. at 354.
Fn502 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 523.
Fn503 . Extracts From The Testimony Of Defendant Ohlendorf, EINSATZGRUPPEN MATERIALS, supra note 59, at 223, 248.
Fn504 . Id. at 284.
Fn505 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 491.
Fn506 . Id. at 478.
Fn507 . Id. at 506.
Fn508 . HIGH COMMAND JUDGMENT, supra note 3, at 549-53.
Fn509 . Extract From The Testimony Of Defendant Hoth, HIGH COMMAND MATERIALS, supra note 30, at 1109, 1110-11. Hoth, somewhat inconsistently, contended that those military reports which detailed atrocities were unreliable, lacked veracity and possessed little probative value. Hoth contended that the reports had been hurriedly composed by inexperienced officers who often had employed ambiguous and imprecise language. At other times, false reports had been deliberately drafted in order to create the impression that officers had complied with morally objectionable orders. Extract from the Opening Statement for Defendant Hoth, id. at 195, 199-200.
Fn510 . Extracts From The Testimony Of Defendant Warlimont, id. at 1066, 1077.
Fn511 . Extracts From The Closing Brief For Defendant Reinhardt, HIGH COMMAND MATERIALS (II), supra note 100, at 408, 414. Dr. Hans Laternser, counsel for defendant List, warned that his client's conviction would create a juridical precedent which would compel military commanders to seek legal advice prior to issuing an order in doubtful situations. This inevitably would cripple the ability of the armed forces to rapidly respond to an attack; and would mean that in "the future the course of military events would be determined not by soldiers, but by lawyers!" Extracts from Closing Statement for Defendant List, HOSTAGE MATERIALS, supra note 59, at 1172, 1227 (emphasis omitted).
Fn512 . Closing Statement for the Defendant Lehman, HIGH COMMAND MATERIALS (II), supra note 100, at 379, 393 (Dr. von Keller, counsel for the defendant Lehmann). When asked why he did not resign, List testified: "Resignation of an officer in wartime does not exist, or did not exist; in fact, Hitler had forbidden it, and he had expressly said that it was he who decided when a general or an officer was to resign." Extracts From The Testimony Of Defendant List, HOSTAGE MATERIALS, supra note 59, at 1036-37. The option, according to Ohlendorf, was a "senseless martyrdom through suicide, senseless because this would not have changed anything . . . ." Extracts From The Testimony Of Defendant Ohlendorf, EINSATZGRUPPEN MATERIALS, supra note 59, at 223, 250.
Fn513 . Closing Statement for the Defendant Lehman, HIGH COMMAND MATERIALS (II), supra note 100, at 380.
Fn514 . Id. at 394. The defendants pointed out that the occasional excesses committed by German troops should be viewed in light of the hardships accompanying combat in the vast and harsh Russian terrain. Dr. Mueller-Torgow, counsel of defendant Hoth, in seeking to exonerate defendant Hoth, observed that "[o]nly those who know the East, and who experienced the Russian winter and the muddy season can comprehend the terrific demands which these conditions created for each and every individual." Extract from the Opening Statement for Defendant Hoth, HIGH COMMAND MATERIALS, supra note 30, at 196-97. The German military also was accustomed to confronting the enemy in open conflict and was ill-prepared to combat a furtive foe who demonstrated a lack of respect for the humanitarian law of war. The Soviet regime exploited the "peculiarities of the Russian soul" and deliberately deployed "Asiatic types" who were easily incited into committing "extremely cruel excesses as the German soldier in the East had to experience time and again." Id. at 196.
Fn515 . HOSTAGE JUDGMENT, supra note 3, at 1282-1286.
Foertsch served as chief of staff to Field Marshal List, Armed Forces Commander Southeast. At List's request, Foertsch approached Field Marshal Keitel, Chief of the High Command, requesting additional troops to insure security in the Balkans. Keitel refused and subsequently issued a set of orders which required a ruthless campaign of reprisals, one of which was distributed under Foertsch's signature to subordinate units. Foertsch also distributed the Commando Order, which called for the compulsory deployment of partisans in German mines as well as orders on behalf of List ordering illegal retaliations. Id. The Court failed to find a conspiracy to decimate various races and religions. It ruled that neither Foertsch, or any of the other defendants, ever "became a party to any such preconceived plan . . . . We think the evidence shows that . . . the actions [of the defendant] in the Southeast were motivated by a desire to attain peace and order among the civilian population . . . ." Id. at 1285-86.
Fn516 . Id. at 1286-88. Defendant von Geitner served as chief of staff to General Paul Bader, commanding general in Serbia. Von Geitner initialed or signed orders issued by Bader which called for the shooting of hostages and reprisal prisoners. Von Geitner also implemented Bader's decisions to arrest hostages and to undertake reprisal measures. Id.
Fn517 . Id. at 1286.
Fn518 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 480-81.
Fn519 . United States of America v. Erhard Milch, II TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, 773, 793 (1947) (involvement in medical experiments on internees of concentration camps).
Fn520 . Quoted in COOPER, supra note 60, at 98.
Fn521 . See supra notes 136-141, 150-53 and accompanying texts.
Fn522 . See supra notes 142-49 and accompanying texts.
Fn523 . See supra notes 264-65 and accompanying texts.
Fn524 . See supra notes 262-63 and accompanying texts.
Fn525 . See supra notes 271-75 and accompanying texts.
Fn526 . See supra notes 376-77 and accompanying texts.
Fn527 . See supra notes 378-80 and accompanying texts.
Fn528 . See supra notes 381-84 and accompanying texts.
Fn529 . See supra notes 389-91 and accompanying texts.
Fn530 . See supra notes 135, 268-70, 276-80, 373-75 and accompanying texts.
Fn531 . See supra notes 149, 265-67, 385-87 and accompanying texts.
Fn532 . In his opening statement in the High Command Case, General Telford Taylor observed that:
In most countries, arms is one among a number of callings. It is a respected and honorable occupation, and it will be an absolutely necessary profession as long as organized force plays an important part in the affairs of men. But it is the true and high purpose of this profession to protect, not to subject. The military art is never to be practiced for its own sake; the death and destruction which the use of arms entails is redeemed and ennobled only when the sword is the guardian and restorer, not the destroyer, of peace.
Opening Statement of the Prosecution, HIGH COMMAND MATERIALS, supra note 30, at 62.