....; i\ ", -,' ",' '-,' ( 'J,I CO j ,IN"") I I /-. V ~) LAW REPORTS V·l OF TRIALS OF WAR CRIMINALS Selected and prepared by the UNITED NATIONS WAR CRIMES COMMISSION English Edition VOLUME I LONDON PUBLISHED FOR THE UNITED NATIONS WAR CRIMES COMMISSION BY HIS MAJESTY'S STATIONERY OFFICE 1947 Price 28, 6d, net LAW REPORTS OF TRIALS. OF WAR CRIMINALS Selected and prepared by the UNITED NATIONS WAR CRIMES COMMISSION Volume I LONDON: PUBLISHED :FOR THE UNITED NATIONS WAR CRIMES COMMISSION BY HIS MAJESTY'S STATIONERY OFFICE 1947 · I iii CONTENTS PAGE FOREWORD BY THE RT. HON. THE LORD WRIGHT OF DURLEY ix THE CASES; 1. THE PELEUS TRIAL A. OUTLINE OF THE PROCEEDINGS 1. THE COURT 1 2. THE CHARGE 2 3. THE OPENING OF THE CASE BY THE PROSECUTOR 2 4. EVIDENCE FOR THE PROSECUTION 3 5. OUTLINE OF THE DEFENCE 4 6. EVIDENCE BY THE ACCUSED HEINZ ECK, COMMANDER OF THE SUBMARINE 4 7. EXAMINATION OF THE DEFENCE WITNESS, CAPTAIN SCHNEE 6 8. EXAMINATION OF THE FOUR OTHER ACCUSED ... 7 9. CLOSING ADDRESS BY PROFESSOR WEGNER 7 10. THE CLOSING ADDRESSES OF TIm OTHER DEFENDING COUNSEL... 9 11. THE CLOSING ADDRESS BY THE PROSECUTOR ... 10 12. SUMMING UP BY THE JUDGE ADVOCATE 11 13. THE VERDICT .... 12 14. THE SENTENCE 13 B. NOTES ON THE CASE 1. QUESTIONS OF JURISDICTION AND PROCEDURE 13 2. QUESTIONS OF SUBSTANTIVE LAW (i) The Absence of Mens Rea ... 14 (ii) The Defence of Nulla Poena Sine Lege 15 (iii) The Defence of Operational Necessity 15 (iv) The Plea of Superior Orders (1) The reference to the" Caroline" case 16 (2) The British Manual of Military Law and the plea of superior orders 18 (3) The case of the" Llandovery Castle" 19 (v) The Problem of Classification of War Crimes 20 (vi) The Awarding of Punishment 20 2. THE DOSTLER TRIAL A. OUTLINE OF THE PROCEEDINGS 1. THE COURT 22 2. THE CHARGE AND SPECIFICATION 22 3. THE PLEA TO THE JURISDICTION OF THE MILITARY COMMISSION... 23 A2 iv CONTENTS PAGE A. OUTLINE OF lHE PROCEEDINGS-continued 4. THE CASE FOR mE PROSECUTION 25 5. THE EVIDENCE ·26 6. THE ARGUMENTS OF THE DEFENCE AND REPLIES MADE BY THE PROSECUTION (i) That the Deceased were not entitled to the Benefits of the Geneva Convention ... 26 (ii) The Plea of Superior Orders 27 7. THE VERDICT 29 8. THE SENTENCE 29 B. NOTES ON THE CASE 1. REGARDING mE PLEA TO THE JURISDICTION 29 2. REGARDING mE PLEA OF SUPERIOR ORDERS (i) The " Dover Castle " Case ... 31 (ij) The United States Basic Field Manual and the Plea of Superior Orders ... 31 (iii) The Application of the Fiihrerbefehl to the facts of the Dostler Case 33 APPENDIX The Text of the Fiihrerbefehl as produced in the Trial 33 3. THE ALMELO TRIAL A. OUTLINE OF THE PROCEEDINGS 1. THE COURT 35 2. THE CHARGE 35 3. THE CASE FOR THE PROSECUTION (i) The Prosecutor's Opening Speech 36 (ii) The Evidence for the Prosecution ... 37 4. THE CASE AND EVIDENCE FOR THE DEFENCE (i) Outline of the Defence 37 (ii) The Evidence of the Accused Georg Otto Sandrock 37 (iii) The Evidence by the other three accused... 38 (iv) The Defence witness, Kuckuk . 38 (v) The Closing Address for die Defence 38 5. THE CLOSING ADDRESS FOR THE PROSECUTION 39 6. THE SUMMING UP OF THE JUDGE ADVOCATE (i) The Charge concerning the killing of Pilot Officer Hood... 40 (ii) The Charge concerning the killing of Bote van der Wal 41 7. VERDICT AND SENTENCE ... 41 CONTENTS v PAGE B. NOTES ON THE CASE 1. QUESTIONS OF JURISDICTION 41 2. RULES OF PROCEDURE AND RULES OF EVIDENCE 42 3. QUESTIONS OF SUBSTANTIVE LAW (i) The Problem of Collective Responsibility 43 (ii) Espionage and War Treason 43 (iii) The Plea of Superior Orders 44 (iv) "Superior Force" ... 44 (v) The Absence of Mens Rea ... 45 4. THE HADAMAR TRIAL A. OUTLINE OF THE PROCEEDINGS 1. THE COURT 46 2. THE CHARGE 47 3. DIGEST OF THE EVIDENCE (i) The General Facts ... 47 (ii) The Accused Alfons Klein 48 (iii) The Accused Dr. Adolf Wahlmann 49 (iv) The Accused Ruoff and Willig 50 (v) The Accused Irmgard Huber 51 (vi) The AccusM Adolf Merkle 51 (vii) The Accused Philipp Blum 51 4. FINDINGS AND SENTENCES 51 B. NOTES ON THE CASE 1. QUESTIONS OF JURISDICTION (i) Jurisdiction of the Military Commission in United States Municipal Law 52 (ii) Jurisdiction of the Military Commission in International Law 52 2. QUESTIONS OF SUBSTANTIVE LAW (i) "Violations of International Law" 53 (ii) The Status of the Victims . 53 (iii) The Status of the Accused . 53 (iv) Alleged Legality under German Law 54 (v) The Plea of Superior Orders 54 (vi) Coercion and Necessity 54 5. THE SCUTTLED V-BOATS CASE A. OUTLINE OF THE PROCEEDINGS 1. THE COURT 55 2. THE CHARGE 55 VI CONTENTS P~GE A. OUTLINE OF THE PROCEEDiNGS-continued 3. THE OPENING OF THE CASE BY THE PROSECUTOR 56 4. EVIDENCE FOR THE PROSECUTION 57 5. THE CASE FOR THE DEFENCE ... 59 6. THE EVIDENCE OF THE DEFENCE WITNESSES ... 60 7. THE CLOSING ADDRESS OF THE DEFENDING COUNSEL 62 8. THE CLOSING ADDRESS BY THE PROSECUTOR 63 9. SUMMING UP BY THE JUDGE ADVOCATE 63 10. THE VERDICT AND SENTENCE '" 64 B. NOTES ON THE CASE 1. QUESTIONS OF JURISDICTION AND PROCEDURE (i) Composition of the Court ... 65 (ii) The Language of the Court 65 2. QUESTIONS OF SUBSTANTIVE LAW (i) The Criminality of Violating the Terms of Surrender (a) Capitulation and Armistices in International Law... 67 (b) Violation of the terms of Surrender viewed as War Crime 68 (c) The Instrument and Terms of Surrentler 69 (ii) The Mens Rea of the Accused 69 6. THE JALUIT ATOLL CASE A. OUTLINE OF THE PROCEEDINGS 1. THE COURT 71 2. THE CHARGE AND SPECIFICATION 72 3. THE ARGUMENTS USED BY THE PROSECUTION IN SUPPORT OF THE CHARGE AND SPECIFICATION 72 4. THE CASE FOR THE DEFENCE (i) The Plea to the Jurisdiction '" 73 (ii) The Defence of Superior Orders 74 5. THE ARGUMENTS OF THE PROSECUTION USED IN COUNTERING I THE PLEAS OF THE DEFENCE (i) Concerning the Jurisdiction of the Court ... 75 (ii) Concerning the Defence of Superior Orders 75 6. THE EVIDENCE 76 7. THE VERDICT 76 8. THE SENTENCE 76 CONTENTS vii PAGE B. NOTES ON THE CASE 1. CONCERNING THE PLEA TO THE JURISDICTION OF THE COMMISSION (i) The legal basis of the Commission 76 (ii) Ex post facto legislation 78 (iii) The legality of the rules applied in the trial 78 (iv) The venue of the trial 79 2. CONCERNING THE CHARGE AND SPECIFICATION 79 7. THE DREIERWALDE CASE A. OUTLINE OF THE PROCEEDINGS 1. THE COURT 81 2. THE CHARGE 81 3. THE CASE AND EVIDENCE FOR THE PROSECUTION 82 4. THE CASE AND EVIDENCE FOR THE DEFENCE ... 83 5. THE VERDICT 83 6. THE SENTENCE 83 B. 'NOTES ON THE CASE 1. QUESTIONS OF PROCEDURE (i) Application, in accordance with Section 128 of the Army Act, of Rules of Evidence followed in British Civil Courts 84 (ii) Exceptional Rules of Procedure permitted by the Royal Warrant 85 2. QUESTIONS OF SUBSTANTIVE LAW (i) Concerning the Choice of the Charge 85 (ii) Concerning the Legality of the Shooting of Prisoners while Attempting to Escape 86 (iii) Concerning the Sentence 87 8. THE ESSEN LYNCHING CASE A. OUTLINE OF THE PROCEEDINGS 1. THE COURT 88 2. THE CHARGE 88 3. THE CASE FOR THE PROSECUTION 89 4. THE EVIDENCE 90 5. THE VERDICT 90 6. THE SENTENCES 90 B. NOTES ON THE GASE 91 viii CONTENTS PAGE 9. THE ZYKLON B CASE A. OUTLINE OF THE PROCEEDINGS 1. THE COURT 93 . 2. THE CHARGE 93 3. THE CASE FOR THE PROSECUTION 94 4. THE EVIDENCE FOR THE PROSECUTION ... 95 5. THE OPENING STATEMENTS OF DEFENCE COUNSEL (i) Counsel for Tesch ... ... 96 (ii) Counsel for Weinbacher 96 (iii) Counsel for Drosihn... 97 6. THE EVIDENCE FOR THE DEFENCE (i) Dr. Tesch 97 (ii) Karl Weinbacher 97 (iii) Dr. Drosihn ... 98 (iv) The Remaining Defence Witnesses 98 7. THE CLOSING ADDRESSES OF THE DEFENCE COUNSEL (i) Counsel for Tesch ... 98 (ii) Counsel for Weinbacher 99 (iii) Counsel for Drosihn... 100 8. THE PROSECUTOR'S CLOSING ADDRESs ... 100 9. THE SUMMING UP OF THE JUDGE ADVOCATE ••• 101 10. THE VERDICT 102 11. THE SENTENCE 102 B. NOTES ON THE CASE 1. A QUESTION OF JURISDICTION: THE NATIONALTIY OF tHE VICTUMS 102 2. QUESTIONS OF SUBSTANTIVE LAW (i) The Crime Alleged ... 103 (ii) Civilians as War Criminals ... 103 ANNEX I.-BRITISH LAW CONCERNING TRIALS OF WAR CRIMINALS BY MILITARY COURTS 105 ANNEX n.-UNITED STATES LAW AND PRACTICE CONCERNING TRIALS OF WAR CRIMINALS BY MILITARY COMMISSIONS AND MILITARY GOVERNMENT COURTS III ix FOREWORD I have been asked to contribute a Foreword to the first volume of Law Reports on Trials of War Crimes which are being selected and prepared by the United Nations War Crimes Commission, of which I am Chairman. The Commission in producing and publishing these law reports is fulfilling the duty assigned to it. The Commission is primarily concerned with criminals who fall within the first category under the Moscow Declaration of October 30th, 1943. This category may generally be defined to be that embracing particular individuals who have committed offences against the laws of war and whose offences can be ascribed to a particular location. These are sometimes called " minor war criminals," but that is a misleading term because of the enormity and scope of the crimes committed, which really include all war crimes except those that were charged at the Nuremberg and Tokyo trials and are described as crimes which have no particular geographical location.