Re von Lewinski (called von Manstein)

Date19 Diciembre 1949
Docket NumberCase No. 192
CourtObsolete Court (Germany)
British Military Court at Hamburg (Germany).
Case No. 192
In re von Lewinski (called von Manstein).

Belligerent Forces — Membership of — Status of Irregular Forces — Guerrilla Warfare — Execution of Francs-Tireurs Without Trail.

Rules of War — Binding Force of — Military Necessity and the Hague Regulations — Wanton Devastation of Property in Occupied Territory by Occupying Belligerent during Forced Retreat.

Hostages and Reprisals — Killing of Hostages — War Crimes as Reprisals.

War Crimes — killing of Hostages.

War — War Crimes — Authors of — Responsibility of Military Commander and of Chief-of-Staff for Crimes Committed with in the Area of Command.

War Crimes — Punishment of — Pleas of Act of State and Superior Orders.

Prisoners of War — Treatment of — Execution Without Trail of Russian Prisoners of War — Employment of Prisoners of War in Dangerous or Prohibited Work.

Belligerent Occupation — Killing, Ill-treatment and Deportation of Civilian Inhabitants — Employment of Inhabitants in Prohibited Work — Prisoners of War — Execution without Trial — Employment of Prisoners of War in Dangerous or Prohibited Work — Belligerent Status of Irregular Forces — Guerrilla Warfare — Execution of Francs-Tireurs without Trial — Killing of Hostages — War Crimes as Reprisals — Wanton Destruction and Devastation of Property in Occupied Territory by Occupying Belligerent during Forced Retreat — Legal Responsibility of Military Commander and of Chief-of-Staff for War Crimes committed within the Area of Command — Military Necessity and the Hague Regulations — Pleas of Act of State and Superior Orders.

The Facts.—The accused, a high-ranking officer in the German army, was, at the outbreak of the Second World War, Chief-of-Staff to General von Rundstedt who commanded the German army in its invasion of Poland. In 1941 the accused was appointed Commander-in-Chief of the 11th Army (Army Group South) which, until August 1942, was engaged in operations in the Ukraine and Crimea, and was then transferred to the area of Leningrad. In October 1942 the 11th Army was transferred to central Russia, and became subordinate to the German High Command. In November 1942 the accused became Commander-in-Chief of Army Group Don, and in February 1943 of Army Group South. On March 31, 1944, he was removed from the command and was not employed again. He was now charged with responsibility for, or participation in, acts involving,1inter alia: (1) the execution, extermination and ill-treatment of civilian inhabitants of occupied eastern territories and of Russian prisoners of war; (2) the treatment of Russian prisoners of war as partisans, guerrillas and irregular combatants, and their execution without trial; (3) the compulsory employment of Russian prisoners of war in dangerous and prohibited work including the construction of military quarters, fortifications, field works and entrenchments within the theatre of operations, in the clearing of minefields, and the employment of prisoners as guides through the minefields; (4) the carrying out of orders for the summary execution of Russian prisoners of war who were political commissars; (5) the compulsory employment of civilian inhabitants of Russian occupied territory on the construction of military fortifications, entrenchments, field railways and roads to be used by German

forces, and the deportation of large numbers of the population for forced labour outside Russia; (6) the mass deportation and evacuation of civilian inhabitants, the seizure of cattle and foodstuffs, and the wanton destruction and devastation of public and private buildings and other objects of economic value, in the course of a forced retreat from occupied territory

The accused pleaded:1 (1) that the Court had no jurisdiction to try him seeing that he was a prisoner of war and was therefore entitled, under Article 63 of the Geneva (Prisoners of War) Convention of 1929, to demand trial by a court martial;2 (2) that the tendency since the Second World War to regard the rules of warfare as analogous to the common law of England in so far as those rules might be formulated and developed by case law, was a false concept, and that the laws and usages of war grow out of the practice and experience of warfare itself and are not the product of the decisions of courts of law; (3) that the so-called laws of war are in effect merely usages arising from military practice; that war is not a legal but a political act; that the usages of war cease to be binding whenever they interfere with the effective prosecution of the war; and that the decision as to when military necessity will justify the disregard of those usages must be left to the discretion of the military commander concerned; (4) that there is no limitation upon the duty of a general officer in the armed forces to obey implicitly the orders of his Government with regard to actions to be carried out against a foreign State or its citizens and that, in the present case, the question as to whether or not a particular order involved a violation of international law was no concern of the accused, since such an order constituted an act of State;3 (5) that there is no rule of international law which provides that a franc-tireur when taken prisoner must not be punished without previous trial; (6) that the laws and usages of war laid down in the Hague Regulations must, as a matter of military necessity, be considerably modified, if not suspended, as a result of the comprehensiveness of the total war waged by the belligerents, the implications of which were not generally foreseen when the Regulations were formulated; (7) that, in any event, the Hague Regulations did not apply to the hostilities between Germany and Russia seeing that the latter State did not recognize the binding force of the rules of international law with regard to the conduct of warfare; that the exhortations which Stalin had addressed to the Russian civilian population to engage in guerrilla warfare against the occupying

German forces and to resist the latter by all the means within their power clearly indicated an intention not to be bound by the Hague Regulations; that Russia did not intend to observe those provisions of the Hague Regulations which related to the protection of private property in occupied territory and to the respect which the occupying belligerent should pay to the laws in force in such territory since they were considered to be incompatible with the political society which Russia had evolved and which she was determined to extend; that “Soviet theorists accept as an axiom consent as the sole basis of the validity of international law … nor will the Soviet jurist accept any legal theory which sees the force of international obligation in universally valid natural law or any concept approximating to it such as ‘natural law with variable content’, or the collective sense of right. Such ideas have for many years been under official ban, mainly on the ground that they represent the thinly veiled instrument of capitalist expansionism.”1

As it is not the practice for a British Military Court to deliver a reasoned judgment, the following passages are taken from the summing-up of the Judge Advocate:2

(1) Military Necessity and the Hague Regulations.—“The second matter of general application to which I propose to refer at this stage is the question of military necessity. It was submitted by Counsel for the Defence that the Hague Conventions

did not apply. In the first place it was submitted that Bulgaria, Yugoslavia and Italy were not parties to the Convention and that by Article 2, referred to as the non-participation clause, the Convention was applicable only where all belligerents are parties. But apart from this, it was submitted that the principles underlying the Convention must be adjusted to the necessities of war. The proposition may be summarized thus: The purpose of war is the overpowering of the enemy. The achievement of this purpose justifies any means, including, in case of necessity, the violation of the laws of war, if such violation will afford either the means to escape from imminent danger or the overpowering of the opponent. This theory, as Professor Oppenheim points out, is based on the old German principle dating far back in the history of war when war was regulated not by law at all but by usages. The principle was that necessity in war overrides the manner of warfare. Such a principle can have no application to the laws of war. If it had, they would, ipso facto, cease to be laws. Once the usages of war have assumed the status of laws they cannot be overriden by necessity, except in those special cases where the law itself makes provision for that eventuality. Reference to the preamble to the 4th Hague Convention makes this abundantly clear. It states that according to the views of the high contracting parties, these provisions, the drafting of which has been inspired by the desire to diminish the evils of war so far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants. In other words, the rules themselves have already made allowance for military necessity. Military necessity has already been taken into consideration in the framing of these laws

“If further proof of this proposition were required, it is provided by Article 23 (g) of the Regulations. Article 23 (g) states: ‘In addition to the prohibitions provided by Special Conventions, it is particularly forbidden’—and then follow a number of sub-paragraphs, paragraph (g) reads: ‘To destroy or seize enemy property, unless such destruction or seizure be imperatively demanded by the necessities of war’. If the necessities of war were an overriding consideration to be taken into account in regard to all the Articles of the Convention, obviously it would be quite unnecessary to make a special provision to that effect in...

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