A Of course then the situation would have been entirely different; in that case Gandin and the Italians would have quite openly and frankly been our enemies.
Q And then you would not have considered Gandin a prisoner of war when you had captured him?
A If I had captured General Gandin during any action of war, then he would have been a prisoner of war, that is correct.
Q Now if you will put yourself in General Gandin's position for a minute, do you believe that there is a difference between an order from your superior notifying you to resist disarmament and an order notifying you that war has just been declared on your enemy? Do you think there is a difference between those two situations?
A I am afraid I couldn't follow the trend of that thought. Could you give it again to me please?
Q Do you believe that there is a difference between an order notifying you to resist disarmament and an order from your superior notifying you to wage war against an enemy with whom you had previously been allied?
A In actual practice, I don't believe that difference is as large as it is legally. In my opinion there is a certain difference according to international law. It makes a certain difference after all whether a state of war exists or not, but the salient point is that General Gandin was a German prisoner of war by reason of the fact that the 11th Army of which he was a member capitulated to us and surrendered. That made him a prisoner of war. That is the salient point of the whole problem.
Q General Lanz, if you received an order from Army Group E, on one hand, and an order from Hitler and the OKW on the other hand, whom would you obey if the orders were in conflict?
A I could maintain the point of view that I obey the order of my immediate superior and that it is his affair to take the responsibility for such an order towards higher agencies.
That is his business, not mine. That is why I have an immediate superior.
Q You said, General Lanz, that you considered the Italian units who resisted to be guilty of mutiny.
A Yes, that is what I said.
Q Against whom had the mutiny been committed?
A They had committed mutiny against the power under whose authority they were, by reason of the fact that they were prisoners of war. If they raise their arms against the power whose prisoner of war they are, that is obviously mutiny. I am not in the slightest doubt about that and I am firmly convinced, if German troop units which surrendered to the American forces in 1945--if there had been a division which would have said, "I am not going to participate, I am going to resist against the Americans with arms," then I am very sure the Americans would have drawn the corresponding consequences.
Q Isn't it true, General, that according to the Geneva Convention, prisoners of war who commit wrong or crimes against the power which detains them may be tried by the detaining power but that the protecting power must be informed of the trial and that a death sentence must be executed by the detaining power only after three months after which the protecting power had been notified?
A I don't know that. From the practice which is being pursued in Nurnberg, I cannot draw that conclusion and if I may add this, at that time the situation was not so that I could start to give expert opinions on international law. I am not a man of international law nor am I a jurist. I was merely a soldier who acted according to his best knowledge and belief in a situation which was extremely tense and I had the responsibility.
Q As a general officer, General Lanz, you are supposed to be familiar with the Geneva Convention, are you not?
A Yes, indeed.
Q Now isn't it true that a prisoner of war who commits wrong must be tried only by his peers--that is to say, if a general commits wrong, he is supposed to be tried by general officers?
A In the Fuehrer Order which had been issued, it was expressly stated that in this Particular case, court martial proceedings were to be instituted against the Italians. Furthermore, a particular Fuehrer Order with respect to Kephalonia affair was also in existence.
Q General Lanz, you have drawn an analogy between these Italians who as you say mutinied and prisoners of war who mutinied and I am wondering why, if the analogy is a correct one, you did not also treat these people in accordance with the Geneva Convention regarding prisoners of war, that is to say, before you conducted trials against them, why didn't you inform the protecting power or why didn't you try them by their peers? Or why did you not refrain from executing them within three months after the protecting power was notified?
AAt that time the situation was such that in accordance with the fact a Fuehrer Order was available which said that these Italians were to be treated because of their mutiny with very stringent methods; furthermore, the whole situation was so very tense that I had neither the possibility nor the time to make inquiry with Switzerland which was the protective power in this particular situation.
Q Did you ever feel that the Italians had committed mutiny against their own superiors? Let's say did you consider Vecchiarelli to have considered Gandin to have committed mutiny against Vecchiarelli?
A Yes, he did that also. He committed mutiny against Vecchiarelli and against me, against both of us in my opinion.
Q If Gandin had mutinied against Vecchiarelli, why didn't you allow Vecchiarelli's representatives to participate in the court martial trial of those officers?
A Because the fact that he committed mutiny against Vecchiarelli was merely in the background of events. The mutiny was in the first place directed against us because he, as a prisoner of war, had raised arms against us, the detaining power, although I tried everything I could to deter him from using force.
Q Would you say that Gandin also committed mutiny against Badoglio?
A I have to add here I was not particularly interested in that, I did not stress the case from that angle.
Q Did you wonder how the Allies might treat Italians who had fought with the Germans in violation of Badoglio's orders if the Allies had captured such soldiers? How would you, as a general officer, have expected the Allies to treat such Italian soldiers on their capture?
AAll I can say is I would have left that to the Allies. I can at this moment not answer such a very difficult question from my point of view.
Q Now as a matter of fact, General Lanz, the OKW didn't consider mutiny at all here, did they? They considered the Italian resisters as insurgents not mutineers.
A I believe in the affidavit of General von Buttler it is expressly stated that Hitler regarded these people as mutineers and that therefore he gave the order to shoot all these people.
Q Well now, will you look at the Keitel order of 15 September 1943 which is in Document Book 13 on page 29 of the German and page 42 of the English? As a matter of fact, General Lanz, in your volume the paragraph I am referring to is on page 31 of the German; this is page 46 of the English, Your Honors.
You will note here that there is a reference to an ultimatum which is supposed to make it clear that the Italians' commanders responsible for the resistance will be shot as franctireurs. There is no reference in this order to mutineers?
A I know that article but there had been a special order issued by the Fuehrer for the Kephalonia case and this shows that Hitler himself regarded these people as mutineers.
Q Now that you turn to page 28 in your volume, page 40 of the English, you will note that General Rendulic in a communication to the 118th Jaeger Division states that General Roncaglia is to be shot as a franctireur. When did you first consider these Italian resisters as mutineers, General Lanz? Is that your idea or is it Dr. Sauter's?
A That was Adolf Hitler's idea.
Q Wouldn't Adolf Hitler have communicated that idea to Field marshal Keitel and wouldn't Keitel have mentioned it in his order of 15 September instead of mentioning franctireurs?
A I don't know whether this order of the 15th had not already been issued when the matter was reported in the Fuehrer's headquarters, because this order was received later. The whole development in Kephalonia took place after that, after I had tried for days to move General Gandin to deliver up his arms peacefully.
Q Isn't it clear, General Lanz, that Gandin's Division satisfied all of the criteria of article 1 of the Hague Convention for belligerent status and that they were not in fact franctireurs?
A No, they were regular belligerents.
Q You could not consider General Gandin a franctireur then, could you?.
A I thought we were talking about mutiny.
Q No, I am asking you whether or not the Italians satisfied all the criteria of the Hague Convention for belligerent status and I believe you said that they did.
A Yes.
Q Did they satisfy all the -- if they satisfied all the criteria they could not have been shot as illegal or unlawful fighters or as franctireurs, could they?
A If somebody wages war without a state of war being in existence or without authorization by his Head of State he puts himself outside the laws of war.
Q How about the German soldiers who invaded Yugoslavia before a declaration of war had been made? Would you say that they could have been shot as franctireurs because they fought without a declaration of war having been made? Isn't that analogous to General Gandin's situation?
A For General Gandin the additional factor applies that he raised his arms against us without a state of war being in existence and in contradiction to the order of his immediate superior.
Q There was no declaration of war when the German army invaded Yugoslavia, was there, General Lanz?
A That is well possible, but the troops did not act in contradiction with the order of their own superiors as was the case with Gandin.
Q And if Gandin had actually received an order from Badoglio, would you say that the declaration of war was immaterial?
A. According to international law, a declaration of war always has some importance, because a declaration of war is the announcement of a state, determining whether or not this State considers itself at war with another State or not; unlike an order of a superior officer who only draws the consequences of the act taken by the State.
Q. How did you treat the Italians who deserted to the bandits and fought alongside the bandits? Did you treat them as -
A. The Italians who deserted to the bands were treated in accordance with the Fuehrer order of the 15th of September. The guilty officers of those troop units which together with the bands fought against us were shot after a special court-martial procedure.
Q. If they were shot in accordance with the Fuehrer Order of 15 September, they must have been shot as franctireurs.
A. I am not sure whether they were to be shot as franctireurs. In my opinion they could have been shot as mutineers because they committed mutiny after having surrendered in my area. Those were soldiers of an army which had capitulated to us. These men were German prisoners of war. They then deserted to the enemy and together with the enemy fought against us.
Q. Now, General Lanz, you said these men were shot in accordance with the Fuehrer Order. Now, perhaps you would like to refresh your recollection as to what the Fuehrer Order said. Isn't it true that the Fuehrer Order says that they should be shot as franctireurs?
A. What I mean on the bands is what is said immediately above what you have just quoted. What it says here is -- it does not say anything about franctireurs, in my opinion. That is page 31 of the German text and paragraph 3-a, German one.
Q. Isn't it true that it simply says what should happen to them, but it doesn't say anything about mutiny and sub-paragraph b specifically mentions that they are to be shot as franctireurs?
A. I considered that as applicable to another case; i.e, not the case of the Italians fighting together with the bands; but where they -by themselves - fight against us but without the bands.
Q How long did these courts-martial of the guilty Italian officers last, General Lanz?
A I wasn't present when they took place. An investigation preceded the procedure and I cannot tell you how long that would take, because it would be only a guess. I cannot name any figures for which I cannot take the responsibility.
Q When did you capture the Island of Kephalonia?
A The Italians surrendered on the 22nd, towards noon.
Q And on the 23rd, I believe one of your reports states, so-andso many officers were shot.
A I believe that is a mistake. I think it was on the 24th. But I may be wrong.
Q Do you recall whether any of the officers were acquitted by the courts-martial?
A I only know about those officers who were found guilty. Nothing happened to the others.
Q Do you recall that General Gandin's Chief-of-Staff was executed?
A Yes, I remember that.
Q He was executed even though he had no command functions?
A He was executed because it had been established that he was the main driving force in the whole matter.
Q Now, General Lanz, I believe you said that you mitigated the OKW order because the OKW Order said that all the Italian officers were to shot, whereas you told your subordinates to shoot only those who were guilty.
A That was my opinion, yes.
Q Now, as a matter of fact, didn't the OKW Order say that only the responsible officers were to be shot? Will you look at Book 13, at page 41 in the German and page 55 in the English?
A. Document Book 10?
Q. Book 13.
A. Thank you.
Q. This is an order which the Second Panzer Army sent on to the Fifteenth Army Corps, but I assume the Second Panzer Army received the same order from Army Group F that you did. You will note here a reference that the OKW has ordered that the commanders responsible for the resistance will be shot to death as franctireurs. You didn't have to modify any OKW order, did you, General Lanz?
A. What is said here is correct. But in my particular case Hitler had issued a special order. This is just a general order.
Q. When did this so-called special Hitler order arrive at your headquarters?
A. That was in the period between the 15th and the 20th.
Q. General Lanz, how many Italian losses were there in the course of the fighting on Kephalonia, if you can recall?
A. In my opinion, they were high -- what I saw, partly on the battlefield was in that direction, but I cannot give you an exact figure.
Q. Would you hazard a guess or an estimate.
A. I would guess that they lost about a thousand men, roughly. But it is purely an estimate. Our losses were about 240 to 250.
Q. Were any of the Italian officers shot without court-martial, Genera, Lanz?
A. I don't know that. In any case I ordered that the people were to be put before a summary court-martial.
Q. Well, your reports which you sent to Army Group E, in them you don't mention that General Gandin and his officers were shot after courtmartial. Why didn't you mention that if that had taken place?
A. The Army Group knew about it. I was in constant touch with the Army Group where the matter of Gandin was concerned.
Q. Were all of Gandin's officers shot or just some of them.
A. I stated already that I cannot give an exact figure. I don't know whether it is correct, as is said in the indictment, that all officers of the staff were shot.
I do know, however, that some officers were transported off Kephalonia together with the other prisoners.
Q. How does it happen that your report states that all of the officer of Gandin's were shot?
A. May I ask you what report you have reference to?
Q. Document Book 19, General Lanz, at page 88, of the German, page 66 of the English. In the English, Your Honors, it is on page 67. You will note there, General Lanz, that on the 24th of September, 1943, Army Group E reports under your Corps that General Gandin and all his officers were shot and the previous report on the preceding page for the 23rd of September -one day earlier -- states that you captured General Gandin and his staff. Were all these courts-martial concluded within one day?
A. I suppose that the report saying "all officers shot" is intended as a supplement to the report -- which preceded it, and that this supplement refers to General Gandin and his staff.
Q. How many officers were there on General Gandin's staff?
A. I am afraid again I can't give you an exact figure. I could only estimate.
Q. Well, would you estimate, please?
A. It was a divisional staff, and I would estimate that there were about fifteen to twenty officers in that staff. That would be in comparison with a German divisional staff.
Q. And how many officers were there in the whole division?
A. I am afraid that again I cannot tell you with any exactitude. I would estimate about 200.
Q. How many officers do you believe were actually shot?
A. I have stated that to the best of my knowledge General Gandin, his Chief-of Staff and some of the officers in his staff were executed. If I gave you a figure I did only hasard a guess.
Q. Now, in the report of Army Group E under your Corps, for the 23rd of September, the report which talks about the capture of General Gandin and his staff, it is stated that special treatment according to the Fuehrer decree is to be given to the officers.
What was so special about this treatment, General Lanz, if it was simply the routine way of dealing with mutineers?
A. The special treatment was to mean that the people were to be shot after a summary court-martial.
Q Is there anything special about that kind of treatment regarding the way you handled mutineers?
A I don't quite know what this question is driving at. I don't quite know how I should answer it.
Q Well, General Lanz, if mutineers were involved here, wouldn't the report simply say Italian officers handled in the usual way -because they had committed mutiny? Why do you use the term, "special treatment"?
A Well, I didn't ponder that problem up to now.
Q General Lanz, how far away was the judge who was with the Division at this time? I believe you stated that you had no court with your Corps at this time, but the Division had a court.
A The Division was in Joannina.
Q Did you ever ask the head of the Zudicial Department of the Division what he thought about this whole procedure?
A I believe I talked to him about it.
Q Did he tell you it was in accordance with international law to treat the Italian officers in this way?
A If I remember correctly, he said that a Fuehrer Order was in existence and therefore he as Divisional Judge could not change anything in the matter. That was a special case, an exception.
Q General Lanz, you stated that one of the motives for your strict treatment of General Gandic was the fact that you had suffered losses in the course of the combat, about forty or fifty wounded -- I beg your pardon, about forty or fifty killed and about a hundred wounded.
A No, that is not what I said. I didn't say that was one of the reasons. The losses had occurred as a consequence of the combat, and these combat actions in my opinion were superfluous and regrettable. I had honestly endeavored to avoid this fighting.
Q Are you quite sure the Italian losses during the course of the fighting were not greater than a thousand, General Lanz?
AAs I said before, I am unable to give an exact figure, because I could only just guess at it. I mentioned that the Italians losses were comparatively high, which I remember from the combat report which I saw. That's all I can say about it.
Q If you will look at NOKW--1857, which is offered as Prosecution Exhibit 623, Your Honors -- these are excerpts from the war diary of your higher headquarters Army Group E. Will you look at paragraph 4, under the entry 1425 hours, which I believe is on page 4 of the original document -- page 1 of your Honor's exhibit. It says there, General Lanz, that "in case of refusal, the Italian commanders responsible for the resistance are to be shot as franctireurs. Independently of this, the Italian commanders responsible for the resistance are to be shot after capture."
Now, would you turn, General Lanz, to the entry under the 24th of December, 1943, which I believe is on page 5 of your document, second page of Your Honor's exhibit, under Kephalonia:
"Mopping-up of Kephalonia concluded up to the northern point and to Ithaca. About 4000 Italians killed or shot, about 5000 Italians captured, since for the most part they deserted without weapons in closed battalions outside the combat zone. All officers shot."
General Lanz, you will note that it says there, "About 4000 Italians killed or shot." What does that mean?
A These 4000 Italians were killed during combat action and shot during combat action.
Q You don't think there is a distinction between Italians killed in battle and other Italians shot after the combat?
A That is difficult to establish now. Up till now I didn't know anything about it, that Italians were supposed to have been shot after the combat action. According to what I saw on the spot, these people were killed in action.
Q You believe this entry is erroneous, General Lanz?
A I don't mean to say that. I don't know who made the entry.
Q Why should the person who made that entry distinguish between killed and shot?
A I don't know where that difference originates from. I don't know. All I know is that the Italians fought there and were killed in action. That is the extent of my information up till now.
Q How many Italian officers were shot as a result of their resistance to German troops on the Island of Korfu, General Lanz?
A To the best of my recollection about eight to ten. That is what I stated on direct examination.
Q I believe you said that you knew that the Corps Commander had been shot.
A No, not the Corps Commander; the Regimental Commander.
Q He was the Commander of the Island?
A Yes.
Q Now, your I-c, Rothfuchs, sent in an affidavit according to which he does not remember that Island Commander was shot. Would your I-c have known that?
A I would really suppose that he ought to have known that, because the First Mountain Division was the division assigned to these fights. General von Stettner was in charge of the operation.
Q Do you believe, then, that Rothfuchs made a mistake in his affidavit on that point?
A I wouldn't go as far as saying that. I cannot judge what Rothfuchs remembered and what he didn't remember. I cannot comment on his memory.
Q What were your losses and what were the Italians' losses in the fighting on Korfu?
A If I remember correctly, I stated our losses as being about sixty men having drowned and the balance of the losses -- or rather, the total losses I estimated at eighty to one hundred.
Q And how many Italian losses?
A To the best of my knowledge I didn't make any statements as to that. I can't do that, because I don't know.
Q How many Italian officers were there in the Korfu Detachment?
A I am afraid I can't tell you that exactly, because to the best of my recollection a number of Italians from Albania were in Korfu and the original occupation force of the island had thus become stronger than it had originally been. And allegedly, approximately 6,000 Italians were to have been on Korfu, but again I must say I can't make any exact statements.
Q Would you look, General Lanz, at page 10 of the original document which you have there -- this is on page 3 of Your Honor's exhibit. To the entry in Army Group E's war diary for the 29th of September, 1310 hours:
"Final report; On Korfu about 600 Italians killed or shot; 10,000 deserted without weapons, mostly in closed battalions. Officers, special treatment according to Fuehrer Order."
Again you will note, General Lanz, that it is stated that 600 Italians were killed or shot. Do you have any explanation for that.
A.- I can only repeat what I said before when I talked about Kephalenia, I have no explanation.
Q.- How many officers, General Lanz, were shot during the resistance at Sarande?
A.- As far as I can see it from the lists, which I received here, there were I believe 74.
Q.- And were they all from your single battle battalion?
A.- No, they belonged to various troop units, which in the course of the combat actions had been taken prisoner in Southern Albania.
Q.- Were all those officers given Courts martial before they were shot do you know?
A.- General Stettner, in reply to my inquiring, answered that in the affirmative, that was done by the 1st Mountain Division without my knowledge and contrary to my original order.
Q.- Contrary to this, wasn't this whole Italian affair a political affair rather than a judicial or military affair primarily?
A.- I could not follow what you mean.
Q.- Well, perhaps you will take a look at Document Lanz 218, this is offered as Prosecution Exhibit Lanz 264, Your Honors. At the moment no German documents can be distributed, but we will have them in a day or so, meanwhile Dr. Sauter has a photostat copy for his examination.
General Lanz, would you turn to document B, which is on page 3 of Your Honors' copy, this is a communication from Dr. Lehmann, dated Berlin, 30 September, 1943; do you know who Dr. Lehmann was?
A.- To the best of my recollection, he was a judge in the OKW, there was a judge of that name, but I may be wrong.
Q.- The subject of his communication is "Principal rules for the treatment of soldiers of the Italian Armed Forces and the Militia of 15 September 1943." You will note, he has reference there to Hitler's Order of 15 September, 1943, which we have already concerned ourselves with in Document Book 19.
He states: "With regard to Paragraph 11, Number 3 of the "Principal Rules'" and that you will note refers to Italian officers who actively or passively offered resistance - they shall be shot as insurgents. According to information received by the High Command of the Armed Forces this Fuehrer Order is to be considered a political measure without creating any judicial competency. The Supreme Command of the Armed Forces asks that the courts be instructed accordingly."
JUDGE BURKE: Would you please repeat the last?
BY MR. FENSTERMACHER:
Q.- Do you happen to know what Dr. Lehmann has in mind with regard to this communication?
A.- I read this communication for the first time today. I did not know it up to now since I myself had no such order at the time and had no knowledge of it.
Q.- Isn't this an indication, General Lanz, that the Courts are to have nothing to do with the treatment of Italian soldiers and in fact, they are to be shot without court martial procedure?
A.- One might assume this from the document, but as I stated I did not know anything about it until now, I was not concerned with it up until now.
Q.- Now would you turn, General Lanz, to page 97 of the German document, page 99 of the English, Your Honors. I believe you stated, General Lanz that you considered an order not to take prisoners to be in violation of International law?
A.- Yes, I said that.
Q.- You passed this order not to take prisoners during the operation "verrat", did you not?
A.- I did not pass it, nor I did not know that the order was passed by my office without my knowing it to the 1st Mountain Division.
Q.- Was it customary for your subordinates, either your 1a or 1c, to pass on orders of tills kind without telling you about it?
A.- It was not customary, but it could happen. I don't know what the circumstances were at the time when we received the order. I don't know who passed it on, I can only say it was not I who passed it on, as I would not have done this.
Q.- Did you first hear about this order here in Nurnberg or had you known about it before?
A.- I read it here in this document.
Q.- For the first time?
A.- Yes, I read it here.
Q.- Would you also have disapproved of the Brandenburg Regiment wearing Italian uniforms during the course of an action if you had known about that fact?
A.- I was never in a position to have to refute that because that Regiment was committed without my doing anything about it or knowing anything about it. As a matter of fact it was not committed at all and later on one unit complained about me.
Q.- As a matter of fact, it was simply an error on the part of the Regiment regarding their landing and taking part in the undertaking?
A.- Certainly, that is how I described it, these people made an error as to time, they were too late and there was no use for them anymore, but this planned committment did not originate from an order by me, but this regiment was directly assigned to the Division.
Q.- If you had known about the Brandenburg Regiment wearing Italian uniform in a combat action against other Italian units, would you have permitted that action?
A.- If I had been in a position to avoid it, I would certainly have done that. I was no friend of such practices.
Q.- Before the Brandenburg Regiment took part in tactical operations they had to have your permission as tactical superior in Greece, did they not?
A.- That is correct in the formal sense, but in this particular case the situation was slightly different. This regiment received directives immediately from the Army Group and in order to save the detour via Joan nina these directives were immediately sent to Igumenica or Sarande. At least they were never in my area, besides they were pressed for time because they were late.
Q.- Who was in charge of the Corps Group Jeanina while you were in Hungary, General Lanz?
A.- Whom it was subordinate to? It was subordinate to Major General von Ludwiger, he was Commander of the 104th Rifle Division, he deputized for me.
Q.- You had a Court Martial operating in Jeannina while you were in Hungary, did you not, General Lanz?
A.- What do you mean in Jeannina?
Q.- While you were in Hungary you had a Corps Court operating in Jeanina, isn't that so?
A.- At the moment I cannot state with certainty whether the Court remained behind in Jeannina or whether it came with me at the moment, as I know parts of my staff accompanied me and I cannot state with certainty whether the Court came with me.
Q.- Do you recall one of your affiants stating that your Corps Court punished one of the judges for firing at a Jewish shop in the Agrinien area?
A.- The looting of the shop had not taken place in Agrinien, it was in Hungary. I believe you are making a mistake there.
Q.- Perhaps, I have, General Lanz.......
THE PRESIDENT: While you are checking the subject, we will take our afternoon recess.
(A recess was taken.)