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IV. THE EINSATZGRUPPEN CASE


A. War Crimes And Crimes Against Humanity

In the Einsatzgruppen Case, the defendants were charged in Count One with
Crimes against Humanity against German and foreign civilians, including
persecutions on political, racial and religious grounds, murder,
extermination, imprisonment, and other inhumane acts. 221 Count Two alleged
that the defendants had committed violations of the laws and customs of war,
including the murder and ill-treatment of prisoners of war and the civilian
populations of occupied territories. 222 The defendants also were charged
with membership in criminal organizations. 223
In anticipation of the German invasion of Russia, Hitler directed the
Security Police and the Security Service to assist the Wehrmacht in
maintaining order and combating resistance in the Soviet Union. The latter
phrases were euphemisms for the extermination of Jews, Gypsies, and
Communists. The security forces and the army agreed in the spring of 1941 to
form Einsatzgruppen killing squads. These units were to be under the control
of the Reich Security Main Office (RSHA), one of the twelve main offices of
the Security Police (SS). However, while functioning in the field, the
killing units were to be subordinate to the relevant military command which
was responsible for providing food, housing, and transport. 224 Four
Einsatzgruppen were established, each of which was assigned to a different
army group. Einsatzgruppe A was seconded to Army Group North; Einsatzgruppe B
was under the command of Army Group Center; Einsatzgruppe C was assigned to
Army Group South; and Einsatzgruppe D was to accompany the 11th German Army.
225 The Nazi leadership was candid concerning the expendability of the Jews,
Gypsies, Slavs, and Communists. Heinrich Himmler, head of the Security
Service, clearly communicated to his officers that the Slavs were of little
consequence:

What happens to a Russian, to a Czech does not interest me in the slightest .
. . . Whether nations live in prosperity or starve to death interests me only
so far as we need them as slaves for our Culture; otherwise, it is of no
interest to me. Whether 10,000 Russian females fall down from exhaustion
while digging an antitank ditch interests me only insofar as the antitank
ditch for Germany is finished . . . . When somebody comes to me and says, "I
cannot dig the antitank ditch with women and children it is inhuman, for it
would kill them," then I have to say, "You are a murderer of your own blood
because, if the antitank ditch is not dug, German soldiers will die, and they
are the sons of German mothers. They are our own blood . . . . We can be
indifferent to everything else." 226
Such insentient sentiments were shared by other German officials. Hans Frank,
the Governor General of occupied Poland, addressed a cabinet session in
December 1941: "Gentlemen, I must ask you to rid yourself of all feeling of
pity. We must annihilate the Jews, wherever we find them and wherever it is
possible, in order to maintain there the structure of the Reich as a whole."
227
On June 22, 1941, Germany invaded Russia. By December 1941, the eastern front
extended from Leningrad in the north to the Crimean Peninsula in the south.
The Baltic States, White Ruthenia, and most of the Ukraine were firmly under
German control. The three thousand men who comprised the Einsatzgruppen units
operated throughout this area for two years and were responsible for the
deaths of roughly one million. 228
The activities of these units was typified by Einsatzgruppe D, commanded by
Major General Otto Ohlendorf. During the first nine months of Ohlendorf's
command, Einsatzgruppe D executed more than ninety thousand, an average of
340 deaths per day. Between November 16 and December 15, 1941, Einsatzgruppe
D more than doubled this average daily death toll. 229 Ohlendorf testified
that his men would typically enter a village, collect and require the Jews to
hand over their clothing and valuables. The Jews then were transported to a
remote and isolated site where they were executed while kneeling or standing
adjacent to a ditch. The corpses fell into the ditch and were buried. The
killing squads usually shot in unison so as to enable the men to avoid a
sense of personal responsibility. By the spring of 1942, various units began
to utilize gas vans rather than firing squads. 230 Other squads deployed
experts "in the art of shooting in the neck." 231 By April 1942, Ohlendorf
was able to report that "[t]he Crimea is freed of Jews . . . . In cases where
single Jews [are able to] camouflage themselves . . . they will,
nevertheless, be recognized sooner or later, as experience has taught. 232
Ohlendorf stated that, "[i]t was my wish that . . . executions be carried out
in a manner and fashion which was military and suitably humane under the
circumstances." 233 This benevolent sentiment was based on utility rather
than humanity. Ohlendorf feared that forcing his men to engage in brutal
executions would create a "moral strain." 234 Yet, he had little problem
justifying the execution of children.

I believe that it is very simple . . . if one starts from the fact that this
order did not only try to achieve security, but also permanent security
because the children would grow up and surely, being the children of parents
who had been killed, they would constitute a danger no smaller than that of
their parents. 235
In some instances, Jews who were required for skilled labor were spared. As a
result, the authorities in the Baltic States reluctantly reported that, "an
annihilation of the Jews without leaving any traces could not be carried out,
at least not at the present moment . . . . many Jewish craftsmen are
indispensable . . . for repairing installations of vital importance, for the
reconstruction of towns destroyed, and for work of military importance." 236
As the need for Jewish labor decreased, the Jews in the Baltics were
gradually arrested and "executed in small batches." 237
The German military was perturbed over the policy of placing more importance
on the labor demands of the Reich than on the security requirements of the
occupied territories. General Wilhelm Kube, the General Commissioner of White
Ruthenia, wrote that he "would certainly much prefer that the Jewish
population in . . . White Ruthenia should be eliminated once and for all when
the economic requirements of the Wehrmacht have fallen off." 238 He urged the
termination of the transportation of workers to the Reich: "The Polish Jew is
exactly like the Russian Jew, an enemy of all that is German. He represents a
politically dangerous factor, the political danger of which exceeds by far
his value as a specialized worker." 239
Within two years, the Einsatzgruppen were able to report that their mission
was close to completion.

The systematic mopping up of the eastern territories embraced, in accordance
with the basic orders, the complete removal, if possible, of Jewry. This goal
has been substantially attained - with the exception of White Russia - as a
result of the execution up to the present time of 229,052 Jews. The remainder
still left in the Baltic Provinces is urgently required as labor and housed
in ghettos. 240
This, of course, was a massacre of innocents. 241 Perhaps two percent of
those who were executed had engaged in criminal activity. 242

B. Judgment

All twenty-one defendants were convicted. Fourteen were sentenced to death by
hanging, two to life imprisonment and three to twenty years in prison, and
two to ten years. 243
The Einsatzgruppen Case constituted the "biggest murder trial in history" -
an unprecedented prosecution of twenty-one individuals charged with
"destroying over one million of their fellow human beings." 244 While mass
murders had occurred in all eras, the Court noted that "it was left to the
twentieth century to produce so extraordinary a killing that even a new word
[genocide] had to be created to define it." 245 The defendants, unlike those
prosecuted at Nuremberg, had not been ensconced in their offices thousands of
miles from the front. Instead, these militarists were in the field, "actively
superintending, controlling, directing, and taking an active part in the
bloody harvest." 246
At a secret meeting conducted in May 1941, in Pretzsch and Dueben, Saxony,
the Einsatzgruppen and Einsatzkommando leaders were introduced to the
notorious Fuehrer Order. The Einsatzgruppen were instructed to liquidate
Jews, Gypsies, Communists, the elderly and infirm, and other opponents of
National Socialism. Children also were to be exterminated in order to
eliminate potential political enemies. The Tribunal observed that under the
guise of State security that these people were to be "hunted down like wild
game." 247
The prosecution's presentation primarily was based on the official accounts
prepared by the Einsatzgruppen leaders. 248 The Court observed that these
documents described the Germans' efforts to "liquidate" and "execute" the
Jews. 249 Opaque euphemisms often were employed to distance the defendants
from the consequences of their actions. The Jews were "rendered harmless,"
"got rid of," "done away with," "solved," "taken care of," or subjected to
"special treatment." 250 Additional reports recorded that areas, "'had been
purged of Jews'" or that "'the Jewish question was solved.'" 251 The
completion of the Einsatzgruppen's enterprise typically was marked by the
proclamation that, "'[t]here is no longer any Jewish population.'" 252 In
other instances, officers laconically recorded that an area had been "freed
of Jews." 253
In the end, the defendants, as typified by Paul Blobel, Commander of
Sonderkommando 4a of Einsatzgruppe C, seemingly demonstrated greater sympathy
for the executioners than for the victims. Blobel noted that, "[h]uman life
was not as valuable as it was with us. They did not care so much. They did
not know their own human value. . . . [O]ur men who took part in these
executions suffered more from nervous exhaustion than those who had to be
shot." 254 The Germans also callously calculated that the exterminations
yielded a "substantial material advantage. . . . [E]ven in the dread and grim
business of mass slaughter, a definite profit was rung up on the Nazi cash
register." 255 Money, jewelry, clothes, furniture, and houses were seized
from "liquidated Jews." 256
The Tribunal rejected the proposition that the defendants were being
prosecuted under a retroactive law. All nations were bound by the laws of war
which had evolved through common usage, acknowledgment, and recognition.
These rules universally condemned the wanton killing of noncombatants by an
occupying power. Clearly, "no one can claim with the slightest pretense at
reasoning that there is any taint of ex post factoism in the law of murder."
257
The fact that the Tribunal had not been established prior to the defendants'
alleged criminal conduct also did not transform the trial into a retroactive
prosecution. Russia had the right to prosecute those who had invaded her
territory as well as those who had violated the humanitarian law of war. The
Soviet Union, in the view of the Tribunal, also possessed the prerogative of
joining with other Allied Powers in order to collectively exercise Russia's
criminal jurisdiction. 258
The Court rejected the contention that international law did not apply to
individuals: "Nations can act only through human beings, and when Germany
signed, ratified, and promulgated the Hague and Geneva Conventions, she bound
each one of her subjects to their observance." 259 Nor was this an example of
the victors singling out the vanquished. The defendants, according to the
Tribunal, were being prosecuted because they committed crimes, not because
they fought for a defeated country. 260 "The doctrine that no member of a
wronged community may try an accused would for all practical purposes spell
the end of justice in every country. It is the essence of criminal justice
that the offended community inquires into the offense involved." 261
The defendants claimed that their actions were undertaken in defense of the
Reich and that they were entitled to engage in any acts which they reasonably
believed were required to preserve the German nation. 262 The Court rejected
this claim, reasoning that "any belligerent who is hard pressed would be
allowed unilaterally to abrogate the laws and customs of war. And it takes no
great amount of foresight to see that with such facile disregarding of
restrictions the rules of war would quickly disappear." 263
International law did not authorize the assassination of civilians who were
arbitrarily decreed to be dangerous. The defendants were unable to detail the
imminent danger posed by Jews who adhered to Communism or the process through
which Jews injected other Russians with Bolshevism. They also failed to
explain why non-Communist European and Russian Jews were executed. The
Tribunal observed that "when it came to a Jew, it did not matter whether he
was a member of the Communist Party or not. He was killed simply because he
was a Jew." 264
The Tribunal distinguished between the Allied aerial assaults on Berlin,
Dresden, Hamburg, Cologne and other German cities and the Nazi's killing of
civilians. These bombings were in reprisal for the German attacks on London,
Coventry, Rotterdam, and other Allied cities. Even if the bombings had not
been acts of reprisal, "there still is no parallelism between an act of
legitimate warfare, namely the bombing of a city, with a concomitant loss of
civilian life, and the premeditated killing of all members of certain
categories of the civilian population in occupied territory." 265
The Tribunal noted that a city customarily was targeted in an effort to
defeat the enemy. Once the enemy surrendered, the bombing was terminated. The
killing of civilians during such attacks often was "an unavoidable corollary
of battle action." 266 This differed from the Einsatzgruppen's deliberate and
premeditated execution of non-combatants. The latter bore no relation to the
pursuit of military objectives and continued long after the Germans had
secured control over enemy territory. 267
The defendants also claimed that they had complied with superior orders and
therefore lacked criminal intent. The Tribunal recognized that a solider is
trained to follow orders and that the military depends upon the efficient
carrying out of commands. However, the judges ruled that a subordinate is
only bound to obey lawful orders. A subaltern who knowingly accepts and
executes an illegal command may not plead superior orders in defense or
mitigation of the offense. 268
Various defendants professed that they were involuntarily thrust into a
situation in which they were required to engage in mass slaughter. 269 The
Tribunal observed that the extermination order was the logical outgrowth of
Nazi ideology. According to the Court, an individual who participates in a
program which "he knew to be illegal in its very inception . . . may not
excuse himself from responsibility for an illegal act which could have been
foreseen by the application of the simple law of cause and effect." 270
The Tribunal ruled that a defendant invoking the defense of duress must
satisfy the requirements of proportionality, imminence, and involuntariness.
A defendant must demonstrate that the harm caused by obeying the illegal
order was not disproportionately greater than the harm which would have
resulted from not obeying the order. It would not be an adequate excuse to
kill an innocent in order to avoid a few days confinement. The threat also
must have been "imminent, real, and inevitable." 271 An individual may not
plead duress once the threat is removed. 272 According to the Tribunal,

the test to be applied is whether the subordinate acted under coercion or
whether he himself approved of the principle involved in the order . . . .
The doer may not plead innocence to a criminal act ordered by his superior if
he is in accord with the principle and intent of the superior. 273
The Tribunal noted that a Commando leader who declared that he was
constitutionally incapable of engaging in mass exterminations, likely would
have been assigned to other duties, sent back to Berlin or dismissed. 274 The
defendants, thus, could not credibly contend that it was futile to request a
release from their responsibilities. In the end, the panel dismissed the
defense of duress and determined that the defendants had been driven by
ambition and animus to engage in mass executions. While they may have found
the executions unpleasant, the Court observed that the defendants were
nonetheless able to kill with few qualms of conscience. 275
Several defendants asserted that there was no point in attempting to avoid
involvement in the executions since others would have willingly assumed their
positions on the firing line. However, the panel pointed out that the
defendants could not confidently predict how others might react. One defiant
dissent might have sparked a firestorm of opposition. In the end, the judges
ruefully observed that the obligation to obey superior orders provided a
fanciful and flimsy justification for "mass butchery." 276
The Tribunal analogized the Fuehrer Order to a directive which required the
killing of all grey-eyed people, regardless of their age sex or position. 277
Although such an edict seemed "fantastic and incredible . . . [i]f one
substitutes the word Jew for grey-eyed, the analogy is unassailable." 278
Yet, during the trial, the defendants uniformly praised Hitler as a great
leader and statesman. They would have been elated had the Reich won the war,
even at the cost of two million German lives and the physical destruction of
Europe. 279 The Tribunal critically concluded that the defendants were among
those who had made it possible for a "megalomaniac to achieve his ambition of
putting the world beneath his heel or to bring it crashing in ruins about his
head. . . . When Samuel Johnson uttered his cynical line that patriotism is
the last refuge of a scoundrel, he could well have had in mind a Hitlerian
patriotism." 280
The Tribunal applied these basic principles and pronounced each of the
defendants guilty. SS General Otto Ohlendorf had led Einsatzgruppe D into the
Crimea. Ohlendorf had studied law and political science, and had pursued
careers as a barrister and economic analyst. 281 This self-professed humanist
commanded a unit which, as Ohlendorf conceded, killed ninety thousand
persons. He unsuccessfully sought exculpation under the self-defense and
superior orders defenses. 282
The other defendants also attempted to rely on these defenses. When
interrogated as to whether it was proper to shoot individuals for allegedly
spreading Communist propaganda, SS Brigadier General and Major General of
Police Heinz Jost, who commanded Einsatzgruppe A, which executed over one
hundred thousand, succinctly stated: "'According to my orders these measures
had to be carried out. . . . [I]t was correct and justified.'" 283 The
Tribunal, however, noted that, "there is nothing in international law which
justifies or legalizes the sentence of death for political opinion or
propaganda." 284
Defendant Erich Naumann served as chief of Einsatzgruppe B from November 1941
until February or March 1943. 285 Naumann conceded that he was cognizant that
executions were taking place. 286 He explained that, "'I considered the
decree to be right because it was part of our aim of the war and, therefore,
it was necessary.'" 287 When asked whether he "'saw nothing wrong with the
order, even though it did involve the killing of defenseless human beings' .
. . he replied 'yes.'" 288 Naumann asserted that the Fuehrer Order was
already operative at the time he assumed command of Einsatzgruppe B and that
he had not instructed his troops to carry out the command. The Tribunal ruled
that Naumann nevertheless possessed an affirmative duty to take such steps as
were within his power and appropriate under the circumstances to prevent
violations of the laws of war. 289
Others, such as Ernst Biberstein, Chief of Sonderkommando 6 under
Einsatzgruppe C, argued that every execution was preceded by an investigation
and that only those guilty of War Crimes were killed. Yet, Biberstein
testified that he had witnessed the extermination of sixty-five persons and
conceded that he was not certain whether each had been adjudged guilty. 290
In the case of defendant SS Lieutenant Colonel Walter Haensch, the Court
concluded that there was no evidence that investigations or trials had
preceded the executions carried out by those under Haensch's command. The
Tribunal reiterated that neither political belief nor religious affiliation
constituted grounds for execution under the law of war. 291
SS Brigadier General Erwin Schulz commanded Einsatzkommando 5, which formed
part of Einsatzgruppe C. 292 Schulz claimed that he was not responsible for
the executions which had occurred while he was absent in Berlin. The
Tribunal, however, noted that "[t]he man who places a bomb, lights the fuse,
and rapidly takes himself to other regions is certainly absent when the
explosion occurs, but his responsibility is no less because of that prudent
nonpresence." 293
SS Colonel Walter Blume was commander of Sonderkommando 7a which was attached
to Einsatzgruppe B. 294 Blume, like the other defendants, presented
affidavits testifying to his "honesty, good nature, kindness, tolerance, and
sense of justness." 295 The Tribunal bemoaned that a person of such moral
stature had fallen under the influence of Adolf Hitler. Hitler, "with all his
cunning and unmitigated evil would have remained as innocuous as a rambling
crank if he did not have the Blumes, the Blobels, the Braunes, and the
Bibersteins to do his bidding - to mention only the B's." 296

V. THE HOSTAGE CASE


A. The Execution Of Hostages

In the Hostage Case, twelve German officers were charged with War Crimes and
Crimes against Humanity. 297 The first count alleged between September 1939
and May 1945, that the defendants had executed hundreds of thousands of
Greek, Yugoslav, and Albanian hostages in reprisal for the wounding and
killing of German combatants and persons under German protection. 298 Count
Two charged that the defendants had unjustifiably looted and plundered public
and private property and wantonly killed the inhabitants of cities, towns,
and villages in the occupied territories of Norway, Greece, and Yugoslavia.
299 Count Three accused the defendants of initiating and drafting illegal
orders which they then issued and distributed to the troops under their
command. The troops subsequently carried out these orders which resulted in
the ill-treatment and death of civilians, combatants and prisoners of war. 300
 Count Four alleged that the defendants were involved in the imprisonment of
civilians in concentration camps and that these internees were subsequently
abused, tortured, subjected to involuntary servitude, and murdered. 301
In July 1939, as the plans for the invasion of Poland were being finalized, a
series of directives were distributed which authorized field commanders to
seize and execute hostages in reprisal for attacks on Germans troops. These
killings were intended to intimidate and ensure the cooperation of Poles
living under German occupation. By October 1939, hostages had been seized in
virtually every village in which troops were billeted. In the event of an
attack on the Wehrmacht or other Germans, division commanders were authorized
to ruthlessly retaliate. 302
The practice of reprisals continued in France and grew increasingly savage as
the Germans swept into the Balkans and Russia. On October 25, 1941, President
Franklin D. Roosevelt admonished that:

The practice of executing scores of innocent hostages in reprisal for
isolated attacks on Germans in countries temporarily under the Nazi heel
revolts a world already inured to suffering and brutality. Civilized peoples
long ago adopted the basic principle that no man should be punished for the
deed of another. 303

B. Serbia And Croatia

The three principal military figures in the German campaign in southeast
Europe were Wilhelm List, Heinrich von Kleist, and Maximilian von Weichs.
Following the capitulation of Yugoslavia in 1941, List was appointed Armed
Forces Commander Southeast. Kleist departed to head an armored group in the
Russian campaign. Von Weichs and the 2d Army also were scheduled to be
deployed on the Russian front, but remained in Yugoslavia while List
completed the conquest of Greece and Crete. Prior to departing for Russia,
von Weichs helped to recruit and organize Croatian militia units (Utasha)
which were infamous for their savagery. 304
On April 28, 1941, von Weichs issued an order which established the twin
touchstones of German occupation of Yugoslavia and Greece: a refusal to
recognize partisan fighters and suspected sympathizers as either lawful
belligerents or "protected persons;" and the execution of hostages in
reprisal for the wounding and killing of Germans. Von Weich's directive
specified that any armed individual clothed in a Serbian uniform
"transgresses the bounds of international law and is to be shot to death
immediately." 305 Men seized in the proximity of armed partisans also were to
be executed "if it cannot immediately be ascertained with certainty that they
were not connected with the band." 306 In the event of a surprise attack,
hostages were to be detained and killed. 307 The bodies of those who had been
shot were "to be hanged and left hanging." 308
Placards were posted in Serbian villages warning that one hundred inhabitants
would be killed for every German soldier "who comes to harm as a result of a
surprise attack conducted by Serbs." 309 Von Weich's specified that hostages
were to be seized in advance of attacks. However, the Germans were unable to
maintain a sufficient supply of reprisal prisoners and usually were forced to
arbitrarily detain and summarily execute civilians. 310
By September 1941, the Reich had completed the occupations of Yugoslavia and
Greece. Nevertheless, German forces continued to confront ferocious
opposition. Hitler charged List, as Armed Forces Commander Southeast, with
the task of suppressing the insurgent movement. In accordance with List's
request, Franz Boehme was named Plenipotentiary Commanding General in Serbia.
311 One of Boehme's first initiatives was to disseminate an order which was
to be destroyed after reading.

You are the avengers of [the] dead. An intimidating example must be created
for the whole of Serbia which must hit the whole population most savagely.
Everyone who wishes to live charitably sins against the lives of his
comrades. He will be called to account without regard for his person and
placed before a court martial. 312
List requested license to initiate an even harsher repressive regime. Field
Marshal Heinrich Keitel, Chief of the Armed Forces High Command, responded on
September 16, 1941 by authorizing the "severest means" against "Communist"
insurgents. 313

One must keep in mind that a human life frequently counts for naught in the
affected countries and a deterring effect can only be achieved by unusual
severity. . . . [T]he death penalty for 50 to 100 Communists must in general
be deemed appropriate as retaliation for the life of a German soldier. The
manner of execution must increase the deterrent effect. The reverse procedure
- to proceed at first with relatively easy punishment and to be satisfied
with the threat of measures of increased severity as a deterrent - does not
correspond with these principles and is not to be applied. 314
On September 28, Keitel directed military commanders to detain nationalists,
democrats, and Communists. He stressed that these hostages should be
prominent personalities or members of leading families in order to enhance
the impact of their detention and death. 315
Less than two weeks later, on October 10, 1941, Boehme pronounced that the
rambunctious "Balkan mentality" only could be combatted through "[s]peedy and
ruthless suppression." 316 Boehme specified that one hundred hostages were to
be executed for each German soldier or ethnic German killed or murdered;
fifty hostages were to be executed for each wounded German soldier or ethnic
German. These reprisals, if possible, were to be carried out by the unit
which had been the target of the attack and were to be publicized in the
press. The corpses were to be buried at distant locales and no crosses or
decorations were to adorn the graves. Despite List's stipulation that
captured combatants were to receive a court martial, Boehme ordered that
Communist combatants were to be subjected to summary execution. Villages
which had been occupied by enemy troops or from which gun fire had emanated,
were to be burned to the ground. 317
On October 4, 1941, Boehme ordered the execution of twenty-one thousand
persons in retribution for the killing and torture of twenty-one German
soldiers by "Communists bandits." 318 An earlier report recorded that an
"unidentified Jew" reportedly had thrown a bottle of gasoline at a German
motor vehicle. A sixteen year-old Serbian girl was arrested. She subsequently
"admitted that she was incited to the deed by a Jew" and, in reprisal, one
hundred Jews were summarily shot. 319
In late October 1941, a somewhat new cast of characters was scripted to
direct German operations in the Southeast. Walter Kuntze replaced List and
requested Boehme to supervise the suppression of partisans in Croatia and
Serbia. Hans Bader was appointed to direct the daily details of the Serbian
campaign and Herman Foertsch continued as Kuntze's chief of staff. 320 The
measures which had been initiated by List were enforced with increased
ferocity. Kuntze admonished his troops that "'[i]t is better to liquidate 50
suspects than lose one German soldier.'" 321 In a November 1941 order, Boehme
decreed that all captured insurgents, even those who had deserted, were to be
shot as partisans. 322 A February 6, 1942 order from Kuntze declared that
prisoners taken in combat "cannot be innocent . . . and . . . must . . . be
shot to death. The lenient attitude of the troops . . . is to combatted most
vigorously!" 323 Those who "loiter in the combat terrain . . . and are not in
their residence . . . must . . . be shot to death." 324 On March 19, 1942,
Kuntze ordered the troops to deploy the Serbian population to clear the
terrain in areas which had been mined. 325
Kuntze and the other commanding officers were well-aware that reprisal
actions continued to be carried out. 326 A typical report, dated November
1941, detailed the shooting of Jews and Gypsies who had been seized from the
prison camp at Belgrade. 327 The lieutenant in charge complained that the
only trucks available were operated by civilian drivers and lacked tarpaulins
and that, as a result, "secrecy [was] not assured." 328 He confirmed that the
prisoners' valuables and luggage had been collected and had been turned over
to the National Socialist Peoples' Welfare. While the prisoners took a
substantial amount of time to dig their collective grave, the report noted
that the actual executions "went very rapidly." 329 Kuntze vacated the post
of Armed Forces Commander Southeast on August 8, 1942. In less than a year,
his troops had killed forty-five thousand persons in Croatia and Serbia.
Thousands of others had been deported to work as slave labor in Norway and in
the Reich. Kuntze was replaced by Alexander Loehr. Hermann Foertsch, who had
served as chief of staff under both List and Kuntze, remained in the same
capacity throughout Loehr's twelve month tenure. General Bader continued as
commanding general in Serbia. Kurt von Geitner served as Bader's chief of
staff. 330
The reprisal procedure was well-established. The killing or wounding of
occupation forces, the severing of telephone lines, the sabotage of railroad
tracks, the igniting of mines or attacks on transport were met with an
immediate response. A standardized reprisal protocol was formulated in order
to insure uniform and expeditious reprisals. 331

For one German, or one Bulgarian occupational corps member, killed, 50
hostages are to be executed.
For one German or one Bulgarian occupational corps member wounded, 25
hostages are to be executed.
For the killing of a person in the service of the occupying power, regardless
of his nationality, or a member of the Serbian Government, high Serbian
official (district supervisor or mayor), official of the Serbian State Guard,
or member of the Serbian Volunteer Corps, 10 hostages are to be executed.
For the wounding of any person in the previous categories, five hostages are
to be executed. For an attack against important war installations, up to 100
hostages are to be shot to death, according to the seriousness of the case.
332
In less serious cases, various forms of collective punishment, such as the
burning of houses or monetary fines, were to be imposed. Bader directed that
hostages should be drawn from those who had cooperated with or had displayed
"intentionally passive behavior toward the culprits" (so-called
"bandit-helpers"). 333 In those instances in which "accomplices" were not
apprehended, hostages were to be collected from among those who were
"considered coresponsible, although they may not have any connection with the
particular incident." 334
Faced with a dwindling supply of hostages, the Security Police was pressured
to provide the human fodder required to fuel the machinery of extermination.
The constabulary, with the assistance of collaborators, compiled lists of
"suspects" who were to be detained. The inventory included the relatives of
men who were inexplicably absent from a village, nonconformists, and
individuals who had reportedly displayed a hostile or uncooperative attitude.
This was an imprecise process and individuals frequently were arbitrarily
included on the hostage list. 335 Hostages frequently had to be collected
from areas far from the site of an attack in order to fulfill the execution
quota. 336 Reprisals were even carried out in those instances in which the
perpetrators of an attack were apprehended or killed. In December 1942, a
twenty-year-old female assassin wounded two German officers and killed a
member of the Serbian militia. The woman subsequently committed suicide.
Nevertheless, over seventy-five hostages were executed in retaliation. 337

C. Croatia And The Italian Surrender

By the end of 1942, Tito had developed a militia of over one hundred thousand
and had come to control a significant portion of Croatia. The Germans reacted
by executing hostages, burning villages, and detaining those suspected of
assisting Tito's forces. Loehr and Foertsch emphasized that "'individual
soldiers should not be prosecuted for being too severe with the native
inhabitants'" and warned that commanders who refused to resort to retaliatory
measures would be held "responsible." 338
Despite the fact that the Reich intelligence service had concluded that
Tito's units were formally organized and uniformed, the Wehrmacht refused to
recognize the partisans as lawful combatants. Tito's forces were executed
without hearing, trial, or court martial. A January 7, 1943 directive
ordered: "'Execute and hang partisans, suspects, and civilians found with
weapons. No formal proceedings are necessary.'" 339 Foertsch reported to the
Army High Command in Berlin that, as of September 8, 1942, that 52,362
"insurrectionists" had been shot. 340
On July 10, 1943, the Allies landed in Sicily and quickly pushed into the
Italian mainland. Five weeks later, the Italian armed forces unconditionally
surrendered. Already having suffered devastating defeats in North Africa and
Russia, the Germans were determined to invigorate their war effort in the
Balkans. 341 Field Marshal Maximilian von Weichs was brought back from the
Russian front to assume command over the newly-formed Army Group F which was
assigned to southeastern Europe. Foertsch, who had served as chief of staff
under List, Kuntze, and Loehr, continued in the same post under von Weichs.
Loehr was placed under von Weichs' command and was assigned to head Army
Group E, which was to operate in Greece and the Aegean Islands. Helmuth Felmy
and Hubert Lanz were appointed corps commanders under Loehr. In order to
combat the partisans, the headquarters of the 2d Panzer Army was shifted from
Russia to Croatia. General Lothar Rendulic, an Austrian veteran of the Polish
and French campaigns, was charged with spearheading the fight against Tito's
forces in Croatia. Rendulic's two corps commanders were Ernst von Leyser and
Ernst Dehner. Bader was thought to be too old and hesitant to continue as
German commander in Serbia and was therefore, replaced by Hans Felber, who
had established his reputation in occupied France. Kurt von Geitner continued
as chief of staff. 342
Von Weichs' immediate challenge was to disarm and neutralize the Italian
armed forces in Croatia, Montenegro, Albania, and Greece. 343 Under the terms
of the armistice, the Italians were to cease hostilities against the United
Nations and withdraw. Berlin ordered that Italian soldiers who desired to
continue fighting should be permitted to retain their arms and should be
provided the same rations and fifty percent of the compensation accorded to
German combatants. The others were to be disarmed, imprisoned and turned over
the Plenipotentiary for Labor Allocation and the Reich Minister for War
Production and Armament. Officers who had permitted their unit's armaments to
fall into the hands of insurgents or who had assisted or fought with the
partisans were to be executed following a summary court martial. 344
The Fuehrer's order was savagely implemented. In Croatia, Italian divisions
which had destroyed their arms and supplies suffered the execution of the
divisional command, one staff officer and fifty soldiers. Combatants who had
sold, given away, destroyed or who were not in possession of their weapons,
also were shot. One officer and ten infantry men were killed for each
motorized vehicle which had been sabotaged. 345
Once having disarmed and liquidated the remnants of the Italian Army, the
Southeast Command once again turned to the pacification of Croatia. The
partisans had been armed and equipped by the Allies and now were capable of
launching full-scale attacks. 346 Overwhelmed, the Germans, in 1943 and 1944,
deployed increasingly brutal terror tactics against the indigenous
population. Having already detained and decimated the Jews as well as those
who were considered democrats and nationalists, the Germans now seized the
remaining "Communists," "bandit suspects," "bandit helpers," and relatives of
"bandits." 347
The Wehrmacht entered villages, assembled the population, and demanded
information concerning the size, location, and leadership of partisan bands
as well as the names of new arrivals and those absent from the village. The
entire male population of villages which refused to cooperate were deported
to hostage camps. 348 In those instances in which shots were fired from a
village, the hamlet was burned to the ground and the "'bandit suspects'" and
"'bandit helpers'" were executed. 349 The other inhabitants were evacuated to
work in the Reich. 350

D. Greece

By early summer 1943, the German grip on Greece had loosened and the country
was slipping from the grasp of the Reich. 351 The Germans adopted the same
terror tactics which had been employed in Yugoslavia. 352 In December 1943,
partisans were alleged to have imprisoned and executed seventy-eight German
soldiers. In reprisal, "Operation Kalavritha" was initiated - an eight day
bloodbath in which twenty-four villages and three monasteries were destroyed
and 696 people were executed. 353
In April 1944, two members of the German military were attacked and killed
two miles from the village of Klissura. German troops from the 7th SS Panzer
Grenadier Regiment entered the village and executed 223 persons, including
fifty children under ten and 128 women. Von Weichs undertook an investigation
and dismissed allegations of atrocity. 354 He disingenuously reported that,
"'[t]he Greek witnesses cannot be believed. The village was taken by storm,
the inhabitants killed by artillery fire. There was no retaliation action.'"
355
Two months following Klissura, the 7th SS Panzer Grenadier Regiment was
purportedly fired upon near the village of Distomon. The Germans entered the
village and executed over 270. 356 Berlin initiated an investigation which
revealed that the regiment had issued a false combat report which recorded
that the civilians had been killed during a hard-fought battle. Nevertheless,
Field Marshal von Weichs and General Felmy agreed that the action had been
justified and that headquarters would have approved the attack had a request
been lodged. The reprisal had saved the time and resources which would have
been required to send troops back into the village. Von Weichs and Felmy
concluded that the officer's action was "'merely a transgression against
formality and corresponded to a natural soldierly feeling.'" The officer was
only subjected to disciplinary sanctions. 357

E. Norway

Charges of devastation and deportation also were lodged against various
defendants stemming from the conduct of the 20th Mountain Army in northern
Norway. On September 4, 1944, Finland surrendered to the Soviet forces and
demanded that the Germans immediately withdraw their troops. Faced with a
Russian advance, General Lothar Rendulic retreated across the northwestern
Finnish frontier into Finmark and Troms, the two northern-most Norwegian
provinces. The population of this area numbered roughly sixty-two thousand,
most of whom lived in small sea-side villages and made their living fishing
the nearby waters. 358
In late October 1944, in order to deny provisions and supplies to the
advancing Russian troops, the German High Command ordered Rendulic to
systematically destroy buildings and port facilities and to evacuate the
population. 359 Rendulic commanded his subordinate units to "ruthlessly"
implement the directive in order to insure that the Norwegians were
"preserved from Bolshevism." 360 He stressed that "[p]ity for the civilian
population is out of place." 361 Rendulic warned the Norwegian population
that, "[h]e who does not comply with these unequivocal instructions exposes
himself and his family to possible death in the arctic winter without house
or food." 362
Northern Norway was transformed into an "Arctic desert." 363 Roughly
forty-three thousand people - over two thirds of the population of an area
roughly the size of Scotland - were crowded into small vessels and evacuated.
Reports documented a pattern of persecution, including the separation of
families, the burning of houses, and the shelling of villages. 364

F. Judgment

The three judge panel convicted eight of the ten defendants. 365 Two received
life imprisonment and the remainder were sentenced to between seven and
twenty years in prison. 366
The Court recognized that the proceedings were vulnerable to the criticism
that the presiding panel was comprised of judges who were drawn from a victor
nation. In the absence of an international court, the Tribunal observed that
there was no alternative other than to prosecute the defendants before an
Allied tribunal. The judges recognized that their decision inevitably would
be subject to scrutiny and pledged to provide a "fair, dispassionate, and
impartial determination of the law and the facts." 367 They were acutely
aware that "the victors of the present may be the vanquished of the future"
and that "the hand of injustice may fall upon those who . . . vindictively
contend for . . . far reaching pronouncements . . . ." 368 The panel also
pledged to represent the interests of all peoples and proclaimed that it
would endeavor to advance the aspiration of insuring peace through law. 369
The judges conceded that there were strong arguments in favor of foregoing
prosecution. Strict discipline was required in a military organization and
some believed that it was unfair to prosecute those who had dutifully
discharged the dictates of their superiors. This sense of inequity was
exacerbated by the fact that only the vanquished were being held to account.
The passage of time and the return to peaceful pursuits also had diminished
the demand to bring Nazi war criminals to trial. Nevertheless, the Tribunal
concluded that such qualms should be quieted by the realization that
"[u]nless civilization is to give way to barbarism in the conduct of war,
crime must be punished . . . . If the laws of war are to have any beneficent
effect, they must be enforced." 370
The Court crafted a cautious decision which was characterized by a
conservative analysis. The text avoided bold pronouncements and strictly
interpreted the relevant facts and applicable legal standards. 371 The
Tribunal first addressed the defendants' contention that they had acted
pursuant to superior orders and thus should be exonerated. 372
Although appreciative that discipline was essential to a military
organization, the Court held that international law did not extend immunity
to those who knowingly acted pursuant to an order which was unlawful under
international law. 373 The panel recognized that this rule compelled a
combatant to choose between "possible punishment by his lawless government
for the disobedience of the illegal order of his superior officer, or that of
lawful punishment for the crime under the law of nations." 374 Nevertheless,
the refusal to recognize the superior orders defense was intended to impede
the ability of regimes to implement illegal policies which posed a peril to
enemy civilians and combatants. 375
The Court ruled that Germany possessed the rights and privileges of a lawful
occupant under international law in both Yugoslavia and Greece and that this
occupancy persisted until the fall of 1944. Although the partisans assumed
sporadic control of the countries, the Tribunal noted that this was
transitory and tolerated by the Germans who, at various times, reasserted
their authority. These temporary losses of control were not deemed to deprive
the German armed forces of occupancy status. 376
The fact that the invasions of Yugoslavia and Greece were acts of aggression
did not deprive Germany of the status of a lawful belligerent. The Tribunal
noted that the reciprocal rights and duties of an occupant and the occupied
population were not dependent upon the legality of the military incursion. As
a result, the Court ruled that "it does not follow that every act by the
German occupation forces against person or property is a crime or that any
and every act undertaken by the population of the occupied country against
the German occupation forces thereby became legitimate defense." 377
The Tribunal also concluded that most Yugoslav and Greek partisans had failed
to comply with the rules of war and were not entitled to the status of lawful
belligerents. 378 According to the Court, the guerrillas often were
integrated into a military command structure, but possessed no common
identifiable uniform and their insignia (e.g. the Soviet star) typically was
not visible at a distance. In addition, the partisans did not openly carry
arms. As a result, the Tribunal held that "captured members of these unlawful
groups were not entitled to be treated as prisoners of war. No crime can be
properly charged against the defendants for the killing of such captured
members of the resistance forces . . .." 379 Undoubtedly, in some instances,
lawful belligerents were unjustifiably executed. Nevertheless, the judges
ruled that the situation as it appeared to a military commander "must be
given the first consideration . . . . Where room exists for an honest error
in judgment, such army commander is entitled to the benefit thereof by virtue
of the presumption of innocence." 380
The Tribunal ruled that the defendants were entitled under international law
to seize and execute hostages in reprisal for violations of the law of war.
381 The justifiability of reprisals was based on the collective
responsibility of the inhabitants of an occupied territory to conduct
themselves in a peaceful and lawful fashion. A breach of this obligation
entitled the occupant, as a last resort, to seize and execute hostages. 382
However, the Court ruled that a number of conditions must be satisfied. There
must be a connection between the hostages and those responsible for the
criminal attack. 383 A proclamation must be issued enumerating the names and
addresses of the hostages; and the population is to be notified that a
recurrence of the illegal conduct will result in reprisal. The seizure and
subsequent execution of hostages only may be justified in those instances in
which the perpetrators are not apprehended. The number killed is required to
be proportionate to the provocation. Finally, a court-martial must certify
that the required conditions have been satisfied. 384
Germany's arbitrary reprisal actions could not be justified on the basis of
military necessity. According to the Tribunal, necessity permits the
incidental and unavoidable destruction of civilian life and property during a
lawful military operation. The devastation must be imperatively demanded by
the exigencies of war and must not be disproportionate to the military
objective. Military necessity, however, does not justify the indiscriminate
and wanton devastation of property or innocents and does not provide a
defense to the intentional violation of the prohibitive rules of the law of
war. 385
Rather than committing additional manpower to the occupation of Greece and
Yugoslavia, the German High Command adopted a campaign of intimidation and
terrorism. However, the Tribunal stressed that international law must be
followed, even at the risk of military defeat. 386 "If adequate troops were
not available or if the lawful measures against the population failed in
their purpose, the occupant could limit its operations or withdraw from the
country in whole or in part, but no right existed to pursue a policy in
violation of international law." 387
The Court also rejected the contention that the defendants were being
prosecuted for the type of conduct which had been engaged in by the Allies.
The judges failed to find a single instance in which the Allied forces had
executed a reprisal prisoner. Nor did the bombings of Hiroshima and Nagasaki
and the aerial raids against Dresden modify the rules of modern warfare and
legitimize the Nazi's reprisal policies. These bombings were in response to
the Reich's illegal aerial attacks on Rotterdam, Warsaw, Belgrade, Coventry,
and Pearl Harbor. The Court observed that the Germans may not violate the law
of war, invite retaliation, and then credibly claim that the standards
governing the conduct of war were altered. 388
The central factual issue was whether it was clear beyond a reasonable doubt
that the defendants were legally linked to the illegal reprisal policy. 389
The Court ruled that the German military commanders were presumed to be
cognizant and culpable of criminal conduct within the scope of their
territorial command. Military commanders also were responsible for events
occurring in their absence which resulted from their orders, directions, or
prescribed policies. However, they were not liable for criminal conduct
occurring in their absence which did not result from their decisions and
directives, unless they later ratified the action. 390
The lead defendant was Wilhelm List, the fifth ranking field marshal in the
German military. List commanded the 12th Army during the invasions of
Yugoslavia and Greece and, in June 1941, assumed command of the Armed Forces
Southeast. He held this position until compelled to retire on account of
illness in October 1941. As Commander Southeast headquartered in Salonika,
List was the supreme representative of the armed forces in the Balkans and
exercised executive authority over the territories occupied by German troops.
391
The Tribunal agreed that Tito's troops were not entitled to prisoners of war
status and were subject to execution upon apprehension. 392 List also denied
having ordered the killing of hostages. The Tribunal, however, determined
that List had transmitted the Keitel order which established a 100-to-1
reprisal ratio. A command to take reprisals at such an arbitrarily fixed
ratio, regardless of the provocation, clearly constituted a violation of
international law. 393

Such an order appears to have been made more for purposes of revenge than as
a deterrent to future illegal acts which would vary in degree in each
particular instance . . . . The order for the killing in reprisal appears to
have been arbitrarily issued and under the circumstances . . . is nothing
less than plain murder. 394
List protested that he had merely distributed the Keitel order and should not
be held culpable for the conduct of his subordinates. The Tribunal stressed
that an officer who "distributes, issues, or carries out a criminal order
becomes a criminal if he knew or should have known of its criminal
character." 395 A field marshal, like List, with over forty years of military
service, certainly knew or should have known of the criminal character of
Keitel's command. List's purported opposition to the order evidenced his
realization that the reprisal policy was violative of international law. 396
The Tribunal also rejected List's claim that he was absent from headquarters
and was unaware of the illegal reprisals. List had distributed the reprisal
order and was charged with notice of events within the scope of his command.
"If he fails to require and obtain complete information, the dereliction of
duty rests upon him and he is in no position to plead his own dereliction as
a defense." 397
List was succeeded on October 27, 1941, by Walter Kuntze, who also was
convicted of involvement in illegal reprisals. 398 Kuntze enthusiastically
encouraged reprisals and ordered that "'[v]illages with Communist
administration are to be destroyed and men taken . . . as hostages. If it is
not possible to produce the people who have participated in any way in the
insurrection or to seize them, reprisal measures of a general kind may be
deemed advisable . . . .'" 399
Defendant Hermann Foertsch served as chief of staff during the German
occupation. 400 Foertsch supervised various administrative departments and
distributed orders and reports. Although he lacked command authority,
Foertsch was authorized to sign routine directives. 401 Orders from Berlin
and reports from the field were conveyed through and by Foertsch. He, thus,
possessed the same information as did defendants List and Kuntze. 402
Nevertheless, the Tribunal failed to find that Foertsch had affirmatively
engaged in criminal conduct - he neither ordered, abetted nor took a
consenting part in illegal activity. Thus, "[n]o overt act from which a
criminal intent could be inferred, has been established." 403
General Lothar Rendulic was named Commander in Chief of the 2d Panzer Army on
August 26, 1943, and remained in that position until June 1944. In July 1944,
Rendulic was appointed head of the 20th Mountain Army, a position which he
held until January 1945. In December 1944, Rendulic also was designated as
Armed Forces Commander North. 404
The 2d Panzer Army was headquartered in Croatia and was charged with
suppressing partisan warfare and guarding the coast against enemy attacks. 405
 According to the Tribunal, Rendulic condoned the illegal execution of
hostages and made no effort to apprehend the guilty, provide public notice,
or to conduct judicial hearings. Under Rendulic and the other defendants, the
execution of hostages, "became so common that the German commanders became
indifferent to the seriousness of the acts. They appear to have been accepted
as legitimate acts of war with the extent of their use limited only by the
whim or judgment of divisional commanders." 406
Following the September 8, 1943 surrender of Italian forces, Rendulic
notified Italian commanders that those who refused to surrender would be shot
as terrorists. Severe retaliations were ordered against troops engaging in
sabotage or assisting the partisans. Soon thereafter, Rendulic received and
distributed Hitler's directive requiring reprisal actions against Italian
troops. On October 6, 1943, Rendulic's forces captured and executed three
Italian generals and fifty-four officers for treason. 407 According to the
Court, the Italian forces qualified as lawful belligerents and were entitled
to be treated as prisoners of war. 408 The "execution of these Italian
officers . . . cannot be described as anything but an act of vengeance." 409
Rendulic was acquitted of the wanton destruction of property in Norway during
the retreat of the 20th Mountain Army. 410 The Tribunal noted that
international law authorized the destruction or seizure of enemy property
where imperatively demanded by the necessities of war. While there was no
military necessity for the German demolition and devastation, considering the
facts and circumstances as they appeared to Rendulic, his decision may have
been "faulty, but it cannot be said to be criminal." 411
Helmuth Felmy was appointed Commander Southern Greece in June 1941 and
continued in this position until August 1942. On May 10, 1943, Felmy became
commander of the LXVIII Corps and, on September 9, 1943, Felmy was selected
to command the Army Group Southern Greece. 412 Felmy, like the other
commanding officers, received and transmitted reprisal orders. 413 Those
executed often were distant from the site of attack or were selected based on
their alleged Communist or terrorist sympathies. According to the Tribunal,
"[i]t was more the case of an eye for an eye than an honest attempt to
restrain the population by a use of hostage and reprisal measures as a last
resort." 414
Felmy's lack of concern for innocents is illustrated by his investigation
into the massacres at Klissura and Distomon [Greece]. At Klissura alone,
German forces killed roughly 215 civilians, seventy-two of whom were under
fifteen. 415 Felmy concluded that the commanding officer's unilateral
decision to execute and then cover-up the killings was in violation of German
policy. Felmy nevertheless recommended a minor disciplinary sanction. The
Tribunal observed that Felmy

seems to have had no interest in bringing the guilty officer to justice. Two
of the most vicious massacres of helpless men, women, and children appear to
have met with complete indifference on his part. The falsification of the
battle report by the regimental commander seems to have been deemed the major
offense. 416

-----
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