Document Analyst's Report

During May I worked through the nine document books of Field Marshal List and the entire defense set of General Rendulic, for a total of 226 documents and 1260 pages of material. General Rendulic takes the case out of the Balkans for charges related to the scorched-earth withdrawal from northern Norway, but the issues and events are like those already presented by other defendants. Since List was the highest-ranking defendant, the stakes were higher, the issues more wide-ranging, and his defense material richer and more detailed.

Editing an exhibit: Many of the prosecution documents were extracts from captured German military records, including the notorious "Terror Order" in which Hitler and Keitel ordered that the vast newly conquered territory in the east must be ruled by terrorizing the population into submission. List argued that the prosecution's extract implied that the order was sent to and applied by his command in the Balkans, and he presented the full text that showed it was directed specifically to the army in the Soviet Union. When this was presented in the trial, the presiding judge noted the discrepancy between the two exhibits drawn from the same document and commented that the misleading prosecution version "does not reflect to the credit" of the (unnamed) prosecution staff member who had prepared it.

Et tu: A major defense argument was that the generals should not be charged for holding hostages and sometimes executing them in reprisal for partisan attacks and sabotage, because the Allied forces had done the same thing. The point was not that two wrongs made a right, but rather that the Allies had recognized the legitimacy of the practice under the laws of war. When an army has defeated an opponent and occupied its territory, the occupier takes responsibility for the survival of the population, the population is obliged to accept the occupation peacefully, and the population is collectively responsible for any violations. In fact, one French general issued a reprisal order against German residents in Strasbourg in late 1944, stating that he would shoot five Germans for any French soldier killed. General Eisenhower's staff quickly had the order withdrawn. Eisenhower himself provided an affidavit for the defense stating that the order had been issued and then withdrawn, but he carefully refrained from stating whether he would have approved or cancelled any reprisal order. One newspaper article stated that in December 1944 Eisenhower prohibited the execution of any German POWs in reprisal for guerrilla attacks, since POWs were protected by the laws of war, but that reprisals against German civilians would be permissible. It not evident what policy Eisenhower actually had on that point.

The field marshal away from the front: The most interesting document about any of the defendants was introduced for a mundane reason: to prove that List was not on duty on the days a particular (alleged) crime occurred in 1941. This document was List's personal diary, recording where he was and what he was doing: In June, at home in Vienna, he enjoyed a bottle of champagne brought from Paris by another officer. Two days later he was in Berlin: "Breakfast with the Fuehrer and a small group" for a two-hour meeting. In July, Vienna again: "everybody well at home! What a blessing, what happiness!" In August, Greece: "Bath [i.e., swimming] in the gulf of Marathon . . . wonderful evening." After surgery, home again and in a reflective mood: "Wonderful Christmas Eve and friendly gathering. How well off we are; millions at the front in storm and cold and in the middle of battle!!!"

Matt Seccombe, 2 June 2016