THE PRESIDENT: You may proceed, Dr. Laternser.
DR. LATERNSER: The Prosecution maintains that if the defendants would plead that their acts were committed by order of higher authority, they would find a stumbling block already in Article 47 of their own Military Penal Code. Here, however, they fail to consider that the plea of acting by order is judged in different ways in international law, which has to be applied when alleged war criminals are prosecuted by an enemy state, and in the national, law of the individual states. According to the principles of national law of civilized states the possibility of carrying through a criminal procedure will with certain differences in each district of jurisdiction -- be dependent upon whether and how far the offender perceived his actions to be unlawful, or whether and how far his guilt was neutralized or mitigated through duress. From the point of view of international law, on the other hand, one acting by order I adopt.
the view of the American Rules of Land Warfare - is a fact excluding as a matter of principle the prosecution for war crimes by a foreign state. This basic difference is also stressed by Professor LAUTERPACHT in his essay "International Law and Punishment of War Crimes" being summarized in the following words:
"It is an interesting gloss on she complexity of the problem that in Great Britain and 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."
For this reason it is impossible to adduce the verdict of the German Supreme Court in the case of Llandovery Castle pronounced in the time following the first world war, in justification of the re-drafting of Article 443, as it is done in Amendment 34 of the British Military Manual, in Footnote 4 to Article 443. In the examination of the question whether and how far the accused German U-boat officers could plead action by order of superiors the Supreme Court had to apply not international law, but only national German law.
Article 47 of the German Military Penal Code can moreover be used as foundation for the punishment of military subordinate only in case the order issued by the superior was in violation of German law. As orders issued by Hitler in Germany and for German authorities and law-courts were law, a soldier acting by force of an order from Hitler could not be punished not even in pursuance of Article 47 of the Military Penal Code, even when Hitler's order constituted violations of generally recognized ideas of law or of international law.
I conclude my statements concerning this problem with a reference to the words of Professor OPPENHEIM, the firm champion of the version to which I appeal, which are to be found in the foreword to the second volume of his work.
"I have tried to write this volume in a truely international spirit, neither taking any one nation's part nor denouncing any other. It is to be deplored that many writers on the Law of war and neutrality should take every opportunity oi displaying their political sympathies and antipathies and should confuse their own ideas of justice, humanity, and morality with the universally recognized rules of warfare and neutrality."
I have shown that the plea of superior orders is a long recognized basic maxim of international law, which limits the punishing of war crimes. But Control Council Law No. 10, which decrees something different, is binding for the court, says the Public Prosecution. I believe that the court is only bound by international law. Control Council Law No. 10 is based upon the combined authority of four victor nations, and this authority goes no further than the powers with which the sovereignty of each individual state invests it in tho community of international law. The general international law, which, as has been said, recognized the plea of superior orders was effective, may only be revised by general conventions or by an administration of law based upon general recognition, not, however, by unilateral acts of the victor nations which are directed against a conquered nation. To be sure, an occupying power has the power to issue laws for the occupied territory; but it is just as certain that these laws may not interfere in the sphere of international law. For who military occupation does not transfer the sovereignty of the conquered nation to the occupying power, by virtue of which a nation acts in the sphere oi international law, but it bestows only that part of the governing power which is necessary to make it possible for the occupying force to have an effective control over the occupied territory during the length of the occupation.
The rights of the occupying power are established and limited as binding in the Hague Convention, and we find a detailed definition of the powers of an occupying force in Chapter 10 of the American Rules of Land warfare. Not only is every authority lacking for empowering an occupying force to create, suspend or alter international law while acting for the conquered state. Rather, we establish the fact that it was never doubtful that an occupying force did not have this right and that this limitation of its powers proceeds quite clearly from the Hague Convention. Such powers of an occupying force could only arise through annexation, which, however, was expressly disapproved of in the London Declaration of 5 August 1945.
I believe that here there is a special reason for referring to the basic difference between the ideas of justice and humanity and the recognized terms of international law, because from the opening speech of the prosecution, the attempt to bring the charges against the defendants to a simplified common denominator, may be perceived thereby effacing this difference. In the opening speech of the prosecution, which we have heard here, it was said that those men are indicted because they have denied and undermined the fundamental basis of civilization, namely the principle that human life shall not be unnecessarily destroyed.
Regarding this principle, I am of the opinion that it is a noble principle and is not only a result of humanity's instinct for self- preservation. It is, however, only a principle of ethics and a demand of humanity. I can not agree with the concept that it is a recognized maxim of international law, now in the age of the atom bomb and the mass air attacks upon the civilian population, the frightfullness of which we experienced only a short time ago.
Air attacks, in which within a single city in 24 hours more than 200,000 people, mostly women and children, were killed, as in Dresden, AND THAT AT A TIME IN WHICH THE WAR WAS ALREADY CERTAINLY WON FOR THE OTHER SIDE. I do not mention this in order to raise counter reproaches, by which, as I know, the situation of the defendants can not be bettered. I only want to investigate the basis for the difference which the public opinion of the world and the jurist of international law make obvious in these questions. For it is necessary that in such important matters as are the accusations raised against the defendants, one sees quite clearly, if one wants to judge them correctly. Thus, for example, Prof. LAUTERPACHT writes in his essay in the English Yearbook for International Law 1944, already cited several times, it is difficult to answer the question of the legality of the air attacks by means of penal prosecution of individual persons, while, as we must establish these difficulties obviously do not exist, in the case of the charges which have been raised against the defendants. The difference certainly does not lie in the fact that in reprisal measures in the occupied territories, More people were killed than by air attacks upon the civilian population; or that men die MORE EASILY by serial bombs, serial mines and phosphorous bombs than did the executed hostages; and also not in the fact that the women and children who were buried under the wreckage of the houses or in the cellars, or burned to death on the streets as living torches, were MORE GUILTY than the partisans and insurgents shot in reprisal.
The divers judgment and treatment is rather connected, as it seems to me, simply with the fact that it is a matter of executions in the case of the actions indicted here, that is, of killing men whom a belligerent had in his power. There is no point in pursuing further reasons upon which the divers judgment is possibly based. It is sufficient to establish the fact that this difference is present. I must therefore proceed from the facts as they are; that in contrast to all other procedures, by which in war people, even civilian persons, are killed in great numbers, executions establish prima facie the suspicion of war crimes, and that, as the practice of the war crimes trials shows, without consideration here of the number of the victims.
I believe that the principle maintained by the indictment, that people may not be killed unnecessarily, must be traced back to the extent which agrees with the current practice of international law. Later, when I come to speak of the actual situation in the Balkans, I will take up the further efforts of the prosecution to substitute the ordered investigation or which of the measures indicted here were necessary and which were not, by the general principle that all the measures of the German Commanders were arbitrary crimes, while on the other hand the actions of the partisans and insurgents were patriotic acts and justifiable self-defense.
First I return to the executions. I intentionally did not say more than that they usually establish the suspicion of war crimes prima facie. I do not say, of course, that this suspicion is in general justified. This suspicion obviously is connected with the fact that the conviction that executions may only be undertaken on the basis of a judicial judgment is wide-spread in the ideas and concepts of man, while with regard to the exceptions to this principle, which come under the concept "retaliatory measures", obscurities and differences of opinion predominate even among the authors of international law.
"A tribunal confronted with the plea of reprisals as a justification of the offense will he faced with a task of considerable difficulty. International law regulates, in a necessarily rough and indeterminate manner, the occasion for and the use of reprisals both in peace and in war," --.
says Prof. LAUTERPACHT in his essay in the British Yearbook for International Law 1944 (p.76), after he has established directly before:
"But, as a rule, an act committed in pursuance of reprisals, as limited by international law, can not properly be treated as a war crime."
The concept of reprisals is defined in Art. 358, par. a) of the American "Rules of Land Warfare" (US General Staff, Basic Field Manual, 1940) and in Art. 452 of the British "Manual of Military Law." I agree with the prosecution that reprisals are retaliatory measures which are committed by a nation or its agents in order to hinder the enemy in further violation of the rules of war. Reprisals are coercive measures. I cannot recognize that they may be applied only in the relationships between nations or between their opposing armed forces, as the prosecution argued. The action according to plan of inciting the civilian population to acts of sabotage and attacks upon members of the German occupation forces and the fight of the partisans in violation of international law in the occupied territories had the result that -during the second world war reprisals had to be resorted to above all against illegal actions of the civilian population, in order to force the latter to desist from its illegal conduct. It would be absurd to assume that the commanders of the armed forces of a belligerent party had to endure acts of an enemy civilian population in violation of international law, without being able to protect their troops, when necessary, by retaliatory measures.
The admissibility of reprisals against illegal acts of enemy civilian population is therefore expressly recognized by the military Handbook of the United States and Great Britain. Art. 358c of the American "Rules of Land Warfare" answers the question:
"Who may commit acts justifying reprisals" as follows:
"Illegal acts of warfare justifying reprisals may be committed by a government, by its military commanders, or by a community or individuals thereof, whom it is impossible to apprehend, try, and punish."
Art. 358 d decrees:
"The offending Forces or populations generally may lawfully be subjected to appropriate reprisals. 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 British Military Handbook contains the following decree concerning this:
Art. 386:
"If, contrary to the duty of the inhabitants to remain peaceful, hostile acts are committed by individual inhabitants, a belligerent is justified in requiring the aid of the population to prevent their recurrence, and, in serious and urgent cases, in resorting to reprisals."
Art. 453:
"The illegitimate acts may be committed by a government, by its military commanders, or by some person or persons whom it is obviously impossible to apprehend, try, and punish."
Art. 458:
"Although collective punishment of the population is forbidden for the acts of individuals for which it cannot be regarded as collectively responsible, it may be necessary to resort to reprisals against a locality or community, for some act committed by its inhabitants, or members, who can not be identified."
These provisions of the American and British Military Handbooks are based, as it may well be assumed, just as much upon practical military experience as upon consideration of the laws and customs of war, just as these latter are conceived by the governments which published these handbooks. By these provisions, the claim is therefore refuted that such steps remain ineffective if they are directed against the inhabitants of an occupied territory and not against the enemy government or its armed forces. In the trial against Field Marshal KESSELRING before a British Military Court in Venice, the defense proved that the shooting of 335 Italians, which was undertaken on 24 March 1944 in Rome as a retaliatory measure for an attempted bombing of a German police company, prevented any further attempt against the German Wehrmacht for the period following, until the surrender of Rome at the beginning of June 1944, whereas before these reprisals, attempts of that sort had occurred to a constantly rising degree and at shorter and shorter intervals.
I believe that the prosecution also cannot appeal to Prof. LAUTERPACHT for its conception that reprisals against the civilian population are ineffective and for this reason, inadmissible. The passage cited by me from the essay of Prof. LAUTERPACHT refer in my opinion, does not refer the actual effects of retaliatory measures, but to the effect of the protest of the reprisals upon the juridical judgment of a case according to international law. The first sentence of the passage cited reads completely: I quote:
"On the other hand, as in the matter of the uncertainty of the law of warfare, the impact of the operation of reprisals is not as considerable as would appear at first sight."
By referring to the preceding legal statements concerning the problem of the uncertainty of military law the meaning of the citation becomes clear. Deliberations which take into consideration the actual situation in the occupied territories and the military necessities resulting from it, and the concepts laid d.own in the American and British Military handbooks of the governments in question concerning the condition of martial law, show, therefore, that reprisals may also be applied against the civilian population, in order to force the latter to conduct commensurate with international law.
The main question then immediately follows, whether in the course of such reprisals people may also be killed, that is, also people who cannot be proved to have had any connection with the illegal acts for which the reprisals are a retribution. The English and American authors available to me are silent concerning this question. I disregard the citation of German authors, world-renowned scholars, who answer in the affirmative. But I cite again the British and American Military Handbooks. Art. 459 of the British Manual of Military Law provides:
"What kinds of acts should be resorted to as reprisals is a matter for the consideration of the injured party. Acts done by way of reprisals must not, however, be excessive, and must not exceed the degree of violation committed by the enemy."
Reprisals, are, as established, coercive measures, by which the opponent is to be brought to desist from conduct contrary to international law. But how can an enemy population in an occupied territory, which in opposition to its duty to maintain a peaceful attitude and in no way to take part in the hostilities, maliciously commits murder on members of the occupying military forces, be forced in any other way to conduct in accordance with international law, than by answering their acts with equally heavy measures, when, as almost always in such cases, the guilty parties can not be seized and punished? What can the commander of an occupation army do, when an enemy population systematically murders his soldiers and is prepared any moment for open insurrection?
It is left to his deliberation which measures he wants to apply, says the British Military Handbook, and only adds that retaliatory measures may not be immoderate and may not overstep the degree of the violation committed by the opponent. That means that the party forced to take retaliatory measures may do everything but not more than the nature of the reprisals demand according to what they consider to be their duty. The British Military Handbook answers the question whether in such a case people may oven be killed in reprisal indirectly by not forbidding such a killing, while it expressly excludes the killing of hostages in Art. 461 who serve to guarantee a treaty.
I believe a British officer would be told he had violated his duty if, in a case where the security of his men demanded, he would not have understood the indirect instruction of his military manual in that way.
In this connection, I must again refer to the proceedings against Field Marshal KESSELRING. The Associate Judge Advocate General at the British Military Tribunal in summarizing expressed his opinion on this question as follows: "It cannot be excluded entirely that innocent persons may be shot by way of reprisals; the international law is very flexible."
In addition, it is of SPECIAL importance that neither in the London Statutes nor in the control Council Law No. 10 is the killing of persons by way of reprisal designated as a war crime although this problem had no lesser practical importance during World War II than the problem of killing hostages.
In article 358 d of the American "Rules of Land Warfare" a quite clear answer is given to the question whether innocent persons may also be killed by way of reprisals. I have already quoted this rule:
"Hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy forces or people may he punished or put to death if the unlawful acts are nevertheless committed."
I now add the American Rules of Land Warfare, according to the International Law expert Plueck--that is on Page 41--are legally valid. He expresses it in the following words, "Rules having the force of law."
This is the most important sentence that has ever been written in more recent times with regard to reprisals and hostages. It is not only the key to the entire problem of reprisals and hostages; it also denotes the point where these two institutions overlap.
The Prosecution has already pointed out the close connection existing between the problem of reprisals and the question of hostages and with regard to the modern practice connected with hostages I agree with the Prosecution in that respect that the purpose of taking hostages is to place oneself in the position of having the possibility of carrying out reprisals.
Hostages have always been exchanged, given or taken for quite varying purposes. The two main objects were always the guarantying of treaties in war and peacetime and the protection against hostile acts by the population in an occupied territory. THE TWO FORMS HAVE DEVELOPED INDEPENDENTLY OF EACH. OTHER AND ARE QUITE DIFFERENT IN THEIR CHARACTER.
The classical form for guarantying treaties which was the original one has been out of practice for a considerable time. It was abandoned after the opinion had been accepted in international law that such TREATY HOSTAGES must not be killed and, in addition, the importance, extent and complexity of the more modern international agreements necessitated other guarantees in the form of material and territorial securities. It is not my intention to make extensive investigation into the historical development of the hostages problem. However, I do think it necessary to make it clear that the sentence of Grotius:
"Hostages should not be killed if they have not themselves committed an injustice", quoted in the Opening Statement of the Prosecution ONLY refers to the classical form of hostageship viz.
to hostages serving for the guarantying of treaties. In addition, Grotius ONLY regarded it as a DEMAND which in his opinion followed from natural right; whereas, AS GROTIUS STATES HIMSELF, the execution of treaty hostages was regarded as admissible according to the external or positive international law based on the accordance of will of the states which we call the practice of the states. The principle that treaty hostages must not be killed was not given universal formulation before DE VATTEL in the sentence:
"La Liberte seule des hotages est engagee".
From this time on we may regard the principle that hostages serving as a guaranty of a treaty must not be killed as a recognized standard of customary international law.
As already mentioned, it referred, however, ONLY to treaties and in the beginning only to treaties concluded for the termination of a war or in peace-time. Hostages destined for guarantying war conventions were still subject to the more rigorous martial law. To begin with, the statement we find of VON MOSER applied to them:
"If the promise is not kept the hostages may, according to more rigid laws, be treated with such a severity as is appropriate in view of the circumstances of the case."
However, also in their case killing was later generally rejected. Insofar as hostages still should be designated at all for guarantying treaties, which is still conceivable only during the war, the statement contained in the British Military Manual in No. 461 therefore applies at present;
"....and if hostages nowadays are taken at all they have to suffer a captivity and not death in case the enemy violates the agreements in question."
This principle must surely also be applied to a form of taking hostages still exercised today for guarantying service claims based on international law which is closely related to the institution of treaty hostages viz. to hostages taken by an occupying power as security for requisitions and contributions. They do not serve as security for contractual services but for service claims based on a unilateral levy by an occupying force. Also in these cases nonperformance does NOT grant the right to put the hostages to death.
As regards the second main form of taking hostages we have the statement of the American "Rules of Land Warfare" of 1940 that hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy civilian population MAY BE punished or PUT TO DEATH if the unlawful Acts are nevertheless committed.
With this sentence the competent American Government authorities have summed up the development which we can follow since THIS form of taking hostages has developed into an important institution of martial law in the course of the last 150 years. The taking of hostages as a security for the troops in the occupied territory was already practised in former times. It could, however, only become a legal institution after martial law in its development had arrived at the point of protecting in principle the civilian population. Since only from that time on reprisals against the civilian population became a problem of law. The above quoted sentence from the American "Rules of Land Warfare" is a clear acknowledgment of the facts which may confront an occupying force in modern Warfare with partisan activity and underground movements.
Only at first sight is the fact peculiar that the modern form of taking hostages for the purpose of reprisals developed into their full severity only at a time when the classic form of insuring treaties had been abandoned after its practice had become even milder. It is the necessary consequence of the fact that in the modern wars, as we could observe, the civilian population in the occupied territory in an ever increasing degree participates contrary to international law in the fight against the occupying power - of its own accord as well as due to systematic inciting by exile governments or other enemy powers.
It is a peculiarity of the hostage problem that the separate forms of this institution have developed separately and have separate contents so that they cannot be treated analogously to which LUTTEROTH already has referred in his treaties on hostages. It makes a great difference for the actual contemplation of things whether hostages are to be put to death because a levy was not paid at all or not paid in time or whether a commander in the occupied territory is faced by the fact that his soldiers are being murdered contrary to international law by a fanatical population in spite of its having been warned.
The analysis of the problems of law show that a corresponding difference also exists from the viewpoint of law. It lies in the reason justifying the measures taken against the hostages. In the classical form of hostageship the right of punishing the hostage in case of contravention of the treaty or the duty to pay the levy originated from the ancient institution of the hostageship itself where the measures adopted against the hostage are a kind of punishment; with criminal punishment it has in common the purpose of general prevention less that of expiation. In the modern hostage form, however, the killing or other punishment of the hostages are at least preponderantly reprisals, that is, compulsory measures adopted against acts of the civilian population or the enemy forces committed contrary to international law in order to force them to abide by martial law. The Prosecutor already said in his opening statement that "the purpose of taking hostages is to place oneself into a position of being able to adopt retaliatory measures." The nature of reprisals of the modern hostage practice has been recognized especially clearly in composing the American "Rules of Land Warfare" as follows from the incorporation of # 358 d, which deals with hostages, into the rules on reprisals.
Together with this designation of the modern hostages of becoming possible subjects of reprisals the conception of a hostage has changed its meaning. In the classical sense of the word hostages were persons who were formally exchanged or taken as such which resulted in certain legal relations between the interested parties. Hostages in the sense of # 358 d of the "Rules of Land Warfare" are, however, all persons taken or held for the purpose of making them subjects of reprisals in case of necessity, whether they be formally recognized as hostages and actually be called hostages, or, as in several orders of the defendants are called "expiatory prisoners" or the like.
THE PRESIDENT: May I interrupt, Doctor, please? We'll take our morning recess at this time.
(A recess was taken).
THE MARSHALL: Tribunal V is again in session.
THE PRESIDENT: You may proceed, Dr. Laternser.
DR. LATERNSER: Your Honor I have just talked about the explanation of paragraph 358 d, and I proceed:
"Hostages in the sense of the expression as used in No. 358 d of the "Rules of Land Warfare" arc not only persons taken by a belligerent for the sole purpose of placing himself in a position to be able to carry out reprisals in the case of acts on the part of the enemy contrary to international law. Mostly several purposes are interwoven with one another: persons are being arrested because they are suspected of illegal activity or of connection with partisans or rebels or for other reasons seem dangerous to the occupying power. It is especially natural that they-from the moment of their arrest also serve the declared purpose cf being subjects of reprisals in the future.
In the order to read here they were frequently called expiatory prisoners. Other persons were arrested because of the influence, which they possessed due to their profession or their economic or political position, and by their arrest alone the paralyzation of the population s activities was frequently achieved, which is still increased by the threat of being put to death. For these persons generally only the expression of hostage is customary; likewise for those who from the outset were taken solely for the declared purpose of serving as subjects for reprisals in the case of future violations of international law by the opposite side. All these various groups are covered by the stipulations of # 358 d of the American "Rules of Land Warfare", according to which they may be punished or put to death, if the unlawful acts are committed by the opposite side in spite of warnings.
The opinion has been expressed that in the American "Rules of Land Warfare" due to the placing cf hostages on an equal level with prisoners of war and due to the stipulation that prisoners of war must not be put to death, and "unfortunate contradiction" exists with regard to the fact that the killing of hostages is expressly permitted in # 358 d; this was held by authors who stress that it is permissible to put hostages to death in case cf necessity.
The prosecution also hinted at that. I do not share the opinion that such a contradiction regulations of the American "Rules of Land Warfare" permit an absolutely clear solution of most aspects of the modem problem of hostages: as a consequence of their being accorded treatment equal to that of prisoners of war, persons who formally have been taken as hostages shall, for the duration of their arrest, be kept and treated as prisoners-of-war. Another consequence is that such persons may, in-as-far as they were not, as mentioned in par. 358, taken for the purpose of being the objects of reprisals, be submitted to reprisals only under the same conditions as prisoners of war, if for example, hostages taken by the other side are killed in violation of international law. As for the rest, those hostages mentioned under par. 359 of the "Rule of Land Warfare" who were taken to insure a correct treatment of the wounded and sick and to protect the lives of prisoners of war who have fallen into the hands of irregular troops, are also to be counted among those hostages who in contrast to the prisoners of war, may generally be made objects of reprisals.
These hostages, too, were taken, as it says in Par. 358a. of the "Rules of Land Warfare", as a protection against unlawful acts of the enemy, and may, therefore, be punished or killed if those unlawful acts are nevertheless committed. I cannot see where, as HAMMAR & SALVIN and the prosecution claim, there exists an unsolved contradiction. All that in necessary is to observe the fundamental difference between hostages in the classical sense of the word and persons who are being taken or kept in order to become objects cf reprisals if the enemy violates international law, and who often are also called hostages.
I mentioned already that neither the London statute nor Control Council Law No. 10 considers the killing of people by way of reprisals as a war crime. They obviously refrain from doing so because reprisals might be a necessary means to force the opposing armed forces and the enemy population to observe the rules of warfare and to prevent them especially from crimes against members of the occupying power. Since the London Statute and Control Council Law No. 10 do not declare reprisals being forbidden, they do not apply to the killing of persons who were taken or kept for the purpose of becoming objects of reprisals, even if these persons are called hostages. This becomes evident through the fact that the army of occupation of the Soviet Union, that means, of one of the three principal powers who on 8 August 1945 signed the London Statute, shortly before that date decreed and publicly announced in Berlin the killing of hostages on a proportional basis of 1:50 as a reprisal for attacks against members of the army of occupation. This I shall prove.
IV It is obvious that the question of the status of the irregular combatants in Yugoslavia and Greece plays an important part in this trial.
First of all it is important in connection with Count 3 of the bill of indictment but it also touches the other points of the indictment as far as they deal with the problem of reprisals.
I agree with the prosecution that this is the question: Under which circumstances must combatants, if they are captured, be treated as prisoners of war, and under which circumstances can they be treated as armed bandits and be summarily executed?
The legal status of the resistance forces has also been discussed during the trial of Field Marshal KESSELRING before the British Military Tribunal in Venice. That trial dealt not only with resistance activities equal or similar to those, in Yugoslavia and Greece, but partly even with the same forces since, as is probably