I've read the following piece tonight on the legality of reprisals in war-time; the hypocrisy of the Allied powers on this issue was just astounding.


b) Post-1944 Break With Traditional Principles

But after 1944 this tradition was overthrown. The first step was taken by the American scholar Glueck,[121] who suggested that since the application of the non-liability clause contained in the British and American regulations would in many cases prevent the conviction of war criminals, it was necessary to pass a new and realistic regulation.

Similarly, the English author Lauterpacht changed his views.[122] Consequently, the majority of the Allied nations adjusted their principles regarding actions based on orders.[123] This is how the American Rules (Article 347) and the British Manual of Military Law (§443) came to be revised, giving rise to special laws - such as Article 3 of the French Ordonnance of August 28, 1944,[124] the Danish bill of July 12, 1946, §5 of the Norwegian law governing the punishment of war criminals, §13 of the June 19, 1945, Decree of the Czech President, and the Belgian law of June 26, 1947.[125] The new and retroactive regulations of all these laws corresponded with the London Agreement of August 8, 1945, in introducing the criminal liability of the subordinate following orders, and reduced the circumstance of higher orders to no more than a mitigating factor whose precise extent would depend on the court.

These are the Special Laws under which the trials of the German, Italian and Japanese so-called war criminals were conducted. Because these laws were one-sided, they could not form a new international law. Italy in particular did not join in this creation of special laws, and retained its prior regulations.

c) Post-1949 Restoration of the Original Principles

In those countries that had rescinded the tradition by which a commanding officer's orders exempted a subordinate from punishment, a return to the earlier principles was soon demanded. For example, in its verdict of June 29, 1951, against Lippert and others,[126] the Belgian court-martial in Lüttich rejected the criminal liability of the accused because these had acted under orders. The Brussels court-martial came to a similar decision on March 9, 1951, in its verdict against General von Falkenhausen.[127]

In the oath of allegiance demanded of its soldiers, the Russian armed forces exact a vow of unconditional obedience.[128] Further, the English Generals Montgomery and Robertson, the American General Clay and Admiral Blandy have stated clearly that a soldier must obey orders unquestioningly.[129] Thus, a French Captain who had acted on higher orders and had 10 foreign internees executed (in violation of international law) was acquitted; on the other hand, some Dutch soldiers were convicted because they had refused to carry out an unlawful order to burn down an Indonesian village.[130]

According to a newspaper report,[131] J. E. Edmonds, one of the two authors of the British Manual of Military Law, stated that the 1944 revision of the Manual had been made without consulting or even notifying the author; the other author, Oppenheim, had already passed away at the time. Therefore, conversely, the information provided by Lord Hankey of the British House of Lords is not really surprising: namely, now that England has no so-called war criminals left to convict, the revision of 1944 has quietly disappeared from reprints of the Manual of Military Law, leaving only the old text of 1929, which does provide for the exemption of liability in the presence of higher orders.[132]

In light of these circumstances we cannot agree with the view expressed in the American verdict in the Nuremberg SouthEast Trial,[133] that the civilized nations had increasingly espoused the principle that higher orders could not be claimed as defense against criminal acts. This court's opinion has already failed due to the military necessities of post-war times. Its implementation would have undermined all military authority. And this is why the latest (7th, 1952) edition of the well-known Manual by Oppenheim-Lauterpacht contains the following section:[134]

"Given a reference to higher orders for purposes of justifying a war crime, a court must unquestionably consider that obedience to any not blatantly illegal order is the duty of every member of the armed forces, and that under the conditions of war-time discipline one cannot expect a subordinate to carefully weigh the legal basis of the orders he receives. It must also be considered that the norms regarding the conduct of war are often controversial, and that an act intended to serve as reprisal, though it might at other times constitute a war crime, can be carried out in obedience to orders."
These conditions in and of themselves already suffice to rid the disputed action [Kappler's and Priebke's involvement in reprisal shootings, E.G.] from the stigma of a war crime.

As a result, the Nuremberg court's attempts to revise the general principles failed. Therefore, under international law, orders issued by a responsible superior on principle preclude criminal liability on the part of the subordinate obeying the orders; the superior giving the orders is criminally liable for their implementation.
This restoration of the previous legal position must also be considered with respect to those war crimes for which sentence has already been passed - and reflected in a pardon, if necessary.


[The case of the so-called Einsatzgruppen]

German newspapers rarely carry articles about reprisals threatened or implemented by the western Allies at or after the end of the war. However, the Stuttgarter Zeitung, for example, reported that the French had threatened reprisal executions at a ratio of 1:25 even in the event that shots would be taken at their soldiers at all, regardless of the actual outcome.[147] On April 4, 1992, the Paderborner Zeitung reported an incident where the Americans had taken harsh revenge for the death of their General Maurice Rose, who had been shot in regular combat: 110 German men not involved in the event were killed.[148] Probably there are a great many more such examples, where harsh reprisals or unlawful acts of revenge were inflicted on the German population. We know very little today about conditions prevailing from 1945 to 1947, especially in West Germany, since these actions on the part of the victors were never prosecuted. The Germans were forbidden to prosecute because of a law that is still in effect today, and the victors, naturally enough, had no particular interest in such prosecution.[149] The fact that East and Central Germany saw some dreadful excesses is somewhat more fully documented, on the other hand, since this was in the interests of the anti-Communist western powers.

In light of the facts as established by Professor Siegert, reprisals and the execution of hostages will be considered to be tactically questionable and perhaps morally reprehensible, but strictly speaking these acts were not unlawful at the time they took place. This also should be ever kept in mind when the topic at issue is the reactions of German troops in Russia and Serbia, i.e., in vast regions where a weak occupation power had to battle brutal partisans in order to facilitate the oft-disrupted flow of supplies to the eastern front. Partisan attacks began immediately following the start of the eastern war; certain partisan units deliberately let themselves be overrun, in order then to engage in sabotage behind the advancing German troops and to commit horrific atrocities against soldiers and civilians they caught unaware. Later on, partisan units as large as entire divisions were flown into the hinterland of the German troops, or smuggled in through the lines.[150]

Naturally, the data to be found in the subject literature about the numbers of partisans and the damage they caused vary widely, since there are few reliable documents about this kind of unlawful warfare and since the Soviet Union also always had a strong propagandistic interest in the historiography of partisan warfare. The most reliable data seems to be that provided by Bernd Bonwetsch,[151] who gives the numbers of partisans as follows: late 1941: 90,000; early 1942: 80,000; mid-1942: 150,000; spring 1943: 280,000; by 1944, skyrocketing to approximately half a million. These figures are based both on Soviet and on contemporaneous Reich-German sources. The damage done by the partisans, especially in the area of Byelorussia, is considerably more difficult to quantify. Wilenchik tells of impressive quantities of weapons and ammunition that were allegedly at the partisans' disposal, as well as of extensive crippling of the German supply lines through paralysis of railway lines, especially in 1944.[152] In general terms, this is confirmed by Werner.[153]

Regarding the numbers of German soldiers and civilians killed by partisans, Bonwetsch contrasts the claims from Soviet sources - up to 1.5 million - with those from the German side: 35,000 to 45,000,[154] which he considers to be more reliable, since allegedly the German sources would have had no reason to minimize the figures. However, he overlooks the fact that it is generally customary in war to downplay one's own losses. Seidler[155] recently published a balanced up-to-date study about the Wehrmacht's struggle in the partisan warfare, showing not only the disastrous and probably decisive effects of the partisan's attacks against German units and especially their supplies, but he proves also that most of the German reactions were totally covered by international law - although not always most far-sighted. Furthermore, he shows that those orders from higher up which broke international laws (e.g., the infamous "Kommissar order", which might be considered morally appropriate, but politically stupid and judicially untenable) were in most cases sabotaged by the front units, and that these orders, after long-lasting and massive protest, were eventually revoked.

In a book critically discussed by the renowned German historians Andreas Hillgruber and Hans-Adolf Jacobsen, Boris Semionovich Telpuchowsky writes:

"Within three years of the war, the Byelorussian partisans eliminated approximately 500,000 German soldiers and officers, 47 Generals, blew up 17,000 enemy military transports and 32 armored trains, destroyed 300,000 railway tracks, 16,804 vehicles and a great number of other material supplies of all kinds."[156]

The data also diverge greatly regarding the personnel (and concomitant costs) involved in the Germans' efforts to maintain security behind the frontlines: 300,000 to 600,000 persons were needed according to Soviet sources, vs. roughly 190,000 according to German sources.[154]

To what degree these data were inflated in order to glorify the partisans is not known, but there is no doubt that the policy of scorched earth[157] practiced by the Red Army in their retreat in 1941-42, together with the acts of sabotage and murder by the partisans, were the major contributing factors in the defeat of the German army in the East. The brutality with which the Red Army and especially the partisans fought, right from the start of the war and on orders from the highest echelons, was described vividly by J. Hoffmann,[158] for example, and again recently by A.E. Epifanow[159] and Franz W. Seidler[160]; A.M. de Zayas, in his study of the Wehrmacht War Crimes Bureau, also confirmed and corroborated much of the material which the Reich government had already collected even in those days to document the atrocities committed by not only the Red Army.[161] De Zayas also reports that the German wartime leaders did not resort to reprisals as a standard matter of course, but rather for the most part after carefully weighing the pros and cons. Especially in Russia, however, this could not prevent the fact that lower-ranking units, acting on the basis of their own experiences with the Soviet manner of warfare, engaged in reprisals (and revenge) not ordered or approved by higher ranks.[162]

As we know today, the German Wehrmacht deployed in the East fought not only for the survival of the Third Reich, but after they abandoned all illusions of imperialism, they also fought for the freedom of all of Europe from Stalinism,[163] and therefore, in light of Prof. Siegert's findings, we must observe that there was nothing unlawful and very little immoral about the merciless battle of the German security forces against unlawful Soviet partisans, even if that battle did involve draconic reprisals. If the official Soviet information about the numbers of German soldiers and/or their allies killed by partisans should be accurate, then it must be noted that reprisal killings of several millions of people (ratio 1:10) would have been theoretically justified. But even the numbers given by German authorities (some 40,000 victims) could have resulted theoretically in reprisal killings of about 400,000 civilians. It goes without saying that such numbers are horrific, and we can just be thankful that reprisal killings are forbidden nowadays and hope that the law will be observed. We must, however, ask whether such killings actually took place in those days.
The so-called Einsatzgruppen of the Security Police and the SD (Security Service) were among others the units in charge of combating the partisans.[164] They started with not more than 4,000 men in summer 1941, but at the end of 1942 up to 15,000 Germans and 240,000 natives were involved,[165] an increase of manpower which indicates very well the parallel increase of partisan warfare at that time. Considering their relatively unsuccessful efforts at curbing partisan activity, we must note that these initially numerically weak troops were obviously entirely overwhelmed by their task of policing the enormous region (many hundred thousands of square kilometers), which they were in charge of and whose more remote areas were increasingly under the control of partisans.[166] Thus it appears a bit ridiculous when H. Höhne states:[167]

"Heydrich's Death envoys started their cruel adventure: 3,000 men were hunting Russia's five million Jews."

Höhne omits to say that at the same time these troops were fighting against some 100,000 partisans. The allegations made against these troops today - namely, that, aside from their hopeless battle against the partisans, they also cooperated with many Wehrmacht soldiers to kill several million Jews as part of the Final Solution - beg the comment that, as Gerald Reitlinger says, this is absolutely unbelievable;[168] further, we would agree with Hans-Heinrich Wilhelm that the figures given in the various documents are probably entirely unreliable.[169] This holds true for at least as long as no serious efforts are made to locate the mass graves of the alleged victims, and as long as the criticisms presented in this volume regarding the cases of Babi Yar,[170] Marijampol[171] and the gas vans[172] are not accorded any serious discussion.[173]
Aside from all this, I consider it possible and even likely that German units in the hinterland shot countless civilians in the course of the so-called "gang battles", and primarily in the form of reprisal killings.[174] Obviously, in selecting the victims of such reprisals, one would not choose Ukrainians, Byelorussians or members of the Balkan, Baltic or Caucasian peoples, of whom considerable numbers fought in German units. The fact that the Jews were predominantly unpopular amongst these peoples was mainly due to fairly recent causes. In the previous decades many people had had terrible experiences with Communist commissars, disproportionately many of whom were of Jewish descent, especially in the first few decades of Soviet Bolshevism.[175] The Russian Jewess Sonja Margolina has made some interesting points regarding the involvement of the Russian Jews in the Bolshevist reign of terror:[176]

"Nevertheless: the horrors of revolution and civil war, just like those of the repressions later, are closely tied to the image of the Jewish commissar." (p. 47)

"The Jewish presence in the instruments of power was so impressive that even such an unbiased contemporaneous researcher as Boris Paramonov, a Russian cultural historian living in New York, asked whether the promotion of the Jews into leadership positions may perhaps have been a 'gigantic provocation'." (p. 48)

Margolina has written a particularly detailed analysis of a book which appeared in 1924 under the title Rußland und die Juden. This book examines the causes of the Russian Jews' conspicuously above-average participation in the excesses of the October Revolution and the dictatorship that followed it, and analyzed the consequences of this involvement. In their appeal "To the Jews in all nations!" the authors of this book discussed by Margolina wrote:

"'The Jewish Bolsheviki's overeager participation in the subjugation and destruction of Russia is a sin that already bears within itself the seeds of its retribution. For what greater misfortune could happen to a people than to have its own sons engage in excesses. Not only will this be counted against us as an element of our guilt, it will also be held up to us as reproach for an expression of our power, for a striving for Jewish hegemony. Soviet power is equated with Jewish power, and the grim hatred of the Bolsheviki will transform into a hatred of the Jews [...] All nations and peoples will be swamped by waves of Judeophobia. Never before have such thunderclouds gathered above the heads of the Jewish people. This is the bottom line of the Russian upheaval for us, for the Jewish people.'" (p. 58)

Margolina quotes further from this anthology:

"'The Russians have never before seen a Jew in power, neither as governor nor as policeman, nor as postal official. There were both good and bad times in those days too, but the Russian people lived and worked and the fruits of their labors were their own. The Russian name was mighty and threatening. Today the Jews are at every corner and in all levels of power. The Russians see them at the head of the Czarist city, Moscow, and at the head of the metropolis on the River Neva and at the head of the Red Army, the ultimate mechanism of self-destruction. [...] The Russians are now faced with a Jew as judge as well as executioner; they encounter Jews at every step, not Communists who are just as poor as they themselves but who nevertheless give orders and take care of the interests of the Soviet power [...] It is not surprising that the Russians, in comparing the past to the present, conclude that the present power is Jewish, and so bestial precisely because of that.'" (p. 60)

In the early 1990s, Professor Dr. Ernst Nolte also pointed out the Jews' intimate entanglement in Communism, though naturally he rejects equating the Jews with Bolshevism. Nolte writes:[177]

"For readily apparent social reasons, was not the percentage of persons of Jewish extraction particularly great among the participants in the Russian Revolution, different from the percentages of other minorities such as the Latvians? Even at the start of this century Jewish philosophers were still pointing with great pride to this extensive participation of the Jews in Socialist movements. After 1917, when the anti-Bolshevist movement - or propaganda - stressed the topic of the Jewish People's commissars above all others, this pride was no longer expressed, [...] But it took Auschwitz to turn this topic into a taboo for several decades.

It is all the more remarkable that in 1988 the publication Commentary, the voice of right-wing Jews in America, published an article by Jerry Z. Muller who recalls these indisputable facts - though of course they are open to interpretation:

'If Jews were highly visible in the revolution in Russia and Germany, in Hungary they seemed omnipresent. [...] Of the government's 49 commissars, 31 were of Jewish origin [...] Rakosi later joked that Garbai (a gentile) was chosen for his post 'so that there would be someone who could sign the death sentences on Saturdays'. [...] But the conspicuous role of Jews in the revolution of 1917-19 gave anti-Semitism (which 'seemed on the wane by 1914') a whole new impetus. [...] Historians who have focussed on the utopian ideals espoused by revolutionary Jews have diverted attention from the fact that these Communists of Jewish origin, no less than their non-Jewish counterparts, were led by their ideals to take part in heinous crimes - against Jews and non-Jews alike.'"

Referring to the causal nexus Nolte had postulated between GULag and Auschwitz, Muller concludes:

"The Trotskies make the revolutions [i.e., the GULag] and the Bronsteins pay the bills [in the Holocaust]."[178]

Thus it seems understandable that National Socialism, and the eastern peoples fighting alongside for their freedom, equated the Jews in general with the Bolshevist terror and the activities of the commissars - though such an identification, being sweeping and collective, was unjust. Nevertheless, it is therefore more than plausible that it was Jews, first and foremost, who were made to pay for the partisan warfare and other war crimes of the Soviets. Anyone who (rightly) criticizes this, however, should also not omit to consider where the blame for this kind of escalation of the war in the East was to be found. And clearly it was to be found with Stalin who, as an aside, had treated the Jews in his sphere of influence at least as mercilessly ever since the war had begun, as Hitler had.[179]

Germar Rudolf