-Caveat Lector- from: http://www.codoh.com/trials/triamprosnazis.html Click Here: <A HREF="http://www.codoh.com/trials/triamprosnazis.html">War Crimes: American Prosecution of Nazi Milita…</A> ------ Our source for this paper is located online at: http://law.touro.edu/Publications/internationallawrev/vol6/part5.html, as of 4/10/99. We are mirroring the document here as an example of current legal opinion regarding the post-WWII trials. ------------------------------------------------------------------------ WAR CRIMES: AMERICAN PROSECUTIONS OF NAZI MILITARY OFFICERS Matthew Lippman* CONTENTS I. Hitler And The Military 263 A. Hitler's Cosmology Of Conquest 263 B. The Fuehrer And The Armed Forces 265 C. The Military And Mass Murder 272 II. Control Council Law No. 10 275 III. The High Command Case 280 A. War Crimes And Crimes Against Humanity 280 B. Judgment 288 IV. The Einsatzgruppen Case 306 A. War Crimes And Crimes Against Humanity 306 B. Judgment 310 V. The Hostage Case 320 A. The Execution Of Hostages 320 B. Serbia And Croatia 322 C. Croatia And The Italian Surrender 328 D. Greece 332 E. Norway 333 F. Judgment 334 Conclusion 346 A. Doctrinal Development 346 B. Explanations Of Evil 361 C. Summary 374 INTRODUCTION 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. I. HITLER AND THE MILITARY A. Hitler's Cosmology Of Conquest 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 B. The Fuehrer And The Armed Forces 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 C. The Military And Mass Murder 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 II. CONTROL COUNCIL LAW NO. 10 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. III. THE HIGH COMMAND CASE A. War Crimes And Crimes Against Humanity 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 B. Judgment 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 ----- Aloha, He'Ping, Om, Shalom, Salaam. Em Hotep, Peace Be, All My Relations. Omnia Bona Bonis, Adieu, Adios, Aloha. Amen. Roads End <A HREF="http://www.ctrl.org/">www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! These are sordid matters and 'conspiracy theory'—with its many half-truths, mis- directions and outright frauds—is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. 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