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.
In June 1941, this corps was transferred to East Prussia where it was subordinated to the 9th Army in the fighting against the Russians. From the middle of July 1941 to October 1941, the corps was subordinated to the 18th Army. Pursuant to orders previously received, the corps, on or about 8 October 1941, commenced operations for its transfer to the Crimea which were concluded on 20 October 1941. It was upon the arrival of Kuntze in the Crimea that he received the order to report to Hitler that resulted in his appointment as Deputy Wehrmacht Commander Southeast.
The defendant Kuntze is charged with issuing, distributing and executing the Commissar order of 6 Jane 1941 wherein Hitler ordered the killing of captured Commissars. In this connection, evidence was offered that from 1 July 1942 to 4 July 1942, captured Commissars were killed by the 217th Infantry Division. The evidence shows that this division was subordinated to the 42nd Corps from August 1941 until the corps was transferred to the Crimea. Consequently, the defendant Kuntze is not chargeable with the acts of the 217th Infantry Division that occurred prior to August 1941. Evidence was also offered showing that units of the 61st Infantry Division killed a number of captured Commissars between 26 September 1941 and 28 October 1941. It is evident that the killing of political Commissars after 6 October 1941 cannot be charged to the defendant Kuntze for the reason that the 42nd Corps was on that date moving to the Crimea. Tie blot Infantry Divivion remained behind and in the very nature of things was no of longer subordinate to the 42nd Corps. There appears in the War Diary of the 61st Infantry Division, however, under date of 26 September 1941, a recitation of the shooting to death of saboteurs and commissars by the Field Gendarme Squad 161a, a unit subordinate to the 61st Infantry Division. The defendant Kuntze admits that the 61st Infantry Division was subordinate to him from the middle of September 1941 to the first part of October of the same year. He denies that he ordered any such action or authorized anyone to carry it out. He states that he had never heard of this incident and had no knowledge of the shooting of any Commissar by any unit subordinate to him.
He states further that the army commander to whom he was subordinate had specifically directed him to treat commissars as prisoners of war and that he complied in all respects with that order. We do not think the foregoing evidence is sufficient to hold the defendant criminally responsible for the issuance, distribution or execution of the Commissar Order. Nor does the evidence establish that the Commissar Order was made effective in the Balkan area. It will not sustain a finding that this order was issued, distributed or executed by the defendant Kuntze during the time he was Deputy Wehrmacht Commander Southeast.
This defendant is also charged with issuing, distributing and executing the Commando Order of 18 October 1942 during the period of his command in the Balkans. By this order, issued by Hitler in person, all sabotage troops generally referred to as commandoes, were to be shot immediately upon capture. The record shows that Kuntze was relieved of his command by General Loehr on 8 August 1942. Consequently, the order was not issued until after Kuntze had left the southeastern area. The prosecution has not attempted to disprove this fact and it must be treated as established. The defendant Kuntze has not been shown to have violated any duty with reference to his treatment of commandos or other groups mentioned in the Commando Order.
We hold also that the resistance forces with which we are here concerned were not entitled to be classed as lawful belligerents during the period the defendant Kuntze was Deputy Wehrmacht Commander Southeast. The reasons stated in the treatment of this subject in its relation to the defendant List apply as well to the defendant Kuntze and they will not be repeated here. No criminal responsibility can therefore attach to him because of the killing of captured members of the resistance forces, they being franc-tireurs subject to such punishment.
The defendant Kuntze contends that a right exists to take reprisals by killing hostages and reprisal prisoners in retaliation for the criminal acts of the resistance forces and other unknown persons. He asserts also that members of bands and those supporting them were used for reprisal purposes and that he knew of no instance where a contrary course was pursued.
He denies that excessive and disproportionate reprisals were taken and claims to have had little or no knowledge of the harsh measures taken as shown by the war diaries, orders and reports offered in evidence. He further contends that the measures taken were prescribed by superiors whose orders he was bound to follow. The legal questions thus raised have been dealt with in disposing of the case against the defendant List and will not for reasons of brevity be repeated here. The factual situation will however be examined.
The defendant Kuntze assumed command in the Southeast on 27 October 1941, a month which exceeded all previous monthly records in killing, innocent members of the population in reprisal for the criminal acts of unknown persons. On 9 October 1941, 2200 communists and Jews were shot in reprisal for 22 German soldiers of the 521st Signal Regiment murdered at Topola; on 18 October 1941, 1736 men and 19 communist women were shot in reprisal for German losses sustained in the fight for Kraljevo; on 19 October 1941, 182 men were shot to death in Mackovac and 1600 men from Valjevo were shot to death in reprisal for 16 Germans killed and 24 wounded; on 21 October 1941, 2300 Serbs of various ages and professions were shot to death; on 27 October 1941, 101 arrestees were shot to death with further killings to be carried out after more arrestees had been turned in; and on 28 October 1941, 2200 Serbs were shot for 10 German soldiers killed and 24 wounded in action. It seems highly improbable that Kuntze could step into the command in the Southeast in the midst of the carrying out and reporting of these reprisal actions without gaining knowledge and approval. Reports made to the defendant Kuntze, shown in the evidence, reveal that on 29 October 1941, 76 persons were shot in reprisal in Serbia; on 2 November 1941, 125 persons were shot to death at Valjevo; and on 27 November 1941, 265 communists were shot as a reprisal measure at Valjevo. Under date of 31 October 1941, the Commanding General in Serbia, General Boehme, recapitulated the shootings in Serbia in a report to Kuntze as follows: "Shootings: 405 hostages in Belgrade (total up to now in Belgrade 4750). 90 communists in Camp Sabac. 2300 hostages in Kragujevac. 1700 hostages in Kraljevo." In a similar report under date of 30 November 1941, General Boehme reported to Kuntze as follows:
"Shot as hostages (total) 534 (500 of these by Serbian Auxiliary Police)." Many other similar shootings are shown by the record. Included was a report covering the whole period of who resistance movement up to and including 5 December 1941 wherein it is show that 31,338 reprisal prisoners were to be shot on the basis of the 100 to 1 order, that 11,164 had been shot and that 20,174 remained to be shot in reprisal to fulfill the quota fixed on the 100 to 1 basis.
THE PRESIDENT: The Tribunal will take its noon recess at this time and reconvene at one-thirty.
THE MARSHAL: The Tribunal will be in recess until thirteen-thirty.
(The Tribunal adjourned until 1330 hours, 19 February 1948).
AFTERNOON SESSION "The Tribunal reconvened at 1330 hours, 19 February 1948)
THE MARSHAL: The Tribunal is again in session.
JUDGE BURKE: On 5 December 1941, the new Commanding General in Serbia, General Bader, ordered the basic reprisal ration reduced to 50 reprisal prisoners for each German killed and 25 for each German wounded. The defendant Kuntze asserts that this reduction of ratio was in a large part due to his insistence and effort in that direction. Thereafter the killing of hostages and reprisal prisoners continued. In a daily report to the defendant Kuntze, General Bader stated that 449 reprisal prisoners were shot to death in January 1942 and the 3484 additional shootings had been ordered to commence immediately to balance the reprisal killings against the Germans killed and wounded on the fixed ratio. On 21 February 1942, General Bader reported the shooting of 570 communists by the Serbian auxiliary Gendarmie, on 23 February 1942 the shooting of 403 reprisal prisoners and on 25 February 1942 the shooting of 110 communists in reprisals.
On 19 March 1942, the defendant Kuntze issued an order regarding the combatting of insurgents which stated in part: "I expect troop leaders of all ranks to show special energy and ruthless action as well as to commit fully their own person for the duty with which they are charged, which is to preserve quiet, order and security by all means. All soldiers who do not follow orders and who do not act decisively are to be called to account. By means of brutal police and secret police measures, the formation of insurgent bands is to be recognized in its inception and to be burnt out. Captured insurgents are to be hanged or to be shot to death as a matter of principle; if they are being used for reconnaissance purposes, it merely means a slight delay in their death." In the directives accompanying the foregoing order, it was stated: "The more unequivocal and the harder reprisal measures are applied from the beginning the less it will become necessary to apply them at a later date.
No false sentimentalities. It is preferable that 50 suspects are liquidated than one German soldier lose his life, Villages with Communist Administration are to be destroyed and men are to be taken along as hostages. If it is not possible to produce the people who have participated in any way in the insurrection or to seize them, reprisal measures of a general kind may be deemed advisable, for instance the shooting to death of all male inhabitants from the nearest villages, according to a definite ratio (for instance 1 German dead -- 100 Serbs, 1 German wounded -- 50 Serbs)." The shooting of large numbers of reprisal prisoners and hostages was reported to Kuntze after the issuance of the foregoing order and directive.
Although he was advised of all these killings of innocent persons in reprisal for the actions of bands or unknown members of the population, Kuntze not only failed to take steps to prevent their recurrence but he urged more severe action upon his subordinate commanders. Not once did he attempt to halt these disproportionate reprisals. He directed the burning down of all villages having a communist administration and the taking of all the male inhabitants as hostages. He directed the taking of reprisal measures against the population generally such as the shooting to death of all the male inhabitants of the nearest village on the basis of 100 for each German killed and 50 for each German wounded. In many cases persons were shot in reprisal who were being hold in collecting camps without there being any connection whatever with the crime committed, actual, geographical or otherwise. Reprisal orders were not grounded on judicial findings. The order and directives which brought about the killing of these innocent members of the population constitute violations of international law which are punishable as crimes. The orders he issued and his subsequent failure to take steps to end these unlawful killings after they had been reported to him makes him criminally responsible under the law previously announced and applied in this opinion to the defendant List.
With reference to the alleged mistreatment of Jews and other racial groups within the area commanded by the defendant Kuntze during the time he was Deputy Wehrmacht Commander Southeast, the record shows the following: On 3 November 1941, the Chief of the Administrative Staff, an official subordinate to General Boehme, who was in turn subordinate to the defendant Kuntze, ordered the immediate arrest of all Jews and Gypsies as hostages and the deportation of their wives and children to an assembly camp near Belgrade. On 4 November 1941, a detailed report concerning the shooting of Jews and Gypsies between 27 and 30 October 1941 is shown in the War Diary of the 433rd Infantry Regiment. The lurid details of the shooting of those 2200 persons is graphically recited in this report. A report under date of 5 December 1941 containing the notes of the Wehrmacht Commander Southeast (Kuntze) made on a tour of inspection, says in part: "All Jews and Gypsies are to be transferred into a concentration camp at Semlin (at present there are about 16,000 people there). They were proven to be the bearers of the communication service of the insurgents. On 4 February 1942, the 704th Infantry Division reported to General Bader that it had delivered 161 partisans, 17 Jews and 2 Jewesses to the SD - Belgrade. On 19 March 1942, General Bader reported to the defendant Kuntze that 500 Jews had been transported from Metrovica to Semlin. On 10 March 1942, General Bader reported to Kuntze that in the Jewish camp of Semlin there were 5780 persons, mostly women and children. On 20 April 1942, General Bader reported to the defendant Kuntze that in the concentration camps there were 182 hostages, 3266 reprisal prisoners and 4005 Jews.
The foregoing evidence shows the collection of Jews in concentration camps and the killing of one large group of Jews and Gypsies shortly after the defendant assumed command in the Southeast by units that were subordinate to him.
The record does not show that the defendant Kuntze ordered the shooting of Jews or their transfer to a collecting camp. The evidence does show that he had notice from the reports that units subordinate to him did carry out the shooting of a large group of Jews and Gypsies as hereinbefore mentioned. He did have knowledge that troops subordinate to him were collecting and transporting Jews to collecting camps. Nowhere in the reports is it shown that the defendant Kuntze acted to stop such unlawful practices. It is quite evident that he acquiesced in their performance when his duty was to intervene to prevent their recurrence. We think his responsibility for these unlawful acts is amply established by the record.
There is some evidence in the record that portions of the population were being deported for labor service in Germany, Norway and other territories subjected to German influence. We are of the opinion that Kuntze's responsibility therefore, if such deportations were in fact carried out, has not been established beyond a reasonable doubt.
There is also some evidence concerning an improper use of the population in labor service in clearing mines and building military establishments. In this respect, the language of the reports is not definite and the testimony offered is not clear that such alleged acts were unlawful ones for which this defendant could be held responsible.
The defendant Kuntze denies that he was in any way responsible for the commission of unlawful acts by troops subordinate to him. While the record does not show that he ever ordered a ratio to be applied in the execution of reprisal measures, the record does show that he urged more severe measures and a direction that a ratio of 100 to 1 for each German killed and 50 to 1 for each German wounded be applied where the perpetrators could not be found. Reports made to him show that he was not without knowledge of the reprisals being taken and the ratios being applied.
His claim of a lack of knowledge of the crimes being committed cannot be sustained.
It is true, as shown by the record, that the acts complained of were ordered by his superiors. While this is not a defense, it is a matter for consideration in mitigation of punishment. He says, and it is not disputed, that he objected to the High Command because of the harshness of orders received. That he was not in high favor with Hitler and the Nazi party is borne out by the record. That he was continually pressed by his superiors to invoke more severe measures is clearly shown. He was plagued with the operations of organizations receiving their orders direct from Berlin in the same manner as was the defendant List. He was faced with a type of unlawful warfare that presented many difficult problems for solution by the commanding general. While many extenuating circumstances are shown by the record, his guilt in permitting the killing of innocent members of the population and the transportation of Jews to concentration camps is amply shown.
The defendant Kuntze, at the time of the commission of the acts charged, was a professional soldier with forty years experience. He knew or ought to have known that the killing of thousands of the population under the guise of carrying out reprisal measures when such reprisal measures were legitimate in no sense of the word, made thorn crimes no matter what name was applied to then.
COURT NO. V, CASE NO. VII.
The defendant says that order and security was the objective sought by him in the Southeast and that reprisal measures were taken for the purpose of deterring attacks upon German soldiers and the sabotaging of communication lines and military installations. But this is only a partial explanation. It appears from the record that the High Command was endeavoring to secure order and security in the southeast without adequate troops and equipment. It is evident that order and security was sought by applying intimidating measures against the population in lieu of adequate troop commitments. This led to the barbarous abuses of the law of hostages and reprisals which we have set forth. The contention that military expediency or necessity justifies the acts cannot be accepted as valid. There are certain acts otherwise unlawful which are proper when military necessity requires their doing, but the killing of greet numbers of the population in the manner here shown is not one of them. The collection of Jews and Gypsies in collection or concentration camps merely because they are such, is likewise criminal. The defendant says that he never heard of any such action against Jews or Gypsies in the Southeast. The reports in the record which were sent to him in his capacity as Wehrmacht Commander Southeast, charge him with knowledge of these acts. He cannot close his eyes to what is going on around him and claim immunity from punishment because he did not know that which he is obliged to know. We conclude therefore that the guilt of the defendant Kuntze is shown by the evidence beyond a reasonable doubt on Counts One, Three and Four.
The defendant Foertsch participated in the invasion of Yugoslavia and Greece as liaison officer with the XIIth Army for OKH.