These centuries of old German Army tradition which - as Field Marshal List often expressed to his confidential colleague General Olbricht, who was executed for participation in the attempt on Hitler's life - "were an unbridgeable gap" between officers and the exponents of the Hitler regime. Is he supposed to have thrown all this overboard shortly before the end of his long period of service, and to have become a war criminal?
Is it possible for men of such origin, with such careers and such development as Field Marshal List and the other defendants, suddenly to become criminals?
Is it credible that these men subordinated themselves to an alleged plan to decimate or to exterminate the population of occupied countries?
Here, too, history in its own way will seed and will find the truth, and in so doing will take into account the unique, difficult situation in which these men were placed.
It will also discover that the Nurnberg prosecution in its one-sided method of observation has not properly tracked down causes and backgrounds, has overlooked vast implications, and in many cases has looked at things upside down.
How would it be possible otherwise for these men to be implicated in plans which are completely alien to their disposition, and for it to be completely disregarded that all these officers were far removed from the ideology and logic of the Hitler regime?
During this trial, the defense considered it its task to show how things were in reality - how Field Marshal list was never a Nazi -General, how he was always opposed to the exponents of the Party and its organizations, and how more than once there were serious conflicts between him and Hitler. The unbridgeable opposition between the two finally led to the premature discharge of Field Marshal List in 1942. His whole past experience removed him clearly from Hitler, his people, and the National Socialist ideology. These facts did not prevent the prosecution from attributing to Field Marshal List motives and plans which were always alien and unknown to his whole being.
I address an urgent appeal to the Tribunal not to follow the prosecution along this road, but to keep the following facts in view: when Field Marshal List left the Army, he had 44 years of an honorable career behind him; and he enjoyed the highest esteem not only at home, but abroad as well. Persons of the most varied nationalities were among his pupils, and missions from many countries participated in military maneuvers under his command. None of the literature as yet published concerning the events of the World War II contains one single unfavorable word about him.1) A man who can produce all these facts to speak on his behalf does not suddenly become overnight a murderer and a pyromaniac who rejoices in torturing and oppressing occupied countries and innocent civilian populations drawn into the miseries of war! I think it not only a cardinal rule in the procedural law of civilized countries but also a natural commandment of judicial fairness to attribute unfair motives to a man with such a past only on the basis of quite definite evidence.
I must stress this fact here at the very beginning because essential parts of the indictment will then appear from the start in a different light.
Your Honors, in this connection I have reason to refer to the instructive course of events which followed the verdict in the case of Field Marshal Kesselring. It was the prosecutor himself who, at the beginning of this present trial, mentioned the strong differences of opinion which arose in England concerning this verdict. The violent opposition which it called forth there must constitute food for thought for every jurist. This verdict met with such disbelief and so much indignant rejection in England because people saw in it a striking
1.) Cf. part., notes in von Hassel, From the Other Germany. Ambassador von Hassel was sentenced to death for participation in the attempted murder on 20 July 1944.
contradiction: the condemned man was known to the world as an able soldier and an honorable man, and his former enemies on the Italian front did not hesitate to testify for him in public to this effect during the trial and after the pronouncement of the verdict. All this refers to the same man who was supposed to have been guilty of the basest war crimes.
It is encouraging evidence of the alertness, the sensitivity, and the profound awareness of law in the British people that they reacted immediately to this contradiction and took their authorities to task for this striking sentence.
In its detailed comment on the sentence against Field Marshal Kesselring, from which one can see the profound uneasiness of British public opinion concerning this sentence by the British Military Tribunal, the Manchester Guardian wrote on 22 May 1947 that considerable doubt must arise as to whether and to what extent German generals can be made responsible for the events of the war. Because:
"There is an uncomfortable feeling that we have sentenced these men to death because they are figureheads, the commanders of a defezted army whose execution would satisfy the public clamour for revenge. But that is not justice as we understand it." (Underlining added).
My request to you, Your Honors, is that when making your concluding evaluation of the case in question, Your Honors proceed from the desire and the firm purpose not to be influenced in the least by the prejudices and insinuations of the prosecution, and always bear in mind the sort of personality Your Honors are dealing with in Field Marshal List.
I should like to prefact my statements with two legal points of view.
They are the two questions:
1. Is this Tribunal competent and, 2. Is Control Council Law No. 10 binding for an American Court?
All the Generals charged were officers of the German Wehrmacht in the last war. They fell into the hands of the enemy as combattants in the sense of Article I of the Supplement to the Hague Land Warfare Convention.
According to the Geneva Convention, they, therefore, have the right to be recognized as prisoners of war.
Even in peacetime it is an acknowledged fact that the soldier comes under a special law. His judges are soldiers, because even in peacetime the life of the soldier is governed by different conditions and demands from that of the civilian.
This applies in a much more intensified form to wartime. It is therefore all the more important that the activities of a soldier during war are judged by a court composed of soldiers. The United States also acts in accordance with this principle as regards its own soldiers.
The rights of the soldier captured during war are defined in the Geneva Convention. According to Article 63 sentence against a prisoner of war can only be passed by the same courts and according to the same proceedings as against members of the custodial country. But Article 8 of the Supplement to the Hague Land Warfare Convention also subjected the prisoner of war to the laws, regulations, and orders which are valid in the army of the country in whose custody he finds himself.
In this connection it is not undisputed that the custodial country is also authorized to judge those deeds which were committed before capture.
If one answers this question in the affirmative - the reasons are immaterial - then Article 63 also applies.
The compass of deeds committed during captivity is not very large. They mainly concern disobedience, resistance to guards and superiors, mutiny, and similar offenses. The fact that the Geneva Convention prescribes the judgment of these deeds by a court composed of soldiers, is not disputed even by the prosecution. The legislative basis for this regulation applies to a much greater extent to war actions carried out within the sphere of high military command. These are the very actions which require judgment by intensely personal expert knowledge based on experience.
This is acknowledged not only by English courts which conducted the trials against Field Marshal Kesselring and Generals von Falkenhorst and Stumpf through genuine Military Tribunals. The practice of the United States has followed the same course, as in the recent trial against Skorzeny before an American Military Tribunal in Dachau. The Tribunal there was composed of American officers.
From this it follows that the defendants have a right to trial before a court composed of soldiers which, according to Article 12 of the Articles of War of the United States, must be a High Military Court (Oberkriegsgericht). This High Military Court must, according to Article 16 of the same rules, be composed of officers in rank not lower than those being tried.
This right to trial before a court composed of soldiers which is based not only on Article 63 of the Geneva Convention, but also on Article 8 of the Supplement to the Hague Land Warfare Convention, is in no way eliminated by the fact that attempts have been made to discharge Field Marshal List as a prisoner of war.
May it please the Tribunal.
Your Honors will recall that Field Marshal List protested against his discharge which he felt to be contrary to international law.1) I submitted a formal protest with detailed argumentation in a letter dated 6 June 1946 to the Commanding General of the Third United States Army.2) From a legal point of view this so-called discharge from captivity as a prisoner of war is to be considered as follows:
The agreement concerning the treatment of prisoners of war dated 27 July 1929 (Geneva Convention) contains regulations to which the signatory powers are unconditionally bound.
According to its provisions, not only have soldiers taken prisoner a right to treatment according to the provisions of the agreement by the custodial country, but the latter is also obliged to apply the Geneva Convention. It can on no account one-sidedly and arbitrarily rescind its obligation.
According to Article 75 of the Geneva Convention belligerents have to undertake basic arrangements concerning the repatriation of prisoners of war when armistice is concluded. If no arrangements of this kind exist, then the repatriation of the prisoners of war has to take place within as short a time as possible after peace has been concluded.
1) Li 550, VI, 32
2) Li 340, VI, 25 In the meantime, prisoners of war, in the case of criminal proceedings for a crime against the common law, can be held in the position of p r i s o n e r s of w a r until the end of the trial or until they have served their sentence.
From this regulation, especially in connection with Article 83 of the Geneva Convention,1) it can be seen that the custodial power can, it is true, release prisoners of war at any time even before the conclusion of peace; but according to the meaning of the agreement only in the case of an improvement in their position, not a w o r s e n i n g, under maintenance of the exercise of custody by the enemy power.
The release of captive generals as prisoners of war with the simultaneous order for their further arrest as civilian internees, whereby they were deprived of the privileges decreed for prisoners of war alone, is, as a result of the worsening of their position, an obvious offense against the Geneva Convention. Because Article 83 defines expressly that prisoners of war, until they have been repatriated, must benefit from these agreements (Geneva Convention).
The question of whether the defendants on the sole basis of the assumption or statement that a central German government no longer exists, derive no rights from the Geneva Convention, I can deal with quite briefly - in spite of the prosecution standpoint.
If this were so, then a victor at its own discretion could make the obligations it assumed in agreeing to the Geneva Convention illusory this would certainly be an untenable conclusion.
1) Text of Article 83, paragraph 2, of the Geneva Convention. "Prisoners of war shall receive the benefit of these agreements until the completion of repatriation, except in the case of express stipulations to the contrary contained in the above-mentioned agreements or in later agreements, or also except in the case of more favorable measures taken by one or the other of the belligerent Powers respecting the prisoners which they hold."
According to this, it is quite clear that the discharge of Field Marshal List is not effective, because it would have constituted an offense against the Geneva Convention.
Field Marshal List is therefore still definitely a prisoner of war and has the right to trial by a court which is competent to try an American General with rank equivalent to that of a Field Marshal.
The ruling quoted by the prosecution in the YAMASHITA case before the Supreme Court of the United States was only partially available to me. But as far as I could see, the opinion of the Supreme Court - that Article 63 was applicable only in judging deeds committed during captivity as a prisoner of war - was based exclusively on a literal interpretation of this article in the Geneva Convention.
This basis seems too narrow and too formal. Because, to begin with, there is no single mention of Article 8 of the enclosure to the Hague Land Warfare Convention, which expressly sets down the laws, instructions, and orders governing prisoners of war, which apply to the soldiers of the custodial country, w i t h o u t the literal phrasing of this Article allowing for a similar conclusion as arrived at by the Supreme Court with regard to Article 63. But finally the Supreme Court disregarded one main point of view:
In the legislation of a l l countries the soldiers are governed by a special law and have, if necessary, to answer to courts of s o l di e r s. From this fact a custom of international law, necessarily arises which must be observed in order to guarantee a just decision on such a complicated case in a military sense.
This brings me to the conclusion that the court set up here is not competent.
If we now investigate the question of whether the American Courts are bound by Control Council Law No. 10, which was issued on 20 December 1945 - that is, at a time when all the actions comprising the subject matter for this trial had already been committed - then we discover, first of all, that this law was issued in violation of the principles nullum crimen sine lege and nulla poena sine lege.
It was even created in violation of Proclamation No. 3 of the Control Council itself dated 20 October 1945 in which the Zone Commanders set down the basic principles for the organization of the administration of justice in Germany according to the achievements of democracy, civilization, and justice, and according to Article II, paragraph 2 of which states that a p u n i s h a b l e responsibility only exists for actions which the law has declared punishable.
In spite of the proclamation of the basic principles quoted, two months later Control Council Law No. 10 was issued.
I am certain that a penal law subsequently issued, and with retroactive power, would let loose a storn of indignation in the United States of America if it applied to United States citizens, although I am firmly convinced that the United States would never issue such a law for its own country.
The defendants stand before an American court which is obliged to review the constitutionality and legality of laws before applying them.
Since retroactive penal laws in e v e r y case contradict the demands of justice, this prohibits the application of Control Council Law No. 10 by an American Court.
The way out of this legal difficulty which up until now has been sought and s e e m i n g l y found is in no respect convincing. It is contended that actions declared punishable in Control Council Law No. 10 were already forbidded by the provisions of the international law. Law No. 10 merely establishes culpability and the measure of punishment.
A crime in the penal sense is, then, only present if a prohibited action is declared punishable. This very threat of punishment is the most essential part of the definition of a crime, and only through it will the penal standard become the LEX PERFECTA.
The fact that the Control Council - the originator of Law No. 10is also of this opinion, can be seen with particular clarity from proclamation No. 3 which has already been quoted, and which states expressly that punishable responsibility, only exists for actions which the law has declared p u n i s h a b l e.
We know that the American courts which have been active in Germany until now have applied, at times, Control Council Law No. 10.
But we also know that many voices have already been raised rejecting the applicability of Law No. 10 for legal reasons.
With regard to the question of the validity of Law No. 10 the statements made by a Heidelberg professor, Dr. Edward WAHL in a lecture1) on "Basic Problems of the Nuernberg Trials", seem to me to be of particular importance. He stated, among other things:
The Control Council Law threatens heavy punishment for the aggressive war which Hitler undertook against Poland in 1939 although it is certain that Russia - also one of the signatories to the Kellogg Pact and one of the controlling powers responsible for the Control Council Law - participated in this aggressive war as has been shown by the secret pacts between Molotov and Ribbentrop which have been submitted. We are therefore facing a situation in which one of the perpetrators of a criminal offense sets a standard of punishment or participates in the issuing of it. This standard of punishment has the nature of a judgment because it does not establish a punishment for any future offense as does normal penal law, but for a case which at the time when the law was issued was already concluded and which has been carried out by a limited circle of perpetrators. The London Agreement is for all practical intents and purposes called an "Agreement to Prosecute and Punish the Main War Criminals of the European Axis". In American Jurisdiction and in the literature concerning the prohibition contained in the expost facto law the difference between normal penal law with regard to the future and the standard for punishment regarding a crime the perpetration of which is a matter of the past has been
1) Given on 12 December 1947 as one of the lectures by professors at Heidelberg University.
clearly demonstrated. It has been explained that the purpose of the prohibition contained in the ex post facto law is above all to prevent that the political passion of a Parliament as has been the case in England should prescribe new types of punishment for actions committed in the past since it is the business of the judge alone to apply the existing penal law to such actions as have been perpetrated. Laws which establish standards of punishment for actions lying in the past retroactively would have the meaning of judgments. In the decision Calder versus Bull from 1798 which is fundamentally important and even today still appears as a leading case in the modern collection "Cases on Constitutional Law" by Thayer it says: "The prohibition against their making any ex post facto law was introduced for greater caution, and very probably arose from the knowledge that the Parliament of Great Britain claim and exercised a power to pass such laws, under the denomination of bills of attainder, or bills of pains and penalties, the first inflicting capital, and the other less punishment. These acts were legislative judgments and an exercise of judicial powers." Control Council Law No. 10 is such a law. One of the participants in the action which is to be punished has been involved in the issuing of this legislative judgment. Such judgments, however, cannot be passed by an accessory of the accused. He is pronouncing judgment in his own case; he is a index inhabilis. If a law of Parliament concerned, such a judgment could be defended on the basis that Parliament superseded all other organs of the State, provided that the constitution of the country in question recognizes Parliament as the highest expression of will of the State, as is the case in England. But in this case we are not concerned with the law of Parliament but with a typical governmental law which insofar as Russia is concerned has been issued by the same government which has participated in the aggressive war.
We are therefore dealing with an application of penal law which through appearing in the shape of a law is meant to assure the punishment of certain criminals for certain offenses and the carrying out of such punishment as if it were a judgment. This application of penal law is null and void because a index inhabilis has participated in the issuing of the law."
Continuing in his exposition, Professor WAHL attacks Control Council Law No. 10 from the point of view that the defendant cannot be punished inasmuch as former enemy states as well have perpetrated violations of international law of the same kind.
With regard to this particular he refers to that part of the judgment of the IMT1) which states:
"These orders, then, prove Donitz is guilty of a violation of the Protocol.
In view of all of the facts proved and in particular of an order of the British Admiralty announced on 8 May 1940, according to which all vessels should be sunk at night in the Skagerrak, and the answers to interrogatories by Admiral Nimitz stating that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first day that Nation entered the war, the sentence of Donitz is not assessed on the ground of his breaches of the international law of submarine warfare."
This sentence is supposed to mean nothing less than that a violation of international law cannot be punished if the former enemy state committed a similar violation of international law even if only in its war against an ally of Germany. It is impossible that the facts of the case, inasmuch as they incriminate the enemy states, are simply not mentioned in the judgments in order to avoid facing the legal consequences, as was the case during the first trial with regard to Russia's attack on Poland. On the basis or considerations on the history of law with regard to tu quoque Professor WAHL arrives at the conclusion "...that the international criminal proceedings with which we are concerned show elements in their structure which do not appear in the internal criminal proceedings of the state against the defendant.
The establishment of a crime against international law presupposes the establishment of a non-compliance with international law. And such non-compliance with international law exists first and foremost in the relationship from state to state. Therefore it will certainly serve as an excuse of the defendants if as for instance in the case of reprisals it can be shown that the state against whose subjects the violation of international law has
1) German Edition by the Nymphenburg Publishing Firm, Munich: "The Nuernberg Judgment", Page 155.
been perpetrated has in turn harmed subjects of the offending state........................................................ " If your Honors will remember the infinite number of cases in which German soldiers were murdered as appears from the documents of the prosecution JOVANOVITCH1) according to which the German prisoners were shot, then the point of view which has been stressed by Professor WAHL in connection with the judgment of the IMT gains considerably in importance for these proceedings.
May it Please the Tribunal.
If you are of the opinion that you would not apply a penal law which has been issued after the action was concluded with respect to citizens of your country, then Control Council Law No. 10 also ceases to be applicable in these proceedings.
1) Examination on 30 July 1947, morning, Record Page (German) 1185.
If you are of the opinion that Control Council Law No. 10 is null and void owing to Russia's participation in the aggressive war against Poland, then you shake the material legal foundation of these proceedings as you do owing to the fact that the same law cannot be applied to the actions of the defendants in view of the innumerable violations of international law perpetrated by the Yugoslavs and the Greeks as well as according to the principles arrived at in the judgment of the IMT.
It stands to reason that in a trial in which the military leaders of a vanquished nation, indicted as war criminals, have to account for their actions before a court of the victorious nation, the question of an "unlawful war" will become an important one, i.e. the problem whether, and to what extent, the laws and customs of war are influenced by aggressive war being outlawed and declared to be an international crime. This refers in particular to the authority a belligerent may claim in enemy territory and with regard to illegal combatants, in accordance with the laws of war; as well as to the duties which the enemy population has towards the invading or occupying army.
The prosecution bases its argumentation on the findings of the International Military Tribunal, that the German campaigns against Greece and Yugoslavia were aggressive wars and as such not permissible. From this argumentation, the prosecution concludes that the Greek and Yugoslav population had the right to oppose the occupation of their countries with all means and in any available manner, openly or under cover, without being bound in any way to those rules and limitations with which, according to the customs of war, the civilian population has to comply, in its relation to enemy combatant forces.
However, let us examine the international treaties and agreements which after the First World War restricted the sovereign right of nations to wage war and which outlawed war as a means of national politics, as well as the statements and opinions expressed by statesmen during conferences and at other occasions1), nowhere will we find a conclusion drawn
l) Judgment of the International Military Tribunal from the fact that the right to wage war is a restricted one, to the effect that if an armed conflict nonetheless breaks out between nations, the laws and usages of war should no longer apply to any one or both parties.
The basis of the new legal status is formed by the General Treaty to dispense with War,1) dated 27 August 1928, the so-called KelloggBriand Pact. In this treaty the nations concluding it agreed to "condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relation with one another."
The London Charter of 8 August 1945 draws the final conclusions from this development which started in 1923 with the condemnation of aggressive war, in a draft for a treaty of the League of Nations. The Charter concludes the development by establishing the fact that those responsible for an aggressive war are liable to criminal punishment as well as the conditions under which such punishment may take place.2) It contains no indications, however, of the fact that in such a war the laws and customs of war--either established by treaties, or recognized through common use, in particular the Hague Convention of 1907--concerning the relations between belligerents were no longer applicable to the fullest extent. In the judgment of the International Military Tribunal which represents the official interpretation of the Charter, we do not even find an indication of such an idea, although the judgment deals in great detail with the status of international law with regard to the question of aggressive war.
The statement made by Justice Jackson in his opening statement, to which the prosecution refers:3)
1) Art. I of the Treaty of 27 August 1928
2) Art. 6 of the Charter
3) Prosecution's Memorandum of Law (page 4 English text) "The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes."
could not be seriously interpreted to mean more than the culpability established in the Charter of those responsible for such an aggressive war.
The French and British chief prosecutors before the International Military Tribunal, who have been quoted here by the prosecution, can not, in my opinion, be alleged either to have maintained the thesis now being maintained by the prosecution1) with regard to the consequences of an aggressive war for a subsequent occupation. The argumentation of the French Chief Prosecutor that during an aggressive war all attacks on persons or property become transgressions of the common law, is rather an academic statement and considerably removed from any realistic perspective. His opinion is incompatible with the contents of the London Charter, and has been refuted by the procedure practiced in all trials against war criminals which have taken place after the last war.
As for the statement of the British government, made in 1929, and quoted by the British Chief Prosecutor, it quite obviously only deals with effects of membership in the League of Nations and of the conclusion of the Kellog-Briand Pact on the relations between belligerents and neutrals.2) It did not touch upon the laws of war, which is to be observed between belligerent parties, once war has broken out.
Furthermore, the prosecution is wrong in referring to the book by the Czech professor, Dr. HOBSA.3) The most interesting part of the
1) Ibid
2) See Oppenheim-Lauterpacht, Int. Law 6th rev. ed., 1944, Vol. II, #61, note 2.
3) Prosecution's Memorandum of Law (Page 6, English text).
author's remarks is his statement that the fight of the partisans was quite generally considered illegal -- an impressive indication for the fact that it actually was illegal. Apart from this, Professor HOBSA states, in contradiction to the thesis of the prosecution with reference to aggressive war, that only the starting of such a war is a violation of international law, while during such a war both parties - therefore the attacked nation also - have to adhere to the customs of war and international law. Professor HOBSA derives the right of the population to resist the German armies from the fact that these allegedly "did not consider themselves bound by any provisions of international law". This argumentation seems apparently to be compatible with the attempt made by the prosecution to eliminate the illegality of actions committed by the population of Greece and Yugoslavia against the German occupation forces by the assertion that the German occupation forces were the first party to violate its duties towards the population. I shall deal with this question later in my statement. At this point, it is sufficient for me to point out that not only this assumption of Professor HOBSA is incompatible with the actual occurrences in the Balkans.
Professor HOBSA is also in error concerning the legal prerequisites on which his concept of "criminal war" is based as well as concerning the conclusions which he deducts therefrom. In his argumentation about "criminal war", Professor HOBSA, in flagrant contradiction to the London Charter, assumes that according to the Charter every person actively participating in the execution of an aggressive war, by his mere participation and by every action committed against persons or properties of the population, is guilty of committing war crimes. If one takes this assumption into consideration, it becomes comprehensible that Professor HOBSA arrives at wrong conclusions concerning the rights of the population, which he deduces therefrom.
No conclusions can be drawn from the fact that hostilities against Jugoslavia were started without any previous announcement, because Hague Convention III was not applicable to the relation between Germany and Jugoslavia.
1) Neither was Jugoslavia one of the powers concluding the Treaty, nor did she make use of the possibility of becoming a partner. in the Treaty.2) The problem of so-called unlawful war and its consequences on the relations between the belligerent powers is not a new one.
Even Professor BLUNTSCHI made the following statement:
"The provision of international law governing warfare and the rights and obligations of belligerents remain valid even in an unjust war." 3) Professor BLUNTSCHI has quite clearly stated the reasons why this should be so.
He writes: "The rules of war are also finding in case of an unjust war. Failure to recognize this principle and the consequent adoption of more stringent and cruel measures directed against the belligerent allegedly fighting without just cause, or failure to concede equal rights to that belligerent, would only cause warfare to relapse into barbarism. Just as each party claims that it is merely indicating its right, it contests the validity of its opponent's cause. The rules of war have a civilizing effect on both the just and the unjust war in equal measure. The very fact that the rules of warfare do not admit such distinctions assures their universal application."4) Professor OPPENHEIM has expressed the same views on this crucial point upon which the very existence of the laws and rules of warfare hinges.
He also states that the rules of warfare are independent of the courses of war.5)
1) Art. 1 and 3 of Hague Convention III
2) See British Manual of Military Law, Chapt. XIV, Appendix 5
3) Dr. I.C.BLUNTSCHI: "Das Moderne Voelkerrecht der zivilisierten Staaten, als Rechtsbuch dargestellt." 2nd ed.,Noerdlingen 1872, #519, quoted in J.W.Garner's: International Law and the Great War", London 1920, Vol. II #440 p. 197.
4) BLUNTSCHI, ibid, #519.
5) L. OPPENHEIM, International Law 1st-4th ed., II #61.
Professor LAUTERPACHT, the present editor of Professor OPPENHEIM'S commentary, arrives at the same conclusion as the result of his investigations as to the extent to which international treaties and agreements outlawing aggressive war entered into after the first World War may have modified the problem.
He states:
"Whatever may be the cause of war that has broken out and whether or not the cause be a so-called just cause, the same rules of international law are valid as to what must not be done, may be done, and must be done by the belligerents themselves in making war against each other, and between the belligerents and neutral States. This is so, even if the declaration of war is ipso facto a violation of the international law, or when a belligerent declares war upon a neutral State for refusing passage to its troops, or when a State goes to war in patent violation of its obligations under the Convenant of the League of the General Treaty for the Renunciation of War." (1) I believe that this comment by one of the greatest living authorities on international law suffices to show that the contention that an aggressive war released the enemy population from its obligations as derived from the laws of war is untenable from the legal point of view.
Anything else would mean the disintegration of the whole body of the laws of war, the wiping out of all that progress has achieved by dint of long and painful efforts to humanize the rules of warfare, achievements which were in the very interests of the civilian population. In almost every war, if the law were strictly applied, only on of the two parties could claim a just cause of war.2) To expect the soldiers of the one party to adhere to the laws and customs of war while the troops of the opponent and the enemy population were allowed to resort to any means, would presuppose that angels and not men were fighting on that side.
There have always been aggressive wars and a nation's right to defend itself has never been disputed. It is just as certain that this right has always been bound to certain recognizable forms. Just as it is in the nature of man to defend himself, so it is a primordial rule of war that the civilian population must not take part in the struggle.
1) OPPENHEIM-LAUTERPACHT, International Law, 6th rev. ed., 1944, II, #4, p.177 and note 2.
2) cf. Vittoria, Relectiones, Ingolstadii 1580, IV No. 32 p. 289 If they do they should know that they must expect the most stringent counter measures, and they ought to know that.
This is a very harsh but a very natural law. It springs as much from human nature as from the essence of war such as we have been able to trace it as a sociological phenomenon in human history. This law has always been valid and the belligerent population and those who influence its behavior would do well always to bear it in mind.
The rule that the population is not allowed to take part in the fighting dates back to Cicero. Professor WHEATON writes in this connection:1) "Cicero tells us in his "Offices" that by the Roman fecial law no person could lawfully engage in battle with the public enemy without being regularly enrolled and taking the military oath.
This was a regulation sanctioned both by policy and religion. The horrors of war would be indeed greatly aggravated, if every individual of the belligerent States was allowed to plunder and slay indiscriminately the enemie's subjects without being in any manner accountable for his conduct.") Professor SPAIGHT has analyzed this problem in some detail in his fundamental War Rights on Land.
He writes inter alia:2) (Though the sparing of a peaceful population is a fairly modern growth in war usage, the refusal of combatant rights to nonmilitary people is almost as old as history:
it is mentioned in "De Officiis":
Professor SPAIGHT then goes on to quote KIPLING who puts the following words in the mouth of an Indian Sikh, the embodiment and spokesman of a tribe of fighters:
"It is manifest that he who fights should be hung if he fights with a gun in one hand and a purwana (a permit given to nonecombatants to their protection) in an other.")
1) H. WHEATON: Elements of International Law, Boston 1866, #356
2) J.M.SPAIGHT, War Rights on Land, 1911, p. 36.