THE MARSHAL: All persons in the Courtroom will please be seated.
The Court is again in session.
PRESIDING JUDGE CARTER: You may proceed.
DR. SAUTER: I stopped considering the question whether General Lanz had known about the armistice conditions between the Allies and Italy and I am now concluding.
Any proof concerning the statements of the prosecution has not been brought and has not been submitted. The conditions of armistice treaty were obviously not known to the Italian Commander-in-Chief Vecchiarelli and the Italian Corps Commander Joannina. Now how was General Lanz to have known about them?
The Prosecution apparently concludes incorrectly in Rendulic Doc. Book III, Document 52, page 2. This document which was taken from the War Diary of the XXXI Armored Command -- that is not the 22nd Corps of Lanz -- says that apparently Rendulic during the night of the 8th to the 9th September 1943 had informed by teletype the subordinate administrative sub-area Headquarters command of the following and I quote:
"according to the statement of Marshall Badoglio, Italian troops on the Balkans are subordinated to the American General Wilson. Therefore we have to count on armed resistance by the Italians."
To this document Rendulic I should like to comment on Lanz's behalf. He found out about the teletype of General Rendulic to whom Lanz was never subordinate, only here in the course of this trial.
At the time in September 1943, he did not know anything about a statement by Marshall Badoglio, nor did he know anything about any news via radio of Cairo. I should like to point out, however, that in the teletype of General Rendulic from 9th September 1943 it is added explicitly, -- and I quote:
"The Italian 11th Army has surrendered its heavy arms and has assured that it would not fight against Germans".
It is just this 11th Italian Army to which General Gandin belonged. It was just the Commander-in-Chief of this army who had ordered refusal to surrender arms, also for the area of General Gandin. Furthermore, I have to emphasize that neither Vecchiarelli nor Gandin nor any other Italian ever referred to an order to the contrary issued by Marshall Badoglio. They all certainly would have done so if such an order had been received by them. Moreover, the fundamental question must be raised here.
Is a German general who is in the front lines concerned with a treaty concluded between two enemy nations, and in which Germany is not a participant? We have already seen a precedent case which might make the answer to this question easier.
In the spring of 1941, Serbia swerved into the German camps. That, too, was reported by the newspapers. This, too, was reported over the radio. Several Allied Generals certainly would have read about that. I should like to ask now, does one really believe that only one Allied General respected this treaty between Germany and Serbia and believed that it was legally binding for him, and did any one of the Allied Generals actually act in accordance with that? No!
On the contrary, the Allies at that time justifiedly did everything in order to destroy this new constitution, but the German General Lanz is expected to disregard the orders of his superiors and his head of state and that he supposed to act according to the treaties which the enemy nations have concluded among themselves.
The prosecution in spite of everything does not wish to understand why General Lanz fought against the Italians at all. The Italians, the prosecution says, intended only, and I quote, -- for this is too interesting --"to remain on the Greek Islands more or less for a vacation for the rest of the war."
This argument, of course, is entirely nonsensical and I would like to ask you: would the American Occupation Force in Germany permit a German division to remain under arms and permit them to live more or less on vacation in Germany until the end of the war just because this division does not want to recognize Germany's surrender?
I should like to know, your Honors, if a German division would do that, just what would the very same gentlemen of the prosecution say to that, for to pose this question at all means to answer it in the negative.
Greece with Kephalonia and Korfu -- which of course belong to Greece -- was German zone of occupation. The people that inhabited this area during the occupation were subordinate to the jurisdiction of the occupational powers. Whether or not they were soldiers or civilians. Besides, you will find in my plea a legal reason for the fact that the captured Italians were not prisoners-of-war within the meaning of the Geneva Convention, and therefore could not claim to be subject to its provisions; but I must say that following also.
The Italians who were not prisoners-of-war are expected according to the Prosecution to have remained under the protection of the Geneva Convention. However, the German generals, who without doubt were prisoners-of-war are denied by the same prosecution the protection of this very same Geneva Convention.
It has also been said that Lanz behaved incorrectly towards General Gandin; In a leaflet which the prosecution mentions with the inclosing statement, he is supposed to have misled the Italians by mentioning the transport of the Italians to Italy. This can actually be read in this leaflet but Lanz made this statement in good faith for this order of the OKW in which the treatment of Italians was fundamentally regulated was not in his hands at that time.
On the contrary, at that time, he assumed that the Italians actually would be transported to Italy after their surrender of arms. Therefore, we cannot speak of any misleading of the Italians on the part of Lanz. Furthermore, Lanz also did not know anything about the teletype of the OKW from 11 September 1943 which was cited once again by the prosecution, and which says that the employment of captured Italians in war industry is ordered.
After the finishing of the Italian matter, this teletype to the Epirus weeks later. In connection with the case of Kephalonia and Korfu, the prosecution thought that would always be one of the most and humiliating chapters in the long history of national soldierdom. If that were the actual opinion of the prosecution, then I would have to ask again and again why then did the Prosecution not submit one single order which Badoglio at that time was supposed to have issued to General Gandin, and furthermore I ask why is it that the prosecution did not bring into the witness stand a single one of those Etalians who thank their lives to this General Lanz?
The reason, of course, is clear to me. General Gandin did not receive orders to the contrary by General Badoglio which could justify his mutiny. And all statements to the contrary are, if I may quote the prosecution more or less -- webs of fantasy" and every Italian who would have been put into the witness stand here would have become a strong defense witness for General Lanz, for his chivalry which he transformed into action at that time.
Apart from the case of Kephalonia and Korfu, General Lanz was charged that he had registered the population in Saranda for forced labor. This is also incorrect. An agency which was subordinate to General Lanz has ordered such forced labor in one case only. That is correct. This order of his subordinate agency was not known to Lanz before. He only found out about that in Nurnberg.
But this order did not command forced labor which was against international law for Saranda at that time belonged to the State of Albania which at that time was independent and unfriendly terms with Germany and did not belong to Greece, and the inhabitants of this state in Albania who were conscripted for forced labor only worked for the defense of their own country and were not working for German military purposes. That was permitted.
General Lanz was further cited in the closing argument of the prosecution in relation to a file note of the 18th of October 1943 according to which 160 persons on the order of the 1st Mountain Division were to be deported into the Reich proper. In this connection I wish to state that of this order of the 1st Mountain Division Lanz found out at the time but only through the subsequent report of the division, that is to say through the oral report of his staff officer Henke, who was 1c in his staff. Lanz at that time prohibited that any of these people should be deported into the Reich, for he said he needed those people to keep up the various communications and did not want them deported and that was conclusively established on cross examination. I am now coming to a further point: in one single case in which Lanz was charged with an operation against the Jews, namely with the Jewish deportation from Corfu. They say he permitted the forced evacuation of 1800 Jews from Corfu by an SS unit. This is the expression of the prosecution. Lanz never gave such an order nor does the prosecution contend he did so, rather he rejected any participation in this operation, and informed the army group of this. This operation at that time had been ordered by the SS and was to be carried out by the SS. Lanz criticized this operation and stated expressly that he could not give up any shipping space or escort for such an operation. The operation was carried out by order of the Reich Fuehrer and SS and police. The necessary shipping space was made available by the Navy commander in Patras who was not subordinated to General Lanz. The assertion that General Lanz was supposed to have helped the SS in the carrying out of this operation was not proven in any way. It was not correct. General Lanz then did neither order this operation against the Jews or Corfu nor did he participate in it. He had nothing to do with it, nor does he know even today whether the army group made available barracks for the temporary housing of the Jews as the prosecution charges. He was never chief of the army group and had nothing to do with things of that sort, however, from the long long time that Lanz was active this is the only case in which he was brought into contact in any way with the Jewish question.
Not even the prosecution can level any more charges in this direction against him. A further point: I am surprised that in spite of our evidence the question of the commissar order has been again made an object of a charge against Lanz. He has stated at the time that he had received the commissar order at the time in Russia, and that he had given explicit orders to the commanders under his command that even commissars were permitted to be shot only in combat. That has been proved by seven or eight affidavits. Lanz had clearly stated to the troops that were under his orders that the very same thing was true in the case of commissars as in the case of any other enemy, even a commissar according to severe and strict orders of Lanz, a commissar too could only be shot in combat. If the commissar surrendered or was taken prisoner in any other way even the commissar, according to the clear orders of General Lanz, was privileged to be under the protection of the Geneva Convention in the same way as any other prisoner of war, nor was it said, let alone proven, that the troops of General Lanz shot a commissar in a manner contravening International Law. One report of a war correspondent has been submitted, from which is to follow that among eighteen thousand Russian prisoners only one commissar was found and that this commissar after an interrogation that lasted three hours was shot by the German troops. Whether or not this report of the war correspondent is in conforming with the actual facts, General Lanz does not know. He believes he is very skeptical concerning such situation reports by newspaper reporters, for in such cases facts are frequently mixed up with imaginary incidents. In any case, Lanz did not order the shooting of this one and only commissar he knew nothing about it and only found out about it here in Nurnberg. But if you wish to be objective, then in order to evaluate such a case it must be said that in this report of the newspaper reporter something else was mentioned too-that was that the commissar in question was supposed to have shot at his own people from the back and was therefore reported to the German troops by his own men.
If in such a case, gentlemen, the indignant troops shoot down such a dog, we certainly are not surprised about it.
May it please the Tribunal, I would like to conclude my comments on rebuttal, without expressing my great surprise about the whole tenor of this statement. Already on Friday last I objected to the prosecution here charging these defendants with not having acted like men. The prosecution now thought it was right to say especially about the defendant General von Geitner that he had compared his position as chief of Staff of a corps with a crossing of a Secretary and an office clerk, or perhaps a postman, mailman, or a messenger boy whose task it was to correct typographical errors, to dust the desks, to sharpen pencils and lick the banks of postage stamps. These are expressions which can also be found in the written statement of the prosecution even though one cannot think such a thing possible. Your Honors, with making a man like von Geitner contemptible to such a degree, truth and justice have not gained anything. Every one of the defendants here and Geitner too has achieved a great deal during their lifetimes and have faithfully and honorably served their Fatherland for decades. Every one of these men has made efforts to fulfill their duties as citizens and soldiers in an exemplary manner. I believe it does not correspond to the significance or customs of this court nor to the historical tasks of this trial if a German general, just because he claims not to have had the executive powers, is compared to an office boy and made ridiculous, or if his functions are mad contemptive. The situation here is much too serious. The defense has endeavored to keep up a level of objectivity and chivalry which corresponded to its task during this trial and I am sorry that the prosecution has lowered this level to a way of expression which in the framework of the Nurnberg trials I have not experienced heretofore and I would not have thought possible. But there is something else, I would like to mention in conclusion, your Honors. My clients during the seven months during which the trial has lasted have won the impression that you gentlemen will not become tools of vengeance and hatred.
For whoever sows the seeds of hatred will reap storm.
You as the judges will not see in these defendants criminals, only because they are designated as such by the Prosecution, but you, the judges, with your conscientiousness will investigate and establish the real deeds and the motives of these Generals. Furthermore, Your Honors, you will evaluate the actions of these Generals from the conditions prevailing at the time, and you will think yourself into the very difficult position in which the Generals on the Balkans were at the time. You, the judges, finally will compare the charges levelled against these Generals with all the other events in the world during the last years and with events that are transpiring even today. The more you will be successful in this, your task, Your Honors, the more certain your decision will be, a just and wise decision, recognized by history as such.
Thank you.
JUDGE CARTER: The Defense having used their allotted time, we will now hear the rebuttal statement of the Prosecution. This phase has been limited to one hour and thirty minutes.
MR. FENSTERMACHER: Your Honor, before beginning the Prosecution's rebuttal statement, I should like to distribute two additional lists just to bring the files and records up to date. The first is a list of Prosecution exhibits which were introduced during the rebuttal and during the cross examination of the Defense affiants. This may be marked for identification purposes as Exhibit 677.
Your Honors will note on the fourth page of the document that we have stated as the date on which this particular exhibit was admitted the date, 7 February 1948. That, of course, should be changed to read 10 February 1948.
Now as Prosecution Exhibit 678 we offer a list of the rebuttal witnesses and Defense affiants indexed to the English transcript of the record, and then if Your Honors would please note at the very bottom of Exhibit 677, the Exhibit 678, the date 10 February 1948 and the fact that this is a diary of rebuttal witnesses and Defense affiants indexed to the English transcript.
I beg your pardon, Your Honors. I am told this is 9 February rather than 10 February 1948.
We have followed the arguments made last week by counsel for the defendants, and have read and reread these arguments over the week-end. While a great many words have been spoken, so far as we can see they encompass relatively few thoughts and, with only one or two exceptions at most, no new thoughts at all. In reply, therefore, the prosecution will be extremely brief. This trial has already lasted far longer than anyone expected it would when it started, and we have no desire to protract it on this, its last day, by belaboring the obvious or burdening the court with a detailed refutation of many arguments based on patent misconceptions and distortions. We will content ourselves with but one glaring example. Counsel for the defendant Speidel claims that the prosecution said the Hague rules would not be involved in this proceeding, and in support quotes as follows from the prosecution's opening statement:
"We have not sought and will not seek in this case to make murderers out of soldiers for the violation of rules framed in 1907."
DR. WEISSGERGER, in this little maneuver, had adopted the delightfully simple expedient of dropping off the last part of the sentence which read:
"if those rules today are outmoded and generally disregarded." This particular item is somewhat more amusing but no more absurd than many other which could be cited.
In general, it may be said that the one important point which has emerged from all the arguments that have been made on behalf of all the defendants is that it has now become quite clear, if it was not already so, that the real defense here is a denial of the validity of international law itself. Defense counsel have laid hold of every possible device in order to induce and delude this Tribunal to render a decision which would nullify the laws of war and international law.
We cannot believe that the Tribunal is sole audience to which this argument is addressed. We think it quite likely that an equally important purpose has been to put these anarchistic and nihilistic views on the record for like minded people to read in future years. For the most part these so-called "arguments" embody their own refutation. It will be a sad day for the world if they are ever taken at face value.
In closing this case, therefore, we plan to devote most of the short time we will consume to a discussion of these fundamental questions with respect to the content and nature of the laws of war and international penal law. There is absolutely no need at this time to review the evidence again with respect to the individual defendants. There are, however, several points which have been raised in respect to the defendants List, Foertsch and Rendulic which warrant a few words.
Dr. Laternser argues that List's order of 4 October 1941 was in effect a limitation on the OKW order of 16 September - restriction, if you please, by the very man who had passed on the OKW order in the first place. The Keitel directive provided that hostages were to be executed at fixed ratios. The List order of 4 October merely specifies what classes of persons were to be used as hostages. List was not restricting Keitel; he was merely supplementing him.
List's involved explanation why he was never informed of the Boehme 100:1 order of 10 October 1941 also falls short of the mark. He would have us believe that such an important order was sent by a courier, in fact a courier who must have been hobbled since he took over five days to travel from Belgrade to Athens. Moreover, List's lack of knowledge also assumes that there was no telephone or teletype communications between Belgrade and Athens, a state of affairs which we know did not exist.
List further asserts that Boehme's order of 2 October 1941 ordering the execution of 2100 Serbs was based on an order directly forwarded to Boehme by the OKW. Foertsch never mentioned that fact during his examination. Moreover, General Pemsel, who was Boehme's Chief of Staff at the time, expressly stated that the order on which Boehme's 2 October order was based came to the staff of the Plenipotentiary Commanding General in Serbia from the 12th Army. Who better than Pemsel would know from which agency that order had been received? It is unbelievable that List had no knowledge of that order.
Dr. Laternser denies that the German violated their duties as occupying power in Greece and Yugoslavia or that such violations were a motivating cause for the hostile actions taken by the civilian populations. The Weichs 100:1 order of 28 April 1941 is not irrelevant to this case simply because its author has ceased to be a defendant here. That order was no idle threat, for the very poster announcing the 100:1 ration expressly stated that 100 Serbs had already been shot in retaliation for the death of one German soldier. What occupation duties had the German violated? It was their invasion that caused, and their occupation and exploitation which aggravated, starvation in Greece; they carved up Yugoslavia, annexed a portion of it to the Reich itself, gave Hungary and Rumania portions of the Banat, assigned sections of Macedonia to Bulgaria and created a fictitious sovereignty in the guise of the independent state of Croatia; they arrested all Jews in Yugoslavia, with the result that by the summer and fall of 1942 Streicher's newspaper could announce the death of 18,000 Jews in Croatia and 85,000 in Yugoslavia. It was these acts, in addition to the carrying out of the German reprisal policy, that constituted the German violations of their duties as occupiers.
It has also been contended that the German measures in the Southeast were solely counter or defensive measures provoked by acts of the occupied peoples. Dr. Laternser, dramatically defies us to name one reprisal action which was not preceded by an attack upon German soldiers.
Can he have forgotten Distomon and Klissura?
Dr. Laternser claims, too, that the resistance movement in Greece and Yugoslavia was unlawful and that an occupying power has a right to punish those guilty of hostile acts against it irrespective of whether the requirements of Article 1 of the Hague Rules for belligerent status are fulfilled. Were such the law, Article 1 would be complete meaningless.
It is contended that the partisans were not "militia or volunteer" corps within the meaning of Article 1 of the Hague Rules. Even if the partisans, as Dr. Laternser contends, did not form a part of the Yugoslav and Greek Armies, they were certainly volunteer corps within the meaning of that term as used in Article 1.
In arguing that the partisans did not fulfill the requirements of Article 1 because they were not "commanded by a person responsible for his subordinates", Dr. Laternser insists that according to the British Manual of Military Law, that requirement can be satisfied only if some state is in existence. Had he quoted the entire section, rather than a mere fragment, of the British manual to which he refers, it would be quite clear that it gives no support whatever to the principle which he seeks to establish. Paragraph 22 of the British Manual reads as follows:
"22. The first condition, 'to be commanded by a person responsible for his subordinates,' is completely fulfilled if the commander of the corps is regularly or temporarily commissioned as an officer or in a person of position and authority, or if the members are provided with certificates or badges granted by the government of the state to show they are officers N.C.Os., or soldiers, so that there may be no doubt that they are not partisans acting on their own responsibility. State recognition, however, is not essential, and an organization may be formed spontaneously and elect its own officers."
DR. LATERNER argues also that the requirement with respect to insignia was not fulfilled because the insignia was worn on the partisans' headgear. It is hard to conceive of any more prominent place to display insignia. Had the partisans intended to throw away such headgear immediately before capture, as Dr. Laternser asserts, it is difficult to see why any such insignia would have been worn in the first place. There is, of course, no requirement that insignia be uniform, and so the fact that one group of partisans wore insignia different from that of another group is wholly irrelevant to the to the question whether the insignia requirement of Article 1 was met. It is apparent from the defendants' testimony that partisan insignia was not particularly important anyway because of the nature of the partisan attacks -- the fact that they were made at night, from ambush and the like. Moreover, all of the defendants have admitted that partisans would have been executed no matter what insignia they had worn. Even if it be conceded that the partisans wore no insignia at all, this fact would have been no justification for the German reprisal actions against the civilian population.
Nor is there any requirement in Article 1 of the Hague Rules that the partisans, in order to be treated as belligerents, must be acting under state authorization. The concept that wars are conflicts between stales and not individuals is as outmoded as the writers Dr. Laternser cites to sustain it.
But even if the criteria of these authorities who insist upon state authorization of partisan fighting be accepted, the Greek and Yugoslav partisans fulfilled all such criteria. Nurick and Barrett's criteria were not violated in the case of the Greek and Yugoslav partisans, because their governments had not formally surrendered to Germany but rather continued their existence in exile in London. Moreover, the Greek and Yugo-slav partisans were numerous enough to constitute a "de facto" government within the scope of Murick and Barrett's requirements.
Oppenehim's criteria were also fulfilled, since there had been no "downfall" of the enemy governments of Greece and Yugoslavia.
It is contended that the partisans had no connection with their governments-in-exile. Yet we have heard much about Allied military missions with the partisans. The witness Triandaplyllidis himself testified to the orders and reports which were exchanged between the Greek EDES units and the Allied Middle East Command in Cairo.
Dr. Laternser maintains that the type of hostage whose killing is made criminal by the Charter and the Control Council Law is the "Traditional" or "peace" hostage and not the "reprisal" hostage. The use of "peace" hostages, and even "danger" hostages has declined almost to to non-existence in modern times. It is inconceivable that, since thousands of hostages were executed in reprisal for hostile note during the last two wars, this was not precisely the practice which the Charter and Control Council Law condemned. If these statutes were held not to include the execution of all kinds of hostages, they would be completely anachronistic and meaningless.
Dr. Laternser argues that the law concerning hostages is not clear and cites examples which allegedly prove that the right to execute hostages is recognized by all the great powers in the world. How alleged threats by Lincoln and Sherman to execute enemy prisoners of war are supposed to support his contention is somewhat difficult to follow. Reprisal executions of prisoners of war are flatly outlawed by the Geneva Convention. If Lincoln and Sherman made the threats which Dr. Laternser attributes to them, we can congratulate ourselves on having made some progress in the right direction since 1865.
Even if Dr. Laternser's unproved assertion that Belgium took hostages in the Rhineland in 1918 be granted, not even he contends that any of those were executed.
Now were any hostages executed by the Allies during World War II. A good example of the kind of proof that has been adduced by the defense in support of allegations of Allied hostage executions is the evidence concerning Markdorf. One affiant says that in the beginning of May 1945 a 30:1 hostage proclamation was posted by the French. Another affiant says that upon the death of a French soldier in Markdorf a 10:1 hostage ratio was intended to be applied. It is more than doubtful that there was any proclamation at all. Dr. Laternser, inclaiming that hostages were executed at Markdorf at a ratio of 4:1, is citing his client's own affiant improperly. Wilhelm Kahles, the former mayor of Markdorf, expressly stated that there was a rumor that four persons had been shot as hostages in reprisal for the death of a French soldier but that "this is not in accord with the facts". Kahles himself gave the lie to the other affiants who mentioned 30:1 and 20:1 hostages proclamations by stating:
"I do not know of any placard containing any sort of threats by the French Army in case of hostile acts by the civilians or individual German soldiers."
No hostages were executed at Birkenfeld and, indeed it is quite unlikely that any threats to execute hostages were ever announced in that town. None of the affiants who testified about an alleged 10:1 proclamation published by the French in that town in July 1945 ever saw the proclamation themselves. They simply talk about having been given a copy of such a proclamation by an unknown third party who supposedly tore down the proclamation from a public posting place sometime during the summer of 1946. There is no evidence whatever to show where or when the proclamation was supposedly posted. If any proclamation had been publicized as widely and for so long a time, as the affiants contend, why was no eye witness brought here to testify.
In all their arguments with respect to charges that other nations have also taken and executed hostages, the defendants overlook one fundamental point. There is a great difference between showing that someone else may also have committed a crime - which may be interesting but is in no way a defense to the defendant in the case at bar - and showing that by a sustained course of conduct and usage certain behavior has been recognized as lawful. In this latter respect, the defendants' own evidence has boomeranged very painfully. It is surprising that they have not been more successful in proving instances where German hostages were executed by the troops of other countries during the recent war. France, for example, was occupied for over four years by the Germans and hostage executions were almost a daily occurrence there. It would have been perfectly understandable if after the French troops had crossed the Rhine a whole series of retaliatory executions of German civilians had been committed. What surprises us is that the defendants, although they have combed all of Western Germany in an effort to obtain affidavits describing such occurrences, have only succeeded in dredging up one instance - the execution of four persons at Reutlingen. But even in that case, it is not at all clear whether the four persons were executed as hostages or whether they were executed because they had been responsible for the shooting to death of a French soldier the day before. The dearth of evidence which the defendants have been able to produce on this point is proof positive that their conduct is recognized universally as indefensive, criminal, and violative of the usages of war. We are very much indebted to counsel for the defense for strengthening our arguments by their failures.
The ambiguity in the American Army's basic field manual on the hostage issue was definitely resolved by the attitude of the American 6th Army Group when it rescinded the LeClerc 5:1 hostage order in Strassbourg. If the manual had indeed authorized the execution of hostages, when would there have been a better time to rely on such a provision?
As is made clear from the entire file of the Adjutant General's office which was introduced into evidence, hostages, under the American Army conception, must be treated as prisoners of war and may not be executed under any circumstances.
It is incomprehensible why Dr. Laternser mentions the Kesselring case as being any authority for what the defense is contending here. The LOndon Charter was not mentioned in that case, simply because it involved the law of reprisals and not hostage law. No hostages were involved in the Ardeantine Cave massacre, but rather prisoners who were already condemned to death as criminals.
Even though there was only a 10:1 killing of condemned criminals rather than of hostages, and even though the general laws of war rather than a specific statute were involved, the sentence by the military court in the Kesselring case was that of death.
In asking why, even if the execution of hostages is not unlawful, the names and addressed of hostages must be announced to the population at the time of their seizure, Dr. Laternser gives his own answer by pointing out the hostage requirements which are set forth in Waltzog's commentary. When he says that a "spiritual" connection between the hostage and the perpetrator of the hostile act, or that their common nationality are sufficient, Dr. Laternser isl, of course, making up his rules to fit the game, and rules which are devoid of any conceivable meaning at that.
Well aware that under the law of reprisals the hostage executions by the defendants could not be justified, Dr. Laternser carefully avoids any mention of the ratios employed during the German occupation of the Southeast. He maintains that the requirement that reprisals be not "excessive" is simply a criterion of military necessity, and he cites Professor Hyde as authority for the point of view that only a commander may be the judge of the military necessity for a particular measure.
Had he quoted the previous portion of Professor Hyde's statement on military necessity, he would have given a less distorted version of that author's attitude on military necessity. Professor Hyde says:
"In a word, military necessity, as understood by the United States, does not purport to indicate circumstances when a belligerent commander or State is free from a duty to observe the law of nations. It does not embody a formulation of excuses for lawlessness. It does not signify the use of force in opposition to law. It betokens rather the extent and mode of violence which, in accordance with law and therefore with propriety, may, under varying circumstances, be employed in the prosecution of war."1 (underlining added) Nor can it be fairly argued that in the German Army only divisional commanders were authorized to order reprisal measures.
If that were so, then General Felmy must not have known about such a provision. The Klissure and Distomon reprisals were ordered by mere company commanders who stated that they felt that their actions would have been approved subsequently by higher authorities.
Under the American Rules of Land Warfare the "highest accessible military authority" must be consulted before reprisals may be ordered. A subordinate commander may order reprisals upon his own initiative only if immediate action is demanded as a matter of military necessity. The Rules go on to provide that if "hasty or ill-considered action may subsequently be found to have been wholly unjustified, it will subject the responsible officer himself to punishment as for a violation of the laws of war, and seriously damage his cause." In view of the clarity 1. Hyde International Law, Vol.
III, p. 1802 of the American position, it is particularly significant that no subordinate German commander who ordered reprisal measures was ever punished by any of these defendants.
Dr. Laternser has no answer to the statements on the law of superior orders and the many precedents cited in the Prosecution's brief on that point. He makes no retort to the interpretation or application of Paragraph 47 of the German Military Penal Code on the question of superior orders. The fact remains that these defendants not only executed the criminal orders forwarded to them from OKW, but in many cases even exceeded those brutal prescriptions. The fact remains, too, that not one German general in the entire German Army was ever executed for having disobeyed a superior order. The true test on the question of superior orders is, as the IMT pointed out, not the existence of the superior order, but whether or not there was moral choice in carrying it out. Not only legal and moral choice was possible, but factual choice also existed for these defendants.
We are also indebted to defense counsel for having bolstered our "bomb in the mail box" theory of guilt. Kuntze, for instance, denies responsibility for measures which, though occurring after he assumed command, were prescribed by his predecessor's orders, with which Kuntze says he was not yet familiar. This puts the finger squarely on List. The converse would seem to be that Kuntze is liable for acts committed in execution of his own orders even after he left the Southeast. Kuntze, however, wants to seize the rose without being pricked by the thorns. He refuses to accept the blame for events which occurred after his own departure and before his successor could become acclimatized.
He further maintains that he gained knowledge of various OKW reprisal orders only gradually in the course of his tenure. He says, for example, that he did not know about the Boehme 100-1 order of 10 October 1941 and that if he had known about Boehme's excesses, he certainly would have interfered. If this is true, it can only mean that Foertsch bears a good deal of responsibility for events which occurred during Kuntze's period in office.