For I can see no advantage in treating those bands as criminals, and no reason why they should be so treated, although in strict law it could be done."
It cannot, therefore, be a war crime that the German commanders, by denying recognition as belligerents to the partisans, acted as the laws of war authorized them to act. The principle of military necessity is always paramount in war, and this principle compelled the German commanders, in a dangerous position, to take stringent action against the unlawful, i.e., unlawful also under international law, activity of the partisans in order to protect their troops against a population fighting them by treacherous and insidious methods, actuated as the German commanders were by a sense of responsibility in regard to the task assigned them within the scope of the German over-all direction of the war.
Whoever feels inclined to invoke arguments of humanity and chivalry ought to be reminded that partisan warfare must not be viewed as transfigured by the light of one's own war propaganda, but, as Rolin remarked so appropriately as early as 1875, "in its sordid and vulgar reality." One must not merely visualize the partisans executed as rebels and the burned-down houses from which members of the occupation forces were shot at but also the mutilated corpses of German soldiers murdered by snipers -- this was the way the partisan fighting started -- and the large number of victims claimed by a treacherous population, which filled the daily casualty reports of the troops. Unbiased observers have always repudiated guerilla fighting and partisan warfare. From the time that Professor Wheaton wrote:
"In modern warfare partisan and guerilla bands are "regarded as outlaws, and may be punished by a belligerent as robbers and murderers," the partisan problem has not changed except for the extent of partisan activity, which has increased on a gigantic scale, and the greater cruelty with which guerilla warfare was waged by the irregulars, especially during the last war.
The judgment on guerillas and partisans remains unchanged. In the most recent edition of Professor Hyde's book, dated 1945, a time when the partisan problem encountered in the war just ended could be surveyed and appraised in its full significance, we find the following statement:
"The law of nations apart from the Hague Regulations above noted, denies belligerent qualification to guerilla bands. Such forces wage a warfare which is irregular in point of origin and authority, of discipline, of purpose, and of procedure. They may be constituted at the back of a single individual; they lack uniforms; they are given to pillage and destruction; they take few prisoners and are hence disposed to show slight quarter. According to the late Dr. Lieber, they may be described as self-constituted sets of armed men, in times of war, who from no integrant part of the organized army, do not stand on the regular pay roll of the army, or are not paid at all, take up arms and lay them down at intervals, and carry on petty war (guerilla) chiefly by raids, extortion, destruction, and massacre, and who cannot encumber themselves with many prisoners, and will, therefore, generally give no quarter. They are peculiarly dangerous because they easily evade pursuit, and by laying down their arms become inviduous (sic, insidious?) enemies; because they cannot otherwise subsist than by rapine, and almost always degenerate into simple robbers and brigands."
The very people who admit only the patriotic motives which are so often invoked on behalf of the resistance forces, will have to concede that their opponent is, nonetheless, entitled to punish them as criminals. That has been quite explicitly stated in Oppenheim-Lauterpacht.
The British prosecutor in the trial of Field Marshal Kesselring, Colonel Halse, took the same view in his Opening Statement:
"There are some war crimes which are only crimes in respect of one side. The partisans, for instance, (and I say it quite openly) by attacking the German forces in rear were guilty of a crime against the German law; I say intentionally against the German law. So far as the Italian and Allied Law was concerned they were heroes, they did commit a war crime and if they were captured by the Germans, the Germans were undoubtedly entitled to try them for committing a war crime, and if found guilty of committing that war crime the Germans were entitled to sentence them to death."
Now this brings me to the second main problem of the trial, the problem of hostages. In my opening statement, I already expounded this problem in some detail, and I believe that in many respects I may now refer to my previous exposition.
The defense contends that, according to the Laws of War, the killing of human beings by way of reprisals is an admissible and even indispensable instrument of force, in certain circumstances, used in order to induce the opponent to refrain from violating the provisions of international law. The defense maintains that the killing of security hostages -- that is, the killing of persons taken or detained for the avowed purpose of their being subjected to such reprisals in the event of actions contravening international law being committed by the enemy troops or enemy civilian population -- is not precluded in such cases.
The defense further asserts that the killing of security hostages, explicitly permitted by the U.S. Rules of Land Warfare, as far as it complies with the conditions warranting a reprisal measure, is not covered by the definition of war crimes as laid down by Article 6 (b) of the London Charter and Article II, 1 (b) of Allied Control Council Law No. 10.
It has been emphasized in the judgment of the International Military Tribunal that the Charter reflects and is the expression of international law as it existed at the time of the drawing up of the Charter.
This is as clearly stated in Article 6 (b) of the Charter as in Article II, 1 (b) of Allied Control Council Law No. 10.
The prosecution in the present trial has also stated that both provisions represented an exact codification of pre-existing international law. Both provisions define war crimes as "violations of the laws and customs of war," the inference being that they were not intended to identify any actions as war crimes which had not heretofore been regarded as such.
The London Charter and Allied Control Council Law No. 10, then, refer, with respect to war crimes, to the laws and customs of war as they existed before the promulgation of these provisions.
Even if the reference to the laws of war as practiced heretofore had not been as unequivocal as it in fact is, so that there remained any doubts as to whether Article 6 (b) of the Charter and Article II, 1 (b) of the Control Council Law merely referred to pre-existing laws and customs of war or whether they were intended to provide a new definition of war crimes, such doubts would have to be resolved along the lines of the first alternative.
For the Charter was drawn up "in the exercise of the sovereign power of legislation vested in those countries to which Germany had unconditionally surrendered," This is particularly true with respect to Control Council Law No. 10. But in the United States as well as in Great Britain according to the principle which holds true for the application of domestic legislation with regard to international law it may be assumed in dubious cases that it has not been intended to overrule international law.
Therefore, the summary interpretation of Article 6b of the London Statutes and of Articles II, 1 (b) of Control Council Law No. 10, according to which killing of hostages is supposed to be a war crime, ought to be supplemented - and that is tacitly understood - by pointing out that killing hostages is a war crime only to the extent to which it constituted such according to martial law as has been in force until now. This summary interpretation which is expressed so generally, is just as incorrect and means just as little as the famous phrase of Vattel:
"The very liberty of the hostages is at stake."
Both statements are correct only in those cases in which hostages are killed as punishment for not fulfilling an obligation; they do not concern the killing of hostages from the point of view of reprisals.
The definition which the International Military Tribunal has given with regard to Article 6 (b) of the Charter confirms that above regulation does not prejudge the problem of reprisals.
"Inasmuch as war crimes are concerned, International Law, as has been pointed out before, has recognized the crimes designated in Article 6, Section (b), of the Charter as war crimes. Articles 46, 50, 52, and 46 of the Hague Convention of 1907 and Articles 2, 3, 4, 46, and 51 of the Geneva Convention of 1929 refer to them. It has been so generally accepted that violations of these regulations constitute crimes for which the guilty persons are liable to punishment that there cannot be any further discussion with regard to that issue."
Thus in the opinion of the International Military Tribunal the actions designated in Article 16 constitute war crimes because they entail violations of the Hague Regulations. It is, however, known that the very essence of reprisal measures, inasfar as they are permissible according to the laws of war, is that a violation of international law is answered by the opposing party with an action which in itself also constitutes a deviation from the laws of war and the purpose of which is to compel the opponent to act in a lawful manner. Since also Article 50 of the Hague Regulations does not forbid reprisals - I shall discuss that later - this leads us to the conclusion that such actions which are carried out under such conditions as warrant reprisals according to international law have to be expected from the definition of war crimes as given in the London Charter and in the Control Council Law.
This is the second reason why in these proceedings, inasmuch as they concern the hostage problem, all that matters in the state of international law as it was when the charter was issued.
There has always been much written against the killing of hostages.
If we analyze their reasons we find that those authors who declared themselves opposed to the killing of hostages mistook their own ideas of justice, humanity, and morality, for the generally accepted rules of warfare - I am using an expression by Professor Oppenheim - just as frequently as they were influenced by the misconception that Article 50 of the Hague Regulations for land warfare referred to the problem of reprisals and hostages. Their point of view can in the main be identified with President Roosevelt's statement of 25 October 1941 that "the civilized nations have long accepted the fundamental principle that nobody was to be punished for the action of another."
This attitude can be readily understood from the point of view humanitarian principles, but it is also quite certain that it is incorrect from the point of view of the laws of war. Thus, also, the two authors, Hammer and Salvin content that President Roosevelt's statement is misleading.
The humanitarian motives in favor of the view that hostages should not be killed will have to be acknowledged by everyone. It is indeed a terrible thing to make people suffer for the action of others, but it is just that which constitutes the coercive force of reprisal measures.
"Reprisals are an extreme measure because in most cases they inflict suffering upon innocent persons. In this, however, their coercive force exists, and they are indispensible as a last resource." states paragraph 454 of the British Manual of Military Law.
It is also a terrible thing to kill innocent civilians, old men, women, and children by mean of bombs and burning phosphorus and yet we have lived to see such measures ordered and carried out to a very large extent.
The first and foremost principle in war is military necessity which has been expressed by Professor Oppenheim as follows:
"Victory is necessary in order to overpower an enemy, and it is this necessity which justifies all the indiscribable horrors of war, the enormous sacrifice of human life and health and the unavoidable destruction of property and devastation of territory. Apart from restrictions imposed by the Law of Nations upon belligerents, all kinds and all degrees of force may be, and eventually must be, used in war in order that its purpose may be achieved in spite of their cruelty and the utter misery they entail. As war is a struggle for existence between States, no amount of individual suffering and misery can be regarded; the national existence and independence of the struggling State is a higher consideration than any individual well-being."
If one reads what authors on international law have written about the problem of hostages, one finds that French scientists, above all, have expressed themselves in the most passionate and eloquent manner against the killing of hostages and, as a matter of principle, against the taking of hostages generally - that is, the scientists of that Nation, a commander of which, General Leclarc in the course of this war ordered his troops to shoot hostages at the ratio of 1 to 5. And if one further realizes that at the beginning of the last 85 years, a period of time which has been of decisive importance for the development of modern laws of war, we have the regulation contained in Article 58 of the American Instructions of 1863, to the effect that death will be the reward if the enemy should enslave prisoners of war, and that at the end of above mentioned period of time we find the threat which has been circulated within the American Armed Forces that punishment is to be meted out at a ratio of one to 200, then, in my opinion, one has to admit that those authors cannot be considered competent authorities in matters of martial law, insofar as it concerns the hostage problem.
There is no agreement regulating this matter. The problem of reprisal matters and of hostages has not been regulated in the Hague Convention of 1899 and 1907, and before that the powers represented at the Brussels Conference of 1874 had to desist from a regulation of this problem by agreement, owing to the difficulties involved in arriving at such an agreement. In Commission No. 2, which was dealing with the laws of land warfare, it was expressly stated that Article 50 of the Hague Regulations did not prejudge the problem of reprisals - "sans rien prejuger quant aux repressailles", as. Professor Rolin, the referent of the Commission, remarked in his report to the plenary assembly of the Hague Peace Conference. That has been pointed out expressly in the British Manual of Military Law as well as in the commentary by Oppenheim-Lauterpacht and has also been expressed already by Professor Holland in his book Laws and Customs of War on Land which was published at the behest of the British War Office in 1904.
Since the problem of security hostages is included in the problem of reprisals of which it is a part, one cannot, of course, say that Article 46 of the Hague Regulations for land warfare excludes the execution of security hostages. Because it is the very nature of a reprisal measure that a belligerent may, in its execution, deviate from the rules of martial law which, in other cases, are binding.
Thus this problem has remained a matter of martial usage. As I have said before, a great number of authors cannot be regarded as reliable authorities since they are so obviously prejudiced with regard to this problem. They are prejudiced to such an extent that many of them consider even the taking of hostages as contrary to international law, an attitude, which, in view of the actually existing usage, cannot be incorrect. One, therefore, has to reply entirely on the practices of the belligerents, on the measures, orders, and statements of their commanders, as well as on military manuals if one wants to establish martial usage with regard to the problem whether or not human beings, and that includes security hostages, may be killed by way of reprisals.
The American instruction of 1863, which have had the utmost influence on the development of modern laws of war, regulated reprisals in Articles 27, 28 and 58. They stated that reprisals are an absolutely necessary means of protection against crime committed by the opposing party.
Death was ordered to be the retaliation for the enslavement of prisoners of war.
On 30 July 1863, President Lincoln threatened to have prisoners of war executed in reprisal for the killing of negroes.
General Sherman ordered 54 prisoners of war to be executed in reprisal for the killing of 27 of his soldiers whose bodies had been found bearing the inscription "Death to the Looters."
During the Russian-Turkish War of 1877, the Russian commander of Thesalonica ordered the inhabitants of houses, from which shots had been fired at the Russian troops, to be hanged from the doors of their houses.
It is well known that the Germans threatened to shoot hostages in France during the Franco-Prussian War of 1870/71, and that they carried out such shootings in Belgium in the course of the first World War as reprisal for the participation of the civilian population in the fighting, a participation which was contrary to international law.
But those cases do not constitute cases of precedent to which the defendants could suitably point.
It has, however, been shown that the enemies of Germany seized security hostages and had them killed if they thought it necessary to protect their troops in enemy territory against illegal acts of the civilian population.
At the end of 1918 the Belgian commanders requested and obtained hostages in the occupied towns of the Rhineland who were to vouch with their lives for the security of the occupation troops.
Above all, orders were issued in the course of the last war after the Allied armies had occupied German territory which has been the case ever since 1944, and executions of hostages have been carried out which prove that such reprisal measures are also, in the opinion of the Allies, permissible according to international law.
The Defense has proved the following cases:
1. The French Commander, General LeClerc, threatened to have Germans shot as hostages at the ratio of 5 to 1 for every French soldier who was killed in Strassbourg by civilians.
2. The French General DeLatre de Tassigny threatened in Stuttgart, to have German hostages shot at the ratio of 25 to 1 in the case that French soldiers were killed in the occupation town.
3. At Birkenfeldt the French forces threatened to shoot people at the ratio of 10 to 1.4. At Reutlingen, French troops shot hostages at the ratio of 4 to 1.5. At Markdorf, he stages were threatened with shooting at the ratio of 30 to 1; the executions were carried out at a ratio of 4 to 1.6. The Russian occupation authorities had the threat Published in Berlin that hostages should be shot at the ratio of 50 to 1.7. The American Armed Forces in the Harz publicly threatened reprisal executions at a ratio of 200 to 1.I have already in my opening statement, dealt with the very important regulations regarding reprisal measures and hostages which are contained in the military manuals of the United States and of Great Britain.
The British Military Manual loaves open the question whether or not people may be killed by way of reprisal. The Manual leaves it to the violated party to decide which measures it considers necessary in order to insure that the reprisal measure will fulfill its function as a means of compulsion.
In Professor SPAIGHT's fundamental work regarding the laws of land warfare he answers the question whether or not people may be killed by way of reprisal in the affirmative.
".... and the right to inflict reprisals - to retaliate must entail the right to execute in very extreme cases. Otherwise there would be no effective means of checking the enemies worst excesses."
A reserved but very important statement was made during the proceedings against Field Marshal Kesselring before the British Military Tribunal at Venice by the Deputy Judge Advocate General of the British Army in his summing up.
"However, I have come to the conclusion that there is nothing which makes it absolutely clear that in no circumstances - and especially in the circumstances which I think are agreed in this case - that an innocent person properly taken for the purpose of a reprisal cannot be executed."
Not one word about Article 6 (b) of the London Charter or Article II, 1 (b) of Central Council Law No. 10!
The rules of land warfare of the United States, expressly admit that hostages may be killed in reprisal.
The definition which appears in them with regard to reprisals and hostages in many respects concurs with that given in the British Manual. Paragraph 358, which deals with reprisal measures, does, however, contain the following extremely important regulation as well.
"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."
The two legal concepts of reprisals and hostages have sprang from different roots and have developed separately for some time; recently, however, when war reprisals has also become a legal concept, they have been integrated in the concept of security hostages.
I was of the opinion that, with regard to this problem, I was not only in agreement with paragraph 358 of the United States Rules of Land Warfare, but also with the prosecution which had in its opening statement stressed the close connection between security hostages and reprisals:
"It is to be observed that, in principle, the purpose of taking hostages is to be in a position in which one can apply reprisal measures should the enemy (or, in peacetime, the other party to an agreement) engage in an unlawful type of activity or in an activity which is not in accordance with the agreement.
That is the reason why an imminent author on international law says: "The entire hostage problem is intricately connected with the problem of reprisals."
From the legal memorandum of 19 November 1947 I see, however, that the prosecution has in the meantime given up its former point of view. In spite of that I do believe that no other view of this problem is possible than one which is in agreement with Article 358 d of United States Rules of Land Warfare.
Also Professor Glueck, whose book War Crimes, their Prosecution and Punishment apparently supplied the theoretical basis for the policy which the Allied Powers have followed after this war with regard to the prosecution of war crimes, is fundamentally of the opinion that the execution of hostages by way of reprisals is permissible. For, at one point, he writes that the Germans are supposed to have killed many hostages for flimsy reasons, "and not by way of legitimate reprisals for illegal acts."
Thu view has been expressed that there is a contradiction between paragraph 358 d and paragraph 359 of the American Military Manual because the former regulation permits reprisal actions against security hostages as well as that such may be killed, whereas paragraph 359 states that people who have been taken as hostages are to be treated as prisoners of war - against whom reprisal measures must not be used. That has been pointed out, e.g. by the two authors Hammer and Salvin, although these authors in particular consider that it is permissible to kill hostages if necessary.
I have explained already in my opening statement that there is not any contradiction whatsoever between those two regulations. One only has to realize that there is, in this respect, a very important difference between security hostages, on one hand that is, persons who are seized for the purpose of being subjected to reprisal measures if necessary, and on the other hand, hostages, in the traditional sense of the word, who generally must not be subjected to reprisal actions since they are on the same status as prisoners of war.
That is also the opinion of Professor Hyde. I should like to submit those passages which I found in the last edition of Volume III of his book International Law, Chiefly as Interpreted and Applied by the United States which appeared in 1945, insofar as they concern this topic because in them the military situation in which a commander of armed forces can find himself in the occupied territory of a hostile population is taken into account in a very realistic manner:
PRESIDING JUDGE CARTER: It is quite evident you couldn't have time to complete the quote and this is an opportune time to stop. The Tribunal will recess until 1:15. We are asking all court officials to be here at that time for some preliminary matters that have been agreed upon. Everyone will report back at 1:15 and we will appreciate it very much.
(A recess was taken until 1315 hours.)
AFTERNOON SESSION (The hearing reconvened at 1345 hours, 4 February 1948)
THE MARSHAL: The court is again in session.
PRESIDING JUDGE CARTER: You may proceed.
DR. LATERNSER: May it please the Tribunal, I had just discussed the relation of the conditions 358d and 359 of American rules of land warfare. I shall now continue with page 103 at the top:
I have explained already in my Opening Statement that there is not any contradiction whatsoever between those two regulations. One only has to realize that there is, in this respect, a very important difference between security hostages, on one hand that is, persons who are seized expressly for the purpose of being subjected to reprisal measures if necessary, and on the other hand, hostages, in the traditional sense of the word, who generally must not be subjected to reprisal actions since they are on the same status as prisoners of war.
That is also the opinion of Professor Hyde. I should like to submit those passages which I found in the last edition of Volume III of his book International Law, Chiefly as Interpreted and Applied by the United States which appeared in 1945, insofar as they concern this topic because in them the military situation in which a commander of armed forces can find himself in the occupied territory of a hostile population is taken into account in a very realistic manner:
"After announcing that the offending forces or populations generally may be lawfully subjected to appropriate reprisals, the War Department Rules of Land Warfare of 1940 state 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. It is added that reprisals against prisoners of war are expressly forbidden by the Geneva Convention of 1929 (No. 358d). Again, it is added in a later section that "when a hostage is accepted he is treated as a prisoner of war" (No. 359). Possibly it is thought to be laid down that hostages taken for the special purpose announced are not to be treated as prisoners of war"1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Hyde, loco citato, par. 700 page 1903.
9797-9798 "In the War Department Rules of Land Warfare of 1940, the matter of retaliation is dealt with under the topic of 'Reprisals'. In this connection is said:
...The foregoing statement illustrates the breadth of the latitude which the military arm of the US deems to be the possession of a belligerent when obliged to defend itself against the lawless acts of the enemy. The statement refers to more than retaliating conduct as such; it explores the field roughly and loosely described as that of 'Reprisals'. It points to conditions under which the armies of US may be expected to regard themselves free to commit acts that are normally prescribed as internationally illegal, and under circumstances when they are not of strict retaliating aspect.
The statement cited may convince the reader - as it does not the author - that if war ensues to which the US is a party, there may at times be anticipated violations by its enemies for rules of Land Warfare supposedly declaratory of international law, as against which American forces may be obliged to protect themselves as best they may."
The hostage orders of the occupation powers in Germany which have been submitted in these proceedings by the defense prove that the views regarding the latitude which, according to Article 358d, is allowed by way of protection against actions of the opposing party which are contrary to international law, concur with above opinion of Professor Hyde. These orders are based on the fact that in war military necessity is the highest principle and that it allows for every necessary application of power inasfar as there are no hard and fast rules of martial law which obviate this. They have been issued in recognition of the fact that there is one basic principle which governs the otherwise rather uncertain sphere or reprisals; that is, that reprisals are a permissible means of coercion - which means that a certain amount of pressure must always be applied for the objective of the reprisals to be reached which is to compel the enemy to act in a lawful manner.
Ever since the Russian draft for the Brussels Conference took up the problem of reprisals, it has been tried to impose some limitations on reprisals, particularly with regard to their extent in relation to the gravity of the preceding violation of international law perpetrated by the opposing party. It can be understood that these regulations could not become fixed rules inasfar as they were at odds with the purpose of reprisal measure; that is, to be effective means of coercion.
The ratios which appear in the Allied orders prove that the regulation of the United States Military Manual according to which reprisals must not exceed the extent of violence committed by the enemy does not constitute a fixed rule of partial law. All cases of precedent starting with Article 57 of the American Instructions of 1863 which threatened the death penalty in retaliation for reinslavement, go rather to show that belligerents have in fact always placed the purpose of the reprisal action, that is, that it should be an effective means of coercion -- above that theoretical postulation regarding the proportions of reprisal measures.
In practice we never find a ratio of 1 to 10 being applied. Naturally, the reprisal measure must hot be excessive: that is, it must not exceed what is necessary. This limitation follows from the general principle of humanity which limits application of power to the necessary extent. The verdict whether or not one is dealing with a military necessity and what is its extent depends on conditions, whatever they may be, and is ordinarily the concern of the military commander who has to make a decision, as has been stressed by Professor Hyde:
"If the term military necessity implies great latitude, and is invoked by way of excuse in justification of harsh measures, it is because the law of nations itself permits recourse thereto in case of great need, and allows a belligerent commander to be the judge of the existence and sufficiency of the need."
As far as the carrying out of reprisal and hostage measures is concerned, there is, of course a great difference if there occur occasional attacks which are locally limited against members of an occupation army, such as used to be the case in former times, or, if after the pacification of a country, increasing resistance threatens in the occupied territory. If irregular partisan bands form, the very existence of which is contrary to international law, this is sufficient justification for the occupying power to take the most stringent reprisals and repressive measures. If raids, attacks on installations of the occupation power, and murdering of members of the occupation forces increase to such an extent that they effect the very existence of the particular belligerent, then no responsible commander will be able, in such a situation, to avoid taking all, even the most stringent measures, in order to suppress such crimes.