The defendant Kurt von Geitner was a General Major (Brigadier General) in the German armed Forces, serving as Chief of Staff to the Commanding General in Serbia from July 1942 to August 1943; and Chief of Staff to the Military Commander of Serbia and Military Commander Southeast from August 1943 to October 1944.
It is alleged in the indictment that the acts charged were violative of Control Council Law No. 10, duly enacted by the Allied Control Council on 20 December 1945. The portions of the law applicable to this case provide as follows:
"1 (b) War Crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
" (c) Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.
"2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission * * *.
"4 (b) The fact that any person acted pursuant to the order of his government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation."
Pursuant to the provisions of Control Council Law No. 10, the pertinent parts of which arc herein set out, the United States of America filed its indictment charging the defendants in four counts with War Crimes and Crimes against Humanity in accordance with the definitions thereof therein contained. Reduced to a minimum of words, these four counts charge:
1. That defendants were principals or accessories to the murder of hundreds of thousands of persons from the civilian population of Greece, Yugoslavia and Albania by troops of the German Armed Forces; that attacks by lawfully constituted enemy military forces, and attacks by unknown persons, against German troops and installations, were followed by executions of large numbers of the civilian population by hanging or shooting without benefit of investigation or trial; that thousands of non-combatants, arbitrarily designated as "partisans", "Communists", "Communist suspects", "bandit suspects" were terrorized, tortured and murdered in retaliation for such attacks by lawfully constituted enemy military forces and attacks by unknown persons; and that defendants issued, distributed and executed orders for the execution of 100 "hostages" in retaliation for each German soldier killed and 50 "hostages" in retaliation for each German soldier wounded.
2. That defendants were principals or accessories to the plundering and looting of public and private property, the wanton destruction of cities, towns and villages, frequently together with the murder of the inhabitants thereof, COURT NO.
V, CASE NO. VII.
and the commission of other acts of devastation not warranted by military necessity, in the occupied territories of Greece, Yugoslavia, Albania and Norway, by troops of the German Armed Forces acting at the direction and order of these defendants; that defendants ordered troops under their command to burn, level and destroy entire villages and towns and thereby making thousands of peaceful non-combatants homeless and destitute, thereby causing untold suffering, misery and death to large numbers of innocent civilians without any recognized military necessity for so doing.
3. That defendants were principals or accessories to the drafting, distribution and execution of illegal orders to the troops of the German Armed Forces which commanded, that enemy troops be refused quarter and be denied the status and rights of prisoners of war and surrendered members of enemy forces be summarily executed; that defendants illegally ordered that regular members of the national armies of Greece, Yugoslavia and Italy be designated as "partisans", "rebels", "communists" and "bandits", and that relatives of members of such national armies be held responsible for such members' acts of warfare, resulting in the murder and ill treatment of thousands of soldiers, prisoners of war and their non-combatant relatives.
4. That defendants were principals or accessories to the murder, torture, and systematic terrorization, imprisonment in concentration camps, forced labor on military installations, and deportation to slave labor, of the civilian populations of Greece, Yugoslavia and Albania by troops of the German Armed Forces acting pursuant to the orders of the defendants; that large numbers of citizens democrats, nationalists, Jews and Gypsies - were seized, thrown into concentration camps, beaten, tortured, illtreated and murdered while other citizens were forcibly conscripted for labor in the Reich and occupied territories.
The acts charged in each of the four counts are alleged to have been committed wilfully, knowingly and unlawfully and constitute violations of international conventions, the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and were declared, recognized and defined as crimes by Article II of Control Council Law No. 10 adopted by the representatives of the United States of America, Great Britain, the Republic of France and the Soviet Union.
The defendant Franz Boehme committed suicide prior to the arraignment of the defendants, and the Tribunal has ordered his name stricken from the list of defendants contained in the indictment. The defendant Maximillian von Weichs became ill during the course of the trial and it having been conclusively ascertained that he is physically unfit and unable to appear in court before the conclusion of the trial, his motion that the proceedings be suspended as to him was sustained. This holding is without prejudice to a future trial of this defendant on the charges herein made against him if and when his physical condition permits.
Before venturing into a discussion of specific issues, it seems advisable to briefly statue the general nature of international law and the sources from which its principles can be ascertained. No attempt will be here made to give an all inclusive definition of international law, in fact, there is justification for the assertion that it ought not to be circumscribed by strict definition in order that it may have ample room for growth.
Any system of law that is obviously subject to growth by the crystalization of generally prevailing custom and practice into law under the impact of common acceptance or consent, must not be confined within the limits of formal pronouncement or complete unanimity. For our purposes it is sufficient to say that international law consists of the principles which control or govern relations between nations and their nationals. It is much more important to consider the sources from which these principles may be determined.
The sources of international law which are usually enumerated are: (1) customs and practices accepted by civilized nations generally, (2) treaties, conventions and other forms of interstate agreements, (3) the decisions of international tribunals, (4) the decisions of national tribunals dealing with international questions, (5) the opinions of qualified text writers, and (6) diplomatic papers. These sources provide a frame upon which a system of international law can be built but they cannot be deemed a complete legal system in themselves. Any system of jurisprudence, if it is to be effective, must be given an opportunity to grown and expand to meet changed conditions. The codification of principles is a helpful means of simplification, but it must not be treated as adding rigidity where resiliency is essential. To place the principles of international law in a formalistic straight-jacket would ultimately destroy any effectiveness that it has acquired.
The tendency has been to apply the term "customs "and practices accepted by civilized nations generally", as it is used in international law, to the laws of war only.
But the principle has no such restricted meaning. It applies as well to fundamental principles of justice which have been accepted and adopted by civilized nations generally. In determining whether such a fundamental rule of justice is entitled to be declared a principle of international law, an examination of the municipal laws of states in the family of nations will reveal the answer. If it is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of international law would seem to be fully justified. There is convincing evidence that this not only is but has been the rule. The rules applied in criminal trials regarding burden of proof, presumption of innocence, and the right of a defendant to appear personally to defend himself, are derived from this source. Can it be doubted that such a source of international law would be applied to an insane defendant? Obviously he would not be subjected to trial during his incompetency. Clearly, such a holding would be based upon a fundamental principle of criminal law accepted by nations generally. If the rights of nations and the rights of individuals who become involved in international relations are to be respected and preserved, fundamental rules of justice and right which have become commonly accepted by nations must be applied. But the yardstick to be used must in all cases be a finding that the principle involved is a fundamental rule of justice which has been adopted or accepted by nations generally as such.
The defendants invoke the defensive plea that the acts charged as crimes were carried out pursuant to orders of superior officers whom they were obliged to obey, This brings into operation the rule just announced.
The rule that superior order is not a defense to a criminal act is a rule of fundamental criminal justice that has been adopted by civilized nations extensively. It is not disputed that the municipal law of civilized nations generally sustained the principle at the time the alleged criminal acts were committed. This being true, it properly may be declared as an applicable rule of international law.
It cannot be questioned that acts done in time of war under the military authority of an enemy, cannot involve any criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war. Implicit obedience to orders of superior officers is almost indispensable to every military system. But this implies obedience to lawful orders only. If the act done pursuant to a superior's orders be murder, the production of the order will not make it any less so. It may mitigate but it cannot justify the crime. We are of the view, however, that if the illegality of the order was not known to the inferior and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists and the inferior will be protected. But the general rule is that members of the armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command which violates international law and outrages fundamental concepts of justice. In the German War Trials (1921), the German Supreme Court of Leipzig in The Llandovery Castle case said: "Patzig's order does not free the accused from guilt. It is true that according to paragraph 47 of the Military Penal Code, if the execution of an order in the ordinary course of duty involves such a violation of the law as is punishable, the superior officer issuing such an order is alone responsible.
According to No. 2, however, the subordinate obeying such an order is liable to punishment, if it was known to him that the order of the superior involved the infringement of civil or military law."
It is true that the foregoing rule compels a commander to make a choice between possible punishment by his lawless government for the disobedience of the illegal order of his superior officer, or that of lawful punishment for the crime under the law of nations. To choose the former in the hope that victory will cleanse the act of its criminal characteristics manifests only weakness of character and adds nothing to the defense.
We concede the serious consequences of the choice especially by an officer in the army of a dictator. But the rule becomes one of necessity, for otherwise the opposing army would in many cases have no protection at all against criminal excesses ordered by superiors.
The defense relies heavily upon the writings of Professor L. Oppenheim to sustain their position. It is true that he advocated this principle throughout his writings. As a co-author of the British Manual of Military Law, he incorporated the principle there. It seems also to have found its way into the United States Rules of Land Warfare (1940). We think Professor Oppenheim espoused a decidedly minority view. It is cased upon the following rationale: "The law cannot require an individual to be punished for an act which he was compelled by law to commit." The statement completely overlooks the fact that an illegal order is in no sense of the word a valid law which one is obliged to obey.
The fact that the British and American Armies may have adopted it for the regulations of its own armies as a matter of policy, does not have the effect of enthroning it as a rule of international law. We point out that army regulations are not a competent source of international law. They are neither legislative nor judicial pronouncements. They are not competent for any purpose in determining whether a fundamental principle of justice has been accepted by civilized nations generally. It is possible, however, that such regulations, as they bear upon a question of custom and practice in the conduct of war, might have evidentiary value, particularly if the applicable portions had been put into general practice. It will be observed that the determination, whether a custom or practice exists, is a question of fact. Whether a fundamental principle of justice has been accepted, is a question of judicial or legislative declaration. In determining the former, military regulations may play an important role but in the latter, they do not constitute an authoritative precedent.
Those who hold to the view that superior order is a complete defense to an international law crime, base it largely on a conflict in the articles of war promulgated by several leading nations. While we are of the opinion that army regulations are not a competent source of international law, where a fundamental rule of justice is concerned, we submit that the conflict in any event does not sustain the position claimed for it. If, for example, one be charged with an act recognized as criminal under applicable principles of international law and pleads superior order as a defense thereto, the duty devolves upon the court to examine the sources of international law to determine the merits of such a plea.
If the court finds that the army regulations of some members of the family of nations provide that superior order is a complete defense and that the army regulations of other nations express a contrary view, the court would be obliged to hold, assuming for the sake of argument only that such regulations constitute a competent source of international law, that general acceptation or consent was lacking among the family of nations. Inasmuch as a substantial conflict exists among the nations whether superior order is a defense to a criminal charge, it could only result in a further finding that the basis does not exist for declaring superior order to be a defense to an international law crime. But, as we have already stated, army regulations are not a competent source of international law when a fundamental rule of justice is concerned. This leaves the war clear for the court to affirmatively declare that superior order is not a defense to an international law crime if it finds that the principle involved is a fundamental rule of justice and for that reason has found general acceptance.
International law has never approved the defensive plea of superior order as a mandatory bar to the prosecution of war criminals. This defensive plea is not available to the defendants in the present case, although if the circumstances warrant, it may be considered in mitigation of punishment under the express provisions of Control Council Law No. 10.
It is urged that Control Council Law No. 10 is an ex post facto act and retroactive in nature as to the crime charged in the indictment. The act was adopted on 20 December 1945, a date subsequent to the dates of the acts charged to be crimes. It is a fundamental principle of criminal jurisprudence that one may not be charged with crime for the doing of an act which was not a crime at the time of its commission. We think it could be said with justification that Article 23(h) of the Hague Regulations of 1907 operates as a bar to retroactive action in criminal matters. In any event, we are of the opinion, that a victorious nation may not lawfully enact legislation defining a new crime and make it effective as to acts previously occuring which were not at the time unlawful. It therefore becomes the duty of a Tribunal trying a case charging a crime under the provisions of Control Council Law No. 10, to determine if the acts charged were crimes at the time of their commission and that Control Council Law No. 10 is in fact declaratory of then existing international law.
This very question was passed upon by the International Military Tribunal in the case of the United States v. Hermann Wilhelm Goering in its judgment entered on 1 October 1945. Similar provisions appearing in the Charter creating the International Military Tribunal and defining the crimes over which it had jurisdiction were held to be devoid of retroactive features in the following language: "The Charter is not an arbitrary exercise of power on the part of the victorious nations, hut in view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law."
We adopt this conclusion. Any doubts in our mind concerning the rule thus announced go to its application rather than to the correctness of its statement. The crimes defined in Control Council Law No. 10 which we have quoted herein, were crimes under preexisting rules of international law, -- some by conventional law and some by customary law. It seems clear to us that the conventional law such as that exemplified by the Hague Regulations of 1907 clearly make the War Crimes herein quoted, crimes under the proceedings of that convention. In any event, the practices and usages of war which gradually ripened into recognized customs with which belligerentswere bound to comply, recognized the crimes specified herein as crimes subject to punishment. It is not essential that a crime be specifically defined and charged in accordance with a particular ordinance, statute or treaty if it is made a crime by international convention, recognized customs and usages of war, or the general principles of criminal justice common to civilized nations generally. If the acts charged were in fact crimes under International law when committed, they cannot be said to be ex post facto acts or retroactive pronouncements.
The crimes specified in the London Charter and defined in Control Council Law No. 10 which have heretofore been set forth and with which these defendants are charged, merely restate the rules declared by the Hague Regulations of 1907 in Articles 43, 46, 47, 50 and 23(h) of the regulations annexed thereto which provide:
Art. 43 "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure as far as possible public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
Art. 46 "Family honour and rights, the lives of persons and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated."
Art. 47. "Pillage is formally forbidden."
Art. 50. "No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible."
Art. 23 (h). "(In addition to the prohibitions provided by special Conventions, it is especially forbidden) to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."
We conclude that preexisting international law has declared the acts constituting the crimes herein charged and included in Control. Council Law No. 10 to be unlawful, both under the conventional law and the practices and usages of land warfare that had ripened into recognized customs which belligerents were bound to obey. Anything in excess of existing international law therein contained in a utilization of power and not of law. It is true, of course, that courts authorized to hear such cases were not established nor the penalties to be imposed for violations set forth. But this is not fatal to their validity. The acts prohibited are without deterrent effect unless they are punishable as crimes. This subject was dealt with in the International Military Trial in the following language: "But is is argued that the pact does not expressly enact that such (aggressive) wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes; punishable as offenses against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years last past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention.
* * * The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing."
It is true, of course, that customary international law is not static. It must be elastic enough to meet the new conditions that natural progress brings to the world. It might be argued that this requires a certain amount of retroactive application of new rules and that by conceding the existance of a customary international law, one thereby concedes the legality of retroactive pronouncements. To a limited extent the argument is sound, but when it comes in conflict with a rule of fundamental right and justice, the latter must prevail. The rule that one away not be charged with crime for committing on act which was not a crime at the time of its commission is such a right. The fact that it might be found in a constitution or bill or rights does not detract from its status as a fundamental principle of justice. It cannot properly be changed by retroactive action to the prejudice of one charged with a violation of the laws of war.
An international crime is such an act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances. The inherent nature of a war crime is ordinarily itself sufficient justification for jurisdiction to attach in the courts of the belligerent into whose hands the alleged criminal has fallen.
Some war crimes, such as saying, are not common law crimes at all; they being pure war crimes punishable as such during the war and, in this particular case, only if the offender is captured before he rejoins his army.
But some other crimes, such as mass murder, are punishable during and after the war. But such crimes are also war crimes because they were committed under the authority or orders of the belligerent who, in ordering or permitting them, violated the rules of warfare. Such crimes are punishable by the country where the crime was committed or by the belligerent into whose hands the criminals have fallen, the jurisdiction being concurrent. There are many reasons why this must be so, not the least of which is that war is usually followed by political repercussions and upheavals which at times place persons in power who are not, for one reason or another, inclined to punish the offenders. The captor belligerent is not required to surrender the alleged war criminal when such surrender is equivalent to a passport to freedom. The only adequate remedy is the concurrent jurisdictional principle to which we have heretofore adverted. The captor belligerent may therefore surrender the alleged criminal to the state where the offense may committed, or, on the other hand, it may retain the alleged criminal for trial under its own legal processes.
It cannot be doubted that the occupying powers have the right to set up special courts to try those charged with the commission of War Crimes as they are defined by international law. Ex Parte Quirin, 317 U.S. 1, In Re Yamashita, 327 U.S. 1. Nor can it be said that the crimes herein charged are invalid as retroactive pronouncements, - they being nothing more than restatements of the conventional and customary law of nations governing the rules of land warfare, restricted by charter provisions limiting the jurisdiction of the Tribunal by designating the class of cases it is authorized to hear. The elements of an ex post facto act or a retroactive pronouncement are not present insofar as the crimes charged in the instant case are concerned.
The argument that defendants cannot be tried before this Tribunal is without force. It is urged they can only be properly tried in accordance with the international principles laid down in Article 63 of the Geneva.
Convention of 1929 relative to the treatment of prisoners of war. We submit that the provision applies only to crimes and offenses committed while occupying the status of a prisoner of war and confers no jurisdiction over a violation of international law committed prior to the time of becoming such.
In the recent case of In Re Yamashita, 327 U.S. I, 66 Sup. Ct. 348, the Supreme Court of the United States arrived at this conclusion in the following language: "But we think examination of Article 63 in its setting in the Convention plainly shows that it refers to sentence 'pronounced against a prisoner of war' for an offense committed while a prisoner of war, end not for a violation of the law of war committed while a combatant."
The defendants at bar are charged only with crimes alleged to have been committed as combatants before they became prisoners of war. We hold, therefore, that no rights under Article 63 of the Geneva Convention of 1929 can accrue to them in the present case. The jurisdictional question raised is without merit.
It is essential to a proper understanding of the issues involved in the present case, that the status of Yugoslavia, Greece and Norway be determined during the periods that the alleged criminal acts of these defendants were committed. The question of criminality in many cases may well hinge on whether an invasion was in progress or an occupation accomplished. Whether an invasion has developed into an occupation is a question of fact. The term invasion implies a military operation while an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organized resistance and the establishment of an administration to preserve law and order. To the extent that the occupant's control is maintained and that of the civil government eliminated, the area will be said to be occupied.
The evidence shows that the invasion of Yugoslavia was commenced on April 6, 1941. Nine days later the Yugoslav government capitulated and on April 16, 1941, large scale military operations had come to an end. The powers of government passed into the hands of the German Armed Forces and Yugoslavia became an occupied country. The invasion of Yugoslavia followed through into Greece. On the 22nd of April, 1941, the Greek Armed Forces in the north were forced to surrender and on April 28th, 1941, Athens fell to the invader. On and after that date Greece became an occupied country within the meaning of existing international law.
The evidence shows that the population remained peaceful during the spring of 1941. In the early summer following, a resistance movement began to manifest itself. It increased progressively in intensity until it assumed the appearance of a military campaign. Partisan bands, composed of members of the population roamed the territory, doing much damage to transportation and communication lines. German soldiers were the victims of surprise attacks by an enemy which they could not engage in open combat. After a surprise attack, the bands would hastily retreat or conceal their arms and mingle with the population with the appearance of being harmless members thereof. Ambushing of German troops was a common practice.
Captured German soldiers were often tortured and killed. The terrain was favorable to this type of warfare and the inhabitants most adept in carrying it on.
It is clear that the German Armed Forces were able to maintain control of Greece and Yugoslavia until they evacuated them in the fall of 1944. While it is true that the partisans were able to control sections of these countries at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country. The control of the resistance forces was temporary only and not such as would deprive the German Armed Forces of its status of an occupant.
These findings are consistent with Article 42 of the Hague Regulations of 1907 which provide: "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised."
It is the contention of the defendants that after the respective capitulations a lawful belligerency never did exist in Yugoslavia or Greece during the period here involved. The prosecution contends just as emphatically that it did. The evidence on the subject is fragmentary and consists primarily of admissions contained in the reports, orders, and diaries of the German Army units involved. There is convincing evidence in the record that certain band units in both Yugoslavia and Greece complied with the requirements of international law entitling them to the status of a lawful belligerent. But the greater portion of the partisan bands failed to comply with the rules of war entitling them to be accorded the rights of a lawful belligerent. The evidence fails to establish beyond a reasonable doubt that the incidents involved in the present case concern partisan troops having the status of lawful belligerents.
The evidence shows that the bands were sometimes designated as unit common to military organization. They, however, had no common uniform.
They generally wore civilian clothes although parts of German, Italian and Serbian uniforms were used to the extent they could be obtained. The Soviet Star was generally worn as insignia. The evidence will not sustain a finding that it was such that it could be seen at a distance. Neither did they carry their arms openly except when it was to their advantage to do so. There is some evidence that various groups of the resistance forces were commanded by a centralized commend, such as the partisans of Marshal Tito, the Chetniks of Draja Mihailovitch and the Edes of General Zervas. It is evidence also that a few partisan bands met the requirements of lawful belligerency. The bands, however, with which we are dealing in this case were not shown by satisfactory evidence to have met the requirements. This means, of course, that captured members of these unlawful groups were not entitled to be treated as prisoners of war. No crime can be properly charged against the defendants for the killing of such captured members of the resistance forces, they being franc-tireurs.
The status of an occupant of the territory of the enemy having been achieved, international law places the responsibility upon the commanding general of preserving order, punishing crime and protecting lives and property within the occupied territory. His power in accomplishing these ends is as great as his responsibility. But he is definitely limited by recognized rules of international law, particularly the Hague Regulations of 1907. Article 43 thereof imposes a duty upon the occupant to respect the laws in force in the country. Article 46 protects family honor and rights, the lives of individuals and their private property as well as their religious convictions and the right of public worship. Article 47 prohibits pillage. Article 50 prohibits collective penalties. Article 51 regulates the appropriation of properties belonging to the state or private individuals which may be useful in military operations. There are other restrictive provisions not necessary to mention here. It is the alleged violation of these rights of the inhabitants thus protected that furnish the basis of the case against the defendants.
The evidence is clear that during the period of occupation in Yugoslavia and Greece, guerrilla warfare was carried on against the occupying power. Guerrilla warfare is said to exist where, after the capitulation of the main part of the armed forces, the surrender of the government and the occupation of its territory, the remnant of the defeated army or the inhabitants themselves continue hostilities by harassing the enemy with unorganized forces ordinarily not strong enough to meet the enemy in pitched battle. They are placed much in the same position as a spy. By the law of war it is lawful to use spies. Nevertheless, a spy when captured, may be short because the belligerent has the right, by means of an effective deterrent punishment, to defend against the grave dangers of enemy spying. The principle therein involved applies to guerrillas who are not lawful belligerents. Just as the spy may act lawfully for his country and a,t the same time be a war criminal to the enemy, so guerrillas may render great service to their country and, in the event of success, become heroes even, still they remain war criminals in the eyes of the enemy and may be treated as such. In no other way can an army guard and protect itself from the gadfly tactics of such armed resistance. And, on the other hand, members of such resistance forces must accept the increased risks involved in this mode of fighting. Such forces are technically not lawful belligerents and are not entitled to protection as prisoners of war when captured. The rule is based on the theory that the forces of two states are no longer in the field and that a contention between organized armed forces no longer exists. This implies that a resistance not supported by an organized government is criminal and deprives participants of belligerent status, an implication not justified since the adoption of Chapter I, Article I of the Hague Regulations of 1907. In determining the guilt or innocence of any army commander when charged with a failure or refusal to accord a belligerent status to captured members of the resistance forces, the situation as it appeared to him must be given the first consideration, Such commander will not be permitted to ignore obvious facts in arriving at a conclusion.