Common use of Hostage Clause in Contracts

Hostage. Although ▇▇▇▇▇▇ refused to reduce the sentences given to List and ▇▇▇▇▇▇, he reduced all of the other sentences on the ground that the ―other officers charged with excessive reprisals… had lesser responsibility or, in some cases, showed evidence of humane considerations.‖147 Both rationales were questionable. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ received the most significant reduction, from 20 years to time served, despite Tribunal V‘s conclusion that he was responsible, as Military Governor of Greece, for more than 1,000 illegal executions148 – a stunning act of clemency that at least one commenter attributed not to ―lesser responsibility‖ or ―humane considerations,‖ but to the fact that ▇▇▇▇▇▇▇ was the brother of ▇▇▇▇ ▇▇▇▇▇▇▇, the Adenauer advisor who was then involved in negotiating German rearmament with the Allies.149 ▇▇▇▇▇ ▇▇▇▇▇▇ also had his sentence reduced from seven years to time served, even though his soldiers had executed hundreds of civilians.150 ▇▇▇▇▇▇‘s sentence was already lenient, given the gravity of his crimes; a further reduction on the ground of ―lesser responsibility‖ was hardly warranted. Moreover, although there were, in fact, ―human considerations‖ justifying a lesser sentence – ▇▇▇▇▇▇ had attempted to mitigate the harshness of some of the orders he received from his superiors – Tribunal V had already taken them into account.151 In fact, the Tribunal made clear that it had taken mitigating factors such as ―humane considerations‖ into account for all of the defendants.152 RuSHA. ▇▇▇▇▇▇ significantly reduced the sentences of all six petitioners, in three instances from 10 or 15 years to time served, based on ―the relatively restricted nature of the relationship of these defendants to the crimes, their relatively subordinate roles, and certain other extenuating circumstances.‖153 It is unfortunate that ▇▇▇▇▇▇ did not discuss his specific decisions, because it is difficult to see why – to take only one example – ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ deserved to have his 15-year sentence reduced to time served. Tribunal I found that ▇▇▇▇▇▇▇▇▇, who was the Chief of the VOMI department dedicated to ―Safeguarding German Folkdom in the ▇▇▇▇▇,‖ had ―in the course of the immense VOMI operations bec[o]me deeply involved in measures carried out under the Germanization program,‖ including forced evacuation and resettlement, Germanization, and the use of slave labor.154 Einsatzgruppen. As noted above, ▇▇▇▇▇▇ commuted 10 of the 15 death sentences – four to life imprisonment, one to 25 years, one to 20 years, two to 15 years, and two to ten years. In doing so – and allegedly ―with difficulty‖ – ▇▇▇▇▇▇ went beyond the recommendations of the Advisory Board and commuted three death sentences that the Board had recommended confirming: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.155 ▇▇▇▇▇▇ did, however, reject the Board‘s recommendation that ▇▇▇▇▇▇▇ 147 ▇▇▇▇▇▇ Clemency Decisions, 8. 148 Hostage, XI TWC 1315-17. 149 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, The Burial of Nuremberg, Institute of Jewish Affairs, Records of the World Jewish Congress, subseries 1, box 121, document 17, at 6. 150 Hostage, XI TWC 1297-98. 151 Id. at 1299. 152 Id. at 1317. 153 ▇▇▇▇▇▇ Clemency Decisions, 8. 154 RuSHA, V TWC 140, 159-60. 155 ▇▇▇▇, 287. and ▇▇▇▇▇▇▇▇‘s death sentences be commuted to time served; they received 15 and ten years, respectively. Once again, ▇▇▇▇▇▇ relied on undisclosed ―new evidence‖ to justify his clemency decisions. ▇▇▇▇▇▇ claimed, for example, that ―injustice would be done‖ by executing ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, because ―new and persuasive evidence which has recently been made available‖ substantially lessened ―the directness of their connection with the crimes.‖ He thus commuted ▇▇▇▇▇▇▇‘s death sentence to 15 years and ▇▇▇▇▇▇▇‘s death sentence to 20 years.156 ▇▇▇▇▇. ▇▇▇▇▇▇‘s most dramatic clemency decisions benefited the seven ▇▇▇▇▇ petitioners: he not only reduced all of the sentences to time served, he also – echoing Judge ▇▇▇▇▇▇▇▇‘s dissenting opinion157 – countermanded the confiscation of ▇▇▇▇▇▇▇ ▇▇▇▇▇‘s property. In defense of those reductions, ▇▇▇▇▇▇ insisted that Tribunal III‘s judgment made it ―extremely difficult to allocate individual guilt among the respective defendants‖ and argued that ―whatever guilt these defendants may have shared for having taken a consenting part in either offense, it was no greater in these cases than that involved in the Farben and Flick cases.‖158 The problem with the latter rationale was discussed earlier: the ▇▇▇▇▇ sentences were not too tough; the Farben and Flick judgments were too lenient because the defendants had been wrongly acquitted of a number of crimes. The former rationale, however, was even less persuasive. The most significant problem with ▇▇▇▇▇▇‘s ―allocation of guilt‖ rationale was that Tribunal III‘s sentences were based on the evidence presented at trial, whereas ▇▇▇▇▇▇ – like the Advisory Board before him – reviewed only the Tribunal‘s judgment. Moreover, the judgment itself was anything but ambiguous: although the indictment discussed the crimes of the ▇▇▇▇▇ firm as a whole, the 122-page judgment provided a comprehensive and detailed accounting of each defendant‘s responsibility for the ▇▇▇▇▇ firm‘s crimes. Indeed, the Tribunal specifically held that ―[t]he mere fact without more that a defendant was a member of the ▇▇▇▇▇ Directorate or an official of the firm is not sufficient‖ for criminal responsibility159 and insisted – in the final paragraph of the judgment – that ―[t]he nature and extent‖ of the defendants‘ participation ―was not the same in all cases and therefore these differences will be taken into consideration in the imposition of the sentences upon them.‖160 ▇▇▇▇▇▇ defended returning ▇▇▇▇▇▇▇ ▇▇▇▇▇‘s property on two grounds. First, he argued that, because ―even those guilty of participation in the most heinous crimes have not suffered confiscation of their property,‖ he believed that ―confiscation in this single case constitutes discrimination against this defendant unjustified by any considerations attaching peculiarly to him.‖ Second, he noted that confiscation of property ―is repugnant to American concepts of justice.‖161 156 ▇▇▇▇▇▇ Clemency Decisions, 10. 157 ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Dissent, IX TWC 1453. 158 ▇▇▇▇▇▇ Clemency Decisions, 13. 159 ▇▇▇▇▇, IX TWC 1448. 160 Id. at 1449. 161 ▇▇▇▇▇▇ Clemency Decisions, 14. The first ground was literally correct, although it conveniently overlooked the difference between confiscating the property of an industrialist and confiscating the property of a soldier or government official. But the second ground was irrelevant. As discussed in Chapter 5, U.S. law did not apply to the NMT trials and Law No. 10 specifically empowered the tribunals to order the ―forfeiture of property.‖162 Invoking U.S. law to ▇▇▇▇▇ a specific provision of Law No. 10 was thus ultra ▇▇▇▇▇. The ▇▇▇▇▇ petitioners, it is worth noting, expected to be granted clemency. As ▇▇▇▇▇ points out, they knew full well what German rearmament meant for them: A room had been set aside at Landsberg for the ▇▇▇▇▇ directors to discuss corporate business, and directors and officials would come from Essen with the necessary documents to plan the company's programme for rapid expansion to meet Western demands in Korea. Eating and drinking the best food and wines available, ▇▇▇▇▇▇▇ and his fellow convicts took pleasure in insulting the very people who put them there.163 The return of ▇▇▇▇▇‘s fortune also benefited ▇▇▇▇ ▇▇▇▇▇▇▇, the lawyer Tribunal IIII had refused to permit ▇▇▇▇▇▇▇ to hire prior to trial. ▇▇▇▇▇▇▇ worked with ▇▇▇▇▇‘s German attorney, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, on ▇▇▇▇▇▇▇‘s petition for clemency. According to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ―[t]he terms of ▇▇▇▇▇▇'▇ employment were simple. He was to get ▇▇▇▇▇ out of prison and get his property restored. The fee was to be 5 percent of everything he could recover. ▇▇▇▇▇▇▇ got ▇▇▇▇▇ out and his fortune returned, receiving for his five-year job a fee of, roughly, $25 million.‖164 Ministries. ▇▇▇▇▇▇ followed the recommendations of the Advisory Board and reduced the sentences of all the petitioners, including three 10 and 15 year sentences to time served. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇‘s reduction from 25 to 10 years is particularly illuminating, because ▇▇▇▇▇▇ openly admitted that he believed he had the authority to provide appellate review of the tribunals‘ judgments, disapproving convictions with which he disagreed. ▇▇▇▇▇▇‘s sentence was based in part on the murder of a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇▇ Mesny, while in transit between two POW camps. Tribunal IV discussed ▇▇▇▇▇▇‘s responsibility for the murder at length, concluding that ▇▇▇▇▇▇, as the Chief of POW affairs, had jurisdiction over ▇▇▇▇▇ at the time of the murder, knew that the murder was being planned by his subordinates, and yet did nothing to prevent it165 – a classic case of command responsibility. ▇▇▇▇▇▇ nevertheless decided to ―eliminate entirely from the consideration of the weight of his sentence any participation in the Mesny murder,‖ because he had concluded that ―▇▇▇▇▇▇ appears to have been unjustly convicted of participation in the murder.‖166 ▇▇▇▇▇▇ did not bother to explain how he could reach that conclusion without examining the evidence on which the Tribunal relied, nor did he explain how disregarding that one incident and crediting ▇▇▇▇▇▇ with attempting to save Allied 162 Law No. 10, art. II(3)(c). 163 ▇▇▇▇▇, 372. 164 ▇▇▇▇▇▇▇, 222. 165 Ministries, XIV TWC 447-54. 166 ▇▇▇▇▇▇ Clemency Decisions, 15. officers at the end of the war – acts for which the Tribunal had already given him credit167 – justified dramatically reducing the sentence of the man who had created the Dirlewanger Brigade, whose viciousness ―shocked even Nazi commissioner‘s and ▇▇▇▇▇▇▇▇▇‘s Ministry for the Eastern Territories, for the specific purpose of committing crimes against humanity.168 High Command. As noted above, ▇▇▇▇▇▇ refused to modify ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇‘s life sentence or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇‘s 15-year sentences. He did, however, grant clemency to the other three petitioners as a result of ―more detached responsibility and other extenuating circumstances brought out mainly since the trials.‖169 The result represented a split decision for ▇▇▇▇▇▇ ▇▇▇▇▇, who had angrily protested the Board‘s decision to recommend clemency for ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ because of their ―alleged subordinate positions‖: although ▇▇▇▇▇▇ deviated from the Board concerning ▇▇▇▇▇▇▇▇, he ignored ▇▇▇▇▇ and reduced ▇▇▇▇▇▇▇▇▇‘s life sentence to 18 years and ▇▇▇ ▇▇▇▇▇▇▇▇ and 20-year sentence to 12 years. ▇▇▇▇▇▇ specifically noted that he reduced the 70-year-old ▇▇▇ ▇▇▇▇▇▇▇▇‘s sentence ―so as to give [him], with time served and time off for good behavior, a chance of release of prison during his lifetime.‖170