-Caveat Lector- from; http://www.codoh.com/trials/triamprosnazis.html Click Here: <A HREF="http://www.codoh.com/trials/triamprosnazis.html">War Crimes: American Prosecution of Nazi Milita�</A> ----- 324 . Id. (emphasis omitted). 325 . Extract from Opening Statement of the Prosecution, Id. at 809. 326 . See Draft Of Teletype From Armed Forces Commander Southeast To Commanding General Serbia, 6 February 1942, Requesting Reports On All Reprisal Measures, id. at 999. 327 . Report From 724th Infantry Regiment TO 704th Infantry Division, 4 November 1941, Enclosing Report Of The Shooting Of Jews And Gypsies, id. at 995, 996. 328 . Id. at 996. 329 . Id. The shooting to death of Jews is simpler than that of gypsies. It must be admitted that the Jews accept death very calmly, they stand very quietly, while the gypsies cry, scream, and move continuously when they are already on the spot where they are to be shot to death. Some of them even jumped into the ditch before the firing and attempted to feign death. Id. at 997. 330 . Extracts from Opening Statement of the Prosecution, Id. at 810. 331 . Id. at 811. In Serbia, the district command notified field headquarters of any incident. The field headquarters, in turn, notified Geitner, Bader's chief of staff, suggesting reprisal measures. Geitner and Bader would then either approve or revise the proposed measures. Once the reprisal had been carried out, reports were sent through the established channels. Id. 332 . Id. at 811-812. 333 . Order Of Commanding General Serbia, 28 February 1943, Concerning Reprisal Measures And Reducing Reprisal Ratios, id. at 1020, 1022. 334 . Id. (emphasis omitted). 335 . Extracts from Opening Statement of the Prosecution, id. at 814-815. 336 . See Order Of Commanding General Serbia, 28 February 1943, Concerning Reprisal Measures And Reducing Reprisal Ratios, id. at 1020. 337 . See Extracts from Opening Statement of the Prosecution, id. at 813. 338 . Id. at 817. 339 . Id. 340 . Id. 341 . Id. at 818-23. 342 . Id. at 820-21. 343 . Id. at 821-22. 344 . Id. at 822. See Extracts From Basic Order, 15 September 1943, Signed By Keitel, Concerning Treatment Of Members Of Italian Army, id. at 1081, 1082. 345 . Extracts from Opening Statement of the Prosecution, id. at 823. The prosecution characterized this "calculated slaughter" of captured and surrendered Italian officers as "one of the most lawless and dishonorable actions in the long history of armed combat." Id. at 824. Various reports documented the harsh treatment meted out to the Italian prisoners: On 27 September 1943, from Split on the Dalmation coast - City and port occupied, 3 generals, 300 officers, 9,000 men of the Italian "Bergamo" Division taken prisoners; officers to be shot to death according to the Fuehrer order. 30 September and 1 October 1943 - 3 generals shot in Split after summary court martial; 45 more guilty Italian officers shot in Split. . . . >From the XXI Mountain Corps on 9 October 1943 - Operations against the Italian 'Taurinense' Division concluded in the main, reprisal measures carried out against 18 officers. >From the XXII Mountain Corps on 23 September 1943 - General Gandin and all his staff captured, special treatment according to Fuehrer order. The following day - General Gandin and all officers have been shot. Id. at 823. 346 . Id. at 824. 347 . Id. at 825. 348 . Id. 349 . Id. at 826. 350 . Id. The prosecution noted that this "rampage of blood and cruelty . . . can only be duplicated in history by the orgies of Genghis Khan." Id. at 827. 351 . Id. at 828-829. The Greek resistance was consolidated into two major organizations - the ten thousand partisans who belonged to "Edes" in the Epirus section of western Greece and the fifteen thousand strong "Elas" in eastern Greece, the Peloponnesus Peninsula, Crete and the islands. The Greek partisans were collectively known as "Andartes." Id. 352 . Id. at 830. 353 . Extracts From War Diary No. 3, LXVIII Army Corps, Concerning Operations In Peloponnesus, Greece, 28 November-14 December 1943, id. at 1030-33. 354 . Extracts from Opening Statement of the Prosecution, id. at 831. 355 . Id. at 832. 356 . Id. 357 . Id. at 833. 358 . Id. at 834-835. 359 . Id. at 835. See Extracts Of Teletype From Fuehrer Headquarters Signed By Jodl To 20th Mountain Army, 4 October 1944, Ordering Evacuation Of Northern Norway, id. at 1113, 1114 (emphasis omitted). 360 . Teletype From 20th (Mountain) Army To Subordinate Units, 29 October 1944, Signed By The Defendant Rendulic, Concerning Evacuation Of Northern Norway, id. at 1114, 1115. 361 . Id. 362 . Proclamation To Norwegian Population Signed By Rendulic And Terboven, id. at 1117. 363 . Extracts from Opening Statement of the Prosecution, id. at 839. 364 . Id. 365 . HOSTAGE JUDGMENT, supra note at 3. The sentences were: Wilhelm List, life imprisonment; Walter Kuntze, life imprisonment; Lothar Rendulic, twenty years in prison; Ernst Dehner, seven years in prison; Ernst von Leyser, ten years in prison; Hubert Lanz, twelve years in prison; Helmuth Felmy, fifteen years in prison; Wilhelm Speidel, twenty years in prison. The defendants Hermann Foertsch and Kurt von Geitner were acquitted. Id. at 1318-19. Franz Boehme committed suicide prior the arraignment and the case against the defendant von Weichs was severed for reasons of physical disability. HOSTAGE MATERIALS, supra note 59, at 759. The presiding Judge was Judge Charles E. Wennstrum of the Supreme Court of Iowa; Judge Edward F. Carter, Judge of the Supreme Court of Nebraska; and Judge George J. Burke, member of the Bar of the State of Michigan. Id. at 762. 366 . HOSTAGE JUDGMENT, supra note 3, at 1318-19. 367 . Id. at 1318. The Tribunal observed that it is a "reproach upon the initiative and intelligence of the civilized nations of the world that international law remains in many respects primitive in character." Id. 368 . Id. at 1254. 369 . Id. 370 . Id. 371 . See infra notes 378-86 and accompanying texts. According to the Court, the vesting of extraterritorial jurisdiction in belligerent States was based on the fact that the defendants's own government likely would be reluctant to bring the accused to trial. The American judges observed that a requirement that a belligerent must forego prosecution following the termination of hostilities would be "equivalent to a passport to freedom." Id. at 1242. The Tribunal also observed that "[i]t cannot be doubted that the occupying powers have the right to set up special courts to try those charged with the commission of war crimes as they are defined by international law." Id. 372 . See id. at 1236. 373 . Id. The judges ruled that the municipal law of civilized nations generally had rejected the defense and that "it properly may be declared as an applicable rule of international law." Id. An individual was considered to possess the requisite criminal intent if he or she is knew of the illegality of an order or reasonably should have known of the illegality of an order. Id. at 1236. 374 . Id. at 1237. 375 . Id. 376 . Id. at 1243. Whether an invasion has developed into an occupation is a question of fact. The term invasion implies a military operation while an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organized resistance and the establishment of an administration to preserve law and order. To the extent that the occupant's control is maintained and that of the civil government eliminated, the area will be said to be occupied. Id. 377 . Id. at 1247. Once having assumed the authority of a lawful occupant, international law placed the responsibility upon the commanding general of the German armed forces to preserve order, punish crime, and to protect lives and property. At the same time, the occupying power is obligated to respect the laws in force in the country and was required to abide by international standards of conduct. Id. at 1244-45. An occupant also is to protect family honor and rights, the lives of individuals and their private property and religious convictions. Pillage, collective penalties and appropriation of property are prohibited. Id. at 1245. 378 . Id. at 1245. 379 . Id. at 1244. 380 . Id. at 1246. Such commander will not be permitted to ignore obvious facts in arriving at a conclusion. One trained in military science will ordinarily have no difficulty in arriving at a correct decision and, if he willfully refrains from so doing for any reason, he will be held criminally responsible for wrongs committed against those entitled to the rights of a belligerent. Id. 381 . Id. at 1248-49. Hostages under the alleged modern practice of nations are taken: to protect individuals held by the enemy; to force the payment of requisitions and contributions; and to deter unlawful acts by enemy forces or people. Id. at 1248. The Tribunal noted that in the modern period, the taking and execution of hostages, according to the Tribunal, was most frequently employed by Germany. The Germans took reprisals against hostages during the France-Prussian War, World War I and World War II. While recognizing the justifiability of this practice, neither the United States, Great Britain, France nor the Soviet Union reportedly seized or executed hostages. Id. at 1251. 382 . Id. at 1249-50. One or more of the following measures are to be taken prior to a resort to reprisals: (1) the registration of the inhabitants, (2) the possession of passes or identification certificates, (3) the establishment of restricted areas, (4) limitations of movement, (5) the adoption of curfew regulations, (6) the prohibition of assembly, (7) the detention of suspected persons, (8) restrictions on communication, (9) the imposition of restrictions on food supplies, (10) the evacuation of troublesome areas, (11) the levying of monetary contributions, (12) compulsory labor to repair damage from sabotage, (13) the destruction of property in proximity to the place of the crime, and any other regulation not prohibited by international law that would in all likelihood contribute to the desired result. Id. at 1250. 383 . Id. Nationality or geographic proximity may under certain circumstances afford a basis for hostage selection, depending upon the circumstances of the situation. This arbitrary basis of selection may be deplored but it cannot be condemned as a violation of international law, but there must be some connection between the population from whom the hostages are taken and the crime committed. If the act was committed by isolated persons or bands from distant localities without the knowledge or approval of the population or public authorities, and which, therefore, neither the authorities nor the population could have prevented, the basis for the taking of hostages, or the shooting of hostages already taken, does not exist. Id. 384 . Id. Judicial proceedings may become "ritualistic and superficial when conducted in wartime. However, the judges observed that such hearings appear to be the best available safeguard against cruelty and injustice." Id. at 1253. Judicial approval is not required where "it appears that the necessity for reprisal requires immediate reprisal action to accomplish the desired purpose and which would be otherwise defeated by the invocation of judicial inquiry." Id. 385 . Id. at 1253-1254. See also id. at 1256. 386 . Id. at 1272. The German theory of expediency and military necessity (Kriegsraeson geht vor Kriegsmanier) was invoked to justify the violation of the laws of war. Id. 387 . Id. at 1273. 388 . Id. at 1317. The Court emphasized that toleration of Illegal reprisals posed a threat to the civilized conduct of war. According to the judges, such unlawful reprisals inevitably led to counter reprisals and encouraged an "endless cycle productive of chaos and crime. To prevent a distortion of the right into a barbarous method of repression, international law provided a protective mantle against the abuse of the right." Id. at 1252. The Court did not take the bold step of prohibiting all reprisals against hostages. It stated that the fact that the practice of reprisals has been "tortured beyond recognition by illegal and inhuman application cannot justify its prohibition by judicial fiat." Id. at 1253. 389 . Id. at 1257. The Tribunal stressed that those who ordered, authorized, committed or tolerated criminal reprisals must be held to account if international law is to be anything more than an "ethical code, barren of any practical coercive deterrent." Id. 390 . Id. at 1260. Field officers also were considered to possess constructive knowledge of reports received at their headquarters. Id. 391 . Id. at 1262-63. From July to September 1942, List was returned to active service as commander in chief of Army Group A, an army unit operating on the Russian front. Id. at 1263. 392 . Id. at 1269. 393 . Id. at 1269-70. 394 . Id. at 1270. 395 . Id. at 1271. 396 . Id. 397 . Id. Want of knowledge of the contents of reports made to him is not a defense. Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf. Id. 398 . Id. at 1276-77. 399 . Id. at 1278. 400 . Id. at 1281-82. 401 . Id. at 1282. 402 . Id. at 1284-85. 403 . Id. at 1286. The Court engaged in a similar analysis in acquitting defendant Kurt von Geitner. Id. at 1286-88. 404 . Id. at 1288. 405 . Id. at 1289. 406 . Id. at 1290. Defendant Ernst Dehner, commander of the LXIX Reserve Corps in northern Croatia, also was convicted of the commission of illegal reprisals and the forced conscription of Croatians into military service. Id. at 1297-1300. 407 . Id. at 1292. 408 . Id. at 1293. 409 . Id. at 1294. The defendant Hubert Lanz, Commander of the XXII Mountain Corps in Greece, also was convicted of ordering and permitting the unlawful execution of Italian officers and soldiers as well as the commission of illegal reprisals. Id. at 1309-13. 410 . Id. at 1296. 411 . Id. at 1296. Military necessity may justify the destruction of public and private property by retreating military forces which would provide assistance and comfort to the enemy. Id. The applicable legal standard was whether the defendant reasonably believed under the circumstances that there was a necessity to destroy property. The destruction of public and private property by retreating military forces which would give aid and comfort to the enemy may constitute a situation coming within the exception contained in Article 23g [of the Hague Regulations]. We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time. The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions . . . . It is our considered opinion that the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgment but he was guilty of no criminal act. Id. at 1296-97. 412 . Id. at 1305-06. 413 . Id. at 1306-07. 414 . Id. at 1308. Defendant Wilhelm Speidel, who served as Military Commander Southern Greece, also was convicted of excessive reprisals. Id. at 1313-17. 415 . Id. at 1308. 416 . Id. at 1309. 417 . EINSATZGRUPPEN JUDGMENT supra note 3, at 460-62. The American judges were sensitive to the charge of "victor's justice." It has been suggested in the course of the trial that an element of unfairness exists from the inherent nature of the organizational character of the Tribunal. It is true, of course, that the defendants are required to submit their case to a panel of judges from a victor nation. It is unfortunate that the nations of the world have taken no steps to remove the basis of this criticism. The lethargy of the world's statesmen in dealing with this matter, and many other problems of international relations, is well known. It is a reproach upon the initiative and intelligence of the civilized nations of the world that international law remains in many respects primitive in character. But it is a matter with which the Tribunal cannot deal, other than in justifying the confidence reposed in its members by insuring to the defendants a fair, dispassionate, and impartial determination of the law and the facts. A tribunal of this character should through its deliberations and judgment disclose that it represents all mankind in an effort to make contribution to a system of international law and procedure, devoid of nationalistic prejudices. This we have endeavored to do so. To some this may not appear to be sufficient protection against bias and prejudice. Any improvement, however, is dependent upon affirmative action by the nations of the world. It does not rest within the scope of the functions of the Tribunal. HOSTAGE JUDGMENT, supra note 3, at 1318. 418 . HIGH COMMAND JUDGMENT, supra note 3, at 543-44. In determining the guilt or innocence of these defendants, we shall require proof of a causative, overt act or omission from which a guilty intent can be inferred before a verdict of guilty will be pronounced. Unless this be true, a crime could not be said to have been committed unlawfully, willfully, and knowingly as charged in the indictment. HOSTAGE JUDGMENT, supra note 3, at 1261. 419 . HIGH COMMAND JUDGMENT, supra note 3, at 491. See id. at 485-91. 420 . Id. at 489. Anybody who is on the policy level and participates in the war policy is liable to punishment. But those under them cannot be punished for the crimes of others. The misdeed of the policy makers is all the greater in as much as they use the great mass of the soldiers and officers to carry out an international crime; however, the individual soldier or officer below the policy level is but the policy makers' instrument, finding himself, as he does, under the rigid discipline which is necessary for and peculiar to military organization. Id. 421 . Id. at 545-46. The defendant List also asserts that he had no knowledge of many of the unlawful killings of innocent inhabitants which took place because he was absent from his headquarters where the reports came in and that he gained no knowledge of the acts. A commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area of his command. His responsibility is coextensive with his area of command. He is charged with notice of occurrences taking place within that territory. . . HOSTAGE JUDGMENT, supra note 3, at 1271. See also In Re Yamishita, 327 U.S. 1 (1945). 422 . See HIGH COMMAND JUDGMENT, supra note 3, at 578-80 (von Kuechler), 632 (von Roques). 423 . See id. at 560-61 (von Leeb), 581-82 (Hoth), 610 (Reinhardt). 424 . Id. at 567-68 (von Kuechler); 603 (Reinhardt). He [a field commander] may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require upplementary reports to apprise him of all the pertinent facts. 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 . . . Want of knowledge of the contents of reports made to him is not a defense. Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf. HOSTAGE JUDGMENT, supra note 3, at 1271 (List). The defendant says that he never heard of . . . action against Jews or gypsies in the Southeast. The reports in the record which were sent to him (Kuntze) in his capacity as Armed Forces commander Southeast charge him with knowledge of these acts. He cannot close his eyes to what is going on around him and claim immunity from punishment because he did not know that which he is obliged to know . . . . Id. at 1281. 425 . See HIGH COMMAND JUDGMENT, supra note 3, at 655 (Reinecke); EINSATZGRUPPEN JUDGMENT, supra note 3, at 554 (Haensch). 426 . HIGH COMMAND JUDGMENT, supra note 3, at 654-55 (Reinecke). Hermann Reinecke was presumed to have knowledge of the segregation and liquidation program in the prisoner of war camps. "The evidence . . . discloses not only that it was the duty of the defendant to know what took place within them but that in fact from constant inspections by his subordinates and which he made himself, he could not have escaped such knowledge." Id. at 654. Otto Woehler was chief of staff of the 11th Army was presumed to have knowledge of the murder of 90,000 by killing squads. "Certainly the slaughter of 90,000 people by these police units under the circumstances could not have escaped the knowledge of the chief of staff of that army unless he was grossly incompetent." Id. at 687. 427 . Id. at 614 (Reinhardt). The Court charged Reinhardt with knowledge of the involuntary labor program. "Slave hunting in his area was so general and long and continued that without the direct evidence pointed out, knowledge would be imputed to him." Id. Otto Woehler, while chief of staff of the 11th Army, was found to have knowledge of the murder of ninety thousand Jews by killing squads. This information was well-documented. Id. at 687-90. The army assisted, fed and sheltered the killing squads, "[c]ertainly the slaughter of 90,000 people by these police units under these circumstances could not have escaped the knowledge of the chief of staff of that army unless he was grossly incompetent." Id. at 687. Staff officers of the 11th Army over whom Woehler exercised supervision were aware of such activities, "[s]urely the knowledge of these staff officers was not kept from the chief of staff." Id. The activities of the SD within Hoth's territorial jurisdiction "came to his knowledge." Id. at 595. "Notwithstanding his knowledge of the character and functions of the SD, his possession of the power to curb them and his duty to do so, he washed his hands of his responsibility and let the SD take its unrestrained course in his area of command." Id. at 596. 428 . HOSTAGE JUDGMENT, supra note 3, at 1271 (discussing List). Defendants were held liable for orders and policies which were in effect at the time at which they assumed command in those instances in which they later ratified the action. EINSATZGRUPPEN JUDGMENT, supra note 3, at 517. 429 . HIGH COMMAND JUDGMENT, supra note 3, at 549. [I]t is apparent we can draw no general presumption as to . . . knowledge . . . and must necessarily go to the evidence pertaining to the various defendants to make a determination . . . . And it is further pointed out that to establish the guilt of a defendant . . . not only must knowledge be established, but the time of such knowledge must be established. Id. 430 . Id. at 559-60 (von Leeb). Ambiguities in documents or in statements were resolved in favor of the defendant. Id. at 561 (von Leeb). 431 . Id. at 559 (von Leeb). The Court was reluctant to impute knowledge to von Leeb, stressing that he was in command of five to six hundred thousand soldiers who were operating "over a vast territory under the arduous conditions of combat." Id. at 555. 432 . See HOSTAGE JUDGMENT, supra note 3, at 1260. An army commander will not ordinarily be permitted to deny knowledge of reports received at his headquarters, they being sent there for his special benefit. Neither will he ordinarily be permitted to deny knowledge of happenings within the area of his command while he is present therein. It would strain the credulity of the Tribunal to believe that a high ranking military commander would permit himself to get out of touch with current happenings in the area of his command during wartime. No doubt such occurrences result occasionally because of unexpected contingencies, but they are the unusual . . . . Id. 433 . HOSTAGE JUDGMENT, supra note 3, at 1272. Not once did he [List] condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts. His failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal responsibility. Instead of taking corrective measures, he complacently permitted thousands of innocent people to die before the execution squads of the Wehrmacht and other armed units operating in the territory. He contends further that many of these executions were carried out by units of the SS, the SD, and local police units which were not tactically subordinated to him. The evidence sustains this contention but it must be borne in mind that in his capacity as commanding general of occupied territory, he was charged with the duty and responsibility of maintaining order and safety, the protection of lives and property of the population, and punishment of crime. This not only implies a control of the inhabitants in the accomplishment of these purposes, but the control and regulation of all other lawless persons or groups. He cannot escape responsibility by a claim of want of authority. The authority is inherent in his position as commanding general of occupied territory. The primary responsibility for the prevention and punishment of crime lies with the commanding general; a responsibility from which he cannot escape by denying his authority over the perpetrators. Id. 434 . Id. at 1278-79. 435 . HIGH COMMAND JUDGMENT, supra note 3, at 596. 436 . Id. at 562. "This action, apparently inspired by the Einsatzgruppen, was however, carried out as a pogrom, credited to a local self-defense organization of Latvians." Id. "It would be enough, in order to escape legal and moral stigmatization to show the order was parried every time there was a chance to do so." EINSATZGRUPPEN JUDGMENT, supra note 3, at 481. See Protocol Additional To The Geneva Conventions Of August 12, 1949, And Relating To The Protection Of Victims Of International Armed Conflicts, arts. 86(2), 87 (1)-(2) 1977 U.N. JURID. Y.B. 95, reprinted in 16 I.L.M. 1391 (1977). 437 . HIGH COMMAND JUDGMENT, supra note 3, at 511. 438 . Id. at 512. "Any participation in implementing such orders, tacit or otherwise, any silent acquiescence in their enforcement by his subordinates, constitutes a criminal act on his part." Id. 439 . Id. at 513. In the absence of participation in criminal orders or their execution within a command, a chief of staff does not become criminally responsible for criminal acts occurring therein. He has no command authority over subordinate units. All he can do in such cases is to call those matters to the attention of his commanding general. Command authority and responsibility for its exercise rest definitely upon his commander. Id. at 514. 440 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 470-71. The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery. It is a fallacy of wide-spread consumption that a soldier is required to do everything his superior officer orders him to do. Id. at 470. [An individual who] accepts a criminal order and executes it with a malice of his own . . . may not plead superior orders in mitigation of his offense. If the nature of the ordered act is manifestly beyond the scope of the superior's authority, the subordinate may not plead ignorance to the criminality of the order. Id at 471. 441 . Id. at 480. 442 . Id. at 471. 443 . Id. at 480. No court will punish a man who, with a loaded pistol at his head, is compelled to pull a lethal lever. Nor need the peril be that imminent in order to escape punishment. But were any of the defendants coerced into killing Jews under the threat of being killed themselves if they failed in their homicidal mission? The test to be applied is whether the subordinate acted under coercion or whether he himself approved of the principle involved in the order . . . . When the will of the doer merges with the will of the superior in the execution of the illegal act, the doer may not plead duress under superior orders. Id. 444 . Id. at 558-59. The defendants in this case who received obviously criminal orders were placed in a difficult position, but servile compliance with orders clearly criminal for fear of some disadvantage or punishment not immediately threatened cannot be recognized as a defense. To establish the defense of coercion or necessity in the face of danger there must be a showing of circumstances such that a reasonable man would apprehend that he was in such imminent peril as to deprive him of freedom to choose the right and refrain from the wrong. No such situation has been shown in this case. HIGH COMMAND JUDGMENT, supra note 1, at 509. 445 . See EINSATZGRUPPEN JUDGMENT, supra note 3, at 485. 446 . HIGH COMMAND JUDGMENT, supra note 3, at 557. He could not revoke this order coming as it did from his superiors, even from the head of the state. Had he undertaken to do so,this would have been a flagrant disobedience of orders . . . . He did not disseminate the order. He protested against it and opposed it in every way short of open and defiant refusal to obey it. Id. In other portions of the opinion, the Tribunal required demonstrative dissent. If international law is to have any effectiveness, high commanding officers, when they are directed to violate it by committing murder, must have the courage to act, in definite and unmistakable terms, so as to indicate their repudiation of such an order. The proper report to have been made from division to army group level when a request was made from top level to report the number of commissars killed would have been that this unit does not murder prisoners of war. Id. at 598 (Hans Reinhardt). 446. 447 . Id. at 582. See also id. at 566-67 (von Kuechler). He [Hoth] was certain that his subordinates were sufficiently radar-minded to pick up the rejection impulses that radiated from his well-known high character and that he believed that they would have the courage he lacked to disobey the order . . . . That the character impulses were too weak or the minds of the subordinates were too insensitive to pick them up is shown by the documents. Id. at 582. 448 . HOSTAGE JUDGMENT supra note 3, at 1253-54. Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money. In general, it sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar danger, but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war . . . . Id. at 1253. 449 . Id. at 1254-55. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. It is lawful to destroy railways, lines of communication, or any other property that might be utilized by the enemy. Private homes and churches even may be destroyed if necessary for military operations. It does not admit the wanton devastation of a district or the willful infliction of suffering upon its inhabitants for the sake of suffering alone. Id. 450 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 467. 451 . HIGH COMMAND JUDGMENT, supra note 3, at 541. Nor does military necessity justify the compulsory recruitment of labor from an occupied territory either for use in military operations or for transfer to the Reich, nor does it justify the seizure of property or goods beyond that which is necessary for the use of the army of occupation. Looting and spoliation are none the less criminal in that they were conducted, not by individuals, but by the army and the state. Id. at 541. 452 . HOSTAGE JUDGMENT, supra note 3, at 1272. It is apparent from the evidence of these defendants that they considered military necessity, a matter to be determined by them, a complete justification of their acts. We do not concur in the view that the rules of warfare are anything less than they purport to be . . . . The rights of the innocent population . . . must be respected even if military necessity or expediency decree otherwise. Id. at 1255-56. 453 . Id. at 1272-73. The Tribunal later observed that there are certain acts "which are proper when military necessity requires their doing, but the killing of great numbers of the population . . . is not one of them." Id. at 1281. 454 . Id. at 1309. 455 . Id. at 1297. It is significant that the humanitarian law of war recognizes that retreating military forces may destroy or seize property in those instances in which such demolition is imperatively demanded by the necessities of war. Id. at 1296. The Court adopted an objective test which was to be applied in light of the situation as it appeared to the defendant. We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time. The course of military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions. These things when considered with his own military situation provided the facts or want thereof which furnished the basis for the defendant's decision to carry out the "scorched earth" policy in Finmark as a precautionary measure against an attack by superior forces. It is our considered opinion that the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgment but he was guilty of no criminal act. We find the defendant no guilty on this portion of the charge. Id. at 1297. 456 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 462-63. 457 . Id. at 463. The annihilation of the Jews had nothing to do with the defense of Germany, the genocide program was in no way connected with the protection of the Vaterland, it was entirely foreign to the military issue. Thus, taking into consideration all that has been said in this particular phase of the defense, the Tribunal concludes that the argument that the Jews in themselves constituted an aggressive menace to Germany, a menace which called for their liquidation in self-defense, is untenable as being opposed to all facts, all logic and all law. Id. at 470. 458 . HOSTAGE JUDGMENT, supra note 3, at 1244-45. 459 . Id. at 1247. See also id. at 1246. It is evident . . . that a few partisan bands met the requirements of lawful belligerency. The bands, however, with which we are dealing in this case were not shown by satisfactory evidence to have the requirements. This means . . . that captured members . . . were not entitled to be treated as prisoners of war . . . . Id. at 1244. 460 . Id. at 1244. A military commander's decision whether to accord belligerent status was to be judged in accordance with the reasonable perception of the officer under the circumstances. In determining the guilt or innocence of an army commander when charged with a failure or refusal to accord a belligerent status to captured members of the resistance forces, the situation as it appeared to him must be given the first consideration. Such commander will not be permitted to ignore obvious facts in arriving at a conclusion. One trained in military science will ordinarily have no difficulty in arriving at a correct decision and, if he willfully refrains from so doing for any reason, he will be held criminally responsible for wrongs committed against those entitled to the rights of a belligerent. Where room exists for an honest error in judgment, such army commander is entitled to the benefit thereof by virtue of the presumption of his innocence. Id. at 1245-46. 461 . Id. at 1248. 462 . Id. at 1249. 463 . Id. at 1250. 464 . Id. at 1250-51. 465 . Id. at 1252-53. 466 . Id. at 1257. Despite the Tribunal's approval of reprisal killings, the judges remained critical of the "complete failure on the part of the nations of the world to limit or mitigate the practice [of executing hostages] by conventional rule . . . . That international agreement is badly needed in this field is self-evident." Id. at 1251-52. See Protocol Additional To The Geneva Conventions Of August 12, 1949, And Relating To The Protection Of Victims Of International Armed Conflicts, 1977, art. 75(2)(a)(ii)-(iv), XVI I.L.M. 1391 (1977) (prohibiting the taking of hostages; collective punishments; and threats to commit the foregoing acts); Protocol Additional To The Geneva Conventions Of August 12, 1949, And Relating To The Protection Of Victims Of Non-International Armed Conflicts, art. 4 (2)(b)-(c),(h), XVI I.L.M. 1442 (1977) (prohibiting the taking of hostages; collective punishments; and threats to commit the foregoing acts). 467 . See HOSTAGE JUDGMENT, supra note 3, at 1317-18. The judges in the Hostage Case were conscious that they spoke for "all mankind" and were dedicated to the drafting a decision which would help to develop "a system of international law and procedure, devoid of nationalistic prejudices." Id. at 1318. 468 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 427. The Tribunal rationalized that the defendants were in court not as members of a defeated nation but because they are charged with crime . . . . The doctrine that no member of a wronged community may try an accused would . . . spell the end of justice . . . [i]t is the essence of criminal justice that the offended community inquires into the offense involved. Id. at 462. In the first place, the defendants are not being tried in any sense as "vanquished individuals" any more than it is to be assumed that a person taken into custody by police authorities is to be regarded as a "vanquished person." Wars are fought between nations as such and not between individuals as such. In war there is no legal entity such as a "defeated individual" just as there is no judicial concept of a "victorious individual." The defendants are in court not as members of a defeated nation but because they are charged with crime. They are being tried because they are accused of having offended against society itself, and society, as represented by international law, has summoned them for explanation. Id. at 461-62. 469 . The Tribunal in the Einsatzgruppen Case noted that: The tragedy . . . is lost entirely on the executioner. He does his job as a job. So many persons are to be killed, just as a carpenter contemplates the construction of a shed. He must consider the material he has on hand, the possibilities of rain, etc. Only by psychologically adjusting oneself to such a state of affairs can one avoid a shock when one comes to a statement in a report very casually written, namely, "Until now, it was very difficult to carry out executions because of weather conditions." Id. at 447. 470 . In the High Command Case, two defendants were acquitted; four were sentenced to between three and eight years in prison; two to fifteen years and three to twenty years; and two to life imprisonment. HIGH COMMAND JUDGMENT, supra note 3, at 695-97. In the Hostage Case, two defendants were acquitted; three were sentenced to between fifteen and twenty years in prison; three to between seven and twelve years; and two were imprisoned for life. HOSTAGE JUDGMENT, supra note 3, at 1318-19. The Court in the Einsatzgruppen Case was the exception in meting out harsh sentences. Fourteen were sentenced to death; two to life imprisonment; and five to between ten and twenty years in prison. EINSATZGRUPPEN JUDGMENT, supra note 3, at 587-89. By January 1951, most of the harsher penalties had been moderated by American occupation authorities. See Announcement of Decisions by the United States High Commissioner for Germany, 31 January 1951, Upon Review of the Sentences Imposed by Tribunals Established Pursuant to Ordinance No. 7, XV TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 1180 (1950) (Procedure, Practice, And Administration). The Court in the Hostage Case discussed the standard for mitigation of punishment: the nature of the crime, the age and experience of the person to whom it applies, the motives for the criminal act, the circumstances under which the crime was committed, and the provocation . . . that contributed to its commission. . . . [M]itigtion of punishment does not in any sense . . . reduce the degree of the crime. It is more a matter of grace than of defense. In other words, the punishment assessed is not a proper criterion to be considered in evaluating the findings of the Court with reference to the degree of magnitude of the crime. HOSTAGE JUDGMENT, supra note 3, at 1317. 471 . HIGH COMMAND JUDGMENT, supra note 3, at 543. "The German Army was, in general, a disciplined army. The tragedy of the German Wehrmacht and these defendants is that the crimes charged against them stem primarily from its highest military leadership and the leadership of the Third Reich itself."Id. 472 . HIGH COMMAND JUDGMENT, supra note 3, at 563 (von Leeb). 473 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 500. The defendants are not untutored aborigines incapable of appreciation of the finer values of life and living. Each man . . . has had the benefit of considerable schooling. Eight are lawyers, one a university professor, another a dental physician, still another an expert on art. One . . . an opera singer . . . . This group of educated and well-bred men does not even lack a former minister . . .. . . . Most of the defendants . . . came of devout parents. Some have told how they were born in the country . . . close to nature and at their mothers' knee, learned the virtues of goodness, charity, and mercy . . . . Id. 474 . Id. at 532. 475 . Id. at 562. 476 . Id. at 546-47. 477 . HOSTAGE JUDGMENT, supra note 3, at 1278. 478 . Final Statement Of Defendant List To The Tribunal On Behalf Of All Defendants, HOSTAGE MATERIALS, supra note 59, at 1228-29. 479 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 518. 480 . Id. at 555. 481 . Id. at 531. Blume testified that he possessed a "bad conscience" and "regretted" not having faithfully and fully having implemented the Fuehrer Order. Id. at 532. One of the defendants testified that if he had witnessed an individual advocating Communism to four or five others that, "'I would have had him shot.'" Id. at 489. 482 . Id. at 502. The defendants possessed a perverse sense of propriety. When queried why he did not release various Jewish internees, Adolf Ott testified, "I believe in such matters there is only one thing, namely consistency. Either I must shoot them all whom I capture or I have to release them all." Id. at 562. SS Colonel Walter Blume, who had ordered the execution of roughly a thousand Russians, reported that he had objected to the Fuehrer Order. However, he explained that he resisted evading the order by falsely reporting that he had executed Jews since, "he did not consider it worthy of himself to lie." Id. at 530. 483 . Id. at 450. 484 . Id. at 538. "Seibert admitted having witnessed two executions and stated that he did not exclude the possibility that Jews were among the executees." Id. 485 . Extract from the Opening Statement for Defendant Hoth, HIGH COMMAND MATERIALS, supra. note 30, at 195, 196 (Dr. Heinz Mueller-Torgow counsel). 486 . Id. at 197. We were not entitled to demand enlightenment on the political reasons underlying a war and to refuse our services if such reasons should appear inadequate to us. We are not prepared to believe that the leading generals of any other state would have refused their services in the same situation. Final Statement Of Defendant Von Leeb To The Tribunal On Behalf Of All Defendants, HIGH COMMAND MATERIALS (II), supra note 100, 458, 459. 487 . Final Statement Of The Defendant Ohlendorf, EINSATZGRUPPEN MATERIALS, supra note 59, at 384, 389. They were the same good average citizens as you find . . . by the millions in all countries. They never thought of criminal activities or criminal aims. They felt that they had been put into an inevitable, awful, and gigantic war which was to decide not only on the survival of their nation, their families and themselves, but they saw in themselves the protective shield guarding also other nationals against one common enemy [Russia]. They were in no position to judge the necessity and methods of this war. They were not responsible and could not be responsible for it . . . . They had to accept the methods and the orders in this war as did all soldiers in all countries . . . . Id. 488 . Final Statements Of the Defendants (Naumann), id. at 392, 394. 489 . Extracts From The Testimony Of Defendant Ohlendorf, id. at 355. 490 . Id. at 357. 491 . Extracts from Closing Statement for Defendant List, HOSTAGE MATERIALS supra note 59, at 1172, 1227 (Dr. Hans Laternser was counsel for the defendant List). 492 . See generally Final Statements Of The Defendants (Naumann), EINSATZGRUPPEN MATERIALS, supra note 59, at 392, 394. 493 . Extracts From Expert Legal Opinion Presented On Behalf Of The Defense By Dr. Reinhard Maurach (Professor Of Criminal Law and East European Law), id. at 339, 344-46. 494 . Extract From The Closing Statement For Defendant Sandberger By Dr. Von Stein, id. at 358, 360. [It is] difficult to comprehend the ideas and mental processes of the Asiatic peoples and the peculiarities of the Bolshevist ideology and methods were for the European; and, add to this, the picture of a relentless ideological battle which used every means of warfare, from the methods and tricks of primitive tribes to the most modern weapons of technological war. These are the conditions under which one must consider the Russian campaign, and especially the partisan war, if one is to establish the boundaries of "military necessity." Id. at 364. 495 . The Final Statement Of Defendant List To The Tribunal On Behalf Of All Defendants, HOSTAGE MATERIALS, supra note 59, at 1229. 496 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 426-27. 497 . Id. at 448. "Women were to be slain with the men, and the children also were to be executed because, otherwise, they would grow up to oppose National Socialism and might even nurture a desire to avenge themselves on the slayers of their parents." Id. at 415. 498 . Id. at 450. Biberstein noted that the faces of the dead were "'in no way distorted,'" and that there were no "'outward signs of spasms.'" Id. The gas van was developed and substituted for killing squads in order to spare the soldiers' sensitivities. The victims were loaded into vans, the doors were hermetically sealed and monoxide gas from the engine was directed into the truck. By the time that the vehicle reached its destination, the occupants had suffocated to death. Id. 448-49. Prior to the availability of the van, German officers alleged that they took special steps to insure that executions were carried out in a humane fashion. The people were shot with submachine guns and rifles. I know that it was of greatest importance . . . to have the persons who were to be shot killed in the most humane and military manner possible because otherwise - in other methods of killing - the moral strain . . . would have been too great for the execution squad. Id. at 582. 499 . Extracts From Expert Legal Opinion Presented On Behalf Of The Defense By Dr. Reinhard Maurach, EINSATZGRUPPEN MATERIALS, supra note 59, at 348. 500 . Id. at 349. 501 . See id. at 354. 502 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 523. 503 . Extracts From The Testimony Of Defendant Ohlendorf, EINSATZGRUPPEN MATERIALS, supra note 59, at 223, 248. 504 . Id. at 284. 505 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 491. 506 . Id. at 478. 507 . Id. at 506. 508 . HIGH COMMAND JUDGMENT, supra note 3, at 549-53. 509 . Extract From The Testimony Of Defendant Hoth, HIGH COMMAND MATERIALS, supra note 30, at 1109, 1110-11. Hoth, somewhat inconsistently, contended that those military reports which detailed atrocities were unreliable, lacked veracity and possessed little probative value. Hoth contended that the reports had been hurriedly composed by inexperienced officers who often had employed ambiguous and imprecise language. At other times, false reports had been deliberately drafted in order to create the impression that officers had complied with morally objectionable orders. Extract from the Opening Statement for Defendant Hoth, id. at 195, 199-200. 510 . Extracts From The Testimony Of Defendant Warlimont, id. at 1066, 1077. 511 . Extracts From The Closing Brief For Defendant Reinhardt, HIGH COMMAND MATERIALS (II), supra note 100, at 408, 414. Dr. Hans Laternser, counsel for defendant List, warned that his client's conviction would create a juridical precedent which would compel military commanders to seek legal advice prior to issuing an order in doubtful situations. This inevitably would cripple the ability of the armed forces to rapidly respond to an attack; and would mean that in "the future the course of military events would be determined not by soldiers, but by lawyers!" Extracts from Closing Statement for Defendant List, HOSTAGE MATERIALS, supra note 59, at 1172, 1227 (emphasis omitted). 512 . Closing Statement for the Defendant Lehman, HIGH COMMAND MATERIALS (II), supra note 100, at 379, 393 (Dr. von Keller, counsel for the defendant Lehmann). When asked why he did not resign, List testified: "Resignation of an officer in wartime does not exist, or did not exist; in fact, Hitler had forbidden it, and he had expressly said that it was he who decided when a general or an officer was to resign." Extracts From The Testimony Of Defendant List, HOSTAGE MATERIALS, supra note 59, at 1036-37. The option, according to Ohlendorf, was a "senseless martyrdom through suicide, senseless because this would not have changed anything . . . ." Extracts From The Testimony Of Defendant Ohlendorf, EINSATZGRUPPEN MATERIALS, supra note 59, at 223, 250. 513 . Closing Statement for the Defendant Lehman, HIGH COMMAND MATERIALS (II), supra note 100, at 380. 514 . Id. at 394. The defendants pointed out that the occasional excesses committed by German troops should be viewed in light of the hardships accompanying combat in the vast and harsh Russian terrain. Dr. Mueller-Torgow, counsel of defendant Hoth, in seeking to exonerate defendant Hoth, observed that "[o]nly those who know the East, and who experienced the Russian winter and the muddy season can comprehend the terrific demands which these conditions created for each and every individual." Extract from the Opening Statement for Defendant Hoth, HIGH COMMAND MATERIALS, supra note 30, at 196-97. The German military also was accustomed to confronting the enemy in open conflict and was ill-prepared to combat a furtive foe who demonstrated a lack of respect for the humanitarian law of war. The Soviet regime exploited the "peculiarities of the Russian soul" and deliberately deployed "Asiatic types" who were easily incited into committing "extremely cruel excesses as the German soldier in the East had to experience time and again." Id. at 196. 515 . HOSTAGE JUDGMENT, supra note 3, at 1282-1286. Foertsch served as chief of staff to Field Marshal List, Armed Forces Commander Southeast. At List's request, Foertsch approached Field Marshal Keitel, Chief of the High Command, requesting additional troops to insure security in the Balkans. Keitel refused and subsequently issued a set of orders which required a ruthless campaign of reprisals, one of which was distributed under Foertsch's signature to subordinate units. Foertsch also distributed the Commando Order, which called for the compulsory deployment of partisans in German mines as well as orders on behalf of List ordering illegal retaliations. Id. The Court failed to find a conspiracy to decimate various races and religions. It ruled that neither Foertsch, or any of the other defendants, ever "became a party to any such preconceived plan . . . . We think the evidence shows that . . . the actions [of the defendant] in the Southeast were motivated by a desire to attain peace and order among the civilian population . . . ." Id. at 1285-86. 516 . Id. at 1286-88. Defendant von Geitner served as chief of staff to General Paul Bader, commanding general in Serbia. Von Geitner initialed or signed orders issued by Bader which called for the shooting of hostages and reprisal prisoners. Von Geitner also implemented Bader's decisions to arrest hostages and to undertake reprisal measures. Id. 517 . Id. at 1286. 518 . EINSATZGRUPPEN JUDGMENT, supra note 3, at 480-81. 519 . United States of America v. Erhard Milch, II TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, 773, 793 (1947) (involvement in medical experiments on internees of concentration camps). 520 . Quoted in COOPER, supra note 60, at 98. 521 . See supra notes 136-141, 150-53 and accompanying texts. 522 . See supra notes 142-49 and accompanying texts. 523 . See supra notes 264-65 and accompanying texts. 524 . See supra notes 262-63 and accompanying texts. 525 . See supra notes 271-75 and accompanying texts. 526 . See supra notes 376-77 and accompanying texts. 527 . See supra notes 378-80 and accompanying texts. 528 . See supra notes 381-84 and accompanying texts. 529 . See supra notes 389-91 and accompanying texts. 530 . See supra notes 135, 268-70, 276-80, 373-75 and accompanying texts. 531 . See supra notes 149, 265-67, 385-87 and accompanying texts. 532 . 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