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Court 5, Case 7
15 July 47 -M1-1-ABG-Perrin (Schaefer)

Official Transcript of the American Military Tribunal in the matter of the United States of America, against Wilhelm List, et al., Defendants, sitting at Nurnberg[sic], Germany, on 15 July 1947, 0930-1630, Justice Wennerstrum, presiding.

THE MARSHAL:  The Honorable, the Judges of Military Tribunal 5.

Military Tribunal 5 is now in session.  God save the United States of America and this honorable Tribunal.

THE PRESIDENT:  This Tribunal is convened at this time for the purpose of the presentation of the opening statements on behalf of the prosecution.  Prior to the presentation of this opening statement, I wish to make a statement relative to certain motions which have been filed by the defense counsel.  These motions will receive the consideration of this Tribunal following the presentation of the opening statements by the prosecution.  Is the prosecution ready?

GENERAL TAYLOR:    Yes, Your Honor.

THE PRESIDENT:    You may proceed.

GENERAL TAYLOR:    May it please Your Honors.

This is the first time, since the conclusion of the trial before the International Military Tribunal, that high-ranking officers of the Wehrmacht have appeared in this dock, charged with capital crimes committed in a strictly military capacity.  The conviction and execution of Keitel and Jodl, pursuant to the judgement and sentence of the International Military Tribunal, gave rise to wide-spread public comment, not only in Germany, but also in the United States and England.  Since that time, there have been several other note-worthy trials of German military leaders.

In the British zone of occupation, Generals von Falkenhorst and Blumentritt have been tried for the murder of prisoners of war.  General Sepp Dietrich and his subordinates have been charged in the American zone with responsibility for the Malmedy massacre.  Generals von Mackensen and Maeltzer faced a British military court in Italy in connection with the Ardeatine caves massacre of Italians.  In Yugoslavia and Greece, Generals Alexander Loehr and Friedrich Wilheim Mueller have been tried

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and condemned for war crimes committed in southeastern Europe.

Most recently, Field Marshal Albert Kesselring was tried by a British military court in Italy.  The court found him guilty of responsibility for the Ardeatine caves atrocity, as well as for other war crimes against Italians commited[sic] by troops under his command in northern Italy.  It sentenced him to be shot to death.  This sentence of capital punishment against one of the outstanding military figures of the recent war again stimulated much discussion, and encountered not inconsiderable criticism, particularly in England. Whether or not as a result of such criticism, about ten days ago the British reviewing authorities commuted the death sentences against Kesselring, von Machensen, and Maeltzer to life imprisonment.

Because of the unusually deep interest which cases of this type have aroused, not only in military and legal circles but throughout the general public, and because the scope and sweep of this case is much greater than any of the previous cases to which I have referred, the prosecution may fairly be required, in opening this case, to do much more than outline the evidence which will be adduced in support of the indictment.  Indeed, as this case progresses, I think it will rapidly appear that the evidentiary questions are of secondary importance.  That the killings charged in the indictment occurred, that they were carried out by troops under the command of these defendants, and that they were in fact ordered by the defendants will not, I believe, be denied.  The naked facts are terribly clear.

Nor, after the evidence is laid before you, can the true meaning of this case be drawn from learned arguments by counsel, analyzing and refining the laws of war as they are written in the Hague Conventions and in textbooks on international law.  Of necessity, we will hear much discussion of hostages, and reprisals, and the necessary qualifications of belligerent armed forces.  But the exposition of these technical problems of the law of land warfare, important as it may be, does not reach to the heart of this or similar cases in the year 1947.

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The doubts which have been expressed concerning the wisdom and value of trials such as this one arise from a variety of conseptions[sic] and misconceptions.  To some extent, these doubts are the natural result of the passage of time.  Hostilities in Europe ended over two years ago, the devastated and stricken condition of Germany has aroused sympathy, and there is general desire to wipe the unhappy past from memory.  So we hear it suggested by some that the present plight of Germany should shield men such as these from the consequences of crime, if criminals they be.  But Germany is not only devastated and stricken land, and for every crime there is not only a criminal but a victim.  In the minds of many peoples are memories so mordant that they can not be forgotten.  If the course of justice is stayed, these sores will only fester the longer and spread the wider.  We can not restore the moral fabric of Europe by laying a shroud over unshriven and unburied corpses.

Other and quite different doubts have been raised by some who, with a blurred vision of military discipline, suppose that military men are a sort of race apart, who are not responsible for their actions because they are expected to obey orders.  But the law and code of the German Army itself says that it is the duty of every soldier to refuse to obey orders that he knows to be criminal.  This may be hard for the ordinary soldier.

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acting under pistol-point orders from his lieutenant.  It is far less difficult for high-ranking commanders such as the men in the dock.  These men are not named in the indictment because they are gererals[sic]; they are named because they are charged with the responsibility for crimes.  They must be acquitted if, under the law and the evidence, that responsibility can not justly be attributed to them, but they can not be acquitted merely because they are generals, any more than they can be indicted for that reason alone.

More fundamental and more cogent, I believe, are the doubts of those who quesiton the wisdom and justice of attempting, by criminal prosecution, to enforce the laws [of] war with meticulous precision.  Wars, such people say, are not fought on the dueling ground, and a polished observance of ritual can not be expected.  Furthermore, there is a general feeling, not without substantial basis, that some of the laws of war as written in the Hague Conventions are obsolete, and on both sides were honored only in the breach.  Then, too, it is felt, and rightly, that violations of the laws of war are committed in the best regulated armies, and it is therefore urged that the commanders should not be held to a strict and rigorous account for occasional lapses.  I think that the unarticulated doubts of this latter description underlie the criticism leveled against the death sentence which was imposed upon Kesselring, particularly criticism emanated from high-ranking Allied commanders who fought against him.  The degree of Kesselring's guilt is, of course, not at issue in this proceeding, but in the course of it we will of necessity find occasion to draw certain comparisons and contrasts between the charges which were laid against Kesselring and those which are laid against the defendants here in the dock.

This case will achieve international meaning and significance, I believe, only if we adopt a realistic and practical approach to such

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questions.  And I believe that such an approach has been adopted in the framing of this indictment, in the selection of evidence in support thereof, and in the basic theory of the prosecution's case.  The prosecution fully recognizes that the laws and usages of warfare must be altered and adapted to reflect the developments in this terrible act which man has learned to practice with such appalling proficience.  We have not sought and wil[sic] not seek in this case to make murderers out of soldiers for the violation of rules framed in 1907, if those rules today are outmoded and generally disregarded.

So, too, the prosecution takes full account of the true nature of modern warfare as it relates to the responsibilities of commanders.  We would not have arrested the defendants, we would not have requested that this court be constituted, and we would not have brought charges against these men, if they were to be accused of mere carelessness or responsibility for occasional or sporadic crimes committed by their troops.

On the contrary, we charge that these men inaugurated and executed a deliberate program of terror and extermination which was boundless in its arrogant contempt for the inhabitants of the lands which the Wehrmacht invaded and overran.  It is perhaps the most elementary principle of human intercourse--the bare subsistence level of civilization-- that human life should not be destroyed needlessly, or merely because it is regarded as inferior.  This is not an elevated or noble principle, although the entire structure of human dignity is built upon it.  This principle merely enunciates mankind's instinct of self-preservation, and its observance protects man from self-destruction.  It is so deeply roted[sic] in civilization that the world insists on its observance in war as well as in peace, and the laws of war are, essentially, nothing more than a gloss on this fundamental rubric.  It is for denying and undermining the very basis of civi-

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lization that these men are indicted.

Let us turn, then, to the indictment in which the charges against these men are set forth.  Counts One and Two of the indictment relate to murders and other crimes committed against the civilian inhabitants of Greece, Yugoslavia, Norway and Albania during the German occupation of those countries.  Count Three charges the killing, in violation of the rules of war, of prisonders of war and other members of the armed forces of cuntries[sic] at war with Germany, and of members of the Italian armed forces after Italy's capitulation to the Allied nations.  Count Four accuses the defendants of ordering and committing murders and other crimes in furtherance of the "racial" and economic policies of the Third Reich--the slaughter of Jews, the imprisonment and mistreatment of other segments of the civilian population, and the deportation of thousands to slave labor in Germany.

Count one, more particularly, charges the murder of many thousands of civilians under the color of retaliation or "reprisal" for attacks on German forces or military installations.  As will appear from the evidence, these killings were carried out pursuant to a plan and system, embodied in orders issued, distributed, and executed by the defendants and others, [which] called for the retaliatory killing of civilians at arbitrarily established ratios, such as 100 civilians for every German soldier killed, and 50 for each soldier wounded.  Usually the Germans referred to the victims of these mass executions as "hostages".

As I said at the outset, the proof of these acts will present no difficulty.  The evidence, is all set forth in orders, reports, and other documents issued and circulated by the defendants themselves.  Lest Your Honors find it hard to credit what the written word so starkly exhibits, the oral testimony of eyewitnesses will also be spread on the record.

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The laws of war do, of course, recognize that in certain circumstances belligerents may take steps by way of reprisal.  The taking of hostages, too, has been practiced between nations since ancient times.  The killing of hostages is a much more recent development; it is not the emblem of an enlightened way of life, and most of the precedents are found in the history of the Germany army and its exploits during the First World War.  Furthermore, as will clearly appear, most of the victims who met their death before German firing squads at Belgrade, or Kraljevo, or Athens, or Klissura were not "hostages" in any true sense of the word.

We will, in due course, endeavor to set forth in some detail the rules of war as they relate to "reprisals" and "hostages".  At this point I wish to make only two observations.  Both the London Charter and Control Council Law No. 10 declare the killing of hostages to be a violation of the laws of war.  This declaration is binding on the Tribunal and the prosecution alike, and the prosecution believes that it is an accurate statement of the law.  But the theory of the prosecution's case under Count One does not rest on this rule.  We may concede for purposes of argument that the execution of hostages may under some circumstances be justified, harshly as those words may ring in our ears.  But the law must be spared the shame of condoning the torrent of senseless death which these men, let loose in south-eastern Europe.

Count Two of the indictment speaks in terms of destruction and devastation, totally unjustified by military necessity.  Here, too, the victims were the peoples of Norway, Ygoslavia[sic], Greece, and Albania, who saw their homes in flames, their towns and villages erased and their possiessions[sic] looted and scattered.

Count Three of the indictment is quite different from the first two counts.  The victims of the crimes charged in Count Three were

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not civilians and non-combatants; they were, for the most part, members of the Yugoslav and Greek armed forces who continued to resist the German invader after the defeat of the major units of the Greek and Yugoslav armies and the replacement of their national governments by "puppet" governments or German military occupational administration.  Pursuant to orders issued and executed by the defendants, these troops who continued to resist were not recognized by Germany as belligerents, and when captured were commonly denied the status of prisoners of war and were shot or hanged.  We will, subsequently, discuss the rules of war pertaining to the qualifications of belligerent armed forces.

Count Three also charges other crimes against members  of the armed forces of various other allied nations, particularly in pursuance of the notorious German order of October, 1942, under which numerous Allied "commandos" were coldly murdered after their capture.  It also charges the murder of many officers and men of the Italian armed forces at the time of and shortly after Italy's surrender to the Allies.

Count Four, finally, strikes a still more somber note.  The crimes charged therein were in now way related to military operations.  We find the defendants and their troops helping to "purge" south-eastern Europe of the so-called "inferior peoples", such as Jews, and "politically unreliable" individuals such as "democrats" and "nationalists".  We find them helping to enslave and deport the inhaibitants of these lands to join the millions of other unfortunates from all over Europe who were sucked into Germany to work for their conquerors in mines and factories.  We see the German army in a shameful role as the servant and tool of Himmler, Sauckel, and other Nazi worthies.

Such in summary, are the chaeges[sic] in this indictment.  The Tribunal will observe, from the dates of the particular incidents set

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forth as illustations of the charges, that all four counts cover the three and one half years from April 1941 to approximately October 1944.  All four types of crime were committed throughout this period, and often a single episode involved the commission of crimes under all four counts.  Consequently, in outlining the evidence today in presenting it during the next few weeks, the prosecution[sic] proposes to proceed chronologically, rather than count by count.  We believe this will be conducive to a more orderly and intelligible[sic] presentation. However, in presenting particular documents or witnesses, we will of course, specify which count or portion of a count the particular piece of evidence supports.

Before taking up the evidence in more detail, it will be helpful to spend a few moments in outlining the structure and organization of the German military machine, and the way in which if functioned in occupied countries, particularly in southeastern Europe.  The prosecution has already submitted to the Tribunal, and to defense counsel, a brief memorandum on the organization of the German army, together with a series of charts showing the chain of command of the more important military units in southeastern Europe and northern Norway, with several maps of Yugoslavia, Greece, and Norway, and other mechanical aids to the understanding of this cause.  One of these charts has been enlarged for display on the wall of the courtroom.

A. The Supreme Command of the German Armed Forces.

Dr. LATERNSER (Counsel for the defendants List, and von Weichs): Mr. President, I am sorry I have to interrupt at this moment.  I am surprised to hear right now the Tribunal has been presented by the prosecution with an information referring to the defense.  We are now in a criminal procedure and as far as I know the person who makes a statement has to prove that it is true.  I don't know now how the prosecution[sic] wants this information to be understood.  If it

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should be regarded as evidence before this Tribunal in that case I must object to the submitted information already to this Tribunal for a summary of the prosecution is not a means of the evidence.  We know the criminal procedure and we know that it consists of evidence and documentary evidence.  I cannot see from the information that I have received that a document is in question not been signed by anybody.  However, if it is merely information that is no evidence then informing the Tribunal by this material, as far as I know foreign law, can only then be right when the defense agrees with it.

For information of the Tribunal can merely be affected when everybody agrees.  In any case if this information is supposed evidence it has to be rejected.  We are merely dealing with statements of the prosecution which have now to be proved, for which evidence has to be submitted.  I just want to put an example now and I shall soon finish.  This information also refers to this chart here, Chart D.  It is supposed to serve as information for the Tribunal, to brief the Tribunal.  The moment when I entered the court I saw two basic mistakes in this chart.  The mistakes are in the chart although in the first trial before the Military Tribunal the position of the O.K.W. was discussed at large.

From this sketch we can see the O.K.W. and the O.K.M. and O.K.H. -- they were supposed to be one group but that was never the case.  The OKW was merely a working staff of Hitlee's[sic] and if one regards the results of the first trial, this staff cannot be put right or left in the chart beside that little box, that means "Hitler", this is a basic mistake.

I shall soon finish.  The next mistake results from the fact that, for instance, army group F is connected with a line supposed to mean technical subordinates.  That also is not correct.  I therefore ask the Tribunal to ask the prosecution[sic] that the information which was submitted by the prosecution may be withdrawn from the assumptions contained in this information the prosecution will have to submit evidence.

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GENERAL TAYLOR:    May it please Your Honors, the document in question is, as I stated quite briefly, not evidentiary.  It is in the nature of a brief.  Dr. Laternser, who has been before the IMT, is fully familiar with the procedure.  There has been such a brief submitted before every trial that has taken -place in this courtroom.  It is not evidentiary.  It is to enable the Tribunal and defense counsel to follow the opening statements.

The matters contained therein will, to be sure, be supported by documents which will be submitted during the prosecution's case in chief.

THE PRESIDENT:     The Tribunal, speaking through presiding judge, wishes to state that this document which I now have before me was considered by the Tribunal as merely informative.  The members of this Tribunal are members of courts in the States who have had many years of not only trials but Appellate experience, and I am certain that I speak the thoughts of my associates when I say to counsel that we shall only decide this case upon the evidence as presented.

It should be kept in mind that the member of this Tribunal have been in this city here, and its surrounding country, for only about one month.  Naturally we are desirous, and it is necessary, that we become informed on the procedure that is to be followed in these cases.  It is necessary that we learn about the type of the case and the things that will be presented, but I assure counsel for the defense, the defendants, and all other parties concerned that the decision of this court will be based solely upon the evidence as presented, and after counsel for the defendants and the defendants themselves have had a full and fair opportunity to present any matters in rebuttal which may have been presented on behalf of the prosecution.

You may proceed, General Taylor.

GENERAL TAYLOR:    When Hitler came to power in 1933, the German armed forces (which then consisted only of the Army and Navy, since the Air Force did not yet officially exist) were controlled and administered by a cabinet department called the Reich Defense Ministry.  Under the

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Reich Defense Minister, at that time von Blomberg, the highest officers of each branch of the service were called respectively the Chief of the Army Staff, that being General von Fritsch, and the Chief of the Naval Staff (Admiral Raeder).

In May 1935, when Germany started openly to overthrow the armament restrictions of the Versailles Treaty, von Blomberg was given the title of Reichsminister for War and Commander-in-Chief of the Armed Forces, and von Fritsch and Raeder were thereafter called the Commanders-in-Chief of the Army and Navy respectively.  However, the German Air Force, which was officially born at about the same time, was not subordinated to von Blomberg.  It was established as an independent institution under Goering, who took the title of Air Minister and Commander-in-Chief of the Air Force.

In February 1938 there was a general reorganization of the German military set-up.  Von Blomberg and Fritsch were both retired, and Hitler himself took the title of Supreme Commander of the Armed Forces (Obersterbefehlshaber der Wehrmacht).  At the same time Hitler created the Armed Forces High Command (Oberkommando der Wehrmacht, usually referred to as OKW), with authority over all three brances of the armed forces.  Wilhelm Keitel was installed as Chief of the OKW, and remained in this capacity until the end of the war in 1945.  The OKW was, in effect, Hitler’s personal staff for all matters pertaining to the armed forces, and Keitel’s function was that of Hitler’s executive officer for the administration of the armed forces and the application of Hitler’s policies.  

As is shown by the chart on the wall (Chart "D" in the explanatory pamphlet which the prosecution has submitted), the three components of the armed forces were directly supordinated to Hitler and the OKW.  Admiral Raeder continued as Commander-in-Chief of the Navy (OKM) until 1943, when he was relieved by Admiral Doenitz.  Goering continued to head the Air Force (OKL) until the last month of the war.  As Supreme Commander of the Army to replace con Fritsch, Hitler selected General 

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(later Field Marshal) Walter von Brauchitsch.

B. The German Army

The German army, needless to say, was by far the largest and most important of the three branches of the Wehrmacht.  Von Brauchitsch continued as Commander-in-Chief only until December 1941, at which time Hitler relieved him and himself took the title of Commander-in-Chief of the Army in addition to that of Supreme Commander of the Armed Forces.  This dual capacity led to a merging and overlapping of the functions of OKW and OKH, and at times we may find it difficult to differentiate between their respective responsibilities.

The field formations of the German army were normally subordinated to OKH although, as we will see shortly, as the war progressed they were on numerous occasions subordinated to OKW.  The largest field formation in the German army, as in most others, was known as an "Army Groups," which was, ordinarily, a headquarters controlling two or more "armies".  Army groups and armies were usually commanded by field marshals and Generalobersts, ranks which are respectively the equivalent of a five-star and four-star general in our own military hierarchy.  A German "army", however, was sometimes commanded by a mere "General", which is the same as a lieutenant general (three stars) in the American army. 

Below the "army" were the lower formations, which followed the same general pattern in the German army as in others – in order from top to bottom, come the corps and the division, and then the smaller units such as regiments, battalions, and companies.  The most important types of divisions were the infantry division, the armored or panzer division, and the motorized or panzer-grenadier division, but the Germans used a number of other special types.  In southeastern Europe, where many miscellaneous units were employed, we will frequently encounter the mountain division, the security division (Sicherungsdivision, usually composed of older soldiers), and the reserve division (usually composed of units still undergoing training).  There were also infantry divisions formed 

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from the personnel of the German Air Force, and known as German air force field divisions (Luftwaffenfelddivisionen).  

Side by side with the corps and divisions of the regular German army we find similarily [sic] designated formations of Heinrich Himmler’s SS.  Not content with his powerful position as head of the SS and of all German police forces, Himmler inaugurated the recruitment and formation into military units of hundreds of thousands of SS men trained and equipped for front-line combat duty.  This strictly military part of the SS was known as the Waffen (armed) SS, and by the end of the war it comprised no less than 30 divisions, as well as several corps headquarters and an army headquarters.  Himmler’s divisions were consecutively numbered and carried special names.  In southeastern Europe, during the period covered by this case, the 7th SS Mountain Division "Prinz Eugen", the 8th SS Cavalry Division "Florian Geyer", and several others were very active.  During the early part of the war, these SS soldiers were almost all volunteers, frantically devoted to the ideals, if such they may be called, of the SS.  Later in the war a number of SS divisions were formed by forcible conscription from the populations of occupied countries.  For some purposes, chiefly administrative in nature, the Waffen-SS units remained under Himmler’s control, but for operational purposes they were under the command of the German army, and their employment differed little from that of the regular divisions of the army.

As I stated earlier, the field forces of the German army were normally under the OKH, but not infrequently, particularly during the latter part of the war, they came to be subordinated directly to OKW.  This was particularly true in territories which the German army had overrun and where military occupational authorities were established.  In such regions, the Germans often appointed a senior over-all commander, to whom the heads of the Army, Navy, and Air Force units in that region were all responsible.  Such a commander, with local authority over all three branches of the armed forces, was called an "Armed Forces Commander" (Wehrmachtsbefehlshaber).  In southeastern Europe, where the Army

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was the all-important branch of the service, the armed forces commander was almost invariably an army general.  

While the Armed Forces Commander had authority over all units of the German armed forces in an occupied region, the administration of the area, in conformity with German rules and policies, was commonly entrusted to an army general designated as "Military Commander (Militaerbefehlshaber).  He had the primary mission of insuring security and order, and for this purpose had at his disposal the German police forces and, often, security divisions and regiments of the army.  On matters of military government policy, the Military Commander usually took his orders direct from OKH, but as commander of the security and police forces allotted to him, he was tactically subordinate to the Armed Forces Commander in his territory.  

Himmler’s police and intelligence empire also reached into the occupied territories.  Reflecting Himmler’s leadership of both the SS and the German police, a Himmler emissary in the occupied territories was called a "Higher SS and Police Leader" (Hoeherer SS und Polizei Fuehrer, usually abbreviated HSSPF).  His principal functions were to control the local police authorities and carry out other special missions of a security nature.  The HSSPF’s remained personally responsible to Himmler, but for tactical purposes were subordinated to the senior Military Commander in their territory.

D. German Military Organization in Southeastern Europe and Northern Norway.

The chain of command and order of battle of the German armed forces in southeastern Europe was complicated and changed frequently.  The narrative is most logically broken into three principal periods of time.

From April 1941, when the invasions of Greece and Yugoslavia took place, until August 1942 the focal point of German military authority in southeastern Europe was the headquarters of the 12th Army.  The defendant List commanded the 12th Army until October 1941, at which time the defendant Kuntze took charge as acting commander until August 1942.

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During this period the defendant Foertsch was Chief of Staff to both List and Kuntze, the defendant Felmy commanded in southern Greece, and the deceased Boehme in Serbia.  The defendant Weichs was also active at the beginning of this period.  He commanded the Second Army, which invaded Yugoslavia from the north, but he and his army were withdrawn from the Balkans in May 1941 at the conclusion of large-scale operations. 

The second period begins in August 1942 when Kuntze left the Balkans and Generaloberst Alexander Loehr, now deceased, became Commanding General of the 12th Army.  At about the same time the defendant Speidel followed Felmy as the commander in southern Greece, and the defendant Geitner became Chief of Staff to the Military Commander in Serbia, General Bader, who had replaced Boehme in December 1941.  In January 1943 the 12th Army was, as we say, "up-graded" and re-designated as Army Group "E".  General Loehr continued in command of Army Group "E" with the defendant Foertsch as his Chief of Staff.

The third and final phase begins in August 1943, and thereafter the organization remained substantially unchanged until the end of the war.  The new structure during this final period, shown in the chart on the wall, was largely the result of the allied landing in Sicily; the resultant threat to German dominion in the Balkans required a stiffening of command and reinforcements.  The defendant Weichs returned to the Balkans in over-all command, with a headquarters designated Army Group "F".  Under him were General Loehr, with his jurisdiction now restricted to Greece, the defendant Rendulic, as Commander-in-Chief of the Second Panzer Army in Croatia, shown at the center of the chart, and General Felber, of whom we will hear much in these proceedings, as Military Commander for all of southeastern Europe, and with personal jurisdiction in Serbia, shown in the center of chart.

Under Loehr were the defendants Felmy, who returned to Greece in June 1943, and Lanz, both of whom commanded corps under Army Group "E".  The defendants von Leyser and Dehner were corps commanders under Rendulic.  Foertsch stayed on as Chief of Staff to Weichs and Geitner remained as 

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Chief of Staff to Felber.  Spidel remained as Military Commander in Greece, under the command of Felber as Military Commander for all of southeastern Europe.  

The situation in northern Norway is of importance in this case only during the fall of 1944, when the German forces in northern Finland retreated into Norway through the Norwegian province of Finnmark.  These forces, comprising the 20th Mountain Army, had been commanded by Generaloberst Dietl, who was killed in an airplane crash during the summer of 1944.  The defendant Rendulic left his command of the Second Panzer Army in Croatia and replaced Dietl in Finland.  Te various units subordinated to Rendulic’s 20th Mountain Army are shown in Chart "G" of the prosecution’s pamphlet.  

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GERMAN MILITARY POLICE WITH RESPECT TO "HOSTAGES"

Before turning to the particulars of the evidence, and to put this case in its proper setting, we may remind ourselves that the war crimes of the Germany army were not confined to southeastern Europe.  In particular, the practice of taking and executing so-called "hostages" from the civilian population was instituted at the very outset of the war, and was deliberately planned in advance.  

In July, 1939, when plans for the invasion of Poland were being laid, the OKH distributed to the army field commanders a series of directives for the maintenance of security in Poland.  This initial step was relatively circumspect; the field commanders were told that "hostages" could be taken, but that their execution would have to be approved in each instance by OKH.  

The subsequent history of this order might be styled "the rake’s progress".  About two months later, when Poland had been conquered, the German Military Commander in the Polish city of Poznan ordered that:

.....hostages are to be taken from the Polish civilian population in every village in which troops are billeted....In the event of attacks on members of the Wehrmacht of persons who are German by race, hostages are to be shot.  Only senior officers holding the rank of a division commander will issue orders to shoot hostages.  

The "War Diary" of a German rear area commandant carries the story forward.  Two weeks later, on October 15, 1939, two hostages were shot in the village of Buk because a sentry had been shot at.  Three days later, according to the diary, the following occurred in the Polish villages of Ottorowo and Samter: 

In Ottorowo: A carbine had been stolen, the room in which the burglary was committed had been damaged, a swastika flag had been torn down and the Polish Eagle put up.  Sentence was passed by a court-martial of the chief of civil administration and after a specified period of time had expired, 5 hostages each were shot in Ottorowo and Samter.  The execution took place in the presence of the entire population.  There were no tears, and the fine of 10,000 zlotys imposed on the village of Ottorowo was paid, probably with the help of the church

In Samter: Catholic services may be conducted only once a 

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week..... The county governor intends to remove gradually from his county the Polish intellectuals, the owners of large estates, and the clergy.  

A Lieutenant, who is a district speaker for the Nazy [sic] Party in civilian life, attends to the moral welfare of the troops.  

Under this beneficient [sic] moral tutelage rapidly emerged, in fearful shape, the German inferiority complex.  The Poles were inferior peoples, but the Germans could not be quite sure that this was really true until all the educated Poles had been removed. 

The following year the same pattern was repeated in France and the Low Countries.  It is June, 1940, and the defendant List, with his Twelfth Army, is attacking across the Aisne River in France.  The commander of the rear area of his army gives the order that: 

As soon as acts of sabotage – fires also belong in this category – are found, hostages are to be taken.  The arrest is to be announced publicly.  If the acts of sabotage are repeated, the hostages are to be shot, according to the regulations previously issued, after sentence by a Court – martial. Executions by shooting are to be reported to the Twelfth Army and announced publicly.  

Belgian citizens, however, may be shot only with the consent of OKH.  

As the scourge of war spread from country to country, the ways of the army grew even more savage.  In 1941, as the Wehrmacht threw itself into the Slavic countries of Eastern Europe, the Germans encountered people whom they held in the contempt born of fear.  In the Balkans and Russia, they spread such death and terror that the conscience of the world was made to reel and on October 25th, 1941, Franklin D. Roosevelt, who is the President of a country still at restless peace, declared prophetically: 

The practice of executing scores of innocent hostages in reprisal for isolated attacks on Germans in countries temporarily under the Nazi heel revolts a world already inured to suffering and brutality.  Civilized people long ago adopted the basic principle that no man should be punished for the deed of another.  Unable to apprehend the persons involved in these attacks, the Nazis characteristically slaughter fifty or a hundred innocent persons.  Those who would "collaborate" with Hitler or try to appease him cannot ignore this ghastly warning. 

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The Nazis might have learned from the last war the impossibility of breaking men’s spirit by terrorism.  Instead they develop their "Lebensraum" and "new order" by depths of frightfulness which event they have never approached before.  These are the acts of desperate men who know in their hearts that they cannot win.  Frightfulness can never bring peace to Europe.  It only sows the seeds of hatred which will one day bring fearful retribution.  

GENERAL TAYLOR: Your Honor, this brings us to the point of the actual invasion of Greece and Yugoslavia, and Mr. Clark Denny will continue with the reading of the statement.  

MR. DENNY: May it please Your Honor.  

THE INVASION OF GREECE AND YUGOSLAVIA

We may pass over very briefly the historical background of Germany’s simultaneous and ruthless onslaughts against Greece and Yugoslavia in April, 1941.  The highlights are set forth in the judgment of the International Military Tribunal,1 and a fuller account may be found in the official transcript of the international trial.2

It appears from these accounts that, as early as August 1939, just before the attack against Poland, Hitler had discussed with Ribbentrop and Ciano how best the Axis partners could gobble up the neutral countries of Europe.  Hitler cynically suggested to Ciano: 

Generally speaking, the best thing to happen would be for the neutrals to be liquidated one after the other.  This process could be carried out more easily if, on every occasion, one partner of the Axis covered the other while it was dealing with the uncertain neutral.  Italy might well regard Yugoslavia as a neutral of this kind.  

In making the suggestion, Hitler was no doubt catering to Mussolini’s imperial ambitions in the Balkans, which had been reflected earlier that year in the Italian occupation of Albania.  For the next year, however, Germany was sufficiently occupied with the 

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campaigns in Poland, Norway, the Low Countries and France, and the next Axis moves in southeastern Europe did not occur until 28 October 1940, when Italy launched its contemptible and ill-fated attack against Greece.  It was, furthermore, Mussolini’s inability to beat down the heroic resistance of the Greeks that lead Hitler to march into the Balkans the following year.  

We may be sure that it was from no particular sympathy with Mussolini’s plight in Albania and Greece that Hitler decided to come to his aid.  On the contrary, there is every indication that Hitler and the German military leaders were pleased over the discomfiture of their Italian allies, whom they held in such contempt throughout the war.  But Hitler was disturbed in Greece from which the valuable oil fields in Rumania could be bombed.  And furthermore, as Rommel’s campaign in North Africa began to attract attention, Hitler’s thoughts turned increasingly towards the eastern Mediterranean and the possibility of establishing German superiority there.  Accordingly, in November 1940, Hitler issued Top Secret instructions to Brauchitsch, as Commander-in-Chief of the Army, directing him to: 

Make preparations for occupying the Greek mainland, north of the Aegean Sea, in case of need, entering through Bulgaria and thus making possible use of German Air Forces units against targets in the eastern Mediterranean, in particular against those English air bases which are threatening the Rumanian oil areas.  

All this time, however, the German High Command was chiefly preoccupied with preparations for the invasion of the Soviet Union, which they had planned for the following spring.  This formidable military task required all the forces the Germans could muster and accordingly Hitler and the generals wished to carry out any enterprise which might have to be undertaken in the Balkans with the utmost economy of means.  Therefore, there was at this time no intention whatsoever of invading Yugoslavia in addition to

1 Judgment of the International Military Tribunal, Vol. I, Trial of the Major War Criminals, pp. 210-213.

2 Vol.III, Trial of the Major War Criminals, pp. 307-324

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Greece; on the contrary, Hitler began an intensive diplomatic campaign to swing Ygoslavia [sic] to the side of the Axis and induce her to join the so-called "Tri-partite Pact", to which the principal adherents were Germany, Italy, and Japan.  

A. The plan of Attack.  

By December, the plans for the invasion of Greece, known under the code name "Marita", had begun to take shape: 

My plan therefore is (a) to form a slowly increasing task force in southern Rumania within the next month, (b) after setting in of favorable weather, probably in March, to send a task force for the occupation of the Aegean north coast y way of Bulgaria and if necessary to occupy the entire Greek Mainland.

To carry out the essential first step of persuading Bulgaria to permit the passage of German troops from Rumania to Greece, the defendant List was sent to Sofia, where he secured the necessary consent at a conference early in February, 1941.  At the same time, Bulgaria agreed to join the tri-partite Pact, and a time schedule was established, pursuant to which List, with his Twelfth Army, would commence the building of bridges across the Danube from Rumania into Bulgaria on the 28th of February, Bulgaria would adhere to the Pact on the first of March, and List’s forces would move across the bridges into Bulgaria on the second of March.  All of this happened according to schedule, and List’s army started acrpss [sic] Bulgaria toward the northern frontier of the Greek mainland.   Simultaneously, diplomatic pressure on Yugoslavia was increased, and on the 25th of March the Yugoslav Premier and the Foreign Minister signed the Tri-partite Pact at Vienna.  Had all gone as planned, Yugoslavia’s adherence to the Axis would have enabled List to attack from Bulgaria into Greece without fear that Yugoslavs might invade Bulgaria and cut him off.  

But for once, Hitler’s time table was upset.  The following day 

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the Yugoslavs repudiated their government’s adherence to the pact and the Premier was removed from office.  Yugoslavia "emerged on the morning of the 27th of March, ready to defend, if need be, her independence".1

The same day, Hitler and his generals met in council of war.  It was pointed out that the uncertain attitude of the new Yugoslav government not only represented a threat to List’s rear in the attack against Greece but would also constitute a potential menace behind the German forces which were being assembled for the attack against the Soviet Union.  Hitler announced his determination "to make all preparations in order to destroy Yugoslavia militarily and as a national unit."  No diplomatic inquiries were to be made, no assurances by the

-----------

1 Yugoslavian government were to be regarded, and the attack was to start at the first possible moment.  Political considerations played a large part in the plans.  The old feuds between the Serbs and the Croates [sic] were to be capitalized to the

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utmost.  Turkey was to be frightened out of her wits by the ruthlessness of the attack.  The cooperation of the neighboring Balkan states was to be secured by territorial promises.  Hitler said: 

Politically, it is especially important that the blow against Yugoslavia is carried out with unmerciful harshness and that the military destruction is done in a lightening like undertaking.  In this way, T urkey [sic] would become sufficiently frightened and the campaign against Greece later on would be influenced in a favorable way.  It can be assumed that the Croates [sic] will come to our side when we attack.  A corresponding political treatment (autonomy later on) will be assured to them.  The war against Yugoslavia should be very popular in Italy, Hungary, and Bulgaria, as territorial acquisitions are to be promised to these states; the Adriatic coast for Italy, the Banat for Hungary, and Macedonia for Bulgaria.  

The military plans for a simultaneous attack against Yugoslavia and Greece, to replace the plans for the Greek campaign alone, were drawn up during the last few days of March, 1941.  The plan for Yugoslavia was called "Operation 25", and was dove-tailed neatly into "Marita".  List’s Twelfth Army, in addition to pushing across the south Bulgarian frontier into Greece, was to send an armoured assault group across Bulgaria’s western border into southern Yugoslavia with the objective of capturing the key city of Skoplje, and then continuing across southern  Yugoslavia into Albania and joining forces there with the Italians.  Another of List’s armoured groups, under the well-known General (later Fieldmarshal) von Kleist, would push from Bulgaria into Yugoslavia in a northwesterly direction toward Belgrade.  To complete the concentric operation, strong German forces were to be assembled at the southern Austrian border, and strike southward into Croatia, and a smaller force was to advance southward from Rumania toward Belgrade.  The German Air Force, in addition to its normal support functions, was to destroy the city of Belgrade by attacks in waves at the very outset of hostilities.  

B. The Invasion.

The plans were well-laid, German strength was overwhelming, and everything went like clock-work.  At dawn on Sunday morning, April 6,

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Belgrade was mercilessly bombed, List attacked south into Greece and west into Yugoslavia, and the next day Scoplje was taken and Kleist started northwest toward Belgrade.  Soloniki fell on the ninth.  On the 10th, the German Second Army, which had been assembled in southern Austria under the command of the defendant von Weichs, started south through Croatia at great speed and captured Zagreb.  On the 11th, List effected a junction with the Italians in Albania.  On the 12th, Yugoslovia’s north front against von Weichs collapsed; the Germans had played cleverly on the ancient Serb-Croat enmity, and the Croates offered little resistance and began to clamor for independence.  By Easter Sunday the 13th, Kleist’s forces held all of Belgrade, and the Germans began a complacent division of the spoils between themselves and their satellite allies.  The Yugoslav government capitulated two days later, and by the 16th of April large scale operations had come to an end.  The campaign in Greece took longer, but the Greek forces in the north were forced to surrender by the 22nd of April, and by the 28th Athens had fallen.  In anticipation of the campaign against Russia, now only a few weeks in the future, the Germans began pulling out of Yugoslavia and Greece as many troops as could be spared and transport could move, leaving behind only enough for security purposes and for the invasion of Crete which, under the cover name "Merkur", was to start out on the 20th day of May.  

C. von Weichs and the 100:1 "Hostage" Ratio

As appears from the foregoing account, the three principal military figures of the German campaign in southeastern Europe were Von Kleist and the defendants List and von Weichs.  After the capitulation of Yugoslavia, Kleist departed almost immediately to head an armoured group in the attack on Russia.  List remained as Supreme Commander of the armed forces in the southeast, and his actions in this capacity will shortly be described.

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The defendant von Weichs and his Second Army were scheduled for ultimate employment on the Russian front, but did not take part in the initial attack.  Von Weichs remained in Croatia until the latter part of May, while List completed the conquest of Greece and Crete.  In the meantime , the puppet government of Croatia, headed by Pavelic, was being established, and von Weichs participated in the recruitment and organization of Croatian militia units, known as "ustashi", who were strongly anti-Serbian and whom the Germans were counting on to maintain security in Croatia.  

Thereafter, von Weichs and his Second Army headquarters departed, and von Weichs did not return to the Balkans until August 1943.  Short as was his stay in the southeast in 1941, he left an indelible imprint as the result of his methods of "pacification".  

Just after the German attack on the Soviet Union, the Russian radio broadcast a report that, as a result of the alleged murder of two German Soldiers in Belgrade, 100 Serbs had been shot to death.  The defendant List, upon making inquiry, learned that no such episode had in facto occurred in Belgrade at that time, but that the Russian report was undoubtedly based on an episode which had occurred in April, 1941, in the course of Von Weichs’ southward march.  As a result of the incident, von Weichs had issued on the 28th of April, 1941, the following order, distributed throughout the Second Army down to battalion level: 

The increase in malicious attacks on German Soldiers necessitates most stringent counter-measures.  Only immediate and ruthless measures guarantee the maintenance of peace and order and prevent the forming bands.  

1) A Division sent out a detachment to carry out the disarmament of a Serbian village.  The leader rode on ahead with another officer and a Wachtmeister, whereupon he was overtaken by a Komitadschi band (in Serbian uniform) and was shot to death.  His companions were seriously wounded.  This occurrence gives us cause to make the following statements:

a) After conclusion of the Armistice there is no Serbian solder in the whole area who is authorized to carry arms.  

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b) Whoever is found in Serbian uniform with weapon in hand transgresses the bounds of International Law and is to be shot to death immediately. 

c) If in any area an armed band appears, then even those men capable of bearing arms who are seized because they were in proximity of the band are to be shot to death, if it cannot immediately be ascertained with certainty that they were not connected with the band.  

d) The bodies of all persons shot to death are to be hanged and left hanging. 

e) Arresting hostages after a surprise attack is wrong and is by no means to be taken into consideration.  On the contrary, action is to be taken only according to letters a) to d).

2) As preventative protection of the troop against such malicious surprise attacks, I give the following orders: 

These orders are given in part.

* * * * * * * * * * *

d) In the endangered villages, placards are to be posted wherein the population is notified of the serious consequences to be expected from surprise attacks (the posters will be sent separately).

e) In all localities of the endangered area which are occupied by troops, hostages are to be taken immediately (from all classes of the population) who are to be shot to death and hanged after a surprise attack.  This measure is to be made public in the villages immediately

3) In cases of surprise attacks on the troops, the Division Commanders should examine in detail whether the troop leader in question is to be blamed.  IN the reports of the Division, regarding encountered surprise attacks, there should always and immediately be a statement to the effect that the attacks were atoned by ruthless measures and account be given as to the manner employed.  

The placards which were posted in Serbian villages as a result of this order read as follows: 

By a mean and malicious surprise attack, German soldiers have lost their lives.  German patience is at an end.  As atonement, 100 Serbs of all classes of the population have been shot to death.  In the future,100 Serbs are to be shot without consideration for every German soldier who comes to harm as a result of a surprise attack conducted by Serbs.  

Irrelevant as any such circumstance might be, there is nothing to indicate that von Weichs received any directive or suggestion from above calling for the issuance of any such order.  It 

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appears that he conceived the order in his own mind and issued it on his own initiative.  It epitomizes the German terror which raged in the alkans for the next three and one half years.  It embodies the two fundamental policies which List and his successors applied: That the enemy should be denied even the bare right of continued resistance and his troops no longer be recignozed [sic] as belligerents entitled to the protection of the laws of war, and that attacks against German soldiers should be suppressed by executing civilian "hostages" at the astonishing ratio of 100:1.  The only important respect in which subsequent practice departed from von Weichs’ precedent was that his injuction that "hostages" should not be arrested after an attack, but should always be taken in advance and executed after the attack, was found to present serious inconveniences.  With a required ratio of 100:1, it was impossible to keep enough hostages on hand to meet all contingencies, and in subsequent months the Germans repeatedly transgressed this rather formal and academic restriction which von Weichs had laid down.

THE OCCUPATION: LIST AND KUNTZE

(April 1941 – August 1942)

As von Weichs and Kleist withdrew from the Balkans and turned their attention to Russia, the German High Command drew up blueprints of the military occupational administration for southeastern Europe, which List was to head.  To understand the organization which was created, we must first look at map "A" in the prosecution’s explanatory pamphlet, which shows the partition of Yugoslavia effected by Germany and her satellites.

A. The Partition of Yugoslavia and Greece. 

In northern Croatia, it will be observed medium-sized portions were annexed by German, Italy, and Hungary.  The remainder of 

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Croatia, except for those parts of the Adriatic coast which Italy annexed outright, was established as an "autonomous" state, headed by Dr. Anton Pavelic, who called himself the Poglavnik" of Croatia.  Most of the eastern part of Croatia was occupied by Italian forces, and the Germans were not particularly active there until the collapse of Italy in 1943.

In the southern part of Yugoslavia Italy also took Montenegro under her control, and Italy absorbed still more by the device of "annexation" to Albania.  Serbian Macedonia was annexed to Bulgaria. 

The truncated Serbia which remained was put under German military occupational administration, although the southern part of this rump remainder was occupied by Bulgarian troops.  It is this portion of Serbia which passed under German administration with which we will be chiefly concerned during the period up to August 1942.

The occupational fate of Greece is shown on map "C".  It will be observed that the greater part of the Greek mainland and the Peloponnesus came under the sway of the Italians.  Bulgaria took the long arm of eastern Greece along the northern shore of the Aegean Sea.  The Germans Contented themselves with small, strategically situated portions.  On the mainland, 

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they occupied the area around Saloniki and a narrow strip along the Turkish border.  They maintained troops in Athens, although nominally control of Athens was shared with the Italians.  They also occupied Crete and various smaller islands in the Aegean Sea.

B. Structure of the German Occupational Administration

Four of the defendants in the box, as well as the deceased Boehme, occupied key positions in the German occupation of Yugoslavia and Greece during this period.  By far the most important, of course, was the defendant List, who, on 9 June 1941, was appointed by Hitler as Armed Forces Commander of all German forces in southeastern Europe, with the title Wehrmachtbefehlshaber Suedost (Armed forces Commander Southeast).  In this capacity, List was directly responsible to Hitler and the OKQ.  List also retained the title of Commander-in-Chief of the 12th Army.  The defendant Foertsch was his Chief of Staff.  List maintained his headquarters at Saloniki.  In October 1941 List fell ill, and thereafter, up to August 1942, the defendant Kuntze was the acting Commander-in-Chief of the 12th Army. 

Under List (and subsequently Kuntze) were three Military Commanders – one in Serbia and two in Greece.  The deceased Boehme, who commanded the 18th Mountain Corps of the 12th Army, was Commanding General in Serbia from September to December, 1941. He went to Finland at the end of the year and was replaced by General Paul Bader, who is also believed to be now dead.  

In Greece a Military Commander for the Saloniki area and the northern Aegean islands was appointed by OKH, and a Military Commander for southern Greece, with authority at Athens and in Crete and the southern Aegean islands, was appointed by the German Air Force.  The defendant Felmy was Goering’s selection for this position.

Accordingly, during the period up to August 1942 we will be primarily concerned with the activities of the defendants List, Kuntze, and Foertsch, as well as such acts of Boehme and Bader as are relevant to this proceed-

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ing.  We will not at this time discuss the acts of the defendant Felmy in southern Greece, inasmuch as the bulk of the evidence pertaining to Greece relates to the period after August 1943, when Italy capitulated and the Germans took over the entire occupation of Greece.  It will, therefore, be more convenient to deal with all the evidence pertaining to Greece at a later stage. 

THE PRESIDENT: Mr. Denney, please.  You are starting into a different portion of your statement.  This will be a convenient place to interrupt.  The tribunal will be in recess for ten minutes.

(A recess was taken.)

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THE PRESIDENT: You may proceed.

MR. DENNEY: May it please Your Honors.  We now take up the discussion of the activities of the defendants List, Foertsch, and the deceased Boehme during the period April to October 1941.

The defendant List was an able protagonist in fields ideological as well as military.  This is indicated in a letter of 23 April 1941 written by Alfred Rosenberg, who was later appointed Reich Minister for Occupied Eastern Territories, to Martin Bormann.  Part of this letter stated: 

Art objects generally do no come into the question as far as the Balkans are concerned, only there are Free Masonry archives and Jewish libraries and other relevant research bodies.  In my opinion, only the same attitude as that prevailing in occupied French territory can be taken and what I requested was really only an expansion of an already existing regulation.  For with General Field Marshal List, and likewise with the General Quartermaster of the Army, the work has already been begun and my men are already at work with these circles in Belgrade.  And on command of General Field Marshal List, as well as of his Deputy General, these men will also be employed in closest relationship with the Security Service (SD) in Salonika.  As you know, Salonika is one of the largest Jewish centers.  

The capitulation was barely finished; yet List, the soldier, was making himself a party to the "cultural" work of the Third Reich.  

Early in September 1941, List determined that matters in Serbia required a more forceful executive authority in that territory.  With this in mind, List teletyped to OKQ and OKH requesting that Boehme, at that time Commanding General of the 18th Mountain Corps, 12th Army, that he be assigned with his staff as Plenipotentiary Commanding General in Serbia with supreme authority in that sector, directly responsible to List.  List regarded Boehme as being "especially suited" for the position because he had "an excellent knowledge of conditions in the Balkans."  This request was answered by a Hitler order of 16 September 1941 in which List was charged with the task of suppressing the insurgent movement in the southeast area, and Boehme was designated as Plenipotentiary Commanding General in Serbia with executive power, directly subordinate to List.  All military and civilian offices in Serbia were instructed to comply with Boehme’s orders.

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Upon receipt of the Hitler order, List, on 19 September 1941, advised the Military Commander in Serbia, the LXV Corps Command, and the German General in Zagrab, who was the liaison between the Croatian government and the Armed Forces Commander Southeast, that Boehme had received entire executive power in Serbia and  that "all command authorities and forces of the Army existing there or to be transferred there are subordinated to him." He stated further, "Instructions for the carrying out of operations for the necessary protective measures will be given by me only to General Boehme, who is responsible for their being carried out." 

One of the first acts of Boehme in his new post, for which List had stated he was "especially suited", was the publishing of an order, which he directed that the recipients destroy after dissemination, and which read as follows:

In March of this year Serbia shamefully broke her friendship treaty with Germany, in order to strike the German units marching against Greece in the back.

German revenge stormed across the country.

We must turn to new, greater goals with all our forces at hand. For Serbia, this was the sign for a new uprising to which hundreds of German soldiers have already fallen in sacrifice. If we do not proceed here with all means and the greatest ruthlessness, our losses will climb to immeasurable heights.

Your mission lies in carrying out reconnaissance of the country in which German blood flowed in 1914 through the treachery of the Serbs, men and women.

You are the avengers of these dead.  An intimidating example must be created for the whole of Serbia which must hit the whole population most savagely.

Everyone who wishes to live charitably sins against the lives of his comrades.  He will be called to accounr [sic] without regard for his person and placed before a court material.

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So it was the List’s Corps Commander, now Plenipotentiary Commanding General in Serbia, set the same keynote as had von Weichs for the program of subjugation through terror which was to pervade in the Balkans for the ensuing years of the war.

Now that the chain of command has been clearly established, let us return momentarily to List’s request of 14 September directed to OKW. His communication starts with the words "Threatening development of the overall situation in Serbia demands energetic measures." Later on, he states "the present command regulations are based on peaceful conditions and are unbearable under the present turbulent combat conditions".  This request having been received at OKW, another order was issued, in addition to the Hitler order appointing Boehme mentioned above.  After reciting that it had been established that the opposition to the occupying power was the result of a centrally directed mass movement and that each incident of insurgence against the German Wehrmacht, regardless of individual circumstances, must be assumed to be of communist origin, the order directed:

In order to stop these intrigues at their inception, severest measures are to be applied immediately at their first appearance, in order to demonstrate the authority of the occupying power and in order to prevent further progress.  One must keep in mind that a human life practically counts for naught in the affected countries and a deterring effect can only be achieved by unusual severity.  In such a case, the death penalty for 50 to 100 communists must in general be deemed appropriate as retaliation for the life of a German soldier.  The manner of execution must increase the deterrent effect.  The   reverse procedure, to proceed at first with relatively easy punishment and to be satisfied with the threat of measures of increased severity as a deterrent, does not correspond with these principles and is not to be applied.

This was the answer of the Army High Command to List’s plea for help in "turbulent combat conditions".  The order was passed on by list to his subordinate units.

Not satisfied with the initial directive with reference to the killing of innocent people in the Southeast, an additional OKW order, signed by Keitel, came down on 28 September, 1941.

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In this order it was directed that Military Commanders have hostages available at all times in order that they might be executed when German soldiers were attacked.  The complete ruthlessness of the second Keitel order may be seen from the following provisions:

Because of attacks on members of the Wehrmacht which have taken place lately in the occupied territories, it is pointed out that it is opportune for the Military Commanders to have always at their disposal a number of hostages of different political persuasions, i.e.,

1) Nationalists,

2) Democratic Middle Class,

3) Communists

It is of importance that among these are leading personalities or members of their families.    Their names are to be published.  In case of an attack, hostages of the group corresponding to that to which the culprit belongs are to be shot.

Nowhere in this order did Keitel attempt to enlighten his commanders as to the means to be employed in identifying the "culprit".  It was a matter of little concern to him, and the evidence will show that it concerned his field commanders even less.  The manner in which this order was complied with will be detailed at greater length in the evidence which is presented to the Tribunal.

The 100:1 ratio having been proclaimed, Boehme, on 4 October 1941, ordered the execution of 2100 persons, to be taken from the concentration camps at Sabac and Belgrade.   Those to be executed were primarily Jews and communists.  These killings were reprisals for the deaths of 21 German soldiers.  On 9 October, 1941, the chief of the Security Police in Belgrade reported that 2100 Jews and gypsies were being executed by the Wehrmacht in reprisal for 21 German soldiers shot to death.  The Security Police in this operation were to make available to the Wehrmacht the required number of victims.  The report continues that 805 Jews and gypsies were taken from the camp in Sabac and the balance, 1295, were taken from the Jewish transit camp in Belgrade.

On 9 October 1941 , Boehme informed List of "an execution by shooting of about 2000 communists and Jews in reprisal for 22 murdered men of the 8th Battalion of the 51st Army Signal Communication Regiment".

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A partial report of this action was made to List and Boehme by a Major who commanded the 2nd Battalion of the 51st Army Signal Regiment.  The Major’s report enclosed a report of the Lieutenant who commanded the company which carried out a portion of this action.   The Lieutenant’s report is dated 13 October, 1941.  The report is sordid in its detail; the shooting of 2200 Jews in the camp at Belgrade had been ordered on 8 October, 1941.  The action took place on 9 October in a forest [sic] seven miles from Kobin, and on 11 October near the Belgrade shooting range on the road to Nisch.  No detail was overlooked, films and pictures were to be taken by an Army Propaganda Company.  By issuing spades and other tools to the inmates who were to be executed, the atmosphere of a working party was simulated.  Only three guards were placed on each truck to further allay the suspicions of the wretched victims.  The prisoners were happy to be leaving the camp, if only for a day of work in the fields.  The solders were able to execute only 180 on 9 October, and 269 on 11 October.  The executions were accomplished by rifle fire at a distance of 12 meters.  Five shots were ordered for the shooting of each prisoner.  Articles of value were removed under supervision.  They were later sent to the Nazi People’s Welfare or the Security Police in Belgrade.  The Lieutenant reported that the attitude of the prisoners at the shooting was calm and that following the killings the troops "returned to their quarters satisfied."

It was while List was Armed Forces Commander Southeast that concentration camps were introduced in that area.  The Military Commander in Serbia, in a letter of 22 June, 1941, spoke of a "concentration camp which I had been ordered to erect."  He spoke of the future inmates as  "communists and other criminal types".

List himself recommended concentration camps in an order of 5 September, 1941.   He stated that the relatives of those people resisting the Army should be transported to concentration camps.

Often has it been urged that the German Army had no knowledge of concentration camps, or at best that they had nothing to do with them.

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It has been the repeated refrain of the German military men that such matters were beyond the scope and beneath the concern of a soldier, and that such affairs handled by Himmler and his subordinates.  In the Southeast, the Army not only had knowledge of the camps; they were in charge of some of them.   An order of 11 September, 1941 will   show that the Concentration Camp Serbia, in Belgrade, was made subordinate to the Military Commander of Serbia on that date.

Again, in an order of 18 September, 1941, issued by Bader of the LXV Corps, it was stated, in connection with mopping-up operations, that "the entire male population above 14 years of age is to be arrested, to be sent to a concentration camp which the Division will install, and to be detained there." 

Boehme in an order of 23 September, 1941, to the 342nd Division, directed that unit to "…evacuate Sabac by surprise attack of the entire male population, ages 14-70, and take it to a concentration camp..."

Boehme further concerned himself with the transfer of the Jarak concentration camp from the 342nd Division to the 64th Police Reserve Battalion in an order of 27 September, 1941, which specified in addition that inmates would receive half rations — only 200 grams of bread daily and 200 grams of meat weekly.

Early in October, Boehme ordered that a concentration camp be located in the Zasaviza area, capable of holding 30,000 inmates  This camp was to be [smudge] "guarded by restricted forces and closed from the outer world".  In the same order, he directed that inmates from another concentration camp be brought to work on this new construction project.

The evidence will show how the Army used the concentration camps as collection points for innocent people who were to be channeled into German industry or to be used for such other purposes as might be directed.

Two final references to List concern his later acts prior to his post being handed over to the defendant Kuntze.  On 4 October, 1941, he issued an order in which it was directed that men in insurgent territory who were not encountered in battle were to be examined and "if they are only 

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suspected of having taken part in combat, of having offered bandits support of any sort, or of having acted against the Wehrmacht in any way, to be held in s [sic] special collecting camp.   They are to serve as hostages in the event that bandits appear, or anything against the Wehrmacht is undertaken in the territory mopped up, or in their home localities and in such cases they are to be shot."  This was in keeping with the spirit of an earlier order which he had issued on 5 September, 1941, which provided in part for:

Immediate ruthless measures against the insurgents, their assistants, and their relatives (hangings, burning down of localities participating, increased arresting of hostages,  deportation of family members into concentration camps) .

We are now turning to the period from October 1941 until August 1942 where we areprimarily [sic] concerned with the defendants Kuntze, Foertsch, the deceased Boehme and the believed to be deceased Bader.

The defendant Kuntze succeeded to the command of the 12th Army late in October, 1941.  The measures which had been started under his predesessor, [sic] List, were continued with increased severity. Kuntze received periodic reports of the activities of the troops under his command. These reports recited the seizing and killing of "hostages" and the wanton destruction of villages.

On 2 November, 1941, a situation report was signed, on behalf of Kuntze, by the defendant Foertsch.  This report gives as one of the reasons for the unrest in the southeast, refers to:

The fact that refugees expelled from the seperated territories (from Croatia – 110,000; from Hungary – 37,000;  from Bulgaria – 20,000) who were transported across the frontier without means and without sufficient care.

The report then set forth the methods to be followed by Kuntze’s subordinates in combating opposition.   It was stated that he had charged Boehme with the suppression of Serbia and Croatia.   He ordered that "all prisoners taken during combat or mopping-up operations will be hanged or shot to death" and that "for the time being, arrests are being made only

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for purposes of interrogation or to supplement reconnaissance." In addition, he directed that all male civilians be temporarily collected in camps.

Late in November, or early in December, 1941, Kuntze went to Belgrade. Some notes were made on this trip. One of the items which concerned Kuntze was the question of resettlement. This memorandum provided:

The question of the resettlement of women and children of the insurgents, as well as other unreliable elements, is still being examined. The retention of these people in Serbia, south of the Danube, does not appear to be practical. There are still difficulties with respect to shelter, rations, and guard which oppose the transfer into the Banta.

All Jews and gypsies are to be transferred into a concentration camp at Semlin (at present there are about 16,000 people there). They were proven to be the bearers of the communication service of the insurgents.

On 20 December, 1941, Kuntze’s subordinate, the Plenipotentiary Commanding General in Serbia, Bader, who had succeded [sic] Boehme earlier in the month, issued an order to his troops. After reciting that there had been proper compliance with the prior orders concerning reprisals, he stated:

The reprisal measures will be continued further. In order to exclude any existing doubts concerning them, I am referring to the fact that these groups of prisoners are to be differentiated: Reprisal prisoners are persons who, for reason of their attitude, are destined for reprisals for German human lives, for example, communists not encountered with weapons, gypsies, Jews, criminals, and the like.

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Hostages are persons who play a role in public life and on the basis of their personalities exercise a certain influence on the population in their realm of activity. They comprise the most varied strata of the population. They guarantee with their lives the public peace, order and security in their part of the country.

Prisoners of the unit are persons who are taken in the course of an operation, as suspicious. They require a further examination by the administrative sub-area headquarters authorities. They will either be released or transferred to the reprisal prisons.

It is clear that there was to be no change, save for the worse, under Kuntze as Armed Forces Commander Southeast, in the matter of "hostage" takings and retaliatory killings.

The policy as set forth was implemented by further orders of the German division commanders. Hoffman, the Commanding General of the 342nd Division, on 6  January, 1942, issued an order to his troops which provided "Communists, in any event, will be shot immediately after a short interrogation; only in special cases will they be brought back to the Division."

A particularly harsh policy was established by Kuntze made effective on 6 February,  1942. He called for detailed reports on counter measures taken by subordinate units. He further directed that persons who loitered around the battle field should be considered as having taken part in the battle and therefore should be shot.

With the advent of spring, Kuntze anticipated increased activity from the people of the occupied area. With this in mind, he issued an order on 19 March 1942. He emphasized the degree of importance which he attached to the regimental commanders and stated that Himmler’s secu-

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rity units and the Serbian police should cooperate closely with the German troops. 

He directed that "captured insurgents are to be hanged or shot as a matter of principle. If they are used for information purposes, this only postpones their execution. In an appendix to the same order, he advised "It is better to liquidate 50 suspects than lose one German soldier." He dictated that in areas which had been mined, the Serbian population, among others, should be used to clear the terrain. And appeared there again the 100:1 ratio in the event death came to any German.

Later in March, on the 23rd, Kuntze sent a teletype to Bader, in which he agreed that inserrectionists not captured in battle should be deported for work in Norway. He failed to explain how the identity of those to be deported could be established.

Kuntze had more to say about forced labor on another occasion. Bader, in an order of 25 March, 1942, mentioned an earlier order of Kuntze, dated 18 March, which directed:

Persons who are arrested because of being suspected of supporting or collaborating with the insurgents are to be handed over to concentration camps; where they are to be interrogated (by the SS) who will make further disposition, for example, handing over as forced laborers in the German interest sphere.

From this same order, it is evident that three concentration camps were presently available in this area at Sabac, Belgrade-Delinjo, and Nisch, with a fourth to be opened shortly at Semlin.

Kuntze advised OKW from time to time of the success of the measures he was directing in the Southeast. On 7 April 1942 he informed hthem [sic] that since 1 September 1941, 11,522 of the enemy had been shot in battle and 21,809 persons had been killed in relaliation [sic] measures. On 23 June 1942 Kuntze advised OKW that a total of 37,477 had been shot in battle or in a way of reprisals, as of that date, in Serbia and Croatia.

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He mentioned that the mayor of Crete had been slain and, in retaliation persons sharing in the guilt and a number of hostages were shot.

Kuntze left his post as Armed Forces Commander Southeast on 8 August 1942, but before leaving he knew that there had been more than 45,000 people killed by the Germans in Serbia and Croatia during the period September, 1941, through July, 1942. He knew that people were being deported to labor in the German war economy, both in the Reich and in Norway. He knew that he had done his work well and faithfully in the service of Hitler.

Mr. Fenstermacher will take up the opening statement at this time, Your Honors.

MR. FENSTERMACHER: May it please the Tribunal, we take up now the occupational period, August 1942 until August 1943.

By the 8th of August, 1942, when Generaloberst Alexander Loehr replaced Kuntze as Commander-in-Chief of the 12th Army and Armed Forces Commander Southeast, the German reprisal machinery was completely set up and functioning. It remained only to keep the existing machinery running and, if possible, to increase the efficiency with which the retaliation measures were carried out.

The defendant Foertsch, who had served as Chief of Staff under both List and Kuntze, remained in the same capacity throughout the twelve months period of Loehr’s supreme command in the southeast. General Bader, the Commanding General in Serbia under Kuntze, also stayed on. A few weeks before Loehr arrived in the southeast, the defendant Geitner arrived in Serbia as Chief of Staff to Bader.

To pacify the civilian inhabitants, Bader and Geitner divided Serbia into various field headquarters areas which corresponded in the main to the larger cities and important strategical points throughout the country. The field headquarters areas were in turn sub-divided into smaller territorial units known as district commands. This was the organizational machinery which General Bader utilized for the security of

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Serbia.

When a telephone line was cut or railroad tracks torn up or a mine blown shut or shipping on the Danube mined—whether by partisan units in the course of legitimately planned actions, or by unknown persons—the reprisal machinery swung into action. The discrit [sic] command notified field headquarters of the incident and field headquarters in turn notified Geitner, Bader’s Chief of Staff in Belgrade, suggesting that certain stated reprisal measures be taken in retaliation. Geitner and Bader would either approve the proposals of field headquarters or issue new orders to cover the case. In either event, the district command was notified, orders were issued and carried out, and reports were sent back up through the established channels. The reprisal orders were almost invariably the same. To insure the consistent execution of the German program and to prevent delay, as well as to avoid the confusion that might ensue from exercise of individual decision by the Ger,-man [sic] mind, a retaliation code was established for the guidance of all concerned. An arithmetical table was so easy to follow—even t he [sic] slowest and dullest Battalion or  Company Commander could comprehend its ready meaning. What did it matter that the ratio of Serbs to Germans seemed high or that innocent people would necessarily suffer for the deeds of persons whom the Germans were unable, or did not even try, to apprehend? Weren’t the Germans a superior race; and wasn’t it better that 99 innocent men—either hostages or son called reprisal prisoners—should die than that one guilty person go free?

With the precedents that Weichs, List, Boehme, Kuntze and Foertsch had established before them, Bader and Geitner on 28 February, 1943, devised a more detailed table of retaliation quotas to take care of an increased number of factual possibilities which new conditions had brought to the fore:

For one German, or one Bulgarian Occupational Corps member, killed—50 hostages are to be executed.

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For one German, or one Bulgarian Occupational Corps member, wounded—25 hostages are to be executed.

For the killing of a person in the service of the occupying power, regardless of his nationality, or a member of the Serbian Government, High Serbian Official (district supervisor or mayor), official of the Serbian State Guard, or member of the Serbian Volunteer Corps—10 hostages are to be executed.

For the wounding of any person in the previous categories—5 hostages are to be executed.

For an attack against important war installations, up to 100 hostages are to be shot to death, according to the seriousness of the case.

That these retaliation quotas were no idle German boast or mere paper threat is made quite clear by the literally dozens and dozens of both orders and reports that poured in to, and went out from, Geitner’s own hands:

15 December 1942— "5 D.M. followers shot in retaliation for the German sergeant shot to death near Zlotovo." 

25 January 1943— "Since the Organization Todt drive Braun had not returned as of 1 January 1943, a total of 50 followers of Draja Mihailovic and communists were shot to death,"

10 February 1943, near Gr. Milanovac— "25 Communists arrested, 10

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shot to death in reprisal for murder of mayor."

On 14 May 1943 the War Diary of the 104th Jaeger Division contained this entry:

"The Division applies to the Commanding General and Commander in Serbia for the shooting to death of 125 communist hostages and the evacuation of the villages of Kamendo and Dubona in reprisal for the attack on the railroad patrol Drazanj."

7 August 1943— "As retaliation for the surprise attacks in the Runjkovao-Leskovac District, on 16 and 28 July 1943, in which two members of the German customs border guard were killed and two were wounded, 150 communist reprisal prisoners were shot."

15 August 1943— "15 Communist reprisal prisoners shot in retaliation for murder of a mayor and the burning of threshing machines."

16 August 1943— "In retaliation for the killing of the leader of a mixed harvesting crew on 7 August 1943, 50 communist reprisal prisoners were shot".

On occasion they even returned to the earlier and higher quota of 100:1 for each German soldier killed.  A proclamation by Bader of 19 February 1943 stated:

In the forenoon o f 15 February 1943 a passenger car of the German Wehrmacht was attacked by partisans on the road Petrovan-Pozarevac near Topanica. The four passengers, two officers, one non-commissioned officer and one enlisted man were murdered and robbed.  The vehicle was set on fire.

As a reprisal measure 400 communists have been shot to death today in Belgrade.h The village of Toponica was partly burned down.  Several hundred persons arrested, who were seized in the district area Pozarevac will not return to their villages but will be given worthwhile employment elsewhere.

The perpetrators of the attacks for which reprisal measures were instituted were frequently unknown to the Germans.  Sometimes, however, the attacker was caught in the act or  his identity became known.  But even knowledge or apprehension of the guilty offender did not rule out or prevent the application of the retaliation table—the hostages had to be shot anyway in order to set an example.  The following entry for 24 December, 1942, in the War Diary of the 704th Infantry Division , a unit subordinate to Bader, makes this last fact very clear:

Lieutenant Koenig, Executive Officer, II Battalion, 724th

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Grenadier Regiment and 2nd Lieutenant, Dr. Engelhardt, Battalion physician of the II Battalion, 724th Grenadier Regiment, were fired on in Mladenovac at 1413 hours by a 20 year old woman who was assumed to be a communist. They were severely wounded (shot through lung and stomach) and immediately transferred to the military hospital in Belgrade. A former Chetnik leader was also shot to death by the women while trying to arrest her.  Later she shot herself.  The 724th Grenadier Regiment ordered the encirclement and search of Mladenovac. 72 men and 52 women were arrested.   A part of the population fled immediately after the attack on the officers.  Local police and Serbian State guards participated in the military measures without causing trouble.  3 pistols were found.

The Division applies for authorization to shoot in reprisal 50 hostages and/or all people detained as retaliation prisoners.

The reply of Bader and Geitner to the division’s incredible application is apparent from the entry in the division’s War Diary on the following day:

49 men and one woman shot to death in Mladenovac for the attack on two officers of the II Battalion, 724th Grenadier Regiment.  2nd Lieutenant Dr. Engelhardt died in the military hospital in Belgrade.  The Division applies for authorization to shoot an additional 25 hostages and/or all people detained as retaliation prisoners from the district of Mladenovac.  The execution will be carried out by the SD in Belgrade.

At least 75 innocent persons, perhaps more if the division’s request to shoot all retaliation prisoners held in the Mladenovac district was honored, were killed in spite of the fact that the guilty party was known. This was German justice in Serbia on Christmas Day, 1942. Can any doubt remain that German policy in the Southeast, as in Poland and the East, was designed and calculated to decimate the native populations for generations and generations?

But if the saboteur or attacker was really unknown—that is, if even the easily convinced Germans were too baffled to hazard a guess as to the "culprit’s" political affiliation--then an equal number of both Draja Mihailevic followers (D.M.’s as they were called) and Partisans would be shot.  The German reports are full of examples of such arbitrary and indiscriminate executions.  On 27 June 1943, Bader ordered:

15 communist and 15 D.M. hostages are to be shot to death in reprisal for the attack and destruction of mines near Aleksinac on 8 June 1943.

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Another order of the Commanding General and Commander in Serbia, this time of 13 August 1943, stated:

In retaliation for the murder of two and the wounding of two German soldiers by insurgents on the highway at Pozarevac, 9 August 1943, 150 reprisal prisoners are to be shot.

Since the political origin of the perpetrators cannot be definitely established, 75 D.M. and 75 communist reprisal prisoners are to be executed.

To cope with the gigantic problem of hostage supply posed by this wholesale reprisal program, the district commands turned for assistance to their well-trained and widely experienced co-workers in mass crime, the SD. With the help of native collaborators the SD had prepared lists of "suspects" —relatives of men who were absent from a village or immigrants without valid reason from another village, "persons of a hostile attitude",  and the like—the definition was uncertain and ambiguous and no one quite knew how his name got on or remained off the lists.  One thing, however, was sure—there was no investigation and no trial and no appeal from the German judgment of inclusion. From time to time, as the available supply of hostages dwindled in the face of an astounding number of mass executions, troops of the districts commands and SD detachments would stage "special actions" to round up additional victims., Large hostage camps were constructed at various strategic places—their location were changed from time to time to make for more efficient administration and quicker executions—and when the orders came, the hostages would be shot, o [sic]  either at the hostage camp itself or on the site of the attack.  In general, retaliation victims were supposed to be residents of the village in or near which the attack allegedly occurred. But if a sufficient supply of hostages or retaliation prisoners was not on hand in a particular district camp, then the balance of persons necessary to satisfy the hostage quotas would be shot from the central camp in Belgrade.  With a macabre fascination for mathematics and a consuming passion for everything smacking of rote,   the Germans enforced the code firmly,  precisely, exactly— no matter where the hostages were from.

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Two examples will suffice.  On 28 May 1943, Bader issued the following order to Field Area Headquarters 610:

A total of 100 D.M. hostages is to be shot to death in retaliation for the murder of three members of the Russian Protective Corps near Konarevo, wounding a member of the Russian Protective Corps near Ivanjica on 11 May and for the murder of two members of the Serbian Volunteer Coprs near Vezania.

Since D.M. Hostages are not available at the present time in the camp of Field Area Headquarters 610, they are to be made available from other camps by the Commander of the Security Police.

On the same day, 28 May 1943, Bador signed and Geitner distributed a similar order to Field Area Headquarters 809:

150 communist hostages are to be shot to death in retaliation for the murder of three members of the German customs border guard near Vucje on 15 May 1943.

Since there are no communist hostages available at present in the camp of Field Area Headquarters Nisch, they are to be made available from other camps by the Commander of the Security Police. 

Nor was there ever any jurisdictional conflict between the district commands and the SD over the sheer physical task of executing these thousands of retaliation victims.   Generally losses of the military were avenged by the military themselves.   Police units usually furnished the execution squads in reprisal actions for their own losses, as well as for attacks on other soldiers and installations under German protection.  Both groups were ready and willing to participate in the mass massacres.  If a particular hostage camp was administered by the SD rather than by a temporarily under-manned district command, then its personnel would supply the trigger men.  There was no set rule; both organizations cooperated to do the job at hand.  The orders for the actual executions, however, invariably came down through the military Bader-Geitner chain of command.   The SD did not exercise a concurrent jurisdiction.  In those matters it was subordinate to, and took orders, from the Wehrmacht commander in whose fiels [sic] area headquarters or district area it was stationed and operating.   An entry in the War Diary of the 104th Jaeger Division for 4 April 1943 states;

By order of the Commanding General and Commander in Serbia, in

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reprisal for the murder of the Organization Todt man shot to death by communists  8 km. south of Pozarevac,  78 hostages were shot to death in Pozarevac by the SD.

While Geitner was having conferences with SD leaders and the subordinate troop commanders on such diverse subjects as conditions at the Semlin concentration camp where "up to 100 persons were dying daily", on "the execution of invalids, sick or pregnant women, or people over 60, male or female", if they took part in combat, "with or without weapons", against the Germans, on the deportation of the male population of whole areas for labor in Germany, and kindred subjects, Foertsch at Supreme Headquarters also kept occupied with current business.   To him and to Loehr came the daily, weekly and reports from their vast Southeastern empire—from Bader and Geitner in Serbia, from General Lueters, the German Commander in Croatia, from General Brauer on the island of Crete, and from various other commanders on the Peloponnese peninsula.

Croatia by this time was in an uprear. [sic]  Tito’s Partisans were growing stronger by the minute.  By the end of 1942 they could boast of having called a Congress, of a government of their own which exercised control in an area 250 km by 100 km., of a regular civil and military administration within that area, and of an armed force numbering almost 100,000 men skillfully organized into brigades, battalions and companies. Lueters was completely unable to cope with the problem.  He gave the usual orders for the execution of hostages, the burning of villages, and the arrest of "suspects" and relatives of "bandits", but to no avail.   As the practical-minded Lueters himself pointed out, the existing techniques and methods were wrong since "in any case, cleaning-up or retaliatory action against the civilian population the innocent are seized, the guilty having earlier taken to the woods".  Nor should captured partisans be shot as a matter of course, pleaded Lueters.  Perhaps if they were given fair treatment many of them would desert—at least that new approach ought to be tried."

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But Lueters’ complaints fell on deaf ears at headquarters.  Orders continued to come through Foertsch from Loehr that they would assume responsibility for what their subordinate commanders did, that no one would be held responsible for having employed harsh methods, that "individual soldiers should not be prosecuted for being too severe with the native inhabitants", and that commanders who failed to take retaliatory measures for reasons of negligence or softness would be held responsible.  In spite of the fact that the German intelligence service reported the presence of partisan troop units, with the names of their leaders, the various insignia of rank worn, the size of their battalions and companies, their weapons, and other details, captured partisans continued to be executed after a brief interrogation.  The reports are full of references to "temporary prisoners", as partisans captured-but-not-yet-executed were called:

3 August 1942— "In mopping-up, 39 temporarily arrested persons shot."

5 August 1942— "In west Bosnia another temporarily arrested 8 persons shot."

17 August 1942— "In Syrmia, 90 persons shot in reprisal, 65 temporarily arrested."

29 August 1942— "In Samarica 262 persons temporarily arrested, of this number 20 shot immediately.

There was no trial, hearing or court martial for these men who fought as honorable and patriotic soldiers for their nation.  The orders distributed to the lowest of units were unmistakably clear Lueter’s directive to his troops of 7 January 1943 is representative:    "Execute and hang partisans, suspects and civilians found with weapons.  No formal proceedings are necessary".  No  wonder that Foertsch could report to OKH in Berlin that up to 24 August 1942, 49,724 and up to 8 September 52,362 "insurrectionists"  had been shot in battle or by way of reprisals.

Just as it was in Serbia, the German directives in Croatia were by now the old familiar ones—comb whole areas, seize the entire male population capable of bearing arms for deportation to Germany for la-

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bor, choose "unreliables" as hostages to be executed in case of attacks on convoys or communication lines, enter into negotiations with the enemy for the exchange of wounded, the better treatment of prisoners, or recognition of their belligerent status.  Instead treat captured partisans as criminals to be hanged after all possible information had been drained from them, with or without torture.  In Croatia, just as in Serbia, the revolt continued to gain momentum.   By the middle of 1943, with the Allies advancing in the Mediterraen [sic] Theater, the German Commanders realized that what was going on in the Balkans was really a war.

During the period of General Loehr’s supreme command, on 1 January 1943, the 12th Army went out of existence, or more accurately from a practical standpoint, it changed its name.  Loehr’s headquarters was redesignated Army Group "E", and until August, 1943, it remained the supreme headquarters for the southeast theater.   The change, however, was of little practical significance; Loehr continued to command and Foertsch continued as his Chief of Staff. In Serbia, Bader and Geitner were still subordinated to Loehr.

The structure of Army Group "E" is shown on Chart "C" of the prosecution’s pamphlet.   To almost every rule there is an exception, and the Court will note that here we have an army group to which no army was subordinated;   instead,  this army group commanded   a heterogeneous col-

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lection of corps, Military Commanders, "fortress" commanders, and others.   The tide of war was soon to bring about still another departure from orthodox German military structure.   The German terror had not brought peace and order in southeastern Europe; Serbia was as restless as ever, and the partisan forces of Croatia and Greec e [sic] were growing stronger all the time.    On the 10th of July, 1943, the Allies landed in Sicily, and it became apparent that soon they would be on the Italian mainland, and in a much better position to bring material assistance to the national armies of liberation in Greece and Yugoslavia.   Faced with these new and unfavorable developments, in August 1943 the Germans reorganized the entire command structure in southeastern Europe.  New faces appeared and a familiar face reappeared.  We will now turn to the story of this last and most important occupational period.

tTHE [sic] OCCUPATION:    VON WEICHS AND RENDULIC

(After AAugust [sic], 1943)

The year 1943 was known to the American public as the "end of the beginning". To the German Army, reeling under the heavy blows of Allied military might, it was indeed the " beginning of the end". The invasion of North Africa and Montgomery’s advance from Egypt in November, 1942 were followed by the crushing surrender of von Paulus’ crack Sixth Army before Stalingrad.   Rommel’s retreat and defeat in Libya and Tunisia was followed by the invasion and rapid conquest of Sicily.  Finally it was Italy’s turn.   With the invasion of the  Italian mainland, the long-despised and very tired Italian accomplice collapsed in thankful relief.

A. Reorganization of the Southeast Command.

Reorganization of the command structure was the first step taken towards meeting the new challenge in southeastern Europe.  From the Russian front where, as commander of an army group he had won promotion to the rank of Fieldmarshal, Hitler called Maximilian

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von Weichs.   A new army group headquarters – Army Group "F" – was established in Belgrade, as the vehicle for von Weichs’ supreme command over sou theastern [sic] Europe.    The defendant Foertsch, the veteran of service as Chief of Staff under List, Kuntze and Loehr, now came to Serbia as Chief of Staff to von Weichs.

The new command structure which von Weichs headed is shown in the chart on the wall.   Loehr remained in Greece, and his headquarters continued to be called Army Group "E", thus creating the double anomaly of an army group with no "army"  beneath it, and which was itself subordinated to another army group.  From this time on,   Loehr’s headquarters concerned itself exclusively with Greece and the AAegean [sic] Islands, and Loehr reported to von Weichs.  The two corps commanders under Loehr were the defendant Felmy, who had returned to Greece in July, and the defendant Lanzz, [sic] who had been a divisional commander during the original invasion of southern Yugoslavia, and who arrived in Greece  in August.

Althougth von Weichs maintained his headquarters in Belgrade, so far as military operations against the partisans were concerned, the center of gravity was shifting toward Croatia.  To cope with Tito’s partisans and to protect the long Dalmation coastline, exposed as it was to an Allied invasion or raids from nearby Italy, the headquarters of the Second Panzer Army, which had been engaged on the Russian front, was moved to Croatia.  To command this army, and to carry out the difficult mission of re-establishing order in Croatia and safeguarding it against enemy attacks, the German High Command selected the defendant Lothar Rendulic.  An Austrian, whose mother was Croatian,  Rendulic had learned much about the Balkans by the sheer process of growing up under the Hapsburgs and living in the center of their sprawling empire.  He had joined the AAustrian [sic] Nazi Party in the early thirties at a time when it

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had been declared illegal, and was regarded on all sides as a "Nazi General." In 1938, he was the Austrian Military Attache [sic] at Paris, in which his rise was phenomanally [sic] rapid. At the outbreak of the war in 1939, he held the rank of Colonel. He participated in the Polish campaign as chief of staff of the infantry corps, and there-after was given command of a division during the campaign against the Low Countries and France. He commanded another infantry division in Russia, and in 1942 he was given command of a corps; in the same year, he reached the rank of General der Infanterie [sic] (equivalent to a Lieutenant General in the American Army). His outstanding combat record, which has won him the highest German decorations, brought him to Hitler’s attention and undoubtedly lead to his appointment as Commander of the Second Panzer Army. In the spring of 1944 he was promoted to Generaloberst [sic]. Two more of the defendants, Leyser and Dehner, now appear for the first time in this case as corps commanders under Rendulic. 

In Serbia another new face was introduced. General Hans Felber had led troops in battle and seen occupation duty in France. Weichs and Rendulic thought Bader too old and routine-minded for the requirements of the new situation; he was relieved as Military Commander of Serbia and replaced by Felber. The defendant Geitner, however, carried on as Felber’s Chief of Staff. 

Felber’s jurisdiction, however, was broader than that which had been exercized [sic] by Bader. Just as von Weichs, as commander of all the armed forces in the southeast was the superior of Loehr in Greece and Rendulic in Croatia, so Felber, with the title of Military Commander Southeast, was now made the superior of the German Military Commanders in Greece and Montenegro and of the "Flenipotentiary Generals" in Croatia and Albania. The Military Commander[s is faded] in Greece, beginning in August 1943, was the defendant Speidel. Accordingly, 

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in this final phase of the case, all of the defendants except two (List and Kuntze) are involved.

Von Weichs, of course, had supreme authority over the entire organization-over Rendulic and Loehr as tactical commanders, and over Felber and his subordinate "Military Commanders". Geographically speaking his responsibilities were far greater than those which had been borne by List, Kuntze, and Loehr before him. He had barely arrived in the Balkans when the Italian capitulation occurred, and he was immediately confronted with the task of disarming and rendering harmless the Italian forces in Croatia, Montenegro, Albania and Greece. At the same time, he had to take over occupational responsibility for the areas which the Italians had theretofore controlled. 

B. The Italian Surrender.

The new leadership was on the defensive from the start. Sicily had been invaded by the combined British and American forces in July. A fortnight later Mussolini was deposed and the King appointed Marshal Badoglio to conduct the war as new head of the Italian Government.  But in six more weeks, on September 8, 1943, the Italian armed forces surrendered unconditionally. Under the terms of the armistice of all the Italian armed forces were to cease hostilities of any kind against the forces of the United Nations and to withdraw to Italy immediately from all areas in which they were currently engaged. 

The German High Command was not caught unawares by this development. Italy’s defection had been anticipated, and when it actually occurred, the Germans proceeded with synchronized swiftness to attack and disarm their one-time colleague. The orders from Berlin were clear and precise. Italian soldiers who wished to continue fighting on the German side were to retain their arms, to be accorded treatment "completely consistent with their honor", and to receive rations "based on those of the Germans". Indeed, they even were to receive

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50% of the German pay corresponding to their ranks. German gratitude and generosity to the "faithful" was boundless. Those Italians who did not wish to continue fighting for the Germans were to be disarmed and made prisoners-of-war. They, however, would not have to endure the long, boring days of waiting in the barbed-wire enclosures that is the legal fate of prisoners-of-war. Instead they were to be turned over to the Plenipotentiary for Labor Employment and the Reichsminister for War Production and Armament, so that their strength and skill might be fully utilized in the German war production.

For those Italian soldiers who dared to obey the orders of their own Supreme Commander and resisted German forces either actively or passively, a more select fate was in store-the officers of all Italian troop units who let their arms fall into the hands of insurgents or in any way made common cause with insurgents were to be shot to death after summary court martial; the non-commissioned officers and men of such units were to be taken away for labor employment.

The Fuehrer’s order was put into savage execution. In a matter of hours von Weichs had ordered its distribution to all tactical commanders in the theater. In some cases the order was passed on in expanded form. Rendulic, for example, gave more detailed instructions to his troops: Should an incorrigible Italian division destroy its arms and supplies, besides the individual "culprits" , one officer of the Divisional Staff and 50 men of the division should be shot to death; any individual Italian soldier selling or giving away his arms to civilians or destroying them without explicit orders would be shot to death; any Italian soldier arriving at his embarkation station without his weapon was to be shot to death together with his responsible unit leader; for every motorized vehicle made useless,

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one officer and 10 men would be executed. In a mater of days, fifty-one hesitant Italian divisions had been totally disarmed by but seventeen German divisions. However, at least two whole Italian divisions resisted, while thousands of individual Italian soldiers, noting the treatment meted out by the Germans to resisters and surrendered alike, took to the hills to join the partisans.

The reports poured in-from the division to the corps, the corps to the army, the army to the army group, and the army group to OKW in Berlin:

On 27 Sept. 1943, from Split on the Dalmatian coast: "city and port occupied, 3 generals, 300 officers, 9,000 men of the Italian "Bergamo" Division taken prisoners; officers to be shot to death according to the Fuehrer."

30 Sept. and 1 Oct. 1943: 3 generals shot in split after summary sourt martial.; 34 more guilty Italian officers shot in split. 

From the 7th SS Division on the 29th Sept. 1943: "The Italian General Fulgowi has been convicted for delivering arms to the partisans and sentenced to death."

Ffom [sic] the XXIst Mtn. Corps on the 9th Oct. 1943: "Operations against the Italian ‘Taurinesse’ Division concluded in the main, reprisal measures carried out against 18 officers."

From the XXIInd Mtn. Corps on the 23rd Sept. 1943: "Gen. Gandini and all his staff captured, special treatment according to the Fuehrer order. The following day "Gen. Gandini and all officers have been shot."

From the 100th Inf. Div. on the 1st Nov. 1943: "reprisal measures are being taken against the 2 Italian colonels (the Ia and IIa of the 9th Italian Army) captured near ‘505’".

On 13 Oct. 1943, from Von Weichs the Supreme Commander Southeast:  "Execution of general Roncaglis, Commander of the Italian XVth Army Corps, ordered in case of further opposition".

This calculated slaughter of captured or surrendered Italian Officers is one of the most lawless and dishonorable actions in the long history of ar[m]ed combat. For these men were fully uniformed. They bore their arms openly and followed the rules and

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customs of war. They were lead by responsible leaders who in repelling attack were obeying the orders of Marshal Badoglio, their Military Commander in Chief and the duly authorized political head of their nation. They were regular soldiers entitled to respect, humane consideration, and chivalrous treatment.

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C. Croatia

With the disarming and liquidation of the Italians complete, the Southeast Command returned to the continued prosecution of its principal mission of pacification. In Croatia the task of defeating the guerrillas was alone a big order. To do that and quiet the civilian population in addition was far more difficult.

To begin with, the puppet Croatian Government of Ante Pavelic was of no help whatever. Its inefficient and poorly organized national militia, led by Kvaternik, was unable to maintain order within the country, let alone protect the vital German supply lines running from the Reich through Croatia to Serbia and Greece. Even for the German troops of the Second Panzer Army, it was a full-time job to keep the supply and communication routes open. In an earlier period, the enemy had waged guerrilla warfare; it was the only way he could fight, and the way which suited him, his resources, and the topography of the country best. He staged surprise raids on lonely German outposts or under-manned garrisons, he mined bridges, derailed trains, cut telegraph wires, fired supply depots, and exploded ammunition dumps. That sufficed in an earlier time. Now  after two years in the hills he was experienced and well trained; the Allies were on the offensive  and had supplied him with weapons, ammunition, food and clothing; he was expertly led and efficiently organized. Now he was a real enemy, a belligerent of major proportions, and a foe to be reckoned with in terms of large-scale operations and overall strategy. 

To meet the challenge of the big and the new, the Germans had only the small and the old. From the day in 1941 when the campaigns against Greece and Yugoslavia had been declared ended and the front line troops redeployed to the East, the Southeastern commanders had begged for replacements and reinforcements. The southeast theater was continuously under strength throughout the war. Yet always the same answer came-additional troops cannot be spared from the decisive Russian front. But not only were the troops in the Southeast too few; they were also of

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inferior quality. They included many reserve troops who were over-age and jaded. Insufficient and inferior troops had been the German problem from the beginning. In 1941 and 1942 they had met it the only way the heavy-handed Germans knew how to meet any resistance—by terror. In 1943 and 1944, as unimaginative and blindly cruel as ever, they would meet in the same way. 

The practice of seizing scores of hostages in each village in which German troops were stationed or in the vicinity of which German troops were operating was continued. In 1941 the Germans had taken democrats, nationalists, and Jews as their hostage victims. Now that most of those had been liquidated they were choosing "communists", "bandit suspects", "bandid [sic] helpers", or relatives of "bandits" as security pawns against attacks. How did one distinguish a "communist" from the rest of the population? Only the SD, the Croatian police, or the village quislings could answer that. If men thereby were victimized by spiteful and gossiping neighbors, it was just unfortunate.

The pattern of terror and intimidation was simple. After the Germans had entered a village, all of the inhabitants--old men, women and young children alike--were summoned to the central square or market place. From a sound truck a German officer would announce to the assemblage that there were partisan bands operating in the vicinity. The Germans wanted information concerning the size, location and leadership of those bands, the number of men missing from the village, and the names of strangers presently living in the village. Unless the inhabitants came forward voluntarily with the desired information, other and more drastic steps would be taken to procure it. When there were no volunteers, priests, school teachers, small shopkeepers or farmers--sometimes just every third, fifth or tenth man--were called out of ranks and loaded in lorries for shipment to the division’s hostage camp at some distant central collecting point. Whether to save one’s husband, father or son by revealing that a neighbor’s brother had joined the bands or was absent from the village was a difficult choice

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for those who remained. Sometimes men or women weakened. More often they just stood there- some passive, others weeping, all hating. 

The basic pattern of burning homes and villages was also continued. Partisan bands moved from village to village, changing their bases of supply and operations as the Germans advanced or retreated. As the Germans advanced on a village there might be an exchange of fire, perhaps a few shots by retreating guerrillas. That the villagers had not asked the partisans to come, had given them food and supplies only under protest, or were powerless to resist their intrusion was of no moment to the Germans. The inhabitants would be evacuated, on foot to the rear. Some of the aged would die en route; of the others some would be executed as "bandit suspects" or "bandit helpers" after screening by the SD; the remainder would be sent to the Reich for labor; the village would be reduced to rubble and ashes. 

Those severe retaliation measures served only to defeat the Germans’ own purpose. Glasie-Horstenau in Croatia knew it, the defendants knew or should have known it. After a few months in the Balkans anyone with the slightest objectivity would have known it. Those measures were military suicide, not military necessity. In spite of the hangings and burnings-- indeed because of them--the resistance continued. With his home and village destroyed, his means of livelihood cut off, his family and friends executed, in concentration or hostage camps, or slaving in Germany, there was little else for a man to do but take to the woods. Completely without roots, immunized against fear and nursing a bitter hate, he was excellent material for the partisan forces. 

By mid-1943, after the influx of thousands of lonely, angry, and displaced men, the guerrillas numbered in the tens of thousands. His attention drawn to the tremendous labor needs of the Reich, Hitler, on 27 July 1943, issued a new order finally recognizing the magnitude, importance and regular military nature of the warfare in the Southeast. In order that more human material might be imported to the Reich to 

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insure the necessary supply of coal, all "bandits" captured in combat were no longer to be executed. Henceforth they were to be deported to Germany by way of prisoner collecting points. Prisoners were to be executed no longer-no because it was thought illegal or inhuman to execute prisoners, but simply because their labor was now necessary for the Nazi war machine.

In order to clear up any doubts concerning this unusually humane Hitler order, the OKW issued a clarifying order, dated August 18, 1943. Paragraph 3 of the succeeding order empowered any commander having the rank of at least a Divisional Commander, "in cases of particularly malicious procedure on the part of the bandits or their accomplices", to issue precautionary directives not to take any prisoners, or to shoot prisoners and the population captured in the combat areas. In his order of 15 Sept. 1943, passing on this clarifying order, Rendulic said--and for this he deserves the dubious honor of having "improved" on a Fuehrer order:

1) All operations against collective bands or against individual bandits are to be executed with ruthless severity. The unit employed in band combat is not to be satisfied merely to chase away the bands, but it must attempt again and again to exterminate bands or at least parts of them…..

2) The severity of the fights against the cunning enemy often makes it impossible to bring in prisoners without endangering one’s own men. The precautionary directives under No. 3 of the OKW’s order below, not to take prisoners, will frequently become necessary against the bands in the Serbo-Croatian area. Should the individual bandits nevertheless be captured alive by our own troops, they are to be treated in accordance with the attached order of the OKW/WFST secret, dated 18.8.43.

What a thinly veiled invitation to the wholesale murder of defenseless prisoners of war, of men who satisfied all the criteria prerequisite to full belligerent status. Small wonder, then, that brutalized by such orders, the common German soldier lost all sense of chivalry, all regard for decency. As inexorably as night follows day, the issuance of these criminal orders was followed by the reports of the enforcements:

Captured 31 partisans--27 of them were shot;

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2 partisans, captured during an attack on Bijela, refused to tell the name of the Brigade or Division to which they were attached. After their interrogation, they were shot;

18 captured partisans shot;

4 partisans captured--shot;

Communist courier hanged after interrogation;

100 bandits hanged for railway sabotage and for a surprise attack on police;

20 partisans hanged for an attempt to blow up a railroad.

You will read these and scores of similar reports until numbed by the monotony of their tragic sameness, your emotions may well be incapable of registering further horror and pite [sic].

Although a critical manpower situation in the Reich was responsible for modification of existing orders respecting the treatment of captured partisans, there was no similar practical excuse for a change in the basic orders governing reprisal measures. The consistency of the German retaliation rules runs like a steady red thread throughout this case. Those rules, like the physical presence of Foertsch, lend consistent if appalling unity to the periods of List, Kuntze, Loehr and von Weichs. 

The already mentioned Rendulic order of 15 Sept. 1943 is as revealing on the subject of reprisal measures as it was on the treatment of captured partisans. It is not an exceptional order. It is, unfortunately, thoroughly representative of every single man in the defendants’ dock.  The order states:

Attacks on German menbers[sic] of the Wehrmacht and damages to war-important installations are to be answered in every case by the shooting or hanging of hostages and the destruction of surrounding villages, which latter is to take place, if possible, after the arrest of the male population which is capable of bearing arms. Only then will the population, in order to avoid reprisal measures, inform the German authorities if bands collect. 

Unless in individual cases different orders are issued, the rule for reprisal measures is: 

1 German killed 50 hostages

1 German wounded 25 hostages

Kidnapping of a German will be considered equal to killing a German unless the kidnapped person does not return within a definite period. According to the severity of the attack, 100 hostages may be hanged or shot for each attack against war-

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essential installations. These reprisal measures are to be executed if the culprit is not caught within 48 hours. 

With orders of this nature outstanding, there could have been only satisfaction, not surprise, as the routing, matter-of-fact reports came in:

20 hostages hanged and 20 shot for railway sabotage; 

As a retaliatory measure for an attack on an armored column 27 Chetnik hostages hanged;

Arrest of a woman teacher in Kapela as a hostage, whose husband, a Croatian captain, deserted to the bands;

Relatives of track attendant Petric, who left his post at 1800 hours, will be shot if he fails to return;

The mass of the population of the villages of Paklenica and Vocarica arrested as hostages and the villages burned down in reprisal for a band surprise attack on Novska;

One village burned and 100 bandits shot as a measure of retaliation for raid on railway southeast of Graconica;

In retaliation for a raid on a freight train southeast of Vinkovci, 21 bandit suspects taken from near the place of the raid and executed there.

Von Weichs knew of this and other of Rendulic’s orders. He knew, too, of their precise execution--he was Rendulic’s commander, it was his business to know. Dehner and Leyser knew of them also-it was they who saw to it that the orders were carried out. It was their divisions, regiments and battalions who did the shooting. 

THE PRESIDENT: The Tribnal*** will be in recess at this time until 1:30 this afternoon at which time this Tribunal will reconvene in Court Room No. 2. 

(A Recess was taken until 1330 hours).

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AFTERNOON SESSION

(The Tribunal reconvened at 1330 hours, 15 July 1947)

THE MARSHAL: The tribunal is again in session.

THE PRESIDENT: Counsel may proceed.

MR. FENSTERMACHER: If the Tribunal please, prior to the recess, you will remember, we were discussing the final occupational period, the period August 1943 to October 1944. We were particularly concerned with the basic orders issued by Weichs for the whole theater, and with their execution by Rendulic, Dehner and Leyser in Croatia.

Not until late December 1943, four moths after the inauguration of the new Southeast command, did a major reorientation in theater policy take place. Minister Plenipotentiary Neubacher, Ribbentrop’s top political advisor for southeaster[sic] Europe, had long worried over the boomerang effect of the German occupational terror. After conferences with Weichs and his army commanders, it was agreed that "the reprisal, penal and revenge measures practed[sic] up to now must in the future, take into account the new political objectives." In cases of attacks or acts of sabotage, the new principle was "to seize the perpetrator himself and to take reprisal measures only as a second course, if through reprisal measures the prevention of future attacks is to be expected." Up until now the hangings and burning admittedly had occurred first, and the search for the guilty only later. A reversal in technique was a tribute, not to justice, but to military expediency. 

This order of the Supreme Command Southeast, dated 22 December 1943, is a remarkable document in many ways. It rescinded all previous orders concerning hostage quotas. But though reprisal quotas were no longer to be fixed, they were not at all prohibited. Rather the extent of the reprisal measures was to be "established in advance in each individual case." The order is unique also because of tis [sic] twisted and inconsistent language. It reads in part as follows: 

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The procedure of carrying out reprisal measures, after a surprise attack or an act of sabotage, at random on persons and dwellings in the vicinity, close to the seene [sic] of the deed, shakes the confidence in the justice of the occupying power and also drives the loyal part of the population into the woods. This form of execution of reprisal measures is accordingly forbidden. If, however, the investigation on the spot reveals open or concealed collaboration or a conscientiously passive attitude of certain persons concerning the perpetrators, then these persons above all are to be shot as bnadit[sic] helpers and their dewellings[sic] destroyed….

If such people as are guilty can  not be found, those persons must be resorted to who, without being connected with the actual deed, nevertheless are to be regarded as co-responsible. 

Why should persons not connected with the actual deed "nevertheless be regarded as co-responsible"? When superior orders are so incomprehensible and so in need of lower-level clarification, it is not surprising to find one of Renudulic’s Division commanders, writing to his troops in the following simple, straightforward, understandable language:

All is right which leads to success. After three full years of war in the Balkans each commander knows what is best.

Not because of the new policy directive, but rather because of tactical considerations arising out of the regular military nature of the current war in the Southeast, there was a noticeable change in the Croatian picture in the early months of 1944. The change was not so much a decline in the quantum of crime committed by the German troops there as it was a shift in emphasis from one type of crime to another. The number of hostage hangings may have decreased, but in their place were the many raids on partisan concentrations, followed, after all military operations were ended by the deliberate burning of partisan hospitals and medical supplies and, on occasion, by the merciless execution of their sick and wounded patients. With periodical "purge actions" and "punitive expeditions" throughout 1944, for example,  units of the " Prinz Eugen" and "Devil’s" Divisions, both subordinate to Rendulic, went on a rampage of blood and cruelty that can only be duplicated in history by the orgies of Genghis Khan. A dozen or more inoffensive Dalmatian villages were burned and plundered. Three villages were destroyed and more than 800 of their inhabitants massacred on a single day. 

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The troops machine-gunned crowds which they, themselves, had assembled, they looted the dead and then half burned the bodies on giant funeral pyres, they poured gasoline on live victims and then set them on fire, they raped and they pillaged and they slaughtered. What else could be expected of men brutalized and icited to crime by the ruthless orders of ruthless commanders?

Then there were the deportations to slave labor in the Reich.Worried by the threat of an Allied invasion across the Adriatic Sea, but more anxious about the continuous thrusts of Tito’s National Army of Liberation and by the labor needs at home, scores of islands and thousands of square miles of Dalmatia and Croatia were completely evacuated of all their inhabitants by the Second Panzer Army. Mixed Croate-German—

THE PRESIDENT: May I interrupt just a minute. We need a short recess in order to fix the sound system.

(Short recess takan[sic])

THE PRESIDENT: I am informed that the English was coming over Channel 3 and the other language over another channel. The English is now coming over 2, so you will kindly watch and see that you are getting it on your right dial. And the German is on 3. 

MR. FENSTERMACHER: Mixed Croate-German commissions rounded up all able-bodied men between 17 and 40 and gave them their choice of being drafted into the Croatian Army or joining strongly guarded labor battalions building fortifications. and coastal defenses, bother alternatives which meant fighting on the side of those who would keep them in bondage. Altogether, between 150,000 and 200,000 Croates were up-rooted from their homes and villages and transported to district and regional collecting camps from which they were later screened-the weak to remain in local concentration camps and all the strong to labor in Germany. In one single action alone, Operation "Panther", more than 6,000 persons were deported to the Reich for labor. Old men, women, nursing

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children, all had to go, wearing only the clothes they had on and taking with them only what they could carry. And always, as an area was combed, several groups of the SD were asked to accompany the army to "clean up" in its rear. To "clean up"-- a polite expression for political, racial and ideological murder. So widespread were the evacuations, and so wholesale the deportations, that even the supine Croatian Government portested[sic] in their quick and arbitrary manner that the Germans were deporting hundreds whose loyalty to the Pavelic Government and the German occupation was above suspicion.

Hangings—of hostages, "communists", "bandit helpers", "suspects"; executions- of prisoners, civilians, "anti-Germans", "unreliables"; burnings—of homes, villages and towns; punitive expeditions and "purge actions"; mass evacuations and deportations to slave labor-that was the answer of Rendulic, Dehner and Leyser to the problem of Croatian pacification. 

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If Croatia under the aegis of Rendulic was an operational charnel house, then Serbia under Felber and Geitner was an administrative extermination camp. In no other country did the machinery for murder operate with such chain-like precision. 

With impartial ruthlessness and severity, Felber and Gitner liquidated both D.M’s and Partisans, depending upon the political affiliation of the group to which the Germans believed the perpetrators of the hostile acts belonged. They hanged and shot in incrediable [sic] quantities, reflected in their dialy and monthly reports to von Weichs:

2 September 1943: "450 communist suspects ordered to be shot in course of operation in area Leskovac";

29 September 1943: "10 D.M. hostages and shot to death in Jagodina for the murder of the district supervisor";

4 October 1943: "283 D.M. hostages and 42 communists shot to death in Cacak on 1 October in reprisal for a number of attacks in the area of F.K. 610 during which German and Bulgarian members of the Wehrmacht were killed.";

17 October 1943: "In retaliation for attack on German customs and police patrol, 100 D.M. in the district of F.K. 810 and 150 communist hostages in Belgrade shot to death;"

29 October 1943: "In reprisal for the attack on two German soldiers by D.M. Chetniks near Tejika on 17 October, for a further attack on 21 October near Gr. Milanovac, and for the attack on barges on the Danube near Izlaz on 26 October, 150 D.M. followers were shot;"

29 October 1943: "As revenge for the surprise attack on a cattle purchasing detachment at Sljivar 100 D.M. followers and 200 communists were shot in Belgrade";

29 October 1943: "As revenge for the surprise attack on the collecting detachment of the 8th Auxiliary Police Battalion at Lelasnica 100 D.M. followers were shot";

1 December 1943: "27 communist hostages shot in retaliation for the attack on the train Negotin-Nisch".

Even after the order of December 1943 rescinding all hostage quotas and decreeing a policy change in reprisal measures, Felber and Geitner continued to execute in arithmetical ratio:

22 January 1944: "50 communist hostages shot to death for the murder of a German police captain in Kragujevac";

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24 January 1944: "10 communists shot to death in Pozarevac in reprisal for the murder of the mayor";

On 24 March 1944 in a memorandum addressed to F.A. 610, Felber approved the execution of 10 "communist" hostages at the Krusevac airport, and as late as 30 May 1944, he ordered the execution of 50 "communists" in retaliation for the death of two German soldiers.

Such was the record of crime which Felber and Geitner compiled in Serbia.

Von Weichs knew the effect these massacres had on the Serbian state of mind, and he knew that they were directly related to the problem of pacification of the whole Southeast. He knew, too, that in a theater of war without the usual operational zones and rear areas tactical security and aministrative[sic] security were one and the same thing. Von Weichs was law in Serbia as he was law in all the Southeast. He knew of Felber’s and Geitner’s blooky[sic] work—he knew, he condoned, he consented, and he approved.

For reasons of convenience and clarity in the statement of this case, we have postponed our description of the German occupation of Greece in order to treat it all together. Greece had been stunned almost into quiescence during the first half of the joint German-Italian occupation. Always a heavy food-importing country, Greece, with her outside sources of supply cut off and her food stocks plundered by the Italian and German occupiers, faced national starvation. Hundreds died in the streets of Athens daily, children with the bloated bellies of undernourishment could be seen everywhere, and between August 1943 and October 1944, the drachma declined from one-three hundredth to one trillionth of its pre-war value. With a population of slightly over seven million people, Greece lost an estimated 300,000 of its inhabitants because of the foot shortage. 

To a people accustomed to horses and carts, German mechanized might was overwhelming. The military end had come with such speed

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that it took some time before the Greeks could even entertain the thought of rebelling against half-tracks, panzers and airplanes. "But" as Lord Dunsany says, "in three thousand years, freedom grows so hard that it is like a piece of rock at the core of a mountain, that cannot be broken or ground away, and cannot disappear ever." In the latter part of 1942, at the time of Stalingrad and the Allied victories in North Africa, the Greek resistance movement began to gather strength. In Crete, an all too familiar note was heard as early as November 1942, when the German commander General Brauer, instructed his commanders to educate the troops "to show no mercy whatsoever to the civilian population."

As has been observed, up to August 1943 the greater part of Greece was occupied by the Italians. But in November and December 1942 and January L943[sic], Loehr’s reports to OKH began to contain an increasing number of references to retaliation measures against sabotage and guerrilla attacks in the German-occupied portions of Greece. 

By June and July 1943, the situation in Greece had become increasingly similar to that in Yugoslavia. Loehr’s reports to OKH are an accurate barometer of the terroristic pattern

3 June 1943: "10 communists from a concentration camp shot in Larissa as a retaliation measure."

2 July 1943: "4 villages burned down and 50 communists shot near Litochoron for attack on German sergeant and blasting of railroad tracks."

4 July 1943: "87 suspects shot while trying to escape".

5 July 1943: "50 Greeks shot in Melaxa for sabotage of cable lines."

Just as in Yugoslavia, literally dozens of separate resistance groups at first arose in Greece. But after a period of merger and consolidation, two organizations of major importance were discernible--General Zervas and his approximately 10,000 EDES troops in the Epirus section of western Greece, and the ELAS units, 15,000 strong,

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in eastern Greece, the Peloponnessus peninsula, Crete and the islands.

To put down the Greek resistance the Germans tried the same old methods. Terror and intimidation, hostages and reprisal measures, hangings and burnings, had failed to pacify Serbia and Croatia. But the Germans, never humane and seldom smart, knew no other course. 

Greece during 1943 and 1944 was, like Yugoslavia, divided theoretically into both operational areas and so-called administrative areas, each with its own separate jurisdiction, organization and personnel. For the efficient execution of their respective missions of pacification and security, it was, of course, quite necessary that the regular tactical troops of Felmy and Lanz should cooperate closely with the district and sub-area police troops under Speidel’s jurisdiction. This was achieved both by personal contact of the major personalities involved and by the regular interchange of information, daily and weekly situation reports, and the like. Generally speaking, the tactical troops confined their activities to regular military engagements against the organized partisan bands. Speidel’s police troops, and the other hand, were concerned for the most part with the civilian population-seizing workers for forced labor in the Reich, deporting Jews from Crete, Corfu, Rhodes and the other islands putting down strikes, executing hostages in retaliation for acts of the sabotage and the clandestine killings of German police and quisling Greek mayors. 

The orders of Flemy, Lanz and Speidel in Greece were similar to thse [sic] issued by Rendulic, Dehner and Leyser in Croatia and by Felber and Geitner in Serbia. When attacks on troops, installations and supply lines continued, notwithstanding a previous 10:1 "hostage" quota, the Germans, with their customarily inflated notions of their own worth, promptly raised the quota from 50:1. But even the execution of 50 civilians in retribution for attacks by unknown persons did not 

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completely satisfy General Lanz. On the 25th of October 1943, his 1st Mountain Division ordered that the 50:1 arithmatical key be applied even to German losses suffered in regular military combat with the legitimately organized and uniformed guerrillas. After October 1943 the out-moded 10:1 ratio was to be effective only for the less serious deaths of such racial inferiors as a "pro-German Greek or a Greek working for the Germans."

By mid-1943, the "Andartes", as the Greek partisans were called, were an enemy to be seriously reckoned with. The Germans, however, refused to grant full belligerent status to the Greek resistance forces. Instead they waged war against he Greeks in 1941-420—by pressing the native population into service on the side of the terror that was oppressing them. They intimidated the inhabitants of peaceful villages into giving information concerning the size and location of partisan troops. They executed civilians in reprisal for the bombing of bridges and tunnels, and for sabotage of communication lines. They labeled men "Bandits", "communists", bandit suspects" and "bandat [sic] helpers" and killed them without benefit of investigation, trial or even summary court martial. In short, they resorted to every trick and device that a tyrant, blinded by the fury of his own insanity, might resort to. The reports to von Weichs and Foertsch tell the story of the harvest of the German policy in Greece: 

29 November 1943: "In reprisal for band attack on the road Tripolis-Sparta, 100 hostages shot at the scene of the attack."

1 December 1943: "In reprisal for the killing of one German soldier in Tripolis, 30 ‘communists’ were shot."

2 December 1943: "For attack on railroad bridge southeast of Tripolis 50 hostages hanged."

3 December 1943: "19 communist reprisal prisoners shot in revenge for the murder and wounding of Greek police."

6 December 1943: "As reprisal for band attack southeast of

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Of Gythion 25 hostages shot."

21 December 1943: "In the area of Volos 25 bandits shot to death in reprisal for an attack on motor vehicles."

25 Jebruary [sic] 1944: "50 hostages from the hostage camp at Tripolis shot to death on 23 February in reprisal for the murder of an interpreter."

9 March 1944: "In reprisal for strike agitation by communists 50 communists shot to death."

25 March 1944: "45 hostages shot in Corinth, 52 in Tripolis, 44 in Sparta."

1 April 1944: "Speical [sic] train Athens-Salonika hit mines. One dead, 14 wounded. Tracks blocked only short while. The execution of 70 Greeks at the site of the incident ordered."

Lidice, the small Czech village which the Germans leveled to the ground in 1942, stands today as a symbol of German savagery. In Greece there are a thousand Lidices—their names unknown and their inhabitants forgotten by a world too busy and too cynical to remember. Greece has many small primitive villages with 500 to 1,000 inhabitants who live in mud houses with thatched rofs [sic] that have been lived in for centuries. There are, for example, the villages [sic] of the Peloponnes peninsula which were leveled to the ground in December 1943 during the notorious "Operation Kalavritha." Touched off  by a report that "bandits" in the vicinity had killed 78 German prisoners, trops[sic] subordinate to General Felmy embarked upon a reprisal expedition that lasted for eight days before their senseless bestiality had been satiated. Fourteen villages were completely destroyed and their male inhabitants shot. 511 persons from Kalvirtha alone were executed. Whether the Partisans had killed captured German soliders or not, there was no legal excuse, and there can be no moral mitigation, for seeking [dot] wholesale and indiscriminate revenge on the innocent. 

Then there were the parallel tragedies of Klissura and Distomen. On an April morning in 1944 partisan troops appeared on the outskirts of Klissura and forbade the inhabitants to leave the village. On the

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afternoon of the same day, about two miles away, one German motorcycle was attacked and two German soldiers killed. German reprisal methods being well known by now, all the male population of the village fled in fear to 

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hide in the hills. Only ole [sic] men, women and young children remained behind. About 4 p.m. [sic] that afternoon the 7th SS Panzer Grenadier Regiment and Bulgarian Occupational Militia subordinate to its command, both under Felmy’s tactical jurisdiction, threw a cordon around the village, searched the houses unseccessfully [sic] for weapons and ammunition, and called all the people together in the public square. Then the killing and burning began. When it stopped, there were 223 victims lying in the square – fifty of them children under ten years, 128 women and the rest old men – Klissura was a mass of smouldering [sic] rubble. 

The "blood bath of Klissura", as the Germans so appropriately entitled their own report on the affair, was too much for Minister Neubacher to stomach. Not because it was inhumane but because it would have serious political repercussions, Neubacher immediately protested to Weishs. He said:

"It is sheer insanity to shoot babies, children, women and old people because heavily armed Reds had been quartered for one night in their houses and had shot two German soldiers in the neighborhood. The political consequences of such deeds may be very serious. It is obviously easier to kill quite harmless women, children and old men than to hunt down an armed band. I demand a thorough investigation of the matter."

The investigation was ordered. The military whitewash of an SS unit by a Wehrmacht Field Marshal came two months later when Weishs wrote to Neubacher:

"The Greek witnesses cannot be believed. The village was taken by storm, the inhabitants killed by artillery fire. There was no retaliation action."

Just two months after Klissura, in June 1944, troops of the same 7th SS Panzer Grenadier Regiment were involved in a similar massacre at 

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Distomon. From the Germans’ own lengthy report of the incident the following facts appear. As a German company approached the village, 18 Greek civilians were seen. Although they did not fire on the Germans, six of the 18 "were shot while trying to escape". The remaining 12 civilians were arrested and taken along with the company, which continued on to Distomon, remained there for several hours undisturbed, and then set out on the road from Distomon to Stiri. About two kilometers from Distomon, 30-35 partisans, well-entrenched in ridges overlooking the read and armed with an 8 cm. trench mortar that covered the entire area, lay in ambush. Before the surprised Company could disperse and reorganize to return the sudden Partisan fire, the enemy had gone, [sic

In defiance of orders restricting the initiation of reprisal measures to commanders of at least division commander level, the company commander returned his troops to Distomon to retaliate the villagers because they had not previously disclosed the presence and position of the "bandits". A report of a German Secret Field Police member, who was in Distomon at the time, relates what happened after the troops returned:

"After the troops returned to Distomon, the 12 prisoners who were taken back were shot dead in the market place as a reprisal measure.....[sic]

Subsequent to that, all people present in Distomon were shot dead wherever they happened to be. At that time, I was at the market place and was looking after our wounded interpreter. As far as I observed events, 60 to 70 persons – men, women and children – were killed in the vicinity of the market place. As far as I could see it, all were shot dead. I did not see inhabitants being killed in any other way, i.e. beaten to death by rifle butt, or by pouring gasoline over them and setting them on fire." 

Why were the 12 arrested Greek civilians killed? What had they to do with the subsequent action by the "Andartes"? Why were 270 inhabi-

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tants of Distomon killed? What was their crime? Why did the Secret Field Police member feel obliged to say that he had not seen any inhabitants "killed in any other way, i.e. beaten to death by rifle butt, or by pouring gasoline over them and setting them on fire"? Was that the usual method of executing retaliation victims?

Again Neubacher was dismayed by the political, not the moral, insanity of such actions. And again he protested – not to Himmler, although SS troops were once more involved, but to Weishs, the omnipotent master of the Southeast, the Commander of Wehrmacht and SS troops alike. This time the investigation was more lively, for it revealed that the regiment to which the company involved was subordinate had knowingly issued a false official combat report of its action against Distomon. According to the regimental report the 18 Greek civilians opened fire upon the company as it was approaching Distomon and were "shot while trying to escape", while Distomon itself was taken only after a hard battle followed by a mopping-up operation. 

From a sheer internal military standpoint, the SS company commander had not only violated orders regarding the initiation of reprisal measures. He has also deliberately issued a false official report. But convinced that the "competent authorities would also subsequently have ordered reprisal measures against Distomon which would have necessitated sending at a later time a strong mission with corresponding high fuel consumption" and believing that the company commander’s procedure was "merely a transgression against formality and corresponded to a natural soldierly feeling", the regiment requested permission to handle the matter "by disciplinary proceedings only". General Felmy, the corps commander involved, consented to the regimental request, and Field Marshal Weishs agreed. Neubacher was informed. The case was closed. 

The events of Distomon merit this somewhat detailed account because in this single tragedy there is presented in microcosm the evil 

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of the German army in Greece and in the whole Southeast during four years of ruthless occupation. It gives good insight, for example, into the mental processes of a young German officer of company grade, completely devoid of any notions of decency and honor, thoroughly corrupted by the regulations, directives and orders handed down by his superiors, [sic] It reveals precisely how war in the Southeast was fought, how the peaceful population was drawn into the struggle, what a reprisal action specifically entailed. It indicates how little the top military authorities did to humanize the already existing techniques and methods of anti-partisan warfare, how lax they were in disciplining their own troops, how they shielded the guilty. Finally, it gives the lie to one of the most important single myths that the Wehrmacht seeks desperately to perpetuate – that the terrible crimes of troops in the field were committed by SS units over whom the Wehrmacht had no power or control, and that Wehrmacht commanders constantly and vigorously protested to higher authorities against the undisciplined excesses of the SS troops. Weichs knew the inhabitants of Klissure had been killed in a reprisal, not a combat, action by the same SS unit which later was involved at Distomon. He not only did not remove the commanders responsible for that atrocity before they could repeat the same criminal performance at Distomon, but he lied to Neubacher in order to shield it from criticism. 

During the spring and summer or 1944 both the tactical commans [sic] of Felmy and Lanz and the administrative organization of General Speidel worked feverishly and desperately to postpone the bitter end. The order of 14 August 1944 of General Friedrich Wilhelm Mueller, Commanding General on the island of Crete, is representative of the attitude that prevailed:

"Numerous attacks on German vehicles require vigorous counter measures to demonstrate to the Greek people that we are masters on the island. Consideration for innocent people cannot be shown any more."

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Although they knew the war was irretrievably lost, the Southeast Command continued to hang and burn and deport, and as always the Germans’ own reports tell the story:

6 April 1944: "In reprisal for an attack by bandits during battalion roll call, killing 4 and wounding 11, 150 persons suspected of belonging to bands were shot in Verria."

23 April 1944: "In Tripolis 12 communists shot in reprisal for a murdered Gendarme."

30 April 1944: "60 communists shot in Athens as further reprisal measures for attack on police officer."

30 April 1944: "200 Greeks will be shot to death as a reprisal measure for the killing of Gen. Krech and his escort detachment."

1 May 1944: "In reprisal for attack on the truck convoy of the 41st Fortress Div. in the southeast Peloponnesus area, 335 communists and band suspects shot to death. 

10 May 1944: "In the Boestia area, in reprisal for an attack on vehicles on 26 April 1944, an additional 100 hostages are being shot in Athens."

In May and June 1944: "1600 Jews deported from Corfu and 350 Jews from Crete."

From 1 May to 1 June 1944: "1747 laborers sent to the Reich in three transports. Compulsory deportation to the Reich, particularly from the Peloponnesus, will take place soon."

From 16 June to 15 July 1944: "600 men ready for shipment from the 

Peloponnesus for employment in the Reich. Transport will take place in a few days for ‘Reichswerke Hermann Georing’ iron ore mines."

13 July 1944: "50 communists hanged in retaliation for attack on two German officers."

31 July 1944: "Line repair detachment attacked by band west of Agrinion, 8 dead, 14 wounded, Reprisal measures – 71 communists shot."

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10 August 1944:  "F.K. 817 reports 50 communists shot at scene of incident at Manara in reprisal for band attack on Athens-Thebes road."

5 August 1944:  "Railroad sabotage on train Corinth-Tripolis. Seven cars derailed. No losses of our own. In reprisal 18 hostages who had been taken along were shot."

26 August 1944:  "18 communists shot in Athens in reprisal for German soldier shot from ambush."

23 August 1944:  "During mopping-up operations near east Messara, Crete, 191 persons suspected of being bandits shot, 1 village destroyed, 1500 civilians being resettled."

5 September 1944:  "In retaliation for raid on truck convoy, 186 suspects[s] shot to death."

In August and September 1944:  "13 villages destroyed in retaliation for the kidnapping of Lt. Gen. Kreipe."

Finally, in October 1944, the end came. Threatened from the West by combined Anglo-American forces and from the East by the Soviet armies, German troops were withdrawn from the southeast to defend a crumbling Reich. British units landed on the mainland; Elas and Edes troops came down out of the hills. After four long and difficult years under the Nazi yoke, Greece was starving and destitute. But proud and courageous as always, Greece was at last free to resume her own national destiny. 

The generals of the Southeast Command went home, were re-assigned, surrendered. Twice in 25 years mere readiness for war had been insufficient. As had happened once before, the Balkans had proved to be an [A]chilles heel to German aggression. The generals were never able to understand why – but strong, independent peoples accustomed to hardship, innured [sic] to suffering, and born to freedom can "no more be broken by tyranny than a diamond scratched by a sword."

GENERAL TAYLOR: Your Honor, I desire to turn next to the charges ["r" is typed over "n"] concerning devastation and deportation in Northern Norway. These are the charges embodied in the first specification

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of Count Two of the indictment, and to examine them we must turn our attention from the Balkans to the northernmost part of the European mainland – the province of Finnmark in northern Norway. These charges concern only the defendant Rendulic.

Even since the initial attack against Russia, the German 20th Mountain Army had been situated in the northern part of Finland, holding Petsamo and threatening Murmansk and the railroad line from Murmansk south to Leningrad, one of the two main avenues for the weapons and supplies which America and Britain were sending to the Soviet Union. This army had been commanded, since January 1942, by Generaloberst Edward Deitl, who met his death in an airplane crash in June, 1944. Rendulic was chosen to succeed him, and arrived in Finland in August. The order of battle of the 20th Mountain Army, predominantly comprised of mountain troops, is shown in chart "G" of the prosecution's pamphlet.

Rendulic's arrival in Croatia in August, 1943, had been followed almost immediately by the collapse of Germany's Italian ally, now he was to encounter a parallel situation in Finland. On the fourth of September, 1944, the Finns capitulated to the Soviet forces, and demanded that the Germans promptly withdraw their troops from Finland. Rendulic decided to fall back across the northwestern Finnish frontier into northern Norway.

The region in which this retreat took place is shown in map "E" of the prosecution's pamphlet. The northernmost province of Norway is known as Finnmark, and the province just to the south as Troms. Including a nomad population of Laplanders, the population of this area numbers approximately 62,000, most of whom live in small ports and villages along the heavily indented coastline, and make their living as fishermen, it is a very wintry and isolated region; there are no railroads, and the only communication with southern Norway

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is by sea or by the single road along the coast known as Route 50.

Rendulic began his retreat in Septemb er[sic], 1944. The two northernmost corps of his army were the XIX Mountain Corps under General Ferdinand Jodl (brother of the Jodl who was a defendant in the International trial) and this corps was in the extreme north near Petsamo; the other was the XXXVI Mountain Corps, about 100 kilometers to the south of Jodl's unit. It was the troops of these two corps that were chiefly concerned in the activities which form the basis of the charges in the indictment. By the latter part of October, part of these troops had been withdrawn westward from Petsamo through Kirkenes and were resting around the village of Tana, and others to the south were making their way out of Finland by the more southerly route shown on the map which joins Route 50 near Porsanger-Halvoya. The darkness of the northern winter was rapidly settling in. It was very cold, and there was more than enough snow. The advancing Soviet troops had kept contact with the Germans as far as Tana. In order to make the Russian advance as difficult as possible, the German troops had been systematically destroying barracks and buildings and port facilities, end endeavoring to persuade the Norwegian population to evacuate, in the area between Kirkenes and Tana.

Late in October 1944, the German High Command decided that this program of devastation and deportation should be much more extensive and regorous [sic]. As a result, on 28 October 1944, the OKW, over Alfred Jodl's signature, issued the following order to Rendulic as Commander of the 20th Mountain Army:

Because of the unwillingness of the north Norwegian population to voluntarily evacuate, the Fuehrer has agreed to the proposals of the commissioner for the occupied Norwegian territories and has ordered that the entire Norwegian population east of the fjord of Lyngen be evacuated by forde in the interest of their own security and that all homes are to be burned down or destroyed.

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The supreme commander, Northern Finland, is responsible that the Fuehrer's order is carried out without consideration. Only by this method can it be prevented that the Russians with strong forc es[sic], and aided by these homes and the people familiar with the terrain, follow our withdrawal operations during this winter and shortly appear in front of our position in Lyngen. This is not the place for sympathy for the civilian population.

************

It must be made clear to the troops engaged in this action that the Norwegians will be thankful in a few months that they were saved from Bolshevism, and that the barbarian methods of the air war against our German country and her cultural shrines have brought a thousand times more misery to our people if compared with the humane evacuation and destruction of homes in northern Norway, which is necessary for our war effort, and which, if it is not done, must be paid with the blood of German soldiers.

The population, whose livelihood is fishing, in northern Norway, furthermore has enough shipping space at its disposal to be able to get out of the way en masse across the water. A large part of the small Norwegian ships which are kept hidden at present can be used for this, and can later also be used for our own transportation needs.

The danger of the formation of guerrilla bands on the part of the Norwegians appears to be negligible since they can no longer use the houses during the winter.

It was claimed, in defense of Alfred Jodl, during the international trial that this order was unnecessarily far-reaching, and that Alfred Jodl, by various subtle means endeavored to convey to Rendulic that it should not be complied with to the fullest degree1. If this be true, there is little evidence that Rendulic undertook to soften its effect in any material respect. The order which Rendulic issued to his subordinate commands the following day follows very closely the language of the OKW order and includes the following:

1. Because of the lack of willingness of the north Norwegian population to evacuate the country voluntarily, the Fuehrer has ordered the compulsory evacuation of the population east of the Lungenfjords in the interest of the security of the population, which is to be


1. Alfred Jodl's contention in this regard is referred to in the Judgment of the International Military Tribunal, Vol. I, Trial of the Major War Criminals, p. 324.

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preserved from Bolshevism, and that all houses be burned down or be destroyed. It is the responsibility of the Commander-in-Chief of Northern Finland that this order be carried out ruthlessly so that the Soviets supported by dwelling places and a population which knows the country will be prevented from following our withdrawal with strong forces. Pity for the civilian population is out of place.

**********

5. The following directions were given for the Execution of the Evacuation:

a) The entire evacuation area is to be emptied of people.

b) Evacuated settlements are to be destroyed unless they are to be used thereafter by troops marching through (that is, at the latest by the rear guards).

c) The operation must be a sudden one and the officers of the Reichs Commissar of Norway must participate, and Norwegian authorities must be harnessed for it; the latter, however, only from the beginning of the operation.

d) The seized population is to be led to the nearest ports under military guard (also small ports with docks suitable for cutters).

e) Local and district commanders are to erect reception camps in or near these ports.

f) Men capable of working and marching, and in the western districts women capable of marching also, are to be coupled to the marching units furtherest in front and to be taken along.

g) Insofar as the population still has small ships available, they are to be used for the deportation of the evacuees under military cover!

h) All ships used by the Wehrmacht (freighters end Army transports) are to be loaded additionally with as many evacuees as possible.

i) Columns on Route 50 to be formed only to an unavoidable degree; invalids, women and children to be assisted by loading them on trucks. Only men really capable of marching to join the march columns!

************

Finally I request all offices concerned to carry out this evacuation in the sense of a relief action for the Norwegian population. Though it will be necessary here and there to be severe, all of us must attempt to save the Norwegians from Bolshevism and to keep them alive.

On November first, the Germans made known to the population what was in store for them. Rendulic's proclamation stated in part:

TO THE POPULATION:

The evacuation of a part of northern Norway has been rendered a military necessity as a result of the treachery of a Finnish Government clique.

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The evacuation necessitates the removal of the civilian population, as the enemy has proved that, in those territories occupied by him, he ruthlessly and brutally forces the civilian population to give him active assistance in achieving his aims.

This means that no shelter or means of existence of any kind can be left to the Bolshevik enemy in the fighting zone. All such installations as housing accommodations, ["s" typed over "comma"] transport facilities and food stocks must be destroyed or removed.

THE POPULATION IN THESE DISTRICTS WILL THEREFORE BE DEPRIVED OF THE BASIS FOR THEIR EXISTENCE, SO THAT IN ORDER TO BE ABLE TO SURVIVE, THEY MUST EVACUATE TO THOSE NORWEGIAN TERRITORIES WHICH ARE STILL PROTECTED BY THE GERMAN WEHRMACHT.

**********

HE WHO DOES NOT COMPLY WITH THESE UNEQUIVOCAL INSTRUCTIONS EXPOSES HIMSELF AND HIS FAMILY TO POSSIBLE DEATH IN THE ARCTIC WINTER WITHOUT HOUSE OR FOOD."

(signed) by TERBOVEN, Reichskommissar for the Generaloberst,
Occupied Norwegian Territories.

(signed) by RENDULIC,
Commander-in-Chief 20th
Army.

This ruthless and in large part unnecessary decision was carried out by Rendulic's forces according to plan. Northern Norway, from Kirkenes nearly to Tromso, was turned into an Arctic desert. Over 43,000 men, women, and children - over two thirds of the entire population of an area about the size of Scotland - were herded down Route 50 or crowded into small boats. We may be sure that the official German report to Rendulic of the manner in which the evacuation was carried out is not overstated. I quote:

Some untoward events, such as.... the separation of men from their families to be deported ...., the burning down of houses in the presence of inhabitants even where an immediate destruction was not necessary, and shelling of the locality Kjallefjord by units of the German Navy, hindered the readiness of the population to follow the officially prescribed way.

The prosecution will submit evidence to show that the devastation and evacuation, at least in large part, were

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wholly unjustified from a military standpoint and that under the spur of Rendulic's admonition that his order was to be "carried out ruthlessly" and that "pity for the civilian population is out of place", the destruction and evacuation were carried out with unnecessary brutality, resulting in the impoverishment of the entire population, in the death of some, and the suffering of many thousands.

We will turn to the final portions of the indictment—those relating to

THE MURDER OF CAPTURED "COMMANDOS" AND "COMMISSARS"

Two of the specifications in Count Three of the Indictment differ from the others in that their scope is not restricted geographically to southeastern Europe. These are subparagraphs "b" and "h" of paragraph 12 of the indictment. Both of these specifications refer to orders of general application, issued by OKW and OKN and distributed generally through the field commands of the Wehrmacht, which denied the protection of the laws of war to two special categories of enemy troops, and directed that they be executed if captured. These two categories were the commando troops, which the British and later the Americans made such effective use of, particularly prior to the invasion of France, and the so-called "political commissars", who were regularly attached to unite the Soviet forces and fought with them in regular Soviet uniforms.

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Firstly as to the commandos.

The order for the murder of captured commandos was issued by Hitler through the OKW in October, 1942. It directed that enemy commandos were to be slaughtered to the last man; that even if they surrendered, nonetheless they were to be shot immediately, unless interrogations were necessary, in which case they were to be shot thereafter.

The order was not a purposeless piece of criminality; Allied commando Operations were proving alarmingly effective, and Hitler apparently thought that this order would act as a deterrent.

The order was distributed to all three branches of the Wehrmacht, and there is ample evidence that it was widely distributed and well known throughout the German army. In all probability, all of the defendants (except List, who had retired just prior to its issuance) distributed or enforced the order at one time or another.

In July, 1944, the commando order was given a new and special application in southeastern Europe. A new order from OKW directed that it should be applied to the members of foreign "military missions" who might be captured with the partisan forces in the Balkans. This new order, dated 30 July 1944, stated:

In the areas of the High Command Southeast and Southwest, members of foreign so-called "Military Missions" (Anglo-American as well as Soviet-Russian) captured in the course of the struggle against partisans shall not receive the treatment as specified in the special orders regarding the treatment of captured partisans. Therefore, they are not to be treated as prisoners-of-war, but in conformity with the Fuehrer’s order for the elimination of terror and sabotage troops of 18 October 1942.

We must not forget that to kill a defenseless prisoner-of-war is not only a violation of the rules of war. It is murder. The commando order required the commission of murder, and every German officer who handled it knew that perfectly well. The signs of a guilty conscience are only too clear in another paragraph of the order which I have just

read, which required that the distribution copies of it should be de-

------------------

1. The circumstances pertaining to the commando order are summarized in the Judgment of the International Military Tribunal. Vol. I, Trial of the Major War Criminals, p. 228.

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stroyed after reading.

There is ample evidence showing general compliance with this order, as was found by the International Military Tribunal which stated in its judgment:

Under the provisions of this order, Allied commando troops, and other military units operating independently, lost their lives in Norway, France, Czechoslovakia, and Italy. Many of them were killed on the spot, and in no case were those who were executed later in camps ever given a trial of any kind. For example, an American Military mission which landed behind the German front in the Balkans in January 1945, numbering about twelve to fifteen man and wearing uniform, were taken to Mauthausen under  the authority of this order, and according to the affadavit of Adolf Zutte, the adjutant of the Mauthausen concentration camp, all of them were shot.

Secondly, Commissars:

Whereas the commando order was especially designed for and executed in western, and later in southeaster, Europe, the commissar order was of principal importance on the Russian front. Unlike the commando order, it was not the result of, or issued in reply to enemy action. On the contrary, it was issued and distributed nearly three weeks prior to the initial attack on the Soviet Union. Its words reflect, not the

hurried decisions of men beleaguered,  but the considered opinion of men who had pondered the conclusions set forth.

The order was issued on 8 July 1941 by von Brauchitsch, as Commander-in-chief of the Army. That the authors were aware of the criminal character of its contents, is apparent from the restricted distribution to instructions which it bore. It was "For General officers only. To be delivered through officers only…..You are requested to limit the distribution to Commanders-in-Chief of Armies or Air Forces, respectively, and to inform junior commanders by word ofmouth". It provided, in part:

When fighting Bolshevian, one cannot count on the enemy acting in accordance with the principles of humanity or international law. In particular, it must be expected that the treatment of our prisoners by the political commissioners of all types who are the true pillars of resistance, will be cruel, inhuman and dictated by hate.

The German troops must realize:

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1. That in this flight, it is wrong to treat such elements with clemency and consideration in accordance with international law. They are a menace to our safety and to the rapid pacification of the conquered territories.

2. That the originators of the Asiatic barbaric methods of fighting are the political commissars. They must be dealt with promptly and with the utmost severity.

Therefore, if taken while fighting, they are offering resistance and they must, on principle, be shot immediately…..

....Those commissars will not be recognized as soldiers; protection granted to prisoners-of-war in accordance with international law will not apply to them. After having been segregated, they are to be dealt with. 

When the defendant Weiche received this order as Commander-in-Chief of the Second Army, he was not in combat but in the quiet of a then secure Germany. His army had just been withdrawn from the southeast, and he had returned to Germany; his army was in reserve and was not committed in actual combat until July on the eastern front. Weiche distributed the order to the subordinate commanders in his Army, and they

in turn passed it down to the troops. The prosecution will introduce evidence showing that others among the defendants also distribute and executed this order.

The Second Army had been in the front line in Russia but a few days when reports began to come in to the Weiche1 headquarters, showing that the order had been carried out. Indeed, Weiche1 headquarters appeared to have been especially interested in the effect which this order was having in actual combat; on 9 September 1941, his Chief of Staff advised the next higher headquarters (Army Group Center) that the commissars were fighting tenaciously and setting a courageous example for the Soviet troops. He further stated that there was no evidence that the Soviet forces were taking any measures by way of reprisal.

Typical reports from the corps commanders in the Second Army to Weiche Headquarters read as follows:

Up to 25 July, 3 commissars eliminated by the 293rd Division.

From 25 to 27 July, 4 commissars eliminated.

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This order, like the commando order, called for the deliberate murder of prisoners-of-war. One’s private feelings about political commissars, favorable or unfavorable; have absolutely nothing to do with the case. They were regularly attached to Soviet units, they fought in full Soviet uniform, and, as the documents show, they fought with great courage.

Your Honor, would this be a convenient time for a break? The prosecution has perhaps another hour and ten minutes.

THE PRESIDENT: I guess we’d better proceed for about a half hour.

GENERAL TAYLOR: Before concluding. Your Honor, I made the suggestion to inquire whether the translators still have enough German pages left to continue.

************

mr. Frank advised me they have only five pages they have translated, and with a break of ten minutes we probably would be able to get the rest of the German up here so that we will be able to go through without a break.

THE PRESIDENT: The court will recess for ten minutes.

(A recess was taken)

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THE MARSHAL: The Tribunal is again in session.

THE PRESIDENT: General Taylor, before you continue with your opening statement, may I enquire – I started to say before you conclued[sic] your opening statement, may I enquire as to whether or not you will be able to conclude this afternoon and give us time for the submission of these motions?

GENERAL TAYLOR: Yes, Your Honor, we will be finished before four o’clock?

THE PRESIDENT: Very well.

GENERAL TAYLOR: I would like to explain, Your Honor – that the responsibility for the delay in translation is mine and not the interpreters. I did not give them this material until very late yesterday, and they have done very well to get it ready by now.

Before concluding, the prosecution wishes to outline its views on certain legal questions which are sure to be discussed in the course of this trial. No doubt the Tribunal may desire a fuller discussion of these matters at a later date, but we think that a few remarks at this time may be of assistance.

Certain points may be passed over briefly. The defendants may contend, for example, that the crimes charged against them were committed under the compulsion of orders from their military superiors. As has been stated, their own military law is to the contrary. Paragraph 7 of the German Military Penal Code

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So far as the plea of mitigation is concerned, should any of the defendants succeed in bringing themselves within the scope of this provision, the prosecution will suggest that it has little, if any, application to persons holding the high military rank of these defendants. There may be room for application of this provision in the lower ranks of the military, but if it is to be applied to fieldmarshals[sic] and generals, the whole doctrine of responsibility for the commission of war crimes would be absurdly limited and rendered totally ineffective. And, as the International Military Tribunal declared in finding Keitel and Jodl guilty.1

Superior orders, even to a soldier, cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly, and without military excuse of justification.

But there are a few legal matters which have a more substantial bearing in this case. These include the principles of international law and the qualifications of belligerents. We do not believe that these principles will have any decisive bearing on the outcome of this proceeding; no doubt there are many delicate and unsettled questions pertaining to hostages and belligerents, but the defendants so frequently, so deliberately, and so far transgressed the outer-most boundaries of what might be justified or defended as not unlawful, that in the final analysis no such difficult problems will confront us.

I will deal first with Hostages and Reprisals:

The concepts of "hostage" and "reprisal" both derive from relations between nations, or between their opposing armed forces, and not from the relations between a nation or its armed forces on the one hand and the civilian population of an occupied territory on the other. This circumstance is not infrequently overlooked, and perhaps accounts for the lack of precision in much of the writing on these subjects. In war time, reprisals are actions taken by a nation or its agents in order 

1. Vol. 1, Trial of the Major War Criminals, pp. 291, 325.

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to prevent an enemy from continuing to violate the laws of war. Thus, if on one side, hospital ships are constantly being attacked, or the protective symbol of the Red Cross ignored, the other side in[sic] entitled to take action by way of reprisal in order to dissuade the enemy from continuing his lawful course of conduct. Retaliatory action so taken may include actions which would themselves be violations of the laws of war but for the circumstance that the acts were done as legitimate reprisals. Reprisal actions need not be identical with the unlawful act which gave rise to the reprisals, but they should not in quantity or character, be out of keeping with or disproportionate to the enemy actions which they seek to stop. Reprisals may, in some circumstances, be taken against a civilian population of an enemy country. For instance, if the belligerents are each occupying a portion of the others’ territory, and one of them mistreats the inhabitants in a matter not permitted by international law, the other belligerent might take similar action in the territory under its occupational control. But in such a case, the penalties would be inflicted upon the civilians of the enemy country for the purpose of per suading[sic] the enemy government to discontinue an unlawful course of action, and not for the purpose of punishing the civilian inhabitants themselves. Indeed, it is basic to the law of reprisals that although they are in a sense retaliatory, their purpose is not revenge but correction of the enemy’s behavior. 1

The practice of taking or exchanging hostages is very ancient; its original purpose was to insure the performance on both sides of treaties or agreements mutually entered into. The hostages were in the nature of a pledge offered to guarantee a certain course of behavior. In more recent time, hostages have been taken not only to

1. Oppenheim, International Law, Vol. 2, pp. 51-52 (1920).

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secure the performance of treaties, but also to enforce the payment of requisitions, to protect or secure the return of individuals held by the enemy, and for other like purposes. It will be observed that, at bottom, the purpose of taking hostages is to put oneself in a position where reprisals can be taken if the enemy (or, in time of peace, the other party to the agreement) does not follow a lawful or an agreed upon course of action. It is for this reason that a distinguished author in the field of international law has said "the whole question of hostages is bound up with the question of reprisals."1.

1. J.M. Spaight, War Rights on Land, p. 469 (1911).

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Beginning with the France-Purssian[sic] war of 1870-71, and probably before that, it has frequently occurred that hostages are taken from the civilian population of an occupied territory, not in order to affect the course of conduct of the government to which these civilians owe allegiance, but in order to control the conduct to conduct [sic] of the civilian inhabitants themselves. This practice has been most frequently adopted by the Germans, for no other reason than that during the last eighty years, they have been most frequently in the situation of occupying the territory of belligerent adversary. However, other nations have from time to time taken hostages for this purpose ,[sic] most noticeably the British during the Boer War. 

The practice of taking hostages from the civilian population of an occupied territory in order to insure the peaceful behavior of the inhabitants has been much criticized, 1 but is acknowledged as lawful by the great majority of text writers and, in the light of actual practice it certainly can not be considered as a war crime. But the taking of hostages for such a purpose is not, strictly speaking, a reprisal at all, because it is not "a measure which is especially aimed at the enemy’s method of waging war and which aims to force the enemy government or armed forces to abandon measures which are contrary to the laws of war."2 Although frequently called a reprisal, such a taking of hostages is really a "police" or "security" measure. There is no opposing government or Military Commander with whom the occupying 

1. Hyde, International Law, Vol. 3, pp. 1902-03 (1945); "While the taking of hostages by the occupant may, under certain circumstances, operate as a reasonable mode of securing compliance by a restive population with a just demand designed to promote the maintenance of order, occurrences in the course of World War 1 encourage the conclusion that it is also a weapon likely to be employed by a despot to check interference of any sort with ruthless and cruel acts inspired by caprice."

2. Ascan Lutteroth, Der Geisel im Rechtsleben, p. 243 (1922).

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power can deal on belligerent terms. From both a military and legal standpoint, the taking of hostages or any other kind of oppressive action for the purpose of maintaining order in occupied territories must be considered from the standpoint of the right and responsibilities of the inhabitants under international law, and the probably effect of the measure upon their course of conduct. Steps which might be quite effective in order to persuade an enemy government

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to alter its course of conduct might be quite ineffective when addressed to the inhabitants of an occupied territory, and vice versa. As Professor Lauterpacht, Professor of International Law at Cambridge University and a scholar who is both

distinguished and modern, has pointed out:1

.....the impact of the operation of reprisals is not as considerable as would appear at first sight. In particular, it does not seriously affect that most potent source of war crimes which originates in the lawlessness and the brutality of the occupying State.

This brings us to the question whether, if hostages are taken to insure peaceful and orderly behavior on the part of the civilian population of an occupied territory, the hostages may lawfully be executed if violent conduct by members of the population continues to endanger the security of the occupying forces. The Hague regulations of 1907 do not contain any express provisions concerning either the taking or execution of hostages in occupied territory. They do provide, however, in Articles 43 and 46, respectively, of the Annex to the Convention, that:

The authority of ligitimate[sic] power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented the laws in force in the country.

Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.

And, if these quoted provisions are not governing, we must take full account of the declaration in the preamble to the Hague Convention, that:

1. H. Lauterpacht, The Law of Nations and the Punishment of War Crimes, printed in "the British Year Book of International Law", p. 77 (1944)

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It has not, however, been found possible at present to concert Regulations covering all the circumstances which arise in practice:

On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

The majority of the text writers in the field of international law, ancient and modern, have determined, either from the unwritten usages of war, or by clear implication from the language of the Hague Convention, that the killing of hostages, under the circumstances and for the purposes with which we are here concerned, is unlawful, and that the continued confinement of hostages ia[sic] as far as the occupying power is permitted to go. For example, Oppenheim sanctions the taking of hostages by the occupying power only "provided that he does not kill them."1 The classical statement by Crotius that "hostages should not be put to death unless they have themselves done wrong"2 is in accordance  ith[sic] the views of other old authorities  and has been echoed in more recent times not only by Oppenheim but by Garner3

1. Oppenheim, op. cit. supra, Vol, 2, pp. 241-242.

2. Crotius, De Jure Belli Ac Pacis, Ch. XI, Art. XVIII, Sec. 1.

3. J.W. Garner, International Law and the World War, Vol. 1, pp. 306-311 (1920)

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and others,4 As might be expected, in view of the German propensity for occupying the territory of neighboring countries, and the sustained practice of the German Army in recent decades, German scholars take the contrary view, and defend the execution of hostages as a necessary measure in the event of continued civil disturbances, dangerous to the security of the occupying forces.5 A few  English and American writers have expressed agreement with this view and argue, theoretically rather than practically, that there is a fundamental absurdity in taking hostages if they can not be executed. 1

The military Field Manuals of the United States and England do not throw much light upon this problem.  The American manual states that "hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy forces or people may be punished or put to death if the unlawful acts are nevertheless committed," but in practically the same breath states that "when a hostage is accepted, he is treated as a prisoner of war," and that "reprisals against prisoners of war are expressly forbidden by the Geneva Convention of 1929." 2 The British manual is not entirely clear either, but it contains the declaration that hostages are to suffer captivity, not death, if an agreement is violated. 3

Despite these conflicting views in years gone by, the results of German practices with respect to hostages during the last two wars has led to more definitive declarations in accordance with the opinion

_______________________

4.   Sec, e.g., Arthur K. Kuhn, The Execution of Hostages, in "The American Journal of International Law", pp. 271-274, April 1942.

5. Waltzog, Recht der Landkriegsfuehrung, Art. 46, Par. III; Lutteroth, op. cit. supra, pp. 264-267, where, however, the author acknowledges that the majority view is to the contrary.

1. Hammer and Selvin, The Taking of Hostages in Theory and Practice, in "The American Journal of International Law", pp.20-33, January 1944.

2. Rules of Land Warfare, pp. 89-90, (1940).

3. English Manual of Military Law, par. 461.

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which most authorities have always upheld.  In January 1942, the representatives of nine European governments-in-exile, in the famous St. James Declaration, branded the execution of hostages as "part of a regime of terror" and categorically described such executions as punishable war crimes.4 The London Charter, in Article 6 (b), and Control Council Law No. 10 in paragraph 1 (b) of Article II, both recognize the "killing of hostages" as a war crime.  The opinion of the International Military Tribunal makes repeated references to the killing of hostages as a war crime.5

The prosecution suggests to the Tribunal that the execution of hostages, under the circumstances pertinent to this case, is quite definitely and clearly a crime under international law.  The provisions of Law No. 10 are only binding upon the Tribunal, but are in accordance with the views which most authorities in the field have held for decades past.  But in urging the rightness of this conclusion, the prosecution does not rely principally on the weight of authority, however impressive.  On the contrary, our position is based squarely upon practical considerations of military necessity.  The fundamental tenet of the laws of war, as we said at the outset, is that human life should not be taken unnecessarily.  Over the past decades, only the Germans have adopted a general practice of executing civilian hostages in order to maintain security in occupied territories.  Occasional examples in the military history of other western nations may perhaps be found, but there is absolutely no footing, either in the authorities or in practical experience, for the conclusion that the execution of hostages is ever really necessary.  And, if not, such executions are in flat contradiction of Article 46 of the Annex to the Hague Conventions.

____________________

4. See Kuhn, op. cit, supra, p. 274.

5. Judgment of the International Military Tribunal, Vol. I, Trial of the Major War Criminals, pp. 227-228, 234, and 290.

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The short and conclusive answer to this much-mooted question is that the execution of hostages practically never achieves its intended effect.  If the practice is once adopted on a systematic scale, it deteriorates rapidly into a barbaric blood bath.  The officers and men of an occupying force will always find it easier to take vengeance on innocent civilians who can be readily rounded up than to track down the actual perpetrators and bring them to justice; it is only human nature, though scarcely a credit to it, that once the taking and killing of hostages is sanctioned, efforts to apprehend the real offenders will be slackened, and repeated breaches of security will be countered only by ever greater slaughter of hostages.  Furthermore, the execution of hostages, far from frightening a rebellious people into submission, tends rather to deepen their hatred for the invaders and provoke them to renewed outbursts.

Even the timid and quiescent will be driven to resist, not so much out of patriotism, as because they are no longer sure that good behavior will safeguard their own security.  When hostages are geing [sic] executed at the rate of 100:1, there is no security for anyone.  If women and children and old men of the most pacific disposition are liable to be put away in concentration camps and eventually executed because of violence in the surrounding countryside, they will soon feel much safer in the ranks of the insurgents than anywhere else.

And that is just what happened in the countries with which we have been chiefly concerned today.  The truth of what I have just said should have become apparent to the Germans within a matter of weeks after large scale military operations in Yugoslavia had been concluded, It did become apparent to some of them, but they were not listened to.  As early as the 31st of July 1941, a German lieutenant colonel in Belgrade wrote a report to the defendant List in which he said:

Though nothing is said publicly about the shooting of Jews and Communists as reprisal for acts of sabotage, these shoot-

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ings have, however, made a deep impression in Belgrade.  It is doubtful whether the shooting will prevent a repetition of acts of sabotage.  The saboteurs are to be looked for in the camp of the former Serbian officers, of the Cetniks as well as of the Communists, who have the common interest of creating unrest in the country and stirring up the population to boiling point against the occupation authorities.  For their purpose the shooting of people who did not directly participate in the acts of sabotage is actually welcome.

One week later, another report from Belgrade stated: 

Reprisal measures, as for instance the severity of the shooting of 81 prisoners collected haphazardly did not bring out pacification nor did it serve as an intimidation.  On the contrary, the feeling of being plundered, chased away, or slaughtered with wife and child, either by criminal Ustaschi people in Bosnia or Herzogowina, or by robber elements, or to lose life and property as the casual object of reprisal at the hands of the Germans, has embittered and made desperate the otherwise quiet and politically indifferent and loyal parts of the Serbian population, who are automatically driven into the ranks of some kind of insurgent groups.

The German civil authorities in Belgrade were of the same opinion.  A report dated 20 August, 1941, by an official of the Ministry of Interior to the Military Commander in Serbia, disclosed the following:

A German officer- a captain- was killed from ambush on the road Arandjelovak-Topola, 4 kilometers from Arandjelovac near the village of Banja on the morning of 16 August.  The officer was going on duty by car to Belgrade.  The offense was committed by a Communist who has remained unknown.  This Communist had been lying in ambush in the cornfield and had fled through the corn to the woods after committing the deed.

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Eleven young farmers working in the fields were captured and shot for this murder by the Germans at the place of the incident, a state of siege was declared for the entire district.

In order to combat Communist operations which had got out of hand during the last few days, the German headquarters sent a notorized [sic] assault troop which is at present going through all the villages, making arrests and - due to ignorance of the situation- is killing innocent men, women, and children.  All this is done on their own initiative, without inquiries and without any kind of close cooperation with the Administrative authorites at the Gendarmerie, although such cooperation is an absolute necessity for the combating of the Communsit action and for exterminating the Communists in the woods.  The District Office has available reports from which the movements of the Communists could be established and it also has at it's disposal all personal data of the individual Communists.  However, the German headquarters does not request anything nor does it ask the District Administration for any information, and is opposed to taking any suggestion;

The consequence of the procedure of the German assault troups will be that a large number of innocent people will be slaughtered and that the Communists in the woods not only will not be exterminated but will increase in numbers.  Because many farmers, even entire villages - even though up to now they had no connection with the communists - will flee into the woods only out of fear and will be received there by the Communists.  They will be provided with arms and used for combat and for open revolt against the German Wehrmacht.  This insurrection will develop on a large scale and will have incalculable and terrible consequences for the entire population.

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There was no lacke of these warnings.  With respect to reprisal shootings carried out in the town of Kragujevac, the local German commandant, a captain,  reported to the Military commander in Serbia: 1

_________

1.  It goes without saying that even those commentators who have defended the principle of executing hostages on the ground of military necessity make no defense of the German Army's practice of this principle.  See Hammer and Salvin, op. cit. supra. pp. 26, 27-28, and 32; see also Stewell, Military Reprisals and the Sanctions of the Laws of War, in "The American Journal of International Law" (1942)

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According to my standpoint, shooting partly or completely innocent persons from this city can have directly harmful effects.  It is to be expected that embittered relatives of those shot will not practice acts of revenge on members of the German Wehrmacht.

Sabotage acts on drinking water and on the current temporary light supply, as well as a large attack of the bandits against the city, in which the units could suffer more losses than before, are not out of the realm of possibility.  Above all, the psychological effect will be catastrophic.  The residents of Kragujevac have expected of the German Wehrmacht the elimination of the Communist danger and the aligning into the new construction of Europe.  With the methods used here, we shall not attain in any case the winning again of the favorably-inclined elements.

Two years later, the same Cassandra-like prophesies are found in the documents.  No one can ever say that these defendants were not warned.  In July 1943, Glaise-Horstenau, the German Plenipotentiary-General in Croatia, strongly admonished the German Air Force for reprisal actions by way of bombing villages, because, I quote, Wit only forces additional adversaries 'into the woods', and it does not help to pacify the country, but is detrimental and shakes the confidence in the German soldier of those parts of the population which are of good will".  But not until December 1943 did the German military leaders in the Balkans even pay lip service to these truths.  Finally, Loehr's order of that month recognized that, and I quote:

"The procedure of carrying out reprisal measures after a surprise attack or an act of sabotage at random on persons and dwellings, in the vicinity, close to the scene of the deed, shakes the confidence in the justice of the occupying power and also drives the loyal part of the population into the woods."

But even this order was, in other aspects, so ambiguous that it did little to change these stupid and cruel policies.  The slaughter of the innocent continued and the Germans reaped only a harvest of dragons' teeth.

The second set of principles of international law which are worthy of preliminary discussion at this time are those pertaining to the qualifications of belligerents.  Under what circumstances are combatants entitled to belligerent status?  Under what circumstances must they, if

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captured, be treated as prisoners-of-war, and under what circumstances may they be treated as a meree [sic] armed band and disposed of by summary execution?  These questions are especially relevant to Count Three of the indictment.

The Hague Regulations do deal with this question in Article 1 of the Annex which provides:

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.

These requirements are traditional and generally accepted.  To the extent that captured partisans in Gr[ee]ce and the Balkans did not observe then, we may concede that the Germans would have been within their rights in denying them the status of prisoners-of-war and executing them.1 But this does not mean that all of us here in the courtroom could here and now form ourselves into a military company, choose a commander, wear a distinctive emblem, carry arms openly, and obey the laws and customs of war, and on that basis alone claim the right here and now to wage warfare and the status of prisoners-of-war of captured.

Obviously, the members of an armed group can not claim the status and rights of belligerents until a war has started.  The determination of the starting point of a war may sometimes present problems, but ordinarily the far more difficult question is to ascertain when a war has stopped.  In accordance with "the laws of humanity and the dictates of the public conscience", it is desirable that wars be stopped as soon as possible, and under some circumstances it may be wise to adopt a

____________

1. Except insofar as the provisions of Article 2 of the Annex, relating to the so-called "levy on masse" may have applied, and except insofar as the Germans themselves, by commiting [sic] the crime of waging aggressive war and, in their own operations, departing from the laws and customs of war, may have deprived themselves of the right to demand compliance with Article 1 on the part of the partisans.

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fairly rigorous attitude when major military operations have come to and end, and declare that, after the signing of a treaty or armistice, the inhabitants of the defeated and occupied country, civilians and former soldiers alike, no longer have the right to carry on warfare and can not claim the status of belligerents.

On the other hand it can be, and is, often argued cogently and with the benefit of many examples from history, that nations can rise from apparent total defeat, long after the capitulation of their own former government, expel the invader, and ultimately achieve victory.  As long as there is hope and particularly if there are strong allied nations as yet undefeated, true patriots of the conquered country will continue to offer desperate resistance to the invader, no matter what armistice or treaties may have been concluded with him.

The argument between the proponents of these two divergent approaches to the problem has been waged briskly ever since the representatives of the European powers met at Brussels in 1874 to formulate a code of war.  In general, the powerful countries with larges armies have tended to favor strict qualifications for belligerent status, and the smaller powers a very much more liberal set of rules.1 It goes without saying that the Germans have been in the vanguard of the former group of powers.

The International Red Cross has consistently sought to extend the protection of the laws of war to the members of all substantial armed groups who meet the requirements of Article 1 of the Annex to the Hague Conventions.2 We can not, in this proceeding, settle this therny and complicated problem.  And we do not need to.

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1. An excellent discussion of these questions is contained in Nurick and Barret, Legality of Guerrilla Forces in the Laws of War, in "The American Journal of International Law", pp. 563-583 (July 1946.)  See also I.P.Training, Questions of Guerilla Warfare in the Law of War, in the same publication at pp. 534-562.

2.  Rapport sur l’activite du Comite international de la Croix-Rouge en faveur des "partisans" tombes aux mains de l’ennemi, Geneva, October 1946.

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To begin with, it will be quite clear that the war did not end in Yugoslavia in April or May, 1941.  Article 42 of the Annex to the Hague Conventions states very clearly that:

A. A territory is considered occupied when it is actually placed under the authority of 

the hostile army.  The occupation extends only to the territory where such authority has been established and can be exercised.

The second sentence quoted above is of special importance.  No doubt the Germans, had they so chosen, could have left sufficient troops in Yugoslavia to establish their authority throughout the country.  But they chose not to do this.  They were pre-occupied with the forth-coming campaign in Russia, and pulled out their troops before hostilities had been fully concluded in practical effect and while large portions of the country, particularly in the mountains, were controlled by substantial enemy forces who announced openly that they would continue to resist.  Whatever might be the rule in other circumstances, it was not open to the Germans to sweep through Yugoslavia, evacuate the bulk of their troops before their authority had been fully established, and then declare that all future resistance would be considered a violation of the laws of war.

Furthermore, the cause of the Yugoslavian and Greek resistance forces was at no time hopeless, as events have been abundantly proved.  Governments-in-exile were promptly established, under whose authority these forces continued their operations, indeed, long before the end of the war, there was an enemy government within Yugoslavia.  Powerful allies of the Yugoslavs and Greeks continued to maintain armies in the field and to assist the resistance groups.  

Furthermore, if we look at the question as presented in the case from a practical standpoint, we again discover that the case is not nearly so difficult as it seemed at first blush.  If resistance forces consist only of a few small bands, whose activities are limited to sniping and minor sabotage and who enjoy no support from other powers, there may indeed be reason for denying them the status of belliger-

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ents.1 But there can be no reason for such a policy when the enemy remains in large numbers, and fights in large units and with modern weapons.  To deny his troops the status of belligerents under such circumstances will merely invite counter-reprisals against troops of the occupying power, and a senseless war of extermination may ensue.  Even more important, such a policy will inevitably rally more and more inhabitants of the occupied country to the standard of the resistance forces.  These very arguments were presented to Loehr and Leuters by Colonel Heinz, Commander of the 4th Brandenburg regiment, in July 1943.  Discussing the impossibility of capturing Tito and his staff by orthodox military action, Heinz declared:

Such an elimination can only be achieved by former partisans in cooperation with the 

Brandenburg regiments.

The method followed up to now of shooting to death all partisans without distinction, 

could never be successful.  Many became partisans by the combined influence of several circumstances such as Ustaschi-Moslem-or Cetnik-atrocities, want and starvation, terror and duress by other partisans.

They stay partisans because the way back is blocked by the German orders.  They have lost their country and their family, and so they fight to their death.

Since the political conditions in Croatia are not improving, new partisans replace those who are killed.

According to observations of my troop, it would have been possible to win over a certain percentage of the captured partisans for fighting on the German side, if their lives were spared and food, as well as their return to their homesteads later on, were guaranteed.

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1.  But the distinguished jurist, Oppenheim, would not even agree with this statement, Oppenheim, International Law, Sec. 60 (1928).

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15-July-A-JP-22-1-Stone (Int. Frank)
Court V Case VII

But the final and compelling answer to the question as it is presented in this case is that the Yugoslavs and Greeks alike, even assuming that they were completely conquered and their country wholly occupied and under German authority, had every right to rise and defend themselves by armed force because the German themselves so flagrantly violated the laws of war.  True it is that the inhabitants of an occupied territory have responsibilities and duties as well as rights under the Hague Conventions.  If the occupying forces comport themselves lawfully, the population is under a duty to remain peaceful and to refrain from endangering the security of the occupation troops.  If the inhabitants do not fulfill these responsibilities, the occupying forces may take proper security measures, including retaliatory action, to re-establish order.  But this works both ways.  If the occupying forces inaugurate a systematic program of criminal terror, they can not thereafter call the inhabitants to account for taking measures in self defense.  This is no technical doctrine of "unclean hands", this is elementary justice and common sense.  What I have said nowhere appears in so many words in the Hague Conventions, but it is in entire harmony with the purpose of the articles, and I think no one will be heard to deny that this is the only conclusion which is possible in accordance with "the principles of the law of nationa [sic], as they result from the usages established among  civilized peoples, from the laws of humanity, and the dictates of the public conscience."

In this case, ten thousand times ten thousand murders are charged, and for murder there is usually a motive.  When moved these men to murder?  Some of them religious, most of them well-educated.  Some of them may now realize what they did was wrong, but, had the war ended otherwise than it did, I doubt that these things would have caused them many restless nights.  Their policy of terror was a military failure, and an important cause of the defeat which has brought them to their present plight.  Yet these men are certainly not without ability and some measure of understanding. Why did they not see what

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others see clearly?

I think that we can find the answer in two deep-seated characteristics of the German military mind.  Whether the characteristics prove the inheritance of acquired characteristics, whether they spring from undiscernible [sic] geophysical factors, or whether they are the result of the curious and narrow training and indoctrination to which German officer candidates are subjected, one may leave to the eductors [sic] historians, psychologists and anthropoloigists.  Today is the day of the jurists, and today it is sufficient to observe that the characteristics of which I speak and led these men, and others of their caste, into crime. 

One of these qualities is that their every thought and impulse is geared to a world in which Germany is at war, in which Germany is attacking and invading, in which Germany is conquering and occupying.  Lacking such conditions, their world is in a state of suspended animation.  Their martial fantasies have permeated German scholarship and, by the latter part of the nineteenth century, had thoroughly poisoned the most distinguished German minds.  It was the great German historian and philosopher Treitschke who declared:1

It is not for Germans to repeat the commonplaces of the apostles of peace or of the priests or Mammon, nor should they close their eyes before the cruel necessities of the age.  Yes, ours is an epoch of war, our age is an age of iron.  If the strong get the better of the weak, it is an inexorable law of life. 

For the German militarist, other nations exist only to be conquered by Germany.  They persist in the illusion that other nations will benefit thereby, and are often sincerely puzzled when their occupying armies are treated coldly.  This, too, we find Treitschke:1a

We Germans, who know Germany and France, know better what is good for Alsace than the unhappy people themselves, who through their French associations have lived in ignorance of the new Germany.  We will give them back their own identity against their will.  We have in the enormous

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1.  J.H. Morgan, The German War Book, p.42 (1915)

1a.  Morgan, op. cit. supra, p. 46

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changes of these times too often seen in glad astonishment the immortal working of the moral forces of History to be able to believe in the value of a plebiscite on this matter.  We invoke the men of the past against the present.

With such a point of view towards war and the rights of German conquerers, [sic] it is no wonder that German military leaders have little or no respect for the laws of war or the dignity of peoples who may come under their way.  This is because they do not value, and in fact are contemptuous of, the reasons which underlie those rules.  "If the strong get the better of the weak, it is an inexorable law of life."  This attitude shows only too clearly in the "German War Book" -- the manual of usages of war on land, issued by the Great General Staff (Gorss General Stab) of the German army.  In the introduction to this manual, we read:1

Nowadays it is not only the army which influencessthe [sic] spirit of the customs of war and assures recognition of its unwritten laws.  Since the almost universal introduction of conscription, the people themselves exercise a profound influence upon this spirit.  In the modern usages of war, one can no longer regard merely the traditional inheritance of the ancient etiquette of the profession of arms, and the professional outlook accompanying it, but there is also the deposit of the currents of thought which agitate our time.  But since the tendency of thought of the last centyry [sic] (i.e. the 19th century) was dominated essentially by humanitarian considerations which not infrequently degenerated into sentimentality and flabby emotion, there have not been wanting attempts to influence the development of the usages of war in a way which was in fundamental contradiction with the nature of war and its object.  Attempts of this kind will also not be wanting in the future, the more so as these agitations have found a kind of moral recognition in provisions of the Geneva Convention and the Brussels and Hague conferences.

In this case, the second marked characteristic of the German officer caste come into sharp focus - their profound contempt, mingled with fear, of the peoples of Eastern Europe.  Again and again this emerges in the orders to their troops and the reports to their superiors.  We hear this note in Keitel’s order of September, 1941, declaring that "a human like in unsettled countries frequently counts for nothing".  Von Weichs, when he inaugurated the 100:1 ratio a few

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1.  Morgan, op. cit. supra, p. 54

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months earlier, responded to the same inner feeling.  These orders, too, are echoes of Treitschke, whose voice, spanning over half a century, is heard to say:1

Each dragoon who knocks a Croat an the head does far more for the Germans cause than the finest political brain that ever wielded a trenchant pen.

What these men have never realized is that no caste, and not notion, however mighty, can hold the world  in contempt and set its laws at naught.  Their military downfall was due, in no small part, to crimes such as those with which they are charged.

What we have said may explain, but it does not condone.  We may try to understand, but it is not ours to forgive.  What these men did they meant to do.

There are only 11 men physically present in the dock, but they do not stand there alone.  In a sense, they are hostages for the judgment which history will pass on many others like them.  But they are more fortunate than the hostages we have heard so much about today.  They will not be punished for the crimes of other men.  Centuries ago, Grotius wrote that "hostages should not be put to death unless they have themselves done wrong."  That is the law of humanity, the law which they themselves are charged with transgressing.  And that is the law under which they will be judged.

GENERAL TAYLOR:  This concludes the statement, your Honor.

THE PRESIDENT: This, I take it, concludes the Opening Statement on behalf of the Prosecution.  The Prosecution having stated that this concludes that portion of these proceedings, the Court will now give consideration to certain motions which have been presented to it concerning procedural matters, and a motion for continuance or adjournment for a certain period of time.  The first motion which will receive consideration is that concerning the request for ferment of these 

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1.  Garner, op. cit. supra, p. 43.

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