THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: General Taylor, before you continue with your opening statement, may I inquire -- I started to say before you conclude your opening statement, may I inquire as to whether or not you will be able to conclude this afternoon and give us time for the submission of these motions?
GENERAL TAYLOR: Yes, Your Honor, we will be finished before four o' clock?
THE PRESIDENT: Very well.
GENERAL TAYLOR: I would like to explain, Your Honor -- that the responsibility for the delay in translation is mine and not the interpreters. I did not give them this material until very late yesterday, and they have done very well to get it ready by now.
Before concluding, the prosecution wishes to outline its views on certain legal questions which are sure to be discussed in the course of this trial. No doubt the Tribunal may desire a fuller discussion of these matters at a later date, but we think that a few remarks at this time may be of assistance.
Certain points may be passed over briefly, The defendants may contend, for example, that the crimes charged against them were committed under the compulsion of orders from their military superiors. As has been stated, their own military law is to the contrary. Paragraph 7 of the German Military Penal Code is quite clear and states:
If execution of an order given in line of cuty violates a statute of the penal code, the superior giving that order alone is held responsible for it. The subordinate obeying that order, however, is liable to punishment as an accessory in the event...that he was aware that the order involved an act the commission of which constituted a common or a military crime or offense.
In any event, the London Charter and Control Council Law No. 10 are governing. Paragraph 4 (b) of Article II of Law No. 10 states:
The fact that any person acted pursuant to the order of his Government or of a superiod does not free him from responsibility for a crime, but may be considered in mitigation.
So far as the plea of mitigation is concerned, should any of the defendants succeed in bringing themselves within the scope of this provision, the prosecution will suggest that it has little , if any, application to persons holding the high military rank of these defendants. There may be room for application of this provision in the lower ranks of the military, but if it is to be applied to fieldmarshals and generals, the whole doctrine of responsibility for the commission of war crimes would be absurdly limited and rendered totally ineffective. And, as the International Military Tribunal declared in finding Keitel and Jodl guilty.1 Superior orders, even to a soldier, cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly, and without military excuse or justification.
But there are a few legal matters which have a more substantial bearing on this case. These include the principles of international law and the qualifications of belligerents. We do not believe that these principles will have any decisive bearing on the outcome of this proceeding; no doubt there are many delicate and unsettled questions pertaining to hostages and belligerents, but the defendants so frequently, so deliberately, and so far transgressed the outer-most boundaries of what might be justified or defended as not unlawful, that in the final analysis no such difficult problems will confront us.
I shall deal first with Hostages and Reprisals:
The concepts of "hostage" and "reprisal" both derive from relations between nations, or between their opposing armed forces, and not from the relations between a nation or its armed forces on the one hand and the civilian population of an occupied territory on the other. This circumstance is not infrequently overlooked, and perhaps accounts for the lack of precision in much of the writing on these subjects. In war time, reprisals are actions taken by a nation or its agents in order 1. Vol.
1, Trial of the Major War Criminals, pp. 291, 325.
to prevent an enemy from continuing to violate the laws of war. Thus, if on one side, hospital ships are constantly being attacked, or the protective symbol of the Red Cross ignored, the other side in entitled to take action by way of reprisal in order to dissuade the enemy from continuing his lawful course of conduct. Retaliatory action so taken may include actions which would themselves be violations of the laws of war but for the circumstance that the acts were done as legitimate reprisals. Reprisal actions need not be identical with the unlawful act which gave rise to the reprisals, but they should not in quantity or character, be out of keeping with or disproportionate to the enemy actions which they seek to stop. Reprisals may, in some circumstances, be taken against a civilian population of an enemy country. For instance, if two belligerents are each occupying a portion of the other's territory, and one of them mistreats the inhabitants in a manner not permitted by international law, the other belligerent might take similar action in the territory under its occupational control. But in such a case, the penalties would be inflicted upon the civilians of the enemy country for the purpose of persuading the enemy government to discontinue an unlawful course of action, and not for the purpose of punishing the civilian inhabitants themselves. Indeed it is basic to the law of reprisals that although they are in a sense retaliatory, their purpose is not revenge but correction of the enemy's behavior.1 The practice of taking or exchanging hostages is very ancient; its original purpose was to insure the performance on both sides of treaties or agreements mutually entered into.
The hostages were in the nature of a pledge offered to guarantee a certain course of behavior. In more recent time, hostages have been taken not only to 1. Oppenheim, International Law, Vol.
2, pp. 51-52 (1920).
secure the performance of treaties, but also to enforce the payment of requisitions, to protect or secure the return of individuals held by the enemy, and for other like purposes. It swill be observed that, at bottom, the purpose of taking hostages is to out oneself in a position where reprisals can be taken if the enemy (or, in time of peace, the other party to the agreement) does not follow a lawful or an agreed upon course of action. It is for this reason that a distinguished author in the field of international law has said "the whole question of hostages is bound up with the question of reprisals."1 1. J. M. Spaight, War Rights on Land, p. 469 (1911). Beginning with the France-Purssian war of 1870-71, and probably before that, it has frequently occurred that hostages are taken from the civilian population of an occupied territory, not in order to affect the course of conduct of the government to which these civilians owe allegiance, but in order to control the conduct to conduct of the civilian inhabitants themselves.
This practice has been most frequently adopted by the Germans, for no other reason than that during the last eighty years, they have been most frequently in the situation of occupying the territory of a belligerent adversary. However, other nations have from time to time taken hostages for this purpose , most noticeably the British during the Boer War.
The practice of taking hostages from the civilian population of an occupied territory in order to insure the peaceful behavior of the inhabitants has been much criticized,1 but is acknowledged as lawful by the great majority of text writers and, in the light of actual practice it certainly can not be considered as a war crime. But the taking of hostages for such a purpose is not, strictly speaking, a reprisal at all, because it is not " a measure which is especially aimed at the enemy's method of waging war and which aims to force the enemy government or armed forces to abandon measures which are contrary to the laws of war." 2 Although frequently called a reprisal, such a taking of hostages is really a "police" or "security" measure. There is no opposing government or Military Commander with whom the occupying 1. Hyde, International Law, Vol.
3, pp. 1902-03 (1945); "While the taking of hostages by the occupant may, under certain circumstances, operate as a reasonable mode of securing compliance by a restive population with a just demand designed to promote the maintenance of order, occurrences in the course of World War 1 encourage the conclusion that it is also a weapon likely to be employed by a despot to check interference of any sort with ruthless and cruel acts inspired by caprice."
2. Ascan Lutteroth, Der Geisel im Rechtsleben, p. 243 (1922).
power can deal on belligerent terms. From both a military and legal standpoint, the taking of hostages or any other kind of oppressive action for the purpose of maintaining order in occupied territories must be considered from the standpoint of the right and responsibilities of the inhabitants under international law, and the probably effect of the measure upon their course of conduct . Steps which might be quite effective in order to persuade an enemy government to alter its course of conduct might be quite ineffective when addressed to the inhabitants of an occupied territory, and vice versa.
As Professor Lauterpacht, Professor of International Law at Cambridge University and a scholar who is both distinguished and modern, has pointed out:1 .....the impact of the operation of reprisals is not as considerable as would appear at first sight.
In particular, it does not seriously affect that most potent source of war crimes which originates in the lawlessness and the brutality of the occupying State.
This brings us to the question whether, if hostages are taken to insure peaceful and orderly behavior on the part of the civilian population of an occupied territory, the hostages may lawfully be executed if violent conduct by members of the population continues to endanger the security of the occupying forces. The Hague regulations of 1907 do not contain any express provisions concerning either the taking or the execution of hostages in occupied territory. They do provide, however, in Articles 43 and 46, respectively, of the Annex to the Convention, that:
The authority of the ligitimate 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.
Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.
And, if these quoted provisions are not governing, we must take full account of the declaration in the preamble to the Hague Convention, that:
1. H. Lauterpacht, The Law of Nations and the Punishment of War Crimes, printed in "the British Year Book of International Law", p. 77 (1944) It has not, however, been found possible at present to concert Regulations covering all the circumstances which arise in practice:
On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.
The majority of the text writers in the field of international law, ancient and modern, have determined, either from the unwritten usages of war, or by clear implication from the language of the Hague Convention, that the killing of hostages, under the circumstances and for the purposes with which we are here concerned, is unlawful, and that the continued confinement of hostages in as far as the occupying power is permitted to go. For example, Oppenheim sanctions the taking of hostages by the occupying power only "provided that he does not kill them."1 The classical statement by Crotius that "hostages should not be put to death unless they have themselves done wrong"2 is in accordance with the views of other old authorities and has been echoed in more recent times not only by Oppenheim but by Garner3 1. Oppenheim, op.
cit. supra, Vol, 2, pp. 241-242.
2. Crotius, De Jure Belli Ac Pacis, Ch. XI, Art. XVIII, Sec. 1.
3. J.W. Garner, International Law and the World War, Vol. 1, pp. 306311 (1920) and others,4 As might be expected, in view of the German propensity for occupying the territory of neighboring countries, and the sustained practice of the German Army in recent decades, German scholars take the contrary view, and defend the execution of hostages as a necessary measure in the event of continued civil disturbances, dangerous to the security of the occupying forces.
5 A few English and American writers have expressed agreement with, this view and argue, theoretically rather than practically, that there is a fundamental absurdity in taking hostages if they can not be executed.1 The military Field Manuals of the United States and England do not throw much light upon this problem.
The American manual states that "hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy forces or people may be punished or put to death if the unlawful acts are nevertheless committed," but in practically the same breath states that "when a hostage is accepted, he is treated as a prisoner of war," and that "reprisals against prisoners of war are expressly forbidden by the Geneva Convention of 1929".2 The British manual is not entirely clear either, but it contains the declaration that hostages are to suffer captivity, not death, if an agreement is violated.3 Despite these conflicting views in years gone by, the results of German practices with respect to hostages during the last two wars has led to more definitive declarations in accordance with the opinion 4. See, e.g., Arthur K. Kuhn, The Execution of Hostages, in "The American Journal of International Law", pp.
271-274, April 1942.
5. Waltzog, Recht der Landkriegsfuehrung, Art. 46, Par. III; Lutteroth, op. cit. supra, pp. 264-267, where, however, the author acknowledges that the majority view is to the contrary.
1. Hammer and Salvin, The Taking of Hostages in Theory and Practice, in "The American Journal of International Law", pp.20-33, January 1944.
2. Rules of Land Warfare, pp. 89-90, (1940).
3. English Manual of Military Law, par. 461.
which most authorities have always upheld. In January 1942, the representatives of nine European governments-in-exile, in the famous St. James Declaration, branded the execution of hostages as "part of a regime of terror" and categorically described such executions as punishable war crimes.4 The London Charter, in Article 6 (b), and Control Council Law No. 10 in paragraph 1 (b) of Article II, both recognize the "killing of hostages" as a war crime. The opinion bf the International Military Tribunal makes repeated reference to the killing of hostages as a war crime.5 The prosecution suggests to the Tribunal that the execution of hostages, under the circumstances pertinent to this case, is quite definitely and clearly a crime under international law.
The provisions of Law No. 10 are not only binding upon the Tribunal, but are in accordance with the views which most authorities in the field have held for decades past. But in urging the rightness of this conclusion, the prosecution does not rely principally upon the weight of authority, however impressive. On the contrary, our position is based squarely upon practical considerations of military necessity. The fundamental tenet of the laws of war, as we said at the outset, is that human life should not be taken unnecessarily. Over the past decades, only the Germans have adopted a general practice of executing civilian hostages in order to maintain security in occupied territories. Occasional examples in the military history of the other western nations may perhaps be found, but there is absolutely no footing, either in the authorities or in practical experience, for the conclusion that the execution of hostages is ever really necessary. And, if not, such executions are in flat contradiction of Article 46 of the Annex to the Hague Conventions.
4. See Kuhn, op. cit. supra, p. 274.
5. Judgment of the International Military Tribunal, Vol. I, Trial of the Major War Criminals, pp. 227-228, 234, and 290.
The short and conclusive answer to this much-mooted question is that the execution of hostages practically never achieves its intended effect. If the practice is once adopted on a systematic scale, it deteriorates rapidly into a barbaric blood bath. The officers and men of an occupying force will always find it easier to take vengeance on innocent civilians who can be readily rounded up than to track down the actual perpetrators and bring them to justice; it is only human nature, though scarcely a credit to it, that once the taking and killing of hostages is sanctioned, efforts to apprehend, the real offenders will be slackened, and repeated breaches of security will be countered only by ever greater slaughter of hostages. Furthermore, the execution of hostages, far from frightening a rebellious people into submission, tends rather to deepen their hatred for the invaders and provoke them to renewed outbursts.
Even the timid and quiescent will be driven to resist, not so much out of patriotism, as because they are no longer sure that good behavior will safeguard their own security. When hostages are going executed at the rate of 100:1, there is no security for anyone. If women and children and old men of the most pacific disposition are liable to be put away in concentration camps and eventually executed because of violence in the surrounding countryside, they will soon feel much safer in the ranks of the insurgents than anywhere else.
And that is just what happened in the countries with which we have been chiefly concerned today. The truth of what I have just said should have become apparent to the Germans within a matter of weeks after large scale military operations in Yugoslavia had been concluded, It did become apparent to some of them, but they were not listened to. As early as the 31st of July 1941, a German lieutenant colonel in Belgrade wrote a report to the defendant List in which he said:
Though nothing is said publicly about the shooting of Jews and Communists as reprisal for acts of sabotage, these shoot ings have, however, made a deep impression in Belgrade.
It is doubtful whether the shooting will prevent a repetition of acts of sabotage. The saboteurs are to be looked for in the camp of the former Serbian officers, of the Cetniks as well as of the Communists, who have the common interest of creating unrest in the country and stirring up the population to boiling point against the occupation authorities. For their purpose the shooting of people who did not directly participate in the acts of sabotage is actually welcome.
One week later, another report from Belgrade stated:
Reprisal measures, as for instance the severity of the shooting of 81 persons collected haphazardly did not bring out pacification nor did it serve as an intimidation. On the contrary, the feeling of being plundered, chased away, or slaughtered with wife and child, either by criminal Ustaschi people in Bosnia or Herzogowina, or by robber elements, or to lose life and property as the casual object of reprisal at the hands of the Germans, has embittered and made desperate the otherwise quiet and politically indifferent and loyal parts of the Serbian population, who are automatically driven into the ranks of some kind of insurgent groups.
The German civil authorities in Belgrade were of the same opinion A report dated 20 August, 1941, by an official of the Ministry of Interior to the Military Commander in Serbia, disclosed the following:
A German officer - a captain - was killed from ambush on the road Arandjelovak-Topola, 4 kilometers from Arandjelovac near the village of Banja on the morning of 16 August. The officer was going on duty by car to Belgrade. The offense was committed by a Communist who has remained unknown. This Communist had been lying in ambush in the cornfield and had fled through the corn to the woods after committing the deed.
Eleven young farmers working in the fields were captured and shot for this murder by the Germans at the place of the incident, a state of siege was declared for the entire district.
In order to combat Communist operations which had got out of hand during the last few days, the German headquarters sent a notorized assault troop which is at present going through all the villages, making arrests and - due to ignorance of the situation - is killing innocent men, women and children. All this is done on their own initiative, without inquiries and without any kind of close cooperation with the Administrative authorities at the Gendarmerie, although such cooperation is an absolute necessity for the combating of the Communist action and for exterminating the Communists in the woods. The District Office has available reports from which the movements of the Communists could be established and it also has at it's disposal all personal data of the individual Communists. However, the German headquarters does not request anything nor does it ask the District Administration for any information, and is opposed to taking to any suggestion.
The consequence of the procedure of the German assault troups will be that a large number of innocent people will be slaughtered and that the Communists in the woods not only will not be exterminated but will increase in numbers. Because many farmers, even entire villages - even though up to now they had no connection with the communists - will flee into the woods only out of fear and will be received there by the Communists. They will be provided with arms and used for combat and for open revolt against the German Wehrmacht.
This insurrection will develop on a large scale and will have incalculable and terrible consequences for the entire population.
There was no lack of these warnings. With respect to reprisal shootings carried out in the town of Kragujevac, the local German1 commandant, a captain, reported to the Military Commander in Serbia:
1. It goes without saying that even those commentators who have defended the principle of executing hostages on the ground of military necessity make no defense of the German Army's practice of this principle. See Hammer and Salvin, op. cit. supra. pp. 26, 27-28 and 32; see also Stewell, Military Reprisals and the Sanctions of the Laws of War, in "The American Journal of International Law" (1942) According to my standpoint, shooting partly or completely innocent persons from this city can have directly harmful effects.
It is to be expected that embittered relatives of those shot will now practice acts of revenge on members of the German Wehrmacht.
Sabotage acts on drinking water and on the current temporary light supply, as well as a large attack of the bandits against the city, in which the units could suffer more losses than before, are not out of the realm of possibility. Above all, the psychological effect will be catastrophic. The residents of Kragujevac have expected of the German Wehrmacht the elimination of the Communist danger and the alligning into the new construction of Europe. With the methods used here, we shall not attain in any case the winning again of the favorably-inclined elements.
Two years later, the same Cassandra-like prophesies are found in the documents. No one can ever say that these defendants were not warned. In July 1943, Glaise-Horstenau, the German Plenipotentiary-General in Croatia, strongly admonished the German Air Force for reprisal actions by way of bombing villages, because, I quote, Wit only forces additional adversaries 'into the woods', and it does not help to pacify the country, but is detrimental and shake's the confidence in the German soldier of those parts of the population which are of good will". But not until December 1943 did the German military leaders in the Balkans even pay lip service to these truths. Finally, Loehr's order of that month recognized that, and I quote:
"The procedure of carrying out reprisal measures after a surprise attack or an act of sabotage at random on persons and dwellings, in the vicinity, close to the scene of the deed, shakes the confidence in the justice of the occupying power and also drives the loyal part of the population into the woods."
But even this order was, in other aspects, so ambiguous that it did little to change those stupid and cruel policies. The slaughter of the innocent continued and the Germans reaped only a harvest of dragons' teeth.
The second set of principles of international law which are worthy of preliminary discussion at this time are those pertaining to the qualifications of belligerents. Under what circumstances are combatants entitled to belligerent status? Under what circumstances must they, if captured, be treated as prisoners-of-war, and under what circumstances may they be treated as a meree armed band and disposed of by summary execution?
These questions are especially relevant to Count Three of the indictment.
The Hague Regulations do deal with this question in Article 1 of the Annex which provides:
The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.
These requirements are traditional and generally accepted. To the extent that captured partisans in Greece and the Balkans did not observe then, we may concede that the Germans would have been within their rights in denying them the status of prisoners-of-war and executing them.1 But this does not mean that all of us here in the courtroom could here and new form ourselves into a military company, choose a commander, wear a distinctive emblem, carry arms openly, and obey the laws and customs of war, and on that basis alone claim the right here and now to wage warfare and the status of prisoners-of-war if captured.
Obviously, the members of an armed group can not claim the status and rights of belligerents until a war has started. The determination of the starting point of a war may sometimes present problems, but ordinarily the far more difficult question is to ascertain when a war has stopped. In accordance with "the laws of humanity and the dictates of the public conscience", it is desirable that wars be stopped as soon as possible, and under some circumstances it may be wise to adopt a 1. Except insofar as the provisions of Article 2 of the Annex, relating to the so-called "levy on masse" may have applied, and except insofar as the Germans themselves, by commiting the crime of waging aggressive war and, in their own operations, departing from the laws and customs of war, may have deprived themselves of the right to demand compliance with Article 1 on the part of the partisans.
fairly rigorous attitude when major military operations have come to and end, and declare that, after the signing of a treaty or armistice, the inhabitants of the defeated and occupied country, civilians and former soldiers alike, no longer have the right to carry on warfare and can not claim the status of belligerents.
On the other hand it can be, and is, often argued cogently and with the benefit of many examples from history, that nations can rise from apparent total defeat, long after the capitulation of their own former government, expel the invader, and ultimately achieve victory. As long as there is hope and particularly if there are strong allied nations as yet undefeated, true patriots of the conquered country will continue to offer desperate resistance to the invader, no matter what armistice or treaties may have been concluded with him.
The argument between the proponents of those two divergent approaches to the problem has been waged briskly ever since the representatives of the European powers met at Brussels in 1874 to formulate a code of war. In general, the powerful countries with large armies have tended to favor strict qualifications for belligerent status, and the smaller powers a very much more liberal set of rules.1 It goes without saying that the Germans have been in the vanguard of the former group of powers.
The International Red Cross has consistently sought to extend the protection of the laws of war to the members of all substantial armed groups who meet the requirements of Article 1 of the Annex to the Hague Conventions.2 We can not, in this proceeding, settle this therny and complicated problem. And we do not need to.
1. An excellent discussion of these questions is contained in Nurick and Barrett, Legality of Guerrilla Forces in the Laws of War, in "The American Journal of International Law", pp. 563-583 "(July 1946.) See also I.P.Training, Questions of Guerrilla Warfare in the Law of War, in the same publication at pp. 534-562.
2. Rapport sur l'activite du Comite international de la CroixRouge en faveur des "partisans" tombes aux mains do l'ennemi, Geneva, October 1946.
To begin with, it will be quite clear that the war did not end in Yugoslavia in April or May, 1941. Article 42 of the Annex to the Hague Conventions states very clearly that:
A 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.
The second sentence quoted above is of special importance. No doubt the Germans, had they so chosen, could have left sufficient troops in Yugoslavia to establish their authority throughout the country. But they chose not to do this. They were pre-occupied with the forth-coming campaign in Russia, and pulled out their troops before hostilities had been fully concluded in practical effect and while large portions of the country, particularly in the mountains, were controlled by substantial enemy forces who announced openly that they would continue to resist. Whatever might be the rule in other circumstances, it was not open to the Germans to sweep through Yugoslavia, evacuate the bulk of their troops before their authority had been fully established, and then declare that all future resistance would be considered a violation of the laws of war.
Furthermore, the cause of the Yugoslavian and Greek resistance forces was at no time hopeless, as events have abundantly proved. Governments-in-exile were promptly established, under whose authority these forces continued their operations, indeed, long before the end of the war, there was an enemy government within Yugoslavia. Powerful allies of the Yugoslavs and Greeks continued to maintain armies in the field and to assist the resistance groups.
Furthermore, if we look at the question as presented in this case from a practical standpoint, we again discover that the case is not nearly so difficult as it seemed at first blush. If resistance forces consist only of a few small bands, whose activities are limited to sniping and minor sabotage and who enjoy no support from other powers, there may indeed be reason for denying them the status of belliger ents.
1 But there can be no reason for such a policy when the enemy remains in large numbers, and fights in large units and with modern weapons. To deny his troops the status of belligerents under such circumstances will merely invite counter-reprisals against troops of the occupying power, and a senseless war of extermination may ensue. Even more important, such a policy will inevitably rally more and more inhabitants of the occupied country to the standard of the resistance forces. These very arguments were presented to Loehr and Lueters by Colonel Heinz, Commander of the 4th Brandenburg regiment, in July 1943. Discussing the impossibility of capturing Tito and his staff by orthodox military action, Heinz declared:
Such an elimination can only be achieved by former partisans in cooperation with the Brandenburg regiments.
The method followed up to now of shooting to death all partisans without distinction, could never be successful. Many became partisans by the combined influence of several circumstances such as Usataschi-Moslem-or Cetnik-atrocities, want and starvation, terror and duress by other partisans.
They stay partisans because the way back is blocked by the German orders. They have lost their country and their family, and so they fight to their death.
Since the political conditions in Croatia are not improving, now partisans replace those who are killed.
According to observations of my troop, it would have been possible to win over a certain percentage of the captured partisans for fighting on the German side, if their lives were spared and food, as well as their return to their homesteads later on, were guaranteed.
1. But the distinguished jurist, Oppenheim, would not even agree with this statement, Oppenheim, International Law, Sec. 60 (1928).
But the final and compelling answer to the question as it is presented in this case is that the Yugoslavs and Greeks alike, even assuming that they were completely conquered and their country wholly occupied and under German authority, had every right to rise and defend themselves by armed force because the German themselves so flagrantly violated the laws of war. True it is that the inhabitants of an occupied territory have responsibilities and duties as well as rights under the Hague Conventions. If the occupying forces comport themselves lawfully, the population is under a duty to remain peaceful and to refrain from endangering the security of the occupation troops. If the inhabitants do not fulfill these responsibilities, the occupying forces may take proper security measures, including retaliatory action, to re-establish order. But this works both ways. If the occupying forces inaugurate a systematic program of criminal terror, they can not thereafter call the inhabitants to account for taking measures in self defense. This is no technical doctrine of "unclean hands", this is elementary justice and common sense. What I have said nowhere appears in so many words in the Hague Conventions, but it is in entire harmony with the purpose of the articles, and I think no one will be heard to deny that this is the only conclusion which is possible in accordance with "the principles of the law of nationa, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."
In this case, ten thousand times ton thousand murders are charged, and for murder there is usually a motive. What moved these men to murder? Some of them religious, most of them well-educated. Some of them may now realize what they did was wrong, but, had the war ended otherwise than it did, I doubt that these things would have caused them many restless nights. Their policy of terror was a military failure, and an important cause of the defeat which has brought them to their present plight. Yet these men are certainly not without ability and some measure of understanding. Why did they not see what others saw so clearly?