These charges concern only the defendant Rendulic.
Even since the initial attack against Russia, the German 20th Mountain Army had been situated in the northern part of Finland, holding Petsamo and threatening Murmansk and the railroad line from Murmansk south to Leningrad, one of the two main avenues for the weapons and supplies which America and Britain were sending to the Soviet Union. This army had been commanded, since January 1942, by Generaloberst Edward Deitl, who met his death in an airplane crash in June, 1944. Rendulic was chosen to succeed him, and arrived in Finland in August. The order of battle of the 20th Mountain Army, predominantly comprised of mountain troops, is shown in chart "G" of the prosecution's pamphlet.
Rendulic's arrival in Croatia in August, 1943, had been followed almost immediately by the collapse of Germany's Italian ally, now he was to encounter a parallel situation in Finland. On the fourth of September, 1944, the Finns capitulated to the Soviet forces, and demanded that the Germans promptly withdraw their troops from Finland. Rendulic decided to fall back across the northwestern Finnish frontier into northern Norway.
The region in which this retreat took place is shown in map "E" of the prosecution's pamphlet. The northernmost province of Norway is known as Finnmark, and the province just to the south as Troms. Including a nomad population of Laplanders, the population of this area numbers approximately 62,000, most of whom live in small ports and villages along the heavily indented coastline, and make their living as fishermen. It is a very wintry and isolated region; there are no railroads, and the only communication with southern Norway is by sea or by the single road along the coast know as Route 50.
Rendulic began his retreat in September, 1944. The two northernmost corps of his army were the XIX Mountain Corps under General Ferdinand Jodl (brother of the Jodl who was a defendant in the International trial) and this corps was in the extreme north near Petsamo; the other was the XXXVI Mountain Corps, about 100 kilometers to the south of Jodl's unit. It was the troops of these two corps that were chiefly concerned in the activities which form the basis of the charges in the indictment. By the latter part of October, part of these troops had been withdrawn westward from Petsamo through Kirkenes and were resting around the village of Tana, and others to the south were making their way out of Finland by the more southerly route shown on the map which joins Route 50 near Porsanger-Halvoya. The darkness of the northern winter was rapidly settling in, it was very cold, and there was more than enough snow. The advancing Soviet troops had kept contact with the Germans as far as Tana. In order to make the Russian advance as difficult as possible, the German troops had been systematically destroying barracks and buildings and port facilities, and endeavoring to persuade the Norwegian population to evacuate, in the area between Kirkenes and Tana.
Late in October 1944, the German High Command decided that this program of devastation and deportation should be much more extensive and regorous. As a result, on 28 October 1944, the OKW, over Alfred Jodl's signature, issued the following order to Rendulic as Commander of the 20th Mountain Army:
Because of the unwillingness of the north Norwegian population to voluntarily evacuate, the Fuehrer has agreed to the proposals of the commissioner for the occupied Norwegian territories and has ordered that the entire Norwegian population east of the fjord of Lyngen be evacuated by force in the interest of their own security and that all homes are to be burned down or destroyed.
The supreme commader, Northern Finland, is responsible that the Fuehrer's order is carried out without consideration. Only by this method can it be prevented that the Russians with strong forces, and aided by these homes and the people familiar with the terrain, follow our withdrawal operations during this winter and shortly appear in front of our position in Lyngen. This is not the place for sympathy for the civilian population.
* * * * * * * * * * * It must be made clear to the troops engaged in this action that the Norwegians will be thankful in a few months that they were saved from Bolshevism, and that the barbarian methods of the air war against our German country and her cultural shrines have brought a thousand times more misery to our people if compared with the humane evacuation and destruction of homes in northern Norway, which is necessary for our war effort, and which, if it is not done, must be paid with the blood of German soldiers.
The population, whose livelihood is fishing, in northern Norway, furthermore has enough shipping space at its disposal to be able to get out of the way en masse across the water. A large part of the small Norwegian ships which are kept hidden at present can be used for this, and can later also be used for our own transportation needs.
The danger of the formation of guerrilla bands on the part of the Norwegians appears to be negligible since they can no longer use the houses during the winter.
It was claimed, in defense of Alfred Jodl, during the international trial that this order was unnecessarily far-reaching, and that Alfred Jodl, by various subtle means endeavored to conveyy to Rendulic that it should not be complied with to the fullest degree.1 If this be true, there is little evidence that Rendulic undertook to soften its effect in any material respect. The order which Rendulic issued to his subordinate commands the following day follows very closely the language of the OKW order and includes the following:
1. Because of the lack of willingness of the north Norwegian population to evacuate the country voluntarily, the Fuehrer has ordered the compulsory evacuation of the population east of the Lungenfjords in the interest of the security of the population, which is to be 1. Alfred Jodl's contention in this regard is referred to in the Judgment of the International Military Tribunal, Vol I, Trial of the Major War Criminals, p. 324.
preserved from Bolshevism, and that all houses be burned down or be destroyed. It is the responsibility of the Commander-in-Chief of Northern Finland that this order be carried out ruthlessly so that the Soviets supported by dwelling places and a population which knows the country will be prevented from following our withdrawal with strong forces. Pity for the civilian population is out of place.
* * * * * * * * * * 5. The following directions were given for the Execution of the Evacuation:
a) The entire evacuation area is to be emptied of people.
b) Evacuated settlements are to be destroyed unless they are to he used thereafter by troops marching through (that is, at the latest by the rear guards) .
c) The operation must be a sudden one and the officers of the Reichs Commissar of Norway must participate, and Norwegian authorities must be harnessed for it; the latter, however, only from the beginning of the operation.
d) The seized population is to be led to the nearest ports under military guard (also small ports with docks suitable for cutters) .
e) Local and district commanders are to erect reception camps in or near these ports.
f) Men capable of working and marching, and in the western districts women capable of marching also, are to be coupled to the marching units furtherest in front and to be taken along.
g) Insofar as the population still has small ships available, they are to be used for the deportation of the evacuees under military cover!
h) All ships used by the Wehrmacht (freighters and Army transports) are to be loaded additionally with as many evacuees as possible.
i) Columns on Route 50 to be formed only to an unavoidable degree; invalids, women and children to be assisted by loading them on trucks. Only men really capable of marching to join the march columns!
* * * * * * * * * * * * Finally I request all offices concerned to carry out this evacuation in the sense of a relief action for the Norwegian population.
Though it will be necessary here and there to be severe, all of us must attempt to save the Norwegians from Bolshevism and to keep them alive.
On November first, the Germans made known to the population what was in store for them. Rendulic's proclamation stated in part:
TO THE POPULATION:
The evacuation of a part of northern Norway has been rendered a military necessity as a result of the treachery of a Finnish Government clique.
The evacuation necessitates the removal of the civilian population, as the enemy has proved that, in those territories occupied by him, he ruthlessly and brutally forces the civilian population to give him active assistance in achieving his aims.
This means that he shelter or means of existence of any kind can be left to the Bolshevik enemy in the fighting zone. All such installations as housing accommodations transport facilities and food stocks must be destroyed or removed.
THE POPULATION IN THESE DISTRICTS WILL THEREFORE BE DEPRIVED OF THE BASIS FOR THEIR EXISTENCE, SO THAT IN ORDER TO BE ABLE TO SURVIVE, THEY MUST EVACUATE TO THOSE NORWEGIAN TERRITORIES WHICH ARE STILL PROTECTED BY THE GERMAN WEHRMACHT.
* * * * * * * * * *
HE WHO DOES NOT COMPLY WITH THESE UNEQUIVOCAL INSTRUCTIONS EXPOSES HIMSELF AND HIS FAMILY TO POSSIBLE DEATH IN THE ARCTIC WINTER WITHOUT HOUSE OR FOOD."
(signed) by TERBOVEN, (signed) by RENDULIC, Reichskommissar for the Generaloberst, Occupied Norwegian Territories.
Commander-in-Chief 20th Army.
This ruthless and in large part unnecessary decision was carried out by Rendulic's forces according to plan. Northern Norway, from Kirkenes nearly to Tromso, was turned into an Arctic desert. Over 43,000 men, women, and children over two thirds of the entire population of an area about the size of Scotland - were herded down Route 50 or crowded into small boats. We may be sure that the official German report to Rendulic of the manner in which the evacuation was carried out is not overstated. I quote :
Some untoward events, such as .... the separation of men from their families to be deported ..... the burning down of houses in the presence of inhabitants even where an immediate destruction was not necessary, and shelling of the locality Kjallefjord by units of the German Navy, hindered the readiness of the popurlation to follow the officially prescribed way.
The prosecution will submit evidence to show that the devastation and evacuation, at least in large part, were wholly unjustified from a military standpoint, and that, under the spur of Rendulic's admonition that his order was to be "carried out ruthlessly" and that "pity for the civilian population is out of place", the destruction and evacuation were carried out with unnecessary brutality, resulting in the impoverishment of the entire population, in the death of some, and the suffering of many thousands.
We will turn to the final portions of the indictment - those relating to THE MURDER OF CAPTURED "COMMANDOS" AND "COMMISSARS" Two of the specifications in Count Three of the Indictment differ from the others in that their scope is not restricted geographically to southeastern Europe.
These are sub--paragraphs "b" and "h" of paragraph 12 of the indictment. Both of these specifications refer to orders of general application, issued by OKW and OKH and distributed generally through the field commands of the Wehrmacht, which denied the protection of the laws of war to two special categories of enemy troops, and directed that they be executed if captured. These two categories were the commando troops, which the British and later the Americans made such effective use of, particularly prior to the invasion of France, and the so-called "political commissars", who were regularly attached to units of the Soviet forces and fought with them in regular Soviet uniforms.
Firstly as to the commandos.
The order for the murder of captured commandos was issued by Hitler through the OKW in October, 1942.1 It directed that enemy commandos were to be slaughtered to the last man; that even if they surrended, nonetheless they were to be shot immediately, unless interrogations were necessary, in which case they were to be shot thereafter. The order was not a purposeless piece of criminality; Allied commando operations were proving alarmingly effective, and Hitler apparently thought that this order would act as a deterrent.
The order was distributed to all three branches of the Wehrmacht, and there is ample evidence that it was widely distributed and wellknown throughout the German army. In all probability, all of the defendants (except List, who had retired just prior to its issuance) distributed or enforced the order at one time or another.
In July, 1944, the commando order was given a new and special application in southeastern Europe. A new order from OKW directed that it should be applied to the members of foreign "military missions" who might be captured with the partisan forces in the Balkans. This new order, dated 30 July 1944, stated:
In the areas of the High Command Southeast and Southwest, members of foreign so-called "Military Missions" (AngloAmerican as well as Soviet-Russian) captured in the course of the struggle against partisans shall not receive the treatment as specified in the special orders regarding the treatment of captured partisans. Therefore, they are not to be treated as prisoners-of-war, but in conformity with the Fuehrer's order for the elimination of terror and sabotage troops of 18 October 1942.
We must not forget that to kill a defenseless prisoner-of-war is not only a violation of the rules of war. It is murder. The commando order required the commission of murder, and every German officer who handled it know that perfectly well. The signs of a guilty conscience are only too clear in another paragraph of the order which I have just read, which required that the distribution copies of it should be de 1 The circumstances pertaining to the commando order are summarized in the Judgment of the International Military Tribunal.
Vol. I, Trial of the Major War Criminals, p. 328.
stroyed after reading.
There is ample evidence showing general compliance with this order, as was found by the International Military Tribunal which stated in its judgment:
Under the provisions of this order, Allied commando troops, and other military units operating independently, lost their lives in Norway, France, Czechoslovakia, and Italy. Many of them were killed on the spot, and in no case were those who were executed later in camps ever given a trial of any kind. For example, an American Military mission Which landed behind the German front in the Balkans in January 1945, numbering about twelve to fifteen men and wearing uniform, were taken to Mauthausen under the authority of this order, and according to tho affidavit of Adolf Zutte, the adjutant of the Mauthausen concentration camp, all of them were shot.
Secondly, Commissars:
Whereas the commando order Was especially designed for and executed in western, and later in southeastern, Europe, the commissar order was of principal importance on the Russian front. Unlike the commando order, it was not the result of, or issued in reply to, enemy action. On the contrary, it was issued and distributed nearly three weeks prior to the initial attack on the Soviet Union. Its words reflect, not the hurried decisions of men beleaguered, but the considered opinion of men who had pondered the conclusion sot forth.
The order was issued on 8 July 1941 by von Brauchitsch, as Commander-in-chief of the Army. That the authors were aware of the criminal character of its contents, is apparent from the restricted distribution instructions which it bore. It was "For General officers only. To be delivered through officers only.....You are requested to limit the distribution to Commanders-in-Chief of Armies or Air Forces, respectively, and to inform junior commanders by word of mouth". It provided, in part:
When fighting Bolshevism, one cannot count on the enemy acting in accordance with the principles of humanity or international law. In particular, it must be expected that tho treatment of cur prisoners by the political commissars of all types who are the true pillars of resistance, will be cruel, inhuman and dictated by hate.
The German troops must realize:
1. That in this fight, it is wrong to treat such elements 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.
2. That the originators of the Asiatic barbaric methods of fighting are the political commissars. They must be dealt with promptly and with the utmost severity.
Therefore , if taken while fighting, they are offering resistance and they must, on principle, be shot immediately.....
....These commissars will not be recognized as soldiers; protection granted to prisoners--of-war in accordance with international law will not apply to them. After having been segregated, they are to be dealt with.
When the defendant Weichs received this order as Commander-inChief of the Second Army, he was not in combat but in the quiet of a then secure Germany. His army had just been withdrawn from the southeast, and he had returned to Germany; his army was in reserve and was not committed in actual combat until July on the eastern front. Weichs distributed the order to the subordinate commanders in his Army, and they in turn passed it down to the troops. The prosecution will introduce evidence showing that others among the defendants also distributed and executed this order.
The Second Army had been in the front line in Russia but a few days when reports began to come in to Weichs' headquarters, showing that the order had been carried out. Indeed, Weichs' headquarters appeared to have been especially interested in the effect which this order was having in actual combat; on 9 September 1941, his Chief of Staff advised the next higher headquarters (Army Group Center) that the commissars were fighting tenaciously and setting a courageous example for the Soviet troops. He further stated, that there was no evidence that the Soviet forces were taking any measures by way of reprisal.
Typical, reports from the corps commanders in the Second Army to Weichs Headquarters read as follows:
Up to 25 July, 3 commissars eliminated by the 293rd Division.
From 25 to 27 July, 4 commissars eliminated.
This order, like the commando order, called for the deliberate murder of prisoners-of-war. One's private feelings about political commissars, favorable or unfavorable, have absolutely nothing to do with the case. They were regularly attached to Soviet units, they fought in full Soviet uniform, and, as the documents show, they fought with great courage.
Your Honor, would this be a convenient time for a break? The prosecution has perhaps another hour and ten minutes.
THE PRESIDENT: I guess we'd better proceed for about a half hour.
GENERAL TAYLOR: Before concluding. Your Honor, I made the suggestion to inquire whether the translators still have enough German pages left to continue.
************ Mr. Frank advised me they have only five pages they have translated, and with a break of ten minutes we probably would be able to get the rest of the German up here so that we will be able to go through without a break.
THE PRESIDENT: The court will recess for ten minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: General Taylor, before you continue with your opening statement, may I inquire -- I started to say before you conclude your opening statement, may I inquire as to whether or not you will be able to conclude this afternoon and give us time for the submission of these motions?
GENERAL TAYLOR: Yes, Your Honor, we will be finished before four o' clock?
THE PRESIDENT: Very well.
GENERAL TAYLOR: I would like to explain, Your Honor -- that the responsibility for the delay in translation is mine and not the interpreters. I did not give them this material until very late yesterday, and they have done very well to get it ready by now.
Before concluding, the prosecution wishes to outline its views on certain legal questions which are sure to be discussed in the course of this trial. No doubt the Tribunal may desire a fuller discussion of these matters at a later date, but we think that a few remarks at this time may be of assistance.
Certain points may be passed over briefly, The defendants may contend, for example, that the crimes charged against them were committed under the compulsion of orders from their military superiors. As has been stated, their own military law is to the contrary. Paragraph 7 of the German Military Penal Code is quite clear and states:
If execution of an order given in line of cuty violates a statute of the penal code, the superior giving that order alone is held responsible for it. The subordinate obeying that order, however, is liable to punishment as an accessory in the event...that he was aware that the order involved an act the commission of which constituted a common or a military crime or offense.
In any event, the London Charter and Control Council Law No. 10 are governing. Paragraph 4 (b) of Article II of Law No. 10 states:
The fact that any person acted pursuant to the order of his Government or of a superiod does not free him from responsibility for a crime, but may be considered in mitigation.
So far as the plea of mitigation is concerned, should any of the defendants succeed in bringing themselves within the scope of this provision, the prosecution will suggest that it has little , if any, application to persons holding the high military rank of these defendants. There may be room for application of this provision in the lower ranks of the military, but if it is to be applied to fieldmarshals and generals, the whole doctrine of responsibility for the commission of war crimes would be absurdly limited and rendered totally ineffective. And, as the International Military Tribunal declared in finding Keitel and Jodl guilty.1 Superior orders, even to a soldier, cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly, and without military excuse or justification.
But there are a few legal matters which have a more substantial bearing on this case. These include the principles of international law and the qualifications of belligerents. We do not believe that these principles will have any decisive bearing on the outcome of this proceeding; no doubt there are many delicate and unsettled questions pertaining to hostages and belligerents, but the defendants so frequently, so deliberately, and so far transgressed the outer-most boundaries of what might be justified or defended as not unlawful, that in the final analysis no such difficult problems will confront us.
I shall deal first with Hostages and Reprisals:
The concepts of "hostage" and "reprisal" both derive from relations between nations, or between their opposing armed forces, and not from the relations between a nation or its armed forces on the one hand and the civilian population of an occupied territory on the other. This circumstance is not infrequently overlooked, and perhaps accounts for the lack of precision in much of the writing on these subjects. In war time, reprisals are actions taken by a nation or its agents in order 1. Vol.
1, Trial of the Major War Criminals, pp. 291, 325.
to prevent an enemy from continuing to violate the laws of war. Thus, if on one side, hospital ships are constantly being attacked, or the protective symbol of the Red Cross ignored, the other side in entitled to take action by way of reprisal in order to dissuade the enemy from continuing his lawful course of conduct. Retaliatory action so taken may include actions which would themselves be violations of the laws of war but for the circumstance that the acts were done as legitimate reprisals. Reprisal actions need not be identical with the unlawful act which gave rise to the reprisals, but they should not in quantity or character, be out of keeping with or disproportionate to the enemy actions which they seek to stop. Reprisals may, in some circumstances, be taken against a civilian population of an enemy country. For instance, if two belligerents are each occupying a portion of the other's territory, and one of them mistreats the inhabitants in a manner not permitted by international law, the other belligerent might take similar action in the territory under its occupational control. But in such a case, the penalties would be inflicted upon the civilians of the enemy country for the purpose of persuading the enemy government to discontinue an unlawful course of action, and not for the purpose of punishing the civilian inhabitants themselves. Indeed it is basic to the law of reprisals that although they are in a sense retaliatory, their purpose is not revenge but correction of the enemy's behavior.1 The practice of taking or exchanging hostages is very ancient; its original purpose was to insure the performance on both sides of treaties or agreements mutually entered into.
The hostages were in the nature of a pledge offered to guarantee a certain course of behavior. In more recent time, hostages have been taken not only to 1. Oppenheim, International Law, Vol.
2, pp. 51-52 (1920).
secure the performance of treaties, but also to enforce the payment of requisitions, to protect or secure the return of individuals held by the enemy, and for other like purposes. It swill be observed that, at bottom, the purpose of taking hostages is to out oneself in a position where reprisals can be taken if the enemy (or, in time of peace, the other party to the agreement) does not follow a lawful or an agreed upon course of action. It is for this reason that a distinguished author in the field of international law has said "the whole question of hostages is bound up with the question of reprisals."1 1. J. M. Spaight, War Rights on Land, p. 469 (1911). Beginning with the France-Purssian war of 1870-71, and probably before that, it has frequently occurred that hostages are taken from the civilian population of an occupied territory, not in order to affect the course of conduct of the government to which these civilians owe allegiance, but in order to control the conduct to conduct of the civilian inhabitants themselves.
This practice has been most frequently adopted by the Germans, for no other reason than that during the last eighty years, they have been most frequently in the situation of occupying the territory of a belligerent adversary. However, other nations have from time to time taken hostages for this purpose , most noticeably the British during the Boer War.
The practice of taking hostages from the civilian population of an occupied territory in order to insure the peaceful behavior of the inhabitants has been much criticized,1 but is acknowledged as lawful by the great majority of text writers and, in the light of actual practice it certainly can not be considered as a war crime. But the taking of hostages for such a purpose is not, strictly speaking, a reprisal at all, because it is not " a measure which is especially aimed at the enemy's method of waging war and which aims to force the enemy government or armed forces to abandon measures which are contrary to the laws of war." 2 Although frequently called a reprisal, such a taking of hostages is really a "police" or "security" measure. There is no opposing government or Military Commander with whom the occupying 1. Hyde, International Law, Vol.
3, pp. 1902-03 (1945); "While the taking of hostages by the occupant may, under certain circumstances, operate as a reasonable mode of securing compliance by a restive population with a just demand designed to promote the maintenance of order, occurrences in the course of World War 1 encourage the conclusion that it is also a weapon likely to be employed by a despot to check interference of any sort with ruthless and cruel acts inspired by caprice."
2. Ascan Lutteroth, Der Geisel im Rechtsleben, p. 243 (1922).
power can deal on belligerent terms. From both a military and legal standpoint, the taking of hostages or any other kind of oppressive action for the purpose of maintaining order in occupied territories must be considered from the standpoint of the right and responsibilities of the inhabitants under international law, and the probably effect of the measure upon their course of conduct . Steps which might be quite effective in order to persuade an enemy government to alter its course of conduct might be quite ineffective when addressed to the inhabitants of an occupied territory, and vice versa.
As Professor Lauterpacht, Professor of International Law at Cambridge University and a scholar who is both distinguished and modern, has pointed out:1 .....the impact of the operation of reprisals is not as considerable as would appear at first sight.
In particular, it does not seriously affect that most potent source of war crimes which originates in the lawlessness and the brutality of the occupying State.
This brings us to the question whether, if hostages are taken to insure peaceful and orderly behavior on the part of the civilian population of an occupied territory, the hostages may lawfully be executed if violent conduct by members of the population continues to endanger the security of the occupying forces. The Hague regulations of 1907 do not contain any express provisions concerning either the taking or the execution of hostages in occupied territory. They do provide, however, in Articles 43 and 46, respectively, of the Annex to the Convention, that:
The authority of the ligitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented the laws in force in the country.
Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.
And, if these quoted provisions are not governing, we must take full account of the declaration in the preamble to the Hague Convention, that:
1. H. Lauterpacht, The Law of Nations and the Punishment of War Crimes, printed in "the British Year Book of International Law", p. 77 (1944) It has not, however, been found possible at present to concert Regulations covering all the circumstances which arise in practice:
On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.
The majority of the text writers in the field of international law, ancient and modern, have determined, either from the unwritten usages of war, or by clear implication from the language of the Hague Convention, that the killing of hostages, under the circumstances and for the purposes with which we are here concerned, is unlawful, and that the continued confinement of hostages in as far as the occupying power is permitted to go. For example, Oppenheim sanctions the taking of hostages by the occupying power only "provided that he does not kill them."1 The classical statement by Crotius that "hostages should not be put to death unless they have themselves done wrong"2 is in accordance with the views of other old authorities and has been echoed in more recent times not only by Oppenheim but by Garner3 1. Oppenheim, op.
cit. supra, Vol, 2, pp. 241-242.
2. Crotius, De Jure Belli Ac Pacis, Ch. XI, Art. XVIII, Sec. 1.
3. J.W. Garner, International Law and the World War, Vol. 1, pp. 306311 (1920) and others,4 As might be expected, in view of the German propensity for occupying the territory of neighboring countries, and the sustained practice of the German Army in recent decades, German scholars take the contrary view, and defend the execution of hostages as a necessary measure in the event of continued civil disturbances, dangerous to the security of the occupying forces.
5 A few English and American writers have expressed agreement with, this view and argue, theoretically rather than practically, that there is a fundamental absurdity in taking hostages if they can not be executed.1 The military Field Manuals of the United States and England do not throw much light upon this problem.
The American manual states that "hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy forces or people may be punished or put to death if the unlawful acts are nevertheless committed," but in practically the same breath states that "when a hostage is accepted, he is treated as a prisoner of war," and that "reprisals against prisoners of war are expressly forbidden by the Geneva Convention of 1929".2 The British manual is not entirely clear either, but it contains the declaration that hostages are to suffer captivity, not death, if an agreement is violated.3 Despite these conflicting views in years gone by, the results of German practices with respect to hostages during the last two wars has led to more definitive declarations in accordance with the opinion 4. See, e.g., Arthur K. Kuhn, The Execution of Hostages, in "The American Journal of International Law", pp.
271-274, April 1942.
5. Waltzog, Recht der Landkriegsfuehrung, Art. 46, Par. III; Lutteroth, op. cit. supra, pp. 264-267, where, however, the author acknowledges that the majority view is to the contrary.
1. Hammer and Salvin, The Taking of Hostages in Theory and Practice, in "The American Journal of International Law", pp.20-33, January 1944.
2. Rules of Land Warfare, pp. 89-90, (1940).
3. English Manual of Military Law, par. 461.
which most authorities have always upheld. In January 1942, the representatives of nine European governments-in-exile, in the famous St. James Declaration, branded the execution of hostages as "part of a regime of terror" and categorically described such executions as punishable war crimes.4 The London Charter, in Article 6 (b), and Control Council Law No. 10 in paragraph 1 (b) of Article II, both recognize the "killing of hostages" as a war crime. The opinion bf the International Military Tribunal makes repeated reference to the killing of hostages as a war crime.5 The prosecution suggests to the Tribunal that the execution of hostages, under the circumstances pertinent to this case, is quite definitely and clearly a crime under international law.
The provisions of Law No. 10 are not only binding upon the Tribunal, but are in accordance with the views which most authorities in the field have held for decades past. But in urging the rightness of this conclusion, the prosecution does not rely principally upon the weight of authority, however impressive. On the contrary, our position is based squarely upon practical considerations of military necessity. The fundamental tenet of the laws of war, as we said at the outset, is that human life should not be taken unnecessarily. Over the past decades, only the Germans have adopted a general practice of executing civilian hostages in order to maintain security in occupied territories. Occasional examples in the military history of the other western nations may perhaps be found, but there is absolutely no footing, either in the authorities or in practical experience, for the conclusion that the execution of hostages is ever really necessary. And, if not, such executions are in flat contradiction of Article 46 of the Annex to the Hague Conventions.
4. See Kuhn, op. cit. supra, p. 274.
5. Judgment of the International Military Tribunal, Vol. I, Trial of the Major War Criminals, pp. 227-228, 234, and 290.