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.
Insignia fixed to the clothing would have prevented this tactic which was usual among all partisans in the Balkans. That is why there is not even the slightest indication, not to speak of proof, that the partisans were any kind of insignia which could not be removed immediately.
The absence of a fixed insignia also gave the partisans the constant opportunity, under the guise of peaceful civilians and harmless peasants, to commit acts of sabotage in the territory occupied by German troops. They made extensive use of this tactic which has always been closely bound up with the partisan methods of warfare. Such conduct was war treason, even if the perpetrator would otherwise be credited with the full rights of a belligerent. I refer to Paragraph 445 of the of the British Rules of Land Warfare:
"Many other acts, however, which he attempted or accomplished in occupied territory or within the enemy's lines, by private individuals or by soldiers in disguise, are also based as war treason, although perfectly legitimate if done by members of the armed forces..."
The American armed forces on the Philippines took the same point of view during the fighting in 1900 -- 1901.
4. During their operations they must observe the laws and customs of war.
The defense has submitted extensive evidentiary material to show that the Greek and Jugoslav partisans Quite generally did not observe the laws and customs of war. This evidence has not been refuted by the fact that the prosecution referred to a few individual cases in which the partisans did observe the laws of war.
I, therefore, maintain that the partisans in Jugoslavia and Greece did not fulfill the four demands set down in Article I of the Hague Rules of Land Warfare for legal belligerents.
The examination of whether the partisans complied with Article I of the Hague Rules of Land Warfare embraces only one side of the problem of the status of the irregulars; the other side is governed by the fact that war exists between states.
The two authors, Nurick and Barret, quoting a number of the most well-known authorities on international law state.
"In addition to the requirements set forth in the Hague Regulations, it is also required, before the members of a military force are entitled to be treated as lawful belligerents, that they serve a political entity, which is a state de jure or de facto, or which at least exhibits "certain indizia of that status.
This additional requirement is a fundamental premise impliced in the Hague Regulations, and an individual does not become a lawful combatant under Article I thereof merely because he dons a uniform, carries arms openly and is commanded by a person responsible for his subordinates."
This statement, of course, is not based on Article I of the Hague Rules of Land Warfare which neither expressly nor tacitly contains this further requisite, but it is based on the principle which has been generally recognized from time immemorial, that war exists between states.
Even Cicero applied this principle to the supporters of Antonius and treated them, therefore, as robbers.
And one of the earliest authors of international law, Gentili, stated that war must be public and official on both sides, and that there must be sovereigns on both sides to direct the war.
The American Instructions of 1863 contain this principle in Articles 20 and 57.
Professor Westlake, a prominent authority on international law, states:
"We, therefore, accepting the definition of Grotius in other respects, will say that was is the state or condition of governments contending by force. Whether and how far individuals can be treated as parties to a war is a question to be discussed in the sequel, and is not prejudiced by the use of the word 'Government', as indeed it would not have been by the use of the word 'state': If they are treated as parties to a war, that can only be justly done when there is a reason for their being identified with their state or government."
Professors Oppenheim and Lauterpacht also state:
War a contention between states.
"To be war, the contention must be between states... A contention may, of course, rise between the armed forces of a state and a body of armed individuals, but this is not war .... Nor is a contention with insurgents or with pirates a war."
They state expressly that this characteristic of war also decides whether so-called guerilla war is really war in the technical sense of the word.
Similarly in a leading article, "The Guerilla and the Lawful Combatant" by George C. Wilson in the American Journal of International Law, July, 1943, it is stated particularly with reference to the status of the partisans:
"It may not always be easy to determine when a guerilla party is acting in aid of the regular forces, but as the marks of a regular force in its uniform, flag, etc. are distinguishing, the burden of proof may properly rest upon the irregular party to establish its lawful identify if it expects treatment under the laws of war.
"War is between States and the forces entitled to the rights of the laws of war are those duly enrolled in State forces or at least under its control and for whose acts the State is responsible."
We can certainly assume that these authors took into account the historical events and the practice of belligerents, at least as much as the scientific reasons; and in actual fact we state that on all the occasions in question the commanders of armed forces and the governments, when considering the problem of the status of the irregulars, worked on the principle that war exists only between states, and that the armed forces of both sides must be identified with the states; as a result of this, a war, in the sense of international law, no longer exists if a government or its armies have capitulated, or the government has been expelled, its armed forces captured, and its territory occupied.
The principle is indisputable and no injury is done to its value by the fact that belligerents and their commanders in a few cases in which the enemy government was still in its own country and fought the invader there with so-called guerilla-tactics, referred illegally to it. As in the case of Maximilian von Oesterreich towards the armed forces of the rival government of Juarez and the British towards the regular armed forces of the Boer republic during the South African war. The fact that the American armed forces in the Philippine War, 1899-1902, made a justified difference between regular armed forces of the Philippine government which was in the country, and the guerilla bands who were not part of the regular armed forces, is in complete agreement with the view taken by the defense in this trial with regard to the status of irregulars.
The principle as such is well established and universally recognized. Only in cases in which the position is not quite clear, the government or its entire forces not having capitulated, it may, at times, be difficult to decide whether a state of war still exists and whether the irregular forces are to be identified with the defeated government or not. The order issued by General Grant to General Sheridan during the Civil War on 17 May 1865, after the capitulation of Lee's and Johnstone's armies, when only the troops commanded by General Edmund Kirby Smith were still in the field in the Trans-Mississippi Area, provides a most significant and informative precedent. This order was based on the principles formulated in Articles 20 and 57 of the Instructions for the Guidance of the Armies of the United States in the Field of 1863 and read:
"If Smith holds out, without even an ostensible Government to receive orders from or to report to, he and his men are not entitled to the consideration due to an acknowledged belligerent. Theirs is the condition of outlaws making war against the only Government having an existence over the territory where war is not being waged."
The fact that the order was not carried our because General Smith did not continue his resistance but also surrendered on 26 May 1865 does not diminish its importance as a very important precedent. Neither does the fact that this order was issued in the American Civil War, and not in a war between different nations, detract from its general significance. The Confederate States had been recognized as belligerents by President Lincoln's blockade proclamation dated 19 April 1861 and enjoyed the full rights accorded to a belligerent. The principles evolved in this so-called Civil War, embodied in the Instruction for the Armies of the United States of 1863 and followed in the practice of both of the contending armies, have, as we know, provided the most important foundation for the subsequent codification of the Laws of War.
Both of the joint authors Nurick & Barret, after examining both the historical instances in which the principle that war exists only between states is of practical importance, and the theoretical foundations of this principle, arrive at the following conclusion:
"It appears clear, however, that even under the most humane of interpretations the requirement that combatants serve a government has been regarded as satisfactory only where it is a responsible and fairly "representative political entity which can exercise authority over its armed forces.
If there is a formal surrender by the enemy government and capitulation of the main body of armed forces, there is a noteworthy precedent, particularly in the position taken by General Grant in the Civil War, for regarding as unlawful combatants those who continue to resist, even though they may be substantial in number. The fact that the surviving combatant may be impelled by patriotic motives in continuing to resist does not appear to have been regarded as material to their status as lawful combatants. Of course it may be that those who continue to resist, may be large in number and may themselves constitute a de facto government, if so, they should be treated as lawful combatants. Although there is little authority, the complete military defeat of the enemy armed forces, the disintegration of the government, and the occupation of its territory would seem to have the same consequences upon the status of those who continue to resist as does a formal surrender."
The view of these two authors is in line with Professor Oppenheim's statement.
I quote: "On the other hand, one speaks of guerilla war or petty war when, after the defeat and the capture of the main part of the enemy forces, the occupation of the enemy territory, and the downfall of the enemy Government, the routed remnants of the defeated army carry on the contention by mere guerilla tactics. . . Now, the question whether such guerilla war is real war in the strict sense of the term in international law must, I think, be answered in the negative, for two reasons. First, there are no longer the forces of two States (or even the forces of a State and of an opposing Government) in the field, because "the defeated belligerent State has ceased to exist through the military occupation of its territory, the downfall of its established Government, the capture of the main part and the routing of the remnant of its forces.
.. If then, guerilla war is not real war, it is obvious that in strict law the victor need no longer treat the guerilla bands as a belligerent Power, and their captured members as soldiers."
In accordance with these principles, it is beyond doubt that the Jugoslav and Czech partisans cannot be regarded as lawful combatants. For after the surrender of the Jugoslav government and its armies and after the surrender of the Greek armies, the Germans on the Balkan peninsula were no longer opposed by any lawful belligerents whose existence might have entitled any forces in these countries to claim treatment as lawful belligerents -even if all other conditions essential to such a recognition had been satisfied -- which, however they had not.
The fact that exile governments were formed in London which endeavored to wield a kind of paper sovereignty, does not make any difference. Quite apart from the fact that the Jugoslav government, by its act of surrender, had precluded itself from carrying on the prosecution of the war, the following considerations apply to these governments in exile:
The multifarious political structure of the partisans in Jugoslavia and Greece, some of whom were fighting each other, shows that they cannot be identified with these governments in exile; and the latter, on the other hand, were unable to exert any authority on the groups of partisans which were very loosely organized, in their initial stages at any rate. Besides, the prosecution has failed to establish any kind of connection between the partisans and the London governments in exile.
Finally, the principle applies that guerilla forces can never derive their claim for recognition as lawful belligerents from a government expelled from its country.
This axiom is already implicit in General Grant's order dated 17 May 1865, specifically in the sentence referring to the soldiers under General Smith in the event of their continuing to fight, which states:
"....Theirs is the condition of outlaws, making war against the only Government having an existence over the territory where war is now being waged."
This principle is further enunciated in Article 85 of the Instructions of 1863 and in Article 349 of the U.S. Rules of Land Warfare of 1940 where explicit reference is made to war rebels in the following words:
"If captured, they may be punished with death whether they rise simply or in small or large bands, whether or not they have been called upon to do so by their own expelled government."
General Eisenhower's declaration dated 15 July 1944 with respect to the French Resistance Forces, referred to by the prosecution, is not a proper precedent which would invalidate the general principle that is must be possible to identify resistance forces with their respective governments and that the surrender of the government precludes the right of resistance forces to claim recognition as lawful combatants. This declaration was based upon an attempt to compel recognition by threats against German prisoners of war. It was not recognized by the German government.
Neither does the position taken by the Committee of the International Red Cross during the recent war in regard to the treatment of partisans speak against the existence of the principle adduced by the defense.
The Committee did not subscribe to the view that the partisans, provided they complied with certain conditions, were to be accorded the privilege of treatment as prisoners of war but that they ought to receive such treatment. The sentence in the Memorandum dated 17 August 1944:
"The International Committee considers that the above-mentioned principles should be applied regardless of any legal argument relating to the recognized existence or the belligerence of the authorities to which the combatants in action claims to belong," is a clear confirmation of the legal argument put forward by the defense in this case.
I have already said in my Opening Statement that it may well be expedient for a belligerent to recognize irregular combatants as lawful belligerents if they act on the orders of a responsible commander and observe the laws and customs of war -- this never happened in Jugoslavia -- and particularly in the event that the irregular forces have taken the field in great numbers and have formed a de facto government, a fact emphasized by Nurick & Barret. This in no way modifies the fact that, from the point of view of international law, it is left to the opponent to decide whether and when he wishes to recognize the irregular forces as belligerents. In this respect, the statement by Professor Oppenheim applies:
"If, then, guerilla war is not real war, it is obvious that in strict law the victor need no longer treat the guerilla bands as a belligerent Power, and their captured members as soldiers. It is, however, advisable that he should do so, so long as they are under responsible "commanders and observe the laws and usages of war.