But even if the entire material in question would be available complete, the over-all connections would not be evident from it. These, however, are the decisive factors. At present I do not want either to examine the various documents as to their value as evidence, or to answer the various counts of the indictment from an actual and legal point of view. I only wish to make an attempt in general to remove from my client's, General Felmy's, picture - as it was presented to the Tribunal by the Prosecution in the course of its case-in-chief, the features of biased distortion, in order to go into details later on in my presentation of evidence.
For this purpose let us imagine that we make a journey to the South of Greece and at the same time into the past, that is to say, into the years 1943/44. At that time, General Felmy was commanding general of the LXVIII Army Corps.
First the preliminary question comes to mind: what was the function and the position of a commanding general in the German army? With regard to its orders and its competency, the army corps was just between the subordinate divisions and the superior army or army group, if there was no complete army. It is now especially important to realize that in the structure of the army there was a sharp break between divisions and army corps. The division was independent, tactically as well as with respect to supply. It formed an organism which was complete in itself, and whose members acted side by side and together on behalf of the whole, that is to say, the division. In the so-called "order of battle" (Kriegs*liederung), those links, that is, the subordinate regiments, batallions, and units, were graphically depicted. With one glance at the order of battle of, let us say, an armored division, one could immediately tell what wag its concentration, and through that one know its operational possibilities and its fighting strength. The separate links, every one of which had its definite assignment, remained closely together and kept in continuous touch with division headquarters.
This necessitated of course a continued contact between the division commander and his staff on the one hand, and with the troop commanders subordinated to him on the other hand, with the result that the division commander knew his troop commanders well from a military and human point of view.
The army corps, on the other hand, did not have a battle order in the sense mentioned above. The army corps could have two, but also five divisions subordinated to it, as the case might be, and the conditions of subordination changed if strategy or tactic required it, sometimes very often. An order of battle existed only for the corps staff and for the few so-called "corps troops" which were directly subordinated to the commanding general. The orders he issued or transmitted to the division he gave as the military superior outside of, and above, the organism as described above. Therefore, the commanding general as a rule did not have a continuous personal contact with the troop commanders within the divisions subordinate to him.
If we now look at the conditions in South Greece during the years 1943-44 from this point of view, we notice that after the capitulation of the Italians in September 1943, there was stationed there only one German division, the 117th Infantry Division, to which was added the 41st Fortress Division only in the winter 1943/44. It was spread over a territory which normally would be taken up by an army group. The space covered by the LXVIII Army Corps which included outside of the Peloponneso also Attica, Boetia, and several islands, corresponded to the territory usually allotted to an army. This, of course, meant a further increase in the difficulties connected with General Felmy's supervisory activities. If in addition to that one takes into consideration the dreary and inaccessible landscape of South Greece, one must realize that it was extremely difficult for him and his staff to form a correct picture of whether or not the measures taken by the troop units under his command had been chosen and executed in a manner which corresponded to the local conditions and was correct and appropriate.
However, if General Felmy had the opportunity of ascertaining excesses any where, and when he actually ascertained them, he put a stop to them with the necessary severity.
The answer to the question, what actually was his field of supervision, depends on the answer to the preliminary question: what was the tactical mission of the LXVIII Army Corps? The answer is: primarily and above all else, its mission was to secure the occupied territory against surprise invasion by the enemy. This was the primary purpose to which all military measures taken and to be subordinated. In addition to this, the army corps had a series of tasks which were considerably less important as seen from a higher tactical point of view, military, political, economic, and propagandistic missions which followed from the occupation of the territory.
To this belong especially also the lighting of guerrilla bands which truned against the German troops only after a certain definite time, which I shall discuss below. The German troops were technically in no way equipped for guerrilla warfare in the impassable territory of South Greece which was favorable to this trype of warfare in every respect-the mountains there reach a height of 2, 500 meters. The German soldier was neither skilled nor trained in guerrilla warfare; he was accustomed to stand before an open and recognizable adversary.
What was it that led to guerrilla warfare at all? As long as the Italians participated in the occupation and, in addition, as long as the 1st Armored Division was stationed on the Peloponnesos, the Germans had only very occasional clashes with the partisans. Only by the elimination of the Italians the situation became disagreeable for the German troops. And this was not only the case because the Italians partly deserted to the guerrillas and thereby reinforced them, or at least sold arms and munitions to them, but it can be exactly established that from that time on the guerrillas received supplies from territories outside of Greece, and were additionally supplied by air through the British. The partisans now more and more turned against the German soldiers without the latter having given any provocation whatsoever. The guerrillas unquestionably were the attackers and, especially in the Peloponnesos, there was hardly a day without attacks.
In which way they proceeded, in which manner they fought and in which inhuman way they treated captured and wounded German soldiers, for all this, evidence will be submitted by the defense. The position was particularly uncertain and not clean for the Germans also because apparently peaceful civilians, the so-called "house partisans" unexpectedly took part in sudden attacks, to disappear again afterwards among the population. Mention may be made by the way in this connection of the fact that these people, partly, made common cause with the bands only under pressure. The excitement of the German soldiers concerning the most terrible atrocities, committed by the bands in increasing numberto be proved by me - is only too understandable, - as far as feeling is concerned - and the reaction was often severe, but unavoidable.
If, to-day, similar things would happen to members of the BS occupation army, the consequences would certainly not be different. And I extend this comparison not only to reactions of feelings of individual soldiers but also to the measures which would be taken in that case by high military authorities. And here, High Tribunal, we come to the central idea of International Law in the event of war which has been expressed in the official French text of the Hague Convention of 1907 by the term "Necessites militaires" -military necessities The question - justified in itself, for several reasons - whether this convention and its supplement, the Hague Regulations of Land Warfare, are - or are not - valid entirely or in part, is irrelevant in this connection) for the notion of "military necessities" can also have a generally recognized meaning in customary law. The question arising after the last total war is: has the requirement of military necessity any relevant meaning at all any longer?
High Tribunal, I should like to submit - sine ira et studio the example that I am going to mention now and that - as the nearest in space - is only one example out of many. If you consider the impression given by this town which was formerly Nuernberg and which, for centruies, had been called "the little treasure chest of the German Reich", and if, then, you conclude that in the ruins below the castle, apart from many human lives, culture, too, had been buried, is there not, for any fair person, necessarily the question unavoidable: Was that necessary for warfare and victory? The answer, I think, seems to be clear, unless, in modern total war which is, it is true, far away from the Hague Regulations of Land Warfare, terror can be considered as a military necessity. But it is on the other hand, just "a well-calculated program of terror and destruction" that the defendants arc being charged with in the opening statement of the prosecution.
This is the only conclusion which can be drawn: either the concept of the "necessites militaires" actually disappeared, or, if still existing, it was broadened through the general usage of war to such an extent that the defendants must benefit by it, assuming that they actually gave the orders with which they arc charged. However, there will be no need for an association of thought with these negative aspects of warfare to prove that General FELMY cannot be held responsible within the meaning of the indictment. He did not provoke the guerrillas to assume an attitude against German soldiers which, was in contrast to the tenets of international law. The partisans were fully aware of the precarious situation of the German troops, they led to, and did anticipate, reprisals against hostages who had been found to be connected with them. They could have rendered any form of reprisals unnecessary through cessation of hostilities. They did not do so. Apart from that, the national Greek element they pretended to represent was merely a cloak to deceive the population. They acted on higher orders. Had this not been so, they would have had to stop their activities at the latest upon the withdrawal of the German troops from Greece. However, conditions in this unfortunate country not only have not improved since, on the contrary they deteriorated considerably Although during the last phases of the German occupation entire sections of the City of Athens were in the hands of the partisans and they could no longer be kept in check by the customary means, General FELMY refused to subject Athens to artillery fire, just as 20 years ago as a Major in the Reich Ministry of De Opening Plea FELMY fense, (Reichswehrministerium), he had abhorred the principle of air raids on open cities.
After the withdrawal of the Germans it was left to the Britisch to attack the sections of the rebels from the air. Winston Churchill in his essay, "If I were an American", published in "Life" of 12 May 1947, states that in the course of their retreat from Athens in December 1944, the guerrillas murdered at least 20,000 men women and children to whom they objected or who obstructed their path. They are the same guerillabands who formerly used to attack the Germans, even though the Prosecution uses the word "bands" in quotation marks, which however will have been lost even for them after the withdrawal of the Germans. "The Greek Dilemma", the title of a recently published American book, has since become a generally accepted idea. Formerly the Balcans were the "powder cask" of Europe, Greece is at present the "powder cask" of the world.
General FELMY, as all other defendants, is charged with "appeasement through terror". I shall bring evidence to the contrary and to the fact that during the entire period of his sojourn in Greece he made honest endeavours for a true peace through collaboration with the population. He not only did not terrorize and exterminate the latter but gave help when ever possible. He protected them against gross transgressions on the part of the Italians, he assisted them against the inhuman and cruel treatment of the partisans.
And that not only because Article 43 of the Hague Land Warfare Convention prescribes that the occupying officer "must make all the arrangements dependent upon him in order to re-establish and maintain as far as possible public order and public life." .. From inner compulsion he worked together with the population against the partisans in order to help them and bring peace to the country.
I do not want to go into detail at this point as to the abundance of arguments which are available in this respect.
Generally speaking, I have received during the last months from high and low, from soldiers and civilians, a large number of statements - in some cases without having requested them - all of which more or less culminate as to content in the following declaration: "I consider General FELMY incapable of having acted against the law and against humanity." He never was a "militarist" in the negative sense with an "odd conception of military discipline" as was expressed in the opening statement of the prosecution. The officers who worked with him all agree in describing him as a man who was in every respect a model of military and human respect, and ordinary soldiers speak of him as their "Papa Felmy", tireless in his concern for their welfare. That is the general opinion of him. Greece for him meant the land of the Hellenes, which in ancient times had once been the cultural center of the world. This reverence for Greece gave him additional strength to stand up with all the means at his disposal for peace in Greece.
And such a man, who is deeply rooted in religion and endowed with character and culture, who thinks, feels and acts like any decent person and any honorable officer in all countries of the world and who had thus clearly remained within the boundaries of behavior recognized as permissible by international law - could such a man be a criminal?
The German poet Matthias Claudius wrote a war song of a special kind 150 years ago. It contains a confession which was and is likewise the confession of General FELMY:
"Unfortunately it is war, and I request not to be blamed for it."
PRESIDING JUDGE CARTER: This, I think, concludes the opening statements of the defendants. I trust that the defense counsel are now prepared to go ahead with the evidence in support of their defense.
DR. LATERNSER: (Counsel for defendants List and von Weichs): Your Honors, do you intend to start this afternoon?
PRESIDING JUDGE CARTER: I know of no reason why we should not proceed.
DR. LATERNSER: Your Honors, I am prepared to start. I shall, to begin with, put the defendant Field Marshal List on the witness stand. Then I shall hear other witnesses and, finally, I shall submit to the Tribunal document books and present documents. Before I put the defendant Field Marshal List on the witness stand I should like to draw attention to the following.
My position is this. When I have heard the defendant I can for the moment not continue my case because the witnesses which have been requested by us have not yet turned up, and the document books are, unfortunately, not ready for submission and that because continuously new material comes in, and, therefore, they could not have been finished.
For this reason, I would like to put the question to the Tribunal how I am supposed to proceed after I have hoard the defendant Field Marshal List. If what possibly may not be avoidable, the other defendants are called to the stand, then we would have the disadvantage that the various cases could not be submitted in a complete form.
I would like to put this question to the Tribunal and to make clear thus the position of defense counsel in order that the Tribunal may know how the defense will have to proceed in the event that, in consideration of the short time which the prosecution took up by their presentation, there may possibly be a recess after the defendants have been put on the stand until all material is complete in the hands of the defense. I want to be very frank. The defense does at the moment not know its position clearly. As is well known to the Tribunal, it has made a motion that two of their representatives may look at the documents in Washington. The prosecution for its part has declared that all documentary evidence will be brought here. That latter alone would help the defense to a certain extent but not completely because we have made the motion to look at the documents ourselves because we expect to find documents beyond those which the prosecution has presented and which may be important to us.
In this connection again there is a further disadvantage. All this is a consequence of the fact that the prosecution submitted its case so briefly. In case we get material which the prosecution is about to have brought to Nuernberg, I for my part will not be in a position to make a complete presentation of the case List and what disadvantages are connected with such a factor can well be estimated by the Tribunal.
The reason why I am explaining all this is the following. I just want to make clear the position of the defense at the moment -- that is, when I have hoard the defendant List I can then not continue because other witnesses havn't arrived yet. For that reason I would not be in a position to have talked to any one of the witnesses and my document books which, of course, as far as they are finished, I am in a position to deliver up today for mimeographing; but that, on the other hand, would not help me because then my presentation could not be complete.
That is the position, as I want to put it to the Tribunal.
PRESIDING JUDGE CARTER: The Tribunal suggests that you proceed with the evidence of your client. Sometime during the day or tomorrow morning, at the earliest, the Tribunal will advise you of its feelings in the matter that you have expressed here if that is agreeable, Dr. Laternser.
DR. LATERNSER: I want to start this way. I have just been given a communication which I would like to make known to the Tribunal in addition and I attach importance to the fact that it be incorporated in the record. This communication too, will show the extreme difficulties of the defense. May I read it? I am only doing this so that the prosecution may gain a complete picture of the situation.
"The Prosecutor of the Spruchkammer Weissmain to Defense Center Nuernberg, Palace of Justice. Subject: Southeast Generals.
"The appeal which was published in the press on the 8th of last month to former members of the Wehrmacht who have participated in partisan warfare in the Balkans, to the effect that those people should put themselves at the disposal of the defense, only reached ms now and I would like to put the following question to you in this connection."
The communication is very short, your Honors.
"Officially released prisoners of war from Jugoslavia prisoner of war camps are very few or none at all. However, there will be a few who have succeeded is escaping further prisoner ships, either by escaping or by pretending not to be of German nationality.
"I can well imagine that such people who have thus escaped a very hard fate, that those members of the Wehrmacht will not report in compliance with your request, even if they could make testimony of importance, because they will surely be afraid that possibly they will again be extradicted to the Jugoslavs; and then comes the question -- or wouldn't that be the case?
What assurance will be given in such a case."
And then comes the signature.
By reading this letter I was only going to show the Tribunal what the general opinion is to volunteer as a witness for the defense in this trial.
Now, before I put the defendant Field Marshal List on the witness stand, I would like to ask that the chart which has been put here by the prosecution for informational purposes be removed. I think it is wrong and I don't want this chart to exert any influence on the charts which I intend to submit to the witness. Maybe that can be done in the recess afterwards.
PRESIDING JUDGE CARTER: Is there any objection of the prosecution to the removal of the chart during the offering of the defendants' evidence?
MR. DENNEY: Your Honors, no, we have no objection to taking the chart out.
PRESIDING JUDGE CARTER: The chart may be removed during the afternoon recess.
DR. LATERNSER: Thank you, your Honor. I now call the defendant Field Marshal list to the witness stand.
PRESIDING JUDGE CARTER: I swear by God the Almighty and Omniscient that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath).
DIRECT EXAMINATION BY DR. LATERNSER:
Q: Field Marshal, will you please tell the Tribunal your full name?
A: Siegmund Wilhelm Walther List.
Q: Before you answer any one of my questions, please make a short pause so that the question can be translated.
When were you born?
A: On the 14th of May, 1880.
Q: And where?
A: In Oberkirrchberg in Wuerttemberg. That is in the district of Ulm.
Q: What was your father's profession?
A: District counseller (Laudrat)
Q: What is your religion?
A: I am a Protestant.
Q: And what is your schooling?
A: At first I visited a private school. Later I went to elementary school in Ulm and als visited there the first classes of the gymnasium.
Q: Who was in charge of your education when you want to school in Ulm?
A: My grandmother. She was the widow of a clergyman and when was aided in this by her daughters, one of whom was a teacher in a girls' school.
Q: How long did you remain in Ulm?
A: To the year 1890.
Q: And where did you go then?
A: Then my father transferred to Munich.
Q: And what school did you go to in Munich?
A: The Humanistic Gymnasium (High School).
Q: When hid you leave that school?
A: In 1898.
Q: Had you been determined for a long time to become an officer?
A: I had gained the first impressions which led me to this in Ulm but I was not decided for along time whether I wanted to become an officer or a forester. My grandmother originated in a forester's family and I lived with her for a long time near the Danube and I there made experiences concerning pioneer activity which influenced me deeply.
When, in the year 1898 I had to choose what kind of a profession I wanted to take, I then decided to become an officer. That was a profession which at that time was quite frequently taken up by young people in Bavaria just as any other kind of civil service.
Q: Why, then, did you decide to become an officer?
A: Because I endeavored to do a lot of work out in the opon and to have as much as possible contact with other people.
Q: Where did your military career start?
A: It started in Munich at the then pioneer detachment which later became the pioneer battalion.
Q: And when?
A: In July of the year 1898.
Q: When did you become an officer?
A: In March of the year 1900.
Q: What was your further training as an officer?
A: To begin with, I worked with the troops; 1902 to 1904 I went to an artillery and engineering school; and then I became batallion adjutant and as such I made an examination at the War Academy. I went to the War Academy from the year 1908 to 1911. That is the Bavarian War Academy in Munich.
Q: Are you married?
A: Yes.
Q: How many children do you have?
A: Three.
Q: How did your further military career develop?
A: After I had finished the War Academy I again worked with the troops in an Infantry Regiment. Later I was ordered to the Bavarian Staff and there, as an officer of the Second Bavarian Corps, I was assigned when the troops were mobilized in 1914.
After the First World War, 1914 to 1918 -- or, rather, at the end of the First World War -I was called to the Bavarian Ministry as an expert and there I participated in the dissolution of the Army.
Q: What was your activity during the First World War?
A: During the First World War I was an officer of the General Staff, as well in the Western, in the Main, also for a short time in the Eastern theatre of war.
Q: What decorations did you receive during the First World War?
A: During the First World War I received the Iron Cross, First and Second Class; then the Hohenzollern House Order with Swords, the Bavarian Order of Merit, with sword, a Wuertenberg Order, an Austrian Order and a Bulgarian decoration.
Q: What intentions did you have for the period after the First World War?
A: After the First World War, I had the intention to become a farmer. However, that did not come true because, on the occasion of the Munich Putsch, I saw myself forced to flee from Munich; together with government troops I participated in the conquest of Munich and I was then taken over to the standing Army of the First World War of 100,000 men.
Q: What were your assignments after you had been incorporated into the standing army after the first World War?
A: Partly I worked with the Staff; partly in the troops. As of the year 1922 up until 1924 I was Commander of the Mountain Infantry Regiment, Kempten, 19th Inf. Regt.
3l51 Later I worked on the staff of the Military Command District 7, and from there, in the year 1926, after I had in the meantime been promoted to Lieutenant Colonel, I came into a training department of the Army.
In the autumn of that year I was made full Colonel. I was put in charge of the department as deputy the dept. chief who was sick. In the spring of the year 1927 I became Chief of the Army Training Department.
(Dr. Laternser)
Q You have mentioned just now a battalion of the Infantry Regiment 19. Have you ever been actively employed with this battalion?
A Yes, I was employed with this battalion in the year 1923, that was on the occasion of the Hitler rise in Munich, and they had to suppress that rise, and I was instructed to effect law and order in Munich.
Q You said that in 1927, I believe, you were Chief of the Army Training Department?
A Yes.
Q How long did you remain in this position?
A I remained as Chief of the Training Department to the spring of the year 1930.
Q And what did you become then?
A In the year 1930, I became Commander of the Infantry School; that was, in those days, the only infantry school; that was located in Dresden.
Q What were your tasks for this position?
A My task was to train young officers of the Reich Army and to educate them; with regard to the educational task, I received a special instruction in those days, just before that time, the National Socialists had formed cartels amongst the young officers of the Army. I recall the case Ludin and I was instructed then by the then Minister for the Defense, - that was the Democratic Minister Groener, and from the chief of the OKW, and from the chief of the troop office, that was General of the Infantry von Hammerstein, to make sure that any political activity, and especially an influence of national socialism on the young officers in Dresden, should be avoided.
Q And what did you do, according to this instruction?
A In order to carry out this task I educated and trained my officers in this sense. I influenced their teachers and occasionally made appeals to the young officers.
In the year 1933, in the autumn, I was promoted to Brigadier General, and on the 1st of October I was given the fourth division in Dresden. In 1934 I was made Commanding General of the newly created 4th Corps, and in 1935, I was promoted General of the Infantry (Lt. Gen.)
In 1938, in the spring of that year, I was, for a short period, made commander-in-chief of Army Group II in Kassel. However, I only remained there for one month, up to 1 April, 1939, and then I became commander-in-chief of Army Group V, which had been newly created in Vienna.
Q Did you participate in the march on the Sudeten area in the occupation of Czechoslovakia?
A I participated in both as commander-in-chief of Army Group V, Vienna, - that is, I participated in the occupation of Moravia. That is the southern part of the occupied area.
Q When were you made General?
A I was made Major General in the spring of 1939.
A Now to the war.
MR. DENNEY: Dr. Laternser has asked when he was made Generaloberst, a four-star general, and the interpretation came through as "Major General". The rank he is referring to is a four-star general, the rank just above the rank of Field-Marshal. Will you please have it corrected?
BY DR. LATERNSER:
Q When were you made a full general?
A In the spring of the year 1939.
Q And may I say the word, "Generaloberst" has been translated from "four-star General".
Field Marshal, we now approach the period of the war. What were your positions at the beginning of the war?
AAt the beginning of the war, in the year 1939, I became Commander-