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.
Such was the situation which the German commanders faced in Jugoslavia and Greece, but never has such a situation been faced by a commander of the opposing parties.
The German people did not obey the appeal of their government to form the "Werewolf", and nevertheless the fear that such illegal forces of resistance might become active was sufficient to evoke a threat that punishment should be meted out at a ratio of 1 to 200 and very minor reasons led to the killing of German hostages at a ratio of 1 to 4, as has been the case at Markdorf and Reutlingen. The fact that the American Army did not face a situation in which it would have had to carry out executions of hostages, since the German civilian population did not participate in the fighting, does not prove that such measures are inadmissible on principle. The threats which were issued in accordance with Article 358d of the American Military Manual prove the opposite. Nor can in this connection the general indignation evinced by the killing of two British soldiers by the Irgun followers be cited. This action occurred in retaliation for the execution of two Irgun followers who had been sentenced to death by a court, and therefore was undoubtedly not a permissible reprisal measure.
In my Opening Statement I stressed the somewhat unusual conditions in the Balkans which are the result of the geographical and ethnic situation there.
An Allied commander at no time had to face a situation such as the defendants had to cope with in Jugoslavia and in Greece, and at no time have soldiers of the Allied forces had to deal with enemy who fought so cunningly. Field Marshal List was asked on cross examination whether he believed that the people of the Balkans were in anyway different from those in the Western nations, whether for instance they were more cruel.
I should like to supplement the answer he gave then by quoting from the introduction to a book written by an expert on the Balkans, Miss Edith Durhan, an English woman. The book is called The Slav Danger, 20 Years of Balkan Memories, and, I quote:
"The reader enters an almost unknown new country, which often appears to us as a remainder of medieval days, inhabited by passionate and violent people . . . . . . conspiracies, fanatism, intrigues, lust for power, and above all, blood....."1) The population of the Balkans has achieved a way of living which is entirely different from that of the actual European cultural area; their passions are different, so are their impetuosity, their stubborness, and cruelty.
There have always been there, and there particularly, all sorts of illegal fighters, from the common robber to the vendettist son and grandson, from the religious fanatic to the band leader and all sorts of underground movement.
90 years ago the British report about the march of the Turks who had been atrociously mutilated by the Montenegrans after the battle of Grahevo and who were on their way home, near Korfu, startled all of Europe in stark horror.
35 years ago, yet another report was taken notice of everywhere. At that time, 1913, after the war in the Balkans, the Carnegie Endowment for International Peace sent a mixed commission for the investigation of war atrocities to the Balkans. The report of the commission shows through a glance at merely the table of contents such words as "Extermination.
................
The Massacre of Donate.......
The Massacre and Conflagration of Serres" On Page 79 and the following pages of this report we find pictures of destructions and massacres in Macedonia, Turks, Serbs, and Greeks had a share in them, partly also Bulgarians.
Pages 96 and 98 show Greek propaganda prints. In glaring colors one of these prints shows a Greek Evzone, a soldier of the guards.(*), who is about to overpower a Bulgarian and bite his face; the other print shows an Evzone, who in the middle of a battlefield, while the battle is raging, is putting out the eyes of a Bulgarian, with blood pouring down! The International Carnegie Commission put on record, amongst others, the following statements of Greek soldiers, showing the effect of such advocated cruelty:
"These soldiers all state that they everywhere burned the Bulgarian villages. Two boast of the massacre of prisoners of war. One remarks that all the girls they met with were violated. Most the letters dwell on the slaughter of noncombatants, including women and children."
"Here we are burning the villages and killing the Bulgarians, both women and children."
'We picked out their eyes (five Bulgarian prisoners) while they were still alive."
"The letters relieve us of the task of summing of the evidence. From Kukush to the Bulgarian frontier the Greek army devastated the villages, violated the women and slaughtered the noncombatant men."
In the cruel destructions of those days the hatred of all against all found an outlet.
The Serbs have at all, times been regarded as cruel and malicious fighters, regardless of what good characteristics they might otherwise possess. Of their five kings of the last 80 years, three were murdered.
Miss Durhan describes in her Balkan memories events of 1912:
"From the occupied territory pitiful reports arrived about the atrocious cruelties committed by the Serbs as well as by Montenegrans against the Albanian populations, and the conquerers boasted of their brave deeds, instead of trying to withhold them. A Serbian officer almost choked with laughter over his glass of beer, when he related how his people in Ljuma bayonetted women and children."
The persecution's assertion concerning the extensive evidence of the defense about the Jugoslav and Greek atrocities, namely that this evidence does not become any more credible through constant repetition, can hardly be applied to the aforementioned reports.
The Balkans have been, unlike any other part of Europe, a source of explosive action, of latent unrest, of partisan fights. Jugoslavia and Greece threatened to degenerate into complete chaos when the explosive passion of the population was incited to fight against the German Occupation army.
The defendants as German Military Commanders had a twofold task in that particular situation: to protect their troops and to hold the Balkans, which the prosecution itself has called the Achilles' heel of the German front. For three years they carried out this task. They, however, had to use harsh means in order to counter all attempts at insurrection.
I have only very little to say now concerning the reprisal and hostage problem. Apart from the demand for ratios, which I have discussed previously, other rules have been laid in order to restrict the latitude of those parties which take reprisal measures. The American Professor Foulke calls all of them "merely an expression of opinion and of little practical value.
Restrictions for the carrying out of reprisal measures can only exist in accordance with their nature as coercive means in connection with the principle of military necessity.
Why should it be necessary under conditions prevailing in Jugoslavia and in Greece to inform the partisans of the names, addresses, etc., of those persons kept as security hostages, when the forces of resistance were informed by announcements and posters concerning the fact that hostages or so-called "reprisal prisoners" would be used as live pawns?
Paragraph 358d of the American Field Manual merely demands a statement that security hostages, where and when necessary, would be used in reprisal. The Manual which was available to the German Military Commanders for informational purposes, the semi-official commentary by Waltzog Rules of Land Warfare (1942) gave somewhat more detailed instructions in this particular:
"The hostages are detained in a sort of security custody. They guarantee with their lives the lawful conduct of the opponent. When taking hostages, it has to be announced, according to unwritten international law (common law), that hostages were arrested and for what purpose. Above all, the taking of hostages and the threat to kill them has to reach the knowledge of those parties, against the lawful conduct of which the hostages are a guarantee.
"If the very act occurs, for the prevention of which hostages were taken, and if the opponent continues his conduct in violation of international law, the hostages may be killed. The taking of hostages is therefore more than an action depriving a group of people of their liberty. It is beyond that a break with the principle of the respect for the life of the citizen, laid down in Article 46."
These demands have been complied with by the orders in question. I refer particularly to the order of Field Marshal List dated 4 October 1941 which orders the announcement of the fact, to all persons concerned, that the hostages' lives are at stake.
At times, a territorial connection between the hostages and the preceding action was demanded. However, no reasons can be given for such a demand, not even with Article 50 of the Hague Rules for Land Warfare, -as is being attempted occasionally -- because Article 50 does not refer to reprisal measures. From the nature of reprisal measures as coercive measures, a general principle results, which Professor Bonfils has formulated in the following way:
"Reprisals have to be such as not to fail to impress those who are the authors and instigators of the excess in question."
Territorial connection between hostages and perpetrators might have played a part in earlier days when acts of resistance and sabotage against the occupation forces mostly emanated from a limited circle of persons. However, it was of no importance, whatsoever, in Jugoslavia and Greece where the resistance activity emanated from forces which reached beyond all local frontiers. In such a situation only the spiritual connection between hostages and perpetrators could be taken into account, such as it becomes apparent from the membership in or support of the illegal resistance forces, or merely from the fact of a common national basis.
With reference to the authority for the ordering of reprisal measures, the following should be stated:
There existed a regulation in the German army to the effect that only a senior commander waste decide the fate of hostages -- as a rule a division commander. There is, however, no rule in the laws of war to this effect. This is expressly stated in the British Military Manual.
The German regulation was valid only for such length of time as the opponent adhered to it also. Since according to the American Rules of Land Warfare, a subordinate commander can order on his own responsibility proper reprisal measures, in urgent cases of military necessity, no conclusions can be drawn from the fact that German troop commanders have supposedly acted in the same way.
Two further forms of reprisal measures are at issue in this trial: the use of so-called preventative or security hostages, particularly for the protection of railway traffic, and the destruction of houses and localities as a means of reprisal.
The use of railway hostages was discussed at great length when the Germans in 1870/71 in France and the British during the South African war made use of this means. It is the achievement of Professor Hyde to have analyzed the principles of the problem in an objective manner, after Professor Oppenheim had stated that the use of railway hostages is permissible. The legality of the measures depends entirely on the status of the persons against whom they are directed. Professor Speight states:
"If, therefore, one confines one's remarks to a district in which there is no possibility of damage done to the line having been effected by the enemy's, raiding parties or in which such raiding parties could not achieve their purpose without the inhabitants assistance or connivance.......I held that no objection arises under the laws and customs of war to the carrying of hostages on trains."
Since in Jugoslavia and Greece -- as I have developed -- legal combatants of the enemy did not exist at all after the capitulation and every possibility of legal resistance was eliminated, the use of security hostages was a measure permissible under international law.
The considerations raised in Article 463 of the British Military Manual against their use, could not be of any practical significance under the conditions prevailing in Jugoslavia and Greece.
Where the destruction of enemy property, houses and localities is concerned, a difference will have to be made between measures which are necessary in connection with military operations and measures carried out from a reprisal aspect. The laws of war permit them in both instances.
In general, the Laws of War do permit the destruction of enemy property if warranted by Military necessity.
The history of war provides numerous instances in support of the thesis that viewed under this aspect, in guerilla fighting and in the event of insurrections, the systematic destruction of towns and villages is sanctioned as a legitimate resort calculated to deprive the resistance forces of their means of subsistence.
Professor Oppenheim states:
"But the fact that a general devastation can be lawful in case of a leve en masse on already occupied territory, when selfpreservation obliges a belligerent to resort to the most severe measures, must be admitted. It is also lawful, when after the defeat of his main forces and occupation of his territory, an enemy disperses his remaining forces into small bands which carry on guerilla tactics and receive food and information, so that there is not hope of ending the war except by general devastation which cuts off supplies of every kind from the guerilla bands."
During the Boer War, the British very largely availed themselves of such measures. The country was laid waste and wide as a means of cutting off the supplies of the Guerilla forces. At the same time the civilian population was interned in "'concentration camps' with the result of serious loss of life."
In this connection Professor Spaight states that Lord Kitchoner carried out this policy of devastation with a systematic thoroughness that seemed liked barbarity to some, but was amply warranted by the peculiar nature of the war.
The American scholar, Professor Hershey, also things that devastation and destruction, even of a town are permissible in the face of a threatened insurrection of its inhabitants, or if directed against guerilla forces in order to cut off their supplies.
Destructions are permissible as reprisals against unlawful acts of the population or against unlawful combatants, nor need a direct connection with military operations be established in such cases. When one of Sheridan's officers was murdered in October 1874. General Sheridan had all the houses within a radius of 5 miles burnt down.
Professor Fenwick states:
"The burning of towns and villages has been a common form of retaliation."
Professor Cobbet also classes the destruction of localities or houses as among the permissible reprisals against crimes committed there or in their proximity.
In the same way, Professor Holland states that such measures are not uncommon.
Oppenheim-Lauterpacht comments:
"Art. 50 does not prevent the burning by way of reprisals of villages or even towns for a treacherous attack committed there on enemy's soldiers by unknown individuals."
In accordance with the general practice of belligerents and authorative opinion on international law, the U.S. Rules of Land Warfare also describe reprisals consisting in the burning down of houses and villages as permissible measures.
That such measures had also to be resorted to in Jugoslavia and Greece is only natural, considering the extent of unlawful partisan activity in these countries and the methods of warfare practiced by the partisans.
I propose to conclude my legal arguments on the problem of reprisals by once again pointing out the most significant fact in this case:
Neither in Jugoslavia nor in Greece were there any longer any lawful resistance forces after the conclusion of the campaign and the surrender of the Jugoslav government and the Jugoslav and Greek armies, there were only unlawful combatants, war rebels. The more fact of organizing these resistance forces and the establishment of partisan formations constituted war rebellion. This alone entitled the German commanders to resort to acts of suppression and reprisals independent of any individual crimes committed by the resistance forces against German troops. The extent of and danger inherent in, the resistance forces very largely determined the scale of the reprisal measures. The latter, though usually provoked by individual acts of resistance, were naturally directed against the illegal resistance as a whole of which individual acts were merely tokens.
1. Within the realm of international law, the plea of superior orders - with respect to war crimes - has always received a different treatment from that accorded to it within the sphere of domestic criminal law.
2. In accordance with a recognized rule of the customs of war, the plea of superior orders, at any rate at the time at which the events at issue in this case occurred, was regarded as a full justification in relation to war crimes.
Professor Lauterpacht has expressed his as follows:
"It is an interesting gloss on the complexity of the problem that in the United States the plea of superior orders is, on the whole, without decisive effect in internal criminal or constitutional law, although it is apparently treated as a full justification in relation to war crimes." (Underlining added.)
It is certain, moreover, that both the well-known comment of Professor Oppenheim -, and that of the American author Manner - as well as the provisions of the Military Manuals of the United States and Great Britain, in the version which was valid until 1944, treated the plea of superior orders in its full scope as a justification, a justification, that is, on all levels of the military hierarchy and not merely applicable to the common soldier or enlisted man.
Even Professor Glueck, in his treaties on the ambiguity of the wording in paragraph 347, US Rules of Land Warfare, does not seriously dispute it. Neither was this wide scope of the plea of superior orders ever impugned in the discussions of the Interallied Commission for the Investigation of War Crimes at the end of the first World War or in the discussions on Article 228 of the Treaty of Versailles.
The subsequent amendment of paragraph 347 of the US Rules of Land Warfare and of paragraph 443 of the British Manual, calculated to render possible the punishment of members of the German Armed Forces who had acted on orders of their government or their superiors, is a manifest violation of the universally recognized axion that no punishment must be based on ex-post - facto laws. Besides the restatement of the provisions in the US Rules of Land Warfare and the British Manual, being acts of domestic legislation, could not amend a recognized rule of international law.