WAR CRIMES
TRIALS

Following World War II, the Allied Powers prosecuted twenty-two high-ranking German officials before the International Military Tribunal at Nuremberg. 1 This was the prelude to an extensive program of prosecutions in Allied occupied Germany, Europe, and Asia. 2

Three of the most significant trials involved Nazi military and police officials. 3 These prosecutions clearly established that those who are cloaked in military uniforms are criminally culpable for conduct which contravenes the code of war. The legal interpretations and rules established in these cases continue to provide the guiding principles and procedures for the prosecution of those charged with violations of the humanitarian law of war and genocide. 4

Initially, the development and organization of the military under the Third Reich is sketched. This is followed by a review of the trials of Nazi militarists and police. The legal significance of these prosecutions then is capsulized and some concluding comments are offered.

Adolf Hitler articulated his territorial ambitions as early as 1925 in his rambling two-volume tract, Mein Kampf. 5 He envisioned a foreign policy based on three goals: The reunification of German territory; 6 the incorporation of ethnic Germans into a single homogeneous State; 7 and the expansion of "living space" in the East. 8 Hitler argued that these were the requisites for an autonomous and strong Germany which could defend itself against France and Russia, the courtesans of the international Jewish cabal. 9

According to Hitler, the Jewish conspiracy had insinuated itself into the Reich and was responsible for Germany's defeat in World War I and the imposition of the Versailles Treaty. 10 In Hitler's dystopia vision, Germany stood as the dominant domino in international Jewry's design to dominate the globe. The fall of Germany would lead to the inevitable collapse of every country and continent. 11 There was no alternative other than to rearm -"Germany will either be a world power or there will be Germany." 12

One of the primary pillars of Hitler's policy was expansion into Eastern Europe. 13 The incorporation of Russia and surrounding States was viewed as providing soil to support a strong and substantial peasant class 14 which, in turn, would serve to nurture and sustain an expanded population. 15 As "guardians of the highest humanity," 16 Hitler proclaimed that the Reich was obliged "to secure for the German people the land and soil to which they are entitled on this earth." 17 While Hitler was mindful that this might require the "sacrifice of blood," 18 the Fuehrer was confident that "[t]he soil on which some day German generations of peasants can beget powerful sons will sanction the investment of the sons of today, and will . . . acquit the responsible statesmen of blood-guilt and sacrifice of the people . . .." 19

In Hitler's cosmology, countries commanded no claim to the maintenance of their geographic boundaries. These were mere fortuitous frontiers which were subject to forceful transformation. Hitler admonished that "[s]tate boundaries are made by man and changed by man" 20 and that "we must not let political boundaries obscure for us the boundaries of eternal justice. . . . [L]et us be given the soil we need for our livelihood." 21 The primary propellant of this new policy was to be the armed forces, "the mightiest weapon serving the freedom of the German nation and the sustenance of its children." 22

Hitler envisioned that the populations of Eastern Europe would serve as beasts of burden for the superior Aryan settlers. 23 Such inferiors were "not of good race" and were mere "chaff." 24 Hitler, of course, possessed particular venom for the Jews, who if "were alone in this world . . . would stifle in filth and offal." 25 He concluded with the admonition that "there is only one holiest human right . . . and . . . holiest obligation . . . to see to it that the blood is preserved pure and, by preserving the best humanity, to create the possibility of a nobler development of these beings." 26

The Treaty of Versailles eviscerated the German military. 27 Precise limitations were established for the size and nature of German armaments and armed forces. 28 Compliance was to be supervised by Inter-Allied Commissions of Control. 29

In accordance with the terms of Versailles, in January 1921, Germany established a one hundred thousand person army and fifteen thousand person navy army and navy were put under the command of the President of Germany and the Cabinet. 30 The military claimed that they had been "'stabbed in the back'" by politicians and initiated a furtive rearmament effort. 31 A 1927 memorandum from the Reich Defense Ministry conceded "[t]he fact that the Treaty of Versailles has been made valid as a law in Germany results in the fact that preparations for mobilization have no sort of legal foundation." 32 Nevertheless, the military continued to take substantial steps towards rearmament up until Hitler's appointment as Chancellor on January 30, 1933. 33

Hitler took the unprecedented step of appointing a member of the military, General Werner von Blomberg, as Minister of Defense. General Walter von Reichenau, a Nazi sympathizer, was named Blomberg's deputy. Admiral Erich Raeder continued as Chief of the Naval Command and General Werner von Fritsch, the choice of the officers' corps, replaced General Curt Hammerstein as Army Commander. 34 In February 1933, Adolf Hitler addressed the high-ranking Reichswehr [regular army] officers and stressed the importance of a strong military. General von Reichenau assured the Fuehrer that "'[t]he armed forces were never more identical with the tasks of the State than today.'" 35

Following the death of President Paul von Hindenburg on August 2, 1934, Hitler assumed the positions of Chief of State and Supreme Commander of the Armed Forces. That same day, Blomberg ordered the Wehrmacht [armed forces] to swear an oath of personal loyalty "to the Fuehrer of the German Reich and of the German people, Adolf Hitler." 36 Hitler and the Wehrmacht had now entered into a mutually advantageous arrangement. General Hermann Reinecke observed that "[t]he two pillars of the Third Reich are the Party and the armed forces, and each is thrown back on the success or downfall of the other." 37

In March 1935, Hitler renounced the Versailles Treaty. He then implemented mandatory conscription with the aim of establishing a five hundred thousand person army and reorganized the defense establishment. 38 The military warmly welcomed the Fuehrer's announcements. Von Blomberg wrote that "[t]he National Socialist ideology and true community of the people will find their home in the Wehrmacht . . . . The general conscription . . . will be based upon the ideas of the National Socialist State." 39 Rearmament now proceeded at a torrid pace. Within seven months, twelve new submarines had been launched. 40 In March 1936, the last vestige of Versailles was swept aside when German troops entered the demilitarized zone in the Rhineland. 41 Senior officers saw National Socialism as a step towards the reassurance of traditional values, conservative politics, and nationalism while younger militarists envisioned the radical revitalization of the armed forces and society. 42 On the 125th anniversary of the German War Academy, which had been reopened in contravention of the Versailles Treaty, Lieutenant General Curt Liebmann, Commander of the Academy, greeted the Fuehrer:

We know, and we are convinced in our deepest being that we have solely your determined will and your infallible leadership to thank for our freedom, and - like the German people - we and the entire German Armed Forces will show our thanks to you, our Fuehrer, through unflinching faithfulness and devotion. 43

Lieutenant General Ludwig Beck, Chief of the Army General Staff, reminded the Academy of the duty which they owe to the man who recreated and restrengthened the German Armed Forces, who finally took the fetters of Versailles from it, and to the new State which assures us a stronger foundation than ever in a united nation if some day again only the call to arms should be left for the defense of the Fatherland. 44

On January 30, 1936, the third anniversary of Hitler's ascendancy to power, Blomberg broke with the military's traditional non-partisan posture and issued a directive which stated that the armed forces can only fulfill its task of leadership . . . if it adopts the National Socialist ideology . . . and appropriates it intellectually totally and with conviction. Thus, I consider the uniform political education and instruction of the officer corps . . . to be particularly important. 45 The armed forces was quickly cleansed of Jews and other "undesirables." 46 On May 13, 1936, Hitler took the additional step of mandating the military "to select . . . soldiers, and . . . leaders . . . according to the strictest racial criteria going beyond the legal regulations . . . [so as] to maintain a selection of the best Germans." 47

Meanwhile, war was being planned. 48 As early as November 5, 1937, Hitler had confided to the military command that the "German future is . . . dependent . . . on the solution of the need for living space." 49 According to the Fuehrer, the necessary food and human fodder only could be guaranteed through the annexation of Czechoslovakia and Austria. 50

A crisis was created in January 1938, when Field Marshal Blomberg married a young women of questionable repute. On January 25, Hitler and Goering responded to pressure from the officers' corps and forced Blomberg to resign. Two days later, von Fritsch was removed as Commander of the Army. His dismissal was based on the false accusation that von Fritsch had engaged in homosexual conduct. Although von Fritsch was subsequently exonerated by a military court martial, he was not reinstated. 51

Hitler now seized the initiative and subordinated the military to his command. On January 27, the Fuehrer assumed personal command of the Wehrmacht and named Lieutenant General Wilhelm Keitel as his executive assistant. 52 These developments were memorialized in a February 4, 1938 order in which the Fuehrer proclaimed that:

From this time onward I personally assume the command of the entire armed forces.

The former Armed Forces Officer . . . will be known as the High Command of the Armed Forces and will come directly under my orders as my military staff.

. . .

It will be the bounden duty of the High Command of the Armed Forces in peacetime to prepare the unified defense of the Reich in all particulars under my direction. 53

The alliance between Hitler and the Wehrmacht was sufficiently strong to survive the von Fritsch affair. The armed forces had witnessed Hitler overthrow the Weimar Republic, establish a totalitarian State, place political opponents in prison, and undermine and humiliate the military leadership. Nevertheless, as the prosecution noted in the High Command Case:

[t]hey [the military] saw the factories of Germany humming and pouring out . . . armaments . . . . They had learned that Hitler, like themselves, had scant respect for the sanctity of treaties, and could be counted on to pursue a 'realistic' foreign policy. . . . [T]hey knew of and shared Hitler's ultimate intention to put the Wehrmacht to use. . . . Whatever differences they had with Hitler . . . there were no fundamental differences of purpose. 54

In February 1938, Hitler thus was positioned as Supreme Commander of the Armed Forces (Oberster Befehlshaber der Wehrmacht). Wilhelm Keitel, as noted, had been installed as Chief of the Armed Forces High Command (Oberkommando der Wehrmacht, referred to as OKW) which was vested with authority over all three branches of the armed forces. 55 Admiral Erich Raeder continued as Commander in Chief of the Navy (OKM) until 1943, when he was replaced by Admiral Karl Doenitz. 56 Reich Marshal Hermann Goering remained head of the Air Force (OKL) until the last month of the war. 57 General Walter von Brauchitsch had replaced von Fritsch as Supreme Commander of the Army (OKH). 58 Von Brauchitsch, in turn, was dismissed in December 1941, when Hitler took the additional title of Commander in Chief of the Army. This resulted in the de facto merging of the functions of the OKW and the OKH. 59

Hitler's destructive international policies ultimately provoked organized opposition. 60 An unsuccessful attempt to assassinate the Fuehrer resulted in the execution of hundreds of suspected conspirators, including two field marshals and sixteen generals. 61 Hitler reacted by assuming control of virtually every tactical decision and threatened officers who defied his decrees with draconian punishment. 62 On March 18, 1945, with Berlin reduced to rubble, Hitler dismissed demands that he abandon his "scorched earth" policy.

If the war is to be lost, then the nation, too will be lost. . . . There is no need to consider the basic requirements that a people need in order to continue to live a primitive life . . . . Those who remain alive after the battles are over are in any case only inferior persons, since the best have fallen. 63

In the end, the overwhelming mass of the military followed the Fuehrer. 64 They later rationalized that organized resistance would have violated their oath, led to domestic strive and battlefield defeat and would have improperly injected the armed forces into politics. 65

The extermination of the "enemies" of National Socialism did not only occur in concentration camp crematoriums. Many were killed in a measured and methodical fashion by the German military or killing squads. No clear distinction, thus, should be drawn between German combatants and killers. 66

Historian Omer Bartov argues that as the war dragged on the German military experienced a shortage of men, material, and ammunition. Discipline was maintained through a strict system of regimentation. The troops, in turn, were both required and permitted to vent their anger and frustration against enemy civilians and combatants. 67 These excesses also served to solidify the spirit of German troops. 68 This culminated in the ideological confrontation with Russia in which the army reverted to the crudest moral code of war, according to which everything which ensured one's survival was permitted (and thus considered moral), and everything even remotely suspect of threatening it must be destroyed (and was by definition immoral). 69 German troops were exposed to a continuous course of propaganda which shaped their perception of Russian civilians and combatants. Analysis of letters sent by German soldiers to their families reveals a "distortion of reality among the troops." 70 This include the dehumanization and demonization of the enemy on political and racial grounds, with a particular reference to the Jews as the lowest expression of human depravity; and . . . the deification of the Fuehrer as the only hope for Germany's salvation. Intermixed . . . were notions regarding . . . racial and cultural superiority, and a view of the war as a holy crusade for a better future and against an infernal host of enemies sanctioned by God. 71

Christopher R. Browning studied the affidavits of members of Reserve Police Battalion 101 which was responsible for the death of roughly eighty-three thousand Polish Jews. 72 The Battalion was unusual in that it was comprised of older working-class men from Hamburg, only twenty-five percent of whom were members of the Nazi Party. 73 The pressure towards conformity and maintenance of a masculine image motivated the men to engage in massacre. 74 Browning notes that "the men's concern for their standing in the eyes of their comrades was not matched by any sense of human ties with their victims. The Jews stood outside their circle of human obligation and responsibility." 75

Even the most eminent German officers were not above ordering and engaging in atrocities. Field Marshal Albert Kesselring is viewed by military historians as a supreme strategists and leader. 76 On March 23, 1944, a bomb exploded in Rome killing thirty-two German police. Hitler ordered Field Marshal Albert Kesselring, Commander of Army Group C in Italy, to execute ten Italian hostages for every German who had died in the attack. Kesselring was informed by the head of the Security Service in Rome that there were enough prisoners "worthy of death" to carry out the reprisal. 77 Kesselring issued an order to General Eberhart von Mackensen, Commander of the 14th Army, to "'[k]ill 10 Italians for every German. Carry out immediately.'" 78 The Security Service proceeded to assemble 335 detainees, ten more than required. This included a fourteen and seventy year-old as well as fifty-seven Jews, none of whom were connected with partisan activity. The group was herded into the Ardeatine Cave and shot in the back at close range as they kneeled on top or alongside the corpses of other victims. Following the executions, the cave was blown up. 79 Kesselring was subsequently convicted of two counts of War Crimes and sentenced to death by shooting. The sentence was commuted to life imprisonment and Kesselring was released after roughly five years. 80

Following World War I, the Allied Powers' plan to prosecute alleged German war criminals was abandoned in the interests of preserving stability within the politically precarious Weimar Republic. Germany compromised and agreed to conduct a limited number of trials before the Penal Senate of the Reichsgericht. However, the Germans possessed little enthusiasm for prosecuting their own combatants. Some were acquitted, others received lenient sentences and the vast majority of the charges were quashed. Those convicted eventually had their verdicts annulled. 81 The most significant development was the Reichsgericht's recognition in the Llandovery Castle Case that the international humanitarian law of war was binding upon German belligerents. 82

The Allied Powers refused to rely on the Germans to prosecute those accused of War Crimes during World War II. In October 30, 1943, the United Kingdom, the United States, and the Soviet Union vowed that those "who have been responsible for, or have taken a consenting part in . . . atrocities, massacres, and executions, will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished." 83 Those whose "offenses have no particular geographical localization . . . will be punished by the joint decision of the Governments of the Allies." 84

Twenty-two high-echelon Nazi officials were indicted at Nuremberg, five of whom were high-echelon military officers. The prosecution primarily focused on the aggressive war charge (Crimes Against Peace) and relatively limited attention was devoted to allegations of War Crimes and Crimes Against Humanity. Nevertheless, all five militarists were convicted of having violated the humanitarian law of war. 85 Reich Marshal Hermann Goering, for instance, was convicted of having been an animating force in the deployment of slave labor and the repression of occupied populations. In a July 31, 1941 decree, he directed the Security Police to "bring about a complete solution of the Jewish question in the German sphere of influence in Europe." 86 Field Marshal Wilhelm Keitel was found guilty of having issued a number of criminal orders to German troops. On September 8, 1941, Admiral Wilhelm Canaris wrote to Keitel protesting that the directive to execute Soviet prisoners of war was contrary to international law. Keitel initialed a reply: "'The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology [Communism]. Therefore I approve and back the measures.'" 87 The International Military Tribunal determined that the General Staff and High Command lacked coherence and could not be considered a criminal organization. However, the Tribunal urged that high-echelon German military officers should be brought before the bar of justice:

They have been responsible in large measure for the miseries and suffering that have fallen on millions of men, women, and children. They have been a disgrace to the honorable profession of arms. Without their military guidance the aggressive ambitions of Hitler and his fellow-Nazis would have been academic and sterile.. . . [T]hey were certainly a ruthless military caste.

Many of these men have made a mockery of the soldier's oath of obedience to military orders. When it suits their defense they say they had to obey; when confronted with Hitler's brutal crimes . . . they say the disobeyed. The truth is that they actively participated in all these crimes, or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world has ever had the misfortune to know. This must be said. 88

Nuremberg provided the legal foundation for the prosecution of the second tier of the Nazi bureaucracy. These trials primarily were carried out by Allied national tribunals within occupied Germany. 89 The Allied Control Council of Germany issued Control Council Law No. 10 in order to "establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal." 90 Defendants prosecuted under this statute were subject to liability as principals or accessories or for ordering or consenting to the commission of the Nuremberg offenses of Crimes Against Peace, War Crimes, and Crimes Against Humanity. Control Council Law No. 10 also imposed sweeping liability on those connected with plans or enterprises involved in the commission of Nuremberg crimes. In addition, individuals were subject to prosecution for membership in groups or organizations which had been declared criminal by the International Military Tribunal. 91 Defendants convicted under Control Council Law No. 10 were to be variously punished with death, life imprisonment, hard labor, fine, forfeiture of property, restitution, and deprivation of civil rights. 92 Control Council Law No. 10, like the Nuremberg Charter, abrogated act of state 93 and rejected the superior orders defense. 94 Other provisions addressed the statute of limitations and immunity from prosecution 95 as well as arrangements for the extradition of offenders and witnesses. 96

Control Council Law No. 10 provided the legal principles and procedures which guided the American prosecution of the remaining high-echelon leaders of the German military establishment.

German military strategy in the eastern campaign was based on the concept of "total war." Wilhelm Keitel, Chief of the High Command of the Armed Forces, proclaimed that:

This is . . . a matter of life and death. This struggle has nothing to do . . . with soldierly chivalry or the regulations of the Geneva Convention.

If this war . . . is not waged with the most brutal methods, the available forces will . . . no longer be sufficient to overcome this plague.

[T]he troops are justified and obliged . . . to resort to all measures - even against women and children - without leniency, as long as they are successful. 97

In a subsequent order, German soldiers were reminded that they were the "bearer of a ruthless national ideology and the avenger of all the bestialities which have been inflicted on the German and racially related nations." 98 They were admonished that "[e]very piece of bread given to the civilian population, will be missed at home." 99

This perverse philosophy was reflected in the Nazi's tactics and strategies. In response to the landing of uniformed and openly armed Allied troops behind German lines in France and Norway, Hitler issued the so-called Commando Order. The directive alleged that these units were engaged in illegal terrorist activity and directed that captured commandos were to be summarily executed. 100 A related order urged the population to retaliate against Allied airmen who parachuted from disabled aircraft. The airmen were accused of indiscriminately and illegally attacking civilians. 101

The Germans acted with particular ferocity against the political commissars who were attached to the Russian Army. The commissars were the representatives of the Communist Party who were responsible for the political indoctrination and morale of the Russian forces. They otherwise were indistinguishable from ordinary combatants - the commissars wore uniforms, openly carried arms and fought alongside the regular troops. 102 On March 30, 1941, Hitler addressed a gathering of generals in Berlin and urged the military to exterminate Bolshevist commissars and Communist intellectuals in order to severe Stalin's ideological stranglehold over the minds of the Russian people. 103 On June 8, 1941, two weeks prior to the invasion of Russia, Field Marshal Walter von Brauchitsch, Commander in Chief of the German Army, issued a directive ordering the execution of captured commissars. 104 In accordance with this order, commissars were routinely killed. An October 26, 1941 report by one of the divisions under the command of defendant Field Marshal Georg Karl Friedrich-Wilhelm Von Kuechler, Commander in Chief of the 18th Army, recorded, "'[n]othing particular to report. 16 commissars shot.'" 105

Russian prisoners were intensively interrogated in an effort to ferret out commissars. Suspected commissars, as well as those viewed as a threat to order and discipline, were turned over to the Security Police for execution. 106 Defendant Hermann Reinecke, head of the armed forces department concerned with prisoners of war, directed that insubordination was to be ruthlessly repressed: "Anyone . . . who does not use his weapons, or does so with insufficient energy is punishable. The use of arms against prisoners of war is as a rule legal." 107 Pursuant to these orders, thousands of Russian prisoners were killed. 108

The Nazi occupation forces deployed the same type of terror and violence against civilians. One of the pillars of this policy was the "Night and Fog" (Nacht und Nebel) Decree drafted by defendant Rudolf Lehmann, Chief of the Legal Department of the OKW. Pursuant to the this directive, civilians suspected of resistance activities were detained and deported for trial before special courts within the Reich. The entire process was shrouded in secrecy and silence. This served to spread trepidation and terror and permitted the swift disposition of defendants. 109 In a December 12, 1941 letter accompanying the "Night and Fog" Decree, Field Marshal Wilhelm Keitel wrote that "imprisonment, life imprisonment, too, are considered as signs of weakness. An efficient and lasting intimidation can only be obtained by death penalties or by measures keeping the relatives and the population in uncertainty about the offender's fate. The transfer to Germany serves this end." 110

The cornerstone of the Reich's policy in Russia was the Barbarossa Order, which authorized the summary execution of civilians suspected of defying the decrees of the German occupation forces. In those instances in which offenders could not be expeditiously identified, officers were empowered to order collective measures against localities thought to be complicit in criminal activity. The second portion of the order specified that officers were not obliged to prosecute German combatants for crimes committed against enemy civilians, unless such offenses were likely to undermine discipline. 111 The Barbarossa Order was ruthlessly implemented. Officers were directed "not [to] spare the bearer of enemy ideology, but kill him. Every civilian who impedes or incites others to impede the German Armed Forces is also to be considered a guerrilla (for instance-instigators, persons who distribute leaflets, nonobservance of German orders, incendiaries, destruction of road signs, supplies, etc.)." 112

Thousands were arbitrarily executed. A February 19, 1943 report from General Hans Reinhardt's 3d Panzer Army illustrates the broad interpretation which was given to the authorization for collective measures: "'In order to keep bands from resettling in this territory . . . the population of villages and farms in this area were killed without exception to the last baby. All homes were burned down. Cattle and victuals were confiscated and taken from this area.'" 113

Jews, of course, were singled out for persecution. In 1941, Field Marshal Keitel admonished German troops in Russia that "[t]he struggle against bolshevism demands ruthless and energetic measures, above all also against Jews, who are the main bearers of bolshevism." 114 Nearly one million were executed by Einsatzgruppen killing squads which were attached to German Army units. 115

The Germans also attacked Gypsies - alleging that these nomadic people were Bolshevist agents and terrorists. One typical report detailed the arbitrary killing of 128 Gypsies. The narrative concluded that "in spite of the existence of formal misgivings . . . the shooting of the gypsies must be regarded as . . . justified . . . especially since no more attacks have taken place in this area since the shooting was carried out." 116 The Nazis' also claimed the right to exterminate the residents of mental institutions in order to protect the local population and German troops from disease and danger. 117

By the summer of 1941, Germany was experiencing a labor shortage in the armament and construction industries. Nazi field commanders transferred thousands from the occupied territories to the Reich. 118 In France, all males between sixteen and fifty-five who assisted, or who were suspected of assisting or sympathizing with the partisans, were detained and deported to serve as slave labor. 119 Those who resisted or attempted to escape were shot and their relatives were conscripted to work in the Reich. 120 Russian prisoners were compelled to clear mine fields, dig trenches, construct fortifications and highways, and load ammunition. 121 Desperate for additional workers, in March 1943, defendant General Karl Hollidt ordered that "'Russian men and women have to be employed ruthlessly for the construction of defenses.'" 122 By June 1943, Hollidt had conscripted over fifty thousand civilians. Defendant Hans Reinhardt, Commanding General of the Third Panzer Army in Russia, in May 1943, directed that all males between the ages of sixteen and fifty, and women between sixteen and forty, should be pressed into the labor program. 123 Still, additional workers were required. In a secret order issued on January 2, 1944, General Hans Reinhardt urged that "'[a]ny measure is justified and urgently desirable if it produces a quick and considerable increase in the number of civilians working for us.'" 124 As a result, children as young as ten along with the elderly and seriously ill were involuntary subjected to servitude in the Reich. 125

The German armed forces which prided itself on professionalism, thus functioned as a ruthless occupying power which exploited and exterminated "undesirables" as well as civilians suspected of opposition to the Reich. The military also disregarded the elemental protections which were to be accorded to prisoners of war. The high-ranking defendants in the High Command Case, however, variously insisted that they had been unaware of these excesses or that they had unsuccessfully attempted to resist and undermine the Fuehrer's orders. In the end, most of these men of prestige and potency asked the Court to believe that they had been powerless pawns who had been driven to defer to the dictatorial demands of the Fuehrer, Adolf Hitler. 126

In the High Command Case, thirteen defendants stood trial for Crimes Against Peace, War Crimes, and Crimes Against Humanity. Of these convictions, eleven were convicted of War Crimes and of Crimes against Humanity. Two defendants were sentenced to life imprisonment, three to twenty years, two to fifteen and four to between three and eight years in prison. 127

The American Court dismissed the Crimes Against Peace charge. 128 The Tribunal ruled that only

the preparation, planning, initiating, or waging of aggressive war on a policy level . . . fall under the definition of crimes against peace. It is not a person's rank or status, but his power to shape or influence the policy of his state, which is the relevant issue for determining his criminality under the charge of crimes against peace. 129

The Court observed that international law had not evolved to the point where those below the policy-level were criminally culpable for participation in a war of aggression. The field commanders and staff officers who stood before the bar of justice in the High Command Case were the "policy makers' instrument" and were understandably required to comply with the "rigid discipline which is necessary for and peculiar to military organization." 130 The Court did admonish that it would have been "eminently desirable had the commanders of the German armed forces refused to implement the policy of the Third Reich . . . [t]his would have been the honorable and righteous thing to do . . . [h]ad they done so they would have served their fatherland and humanity also." 131

The Tribunal, however, was unwilling to absolve the defendants of War Crimes and Crimes against Humanity. The judges noted that the defendants had intentionally implemented the Nazi theory of "total war." 132 The abuse and murder of Soviet commissars, captured commandos and British pilots as well as other gross violations of the customs and usage of the code of conflict were core components of this strategy. 133 The Court observed that:

The record in the instant case is replete with horror. Never in the history of man's inhumanity to man have so many innocent people suffered so much.

Millions of people whose only offense was that they were of Jewish blood, or Soviet nationals, or gypsies, or Poles, designated as social inferiors, subhumans, and beasts received what the Hitlerites called "special treatment," or "liquidation," or "final solution" and were exterminated regardless of age or sex. No nation, no army, and its leaders of any time, civilized or uncivilized, labor under so great a load of guilt as do Hitler's Germany, its army and its leaders in their treatment of these unfortunate people.

In addition, the civilian population of the countries overrun by German arms were enslaved, deported for forced labor, starved, tortured, murdered, executed as hostages and, by way of reprisal, were compelled to erect fortifications and remove live mines; their property, public and private, was plundered and destroyed, and they suffered other crimes at the hands of their conquerors. 134

The Court refused to recognize the superior orders defense. Hitler was Commander in Chief of the Armed Forces and supreme civil and military authority and his decrees carried the force of law. Under such circumstances, to admit as a defense that a defendant had acted pursuant to the order of a superior would, in practical effect to say that all the guilt charged in the indictment was the guilt of Hitler alone because he alone possessed the law-making power of the state and the supreme authority to issue civil and military directives. To recognize such a contention would be to recognize an absurdity. 135

What of the criminal responsibility of field commanders who transmitted and implemented the illegal orders of superiors? The prosecution urged that a commander should be held strictly liable for the conveyance of a criminal order. However, the Court noted that such transmittal was a routine matter which in most cases was handled by the staff. 136 Even in those instances in which battlefield commanders were cognizant of Hitler's directives, the Tribunal noted that these officers were soldiers rather than lawyers and should not be expected to engage in detailed juridical analysis. The Tribunal, however, did rule that field commanders were liable for the transmission of clearly criminal orders. 137 Participation in "implementing such orders, tacit or otherwise . . . [or] silent acquiescence in their enforcement by . . . subordinates, constitutes a criminal act." 138 .

What of staff officers? The Court noted that staff officers were an indispensable link in the chain of command. They were responsible for translating ideas and directives into properly prepared orders and transmitting the orders. The Tribunal ruled that a staff officer who complied with an order to draft, or who directed others to draft, a manifestly illegal order, or who personally distributed such an order to subordinate units, was criminally culpable under international law. In the absence of such involvement, a chief of staff was not legally culpable. 139

The Court observed that staff officers in the German Army invariably exercised substantial discretion and authority and were involved in the formulation of criminal orders. 140 While many of the demonic directives of the Third Reich originated in the minds of Hitler and his criminal cabal, "[s]taff officers were indispensable . . . and cannot escape criminal responsibility for their essential contribution to the final execution of such orders on the plea that they were complying with the orders of a superior who was more criminal." 141

The Tribunal next turned to the specific policies of the Third Reich. The Court characterized the Commissar Order as "one of the most obviously malevolent, vicious and criminal orders ever issued by any army of any time. It called for the murder of Russian political functionaries and, like so much of the evils of the Third Reich, originated in Hitler's fertile brain." 142 Some concededly sought to surreptitiously sabotage or evade the order. Nevertheless, the Court noted that the record contained numerous reports documenting the execution of commissars. While various defendants claimed that the these figures were exaggerated or fictitious, the fact remained that thousands had been executed in utter violation of the laws of war and humanity. 143

Commanders in Chief were not absolved from liability by the fact that the Commissar Order had originated at a higher level. Field commanders passed the order down to their subordinate units and were charged with actual or constructive knowledge of the reports documenting the death of political functionaries. Despite personal qualms, no officer lodged a protest. "The superior cannot absolve himself by the plea that his character was so well known that his subordinates should have had the courage to disobey the order which he himself in passing it down showed that he lacked. Such a plea is contemptible and constitutes no defense." 144

The Barbarossa Order dispensed with court martial jurisdiction over the civilian population and subjected civilians in the occupied territories to arbitrary punishment. The Tribunal noted that civilians were entitled to fair treatment. The summary punishment of "suspected" terrorists as well as various other offenders was criminal. In one case, the Court noted that German troops had executed a nineteen year old women who had written a song derogatory of Nazi invaders. 145 Equally as reprehensible was the authorization given to low-level officers to order collective punishment. 146

In addition, the Tribunal ruled that various defendants were liable for the abuse of prisoners of war. The Court conceded that many captured combatants were physically depleted. This, however, was not the cause of their death - they were compelled to work in harsh conditions and deprived of food, clothing, and hygiene. Such mistreatment violated a commander's responsibility to insure that prisoners received proper care and were not compelled to work in dangerous conditions. The summary execution of prisoners who allegedly had attempted to escape also was criminal. In addition, commanders were culpable for issuing and transmitting orders which transferred prisoners to the Security Police for "special treatment." 147

The Tribunal also ruled that the German's requisitioning of enemy civilians for work in the war industry as well as the looting and spoliation of property were in violation of international law. 148 The defense contended that the recruitment of labor from the occupied territories, as well as the seizure of property or goods beyond that which was necessary for the support of the German armed forces, were justified on the basis of military necessity. Under this doctrine, the Germans' claimed the right to engage in any conduct which contributed to the vindication of the Nazi cause. The Court repudiated this expansive notion of necessity on the grounds that it "would eliminate all humanity and decency and all law from the conduct of war and it is a contention which [the] Tribunal repudiates as contrary to the accepted usage of civilized nations." 149

The Tribunal next addressed the responsibility of field officers for the actions of Security Police. Commanders exercised executive authority over occupied territories and were responsible for the maintenance of safety and security. The Court rejected a strict liability theory which affixed responsibility on Commanders in Chief for actions committed within the scope of their territorial command. 150 However, the Tribunal did rule that commanders were obliged to suppress illegal acts of which they were aware or should have been aware. 151 The contention that the defendants were unaware of the activities of the killing squads was dismissed as disingenuous-ninety-thousand "so-called undesirable elements" had been liquidated within the area of the Eleventh Army alone. 152 Nevertheless, the Tribunal recognized that the killing program of the Einsatzgruppen squads was not embodied in a specific directive which passed through the chain of command. Reports of the killing of Jews, Gypsies, and others were routed through police channels and large-scale exterminations often were portrayed as pogroms which had been initiated by the local populace. As a result, the Tribunal declined to draw a "general presumption" as to the knowledge of specific defendants concerning the activities of killing squads. 153

The defense asserted in mitigation that there was substantial opposition to Hitler's orders and plans by high-echelon military leaders, including various defendants. 154 While the Tribunal recognized that there was some dissent, "the tragedy of it is that these men, in spite of their opposition, allowed themselves to be used by him [Hitler]." 155

To von Leeb, Hitler was a "demon . . . a devil," and to Halder he had "a complete absence of any ethical or moral obligation." The demands he made of the defendants may have been "in contrast to their principles and natures," and against their "humane and soldierly feelings," but the inescapable fact remains that in part, at least, if not to the whole, they permitted their consciences and opinions to become subordinate to his will, and it was this which has placed such great and ineradicable shame upon the German arms. 156

The Court ruled that while the pressures exerted upon the military command could not excuse the defendants' conduct, that it was "proper to consider and judge in any case the offenses charged in the light of their historical and psychological background and in their connections with all surrounding circumstances." 157

The Court seemingly strained to mitigate the guilt of the lead defendant, Field Marshal Wilhelm von Leeb. Von Leeb, as Commander in Chief of Army Group North in the Russian campaign, directed roughly six hundred thousand men. He had been present at the meeting in March 1941 at which the Fuehrer had ordered the extermination of Soviet commissars. Von Leeb, to his credit, was one of several officers who had confidentially contended that this order contravened international law and that the Russians would react by reliantly resisting capture. When approached, Hitler derisively dismissed these misgivings and directed the OKH to distribute the order. 158 Although von Leeb communicated his opposition to his subordinates, atrocities were committed by combatants under his command. Still, von Leeb was exonerated: "He protested against it [the Commissar Order] and opposed it in every way short of open and defiant refusal to obey it. If his subordinate commanders disseminated it and permitted its enforcement, that is their responsibility and not his." 159

Prisoners of war in von Leeb's area of command were the responsibility of the Quartermaster General and were not subject to von Leeb's legal control. The Tribunal determined that von Leeb had the right to assume that the officers in command of these units would properly perform their responsibilities. According to the Court, there was no substantial evidence that von Leeb was informed of the illegal deployment of prisoners in dangerous occupations or localities. 160 As to the contention that he must have been aware from the prisoner's appearance that they had been abused, "[t]he condition of these prisoners on the road . . . might well have been due to their condition when captured and not to any neglect of their captors at that time." 161 The Court also failed to find that von Leeb had received reports documenting the activities of killing squads within his territorial command. The one massacre of which he was aware had been deceptively described as a local Latvian pogrom. 162

The Tribunal did hold von Leeb liable for the transmission of the Barbarossa Jurisdiction Order. According to the Court, there was no indication that von Leeb had attempted to impede the enforcement of this directive. The order "carried the weight of his authority as well as that of his superiors . . . . Having set this instrument in motion, he must assume a measure of responsibility for its illegal application." 163 In explaining von Leeb's relatively modest three year sentence, the Court stressed that von Leeb

was not a friend or follower of the Nazi Party or ideology. He was a soldier and engaged in a stupendous campaign with responsibility for hundreds of thousands of soldiers, and a large indigenous population spread over a vast area. It is not without significance that no criminal order has been introduced in evidence which bears his signature or the stamp of his approval. 164

The Court adopted a different view of von Leeb's successor as Commander of Army Group North, Field Marshal Georg Karl Friedrich-Wilhelm von Kuechler. Von Kuechler was an experienced soldier who was described as "cold-blooded and ruthless." 165 Between 1941 and 1942, he commanded the 18th Army. Although von Kuechler both denied knowledge of and claimed that he had opposed the Commissar Order, "the cold, hard, inescapable fact remains that he distributed it, and that it was enforced by units subordinate to him in the 18th Army." 166 Although he received reports documenting the killing of commissars, von Kuechler made no effort to control the conduct of his subordinate units. The contention that "it would have endangered him as a disobedient commander if he had not carried out the order, is not a defense to, but may go in mitigation of, the crime charged." 167

The Court also determined that von Kuechler had received and disseminated the Barbarossa Jurisdiction Order. His subordinate units executed Communists and Gypsies along with those suspected of harboring an anti-German attitude or assisting partisans. Others were killed for listening to Radio Moscow, spreading rumors of atrocities or for refusing to work. While commander of the 18th Army, von Kuechler also assented to the extermination of 230 "insane and diseased women" who were not considered "lives worth living." 168

The Tribunal noted that von Kuechler's callous attitude was evidenced by his distribution of the Reichenau Order. This directive admonished the Nazi combatant that he was "'not merely a fighter according to the rules of the art of war but also a bearer of ruthless national ideology and the avenger of bestialities which have been inflicted upon Germany and racially related nations.'" 169 The order called for the execution of prisoners of war, the denial of food and cigarettes to civilians and prisoners as well as the destruction of all symbols of Bolshevist rule. 170 Collective retaliation was authorized against civilians who failed to impede or to report partisan attacks. The Tribunal queried, "[i]s it any wonder that persecutions followed when heads of armies were issuing such inflammatory and inciting orders?" 171 Von Kuechler was sentenced to twenty years in prison. 172

German Hermann Hoth was Commander of Panzer Group 3 during the Russian campaign. On October 10, 1941, Hoth was appointed Commander in Chief of the 17th Army attached to Army Group South. In May 1942, he was named Commander in Chief of the 4th Panzer Army. 173 Hoth noted that he had received the Commissar Order from his superior von Brauchitsch and that he had simply conveyed the directive through the chain of command. He explained that it was inconceivable that Hitler would request his commanders to violate the law. At any rate, Hoth observed that the Fuehrer was empowered to supersede the provisions of the German Military Penal Code. 174

Hoth also claimed that he had privately opposed the Commissar Order. He 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 that he lacked to disobey the order." 175 The panel pointed out that

the mere unexpressed hope that a criminal order given to a subordinate will not be carried out is neither a defense nor a ground for the mitigation of punishment. 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. 176

Hans Reinhardt commanded the XLI Panzer Corps during the initial portion of the Russian campaign. Reports indicated that Reinhardt's troops had executed close to two hundred commissars within a month following the issuance of the Commissar Order. The Tribunal dismissed Reinhardt's defense that these reports were fictitious. 177 The persistent accounts of killings suggested that the "defense of fictitious reports may itself be fictitious." 178 The Court also rejected the claim that the order had been conveyed through informal communication rather than through the command structure: "Unless the order had been communicated rather extensively . . . it is difficult to understand how it would sweep the entire Russian front. The obvious explanation . . . is that it became known because of its implementation." 179 The Tribunal concluded that Reinhardt had failed to fulfill his duty to oppose the implementation of the Commissar Order:

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 the top level to report the number of commissars killed would have been that this unit does not murder enemy prisoners of war. 180

Reinhardt also authorized and countenanced the abuse and murder of prisoners of war, 181 turned prisoners over to the Security Police for extermination, 182 and ordered the forceful deportation and enslavement of men, women, and children for work at the front lines. 183 Reinhardt received fifteen years imprisonment. 184

General Hans von Salmuth, a World War I veteran, held a variety of command posts in the Polish and Russian campaigns. 185 The evidence established that units under his command illegally executed civilians. 186 In December 1942, von Salmuth distributed an OKW order which stipulated that the war should be waged with the "'most brutal methods.'" 187 The directive went on to proclaim that the "'troops [were] justified and obliged to resort in this combat to all measures - even against women and children - without leniency, as long as they are successful.'" 188 Von Salmuth added that "'all means have to be employed'" in the interrogation of bandits and women. 189

On August 7, 1941, while Commanding General of the XXX Corps during the Russian campaign, von Salmuth distributed an order authorizing collective punishment in cases in which saboteurs were not apprehended. This was followed in November 1941, with the dissemination of a directive calling for the wide-spread detention and execution of reprisal prisoners. 190

In August 1941, based on a report of a purported plot by Jews and Bolshevists in Koydama in the Ukraine to attack German troops, von Salmuth approved the arrest and interrogation of four hundred Jews. Roughly ninety-eight alleged Communists were executed and one hundred and seventy were taken hostage. Von Salmuth warned that the hostages would be shot in the event of an attack on German troops. 191 Shortly thereafter, he signed an order stating that the "fanatical intent of the members of the Communist party and of the Jews . . . must be broken under all circumstances . . . [I]t is . . . necessary to proceed with vigor." 192 The Tribunal also noted that von Salmuth had neither criticized nor protested the activities of the killing squads and that he had failed to request their removal or punishment. 193 Von Salmuth was sentenced to twenty years in prison. 194

Lieutenant Karl von Roques was Commander of the Rear Area Army Group South, and, in July 1942, he was appointed Commander of the Rear Area Army Group A (Caucasus). 195 The Tribunal determined that von Roques had failed to fulfill his duty to protect prisoners of war and civilians within the area of his command. 196 Von Roques tolerated "mopping-up" operations of Russian troops 197 and permitted killing squads to enter prisoner of war and transit camps and segregate and execute "unbearable elements." 198 He also issued an order that paratroopers were to be executed as guerrillas, explaining that "'[o]nly through ruthless measures can the paratrooper plague be opposed successfully.'" 199 Von Roques congratulated one of his infantry divisions for conducting a forced march of prisoners of war in which over one thousand were shot as a result of their failure to maintain the proper pace. 200 As a rear area commander, von Roques was responsible for guarding and securing prisoners of war. These camps experienced astronomical death rates as a result of malnutrition and poor hygiene. In January 1942, von Roques informed his superiors that all forty-six thousand likely, "'will have eliminated themselves in a few months by death and diseases.'" 201

Von Roques transmitted the Barbarossa Jurisdiction Order to the divisions under his command. Roughly three months later, in August 1941, he also directed that in those instances in which the population was suspected of involvement in partisan activity that an officer should "'order the execution of collective punishment, e.g., mass executions, or that villages be burnt to the ground partially or entirely . . . . [I]t is required that each superior exercises ruthless measures for the security of the unit.'" 202 On September 1, 1941, von Roques reiterated that "'[t]he troops . . . will liquidate on the spot . . . such natives as have been proved or are suspected of having committed hostile acts . . . .'" 203

The Tribunal noted that documents indicated "the complete subservience of the Wehrmacht in von Roques' area to the SD [Security Police] and its full cooperation with the SD program [killing squads], with knowledge of its debased and criminal character." 204 Von Roques received a sentence of twenty years in prison. 205

Lieutenant General Hermann Reinecke was Chief of the General Wehrmacht Office (AWA) and later was also appointed Chief of the National Socialist Guidance Staff of the High Command. 206 Reinecke drafted and issued orders on behalf of his superior Wilhelm Keitel pertaining to prisoner of war affairs. Many of these directives originated with Reinecke and were neither reviewed nor formally approved by Keitel. 207 Reinecke ordered, countenanced and participated in the segregation and liquidation of prisoners by the Security Police. Those killed included Russian commissars, Jews, the sick and disabled, escapees, and "undesirables" who were alleged to have had sexual relations with German women. 208

Reinecke also issued orders concerning the utilization of prisoners of war in work details. Insubordination or resistance was to be dealt with by "'a weapon (bayonet, gun butt, or firearms, no sticks). The decree . . . is to be interpreted strictly. Whoever does not use his weapon or does not use it energetically enough in seeing that an order is carried out is liable to punishment.'" 209 Five months later, in August 1944, a decree signed by Reinecke dictated that "'prisoners of war must definitely know at all times that they will be ruthlessly proceeded against, if necessary with weapons, if they slack in their work, offer passive resistance, or even rebel . . . . '" 210 The Tribunal concluded that "[f]or such inhuman orders and abandonment of prisoners of war . . . the defendant Reinecke is criminally responsible." 211 The Court's enhanced concern for Allied prisoners of war is indicated by the life sentence meted out to Reinecke. 212

Walter Warliamont served as Chief of the Section of National Defense, subsequently renamed the Armed Forces Operations Staff. In 1944, in recognition of his work in supervising the armed forces staff, Warliamont was promoted to lieutenant general of artillery. 213 Although the Commissar Order originated with Hitler, the Tribunal determined that Warliamont was central in drafting and refining the directive which was distributed under his signature. 214 Warliamont also submitted various proposed provisions for the Commando Order which was drawn up by Hitler. 215

Warliamont stressed to commanders that the Commando Order was to be vigorously enforced against enemy troops. The Tribunal rejected Warliamont's explanation that he believed that the order, along with his admonitions, would be ignored. 216 Warliamont also actively incited mob violence against Allied flyers. 217 In addition, he was involved in the deportation, enslavement and execution of civilian populations. 218 The Tribunal concluded that:

We have found the defendant guilty of participating in many criminal orders which permeated the conduct of war. He may not have furnished the basic ideas, but he contributed his part and was one of the most important figures of the group which formed them into the final product which, when distributed through the efficient agencies of the Wehrmacht and police, brought suffering and death to countless honorable soldiers and unfortunate civilians. 219

Warliamont was sentenced to life imprisonment. 220

In the Einsatzgruppen Case, the defendants were charged in Count One with Crimes against Humanity against German and foreign civilians, including persecutions on political, racial and religious grounds, murder, extermination, imprisonment, and other inhumane acts. 221 Count Two alleged that the defendants had committed violations of the laws and customs of war, including the murder and ill-treatment of prisoners of war and the civilian populations of occupied territories. 222 The defendants also were charged with membership in criminal organizations. 223

In anticipation of the German invasion of Russia, Hitler directed the Security Police and the Security Service to assist the Wehrmacht in maintaining order and combating resistance in the Soviet Union. The latter phrases were euphemisms for the extermination of Jews, Gypsies, and Communists. The security forces and the army agreed in the spring of 1941 to form Einsatzgruppen killing squads. These units were to be under the control of the Reich Security Main Office (RSHA), one of the twelve main offices of the Security Police (SS). However, while functioning in the field, the killing units were to be subordinate to the relevant military command which was responsible for providing food, housing, and transport. 224 Four Einsatzgruppen were established, each of which was assigned to a different army group. Einsatzgruppe A was seconded to Army Group North; Einsatzgruppe B was under the command of Army Group Center; Einsatzgruppe C was assigned to Army Group South; and Einsatzgruppe D was to accompany the 11th German Army. 225 The Nazi leadership was candid concerning the expendability of the Jews, Gypsies, Slavs, and Communists. Heinrich Himmler, head of the Security Service, clearly communicated to his officers that the Slavs were of little consequence:

What happens to a Russian, to a Czech does not interest me in the slightest . . . . Whether nations live in prosperity or starve to death interests me only so far as we need them as slaves for our Culture; otherwise, it is of no interest to me. Whether 10,000 Russian females fall down from exhaustion while digging an antitank ditch interests me only insofar as the antitank ditch for Germany is finished . . . . When somebody comes to me and says, "I cannot dig the antitank ditch with women and children it is inhuman, for it would kill them," then I have to say, "You are a murderer of your own blood because, if the antitank ditch is not dug, German soldiers will die, and they are the sons of German mothers. They are our own blood . . . . We can be indifferent to everything else." 226

Such insentient sentiments were shared by other German officials. Hans Frank, the Governor General of occupied Poland, addressed a cabinet session in December 1941: "Gentlemen, I must ask you to rid yourself of all feeling of pity. We must annihilate the Jews, wherever we find them and wherever it is possible, in order to maintain there the structure of the Reich as a whole." 227

On June 22, 1941, Germany invaded Russia. By December 1941, the eastern front extended from Leningrad in the north to the Crimean Peninsula in the south. The Baltic States, White Ruthenia, and most of the Ukraine were firmly under German control. The three thousand men who comprised the Einsatzgruppen units operated throughout this area for two years and were responsible for the deaths of roughly one million. 228

The activities of these units was typified by Einsatzgruppe D, commanded by Major General Otto Ohlendorf. During the first nine months of Ohlendorf's command, Einsatzgruppe D executed more than ninety thousand, an average of 340 deaths per day. Between November 16 and December 15, 1941, Einsatzgruppe D more than doubled this average daily death toll. 229 Ohlendorf testified that his men would typically enter a village, collect and require the Jews to hand over their clothing and valuables. The Jews then were transported to a remote and isolated site where they were executed while kneeling or standing adjacent to a ditch. The corpses fell into the ditch and were buried. The killing squads usually shot in unison so as to enable the men to avoid a sense of personal responsibility. By the spring of 1942, various units began to utilize gas vans rather than firing squads. 230 Other squads deployed experts "in the art of shooting in the neck." 231 By April 1942, Ohlendorf was able to report that "[t]he Crimea is freed of Jews . . . . In cases where single Jews [are able to] camouflage themselves . . . they will, nevertheless, be recognized sooner or later, as experience has taught. 232

Ohlendorf stated that, "[i]t was my wish that . . . executions be carried out in a manner and fashion which was military and suitably humane under the circumstances." 233 This benevolent sentiment was based on utility rather than humanity. Ohlendorf feared that forcing his men to engage in brutal executions would create a "moral strain." 234 Yet, he had little problem justifying the execution of children.

I believe that it is very simple . . . if one starts from the fact that this order did not only try to achieve security, but also permanent security because the children would grow up and surely, being the children of parents who had been killed, they would constitute a danger no smaller than that of their parents. 235

In some instances, Jews who were required for skilled labor were spared. As a result, the authorities in the Baltic States reluctantly reported that, "an annihilation of the Jews without leaving any traces could not be carried out, at least not at the present moment . . . . many Jewish craftsmen are indispensable . . . for repairing installations of vital importance, for the reconstruction of towns destroyed, and for work of military importance." 236 As the need for Jewish labor decreased, the Jews in the Baltics were gradually arrested and "executed in small batches." 237

The German military was perturbed over the policy of placing more importance on the labor demands of the Reich than on the security requirements of the occupied territories. General Wilhelm Kube, the General Commissioner of White Ruthenia, wrote that he "would certainly much prefer that the Jewish population in . . . White Ruthenia should be eliminated once and for all when the economic requirements of the Wehrmacht have fallen off." 238 He urged the termination of the transportation of workers to the Reich: "The Polish Jew is exactly like the Russian Jew, an enemy of all that is German. He represents a politically dangerous factor, the political danger of which exceeds by far his value as a specialized worker." 239

Within two years, the Einsatzgruppen were able to report that their mission was close to completion.

The systematic mopping up of the eastern territories embraced, in accordance with the basic orders, the complete removal, if possible, of Jewry. This goal has been substantially attained - with the exception of White Russia - as a result of the execution up to the present time of 229,052 Jews. The remainder still left in the Baltic Provinces is urgently required as labor and housed in ghettos. 240

This, of course, was a massacre of innocents. 241 Perhaps two percent of those who were executed had engaged in criminal activity. 242

All twenty-one defendants were convicted. Fourteen were sentenced to death by hanging, two to life imprisonment and three to twenty years in prison, and two to ten years. 243

The Einsatzgruppen Case constituted the "biggest murder trial in history" - an unprecedented prosecution of twenty-one individuals charged with "destroying over one million of their fellow human beings." 244 While mass murders had occurred in all eras, the Court noted that "it was left to the twentieth century to produce so extraordinary a killing that even a new word [genocide] had to be created to define it." 245 The defendants, unlike those prosecuted at Nuremberg, had not been ensconced in their offices thousands of miles from the front. Instead, these militarists were in the field, "actively superintending, controlling, directing, and taking an active part in the bloody harvest." 246

At a secret meeting conducted in May 1941, in Pretzsch and Dueben, Saxony, the Einsatzgruppen and Einsatzkommando leaders were introduced to the notorious Fuehrer Order. The Einsatzgruppen were instructed to liquidate Jews, Gypsies, Communists, the elderly and infirm, and other opponents of National Socialism. Children also were to be exterminated in order to eliminate potential political enemies. The Tribunal observed that under the guise of State security that these people were to be "hunted down like wild game." 247

The prosecution's presentation primarily was based on the official accounts prepared by the Einsatzgruppen leaders. 248 The Court observed that these documents described the Germans' efforts to "liquidate" and "execute" the Jews. 249 Opaque euphemisms often were employed to distance the defendants from the consequences of their actions. The Jews were "rendered harmless," "got rid of," "done away with," "solved," "taken care of," or subjected to "special treatment." 250 Additional reports recorded that areas, "'had been purged of Jews'" or that "'the Jewish question was solved.'" 251 The completion of the Einsatzgruppen's enterprise typically was marked by the proclamation that, "'[t]here is no longer any Jewish population.'" 252 In other instances, officers laconically recorded that an area had been "freed of Jews." 253

In the end, the defendants, as typified by Paul Blobel, Commander of Sonderkommando 4a of Einsatzgruppe C, seemingly demonstrated greater sympathy for the executioners than for the victims. Blobel noted that, "[h]uman life was not as valuable as it was with us. They did not care so much. They did not know their own human value. . . . [O]ur men who took part in these executions suffered more from nervous exhaustion than those who had to be shot." 254 The Germans also callously calculated that the exterminations yielded a "substantial material advantage. . . . [E]ven in the dread and grim business of mass slaughter, a definite profit was rung up on the Nazi cash register." 255 Money, jewelry, clothes, furniture, and houses were seized from "liquidated Jews." 256

The Tribunal rejected the proposition that the defendants were being prosecuted under a retroactive law. All nations were bound by the laws of war which had evolved through common usage, acknowledgment, and recognition. These rules universally condemned the wanton killing of noncombatants by an occupying power. Clearly, "no one can claim with the slightest pretense at reasoning that there is any taint of ex post factoism in the law of murder." 257

The fact that the Tribunal had not been established prior to the defendants' alleged criminal conduct also did not transform the trial into a retroactive prosecution. Russia had the right to prosecute those who had invaded her territory as well as those who had violated the humanitarian law of war. The Soviet Union, in the view of the Tribunal, also possessed the prerogative of joining with other Allied Powers in order to collectively exercise Russia's criminal jurisdiction. 258

The Court rejected the contention that international law did not apply to individuals: "Nations can act only through human beings, and when Germany signed, ratified, and promulgated the Hague and Geneva Conventions, she bound each one of her subjects to their observance." 259 Nor was this an example of the victors singling out the vanquished. The defendants, according to the Tribunal, were being prosecuted because they committed crimes, not because they fought for a defeated country. 260 "The doctrine that no member of a wronged community may try an accused would for all practical purposes spell the end of justice in every country. It is the essence of criminal justice that the offended community inquires into the offense involved." 261

The defendants claimed that their actions were undertaken in defense of the Reich and that they were entitled to engage in any acts which they reasonably believed were required to preserve the German nation. 262 The Court rejected this claim, reasoning that "any belligerent who is hard pressed would be allowed unilaterally to abrogate the laws and customs of war. And it takes no great amount of foresight to see that with such facile disregarding of restrictions the rules of war would quickly disappear." 263

International law did not authorize the assassination of civilians who were arbitrarily decreed to be dangerous. The defendants were unable to detail the imminent danger posed by Jews who adhered to Communism or the process through which Jews injected other Russians with Bolshevism. They also failed to explain why non-Communist European and Russian Jews were executed. The Tribunal observed that "when it came to a Jew, it did not matter whether he was a member of the Communist Party or not. He was killed simply because he was a Jew." 264

The Tribunal distinguished between the Allied aerial assaults on Berlin, Dresden, Hamburg, Cologne and other German cities and the Nazi's killing of civilians. These bombings were in reprisal for the German attacks on London, Coventry, Rotterdam, and other Allied cities. Even if the bombings had not been acts of reprisal, "there still is no parallelism between an act of legitimate warfare, namely the bombing of a city, with a concomitant loss of civilian life, and the premeditated killing of all members of certain categories of the civilian population in occupied territory." 265

The Tribunal noted that a city customarily was targeted in an effort to defeat the enemy. Once the enemy surrendered, the bombing was terminated. The killing of civilians during such attacks often was "an unavoidable corollary of battle action." 266 This differed from the Einsatzgruppen's deliberate and premeditated execution of non-combatants. The latter bore no relation to the pursuit of military objectives and continued long after the Germans had secured control over enemy territory. 267

The defendants also claimed that they had complied with superior orders and therefore lacked criminal intent. The Tribunal recognized that a solider is trained to follow orders and that the military depends upon the efficient carrying out of commands. However, the judges ruled that a subordinate is only bound to obey lawful orders. A subaltern who knowingly accepts and executes an illegal command may not plead superior orders in defense or mitigation of the offense. 268

Various defendants professed that they were involuntarily thrust into a situation in which they were required to engage in mass slaughter. 269 The Tribunal observed that the extermination order was the logical outgrowth of Nazi ideology. According to the Court, an individual who participates in a program which "he knew to be illegal in its very inception . . . may not excuse himself from responsibility for an illegal act which could have been foreseen by the application of the simple law of cause and effect." 270

The Tribunal ruled that a defendant invoking the defense of duress must satisfy the requirements of proportionality, imminence, and involuntariness. A defendant must demonstrate that the harm caused by obeying the illegal order was not disproportionately greater than the harm which would have resulted from not obeying the order. It would not be an adequate excuse to kill an innocent in order to avoid a few days confinement. The threat also must have been "imminent, real, and inevitable." 271 An individual may not plead duress once the threat is removed. 272 According to the Tribunal,

the test to be applied is whether the subordinate acted under coercion or whether he himself approved of the principle involved in the order . . . . The doer may not plead innocence to a criminal act ordered by his superior if he is in accord with the principle and intent of the superior. 273

The Tribunal noted that a Commando leader who declared that he was constitutionally incapable of engaging in mass exterminations, likely would have been assigned to other duties, sent back to Berlin or dismissed. 274 The defendants, thus, could not credibly contend that it was futile to request a release from their responsibilities. In the end, the panel dismissed the defense of duress and determined that the defendants had been driven by ambition and animus to engage in mass executions. While they may have found the executions unpleasant, the Court observed that the defendants were nonetheless able to kill with few qualms of conscience. 275

Several defendants asserted that there was no point in attempting to avoid involvement in the executions since others would have willingly assumed their positions on the firing line. However, the panel pointed out that the defendants could not confidently predict how others might react. One defiant dissent might have sparked a firestorm of opposition. In the end, the judges ruefully observed that the obligation to obey superior orders provided a fanciful and flimsy justification for "mass butchery." 276

The Tribunal analogized the Fuehrer Order to a directive which required the killing of all grey-eyed people, regardless of their age sex or position. 277 Although such an edict seemed "fantastic and incredible . . . [i]f one substitutes the word Jew for grey-eyed, the analogy is unassailable." 278 Yet, during the trial, the defendants uniformly praised Hitler as a great leader and statesman. They would have been elated had the Reich won the war, even at the cost of two million German lives and the physical destruction of Europe. 279 The Tribunal critically concluded that the defendants were among those who had made it possible for a "megalomaniac to achieve his ambition of putting the world beneath his heel or to bring it crashing in ruins about his head. . . . When Samuel Johnson uttered his cynical line that patriotism is the last refuge of a scoundrel, he could well have had in mind a Hitlerian patriotism." 280

The Tribunal applied these basic principles and pronounced each of the defendants guilty. SS General Otto Ohlendorf had led Einsatzgruppe D into the Crimea. Ohlendorf had studied law and political science, and had pursued careers as a barrister and economic analyst. 281 This self-professed humanist commanded a unit which, as Ohlendorf conceded, killed ninety thousand persons. He unsuccessfully sought exculpation under the self-defense and superior orders defenses. 282

The other defendants also attempted to rely on these defenses. When interrogated as to whether it was proper to shoot individuals for allegedly spreading Communist propaganda, SS Brigadier General and Major General of Police Heinz Jost, who commanded Einsatzgruppe A, which executed over one hundred thousand, succinctly stated: "'According to my orders these measures had to be carried out. . . . [I]t was correct and justified.'" 283 The Tribunal, however, noted that, "there is nothing in international law which justifies or legalizes the sentence of death for political opinion or propaganda." 284

Defendant Erich Naumann served as chief of Einsatzgruppe B from November 1941 until February or March 1943. 285 Naumann conceded that he was cognizant that executions were taking place. 286 He explained that, "'I considered the decree to be right because it was part of our aim of the war and, therefore, it was necessary.'" 287 When asked whether he "'saw nothing wrong with the order, even though it did involve the killing of defenseless human beings' . . . he replied 'yes.'" 288 Naumann asserted that the Fuehrer Order was already operative at the time he assumed command of Einsatzgruppe B and that he had not instructed his troops to carry out the command. The Tribunal ruled that Naumann nevertheless possessed an affirmative duty to take such steps as were within his power and appropriate under the circumstances to prevent violations of the laws of war. 289

Others, such as Ernst Biberstein, Chief of Sonderkommando 6 under Einsatzgruppe C, argued that every execution was preceded by an investigation and that only those guilty of War Crimes were killed. Yet, Biberstein testified that he had witnessed the extermination of sixty-five persons and conceded that he was not certain whether each had been adjudged guilty. 290 In the case of defendant SS Lieutenant Colonel Walter Haensch, the Court concluded that there was no evidence that investigations or trials had preceded the executions carried out by those under Haensch's command. The Tribunal reiterated that neither political belief nor religious affiliation constituted grounds for execution under the law of war. 291

SS Brigadier General Erwin Schulz commanded Einsatzkommando 5, which formed part of Einsatzgruppe C. 292 Schulz claimed that he was not responsible for the executions which had occurred while he was absent in Berlin. The Tribunal, however, noted that "[t]he man who places a bomb, lights the fuse, and rapidly takes himself to other regions is certainly absent when the explosion occurs, but his responsibility is no less because of that prudent nonpresence." 293

SS Colonel Walter Blume was commander of Sonderkommando 7a which was attached to Einsatzgruppe B. 294 Blume, like the other defendants, presented affidavits testifying to his "honesty, good nature, kindness, tolerance, and sense of justness." 295 The Tribunal bemoaned that a person of such moral stature had fallen under the influence of Adolf Hitler. Hitler, "with all his cunning and unmitigated evil would have remained as innocuous as a rambling crank if he did not have the Blumes, the Blobels, the Braunes, and the Bibersteins to do his bidding - to mention only the B's." 296

In the Hostage Case, twelve German officers were charged with War Crimes and Crimes against Humanity. 297 The first count alleged between September 1939 and May 1945, that the defendants had executed hundreds of thousands of Greek, Yugoslav, and Albanian hostages in reprisal for the wounding and killing of German combatants and persons under German protection. 298 Count Two charged that the defendants had unjustifiably looted and plundered public and private property and wantonly killed the inhabitants of cities, towns, and villages in the occupied territories of Norway, Greece, and Yugoslavia. 299 Count Three accused the defendants of initiating and drafting illegal orders which they then issued and distributed to the troops under their command. The troops subsequently carried out these orders which resulted in the ill-treatment and death of civilians, combatants and prisoners of war. 300 Count Four alleged that the defendants were involved in the imprisonment of civilians in concentration camps and that these internees were subsequently abused, tortured, subjected to involuntary servitude, and murdered. 301

In July 1939, as the plans for the invasion of Poland were being finalized, a series of directives were distributed which authorized field commanders to seize and execute hostages in reprisal for attacks on Germans troops. These killings were intended to intimidate and ensure the cooperation of Poles living under German occupation. By October 1939, hostages had been seized in virtually every village in which troops were billeted. In the event of an attack on the Wehrmacht or other Germans, division commanders were authorized to ruthlessly retaliate. 302

The practice of reprisals continued in France and grew increasingly savage as the Germans swept into the Balkans and Russia. On October 25, 1941, President Franklin D. Roosevelt admonished that:

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

The three principal military figures in the German campaign in southeast Europe were Wilhelm List, Heinrich von Kleist, and Maximilian von Weichs. Following the capitulation of Yugoslavia in 1941, List was appointed Armed Forces Commander Southeast. Kleist departed to head an armored group in the Russian campaign. Von Weichs and the 2d Army also were scheduled to be deployed on the Russian front, but remained in Yugoslavia while List completed the conquest of Greece and Crete. Prior to departing for Russia, von Weichs helped to recruit and organize Croatian militia units (Utasha) which were infamous for their savagery. 304

On April 28, 1941, von Weichs issued an order which established the twin touchstones of German occupation of Yugoslavia and Greece: a refusal to recognize partisan fighters and suspected sympathizers as either lawful belligerents or "protected persons;" and the execution of hostages in reprisal for the wounding and killing of Germans. Von Weich's directive specified that any armed individual clothed in a Serbian uniform "transgresses the bounds of international law and is to be shot to death immediately." 305 Men seized in the proximity of armed partisans also were to be executed "if it cannot immediately be ascertained with certainty that they were not connected with the band." 306 In the event of a surprise attack, hostages were to be detained and killed. 307 The bodies of those who had been shot were "to be hanged and left hanging." 308

Placards were posted in Serbian villages warning that one hundred inhabitants would be killed for every German soldier "who comes to harm as a result of a surprise attack conducted by Serbs." 309 Von Weich's specified that hostages were to be seized in advance of attacks. However, the Germans were unable to maintain a sufficient supply of reprisal prisoners and usually were forced to arbitrarily detain and summarily execute civilians. 310

By September 1941, the Reich had completed the occupations of Yugoslavia and Greece. Nevertheless, German forces continued to confront ferocious opposition. Hitler charged List, as Armed Forces Commander Southeast, with the task of suppressing the insurgent movement. In accordance with List's request, Franz Boehme was named Plenipotentiary Commanding General in Serbia. 311 One of Boehme's first initiatives was to disseminate an order which was to be destroyed after reading.

You are the avengers of [the] dead. An intimidating example must be created for the whole of Serbia which must hit the whole population most savagely.

Everyone who wishes to live charitably sins against the lives of his comrades. He will be called to account without regard for his person and placed before a court martial. 312

List requested license to initiate an even harsher repressive regime. Field Marshal Heinrich Keitel, Chief of the Armed Forces High Command, responded on September 16, 1941 by authorizing the "severest means" against "Communist" insurgents. 313

One must keep in mind that a human life frequently counts for naught in the affected countries and a deterring effect can only be achieved by unusual severity. . . . [T]he death penalty for 50 to 100 Communists must in general be deemed appropriate as retaliation for the life of a German soldier. The manner of execution must increase the deterrent effect. The reverse procedure - to proceed at first with relatively easy punishment and to be satisfied with the threat of measures of increased severity as a deterrent - does not correspond with these principles and is not to be applied. 314

On September 28, Keitel directed military commanders to detain nationalists, democrats, and Communists. He stressed that these hostages should be prominent personalities or members of leading families in order to enhance the impact of their detention and death. 315

Less than two weeks later, on October 10, 1941, Boehme pronounced that the rambunctious "Balkan mentality" only could be combatted through "[s]peedy and ruthless suppression." 316 Boehme specified that one hundred hostages were to be executed for each German soldier or ethnic German killed or murdered; fifty hostages were to be executed for each wounded German soldier or ethnic German. These reprisals, if possible, were to be carried out by the unit which had been the target of the attack and were to be publicized in the press. The corpses were to be buried at distant locales and no crosses or decorations were to adorn the graves. Despite List's stipulation that captured combatants were to receive a court martial, Boehme ordered that Communist combatants were to be subjected to summary execution. Villages which had been occupied by enemy troops or from which gun fire had emanated, were to be burned to the ground. 317

On October 4, 1941, Boehme ordered the execution of twenty-one thousand persons in retribution for the killing and torture of twenty-one German soldiers by "Communists bandits." 318 An earlier report recorded that an "unidentified Jew" reportedly had thrown a bottle of gasoline at a German motor vehicle. A sixteen year-old Serbian girl was arrested. She subsequently "admitted that she was incited to the deed by a Jew" and, in reprisal, one hundred Jews were summarily shot. 319

In late October 1941, a somewhat new cast of characters was scripted to direct German operations in the Southeast. Walter Kuntze replaced List and requested Boehme to supervise the suppression of partisans in Croatia and Serbia. Hans Bader was appointed to direct the daily details of the Serbian campaign and Herman Foertsch continued as Kuntze's chief of staff. 320 The measures which had been initiated by List were enforced with increased ferocity. Kuntze admonished his troops that "'[i]t is better to liquidate 50 suspects than lose one German soldier.'" 321 In a November 1941 order, Boehme decreed that all captured insurgents, even those who had deserted, were to be shot as partisans. 322 A February 6, 1942 order from Kuntze declared that prisoners taken in combat "cannot be innocent . . . and . . . must . . . be shot to death. The lenient attitude of the troops . . . is to combatted most vigorously!" 323 Those who "loiter in the combat terrain . . . and are not in their residence . . . must . . . be shot to death." 324 On March 19, 1942, Kuntze ordered the troops to deploy the Serbian population to clear the terrain in areas which had been mined. 325

Kuntze and the other commanding officers were well-aware that reprisal actions continued to be carried out. 326 A typical report, dated November 1941, detailed the shooting of Jews and Gypsies who had been seized from the prison camp at Belgrade. 327 The lieutenant in charge complained that the only trucks available were operated by civilian drivers and lacked tarpaulins and that, as a result, "secrecy [was] not assured." 328 He confirmed that the prisoners' valuables and luggage had been collected and had been turned over to the National Socialist Peoples' Welfare. While the prisoners took a substantial amount of time to dig their collective grave, the report noted that the actual executions "went very rapidly." 329 Kuntze vacated the post of Armed Forces Commander Southeast on August 8, 1942. In less than a year, his troops had killed forty-five thousand persons in Croatia and Serbia. Thousands of others had been deported to work as slave labor in Norway and in the Reich. Kuntze was replaced by Alexander Loehr. Hermann Foertsch, who had served as chief of staff under both List and Kuntze, remained in the same capacity throughout Loehr's twelve month tenure. General Bader continued as commanding general in Serbia. Kurt von Geitner served as Bader's chief of staff. 330

The reprisal procedure was well-established. The killing or wounding of occupation forces, the severing of telephone lines, the sabotage of railroad tracks, the igniting of mines or attacks on transport were met with an immediate response. A standardized reprisal protocol was formulated in order to insure uniform and expeditious reprisals. 331

For one German, or one Bulgarian occupational corps member, killed, 50 hostages are to be executed.

For one German or one Bulgarian occupational corps member wounded, 25 hostages are to be executed.

For the killing of a person in the service of the occupying power, regardless of his nationality, or a member of the Serbian Government, high Serbian official (district supervisor or mayor), official of the Serbian State Guard, or member of the Serbian Volunteer Corps, 10 hostages are to be executed.

For the wounding of any person in the previous categories, five hostages are to be executed. For an attack against important war installations, up to 100 hostages are to be shot to death, according to the seriousness of the case. 332

In less serious cases, various forms of collective punishment, such as the burning of houses or monetary fines, were to be imposed. Bader directed that hostages should be drawn from those who had cooperated with or had displayed "intentionally passive behavior toward the culprits" (so-called "bandit-helpers"). 333 In those instances in which "accomplices" were not apprehended, hostages were to be collected from among those who were "considered coresponsible, although they may not have any connection with the particular incident." 334

Faced with a dwindling supply of hostages, the Security Police was pressured to provide the human fodder required to fuel the machinery of extermination. The constabulary, with the assistance of collaborators, compiled lists of "suspects" who were to be detained. The inventory included the relatives of men who were inexplicably absent from a village, nonconformists, and individuals who had reportedly displayed a hostile or uncooperative attitude. This was an imprecise process and individuals frequently were arbitrarily included on the hostage list. 335 Hostages frequently had to be collected from areas far from the site of an attack in order to fulfill the execution quota. 336 Reprisals were even carried out in those instances in which the perpetrators of an attack were apprehended or killed. In December 1942, a twenty-year-old female assassin wounded two German officers and killed a member of the Serbian militia. The woman subsequently committed suicide. Nevertheless, over seventy-five hostages were executed in retaliation. 337

By the end of 1942, Tito had developed a militia of over one hundred thousand and had come to control a significant portion of Croatia. The Germans reacted by executing hostages, burning villages, and detaining those suspected of assisting Tito's forces. Loehr and Foertsch emphasized that "'individual soldiers should not be prosecuted for being too severe with the native inhabitants'" and warned that commanders who refused to resort to retaliatory measures would be held "responsible." 338

Despite the fact that the Reich intelligence service had concluded that Tito's units were formally organized and uniformed, the Wehrmacht refused to recognize the partisans as lawful combatants. Tito's forces were executed without hearing, trial, or court martial. A January 7, 1943 directive ordered: "'Execute and hang partisans, suspects, and civilians found with weapons. No formal proceedings are necessary.'" 339 Foertsch reported to the Army High Command in Berlin that, as of September 8, 1942, that 52,362 "insurrectionists" had been shot. 340

On July 10, 1943, the Allies landed in Sicily and quickly pushed into the Italian mainland. Five weeks later, the Italian armed forces unconditionally surrendered. Already having suffered devastating defeats in North Africa and Russia, the Germans were determined to invigorate their war effort in the Balkans. 341 Field Marshal Maximilian von Weichs was brought back from the Russian front to assume command over the newly-formed Army Group F which was assigned to southeastern Europe. Foertsch, who had served as chief of staff under List, Kuntze, and Loehr, continued in the same post under von Weichs. Loehr was placed under von Weichs' command and was assigned to head Army Group E, which was to operate in Greece and the Aegean Islands. Helmuth Felmy and Hubert Lanz were appointed corps commanders under Loehr. In order to combat the partisans, the headquarters of the 2d Panzer Army was shifted from Russia to Croatia. General Lothar Rendulic, an Austrian veteran of the Polish and French campaigns, was charged with spearheading the fight against Tito's forces in Croatia. Rendulic's two corps commanders were Ernst von Leyser and Ernst Dehner. Bader was thought to be too old and hesitant to continue as German commander in Serbia and was therefore, replaced by Hans Felber, who had established his reputation in occupied France. Kurt von Geitner continued as chief of staff. 342

Von Weichs' immediate challenge was to disarm and neutralize the Italian armed forces in Croatia, Montenegro, Albania, and Greece. 343 Under the terms of the armistice, the Italians were to cease hostilities against the United Nations and withdraw. Berlin ordered that Italian soldiers who desired to continue fighting should be permitted to retain their arms and should be provided the same rations and fifty percent of the compensation accorded to German combatants. The others were to be disarmed, imprisoned and turned over the Plenipotentiary for Labor Allocation and the Reich Minister for War Production and Armament. Officers who had permitted their unit's armaments to fall into the hands of insurgents or who had assisted or fought with the partisans were to be executed following a summary court martial. 344

The Fuehrer's order was savagely implemented. In Croatia, Italian divisions which had destroyed their arms and supplies suffered the execution of the divisional command, one staff officer and fifty soldiers. Combatants who had sold, given away, destroyed or who were not in possession of their weapons, also were shot. One officer and ten infantry men were killed for each motorized vehicle which had been sabotaged. 345

Once having disarmed and liquidated the remnants of the Italian Army, the Southeast Command once again turned to the pacification of Croatia. The partisans had been armed and equipped by the Allies and now were capable of launching full-scale attacks. 346 Overwhelmed, the Germans, in 1943 and 1944, deployed increasingly brutal terror tactics against the indigenous population. Having already detained and decimated the Jews as well as those who were considered democrats and nationalists, the Germans now seized the remaining "Communists," "bandit suspects," "bandit helpers," and relatives of "bandits." 347

The Wehrmacht entered villages, assembled the population, and demanded information concerning the size, location, and leadership of partisan bands as well as the names of new arrivals and those absent from the village. The entire male population of villages which refused to cooperate were deported to hostage camps. 348 In those instances in which shots were fired from a village, the hamlet was burned to the ground and the "'bandit suspects'" and "'bandit helpers'" were executed. 349 The other inhabitants were evacuated to work in the Reich. 350

By early summer 1943, the German grip on Greece had loosened and the country was slipping from the grasp of the Reich. 351 The Germans adopted the same terror tactics which had been employed in Yugoslavia. 352 In December 1943, partisans were alleged to have imprisoned and executed seventy-eight German soldiers. In reprisal, "Operation Kalavritha" was initiated - an eight day bloodbath in which twenty-four villages and three monasteries were destroyed and 696 people were executed. 353

In April 1944, two members of the German military were attacked and killed two miles from the village of Klissura. German troops from the 7th SS Panzer Grenadier Regiment entered the village and executed 223 persons, including fifty children under ten and 128 women. Von Weichs undertook an investigation and dismissed allegations of atrocity. 354 He disingenuously reported that, "'[t]he Greek witnesses cannot be believed. The village was taken by storm, the inhabitants killed by artillery fire. There was no retaliation action.'" 355

Two months following Klissura, the 7th SS Panzer Grenadier Regiment was purportedly fired upon near the village of Distomon. The Germans entered the village and executed over 270. 356 Berlin initiated an investigation which revealed that the regiment had issued a false combat report which recorded that the civilians had been killed during a hard-fought battle. Nevertheless, Field Marshal von Weichs and General Felmy agreed that the action had been justified and that headquarters would have approved the attack had a request been lodged. The reprisal had saved the time and resources which would have been required to send troops back into the village. Von Weichs and Felmy concluded that the officer's action was "'merely a transgression against formality and corresponded to a natural soldierly feeling.'" The officer was only subjected to disciplinary sanctions. 357

Charges of devastation and deportation also were lodged against various defendants stemming from the conduct of the 20th Mountain Army in northern Norway. On September 4, 1944, Finland surrendered to the Soviet forces and demanded that the Germans immediately withdraw their troops. Faced with a Russian advance, General Lothar Rendulic retreated across the northwestern Finnish frontier into Finmark and Troms, the two northern-most Norwegian provinces. The population of this area numbered roughly sixty-two thousand, most of whom lived in small sea-side villages and made their living fishing the nearby waters. 358

In late October 1944, in order to deny provisions and supplies to the advancing Russian troops, the German High Command ordered Rendulic to systematically destroy buildings and port facilities and to evacuate the population. 359 Rendulic commanded his subordinate units to "ruthlessly" implement the directive in order to insure that the Norwegians were "preserved from Bolshevism." 360 He stressed that "[p]ity for the civilian population is out of place." 361 Rendulic warned the Norwegian population that, "[h]e who does not comply with these unequivocal instructions exposes himself and his family to possible death in the arctic winter without house or food." 362

Northern Norway was transformed into an "Arctic desert." 363 Roughly forty-three thousand people - over two thirds of the population of an area roughly the size of Scotland - were crowded into small vessels and evacuated. Reports documented a pattern of persecution, including the separation of families, the burning of houses, and the shelling of villages. 364

The three judge panel convicted eight of the ten defendants. 365 Two received life imprisonment and the remainder were sentenced to between seven and twenty years in prison. 366

The Court recognized that the proceedings were vulnerable to the criticism that the presiding panel was comprised of judges who were drawn from a victor nation. In the absence of an international court, the Tribunal observed that there was no alternative other than to prosecute the defendants before an Allied tribunal. The judges recognized that their decision inevitably would be subject to scrutiny and pledged to provide a "fair, dispassionate, and impartial determination of the law and the facts." 367 They were acutely aware that "the victors of the present may be the vanquished of the future" and that "the hand of injustice may fall upon those who . . . vindictively contend for . . . far reaching pronouncements . . . ." 368 The panel also pledged to represent the interests of all peoples and proclaimed that it would endeavor to advance the aspiration of insuring peace through law. 369

The judges conceded that there were strong arguments in favor of foregoing prosecution. Strict discipline was required in a military organization and some believed that it was unfair to prosecute those who had dutifully discharged the dictates of their superiors. This sense of inequity was exacerbated by the fact that only the vanquished were being held to account. The passage of time and the return to peaceful pursuits also had diminished the demand to bring Nazi war criminals to trial. Nevertheless, the Tribunal concluded that such qualms should be quieted by the realization that "[u]nless civilization is to give way to barbarism in the conduct of war, crime must be punished . . . . If the laws of war are to have any beneficent effect, they must be enforced." 370

The Court crafted a cautious decision which was characterized by a conservative analysis. The text avoided bold pronouncements and strictly interpreted the relevant facts and applicable legal standards. 371 The Tribunal first addressed the defendants' contention that they had acted pursuant to superior orders and thus should be exonerated. 372

Although appreciative that discipline was essential to a military organization, the Court held that international law did not extend immunity to those who knowingly acted pursuant to an order which was unlawful under international law. 373 The panel recognized that this rule compelled a combatant to choose between "possible punishment by his lawless government for the disobedience of the illegal order of his superior officer, or that of lawful punishment for the crime under the law of nations." 374 Nevertheless, the refusal to recognize the superior orders defense was intended to impede the ability of regimes to implement illegal policies which posed a peril to enemy civilians and combatants. 375

The Court ruled that Germany possessed the rights and privileges of a lawful occupant under international law in both Yugoslavia and Greece and that this occupancy persisted until the fall of 1944. Although the partisans assumed sporadic control of the countries, the Tribunal noted that this was transitory and tolerated by the Germans who, at various times, reasserted their authority. These temporary losses of control were not deemed to deprive the German armed forces of occupancy status. 376

The fact that the invasions of Yugoslavia and Greece were acts of aggression did not deprive Germany of the status of a lawful belligerent. The Tribunal noted that the reciprocal rights and duties of an occupant and the occupied population were not dependent upon the legality of the military incursion. As a result, the Court ruled that "it does not follow that every act by the German occupation forces against person or property is a crime or that any and every act undertaken by the population of the occupied country against the German occupation forces thereby became legitimate defense." 377

The Tribunal also concluded that most Yugoslav and Greek partisans had failed to comply with the rules of war and were not entitled to the status of lawful belligerents. 378 According to the Court, the guerrillas often were integrated into a military command structure, but possessed no common identifiable uniform and their insignia (e.g. the Soviet star) typically was not visible at a distance. In addition, the partisans did not openly carry arms. As a result, the Tribunal held that "captured members of these unlawful groups were not entitled to be treated as prisoners of war. No crime can be properly charged against the defendants for the killing of such captured members of the resistance forces . . .." 379 Undoubtedly, in some instances, lawful belligerents were unjustifiably executed. Nevertheless, the judges ruled that the situation as it appeared to a military commander "must be given the first consideration . . . . Where room exists for an honest error in judgment, such army commander is entitled to the benefit thereof by virtue of the presumption of innocence." 380

The Tribunal ruled that the defendants were entitled under international law to seize and execute hostages in reprisal for violations of the law of war. 381 The justifiability of reprisals was based on the collective responsibility of the inhabitants of an occupied territory to conduct themselves in a peaceful and lawful fashion. A breach of this obligation entitled the occupant, as a last resort, to seize and execute hostages. 382

However, the Court ruled that a number of conditions must be satisfied. There must be a connection between the hostages and those responsible for the criminal attack. 383 A proclamation must be issued enumerating the names and addresses of the hostages; and the population is to be notified that a recurrence of the illegal conduct will result in reprisal. The seizure and subsequent execution of hostages only may be justified in those instances in which the perpetrators are not apprehended. The number killed is required to be proportionate to the provocation. Finally, a court-martial must certify that the required conditions have been satisfied. 384

Germany's arbitrary reprisal actions could not be justified on the basis of military necessity. According to the Tribunal, necessity permits the incidental and unavoidable destruction of civilian life and property during a lawful military operation. The devastation must be imperatively demanded by the exigencies of war and must not be disproportionate to the military objective. Military necessity, however, does not justify the indiscriminate and wanton devastation of property or innocents and does not provide a defense to the intentional violation of the prohibitive rules of the law of war. 385

Rather than committing additional manpower to the occupation of Greece and Yugoslavia, the German High Command adopted a campaign of intimidation and terrorism. However, the Tribunal stressed that international law must be followed, even at the risk of military defeat. 386 "If adequate troops were not available or if the lawful measures against the population failed in their purpose, the occupant could limit its operations or withdraw from the country in whole or in part, but no right existed to pursue a policy in violation of international law." 387

The Court also rejected the contention that the defendants were being prosecuted for the type of conduct which had been engaged in by the Allies. The judges failed to find a single instance in which the Allied forces had executed a reprisal prisoner. Nor did the bombings of Hiroshima and Nagasaki and the aerial raids against Dresden modify the rules of modern warfare and legitimize the Nazi's reprisal policies. These bombings were in response to the Reich's illegal aerial attacks on Rotterdam, Warsaw, Belgrade, Coventry, and Pearl Harbor. The Court observed that the Germans may not violate the law of war, invite retaliation, and then credibly claim that the standards governing the conduct of war were altered. 388

The central factual issue was whether it was clear beyond a reasonable doubt that the defendants were legally linked to the illegal reprisal policy. 389 The Court ruled that the German military commanders were presumed to be cognizant and culpable of criminal conduct within the scope of their territorial command. Military commanders also were responsible for events occurring in their absence which resulted from their orders, directions, or prescribed policies. However, they were not liable for criminal conduct occurring in their absence which did not result from their decisions and directives, unless they later ratified the action. 390

The lead defendant was Wilhelm List, the fifth ranking field marshal in the German military. List commanded the 12th Army during the invasions of Yugoslavia and Greece and, in June 1941, assumed command of the Armed Forces Southeast. He held this position until compelled to retire on account of illness in October 1941. As Commander Southeast headquartered in Salonika, List was the supreme representative of the armed forces in the Balkans and exercised executive authority over the territories occupied by German troops. 391

The Tribunal agreed that Tito's troops were not entitled to prisoners of war status and were subject to execution upon apprehension. 392 List also denied having ordered the killing of hostages. The Tribunal, however, determined that List had transmitted the Keitel order which established a 100-to-1 reprisal ratio. A command to take reprisals at such an arbitrarily fixed ratio, regardless of the provocation, clearly constituted a violation of international law. 393

Such an order appears to have been made more for purposes of revenge than as a deterrent to future illegal acts which would vary in degree in each particular instance . . . . The order for the killing in reprisal appears to have been arbitrarily issued and under the circumstances . . . is nothing less than plain murder. 394

List protested that he had merely distributed the Keitel order and should not be held culpable for the conduct of his subordinates. The Tribunal stressed that an officer who "distributes, issues, or carries out a criminal order becomes a criminal if he knew or should have known of its criminal character." 395 A field marshal, like List, with over forty years of military service, certainly knew or should have known of the criminal character of Keitel's command. List's purported opposition to the order evidenced his realization that the reprisal policy was violative of international law. 396 The Tribunal also rejected List's claim that he was absent from headquarters and was unaware of the illegal reprisals. List had distributed the reprisal order and was charged with notice of events within the scope of his command. "If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defense." 397

List was succeeded on October 27, 1941, by Walter Kuntze, who also was convicted of involvement in illegal reprisals. 398 Kuntze enthusiastically encouraged reprisals and ordered that "'[v]illages with Communist administration are to be destroyed and men taken . . . as hostages. If it is not possible to produce the people who have participated in any way in the insurrection or to seize them, reprisal measures of a general kind may be deemed advisable . . . .'" 399

Defendant Hermann Foertsch served as chief of staff during the German occupation. 400 Foertsch supervised various administrative departments and distributed orders and reports. Although he lacked command authority, Foertsch was authorized to sign routine directives. 401 Orders from Berlin and reports from the field were conveyed through and by Foertsch. He, thus, possessed the same information as did defendants List and Kuntze. 402 Nevertheless, the Tribunal failed to find that Foertsch had affirmatively engaged in criminal conduct - he neither ordered, abetted nor took a consenting part in illegal activity. Thus, "[n]o overt act from which a criminal intent could be inferred, has been established." 403

General Lothar Rendulic was named Commander in Chief of the 2d Panzer Army on August 26, 1943, and remained in that position until June 1944. In July 1944, Rendulic was appointed head of the 20th Mountain Army, a position which he held until January 1945. In December 1944, Rendulic also was designated as Armed Forces Commander North. 404

The 2d Panzer Army was headquartered in Croatia and was charged with suppressing partisan warfare and guarding the coast against enemy attacks. 405 According to the Tribunal, Rendulic condoned the illegal execution of hostages and made no effort to apprehend the guilty, provide public notice, or to conduct judicial hearings. Under Rendulic and the other defendants, the execution of hostages, "became so common that the German commanders became indifferent to the seriousness of the acts. They appear to have been accepted as legitimate acts of war with the extent of their use limited only by the whim or judgment of divisional commanders." 406

Following the September 8, 1943 surrender of Italian forces, Rendulic notified Italian commanders that those who refused to surrender would be shot as terrorists. Severe retaliations were ordered against troops engaging in sabotage or assisting the partisans. Soon thereafter, Rendulic received and distributed Hitler's directive requiring reprisal actions against Italian troops. On October 6, 1943, Rendulic's forces captured and executed three Italian generals and fifty-four officers for treason. 407 According to the Court, the Italian forces qualified as lawful belligerents and were entitled to be treated as prisoners of war. 408 The "execution of these Italian officers . . . cannot be described as anything but an act of vengeance." 409

Rendulic was acquitted of the wanton destruction of property in Norway during the retreat of the 20th Mountain Army. 410 The Tribunal noted that international law authorized the destruction or seizure of enemy property where imperatively demanded by the necessities of war. While there was no military necessity for the German demolition and devastation, considering the facts and circumstances as they appeared to Rendulic, his decision may have been "faulty, but it cannot be said to be criminal." 411

Helmuth Felmy was appointed Commander Southern Greece in June 1941 and continued in this position until August 1942. On May 10, 1943, Felmy became commander of the LXVIII Corps and, on September 9, 1943, Felmy was selected to command the Army Group Southern Greece. 412 Felmy, like the other commanding officers, received and transmitted reprisal orders. 413 Those executed often were distant from the site of attack or were selected based on their alleged Communist or terrorist sympathies. According to the Tribunal, "[i]t was more the case of an eye for an eye than an honest attempt to restrain the population by a use of hostage and reprisal measures as a last resort." 414

Felmy's lack of concern for innocents is illustrated by his investigation into the massacres at Klissura and Distomon [Greece]. At Klissura alone, German forces killed roughly 215 civilians, seventy-two of whom were under fifteen. 415 Felmy concluded that the commanding officer's unilateral decision to execute and then cover-up the killings was in violation of German policy. Felmy nevertheless recommended a minor disciplinary sanction. The Tribunal observed that Felmy

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

The prosecution of Nazi officers resulted in several seminal contributions to the doctrinal development of the humanitarian law of war. The trials affirmed that international law imposes personal penal responsibility on combatants. Such liability attaches to both the victors and vanquished. 417

The judges stressed that the excesses of the German Army were traceable to a failure of leadership and command. Nevertheless, the panels rejected the concept of collective bureaucratic culpability. Criminal liability was not solely premised on power or position. Personal dereliction also was required:

Criminality does not attach to every individual in [the] chain of command from that fact alone. There must be personal dereliction. That can occur only where the act is traceable to him [the defendant] or where his failure to properly supervise his subordinates constitutes criminal negligence . . . it must be a personal neglect amounting to . . . wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of international law would go far beyond the basic principles of criminal law as known to civilized nations. 418

The Court, in the High Command Case, ruled that only those at the policy-level who knowingly initiated or waged an aggressive war were liable for the planning, preparation, initiation and waging of such a conflict. Thus, the acts of field commanders and staff officers,

below the policy level, in planning campaigns, preparing means for carrying them out, moving against a country on orders and fighting a war after it has been instituted, do not constitute the planning, preparation, initiation, and waging of war or the initiation of invasion that international law denounces as criminal. 419

These lower level officers were understandably required to adhere to the "rigid discipline which is necessary for and peculiar to military organization" and were the mere "instruments" of those positioned at the top of the bureaucratic hierarchy. 420

Officers below the policy level, however, were held legally liable for War Crimes and Crimes Against Humanity. A cornerstone of the judgments was the imposition of liability upon the commanders in chiefs of occupied territories for manifestly criminal activity within the scope of their territorial command. Culpability was extended to commanders who knew or should have known of criminal conduct, who participated, acquiesced or neglected to interfere in the commission of such offenses. 421 Knowledge was presumed or imputed in those instances in which an officer issued 422 or transmitted a manifestly illegal order; 423 received reports at headquarters which recorded criminal conduct; 424 and in those cases in which the illicit activity was discussed during meetings, 425 was readily apparent, 426 or was common knowledge. 427 Absence from headquarters was not recognized as a justifiable basis for a lack of knowledge. 428

In the High Command Case, the Court was reluctant to impute knowledge to the defendants. 429 The Tribunal, for instance, failed to find that Wilhelm von Leeb possessed or should have possessed knowledge of the atrocities committed by the Einsatzgruppen. The reports were not routed through the Army Group North and there was no evidence that the killings were called to von Leeb's attention. 430 The prosecution also urged that von Leeb had passed prisoners of war on the highway and must have been apprised of their abuse and neglect. The Court determined that the "condition of . . . prisoners on the road . . . might well have been due to their condition when captured and not to any neglect of their captors at that time." 431 In contrast, in the Hostage Case, the Court appeared more willing to impute knowledge of criminal conduct to field commanders. However, the killing of hostages was an established policy which was exhaustively documented in military reports. 432

A commander of an occupied territory who received actual or constructive notice of illegal conduct was charged with a duty to intervene. Wilhelm List, as Armed Forces Commander Southeast, had received reports of unlawful reprisal killings. The Court, in the Hostage Case, ruled that List had a duty to condemn, prevent, and discipline those responsible for these atrocities. 433 Defendant Walter Kuntze assumed command of the Armed Forces Southeast in October 1941. Although informed of the execution of reprisal prisoners,

Kuntze not only failed to take steps to prevent their recurrence but he urged more severe action upon his subordinate commanders. Not once did he attempt to halt these disproportionate reprisals . . . . The orders he issued and his subsequent failure to take steps to end these unlawful killings after they had been reported to him makes him criminally responsible . . . . 434

Hermann Hoth commanded the 17th Army during the Russian campaign and was condemned for having turned prisoners over to the Security Police. "Notwithstanding his knowledge of the character and functions of the SD [Security Police], 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." 435 The Tribunal, in the High Command Case, approvingly noted that Wilhelm von Leeb, having received information concerning the mass liquidation at Kovno [Latvia], "took action to prevent any recurrence of a similar nature within the area of the 16th Army where Kovno was located." 436

Field commanders also were held liable for the transmittal of an order which "is criminal upon its face, or one which he is shown to have known was criminal." 437 Orders which satisfied this standard were those which, "[b]y any standard of civilized nations . . . were contrary to the customs of war and accepted standards of humanity. Any commanding officer of normal intelligence must see and understand their criminal nature." 438 Staff officers were held criminally culpable in those instances in which they assisted or supervised the drafting or refinement of a manifestly criminal order; or took special steps to distribute such an order. 439

The fact that a field commander was implementing the order of a superior did not constitute a defense. Soldiers only were obligated to obey a lawful command. 440 A subordinate who carried out an illegal order might invoke the defense of duress in those instances in which he or she acted in response to an "imminent, real and inevitable" threat of death or serious bodily harm. 441 In addition, the injury caused by carrying out the illegal order must not have been "disproportionally greater than the harm which would result from not obeying the illegal order." 442 The defense of duress also was not available where the illegal order was a logical step in the "development of a program which he [the defendant] knew to be illegal in its very inception . . . [and] which could have been foreseen by the application of the simple law of cause and effect." 443

The Tribunal, in the Einsatzgruppen Case, in dismissing the defense of duress, cited the case of defendant Gustav Nosske, head of Einsatzkommando 12. In 1944, Nosske successfully protested an order to detain and decimate all remaining "half-Jews" in Duesseldorf. The Tribunal noted that Nosske's

action in refusing categorically to obey the order, demonstrated, contrary to the argument advanced throughout the trial in behalf of the various defendants, that a member of the German Armed Forces could protest a superior order and not be shot in consequence. Though it is true the defendant suffered some inconveniences . . . he was not shot or even degraded. 444

Obedience to a criminal order was not justified on the grounds that others may have carried out the command. This was rejected as pure speculation. 445 Defendants were expected to engage in a good faith effort to impede the implementation of an illegal order. However, they were not required, in every instance, to openly oppose or demonstratively defy their superiors. The Commissar Order was distributed by central headquarters to the units under von Leeb's command. Von Leeb communicated his concern to subordinate officers, but neither revoked the order nor resigned. Despite the fact that many were murdered, von Leeb was absolved of responsibility. 446 In contrast, Hermann Hoth's silent opposition did not satisfy his legal obligation to impede the Commissar Order. 447 A central contribution of the cases was the clarification of military necessity. According to the Tribunal in the Hostage Case, military necessity permits damage to civilians and non-military targets which is incidental to an attack on enemy forces. However, innocents may not be targeted for retribution or repression. 448 Although property which may be utilized by the enemy may be destroyed where imperatively demanded by the necessities of war, wanton decimation is prohibited. 449

The Tribunal distinguished between the type of senseless and superfluous slaughter of non-combatants carried out by German troops and the Allies' aerial attacks on strategic sites. The bombardment of factories and railways may have incidentally incinerated civilians, but was intended to effect the surrender of the targeted territory. This, according to the Court, was distinct "in fact and in law, from an armed force . . . entering . . . houses . . . dragging out the men, women, and children and shooting them." 450 The Court, in the High Command Case, observed that the "right to do anything that contributes to the winning of a war . . . . would eliminate all humanity and decency and all law from the conduct of war and it is a contention which this Tribunal repudiates as contrary to the accepted usage of civilized nations." 451

The Germans contended that they lacked experienced troops and that the occupied territories could only be pacified through intimidation and terrorism. 452 The Tribunal, in the Hostage Case, however, held that the "rules of international law must be followed even if it results in the loss of a battle or even a war . . . . If adequate troops were not available or if . . . lawful measures against the population failed . . . the occupant could limit its operations or withdraw from the country in whole or in part, but no right existed to pursue a policy in violation of international law." 453 The Court stressed that "[w]ar at its best is a business but under no circumstances can cold-blooded mass murder . . . be considered as related remotely . . . to the exigencies of war." 454

The Tribunal did recognize Lothar Rendulic's claim of military necessity. Rendulic commanded the German troops which destroyed housing, communication, and transportation facilities in Finmark [Norway] in order to deny these facilities to the advancing Russian troops. The Russians ultimately did not enter Finmark. Nevertheless, "the conditions, as they appeared to the defendant [Rendulic] 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." 455

The Court, in the Einsatzgruppen Case, dismissed the contention that the killing of Jews and other civilians was an act of self-defense on behalf of an endangered third party, the Reich. The intentional killing of defenseless civilians was contrary to the prohibitive principles of the humanitarian law of war. In any event, the defendants were unable to adequately articulate the imminent threat posed by Bolshevists or the rationale for executing those who did not adhere to the Communist catechism. 456 The ideological interests of Reich thus were not deemed to justify an attack on the citizens of a third party State. Under such a rationale, "any belligerent . . . would be allowed to unilaterally . . . abrogate the laws and customs of war . . . . [T]he rules of war would quickly disappear. Every belligerent could find a reason to assume that it had higher interests to protect." 457

The American judges were mindful that they were susceptible to the charge that the German defendants had been denied a fair trial and were reluctant to plow innovative doctrinal ground. The Tribunal, in the Hostage Case, approved the summary execution of partisans who had failed to comply with the requisites of the law of war. 458 The Court stressed that the obligation of resistance forces to adhere to legal standards applied in those instances in which the partisans confronted an invading aggressor force. 459

While some partisan bands in Yugoslavia and Greece concededly complied with the humanitarian law of war, the Tribunal determined that the "evidence fails to establish beyond a reasonable doubt that the incidents involved in the present case concern partisan troops having the status of lawful belligerents." 460

The Tribunal also approved the seizure of hostages, 461 as a last resort, where required to insure the security of occupation forces and the maintenance of law and order. 462 Some connection was required between the hostages and the crime committed. Thus,

[i]f 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 . . . neither the authorities nor the population could have prevented, the basis for the taking of hostages, or the shooting of hostages . . . does not exist. 463

The execution of hostages was to be accompanied by various procedural safeguards, including the proclamation of names and addresses, prior warnings, and an equivalence between the number executed and the severity of the offense. 464 A competent court martial was to certify that such protections had been provided. These concededly flawed procedures were considered to afford some shield against vindictive or capricious killings. 465 The Court, in the Hostage Case, determined that the defendants had failed to meet the requisite requirements and concluded that "[t]hose responsible for such crimes . . . must be held to account if international law is to be anything more than an ethical code, barren of any practical coercive deterrent . . . . The guilt of the German occupation forces . . . casts a pall of shame upon a once highly respected nation and its people." 466

In the end, the lasting contribution of the three prosecutions may have been to affirm that War Crimes and Crimes Against Humanity are matters of international concern. The arraignment of German officers before American tribunals conveyed that the defendants' crimes not only victimized the citizens of Eastern Europe, but breached global order and security. The judgments provide precedents for bringing military officials who grossly contravene the humanitarian law of war before the bar of international justice. 467

The American courts experienced difficulty in locating legal language which adequately captured the defendants' culpability. Genocide became reduced to the vocabulary of common law murder. As noted by the Tribunal, in the Einsatzgruppen Case, "[o]ne million human corpses is a concept too bizarre and too fantastical for normal mental comprehension . . . . [T]he mention of one million deaths produces no shock at all commensurate with its enormity because to the average brain one million is more a symbol than a quantitative measure." 468

The victims became reduced to distant and shadowy figures and only a hint of human pain and suffering penetrated the judicial decisions. This, of course, was the final insult, death without description or distinction. In the end, we are slowly seduced into the sinister stance of the Nazi bureaucrat and imperceptively begin to minimize the immensity of the defendants' crimes. 469 This distant psychological perspective helps to persuade us that the defendants deserved their relatively lenient sentences. 470

Despite the Courts' censorious comments, 471 the judges clearly harbored some sympathy for the defendants. These were professional military men with alleged loose loyalties to National Socialism who were portrayed as faithfully fulfilling their duty to fight for the German Fatherland. 472 The judges also were impressed by the defendants' achievements and attainments. 473 Yet, the descriptions of the defendants' "honesty, good nature, kindness, tolerance and sense of justness" masked that these were cold-blooded killers without whom Hitler "would have remained as innocuous as a rambling crank." 474 SS Lieutenant Adolf Ott, commander of Sonderkommando 7b, blandly recounted the killing of Jews.

Q. Some of them refused to talk?

A. That is so.

Q. And they were shot just the same?

A. They had to be shot if they were Jews.

Q. Well, then you did shoot some Jews because they were Jews?

A. I have already said, . . . every Jew who was apprehended had to be shot. Never mind whether he was a perpetrator or not. 475

Ernst Emil Heinrich Biberstein served as chief of Sonderkommando 6. Biberstein was questioned regarding the fate of Jews who had been apprehended: "If there were any Jews, Mr. Prosecutor, they were shot, just as the other Jews . . . . I believe that it has been made adequately clear . . . that under the order which has been issued there was no scope to hold trials of Jews." 476 Defendant Walter Kuntze, Deputy Armed Forces Commander Southeast and Commander in Chief of the 12th Army, urged his troops to engage in "'unequivocal and harder reprisal measures . . . [n]o false sentimentalities! It is preferable that 50 suspects are liquidated than one German soldier lose his life . . . .'" 477

The defendants willingly subordinated their consciences to Hitler's dictatorial demands. Field Marshal Wilhelm List explained that "[w]e were pledged by our oath and duty of obedience." 478 SS Brigadier General Erich Naumann, who served as Chief of Einsatzgruppen B, recounted that he harbored no moral qualms concerning the Fuehrer Order: "'I considered the decree to be right because it was part of our aim of the war and, therefore, it was necessary.'" 479 SS Lieutenant Colonel Gustav Nosske, commander of Einsatzkommando 12, when questioned as to whether he would have adhered to an order to kill "'500 innocent people, men, women, and children - Jews,'" replied, "'I would have probably done it.'" 480 SS Colonel Walter Blume antiseptically affirmed that he regarded a person who advised a farmer not to assist the occupying German forces as a "saboteur" who was "'worthy of the death sentence.'" 481 The defendants became inured to mass murder. Heinz Hermann Schubert, adjutant to Otto Ohlendorf, the Chief of Einsatzgruppe D, witnessed the arrest, deportation, and murder of a group of Gypsies. He reported to Ohlendorf that "he saw 'nothing unusual.'" 482

The German military meticulously documented their activities. The Court, in the Einsatzgruppen Case, noted that "[t]he reports and the statements of the defendants themselves verify what otherwise would be dismissed as the product of a disordered imagination." 483 Still, the defendants desired to deny their despicable deeds and employed euphemisms to distance themselves from the killing. Willy Seibert served as deputy to defendant Otto Ohlendorf. He was questioned whether "the settlement of the Jewish problem meant the execution of Jews?"

A. That did not have to be the case . . . because in the country Jews were not executed . . . they were assigned to labor . . . .

Q. Eventually they were executed?

A. Yes. That is probably the case . . . .

Q. And when you signed the report which contained the phrase, "The Crimea is freed of Jews," you knew what had happened to the Jews?

Q. Yes. I knew that. 484

The defendants stressed that German officers possessed a reputation for professionalism and prudence; and that it was incomprehensible that such militarists would have intentionally engaged in criminal conduct. Defendant, General Hermann Hoth, Commander in Chief of the 17th Army, and later of the 4th Panzer Army, observed that the German officer "is a soldier of the finest traditions [who] devoted himself completely to his profession . . . . It was not long before the ordinary soldier came to know him and to admire him . . . he had a warm heart for the soldiers and . . . he constantly endeavored to lessen their suffering." 485 Hoth insisted that German officers were fighters rather than fanatics, combatants rather than criminals. "Just as the decision to begin the war was not made by the army, so the fighting in the East - seen from the point of view of the German Wehrmacht - was not a political ideology, but a purely military matter." 486

Otto Ohlendorf argued that the defendants, like all soldiers, merely pursued the policies of the prestigious and powerful. Therefore, they lacked criminal intent. 487 Although portrayed as malevolent monsters, the defendants argued that they differed little from those who fought on the side of the Allied Powers. Defendant Erich Naumann noted that "[o]n both sides soldiers executed their orders, orders of their highest superiors, even if it was not in accordance with their conscience . . . with the reason that they were necessary in order to reach the war aim." 488

The defendants conceded that, at times, their conduct may have been cruel and inhumane. Yet, their actions were morally indistinguishable from the Allied pilots who by "pushing of a button . . . kill[ed] a much larger number of civilians, men, women, and children, even to hurt them for generations . . . ." 489 Western leaders approved these aerial attacks because, like the Germans, they believed that "through this terror . . . the people could be demoralized and under such blows the military power . . . would . . . also break down." 490 However, in contrast to the Germans, the Allies had been "credited with having acted in good faith, and it is assumed they considered that such an action was militarily necessary." 491

The defendants thus noted that they were not singularly sadistic in their willingness to subordinate the demands of morality and conscience to the dictates of duty. 492 They also alleged that they had been confronted with an aggressive Communist adversary which was willing to adopt any means to achieve global domination. 493 The so-called "eastern man" was described as "capable of . . . fanatical toughness . . . unlimited endurance, and . . . limitless faith. For him the fight . . . was a crusade. The idea of the Bolshevist state of the future was an idol . . . which he worshipped as he did the Icons in former times." 494 Field Marshal Wilhelm List, in the Hostage Case, contended that "[i]f harsh measures entailed . . . [t]he fault rests with those who waged this battle . . . cunningly and cruelly in the Balkan manner. We had only one aim, to pacify the country." 495

The operation of the murderous Nazi military machine was facilitated by the stereotyping of Jews, Gypsies and Slavs. A letter from a leader of the field police to his commanding general queried whether

you . . . have also seen in Poland such horrible figures of Jews. I thank the fate I saw this mongrel race . . . We surge ahead without pinges of conscience . . . [n]ow is the time . . . to create for our descendants a more beautiful and eternal Germany. We don't sleep here. Every week 3-4 actions, one time gypsies, the other time Jews, partisans, and other rabble. 496

Women and children were executed along with the men, "so that Jews, gypsies, and so-called asocials would be exterminated for all time." 497 Efficiency rather than humanity was the touchstone. Defendant Ernst Biberstein expressed satisfaction that "'gas execution guaranteed certain death.'" 498

Most defendants were inoculated with the view that Bolshevism was a Semitic ideology whose goal was "Jewish world domination." 499 The defeat of Bolshevist expansionism, in the minds of the German military, required "rendering Soviet Jewry harmless." 500 The defendants thus viewed the extermination of Jews as an act of national defense rather than murder. 501 Franz Six, Chief of Vorkommando Moscow, stated that the "killing of male Jews was proper because they were potential bearers of arms." 502 Defendant Otto Ohlendorf recalled that he witnessed three executions in which the Jews "went to their death singing the 'International' and hailing Stalin . . . . It was absolutely certain that by these persons the call of Stalin for ruthless partisan warfare would be followed without reservation." 503 Ohlendorf later conceded that most of the victims did not pose an immediate threat. However, he cautioned,

that does not change the fact that for us it meant a danger insofar as they were determined to be a danger, and none of us examined whether these persons at the moment, or in the future, would actually constitute danger, because this was outside our knowledge, and not part of our task. 504

The German troops were mere messengers of nature. Members of a superior race who were destined to eliminate the demented, disabled and undesirable. Defendant Paul Blobel pointed to the fact that his victims stoically succumbed to slaughter as evidence that the "victim is . . . inhuman while the executioner is to be pitied. . . . To these people 'human life was not as valuable as it was to us.'" 505 The Einsatzgruppen Tribunal observed that the "[t]he so-called Jewish problem was not a problem but a fixation based upon the doctrine that a self-styled 'master race' may exterminate a race which it considers inferior . . . . In fact, if it were not so tragic, the National Socialistic attitude toward the Jews could only be considered nonsensical." 506

Various defendants acknowledged that they had been manipulated by the master magician Adolf Hitler into believing that Germany was threatened by contiguous countries and surrounding States. 507 They portrayed themselves as overpowered by the Fuehrer's force and ferocity. 508 Some explained that it was inconceivable to distrust or doubt the legality of Hitler's directives. Defendant Hermann Hoth, in elaborating his reasons for carrying out the Commissar Order, stated that "it was quite impossible for me to assume that he [Hitler] intended a crime in issuing this order. Even today . . . I know his intention really was to protect the troops against commissars. I do not think that Hitler had any criminal intent." 509 Defendant Walter Warlimont, who signed and transmitted the Commissar Order to officers in the field, noted that "[i]t did not occur to an officer as I who, in 1941 had been a soldier for almost thirty years, that his head of the state and the supreme commander of his armed forces would issue a criminal order." 510 Some also pled that they were intellectually ill-equipped to evaluate the legality of Hitler's directives. Hans Reinhardt, Commander of Panzer Group 3, observed that

a Panzer general is not an international lawyer who during the war would be in a position to make investigations lasting several months, or to ask international lawyers for expert legal opinions about the correctness of his conception of law and whether it could also be maintained in face of the consequences of the lost war. 511

In any event, Dr. Rupprecht von Keller, counsel for defendant Rudolf Lehmann, argued that open resistance would have proven futile and likely would have led to severe retribution. A demonic dictator, such as Hitler, certainly would not have been deterred by such dissent. Resignation only would have resulted in replacement by an unscrupulous zealot. The defendants, according to von Keller, chose the most difficult, discerning and demanding course by deciding to remain in their positions and attempting to moderate and undermine the Fuehrer's orders. 512

Dr. von Keller stressed that it was difficult for an American judge to comprehend the complex calculus which confronted German officers. Those who undertake

to judge as to whether or not the captain of a ship acted correctly . . . cannot but examine in detail the circumstances to which this man had been subject . . . . He must visualize the roaring of the storm, the turbulence of the waves, the danger of suddenly running ashore, the necessity of immediate decisions . . . [t]he obligation to imagine this situation will be the greater, if he never experienced the force of the elements. 513

Von Keller concluded that, "[n]obody can be punished if, in case of a conflict of duties he chose that way which, weighing seriously all interests concerned, he considered the most just." 514

The Tribunals confined culpability to those with knowledge and authority to halt the commission of War Crimes and Crimes Against Humanity. Staff officers, such as Hermann Foertsch, 515 and Kurt von Geitner, 516 who turned a blind eye to murder were exonerated. The Court ruled that,

[t]he evidence fails to show the commission of an unlawful act which was the result of any action, affirmative or passive . . . mere knowledge of the happenings of unlawful acts does not meet the requirements of criminal law. He [the defendant] must be one who orders, abets, or takes a consenting part in the crime. 517

The fact remains that all the defendants voluntarily devoted themselves to the furtherance of National Socialism. The extermination programs were a logical extension of Nazi policies. As observed by the Tribunal in the Einsatzgruppen Case, "[o]ne who participated in that program which began with Jewish disenfranchisement and deportation and led, 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." 518

Some possessed the resilience to resist National Socialism. They neither acquiesced nor cooperated with Hitler. As noted by the Tribunal in the prosecution of Field Marshal Erhard Milch:

Others with more courage and higher principles and with more loyalty to the ancient German ideals rebelled and withdrew from the brutal crew . . . . These men in high positions had the character to repudiate great evil, and if in so doing they took risks and made sacrifices, nevertheless, they made their choice to stand with decency and justice and honor. The defendant [Milch] had his opportunity to join those who refused to do the evil bidding of an evil master, but he cast it aside and his professed repentance now comes too late. 519

The defendants in the three prosecutions of German military and police officials prostituted themselves to the Nazi cause and grossly contravened the humanitarian law of war. They pointed their weapons at "protected persons" and performed a principal role in the Nazi's genocidal policies. As a result, these militarists were reduced to the status of murderers. In 1938, General Ludwig Beck resigned as Chief of the Army General Staff. Beck's letter of resignation prophetically predicted that, "'[h]istory will burden these [Army] leaders with blood-guilt if they do not act in accord with their . . . conscience. . . . [M]ilitary obedience has a limit . . . [e]xtraordinary times demand extraordinary measures.'" 520

The American prosecutions of German officers stands as one of the most significant international legal actions initiated against military and police officials. These trials explicitly established that high-ranking officers are liable for violations of the humanitarian law of war and are obligated to resist illegal orders. The High Command Case provided principles for adjudging the legal liability of military field and staff officers 521 and affirmed that various legal protections are to be accorded to civilians and prisoners of war. 522 The Einsatzgruppen Case also elaborated upon the doctrinal shield surrounding civilians 523 and clarified the contours of self-defense 524 and duress. 525 Lastly, the Hostage Case refined the international legal norms regulating occupying powers, 526 partisans, 527 reprisals, 528 and command responsibility. 529 The Tribunals also elaborated upon the scope of the superior orders defense 530 and military necessity. 531

The impact of World War II war crimes trials has faded. The Nazi concept of "total," ideologically motivated warfare unfortunately has become the model for modern conflicts. International law is in danger of degenerating into desuetude and the global community must once again develop the determination to prosecute and punish those who dare to defy the international norms against mass slaughter and genocide. 532

Opening Statement of the Prosecution, HIGH COMMAND MATERIALS, supra note 30, at 62.