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.
A clear marking of the cessation of an occupation can, however, not be dispensed with because of its far-reaching consequences with regard to international law, for the occupation power as well as for the inhabitants. An occupation power, which temporarily shunted a national uprising, might, after all, return before the legitimate government resumed its function in the territory in question, and the former would then be entitled, of course, to treat the participants of the national uprising as rebels.
The same has to hold true also in instances of partisan activity. An occupant might frequently and for a considerable period of time be facing partisan or guerrilla activities and the resistance offered can show various degrees of strength and extent from isolated surprise attacks and attempts which undoubtedly cannot impair in any way the effectiveness of the occupation, up to operations of a larger scale, which might force the occupant to evacuate temporarily certain parts of the occupied area. Can somewhat vague symptoms, such as the strength and extent of the partisan activity, or the period of time which elapsed until counter action is taken, be regarded as useful indications for the cessation of an effective occupation, which has such far-reaching consequences? Where can the line be drawn, in such a case, if not in the fact that the legitimate government has resumed its functions in the area, where the partisans were operating and under their protection. This is also the opinion of two authors as prominent as Hall and Westlake.
Professor Hall writes:
"A territory is occupied as soon as local resistance to the actual presence of an enemy has ceased, and continues to be occupied as long as the enemy's army is on the spot; or so long as it covers it, unless the operations of the national or an allied army or local insurrection have re-established the public exercise of the legitimate sovereign authority."
Professor Westlake has accepted this opinion as his own.
In no part of Jugoslavia did the legitimate government resume its functions at any time during the war.
Since the prosecution contends, however, that the effectiveness of the occupation of parts of Jugoslavia even for the period immediately following the conclusion of the campaign is questionable, I shall make the opinion of the prosecution the basis of my arguments for the purpose of examining the facts when I now deal with the status of the Jugoslav resistance forces as seen from the point of view of international law.
Three groups of people participated in resistance activities in Jugoslavia:
1. members of the dissolved Jugoslav army, who above all participated in acts of resistance and surprise attacks, during the period of time immediately following the conclusion of the campaign 2. Individual persons and unorganized bands of civilians 3. Partisan groups of various political orientations.
We have been able to gather from statements made by the prosecution that members of the Jugoslav army escaped to the hills after the conclusion of the campaign and that they used stores of arms and equipment which they had taken with them to continue to fight against the Germans.
This leads us to the question of the capitulation and its effects. The campaign in Jugoslavia as concluded through a capitulation of the whole of the Yugoslav army and of the Yugoslav government. The capitulation was concluded on the part of the Yugoslavs and signed for the Army by a Lt. General and a full General with proper authority; and for the Yugoslav government by the former Foreign Minister Markovic by virtue of authority given by General Kalafatovic, which is turn was based on authority given by General Simovic. The substance of the capitulation agreement was that the whole of the Yugoslav Armed Forces were to discontinue hostilities and unconditionally surrender their arms.
I have produced proof for this fact through the testimony of the witness, Dr. Feine, who was present during the capitulation negotiations as an observer for the German Foreign Office. Testimony given by the witness, Dr. Feine, further proved that the carefully examined authority of the Jugoslav delegates was properly authenticated. This important fact cannot now simply be eliminated through the assertion that the members of the Jugoslav delegation were Quislings which, by the way, is not correct. General Simovic, on whose authority Minister Markovic was authorized conclude the capitulation, was at that time the head of the Jugoslav government and later on the head of the exiled Jugoslav government in London. There can be no doubt whatsoever, therefore, that the capitulation was effectively concluded on the part of the Jugoslav army as well as on the part of the Jugoslav government.
THE PRESIDENT: The Tribunal will take its morning recess at this time for 10 minutes.
THE MARSHAL: All persons in the Courtroom please take their seats.
The Tribunal is again in session.
PRESIDING JUDGE CARTER: You may proceed, Dr. Laternser.
DR. LATERNSER: "Capitulations -- in the strict sense of the English term -- are agreements between the armed forces of belligerents, stipulating among other things, the terms of the surrender of troops. Their purpose is the abandonment of hopeless struggle. They concern, as mentioned before, the surrender of armed forces and are military agreements solely and exclusively, the competence for the conclusion of which is vested in the commanders of the forces opposing each other. Only inasmuch as they contain any agreements which exceed the capitulation of the armed forces, is it necessary for the validity of the former that the competent political authorities participate in the negotiations.
Article 35 of the Hague Rules for Land Warfare states concerning military capitulations that they must take into account the rules of military honor and that, once settled, they must be scrupulously observed by all parties.
We have gathered from statements made by the prosecution that capitulation which concerned the whole of the Yugoslav Armed Forces was supposedly not adhered to by parts of the Army; if we examine the consequences of such behavior for these members of the Yugoslav Armed Forces who continued to fight against the Germans, we find that this factor alone justifies their punishment as war criminals and could be countered by reprisal measures on the part of the Germans.
In the commentary by OPPENHEIM-LAUTERPACHT the following is stated in this connection:
"That capitulations must be scrupulously adhered to is an old customary rule, since enacted by article 35 of the Hague Regulations. Any act contrary to a capitulation would constitute an international delinquency if ordered by a belligerent government, and a war crime if committed without such order.
Such violations may be met with reprisals or punishment of the offenders as war criminals."
In this connection I recall again the statement by former Prime Minister CHURCHILL on 8 May 1945 which he made when announcing the unconditional surrender of Germany. I have quoted it once before, in my Opening Statement:
"Hostilities will end officially at one minute after midnight tonight, Tuesday the 8th of May. The Germans are still in places resisting the Russian troops, but should they continue to do so after midnight, they will of course deprive themselves of the protection of laws of war and will be attacked from all quarters by the allied troops."
The Germans were, therefore, authorized according to the laws of war, if only because of the breach of the military capitulation alone, to treat those former members of the Jugoslav army who thought they could continue fighting the German troops as war criminals and to counter their resistance with reprisals; and it cannot now be said that the German commanders committed war crimes by so doing.
That was the direct effect of the military capitulation on those members of the capitulating Jugoslav army who continued to resist the Germans; and this direct effect is independent from the participation of the Jugoslav government in the capitulation agreement. I will deal with the indirect effect which capitulation of the armed forces of a belligerent nation and its government had on the status of all the resistance forces of the country concerned when I turn now to these resistance forces.
The status of the partisans according to the laws of war depends on two fundamental factors:
1. The clear division of the enemy population into armed forces and peaceful inhabitants, which I have already indicated in another connection, 2. The fact that war exists between states and only between states.
As a consequence of the Brussels and the two Hague conferences and as a compromise between the strict views of the larger countries with standing armies and the efforts of the smaller countries to achieve for their peoples a right of defense in a less permanent form, we have Articles 1 and 2 of the Hague Convention.
They contain the minimum demands which can be made on irregular combatants in order to regard them as legal belligerents according to the laws of war. It is true that some delegates at the time thought that from certain declarations and from the preamble of the Convention, Articles 1 and 2 could not be interpreted as exclusive. But we know today that development has outdated those reservations and opinions. The prophecy made by the Swiss delegate as long ago as at the Hague negotiations in 1899 has also come true. It was that in the final analysis only the text of the law is decisive. In this respect, too, the preponderance was evident which codified rules in a sphere so full of uncertainties as the laws of war quite naturally contain.
I quote Professor OPPENHEIM's statements:
"Article 1 and 2 of the Hague Regulations make the greatest possible concessions regarding hostilities committed by irregulars. Beyond the limits of these concessions belligerents will never be able to go without the greatest danger to their troops."
And how unrealistic the opinions of some of the representatives of the smaller states were at that time can be seen, for instance, from the fact that the Belgian delegate LAMBREMONT asked quite seriously what the fate of a citizen would be who, on his own, in an unoccupied part of the country, committed hostile acts in order to halt the advance of the enemy. There was never any doubt that such an inhabitant robbed himself of the protection afforded by the laws of war.
The very definite interpretation of the governments, especially the governments of the United States and Great Britain concerning the exclusiveness of Articles 1 and 2 of the Hague Rules of Land Warfare is set down in the provisions of the Military Manuals of these countries in which no right, beyond the text of Articles 1 and 2, is recognized on behalf of the population to participate in combating the enemy.
With regard to the uprising which is sanctioned under definite provisions in Article 2, it can be seen from the intentional choice of the term "with the approach of the enemy" that this can only be recognized in an area into which the enemy has not yet penetrated. This is stressed, for instance, in Paragraph 29 of the British Rules of Land Warfare, and similarly emphasized in the comments of OPPENHEIM-LAUTERPACHT which ran as follows:
"It is of particular importance not to confuse invasion with occupation in this matter. Article 2 distinctly speaks of the approach of the enemy and thereby sanctions only such a levy on masse, as takes place in country not yet invaded, although the invasion has not yet ripened into occupation, a levy on masse is no longer legitimate."
Since, as I have already stressed in my investigation of the status of the Jugoslav partisans, I proceeded from the standpoint of the prosecution that an effective German occupation was not shown in all parts of Jugoslavia, this clarification may perhaps be of some importance. Because, if the prosecution also disputes an effective occupation, then it certainly cannot be denied that throughout Jugoslavia and Greece after the end of the campaigns the conditions for a legitimate people's rebellion in the form of an organized uprising were no longer present.
Therefore, the prosecution takes into account for the Jugoslav and Greek partisans the fulfilment of the conditions in Article I of the Hague Rules of Land Warfare. But if we examine the partisan units from this point of view, we discover first of all, that they were obviously not militia and voluntary corps in the sense of Article I which was either the army of the country concerned, or part of it, or who were connected with the regular army or still existing parts of it.
Just as little did they fulfill the further conditions set down in Article I for recognition as legal combatants.
1. Someone had to be in charge who is responsible for his subordinates. This provision is not absolutely clear. OPPENHEIM-LAUTERPACHT's comments on this are:
"It probably means responsible to some higher authority."
This demand is in line with the viewpoint emphasized in the British Rules of Land Warfare, "....so that there may be no doubt that they are not partisans acting on their own responsibility."
The whole fundamental difference which exists between partisans, even organized ones, and the militia and voluntary units, to which Articles I of the Hague Rules of Land Warfare refers, is expressed in those words. Every guerilla or partisan band has its leader, but, of course, if he merely wears an officer's uniform, as may have been the case occasionally in Jugoslavia or Greece, or if he were an officer in the dissolved army, this does not suffice to make these men into a recognized militia or a voluntary unit. This applied, without doubt, to the initial period, which is the one period of interest to me as defense counsel for Fieldmarshal List.
2. They must wear a definite, fixed insignia, recognizable from a distance, and 3. must carry their weapons openly.
These two demands are closely bound up with each other, because both refer to a certain habit of the partisans which has been from time immenorial a characteristic of this type of irregular; a habit which the partisans in Jugoslavia and Greece also exhibited to the largest possible extent. I mean the alternate appearance as armed resistance forces and -- after committing surprise raids or if danger is near -- as seemingly peaceful citizens. The valid general principle in this respect is clearly expressed in the British Rules of Land Warfare:
"The division of the enemy population into two classes the armed forces and the peaceful population has already been mentioned. Both these classes have distinct privileges, duties, and disabilities.
It is one of the purposes of the laws of war to insure that an individual must definitely choose to belong to one class or the other, and shall not be allowed to kill or wound members of the army of the opposed nation and subsequently, if captured or in danger of life, to pretend to be a peaceful citizen."
From this principle arises the demand set down in Article I, Paragraph 2, for a fixed insignia, which cannot be removed at the wearer's discretion.
For tho same reason, the provisions of Article I, Paragraph 2 are, of course, not fulfilled if the weapons are merely carried openly during combat, as the partisans may have done occasionally when they were not only acting as snipers. The provisions in Paragraph 3 are not adhered to, if, when the fighting is over -- or as soon as they are in trouble -- the irregulars hide their weapons or get rid of them somewhere, in order then to appear as seemingly peaceful civilians, as was usual with the partisans in Jugoslavia and Greece. Paragraph 26 of the British Rules of Land Warfare notes in this connection:
"The third condition provides that irregular combattants shall carry arms openly. They may be therefore refused the right of the armed forces if it is found that their sole arm is a pistol, handgrenade, or dagger concealed about the person, or a sword stick, or similar weapon, or if it is found that they have hidden their arms on the approach of the enemy."
The fact that a violation of this principle deprives the perpetrator of the protection of the laws of war has been stated in Article 82 of the American Instructions dated 1863. This contains a comprehensive characterization of the guerillas and partisans which, in many respects, still applies today:
I quote:
"Men or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, diverting themselves of the character or appearance of soldiers -such men or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates."
SPAIGHT writes on the same question:
"It cannot be seriously questioned that those franc-tireurs who made themselves indistinguishable from the peaceable population either by removing their distinctive badge, or as some did, by changing into civilian garb after committing acts of aggression, were not entitled to belligerent rights. No army commander will suffer his troops to be menaced by men who claim now the privileges of combatants now those of the peaceful inhabitants."
If we look at the evidence which the prosecution has submitted as proof of the fact that the Yugoslav and Greek partisans complied with the demands of Paragraph 2 of Article I of the Hague Rules of Land Warfare, then we find that the partisans are supposed to have worn a cockade or a Soviet star or certain other insignia in their lambskin caps -- the Cetnik partisans also had black beards and crossed cartridge belts.
Of course, from the presence or the absence of a beard, or its coloring one can draw no conclusions about the status of a person according to the laws of war, and the black beards of the Cetniks, on which the prosecution relied, are, therefore, not insignia in the sense of Article I, Paragraph 2.
The fact certainly cannot be doubted that Serbian cockades, skull and crossbones, red star, small ribbons, or tassels on the usual lambskin caps worn in the country are not insignia which can be seen from a distance. And it is just as certain that these articles worn on the headgear are definitely not fixed insignia in the sense of Article I, Paragraph 2.
Where is it customary for the members of an armed force only to be recognizable by their headgear? And why did the partisans not vicar these insignia fixed to their clothing? The reason is obvious. I maintain that the partisans, as far as they wore insignia at all, only wore them on their headgear because these could be quickly thrown away, in the same way as their weapons and cartridge belts were usually thrown away or hidden, so that after the fighting or when the Germans were closing in and danger threatened, they could give the appearance of peaceful civilians.