## Facts

- The United States prosecuted fourteen senior German Army and Navy officers for conduct during World War II before a U.S. Military Tribunal at Nuremberg under Control Council Law No. 10.
- The indictment charged four counts: (1) crimes against peace, (2) war crimes, (3) crimes against humanity, and (4) common plan or conspiracy.
- Alleged crimes included unlawful treatment and killing of prisoners of war and civilians in occupied territories and involvement in, or enforcement of, major criminal directives and policies, including the Commissar Order, Barbarossa Jurisdiction Order, Commando Order, and the Night and Fog program, as well as hostage-taking, reprisals, plunder, and forced labor.
- Central factual questions concerned each defendant’s role as a commander or staff officer, the extent of control over subordinate forces, and the extent of knowledge of crimes committed by units under command or by associated organizations (including SS and security forces) operating in the same areas.
- Proceedings began in late 1947; one defendant died during the trial and the case against him was terminated.

## Issues

1. What standards govern criminal liability of senior commanders and staff officers for war crimes and crimes against humanity committed by subordinate or associated units.
2. Whether professional military leaders, as opposed to political decision-makers, can be convicted for crimes against peace based on participation in planning, preparing, or waging aggressive war.
3. Whether superior orders or asserted military necessity can excuse or mitigate liability for acts that violate the laws and customs of war.
4. How the Hague Regulations and Geneva POW rules apply to prisoners of war, civilians in occupied territories, hostage-taking, reprisals, deportations, and secret detention practices.

## Decision

- The tribunal dismissed the conspiracy/common plan count as not presenting a separate issue beyond the substantive counts.
- All remaining defendants were acquitted on the crimes against peace count.
- On the war crimes and crimes against humanity counts, the tribunal acquitted two defendants and convicted eleven; sentences ranged from two years to life imprisonment.
- The tribunal entered differentiated findings by defendant based on proof of personal participation, dissemination or implementation of unlawful orders, actual or constructive knowledge of crimes, and failure to take feasible preventive or punitive measures.

## Legal Principles

- Command responsibility requires a proven link between the accused and the crimes, such as ordering, participating in, or knowingly permitting crimes, or having information placing the accused on notice of crimes and failing to act to prevent or punish.
- Liability for crimes committed by parallel or autonomous organizations operating in the same theater is not presumed; it depends on the commander’s legal duty, practical ability to control, and demonstrated knowledge and response.
- Crimes against peace convictions require more than serving as a professional soldier in wars initiated by the state; absent a policy-making role, operational commanders were not treated as criminally responsible for the state decision to wage aggressive war.
- Superior orders do not excuse acts that are clearly unlawful under the laws of war; at most, they may bear on individualized culpability and sentencing where relevant to what could reasonably be known or resisted.
- Military necessity does not justify departures from fundamental protections for prisoners of war and civilians; unlawful orders and practices involving summary execution, secret disappearance, unlawful reprisals, hostage killings, and similar measures violate established treaty and customary rules.

## Conclusion

The tribunal rejected conspiracy as a separate basis of liability, acquitted all defendants of crimes against peace, and imposed individualized war-crimes and crimes-against-humanity responsibility using a knowledge-and-control framework that required proof of ordering, participation, or failure to prevent or punish crimes within the accused’s effective sphere of authority.


United States v. von Leeb (In re High Command Case), 12 L. Rep. Trials War Crims. 1 (U.S. Mil. Trib. V-A 1948)