## Facts

- Senior German military commanders were prosecuted for actions taken during occupation operations in Yugoslavia, Greece, Albania, and (for one commander) Norway during World War II.
- Occupation forces confronted organized guerrilla resistance and responded with security policies that included taking “hostages,” executing civilians in set numerical ratios after attacks, and destroying villages and property.
- The prosecution alleged a terror policy to deter resistance through mass shootings, ill-treatment and deportation to forced labor, pillage, and wanton destruction not justified by military necessity.
- The indictment asserted that the charged acts were carried out by German troops pursuant to orders issued, distributed, or implemented through the defendants’ commands.
- Proceedings were brought under Control Council Law No. 10 before a United States Military Tribunal at Nuremberg; one defendant’s case was severed for medical reasons and another was removed after death before arraignment.
- At judgment, the tribunal evaluated each defendant’s authority, knowledge, participation, and steps taken (or not taken) to prevent or punish criminal acts.

## Issues

1. Whether hostage-taking and reprisal executions of civilians in occupied territory were lawful, and if so, under what limits.
2. Whether fixed-ratio reprisal policies and executions of persons unconnected to resistance attacks violated the laws and customs of war.
3. When a commander is criminally responsible for crimes committed by subordinates, including under a “knew or had reason to know” standard.
4. Whether compliance with superior orders is a complete defense, and what role it plays in mitigation.
5. How the status of irregular fighters affects the legality of reprisals and the protection owed to civilians and detainees.

## Decision

- The tribunal held that large-scale hostage shootings and indiscriminate, ratio-based reprisals against civilians were unlawful and not justified by military necessity.
- The tribunal recognized only a narrowly constrained concept of reprisals in occupied territory, requiring last resort, proportionality, and, as far as possible, direction against responsible persons rather than uninvolved civilians.
- The tribunal applied command responsibility where a commander ordered, authorized, or knowingly permitted unlawful measures, or failed to take necessary and reasonable steps to prevent violations or punish offenders.
- The tribunal ruled that superior orders did not excuse manifestly unlawful conduct; at most, it could be considered in mitigation in limited circumstances.
- Outcomes among defendants varied based on proof of effective control, knowledge, and participation: eight defendants were convicted on one or more counts; two were acquitted; sentences ranged from seven years’ imprisonment to life.

## Legal Principles

- Hostage killing as punishment or deterrence, particularly where hostages lack a direct connection to the precipitating acts, violates the laws of war.
- Reprisals in occupied territory, if permissible at all, are tightly limited: they must be proportionate, used only as a last resort, and should be directed toward those responsible rather than random civilians.
- Fixed numerical ratios for reprisal killings are excessive and indiscriminate and therefore unlawful.
- Command responsibility attaches when a commander knew or had reason to know subordinates were committing or about to commit violations and failed to take necessary and reasonable steps to prevent the crimes or punish perpetrators.
- Superior orders is not a complete defense to war crimes or crimes against humanity when the unlawfulness is manifest; it may affect sentencing but does not bar liability.
- The presence of irregular resistance does not remove legal constraints on occupying forces’ treatment of civilians; civilian protection and limits on reprisals remain applicable.

## Conclusion

The tribunal treated mass hostage reprisals and indiscriminate destruction as criminal under the laws of war, limited the superior-orders defense, and imposed liability on commanders who ordered unlawful measures or failed to act when they knew or should have known of their troops’ violations, resulting in mixed convictions and acquittals based on individualized proof of control, knowledge, and conduct.


United States v. List (Hostages Trial), Case No. 7 (U.S. Mil. Trib. V 1948)