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:
"Reasonably no other conditions ought to be laid down as regards effective occupation in war than those under which in time of peace a Sovereign is able to assert his authority over a territory.............If, when the legal Sovereign is prevented from exercising his powers, the occupant is in the position to assert his authority and actually establishes an administration over a territory, it matters not with what means and in what ways his authority is exercised, if he only really keeps the territory concerned under control."
In the opening statement of the Prosecution you have already heard several indications about the conditions which the Germans established with regard to an actual occupation in Yugoslavia and Greece. You have, for example, heard that for the pacification of the civilian population, Serbia was divided into several field commands, which essentially corresponded to the larger cities and to the main strategic points in the country and that these field commands again were divided into smaller territorial units, which were called local commands. That was the organizational machinery used for the security of Serbia, the prosecution stated, and it became effective immediately if an act of sabotage had been committed. If you compare these facts with the demands made by Section 42 of the Hague Convention and by the # 276 of the American "Rules of Land Warfare" and in the above quoted sentences by Professor OPPENHEIM for an actual occupation, I believe from this alone the fact results: that the German occupation was actually effective. And if one has heard in the opening statement of the prosecution how the partisans, for example, in Croatia, acted during the first two years of the occupation; through surprise attacks on German guards or garrisons, and acts of sabotage against traffic installations, supply depots and munitions depots of the German Wehrmacht, already such side-lights give the picture of an effective occupation. It will be the job of the Defense to provide the court with detailed material in this respect, in order to show that an actual occupation had been estab lished in Yugoslavia and Greece after cessation of operations in April 1941.
In connection with the question of the combatants, I must also deal with the problem of the Italian fighting forces, which went over to the partisans and fought against German troops after the surrender of the Italian government to the allied forces on 8 September 1943. The Prosecution states, that it was one of the most illegal and dishonorable acts in the history of warfare, that the Italian officers of such units were shot to death. However, we have heard, that combatants, who did not have the status of legal combatants could be executed according to the laws of warfare and up to now it has never been considered illegal or dishonorable to execute persons, who had been sentenced to death for wartime treason. One may not only consider the fact, that men who wore a uniform were executed, but one must also investigate, what these men had done before they were sentenced to death.
By the surrender of the Italian government, the Italian state ceased to be an ally of the German Reich. There existed, first of all no state of war between Italy and Germany. Therefore, none of the Italian divisions had the right to fight German troops, and the Italian soldiers who did this could net claim the status of legal combatants. Disarming of the Italian armed forces was an absolute military necessity. Because three effective Italian armies in the Balkans were a very serious danger for the German armed forces, since they could have come to be an effective bridge-head for the Allies. It was known, for example, that Admiral Cambioni in Rhodes had already initiated negotiations with the British. In the case of war between Italy and Germany, which was considered a certainty, and if the Italian armed forces had not been disarmed, the Balkans could not have been held, because the Italian troops had occupied almost all the coasts. The right to disarm the Italian soldiers, primarily resulted from the fact, that "within the territory of operations of a combatant only legal combatants have the right to carry arms. I have show that the Italian troops no longer possessed the status of legal combatants after their government surrendered. The authority to disarm the Italians also resulted from the negotiations, which the German command authorities carried out with the Italian High Command in Athens and Tirana and on the basis of these, the Italian high command ordered its troops to deliver their arms without resistance and to let the Germans take them captive.
(The order of the Fuehrer distributed to the subordinate troops by the army groups, for the forwarding of which General Field Marschal von Weichs was held responsible, did not order that Italian officers were to be shot because they and their troops fought against the German armed forces without possessing the status of legal combatants, although this would have been in contravention to international law.)
I repeat again: "The order of the Fuehrer distributed to the subordinate troops by the army groups, for the forwarding of which Generalfeldmarshall von Weichs was held responsible, did not order that Italian officers were to be shot because they and their troops fought against the German armed forces without possessing the status of legal combatants, although this would have been in correspondence to international law.
Your Honor, I ask for a correction of the translation as I had the second half of the sentence. I said, "although this order would have corresponded with the rules of International Law, not contravention to international law.
What the order of the Fuehrer did decree, was, that Officers of those Italian units, who let arms fall into the hands of the insurgents or in any other way worked to ether with the insurgents, arc to be shot to death after they had been sentenced by court martial. Sentencing by a court presupposed a legal provision as basis for the punishment. In view of such clear facts, such as the turning over of arms to insurgents or supporting them, one docs not have to look very hard for such a legal provision. Just as t. c American provisions, which arc applicable in wartime the German provisions concerning warfare, also know the facts of wartime treason, which is punished by death. It was regulated in section 6 of the special Military Penal Code, and consisted of every kind of support to the enemy. It comprises the same fact as are enumerated in Articles 205 and 214 of the American Rules of Land Warfare.
Since here the unlawfulness of executing the Italian officers in spite of their wearing uniforms has been emphasized so much, I point out in particular Art. 205 subsection b of the American Rules of Land Warfare which states, that the American legal regulations on wartime treason within a territory under military control in general apply to persons of all classes without regard to nationality or military or civil status.
You have already heard from the Prosecution that at least two Italian divisions joined the partisans. The Defense will, within the framework of evidence, which it will submit to the Tribunal, produce more material about the behavior of these Italian units whose officers were called to account.
Among the Italian divisions that went over to the partisans and thus committed wartime treason was, above all, the "Bergamo" Division which from that time on called itself the "Garibaldi" Division. It has already been mentioned by the Prosecution in connection with the asserted shooting of a large number of officers of this division. General Gandin, who has likewise been quoted by the Prosecution had fought against the Germans although he and his troop were no longer entitled to the status of legal combattants. He had thus violated the agreements reached between the German and Italian high commands. Beyond that, he had committed a particularly serious act of treason by violating a special agreement which he had reached with the German commanding staffs with regard to his division He had declared himself willing to deliver up arms. When the German troops wanted to receive the arms he ordered that they be attacked. The Germans not being prepared for that suffered considerable losses. General Gandim and the officers who were responsible together with him were sentenced to death by a court martial formed by the competent German commander.
I must now say something with regard to Counts 2 and 4 charging the defendants with wanton destruction of enemy property, devastation of enemy territory and encroachments upon the freedom of the civilian population, above all, with interning tho population in concentration camps.
There is no doubt that only the willful destruction of towns, small towns and villages and only devastation not justified by military necessity can be war crimes. Thus it was expressed in Article 6 of the London Statutes in agreement with the standards of tho Hague Convention. As regards the internment of the civilian population in collective camps it must be noticed that quite obviously the freedom of the individual has intentionally not been included in tho fundamental rights of the civilian population to be respected by tho occupying power in Article 46 of the Hague Convention. The reason for this is apparently that tho security of tho occupation power has always necessitated very extensive encroachments upon the personal freedom of the civilian population in the occupied territory. A corresponding right of the occupation power has up to now never been contested.
It is very easy to declare with regard to a conquered nation that its troops willfuly destroyed enemy towns and villages and undertook devastations without military necessity. And it is very simple to designate the internment of parts of the civilian population in collective camps as war crime if it was carried out by the conquered state. Here the relativity of law is seen which I have already mentioned and I think it would be good to regard tho things with which the defendants are being charged in the light of historical precedents and the opinion of important authors on international law.
The American Professor Fenwick writes in his International Law already quoted:
"General devastation of property as a means of covering the retreat of an army has, however, been a common practice of belligerents.
"A more difficult problem is to determine how far tho destruction of enemy property is justified, not in connection with direct hostilities, but as a means of cutting off the enemy's lines of communication eliminating his subsequent sources of supply or intimidating tho civilian population and inducing it to bring pressure upon the government to sue for peace."
Professor Fenwick then states:
"In 1864 General Sherman devastated a wide area from Atlanta to the sea in pursuance of an interpretation of military necessity which included the objects above mentioned, and shortly afterwards the devastation of the Shenandoah-valley to the same end."
I insert here, when General Sherman had finished the devastation of the Shenandoah Valley, he said, and he said himself then, "crow flying over that territory had to bring its own provisions with it." That is according to the General's own statement. This quotation is quoted by "Spaight."
I now go on quoting Fenwick:
I quote again Fenwick:
"In 1901 tho British armies in South Africa interned tho civilian population in "concentration-camps", with the result of serious loss of life (for details Spaight,). At the same time the country was laid waste far and wide as a means of cutting off the supplies of the guerilla forces.
Professor Fenwick also stresses that Article 23 G of the Hague Convention which prohibits the destruction of enemy property, unless it be imperatively demanded by the necessities of war, leaves to the determination of the belligerent army the circumstances under which military necessity demands such measures.
THE PRESIDENT: May I interrupt? We will take our adjournment at this time, but before....Repeating, we will take our adjournment at this time, but before we adjourn I should like to ask the cooperation of counsel and the prosecution and Secretary General's office and marshal to check on the status of the translation and report to me shortly before we convene for the afternoon session.
The Tribunal will be in recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The Tribunal reconvened at 1335 hours.)
THE MARSHAL: Tribunal No. V is again in session.
THE PRESIDENT: You may proceed, Dr. Laternser.
DR. LATERNSER: Your Honor, shortly before the noon recess I had talked about the views of Professor Fenwick, regarding the question of destruction I am now quoting on page 52 on the top of page 52:
"Professor Fenwick also stresses that Article 23g of the Hague Convention, which prohibits the destruction of enemy property, unless it be imperatively demanded by the necessities of war, leaves to the determination of the belligerent army the circumstances under which military necessity demands such measures."
It continues on "You heard an unbiased American scientist and author on international law.
I now quote Professor Oppenheim". Oppenheim then continues:
"But the fact that a general devastation can be lawful must be admitted." (Vol. II, Art. 154) It continues:
"As regards captivity, the rule is, that private enemy persons may not be made prisoners of war. But this rule has exceptions conditioned by the carrying out of certain military operations, the safety of the armed forces, the order and tranquillity of occupied enemy territory---And even the whole population of a province may be imprisoned in case a levy en masse is threatening ....That in case of general devastation the peaceful population may be interned in so-called concentration camps, there is no doubt." (Vol. 11 Art. 116).
Oppenheim continues:
"The purpose of war may even oblige a belligerent to confine a population forcibly in concentration camps."
In the court of the following weeks you will hear more details about the reasons why the establishment of concentration camps (Sammellager)...
I have just heard the translation of "Sammellager" to the words "concentration camps", I would like you to change this to "collection camps" on page 52 and not concentration camps. On page 53 of the 2nd and 3rd line of the 2nd paragraph.
Your Honors, you will hear more details about the reasons why the establishment of collection camps, (Sammellager) and the internment of parts of the civilian population of the enemy in the Balkans was ordered and likewise facts will be submitted to you which indicate the necessity for and entitled the German troops to carry out devastations. As regards the collection camps, I wish to note that they must not be confused with the concentration camps in Germany, which were subordinated to the Gestapo and have becoma a by-word. They were collection camps, such as they were also maintained by the occupation powers in Germany under the name of internment camp and in this connection, I wish to point out that the conception of endangering the security of the occupation troops has been subject to an entirely new interpretation by the introduction of the so-called automatic arrest, an interpretation which up to the present was unknown in the practice of international law.
With regard to the destructions which were carried out by way of reprisals in order to force the civilian population of the enemy and the partisans to abstain from acts contrary to international law, I refer to Art.
358 e of the American Rules of Land Warfare which stipulates:
"Villages or houses, etc., may be burned for acts of hostility committed from them, where the guilty individuals cannot be identified, tried and punished."
I conclude my statements to this count with a statement by Professor Lauterpacht in his treatise in the British Year Book for International Law, 1944, page 74:
"Such acts as general devastation .. may supply ample reason for condemnation and protest; ....they may, at the end of the war, justify the imposition of collective sanctions by way of compensation or otherwise as distinguished from individual penalties of a criminal nature. But criminal proceedings before the municipal courts of the victor may seem to many a questionable method of removing outstanding doubts and laying down authoritatively the existing law on subjects of controversy.
Total war has altered the complexion of many a rule. At a time when the "scorched earth" policy, with regard to the belligerent's own territory, has become part of a widespread practice, general destruction of property ordered as an incident of broad military strategy will not properly form the subject-matter of a criminal indictment."
In the case of the measures with which the defendants here are being charged the principle of military necessity plays an important role. This principle, which formed the basis of all German military measures, was formulated in Article 4 of the American Rules of Land Warfare as the highest general principle of warfare and recognized to a very farreaching degree.
This principle, however, must not be scrutinized in an abstract manner, but must be considered in connection with the conditions with which the accused were confronted and under which they had to discharge their task, i.e. to secure the Balkans militarily. Nothing at all of what forms the subject of this trial can be understood if considered apart from the fundamentals, as is done by the prosecution. The decisive fact was the geographic character of this country and the peculiarity of character of the Balkan population which favored a partisan and resistance activity experienced nowhere else to such an extent.