It is left to his deliberation which measures he wants to apply, says the British Military Handbook, and only adds that retaliatory measures may not be immoderate and may not overstep the degree of the violation committed by the opponent. That means that the party forced to take retaliatory measures may do everything but not more than the nature of the reprisals demand according to what they consider to be their duty. The British Military Handbook answers the question whether in such a case people may oven be killed in reprisal indirectly by not forbidding such a killing, while it expressly excludes the killing of hostages in Art. 461 who serve to guarantee a treaty.
I believe a British officer would be told he had violated his duty if, in a case where the security of his men demanded, he would not have understood the indirect instruction of his military manual in that way.
In this connection, I must again refer to the proceedings against Field Marshal KESSELRING. The Associate Judge Advocate General at the British Military Tribunal in summarizing expressed his opinion on this question as follows: "It cannot be excluded entirely that innocent persons may be shot by way of reprisals; the international law is very flexible."
In addition, it is of SPECIAL importance that neither in the London Statutes nor in the control Council Law No. 10 is the killing of persons by way of reprisal designated as a war crime although this problem had no lesser practical importance during World War II than the problem of killing hostages.
In article 358 d of the American "Rules of Land Warfare" a quite clear answer is given to the question whether innocent persons may also be killed by way of reprisals. I have already quoted this rule:
"Hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy forces or people may he punished or put to death if the unlawful acts are nevertheless committed."
I now add the American Rules of Land Warfare, according to the International Law expert Plueck--that is on Page 41--are legally valid. He expresses it in the following words, "Rules having the force of law."
This is the most important sentence that has ever been written in more recent times with regard to reprisals and hostages. It is not only the key to the entire problem of reprisals and hostages; it also denotes the point where these two institutions overlap.
The Prosecution has already pointed out the close connection existing between the problem of reprisals and the question of hostages and with regard to the modern practice connected with hostages I agree with the Prosecution in that respect that the purpose of taking hostages is to place oneself in the position of having the possibility of carrying out reprisals.
Hostages have always been exchanged, given or taken for quite varying purposes. The two main objects were always the guarantying of treaties in war and peacetime and the protection against hostile acts by the population in an occupied territory. THE TWO FORMS HAVE DEVELOPED INDEPENDENTLY OF EACH. OTHER AND ARE QUITE DIFFERENT IN THEIR CHARACTER.
The classical form for guarantying treaties which was the original one has been out of practice for a considerable time. It was abandoned after the opinion had been accepted in international law that such TREATY HOSTAGES must not be killed and, in addition, the importance, extent and complexity of the more modern international agreements necessitated other guarantees in the form of material and territorial securities. It is not my intention to make extensive investigation into the historical development of the hostages problem. However, I do think it necessary to make it clear that the sentence of Grotius:
"Hostages should not be killed if they have not themselves committed an injustice", quoted in the Opening Statement of the Prosecution ONLY refers to the classical form of hostageship viz.
to hostages serving for the guarantying of treaties. In addition, Grotius ONLY regarded it as a DEMAND which in his opinion followed from natural right; whereas, AS GROTIUS STATES HIMSELF, the execution of treaty hostages was regarded as admissible according to the external or positive international law based on the accordance of will of the states which we call the practice of the states. The principle that treaty hostages must not be killed was not given universal formulation before DE VATTEL in the sentence:
"La Liberte seule des hotages est engagee".
From this time on we may regard the principle that hostages serving as a guaranty of a treaty must not be killed as a recognized standard of customary international law.
As already mentioned, it referred, however, ONLY to treaties and in the beginning only to treaties concluded for the termination of a war or in peace-time. Hostages destined for guarantying war conventions were still subject to the more rigorous martial law. To begin with, the statement we find of VON MOSER applied to them:
"If the promise is not kept the hostages may, according to more rigid laws, be treated with such a severity as is appropriate in view of the circumstances of the case."
However, also in their case killing was later generally rejected. Insofar as hostages still should be designated at all for guarantying treaties, which is still conceivable only during the war, the statement contained in the British Military Manual in No. 461 therefore applies at present;
"....and if hostages nowadays are taken at all they have to suffer a captivity and not death in case the enemy violates the agreements in question."
This principle must surely also be applied to a form of taking hostages still exercised today for guarantying service claims based on international law which is closely related to the institution of treaty hostages viz. to hostages taken by an occupying power as security for requisitions and contributions. They do not serve as security for contractual services but for service claims based on a unilateral levy by an occupying force. Also in these cases nonperformance does NOT grant the right to put the hostages to death.
As regards the second main form of taking hostages we have the statement of the American "Rules of Land Warfare" of 1940 that hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy civilian population MAY BE punished or PUT TO DEATH if the unlawful Acts are nevertheless committed.
With this sentence the competent American Government authorities have summed up the development which we can follow since THIS form of taking hostages has developed into an important institution of martial law in the course of the last 150 years. The taking of hostages as a security for the troops in the occupied territory was already practised in former times. It could, however, only become a legal institution after martial law in its development had arrived at the point of protecting in principle the civilian population. Since only from that time on reprisals against the civilian population became a problem of law. The above quoted sentence from the American "Rules of Land Warfare" is a clear acknowledgment of the facts which may confront an occupying force in modern Warfare with partisan activity and underground movements.
Only at first sight is the fact peculiar that the modern form of taking hostages for the purpose of reprisals developed into their full severity only at a time when the classic form of insuring treaties had been abandoned after its practice had become even milder. It is the necessary consequence of the fact that in the modern wars, as we could observe, the civilian population in the occupied territory in an ever increasing degree participates contrary to international law in the fight against the occupying power - of its own accord as well as due to systematic inciting by exile governments or other enemy powers.
It is a peculiarity of the hostage problem that the separate forms of this institution have developed separately and have separate contents so that they cannot be treated analogously to which LUTTEROTH already has referred in his treaties on hostages. It makes a great difference for the actual contemplation of things whether hostages are to be put to death because a levy was not paid at all or not paid in time or whether a commander in the occupied territory is faced by the fact that his soldiers are being murdered contrary to international law by a fanatical population in spite of its having been warned.
The analysis of the problems of law show that a corresponding difference also exists from the viewpoint of law. It lies in the reason justifying the measures taken against the hostages. In the classical form of hostageship the right of punishing the hostage in case of contravention of the treaty or the duty to pay the levy originated from the ancient institution of the hostageship itself where the measures adopted against the hostage are a kind of punishment; with criminal punishment it has in common the purpose of general prevention less that of expiation. In the modern hostage form, however, the killing or other punishment of the hostages are at least preponderantly reprisals, that is, compulsory measures adopted against acts of the civilian population or the enemy forces committed contrary to international law in order to force them to abide by martial law. The Prosecutor already said in his opening statement that "the purpose of taking hostages is to place oneself into a position of being able to adopt retaliatory measures." The nature of reprisals of the modern hostage practice has been recognized especially clearly in composing the American "Rules of Land Warfare" as follows from the incorporation of # 358 d, which deals with hostages, into the rules on reprisals.
Together with this designation of the modern hostages of becoming possible subjects of reprisals the conception of a hostage has changed its meaning. In the classical sense of the word hostages were persons who were formally exchanged or taken as such which resulted in certain legal relations between the interested parties. Hostages in the sense of # 358 d of the "Rules of Land Warfare" are, however, all persons taken or held for the purpose of making them subjects of reprisals in case of necessity, whether they be formally recognized as hostages and actually be called hostages, or, as in several orders of the defendants are called "expiatory prisoners" or the like.
THE PRESIDENT: May I interrupt, Doctor, please? We'll take our morning recess at this time.
(A recess was taken).
THE MARSHALL: Tribunal V is again in session.
THE PRESIDENT: You may proceed, Dr. Laternser.
DR. LATERNSER: Your Honor I have just talked about the explanation of paragraph 358 d, and I proceed:
"Hostages in the sense of the expression as used in No. 358 d of the "Rules of Land Warfare" arc not only persons taken by a belligerent for the sole purpose of placing himself in a position to be able to carry out reprisals in the case of acts on the part of the enemy contrary to international law. Mostly several purposes are interwoven with one another: persons are being arrested because they are suspected of illegal activity or of connection with partisans or rebels or for other reasons seem dangerous to the occupying power. It is especially natural that they-from the moment of their arrest also serve the declared purpose cf being subjects of reprisals in the future.
In the order to read here they were frequently called expiatory prisoners. Other persons were arrested because of the influence, which they possessed due to their profession or their economic or political position, and by their arrest alone the paralyzation of the population s activities was frequently achieved, which is still increased by the threat of being put to death. For these persons generally only the expression of hostage is customary; likewise for those who from the outset were taken solely for the declared purpose of serving as subjects for reprisals in the case of future violations of international law by the opposite side. All these various groups are covered by the stipulations of # 358 d of the American "Rules of Land Warfare", according to which they may be punished or put to death, if the unlawful acts are committed by the opposite side in spite of warnings.
The opinion has been expressed that in the American "Rules of Land Warfare" due to the placing cf hostages on an equal level with prisoners of war and due to the stipulation that prisoners of war must not be put to death, and "unfortunate contradiction" exists with regard to the fact that the killing of hostages is expressly permitted in # 358 d; this was held by authors who stress that it is permissible to put hostages to death in case cf necessity.
The prosecution also hinted at that. I do not share the opinion that such a contradiction regulations of the American "Rules of Land Warfare" permit an absolutely clear solution of most aspects of the modem problem of hostages: as a consequence of their being accorded treatment equal to that of prisoners of war, persons who formally have been taken as hostages shall, for the duration of their arrest, be kept and treated as prisoners-of-war. Another consequence is that such persons may, in-as-far as they were not, as mentioned in par. 358, taken for the purpose of being the objects of reprisals, be submitted to reprisals only under the same conditions as prisoners of war, if for example, hostages taken by the other side are killed in violation of international law. As for the rest, those hostages mentioned under par. 359 of the "Rule of Land Warfare" who were taken to insure a correct treatment of the wounded and sick and to protect the lives of prisoners of war who have fallen into the hands of irregular troops, are also to be counted among those hostages who in contrast to the prisoners of war, may generally be made objects of reprisals.
These hostages, too, were taken, as it says in Par. 358a. of the "Rules of Land Warfare", as a protection against unlawful acts of the enemy, and may, therefore, be punished or killed if those unlawful acts are nevertheless committed. I cannot see where, as HAMMAR & SALVIN and the prosecution claim, there exists an unsolved contradiction. All that in necessary is to observe the fundamental difference between hostages in the classical sense of the word and persons who are being taken or kept in order to become objects cf reprisals if the enemy violates international law, and who often are also called hostages.
I mentioned already that neither the London statute nor Control Council Law No. 10 considers the killing of people by way of reprisals as a war crime. They obviously refrain from doing so because reprisals might be a necessary means to force the opposing armed forces and the enemy population to observe the rules of warfare and to prevent them especially from crimes against members of the occupying power. Since the London Statute and Control Council Law No. 10 do not declare reprisals being forbidden, they do not apply to the killing of persons who were taken or kept for the purpose of becoming objects of reprisals, even if these persons are called hostages. This becomes evident through the fact that the army of occupation of the Soviet Union, that means, of one of the three principal powers who on 8 August 1945 signed the London Statute, shortly before that date decreed and publicly announced in Berlin the killing of hostages on a proportional basis of 1:50 as a reprisal for attacks against members of the army of occupation. This I shall prove.
IV It is obvious that the question of the status of the irregular combatants in Yugoslavia and Greece plays an important part in this trial.
First of all it is important in connection with Count 3 of the bill of indictment but it also touches the other points of the indictment as far as they deal with the problem of reprisals.
I agree with the prosecution that this is the question: Under which circumstances must combatants, if they are captured, be treated as prisoners of war, and under which circumstances can they be treated as armed bandits and be summarily executed?
The legal status of the resistance forces has also been discussed during the trial of Field Marshal KESSELRING before the British Military Tribunal in Venice. That trial dealt not only with resistance activities equal or similar to those, in Yugoslavia and Greece, but partly even with the same forces since, as is probably
COURT V CASE VII
known to the court, TITO's units expanded, since 1944, their operations in Venezia Giulia and in the Eastern Alps far into Italian territory. In his opening statement the British prosecutor Colonel R.C. HALSE also dealt with them. Let me read what he said about them:
"There are some war crimes which are only war crimes in respect to one side. The partisans, for instance (and I say it quite openly), by attacking the German forces in the rear, were guilty of a crime against the German law: I say advisedly against the German law. So far as the Italian and Allied law was concerned they were heroes. They did commit a war crime and if they were captured by the Germans; the Germans were undoubtedly entitled to try them for committing a war crime, and if found guilty of committing that war crime, the Germans were entitled to sentence them to death." Record 2. day, page 6.
The records of the trial before the British Military Tribunal are, as far as I know, available here in Nuernberg, and can therefore be consulted. If not, I shall submit to the Court an extract of the trial transcript as an exhibit. Do we not find here a surprising difference of opinion between both prosecutors as far as the legality or illegality of the irregular combatants is concerned, if we remember what we heard in the prosecution's opening statement to this trial about the same problem and, as I said before, partly about the same resistance forces?
The problem of the status of the irregular combatants is very complex and needs a thorough analysis which must also examine if, and to which extent, the reasons for the legality of the resistance forces,
COURT V CASE VII
which the prosecution submitted in their opening statement, hold true only for the evaluation of the latter from a patriotic and historical point of view, or whether they are also of consequence in connection with legal considerations.
The starting-point for legal considerations is provided by sections 1 and 2 of the appendix to the Hague Convention which contain the conditions, agreed to by treaty, for the recognition of irregular combatants as belligerents.
The prosecution has characterized the conditions stated in Section 1 as traditional and generally acceptable necessities, and has admitted that the Germans were justified in denying the status of belligerents to, and executing, captured partisans who had not observed these conditions. With this, such partisan activities as were not carried out in the form of larger military operations, have been taken out of the problem, because it is characteristic of all activities of the bands in Croatia, Serbia and Greece, as far as they were carried out in the form of guerilla warfare, that the requirements of Article 1 were not fulfilled. You will yet hear about origin, development, organization and way of fighting of the irregular troops in the Balcans. Here I want to state in advance in condensed form only a few important points.
Guerilla fighting developed some time after the cessation of hostilities in Yugoslavia and Greece and the occupation of these countries. In the course of time it constantly increased in intensity.
First it was waged against the army of occupation by nationalist groups, in Yugoslavia by the Chetniks under DRAHA. Mihaiovitsch and in Greece by the organizations of the Edes under ZERVAS. Soon there appeared Communist groups with the same aim: TITO in Yugoslavia, and the organizations of Eam and Elas in Greece.
First all of them waged war against the army of occupation only in small irregular units and in the form of guerilla-fighting which consisted mainly of surprise attacks and sabotage. On account of growing numerical strength and thanks to the equipment he received from the Allies, TITO later on succeeded in organizing larger military units with which he tried to carry out regular military operations. At the same time, however, actual guerilla-fighting in the form of surprise attacks and sabotage in the rear of the front continued with undiminished ferocity. Even if part of the resistance movement organized themselves into military units, large parts of the movement in Yugoslavia and almost all parts in Greece continued to fight in a way which robbed the resistance forces of the protection of the Hague Convention and made them irregulars (Freischaerler).
It was characteristic that, regardless of whether they acted individually or in smaller or larger units, they did not carry their weapons openly, did not wear uniforms or insignia recognizable at a distance and did not observe, during their operations the laws and customs of war. During their actions they often wore German or Allied uniforms for the purpose of deception. After surprise attacks or acts of sabotage they assumed the appearance of peaceful peasants, their weapons were well hidden. All these groups of the resistance movement, those organized on a military basis as well as the irregulars, conducted the struggle in an unusually cruel way which contradicted all international law. Horrible murder and mutilation of German soldiers and torturing of prisoners were proved beyond doubt by affidavits and partly by photographs.
The general historical experience which the authors NURICK and BARRET formulated, with regard to the guerilla-bands which appeared during the Mexican Mar, in the article "Legality of Guerilla forces under the Laws of War" in the words quoted below, applies also to them:
"As has usually been the case in guerilla warfare, many bands of guerillas degenerated into little more than murderers and highway-robbers. They mutilated wounded American soldiers, divided among themselves the goods taken from the enemy, and carried on "war without pity in every manner imaginable."
What does it matter in view of this, in connection with the legal evaluation that these partisans in the Balkans were patriots as the prosecution claims? The guerillas to whom Section 82 of the American instructions of 1863 for the leading armies in the field referred, were patriots, too. And nevertheless they, too, at that time already lacked the status of lawful combatants and were, on the contrary, to be treated as highway-robbers or pirates, as ordered by the American regulation.
As soon as we deal with the resistance forces, organized on a military basis, which attempted to carry out regular military operations, we find that they, too, could not claim the status of lawful combatants because they did not conduct their operations in accordance with the laws and customs of war. I already pointed this out when I mentioned the cruel manner of fighting, which violated international law, which all parts of the resistance movement carried on in the Balkans. For the moment, however, I shall disregard this fact, that is subsection 4 of Section 1 of the Hague Convention. The problem of the status of the above-mentioned Military organizations and the question of the status of the remnants of regular troops after the capitulation of the government or, at least, the cessation of organized resistance, are very complicated if one presupposes, for the sake of the investigation, that they conformed to all four clauses of Section 1 of the Hague Convention on Land Warfare. In that case four facts are of importance in the evaluation of the legality of the resistance forces:
1. That a war can be waged between states or governments only;
2. That an actual state of war is terminated by capitulation or by the cessation of organized resistance after the destruction of the main forces;
3. The actual occupation, and 4. The rights and duties of the population in the occupied territory.
An individual does not become a lawful belligerent by wearing a uniform, carrying weapons openly and being under the command of a person, responsible for his subordinates. On the contrary, before the members of a military force are entitled to be treated as lawful belligerents, it is also requisited that, in addition to the requirements set forth in the Hague Convention, they serve a political entity which is a state de jure or de facto or which at least exhibits certain evidence of such status. WESTLAKE makes absolutely clear that combatants can be treated as belligerents only if there is reason to identify them with their state or government. He says virtually:
"If they are treated as parties to a. war, that can only be justly done when there is reason for their being identified with their state or government."
If these points of view are applied to the resistance groups in Yugoslavia and Greece, one finds that all of them lacked the status of lawful combatants, if for nothing else but the fact that after the capitulation of the Yugoslav government and the capitulation of the Greek armed forces a belligerent state and a belligerent government, the existence of which could have justified the claim of any person in those countries for the continuation of their being treated as lawful belligerents existed no longer. The fact that later on governments in exile for both countries were formed in London does not affect the status of the irregular farces. It affects the status of the main agent of the struggle against the German army of occupation, that is the TITO-units in Yugoslavia and the Eam and Elas units in Greece, which were also Communist, the less as they obviously cannot be identified with the above-mentioned governments in exile.
TITO did not serve this government in exile but tried to replace it by the Communist regime, an attempt in which he succeeded on 8 May 1945 with the overthrow of the Yugoslav king. He and, like him, the Greek Communist resistance movements, did not receive his orders from the existing government but from a third power. It is correct, that he also received material support from the Allies, but we can find nowhere that this can establish the status of a legal combatant. During a war all kinds of methods are employed to damage the enemy. Thus one has already often plotted popular uprisings in occupied territories and supported them materially. This, however, does not force the opponent to recognize the uprising supported this way, as an action of a belligerent power. While arguing about the problem of the status of unlawful resistance, we may incidentally not loose sight of one quite simple and clear fact, which is more important than all arguments; It is the FACT, that the YUGOSLAV GOVERNMENT unconditionally SURRENDERED on 15 April 1941. The capitulation was signed by the Yugoslav fighting forces and by the minister MARKOVIC as the representative of the Yugoslav government. THE ENTIRE ARMY SURRENDERED IN GREECE during the last weeks of April.
I believe that this important fact was not considered in several arguments of the Prosecution, when the opening statement of the Prosecution charges the Germans with fact, that after overrunning Yugoslavia they withdrew the main body of their troops and then declared that any future resistance would be regarded as a violation of the laws of warfare. The Germans did not assume this right, this right was granted them by the unconditional surrender of the Yugoslav government, independent of the effects which resulted from the condition of the occupation according to the Hague convention.
When the former Prime Minister WINSTON CHURCHILL announced Germany's surrender on 8 May 1945, he declared:
"Hostilities will end officially pt one minute after midnight tonight, Tuesday, the 8th 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 the laws of war and will be attacked from all quarters by the Allied troops."
This is a clear and justified conclusion drawn from a clear fact.
Generalfoldmarschall von WEICHS drew the same conclusion from the same fact in his order of 28 April 1941, when he declared:
"After the armistice, no Serbian soldier in the entire Serbian territory, has the right to carry arms. Whoever, in spite of this, is met in Serbian uniform with a weapon in hand, thus places himself outside of the law of warfare and is to be shot to death immediately."
The prosecution states, that the declaration made in this order of 28 April 1941, contains one of the two basic principles of German terrorism practiced in the Balkans, namely that not even the simple right to continued resistance was granted to the enemy, that his troops were no longer to be considered as combatants and thus should not enjoy the protection of the rules of warfare. When one hears this interpretation of the prosecution, I believe it is well, to remember simultaneously the statement made by Prime Minister CHURCHILL on 8 May 1945. The contrast is proof of the relativity to which law is subject in practice; especially international law, when it is applied unilaterally after a war by the victorious countries against the vanquished.
Both authors NURICK and BARRET have examined in the article which has already been quoted at various times, the status of unlawful combatants after the surrender of their government or after the complete defeat of the main fighting forces and the termination of organized resistance, on hand of a series of historical events of the last hundred years, in order to derive from these cases of precedent the norms of international law according to the law of custom, which exist with regard to the status of such unlawful forces. They declare, and I quote:
"If there is a formal surrender by the enemy government and capitulation of the main body of the armed forces there is noteworthy precedent, particularly in the position taken by General GRANT in the Civil War -- that is capitulation of the armies leeds and churnston's, for inst. in April 1945 -- regarding as unlawful combatants those who continue to resist, even though they may be substantial in number.....Although there is little authority the complete military defeat of the armed forces, the disintegration of the government and the occupation of its territory would seem to have the same consequence as upon the status of those who continue to resist as does a formal surrender."
OPPENHEIM also declares, that if the dispersed remains of the defeated army continue to fight with guerilla tactics after the defeat and capture of the main part of the enemy forces, after the occupation of the country and the disintegration of the enemy government, this guerilla war is not a real war in the strictest sense of the word. And he notes, that in strict law it is evident, that the opposing force no longer has to treat these guerilla bands as a combatant force and its members taken prisoner as soldiers. SPAIGHT is of the same opinion.
Naturally it may be advisable for the opposing force, to recognize the unlawful combatants as legal combatants, if they are under the leadership of a responsible commander and follow the laws and customs of warfare, as OPPENHEIM states, and especially if the unlawful forces are a large number and have formed a de facto government, as NURICK and BARRET state. Regardless of this fact, however, accord ing to strict law it remains up to the opposing force WHETHER and WHEN it wants to recognize the unlawful forces as legal combatants.
The above mentioned laws applying to unlawful combatants are connected with the surrender of a government or the capitulation of the main fighting forces and the termination of organized resistance. They refer back to the traditional principle, that war is a fight between governments, which the fighting forces serve and with which they have to be identified, so that one can speak of war in the strictest sense of the word, and so that they can claim to be regarded as legal combatants. The legal conclusion, that war has stopped with the surrender of the government or of the main body of the fighting forces, agrees with the practical recognizance, that, above all, it is in the interest of the population of the defeated country, if any further resistance is terminated as soon as possible.
Quite apart from these points of view, International Law combines with other facts a similar effect, as is contained in the Hague convention and in other laws and customs of warfare; namely with the actual OCCUPATION of enemy territory. Armed resistance within an occupied territory is rebellion; it deprives the resistant forces of the protection of the laws of warfare and grants the occupying force the right to execute them. This applies to popular uprising in an occupied territory, even if the arms are carried openly and the laws and customs of warfare are being observed. Only the inhabitants of a territory not yet occupied have any claim according to Section 2 of the Hague provisions to be recognized as legal combatants if they take up arms at the time of the approach of the enemy; but they naturally only have that right, if they carry these arms openly and observe the laws and customs of war. The following statement by Professor OPPENHEIM applies to uprisings in a territory occupied by the enemy, and I quote:
"But this case (Article") is totally different from a levy en masse by the population of a territory occupied by the enemy for the purpose of freeing the country of the invader.
The quoted stipulation of the Hague regulations does not cover this case, in which, therefore, the old customary rule of international law is valid, that those taking part in such a levy en masse, if captured, are liable to be shot."
We already find this rule of international law based on the law of custom in Section 85 of the American instructions on how to conduct armies in the field of 1863, which provides:
"War rebels are persons within an occupied territory who rise in arms against the occupying or conquering army or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own but expelled government or not."
We find this fule again in Paragraph 12 of the American "Rules of Land Warfare" of 1940:
"If the population of a country or a part of the same, which is already occupied by an enemy, rises up against the latter, it thereby violates the laws of warfare and has no claim to their protection."
It has always been difficult to determine, when an invasion ends and an occupation begins. Section 42 of the Hague convention is not very clear. We find a much more concrete and on the whole satisfying definition of an actual occupation in Section 276 of the American "Rules of Land Warfare", which states:
"Occupation must be effective. This is shown by the definition of the term, that military occupation must both be present and effective, which means, that organized resistance must have been overcome and the fighting forces, who have taken possession, must have instituted measures, to establish law and order. It suffices, if the occupying army is in the position, to send parts of troops in a given period of time, in order to make its authority to command felt within the occupied territory. It is immaterial how the authority of government is exercised, whether by fixed garrisons or by mobile columns, by small or large forces."
These prerequisites agree factually with those, which Professor OPPENHAIM considers necessary for an actual occupation: