THE PRESIDENT: If you will ascertain from the Translation Department either by telephone or by going up there and then advise me and the respective counsel and get them down here so that we can make use of them as soon as possible, it will be appreciated and which are completed in their translation are ready for delivery here.
The respective counsel will be advised as to whether or not their translations are ready for delivery. In the meantime, you may proceed with your opening statement, Dr. Laternser.
DR. LATERNSER: Defense Counsel for defendants List and Weichs.
"Your Honors:
In his essay in the British Yearbook for International law (1944, Pages 58-95), which has already been quoted by the prosecution in the opening statement professor LAUTERPACHT has made reference to a problem which is peculiar for the proceedings against alleged war criminals. It is the problem of the uncertainties of laws of war. These uncertainties of the laws of war make it imperative that the defense as well already at the present stage of the trial explain its conception regarding the problems of international law, which will be of importance for the judgments of the actions of the defendants especially since the prosecution has already presented its concept of the law to the court. For the law is the framework within which the prosecution and the defense present their evidence before the court and within which the court assembles the facts which are offered not at the time of the determining of the judgment but also during the course of the evidence proceedings.
"The problems on which the matter hinges have been mentioned in principal by the prosecutor in his opening "statement and I intend to treat them in the same sequence as has the prosecution.
"To begin with I wish to emphasize that I purposely am quoting in the main sources from the anglo-american legal circles using such material as a guide in the interpretation of international law insofar as this is of importance in this trial for it cannot be denied that in the field of science and practice of international law the onus now lies upon these minds.
"The first problem which I wish to take up is that of acting upon orders. Logically enough, it is not the primary one, but by far the factual and psychological key for the conduct of the defendants which forms the subject of this trial. The prosecutor passed this point very quickly. I shall treat it more in detail not simply because, as I have already stated, it offers the explanation for many events which are being discussed here but because from the standpoint of international law it is much more complicated than one can infer from the opening statement of the prosecution.
"The sole basis for the punishment of war crimes is international law, for war crimes are transgressions of international law, which is to be differentiated from the law of the states against which the war crimes have been committed. Prof. Lauterpacht particularly emphasized this point in his essay 'The Law of Nations and the Punishment of War Crimes' in the British Yearbook for International Law (1944, Page 59) which essay has already been quoted:
"I quote:
'For the cause of international law demands not only the punishment of persons guilty of war crimes. It requires that such punishment shall take place in accordance with international law.'
"And further on he states again:
'That law is, and must be, primarily, the law of nations. For, it must be repeated, it is only to the extent that the acts of these offenders are prohibited by international law, that they can at all be considered as crimes according to the law of the individual states.'
"Prof. KELSEN, the founder of the so-called Vienna School for state and International Law, now Professor of International Law in the United States, expresses himself similarly in his book 'Peace Through Law' published in 1944, he writes:
'These acts, that is, war crimes are forbidden directly by international law. The military court, by punishing the acts, executes international Law even if it applies at the same time forms of its own military law.'
"In this sense must the sentence from the verdict of the International Military Tribunal also be interpreted since the London Statute is the expression of existing international law at the time of the creation of the statute.
"From this it follows:
"The prosecution and punishment of war crimes is an exercise of law only insofar as this takes place within the framework of international law. What transpires beyond that point is the utilization of power and not law. That is the reason why in the proceedings before the International Military Tribunal the British Chief Prosecutor examined as the fundamental problem of his statements how the statute was in accord with valid international law. For general international law cannot be altered through unilateral action of the victorious powers or through special agreements amongst one another even when these may appear in the form of statutes or laws.
How is he plea of superior orders in the commission of war crimes to be evaluated according to international law?
Prof. OPPENHEIM, who was for many years senior consultant of the British Admirality and who must be regarded in the field of international law as the criterior during the past decades, stated the following in this respect in his book "International Law" "Violations of rules regarding Warfare are War Crimes only when committed without an order of the belligerent Government concerned.
If members of the armed forces commit violations by order of their Government they are not war criminals and cannot be punished by the enemy; the latter can, however, resort to reprisals. In case members of forces commit violations ordered by their commanders, the members cannot be punished for the commanders are alone responsible and the latter may, therefore, be punished as war criminals on their capture by the enemy."
Prof. OFPENHEIM maintained this opinion during his entire life, from the first to the fifth edition of his "International Law", which is a standard text in international law literature throughout the world. Like many authors he does not differentiate between the plea of an act of the state, as is being discussed and the plea of an order of an otherwise militiary superior.
George Manner, the American International Law expert, who treats the subject of plea of superior orders and act of state in the article "The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War". I quote as follows:
"The maxim that members of the armed services of a country are not personally responsible and liable to penal punishment for acts perpetrated by them in contravention of the rules of warfare under the orders or sanction of their governmental or military superiors does not form part of the codified law of war.
Nevertheless, it appears to be a recognized principle of this law. Since 1914, at least the maxim has been incorporated in the war manuals of the Powers as a rule of the customary laws of war."
Also in further passages he again characterizes the above pleas of superior orders, and by act of state as a generally recognized maxims of positive law which limit the punishment of war crimes because they are components of the rules of warfare. I believe that the opinion expressed in the opening statement of the prosecution with reference to the plea of military orders that the recognition of this excuse is the result of a perverted view regarding military discipline does not get at the root of the problem.
The question of military discipline in actions that are committed under orders is of importance only in the national penal laws of different states. Here in this trial, however, the matter under debate is the norm of positive international law independent of its cause, that acting upon military orders excludes the prosecution of war crimes by courts of the enemy states against whoever acted upon orders. This extremely important difference can easily be overlooked.
Section 347 of the American Rules of Land-Warfare, which was edited under the direction of the Judge Advocate General and published by the War Department of the United States in 1940 and is still valid today, explains, following the enumeration of the possible war crimes, and I quote:
"Individuals of the armed forces will not be punished for these offenses in case they are committed under the orders or sanction of their government or commanders.
The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be Punished by the belligerent into whose hands they may fall."
There can be no doubt that the official interpretation of the War Department of the United States is represented by this decree with reference to the status of International Law in the question of actions under military orders in cases of war crimes.
The same point of view was held until 1944 by the competent British offices in the British Manual of Military Law, No. 443, of which, after enumerating the possible war crimes, continued: and I quote:
"It is important, however, to note that members of the armed forces who commit such violations of the recognized rules of warfare as are ordered by their Government, or by their commander, are not war criminals and cannot therefore be punished by the enemy. He may punish the officials or commanders responsible for such orders if they fall into his hands, but otherwise he may only resort to the other means of obtaining regress which are dealt with in this chapter."
In this respect Prof. LAUTERBACHT, writes in his essay in the English Yearbook of International Law 1944:
("Although Chapter XIV of the military Manual has not been given statutary force it is, in general an exposition of the conventional and customary rules of international law as understood by Great Britain.") It is my opinion that the plea of superior orders is a generally recognized maxim of international law demonstrated by excellent authors on the subject of International Law and by the military handbooks of the United States and Great Britain.
This principle was already generally recognized 100 years ago, as is shown by the famous case of Mac Leod. During an insurrection against the British administration in Canada in 1837, members of the British Colonial forces attacked an American ship, the Caroline, which was moored on the American side of Niagara Falls, because they suspected the passengers were insurgents. They burned the ship and let it be carried over the falls. An American citizen lost his life in this incident. In 1840, Mac Leod, a British subject, was arrested by the New York officials for participation in the act against the "Caroline" and brought before the Court. The British Ambassador in Washington demanded the immediate release of Mac Leod on the basis that the destruction of the Caroline "was a public act by persons in the service of their majesty and who were obeying the orders of their superiors." The American Secretary of State Webster recognized the validity of the British argument and declared: "That an individual who is a member of a public armed force and who acts under powers invested in him by his government cannot be held responsible as a transgressor of the law, is a principle of public law which is sanctioned by the customs of all civilized nations and which the the government of the United States is not inclined to contest."
This was brought further into practice in the well-known case of the sinking of the British steamship Lusitania by a German submarine during the first World War. At that time the British Prime Asquith declared himself against a prosecution of the perpetrators since they had acted under orders. (This attitude of Prime Minister Asquith is quoted in De. Lapradelle-Larnaude, Examen de la responsibilite "Journal de Droit International," Attempts have been made to deviate from this maxim of International law.
In Section 228 of the Versailles Treaty the German Government recognized the right of the Allied and Associated powers "to bring those persons accused of having committed actions in violation of the laws and customs of war before before military courts."
The American expert in International Law, Prof. FENWICK, in his book "International Law" characterizes as one of the reasons why this decree of the Versailles Treaty was not executed, "......The obvious legal difficulty that many of the accused persons had acted in obedience to higher authority."
These legal difficulties could have only been eliminated by a conventional rule on the problem. Therefore, and I quote Prof. FENWICK again, efforts were made to create a new conventional rule with regard to this subject.
At the Washington Conference in 1922 the following provision was incorporated into the treaty in Section 3 regarding the use of submarines; that a violation of the treaty provisions regarding the attack, seizure or destruction of commercial ships should be punished as "piracy" regardless whether the perpetrator acted under orders of a superior. This treaty was never ratified.
This question was taken up again in 1930 at the London Naval Conference. In Part IV of the Naval Treaty of 22 April 1930 it was decreed that submarines had to observe the same rules of international law in their actions against commercial ships as were observed by surface craft. The clause that the perpetrator be held responsible for actions which have been committed under orders in violation of these rules is not to be found in the text of this treaty. From this one must conclude that the appendix contained in the Washington version is not in agreement with the opinion of the signatories of the London Submarine Protocol.
The Jurists Commission which was assigned to the task of revising the rules of warfare by the powers participant in the Washington Treaty expressly stated in their report in a provision that persons acting unders are free from any responsibility for those crimes against the rules of warfare contained in their report.
The attempts to incorporate into international law in a manner effective under international law the principle of prosecution of war crimes committed under orders were thereby unsuccessful. It is of importance that in spite of the efforts to initiate amendments the American Rules of Land Warfare as well as the British Military Manual adhered to the earlier principle of non-punishment.
The provision of the American Rules of Land Warfare that individuals may not be prosecuted for war crimes committed under orders is still valid today. In contrast, 443 of the British Military Manual was re-edited in 1944 by which the interpretation of the problem according to the international law up to that time was supplanted by the maxims which were developed within national British law covering illegal actions committed under military orders.
If one examines the events to which this amendment can be traced, then one finds that the Moscow Declaration of October 1943 had set the precedent. In this the punishment of War Crimes without regard to the possible orders of military superiors was made certain. I do no believe it is necessary to make particular emphasis of the fact that this declaration was a political act and presented no effective source of new international law.
Officially the circumstances that in the posthumous edition of the textbook of Professor OPPENHEIM (6th edition, 1940) prepared during the war by Professor LAUTERPACHT, the attitude had shifted towards the question of prosecution of war crimes committed under orders, was stated as the reason for amending Article 443 of the British Military Manual.
Prof. LAUTERPACHT had further expressed an opinion against Article 443 of the Military Manual in his essay "International Law and the Punishment of War Crimes".
Prof. LAUTERPACHT certainly is a very modern scholar and his essay is excellent, but I believe it cannot remain unnoticed in a critical analysis that his reasons for the above-mentioned opinion from the point of view of international law are very weak.
The view of Professor LAUTERPACHT, shared by a few others, is in any case also termed "more than questionable" by Professor KELSEN. Concerning the opinion set forth in the five previous editions of OPPENHEIM's textbook and of Article 443 of the British Military Manual, Professor LAUTERPACHT maintains that they represent no sound principle of military law, requiring for this reason a definite amendment of article 443: I quote:
"Unless the scope of persecutions for war crimes is to be drastically and unduly curtailed", but this reminds us, the defense counsels, of a certain phase of the legal development within the state, which has in the meantime become a thing of the past, and in which prevalence is given to the idea of the justifying end and the so-called sound popular feeling as against the norms of positive law.
And as regards the "sound legal principle" which is supposed to be provided by reason, the following view expressed by Professor OFPENHEIM about "reason" applies: I quote:
"I cannot agree reason being a source of law. Reason is a means of interpreting law, but it cannot call law into existence."
It is just as much out of the question that reason alone can modify existing international law.
The fact that the Supreme Court of the United States, as pointed out by Professor LAUTERPACHT in one case concerning espionage and sabotage maintained emphatically the direct criminal responsibility of individuals for violation of military laws, can by no means be taken as a precedent applying to the problem under discussion. For as soon as espionage and wartime treason are involved, the prosecution of offenders acting by order has always been recognized as lawful in international law contrary to the general law.
THE PRESIDENT: You may proceed, Dr. Laternser.
DR. LATERNSER: The Prosecution maintains that if the defendants would plead that their acts were committed by order of higher authority, they would find a stumbling block already in Article 47 of their own Military Penal Code. Here, however, they fail to consider that the plea of acting by order is judged in different ways in international law, which has to be applied when alleged war criminals are prosecuted by an enemy state, and in the national, law of the individual states. According to the principles of national law of civilized states the possibility of carrying through a criminal procedure will with certain differences in each district of jurisdiction -- be dependent upon whether and how far the offender perceived his actions to be unlawful, or whether and how far his guilt was neutralized or mitigated through duress. From the point of view of international law, on the other hand, one acting by order I adopt.
the view of the American Rules of Land Warfare - is a fact excluding as a matter of principle the prosecution for war crimes by a foreign state. This basic difference is also stressed by Professor LAUTERPACHT in his essay "International Law and Punishment of War Crimes" being summarized in the following words:
"It is an interesting gloss on she complexity of the problem that in Great Britain and in the United States the plea of superior orders is, on the whole, without decisive effect in internal criminal or constitutional law, although it is apparently treated as a full justification in relation to war crimes."
For this reason it is impossible to adduce the verdict of the German Supreme Court in the case of Llandovery Castle pronounced in the time following the first world war, in justification of the re-drafting of Article 443, as it is done in Amendment 34 of the British Military Manual, in Footnote 4 to Article 443. In the examination of the question whether and how far the accused German U-boat officers could plead action by order of superiors the Supreme Court had to apply not international law, but only national German law.
Article 47 of the German Military Penal Code can moreover be used as foundation for the punishment of military subordinate only in case the order issued by the superior was in violation of German law. As orders issued by Hitler in Germany and for German authorities and law-courts were law, a soldier acting by force of an order from Hitler could not be punished not even in pursuance of Article 47 of the Military Penal Code, even when Hitler's order constituted violations of generally recognized ideas of law or of international law.
I conclude my statements concerning this problem with a reference to the words of Professor OPPENHEIM, the firm champion of the version to which I appeal, which are to be found in the foreword to the second volume of his work.
"I have tried to write this volume in a truely international spirit, neither taking any one nation's part nor denouncing any other. It is to be deplored that many writers on the Law of war and neutrality should take every opportunity oi displaying their political sympathies and antipathies and should confuse their own ideas of justice, humanity, and morality with the universally recognized rules of warfare and neutrality."
I have shown that the plea of superior orders is a long recognized basic maxim of international law, which limits the punishing of war crimes. But Control Council Law No. 10, which decrees something different, is binding for the court, says the Public Prosecution. I believe that the court is only bound by international law. Control Council Law No. 10 is based upon the combined authority of four victor nations, and this authority goes no further than the powers with which the sovereignty of each individual state invests it in tho community of international law. The general international law, which, as has been said, recognized the plea of superior orders was effective, may only be revised by general conventions or by an administration of law based upon general recognition, not, however, by unilateral acts of the victor nations which are directed against a conquered nation. To be sure, an occupying power has the power to issue laws for the occupied territory; but it is just as certain that these laws may not interfere in the sphere of international law. For who military occupation does not transfer the sovereignty of the conquered nation to the occupying power, by virtue of which a nation acts in the sphere oi international law, but it bestows only that part of the governing power which is necessary to make it possible for the occupying force to have an effective control over the occupied territory during the length of the occupation.
The rights of the occupying power are established and limited as binding in the Hague Convention, and we find a detailed definition of the powers of an occupying force in Chapter 10 of the American Rules of Land warfare. Not only is every authority lacking for empowering an occupying force to create, suspend or alter international law while acting for the conquered state. Rather, we establish the fact that it was never doubtful that an occupying force did not have this right and that this limitation of its powers proceeds quite clearly from the Hague Convention. Such powers of an occupying force could only arise through annexation, which, however, was expressly disapproved of in the London Declaration of 5 August 1945.
I believe that here there is a special reason for referring to the basic difference between the ideas of justice and humanity and the recognized terms of international law, because from the opening speech of the prosecution, the attempt to bring the charges against the defendants to a simplified common denominator, may be perceived thereby effacing this difference. In the opening speech of the prosecution, which we have heard here, it was said that those men are indicted because they have denied and undermined the fundamental basis of civilization, namely the principle that human life shall not be unnecessarily destroyed.
Regarding this principle, I am of the opinion that it is a noble principle and is not only a result of humanity's instinct for self- preservation. It is, however, only a principle of ethics and a demand of humanity. I can not agree with the concept that it is a recognized maxim of international law, now in the age of the atom bomb and the mass air attacks upon the civilian population, the frightfullness of which we experienced only a short time ago.
Air attacks, in which within a single city in 24 hours more than 200,000 people, mostly women and children, were killed, as in Dresden, AND THAT AT A TIME IN WHICH THE WAR WAS ALREADY CERTAINLY WON FOR THE OTHER SIDE. I do not mention this in order to raise counter reproaches, by which, as I know, the situation of the defendants can not be bettered. I only want to investigate the basis for the difference which the public opinion of the world and the jurist of international law make obvious in these questions. For it is necessary that in such important matters as are the accusations raised against the defendants, one sees quite clearly, if one wants to judge them correctly. Thus, for example, Prof. LAUTERPACHT writes in his essay in the English Yearbook for International Law 1944, already cited several times, it is difficult to answer the question of the legality of the air attacks by means of penal prosecution of individual persons, while, as we must establish these difficulties obviously do not exist, in the case of the charges which have been raised against the defendants. The difference certainly does not lie in the fact that in reprisal measures in the occupied territories, More people were killed than by air attacks upon the civilian population; or that men die MORE EASILY by serial bombs, serial mines and phosphorous bombs than did the executed hostages; and also not in the fact that the women and children who were buried under the wreckage of the houses or in the cellars, or burned to death on the streets as living torches, were MORE GUILTY than the partisans and insurgents shot in reprisal.
The divers judgment and treatment is rather connected, as it seems to me, simply with the fact that it is a matter of executions in the case of the actions indicted here, that is, of killing men whom a belligerent had in his power. There is no point in pursuing further reasons upon which the divers judgment is possibly based. It is sufficient to establish the fact that this difference is present. I must therefore proceed from the facts as they are; that in contrast to all other procedures, by which in war people, even civilian persons, are killed in great numbers, executions establish prima facie the suspicion of war crimes, and that, as the practice of the war crimes trials shows, without consideration here of the number of the victims.
I believe that the principle maintained by the indictment, that people may not be killed unnecessarily, must be traced back to the extent which agrees with the current practice of international law. Later, when I come to speak of the actual situation in the Balkans, I will take up the further efforts of the prosecution to substitute the ordered investigation or which of the measures indicted here were necessary and which were not, by the general principle that all the measures of the German Commanders were arbitrary crimes, while on the other hand the actions of the partisans and insurgents were patriotic acts and justifiable self-defense.
First I return to the executions. I intentionally did not say more than that they usually establish the suspicion of war crimes prima facie. I do not say, of course, that this suspicion is in general justified. This suspicion obviously is connected with the fact that the conviction that executions may only be undertaken on the basis of a judicial judgment is wide-spread in the ideas and concepts of man, while with regard to the exceptions to this principle, which come under the concept "retaliatory measures", obscurities and differences of opinion predominate even among the authors of international law.
"A tribunal confronted with the plea of reprisals as a justification of the offense will he faced with a task of considerable difficulty. International law regulates, in a necessarily rough and indeterminate manner, the occasion for and the use of reprisals both in peace and in war," --.
says Prof. LAUTERPACHT in his essay in the British Yearbook for International Law 1944 (p.76), after he has established directly before:
"But, as a rule, an act committed in pursuance of reprisals, as limited by international law, can not properly be treated as a war crime."
The concept of reprisals is defined in Art. 358, par. a) of the American "Rules of Land Warfare" (US General Staff, Basic Field Manual, 1940) and in Art. 452 of the British "Manual of Military Law." I agree with the prosecution that reprisals are retaliatory measures which are committed by a nation or its agents in order to hinder the enemy in further violation of the rules of war. Reprisals are coercive measures. I cannot recognize that they may be applied only in the relationships between nations or between their opposing armed forces, as the prosecution argued. The action according to plan of inciting the civilian population to acts of sabotage and attacks upon members of the German occupation forces and the fight of the partisans in violation of international law in the occupied territories had the result that -during the second world war reprisals had to be resorted to above all against illegal actions of the civilian population, in order to force the latter to desist from its illegal conduct. It would be absurd to assume that the commanders of the armed forces of a belligerent party had to endure acts of an enemy civilian population in violation of international law, without being able to protect their troops, when necessary, by retaliatory measures.
The admissibility of reprisals against illegal acts of enemy civilian population is therefore expressly recognized by the military Handbook of the United States and Great Britain. Art. 358c of the American "Rules of Land Warfare" answers the question:
"Who may commit acts justifying reprisals" as follows:
"Illegal acts of warfare justifying reprisals may be committed by a government, by its military commanders, or by a community or individuals thereof, whom it is impossible to apprehend, try, and punish."
Art. 358 d decrees:
"The offending Forces or populations generally may lawfully be subjected to appropriate reprisals. Hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy forces or people may be punished or put to death if the unlawful acts are nevertheless committed."
The British Military Handbook contains the following decree concerning this:
Art. 386:
"If, contrary to the duty of the inhabitants to remain peaceful, hostile acts are committed by individual inhabitants, a belligerent is justified in requiring the aid of the population to prevent their recurrence, and, in serious and urgent cases, in resorting to reprisals."
Art. 453:
"The illegitimate acts may be committed by a government, by its military commanders, or by some person or persons whom it is obviously impossible to apprehend, try, and punish."
Art. 458:
"Although collective punishment of the population is forbidden for the acts of individuals for which it cannot be regarded as collectively responsible, it may be necessary to resort to reprisals against a locality or community, for some act committed by its inhabitants, or members, who can not be identified."
These provisions of the American and British Military Handbooks are based, as it may well be assumed, just as much upon practical military experience as upon consideration of the laws and customs of war, just as these latter are conceived by the governments which published these handbooks. By these provisions, the claim is therefore refuted that such steps remain ineffective if they are directed against the inhabitants of an occupied territory and not against the enemy government or its armed forces. In the trial against Field Marshal KESSELRING before a British Military Court in Venice, the defense proved that the shooting of 335 Italians, which was undertaken on 24 March 1944 in Rome as a retaliatory measure for an attempted bombing of a German police company, prevented any further attempt against the German Wehrmacht for the period following, until the surrender of Rome at the beginning of June 1944, whereas before these reprisals, attempts of that sort had occurred to a constantly rising degree and at shorter and shorter intervals.
I believe that the prosecution also cannot appeal to Prof. LAUTERPACHT for its conception that reprisals against the civilian population are ineffective and for this reason, inadmissible. The passage cited by me from the essay of Prof. LAUTERPACHT refer in my opinion, does not refer the actual effects of retaliatory measures, but to the effect of the protest of the reprisals upon the juridical judgment of a case according to international law. The first sentence of the passage cited reads completely: I quote:
"On the other hand, as in the matter of the uncertainty of the law of warfare, the impact of the operation of reprisals is not as considerable as would appear at first sight."
By referring to the preceding legal statements concerning the problem of the uncertainty of military law the meaning of the citation becomes clear. Deliberations which take into consideration the actual situation in the occupied territories and the military necessities resulting from it, and the concepts laid d.own in the American and British Military handbooks of the governments in question concerning the condition of martial law, show, therefore, that reprisals may also be applied against the civilian population, in order to force the latter to conduct commensurate with international law.
The main question then immediately follows, whether in the course of such reprisals people may also be killed, that is, also people who cannot be proved to have had any connection with the illegal acts for which the reprisals are a retribution. The English and American authors available to me are silent concerning this question. I disregard the citation of German authors, world-renowned scholars, who answer in the affirmative. But I cite again the British and American Military Handbooks. Art. 459 of the British Manual of Military Law provides:
"What kinds of acts should be resorted to as reprisals is a matter for the consideration of the injured party. Acts done by way of reprisals must not, however, be excessive, and must not exceed the degree of violation committed by the enemy."
Reprisals, are, as established, coercive measures, by which the opponent is to be brought to desist from conduct contrary to international law. But how can an enemy population in an occupied territory, which in opposition to its duty to maintain a peaceful attitude and in no way to take part in the hostilities, maliciously commits murder on members of the occupying military forces, be forced in any other way to conduct in accordance with international law, than by answering their acts with equally heavy measures, when, as almost always in such cases, the guilty parties can not be seized and punished? What can the commander of an occupation army do, when an enemy population systematically murders his soldiers and is prepared any moment for open insurrection?