The Hostages Trial
As part of the German Army’s efforts to suppress the activities of partisans and guerrilla warfare it became a practice to take hostages from among the civilian population. Hostages were executed as reprisal for partisan attacks, particularly in the Balkan countries. The Hostages Trial is also known as the Southeast Trial, because all of the accused were senior German army officers commanding units in the Balkans. During the Hostages Trial, the tribunal found that the partisans in the region were not “lawful belligerents” meaning that the protections afforded prisoners of war did not apply to them, and they could be tried and executed as criminals.
The ten accused German officers in the Hostages Trial used the defense of acting under orders from higher authority, which they were obligated to do as officers. They also pointed out that the field manuals of the British and American Army both authorized the seizure of hostages as a legitimate defense against partisan and guerrilla activity, including the execution of the hostages in reprisal for the attacks (the British manual did not specify killing the hostages, but the US Army Field Manual Rule of Land Warfare did). Despite these defenses, of the twelve accused German officers eight were found guilty of war crimes and sentenced to prison terms, one committed suicide before the trial, one was removed for health reasons, and two were acquitted.
Regarding the defense of simply following orders, the tribunal ruled that the more senior officers were in a position to recognize the illegitimacy of orders to violate basic human rights and the rules of warfare, and were thus obligated to prevent them from being carried out. The subject of the treatment of hostages in response to partisan activity as discussed in the American Field Manual was not addressed by the court, which found the execution of hostages by the Germans to be a war crime against the civilian population. The tribunal ruled that the German killing of hostages exceeded that which was considered lawful under the rule of war.
The Hostages Trial formalized the guerrilla fighters and partisans as irregulars who operated outside of the rules and laws of warfare. Since the Resistance fighters in France and elsewhere were also in this category, it made them equally subject to instant execution when captured, but French courts disagreed with this assessment and declared them to be protected by the laws of war and the Geneva convention, declaring them if captured to be prisoners of war. The French courts had an interest in protecting (and avenging) their citizens which had fought the Germans and in many cases been caught and executed for doing so.
None of the German officers convicted in the Hostages Trial served their entire sentence, and by 1953 all had been released from custody. Following the Hostages Trial the Geneva Convention was amended to extend protections to captured partisan fighters as legitimate prisoners of war. The convention required of such partisans that they have an established chain of command, carry their weapons openly, and have a distinctive and readily visible symbol of their unit. They also must carry out military activities in accordance with the conventions of warfare, rather than covert assassinations, bombings, and other criminal acts.