The execution of partisans as francs-tireurs is connected with the Barbarossa Jurisdiction Decree in that it involves the treatment of civilians by the occupying and invading forces.
The record in this case contains much testimony and among the numerous exhibits are many documents dealing with so-called partisan warfare. We deem it desirable to make some comment on the law relating thereto before considering the cases of the individual defendants.
Articles 1 and 2 of the Annex to the Hague Convention are as follows:
"The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
"1. To be commanded by a person responsible for his subordinates.
"2. To have a fixed distinctive emblem recognizable at a distance.
"3. To carry arms openly; and
"4. To conduct their operations in accordance with the laws and customs of war.
"In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination 'army'.
"The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war."
A failure to meet these requirements deprives one so failing on capture of a prisoner of war status.
We have a strong suspicion from the record in this case that antipartisan warfare was used by the German Reich as a pretext for the extermination of many thousands of innocent persons. Hitler stated what it seems became the Wehrmacht policy when he said: "This partisan war again has some advantages for us; it enables us to eradicate everyone who opposes us."
The defendants without exception claim that they executed as partisans only those who were operating as francs-tireurs and bandits and who failed to comply with the requirements of the rules of war to constitute them lawful belligerents. They claim there is no evidence adduced by the prosecution that the defendants are guilty of executing any as so-called partisans who complied with the requirements to constitute them lawful belligerents, that is, any who were not in fact francs-tireurs. However, we need not on the record before us determine whether this is true or untrue for the evidence shows beyond any question that it was the policy of the Wehrmacht to create classes of partisans by definition in orders and directives and by construction and in this manner they brought within the list of these they prescribed as partisans and shot or hung -- not only the franc-tireur, in fact, but also many other classes that no conceivable reason can be found for so including except as Hitler stated it, "to eradicate all those who oppose us". In a conference called by General Mueller (General for Special Assignments) at Warsaw before the Russian campaign to instruct the judge advocate and intelligence officers of the armies on the meaning and scope of the Barbarossa Jurisdiction Decree, the following was the construction and instruction given:
"One of the two enemies must die; do not spare the bearer of enemy ideology, but kill him.
"Every civilian who impedes or incites others to impede the German Wehrmacht is also to be considered a guerrilla (for instance: instigators, persons who distribute leaflets, nonobservance of German orders, arsonists, destroying of road signs, supplies, etc.).
"The population is denied the right to take up arms voluntarily. Neither are para-military associations (Komsomoel Osscaviachim) entitled to do so."
The classification certainly is elastic and capable of wide extension. "Every civilian who impedes or incites others to impede the German Wehrmacht," taken as a criterion for determining who is a franc-tireur, clearly opens the way for arbitrary and bloody implementation. Those falling into the various classifications were summarily executed as partisans and so classified in the reports. There is no warrant in the rules of war or in international law for dealing with such persons as francs-tireurs, guerrillas, or bandits. Red Army soldiers in uniform were in some instances shot as so-called partisans. There is, of course, no warrant in international law for such action.
The most vicious classification of the prescribed was that of "partisan suspect". The executions of such were a regular routine and their executions were reported along with those of the so-called partisans.
Suspicion is a state of mind of the accuser and not a state of mind or an act by the one accused. It is a monstrous proposition containing the very essence of license that the state of mind of the accuser shall be the determining factor, in the absence of evidence of guilt, whether the accused shall or shall not be summarily executed. But it is said that when these accused were captured they were interrogated and some were not executed but released or sent to prison camps. But this is no defense for it does not necessarily mean that those who were executed as suspects had been found guilty even by the informal interrogation by an officer, but only that the interrogator had not had his suspicion that the were guilty removed, so under the order, they, being still suspected, they were executed. This does not amount to even the minimum of judicial protection required before an execution.
The classification of the victims in the numerous reports in the records as partisan suspects is a natural and proper one to be made under the order for execution on mere suspicion of partisan activity. If, as defendants have contended, no suspects were executed until they were lawfully found and adjudged to be guilty, there was no need whatsoever for the distinction made in the classification. We find from the evidence that there were great numbers of persons executed in the areas of various of these defendants, who, under no stretch of the imagination, were francs-tireurs and great numbers of others executed solely on suspicion, without any proof or lawful determination that they were in fact guilty of the offenses of which they were suspected. The orders to execute such persons and mere suspects on suspicion only and without proof, were criminal on their face. Executions pursuant thereto were criminal. Those who gave or passed down such orders must bear criminal responsibility for passing them down and for their implementation by the units subordinate to them.
Notwithstanding our strong suspicion that the executions of persons described in the documents as partisans were in a vast number of cases not executions of those whom it was permissible to execute under the rules of war, but a mere cloak under which innocent persons were eradicated, we accord to the defendants the benefit of any possible doubt and determine the question of their criminality on the basis of cases of the type mentioned concerning the criminality of which under both the law and the evidence there can be no doubt.
We shall determine on consideration of the evidence each defendant's guilt or innocence as to such matters charged against him.
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I'm not sure where you're going with this thread but an interesting look into this issue is Keitel's memoirs "In the Service of The Reich" (which I just reread after several decades). He being accused of issuing this type of order--on Hitler's demand!
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