* * *

In early 1944 the Allies landed in Italy, a few miles south of Rome. In order to keep the immense cultural treasures of Rome safe from harm, the German Field Marshal Kesselring declared Rome an "open city", i.e., a battle-free zone. This made Rome the hotbed of all kinds of partisan groups and foreign secret service activities. Since Italy was at that time engaged in a sort of civil war (not all Italians agreed with the ousting of Mussolini and the betrayal of Germany), the situation in Rome, only a few miles behind the battle front, was explosive. These were the conditions under which Obersturmbannführer [Lieutenant Colonel] Herbert Kappler of the Security Police was charged with keeping peace and order in the city, a task at which he was indeed largely successful.

On March 23, 1944, however, something happened. On this day, as on many other days before, the police regiment "Bozen", which was comprised almost entirely of South Tyroleans, marched through the Via Rasella. As the regiment passed by a street-sweeper's cart, an enormous explosive charge in the cart, mixed with iron shrapnel, blew up. 32 of the German policemen were killed instantly, another 10 died later of their injuries. 60 policemen were badly wounded.

To prevent an escalation of the partisan warfare in Rome, the Wehrmacht Supreme Command reacted to this assassination (which had violated international law) by posting placards announcing that if the perpetrators did not turn themselves in, 10 civilians would be shot for every policeman that had been killed. Kappler even released captured partisans with the order to inform the assassins in the underground of this announcement and to persuade them to surrender. When no one had given themselves up by March 24, 335 persons were executed in the Ardeatine Caves near Rome; Kappler had assembled this group mostly of prisoners, and of criminals, saboteurs, spies and partisans who had already previously been sentenced to death.

After the war, Kappler was sentenced to lifetime imprisonment for this act, but his subordinates were acquitted.[1] However, some left-wing lobbyists and the public prosecutor also wanted to imprison, for life, one Captain Erich Priebke, who had belonged to Kappler's unit and had participated in the execution. The Argentinean government had extradited him to Italy in 1996. The Italian military court acquitted Priebke on August 2, 1996, on the grounds that the limitation period had expired. At this announcement an irate lynch mob gathered outside the court,[2] so that the judges ordered Priebke taken into custody again, and decided in early February 1997 that he would have to be retried before a military court.[3] This court eventually decided, on July 22, 1997, that Priebke would have to go to prison for five years.[4] Meanwhile, those partisans who had been responsible for the explosives attack and who are still living today are also being investigated, on charges of murder, even though it is rather unlikely that they will be tried.[5]

In discussions of the Priebke case, the point at issue is not so much the details of the case per se as first and foremost the legitimacy of executions of hostages or of reprisals against civilians by a military occupation power. In this context, Dr. jur. Karl Siegert, Professor at the University of Göttingen, drew up a legal expert report shortly after the end of the war, pertaining to the trial conducted at that time in Italy against Herbert Kappler.[6] Since this expert report is of extraordinary importance, we shall reproduce it in the following - leaving out, for reasons of space, the discussions of legitimate requisitions.[7] The report is followed by several other examples as well as supplemental explanations pertaining to partisan warfare during the last war, and the German reaction to them.

* * *

Reprisals were not regulated by the Hague Land Warfare Convention of October 18, 1907.[8] They received first mention in Article 2 Section 3 of the Geneva Agreement of September 27, 1929, about the treatment of prisoners of war. This Agreement prohibited reprisals against prisoners of war. A general prohibition of reprisals against civilians was not issued until August 12, 1949, by the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.[9] Its Article 33 decrees:

Article 34 supplements this with the order that taking hostages is also prohibited. In the time of the Second World War, therefore, there was a gap in the conventions for the treatment of civilians.

Requisitions are discussed in Article 52 of the Hague Land Warfare Convention of October 18, 1907. In this context, however, developments have since gone beyond the framework of the Convention [...].[7]

There are no international legal agreements concerning orders from higher up and their effect on the legitimacy or indictability of the actions of soldiers carrying out a reprisal or requisition, unless we accept the decrees of the victorious Allies in the London Agreement of August 8, 1945, as international law.

Under these circumstances we must go beyond the framework of the Convention.

The regulations of international law follow from three sources:

1. International treaties
2. International customs as expressions of a general practice that is acknowledged as legal regulation
3. General principles of law

In international and national practice as well as in international jurisprudence these three sources have increasingly found recognition. First and foremost we would mention Article 38 of the Statute of the International Court of Justice. We would also mention the American Nuremberg verdicts in Cases VII and XI, and refer to the Italians Pallieri, Cavaglieri and Francesco Rocco, the Frenchman Cavaré, the Austrian author Verdroß, the Dane Alf Ross, the Germans Wilhelm Sauer, Ernst Sauer, Drost, Schütze, Schwarzenberger, and others.[10] Some authors, such as Anzilotti, Hyde, Guggenheim and Sibert, recognize only two judicial sources of international law, namely treaties and common law.[11] The third source - the general principles of law - is also needed, however, to supplement the treaties and common law.[12]

With the aid of these three judicial sources, we can achieve a reconciliation between the older Continental system characterized by the closed, logical structure of its principles (main advocate, Anzilotti), and the Anglo-American system of jurisprudence guided by practical examples (case law).[13] In this way it is also possible to systematically consider and solve even newer problems of international law which were not yet known to the authors of the older agreements.

This goes first and foremost for the application of the Hague Land Warfare Convention of 1907. At the time of its inception there were as yet only few automobiles, neither armored vehicles nor airplanes, neither carpet-bombing nor nuclear weapons, and also no "total war" where civilians are both actively and passively enlisted for participation. In this context, the problem of partisan warfare has attained a significance that could be in no way foreseen in 1907. As well, the inhabitants of occupied zones, even if they have not actively taken up arms, are subjected to the effects of war in a completely different way than was the case in earlier wars. The Belgian court-martial in Lüttich has stated that certain regulations of the Hague Land Warfare Convention are entirely outdated.[14] In his study of the development of the law governing occupation in wartime from 1863 to 1914, the American author Graber[15] wrote in 1949 that it is necessary to examine whether the regulations issued between 1863 and 1914 do in fact still represent the fundamental principles of international law as these pertain to wartime occupation, or whether it is necessary to work out an entirely new law incorporating the new aspects of war-time occupation in present times.

According to the American verdict in Case V, it is necessary to examine the actions of the accused in relation to the circumstances and conditions of their surroundings:[16]

The aforementioned American verdict in Case VII (SouthEast Trial) speaks of the fundamental principles of justice which most nations have adopted.[17] But justice is not the only thing to evolve and change. Views and judgments about facts of recent history are also subject to change based on the discovery of new historical sources. The view of history that prevailed in 1945 no longer agrees with today's.

The best example of this is the 1940 war in Norway. The Nuremberg trial of the chief war criminals dealt with the Norwegian campaign as a case of German aggression.[18] Later publications, however, showed that long before the German plans were made, an attack on Norway's neutrality was being prepared in England, under the direction of the then Minister of Defense, Churchill.[19] On February 5, 1940, the Allied Supreme Council of War decided to deploy three or four divisions to Narvik, in northern Norway.[20] In the night of April 7-8, 1940, British and French naval forces placed mines in Norwegian territorial waters.[21] Thus, the British and French governments prepared and partially implemented an attack on Norway and its neutral status before the Germans ever did. Consequently, the view of history expressed by the International Military Tribunal in Nuremberg with respect to the case of Norway was wrong. We must ask that both sides be judged according to the same standards.

One can even go a step further and apply the so-called principle of tu quoque to suspend an aspect of international law if the opposing side also violates it. The International Military Tribunal applied this principle in favor of Admiral Dönitz with respect to his conduct of unrestricted submarine warfare when the American Admiral Nimitz testified that his forces had also engaged in unrestricted submarine warfare in the Pacific.[22] The American verdict in Case XII (trial of the Wehrmacht Supreme Command) stated that Germans may not be punished for an act for which Americans, British, French or Russians would not also be prosecuted or convicted.[23] Unfortunately this principle was not applied with anything near the desirable degree of consistency.

The principle of tu quoque is dangerous because it can lead to a disintegration of the fundamentals of international law, whereas what we need to do is to build up and consolidate a system of international law. If, however, two warring parties consistently disregard a judicial norm, the evolution and development of the law must be reviewed in the context of this desuetude.[24] Such a case represents a modification of common law.

a) Confusion of Concepts

The preceding general comments were necessary in order to create a solid foundation for understanding before we enter the maze of reprisal law. The late criminologist Franz Exner stated at the International Military Tribunal in Nuremberg that there is only one aspect of reprisal law about which there is absolute certainty, namely, that reprisals against prisoners of war are inadmissible, and that everything else is contested and by no means valid international law.[25] Even the definition of the various concepts is often unclear. In particular, the concepts of collective punishment, hostages, retaliation and reprisal are frequently confused. However, they are clearly distinct.

Collective punishment avenges a concrete individual act by punishing a group of persons who bear a share of the responsibility for the act. If such shared responsibility is not given, then under Article 50 of the Hague Land Warfare Convention of 1907 collective punishment is prohibited.[26]

The term retaliation is also frequently used. This refers to the reaction to a breach of international law with a similar countermeasure.[27]

Concerning the concept of reprisals, Oppenheim-Lauterpacht's definition has been most widely accepted.[28] According to this definition, a wartime reprisal is the case if one warring party retaliates against another by means which are otherwise unlawful acts of warfare, and with which he wants to force his opponent, his opponent's branches and the members of the opposing armed forces to give up their illegal acts of war and to return to the principles of lawful warfare.

This definition shows better than most others[29] that a reprisal is not retrospective punishment or revenge for past injury.[30] Rather, a violation of international law by the opposing side is its prerequisite, and its purpose is to force this opposing side to restrict itself to internationally lawful behavior in future.[31] Reprisals differ from collective punishment in that they are directed against members of an enemy nation with no regard for their personal guilt, whereas collective punishment has such guilt as its particular requirement.[32] This difference is often overlooked. The American verdict in Case IX,[33] for example, speaks first of "reprisals" and then of "general penalty" in the sense of Article 50 of the Hague Land Warfare Convention. In this way the verdict comes to false conclusions with regard to "reprisals".[34]

Another difference between reprisals and collective punishment is that the former tries to achieve a specific mode of behavior on the part of the enemy,[35] whereas collective punishment finds its justification and its legal grounds strictly within the crime that was committed. In this way, one could perhaps draw a parallel between collective punishment and a court sentence, vs. reprisals and measures taken by the police.

Reprisals differ from self-defense in that they have as their prerequisite an act that was committed in violation of international law, while self-defense has no such prerequisite. The two concepts are similar in that both aim to prevent future violations of the law.

If a reprisal interferes with the freedom or the lives of individuals, it overlaps with the concept of hostage-taking. We shall leave out of consideration the so-called contractual hostages, which may be taken as part of an international agreement in order to ensure its implementation, as well as hostages that were taken to enforce requisitions, contributions, etc.[36] Security hostages, however - forcibly taken guarantors for the lawful behavior of the opposing party[37] - do come within our present scope. These hostages are liable with their life, and if their side engages in unlawful actions, they become the victims of reprisals. But if persons are not taken prisoner for reprisal purposes until AFTER an act has been committed, then it is no longer appropriate to speak of hostages.[38] They are then reprisal prisoners.[39]

In the subject literature, discussions about the permissibility of the execution of hostages always focus on the question of whether killing is a permissible form of reprisal. In this respect, the issue of the execution of hostages is identical to that of lawful reprisals.[40]

Let us investigate whether reprisals and the killing of security hostages were permissible up to 1949. Since customs and common law are very important in this context, let us first take a look at how reprisals were applied in practice.

The American verdict in the SouthEast Trial (Case VII) assumed[41] that the Germans had been the first to kill reprisal prisoners and security hostages. This is easily disproved.

Let us look first at the time preceding the start of the First World War.

As early as July 30, 1863, the American President Lincoln threatened to execute prisoners of war in retaliation against the killing of Negroes; General Sherman ordered the execution of 54 prisoners of war as reprisal for the murder of 27 of his soldiers, whose bodies had been found bearing the notice "Death to the plunderers".

During the Russo-Turkish War of 1877, the Russian Commander of Thessaly ordered that the inhabitants of houses from which shots had been fired at Russian soldiers be hung from their house doors.[42]

Considerable numbers of hostages were also taken during the wars of the 19th century, for example in the Italian wars of 1848/49 and 1859, in the Crimean War and in the German wars of 1864 and 1866, by the French in Algiers, by the Russians in the Caucasus, by the English in their colonial wars,[43] and in the Franco-Prussian War of 1870/71 as well.[44] In the latter case, as well as in the Boer War, hostages were taken predominantly to ensure safe conduct for railway trains.[45]

In the First World War, set customs became established regarding the taking of hostages, as well as their execution, since the Germans, the Russians and the French (in Alsace) all took non-participants as security hostages.[46] Hyde tells of the execution of hostages by the Bulgarians.[47] According to Hackworth, the French government in 1918 suggested retaliation against an Austrian breach of international law; this retaliation was to involve the reprisal execution of two Austrian officers (prisoners of war) for each French airman that was killed.[48]

After the First World War this practice was commonly retained and perpetuated. In December 1918, for example, the Belgian Commanders of occupied cities in the Rhineland ordered the taking of hostages whose lives were to guarantee the safety of the occupation troops.[49] In 1919, the Romanian General Madarescu demanded 500 hostages, of which he threatened to shoot 5 for each Romanian killed.[50] In Beuthen, Upper Silesia, the French took more than 20 reprisal prisoners in retaliation against the shooting death of one Major.[51] Further, during the invasion of the Ruhr region in 1923, French Commanders imposed severe prison sentences on German persons in retaliation for acts of sabotage committed against the invaders by the populace.[52] Security hostages were also taken there on railway trains serving the French and Belgian regime.[53] During the political upheavals in Ireland in 1919-1921, the British troops carried out numerous reprisal killings.[54] And we should also mention that the French active service order of 1924 instructs that, when occupying enemy territory, "prendre des ôtages".[55]

In the Second World War, the practice of taking and killing hostages was continued by all parties involved. The fact that it occurred frequently on the German side may be partially explained by the great extent of the enemy territory occupied by fairly weak military forces, but also by the fanatical resistance of the population of these occupied regions, who paid no heed to the relevant regulations of the Hague Land Warfare Convention of 1907.

Since the attitude of the civilians towards the German soldiers was more positive in Italy than in the other European countries, few executions of hostages and reprisal prisoners took place there, apart from the special incident of the "Fosse Ardeatine" (March 24, 1944).

Between 1941 and 1944 executions were especially numerous in the Balkans, where partisan activities were particularly widespread. In this respect, the Chief of the Wehrmacht Supreme Command issued an order on September 16, 1941, which named the vengeance death of 50 to 100 Communists per German soldier as generally appropriate ratio.[56] On the basis of this order, an attack of bandits at Topola (resulting in 22 dead and 16 missing on the German side) was followed by the order to execute 2,200 prisoners; 449 were in fact executed.[57] There were also numerous other instances of hostage killing, but the ratio of 1:100 was never applied.

The war in Russia also led to reprisals. Paget,[58] for example, reports that 50 hostages were shot in Simferopol in the Crimea, after executions at a ratio of 1:100 had been threatened as vengeance against bomb explosions where Germans were killed.

In the Belgian trial of General von Falkenhausen, the conditions in Belgium and northern France were discussed in detail. In particular, an extensive collection of documents was presented, which Behling has supplemented with a chronological table of the executions.[59]

This was a case of numerous attacks by partisans. Reprisal executions followed in each case; the ratio of victims of the attacks to hostages executed varied from 1:5 to 1:25. Generally, 10 Belgians or French were shot per German killed.[60] The number depended on the circumstances of each particular case, for example on the severity of the attack.

In one case, after a German soldier was murdered in Haarlem, Holland, the execution of 100 prisoners was ordered; 10 were actually shot.[61]

There is no need to go into details here, since the German side always took pains to establish the permissibility of reprisals and reprisal killings. Examples from the opposing sides, on the other hand, are more impressive. The aforementioned collection of documents from the Falkenhausen Trial contains extensive materials on this topic.[62] We shall just mention the following example.

After the capture of Bengasi, Montgomery stated that he believed that numerous mines and traps had been set in the city. For every British soldier that was killed, he would have 10 Italians shot.[63] A November 30, 1944, radio message from the Allied headquarters in Paris stated:[64]

According to Falkenhausen Document 58a, 6 officers and 34 soldiers were executed at Annecy (Haute Savoie), and another 40 Germans at Habère, as reprisal for atrocities allegedly committed by a Russian battalion.

On April 24, 1945, in Reutlingen, Württemberg, four reprisal prisoners were shot by the French for the murder of a French soldier.[65] On April 28, 1945, the following announcement was made in Leutkirchen:[66]

In Markdorf, 4 German civilians were executed per 1 French soldier shot.[67]

In Saulgau it was proclaimed on April 27, 1945, that if a French soldier were killed or even only wounded, 20 hostages would be shot and the corresponding city district would be burned to the ground.[68]

The Berlin Ordinance of July 1, 1945,[69] stated, inter alia:

Falkenhausen Document 74 tells of the execution of 8-12 Germans for one officer killed during the American march-in in Treseburg.

Further threats of reprisal killings were proven in the SouthEast Trial in Nuremberg in Case VII;[70] examples include a ratio of 1:25 in Stuttgart, 1:10 in Birkenfeld, 1:30 in Markdorf, and an American threat of 1:200 in Harz. Hoppe[71] mentions further that the Americans took French officials hostage in 1941 in Syria; as well, the Russians took Persian officers hostage in 1949 in Azerbaijan. Further, the French took and killed hostages in Indochina.[72] Sonnenburg[73] reports that the French shot 80 prisoners of war in Fort Mont Lucon in 1944, as well as 20 hostages in Saigon in May 1951.

According to the publication Der Heimkehrer,[74] French officers and soldiers returning from Indochina stated that they could not understand what was happening at that time, 71/2 years after the war, to the former members of the German occupation forces. They pointed out that incidents like Oradour take place in Indochina on a weekly basis, and must take place, in fact, for the sake of the protection of the French troops there.

From the way in which reprisals were used we can conclude that they were applied as a form of lawful justice. Therefore, for the time prior to Geneva Convention of August 12, 1949, and in the context of our previous findings (cf. p. 530), the permissibility of reprisals per se - disregarding for the moment the individual circumstances and prerequisites, and the legal consequences - may be considered to have been an international custom expressing a general practice acknowledged as lawful.

At times this common law has been disputed in the subject literature. However, the overwhelming number of examples from the first half of the 20^th century proves the fundamental permissibility of reprisal measures during the Second World War. It was not until the Geneva Convention of August 12, 1949, that this state of affairs was changed, but of course only for the time following, not retroactively for the past.

The earlier international agreements do not oppose the development of common law regarding the use of reprisals. In particular, Article 50 of the Hague Land Warfare Convention dealt only with collective punishment, but not with reprisals and not with hostage-taking.[75]

We would point out that in Italy, both Article 8 of the Martial Law of July 8, 1938, and Article 176 of the Codice Penale Militare di Guerra acknowledge the permissibility of reprisals. Article 358d of the American Rules of Land Warfare of 1940[76] also permits reprisals, including the killing of reprisal prisoners.

In its Articles 452-464, the British Manual of Military Law[32] fundamentally permits reprisals. Only in its Article 461 does it forbid the killing of contractual hostages. This does not prohibit the killing of reprisal prisoners. And in the Kesselring trial, which dealt mostly with the permissibility of the execution of reprisal prisoners, the Judge Advocate General stated on May 3, 1947:[77]

Thus, British law also permits the execution of reprisal prisoners.[78] In Germany there was no Martial Law and no special Manual; but the permissibility of reprisal killings has been much discussed in German and Swiss literature, and affirmed without exception.[79] The American verdict in the SouthEast Trial (Case VII) stressed[80] that many nations, including the USA, Great Britain, France and the Soviet Union, have acknowledged the lawfulness of the execution of hostages. Incidentally, other academic literature is also predominantly in favor of viewing reprisals, including reprisal killings, as permissible.[81] Only a minority has rejected them, and called them a war crime;[82] however, these minority voices have lost their weight by the fact that soldiers from their own nations have themselves applied reprisals as common law. Their rejective view can thus be accorded value only in the context of efforts to abolish this common law.[83]

The acknowledgement of reprisal killing as common law has provided a basis for further analysis. From what has been said so far, we can also draw conclusions as to individual prerequisites as well as regarding the degree of the reprisals (to be discussed in Section e).

Where prerequisites are concerned, Exner's view[84] that there is nothing about this issue that is not disputed would seem to be accurate. However, there is much that can be eliminated from this dispute if we remember the difference between collective punishment and reprisals (cf. previous, p. 533). A reprisal does not in any way require blame or guilt on the part of the person affected. This is why, for example, the prosecutor in the Kesselring Trial falsely accused the defendant of having made use of innocent persons.[85] This is also why reprisals may be imposed on persons or groups of persons that were demonstrably innocent of the violation of international law that is to be avenged.[86]

From practical examples, from martial laws and from jurisprudence we can derive a number of other prerequisites.

1. Punishments may be imposed on the basis of actions of individual persons. Where reprisals are concerned, it is disputed whether the actions of any single individual can give grounds for a reprisal. For example, Strupp[87] requires that the action must emanate from the enemy state. According to Article 358c of the American Rules of Land Warfare of 1940, however, illegal acts justifying a reprisal can be committed by a government, its military commanders, or a community or group of its individuals. According to Article 453 of the British Manual of Military Law, they can be committed by a government, by its military commanders, by several persons, or by individuals. Consequently, the actions of any single individual can give rise to a reprisal.[88]
2. The action that gives rise to a reprisal must violate international law. Where partisan activities are concerned, the question is first of all whether the partisans, in accordance with Article 1 of the Hague Land Warfare Convention, wore an insignia clearly visible from a distance, and whether they bore their arms openly. Consequently, the partisan activity in the Balkans has been described as a violation of international law.[89] Similarly, the July 20, 1948; verdict of the Tribunale Territoriale di Roma had declared that the bombing attack perpetrated against the German police company in the Via Rasella in Rome on March 23, 1944, had been in violation of international law (verdict p. 42).
3. Further, the application of reprisals requires that an appropriate investigation has been conducted first. Article 358b of the American Rules of Land Warfare speaks of a "careful inquiry".[90] However, the circumstances surrounding the incident must also be considered. In reprisals, a quick reply to the violation of international law is important. If, for example, all likely participants in a crime have been arrested and their guilt has been established, it is not necessary to wait and see if more evidence might turn up in the future.
4. Another prerequisite that has been mentioned is that a public warning shall precede the implementation of any reprisal.[91] This would mean that relevant proclamations warning of reprisals are issued, either during march-in, or after the first attack to stave off any repetition thereof. Such warnings would certainly be nice; but neither the American Rules nor the British Manual require them, and so we cannot consider them an absolute prerequisite.
5. Besides the prerequisites already discussed, there is also the decisively important factor of military necessity. In this context, Article 358b of the American Rules states that the reprisals must never be a means of mere vengeance, but an inevitable last resort in order to force an enemy to give up an unlawful practice. Thus, Fauchille[92] states that reprisals must be a matter of necessity. Like Vanselow, Sibert, Bluntschli and the verdict in the Falkenhausen Trial, Hyde states that military necessity is the only limit on reprisals.[93] Oppenheim adds:[94]

"Victory is necessary in order to vanquish the enemy, and this necessity justifies all the undescribable horrors of war, the immense sacrifices of human life and health and the inevitable destruction of property and the devastation of land. Aside from the limits imposed on the warring parties by international law, all kinds and degrees of force can and at times must be applied in war in order to achieve that goal, in spite of the cruelty and the extremes of misery that war brings with it. War is a struggle for existence waged between nations, and no degree of individual suffering and hardship can be specially taken into account; the national existence and independence of the warring nations is a higher consideration than any individual welfare."

We must particularly keep in mind that the Hague Land Warfare Convention, according to Section 6 of its Introduction, serves only as a general guideline for the warring parties in their relations with each other and the population, and applies only insofar as military interests permit. Far too little attention was paid to this restriction in the post-war trials. Many an excessively harsh verdict has been due to this omission. The Introduction makes it clear that military necessity plays an important role in the application of the Hague Land Warfare Convention and that the latter does not define formal conditions. Even at that early date the authors left room for natural developments; and the developments after 1907 must be considered (cf. previous, p. 532). But this can only be done if the factor of military necessity is given the attention it deserves. In the American verdict against the Japanese General Yamashita, military necessity was treated as decisive factor.[95]

6. The American verdict in Case VII (SouthEast Trial) demanded another prerequisite, namely a link between the place of the crime and that of the reprisal; the victims of the reprisal, it said, should come from the same area where the unlawful attack took place.[96] We have not found this prerequisite expressed anywhere else in the subject literature. Further, it is not justified. The required characteristic of military necessity for the reprisal action means that there must be an inquiry into whether the action and its scope was militarily necessary. In this way, even if there is no connection between the location of the crime and that of the reprisal, a retrospective observer may perceive the military necessity in, for example, the circumstance that a reprisal managed to restore peace to a previously unruly region.
7. In the aforementioned SouthEast Trial verdict, the American court identified a number of further prerequisites for a reprisal.[97] It stated that all sorts of rules ought to have been proclaimed before any hostages were executed. These rules include:

1. Registration of the inhabitants,
2. mandatory carrying of passports and ID cards,
3. the establishment of prohibited zones,
4. restriction of the people's freedom of movement,
5. introduction of curfew hours,
6. prohibition of assembly,
7. detention of suspect persons,
8. traffic restrictions,
9. restrictions on food supply,
10. evacuation of areas of unrest,
11. imposition of mandatory financial contributions,
12. forced labor to make up for the damage done by sabotage,
13. the destruction of property at the location of the crime,
14. as well as other measures that are not forbidden by international law and which are likely to produce the desired result.

This verdict is an isolated case. Nowhere else have we found demands such as these - concocted in a bureaucratic ivory tower, and quite impracticable. One does not need to have been in the Balkans to realize that such measures were not suited to preventing acts of sabotage. Only a small part of the measures listed could be applied in Central Europe or in the United States within the framework of military necessity.

As we can see, reprisals could be ordered if there was a military necessity for them. Now let us examine how they were to be carried out.

1. The matter of who is responsible for ordering the reprisals is not entirely clear. An individual soldier may not take reprisal measures on his own initiative. Article 358b of the American Rules, for example, states that the highest available office should be consulted, unless military necessity demands immediate action. According to Article 455 of the British Manual, "even though there are no international rules on the subject, reprisals should never be ordered by an individual soldier, but only ever by a commander." In the case of France, Fauchille[98] states that the orders for a reprisal should come from the commanding General, if possible. According to Article 10, Section 2 of the Italian Martial Law of July 8, 1938, reprisals... if immediate and exemplary action is necessary,... may be ordered by any other "comandante" as well. Such a "comandante" can be a soldier, for example,[99] who has an operating unit under his command;... it must be a unit which allows its commander the opportunity for initiative, even if limited.

In Germany, reprisals were to be ordered by a higher commander, generally a divisional commander.[100] As Laternser comments aptly, there was no applicable rule of martial law here, especially since lower-ranking commanders were also responsible in the English, American and Italian armed forces. Therefore, since reprisal law in particular is governed by the principle of reciprocity,[101] other commanders could also lawfully order reprisals during the Second World War, despite this purely German regulation. This is why Waltzog[102] says, correctly, that the regulation stating that only a divisional commander could give the order was binding only for as long as the opponent also observed such a restriction. But since Germany's opponents in World War Two acted differently even in their formal regulations, German commanders of lower rank similar to English commanders or Italian comandantes were also entitled to order reprisals.

In conclusion we shall add that the American verdict in Case VII (SouthEast Trial) expresses the opinion that under international law a judicial decision is required prior to an execution.[103] This view is incorrect. Under continental law reprisals are never within the jurisdiction of a court. Courts are responsible only for punishment, not for the assessment of military necessities. The opinion expressed in the verdict proves that the court confused the concepts of reprisals and punishment.

2. Where the extent of reprisals is concerned, practice and legislation as well as the subject literature of international law are very unclear. The numerous examples of practical cases, of which we have mentioned a few (cf. Section b), range from a ratio of 1:1 to one of 1:200 (Americans in April 1945, in the Harz). Similarly, only a part of the authors contributing to the subject literature support the theoretical demand for a balance between the number of victims of an assassination and that of the victims of the resulting reprisal.[104] Schütze advocates proportionality, but declares the principle to be a flexible one and suggests that the extent of the reprisal is determined primarily by its purpose, which is to be an effective means of coercion.[105] Lo Cascio considers the limit of a reprisal to be an appropriately high quotient of damage sustained vs. inflicted.[106] On the other hand, Strupp, Hatschek, Fauchille, Hyde, Lummert and others reject the requirement of proportionality outright.[107]

Repeatedly we also see the matter of military necessity being considered in setting the extent of a reprisal. For example, von Keller[108] states aptly that the number of prisoners must be high enough that pressure is actually exerted on those responsible. Fauchille writes:[109]

"Il faut donc qu'elles (les réprésailles) soient de nature à faire impression sur ceuxlà-mêmes dont dépent la cessation de cette conduite." (Therefore, the reprisals must be of a nature to make an impression on those on whom the cessation of this conduct depends.)

Thus, the extent of a reprisal ultimately becomes a matter of the military commander's situational judgment.[110]

In view of all this, we can sum up by saying that there was no set common law with respect to proportionality, much less with regard to a ratio of 1:1. And thus we must agree with Laternser,[111] that in the Italian case of the Fosse Ardeatine on March 24, 1944, given the particular circumstances in Rome (only 20 km behind the Nettuno front), the execution of 330 Italians ordered in reprisal for the death of 33 German policemen[112] did not exceed the degree warranted by military necessity.

Another factor in determining the extent of a reprisal is the further damage it can prevent. For example, a reprisal may prevent a riot that would involve further loss of life on both sides. The balance, therefore, must be comprehensively qualitative, not schematic.[113]

3. Not only the number of victims, but also the circumstances of the reprisal's enforcement are determined by military necessity. Just as the ordering of a reprisal killing must be the last resort, the manner of its implementation must also be limited. Since a reprisal, in its individual case, suspends a norm of international law, its implementation must be limited and must observe the principles of humaneness as far as possible.[114]

An important aspect of this is that a reprisal must be carried out quickly in order to be effective.[115] For this reason it is not generally possible to prepare for it in every detail. Rather, it is better to accept some disadvantages if the speed of implementation would suffer otherwise, and perhaps even necessitate harsher measures.

4. The termination of reprisals is also limited by military necessity. As soon as such necessity ends - specifically, as soon as the opponent gives in to the pressure exerted on him and ceases to act in violation of international law - the measures ordered as coercion must be ended.[116]

[...][7]

If the foregoing considerations regarding reprisal law and requisitions had been consistently applied in the trials of the post-war years, then under the principle of "equality under the law" a large part of our prisoners of war would already have to have been acquitted. In the remaining cases, where such measures must be assumed to have been a violation of international law, one must consider the additional factor of higher orders. We shall investigate this in the following.

Superiors' orders have always had special significance regarding the criminal liability of a subordinate obeying them. It would be impossible to command soldiers or police forces if the subordinates were authorized or perhaps even obliged to examine the lawfulness of an order before carrying it out. Alternatively, every military or police commando would have to be assigned its own legal adviser. For this reason, military law has everywhere and at all times depended on discipline, i.e., on the general principle that the subordinate must obey his superior's orders if such orders are given within the limits of his jurisdiction. Consequently, if the carrying-out of the order constitutes a violation of some law, criminal liability is on principle restricted to the superior who had given the order, and conversely the subordinate who had obeyed the order on principle remains exempt from liability. This is explicitly set out by §47 of the German Military Criminal Code, by Article 18 of the Swiss Military Criminal Code, by Article 40 Sections 2 and 3 of the Italian Codice Penale Militare di Pace, and by other regulations.[117] For example, §443 of the British Manual of Military Law of 1914 decreed that members of the armed forces who violated accepted rules of warfare on the orders of their commanding officers are not war criminals and therefore cannot be punished by the enemy.[118] Similarly, Article 347 of the American Rules of Land Warfare ruled out the punishment of subordinates obeying orders.

As a practical example we would mention the execution of the order issued to the British Admiral Sommerdille, to sink the French fleet at Oran in the summer of 1940; 1,500 French marines lost their lives in the process.[119] In France, Article 327 of the Code penal rules out liability for manslaughter or bodily harm if the actions in question were ordered by the law or by the lawful government.[120] - The other nations had similar regulations.

Thus, we find that even during the first years of World War Two the regulations in force in the various nations were quite similar to each other.

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.

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]

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.

There are individual exceptions to the general principle discussed here. In the passage quoted above, Lauterpacht acknowledges the exemption from punishment if the order given is "not blatantly illegal". In Article 40 Section 4 of the Italian Codice Penale militare di Pace an exception is introduced to the principle of the superior's sole liability, for the event that carrying out the order given does in fact obviously constitute a crime (costituisce manifestamente reato).[135] Article 18 Section 2 of the Swiss Military Criminal Code states that the subordinate is also criminally liable if he is aware that, by following the order, he contributes to a crime or misdemeanor. It is left to the judge's personal discretion to moderate or dispense with punishment. Therefore, the subordinate has no clear-cut duty to evaluate his orders.[136] According to §47 Section 1 of the German Military Criminal Code, the subordinate obeying the orders was punished as participant in a criminal act if:

1. he went beyond the orders given him;
2. he knew that his superior's orders pertained to an act whose aim was the commission of a general or military crime or misdemeanor.[137]

If the subordinate's share of the blame was minor, his punishment might be dispensed with.

During World War Two Germany as well as other countries saw trends towards the limitation of exceptions to the general principles, and towards the introduction of strict discipline with a concomitant, absolute exemption from liability and punishment for the subordinate obeying orders. Today it is apparent that these views were wrong. But we must take into consideration the circumstances prevailing in those days in the "Führer state". Since 1938 Hitler had been the Supreme Commander of the German Wehrmacht, and the highest Chief of the SS and the SD ever since their establishment. As a result, and in accordance with the organization of an authoritarian state, he was able to give direct orders to any office or position he chose. In this context, the American verdict at Nuremberg in Case XII (Wehrmacht Supreme Command Trial) stated:[138]

In Huber's book Das Verfassungsrecht des Großdeutschen Reiches this was expressed as follows:[139]

This means that he could also give binding orders in individual cases, and these orders had the force of law. This was expressly confirmed by the Reichstag in its well-known decision of April 26, 1942.[141] In other words, in deviation from the principle of the separation of powers, Hitler as head of state could give an individual order which required the same obedience as does a law in a democratic state.

From today's perspective we must deny an authoritarian head of state's order its force of law if this order violates natural right. In other words, when retrospectively assessing the legitimacy of an act from those days, we cannot content ourselves with the simple observation that it was done on the basis of an order from the highest chief of state. If such an order violated natural right, we cannot consider it legitimate, and carrying out such an order may be regarded as unlawful. But before we treat the carrying-out of the order as a criminal offense, we must in any case consider the application of the aforementioned (in d) §47, Sections 1 and 2 of the Military Criminal Code. Further, we must then also consider whether there may not also be other grounds for ruling out liability, either as typical or as individual case. Let us take a brief look at these issues in the following.

a) Errors

Our analysis of the reprisal issue has shown that jurists from the various countries are by no means in agreement on what is permitted and what is not. Therefore it is not surprising that military practice also varies in many respects. In view of the disagreement even between the subject experts, we cannot by any means expect soldiers to be clear on the issues of right and wrong as these pertain to reprisals and requisitions. Rather, in many cases where a court deems an act to be unlawful it is probably correct to assume that the accused believed that his actions were legitimate. In other words, many persons charged with war crimes believed their actions to have been permissible, i.e., they were not aware that they were unlawful.

Even in Germany there is much controversy about how someone who is unaware of the unlawfulness of his actions should be treated under the law.[142] It is beyond the scope of the present study to discuss this controversy in detail; suffice it to say that British and American criminal law do not require an awareness of the illegality of one's actions.[143] In every case, however, it is important to determine whether the judicial system in question requires the affirmation of the guilt of an accused. Articles 5 and 47 of the Italian Criminal Code, for example, permit the consideration of a non-criminal error on the part of the accused. If an accused believes his actions to be permissible, for example on the basis of a misinterpretation of the Hague Land Warfare Convention, then he must not be punished for a deliberate offense. Under German law the element of intent would be inapplicable if, for example, someone charged with unlawful confiscations had erroneously believed that there was a pressing need for his actions, to serve the war effort.[144] These examples may indicate that the question of blame as pertaining to unlawful reprisals and requisitions must be of far greater significance than the post-war trials would in fact show.

The state of emergency is an aspect particularly important to the cases dating from the last war. We have already pointed out the tendency for commanding officers to demand unconditional obedience from their subordinates. This was accompanied by a considerable tightening of law and justice as it pertained to military disobedience and insubordination. Someone who sought to act on natural right and an accordingly lack of obligation to the orders of the state leadership (cf. p. 548), and thus disobeyed an order from a higher source, would have had to expect a severe backlash and harsh punishment. Especially in the last years of the war these dangers were by no means vague; they were very immediate indeed. Since not only the threats of punishment were draconic, but the sentences passed were also very severe, anyone who had dared insubordination would have put himself in immediate danger of his life. Thus, such cases always represented a state of emergency, as according to §54 of the German Criminal Code. A soldier could therefore not have been expected to act in keeping with natural right. Though he was obliged to stand up to dangers in battle, he could not have been expected to willingly run the risk of execution for insubordination.[145] Therefore his conduct would have been exempt from liability as per §54 of the German Criminal Code.[146]

We have seen how a wide range of legal aspects bear upon an area of exceedingly practical significance and how international and national law, conventions and common law must all be considered in order to arrive at a just solution. In some respects, wartime saw a kind of intellectual confusion that did not allow for equal and balanced justice for all. The post-war years, and with them an increasing distance from the events of the war, provided the basis for a morally unexceptionable order. Reprisals were prohibited at the Convention of August 12, 1949, the theory and practice of requisitions have been reconciled, and the issue of higher orders has seen a return to principles that agree with criminal law per se. On the other hand, matters must also be put right for the past. First and foremost it is necessary to subject the cases of our prisoners of war still detained today by our erstwhile enemies to a review guided by the reformed legal perspectives. The way in which these cases are dealt with shows whether the path is now clear for equal justice for all, and thus for a new European peacetime order.

* * *

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:

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]

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]

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:

Margolina quotes further from this anthology:

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]

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

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