On 9/3/1944, Finland negotiated a separate peace with Russia and demanded that the German troops withdraw from Finland within 14 days, a demand with which it was impossible to comply. The result was that the two army corps to the South were obliged to fight their way out of Finland. This took 3 months time. The distance to the Norwegian border required about 1000 kilometers of travel over very poor roads at a very inopportune time of year. The Russians attacked almost immediately and caused the Germans much trouble in extricating these troops. The XIX Corps located on the Arctic coast was also attacked in its position about 150 kilometers east of Kirkenes, Norway. The retreat into Norway was successful in that all three army corps with their transport and equipment arrived there as planned. The difficulties were increased in middle 10/1844 when the four best mountain divisions were recalled to Germany, thereby reducing the strength of the army by approximately one-half.
The evidence shows that the Russians had very excellent troops in pursuit of the Germans. Two or three land routes were open to them as well as landings by sea behind the German lines. The defendant knew that ships were available to the Russians to make these landings and that the land routes were available to them. The information obtained concerning the intentions of the Russians was limited. The extreme cold and the short days made air reconnaissance almost impossible. It was with this situation confronting him that he carried out the "scorched earth" policy in the Norwegian province of Finmark which provided the basis for this charge of the indictment.
The record shows that the Germans removed the population from Finmark, at least all except those who evaded the measures taken for their evacuation. The evidence does not indicate any loss of life directly due to the evacuation. Villages were destroyed. Isolated habitations met a similar fate. Bridges and highways were blasted. Communication lines were destroyed. Port installations were wrecked. A complete destruction of all housing, communication, and transport facilities took place. This was not only true along the coast and highways but in the interior sections as well. The destruction was as complete as an efficient army could do it. Three years after the completion of the operation, the extent of the devastation was discernible to the eye. While the Russians did not follow up the retreat to the extent anticipated, there are physical evidences that they were expected to do so. Gun emplacements, fox holes, and other defense installations are still perceptible in the territory. In other words there are mute evidences that an attack was anticipated.
There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal. After giving careful consideration to all the evidence on the subject, we are convinced that the defendant cannot be held criminally responsible although when viewed in retrospect, the danger did not actually exist.
The Hague regulations prohibited [Annex to Hague Convention No. IV, 1907, Article 23g. (Treaties Governing Land Warfare, United States Army Technical Manual 27-251, 1944, p. 25.)]:
"To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war."
The Hague Regulations are mandatory provisions of international law. The prohibitions therein contained, control, and are superior to military necessities of the most urgent nature except where the Regulations themselves specifically provide the contrary. The destruction of public and private property by retreating military forces which would give aid and comfort to the enemy may constitute a situation coming within the exceptions contained in Article 23g. We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time. The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions. These things when considered with his own military situation provided the facts or want thereof which furnished the basis for the defendant's decision to carry out the "scorched earth" policy in Finmark as a precautionary measure against an attack by superior forces. It is our considered opinion that the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgment but he was guilty of no criminal act. We find the defendant not guilty on this portion of the charge.
The evidence establishes the guilt of the defendant Rendulic on counts one, three, and four.
The defendant Dehner was assigned as the commander of the LXIX Reserve Corps in the last days of 8/1943. He held this command until 3/15/1944. The corps was stationed in northern Croatia and occupied about one-third of that country. The corps consisted of the 187th Reserve Division, the 173d Reserve Division, and other units which were subordinate to it for varying periods of time. The chief task of this corps was to suppress the guerrilla bands operating in the territory and particularly to guard the Zagreb-Belgrade railroad and the communication lines in the assigned area. There was no coastline to guard in the area of this corps.
The defendant is charged primarily with the unlawful killing of hostages and reprisal prisoners, and with the wanton destruction of towns and villages contrary to international law. With reference to the alleged unlawful killing of hostages and reprisal prisoners, we point out that all the incidents set forth in the portion of the opinion dealing with the defendant Rendulic were committed by troops of the 173d and 187th Reserve Divisions both of which were directly subordinated to this defendant. No necessity exists to reiterate these incidents here. They will be incorporated as a part of the case against the defendant Dehner by reference. Numerous occurrences took place in addition to the foregoing.
In the daily report of the LXIX Reserve Corps to the 2d Panzer Army for 11/5/1943, it is shown that the 173d Reserve Division hanged 100 bandits for an attack on railroad installations and on certain police forces. This action from the language used appears to have been a retaliation measure and not a shooting of francs-tireurs. That is was excessive as such is self evident. In a similar report dated 11/7/1943, it shows that the 173d Reserve Division hanged 19 Communists at the scene of a railroad explosion in reprisal for the act. On 11/8/1943, this same division shot 21 hostages as a reprisal for railroad sabotage. A similar report shows that the 187th Reserve Division on 12/21/1943, shot 25 people "suspected of being bandits" and hostages as a reprisal for band attacks.
The reports made are hopelessly inadequate. The defendant appears to have made no effort to require reports showing that hostages and reprisal prisoners were shot in accordance with international law. Killings by shooting and hanging took place for railroad sabotage out of all proportion to the nature of the offense. Retaliation was taken against special groups such as Communists and bandit suspects. The population does not appear to have been warned of the intention to kill hostages and innocent members of the population in the event of the recurrence of offenses against the occupying power. The reprisals appear to have been taken without regard to any possible connection of the population with the offense committed. Hostages were shot and reprisal prisoners killed when it was well known that the offenses for which retaliations were ordered, were committed by organized bands having no connection whatever with the immediate population. Innocent members of the population were shot in reprisal for German losses sustained in combat after the Fuehrer order of 8/18/1943, [NOKW-509, Pros. Ex. 340] authorizing the treatment of band members as prisoners of war. No more glaring injustice can be pointed to, it being a case where the guilty escape and the innocent are put to death. Court martial proceedings do not appear to have been held. The defendant excuses his indifference to all these killings by saying that it was the responsibility of the division commanders. We agree that the divisional commanders are responsible for ordering the commission of criminal acts. But the superior commander is also responsible if he orders, permits, or acquiesces in such criminal conduct. His duty and obligation is to prevent such acts, or if they have been already executed, to take steps to prevent their recurrence.
The records show that this defendant had full knowledge of these acts. On 12/24/1943, his corps headquarters called attention to the fact that the order of the commander in chief of the 2d Panzer Army of 9/15/1943, was in force. This order was described in the portion of the opinion dealing with the defendant Rendulic and will not be reiterated here. It appears to us from an examination of the evidence that the practice of killing hostages and reprisal prisoners got completely out of hand, legality was ignored, and arbitrary action became the accepted policy. The defendant is criminally responsible for permitting or tolerating such conduct on the part of his subordinate commanders.
There is much that can be said, however, in mitigation of the punishment to be assessed from the standpoint of the defendant. Superior orders existed which directed the policy to be pursued in dealing with the killing of hostages and reprisal prisoners. Such superior orders were known by his subordinate commanders, a situation that made it difficult for him to act. That the defendant recognized certain injustices and irregularities and attempted to correct them is evident from the record. As an example, in an order of 12/19/1943, his corps headquarters stated (NOKW-657, Pros. Ex. 376):
"Measures of the unit have repeatedly frustrated propaganda for the enemy as planned by the unit leadership. It must not happen that bandits who arrive at the unit with leaflets asking them to desert and which should be valid as passes, are shot out of hand. This makes any propaganda effort in this direction nonsensical. Even our own confidential agents bringing important news from band territory and notwithstanding their repeated assurances that they are in the service of the German Armed Forces have been shot down 'to simplify matters', i.e., without any investigation."
The order goes on to say that under such circumstances it is not surprising that notwithstanding the discomforts of living in the woods in winter that the band nuisance increases steadily and that the fight increases in severity and stubbornness. The same order further states:
"It must be absolutely avoided that innocent people are kept in hostage camps and that they possibly atone with their lives for an affair with which they had no connection. With the exception of case [paragraph] 1a hostages are to be made responsible for the misdeeds of bands only in the neighborhood nearest to their own villages. It is not permitted, for instance, that hostages from Karlovci be used for retaliation measures in case a surprise attack by bands or a demolition occurs near Ruma."
The order further says,
"It is impossible to make use of hostages for the execution of reprisal measures for the German soldiers killed in the fight against bands. It would be contradictory on the one hand to treat active members of bands, captured during battle, as prisoners of war (Fuehrer Order, 8/18/1943), that is, to let them live; and on the other hand, to hang hostages from the next hostage camp for our own losses in the fight against bands."
The foregoing approaches closely the correct course to be pursued insofar as it bears upon the subject of hostages and reprisals. It indicates an attempt to correctly apply the rules of warfare as they apply to guerrilla warfare in occupied territory. Such examples of conscientious efforts to comply with correct procedure warrant mitigation of the punishment.
The defendant is charged, also, with responsibility for the destruction of numerous towns and villages by troops subordinate to him without military necessity existing for their so doing. The record establishes that on 10/16/1943 the 187th Reserve Division arrested the majority of the populations of the villages of Paklonica and Vocarica as hostages and then burned down the villages. The record further shows that on 9/24/1943 the 173d Reserve Division burned down the villages of Grgeteg and Bukavac. It shows also that on 11/26/1943 [NOKW-049, Pros. Ex. 356] the village of Grgurevci was burned down by troops of the 173d Reserve Division in reprisal for an attack on police from the village. Other cases of a similar character are shown by the record. Under some circumstances, the destruction of villages is a legitimate reprisal measure. The reports of these incidents are very fragmentary and give little or no details surrounding the actions. They do indicate that the acts were taken as reprisal measures and not from military necessity as that term is ordinarily used. We are obliged to say that the evidence is not sufficient to sustain a finding that these destructions were in violation of the laws of war.
We find the defendant guilty under count one of the indictment.
The defendant von Leyser was appointed to command the XXI Mountain Corps on 8/1/1944, and continued in the position until 4/1945. Immediately previous thereto he had been in command of the XV Mountain Corps, a position he had held since 11/1/1943. Other assignments involved in the present case are in regard to his command of the 269th Infantry Division in Russia in 1941 and his command of the XXVI Corps in Russia in 1942.
The XXI Corps was committed in Albania and assigned the task of guarding the coast against Allied invasion and the suppression of the resistance movement. Directly subordinate to him as commander of the XXI Corps were the 297th Infantry Division, the 100th Light Division, and other units assigned for particular operations. The XV Corps was committed in Croatia and was likewise assigned the task of guarding the coast and suppressing band activities. Directly subordinate to the corps were the 114th Light Division which was subsequently replaced with the 264th Infantry Division, the 373d Infantry Division, and the 392d Infantry Division. Other units appear to have been subordinated to the corps for specific operations.
The defendant is charged with responsibility for the unlawful killing of hostages and reprisal prisoners, with ordering and carrying out the evacuation of the male population of Croatian towns for deportation to Germany for forced labor, and the killing of commissars pursuant to the Commissar Order of 6/6/1941.
The reprisal practice as carried out in this corps area and the alleged deportation of inhabitants for slave labor is so interwoven with the powers of the alleged independent state of Croatia that its status and relationship to the German armed forces must be examined. Prior to the invasion of Yugoslavia by Germany on 4/6/1941, Croatia was a part of the sovereign state of Yugoslavia and recognized as such by the nations of the world. Immediately after the occupation and on 4/10/1941, Croatia was proclaimed an independent state and formally recognized as such by Germany on 4/15/1941. In setting up the Croatian Government, the Germans, instead of employing the services of the Farmers' Party which was predominant in the country, established an administration with Dr. Ante Pavelic at its head. Dr. Pavelic was brought in from Italy along with others of his group and established as the governmental head of the state of Croatia even though his group represented only an estimated 5% of the population of the country. This government, on 6/15/1941, joined the Three Power Pact and, on 11/25/1941, joined the Anti-Comintern Pact. On 7/2/1941, Croatia entered the war actively against the Soviet Union and on 12/14/1941, against the Allies. The military attache became the German Plenipotentiary General in Croatia and was subordinated as such to the chief of the High Command of the Armed Forces. The territorial boundaries of the new Croatia were arbitrarily established and included areas that were occupied by Serbians who were confirmed enemies of the Croats.
The Croatian Government, thus established, proceeded to organize a national army, the troops of which are referred to in the record as Domobrans. Certain Ustasha units were also trained and used. The Ustasha in Croatia was a political party similar to the Nazi Party of Germany. Similar to the Waffen SS, divisions of the Ustasha were trained and used. In addition, by an alleged agreement between Germany and Croatia, the Croatian Government conscripted men from its population for compulsory labor and military service. Many of these men were used in German organized Croat divisions and became a part of the German Armed Forces under the command of German officers.
It is further shown by the evidence that all matters of liaison were handled through the German Plenipotentiary General. It is evident that requests of the Germans were invariably acceded to by the Croatian Government. It is quite evident that the answers to such requests were dictated by the German Plenipotentiary General. Whatever the form or the name given, the Croatian Government during the German war time occupation was a satellite under the control of the occupying power. It dissolved as quickly after the withdrawal of the Germans as it had arisen upon their occupation. Under such circumstances, the acts of the Croatian Government were the acts of the occupation power. Logic and reason dictate that the occupant could not lawfully do indirectly that which it could not do directly. The true facts must control irrespective of the form with which they may have been camouflaged. Even international law will cut through form to find the facts to which its rules will be applied. The conclusion reached is in accord with previous pronouncements of international law that an occupying power is not the sovereign power although it is entitled to perform some acts of sovereignty. The Croatian Government could exist only at the sufferance of the occupant. During the occupation, the German military government was supreme or its status as a military occupant of a belligerent enemy nation did not exist. Other than the rights of occupation conferred by international law, no lawful authority could be exercised by the Germans. Hence, they had no legal right to create an independent sovereign state during the progress of the war. They could set up such a provisional government as was necessary to accomplish the purposes of the occupation but further than that they could not legally go. We are of the view that Croatia was at all times here involved an occupied country and that all acts performed by it were those for which the occupying power was responsible. With the expression of these views, we pass to the consideration of the charges made against the defendant von Leyser.
There is evidence in the record that innocent members of the population were killed in reprisal for attacks on troops and acts of sabotage committed by unknown persons by troops subordinate to the defendant von Leyser. That the defendant knew of many such killings, he admits. He denies that he ever issued an order to carry out any specific reprisal measure. He contends that this was the responsibility of divisional commanders in conjunction with Croatian Government authorities. The record discloses, however, that on 8/10/1944 the defendant issued an order containing the following:
"In case of repeated attacks in a certain road sector, Communist hostages are to be taken from the villages of the immediate vicinity, who are to be sentenced in case of new attacks. A connection between these Communists and the bandits may be assumed to exist in every case."
This order is, of course, not lawful. Reprisals taken against a certain race, class, or group irrespective of the circumstances of each case sounds more like vengeance than an attempt to deter further criminal acts by the population. An assumption of guilt on the part of a particular race, class, or group of people in all cases also contravenes established rules. This is a matter which a judicial proceeding should determine from available evidence. We must assert again, in view of the defendant's statement that the responsibility for the taking of reprisal measures rested with the divisional commanders and the Croatian Government, that a corps commander must be held responsible for the acts of his subordinate commanders in carrying out his orders and for acts which the corps commander knew or ought to have known about.
The evidence concerning the killing of hostages and reprisal prisoners within the corps area is so fragmentary that we cannot say that the evidence is sufficient to support a finding that the measures taken were unlawful. The killing of hostages and reprisal prisoners is entirely lawful under certain circumstances. The evidence does not satisfactorily show in what respect, if any, the law was violated. This is a burden cast upon the prosecution which it has failed to sustain.
The more serious charge is that pertaining to the evacuation of large areas within the corps command for the purpose of conscripting the physically fit into the Croatian military units and of conscripting others for compulsory labor service.
On 3/8/1944, the XV Mountain Corps reported to the 2d Panzer Army in part as follows:
"Operation 'Bergwiese' terminated. Final report not yet available. Another 74 able-bodied men taken into custody."
On 3/9/1944, the same division reported 332 able-bodied men in custody from the same operation. On 3/20/1944, the XV Mountain Corps reported in part as follows:
"Operation 'Illusion' carried out after refusal by German Navy. No contact with enemy, 100 able-bodied persons brought to Fiume."
On 3/21/1844, the XV Mountain Corps reported as follows:
"Intention: Harehunt code name 'Lagerleben' (taking into custody of 200 compulsory recruits 6 kilometers east-southeast of Brinje)." This whole question can be disposed of by a consideration of the operation "Panther."
Shortly after taking command of the XV Corps, the defendant formulated a plan for the evacuation of the male population between the ages of 15 and 55 from the area between Una and Korana. This territory was supposed to contain about 7000 to 8000 men who were partly equipped with arms procured from the Italians. The area had been under the temporary control of the bands to such an extent that the Croat Government had complained of its inability to conscript men for military service from the area. It was planned to crush the bands and evacuate the men and turn them over to the Croatian Government for use as soldiers and compulsory labor. The operation was designated as operation "Panther" and is so carried in the German army reports. On 12/6/1943, the 2d Panzer Army approved operation "Panther." The order of approval provided that the estimated 6000 persons fit for military service should be held in camps at Sisak and Karlovac.
The evacuation of persons fit for military service was to be known by the code name "Silberstreifen" (silver stripes). On 12/2/1943, the 2d Panzer Army ordered the operation to commence on 12/6/1943. The last sentence of the order states:
"Sending the evacuated population fit for military service to Germany for labor service is considered expedient."
The operation was carried out, but only 96 men fit for military service were captured. It is evident that the inhabitants had been warned before the operation was commenced and had left to escape capture. The defendant attempts to justify his action by asserting that the primary purpose of the operation "Panther" was the suppression of the bands, that the operation was purely a tactical one so far as he was concerned, and that the disposition of the captured population fit for military service was for the decision of the Croatian Government and not his concern.
We point out that the Croatian Government was a satellite government and whatever was done by them was done for the Germans. The captured men fit for military service were turned over to the Croat administration and were undoubtedly conscripted into the Domobrans, the Waffen Ustasha, the Croat units of the Wehrmacht, or shipped to Germany for compulsory labor just as the defendant well knew that they would be. The occupation forces have no authority to conscript military forces from the inhabitants of occupied territory. They cannot do it directly, nor can they do it indirectly. When the defendant as commanding general of the corps area participated in such an activity, he did so in violation of international law. The result is identical if these captured inhabitants were sent to Germany for compulsory labor service. Such action is also plainly prohibited by international law as the evidence shows. See Articles 6, 23, 46 of the Hague Regulations. We find the defendant von Leyser guilty on this charge.
The defendant is also charged with issuing the Commissar Order of 6/6/1941 and causing the same to be carried out while he was in command of the 269th Infantry Division in Russia in 1941. The record shows a report of the 269th Infantry Division under date of 9/28/1941 wherein it is stated:
"Special occurrences - one female commissar shot. One woman who was in contact with partisans, likewise shot."
Under date of 11/20/1941, this same division reports as follows:
"Two Russian prisoners of the 1st Battery were shot upon the order of the battalion commander. These were one commissar and one Russian high ranking officer."
On 7/9/1941, the 269th Infantry Division reported to the XLI Infantry Corps to which it was subordinated as follows:
"34 Politruks (commissars) liquidated."
This evidence clearly shows that the 269th Infantry Division, commanded by the defendant von Leyser killed commissars pursuant to the Commissar Order. This was a criminal order and all killings committed pursuant to it were likewise criminal. We find the defendant guilty on this charge.
We find the defendant von Leyser guilty on counts three and four.
The defendant Felmy had two assignments in Greece. He was appointed Commander Southern Greece about the middle of 6/1941, and continued in the position until 8/1942. During this period he had only three battalions of security and police troops subordinate to him. On 5/10/1943, the defendant became commander of the LXVIII Corps and continued in that position until the corps withdrew from Greece, an operation which was completed on 10/22/1944 In addition thereto on 9/9/1943 he assumed command of Army Group Southern Greece. He had subordinate to him the 1st Panzer Division, 117th Light Division, and a number of fortress battalions. Until the collapse of Italy, two Italian divisions were subordinate to him.
The defendant is charged with responsibility for the unlawful killing of innocent members of the population and the wanton destruction of villages and towns without military necessity existing therefor.
The defendant admits ordering reprisal measures but denies that they were unlawful. A brief review of some of these acts for which the defendant is responsible is therefore necessary. To begin with the defendant admits receiving the basic order of 9/16/1941 relative to reprisal measures up to 100 to 1 which has been often referred to in this opinion. He also received the Keitel order of 9/28/1941 relative to the taking of hostages from all sections of the population which has likewise been quoted herein. He also received and passed on the order of General Loehr, Commander in Chief Southeast, dated 8/10/1943 which states in part (NOKW-155, Pros. Ex. 306):
"In territories infested by the bandits, in which surprise attacks have been carried out, the arrest of hostages from all strata of the population remains a successful means of intimidation. Furthermore, it may be necessary to seize the entire male population, insofar as it does not have to be shot or hung on account of participation in or support of the bandits, and insofar as it is incapable of work, and bring it to the prisoner collecting points for further transport into the Reich. Surprise attacks on German soldiers and damage to German property must be retaliated in every case with shooting or hanging of hostages, destruction of the surrounding localities, etc. Only then will the population announce to the German offices the collections of the bandits, in order to remain protected from reprisal measures."
The defendant also received and passed on the order regarding reprisal measures issued by General Loehr, deputizing for Field Marshal von Weichs as Commander in Chief Southeast, under date of 12/22/1943 an order which has been previously quoted in this opinion. It says in part (NOKW-172, Pros. Ex. 379):
"Reprisal quotas are not fixed. The orders previously decreed concerning them are to be rescinded. The extent of the reprisal measures is to be established in advance in each individual case. * * * 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. This form of execution of reprisal measures is accordingly forbidden. If, however, the investigation on the spot reveals concealed collaboration or a conscientiously passive attitude of certain persons concerning the perpetrators, then these persons above all are to be shot as bandit helpers and their dwellings destroyed * * * . Such persons are coresponsible first of all who recognize communism."
The records show the following actions by troops subordinate to this defendant: On 9/9/1943 during mopping up operations of Levadeia
"as reprisal measures for one murdered German soldier, 10 Greeks hanged."
On 11/7/1943 the LXVIII Corps reports:
"18 Communists were shot in Tripolis as reprisal for railroad sabotage committed lately."
On 11/29/1943 the LXVIII Corps reports:
"As reprisal for band attack on Tripolis-Sparta road, 100 hostages shot at the place of attack."
On 12/5/1943 the LXVIII Corps reported
"50 hostages were shot in Aighion for attacks committed lately"
, and on 12/6/1943
"for attack on railroad stronghold east of Tripolis, 50 hostages were hanged."
On 12/6/1943 operation "Kalavritha" was commenced. In reprisal for the killing of 78 German soldiers, the 117th Division under the command of General von Le Suire carried out this attack. More than 25 villages were destroyed, and 696 Greeks are admitted to have been shot in reprisal. There is evidence of an eyewitness that approximately 1300 Greeks were killed in reprisal. The defendant admits that this reprisal measure was excessive and says that he orally reprimanded General von Le Suire for the severity of this reprisal measure. No reprimand or complaint as to Le Suire's conduct appears in the documentary evidence before the Tribunal.
The diary of the LXVIII Corps reports the following reprisal measures: on 11/17/1944,
"In retaliation for an attack on one officer in the Rhizaes area, 20 Communists executed";
"In Tripolis 12 well known Communists were shot as a retaliation measure for the murder of a rural police officer";
"Shooting of 200 hostages from the Tripolis hostage camp at the place of attack."
This reprisal was for two truck convoy attacks resulting in 33 German dead and nine wounded. On 3/11/1944, for an attack on an armed German convoy, General Le Suire asked and was granted permission by this defendant to shoot
"200 hostages (Communists) to be taken out of all hostage camps."
Defendant contends that only 141 hostages were actually shot. The extent of the reprisals taken in the area of the LXVIII Corps is shown
by the testimony of the defendant who says that between 7/1943 and 12/1943, 91 acts of sabotage occurred and 60 reprisals taken, and from 1/1944 to 6/1944 there was a monthly average of 55 acts of sabotage and engagements with bands.
It hardly seems necessary for us to point out that many of these reprisal killings were excessive and many were unlawful because there was no connection between the inhabitants shot and the offense committed. Reprisals were taken against special groups, such as "Communists" and "bandit suspects" without any relationship to the offense being established. The Kalavritha Operation can only be described as plain murder and a wanton destruction of property. The assertion of the defendant that he orally reprimanded General von Le Suire for the severity of this operation does not appear too convincing in view of the recommendations later made by defendant for the advancement of Le Suire to a higher command. Reprisal measures were carried out in the corps area without rhyme or reason. They became a part of the tactical campaign for the suppression of the bands in the first instance rather than as a last resort. It is plain that deterring the local population at the scene of the offense was not the primary objective. Reprisal prisoners were taken from hostage camps generally and at points distant from the place where the offenses occurred. It was more the case of an eye for an eye than an honest attempt to restrain the population by a use of hostage and reprisal measures as a last resort.
On 4/5/1944, the notorious "blood bath" at Klissura occurred. (NOKW-469, Pros. Ex. 482.) [Part of this document is reproduced in section VB.] The facts are: On the date in question an engagement between bands and German troops occurred about 2&1/2 kilometers outside the village of Klissura. After the retreat of the bands, the troops moved into the village and began searching for evidence of band support. None was found. Later in the afternoon, units of the 7th SS Panzer Grenadier Regiment entered the village and began almost immediately to kill the inhabitants. At least 215 persons, and undoubtedly more, were killed. Among these killed were 9 children less than 1 year old, 6 between 1 and 2 years of age, 8 between 2 and 3 years, 11 between 3 and 4 years, and 4 between 4 and 5 years. There were 72 massacred who were less than 15 years of age, and 7 people in excess of 80 years. No justification existed for this outrage. It was plain murder.
On 6/10/1944, troops of this same regiment carried out a reprisal measure against the inhabitants of the village of Distomon. (NOKW-467, Pros. Ex. 484.) It seems that bands were first engaged near Stiri, 5 kilometers southeast of Distomon. After the defeat of the bands, the troops returned to Distomon and shot approximately 300 of the population, including men, women, and children. It also was plain calculated murder.
A complaint was voiced by the Plenipotentiary of the Foreign Office and an investigation demanded. The defendant Felmy was charged with the duty of having the investigation made. He denies that this regiment was subordinate to him or that he had any disciplinary control over it. For the purpose of this discussion, we will accept his statement as true even though the order to investigate and report through Wehrmacht channels indicates the contrary. The point that is material here is that the investigation was made, the battle report of the commanding officer was found to be false, and the action of the regimental commander found to be in excess of existing orders. Upon the discovery of these facts the defendant Felmy recommended that disciplinary action (the method of trying minor offenses) be taken against the officer in charge in consideration of the sacrifices of the regiment in the combat area at the time. The defendant testified that he never knew what punishment, if any, was assessed against this guilty officer. He seems to have had no interest in bringing the guilty officer to justice. Two of the most vicious massacres of helpless men, women, and children appear to have met with complete indifference on his part. The falsification of the battle report by the regimental commander seems to have been deemed the major offense.
War at its best is a business but under no circumstances can cold-blooded mass murder such as these two cases establish be considered as related remotely even to the exigencies of war. The defendant's attitude toward the innocent population is reflected in his indifference to these unjustified and brutal murders which took place within the area of his command. It is a matter that goes to the question of the defendant's character, intent, and purpose in carrying out the acts for which he is charged. The responsibility of the defendant for the killing of innocent members of the population by the exercise of unlawful hostage and reprisal practices is clearly established. We find the defendant Felmy guilty on counts one and two.
The defendant Lanz was appointed to command the XXII Mountain Corps on 8/25/1943 and actually assumed the position on 9/9/1943. The corps command was, generally speaking, the Epirus area of Greece. This consisted of the area between the Gulf of Corinth and Albania lying west of the Pindus Mountains. The corps headquarters was in Ioannina. The defendant is charged with the responsibility for killing hostages and reprisal prisoners in violation of international law and with the unlawful killing of Italian officers after the Italian capitulation.
A brief summarization of the evidence against the defendant is required. On 9/13/1943, General Stettner, commander of the 1st Mountain Division, a unit subordinate to the defendant and whose headquarters was at the time also in Ioannina, issued an order in part as follows (NOKW-1104, Pros. Ex. 451):
"In order to oppose energetically the continued raids on convoys and members of the Wehrmacht, it is ordered that from 9/20/1943 onward for every German soldier wounded or killed by insurgents or civilians, 10 Greeks from all classes of the population are to be shot to death. This order must be carried out consistently in order to achieve a deterrent effect."
On 9/29/1943, the XXII Corps reported:
"Telephone sabotage in the area of Arta. Poles sawed off at two places. Thirty male civilian suspects arrested and shot."
On 10/3/1943, the defendant issued an order reading in part as follows:
"On account of the repeated cable sabotage in the area of Arta 30 distinguished citizens (Greeks) from Arta and 10 distinguished citizens (Greeks) from Filipias are to be arrested and kept as hostages. The population is to be notified that for every further cable sabotage 10 of these 40 hostages will be shot to death."
The defendant denies that any of these hostages were shot and there is no evidence in the record to the contrary. On 10/4/1943, the 1st Mountain Division reported to the XXII Corps as follows:
"Mopping up operations Eisl continue beyond Alomotros. Villages destroyed as reprisal measure. All civilians shot to death."
On 10/18/1943, the 1st Mountain Division reported to the XXII Corps as follows:
"Shot to death: Paramythia - reprisal measure for 6 murdered German soldiers, 58. Thereakision - reprisal measure for murder of Lieutenant Colonel Salminger, 14. Arta, Klissura - Suspicious elements near the localities where attacks had occurred (about), 30. Ioannina City - 1." On 10/25/1943, the 1st Mountain Division issued a special directive to its subordinate units which stated in part: "If a member of the German Wehrmacht is killed by either attack or murder in a territory considered pacified, 50 Greeks (male) are to be shot for one murdered German. * * * The decision regarding executions for losses in band combat is made by the competent troop commander. Here also the ratio is 1:50. The prerequisite for the order of execution is indubitable proof that the population of a village has participated in hostile action against the German armed forces. In addition, the villages are to be destroyed."
This order supersedes that of 9/13/1943. Numerous killings of hostages and reprisal prisoners, in addition to those enumerated, appear in the record. There are reports to the effect that "all the inhabitants" of named villages and "all men capable of bearing arms" were shot to death. Persons designated as "civilians" were shot on numerous occasions.
The orders for the taking of reprisal measures were clearly unlawful. An order to shoot 50 Greeks for each German killed regardless of circumstances meets the legal objections hereinbefore stated in this opinion. Instead of reprisals against innocent inhabitants being taken as a last resort, they were more often taken in the first instance. Reprisal killings were often carried out against the inmates of hostage camps and not against the population having some relationship with the crime committed. Attacks by armed bands having no connection with the local population were avenged by killing innocent inhabitants who had no possible association with the guilty. Many villages were destroyed and the civilian inhabitants shot without any logical reason at all except to wreak vengeance upon the population generally. According to the reports in evidence, court martial proceedings were not held. The killings were had on the order of the competent field commander, the evidence showing that battalion commanders sometimes gave such orders. The defendant says that as a tactical commander he was too busy to give attention to the matter of reprisals. This is a very lame excuse. The unlawful killing of innocent people is a matter that demands prompt and efficient handling by the highest officer of any army. This defendant, with full knowledge of what was going on, did absolutely nothing about it. Nowhere does an order appear which has for its purpose the bringing of the hostage and reprisal practice within the rules of war. The defendant does not even contend that he did. As commander of the XXII Corps it was his duty to act and when he failed to so do and permitted these inhumane and unlawful killings to continue he is criminally responsible.
The defendant Lanz is also charged as commander of the XXII Mountain Corps with having ordered or permitted the unlawful execution of Italian officers and soldiers of the surrendered Italian army. He is also specifically charged with ordering troops under his command to execute the captured Italian General Gandin and all officers of his staff. The general situation regarding the collapse of Italy and the surrender of its armies has been set forth in the portion of the opinion dealing with the defendant Rendulic and it will not be repeated here except as necessity requires.
The record discloses that the defendant Lanz knew when he assumed command of the XXII Mountain Corps that Field Marshal Badoglio had succeeded Mussolini as head of the Italian Government and Commander in Chief of the Italian Army. On 9/8/1943, he heard of the armistice which the Italians had signed with the Allies. On the same day, due to the absence of senior officers from Athens, General Alexander Loehr, commander in chief of Army Group E, commissioned the defendant Lanz to negotiate with General Vecchiarelli, the commander in chief of the 11th Italian Army. After much negotiating, General Vecchiarelli surrendered the 11th Army to the Germans on 9/9/1943. The surrender terms were carried out during the following 14 days, without difficulty insofar as troops stationed on the Greek mainland were concerned. On the islands of Corfu and Cephalonia, however, difficulties arose. These two islands were occupied by one Italian division under the command of General Gandin. The defendant Lanz as commanding general of the XXII Corps demanded that General Gandin surrender his troops and the demand was refused even though General Vecchiarelli had directed him to do so. General Gandin vacillated, contending that his orders were not clear and that he had no right to surrender the division. The situation resulted in fighting between the German and Italian troops on the island of Cephalonia and the eventual surrender of the Italian forces, including General Gandin and his staff, on 9/21/1943.
During this stage of the proceedings, a Fuehrer order arrived directing that the 6000 or 7000 Italians of General Gandin's division were to be shot for mutiny. The defendant Lanz refused to carry out this order for the reason that it was neither feasible nor lawful to do so. The Fuehrer order was then modified providing only that the officers were to be shot for mutiny. The defendant objected to the shooting of all officers and advocated that the order apply only to the guilty. The evidence indicates that the defendant Lanz ordered the German commandant of the islands to determine the guilty officers by court martial proceedings. This was done and on 9/24/1943, General Gandin and his staff officers were shot.
A similar situation developed on the island of Corfu. Fighting ensued, the Italians surrendered, and the officers shot after a summary court martial. The record shows that a large number of Italian officers were shot in this manner. One instance shows that on 10/5/1943, 58 Italian officers were shot by troops subordinate to the XXII Corps.
The killing of these Italian officers was clearly unlawful. The evidence of the defendant shows that he believed that their killing was unlawful. While his protests to Army Group E, based on the illegality of the Fuehrer order, were successful in reducing the number of Italians to be subjected to the unlawful order, the fact remains that the killing of the reduced number was just as much a criminal act. That he gave the order to the commandant of Cepholonia to execute the guilty officers only, he readily admits. The Italian soldiers were not francs-tireurs. They were still allies of Germany, insofar as their commanding officers then knew, although they had notice that an armistice had been signed with the Allied Powers. If they were prisoners of war by virtue of the surrender of the 11th Italian Army by General Vecchiarelli, it is clear that they were entitled to the protection of the Geneva Convention, 1929, regulating the treatment to be afforded prisoners of war. This was not done in any material respect. The reasoning set forth on the same subject in this opinion as it pertains to the defendant Rendulic applies here and is adopted by reference to the present situation. We are obliged to hold that the killing of the Italian officers was a war crime for which the defendant is responsible.
We find the defendant Lanz guilty on counts one and three.
The defendant Speidel assumed the position of Military Commander Southern Greece in early 10/1942, and remained in the position until 9/1943. From 9/1943, until 5/1944, he occupied the position of Military Commander Greece. His first assignment extended to a portion of the harbor Pyraeus and the adjoining coastal strip, a small section northeast of Athens and the Islands Salamis and Aegina. The balance of the area, including Athens, was controlled by the Italians. Under the second assignment his authority extended over the whole of Greece although such authority was limited to certain functions. He had no tactical or operational tasks in this position, they being in the hands of Army Group E.
As Military Commander Southern Greece, his chief tasks were the maintenance of public peace and order within the area occupied by German forces, the security of German troops and installations and jurisdiction over crimes committed against the Germans by the population. As Military Commander Greece, his principal tasks were the maintenance of peace and order, the administration of the judicial authority over the population as to crimes and offenses committed against the Germans and their military installations and the handling of negotiations with the Greek Government. As in the case of his previous assignment, all tactical and operational matters were in the hands of Army Group E in Salonika.
Subordinated to the defendant were 7 subarea headquarters [administrative area headquarters] units. On and after 12/22/1943, reprisal measures could be ordered only by divisional commanders after agreement with the competent subarea headquarters. This order, promulgated by General Loehr as Acting Commander in Chief Southeast, provided in part:
"The revenge for attacks which are directed against the unit and its installation may be ordered only by a German commander with the disciplinary authority to punish of at least a division commander in accord with the competent administrative subarea headquarters. If an agreement is not reached, the competent territorial commander is to decide. Reprisal measures for losses in the air corps, navy, police, and the OT [Organization Todt] are to be ordered principally by the territorial commanders."
That the Military Commander Greece could control the reprisal and hostage practice through the various subarea headquarters which were subordinate to him cannot be questioned. This conclusion is borne out by the testimony of the defendant and charts prepared by him. It is plainly established that all administrative subarea headquarters [administrative area headquarters] and local headquarters of his area of command were subordinated to the Military Commander Greece by the Keitel order of 12/21/1943.
The defendant contends that many of the acts charged against him were committed by or under the direction of the Higher SS and Police Leader, General Schimana. Whether General Schimana was subordinate to the Military Commander Greece insofar as the ordering of reprisal and hostage measures was concerned is directly disputed. We are convinced that the record shows that he was. In this respect the record quite conclusively shows that General Schimana was directly subordinate to Himmler as to matters of discipline, promotions, and matters of similar import. Ordinarily, Himmler insisted that all SS units remain wholly subordinate to him, a matter of which he was very jealous. But in the present instance, the matter is controlled by regulations issued by Fuehrer headquarters under date of 9/7/1943 which in part says NOKW-1438, Pros. Ex. 419]:
"By agreement with the Chief of OKW, the Reich Fuehrer SS and Chief of the German Police appoints a Senior [Higher] SS and Police Leader for the area of Military Commander
Greece. The Senior SS and Police Leader is an office of the Reich Fuehrer SS and Chief of the German Police, which is subordinate to Military Commander Greece for the period of its employment in Greece. * * * The military commander is authorized to issue directives to the Senior SS and Police Leader which are necessary to avoid interference with Wehrmacht operations and duties. They take precedence over any other directives. The Senior SS and Police Leader will receive policies and directives for the execution of these duties from the Reich Fuehrer SS and Chief of the German Police. He will carry them out independently, currently, and opportunely, informing the Military Commander Greece in as far as he does not receive any restrictive directives from the latter."
The defendant admits that General Schimana considered himself subordinate to the Military Commander Greece as to the ordering and carrying out of hostages and reprisal killings. That the Senior SS and Police Leader was a member of the staff of Military Commander Greece is shown by the Keitel order of 12/21/1943. The evidence is clear that the defendant is responsible for the execution of these measures except when they were taken during tactical operations on which occasions, of course, the responsibility rests with the tactical superior.
A review of some of the hostage and reprisal measures taken within area of the defendant's command and for which responsibility attaches, will be necessary. On 12/3/1943, the following report was made:
"Nineteen Communist reprisal prisoners shot, as revenge for the murder and wounding of Greek police, by the Senior SS and Police Leader in Athens."
On 12/31/1943, the defendant reported:
"In 12/1943 on the Peloponnesus 758 people were shot to death, including reprisal operation 'Kalavritha'. In the remaining areas hostages were seized, and to a small extent executions have taken place."
On 1/9/1944, it was reported:
"By (order of) Senior SS and Police Leader, 30 Communists were shot to death in reprisal for the murder of Greek policeman and for 36 attacks."
On 1/10/1944, the Military Commander Greece reported: "50 Communists shot as reprisal measure for murdering two German police." On 3/13/1944, it was reported:
"On the highway Sparta-Tripolis, truck convoy attacked. Eighteen Wehrmacht members dead, 25 heavily wounded, 19 slightly wounded, and 6 Greeks wounded. As reprisal, state of emergency for southern Peloponnesus. Shooting of 200 Communist hostages."
On 3/18/1944, the defendant reported in part as follows:
"Tendency to strikes and partial strikes at the railroad and several plants at the beginning of 3/1944 were suppressed by energetic military measures; 50 Communists were shot immediately while others who were arrested are awaiting their sentence."
While the defendant was absent from his command for almost 2 months prior to 3/17/1944, he appears to have known of and approved the action taken by his deputy as shown by the foregoing report. On 3/22/1944, the Military Commander Greece reported:
"On the Peloponnesus, five Greeks hanged in reprisal for attack on railroad."
On 3/22/1944, the defendant reported:
"administrative subarea headquarters [administrative area headquarters] Corinth report 52 hostages in Tripolis and 44 hostages in Sparta were shot as reprisal measure on 3/21/1944."
On 4/1/1944, defendant reported:
"Up to now - Wehrmacht one dead, 14 wounded. Tracks blocked only for a short while. The execution of 70 Greeks at the locality of the incident has been ordered."
On 4/2/1944, defendant reported:
"65 Communists in reprisal for railroad sabotage, 10 south La Rissa shot to death at the scene of the incident."
On 4/6/1944, defendant reports:
"In Verria [Veroia] (60 southeast West Solonika). Fire attack by bandits during roll call of the battalion. Losses of our own - four dead, eleven wounded of which eight are heavily wounded. One hundred and fifty people suspected of belonging to bands shot in Verria as reprisal measures."
On 4/8/1944, the defendant reported:
"50 Communists shot to death for attack on German soldiers (three dead) North Athens."
On 4/25/1944, the defendant reported:
"In Tripoli, 12 known Communists shot in reprisal for a murdered Gendarmerie officer."
On 4/26/1944, the defendant reported:
"Officers of the commander of the Ordnungspolizei [order police] attacked by about 70 bandits while on duty trip on the road Arachova-Amphissa (15 west Levadeia). Major Schulz and Major Krueger dead, Captain Unger and four men missing. Two passenger automobiles and two motorcycles were burned out. Three men found their way to Levadeia. Fifty Communists from Levadeia were shot as reprisal measures. Additional reprisal measures are intended."
That the foregoing killings were excessive in most instances is readily apparent. That no connection existed between the population and the offense committed in many cases is shown. That the reprisal and hostage practice here employed was not one of last resort but one of the first instance in most cases can be seen. The incidents cited show cases where the hostages were taken and killed at a distance from the place of the offense. Court martial proceedings are not mentioned. That the incidents recited, indicating the practice followed, were not in accord with international law is beyond question. The responsibility of the defendant therefore has been established beyond a reasonable doubt.
We find the defendant Speidel guilty on count one of the indictment.
Evidence has been produced in an attempt to show that the Allied armies, or units thereof, engaged in the practice of taking and killing hostages and reprisal prisoners. There is but one instance cited that even resembles a case of shooting in reprisal. As to this, the evidence shows that four persons were shot by Allied forces in Reutlingen, Germany, during the invasion. The official announcement proclaimed, however, that those responsible for the killing of a French soldier had been apprehended and shot. There is no convincing evidence that it was a hostage or reprisal shooting. It is not shown that a single hostage or reprisal prisoner had been killed by Allied forces throughout the course of the late war. It also has been stated in the evidence and argued to the Tribunal that the rules of war have changed and that war has assumed a totalitarian aspect. It is argued that the atom bombings of Hiroshima and Nagasaki in Japan and the aerial raids upon Dresden, Germany in the final stages of the conflict afford a pattern for the conduct of modern war and a possible justification for the criminal acts of these defendants. We do not think the argument is sound. The unfortunate pattern adopted in the Second World War was set by Germany and its allies when hostilities were commenced. The methods of warfare employed at Rotterdam, Warsaw, Belgrade, Coventry, and Pearl Harbor can aptly be said to provide the sources of the alleged modern theory of total war. It is not our purpose to discuss the lawfulness of any of these events. We content ourselves with the statement that they can give no comfort to these defendants as recriminatory evidence.
Throughout the course of this opinion we have had occasion to refer to matters properly to be considered in mitigation of punishment. The degree of mitigation depends upon many factors including the nature of the crime, the age and experience of the person to whom it applies, the motives for the criminal act, the circumstances under which the crime was committed, and the provocation, if any, that contributed to its commission. It must be observed, however, that mitigation of punishment does not in any sense of the word reduce the degree of the crime. It is more a matter of grace than of defense. In other words, the punishment assessed is not a proper criterion to be considered in evaluating the findings of the Court with reference to the degree of magnitude of the crime.
It has been suggested in the course of the trial that an element of unfairness exists from the inherent nature of the organizational character of the Tribunal. It is true, of course, that the defendants are required to submit their case to a panel of judges from a victor nation. It is unfortunate that the nations of the world have taken no steps to remove the basis of this criticism. The lethargy of the world's statesmen in dealing with this matter, and many other problems of international relations, is well known. It is a reproach upon the initiative and intelligence of the civilized nations of the world that international law remains in many respects primitive in character. But it is a matter with which this Tribunal cannot deal, other than in justifying the confidence reposed in its members by insuring to the defendants a fair, dispassionate, and impartial determination of the law and the facts. A tribunal of this character should through its deliberations and judgment disclose that it represents all mankind in an effort to make contribution to a system of international law and procedure, devoid of nationalistic prejudices. This we have endeavored to do. To some this may not appear to be sufficient protection against bias and prejudice. Any improvement, however, is dependent upon affirmative action by the nations of the world. It does not rest within the scope of the functions of this Tribunal.
The reading of the opinion and judgment having been concluded, the Tribunal will now impose sentence upon those defendants who have been adjudged guilty in these proceedings. As the name of each defendant is called, he will arise, proceed to the center of the dock and put on the earphones.
The defendant Wilhelm List will arise.
WILHELM LIST, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to life imprisonment. You will retire with the guards.
WALTER KUNTZE. Walter Kuntze, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to life imprisonment. You will retire with the guards.
LOTHAR RENDULIC. Lothar Rendulic, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to 20 years of imprisonment. It is the order of the Tribunal that you will receive credit upon your sentence for the time already spent in confinement and pending trial, namely, from 9/13/1946. You will retire with the guards.
ERNST DEHNER. Ernst Dehner, on the count of the indictment on which you have been convicted, the Tribunal sentences you to 7 years of imprisonment. It is the order of the Tribunal that you receive credit upon your sentence for the time already spent in confinement and pending trial, namely, from 12/29/1946. You will retire with the guards.
ERNST VON LEYSER. Ernst von Leyser, on the counts of the indictment on which you have been convicted the Tribunal sentences you to 10 years of imprisonment. It is the order of the Tribunal that you receive credit upon your sentence for the time already spent in confinement and pending trial, namely, from 12/18/1946. You will retire with the guards.
HUBERT LANZ. Hubert Lanz, on the counts of the indictment on which you have been convicted the Tribunal sentences you to 12 years of imprisonment. It is the order of the Tribunal that you receive credit upon your sentence for the time already spent in confinement and pending trial, namely, from 1/17/1947. You will retire with the guards.
HELMUTH FELMY. Helmuth Felmy, on the counts of the indictment on which you have been convicted the Tribunal sentences you to 15 years of imprisonment. It is the order of the Tribunal that you receive credit upon your sentence for the time already spent in confinement and pending trial, namely, from 1/4/1947. You will retire with the guards.