By Wilfried Heink-
Dr. Rudolf Aschenauer, a lawyer who was involved in the defense of German soldiers, in his book about partisans “Krieg ohne Grenzen” (War without borders, [Druffel-Verlag, Leoni am Starnberger See, 1982]), complains that the partisan issue was never properly addressed in all the trials he was involved in (p. 139). To make his case he submitted an affidavit to that effect to a court, a copy archived at the Institute für Zeitgeschichte IfZ (Institute for Contemporary History). I believe I found it, but was told by the Institute that they are unable to release a copy because persons involved are still alive. A copout, here is their standard, printed, reply:
“Einsicht darf nur für nachgewiesene wissenschaftliche Arbeiten und nur unter der Auflage gestattet werden daß bei einer Verwendung die Namen der beteiligten Personen im Zusammenhang mit den Unterlagen nicht mitgeteilt werden“.
(Access to the material is only permitted for scientific projects and only under the premise that names of persons involved will not be made public.)
What ‘persons involved’ would those be, and why would I publish their names? In any case, the affidavit seems to have disappeared. Before we go into detail about partisans, per Dr. Aschenauer, a little from the introduction of his book (p. 9). My translation is of the essential parts:
On May 24, 1956, during a conference hosted by the IfZ, Loius de Jong, a Dutch historian and journalist, in his address to the audience remarked that it is impossible to write a serious history of the partisan movement without access to the documents still buried in archives. For locked archives he mentions: “The American Office of Strategic Service, the British Political Warfare Executive and the Special Operations Executive.” Aschenauer writes that many more archives could be added, Russian archives especially.
Not much has changed since then: archives are still locked. Sorokina and a host of others complain about it.
As an aside, de Jong also talked about German trials and stated:
“In den deutschen Landen werden Prozesse mit dem Hintergrund der Jahre 1939-1945 geführt, ohne daß die Gerichte im Besitz ausreichender Unterlagen sind. Ohne Gesamtzusammenhänge zu überblicken, kann man sich kein sicheres Urteil erlauben“.
(In the German states trials are conducted based on the events of 1939-1945, and this even though the courts are not in possession of adequate documentation. But without the ability to put events in context it is not possible to be certain).
Defendants before German courts are still not allowed to present their case – to try and present anything in context is deemed by the judges an attempt to “minimize.” At the IMT, for instance, the defense was prevented from referring to the Versailles Treaty, the blueprint of WW II. Why not allow this? Because, and this has been mentioned before, the intent was and is to convict Germans.
Why are the documents on partisan activities still under lock and key? Dr. Aschenauer notes in the closing of his Introduction that the documents of Jewish institutions should also be made available: that without all of the documents we can only attempt to deal with the partisan subject. As for Jewish documentation, why are they not released? Jews did engage in partisan activities. Aschenauer devotes a chapter to “Juden im Widerstand” (Jews in the Resistance, pp.246-259), showing that whole Jewish partisan units existed.
About 500,000 Jews served in the Red Army: 25,000 to 30,000 as active partisans (Aleksandr Solzhenitsyn, Die Juden in der Sowjetunion, F.A. Herbig Verlagsbuchhandlung GmbH, München, 2003, pp.375/76). S. Schwarz also covers the Jewish partisan issue, quoting extensively from a book by Moshe Kaganovich, Der Idischer Ontayl in der Partizaner-Bevegung fun Sovet-Rusland (The Jewish role in the Soviet partisan movement, Central Historical Commission of the Partisan Federation PAKHAKH in Italy, Rome 1948; in: Soloman M. Schwarz, The Jews in the Soviet Union, Syracuse University Press, 1951, pp. 309 – 333). According to this, Jews even had their own Partisan Federation and bragged about their involvement after the war. All of it has disappeared, and only one copy of the Kaganovitch book available in Hebrew or Yiddish. Why? Because Jewish partisans just don’t fit into the newest version of “history,” in which Jews are depicted as innocent victims. Were Jews shot by the German armed forces and the EG? Of course, if they were caught participating in, or organizing, partisan activities, aiding and abetting them.
As regards organizing partisan warfare in the Soviet Union, we have this:
“To this (the attempts by the Germans to change the Russian railroads to European gauge. Wilf) were added the special Russian tactics and not least the activities of the partisans, who also worked in depth. Apart from experience in Yugoslavia (to be addressed in the next part. Wilf), the German forces had not, until then, come up against this kind of warfare. The Russians, on the other hand, had prepared it for years, had accumulated supplies of ammunition, arms, and food, installed radio stations, and trained their soldiers systematically in partisan tactics. When the regular army retreated the partisans immediately went to work. They laid mines and carried on espionage. They blew up bridges and seized transports. But they did not only wage ‘the little war’ with every modem expedient-the partisans were obviously operating on lines of high strategy. They concentrated on important centres and had their own bases in areas which they left in peace. They would let through quantities of ordinary trucks, but would suddenly strike when a car with high officers passed. And they shifted their activities from one district to another, according to the general strategic situation. They might keep quiet for weeks and then appear just before a German offensive or a Russian attack and try to inflict the greatest possible indirect damage on the German operations.” (A. Fredborg, Behind the Steel Wall, George G. Harrap & Co, In Association with B.U.E. Ltd., 1944, p.45, in Krieg ohne Grenzen, p. 129)
Arvid Fredborg, a Swedish journalist reporting for Svenska Dagbladet, was stationed in Berlin right up to May 31, 1943 informing us that: “A journalist in Berlin was no doubt in a better position than other foreigners to study war time conditions in Germany.” No doubt about it.
On p. 42 of the Fredborg book:
“In private, political circles (the officials in the Foreign Office and the Ministry of Propaganda) did not conceal their indignation that the Russians did not follow the rules of the game. Instead of giving in when encircled, they forced the Germans to continue the fight indefinitely. The Russians were fighting cunningly and against all international law, it was said. They were lacking chivalry and considered it their duty to kill the enemy regardless of when, where, and how. In addition to this they willfully scorched their own country. What this Russian mentality really signified would soon dawn on different quarters in Germany…”
It was this kind of warfare that Hitler warned his generals about, but their proud Prussian tradition prevented them from changing their tactics. They could not conceive of the possibility that the eastern campaign would not accord with the rules of war by the other side. The German high command was, however, aware of the training of partisans in the SU, as there were intelligence reports about partisan maneuvers taking place in the spring of 1941 (Krieg ohne Grenzen, p. 116). Also, partisan warfare was/is part of communist ideology, a weapon in their fight for world revolution and dominance (Ibid., p. 56).
The early partisan successes are evidence that preparations for illegal partisan warfare in the Soviet Union was made well in advance of June 22, 1941, the start of Barbarossa. Einsatzgruppen (EG), units of the Security Police in charge of maintaining order in the occupied territories were formed in September 1939, during the Polish campaign: further evidence that the EG were not special ‘Jew killing squads’ as claimed. And restoration of order in the occupied territories was not an option, as stated in the Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907:
MILITARY AUTHORITY OVER THE TERRITORY OF THE HOSTILE STATE
Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.
Art. 43. The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.“(http://www.icrc.org/ihl.nsf/full/195 )
To restore “public order and safety” in an occupied territory is no easy task under any conditions, but nearly impossible when faced with a well organized resistance as was the case in Poland from September 1939 on, and later in the Soviet Union. In addition to the above Hague Rules, here is what “The United States Rules of Warfare” states, in part:
“§ 12. Uprisings in occupied territories.
If the people of a country or any portion thereof, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection.
§ 348. Hostilities committed by individuals not of armed forces.
Persons who take up arms and commit hostilities without having complied with the conditions prescribed by the laws of war for recognition as belligerents are, when captured by the injured party, liable to punishment as war criminals.”
And “The British Manual of Military Law” provides this;
“§ 19. Peaceful inhabitants, on the other hand, may not be killed or wounded, nor as a rule taken prisoner, if, however, they make an attempt to commit hostile acts they are not entitled to the right of armed forces and are liable to execution as war criminals. (August von Knieriem, The Nuremberg Trials, Henry Regnery Company, Chicago, Illinois 1959, pp. 360-61)
It is of note that some of those rules were suspended during the Nuremberg proceedings:
“At a time suspiciously close to the preparation of the Nuremberg prosecutions, the English and American provisions quoted above were changed so that they came to correspond to those of CCL No. 10, as enacted in 1945, according to which, acting on the basis of superior order, rather than eliminating criminal responsibility, is to constitute only an extenuating circumstance (Art. II 4b). One can hardly doubt that this change was made for the sole purpose of making it impossible for the defense to refer to that Anglo-American view which had failed to conform to CCL No. 10. The change would not, however, undo the fact that until 1944—i.e., exactly at the time when the Nuremberg acts were committed—a different view had prevailed in both systems…As soon as the prosecutions of war criminals were over, the change of the English War Manual was repealed.” (Ibid, pp. 248-49)
The Americans also restored their rules after the Germans were found guilty, fearing that the Chinese and North Koreans would refer to the Nuremberg rulings during the Korean War and charge American and British POWs with committing war crimes (Franz W. Seidler, Das Recht in Siegerhand, Pour le Mérite – Verlag für Militärgeschichte, Selent 2007, pp. 27-28)
Now to those early partisan successes. In Polish archives (ministry of the interior) the reports by the EG from September 6 to October 5, 1939 are stored, detailing the efforts made by the Polish resistance to inflict damage (Krieg ohne Grenzen, pp. 170-191). Aschenauer describes how well the resistance was organized and also the formation of partisan units at the beginning of the war with Russia (pp. 192-201). As mentioned before, he devotes a whole chapter to “Jews in the Resistance” (pp. 246-256).
German HQ was aware of the partisan problem before the Russian campaign of June 22, 1941, but grossly underestimated its extent. They did not realize how well they were organized as a part of the regular Soviet armed forces. From July to September 1941, 122 partisan units were formed in one area of the Ukraine alone, comprising about 5,800 persons, as well as 750 more working as agitators. In another area, 437 units were formed, consisting of 7,200 fighters. The Komsomol, Soviet youth organization, added 7,000 fighters (Ibid, p. 144). A report by the military police of June 22 – September 16, 1941 stated that 467 rail bridges were blown up and rail lines destroyed at 250 locations. (Ibid, p. 136). Losses were immense from the start—impossible to achieve without advanced training and the supply of essentials, like explosives. Aschenauer provides many more examples, as do other authors, confirming what Arvid Fredborg wrote about Russia’s official preparations for partisan warfare. This is addressed in more detail in the next part.
The legal aspects.
On November 12, 1940, Vyacheslav Molotov, Soviet foreign minister, arrived in Berlin at the invitation of Hitler. He brought with him a list of Stalin’s demands, all of which were impossible for Hitler to fulfill. Stalin had hoped that the minutes of this meeting were destroyed, but just in case he had a special unit, “Group Ulbricht,” search for them when the Red Army conquered Berlin. Their efforts were in vain: the minutes did finally surface, but have been largely ignored by “historians”. (Ernst Topitsch, Stalins Krieg, Verlag Busse + Seewald GmbH, Herford 1993, pp.139ff; Werner Maser, Der Wortbruch, Copyright 1994 by Verlag Olzog, München/Landsberg 2001, pp. 232ff).
Even if Hitler had decided to go along with Stalin’s demands, there would have been no guarantee that further claims would not follow. Also, Stalin had acted arbitrarily before (Der Wortbruch, p. 244). Hitler realized that Stalin never intended to keep his word, – the elimination of Poland played into Stalin’s hands: he now had a border with Germany and was able to amass troops there – but this is not the subject under discussion here. So on December 5 Hitler issued “Weisung Nr. 21 Fall Barbarossa” (Directive No. 21, Case Barbarossa). This was not a plan for attack, just a contingency plan, informing his generals that a war with the SU might be in the offing.
The situation deteriorated as Stalin moved more and more troops to the border (Walter Post, Unternehmen Barbarossa, Verlag E.S. Mittler & Sohn GmbH Hamburg, 1995, pp. 354ff), therefore plans for a preventive strike were made. Waiting for Stalin to attack was too risky. Hitler was well aware of what to expect in a war with the Soviet Union: that the Red Army would not fight by international rules. He had intelligence reports about the Russian civil war as well as the Spanish civil war (Walter Post, Die verleumdete Armee, Pour le Mérite Verlag für Militärgeschichte, Selent 1999, p. 52; 66). Hitler tried to loosen the reigns a little, allowing the troops to confront the illegal warfare planned by the Russians. On May 13, 1941 he therefore issued the “Partisan Warfare and Barbarossa Jurisdiction Order.”
Here’s a little about that order:
“The defendants in the High Command Case were accused of having treated as partisans lawful combatants and peaceful civilians. In this context the so-called Barbarossa Jurisdiction Order becomes relevant. The background of this order is the following: Barbarossa was a term of camouflage for the operations against the U.S.S.R.; in the course of the preparations for these operations, Keitel, Chief of the High Command of the Armed Forces, upon direct instructions by Adolf Hitler, issued, on May 13, 1941, an “Order on Exercising Military Jurisdiction in the Area of Barbarossa and on Special Measures by the Troops” (Nuremberg Trials, p. 362).
The words “Partisan Warfare” have since disappeared from the heading: it is now considered Hitler’s order for German troops to kill with impunity. In reality it was no such thing. Here is part of that order:
“Treatment of Crimes committed by Enemy Civilians.
1. Until further order the military courts and the courts martial will not be competent for crimes committed by enemy civilians.
2. Franc-tireurs will be liquidated ruthlessly by the troops in combat or while fleeing.
3. All other attacks by enemy civilians against the Armed Forces, its members and auxiliaries will be suppressed on the spot by the troops with the most rigorous methods until the assailants are annihilated.
4. Where no such measures were taken or, where they could not be taken, persons suspected will be brought before an officer at once. This officer will decide whether or not they are to be shot. Against localities from which troops have been attacked in a deceitful or treacherous manner, collective coercive measures will be applied
immediately upon the order of an officer of the rank of at least battalion commander, if the circumstances do not permit the quick identification of the individual perpetrators.
5. It is strictly forbidden to keep suspected persons in custody in order to put them at the disposal of the courts after the reinstatement of judicial jurisdiction over the indigenous population” (Ibid.)
Point 6 – omitted by von Knieriem for some reason – states that military courts can be reinstated if agreed upon by all commanders and if the area is sufficiently pacified (Verleumdete Wehrmacht, p. 53).
The German high command was not at all in favor of this order, fearing a breakdown of discipline. Therefore Commander in Chief of the army, Field Marshal von Brauchitsch, augmented this order with the so-called “Discipline Order” on May 24. Some details:
“While the Führer’s Order, in the interest of an effective conquest of the enemy and a speedy pacification of the country, intended to loosen military discipline, the Brauchitsch Order insisted on the ruthless and unconditional maintenance of army discipline. As far as criminal acts of Soviet civilians were concerned, the Brauchitsch Order could not restore the jurisdiction of the military courts abolished by the Führer’s Order; but an attempt was made to keep punishment through the field commanders within reasonable and fair limits by restricting the Führer’s Order to “serious cases,” while lighter offenses were supposed to be punished with temporary measures which were, for all practical purposes, a circumvention of the Führer’s Order.
There can be no doubt that von Brauchitsch tried to limit the Führer’s Order to a reasonable scope without trying to sabotage it entirely. His order must have been meant in this way, and in this sense it was also understood by the field commanders, who unanimously testified to that effect.” (Nuremberg Trials, p. 364)
There is no mention at all about permission to kill with impunity, quite to the contrary. As to number 4 in the above order, here are some general comments about problems encountered when trying to determine guilt or innocence:
“Furthermore, when guilt is not proved, the reason for acquittal usually lies in the fact that it cannot be proved in any way permissible under the law. The only basis for punishment would thus be the subjective belief of the judge. The situation is different, however, when the circumstances have almost completely convinced the judge that his suspicion is well-founded, but those persons who could tell the truth cannot be induced to speak. In such a case the judge may indeed be convinced of the guilt of the suspect, even in spite of some lingering doubts. Everyone who has ever rendered a judgment on the basis of circumstantial evidence or has witnessed such a judgment knows that such ultimate doubts may remain even after the passing of a legally unquestionable sentence. Considering the well-known fallaciousness of proof, the lacking or defective memory of witnesses and their liability to be influenced by rumors, hearsay, or even their own imagination, not to speak of intentional prevarication, who can ever feel absolutely sure that he really knew exactly the true course of events? All legal systems are therefore satisfied either to leave such questions to a jury, who need not give reasons for their verdict, or to require no more than that the judge be convinced “beyond reasonable doubt.”…” (Ibid., p. 368)
And this is in reference to peacetime conditions, which are totally different from what field commanders were faced with.
Von Knieriem continues:
“Certainly the German officers by whom executions were ordered were not always fully convinced or even without reasonable doubt. But they had to act in situations requiring speedy decisions and in which they could be sure that they would never obtain a better basis for their judgment. This consideration should by itself suffice to exclude the mechanical application of the rule of in dubio pro reo, which was intended for normal situations. Moreover, the acts in question were of a kind impossible of occurrence on such a scale in normal situations. Partisan activity was of tremendous scope. According to the testimony of the Chief of the General Staff of the Army, the interruptions of railway traffic caused by partisans amounted to 1,200 to 1,600 a day. To these were added raids on shelters, vehicles, and small units; acts of sabotage directed against cables, bridges, broadcasting stations, and air-fields; acts of violence against the peaceful population—all in all, several thousand war crimes per day.” (Ibid.)
This was about trying to get partisans, and by extension actions of illegal combatants, under control. Enormous damage was done daily: German soldiers were killed, desperately needed supplies were destroyed, and thus commanders were under pressure to stop these illegal activities. But, the measures taken were mostly ineffective. The statistics prove it. From Behind the Steel Wall, by Fredborg, pp. 153-54:
“Another drawback was that the Germans had not been able to curb the partisans. These were slowing down all the movements of the Wehrmacht, hampering their supplies, and so forth. From Leningrad to the Caucasus came the same story of the increasing numbers of partisans, of their growing impudence, and, last but not least, of how the partisan warfare was moving westward.
By this time the partisans were appearing on a large scale in the Ukraine, where they, in 1941, had not yet been operating in great numbers. In the Generalgouvernement they were slowly advancing westward, and even from Wartheland reports arrived indicating that the Poles there had indulged in partisan activities. In the Baltic States the Germans had to reckon with the partisans…
Even the smaller partisan groups were in communication by radio with the regular Russian troops. If their position threatened to become untenable Russian planes, summoned by radio, intervened in the fighting.
All reports were unanimous in pointing out that the German troops had not found a remedy against the partisans. In daytime they were Russian workers in German service, and by night they were soldiers. To try to separate the sheep from the goats was considered impracticable, especially as the goats were so numerous.
In addition to these unfavourable factors, the superior winter tactics of the Russians should be particularly stressed.”
A now a few stats concerning reprisals:
“How successful these measures were is indicated by the entries in an Atlas of Operations of the Army Group North. The entry dated November 9, 1941, states that up to that date, 1,767 partisans were killed fighting, 1,213 were summarily executed, and 5,667 persons were arrested as suspected partisans; of these, 648 were executed. The number of 5,019 suspects released from arrest shows that suspected persons were not at all simply shot, and it is probable that as to the remaining 648, the suspicion had been proved to be justified. The figure of 1,213 partisans summarily executed also shows how relatively insignificant the German countermeasures were in comparison with the scope of partisan activities mentioned above. The 1,213 partisans shot during a period of 120 days, conservatively estimated, means 10 executions a day. That means that, on the average, one partisan was shot approximately every third day in the area of each of the divisions of the Army Group North.” (Nuremberg Trials, p. 370)
As partisan activity increased, reprisal measures increased: more partisans meant more executions. This was never taken into consideration at the IMT: partisans were ignored and reprisal measures deemed illegal; soldiers and officers performing their duties were branded as criminals. An elusive definition of “international law” was used to convict, but this ought not to have been applied since those convicted could never have been aware of this “law.” No specific, written international law even exists, only agreements between states which are impossible for individuals to be aware of.
There is another issue here: A law is not only put in place to punish, but also to protect.
“Therefore, the result remains the same: International law is not in a position to protect individuals, wherever they may be, against a domestic law which is illegal from the point of view of international law. According to general legal principles, it therefore cannot expect the individuals to expose themselves to such a risk. For the individual, always and everywhere, national law precedes international law. He has to obey the national law even where it compels him to violate international law.”(Ibid., p. 47)
Only lex loci — the law of the land — applies. The tribunal of the I.G. Farben case (No. VI) makes this clear:
“We cannot say that a private citizen shall be placed in the position of being compelled to determine in the heat of war whether his government is right or wrong, or, if it starts right, when it turns wrong. We would not re-quire the citizen, at the risk of becoming a criminal under the rules of international justice, to decide that his country has become an aggressor and that he must lay aside his patriotism, the loyalty to his homeland, and the defense of his own fireside at the risk of being adjudged guilty of crimes…or of becoming a traitor to his country…if he makes an erroneous decision based upon facts of which he has but vague knowledge. To require this of him would be to assign to him a task of decision which the leading statesmen of the world and the learned men of international law have been unable to perform in their search for a precise definition of aggression.”(Ibid., p. 508; source: Engl. Rec. pp. 15706 f)
A surprising admission, but correct nevertheless. Therefore, for a person to commit an illegal act, he/she has to be aware that it is illegal—must be conscious of the fact that what he/she is about to do is illegal. A little more detail:
“For if international law only addresses itself to states and only regulates their mutual relations, it cannot contain genuine criminal law. According to the legal opinion of all civilized states, only individuals are criminally responsible; thus, there cannot be a criminal responsibility of states. But as international law does not address itself to individual human beings, it cannot prescribe their punishment. For an act can only be punished by a law, if the same law had forbidden the act. If, however, international law does not address itself to individuals, it cannot contain prohibitions for individuals; and if it does not contain prohibitions for individuals, it cannot contain provisions for their punishment.”(Ibid., p. 47)
One more issue that was never considered at the IMT: “only individuals are criminally responsible.” To punish individuals their guilt must be proven and it must be shown that they acted in violation of an existing law, a law they were obliged to uphold, thereby making them aware that they acted illegally.
As for “Consciousness of Doing Wrong” (Ibid, pp. 217ff):
“Fortunately, we can leave aside the so-called problems of the will, which are extremely complicated; as, for example, that of the so-called dolus eventualis (conditional intent). We can limit ourselves to the problem of determining what the actor had to know in order to be punishable. What knowledge means in this context is clear: The actor must have known the circumstances which render his act punishable…This so-called knowledge of the circumstances of the act is not irrelevant to our discussion, in the course of which we shall encounter cases in which the knowledge, or rather lack of knowledge, of certain circumstances should have been considered. Even more significant, however, is the question of whether or not the actor, in order to be charged with intent, must have known that his act was unlawful in the sense of its constituting a wrong. This problem is generally designated as that of the “consciousness of unlawfulness” or of doing wrong, and can be expressed in the following terms: Can the guilty intent be imputed to an actor who was not conscious of doing wrong? As the act must first be unlawful for the problem of the actor’s guilt to be raised at all, the question may also be expressed in the following way: Can anybody be punished for being guilty of intent if he was mistaken about the lawfulness of his act? This is why the problem of the consciousness of doing wrong is generally designated as that of error of law or, since unlawfulness means that the act is prohibited, as the “error of prohibition.” Irrespective of the manner in which the question is formulated, its meaning is always the same; it refers to the determination of the extent, if any, to which the actor was conscious of doing wrong.”(Ibid, pp. 218/19)
The author, von Knieriem, goes into detail about this issue, too much to address here. At the end of the chapter he sums it up as such:
“The actor is not punished, however, if he considered his act lawful and could reasonably consider it so under the circumstances…But from the welter of contradictory cases and opinions we have obtained at least a negative definition of the concept of guilty mind, which must be correct if the concept of guilty mind is to have any meaning at all: No criminal responsibility exists where the actor considered his act permitted and could reasonably do so under the circumstances.
For Nuremberg this would mean: If the German or any other continental legal System had been applied, it would have been necessary to prove for every defendant either that he was conscious of doing wrong or, under certain circumstances, that he was blameworthy for not having had such consciousness. It does not appear to be fully clear how far such proof would have been required if American law had been applied. But so much is sure: According to American law, too, sentence could not be passed on a defendant who proved that he was conscious of acting in accordance with the law and that he could reasonably have such consciousness under the circumstances. Practically speaking, the difference between the two legal Systems seems hardly significant. In continental law, too, the problem of consciousness of doing wrong is hardly ever relevant unless it is specifically raised. In the great majority of cases the problem is taken up neither by the court, nor by the defendant, the defense counsel, or the prosecutor. But even where it is brought up it usually turns out to be irrelevant, because as a matter of evidence, German law, too, proceeds from the conviction that for a normal person the consciousness of doing wrong can be assumed. Generally it is therefore incumbent upon the defense to prove that consciousness of doing wrong was lacking in the particular case, and success is unlikely unless there is presented some really good reasons for the defendant’s lack of that consciousness. In itself the difference thus has by no means the significance that one might be inclined to ascribe to it on the basis of the great difference of theoretical conceptions. In Nuremberg it would therefore not have made much of a difference which national law was applied. Even though one would have tried to do the impossible and apply international law, punishment would have been inadmissible where there was no guilty mind—i.e., where the actor was not conscious; of doing wrong…. It must be emphasized again that the problem of consciousness of doing wrong could only become relevant if the act in question was unlawful under the German law of the time. Not unless the act was unlawful in that sense could it be at all significant whether or not the actor believed that his act was justified by necessity of war or as retaliation or that it was permitted under the law of war in consequence of a change in international norms. Even if the opinion that German law is of ultimate significance were erroneously rejected and if some foreign law or even the nonexistent international criminal law were applied without regard to punishability under German law, it would be necessary to examine whether the actor considered his act permitted because he believed in some ground excluding unlawfulness. To the grounds of exclusion of consciousness of doing wrong we should add, however, the actor’s knowledge or reasonable belief that his act was justified under German law, because at the time the acts were committed none of the persons who were later accused could foresee that he would ever be judged by any other law.” (Ibid., pp. 230ff)
Nothing needs to be added. The partisans were real and their actions illegal; thus reprisals by Germans were legal. Condemning Germans for acting illegally and punishing them under a nonexistent law, while concurrently ignoring the partisans was a miscarriage of justice. But the Nuremberg proceedings were never about administering justice. They were conceived simply to punish Germans.
“Doctor August von Knieriem deserves special attention. For many years…General Counsel of Germany’s largest business enterprise, the Interessen-Gemeinschaft Farben Indistrie, Aktiengesellschaft, more generally known as I.G.Farben. Obviously none but a lawyer of outstanding attainment could could obtain a position of such prominence and responsibility. Exactly by virtue of this office, Doctor von Knieriem found himself in the less enviable position of being charged with war crimes. In one of those twelve trials which were conducted in Nuremberg before military tribunals…Doctor von Knieriem was accused of having participated in the planning, preparation and waging of wars of aggression…He was found innocent of all charges and acquitted. His book has grown out of this personal experience”. (From the Preface to the American Edition, by Max Rheinstein, p.ix [The Nuremberg Trials]).
To be continued…