"According to the statements of Colonel Foertsch, which he made upon order of Field Marshal List, I considered the request of the 12th Army for reinforcement and improvement of its units very reasonable. Upon a calm evaluation seen also from the military point of view of the situation described, it had to be admitted that the appeasement of the occupied territories of the Balkans, which was the task of the Commander of the Wehrmacht assigned to him by the OKW, could only be accomplished through stronger, better qualified and more mobile troops. I therefore regretted very much that I could not help out Field Marshal List through the OKH. The situation at the Russian theater of war and the operations taking place at that time--preparation of the Vjasma battle, Briansk-made it impossible for the OKW to release more troops for the Southeast or to promise their release in the near future. Probably for the same reasons, without discussing it with me, the OKW rejected the request of General Field Marshal List.
"During the conversation conducted with me by Foertsch, upon orders of his commander in chief, General Field Marshal List, he also mentioned the great difficulties with regard to communications and the supply for the population of the occupied countries connected with that, as well as the questions of currency and other problems connected with the welfare of the population.
"From his short statements I could recognize the high sense of responsibility which moved Field Marshal List with regard to the population of the occupied territories, but also his disappointment about the small help which he had gotten from the OKW. In this way I could but agree with him, but, concerning this field of work, which was the exclusive domain of the OKW, I had to limit myself to assuring him of all support that could possibly be given him through the General Quartermaster."
The affidavit is signed Franz Halder.
These requests for more troops also become evident from several reports. In this connection I again want to refer to List Document 203, which I have previously offered to the Tribunal as List Exhibit 43. I want to read one brief paragraph only, from Document Book IV-B, page 163. In the first third of page 163, in Document Book IV-B, we have the following entry:
"29 August 1941. Military Commander Southeast sends Third Battalion, Regiment 433 of 174th Infantry Division as replacement for Engineer Battalion 666. This is placed under command of Infantry Regiment 734. Now comes the important part: Military Commander Southeast requests, in a teletype to High Command of the Army, General Staff Headquarters Troops Operations Division, an allocation to Serbia of armored reconnaissance vehicles and combat cars from Russian booty: Military Commander Southeast Strategic and Tactical Planning General Staff Officer", and we have the number, "1869/41. Secret."
The combatting of the bands in Serbia with military means lay in the hands of the Plenipotentiary Commanding General whose agency was especially established for this very purpose as we have heard repeatedly during the course of this trial. I want to prove now that the commission which General Boehme received when he was appointed Plenipotentiary Commanding General from Fieldmarshal List was a commission of a purely tactical nature. For this purpose, I want to offer List Document 132; this will become List Exhibit 59. The document is contained in List Document Book I on page 37 of that document book. This is an affidavit of Lt. Col. Faulmueller which I would like to read. I shall start with the third paragraph:
"Ad Rem:
From 12 January 1941 I was Captain and Quartermaster of the General Command XVIII, which was under General Boehme's command.
"On 18 September 1941 the Staff of the XVIII was transferred from Athens to Belgrade. The High Command of the Armed Forces appointed General Boehme plenipotentiary Commanding General in Serbia.
"While our unit was stationed in Belgrade (till the middle of December 1941) I was Quartermaster 1 and as such was responsible for providing the troops with all necessary supplies. In the Staff of the HQ of the specialists were continuously kept informed on the most important tasks and developments to enable them to act for each other in the event of furlough, disablement or sickness. In this way the Commanding General, the Chief of Staff or the other specialists officially informed me about many matters and events outside my sphere of activity.
"On the afternoon of 18 September 1941 General Boehme reported with Field Marshal List at Kifissia near Athens on the occasion of his departure to Belgrade. I was not present on this occasion. But still in the evening of the 18 September 1941, after his arrival in Belgrade, the Chief of Staff informed me and other Staff officers, that General Boehme had been appointed plenipotentiary Commanding General in Serbia.
He had the tactical mission to suppress the Communist uprising in Serbia. I can definitely remember, that neither on this evening nor on the following days the Chief of Staff gave any instructions as to the treatment of the civilian population.
"I have never had any knowledge of the Field Marshal List's order of 5 September 1941 concerning the suppression of the Serbian rising. In accordance with standing orders the Chief of Staff would have certainly promulgated such a fundamental order immediately after its arrival at the Staff headquarters."
At this point I would like to discontinue reading from this document and the last paragraph I would like to read into the record later on, in a different context.
Now there are several things to discuss in connection with the order of the 5th of September, which is prosecution Exhibit 42. This order as can be seen from the distribution list, was sent only to those command agencies whose areas were territories where uprisings took place.
In order to prove this, I would now like to offer List Document No. 27-G which will become List Exhibit 60. This document List 27-G is also contained in List Document Book I on page 39 of that Document book. It is an affidavit executed by General Krakau and I would like to read it:
"At that time I was Colonel and commander of the mountain infantry regiment 85 in the fifth (mountain) division. This division was subordinate to the 18th (mountain) corps and thus to the Army of List. The regiment took part in the Greek campaign and in the paratroop operations against Crete. It remained in Crete as an occupation force until 20 December 1941.
"The order issued allegedly on 5 September 1941 by Field Marshal List as Commander of the Wehrmacht South East to the higher command LXV, the Commander of Serbia and the Commander of Saloniki-Aegean, concerning the suppression of the Serbian revolutionary movement has neither been made known to me nor to the regiment."
This affidavit is signed August Wilhelm Krakau.
With the preceding exhibit which was Exhibit 59, I have already shown that this order did not reach the Plenipotentiary Commanding General in Serbia and in this case I proved that it did not reach the Commanding Officer in Crete. As the prosecution asserts, the order 5th September 1941, Prosecution Exhibit 42, contains directives. That it was interpreted in this way I will show with List Document 203 which I have offered as List Exhibit 43. I should therefore like to ask the Tribunal to turn once again to List Document Book IV-B where on page 165 towards the bottom of the page you find the following entry:
"7 Sept. 1941: Military Commander Southeast: Commander Serbia and Higher Command immediately to prepare everything necessary to calm down the country once and for all before the beginning of winter."
And now follow the words to which I attach particular importance:
"Opinions concerning this."
I would now like to deal with the OKW order of 16 September which the Prosecution have submitted as Exhibit 53. I repeat prosecution Exhibit 53. I contend and I am going to proceed to prove that the exhibit submitted by the prosecution is not a complete one. To show this, I am submitting List Document No. 171 as List Exhibit 61. This is contained in List Document Book III on page 21. This is a copy of the prosecution Document C-148 which was presented by the prosecution during the IMT trial as USA Exhibit 555. What I am submitting to the Tribunal as List Exhibit 61 is a certified copy of this document. So that the order may appear completely in the record, I shall unfortunately have to read it as a whole:
"The Chief of the Supreme Command of the Armed Forces
FST Section L (IV/Qu) Fuehrer's Headquarters 16th September 1941 Top Secret 40 copies 20th copy Subject:
Communist Insurrection in occupied territories.
1.) Since the beginning of the campaign against Soviet Russia, Communist insurrection movements have broken out everywhere in the areas occupied by Germany. The type of action taken is growing from propaganda measures and attacks on individual members of the Armed Forces, into open rebellion and widespread guerilla warfare.
It can be seen that this is a mass movement centrally directed by Moscow, which is also responsible for the apparently trivial isolated incidents in areas which up to now have been otherwise quiet. In view of the many political and economic crises in the occupied areas, it must, moreover, be anticipated, that nationalist and other circles will make full use of this opportunity of making difficulties for the German occupying forces by associating themselves with the Communist insurrection.
This creates an increasing danger to the German war effort, which shows itself chiefly in general insecurity for the occupying troops, and has already led to the withdrawal of forces to the main centers of disturbance."
2.) The measures taken up to now to deal with this general insurrection movement have proved inadequate. The Fuehrer has now given orders that we take action everywhere with the most drastic means in order to crush the movement in the shortest possible time. Only this course, which has always been followed successfully throughout the history of the extension of influence of great peoples, can restore order.
3.) Action taken in this matter should be in accordance with the following general directions:
a.)It should be inferred, in every case of resistance to the German occupying Forces, no matter what the individual circumstances, that it is of Communist origin.
b)In order to nip these machinations in the bud, the most drastic measures should be taken immediately on the first indication, so that the authority of the occupying Forces may be maintained, and further spreading prevented. In this connection it should be remembered that a human life in unsettled countries frequently counts for nothing and a deterrent effect can be attained only by unusual severity. The death penalty for 50-100 Communists should generally be regarded in these cases as suitable atonement for one German soldier's life. The way in which the sentence is carried out should still further increase the deterrent effect.
The reverse course of action, that of imposing relatively lenient penalties, and of being content, for purposes of deterrence, with threat of more severe measures, does not accord with these principles and should therefore not be followed.
c)The political relations between Germany and the country in which the disturbance is taking place, are no criterion for the censuring of the military authorities in occupation. Rather, it should be borne in mind and so represented in propaganda, that stern measures also rid the inhabitants of the Communist criminals and are thus to their own advantage.
Clever propaganda of this kind will consequently not result in the severe measures against the Communists having an undesirable reaction on the well-disposed sections of the population.
d)Forces formed from the local inhabitants will generally fail to accomplish such acts of violence. They should on no account receive further support, for this involves increased danger to our own troops.
On the other hand, the fullest use can be made of rewards and remuneration for the population, in order to ensure their cooperation in a suitable way.
e)Where, in exceptional cases, court martial proceedings should be instituted in connection with Communist insurrections or other offenses against the German occupying Forces, the most severe penalties are indicated. In this connection only the death penalty can constitute a real deterrent. In particular, acts of espionage, deeds of sabotage and attempts to enter the Armed Forces of a foreign power, should as a matter of principle, be punished by death. Sentence of death should also as a general rule, be passed in cases of illicit possession of arms."
"4.) The Commanding Officers in the occupied territories are seeing to it that these principles are made known without delay to all military establishments concerned in dealing with Communist measures of insurrection."
The document is signed by Keitel.
PRESIDING JUDGE BURKE: At this point we will take our usual afternoon recess.
DR. LATERNSER: I have only the distribution list to read, your Honor, just four more lines, then I have finished this reading, which I do not enjoy particularly.
Distribution List:
Armed Forces Commander Southeast, first copy.
The Military Commander Serbia, second copy.
Military Commander Salonica-Aegean, third copy.
Military Commander Southern Greece, fourth copy.
Commander for Crete, fifth copy.
Then follow further agencies which received copies from six to forty.
That brings me to the end of this document.
(A recess was taken.)
(AFTER RECESS)
THE MARSHAL: The Tribunal is again in session.
DR. LATERNSER: Your Honors, shortly before the recess, I was reading OKW order dated the 16 of September, and at the end I read the distribution list. Your Honors, I have just looked at the English document book, and I have discovered the following: The distribution list in the English document book is not in correct order. If you will look at the second line, where it says, "second", it is one column too high. It must be one line lower. I would ask that this be corrected.
I would like to draw the attention of the Tribunal to the fact that the first five copies went directly to these agencies according to the distribution list, -- that is they were direct orders. Now the way in which the individual agencies received this order, I would now like to prove.
First of all, I submit document, List No. 29, as Exhibit No. 62. This is in Document Book 1, page 40. This is an affidavit by General Pemsel. I would like to read parts of it, from the second paragraph onward:
From the end of September until the end of November 1941 I was tactical chief with the rank of a colonel, of the general staff of General BOEHME as chief of the general staff of the 18th (mountain) army corps.
The directive of the op. staff of tho O.K.W. of 16 September 1941 to shoot 50 to 100 (Serbs) for every killed German, is known to me. The directive (order) came over the teletype and, as far as I know, did not have any further additions by the A.O.K. 12.
I just wanted to read this much of the document in this connection.
With regard to the same point, that is in which way this OKW order was distributed I would like to submit List Document No. 132, as Exhibit 63. This is Document Book 1, page 37.
I am sorry, Your Honor, I have already submitted this document as Exhibit No. 59. This document, List 132, has already been submitted as Exhibit No. 59, and I would now like to read the last paragraph from this affidavit, because from this it can be seen in which way this order of the OKW dated 16 September was distributed. This is the last paragraph on page 38:
"I know the directive of the OKW, Armed Forces Operational Staff of 16 September 1941, entitled, "Communist rising in the occupied territories". I do not know any more, on what day it arrived at the headquarters of the Staff of the Plenipotentiary Commanding General in Serbia, but I believe that the latter received an original copy of this directive from the OKW, either immediately or through the Wehrmacht District Commander Southeast."
That this OKW order dated the 16th of September was a direct order for the Commanders can be seen from List Document 203, which I have already offered as Exhibit No. 43.
I would like to read a short paragraph from this exhibit which I have not yet read. It is contained in Document Book 4b, page 175, -I am sorry, page 173. I read about the middle of the page the following entry:
9 Oct. 41 The Chief of Staff of the Armed Forces High Command, Army Operational Staff, Department L IV Quartermaster, dated 16 September, No. 002060/41, top secret (military): Communist insurrection in the occupied areas of Moscow uniformly directed mass movement. Nationalistic circles are using the opportunity to make difficulties for the German occupation forces by joining the Communist rebellion: Immediately most stringent measures.....
I state here that this exhibit is an excerpt from the War Diary of the 6th corps. Now I would like to read the last paragraph, which is the entry from the 11 October 1941:
"Military Commander and Commanding General in Serbia: To suppress the Communist insurrection 100 men to be executed by shooting for each soldier killed and 50 men for each wounded. Public announcement."
The fact that this order of the OKW dated the 16th of September, was not valid in Croatia, I can prove from the entry on page 175 in the same document, under the 19th of October, 1941, where there is the following entry:
"The reprisal measures ordered to be effected in Serbia are not binding for Croatia. Passed on to 718th Infantry Division."
Field Marshal List protested against measures of the OKW many times and this I can prove with Document List No. 166, which becomes Exhibit No. 63. This is in Document Book 1, page 46. This is an affidavit by a Captain on Field Marshal List's staff, enophon Switlik. I read the third paragraph:
"In Greece, in the late summer of the year 1941, an officer of the immediate circle of List (I don't remember who it was) told me, that on occasion of a telephone conversation, List had received the directive by Keitel simply to hang captured gang members in Serbia, whereupon List had answered that he was not a hangman, but a soldier, and that Keitel should use other people for such purposes. If he, (List) would get more troops for Serbia, the activities of the bands could be checked better."
In this connection I would also like to offer to List Document No. 143, and this is offered as List Exhibit No. 64. It is in the same document book 1, page 47. This is an affidavit by General Serini, and I will read from the second paragraph onward:
"From 7 November 1939 until 5 May 1942 I was First adjutant of the 12th army, at first with the rank of a lieutenant colonel, and from 1 October 1940 with that of a colonel.
After the close of the campaign in the Balkans during the time before September 1941, I have often heard the officers of the general staff of the Army High Command 12, discuss in my presence that General Field Marshal List had differences with OKW concerning the attitude with regard to partisans. The colonel in the general staff, Kuebler, first officer of the general staff of the 12th army said that the ideas of the A.O.K. 12 concerning the actions to be taken against partisans had brought about controversies between General Field Marshal List and Keitel. I did not hear of any details, but the discussions revealed clearly, that the OKW considered the point of view held by the O.K.W. 12 not strong enough and it was no easy job for the A.O.K. to defend itself against that criticism.
In September 1941 or later the colonel of the general staff Foertsch chief of the general staff of the 12th Army, or his representative, colonel of the general staff Kuebler, talked about the OKW demanding the reports of the A.O.K. 12 to the OKW to states expressly that the partisans, on which the death sentence had been carried out, were hanged; the report that the death sentence had been carried out, was not sufficient for the OKW.
Foertsch, respectively Kuebler were indignant that the A.O.K. was to be compelled to order the troops to carry out hangings, since the soldier knows only the execution of a death sentence through shooting.
The question whether the OKW order dated 16 September was carried out completely is in no way shown. I would recall, first of all, testimony by the witness Krage, and further the evidence which has been submitted with regard to the case of Topola. According to this evidence 449 people were shot, and not 2,200 as maintained by the Prosecution.
With regard to this subject, I would like to submit further evidence that the OKW order dated the 16th of September, was not completely carried out. First of all I would like to read from List Document No. 29, which I have submitted as Exhibit No. 62. I would like to read the last part. The Exhibit is contained in Document Book 1, page 40. It is an affidavit by General Pemsel, and I would now like to read just the last sentence.
It is document book 1, page 40, the last sentence:
"As far as I could ascertain, this directive did not take effect until one or two captured German officers and 20 enlisted men of the army signal corps had been slain by partisans in a bestial manner, but it was never carried out to the full extent of the O.K.W.'s demand."
Then on the same subject I would like to submit List Document No. 331, as Exhibit No. 65. It is in Document Book 1, page 92. I shall read from the second paragraph onwards. This is an affidavit by Colonel Pfafferott, from the second paragraph:
"I have been a professional soldier since 1921; from December 1940 till the Spring of 1942 I was Major and third General Staff Officer (Ic) in the A.O.K. 12, from the Spring till the Autumn of 1942 I was in the commanding officers' reserve of the A.O.K. 12 with the rank of Lieutenant Colonel and from the Autumn of 1942 till the Spring of 1944 I was Chief of the General Staff of the XV (mountain) Army Corps, first with the rank of Lieutenant Colonel, since 1 January 1943 with the rank of Colonel; during all these three periods I was stationed in the Balkans.
The OKW received the more "cooked" reports from us, the more it became evident, that the OKW made a lot of fuss about certain formalities in the reports, without over checking them and without one single officer of the OKW knowing conditions in the Balkans. I can no longer remember details."
Further I would like to submit List Document No. 32, as Exhibit 66. This is contained in Document Book 1, page 93. This is an affidavit by General Pemsel, and I would like to read the last paragraph:
"To escape repeated questions and the permanent pressure of the OKW we consciously made cooked reports for transmission to the OKW. I can no more remember individual examples and figures."
It is signed, "Max Pemsel".
It is page 93 in the English.
Now I would like to turn to another subject. The Prosecution, according to the opinion of the Defense, has to bring evidence for Field Marshal List's knowledge of individual reports; on account of the position which he held one cannot assume that all incoming reports were submitted to him.
Now I would like to assume that one report was about shootings was reported to Field Marshal List. If this is a report about the shooting of partisans, then he could, as I will now prove, assume that this shooting was carried out after a proper trial.
For this purpose I submit now Document List No. 176, as Exhibit 67. This is in document book 3, page 25. This exhibit is an extract from the "Rules of Land Warfare", written by Dr. Alfons Weltzog.
MR. FENSTERMACHER: I object to this being presented in evidence. I think if it is offered at all it should simply be argumentation on the law, what the German law was, and what the instructions of the German soldiers were. It should be offered only for Judicial notice of the Tribunal and marked for identification, but not offered into evidence.
DR. LATERNSER: Your Honor, I am of a different opinion on this point. What I am now submitting, or what I would now like to submit, are the socalled Ten Commandments of the German soldier which he had printed in his pay book on page 2, if he was a member of the Air Corps, or was stuck in if he belonged to another branch of the Forces of war regulations, for all members of the Wehrmacht.
MR. FENSTERMACHER: Your Honor, if these instructions were a part of every pay book of every German soldier, I think the pay book bf a German soldier should be offered which is the best way of putting it in, and not putting in a commentator on the German rules of Loud Warfare.
DR. LATERNSER: I regret very much that I am not able to produce such a pay book. I can only state to the Tribunal that in the case of Kesselring when it was also disputed, I was able to secure such a pay book and I submitted 5 or 6 to the Tribunal.
The fact that this is an extract from semi-official work, written by Dr. Weltzog, in which the contents of these Ten Commandments are literally quoted, I think is sufficient. This verbal quotation has been taken by me from the book. It has been certified and submitted.
PRESIDING JUDGE BURKE: For what probative value it may have, it will be admitted.
DR. LATERNSER: I would like now to read this:
"Laws of Land Warfare", Dr. Weltzog, "Within the Wehrmacht of the Third Reich the soldiers have been made thoroughly familiar with pertinent regulations of international law through orientation, service regulations, and orders.
Every German soldier has in his possession as a memorandum the following "10 Commandments for the German Soldier's Conduct of War."
1. The German soldier is fighting in a chivalrous way, for the victory of his people. Atrocities and wilful destruction are beneath his dignity.
2. The combatant must be in uniform or equipped with insignia especially authorized and visible from far away. Fighting in civilian clothing without wearing such insignia is prohibited."
Now Point 3 is very decisive:
"3. It is prohibited to kill any enemy who has surrendered not even the partisan nor the spy. These will get their just punishment through the courts, 4. Prisoners of war must not be ill-treated or insulted.
Weapons, maps, and written notes are to be removed, but otherwise it is prohibited to take away any of their personal belongings.
5. The use of dum-dum bullets is prohibited. It is likewise prohibited to convert bullets into such types of projectile.
6. The Red Cross is inviolable. Wounded enemies must be treated in a humane way. Medical personnel and army chaplains must be free to carry out their medical or ministerial duties unimpeded."
"7. The civilian population is inviolable. The soldier is not permitted to engage in looting or wilful destruction. Historical monuments and buildings dedicated to divine worship, fine arts, science, or charity must be particularly respected. Services in kind or in labor by the population can only be required against compensation by order of superiors.
"8. It is prohibited to let military operations in any way affect neutral territory through trespassing thereon neither on the ground nor in the air through shooting.
"9. If a German soldier is taken prisoner, he has to state his name and his rank when questioned. Under no circumstances is he allowed to give any information about his unit or about military, political or economic conditions on the German side. He must not let himself be induced thereto neither through promises nor through coercion.
"10. Violations of the orders enumerated above in official matters is liable to punishment. Violations of the rules listed under No. 1 till 8 by the enemy must be reported. Retaliatory measures are permissible only by order of higher headquarters."
Then there is a certificate for the correctness of the extract.
As the next document to prove that Field Marshal List, in regard to the incoming reports about shootings, could assume that a proper trial had previously taken place, I would like to submit Document 179 as Exhibit Number 68. It is on page 27. This is again an excerpt from a legal work entitled "Military Jurisdiction during War" by Dombrowski. It is in Document Book 3, page 27, and has received Exhibit No. 68. This document is a decree by the Commander in Chief of the Army, dated 4 November 1939 (Collection of sources, Part I, Page 30).
"In the fight against franc-tireur activities the following viewpoints have to be considered:
"The conception as to what is a franc-tireur has been laid down unequivocally in No. 3 of the Special Military Penal Code. Franc-tireurs are, in the first place, persons not wearing uniform, who in some form or other participate in the hostilities and are not recognizable by distinct insignia as members of the armed forces of the enemy.
Among other acts the destruction of lines of communication, cutting of telephone lines, carrying out of demolitions are considered unjustified participation in the fighting.
"Franc-tireurs are to be shot in an encounter or when fleeing.
"Captured franc-tireurs are to be court-martialed. Competent therefor are primarily the Field Court-Martial to be convened by the Regimental Commanders etc. (Court-Martial No. 13 of the Decree concerning military jurisdiction during war and special operations). Captured franc-tireurs are not to be treated as prisoners of war but as criminals."
MR. FENSTERMACHER: (Interrupting) Your Honor, I object to receiving this into evidence unless it be shown or admitted that Field Marshal List received it and passed it on to troops subordinate to his command.
DR. LATERNSER: I am completely in agreement with this, if the prosecution does the same thing with regard to this point. The prosecution has never shown that Field Marshal List has received any of the submitted documents, and now they want to show that this be for the documents, which I submit. Your Honor, I am all for this procedure being carried out, if the prosecution does the same.
JUDGE BURKE: It is most reassuring when counsel for both sides agree so unanimously.
DR. LATERNSER: (Continuing:) "In order to insure that captured franctireurs will get the punishment they deserve without delay, the Regimental Commanders, etc. will convene about 3 Field Courts-Martial early before an operation. Composition and activities of these Courts-Martial are governed by the general provisions. They have to examine possible witnesses, hear the defendant and render the verdict reached by the majority. If the accused is found guilty of franc-tireur activity he is to be sentenced to death otherwise he is to be acquitted. The right to confirm the verdict lies with the Commander who has convened the Field Court-Martial. The confirmation in case of a verdict of "guilty" reads as follows:
"I confirm the verdict; the sentence is to be executed."
"Immediately following confirmation the sentence is to be executed by shooting."
I will not read the rest. The next document in this context which I would like to submit is Document List 177, and this becomes Exhibit No. 69. It is also contained in Document Book 3, page 38. This is an excerpt from the manual for General Staff service during War.' The correctness of the extract has been certified by me. I would just like to read a passage from it. Unfortunately I must withdraw what I have just said.
"B. Attitude toward Spies, Franc-Tireurs and Hostages. Military Authority in Occupied Territory. 9. The proceedings against Spies are laid down in international law in the second chapter of the Hague Rules on Land Warfare. Second Chapter. Spies. Paragraph 29. Whoever secretly, or under false pretenses, gathers or tries to gather information in the operational area of a belligerent with the intention of passing it on to the opposing party, is considered a spy."
I skip the next paragraph. Paragraph 30 follows, as follows:
"A spy caught in flagranti cannot be punished without prior trial."
Paragraph 31 states the procedure, and on page 40, under figure 10, you will find the following provision:
"Although obligation through International Law is lacking, the treatment of franc-tireurs follows that laid down for spies. The fact of a case is laid down in No. 3 of the Special Military Penal Code during War and death penalty has been decreed. The procedure, too, inclusive of the execution of the sentence has to follow the tedious way of the procedural provisions as laid down in No. 9 of the penal code, unless these elements meet with their fate in the fight itself."
According to Figure 10, therefore, Paragraph 30, which you will find on page 38, can also be applied to franc-tireurs. That is, the franc-tireur caught -- is not to be punished without legal proceedings, although there is no obligation under international law. In this connection I would like to present to the tribunal legal opinions by American legal authorities, who are of the opinion that the franc-tireur question can be settled in a summary procedure, and that the pre-condition of provisions under international law is not necessary.