--- Nor need such act of law breaking be necessary to the execution of the purpose. It may be only incidentally involved, in such purpose, yet if the will be to effect the purpose, lawfully or unlawfully, the will is to be regarded as causing the illegal act. Thus, a party selling liquor recklessly to a crowd has been held responsible for their disorderly conduct."
"Art. 195. A free moral agent (and none other can be a cause in the eye of jurisprudence) does not cease to be responsible for an alteration effected by him in the ordinary course of events, because there were other conditions, which were, in addition to his action, also of the same incidents result.
"Again: Iron is dug from a mine; is malted in a furnace; is shaped in a factory; is sold, as a weapon, by a tradesman; is used to inflict a fatal blow by an assassin. Now the mining, the melting, the shaping, the selling, are all conditions of the murder, without which it could not, in the line in which it was effected, have taken place; but none of these acts is a cause of the murder, unless the particular act was done in a concert with the murderer, to aid him in effecting his purpose."
"Art. 198. Omission to help may be indictable offense when such help is a legal duty."
The foregoing principles are those from which we deduce the guilt of these defendants. The facts when tested by these principles will be found sufficient to support their application.
9798-C Respectfully submitted CHARLES M. LaFOLLETTE ROBERT D. KING For Brig.
Gen. Telford Taylor, Chief of Counsel for War Crimes.
Of Counsel:
ALFRED M. WOOLEYHAN
SADIE B. ARBUTHNOT
ARNOLD BUCHTHAL
RODULF AUERBACH
On the Brief
PETER REAUVAIS
HENRY EINSTEIN
Expert Assistants 9798-D
MILITARY TRIBUNAL III
Case No. 3 THE UNITED STATES OF AMERICA - against JOSEF ALTSTOETTER, et.
al.
THE RULES BY WHICH THE RELATIONSHIPS SET CUT IN LAW 10, ART. I, par. 3, ARE TO BE INTERPRETED.
APPENDIX " To Prosecution Final Argument The structure of Article II of Control Council Law 10 is admirable in its simplicity.
It clearly follows the statement of the fundamentals of criminal liability quoted from Wharton, Sec. 349.
In Paragraph 1, the criminal act, element two of the corpus delicti, is defined. (The duty to establish the first element, that a man has died, or person has been taken by force from one place to another, or a house has burned, is implicit in every criminal statute. It is an element of the proof in every case brought under a criminal statute. Therefore, this element upon which the charge and proof are made is implicit in the statute.) In Paragraph 2, the agency of the person accused in bringing about the crime is stated. This agency may also be defined, as that relationship to the act which the law recognizes as criminal. - These relationships are the ones which believe it is proper to elaborate upon in this appendix.
Law 10, Art. II, Par. 2 first declares:
"Any person..... is deemed to have committed a crime .....if he was (a) a principal......" The definition appears to be self-explanatory.
9798-E Wharton1 first defines a 'principal' as follows:
"A principal, in the first degree at common law is the one who is the actual perpetrator of the criminal act." But there is a further definition which contains a basic principle applicable to the evidence in this case, which should not be overlooked.
"Sec. 241. To constitute, however, this grade of offense, it is not necessary that the party should have committed the act with his own hands or be actually present when the offense is consummated; for if one lay poison purposely for another, who takes it and is killed, he who lays the poison, though absent when it is taken, is a principal in the first degree. Such also is the case with a party who maliciously turns out a wild beast intending to kill anyone whom the animal may attack."
It is also meet to review the factual situations which the common law considered sufficient to create the status of principal.
"Sec. 255. Where one assailant strikes a blow which is not fatal, and a confederate follows it up with a fatal blow, both are principals in the homicide. If part of a crime also be committed in one place part in another, each person concerned in the commission of either part is liable as principal. Hence, if several combine to forge a document, and each executes, by himself, a distinct part of the forgery, and they are not together when the instrument is completed, they are nevertheless all guilty as principals. And if A counsel B to make the paper, C to engrave the paper, D to fill up the names of a forged note, and they do so, 1. Wharton, CRIMINAL LAW (12 3d.) 1932, Sec.
241.- All further citations are from the same authority.
9798-F each without knowing that the others are employed for that purpose, B, C and D may be indicted for forgery and A as an accessory; for if several make distinct parts of a forged instrument, each is a principal, though he does not know by whom the other parts are made, and though it is finished by one alone in the absence of the others."
"Sec. 258. All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime hot specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime. Thus, if several persons come armed to a house with intent to commit an affray or a personal outrage (such affray or outrage having bloodshed as a probable incident), and a homicide ensues while the assailants are engaged in such illegal proceedings, then even those who may not actually participate in any overt act of outrage will be principals in the homicide. And where persons combine to stand by one another in a breach of the peace, with a general resolution to resist to the death all opposers and in the execution of the design a murder is committed, all of the company are equally principals in the murder, though at the time of the act some of them were at such a distance as to be out of view ...... Hence it is not necessary that the crimes should be part of the original design; it is enough if it is one of the incidental probable consequences of the execution of that design, and should appear at the moment to one of the participants to be expedient for the common purpose."
The next relationship defined in Law 10, Art. II, 9798-G Par.
2, is the following:
"(b) was an accessory to the commission of any such crime or ordered or abetted the same."
This defines the relationship of an accessory before the fact and, as we shall demonstrate by the definition of the word "abet", also the relationship of principal in the second degree.
"Accessories before the Fact.
"Sec. 263. An accessory before the fact is one who, though absent at the commission of a felony, procures, counsels, or commands another to commit said felony subsequently perpetrated in consequence of such procuring counsel or command. . . . . .
"The accessory is liable for all that ensues as incident to the execution of the unlawful act commanded; as, for instance, if A command B to beat C so that C dies, A is accessory to the murder, if the offense be murder of C. and if the offense commanded be effected, although by different means from those commanded, as, for instance, if J.W. lure J.S. to poison A and instead of poisoning him he shot him, J.W. is nevertheless liable as an accessory."
"Sec. 267. If the advice of the accessory be countermanded before it operates in any way, he is relieved from responsibility, and if an instigator, when withdrawing, not merely expresses his disapproval of the crime, but takes all the measures in his power to prevent its consummation, and such measures fail because of casus, or some intermediate impulse, then his criminality ceases. But it does not cease simply because, after starting the ball, he changes his mind, and tries, when too late, to stop it. To emancipate 9798-H him from the consequences, not only must he have acted in time and done everything practicable to prevent the consummation, tut the consummation, if it takes place, must be imputable to some independent cause.
Here we point out that the definition in Sec. 267 is not complete. For, even if. the act is caused by "some independent cause", the accessory will still be guilty, if the independent cause was one which he must be held to have foreseen, as a reasonable man, when he "started the ball rolling." ...
"Sec. 268. While an accessory before the fact (or instigator) is responsible for all crimes incidental to the criminal misconduct he counsels, or which are among its probable consequences, it is otherwise as to collateral crime not among such incidental and probable consequences.
"Thus where A instigates B to rob C, and B murders C in carrying out the robbery, A is accessory before the fact to the murder."
Sec. 270. The assistance must be rendered knowingly. It is not necessary, indeed, that the principal should know all the conditions of the help rendered him, but it is necessary for the accessory to know the guilty purpose he contributes to help. The chief of the plot is not bound to know a cooperator in order to implicate the latter as an accessory, but the cooperator cannot be convicted unless he is shown to have been acquainted with the character of the plot."
Sec. 273. It is not material that an accessory should have originated the design to commit the offense. If the principal had previously formed the design and the alleged accessory aid him to carry it out by stating falsehoods, or otherwise, he is guilty as accessory 9798-I before the fact."
We also point out that a principal in the second degree is defined as one who is present "aiding and abetting" in the commission of an offense.
"Sec. 245. Principals in the second degree are those who are present aiding and abetting the commission of the offense.
"6. 'abet' is anonymous with 'aid' and 'assist'. State v. Flynn, 76 N.J.L. 473, 72 Atl. 296."
It follows that subdivision (b) above, when it used the words "or abetted the same" includes the common law relation of "principal in the second degree" as well as that of "accessory before the fact."
The next relationship is stated as follows:
"(c) took a consenting part therein" (the commission of the crime)" This definition states a relationship to the crime, in which a person, with knowledge of the crime intended, does an act which ho knows will contribute to or be of assistance in the commission of that crime.
If ha docs so he is liable not only for the crime intended, bat for all crimes reasonably foreseeable as among the probable consequences of the crime he contributes to or assists. This seems to be a fair statement of the relationship inherent in the words "took a . . . part in" the commission of the crime.
It is a criminal relationship described in Sec. 258 of Wharton cited above (page 3) under out discussion of the meaning of the term "Principal". We also find that at common law an "accessory before the fact" need not necessarily have 9798-J been a participant whose sole action consisted of "instigating" the plan or plot.
He could occupy relationship to the crime, other than that of "instigator", and still be held as "an accessory before the Fact."2 But this definition (c) speaks not only of a "part" in the commission of a crime, but also of a "consenting" part.
This implies a parson who acts voluntarily.
It is certainly true that the law presumes that a person acts under free will, consequently the alleged presence of coercion, sufficient to constitute a defense or as matter of mitigation of punishment, is affirmative matter. Certainly the prosecution, in light of the presumption, is not required, as part of its case, to negative possible coercion. This is especially sound when we stop to realize that only the defendant knows the facts which he considers sufficient to make him conclude that he was coerced. Therefore ho should produce them or, if they arc found in the evidence the prosecution has introduced, ho should point them out. Then it remains for the court to decide, whether or not under all the evidence in the case, the defendant acted voluntarily beyond a reasonable doubt.
The last relationship which is of consequence in evaluating the evidence in this case is that defined in clause (d):
"(d) was connected with plans or enterprises involving its commission."
First, it should be pointed out that the acts of the defendant which require a finding of guilt under this clause are the same acts of knowingly contributing to and rendering assistance in the commission of a crime as 2. See Sections 270 and 273, supra, p.4.9798-K defined by clause (c), Clause (d), however, makes it clear that a defendant is guilty if ho knowingly acts to assist or make a contribution to a plan or enterprise to commit a crime, which plan or enterprise was originally conceived or instigated by other persons and was being carried out by them.
It seems clear also that these others need not have requested or ordered the defendant to assist or contribute to the plan they were executing. Indeed, they need not be aware of the fact that the defendant is contributing to or assisting in the execution of their plan or enterprise. It is enough if the defendant with knowledge of the present existence and operation of a plan or an enterprise to commit a crime, docs an act which is connected with its successful or more complete or full execution.
This interpretation is established as a precedent by IMT in cases of Streicher3 and von Schirach4. There IMT was construing a statute, Charter, Art, 6(c), which made Crimes against humanity criminal if committed "in connection with any crime within the jurisdiction of the Tribunal." We point out that in the von Schirach case the IMT said:
"Austria ...... was occupied pursuant to a common plan5 of aggression."
A few sentences later, the opinion then stated: "The Tribunal finds that von Schirach, while he did not originate the policy of deporting Jews from Vienna, participated in this deportation after he had become Gauleiter of Vienna.6 He know that the best the Jews could hope for was a miserable existence in the Ghettos 3. Tr. in Justice Case p. 82; Tr. in IMT p. 17011 4. Tr, in Justice Case p. 82; Tr. in IMT p. 17037-8 5. Our underlining.
6. Our underlining.
9798-L in the East.
Bulletins describing the Jewish extermination were in his office." (Tr. Justice p. 82; IMT p. 17038).
The ruling in the case of Streicher is predicated upon the same construction.
It follows that the foregoing logical and therefore valid construction which we have given to clause (d) is further buttressed by supporting judicial precedent.
We also point out that the provision Law 10, Article II, Par. 4 (b):
"The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation."
should be construed in light of our discussion in this appendix of the element of "consent". Certainly if, at the time any of the defendants obeyed an order, the opportunity to resign without fear of serious consequences to his person, then no factual situation, warranting a finding of mitigating circumstances, is presented to the Tribunal. Furthermore evidence in mitigation is clearly affirmative matter which should be brought forward by the defense. In the absence of any evidence of probative value, showing the existence of coercion sufficient to justify obedience to the order, no grounds for mitigation under Par. 4 (b) have been established Finally, we point out that Par.
3 of Article II of Law 10 which fixes the punishment, does not make the degree of punishment to be assessed upon any defendant, dependent upon conviction of any defendant of any one of the guilty relationships sot out in Par. 2 of Article II of Law 10. Consequently under the rules of construction of criminal statutes the defendants are all guilty in an equal degree, no matter which of the criminal relationships to the crime 9798-M they may be found guilty of committing.
They are, therefore, all principals under the statute. However, this does not make this discussion academic or detract from its value. Its purpose has boon to show the accepted legal definitions of the relationships, set out, without definitions, in this paragraph of the law.
Respectfully submitted CHARLES M. LaFOLLETTE ROBERT D. KING For Brig.
Gen. Telford Taylor, Chief of Counsel for War Crimes.
of Counsel:
ALFRED M. WOOLEYHAN
SADIE B. ARBUTHNOT
ARNOLD BUCHTHAL
RUDOLF AUERBACH
On the Brief PETER BEAUVAIS HENRY EINSTEIN Expert Assistants.
9798-N
MILITARY TRIBUNAL III
Case No. 3 THE UNITED STATES OF AMERICA - against JOSEF ALTSTOTTER, et al.
DEFINITIONS OF THE CRIMES WHICH ARE PUNISHABLE UNDER LAW 10.
APPENDIX 3.
To Prosecution Final Argument In this appendix the Prosecution is not concerned with the crime defined in Par.
1 (a) of Article II of Control Council Law No. 10 because the Indictment does not charge a violation of that subparagraph. We are concerned with the crimes defined in sub-paragraph (b), (c) and (d) of Par. 1 of Article II of Law 10.
Solely to enable the Court to have before it in this appendix, the exact language of the foregoing sub-paragraph 1 (b) as we discuss it here, we herein set it out verbatim.
"Article II" 1. (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, town or villages, or devastation not justified by military necessity.
A cursory reading leads one to believe that two classes of crimes appear to be defined -- international and national Actually only one class of basic crimes is defined.
-- "atrocities er offenses -- against persons or property ..... constituting violations of the laws and customs of war". This is the criminal act or agency which the court must find before it can take further steps. As we 9798-O point out in Appendix 4, it is the murderer's lethal weapon, the arsonist's torch and the enslaver and false imprisoner's chain and padlock.
The international crime is fully proven where the actual commission of any of the "atrocities or offenses" through the agency of the above set out violations of the laws and customs of war, are also proven. These atrocities or offenses, namely:
"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."
are the wrongs committed through the act which is prohibited, that is an act which is "in violation of the laws and customs of war.1 When thus understood we then find, by a study of the subparagraph under consideration, that only one of the acts, which are defined as the "atrocities or offenses", that is to say, the injuries, resulting from the act or agency, criminal at international law, requires a criminal law definition by national standards, to wit:
Murder. All of the others have definitions capable of being ascertained by resort to accepted lay meanings of the words used.2 It follows that a discussion of the legal meaning of the term murder is essential to a clear understanding of the issues here presented.
1. We point out, in Appendix 3, that one of the guilty relationships to the crime, defined in Par. 1 of Article 2 of Law 10, must also be established as apart of the Prosecution's case.
2. We point out that we are referring now to the precise language of the sub-paragraph. In this case the prosecution also contends that the crimes of "kidnapping and false imprisonment" are included within the words "deportation.... for any other purpose, of civilian population from occupied territory" and that the language last quoted describes the injurious or prohibited act resulting from the international crime identified as the NN (Nacht und Nebel) Decree of 7 Dec. 1941. Therefore the prosecution will also give the legal definition of those crimes. Of course the prosecution likewise contends that those NN prisoners who were sentenced to death by reason of RJM participation in the carrying out of that decree were "murdered."
9798-P We first point out that the law presumes all homicides to be committed with malice aforethought and to constitute murder and that the burden is on the accused to show circumstances of alleviation, excuse or justification.
We new conclude that the drafters of Control Council Law 10, like their predecessors the drafters of the Charter, had in mind a common law definition of murder since they did not see fit to expressly define it. This being true, we repeat here the definition of the term as Mr. Justice Stephens found it to exist in the common law of England in 1877, which we offered in our opening statement.
We stated, at that time that an unlawful homicide without adequate provocation was murder, if it followed from an act accompanied by one of the following states of mind: (1) an intention to cause the death of, or grievous bodily harm to any person; (2) knowledge that the act will probably cause either of these results, even though the actor hopes that they might not occur or is indifferent about them; or (3) an intention to commit a felony or to resist a peace officer in the executions of his duty.
This definition is a fair statement of the law and therefore in the executions of his duty.
This definition is a fair statement of the law and therefore a proper one for this court to follow.
The prosecution also contends as pointed out in footnote (2), supra, that the following language of sub-paragraph (b) of Paragraph 1, "deportation .... for any other purpose, of civilian population from occupied territory" defines the injurious and wrongful act resulting from the "violations of the laws and customs of war", inherent in the NN (Nacht unt Nebel) Decree of 7 December 1941 and the participation of the RJM in the conduct of that decree. If these prisoners were not deported also for "slave labor", which we do not admit, they certainly were deported for an "other purpose", namely, wrongful removal without their consent by force from occupied countries, therefore, kidnapping, unlawful trials resulting in wrongful and therefore false imprisonment 9798-Q and death sentences, therefore murder, as her in above defined.
It is helpful, if not absolutely necessary, to define "kidnapping" and "false imprisonment".
"Sec. 773. Kidnapping at common law was defined as the forcible abduction or stealing away of a man, woman or child, from their native country and sending them to another. It was treated as an aggravated false imprisonment, all ingredients in the definition of the latter offense being necessarily comprehended in the former, with the additional ingredient of carrying the imprisoned person out of his own country and beyond the protection of its laws."
False imprisonment in its broadest sense is defined as an unlawful physical restriction of corporal liberty. 4 This definition is adequate, but its application to the facts in this case, particularly to those arising from the NN program, is pointed up, when we observe that arrest and detention by an officer, real or pretended, acting without authority has been held to support a charge of false imprisonment -- unlawful physical restriction of We proceed to a discussion of Control Council Law 10, Article II, Par.
1 (c) which defines Crimes against Humanity, as follows:
"(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 lab's of the country where perpetrated."
The gravamen of the crime defined in this sub-paragraph is the following -- "Atrocities or offenses ...... on political; racial or religious grounds -- whether or not in violation of the domestic laws of the country where perpetrated." The balance of the subparagraph reading from "murder" through "persecutions", both inclusive, constitutes the description or definition of the "Atrocities and offenses" which are made unlawful. Therefore, any act of these defendants done on political, racial or religious grounds, which is 3. Wharton, CRIMINAL LAW, (12.
ED.) 1932, 4. Wharton, CRIMINAL LAW, (12 Ed.) 1932, Sec.
779.
9798-R at the same time, for example, a murder, or an act of extermination, provided that it is also an act which places the defendant in any of the relationships, defined in Law 10, Article II, Par.
2, (discussed in Appendix 2), to the murder or extermination, is a crime as so defined. The legal affect of the last phrase, "whether or not in violation of the domestic laws of the country where perpetrated", is merely to eliminate obedience to or reliance on domestic laws condoning, authorizing or affirmatively ordering" murders, exterminations......... or persecutions", on the prohibited grounds, as a defense. Which is but another way of saying legally that at international law, such domestic laws are unlawful.
This then must be the Conclusion of the four great powers, which wrote Control Council Law 10 as an international enactment, and the powers which adhered to it. As the Government pointed out in the opening statement in the Case Number V. the Flick case, the fact that this International Tribunal was given jurisdiction to try the crimes, in the absence of any existing duly qualified tribunal, does not affect the validity of the decision, set out in Control Council Law No. 10, that the crimes therin defined were crimes under existing international law when committed.
Sub-paragraph (d) of Par..1 of Article II of Law 10 reads as follows:
"(d)* Membership in categories of a criminal group or organization declared criminal by the International Tribunal."
This sub-paragraph must be read in connection with the judgment of IMT as to each organization and then applied separately to the facts in this case, as they affect each defendant charged with a violation of this sub--paragraph. Consequently no purpose is served by a further discussion of this sub--paragraph.
9798-S Respectfully submitted.
CHARLES M LaFOLLETE ROBERT D. KING For Brig.
Gen. Telford Taylor Chief of Counsel for War Crimes of Counsel:
ALFRED M. WOOLLHAN SADIE B. ARBUTHNOT ARNOLD BUCHTHAL RUDOLPH AULRBACH
On the Brief PETER BEAUVAIS HENRY EINSTEIN Export Assistants 9798-T M I L I T A R Y T R I B U N A L III Case No. 3 THE UNITED STATES OF AMERICA - AGAINST JOSEF ALSTOETTER, et al.
THE RULES OF INTERPRETATION OF CRIMINAL STATUTES AND THE RULES OF PROCEDURE WHICH APPLY HERE.
APPENDIX 4 To Prosecution Final Argument We are concerned here with the rules of interpretation of criminal statutes and of substantive criminal law which in turn determines the procedural rules by which the law fixes the duty to go ahead with the proof and the court decides questions involving failure of proof, The rules of interpretation of criminal statutes come first and.
will be discussed first.
It is a law that where a criminal statute defines unlawful conduct end also defines an exception which has the effect of relieving from guilt under certain definite circumstances, then the exception so stated is an affirmative defense. Under such a statute the rules of procedure logically require that in a trial under an indictment based upon such a statute it is not the obligation of the prosecution to disprove the existence of the exception in order to make a prima facie case.
On the contrary under such a statute it is the obligation of the defendant to go ahead and present some evidence of the factual existence of the exception if he intends to rely upon the exception stated as a defense.
This is true also of crimes which do not include in their definition an affirmative defense, but to which there is nevertheless a defense which the law has recognized as an affirmative one or to those cases where the law provides varying degrees of punishment as in the case of homocide under varying factual situations. As an example, the law presumes all homocides to be committed with malice afore-thought and 9798-U to constitute murder, the burden is on the accused to show circumstances of excuse or justification, such as self-defense, or of allevia(1) tion , such as hot blood produced by adequate cause, sufficient to change the homocide from murder to voluntary manslaughter.
In such cases also, it is incumbent upon the defendant to offer proof of the facts constituting the justification or alleviation if he is to defend against the charges of murder. This is of course subject to the rule that where the prosecutions evidence includes facts from which the justification or alleviation may be inferred, the defendant may, at his option, rely on that proof rather than to introduce proof affirmatively after the prosecution has rested its case.
The fundamental rule is this, that the prosecution does not have to negative affirmative defenses by proof beyond a reasonable doubt in order to make a prima facie case. The prosecution in murder, for instance, must prove a premeditated malicious killing by the defendant beyond a reasonable doubt. If the defendant offers proof that he acted, in self--defense it is sufficient if the evidence on self-defense raises a reasonable doubt that under all the evidence the homocide was murder. The defendant does not have to produce evidence which proves self-defense beyond a reasonable doubt, but if he relies on selfdefense, he must be able to point to some evidence in the case which tends to prove self-defense, it is then still the duty of the prosecution to convince the jury that the evidence on the issue of selfdefense is so inconclusive, when considered, with all the evidence in the case, that no reasonable doubt exists to affect their convictions that the homocide was murder.
We next apply these rules to the Law 10 and the pertinent provisions of international law which are controlling in this case.
Law 10, Article II, par. 1 (b) defines War Crimes. The provisions which are pertinent to this Appendix are the following:
1. Wharton, Criminal Law (12 Ed.) 1932, Sec, 419.
9798-V "Atrocities of 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."