The United States of America v. Wilhelm List, et al., commonly known as the Hostages Trial, was the seventh of the twelve "Subsequent Nuremberg trials" for war crimes and crimes against humanity after the end of World War II between 1947 and 1948. The accused were 12 Wehrmacht generals of the Balkan Campaign charged with ordering the hostage-taking of civilians, wanton shootings of these hostages, the reprisal killings of civilians, and the execution without trial of captured "partisans" (both real and suspected) perpetrated by German troops in occupied Greece, Albania and Yugoslavia. Defendant Lothar Rendulic was further charged for using scorched earth in Finland during the Lapland War in 1944.
The Hostages Trial was held by United States authorities at the Palace of Justice in Nuremberg in the American occupation zone before US military courts, not before the International Military Tribunal. Two were found guilty of 3 counts, four of 2 counts, and two of 1 count, receiving prison sentences ranging from seven years to life imprisonment, and four were acquitted of all charges. Franz Böhme committed suicide before the arraignment, and Maximilian von Weichs was severed from the trial for medical reasons.
The judges in this case, heard before Military Tribunal V, were Charles F. Wennerstrum (presiding judge) from Iowa, George J. Burke from Michigan, and Edward F. Carter from Nebraska. The Chief of Counsel for the Prosecution was Telford Taylor, the chief prosecutor for this case was Theodore Fenstermacher. The indictment was filed on May 10, 1947; the trial lasted from July 8, 1947, until February 19, 1948.
Contents
Case
Nazi Germany launched an invasion of Yugoslavia in April 1941, establishing the German Military Occupation zone in Serbia, propping up the Independent State of Croatia as a puppet state, and dividing the remainder of Yugoslavia to be annexed by neighbouring Axis countries. The Wehrmacht occupation force and their collaborators faced resistance from the various anti-German partisan organisations. German commanders responded to partisan attacks with extremely harsh reprisal attacks against civilians. One of the tactics used was taking groups of civilians as hostages, who would then be summarily executed in the event of a partisan attack.
Lothar Rendulic was additionally charged for his use of scorched earth tactics in Finnish Lapland during the Lapland War in the winter of 1944. Rendulic was accused of ordering the destruction of Rovaniemi, allegedly as revenge against Finland for making a separate peace with the Soviet Union.
Indictment
The accused faced four charges of having committed war crimes and crimes against humanity:
Mass murder of hundreds of thousands of civilians in Greece, Albania, and Yugoslavia by having ordered hostage taking and reprisal killings.
Plundering and wanton destruction of villages and towns in Norway, Greece, Albania, Yugoslavia.
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.
Murder, torture, deportation, and sending to concentration camps of Greek, Albanian, and Yugoslav civilians.
All defendants were indicted on all counts and all pleaded "not guilty".
Judges
The judges were all from the Midwestern United States and represented a more conservative perspective on the Nuremberg trial proceedings from that taken by the East Coast judges who had presided over earlier trials in the series. In particular the judges were inclined to treat the prosecution case with considerable suspicion. The judges ruled that captured partisan or guerrilla resistance fighters could never expect to be given the protected status of prisoners of war, and could lawfully be executed without trial. Furthermore, the judges departed explicitly from the Nuremberg Principles established in the International Military Tribunal, in ruling that the killing of hostages and reprisal killings of innocent individual civilians might be lawful if undertaken by an occupying power as a response to resistance forces engaging in partisan warfare, albeit subject to stringent constraints. Following the judgement, Justice Charles F. Wennerstrum gave an interview to the Chicago Tribune in which he accused the prosecution of failing "to maintain objectivity aloof from vindictiveness, [and] aloof from personal ambitions for convictions" and dismissed the whole Nuremberg exercise as "victor’s justice". He proposed that many of the German Jewish emigrants employed in the prosecution office were of suspect loyalty to the United States; "The whole atmosphere here is unwholesome.... Lawyers, clerks, interpreters and researchers are employed who became Americans only in recent years; whose backgrounds were embedded in Europe's hatreds and prejudices."
Defendants
I — Indicted G — Indicted and found guilty
Verdict
The tribunal had to deal with two pressing questions:
Could partisans be "lawful belligerents" and thus entitled the protected status of prisoners of war; and was that status dependent on whether they fought in uniform or wearing distinctive military insignia?
Could taking (and potentially killing) civilian hostages, and retrospective reprisals against civilians, be lawful as a "defense" against guerrilla attacks and partisan warfare?
On the question of partisans, the tribunal concluded that under the 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 the convention even though most had worn distinctive military insignia in combat (a Red Star sewn onto a uniform cap) and many had fought in military uniform of one form or another, as most fought as guerrillas and as such could not consistently conform to all the conditions of belligerency laid down in the Hague Regulations for regular forces. Irregular forces who engaged in guerrilla warfare - even if they did so in uniform and carried their arms openly in combat - could not be lawful combatants if they subsequently concealed their weapons, resumed everyday clothing, and mingled with non-combatant civilians. For the tribunal, all forms of civilian armed resistance to occupation forces were unlawful, and consequently captured partisans who had hidden within or behind civilian populations could lawfully be executed as war criminals without formal trial.
German soldiers were the victims of surprise attacks by an enemy which they could not engage in open combat. After a surprise attack, the bands would hastily retreat or conceal their arms and mingle with the
population with the appearance of being harmless members thereof." ... guerrillas may render great service to their country and, in the event of success, become heroes even, still they remain war criminals in the eyes of the enemy and may be treated as such. In no other way can an army guard and protect itself from the gadfly tactics of such armed resistance."
On List, the tribunal stated:
Clarification of military occupation
The Tribunal considered the question of whether the Independent State of Croatia was a sovereign entity capable of acting independently of the German military, with Germany recognising the Croatian government on 15 April 1941. It concluded that Croatia was not and that military occupation depended not on the physical deployment of troops, as they could be redeployed into the territory at will, but on the control exercised by the occupying power. It followed that as the area remained under the control of the occupying power therefore "Logic and reason dictate that the occupant could not lawfully do indirectly that which it could not do directly".