Insignia fixed to the clothing would have prevented this tactic which was usual among all partisans in the Balkans. That is why there is not even the slightest indication, not to speak of proof, that the partisans were any kind of insignia which could not be removed immediately.
The absence of a fixed insignia also gave the partisans the constant opportunity, under the guise of peaceful civilians and harmless peasants, to commit acts of sabotage in the territory occupied by German troops. They made extensive use of this tactic which has always been closely bound up with the partisan methods of warfare. Such conduct was war treason, even if the perpetrator would otherwise be credited with the full rights of a belligerent. I refer to Paragraph 445 of the of the British Rules of Land Warfare:
"Many other acts, however, which he attempted or accomplished in occupied territory or within the enemy's lines, by private individuals or by soldiers in disguise, are also based as war treason, although perfectly legitimate if done by members of the armed forces..."
The American armed forces on the Philippines took the same point of view during the fighting in 1900 -- 1901.
4. During their operations they must observe the laws and customs of war.
The defense has submitted extensive evidentiary material to show that the Greek and Jugoslav partisans Quite generally did not observe the laws and customs of war. This evidence has not been refuted by the fact that the prosecution referred to a few individual cases in which the partisans did observe the laws of war.
I, therefore, maintain that the partisans in Jugoslavia and Greece did not fulfill the four demands set down in Article I of the Hague Rules of Land Warfare for legal belligerents.
The examination of whether the partisans complied with Article I of the Hague Rules of Land Warfare embraces only one side of the problem of the status of the irregulars; the other side is governed by the fact that war exists between states.
The two authors, Nurick and Barret, quoting a number of the most well-known authorities on international law state.
"In addition to the requirements set forth in the Hague Regulations, it is also required, before the members of a military force are entitled to be treated as lawful belligerents, that they serve a political entity, which is a state de jure or de facto, or which at least exhibits "certain indizia of that status.
This additional requirement is a fundamental premise impliced in the Hague Regulations, and an individual does not become a lawful combatant under Article I thereof merely because he dons a uniform, carries arms openly and is commanded by a person responsible for his subordinates."
This statement, of course, is not based on Article I of the Hague Rules of Land Warfare which neither expressly nor tacitly contains this further requisite, but it is based on the principle which has been generally recognized from time immemorial, that war exists between states.
Even Cicero applied this principle to the supporters of Antonius and treated them, therefore, as robbers.
And one of the earliest authors of international law, Gentili, stated that war must be public and official on both sides, and that there must be sovereigns on both sides to direct the war.
The American Instructions of 1863 contain this principle in Articles 20 and 57.
Professor Westlake, a prominent authority on international law, states:
"We, therefore, accepting the definition of Grotius in other respects, will say that was is the state or condition of governments contending by force. Whether and how far individuals can be treated as parties to a war is a question to be discussed in the sequel, and is not prejudiced by the use of the word 'Government', as indeed it would not have been by the use of the word 'state': If they are treated as parties to a war, that can only be justly done when there is a reason for their being identified with their state or government."
Professors Oppenheim and Lauterpacht also state:
War a contention between states.
"To be war, the contention must be between states... A contention may, of course, rise between the armed forces of a state and a body of armed individuals, but this is not war .... Nor is a contention with insurgents or with pirates a war."
They state expressly that this characteristic of war also decides whether so-called guerilla war is really war in the technical sense of the word.
Similarly in a leading article, "The Guerilla and the Lawful Combatant" by George C. Wilson in the American Journal of International Law, July, 1943, it is stated particularly with reference to the status of the partisans:
"It may not always be easy to determine when a guerilla party is acting in aid of the regular forces, but as the marks of a regular force in its uniform, flag, etc. are distinguishing, the burden of proof may properly rest upon the irregular party to establish its lawful identify if it expects treatment under the laws of war.
"War is between States and the forces entitled to the rights of the laws of war are those duly enrolled in State forces or at least under its control and for whose acts the State is responsible."
We can certainly assume that these authors took into account the historical events and the practice of belligerents, at least as much as the scientific reasons; and in actual fact we state that on all the occasions in question the commanders of armed forces and the governments, when considering the problem of the status of the irregulars, worked on the principle that war exists only between states, and that the armed forces of both sides must be identified with the states; as a result of this, a war, in the sense of international law, no longer exists if a government or its armies have capitulated, or the government has been expelled, its armed forces captured, and its territory occupied.
The principle is indisputable and no injury is done to its value by the fact that belligerents and their commanders in a few cases in which the enemy government was still in its own country and fought the invader there with so-called guerilla-tactics, referred illegally to it. As in the case of Maximilian von Oesterreich towards the armed forces of the rival government of Juarez and the British towards the regular armed forces of the Boer republic during the South African war. The fact that the American armed forces in the Philippine War, 1899-1902, made a justified difference between regular armed forces of the Philippine government which was in the country, and the guerilla bands who were not part of the regular armed forces, is in complete agreement with the view taken by the defense in this trial with regard to the status of irregulars.
The principle as such is well established and universally recognized. Only in cases in which the position is not quite clear, the government or its entire forces not having capitulated, it may, at times, be difficult to decide whether a state of war still exists and whether the irregular forces are to be identified with the defeated government or not. The order issued by General Grant to General Sheridan during the Civil War on 17 May 1865, after the capitulation of Lee's and Johnstone's armies, when only the troops commanded by General Edmund Kirby Smith were still in the field in the Trans-Mississippi Area, provides a most significant and informative precedent. This order was based on the principles formulated in Articles 20 and 57 of the Instructions for the Guidance of the Armies of the United States in the Field of 1863 and read:
"If Smith holds out, without even an ostensible Government to receive orders from or to report to, he and his men are not entitled to the consideration due to an acknowledged belligerent. Theirs is the condition of outlaws making war against the only Government having an existence over the territory where war is not being waged."
The fact that the order was not carried our because General Smith did not continue his resistance but also surrendered on 26 May 1865 does not diminish its importance as a very important precedent. Neither does the fact that this order was issued in the American Civil War, and not in a war between different nations, detract from its general significance. The Confederate States had been recognized as belligerents by President Lincoln's blockade proclamation dated 19 April 1861 and enjoyed the full rights accorded to a belligerent. The principles evolved in this so-called Civil War, embodied in the Instruction for the Armies of the United States of 1863 and followed in the practice of both of the contending armies, have, as we know, provided the most important foundation for the subsequent codification of the Laws of War.
Both of the joint authors Nurick & Barret, after examining both the historical instances in which the principle that war exists only between states is of practical importance, and the theoretical foundations of this principle, arrive at the following conclusion:
"It appears clear, however, that even under the most humane of interpretations the requirement that combatants serve a government has been regarded as satisfactory only where it is a responsible and fairly "representative political entity which can exercise authority over its armed forces.
If there is a formal surrender by the enemy government and capitulation of the main body of armed forces, there is a noteworthy precedent, particularly in the position taken by General Grant in the Civil War, for regarding as unlawful combatants those who continue to resist, even though they may be substantial in number. The fact that the surviving combatant may be impelled by patriotic motives in continuing to resist does not appear to have been regarded as material to their status as lawful combatants. Of course it may be that those who continue to resist, may be large in number and may themselves constitute a de facto government, if so, they should be treated as lawful combatants. Although there is little authority, the complete military defeat of the enemy armed forces, the disintegration of the government, and the occupation of its territory would seem to have the same consequences upon the status of those who continue to resist as does a formal surrender."
The view of these two authors is in line with Professor Oppenheim's statement.
I quote: "On the other hand, one speaks of guerilla war or petty war when, after the defeat and the capture of the main part of the enemy forces, the occupation of the enemy territory, and the downfall of the enemy Government, the routed remnants of the defeated army carry on the contention by mere guerilla tactics. . . Now, the question whether such guerilla war is real war in the strict sense of the term in international law must, I think, be answered in the negative, for two reasons. First, there are no longer the forces of two States (or even the forces of a State and of an opposing Government) in the field, because "the defeated belligerent State has ceased to exist through the military occupation of its territory, the downfall of its established Government, the capture of the main part and the routing of the remnant of its forces.
.. If then, guerilla war is not real war, it is obvious that in strict law the victor need no longer treat the guerilla bands as a belligerent Power, and their captured members as soldiers."
In accordance with these principles, it is beyond doubt that the Jugoslav and Czech partisans cannot be regarded as lawful combatants. For after the surrender of the Jugoslav government and its armies and after the surrender of the Greek armies, the Germans on the Balkan peninsula were no longer opposed by any lawful belligerents whose existence might have entitled any forces in these countries to claim treatment as lawful belligerents -even if all other conditions essential to such a recognition had been satisfied -- which, however they had not.
The fact that exile governments were formed in London which endeavored to wield a kind of paper sovereignty, does not make any difference. Quite apart from the fact that the Jugoslav government, by its act of surrender, had precluded itself from carrying on the prosecution of the war, the following considerations apply to these governments in exile:
The multifarious political structure of the partisans in Jugoslavia and Greece, some of whom were fighting each other, shows that they cannot be identified with these governments in exile; and the latter, on the other hand, were unable to exert any authority on the groups of partisans which were very loosely organized, in their initial stages at any rate. Besides, the prosecution has failed to establish any kind of connection between the partisans and the London governments in exile.
Finally, the principle applies that guerilla forces can never derive their claim for recognition as lawful belligerents from a government expelled from its country.
This axiom is already implicit in General Grant's order dated 17 May 1865, specifically in the sentence referring to the soldiers under General Smith in the event of their continuing to fight, which states:
"....Theirs is the condition of outlaws, making war against the only Government having an existence over the territory where war is now being waged."
This principle is further enunciated in Article 85 of the Instructions of 1863 and in Article 349 of the U.S. Rules of Land Warfare of 1940 where explicit reference is made to war rebels in the following words:
"If captured, they may be punished with death whether they rise simply or in small or large bands, whether or not they have been called upon to do so by their own expelled government."
General Eisenhower's declaration dated 15 July 1944 with respect to the French Resistance Forces, referred to by the prosecution, is not a proper precedent which would invalidate the general principle that is must be possible to identify resistance forces with their respective governments and that the surrender of the government precludes the right of resistance forces to claim recognition as lawful combatants. This declaration was based upon an attempt to compel recognition by threats against German prisoners of war. It was not recognized by the German government.
Neither does the position taken by the Committee of the International Red Cross during the recent war in regard to the treatment of partisans speak against the existence of the principle adduced by the defense.
The Committee did not subscribe to the view that the partisans, provided they complied with certain conditions, were to be accorded the privilege of treatment as prisoners of war but that they ought to receive such treatment. The sentence in the Memorandum dated 17 August 1944:
"The International Committee considers that the above-mentioned principles should be applied regardless of any legal argument relating to the recognized existence or the belligerence of the authorities to which the combatants in action claims to belong," is a clear confirmation of the legal argument put forward by the defense in this case.
I have already said in my Opening Statement that it may well be expedient for a belligerent to recognize irregular combatants as lawful belligerents if they act on the orders of a responsible commander and observe the laws and customs of war -- this never happened in Jugoslavia -- and particularly in the event that the irregular forces have taken the field in great numbers and have formed a de facto government, a fact emphasized by Nurick & Barret. This in no way modifies the fact that, from the point of view of international law, it is left to the opponent to decide whether and when he wishes to recognize the irregular forces as belligerents. In this respect, the statement by Professor Oppenheim applies:
"If, then, guerilla war is not real war, it is obvious that in strict law the victor need no longer treat the guerilla bands as a belligerent Power, and their captured members as soldiers. It is, however, advisable that he should do so, so long as they are under responsible "commanders and observe the laws and usages of war.
For I can see no advantage in treating those bands as criminals, and no reason why they should be so treated, although in strict law it could be done."
It cannot, therefore, be a war crime that the German commanders, by denying recognition as belligerents to the partisans, acted as the laws of war authorized them to act. The principle of military necessity is always paramount in war, and this principle compelled the German commanders, in a dangerous position, to take stringent action against the unlawful, i.e., unlawful also under international law, activity of the partisans in order to protect their troops against a population fighting them by treacherous and insidious methods, actuated as the German commanders were by a sense of responsibility in regard to the task assigned them within the scope of the German over-all direction of the war.
Whoever feels inclined to invoke arguments of humanity and chivalry ought to be reminded that partisan warfare must not be viewed as transfigured by the light of one's own war propaganda, but, as Rolin remarked so appropriately as early as 1875, "in its sordid and vulgar reality." One must not merely visualize the partisans executed as rebels and the burned-down houses from which members of the occupation forces were shot at but also the mutilated corpses of German soldiers murdered by snipers -- this was the way the partisan fighting started -- and the large number of victims claimed by a treacherous population, which filled the daily casualty reports of the troops. Unbiased observers have always repudiated guerilla fighting and partisan warfare. From the time that Professor Wheaton wrote:
"In modern warfare partisan and guerilla bands are "regarded as outlaws, and may be punished by a belligerent as robbers and murderers," the partisan problem has not changed except for the extent of partisan activity, which has increased on a gigantic scale, and the greater cruelty with which guerilla warfare was waged by the irregulars, especially during the last war.
The judgment on guerillas and partisans remains unchanged. In the most recent edition of Professor Hyde's book, dated 1945, a time when the partisan problem encountered in the war just ended could be surveyed and appraised in its full significance, we find the following statement:
"The law of nations apart from the Hague Regulations above noted, denies belligerent qualification to guerilla bands. Such forces wage a warfare which is irregular in point of origin and authority, of discipline, of purpose, and of procedure. They may be constituted at the back of a single individual; they lack uniforms; they are given to pillage and destruction; they take few prisoners and are hence disposed to show slight quarter. According to the late Dr. Lieber, they may be described as self-constituted sets of armed men, in times of war, who from no integrant part of the organized army, do not stand on the regular pay roll of the army, or are not paid at all, take up arms and lay them down at intervals, and carry on petty war (guerilla) chiefly by raids, extortion, destruction, and massacre, and who cannot encumber themselves with many prisoners, and will, therefore, generally give no quarter. They are peculiarly dangerous because they easily evade pursuit, and by laying down their arms become inviduous (sic, insidious?) enemies; because they cannot otherwise subsist than by rapine, and almost always degenerate into simple robbers and brigands."
The very people who admit only the patriotic motives which are so often invoked on behalf of the resistance forces, will have to concede that their opponent is, nonetheless, entitled to punish them as criminals. That has been quite explicitly stated in Oppenheim-Lauterpacht.
The British prosecutor in the trial of Field Marshal Kesselring, Colonel Halse, took the same view in his Opening Statement:
"There are some war crimes which are only crimes in respect of one side. The partisans, for instance, (and I say it quite openly) by attacking the German forces in rear were guilty of a crime against the German law; I say intentionally 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."
Now this brings me to the second main problem of the trial, the problem of hostages. In my opening statement, I already expounded this problem in some detail, and I believe that in many respects I may now refer to my previous exposition.
The defense contends that, according to the Laws of War, the killing of human beings by way of reprisals is an admissible and even indispensable instrument of force, in certain circumstances, used in order to induce the opponent to refrain from violating the provisions of international law. The defense maintains that the killing of security hostages -- that is, the killing of persons taken or detained for the avowed purpose of their being subjected to such reprisals in the event of actions contravening international law being committed by the enemy troops or enemy civilian population -- is not precluded in such cases.
The defense further asserts that the killing of security hostages, explicitly permitted by the U.S. Rules of Land Warfare, as far as it complies with the conditions warranting a reprisal measure, is not covered by the definition of war crimes as laid down by Article 6 (b) of the London Charter and Article II, 1 (b) of Allied Control Council Law No. 10.
It has been emphasized in the judgment of the International Military Tribunal that the Charter reflects and is the expression of international law as it existed at the time of the drawing up of the Charter.
This is as clearly stated in Article 6 (b) of the Charter as in Article II, 1 (b) of Allied Control Council Law No. 10.
The prosecution in the present trial has also stated that both provisions represented an exact codification of pre-existing international law. Both provisions define war crimes as "violations of the laws and customs of war," the inference being that they were not intended to identify any actions as war crimes which had not heretofore been regarded as such.
The London Charter and Allied Control Council Law No. 10, then, refer, with respect to war crimes, to the laws and customs of war as they existed before the promulgation of these provisions.
Even if the reference to the laws of war as practiced heretofore had not been as unequivocal as it in fact is, so that there remained any doubts as to whether Article 6 (b) of the Charter and Article II, 1 (b) of the Control Council Law merely referred to pre-existing laws and customs of war or whether they were intended to provide a new definition of war crimes, such doubts would have to be resolved along the lines of the first alternative.
For the Charter was drawn up "in the exercise of the sovereign power of legislation vested in those countries to which Germany had unconditionally surrendered," This is particularly true with respect to Control Council Law No. 10. But in the United States as well as in Great Britain according to the principle which holds true for the application of domestic legislation with regard to international law it may be assumed in dubious cases that it has not been intended to overrule international law.
Therefore, the summary interpretation of Article 6b of the London Statutes and of Articles II, 1 (b) of Control Council Law No. 10, according to which killing of hostages is supposed to be a war crime, ought to be supplemented - and that is tacitly understood - by pointing out that killing hostages is a war crime only to the extent to which it constituted such according to martial law as has been in force until now. This summary interpretation which is expressed so generally, is just as incorrect and means just as little as the famous phrase of Vattel:
"The very liberty of the hostages is at stake."
Both statements are correct only in those cases in which hostages are killed as punishment for not fulfilling an obligation; they do not concern the killing of hostages from the point of view of reprisals.
The definition which the International Military Tribunal has given with regard to Article 6 (b) of the Charter confirms that above regulation does not prejudge the problem of reprisals.
"Inasmuch as war crimes are concerned, International Law, as has been pointed out before, has recognized the crimes designated in Article 6, Section (b), of the Charter as war crimes. Articles 46, 50, 52, and 46 of the Hague Convention of 1907 and Articles 2, 3, 4, 46, and 51 of the Geneva Convention of 1929 refer to them. It has been so generally accepted that violations of these regulations constitute crimes for which the guilty persons are liable to punishment that there cannot be any further discussion with regard to that issue."
Thus in the opinion of the International Military Tribunal the actions designated in Article 16 constitute war crimes because they entail violations of the Hague Regulations. It is, however, known that the very essence of reprisal measures, inasfar as they are permissible according to the laws of war, is that a violation of international law is answered by the opposing party with an action which in itself also constitutes a deviation from the laws of war and the purpose of which is to compel the opponent to act in a lawful manner. Since also Article 50 of the Hague Regulations does not forbid reprisals - I shall discuss that later - this leads us to the conclusion that such actions which are carried out under such conditions as warrant reprisals according to international law have to be expected from the definition of war crimes as given in the London Charter and in the Control Council Law.
This is the second reason why in these proceedings, inasmuch as they concern the hostage problem, all that matters in the state of international law as it was when the charter was issued.
There has always been much written against the killing of hostages.
If we analyze their reasons we find that those authors who declared themselves opposed to the killing of hostages mistook their own ideas of justice, humanity, and morality, for the generally accepted rules of warfare - I am using an expression by Professor Oppenheim - just as frequently as they were influenced by the misconception that Article 50 of the Hague Regulations for land warfare referred to the problem of reprisals and hostages. Their point of view can in the main be identified with President Roosevelt's statement of 25 October 1941 that "the civilized nations have long accepted the fundamental principle that nobody was to be punished for the action of another."
This attitude can be readily understood from the point of view humanitarian principles, but it is also quite certain that it is incorrect from the point of view of the laws of war. Thus, also, the two authors, Hammer and Salvin content that President Roosevelt's statement is misleading.
The humanitarian motives in favor of the view that hostages should not be killed will have to be acknowledged by everyone. It is indeed a terrible thing to make people suffer for the action of others, but it is just that which constitutes the coercive force of reprisal measures.
"Reprisals are an extreme measure because in most cases they inflict suffering upon innocent persons. In this, however, their coercive force exists, and they are indispensible as a last resource." states paragraph 454 of the British Manual of Military Law.
It is also a terrible thing to kill innocent civilians, old men, women, and children by mean of bombs and burning phosphorus and yet we have lived to see such measures ordered and carried out to a very large extent.
The first and foremost principle in war is military necessity which has been expressed by Professor Oppenheim as follows:
"Victory is necessary in order to overpower an enemy, and it is this necessity which justifies all the indiscribable horrors of war, the enormous sacrifice of human life and health and the unavoidable destruction of property and devastation of territory. Apart from restrictions imposed by the Law of Nations upon belligerents, all kinds and all degrees of force may be, and eventually must be, used in war in order that its purpose may be achieved in spite of their cruelty and the utter misery they entail. As war is a struggle for existence between States, no amount of individual suffering and misery can be regarded; the national existence and independence of the struggling State is a higher consideration than any individual well-being."
If one reads what authors on international law have written about the problem of hostages, one finds that French scientists, above all, have expressed themselves in the most passionate and eloquent manner against the killing of hostages and, as a matter of principle, against the taking of hostages generally - that is, the scientists of that Nation, a commander of which, General Leclarc in the course of this war ordered his troops to shoot hostages at the ratio of 1 to 5. And if one further realizes that at the beginning of the last 85 years, a period of time which has been of decisive importance for the development of modern laws of war, we have the regulation contained in Article 58 of the American Instructions of 1863, to the effect that death will be the reward if the enemy should enslave prisoners of war, and that at the end of above mentioned period of time we find the threat which has been circulated within the American Armed Forces that punishment is to be meted out at a ratio of one to 200, then, in my opinion, one has to admit that those authors cannot be considered competent authorities in matters of martial law, insofar as it concerns the hostage problem.
There is no agreement regulating this matter. The problem of reprisal matters and of hostages has not been regulated in the Hague Convention of 1899 and 1907, and before that the powers represented at the Brussels Conference of 1874 had to desist from a regulation of this problem by agreement, owing to the difficulties involved in arriving at such an agreement. In Commission No. 2, which was dealing with the laws of land warfare, it was expressly stated that Article 50 of the Hague Regulations did not prejudge the problem of reprisals - "sans rien prejuger quant aux repressailles", as. Professor Rolin, the referent of the Commission, remarked in his report to the plenary assembly of the Hague Peace Conference. That has been pointed out expressly in the British Manual of Military Law as well as in the commentary by Oppenheim-Lauterpacht and has also been expressed already by Professor Holland in his book Laws and Customs of War on Land which was published at the behest of the British War Office in 1904.
Since the problem of security hostages is included in the problem of reprisals of which it is a part, one cannot, of course, say that Article 46 of the Hague Regulations for land warfare excludes the execution of security hostages. Because it is the very nature of a reprisal measure that a belligerent may, in its execution, deviate from the rules of martial law which, in other cases, are binding.