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 If a law of Parliament concerned, such a judgment could be defended on the basis that Parliament superseded all other organs of the State, provided that the constitution of the country in question recognizes Parliament as the highest expression of will of the State,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.
Professor Spaight comments on this:
"There is a whole chapter of war law - its history and its principle - epitomized in this words."
Modern history provides numerous instances to show that the violation of this principle entailed dire consequences for the population in an invaded or occupied territory, there being, as Professor Spaight remarks, "ample evidence of the universality of an invader's right to punish popular resistance with a heavy hand."
I shall mention a few instances in which there is obviously no question of "Prussia Militarism", a term which in this connection is frequently quoted with some relish.
In 1792, the French occupation army in Switzerland suppressed an uprising in the Canton of Nyderwalden by a punitive expedition of cruel harshness", no prisoner being taken. After the rising had been quelled, the French General Schauenburg issued the threat to the other Cantons in the heart of Switzerland that "upon another uprising, everybody offering resistance will be killed and homes and farmsteads burnt down." 2) Eleven years later, appeals to rise against the French occupation army were issued in Tyrol.
The plea for this rising was described as "Self Defense" and the "Right of Self Defense" in the official proclamations. The insurgents were denied recognition as belligerents. On 15 May 1809, Nopoleon ordered:
"that all Tyrolose possessing arms be shot and hanged upon capture, and that, whenever within an area, village, district or territory under the jurisdiction of a court a dead soldier is found, the entire valley or area or territory under the jurisdiction of the court, be burnst down within 24 hours, the most prominent inhabitants thereof be hanged on the next tree even if they be found without arms." 3) In 1814, the Duke of Wellington threatened the French frontier villages that he would burn down the villages and have the inhabitants hanged if
1) Spaight, ibid., P. 40
2) No. 331 in the "Correspondence of Peter Och", 1796-99, vol. 2
3) Proclamation of the Duke of Danzig dated 15 May 1809, quoted from Meurer "The Hague Peace Conference", vol. II, p. 66.
they supported the partisans.
A most informative instance of the natural reaction of an invasion army to hostile acts on the part of the population is provided by the American Civil War.
On 24 Dec. 1864, General Sherman wrote in a letter to General Hallek:2) "This war differs from European wars in this particular; we are not only fighting hostile armies, but a hostile people and must make old and young, rich and poor, feel the hard hand of war, as well as their organized armies."
On another occasion he stated:
"The people must be left but their eyes to weep with over the war." 3) This Swiss historian Bircher writes in his book War without Mercy about General Sherman: In his instructions he gives the following typical order: The roads, the horses, and the people have to be destroyed.
In his memoirs General Sherman himself writes as follows:
"Before we left Carolina, the soldiers had become so used to destroying everything which was on the route of the march that the house in which I had my headquarters frequently burned before I had left it."
The following remark was made by General Kill Patrik, the Commander of Shermann's cavalry:
"Only the ruins of what used to be human dwellings shall prove to future generations that Kill Patrik's horse-men came this way.4) A few years before that (1860) a "well informed" author -- so designated by Spaight-pointed out:
"That attacks by the inhabitants of an invaded country directed against the hostile troops would recoil with terrible effect upon their own heads. Men, women, and children sacrifized the innocent as well as the guilty, houses burned and property plundered and devasted - all are considered legitimate retribution for actions of agression by an unorganized population."
Time has spread its cleak over these events.
1) Bluntschi, ibid., as above p. 643
2) Sherman "Memoirs", p. 226, quoted by Spaight, ibid, as above p. 40.
3) Higgins "War and the Private Citizen", p. 65
4) G.W. Nocils "Story of the Great March", 1865.
5) Blackwoods Magazin, Vol. 88 (1860) Page 612, quoted at Spaight, see previous reference, page 39.
They have lost their harshness and have disappeared from human memory. I have referred to these remarks only because they show in an incisive and direct fashion the reaction which is called forth all too easily if the population participates in the battle against an invading army. They arc convincing proof for the correctness of Professor Spaight's statement to the effect that "those who claim for every citizen the right to take arms at his pleasure against an invader are really striking at the roots of all clean and civilized war."
1) That is the g r a v e responsibility of those who incited the Greek and Jugoslav populations after the surrender of their armed forces and alter the occupation of their countries to fight against the German Occupation Amy thereby violating international law, and it is also the responsibility of all those who promoted and supported such warfare from abroad, thus preventing the speedy re-establishment of law and order in the occupied territories.
The delegates to the Brussels Conference of 1899 and of 1907 have keenly dealt with the problem of participation by indigenous population in the fight against an invading or occupying enemy army. Regarding the result there is no serious disagreement amongst the authorities on international law, and the unequivocal attitude of the governments with regard to this problem can be seen from the military manuals of the United States and of Great Britain both of which deny the rights of belligerents to insurgent populations.2) It is true that at the Brussels Conference of 1877 as well as at both Hague Conferences the deputies of various small and medium-size states stood up for far-reaching recognition of the right of their population to fight against an invading enemy.
They referred to tradition, history, and the patriotic feelings of their fellow-citizens while forgetting the
1) Spaight see former reference page 38
2) Basic Field Manual, Rules of Land Warfare (1940), Art. 12 and 349; British Manual of Military Law, Chapter XIV, Rules of Land Warfare, Art. 29.
practical consequences which have always been brought about by the participation of the civilian population in combat.
The well-known Belgian expert on international law. Rodin - the President of the Institute for International Law and Referent of the Commission for the Law of Land Warfare at the Hague Convention of 1899 - immediately after the Brussels Conference expressed the warning and pointed out that the insurrection of a population was a means of combat "which should not be regarded in the heroic light of certain famous episodes but with an eye to its miserable and common reality.
1) At none of these conferences the great powers, as has been asserted, had the intention to deny a population its natural right to defend its fatherland.
The attitude taken by their deputies was rather in agreement with the laws of war which have applied as legal usage particularly with regard to the problem of participation by a population in the fight and its insurrection in occupied territory, and this attitude took account of the interests of the populations in a far more realistic manner than the somewhat pathetic views of some of the deputies of smaller nations.
One has to bear in mind that Art. 85 of the "Instructions for the Government of Armies of the United States in the Field" of 1863 written by Professor Lieber just eleven years previously at the request of President Lincoln and almost literally reproduced in Art. 349 of the American Rules of Land Warfare of 1940 - above being the first codification of martial law which with regard to insurrections in occupied territories formulated the then valid law very accurately - read as follows:
"war-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army or against the authorities established by the samel. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government. They are not prisoners of war, nor are they, if discovered and secured before their conspiracy has matured to an actual rising or to armed violence."
1) Revue of International Law, 1875, page 109 and following pages.
The Russian suggestions for the Brussels Conference were based to a large extent on those Instructions from 1863. The fact that Article 74 of the Russian draft was withdrawn owing to the objections raised by Belgium, Holland, and Switzerland was a compromise only as far as the form went but not in essence.
The manual of the Institute for International Law, issued in 1880, which was mentioned by the prosecution in its Memorandum of Law 1) was not a codification but -- strictly speaking -- merely the work of the exports represented at the Institute. Having been accepted in a meeting of the Institute in Oxfort on 9 September 1880, the manual was made available to the governments of Europe and of the United States with the suggestion to incorporate corresponding provisions in the instructions to be given to the armies. The above-mentioned provisions of the Military Manuals of the United States and Great Britain prove that the suggestion contained in the manual to afford insurgents in occupied areas the rights of prisoners-of-war was not approved by the governments.
During the Hague Conference in 1899, the small states, this time supported by England renewed their struggle for the recognition of an unrestricted right of the population for self-defense. The Belgian representative, Beernaerdt, requested that Articles 9 and 10 of the draft2) (Article 1 and 2 of the Hague Conventions of 1899 and 1907) be stricken, which limit the conditions for a legal resistance of the population and of irregular units.
The Russian president, von Martens, opened the discussion in the meeting of 20 June 1899, during which the differences of opinion clashed, and he outlined the point of view of the large powers.3)
1) Prosecution's Memorandum of Law (page 11, English text)
2) La Conference Internationale de la Paix, La Haye, 18 May - 29 Juillet, 1899, Ministere des Affaires Etrangeres. La Haye, 1899, III, page 112, French text.
3) Ibid., pp. 151 ff.
He declared that the "holy right of the nations" for defense was to be impaired by no means. Articles 9 and 10 were only to provide that a duty, which was equally incumbent in all nations, was to be duly fulfilled, namely to ascertain the essential conditions under which a nation was to be permitted to participate in a war, and thus to avoid unnecessary bloodshed. He closed his statement with the words:
"It is not our task to limit patriotism; it is solely our task to establish by common agreement between the nations the rights of the population as well as the conditions to be fulfilled by those who want to fight legally for their fatherland."
The Swiss representative, Col. Kuenzli, recognized the fact, which von Martens had already stressed, that according to the existing customs of war any insurrection had up to date been countered with equal ruthless severity, Col. Kuenzli therefore moved that reprisals, against open armed resistance of the population in occupied territory be forbidden.1) He Withdrew that motion after the British representive, General Ardach moved that a special article was to establish that the right of defense of the population in a territory which had been invaded by the enemy was to be neither reduced nor destroyed by Article 10 2). This motion was also withdrawn after the German representative, Col. von Schwarzhoff, objected to it and after even the Belgian representative, Beernaert, and the representatives of Denmark, Sweden, Norway, Holland, Roumania and Italy opposed an attitude such as was demanded by General Ardach to be expressed by the article to be included in the regulations, and after only Switzerland was prepared to vote for the British motion.
Thus Articles 9 and 10 of the Brussels draft became international law as Articles 1 and 2 of the Hague Rules for Land Warfare of 1899 and 1907. In 1907, however, the recognized right of the population of occupied territory to rise against an a p p r o a c h i n g enemy was qualified by the conditions that arms would have to carried openly.
1) La Conference Internationale de la Paix, III page 154.
2) See prosecution's Memorandum of Law, (Page 12, English 12) The results of the Hague conferences with respect to the question of on insurrection of a population in occupied territory have been formulated very clearly and unequivocally by Professors Oppenheim and Lauterpacht.
In the well-known commentary "International Law" the following is stated after discussing Article 2 of the Hague provisions:
Court No. V, Case No. VII.
"Totally different, however, is a levy en masse of the population of a territory already invaded by the enemy, for the purpose of freeing the country from the invader. Article 2 of the Hague Regulations does not cover this case, in which, therefore, the old customary rule of International Law is valid, that those taking part in such a levy en masse are liable to be shot if captured".
We assume that the provisions of the Military manuals of the United States and Greak Britain concerning insurrections in occupied territories contain the official opinions of these two states about the status of international law with respect to this particular question. They read as follows:
"Article 12 of the American Rules of Land Warfare:
Uprisings in occupied territories: If the people of a country or any portion thereof, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection."
"Article 349: - War Rebels.
War rebels are persons within territory under hostile military occupation who rise in arms against the authorities established by the same. If captured, they may be punished with death, whether they rise singly or in small or large bands, whether or not they have been called upon to do so by their own expelled government and, in event of conspiracy shall have matured by overt act of conspiracy."
Article 29 of the British Rules of Land Warfare reads as follows:
"...They are exempt from the obligation of being under the command of a responsible commander and Court No. V, Case No. VII.
bearing a destinctive sign. It must, however, be emphasized that the inhabitants of a territory already invaded by the enemy who rise in arms do not enjoy the privileges of belligerent forces."
Concerning this question the most prominent authorities on international law and the competent military agencies, including those of the United States and Great Britain, are in agreement -- certainly not because they want to restrict the rights of the nations to defend themselves or because they are followers of a narrow doctrine. Instead their opinion is based on the realistic recognition of the basic fact that war exists, which SPAIGHT formulated as follows:
"The separation of armies and peaceful inhabitants into 2 distinct classes is perhaps the greatest triumph of international law. Its effect in mitigating the evils of war has been incalculable."
The events in Jugoslavia and Greece were a very impressive proof of the decisive importance of the principle which had been basically recognized for some considerable time. This principle was violated during the war in the Balkans by Germany's enemies to an extent never equalled in history. In Jugoslavia as well as in Greece, the civilian population was incited to rise against German occupation forces by powers constantly instigated and supported from abroad. One glance of history ought to have sufficed in order to realize the consequences which this, according to a fundamental law of war, was bound to entail for the population.
It is not without significance to note that this realization, even before the last war, was also shared by the nations who, as recently as at the Hague and Brussels conferences, had ardently advocated a very far-reaching recognition of the right of their population to rise against an invader. I have already mentioned that at the Court no.
V, Case No. VII.
Hague Conference of 1899, Switzerland was in the end the only country prepared to vote for the far-reaching motion of the British representative. The Swiss view has meanwhile undergone a radical change. Please listen to the opinion of an eminent soldier of that country which owes the preservation of its independence and its great prestige in the world as much to the courage of its inhabitants, so often proven in history, as to their shrewdness.
In 1927 the Swiss Chief of the General Staff, Oberstdivisionaer SPRECHER VON BERNEGG, stated in a lecture on the question of a people's war:
"The claim that such a rising by any rules can no longer be sustained to-day after the 1907 agreement has provided the means of procuring belligerent rights to all participants in the fight, if they want to take the trouble of availing themselves of this means. Besides, the consequences entailed by an unlimited popular participation in the fighting must be realized. By that, the opponent will be forced to see an enemy in every inhabitant and to attack every locality, even if it be at first undefended, and in any case to destroy it because its inhabitants claimed the right after invasion by the enemy to use their hidden arms on guards, trains, and non-combatants. That would no longer constitute war, but assassination writ large."
If one wants to make war humane one must not make such wild demands. The conclusion from this realistic consideration in which also other high-ranking Swiss officers concurred has been drawn in the Swiss Service Regulations of 133, Article 5 of which states:
"Troop Commanders and authorities will explain to Court No. V, Case No. VII.