Hostages Trial - Indictment

Indictment

The accused faced four charges of having committed war crimes and crimes against humanity:

1. Mass murder of hundreds of thousands of civilians in Greece, Albania, and Yugoslavia by having ordered hostage taking and reprisal killings.
2. Plundering and wanton destruction of villages and towns in Greece, Albania, Yugoslavia.
3. Murder and ill-treatment of prisoners of war, and arbitrarily designating combatants as "partisans", denying them the status of prisoners of war, as well as their killing.
4. Murder, torture, deportation, and sending to concentration camps of Greek, Albanian, and Yugoslav civilians.

All defendants were indicted on all counts; they all pleaded "not guilty".

The tribunal had to deal with two pressing questions:

1. Were partisans "lawful belligerents" and thus entitled the status of prisoners of war?
2. Was taking hostages and reprisals against civilians as a "defense" against guerrilla attacks lawful?

On the question of partisans, the tribunal concluded that under the then current laws of war (the Hague Convention No. IV from 1907), the partisan fighters in southeast Europe could not be considered lawful belligerents under Article 1 of said convention. On List, the tribunal stated

"We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans..."

Regarding hostage taking, the tribunal came to the conclusion that under certain circumstances, hostage taking and even reprisal killings might constitute an allowed line of action against guerilla attacks. In the tribunal's opinion, taking hostages (and killing them in retaliation for guerilla attacks) was subject to several conditions. The tribunal also remarked that both the British Manual of Military Law and the U.S. Basic Field Manual (Rules of Land Warfare) permitted the taking of reprisals against a civilian population. (The British manual did not mention killing, but the US manual included killing as a possible reprisal.) Nevertheless, the tribunal still found most of the accused guilty on count 1 of the indictment because it considered the acts committed by the German troops to be in excess of the rules under which the tribunal considered hostage taking and reprisal killings lawful.

One common line of defense of the accused was the Plea of Superior Orders: they stated that they were only following orders from higher up, in particular from Hitler and Field Marshal Keitel. The tribunal recognized this defense only for some of the lower-ranked defendants, but concluded that in particular the highest-ranking officers, List and Kuntze, should have been well aware of the fact that these orders violated international law and thus should have opposed the execution of these orders, even more so as they were in a position that would have allowed them to do so.