If the chief-of-staff, in the course of his examination of the circumstances, would establish that an offense against issued orders or another misdemeanor had been committed, the offenders were held responsible for their actions by the commanding general in the appropriate manner.
The relay of daily reports from the corps to the superior command (army or group of armies) took place usually by way of telephone or telegraph through Ia or his assistant (the 01) after having been read by the chief-of-staff, in important cases after having reported it to the commanding general.
The written daily reports which came into general Headquarters from the subordinate mixed forces were submitted to the commanding general only in exceptional cases, namely, if it was a question of matters which were important from a tactical point of view or of reports personally signed by the division commanders. Whether or not a division commander would personally sign a report was left to his discretion.
6.) General LANZ will prove further that at the time when he had dealings with them and within his sphere of jurisdiction, the majority of the partisan organizations did not act according to the provisions of the Hague Land Warfare Regulations, and, specifically, that their manner of warfare in many cases grossly violated the regulations of warfare and the law of humanity. In this connection, the civilian population in many cases illicitly supported the partisan organizations and participated in the fight against the German troops. The counter measures ordered or approved by LANZ were essential for maintaining order in the country and for the security of the German troops.
The warfare of the partisan organizations and of part of the civilian population, which ran counter to international law, also had the result that the troops themselves on their own initiative carried out retaliation measures in their indignation about the enemy's atrocities. However, since the troops knew that General LANZ was in principle opposed to such measures, they were sometimes not reported at all, or they were reported in such a manner that they appeared as having been taken solely in the course of battle, so that the General would not have any reason for interfering.
7.) On the occasion of the capitulation and disarming of the Italian army in Greece (September 1943) General LANZ, in contradiction to orders issued by the Fuehrer, took it upon himself to carry out measures favoring the Italians, which caused the disapproval of his superior officers at the time and his down-grading because of "lacking severity". Details are reserved for the actual presentation of evidence.
Specifically:
To the individual points mentioned above under I, General LANZ will bring evidence for the following facts:
To No. 5 j:
Not ordered by LANZ and not known to him at the time of execution. If he should have received a report about that from the First Mountain Div. dated 30 September 1943 afterwards -- a fact which he cannot recall -- this subsequent report obviously could not lead to the conclusion that it was here a case of subsequent revenge, but rather the report gave the impression that it was a question of a tactical measure, that is to say, of shooting partisans in the act of sabotage during fighting with parts of the First Mountain Division.
To No. 5 L:
It is here a case of a surprise attack by a gang of partisans on a part of the escort party of General LANZ which was overtaken and left behind on 3 October 1943, on the main road, 13 kilometers south of Joannina, General LANZ learned about that only during the day.
It is not a case of shooting "hostages" (that is, persons who had already been captured before the surprise attack), but, rather, it is a case of killing the attacking partisans in the course of action (surprise attack).
It is possible that further "retaliation measures on the part of the troops were instituted", but there is no further report on and about what is supposed to have constituted these "retaliation measures" and whether or not they were really carried out.
To No. 9 f:
The destruction of Akmotopos and the alleged execution of its entire population was not an act of reprisal, but was carried out in the course of a tactical "mopping-up operation" against a strong partisan group which had been operating from the area around Akmotopos for a long time, which carried out continuous attacks on the main communication road Joannina - Filippias, and which maliciously murdered first the chief of a bakery company (thus not of a fighting group but of a supply organization) by name of STITZINGER (father of five children) and soon after that the commander of the Mountain Infantry Regiment 98 (Oberstlt. SALMINGER).
The order for this mopping-up operation was given independently by the 1st Mountain Division on the strength of their knowledge about the enemy situation even before the "daily corps order" of 1 October 1943 at 1900 hours had been received by the Division. The daily corps order, by the way, did not contain any instructions about shooting hostages or any other concrete reprisal measures, but aimed only at punishing the malicious killing (murder of regiment commander Oberstlt. SALMINGER) in the person of the perpetrators whom General LANZ thought to be in hiding near the spot where the murder was committed. It was the duty of the General to protect his troops against continuing malicious partisan attacks from such supporting bases and from thereby suffering heavy losses.
According to the report of an eye-witness, the population of Akmotopos had left the village already before the fighting began; parts of the partisan group were fighting with rifles and machine guns in the village itself and nearby, so that the village had to be stormed by the attacking troops with mortar and artillery support.
To No. 9 j:
Was not ordered by LANZ nor did he know about it at the time of execution. The Korea area in Albania was always made insecure by Communist bands, and the civilian population regularly participated in the fighting on the side of the bands. The village in question was occupied by bands and was defended by them with the aid of the civilian population. The report of 1 December 1943 (NOKW 755 Exh. 449) expressly states that the village was taken "against resistance". Therefore, this is not a case of reprisal measures, but of house-to-house fighting in the course of a combat operation. The mopping-up operation taking place in the area of Korea at that time was aimed against the bands operating there. The corresponding order did not originate with LANZ, but was independently given by the local troop commander.
To No. 12 b:
The "Kommissar Order" dated 8 June 1941, was not issued by LANZ nor transmitted by him during the whole term of his activities in the Epirus.
To No. 12 h:
The "Kommando Order" dated 18 October 1942 was not issued to General LANZ nor transmitted by him during the whole of his term of activity in the Epirus.
To No. 12 i:
The so-called "Italian Order" of 11 September 1943 (Doc. Vol. XIII, p. 40, Doc. NOKW 910, Exh. 327) concerns Rendulic only. LANZ had nothing to do with it.
To No. 12 j:
The Italian General GANDIN had twice been ordered to lay down arms and to surrender to the German Wehrmacht. This order was once given by his Italian commander-in-chief, and the second time by General LANZ himself, after GANDIN had voluntarily surrendered to LANZ and had requested such an order. General GANDIN, however, did not execute these orders, but commanded his troops to fight, yes, even to attack the German troops on the island of Kephalonia. This was how General LANZ was forced to suppress the Italian revolt and at the same time, to relieve the German occupation force on the island Kephalonia who were in distress. In the course of this fighting which lasted several days, and which General LANZ had attempted to avoid, both sides suffered great losses. General GANDIN, contrary to his orders, commanded and tolerated this fight against the German troops, which went on without Italy being in a state of war with Germany at the time. In spite of this, General LANZ did not execute the order issued by his superior according to which at first every Italian and later at least every officer who offered resistance to the German troops was to be shot.
On the contrary, he ordered an investigation by a summary court martial against GANDIN and the other officers of his staff who were guilty. The shooting of General GANDIN and of a part of the officers who had been pronounced guilty then took place on the strength of the verdict of this summary court.
To No. 14:
General LANZ had nothing to do with this. These matters belonged into the sphere of competency of the Higher SS and Police Leader in Athens who was not subordinated to the commanding general of the XXII Mountain Army Command, General LANZ.
To No. 15:
General LANZ had nothing to do with this either.
In conclusion, Roman numeral III, "Presentation of Evidence by General LANZ", I have to state that "General LANZ intends to support his evidence on the following:
1.) his own interrogation under oath,
2.) the testimony of various co-defendants, insofar as they are called into the witness stand,
3.) a series of affidavits, partly from German and partly from foreign witnesses; some of these witnesses will be called into the witness stand; the names and the number of these defense witnesses who are to be heard in court is at present not yet established."
That is my Opening Statement for General LANZ. Thank you.
THE PRESIDENT: Before the Tribunal adjourns, it might be well to state that the translations have been promised as to the Defendants Felmy and Leyser, and that they will undoubtedly be ready for delivery to the Tribunal and the translators, and the Reporters in the morning. The Opening Statements for the Defendants Dehner, Foertsch, Rendulich, and Speidel will undoubtedly have to be presented through the Interpreters of this Tribunal. However, they will be furnished in typewritten form to the Tribunal at a later date.
The Tribunal will adjourn until 0930 tomorrow morning.
THE MARSHAL: The Tribunal will be in recess until tomorrow at 0930.
(The Tribunal adjourned at 1635 to resume session at 0930, Tuesday, 16 September 1947).
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, Germany, on 16 September 1947, 0930-1630, Justice Carter Presiding.
THE MARSHAL: Persons in the court room will please find their seats.
The Honorable, the Judges of Military Tribunal V.
Military Tribunal V is now in session, God save the United States of America and this honorable Tribunal.
There will be order in the court.
May it please your Honors, all defendants are present in the court room.
The persons in the court room will be seated.
JUDGE WENNERSTRUM: Judge Carter will preside at today's session.
DR. RAUSCHENBACH(For the defendant Hermann Foertsch): The interpreters have a manscript of the translation.
OPENING STATEMENT FOERTSCH Your Honor, the Honourable Judges, The Prosecution charges the Field-Marshals and Generals who were active in the South-East area with having carried out a well-thought out unlimited program of terror and destruction, by denying and undermining the most fundamental principles of civilization and by arrogant contempt of human beings in enemy territory.
In that manner they madly let loose a senseless torrant of deaths in South-East Europe. In the course of this they are supposed to have shown themselves Henchmen and tools of Himmler, Sauckel and of other Nazi worthies. The Prosecution charges General Foertsch in particular with having played an important part in the realization of this so-called program of destruction and extermination stressing that he was an experienced chief of staff. This is shown by the assertion that the physical presence of Foertsch is supposed to have given the terms of authority of List, Kuntze, Loehr and Weichs a steady and tragic uniformity.
As against that I am going to prove that
1) the exposition of events in their totality as given by the prosecution with regard to South-East area does not correspond to the actual developments in any of the four counts, since the prosecution gives an incomplete and therefore incorrect picture of such events, which does not give sufficient consideration to conditions in the Balkans, to the actions perpetrated by the opponents, nor to the activities of those authorities which were not under the jurisdiction of military commanders, thus making no mention of the reasons for the measures of the German Army . With regard to above I agree to the argumentation of counsel for the defense, of the defendants List and Weichs and I shall add a few supplementary remarks thereto.
2) In order to refute the allegation that the defendant Foertsch disregarded and denied the most primitive principles of civilization I shall prove that he always considered the laws of morality and of the Christian religion as binding and that he also observed these laws in as far as he was free to do so during his term of office in the South East.
3) With regard to the further accusation that his attitude arid behavior towards the people in enemy territory was distinguished by arrogant contemptuousness. I shall prove that he was in reality a man of varied interests and of comprehensive ideas whose aim it was to, by thorough research to acquire conception of land and soul of foreign nations in order to act to their advantage.
4) With regard to the accusation that the defendant permitted himself to be guided in his activities by a well-thought-out program of terror and destruction , I shall refute that by proving that in order to pacify the country it was all important to him to make the occupation bearable and as little oppressive, as possible, to take into account all desires in any manner reasonable and all needs of the population and further to do all in his power in order to exclude or limit the influence and activities of men and authorities which in ignorance of the problems prevalent in the Balkans aggravated conditions by their faulty measures.
5) To refute the allegation that the defendant proved himself a henchman and tool of Himmler, Sauckel and of other Nazi worthies, I shall give a true and complete picture of his personality, and thereby make clear his attitude to the dictatorship.
6) As to the accusation that the defendant Foertsch had proved himself the evil spirit who was responsible for the tragic uniformity of the terms of service of List, Loehr and Weichs, I shall refute that by giving an explicit picture of his activities as they really were. Therefore I shall first prove what tasks and authorities were not those of a chief of staff of an Army or of an Army Group according to the service regulation then in force. The following limits were set to the activities of the chief of staff:
a) He had no authority to give orders or commands to the troops.
b) He had no authority to supervise the troops nor did he have a disciplinary or judicial authority with regard to the troops.
c) He had no right to decide in fundamental questions.
d) Thus he had no responsibility with regard to the troops. I shall prove that the defendant Foertsch observed the limits which according to the existing regulations were set to his activities and that thus he never
a) gave any orders himself
b) made any decisions himself exceeding his authority. I shall prove that according to the existing regulations his task was merely that of a first adviser to the commander-in-chief. He actually understood his responsibility in such a manner
a) that he never tried to provoke stringent measures
b) that it was rather his aim to help reasonableness to prevail
c) that in consequence he was not a bad but a good spirit.
7) But in order to point out the difficulties with which he had to cope, I shall describe the obstacles which he had to dead with. These were:
a) The dictatorship which could be felt on all sides.
b) He was bound by his oaths.
c) The orders which were issued to the commander-in-chief by his superior authority and were considered by him himself as binding.
d) The orders which had to be issued directly to subordinate troops by these superior authorities which made their activities independent of the orders of the jurisdiction of the commander-in-chief.
e) The throat of punishment existing according to the laws then in force.
f) The small understanding which the High Command of the Army showed to his submissions and suggestions.
8) That General Foertsch in his capacity as chief of staff did not help bring about the tragicuniformity of the reprisal measures, which has been stressed by the prosecution I shall refute by proving that
a) he was absent just during such times when incisive and fundamental orders were issued.
b) he did not consider the part which he had to play as in any manner satisfactory but he tried to be released from these tasks which he felt to be unpleasant and oppressive.
Count 1 of the Indictment charges the defendants with having madly unleashed a senseless torrent of death. This formulation implies 2 things, namely:
a) That the defendants had instituted measures of hostage taking and shooting of hostages arbitrarily, that is without cause and without any necessity in blind madness.
b) Disregarding the assertion that every reasonable cause for these measures is supposed to be lacking they are supposed to have been senseless also with regard to their alleged or asserted reasons which is obviously to be expressed in the words "senseless torrent of deaths".
with regard to these allegations and at the same time with regard to Count 2 of the Indictment I shall prove the following:
a) From the very beginning it was the aim of the military leaders in the South-East area to achieve a real pacification of the country which was to be also in the clearly conceived interests of the population of the occupied territory.
b) These reasonable endeavors of the military leaders were defeated for reasons for which not they but in the first place the opposition were responsible.
c) The success which was to be achieved by these measures could in part not be realized because conditions occurred which could not have been for seen when the above measures were ordered.
Count 3 of the Indictment Shooting of prisoners of war.
Here we have to differentiate between the following:
1) Shooting of members of Jugoslav and Greek forces
2) Shooting of members of other Allied forces
a) by reason of the Command-Order.
b) by reason of the Commissar Order.
3) Shooting of members of the Italian Forces.
To 1:
As far as the Jugoslav and Greeks, who had been shot, were concerned they were not members of the Armed Forces of a Nation at war but insurgents who by fighting placed themselves outside of the realm of law, which is shown by the following:
a) Capitulation of Jugoslav and Greek armies carried out by the commanders in charge.
b) The actual power in these countries had been transferred to Germany as the occupying power.
c) The fight was resumed in violation of international law.
d) The internationally accepted land war regulations were not adhered to.
e) Furthermore, the recognition of a power as a power at war is a political decision which was not the task of the military leaders in the South-East.
f) The military leaders in the South----East endeavored to achieve political recognition of a state of war without being able to raise any legal claims with regard to that.
g) In spite of the fact that this recognition which they were trying to achieve was refused, the captured partisans were treated as prisoners of war.
To 2:
a) Shootings by reason of the command order were not carried out.
b) The Commissar Order did not apply to the South-East.
To 3:
Shootings of members of the Italian Forces.
I shall prove that the individual shots were to be regarded as partisans according to international law because of the following facts:
a) By breaking her alliance with Germany and by virtue of her capitulation Italy lost her authorities which she had enjoyed in her capacity as occupying power.
b) The territories in the Balkans which had so far been occupied by Italy now became exclusively Germany operational territory.
c) The organized Armed Forces of a power which had suddenly become hostile and which were in this territory constituted an extraordinary danger to the operational projects within the German operational sphere. Thus the German request to surrender all arms was justified.
d) This request was consequently acceeded to in the form of appropriate orders of the Italian commanders -in charge.
e) The Italian soldiers or units which in spite of that continued to carry arms against the German troops were acting contrary to international law.
To Count 4 of the Indictment.
It is alleged that the defendant had without any reason connected with military operations helped to free Souther-eastern Europe from socalled inferior persons as for example: Jews, politically unreliabel individuals, e.g. democrats and nationalists. And that they helped to enslave and deport millions for forced labor.
As to that I am going to prove:
a) That the internment of certain groups of individuals in collection camps and the evacuation have been approved by the military leaders in the South-East only insofar as this was necessary in order to pacify the country and to secure operational objects.
b) That the military leaders in as far as they co-operated in the procurement of indigenous labor did that only because they considered this a way to pacify the country.
c) In as far as such measures could not be justified by military necessity the military leaders had no influence on these matters.
The above mentioned points I shall prove:
a) By examining the defendant as a witness on his own behalf.
b) By presentation of documents.
c) By examination of witnesses.
Already at this point I should like to mention that at the time when the defendant Foertsch will appear in the witness stand this evidentiary material will still be very incomplete. Besides the difficulties which are well known and which have been described in the motion for adjournment brought by my colleague Dr. Laternser as well as by me with regard to the procuring of affidavits as well as the translation of the document books must in this particular case be added that the defense has so far not had any opportunity to examine those documents which had been presented to the prosecution in the form of excerpts to the full extent.
This alone would give counsels for the defense the opportunity to prove the reasons for the shootings about which the prosecution has brought numerous examples from the same documents. So far it is not possible to say whether or not counsels for the defense will get the opportunity to do that at all. For that reason I must reserve the right event this stage, to make this extraordinary limitation of the defense which in the case of the defendant Foertsch may possibly lead to grave incompleteness of his evidentiary material the subject of an appeal which may possibly have to be lodged in this case.
I refrain from legally arguing against the charges which have been brought in the case of Foertsch at this stage. I shall do that in the course of my plea, but I should at least like to point out that I shall base his defense in the in the first place on the problem of participation according to criminal law. This comprises the following legal problems:
1) Is a mere "knowledge" of and "being connected with" the retaliation measures which have been designated by the prosecution as criminal actions sufficient to condemn the defendant Foertsch. I should like to correct here that instead of retaliation it should simply be measures.
2) If that is not sufficient which positive actions or omissions contrary to his duties is he charged of which prove that he aided in any criminal actions. Did he as chief of the general staff have any responsibility according to criminal law for retaliation measures which were ordered by others than himself and in turn were carried out by others than himself.
This lastword "retaliation" again I would like to have corrected to "measures."
JUDGE CARTER: Is counsel for the defendant Leyser ready to present the opening statement?
DR. TIPP (For the defendant von Leyser): Yes, your Honor.
In contrast to other cases which were conducted in this building before the High Tribunals of the United States, it is to be ascertained in this trial whether soldiers have committed in actual combat acts which are not consistent with the rules of international law and with the precepts of humanity. It is perhaps the first tine in history at all that the military leaders of a vanquished nation are summoned before the tribunal of a victorious State in order to be tried for military matters, at least on the same scale as is done here.
The Prosecution has accused the Generals arraigned here, and with this the German Armed Forces in general, of a inhuman warfare on the largest scale. The Defense has consequently got the difficult task of refutting this general accusation and of proving that the German Armed Forces as a whole have showed themselves as chivralrous and fair as is required by the honor of every honest soldier.
In order to be able to refute these accusations, it will be necessary to give to the High Tribunal as a basis for its judgment first of all a picture of a general nature of the conditions under which the fight in the South-East took place. For only the knowledge of the conditions prevailing at a given time and place makes it possible to give an explanation for many a thing which as a matter of course perhaps seems to be incomprehensible for any one who is not informed of these conditions. As in any case, this general clearing up will also in the case of my client, General von Leyser, form a basis for refuting the individual accusations made by the Prosecution.
General von Leyser came on 1 November 1943 for the first time to the Croatian area as Commanding General of the XV, Mountain Corps. It will therefore be necessary to make clear to the High Tribunal in the course of the evidence to be taken, what situations and existing con ditions General von Leyser had to face at that time.
At that date a uniform "national Jugoslav" army no longer existed in the theatre in Croatia. Therefore there were no clear front-lines as they exist as a rule in normal warfare. No complete military units were arrayed against each other, on the contrary everybody was fighting there against everybody else at that date. In the territory of Croatia which was occupied by the German Armed Forces groups of the most different political, religious and ethnic orientation were opposed to each other, which were fighting against each other and against the German Armed Forces. The weak German forces in this area were asisted by the Military Forces of the United State of Croatia which, however, were not likewise united among themselves. They were divided into the Ustascha, which were particularly hostile to Serbians, and the Domobrans. The fighting power and especially the discipline of these units left much to be desired. The enemies of these two groups were principally the Cetniks who in their turn were only hostile to the German army when the latter carried out operations together with Croatian units.
It is characteristic for the conditions prevailing in the Balkans and makes clear the difficult situation of a German commander that above all the Cetniks were not only enemies of the Croatian government, but that they opposed especially violently the Communist Tito bands which they combatted by all means. All these short allusions, which have to be cleared up in the course of the evidence to be taken by the defense as a whole as well as in the case of General von Leyser, show what enormous difficulties had to be overcome in the Croatian area in the military sphere alone.
These political contrasts are augmented by sharp religious and ethnic ones between Pravo-Slavs, Roman Catholics, and Mussulmen. The latter joined in most cases the party which predominated at the very moment so that in this connection the front lines were not clearly definable either. Add to this a certain antagonism between Serbs from the territory of Serbia proper and the Serbs from Croatia.
In order to make it a complete chaos, smaller groups of guerilla bands were of a fatal local importance, bands which were not part of a larger group, but joined for private raids. These were partly raids on their own account which have been customary in the Balkans for centuries, partly vendetta fights between individual families. Principally these groups were augmented by remnants of the capitulated Italian army which had stayed there.
All these groups and small groups waged war among themselves with the utmost cruelty and lack of consideration as well as against the civilian population who were not concerned in the matter. Respect for the laws of war was just as unknown to them as the sparing of property and human life. They created disorder wherever they could, because only in this disorder could they accomplish their own aims.
These are the obscure and confused conditions which confronted General von Leyser when he came to Croatia in November 1943. It was impossible for him as well as for anyone else to disentangle these conditions and to act as representative of the power of order.
An added difficulty was the fact that in all measures the competence of the Croatian state had to be taken into consideration, on whose officials General von Leyser had hardly any influence.
The Croatian armed forces did likewise not come under his command in principle and frequently frustrated his aims.
These circumstances, which necessitated the individual measures of General von Leyser, will have to be clarified in the course of the defense because only a thorough knowledge of these events enables the High Court to judge justly his way of acting.
It will further have to be pointed out on principle that General von Leyser had to submit to the command already established for years for the conduct of war in the Balkans. It was impossible just for him, newly arrived on the scene, to change these principles on his own initiative. He was further bound to the instructions and commands given him by his superior offices. His position was not so high that it was his business to determine the fundamentals of politics and conduct of war in his territory. All that he could do was to voice his opinion against commands which according to his mind did not answer the territorial conditions, thereby imposing his conception of humanity. It will be proved that he did this within the scope of the possibilities given him.
Before I touch upon the individual counts of the indictment brought against General von Leyser, one point for General von Leyser in my opinion has to be referred to, a point which already has been expressed in the speeches of my predecessors.
Without doubting the authority of the Honorable Court, conformable to duty, it must be pointed out that according to the conception of the defense the Honorable Court for international reasons is not competent to convict the defendants. In my opinion Regulation No. 7 of the Military Government for Germany, on which the formal competence of the Honorable Court is founded, is a violation of the Geneva agreement (Abkommen) as regards the protection of rights of war prisoners of 1929.
After the capitulation of the German armed forces, General von Leyser as well as the other generals were taken prisoners of war. Last January it was indeed attempted to release him as prisoner of war. But he did not agree to this release. Even if it would have been effected, it would have been without legal effect because it would violate the principles of the agreement just mentioned, chiefly because an actual discharge in freedom, a presumption for a discharge with legal effect of a prisoner of war, has not taken place.
General von Leyser therefore has to be treated according to the regulations of the agreement concerning war prisoners. Article 63 of this agreement, however, is worded as follows:
"A verdict against a prisoner of war must only be pronounced by the same court and according to the same procedure as a verdict against the persons belonging to the armed forces of the nation furnishing the custody."
Competent for the conviction of all defendants, including General von Leyser, would therefore be in my opinion only a court martial constituted of generals of the U.S. Army. The Tribunal, however, before which the defendant von Leyser has to stand trial is a civil court constituted of civilians.
I am of the opinion that the agreement concerning the rights of prisoners of war has an international character and therefore according to the guiding principles of international law cannot be altered by only one signatory power alone or likewise by the agreement of several signatory powers but alone and exclusively by the agreement of all the signatory nations. Such an agreement, however, is not present; the change only took place because of Regulation No. 7 of the Military Government for Germany. Said regulation thus far violates an international agreement and cannot have legal effect.
I therefore do not think the Honorable Court competent for the conviction of my client.