PRESIDING JUDGE BURKE: Very well. Will we complete the assignment today?
MR. FENSTERMACHER: Yes, your Honor, that will complete the Prosecution's direct case, your Honor.
PRESIDING JUDGE BURKE: Very well, you may proceed. It has been intimated to me by my distinguished colleague that ultimately we will read it ourselves; we might save you the time and save ourselves the necessity of listening to repetition on it.
MR. FENSTERMACHER: Very well, your Honor.
JUDGE CARTER: Unless it is your thought that what you are planning to read is all we should look for in the case.
MR. FENSTERMACHER: I'm afraid not; I am afraid I will have to ask your Honors to read all of it. I simply wanted to read the introduction to give you the framework, and if there are any questions that you had they could be answered at this time but I am perfectly willing to let it go by the board.
PRESIDING JUDGE BURKE: I think we will concur in your request to consider that we will read it ourselves.
MR. FENSTERMACHER: Very well, your Honors. I think then your Honor that completes the Prosecution's direct case. We intend to present during the next succeeding days, as soon as they are typed and mimeographed, a list with the counts, with the document numbers and exhibit numbers, counts of indictment and defense against whom the documents are offered, for Document Book XXV, and we are also preparing individual lists for each of the individual defendants, giving a list of the documents which were offered against each defendant, their exhibit number and the counts of the indictment with respect to which they were offered. They will be ready I think in two or three days and we can either distribute them to the defense counsel and your Honors at that time or hold off offering them until we reconvene.
PRESIDING JUDGE BURKE: It is the opinion of the Tribunal that they should be given to the defense counsel as soon as they may be properly prepared.
MR. FENSTERMACHER: Very well, we will do that your Honor.
PRESIDING JUDGE BURKE: We assume you are referring to the additional pages usually included at the end of the each of document books.
MR. FENSTERMACHER: That is correct, your Honor, for Document Book XXV and we are making individual lists, dividing the documents and the exhibit numbers for each individual defendant.
PRESIDING JUDGE BURKE: And they will be furnished to the counsel for the defendants?
MR. FENSTERMACHER: Yes.
PRESIDING JUDGE BURKE: Very well.
MR. FENSTERMACHER: Your Honors, the Prosecution Rests.
PRESIDING JUDGE BURKE: The record may show that the Prosecution has rested.
(PROSECUTION RESTS)
DR. LATERNSER: Your Honor, the Tribunal will surely understand that the defense has the wish to clarify one particular point. I am asking to have the Prosecution explain when or if at all the two delegates of the defense will be allowed to make their trip or whether the Prosecution intends to carry out point 2 of the ruling and get the material required here to Nurnberg. The defense wishes to have this particular point clarified so that it knows where they stand.
JUDGE WENNERSTRUM: Mr. Fenstermacher, does the Prosecution have any comment on that?
MR. FENSTERMACHER: If your Honors please, I know that a copy of all the incomplete documents which the Prosecution offered as a part of the direct case was sent to the proper authorities in the War Department in Washington, D.C. We have not yet heard from them. We do not know whether they have begun the task of photostating this material or not but in that regard we have done everything that is possible from the Prosecution's standpoint at this end. With respect to the trip of the defense representatives to Washington: I know the matter has been taken up with Military Government authorities in Berlin and we are awaiting their opinion in that respect but again the Prosecution has taken all the procedural steps from this end which it has been possible to do so up to this time.
JUDGE WENNERSTRUM: I might state that I was advised during the recess by Mr. Denney that he had written two or three letters within the last three or four days to the War Department, that there has been also several cablegrams sent to the War Department by the office of the Chief of Counsel for War Crimes here in Nurnberg, particularly by Mr. Denney, that also there has been cablegrams sent by the Legal Department at Berlin and as yet there has been no definite reply from Washington. The matter is apparently receiving attention. Now as to what course will be followed Mr. Denney does not know. It is quite possible that they may bring the documents over here to Nurnberg by special courier and if that course is followed then that will meet the requirements of the ruling heretofore made. If that isn't followed then we can either send one or two representatives of the defense there or take the effect of the third alternative of the ruling. But, there has been very several letters and a number of cablegrams sent within the last three or four days.
DR. LATERNSER: Your Honor, I would like you to ask the Prosecution approximately when we can count on the arrival of the material which they have requested.
JUDGE WENNERSTRUM: I think it will be almost impossible to answer that question, Dr. Laternser. From personal experiences with the War Department I would say that it would not be too prompt.
JUDGE CARTER: I do think, Mr. Fenstermacher, at your very earliest convenience you ought to tell them which method is to be pursued even though you can't give them the detail.
MR. FENSTERMACHER: We will certainly be able to do that.
JUDGE CARTER: The War Department ought to be able to make that decision without too much trouble and really it should have been done by now.
MR. FENSTERMACHER: We will certainly be glad to inform the defense as soon as we hear.
DR. LATERNSER: Thank you, your Honor.
PRESIDING JUDGE BURKE: Are there any further matters on behalf of the Prosecution?
MR. FENSTERMACHER: No further matters at this time.
PRESIDING JUDGE BURKE: The Tribunal will stand adjourned----
JUDGE WENNERSTRUM: Pardon me, Judge Burke, may I inquire as to whether or not there are any undisposed of applications or matters which have not received the attention of the Tribunal? I am asking this because we are adjourning for several days and I want to see that everything is taken care of before we leave.
MR. FENSTERMACHER: The Prosecution knows of no such matters, your Honor.
JUDGE WENNERSTRUM: Are there any applications on behalf of the defense that have not received attention. I might say as far as everything coming to my desk is concerned, everything has been disposed of. There may be other matters not gone through the channels and received the attention of other departments but everything up to date that has been received by the Tribunal has been disposed of. Now if there is anything else we would like to know it.
DR. GAWLIK (Attorney for the defendant Dehner): Your Honor, I have requested a number of witnesses, and also made application for documents. I have received no decision in answer to this application. I don't know whether these applications are still pending, or whether a decision has already been made. I have only been in a position to make the application a few days ago because I have only recently taken over the case of the defendant Dehner.
JUDGE WENNERSTRUM: Mr. Denney was in my office during the recess and had several of the applications in his hand, and apparently there will be no objections on the part of the Prosecution and we shall endeavor to take care of those before we leave. Now, I might ask Dr. Gawlik whether or not these witnesses will all testify to the same matter or will they testify to different matters?
We do not want to bring a lot of witnesses on matters that will be purely accumulative.
DR. GAWLIK: Your Honor, they are going to testify to various matters, to various points of the indictment. I have endeavored never to call two witnesses to testify on the same point.
JUDGE WENNERSTRUM: Very well.
DR. SAUTER (Attorney for the defendants Lanz and von Geitner): About eight or ten days ago I sent in three questionaires for three witnesses in Greece on behalf of the defendant von Geitner. I have not requested the witnesses to come here because the distance is too great but I send in questionaires in the same manner as it was done during the first trial. These questionaires of the three witnesses were properly sent by me to the General Secretary. Whether this application has now been sent to the Tribunal by the General Secretary I do not know.
PRESIDING JUDGE BURKE: Dr. Sauter, I think I can save you some time and perhaps some time for the Tribunal. The request was forwarded to the Tribunal; the Tribunal has considered it; the Tribunal has acted favorably on it and the report of the Tribunal to the Secretary-General has been typed and it is in his possession, the same as that procedure followed in the case of the defendant Felmy, as announced in today's session. The objections of the Prosecution were overruled and your interrogatories should promptly be on their way.
DR. GAWLIK: Thank you, your Honor.
PRESIDING JUDGE BURKE: If there is nothing else, the Tribunal will stand adjourned until 12 September 1947, at 9:30 o'clock A.M.
(The Tribunal will recess until 0930 o'clock, 12 Sept 47)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Wilhelm List, et al., defendants sitting at Nurnberg, Germany, on 15 September 1947, Judge Wennerstrum presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal V.
Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if all the defendants are present in the Courtroom?
THE MARSHAL: May it please your Honors, all the defendants arc present in the Courtroom.
THE PRESIDENT: The Tribunal is advised that three of the eleven opening statements -- three or four of the eleven opening statements have been prepared and have been submitted to the Translation Department and are ready for delivery to this Tribunal. This Tribunal adjourned and was to convene on September the 13th. This is now September the 15th. The Tribunal finds no excuse for counsel not having their opening statements ready, prepared, submitted to the Translation Department and ready for delivery to this Tribunal.
We shall hear the three or four opening statements which have been prepared and are ready for delivery in their English translation and shall proceed then with the evidence as to those cases or defendants whose translations are completed.
I again wish to repeat that the Tribunal does not look with favor at this inconvenience on the part of defense counsel not to have their translations ready and submitted to this Tribunal at this time. We shall now proceed to the opening statements on behalf of the defense and for such defendants as there are translations completed and ready.
Mr. Denney, did you have some matter?
MR. DENNEY: If your Honors please, there is just one matter for the record with reference to the Geneva Convention of 1929 governing the treatment of prisoners-of-war and the Hague regulations with amendments, parts of which ---that is, the Hague regulations with amendments, parts of these have been read into the record.
I wonder if at this time it would be convenient for the Tribunal to indicate whether or not they desire that copies of these Hague and Geneva regulations be physically offered or whether the Court will judicially notice them and consider that as sufficient.
I believe all defense counsel are familiar with the regulations in question.
THE PRESIDENT: These matters to which you refer, Mr. Denney, are merely authorities for such guidance or interpretation as the Court may wish to make use of them in its final decision, and the Tribunal will take judicial notice of them and accept them as authorities and consider them in our final determination of the case.
Court No. V, Case No. VII.
MR. DENNEY: And it will not be necessary then to physically submit them?
THE PRESIDENT: It will not.
MR. DENNEY: Thank you, your Honor.
And Mr. Fenstermacher has several matters with reference to inquiries which the Court have made. I believe one with reference to a statement by an affiant which was offered as part of Exhibit 100-B in evidence, which he would like to clear up at this time.
THE PRESIDENT: Very well.
MR. FENSTERMACHER: If the Tribunal please, I have received this morning from the Yugoslav delegation a memorandum which I would like to read on the record, addressed to me from Lt. Col. Svonimir Ostric, Chief of the Yugoslav delegation attached to the Office of Chief of Counsel for War Crimes, dated Nurnberg, 13 September 1947.
"In connection with your inquiry, this delegation is informed by the Yugoslav War Crimes Commission in Belgrade, Yugoslavia, as follows:
"Kiesel, Dr. Georg, a high war adviser in Turner's staff in Belgrade, Yugoslavia, was by the Yugoslav Military Tribunal on 10 March 1946 in Belgrade, Yugoslavia sentenced to death. The death sentence has been carried out."
Signed, Chief of Yugoslav Delegation, Lt. Col. Svonimir Ostric.
I should like to hand Dr. Laternser a copy of this memorandum at this time. Your Honors will recall that an affidavit of Kiesel was introduced into evidence as part of Exhibit 100-B and that defense counsel then applied to have Kiesel brought here for cross-examination purposes.
During the period during which the Tribunal was in recess, the prosecution prepared and distributed to your Honors and to all of defense counsel lists of exhibits which were offered against each of the individual defendants and the counts of the indictment to which the exhibits and the documents pertained.
We also prepared and distributed to your Honors and to defense counsel a table of all of the exhibit numbers both in chronological order and in the order of the document number so that at any time if any of the interested parties know only the document number, they will be able to turn quickly to the precise exhibit number and vice versa.
THE PRESIDENT: Are defense counsel ready to present their opening statements?
DR. LATERNSER: Your Honor, I have been asked by my colleagues to ascertain which ones of the translations of the opening statements are available and ready and which ones are not. Is the General Secretary informed of this?
THE PRESIDENT: Can you give us any information as to that, Mr. Deputy Secretary General?
DEPUTY SECRETARY GENERAL: Last Friday we were informed that there was just one prepared from the defense center. That was Dr. Laternser's pertaining to defendant List. I have received no further information, sir.
THE PRESIDENT: And the Tribunal was informed there were four that were now completed. I understand that Dr. Laternser's was one of them. As to which of the others are included in the three, I am not able to ascertain.
Mr. Marshal, will you find out which of the translations are completed and inform me and the respective counsel without interrupting Dr. Laternser in his opening statement. Perhaps there are some of them that were just delivered here now.
DEPUTY SECRETARY GENERAL: These are German copies.
THE PRESIDENT: If you will ascertain from the Translation Department either by telephone or by going up there and then advise me and the respective counsel and get them down here so that we can make use of them as soon as possible, it will be appreciated and which are completed in their translation are ready for delivery here.
The respective counsel will be advised as to whether or not their translations are ready for delivery. In the meantime, you may proceed with your opening statement, Dr. Laternser.
DR. LATERNSER: Defense Counsel for defendants List and Weichs.
"Your Honors:
In his essay in the British Yearbook for International law (1944, Pages 58-95), which has already been quoted by the prosecution in the opening statement professor LAUTERPACHT has made reference to a problem which is peculiar for the proceedings against alleged war criminals. It is the problem of the uncertainties of laws of war. These uncertainties of the laws of war make it imperative that the defense as well already at the present stage of the trial explain its conception regarding the problems of international law, which will be of importance for the judgments of the actions of the defendants especially since the prosecution has already presented its concept of the law to the court. For the law is the framework within which the prosecution and the defense present their evidence before the court and within which the court assembles the facts which are offered not at the time of the determining of the judgment but also during the course of the evidence proceedings.
"The problems on which the matter hinges have been mentioned in principal by the prosecutor in his opening "statement and I intend to treat them in the same sequence as has the prosecution.
"To begin with I wish to emphasize that I purposely am quoting in the main sources from the anglo-american legal circles using such material as a guide in the interpretation of international law insofar as this is of importance in this trial for it cannot be denied that in the field of science and practice of international law the onus now lies upon these minds.
"The first problem which I wish to take up is that of acting upon orders. Logically enough, it is not the primary one, but by far the factual and psychological key for the conduct of the defendants which forms the subject of this trial. The prosecutor passed this point very quickly. I shall treat it more in detail not simply because, as I have already stated, it offers the explanation for many events which are being discussed here but because from the standpoint of international law it is much more complicated than one can infer from the opening statement of the prosecution.
"The sole basis for the punishment of war crimes is international law, for war crimes are transgressions of international law, which is to be differentiated from the law of the states against which the war crimes have been committed. Prof. Lauterpacht particularly emphasized this point in his essay 'The Law of Nations and the Punishment of War Crimes' in the British Yearbook for International Law (1944, Page 59) which essay has already been quoted:
"I quote:
'For the cause of international law demands not only the punishment of persons guilty of war crimes. It requires that such punishment shall take place in accordance with international law.'
"And further on he states again:
'That law is, and must be, primarily, the law of nations. For, it must be repeated, it is only to the extent that the acts of these offenders are prohibited by international law, that they can at all be considered as crimes according to the law of the individual states.'
"Prof. KELSEN, the founder of the so-called Vienna School for state and International Law, now Professor of International Law in the United States, expresses himself similarly in his book 'Peace Through Law' published in 1944, he writes:
'These acts, that is, war crimes are forbidden directly by international law. The military court, by punishing the acts, executes international Law even if it applies at the same time forms of its own military law.'
"In this sense must the sentence from the verdict of the International Military Tribunal also be interpreted since the London Statute is the expression of existing international law at the time of the creation of the statute.
"From this it follows:
"The prosecution and punishment of war crimes is an exercise of law only insofar as this takes place within the framework of international law. What transpires beyond that point is the utilization of power and not law. That is the reason why in the proceedings before the International Military Tribunal the British Chief Prosecutor examined as the fundamental problem of his statements how the statute was in accord with valid international law. For general international law cannot be altered through unilateral action of the victorious powers or through special agreements amongst one another even when these may appear in the form of statutes or laws.
How is he plea of superior orders in the commission of war crimes to be evaluated according to international law?
Prof. OPPENHEIM, who was for many years senior consultant of the British Admirality and who must be regarded in the field of international law as the criterior during the past decades, stated the following in this respect in his book "International Law" "Violations of rules regarding Warfare are War Crimes only when committed without an order of the belligerent Government concerned.
If members of the armed forces commit violations by order of their Government they are not war criminals and cannot be punished by the enemy; the latter can, however, resort to reprisals. In case members of forces commit violations ordered by their commanders, the members cannot be punished for the commanders are alone responsible and the latter may, therefore, be punished as war criminals on their capture by the enemy."
Prof. OFPENHEIM maintained this opinion during his entire life, from the first to the fifth edition of his "International Law", which is a standard text in international law literature throughout the world. Like many authors he does not differentiate between the plea of an act of the state, as is being discussed and the plea of an order of an otherwise militiary superior.
George Manner, the American International Law expert, who treats the subject of plea of superior orders and act of state in the article "The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War". I quote as follows:
"The maxim that members of the armed services of a country are not personally responsible and liable to penal punishment for acts perpetrated by them in contravention of the rules of warfare under the orders or sanction of their governmental or military superiors does not form part of the codified law of war.
Nevertheless, it appears to be a recognized principle of this law. Since 1914, at least the maxim has been incorporated in the war manuals of the Powers as a rule of the customary laws of war."
Also in further passages he again characterizes the above pleas of superior orders, and by act of state as a generally recognized maxims of positive law which limit the punishment of war crimes because they are components of the rules of warfare. I believe that the opinion expressed in the opening statement of the prosecution with reference to the plea of military orders that the recognition of this excuse is the result of a perverted view regarding military discipline does not get at the root of the problem.
The question of military discipline in actions that are committed under orders is of importance only in the national penal laws of different states. Here in this trial, however, the matter under debate is the norm of positive international law independent of its cause, that acting upon military orders excludes the prosecution of war crimes by courts of the enemy states against whoever acted upon orders. This extremely important difference can easily be overlooked.
Section 347 of the American Rules of Land-Warfare, which was edited under the direction of the Judge Advocate General and published by the War Department of the United States in 1940 and is still valid today, explains, following the enumeration of the possible war crimes, and I quote:
"Individuals of the armed forces will not be punished for these offenses in case they are committed under the orders or sanction of their government or commanders.
The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be Punished by the belligerent into whose hands they may fall."
There can be no doubt that the official interpretation of the War Department of the United States is represented by this decree with reference to the status of International Law in the question of actions under military orders in cases of war crimes.
The same point of view was held until 1944 by the competent British offices in the British Manual of Military Law, No. 443, of which, after enumerating the possible war crimes, continued: and I quote:
"It is important, however, to note that members of the armed forces who commit such violations of the recognized rules of warfare as are ordered by their Government, or by their commander, are not war criminals and cannot therefore be punished by the enemy. He may punish the officials or commanders responsible for such orders if they fall into his hands, but otherwise he may only resort to the other means of obtaining regress which are dealt with in this chapter."
In this respect Prof. LAUTERBACHT, writes in his essay in the English Yearbook of International Law 1944:
("Although Chapter XIV of the military Manual has not been given statutary force it is, in general an exposition of the conventional and customary rules of international law as understood by Great Britain.") It is my opinion that the plea of superior orders is a generally recognized maxim of international law demonstrated by excellent authors on the subject of International Law and by the military handbooks of the United States and Great Britain.
This principle was already generally recognized 100 years ago, as is shown by the famous case of Mac Leod. During an insurrection against the British administration in Canada in 1837, members of the British Colonial forces attacked an American ship, the Caroline, which was moored on the American side of Niagara Falls, because they suspected the passengers were insurgents. They burned the ship and let it be carried over the falls. An American citizen lost his life in this incident. In 1840, Mac Leod, a British subject, was arrested by the New York officials for participation in the act against the "Caroline" and brought before the Court. The British Ambassador in Washington demanded the immediate release of Mac Leod on the basis that the destruction of the Caroline "was a public act by persons in the service of their majesty and who were obeying the orders of their superiors." The American Secretary of State Webster recognized the validity of the British argument and declared: "That an individual who is a member of a public armed force and who acts under powers invested in him by his government cannot be held responsible as a transgressor of the law, is a principle of public law which is sanctioned by the customs of all civilized nations and which the the government of the United States is not inclined to contest."
This was brought further into practice in the well-known case of the sinking of the British steamship Lusitania by a German submarine during the first World War. At that time the British Prime Asquith declared himself against a prosecution of the perpetrators since they had acted under orders. (This attitude of Prime Minister Asquith is quoted in De. Lapradelle-Larnaude, Examen de la responsibilite "Journal de Droit International," Attempts have been made to deviate from this maxim of International law.
In Section 228 of the Versailles Treaty the German Government recognized the right of the Allied and Associated powers "to bring those persons accused of having committed actions in violation of the laws and customs of war before before military courts."
The American expert in International Law, Prof. FENWICK, in his book "International Law" characterizes as one of the reasons why this decree of the Versailles Treaty was not executed, "......The obvious legal difficulty that many of the accused persons had acted in obedience to higher authority."
These legal difficulties could have only been eliminated by a conventional rule on the problem. Therefore, and I quote Prof. FENWICK again, efforts were made to create a new conventional rule with regard to this subject.
At the Washington Conference in 1922 the following provision was incorporated into the treaty in Section 3 regarding the use of submarines; that a violation of the treaty provisions regarding the attack, seizure or destruction of commercial ships should be punished as "piracy" regardless whether the perpetrator acted under orders of a superior. This treaty was never ratified.
This question was taken up again in 1930 at the London Naval Conference. In Part IV of the Naval Treaty of 22 April 1930 it was decreed that submarines had to observe the same rules of international law in their actions against commercial ships as were observed by surface craft. The clause that the perpetrator be held responsible for actions which have been committed under orders in violation of these rules is not to be found in the text of this treaty. From this one must conclude that the appendix contained in the Washington version is not in agreement with the opinion of the signatories of the London Submarine Protocol.
The Jurists Commission which was assigned to the task of revising the rules of warfare by the powers participant in the Washington Treaty expressly stated in their report in a provision that persons acting unders are free from any responsibility for those crimes against the rules of warfare contained in their report.
The attempts to incorporate into international law in a manner effective under international law the principle of prosecution of war crimes committed under orders were thereby unsuccessful. It is of importance that in spite of the efforts to initiate amendments the American Rules of Land Warfare as well as the British Military Manual adhered to the earlier principle of non-punishment.
The provision of the American Rules of Land Warfare that individuals may not be prosecuted for war crimes committed under orders is still valid today. In contrast, 443 of the British Military Manual was re-edited in 1944 by which the interpretation of the problem according to the international law up to that time was supplanted by the maxims which were developed within national British law covering illegal actions committed under military orders.
If one examines the events to which this amendment can be traced, then one finds that the Moscow Declaration of October 1943 had set the precedent. In this the punishment of War Crimes without regard to the possible orders of military superiors was made certain. I do no believe it is necessary to make particular emphasis of the fact that this declaration was a political act and presented no effective source of new international law.
Officially the circumstances that in the posthumous edition of the textbook of Professor OPPENHEIM (6th edition, 1940) prepared during the war by Professor LAUTERPACHT, the attitude had shifted towards the question of prosecution of war crimes committed under orders, was stated as the reason for amending Article 443 of the British Military Manual.
Prof. LAUTERPACHT had further expressed an opinion against Article 443 of the Military Manual in his essay "International Law and the Punishment of War Crimes".
Prof. LAUTERPACHT certainly is a very modern scholar and his essay is excellent, but I believe it cannot remain unnoticed in a critical analysis that his reasons for the above-mentioned opinion from the point of view of international law are very weak.
The view of Professor LAUTERPACHT, shared by a few others, is in any case also termed "more than questionable" by Professor KELSEN. Concerning the opinion set forth in the five previous editions of OPPENHEIM's textbook and of Article 443 of the British Military Manual, Professor LAUTERPACHT maintains that they represent no sound principle of military law, requiring for this reason a definite amendment of article 443: I quote:
"Unless the scope of persecutions for war crimes is to be drastically and unduly curtailed", but this reminds us, the defense counsels, of a certain phase of the legal development within the state, which has in the meantime become a thing of the past, and in which prevalence is given to the idea of the justifying end and the so-called sound popular feeling as against the norms of positive law.
And as regards the "sound legal principle" which is supposed to be provided by reason, the following view expressed by Professor OFPENHEIM about "reason" applies: I quote:
"I cannot agree reason being a source of law. Reason is a means of interpreting law, but it cannot call law into existence."
It is just as much out of the question that reason alone can modify existing international law.
The fact that the Supreme Court of the United States, as pointed out by Professor LAUTERPACHT in one case concerning espionage and sabotage maintained emphatically the direct criminal responsibility of individuals for violation of military laws, can by no means be taken as a precedent applying to the problem under discussion. For as soon as espionage and wartime treason are involved, the prosecution of offenders acting by order has always been recognized as lawful in international law contrary to the general law.