The test to be applied is whether the subordinate acted under coercion or whether he himself approved of the principle involved in the order. If the second proposition be true, the plea of Superior Orders fails. 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.
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.
If the mental and moral capacities of the superior and subordinate are pooled in the planning and execution of an illegal act, the subordinate may not subsequently protest that he was forced into the performance of an illegal undertaking.
Superior means superior in capacity and power to force a certain act. It does not mean superiority only in rank. It could easily happen in an illegal enterprise that the captain guides the major, in which case the captain could not be heard to plead Superior Orders in defense of his crime.
If the cognizance of the doer has been such, prior to the receipt of the illegal order, that the order is obviously but one further logical step in the development of a program which he knew to be illegal in its very inception, he 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. From 1920, when the Nazi Party Program with its anti-Semitic policy was published, until 1941 when the liquidation order went into effect, the evermounting severity of Jewish persecution was evident to all within the Party and especially to those charged with its execution. One who participated in that program which began with Jewish disenfranchisement and depatriation and lead, step by step, to deprivation of property and liberty, followed with beatings, whippings, and measures aimed at starvation, may not plead surprise when he learns that what has been done sporadically, namely, murder, now is officially declared policy.
On January 30, 1939, Hitler publicly declared in a speech to the Reichstag that if war should come it would mean "the obliteration of the Jewish race in Europe".
One who embarks on a criminal enterprise of obvious magnitude is expected to anticipate what the enterprise will logically lead to.
In order successfully to plead the defense of Superior Orders the opposition of the doer must be constant. It is not enough that he mentally rebel at the time the order is received. If at any time after receiving the order he acquiesces in its illegal character, the defense of Superior Orders is closed to him.
Many of the defendants testified that they were shocked with the order when they first heard it. This assertion is, of course, contradicted by the other assertion made with equal insistence, and already disposed of, that the Fuehrer Order was legal because the ordered executions were needed for the defense of the Fatherland. But if they were shocked by the order, what did they do to oppose it? Many said categorically that there was nothing to do. 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. The evidence indicates that there was no will or desire to depreciate its fullest intent. When the defendant Braune testified that he inwardly opposed the Fuehrer Order, he was asked as to whether, only as a matter of salving his conscience in the multiplicitous executions he conducted, he ever released one victim. The interrogation follows:
"Q. But you did not in compliance with that order attempt to salve your conscience by releasing one single individual human creature of the Jewish race, man, woman or child?
A.I have already said that I did not search for children.
I can only say the truth. There were no exceptions, and I did not see any possibility."
One may accuse the Nazi military hierarchy of cruelty, even sadism, if one will. But it may not be lightly charged with inefficiency. If any of these kommando leaders had stated that they were constitutionally unable to perform this cold-blooded slaughter of human beings, it is not unreasonable to assume that they would have been assigned to other duties, not out of sympathy or for humanitarian reasons, but for efficiency's sake alone. In fact Ohlendorf declared on this very subject:
"In two and a half years I had sufficient occasion to see how many of my Gruppe did not agree to this order in their inner opinion.
Thus, I forbade the participation in these executions on the part of some of these men, and I sent some back to Germany."
Ohlendorf himself could have got out of his execution assignment by refusing cooperation with the Army. He testified that the Chief of Staff in the field said to him that if he, Ohlendorf, did not cooperate, he would ask for his dismissal in Berlin.
The witness Hartl testified that Thomas, Chief of Einsatzgruppe B, declared that all those who could not reconcile their conscience to the Fuehrer Order, that is, people who were too soft, as he said, would be sent back to Germany or assigned to other tasks, and that, in fact, he did send a number of people including commanders back to the Reich.
This might not have been true in all Einsatzgruppen, as the witness pointed out, but it is not enough for a defendant to say, as did Braune and Klingelhoefer, that it was pointless to ask to be released, and, therefore, did not even try. Exculpation is not so easy as that. No one can shrug off so appalling a moral responsibility with the statement that there was no point in trying. The failure to attempt disengagement from so catastrophic an assignment might well spell the conclusion that the defendant involved had no deep-seated desire to be released. He may have thought that the work was unpleasant but did it nonetheless. Even a professional murderer may not relish killing his victim, but he does it with no misgivings. A defendant's willigness may have been predicated on the premise that he personally opposed Jews or that he wished to stand well in the eyes of his comrades, or by doing the job well he might earn rapid promotion.
The motive is unimportant if he killed willingly.
The witness Hartl also related how one day as he and Blobel were driving through the country, Blobel pointed out to him a long grave and said: "Here my Jews are buried." One can only conclude that Blobel was proud of what he had done. "Here my Jews are buried". Just as one might speak of the game he had bagged in a jungle.
Despite the sustained assertion on the part of the defendants that they were straight-jacketed in their obedience to Superior Orders, the majority of them have, with testimony and affidavits, demonstrated how on numerous occasions they opposed decrees and orders handed down by their superiors. In an effort to show that they were not really Nazis at heart, defendant after defendant related his dramatic clashes with his superiors. If one concentrated only on this latter phase of the defense one would conclude that these defendants were all ardent rebels against National Socialism and valiantly fought against the inhuman proposals put to them. Thus, one affiant says of the defendant Willy Seibert that he "was strongly opposed to the measures taken by the Party and the government".
Of Steimle an affiant said: "Many a time he opposed the Party agencies and so-called superior leaders." Another affidavit not only states that Steimle opposed violence but that in his zeal for justice he shrewdly joined the SD in order to be able "to criticize the shortcomings in the Party". Again it was stated that "repeatedly his sense of justice led him to oppose excesses, corruptions and symptoms of depravity by party-officers."
Of Braune an affiant states, "over and over again Dr. Braune criticized severely our policy in the occupied territories (especially in the East, Ukraine and Baltic States)".
During the time he served in Norway, Braune was a flaming sword of opposition to tyranny and injustice in his own camp. He bitterly opposed the Reich Kommissar Terboven, cancelled his orders, condemned large-scale operations, released hostages and freed the Norwegian State Minister Gerhardsen.
One affidavit said that in these actions "Braune nearly always went beyond his authority". And yet in spite of this open rebellion Braune was not shot or even disciplined. Why is it that in Norway he acted so differently from the manner in which he performed in Russia? Was he more the humanitarian in Norway? The answer is not difficult to find. One of the affiants very specifically states:
"Right from the beginning of our conferences, Braune opposed the large-scale operations which Terboven and Fehlis continually carried out.
He did not expect the slightest success from such measures, and saw in them only the danger of antagonizing the Norwegian population more and more against German policy and the danger of increasing their spirit of resistance."
Thus, the defendants could and did oppose orders when they did not agree with them. But when they ideologically espoused an order such as the Fuehrer Order they had no interest in opposing it.
THE PRESIDENT:Judge Dixon will continue with the reading of the Judgment.
GERMAN PRECEDENT ON SUPERIOR ORDER DOCTRINE The defense of Superior Orders has already been passed upon by a German court.
In 1921 two officers of the German U-boat 68 were charged with violation of the laws of war in that they fired at and killed unarmed enemy citizens seeking to escape from the sinking Hospital Ship H.M.S. Llandovery Castle. The defendants pleaded lack of guilt in that they had merely carried into effect the order given them by their commander, First Lieutenant Patzig. The German Supreme Court did find as a fact that Patzig ordered his subordinates Diethmar and Boldt to fire at the life boats, but it adjudicated them guilty nonetheless, stating:
"It is certainly to be ordered in favor of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality, But, no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law.
This happens only in rare and exceptional cases.
But, this case was precisely one of them.
For in the present instance, it was per fectly clear to the accused that killing defenseless people in the life-boats could be nothing else but a breach of law.
As naval officers by profession they were well aware, as the naval expert, Saal wachter, has strinkingly stated, that one is not legally authorized to kill defense less people.
They quickly found out the facts by questioning the occupants in the boats when these were stopped.
They could only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry out a breach of law.
They should, therefore, have refused to obey.
As they did not so they must be punished."
Despite this very telling precedent several of the attorneys for the defense asked in behalf of their clients: What could they have done? After all, the defendants were soldiers and were required to obey orders. Ordinarily, in war, the proposition of unquestioning obedience involves a set of circumstances which subjects the subordinate to the possibility of death, wounding or capture. And it is tradional in such a situation that, in consonance with the honor of his calling, the soldier does not question or delay but sets out stoically to face the peril and even self-immolation. Lord Tennyson immortalized this type of glorious self-sacrifice when he commemorated the Cavalry Charge at Balaklava in the Crimea:
"Theirs not to make reply, Theirs not to reason why, Theirs but to do and die."
The members of the Einsatzgruppen, which, by a twist of ironic fate, were operating in the same Crimea and surrounding territory about one hundred years later, were not, however, facing the same situation which confronted Tennyson's Light Brigade. The einsatz battalions were not being called upon to face shot and shell.
They were not ordered to charge into the mouths of cannon. They were called upon to shoot unarmed civilians standing over their graves.
No soldier would be disgraced in asking to be excused from soone-sided a battle. No soldier could be accused of cowardice in seeking relief from a duty which was, after all, not a soldier's duty. No soldier or officer attempting escape from such a task would be pleading avoidance of a military obligation. He would simply be requesting not to be made an assassin. And if the leaders of the Einsatzgruppen had all indicated their unwillingness to play the assassin's part, this black page in German history would not have been written.
What could the defendats have done, if they could not have been relieved? They could have been less zealous in the execution of the inhuman order. Whole populations of cities, districts and wide lands were within their power. No Roman emperor had greater absolutism of decision over life and death than they possessed in their areas of operation. They were not ordered within any given town to shoot a precise number of people and a fixed number of women and children. But men like Braune could see no reason for making exceptions.
Several of the defendants stated that it would have been useless to avoid the order by subterfuge, because had they done so, their successors would accomplish the task and thus nothing would be gained anyway. The defendants are accused here for their own individual guilt. No defendants knows what his successor would have done. He could possibly have also indicated his reluctance and with a succession of refusals properly submitted, the order itself might have lost its efficacy. But in any event no execution would have taken place that day. One defendant stated that to have disobeyed orders would have meant a betrayal of his people. Does he really mean that the German people, had they known, would have approved of this mass butchery?
The masses of the home-loving German people, more content to have a little garden in which to grow a plant or two than the promise of vast lands beyond the horizon, will here learn how they were betrayed by their supposed champions.
Here they will also learn of the inhumanity and the oppression and the shedding of innocent blood committed by the regime founded on the Fuehrer prinzip.
In his attack on Control Counsil Law No. 10, Dr. Mayer declared that it invalidates two fundamental principles of the legal systems of all civilized nations:
"(1) The principle: nulla poena sine lege.
(2) Validity of the excuse of having acted under order."
The Tribunal has already disposed of objection number 1. Objection number 2 is no more convincing than was objection number 1. Law No. 10 does not invalidate the excuse of Superior Orders. It states:
"(b) The fact that any person acted pursuant to the order of his Government or of his superior does not free him from responsi bility for a crime, but may be considered in mitigation."
Dr. Mayer, like others, misreads this provision and substitutes for the word " crime" some other word, possibly "act". This makes the provision to read that anyone acting pursuant to the orders of his Government or superior does not free himself from responsibility for any act". But the provision specifically states "crime". Unless it is established that the deed in question is a crime then naturally there needs to be no explanation for its commission. If, however, the act is a crime then there can be no excuse for its commission. No superior can authorize a crime. No one can legalize what is demonstrated categorically and definitely to be a crime.
The main objective of the Defense in this case has been to prove that the acts of the Einsatzgruppen were not crimes, that they were acts of self defense committed in accordance with the rules of war. If, however, it is proved that they were crimes, then, naturally, the approval of another criminal would not make the acts any the less crimes.
Once it is juridically established that a certain act is a crime, then all those who participated in it, both superior and subordinates are accomplices.
How could the approval of Hitler possibly condone the offense, if offense it was? Hitler was not above International Law. Let us suppose that in 1935 Hitler ordered one of his men to go to Siam and there assassinate its King. Would it be argued that the assassin in that situation would be inmmune because acting under Superior Orders? Any judicial inquiry would establish that the Siam assassin had committed a crime and the fact that he had acted in pursuance to the order of his Government or a superior could not possibly free him from responsibility for the crime. This is exactly what Control Council Law No. 10 says, and this is what the law has always said, or ever since there was International Law.
As a matter of fact, Article 47 of the German Military Penal Code goes much farther than Control Council Law No. 10. Under the German Code the subordinate may be convicted even if no crime was actually committed. It is sufficient if the order aims at the commission of a crime or offense. The German Code makes the obeying subordinate responsible even for any "civil" or "general offenses", i.e. for comparatively insignificant breaches of law which are not contemplated in the Allied law. Nor does the German Code, as contrasted to the Allied law, mention the defense of Superior Orders as a possible mitigating circumstance.
Several counsel have quoted paragraph 347 of the American Rules of Land Warfare in support of their position on Superior Orders. The section in question, after listing various offenses against the rules of warfare, declares:
"..... Individuals of the armed forces will not be punished for these offenses in case they are committed under the order or sanction of their government or commanders.
The commanders ordering the commission of such acts or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall."
What has escaped some analysts of this provision is that the word "individuals" is intended to apply to individuals who make up a military unit, that is, ordinarily, soldiers of lower rank. It applies naturally also to officers, but only provided they are serving under another officer of a higher rank. Unless one accepts this meaning the word "commanders" appearing in his second sentence would be entirely elusive as to its significance. But it is to be noted that in square juxtaposition to the men (and perhaps officers) who make up the military unit, the Article puts the "commanders" of such units; and by "commanders" is obviously meant the officers pr acting officers, in charge of any armed unit.
As the colonel is commander of a regiment, the major of a battalion, and the captain of a company, the sergeant or 2nd lieutenant may be in charge of a platoon. If the unit commander were not responsible, and the responsibility climbed upward from grade to grade, the result would be that the only one who could ever be accountable for an illegal order would be the chief executive of the nation, that is, the President, King or Prime Minister, depending on the country involved. That such singular responsibility was not intended is evidenced in the use of the plural "commanders" instead of the singular "commander". Making this meaning absolutely clear, the provision specifically mentions two types of "commanders" who are to be held responsible:
(a) commanders who order their units to commit war crimes; and (b) commanders if the troops under their authority commit such crimes.
Thus, the provision proclaims clearly that the commander is to be responsible -- whether he gives the order to commit war crimes, or whether the troops under his authority commit them at the behest of somebody else, since he has the control over the troops and is responsible for their acts.
Since it has not been denied that the defendants were commanders of einsatz units, they clearly would fall within the provisions of Article 347, American Rules of Land Warfare. This Article 347 was repealed in 1944, but it has here been discussed at length because Defense Counsel made much of it, and because it was still law at the time the Einsatzgruppen were operating.
In further confirmation of the interpretation above given of Article 347, reference is made to Article 64 of the American Articles of War which announces punishment for the disobedience of any lawful command of a superior officer. Obviously if the order is unlawful he may not be punished for refusing to obey it.
The subject of Superior Orders is not so confusing and complicated as it had been made by some legal commentators. In considering the law in this matter we must keep in mind that fundamentally there are some legal principles that stand out like oak trees. Much underbrush has grown up in the vicinity and they seem to confuse the view. But even the most casual observation will catch on the legal landscape these sturdy oaks which announce that:
1. Every man is presumed to intend the consequences of his act.
2. Every man is responsible for those acts unless it be shown that he did not act of his own free will.
3. Deciding the question of free will, all the circum stances of the case must be considered because it is impossible to read what is in a man's heart.
Dr. Aschenauer correctly referred to one of these trees in Lord Manfield's charge to the jury in Stratton's case, (1780) Howell, State Trials, Vol. 21, p. 1062-1224:
"A state of emergency is a reason for justification, since nobody can be guilty of a crime without having in tended it.
If there is irresistible, plysical duress, then the acting person has no volition with regard to the deed."
Was there irresistible, physical duress? Was there volition with regard to the deed? The answering of these two questions will serve as safe guides in applying the criteria herein announced in the discussion on the subject of Superior Orders.
NON-INVOLVEMENT Several of the defendants pleaded Not Guilty on the ground that they were in no way involved in the homocidal operations of the einsatz units.
These denials of participation took various forms. It was stated that the defendant, although traveling with the kommando, never learned of executions and certainly did not participate in them, it was asserted that, although the defendant participated in executions, the executees were partisans, saboteurs, looters, end the like; and it was also claimed on behalf of some of the defendants that, although they actually ordered and supervised executions, these executions always followed an investigation in the case involved. No one was shot unless he was proved guilty of a crime.
How thorough were these investigations if and when they took place? An order issuing from the Fuehrer's headquarters on June 6, 1941 -that is, 15 days before the beginning of the Russian war -- spoke of the conduct of the German forces entering Russia, One paragraph discussed the disposition of political commissars who "for the time being" were not to be executed unless they committed or were suspected of hostile acts. Then came this very significant instruction:
"As a matter of principle in deciding the question whether guilty or not guilty, the personal impression which the commis sar gives of his mentality and attitude will have precedence over facts which may be improvable."
Thus kommando leaders were not only empowered but encouraged to execute a man more on his looks than on evidence. One of the defendants corroborated this practice. He was asked what he would do if he came upon a person speaking to four or five people in a room, advocating Communism but in no way opposing the Germans. The defendant replied:
"I would have got a look at the man, and if I was under the impression that he would put his theoretical conviction into deed, in that case I would have had him shot.
The actual speech or lecture could not be decided upon theoreti cally."
He was asked further:
"So that you would listed to the speech and then you would look at him under a micro scope, and after this big look, if you thought he might have done something, then you would have him shot.
That is what we understood by your answer?"
And the reply was a categorical "Yes".
Many of the so-called investigations, moreover, were merely inquiries for the purpose of obtaining from the victim information which would enable the executioners to locate and seize other victims. For instance, the defendant Ott testified from the witness stand, as will be noted later, how arrested persons were arrested, "investigated", and shot.
Several of the Defense Counsel have argued that their clients were soldiers and that their only job was combat. But if the job with the Einsatzgruppen was strictly military, why did the High Command not send military men to do it? Why did they choose Ohlendorf who had had no military training of any kind to head a military organization? Very few of the kommando leaders had been soldiers, and the brief three or four weeks' training at Pretzsch, prior to marching into Russia, consisted only of drilling and target practice on the rifle range. It is obvious that they were being sent into Russia not as combat soldiers, but as ideological exponents. In the field they were a travelling RSHA, they were a Gestapo on wheels.
Report No. 128 describes the executions by Einsatzgruppe C of 80,000 persons and explains that 8,000 of them were "convicted of anti-German or Bolshevistic activities".
The report goes on further to say:
"Even though approximately 75,000 Jews have been liquidated in this manner, it is already at this time evident that this cannot be a possible solution of the Jewish problem."
The report-writer explains that, in small towns and villages, they had achieved a complete liquidation of the "Jewish problem, and that, in the larger cities, after executions, all Jews had disappeared". It is evident from this statement that the main objective of the kommandos was to kill Jews, not partisans.
Counsel for Sandberger, in his final argument, quoted from the United States Basic Field Manual, Rules of Land Warfare:
"If the people of a country, or any portion thereof, already occupied by an army rise against it, they are violators of the laws of war and are not entitled to their pro tection."
Dr. von Stein, however, failed to show that the people in the respective German-occupied areas took part in any uprising. On the contrary, it was the einsatz leaders who attempted to stir up popular tumult by instigating pogroms.
The defendant Haensch declared that, during the entire time he served in Russia, he never saw a Jew, and that he never heard of the Fuehrer-Order. Although his kommando, prior to his arrival in Russia, had admittedly slaughtered thousands of Jews, no one ever told him of this nor did he ever hear of it. This is simply incredible. And, in support of this admittedly incredulous utterance, an even more extraordinary assertion was made by his attorney, namely, that Heydrich was anxious for Haensch not to know about these things since they had nothing to do with his work in Berlin.
In defense of Blobel, who admitted in a pre-trial statement that his kommando had killed 10,000 to 15,000 people, his attorney declared in a final summation that Blobel's duties were purely administrative-adding, to be sure that these administrative duties were to be interpreted in their "widest sense".
One of Blobel's administrative duties was to conduct executions. History will be his debtor for the authoritative account he rendered on mass-executions from the standpoint of the spirit and philosophy of slayer and slain. He was asked at the trial whether the doomed, as they were being led to their waiting graves, ever attempted to break away before the shots were fired. He replied that there was no resistance and this surprised him greatly. The following interrogation then occurred:
"Q. You mean that they resigned themselves easily to what was awaiting them?
A. Yes, that was the case. That was the case with these people.
Human life was not as valuable as it was with us.
They did not care so much.
They did not know their own human value.
Q. In other words, they went to their death quite happily?
A. I would not say that they were happy.
They knew what was going to happen to them.
Of course, they were told what was going to happen to them, and they were resigned to their fate, and that is the strange thing about these people in the East.
Q. And did that make the job easier for you, the fact that they did not resist?
A. In any case the guards never met any re sistance, or, at least, not in Sokal.
Everything went very quietly. It took time, of course,, and I must say that our men who took part in these executions suffered more from nervous exhaustion than those who had to be shot.
Q. In other words, your pity was more for the men who had to shoot than for the victims?
A. Our men had to be cared for.
. . . . . . . .
Q. And you felt very sorry for them?
A. Yes, these people experiences a lot, psychologically."
Thus, to murder was added criminal impertinence. The victim is shown to be inhuman while the executioner is to be pitied. The condemned is put in the wrong and the slayer in the right. A person is robbed of his all -- his very life -- but it is the assassin who is the sufferer.
To these people "human life was not as valuable as it was to us". Thus we behold the moral supremacy of the murderer over the depravity of the massacred. "Our men who took part in the executions suffered more from nervous exhaustion that those who had to be shot."
Here in cogent language is symbolized the whole story of the simple "administrative duties" of one of the leaders of the Einsatzgruppen in land not his own.
Court No. II, Case No. IX Partisans Many of the defendants admitting that they had conducted executions, explained that they had not killed any innocent persons but had merely shot partisans, to be sure, not in combat, but punitively.
This bald statement in itself does not suffice to exonerate one from a charge of unlawful killings. Article I of the Hague Regulations provides:
"The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfill ing the following conditions:
1. To be commanded by a person responsible for his subordinates.
2. To have a fixed distinctive emblem recognizable at a distance.
3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war."
It is unnecessary to point out that, under these provisions, an armed civilian found in a tree top sniping at uniformed soldiers, is not such a lawful combatant, and can be punished even with the death penalty, if he is proved guilty of the offense.
But this is far different from saying that resistance fighters in the war against an invading army, if they fully comply with the conditions just mentioned, can be put outside the law by the adversary. As the Hague Regulations state expressly, if they fulfill the four conditions, "the laws, rights and duties of war" apply to them in the same manner as they apply to regular armies.
Many of the defendants seem to assume that by merely characterizing a person a partisan he may be shot out of hand. But it is not so simple as that. If the partisans are organized and are engaged in what International Law regards as legitimate warfare for the defense of their own country, they are entitled to be protected as combatants.
The record shows that in many of the areas where the Court No. II, Case No. IX Einsatzgruppen operated, the so-called partisans had wrested considerable territory from the German occupant, and that military combat action of some dimensions was required to re-occupy those areas.
In belligerent occupation the occupying power does not hold enemy territory by virtue of any legal right. On the contrary, it merely exercises a precarious and temporary actual control. This can be seen from Article 42 of the Hague Regulations which grants certain well limited rights to a military occupant only in enemy territory which is "actually placed" under his control.
In reconquering enemy territory which the occupant has lost to the enemy, he is not carrying out a police performance but a regular act of war. The enemy combatants in this case are, of course, also carrying out a war performance. They must, on their part, obey the laws and customs of warfare, and if they do, and then are captured, they are entitled to the status and rights of prisoners of war.
The language used in the official German reports, received in evidence in this case, show, however, that combatants were indiscriminately punished only for having fought against the enemy. This is contrary to the law of war.
THE PRESIDENT: The Presiding Judge continues with the reading.
Reprisals From time to time the word "reprisals" has appeared in the Einsatzgruppen reports.
Reprisals in war are the commission of acts which, although illegal in themselves, may, under the specific circumstances of the given case, become justified because the guilty adversary has himself behaved illegally, and the action is taken in the last resort, in order to prevent the adversary from behaving illegally in the future. Thus, the first prerequisite to the introduction of this most extraordinary remedy is proof that the enemy has behaved illegally. While generally the persons who become victims of Court No. II, Case No. IX the reprisal are admittedly innocent of the acts against which the reprisal is to retaliate, there must at least be such close connection between these persons and these acts as to constitute a joint responsibility.
Article 50 of the Hague Regulations states unequivocally:
"No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible."
Thus when, as one report says, 859 out of 2,1000 Jews shot in alleged reprisal for the killing of 21 German soldiers near Topola, were taken from concentration camps in Yugoslavia, hundreds of miles away, it is obvious that a flagrant violation of International Law occurred and outright murder resulted. That 2,100 people were killed in retaliation for 21 deaths only further magnifies the criminality of this savage and inhuman so-called reprisal.
Hyde, International Law, Vol. III, page 35, has this to say on reprisals:
"A belligerent which is contemptuous of conventional or customary prohibitions is not in a position to claim that its adversary when responding with like for like, lacks the requisite excuse."
If it is assumed that some of the resistance units in Russia or members of the population did commit acts which were in themselves unlawful under the rules of war, it would still have to be shown that these acts were not in legitimate defense against wrongs perpetrated upon them by the invader. Under International Law, as in Domestic Law, there can be no reprisal against reprisal. The assassin who is being repulsed by his intended victim may not slay him and then, in turn, plead self-defense.
Reprisals, if allowed, may not be disproportionate to the wrong for which they are to retaliate. The British Manual of Warfare, after insisting that reprisals must be taken only in last resorts, states:
Court No. II, Case No. IX "459.
....Acts done by way of reprisals must not, however, be excessive and must not exceed the degree of violation com mitted by the enemy."
Similarly, Article 358 of the American Manual states:
"(b) When and how employed:
Reprisals are never adopted merely for revenge, but only as an unavoid able last resort to induce the enemy to desist from illegitimate prac tices.
....
(c) Form of reprisals:
The acts resorted to by way of reprisals.
....should not be ex cessive or exceed the degree of violations committed by the enemy."
Stowell, in the American Journal of International Law, quotes General Halleck on this subject:
"Retaliation is limited in extent by the same rule which limits punishment in all civilized governments and among all Christian people -- it must never degenerate into savage or bar barous cruelty."
(Stowell American Journal of International Law, Vol.
36, p. 671) The Einsatzgruppen reports have spoken for themselves as to the extent to which they respected the limitations laid down by International Law on reprisals in warfare.
CRIMINAL ORGANIZATIONS Article 9 of the London Charter provided, inter alia, as follows:
"At the trial of any individual member of any group or organization the Tri bunal may declare (in connection with any act of which the individual may be convicted) that the group or organiza tion of which the individual was a member was a criminal organization."
Article 10 provided that the criminality of such groups and organizations declared criminal by the International Military Tribunal was to be considered proved and not to be questioned in any succeeding proceedings. Control Council Law No. 10 defined membership in any Court No. II, Case No. IX organization declared criminal by the International Military Tribunal as a crime.