Hostages Case (NMT)

Case No. 7 of the Nuremberg Military Tribunals (NMT), the Hostages Case, charged twelve senior military officers for "criminal disregard of the rules of warfare for of hostages and civilians." Part of the crimes involved an order, promulgated by the theater commander, Maximilian von Weichs to execute one hundred civilian "hostages" for every German soldier killed by the partisans, as well as the destruction of villages and killing of villagers near the sites of partisan activity in Yugoslavia, Albania and Greece.

This was an especially difficult legal case, as the taking and killing of hostages was, although deplored, permissible in international law.

Defendants

• Field Marshal Wilhelm List, who had commanded the Twelfth Army, which was responsible for the invasion and conquest of Yugoslavia and Greece, until October 1941.
• Lt. General Wilhelm Kuntze was also a defendant.
• General Lothar Rendulic commander of the Second Panzer Army in Yugoslavia during 1943-44
• Lt.General Hermann Fortsch, Chief of Staff to List, Kuntze and von Weichs.
• Field Marshal Maximilian von Weichs, supreme commander of German forces in this region 1944-45, although arraigned, was separated from the case before its conclusion due to illness.

The basic charge against all the defendants was responsibility for the unwarranted slaying of many thousands of Yugoslav and Greek civilians. On other occasions, all the inhabitants of particular villages, near which partisan action had occurred, were slaughtered and the villages burned. ...several of the defendants who had served on the Russian front were charged with killing uniformed prisoners of war pursuant to the notorious German "Commissar Order." [Source: Taylor, p.321]

Charges

Tthe tribunal dismissed the charges relating to partisans or guerrillas. Whilst accepting that there were circumstances under which members of units operating against the German forces in Yugoslavia and Greece were entitled to protection as lawful belligerents, it concluded that "the greater portion of the partisan bands failed to comply with the rules of war entitling them to be accorded the rights of a lawful belligerent. 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."

On the issue of "hostage" taking and their execution, the tribunal accepted that, in principle, regardless of how abhorrent that might be morally, this was allowed for under international law, although this was a "barbarous relic of ancient times."

       An examination of the available evidence on the subject convinces us that hostages may be taken in order to guarantee the peaceful conduct of the population of occupied territories and, when certain conditions exist and the necessary preliminaries have been taken, they may, as a last resort, be shot.    ...  The occupant may properly insist upon compliance with regulations necessary to the security of the occupying forces and for the maintenance of law and order.  In the accomplishment of this objective, the occupant may, only as a last resort, take and execute hostages.

   Although hostage taking and execution was sanctioned under current international law, the Tribunal very significantly stressed that even such an abhorrent "barbarous relic of ancient times" was circumscribed by requirements of procedure and proportionality. 

       ...
       there must be some connection between the population from whom the hostages are taken and the crime committed.  If the act was committed ... without the knowledge or approval of the population or public authorities, and which, therefore, neither the authorities or the population could have prevented, the basis for the taking of hostages, or the shooting of hostages already taken, does not exist.   ...   The number of hostages shot must not exceed in severity the offenses the shooting is designed to deter.  Unless the foregoing requirements [not all of which are included in the material quoted] are met, the shooting of hostages is in contravention of international law and is a war crime in itself.

   Whilst the tribunal's enunciation of legal principles might be considered somewhat "conservative", its ruling on the substantive issues was unequivocal.

       The evidence in this case recites a record of killing and destruction seldom exceeded in modern history.  Thousands of innocent inhabitants lost their lives by means of a firing squad or hangman's noose ...  Mass shootings of the innocent population, deportations for slave labor and the indiscriminate destruction of public and private property  ...  lend credit to the assertion that terrorism and intimidation was the accepted solution to any and all opposition to the German will.  It is clear, also, that this had become a general practice and a major weapon of warfare by the German Wehrmacht...  That the acts charged as crimes in the indictments occurred is amply established by the evidence.  ...  The guild of the German occupation forces is not only proven beyond a reasonable doubt but it casts a pall of shame upon a once respected nation and its people.

   The two most senior officers, List and Kuntze, were sentenced to life imprisonment.  Five others were handed down prison sentences ranging from seven to twenty years.  Two were acquitted.  The case against von Weichs, as noted earlier, had been separated.

The "High Command Case" (United States v. Wilhelm von Leeb et al)

   The charges laid against the defendants were:(1) crimes against the peace, (2)war crimes and crimes against humanity: crimes against enemy belligerents and prisoners of war (3) war crimes and crimes against humanity: crimes against civilians, and (4)common plan or conspiracy.  The latter charge was dismissed on the grounds "as tendering no issue not contained in the preceding Counts."  The war crimes and crimes against humanity indictments included criminal responsibility in connection with the implementation of the Commissar Order, the Barbarossa Jurisdiction Order,  the Night and Fog (Nacht und Nebel) Decree, the Hostages and Reprisals Order, murder and ill-treatment of prisoners of war and of the civilian population in occupied territories and their employment as slave laborers, cooperation between the Wehrmacht and the SS in connection with the persecution and execution of Jews and other segments of the population, and plunder and spoliation.

   The fourteen defendants were all senior officers in the army and navy, or in the German High Command, OKW. Defendant Blaskowitz committed suicide in prison before the conclusion of the trial. 

   Some of the acts that were included under (2) above were described as follows:

       Unlawful orders initiated, drafted, distributed and executed by the defendants directed that certain enemy troops be refused quarter and be denied the status and rights of prisoners of war, and that certain captured members of the military forces of nations at war with Germany be summarily executed.  ...   prisoners of war were denied rights to which they were entitled under conventions and the laws and customs of war.  Soldiers were branded, denied adequate food, shelter, clothing and care, subjected to all types of cruelties and unlawful reprisals, tortured and murdered.  Special screening and extermination units....operating with the support and under the jurisdiction of the Wehrmacht, selected and killed prisoners of war for religious, political and racial reasons.  Many recaptured prisoners were ordered executed.

   Acts under (3) above included participation in atrocities and offenses that included:

       ...
       murder, extermination, ill-treatment, torture, conscription to forced labour, deportation to slave labour or for other purposes, imprisonment without cause, killing of hostages, persecutions on political, racial and religious grounds, plunder of public and private property, wanton destruction of cities, towns and villages, devastation not justified by military necessity, and other inhumane and criminal acts against German nationals and members of the civilian populations of countries and territories under the belligerent occupation of, or otherwise controlled by Germany.  The defendants committed War Crimes and Crimes against Humanity, in that they were principals in, accessories to, ordered, abetted, took a consenting part in, were connected with plans and enterprises involving, and were members of organizations and groups which were connected with, the commission of War Crimes and Crimes against Humanity. [Source:United Nations War Crimes Commission, pp.3-4]

   As noted earlier, the Conspiracy charge was dismissed by the tribunal.   On the charge of waging aggressive war the Tribunal returned a finding of not guilty, on the grounds that "The acts of 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 a war or the initiation of invasion that International Law denounces as criminal. Under the record we find the defendants were not on the policy level, and are not guilty under Count I of the Indictment." (United Nations War Crimes Commission, p.70)

   Two of the defendants were acquitted of all charges.  The remaining eleven were all found guilty on charges (2) and (3) above, war crimes and crimes against humanity, and sentenced to terms of imprisonment ranging from life to three years.