But as to the commanding general of occupied territory who is charged with maintaining peace and order, punishing crime and protesting lives and property, subordinations are relatively unimportant. His responsibility is general and not limited to a control of units directly under his command. Subordinate commanders in occupied territory are similarly responsible to the extent that executive authority has been delegated to them.
Much has been said about the participation of these defendants in a preconceived plan to decimate and destroy the populations of Yugoslavia and Greece. The evidence will not sustain such a charge and we so find. The only plan demonstrated by the evidence is one to suppress the bands by the use of severe and harsh measures. While these measures progressively increased as the situation became more chaotic, and appeared to have taken a more or less common course, we cannot say that there is any convincing evidence that these defendants participated in such measures for the preconceived purpose of exterminating the population generally.
Neither will the evidence sustain a finding that these defendants participated in a preconceived plan to destroy the economy of the Balkans. Naturally there was a disruption of the economy of these countries but such only as could be expected by a military occupation. There were unlawful acts that had the effect of damaging the economy of Yugoslavia and Greece, possibly the result of a preconceived plan, but the evidence does not show the participation of these defendants therein.
There is evidence to the effect that certain reports and entries in the war diaries do not reflect the truth and were not intended to do so. The explanation is made that certain orders received from the High Command were so harsh and severe that resort was had to subterfuge to appease the insistent demands of superiors. It is asserted, for example that the number of reprisals taken against the population was increased above the actual number for this purpose and that the number of killings was inflated for the same reason.
In this connection we desire to point out that the records of the German Army are mute evidence of the events and occurrences which they themselves made. Statements contained therein which are adverse to the interests of the defendants approach the status of admission against interest. If the evidence and circumstances sustain such an assertion of falsity, we will of course give credence to it, but there are limitations beyond which the most credulous court cannot go.
In determining the guilt or innocence of these defendants, we shall require proof of a causative, overt act or omission from which a guilty intent can be inferred before a verdict of guilty will be pronounced. Unless this be true, a crime could not be said to have been committed unlawfully, wilfully and knowingly as charged in the indictment.
In making our findings of fact, we shall give effect to these general statements except where a contrary application is specifically pointed out. We shall impose upon the prosecution the burden of proving its case beyond a reasonable doubt. We shall also adhere to the rule that the defendants will be presumed innocent until proven guilty by the required quantum of competent evidence. With these general statements in mind, we shall turn to a consideration of the charges against the individual defendants.
A brief historical background is helpful in dealing with issues here involved. The troubles of the German Wehrmacht in the Balkans began in October 1940 with the commencement of the war on Greece by Italy. Until that occurrence, Greece was a neutral nation and immune to invasion by the allied powers without the violation of fundamental concepts of the rights of neutrals. The attack on Greece by Italy, an ally of Germany, transformed that country into an active belligerent which welcomed the aid of the allied powers. The failure of the Italian forces to subjugate Greece opened the way to possible invasion of continental Europe by allied forces. To prevent such a contingency, Germany deemed it necessary to occupy Greece.
Arrangements were made for the passage of troops through Bulgaria for the attack on Greece and a treaty was made with the then existing government of Yugoslavia which insured non-action on its part. A few days after the making of the treaty with Yugoslavia, strong opposition developed in that country which resulted in the overthrow of the government and a disavowal of the treaty. The Germans, deeming it a military necessity to protect against the possibility of an attack from the rear and a disruption of its supply lines, determined to crush Yugoslavia as a part of the campaign against Greece. Once again international law gave way to military expediency on the part of the German Wehrmacht and neutral Yugoslavia was invaded. As we have heretofore shown, both countries were overrun and the German Wehrmacht became occupants within the meaning of international law.
The territory was particularly favorable to the guerrilla warfare which soon broke out. Local political, religious and racial conflicts had provided a training ground for this sort of fighting. The various conflicting elements of the population, over a period of time, were gradually welded into a common partisan front. The guerrilla methods of the partisans and the attempts of the Werhrmacht to eliminate them by a campaign of intimidation provides the basis for the prosecutions here brought.
A similar situation developed in Greece after the capitulation of the Greek armies. While it is true that the partisans of Greece were never able to organize a common front to the extent it was done in Yugoslavia, the methods of the various partisan organizations were very much the same. Guerrilla tactics were employed. German troops were ambushed; transportation and communication systems sabotaged. The capture of the perpetrators was next to impossible. Again draconic measures of terrorism and intimidation were indulged in an attempt to subjugate the country. It was with this situation that List, Kuntze, Loehr and von Weichs had to deal in their capacities as over-all commanders in the southeastern area.
THE PRESIDENT: The Tribunal will be in recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: All persons in the Courtroom please take their seats.
The Tribunal is again in session.
THE PRESIDENT: Judge Burke will continue reading the opinion.
The Defendant Wilhelm List was the fifth ranking Fieldmarshal in the German Army. He was a thoroughly trained and experienced military commander. He was the commander-in-chief of the Twelfth Army during the invasion of Yugoslavia and Greece, and, in addition thereto, in June, 1941, became the Armed Forces Commander Southeast, a position he retained until illness compelled his temporary retirement from active service on 15 October 1941. From July to September, 1942, he was returned to active service as commander-in-chief of Army Group A, an army group operating on the Russian front. He stands charged on all four counts of the indictment.
On 9 June 1941, Hitler appointed the defendant List to be Wehrmacht Commander in the Southeast with headquarters in Salonika. His commission provided that the Wehrmacht Commander Southeast is the supreme representative of the Wehrmacht in the Balkans and exercises executive authority in the territory occupied by German troops. Directly subordinated to him were the "Commander Serbia", the "Commander Salonika-Aegea" and the "Commander of Southern Greece". Among the duties assigned was the safeguarding of the unified defense of those parts of Serbia and Greece, including the Greek Islands, which were occupied by German troops, against attacks and unrest. The defendant Foertsch, who had become Chief of Staff of the Twelfth Army on 10 May 1941, continued as Chief of Staff to the defendant List in his new capacity as Wehrmacht Commander Southeast.
The record shows that attacks on German troops and acts of sabotage against transportation and communication lines progressively increased throughout the summer of 1941. Even at this early date, the shooting of innocent members of the population was commenced as a means of suppressing resistance. Excerpts from the war diaries and orders of the participating units reveal, for example, that on 5 July 1941 thirteen communists and Jews were killed in reprisal in Belgrade; on 20 July 1941, fifty-two communists, Jews and members of families of band members were killed in reprisal for the attack on General Lontschar; on 25 July 1941, 100 Jews were killed in Belgrade because a sixteen year old Serbian girl threw a bottle of gasoline at a German motor vehicle at the alleged instigation of a Jew; on 29 July 1941, one hundred and twenty-two communists and Jews were killed in Belgrade in reprisal for acts of sabotage; and many other orders and reports showing the shooting of hundreds of the inhabitants in reprisal.
On 5 September 1941 the resistance movement had developed to such a point that the defendant List put out an order on the subject of its suppression. In this order, he said in part: "In regard to the above the following aspects are to be taken into consideration: * * * Ruthless and immediate measures against the insurgents, against their accomplices and their families.
(Hangings, burning down of villages involved, seizure of more hostages, deportation of relatives, etc., into concentration camps)."
On 16 September 1941, Hitler in a personally signed order, charged the defendant List with the task of suppressing the insurgent movement in the Southeast. This resulted in the commissioning of General Franz Boehme with the handling of military affairs in Serbia and in the transfer of the entire executive power in Serbia to him. This delegation of authority was done on the recommendation and request of the defendant List to whom Boehme remained subordinate.
On 16 September 1941, Fieldmarshal Keitel, Chief of the High Command of the Armed Forces, issued a directive pertaining to the suppression of the insurgent movement in occupied territories. The pertinent parts of this order are: "Measures taken up to now to counteract this general communist insurgent movement have proven themselves to be inadequate. The Fuehrer now has ordered that severest means are to be employed in order to break down this movement in the shortest time possible. Only in this manner, which has always been applied successfully in the history of the extension of power of great peoples can quiet be restored.
"The following directives are to be applied here: (a) Each incident of insurrection against the German Wehrmacht, regardless of individual circumstances, must be assumed to be of communist origin. (b) In order to stop these intrigues at their inception, severest measures are to be applied immediately at the first appearance, in order to demonstrate the authority of the occupying power, and in order to prevent further progress. One must keep in mind that a human life frequently counts for naught in the affected countries and a deterring effect can only be achieved by unusual severity. In such a case the death penalty for 50 to 100 communists must in general be deemed appropriate as retaliation for the life of a German soldier. The manner of execution must increase the deterrent effect. The reverse procedure - to proceed at first with relatively easy punishment and to be satisfied with the threat of measures of increased severity as a deterrent does not correspond with these principles and is not to be applied."
This order was received by the defendant List and distributed to his subordinate units.
On 25 September 1941, General Boehme issued an order to his subordinate units in part as follows:
"After dissemination, destroy!
"In March of this year, Serbia shamefully broke the friendship treaty with Germany, in order to strike the German units marching against Greece in the back.
"German revenge stromed across the country.
"We must turn to new, greater goals with all our forces at hand. For Serbia, this was the sign for a new uprising, to which hundreds of German soldiers have already fallen in sacrifice. If we do not proceed here with all means and the greatest ruthlessness, our losses will climb to unmeasurable heights.
"Your mission lies in carrying out recommaissance of the country in which German blood flowed in 1914 through the treachery of the Serbs, men and women.
"You are avengers of these dead. An intimidating example must he created for the whole of Serbia, which must hit the whole population most severely.
"Everyone who wishes to rule charitably sins against the lives of his comrades. He will be called to account without regard for his person and placed before a court martial."
On 28 September 1941, Fieldmarshal Keitel directed the following order to the defendant List:
"Because of the attacks on members of the Wehmacht which have taken place lately in the occupied territories it is pointed out that it is opportune for the military commanders to have always at their disposal a number of hostages of the different political persuasions, - i.e. (1) Nationalists (2) Democratic Middle-Class, and (3) Communists.
"It is of importance that among these are leading personalities or members of their families. Their names are to be published.
"In case of an attack hostages of the group corresponding to that to which the culpril belongs are to be shot.
"It is requested that commanders be informed in this sense."
On 4 October 1941, the defendant List directed the following order to General Bader, the Plenipotentiary Commanding General in Serbia:
"The male population of the territories to be mopped up of bandits, is to be handled according to the following points of view:
"Men who take part in combat are to be judged by court martial.
"Men in the insurgent territories who were not encountered in battle, are to be examined and --
"If a former participation in combat can be proven of them to be judged by court martial.
"If they are only suspected of having taken part in combat, of having offered the bandits support of any sort, or of having acted against the Wehrmacht in any way, to be held in a special collecting camp. They are to serve as hostages in the event that bandits appear, or anything against the Wehrmacht is undertaken in the territory mopped up or in their home localities, and in such cases they are to be shot."
On 10 October 1941, General Boehme issued an order to military units under his command relative to the crushing of the insurgent movement, the applicable parts of which are:
"In all commands in Serbia all Communists, male residents suspicious as such, all Jews, a certain number of nationalistic and democratically inclined residents are to be arrested as hostages, by means of sudden actions. It is to be explained to these hostages and to the population that the hostages will be shot in case of attacks on Germans or Volksdeutsche. * * * * "If losses of German soldiers or Volksdeutsche occur, the territorial competent commanders up to the regiment commanders are to decree the shooting of arrestees according to the following quotas:
(a) For each killed or murdered German soldier or Volksdeutsche (men, women or children) one hundred prisoners or hostages. (b) For each wounded German soldier or Volksdeutsche 50 prisoners or hostages.
"The shootings are to be carried out by the troops.
"If possible, the execution is to be made in the daily reports, whether and to what extent the reprisal measure is carried out or when this will be finished.
"In the burying of those shot, care is to be taken that no Serbian memorials arise. Placing of crosses on the graves, decoration, etc, is to be prevented. Burials are accordingly to be carried out best in distant localities.
"The Communists captured by the troops in combat actions are to be hanged or shot as a matter of principle at the location in question as a frightening measure. Localities which have to be taken in combat are to be burned down, as well as farms from which troops were shot at."
After the issuance of the foregoing orders, the shooting of innocent members of the population was stepped up. Acts of sabotage increased and attacks on German military personnel continued unabated. The evidence is conclusive that a large number of reprisals against the population were carried out on the basis of the 100 to 1 order. Space will not permit a detailed account of each of these actions. We shall content ourselves with a recitation of the facts of one incident that bears similarity to many other shown by the record.
On 2 October 1941, at a small village near Topola, a troop unit of the 521 Army Signal Regiment consisting of two officers and 45 men was ambushed from the cornfields along the road on which they were traveling. A few dead and wounded were found at the scene of the attack. In a small valley near by, other dead soldiers were found. A survivor who escaped being killed by feigning death, gave information that these men had been lined up and killed by the partisans by machine gun fire. The total casualties consisted of 22 dead, 3 wounded and 15 or 16 missing.
The incident was reported through regular channels to higher commanding officers.
On 4 October 1941, General Boehme issued an order of reprisal for the killing near Topola which was in part as follows: "21 soldiers were tortured to death in a bestial manner on the 2nd of October in a surprise attack on units of the signal regiment between Belgrade and Obronevac. As reprisal and retaliation, 100 Serbian prisoners are to be shot at once for each murdered German soldier. The Chief of the Military Administration is requested to pick out 2100 inmates in the concentration camps Sabac and Belgrade (primarily Jews and Communists) and to fix place and time as well as burial place. The shooting details are to be formed from the 432 Division (for the Sabac concentration camp) and from the 449th Corps Signal Battalion (for the Belgrade concentration camp.)" On 9 October 1941, General Boehme informed the defendant List as follows:
"Execution by shooting of about 2000 Communists and Jews in reprisal for 22 murdered of the Second Battalion of the 421st Army Signal Communication Regiment in progress."
Another report distributed to the 12th Army commanded by the defendant List stated 180 men were executed on 9 October 1941 and that an additional 269 were executed on 11 October 1941. After the killing of the 449 men, the psychological effect upon the participating units was such that a transfer of the mission was made to another unit.
On 9 October 1941, the Chief of the Security Police and of the SD reports: "In reprisal for the 21 German soldiers shot to death near Topola a few days ago 21000 Jews and Gypsies are being executed. The execution is carried out by the German Wehrmacht. The task of the Security Police is merely to make available the required number. 805 Jews and Gypsies are taken from the camp in Sabac, the rest from the Jewish transit camp Belgrade." On 20 October 1941, the Chief of the Security Police and of the SD in Berlin reported to the Armed Forces Commander Southeast as follows: "In reprisal for 21 dead German Wehrmacht soldiers, 2100 Jews from the Jewish camp were made available for execution by order of Corps Headquarters 18. The Wehrmacht is carrying out the execution."
On 21 October 1941, the Chief of the Security Police and the SD reported to the Armed Forces Commander Southeast in part as follows: "After ruthless action by the troops was bound to fail up to the time of the employment of the Plenipotentiary Commanding General in Serbia because of the lack of corresponding orders, Lt. General Boehme's order, according to which 100 Serbs will be executed for every soldier killed and 50 for every soldier wounded, has established a completely clear-cut line for action. On the strength of this order, for instance, 2200 Serbs and Jews were shot in reply to an attack on a convoy near Topola, during which 22 members of the Wehrmacht perished, while in return for the soldiers killed in the fight for Kraljevo so far 1736 inhabitants and 19 Communist women from Kraljevo have been executed."
The evidence shows that after the capitulation of the armies of Yugoslavia and Greece, both countries were occupied within the meaning of international law. It shows further that they remained occupied during the period that List was Armed Forces Commander Southeast. It is clear from the record also that the guerrillas participating in the incidents shown by the evidence during this period were not entitled to be classed as lawful belligerents within the rules herein before announced.
We agree, therefore, with the contention of the defendant List that the guerrilla fighters with which he contended were not lawful belligerents entitling them to prisoner of war status upon capture. We are obliged to hold that such guerrillas were franctireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans in Yugoslavia and Greece during the time he was Armed Forces Commander Southeast.
We find that the "Commissar Order" of 6 June 1941 requiring the killing of all captured Commissars was not issued, distributed or executed in the occupied territory under the command of List while he held the position of Armed Forces Commander Southeast. The charge that such order was issued, distributed and executed by him while serving on the Russian front as Commander-in-Chief of Army Group A, is not established by the record. The evidence fails to show beyond a reasonable doubt that List was in any way responsible for the killing of Commissars merely because they were such. Consequently, the defendant List is found to be not guilty of any crime in connection with the Commissar Order.
The defendant List contends that he never signed an order for the killing of hostages or other inhabitants, or fixed a ratio determining the number of persons to be put to death for each German soldier killed or wounded. The record sustains this contention. It will be observed, however, that as a high-ranking commanding general no such act was ordinarily within the scope of his duties. It discloses, however, that List caused the Keitel Order of 16 September 1941, containing the 100 to 1 ratio to be distributed to his subordinate commanders. This order provided, among other things, that 100 reprisal prisoners should be shot for each German soldier killed and 50 killed for each German soldier wounded. It is urged that the order was worded in such a way that literal compliance was not required.
We do not deem it material whether the order was mandatory or directory. In either event, it authorized the killing of hostages and reprisal prisoners to an extent not permitted by international law. An order to take reprisals at an arbitrarily fixed ratio under any and all circumstances constitutes a violation of international law. Such an order appears to have been made more for purposes of revenge than as a deterrent to future illegal acts which would vary in degree in each particular instance. An order, directory or mandatory, which fixes a ratio for the killing of hostages or reprisal prisoners, or requires the killing of hostages or reprisal prisoners for every act committed against the occupation forces is unlawful. International law places no such unrestrained and unlimited power in the hands of the commanding general of occupied territory. The reprisals taken under the authority of this order were clearly excessive. The shooting of 100 innocent persons for each German soldier killed at Topola, for instance, cannot be justified on any theory by the record. There is no evidence that the population of Topola were in any manner responsible for the act. In fact, the record shows that the responsible persons were an armed and officered band of partisans. There is nothing to infer that the population of Topola supported or shielded the guilty persons. Neither does the record show that the population had previously conducted themselves in such a manner as to have been subjected to previous reprisal actions. An order to shoot 100 persons for each German soldier killed under such circumstances is not only excessive but wholly unwarranted. We conclude that the reprisal measure taken for the ambushing and killing of 22 German soldiers at Topola were excessive and therefore criminal. It is urged that only 449 persons were actually shot in reprisal for the Topola incident. The evidence does not conclusively establish the shooting of more than 449 persons although it indicates the killing of a much greater number. But the killing of 20 reprisal prisoners for each German soldier killed was not warranted under the circumstances shown.
Whether the number of innocent persons killed was 2200 or 449, the killing was wholly unjustified and unlawful.
The reprisal measures taken for the Topola incident were unlawful for another reason. The reprisal prisoners killed were not taken from the community where the attack on the German soldiers occurred. The record shows that 805 Jews and Gypsies were taken from the collection camp at Sabac and the rest from the Jewish transit camp at Belgrade to be shot in reprisal for the Topola incident. There is no evidence of any connection whatever, geographical, racial or otherwise, between the persons shot and the attack at Topola. Nor does the record disclose that judicial proceedings were held. The order for the killing in reprisal appears to have been arbitrarily issued and under the circumstances shown is nothing less than plain murder.
It is further contended that the basic order for the taking of reprisals was issued by the High Command of the Armed Forces to whom the defendant List was subordinate and that this has the effect of relieving him of responsibility. Such a defense is not available to him. An officer is duty bound to carry out only the lawful orders that he receives. One who distributes, issues or carries out a criminal order becomes a criminal if he knew or should have known of its criminal character. Certainly a fieldmarshal of the German Army with more than forty years experience as a professional soldier knew or ought to have known of its criminal nature. That he did know of it is evidenced by the fact that he opposed its issuance and, according to his own statement, did what he could to ameliorate its effect.
The defendant List also asserts that he had no knowledge of many of the unlawful killings of innocent inhabitants which took place because he was absent from his headquarters where the reports came in and that he gained no knowledge of the acts. A commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area of his command.
His responsibility is coextensive with his area of command. He is charged with notice of occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprize him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defense. Absence from headquarters cannot and does not relieve one from responsibility for acts committed in accordance with a policy he instituted or in which he acquiesced. He may not, of course, be charged with acts committed on the order of someone else which is outside the basic orders which he has issued. If time permits he is required to rescind such illegal orders, otherwise he is required to take steps to prevent a recurrence of their issue.
Want of knowledge of the contents of reports made to him is not a defense. Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf.
The reports made to the defendant List as Wehrmacht Commander Southeast charge him with notice of the unlawful killing of thousands of innocent people in reprisal for acts of unknown members of the population who were not lawfully subject to such punishment. Not once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts. His failure to terminate these unlawful killings and to take adequate step to prevent their recurrence, constitutes a serious breach of duty and imposes criminal responsibility. Instead of taking corrective measures, he complacently permitted thousands of innocent people to die before the execution squads of the Wehrmacht and other armed units operating in the territory.
He contends further that many of these executions were carried out by units of the SS, the SD, and local police units which were not tactically subordinated to him. The evidence sustains this contention but it must be borne in mind that in his capacity as commanding general of occupied territory, he was charged with the duty and responsibility of maintaining order and safety, the protection of the lives and property of the population and the punishment of crime. This not only implies a control of the inhabitants in the accomplishment of these purposes, but the control and regulation of all other lawless persons or groups. He cannot escape responsibility by a claim of a want of authority. The authority is inherent in his position as commanding general of occupied territory. The primary responsibility for the prevention and punishment of crime lies with the commanding general, a responsibility from which he cannot escape by denying his authority over the perpetrators.
The record shows that after the capitulation of Yugoslavia and Greece, the defendant List remained as the commanding general of the occupied territory. As the resistance movement developed, it became more and more apparent that the occupying forces were insufficient to deal with it. Repeated appeals to the High Command of the Armed Forces for additional forces were refused with the demand for a pacification of the occupied territory by more draconic measures. These orders were protested by List without avail. He contends that although such orders were in all respects lawful, he protested from a humanitarian viewpoint. It is quite evident that the High Command insisted upon a campaign of intimidation and terrorism as a substitute for additional troops. Here again the German theory of expediency and military necessity (Kriegsraeson geht vor Kriegsmanier) superseded established rules of international law. As we have previously stated in this opinion, the rules of international law must be followed even if it results in the loss of a battle or even a war.
Expediency or necessity cannot warrant their violation. What then was the duty of the Armed Forces Commander Southeast? We think his duty was plain. He was authorized to pacify the country with military force; he was entitled to punish those who attacked his troops or sabotaged his transportation and communication lines as franctireurs; he was entitled to take precautions against those suspected of participation in the resistance movement, such as registration, limitations of movement, curfew regulations, and other measures hereinbefore set forth in this opinion. As a last resort, hostages and reprisal prisoners may be shot in accordance with international custom and practice. If adequate troops were not available or if the lawful measures against the population failed in their purpose, the occupant could limit its operations or withdraw from the country in whole or in part, but no right existed to pursue a policy in violation of international law.
The record establishes that List was an officer of the "Old School" which quite generally resented the control of the National Socialist Party over the Wehrmacht. That Adolf Hitler in his capacity as Commander-in-Chief of the Armed Forces was generally considered a rank amateur in military matters by this group seems to be quite well established. The subsequent retirement of List "by request" because of a difference of opinion with Hitler on tactical matters during the Russian Campaign further sustains his claimed viewpoint with respect to his relations with Hitler and the National Socialist Party. List states that his views on political matters were not inconsistent with his subsequent military service. It was his opinion that Hitler came to power in a lawful manner and that his obligation as a soldier and his loyalty to his country required him to continue in military service. That he was not in accord with many of the orders of the High Command of the Armed Forces with reference to the pacification of Yugoslavia and Greece is shown by the record.
That his appeals for more troops far the subjugation of the growing resistance movement were met with counter-directives and orders by Hitler and Keitel to accomplish it by a campaign of terrorism and intimidation of the population is amply established. That his orders and directives were more moderate than those of his superiors cannot be questioned. It is clear also that he was continually plagued with the operations of organizations receiving orders direct from superiors in Berlin, such as the SS, the SD, the SA and emissaries of Goering in the administration of his Four Year Plan.
That German prisoners captured by the resistance forces were tortured, mutilated and killed is shown by the evidence. In this connection, we point out the extent to which unlawful reprisals and counter-reprisals may lead. Excesses on the part of troops are bound to occur in any war but certainly they will be more vicious and barbarous if cruelty and harshness constitute the policy of the commanding officers. It is almost inevitable that the murder of innocent members of the population, including the relatives and friends of the franc-tireurs, would generate a hatred that was bound to express itself in counter-reprisals and acts of atrocity. As the severity of the draconic measures of the Wehrmacht were stepped up, so also were the reprisals in answer thereto. There could be but one result, - a completely chaotic condition with an absolute disregard of the laws of war on the part of the fighters of both forces with acts of atrocity progressively increasing. The situation provides adequate proof for the necessity of enforcing the laws of war if torture and barbarity are to be restrained. The failure of the nations of the world to deal specifically with the problem of hostages and reprisals by convention, treaty, or otherwise, after the close of World War I, creates a situation that mitigates to some extent the seriousness of the offense. Those facts may not be employed, however, to free the defendant from the responsibility for crimes committed. They are material only to the extent that they bear upon the question of mitigation of punishment.
We conclude therefore that the evidence establishes the guilt of the defendant List beyond a reasonable doubt on Counts One, and Three.
On or about 24 October 1941, the defendant Kuntze was appointed Deputy Wehrmacht Commander Southeast and Commander-in-Chief of the 12th Army. It is evident from the record that the appointment was intended as a temporary one for the period of the illness of Fieldmarshal List. He assumed the command on his arrival in the Balkans on 27 October 1941. He was superseded by General Alexander Loehr in June 1942 but remained in the position until the arrival of General Loehr on 8 August 1942.
The record shows that in June 1940 before coming to the Balkans, the defendant Kuntze became the commander of the 42 Army Corps.