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Trials of War Criminals (Non-Nuremberg)

Published online by Cambridge University Press:  20 April 2017

Willard B. Cowles
Willard B. Cowles*
Affiliation:
University of Nebraska
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Extract

The confusion and lack of information about trials of war criminals continues. In 1945 one of our most highly talented observers on international relations made the egregious error of telling a large and intelligent body of readers that, as regards Germans who had ordered or condoned acts of brutality toward the people of conquered countries, “there is no international law in existence” under which most of them could be brought to trial.

Type
Research Article
Information
American Journal of International Law , Volume 42 , Issue 2 , April 1948 , pp. 299 - 319
Copyright
Copyright © American Society of International Law 1948

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References

1 33 Calif. L. Rev., (1945), 177, 181.

2 This document was published by H.M.S. Stationery Office; price, 2s.6d. The pattern of the Reports follows the English descriptive summaries of the cases in the Law Reports. This is the significance of the title of the collection. This volume will at times be referred to herein as the Law Reports. Citations from it, such as “ P . 94” refer to the identifiedpages in the Law Reports.

3 Quoted matter, unless otherwise identified, is taken from the case as reported in the Law Reports. Inasmuch as the report of each case covers only a few pages, and as all quotations are to be found within that small compass, the writer will not ordinarily interrupt the reader with footnote page references.

4 The states whose nationals were involved in some capacity are: Australia, Canada, China, Chile, Egypt, Germany, Greece, Italy, The Netherlands, Poland, the United Kingdom, the United States, and the USSB.

5 The decision in this case is reproduced in this Journal, Vol. 16 (1922), p. 708.

6 Data as to time of trial and decision, taken from Ex parte Yamashita (1946), 327 U. S. 1.

7 47 Stat. 2021, 2052; 4 Malloy 5224, 5240.

7a In view of the indefiniteness of the Law Reports on this matter, and on the assumption that the original record of the trial would now be in the Office of the Judge Advocate General of the Army of the United States, the present writer wrote the latter asking whether or not the record of thetrial showed a finding of fact by the court that the American soldiers were in uniform, and if so what that finding was. The Judge Advocate General, Major General Thomas H.Green, replied as follows:

“ The record shows that the court made a finding only as to the general issue—the guilt of the accused. There is, however, uncontradicted testimony that, at the time of theirlanding on Italian soil, the members of the group were dressed ‘in thefield uniform of the Army of the United States.’ There is testimony thatthey were similarly dressed at the time of their capture. The metal insignia of thetwo officers in the group had been removed because of the possibility that these itemswould reflect light or might cause unnecessary noise.”

8 The text of the Führerhefehl of 18October 1942, as produced in the trial is as follows:

1. Recently our adversaries have employed methods of warfare contrary to the provisions of the Geneva Convention. The attitude of the so-called commandos, who are recruited in part among common criminals released from prison, is particularly brutal and underhanded. From captured documents it has been learned that they have orders not only to bind prisoners but to kill them without hesitation should they become an encumbrance or constitute an obstacle to the completion of their mission. Finally, we have captured orders which advocate putting prisoners to death as a matter of principle.

2. For this reason, an addition to the communiqué of the Wehrmacht of 7th October, 1942, is announced; that, in the future, Germany will resort to the same methods in regard to these groups of British saboteurs and their accomplices—that is to say that German troops will exterminate them without mercy wherever they find them.

3. Therefore, I command that: Henceforth all enemy troops encountered by German troops during so-called commando operations, in Europe or in Africa, though they appear to be soldiers in uniform or demolition groups, armed or unarmed, are to be exterminated to the last man, either in combat or in pursuit. It matters not in the least whetherthey have been landed by ships or planes or dropped by parachute. If such men appear to be about to surrender, no quarter should be given them on general principle. A detailed report on this point is to be addressed in each case to the OKW for inclusion in the Wehrmacht communiqué

4. If members of such commando units, acting as agents, saboteurs, etc., fall into thehands of the Wehrmacht through different channels (for example, through the police in occupied territories), they are to be handed over to the Sicherheitsdienst without delay. It is formally forbidden to keep them, even temporarily, under military supervision (for example, in P/W camps, etc.).

5. These provisions do not apply to enemy soldiers who surrender or are captured in actual combat within the limits of normal combat activities (offensives, large-scale air or seaborne landings). Nor do they apply to enemy troops captured during naval engagements, nor to aviators who have baled out to save lives, during aerial combat.

6. I will summon before the tribunal of war all leaders and officers who fail to carryout these instructions—either by failure to inform their men or by their disobedience of this order in action. (Pp. 33–34.)

9 This phrase is a vestige of military law from the days-when such firearms were used. Traditionally it was a more honorable death than hanging. The phrase still appears in the United States Articles of War.

10 Other interesting facts appear in the following news item pubished at the time of the discovery of the operations of the institution. The following Associated Press item appeared in the Washington (D. C.) Post of 10 April 1945: “With the United States First Army in Germany, April 9 (AP).—A Nazi ‘murder asylum’ in which 20,000 political prisoners, Jews and slave laborers are estimated to have been put to death, has been uncovered byFirst Army troops. The murder factory was hidden in an insane asylum at Hadamar, near Limburg. German civil authorities themselves estimate that 15,000 victims were gassed and cremated and another 5000 killed by drugs and poison and buried in communal gravesnear the asylum. Those imprisoned for political reasons and foreign slave laborers whobecame too weak to work were put to death under the guise of ‘mercy killings’ after being systematically starved until doctors diagnosed them ‘as hopelessly ill.’ The establishment was operated under direct orders from Berlin, it was said, and at least 15,000 men, women and children were gassed and cremated by specially selected SS guards. After residents of Hadamar repeatedly complained of the stench of burning bodies and gas, and the Bishop of Muenster had written a protesting letter, the Nazis switched from gas to hypodermic injections and from cremation to mass burial to do away with the last 5000 ‘euthenasia’ eases. Three Germans whoran the asylum—a 70-year-old doctor, a 45-year-old chief woman’s nurse and a middle-aged chief warden—were arrested. (The German physician and his nurse, said the United Press, admitted they killed the victims by injecting a powerful poison directly into their hearts. ‘The Gestapo ordered their deaths,’ the physician said. ‘They said the people were mentally ill.’ Death books were found hidden in the wine cellar. ‘Profession unknown. Nationality unknown,’ is written after each name.) Terror was added to the macabre place by 300 crazed inmates who were allowed to run free in the awesome underground dungeons. ‘Nobody would believe it,’ said one investigator. ‘It had underground chambers with dripping water, bats flying around and little crazy men jumping out at you at every step. . . . The director was a big tall Nazi surgeon, about 70 years old, a graduate of Heidelberg with sabre scars on his face. I never saw a tougher looking man in my life. The chief nurse—her job was to put the death needle into women patients—was about 6 feet tall and built like a football player. She was as ugly as a witch. The head keeper showed us 481 graves in the cemetery. There were three fresh, empty graves and when we asked him about them he said, “we always keep three graves ahead.” When we first walked through, the insane inmates, laughing and screaming, followed us around in packs. There were dwarfs and stupid giants, but all seemed harmless. Aftertheir 10,000th killing, the SS men had a drinking orgy. They cleaned out the skulls ofof some of their victims and used them as drinking cups.’ The officer said some of thevictims were ‘young children who were half Jews.’ The director carried out to the let er the legal principles set down by the Nazi euthanasia law that the victims be diagnosed by a reputable physician as ‘incurably ill.’ Under the Nazi Party starvation technique this only required the interval of time necessary for the ailing workers to breakdown from lack of food. Confronted by the testimony on the operations of his ‘murder factory,’ the surgeon only replied: ‘ I have always been a doctor of honor.’”

12 Though the United Nations War Crimes Commission Eeport does not refer to it, an amusing footnote on this case, which is apparently factually accurate, appeared in The New Yorker: “ In Wiesbaden, theother day, seven Germans went on trial for the wholesale murder of some slave workers—Poles and Eussians, mostly, who had been put to death for reasons which suited Germany at that particular moment. The trial wasconducted by United States officers. According to an account we read of it in the [New York] Times, the defense attorney, anAmerican captain, challenged the legal basis of the trial and quoted The New Yorker tosupport his argument.” (The New Yorker, 20 Oct. 1945, p. 19.)

12 This reference is to the doctrine expounded by the present writer. It was put forward first in the form of a memorandum made available to the United Nations War Crimes Commission in the autumn of 1944. At the suggestion and with the personal encouragement of Sir Cecil Hurst, then Chairman of the United Nations War Crimes Commission, that paper was expanded in London and Washington during the winter of 1944–1945. The following spring the ribbon copy of this larger paper was turned over to Mr. Justice Jackson’s staff, and a carbon copy used for its publication in the June issue of the California Law Eeview—“Universality of Jurisdiction Over War Crimes,” 33 Calif. L. Bev. 177–218 (1945). The doctrine set forth may be summarized by the following excerpts: –This paper is concerned with the question whether,under international law, a belligerentState has jurisdiction to punish an enemy war criminal in its custody when the victim of the war crime was a national of another State and the offense took place outside ofterritory under control of the punishing State. . . . The origin of jurisdiction over the war criminal must be sought in the ancient practice of brigandage, in its relations to military operations and occupation. . . brigands have been classed with pirates from at least the sixteenth century. . . .The legal consequences of acts of brigandage and of piracy, so far as concerns jurisdiction, were the same. . . . In both situations there is, broadly speaking, a lack of any adequate judicial system operating on the spot where the crime takes place—in the case of piracy it is because the acts are on the high seas and in the case of war crimes because of a chaotic condition or irresponsible leadership in time of war. . . . It is clear that, under international law, everyindependent State has jurisdiction to punish war criminals in its custody regardless of the nationality of the victim, the time it entered the war, or the place where the offense was committed.”

For uses of this paper in connection with Nuremberg, see Dept. of State Bulletin, June 10, 1945, pp. 1071 at 1075, and “Trial of War Criminals” (Dept. of State Publication No. 2420, pp. 6, 7, 8).

13 p . 53. Similar jurisdictional questionswere involved in three other cases reported in the Law Reports: Almelo (p. 42),Peleus(p. 13), and Zyklon B (p. 103). The relevant Notes on the Cases contain similar comments; e.g., on the Zyklon B case, the language is: “:( a ) the general doctrine called Universality of Jurisdiction over War Crimes, under which every independent State has in International Law jurisdiction to punish pirates and war criminals in its custody regardless of the nationality of the victim or the place where the offence was committed . . . ”(p. 103).

14 As originally drawn, the specification contained the word “unlawfully” instead of “wilfully.”

15 For text see below, text related to footnote 16.

16 47 Stat. 2021, 2031; 4 Malloy 5224, 5229.

17 36 Stat. 2277, 2295, 2306–2307; 2Malloy 2269, 2281, 2289.

18 The present writer has since come acrossan instance where such a mixed tribunal was used—at Archangel immediately afterWorld War I. See Strakhovsky, Leonid L., Intervention atArchangel, The Story of AlUed Intervention and Russian Counter-Revolution in North Russia, 1918–1920, Princeton, 1944, p. 46.Google Scholar

19 See, for example, pages 22 and 35 of theLaw Reports, note 1 in each case.

20 Criminology and Penology (1926), p. 13.