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The Oxford Companion to International Criminal Justice edited by Cassese, Antonio (22nd January 2009)

Part C Cases, L, List and Others (Hostage case)

Natasha Bakht

From: The Oxford Companion to International Criminal Justice

Edited By: Antonio Cassese (Editor-in-Chief)

List and Others (Hostage case)

United States v. Wilhelm List and others, US Military Tribunal sitting at Nuremberg, 19 February 1948. TWC, Vol. XI, 1 230–1319 (reported at ILR 15, at 632–653; VIII LRTWC I). Applying CCL No. 10, 1907 HC IV, customary international law.

Facts

The ten accused, high ranking officers in the German army, were charged, inter alia, with responsibility for the following crimes allegedly committed by troops under their command: (i) the execution, torture and ill-treatment without trial of civilians and hostages in Greece, Yugoslavia and Albania as reprisals for attacks on German forces by unknown persons and ‘lawfully constituted enemy forces’; (ii) the plunder and looting of public and private property and the wanton destruction of towns, cities and villages in occupied Norway, Albania and Yugoslavia; (iii) the summary execution of enemy troops, and the direction that ‘quarter’ and prisoner of war (POW) status be refused to them; (iv) the employment of civilians in the construction of German military fortifications; and (v) the deportation to slave labour of a large number of civilians from Greece, Yugoslavia and Albania. The crimes (p. 796) were alleged to have been committed in the context of resistance activities by guerrilla forces against the German army in Greece, Yugoslavia, Albania and Norway.

Summary of Decision

Preliminarily, the Military Tribunal sitting at Nuremberg held that the term ‘customs and practices accepted by civilized nations’ could apply to fundamental principles of justice which have been accepted by civilized nations generally and not only to the laws of war. In determining whether a fundamental rule of justice is entitled to be declared a principle of international law, one must look to the domestic laws of nation states.

The Tribunal found that while Art. 23(h) HR operated as a bar to retroactive action, the indictment was not an ex post facto pronouncement of CCL No. 10 because the Nuremberg IMT had held that the recognized crimes were a codification of crimes that already existed under either conventional or customary international law. The fact that courts authorized to hear such cases were not established prior to the commission of the crimes did not affect the validity of the crimes.

The Tribunal held that because the German wars against Yugoslavia and Greece were in violation of the Kellogg-Briand Pact they were criminal. However, not every German act against person or property was a crime nor was every act taken against the occupying forces justified. International l aw makes no distinction between lawful and unlawful occupation of a territory, with regards to the respective duties of the occupant and the population of the territory. The rules of international law apply to war from whatever cause it originates.

However, the Tribunal noted that the criminality for the offences did hinge on whether the acts were committed in the context of an invasion (defined as a military operation) or an occupation (defined as the exercise of governmental authority to the exclusion of the established government).

Relying on Art. I HR, the Tribunal outlined that a militia or volunteer corps will be considered lawful belligerents if they: (a) are commanded by a responsible person; (b) possess distinctive insignia visible at a distance; (c) carry arms openly; and (d) observe the laws and customs of war. The Tribunal concluded that the actions of the resistance movements did not meet the international law/law of war requirements for ‘lawful belligerency’. Thus captured members of these groups were ‘francs-tireurs’ not entitled to POW status. These guerrilla fighters had the same status as spies under the laws of war. Spying is permitted during war, but a captured spy may be shot with impunity by the occupying forces.

The major issues in this case involved the claimed right of the German armed forces to take hostages from the civilian population to guarantee the peaceful conduct of the whole population, as well as its right to execute hostages, civilians and captured members of the resistance forces for armed attacks (excuses and justifications). The Tribunal noted that neither the 1907 HC IV nor other conventional laws comment on hostages in this manner. However, it held that rules of customary law and inferences which can be drawn from conventional law are applicable. The Tribunal concluded that it is acceptable to take hostages to ensure against unlawful acts by enemy forces or people. However, a reprisal may not exceed the degree of the criminal act it is designed to correct.

The Tribunal set out general principles applicable to hostage-taking and reprisals. An occupied populace has a duty to carry on peacefully with their lives, refraining from injurious acts toward the invading troops. The occupying state may take hostages as a last resort to ensure peace and order, but only after it has taken precautionary measures, such as: registration of inhabitants; use of passes or identification certificates; establishment of restricted areas; limitations of movement; adoption of curfew regulations; prohibition of assembly; detention of suspected subjects; restrictions on communication; restrictions on food supplies; evacuation of troublesome areas; levying of monetary contributions; compulsory labour to repair damage from sabotage; destruction of property in proximity to the place of the crime; and adoption of any other regulation not prohibited by international law that would likely contribute to the desired result. If despite these measures attacks continue and the perpetrators cannot be apprehended, hostages may be taken from the population to deter similar acts, provided it can be shown that the population generally is a party to the offence either actively or passively. There must be some connection between the population from whom the hostages are taken and the crime committed. The taking of hostages will only be lawful if proclamations are made publishing the names/addresses of the hostages and notice is given that with further attacks the hostages will be shot. The number of individuals shot must not exceed the severity of the impugned acts. If these requirements are not met, execution of hostages amounts to a war crime in violation of international law will have been committed.

Where an innocent individual is taken and punished for a violation of the laws of war which has already occurred, this is not a hostage situation; such a person is termed a ‘reprisal prisoner’. The Tribunal (p. 797) found that while international law does not prohibit this barbaric practice a fundamental rule of justice is that lives may not be taken arbitrarily without a fair trial is required. Thus, a hostage or reprisal prisoner may not be killed unless there has been a judicial finding that the necessary conditions exist and the necessary steps have been taken to ensure the validity of the execution. The only exception is if the nature of the acts being reacted to requires immediate reprisal action, and the efficacy of the reprisal would be defeated if judicial authorization had to be obtained first.

The defendants invoked the defence of military necessity. The Tribunal held that while ‘[m]ilitary necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money’, the doctrine does not sanction the killing of innocent inhabitants for purposes of revenge or a lust to kill, per Arts 46, 47 and 50 HR. The destruction of property could be covered by this defence, but only if there is a reasonable connection between the destruction and the overcoming of enemy forces.

While retreating from Finland the Germans engaged in much property damage including the destruction of communication lines, bridges and villages. While the evidence suggested there was no military necessity for these actions per HC IV Regulation 23(g), the Tribunal held that the accused Rendulic may have honestly believed that these actions were necessary, based on the conditions at the time. It held that Rendulic may have erred in judgment, but he could not be found guilty of wanton destruction of property.

The defendants claimed that they acted pursuant to superior orders as a means of justifying their actions. The Tribunal held that the rule that superior orders is not a defence to a criminal act—codified in CCL No. 10—which was sufficiently recognized in the domestic law of civilized nations at the time these acts were committed to be recognized as a principle of international law. The existence of superior orders may mitigate, but not justify, the crime. The Tribunal relied on Llandovery Castle (Dithmar and Boldt) (1921) to demonstrate that a subordinate can be liable for acts pursuant to a superior order, but only if he knew that obedience would infringe civil or military law. The subordinate will not be liable if he did not know, and could not be reasonably expected to know, about the illegality of the ordered act.

The Tribunal noted that it is the duty of the commanding officer in an occupied territory to maintain peace and order, and to protect lives and property. If a commander is absent while an event occurs, ignorance is not a defence if the acts were based on his policy, orders or directions, except under exceptional circumstances. If he was absent and the impugned actions occurred after another individual made a decision, then no liability will result unless he approved of that act upon his return. Subordinate commanders can also be liable for the acts of inferiors, to the extent that executive authority has been delegated to them.

Sentence and Conviction

List and seven others were found guilty. Their sentences ranged from seven years to life imprisonment. Two of the accused were acquitted

Major Legal Issues

This case is particularly interesting for its discussion of the taking and killing of hostages and the question of reprisals. According to the Tribunal, the taking and shooting of hostages in order to guarantee the future peaceful conduct of the populations of occupied territories may in certain circumstances be legal under international law. Strangely, the Tribunal made no reference to CCL No. 10 or the IMT Charter, both of which include the ‘killing of hostages’ in their definition of ‘war crimes’.

The Tribunal noted that one of the conditions under which hostages could be taken and killed was where the population generally was a party either actively or passively to the offences whose cessation is aimed at. The Tribunal did not define the nature of ‘active’ or ‘passive’ participation, but instead stated rather vaguely that ‘some connection’ must be shown ‘between the population from whom the hostages are taken and the crime committed’.

natasha bakht