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.
the population that everyone who wants to participate in the fighting must do so as a member of the Army.
They will refer the volunteer to those authorities who are authorized to enlist them."
The assertion that Jugoslav and Greek resistance was merely the consequence of violations by the Germans of the obligations to which an occupation power must adhere and that all acts of resistance of the Jugoslav and Greek populations had occurred only after the German Occupation Power had violated its obligations according to Articles 43 and 46 of the Hague Regulations is incorrect. Quite apart from the fact that the attempt thus to make the offenses against international law committed by the population appear lawful is more than dubious from the point of view of international law; the facts submitted during these proceedings make it quite clear that the contrary was true. Everything we have heard in these proceedings shows plainly that all measures of the German Occupation Forces were d e f e n s i v e and constituted counter measures by which, as the prosecution itself has stated, the German Occupation Forces attempted to re-establish peace, law, and order in Jugoslavia and Greece.
The population of Jugoslavia and Greece did not resist because it wanted to defend itself against the conduct of the German Occupation Armies which was allegedly contrary to international law anymore than was the case in other theatres of war where German troops fought the partisans. It has rather been established that the partisan movement which was called into existence by the Allied Command because it was considered to be one of the most essential factors in order to vanquish Germany.
Even the German orders, directives, and reports which have been submitted to the Tribunal by the prosecution as well as by the defense in great number suffice to show that such was the case. They give an unequivocal picture of the situation which the Commanders of the German Court No. V, Case No. VII.
Armed Forces in Jugoslavia and Greece were facing, and it can be seen from them why above-mentioned Commanders were compelled to take defensive measures. These orders and reports prove clearly that the German counter measures were caused by the illegal conduct of the population and by the partisan activities and that the contrary was not the case as has been asserted here.
Where is there an order to the effect that Jugoslav or Greek citizens were to be executed without mention having been made that previous to it German soldiers had been murdered and acts of sabotage perpetrated by the population? Where is there a report which does not prove that the German counter measures were merely the consequence of such surprise attacks against the occupation forces? Where is there an order which directs the arrest of Jugoslavs and Greeks and which does not, at the same time, show that the arrest is to take place for reasons of security; sabotage acts and murders of German soldiers having occurred because of partisan activity? Where is there a message or report which does not confirm that the arrests concern hostages, the taking of which is permissible under international law, or the interning of suspicious elements and such parts of the population which represented a potential danger for the German Armed Forces, or at least could have done so, and furthermore in areas threatened by insurrections, where surprise attacks against the German Armed Forces had occurred or partisan activity had been uncovered?
We have to look merely at the most important orders, and we will find this unequivocably confirmed.
The first order issued by General BOEHME as German Plenipotentiary General in Serbia states that the beginning of the German campaign in Russia was for Serbia a signal for a new insurrection, to which hundreds of German soldiers had already fallen victim.
Paragraph 1 of the order of Field Marshal LIST, dated 5 September 1941, concerning the "Combatting of the Serbian Insurrectionist Movement" reads:
Court No. V, Case No. VII.
"The situation in Serbia does not seem to eliminate the possibility of a spread of the insurrectionist movement.
Increased attacks on soldiers and Wehrmacht installations by strong, well-armed bands apparently organized and adroitly led, prove that previous countermeasures are not adequate.
Commander Serbia and LXV Corps Command consequently are to make all preparations immediately to enable them to cope with any aggravation of the situation and to pacify the country completely before the beginning of the winter."
The OKW order dated 16 September 1941, concerning "Communist Insurgent Movement in the Occupied Territories" summarizes the results of reports received by the OKW in the following statement:
"Since the beginning of the campaign against Soviet Russia....communist insurgent movements have broken out. The forms they take have increased from propaganda measures and attacks against individual members of the Wehrmacht to open revolt and widespread partisan warfare.
It is established that it is a question of a centrally directed mass movement which also must be held responsible for minor isolated incidents in territories quiet up to now.
In view of the manifold political and economic tension in the occupied territories one must also assume that nationalistic and other circles will exploit this opportunity to cause difficulties for the German occupation power by joining the communist revolt."
The teletype of Field Marshal LIST, dated 4 October 1941, issues Court No. V, Case No. VII.
regulations concerning the "Treatment of the Male Population in the Insurgent Areas Cleared of Partisans."
The Order by General BOEHME, dated 9 October 1941, concerns the "Cooperation of the Military Courts in the Suppression of the Uprising in Serbia."
His order, dated 10 October 1941, also deals with the "Combatting of Communist Insurgent Movements."
I have selected only orders dated during the initial periods of the occupation. All orders issued later show the same picture.
In the reports from the troops about counter-measures which had been carried out, we read again and again that the measures were carried out "in reprisal" as "Retaliation measure", "in retaliation of...", "for the murder of...", "in retaliation for the murder of...", "for the attack of...", etc.
Numerous other documents which have been submitted during this trial and testimony of witnesses have only confirmed what messages and reports have shown, which were written under the immediate impression of the events of the time. In view of all this, where is the proof for the assertion that the Germans had been the first ones to violate their duties as occupation power, and that all acts of resistance of the population had merely been the reaction?
I have already described the situation which prevailed at the time when Field Marshal List was appointed Armed Forces Commander Southeast on 23 June 1941.
It may be expedient at this point to give once again a clear picture of the development:
Scattered surprise attacks on members of the German occupation army, murders of German soldiers, and sabotage acts took place in Jugoslavia very soon after the termination of hostilities and the occupation of the country. Indications of the formation of partisan bands became apparent in several areas before any kind of counter-measures were taken. Surprise attacks were carried out by individual members of the Jugoslav population and apparently also by former members of the Jugoslav Armed Forces, who had declared despite the capitulation of 12 April 1941, thus violating the capitulation agreement "that they world continue their resistance", as the Prosecution stated in its Opening Statement.
Neither in Jugoslavia, nor in Greece, were any reprisal measures carried out during the initial period of the occupation; neither were any steps taken which even in the most unfavorable interpretation could be designated as a violation of the duties of the occupying power toward the population.
This fact has to be regarded as refuting convincingly the unfounded assertion that the resistance activity of the population had been the consequence for the violation of responsibilities which are incumbent in an occupation army towards an occupied population.
The sudden and simultaneous flare-up of sabotage and partisan activity which started with the beginning or the German campaign against the Sovient Union, shows clearly the causes and motives for illegal resistance activity, the combating of which was the concern of German Commanders in Jugoslavia and Greece during the next three years. It was apparent even at that time that the attempts at insurrection were mainly incited by Communist propaganda. The immediate aim toward which this policy was directed was a relief for the Russian army, which was involved in heavy fighting. We know today, too, that this insurgent activity against the German occupation armies was only the first step along the road to an ulterior goal, and the seizure of governmental power by Marshal Tito in Yugoslavia and the events along the northern frontier of Greece which have concerned statesmen for two years and have been discussed in the Security Council and in the meetings of the United Nations were merely steps along this road.
The events in Greece also prove the incorrectness of the assertion which argues that German reprisal measures caused counter actions on the part of the insurgents. The reports of the 164th Infantry Division, concerning events in Northern Greece in the autumn of 1941, show unequivocally, that there also partisan activity had resulted in German counter measures, and not vice versa. This is further proved by the result of the German measures: The Commander Saloniki-Aegean, to whom the 164th Infantry Division was subordinated reported on 3 November 1941:
"The energetic treatment had its effect: at the end of the month an apparent casing of the situation is noted".
It was possible at that time in Greece to nip the insurgent movement in the bud. During the subsequent period there was complete quiet and order until the end of 1942 and the beginning of 1943. Even Russian parachutists found no basis for their activities there.
Having established that the right for the Jugoslav and Greek population to resist against the German occupation forces can be concluded neither from the concept of an unlawful war nor from alleged violations of international law on the part of the Germans, we now approach one of the most important questions in international law at issue in this trial. That is the question of the status of Jugoslav and Greek resistance forces, especially the partisans. It is obvious, for instance, that justification of the execution of captured partisans and also justification of German reprisal measures, which were aimed at suppressing partisan activity, depend on the illegality of the formers' status.
I do not believe that during the examination of the indicted German commanders the court will have gained an impression other than that of a firm conviction on the part of all defendants that the partisans in Jugoslavia and Greece had no claim to the status of legal combatants. If we examine the reasons which caused these men in their capacity as soldiers to deny the partisans a status of legal combatants, we shall find that certain facts, stressed by the defendants again and again, such as capitulation, occupation, and non-compliance with Article 1 of the Hague Rules of Land Warfare actually force us from the point of view of international law to regard the Jugoslav and Greek partisans as illegal combatants. That means that captured partisans do not have to be afforded the rights of prisoners of war, and that instead, they had forfeited their lives and that reprisal measures could be taken for the purpose of suppressing partisan activity.
For the same reason, of course, the status of individual civilians and non-organized bands of snipers is of interest.
They also committed numerous surprise attacks, murders of German soldiers, and acts of sabotage against installations and communication lines of the German occupation forces. However, the problem is less complicated with respect to these persons than it is with respect to partisan units, which at a later date showed a certain amount of organization and some of which might have complied in this or that respect with the provisions of article 1 of the Hague Rules of Land Warfare. The illegality of resistance activity carried out by individual persons or non-organized groups of civilians is so obvious that I can be very brief in dealing with it.
The prosecution has -- in connection with the legality or illegality of the resistance activities against the German occupation forceslaid considerable stress on the problem of an actual and effective occupation. The prosecution contests that the German occupation of certain parts of Jugoslavia, and for the period of time after August 1942 of certain parts of Greece also, was an effective one. From this assumption the prosecution concludes that not all of the German troops occupying Jugoslavia and Greece were entitled to the rights of an occupant of these countries. For the same reason certain duties which in the normal course of events have to be observed by the population of an occupied country towards the occupation powers were allegedly not to be imposed on the population of Jugoslavia and Greece.
It is obvious that the illegality of resistance activity which entitled the enemy army to punish the perpetrator and to carry out reprisal measures can be based on two completely different factual circumstances.
1. either on the effective occupation of the area where the resistance took place, or 2. independent of the occupation, merely on the fact that those who offered resistance did not hold the status of legal combatants.
The concept of effective occupation refers to the legality of military government in enemy territory. This is particularly stressed, for instance, in the introduction to Chapter 10 of the American Rules of Land Warfare.
Effective occupation transfers to the occupant the governmental authority or power to exercise some of the rights of sovereignty with regard to legislation, administration, and jurisdiction for the duration of the occupation. It follows that the occupant can demand such obedience from the inhabitants of occupied territory as may be necessary for the security of his forces, for the maintenance of law and order, and for the proper administration of the country. As Prof. Fenwick puts it:
"..he may demand of the inhabitants the same obedience and temporary loyalty to which their lawful sovereign is entitled."
From this governmental authority and power of the occupant, which is based on the laws of war, results his right to punish any resistance and any insurrection within the occupied territory as rebellion, irrespective of whether or not those who are offering resistance comply with Article 1 of the Hague Rules of Land warfare; and equally irrespective of whether or not the occupying power - as happens frequently and as was the case with the Germans in Greece and Jugoslavia - has declared that through express decrees and penal directives that the possession of arms and any subordination is a crime punishable by death. I do not believe that there can be any doubt that, if today, in Germany, certain persons would decide to fight the occupation forces openly, and if they would form an organization for this purpose, if they wore uniforms and carried their arms openly, if they observed the laws and customs of war and were led by persons responsible for their subordinates, that despite compliance with Article 1 of the Hague Rules of Land Warfare, merely on the basis of the effective occupation of Germany, they would rightly be regarded as rebels by the occupation powers.
We see, therefore, that where an effective occupation is in force, the otherwise rather complicated problem of the legality or illegality of partisans and their activity becomes considerably simpler.
It is therefore of importance for me that the prosecution admits that an effective occupation existed with respect to Greece during the period up to August 1942. It is a direct consequence of the effectiveness of this occupation that all the acts of resistance were illegal which were carried out during the quickly suppressed attempt at insurrection in the autumn of 1941 in Northern Greece, and so were all individual actions committed later. The fact that the occupation was admitted to be an effective one, relieves me of the task of describing in detail that the Greek partisans -- at least during the period of time which is of interest for Field Marshal List, i.e., October -- could not claim the rights of legal belligerents, apart from other reasons, also because they did not comply with the provisions of Article 1 of the Hague Rules for Land Warfare.
The occupation of Jugoslavia, after the conclusion of the campaign, was also effective, despite the surprise attacks and sabotage acts which occurred here and there fairly soon, if isolated at first. In this statement in defense of Field marshal List I have only to deal with the time during which he was in the Balkans as Armed Forces Commander. During this period of time the occupation of Jugoslavia never ceased to be an effective one.
Article 280 of the American Rules of Land Warfare, which deals with the cessation of an effective occupation, is somewhat contradictory in its wording. From the sentence:
"In case the occupation evacuates the district, or is driven out by the enemy or by a levy on masse, and the legitimate government actually resumes its functions, the occupation ceases.
it follows that the resumption of the governmental functions by the legitimate state authority in the occupied territory or in parts thereof is a necessary condition for the cessation of effective occupation in the territory in question. This fact alone is a sufficiently clear indication for the cessation of an occupation.