"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."
But this is far different from saying that resistance fighters in the war against an invading army, if they fully comply with the conditions just mentioned, can be put outseide the law by the adversary. As the Hague Regulations state expressly, if they fulfill the four conditions, "the laws, rights, and duties of war" apply to them in the same manner as they apply to regular armies.
Many of the defendants seem to assume that by merely characterizing a person a partisan he may be shot out of hand. But it is not so simple as that. If the partisans are organized and are engaged in what International Law regards as legitimate warfare for the defense of their own country, they are entitled to be protected as combatants.
The record shows that in many of the areas where the Einsatzgruppen operated, the so-called partisans had wrested considerable territory from the German occupant, and that military combat
action of some demensions was required to re-occupy those areas. In belligerent occupation this occupying power does not hold enemy territory by virtue of any legal right. On the contrary, it merely exercises a precarious and temporary actual control. This can be seen from Article 42 of the Hague Regulations which grants certain well limited rights to a military occupant. only in enemy territory which is "actually placed" under his control.
In reconquering enemy territory which the occupant has lost to the enemy, he is not carrying out a police performance but a regular act of war. The enemy combatants in this case are, of course, also carrying out a war performance. They must, on their part, obey the laws and customs of warefare, and if they do, and are then captured, they are entitled to the status and rights of prisoners of war.
The language used in the official German reports, received in evidence in this case, show, however, that combatants were indiscriminately punished only for having fought against the enemy. This is contrary to the law of war.
Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 105 - 106 (original mimeographed copy)