## Facts

- During World War II, Gerhard Friedrich Ernst Flesch was a German SS/Gestapo security official who exercised authority over a concentration camp and related security operations in occupied Norway.
- While in command, Flesch ordered killings of persons in custody, including sick Jewish prisoners.
- Flesch also ordered the killing of Russian (Soviet) prisoners, stating in substance that he believed Russians killed their prisoners of war.
- Flesch ordered killings of prisoners who attempted to escape.
- Flesch ordered killings of persons he treated as spies or saboteurs.
- After the war, Norwegian authorities prosecuted Flesch for war crimes based on these ordered executions.
- A Norwegian court convicted Flesch and sentenced him to death.
- Flesch sought review in the Supreme Court of Norway, arguing that the killings were justified as wartime retaliation (based on the enemy’s conduct) and/or excused by his official duties and orders within the German occupation system.
- The Supreme Court reviewed the conviction and sentence in a decision reported in the *Law Reports of Trials of War Criminals*.

## Issues

1. Whether Flesch’s orders to kill sick Jewish prisoners, Soviet prisoners, escaping prisoners, and alleged spies or saboteurs constituted war crimes for which he could be held personally responsible.
2. Whether a claim of retaliation or reciprocity—based on the asserted conduct of enemy forces—could justify killing prisoners in custody.
3. Whether acting under superior orders or within an official security role excused or reduced criminal responsibility for unlawful executions.

## Decision

- The Supreme Court of Norway affirmed Flesch’s conviction for war crimes.
- The court affirmed the death sentence imposed on Flesch.
- The court treated the ordered executions of protected persons in custody as unlawful under the laws and customs of war.
- The court rejected reliance on retaliation/reciprocity as a justification for killing prisoners, including the claim tied to Flesch’s belief about Soviet treatment of prisoners of war.
- The court rejected superior orders and official position as a complete defense to responsibility for unlawful killings ordered by Flesch.

## Legal Principles

- Ordering or carrying out executions of protected persons in custody—such as civilian detainees and prisoners of war—without lawful basis and required process violates the laws and customs of war and is punishable as a war crime.
- Retaliation or reciprocity based on the enemy’s alleged misconduct does not justify killing prisoners or detainees in custody, particularly where the act takes the form of summary execution.
- Individual criminal responsibility attaches to officials who order, authorize, or cause unlawful killings, even if others perform the physical act.
- Superior orders and official duty do not excuse manifestly unlawful acts such as the deliberate killing of protected prisoners; at most, such circumstances may be considered in assessing punishment under the forum’s law.
- National courts may enforce war-crimes liability through domestic statutes that apply international-law rules governing the treatment of civilians and prisoners during occupation.

## Conclusion

*Trial of Flesch* upheld the war-crimes conviction and death sentence of an SS/Gestapo official who ordered executions of sick Jewish prisoners, Soviet prisoners, escapees, and persons labeled spies or saboteurs, rejecting arguments that enemy conduct, retaliation, or superior orders could justify or excuse the killings of protected persons in custody.


Trial of Flesch, 6 LRTWC 111 (1948)